Criminal Law Review 2007
CRIMINAL LAW REVIEW 2007
APPEAL
The proviso
1 Last year Weiss v The Queen [1] had led to a reconsideration of how the proviso should be applied where there had been an irregularity in the trial. In effect the decision required the Court to determine whether a miscarriage of justice had occurred by evaluating the evidence in the trial to determine whether on the evidence the Court was satisfied that the offence was proved beyond reasonable doubt. One question that was left open by that decision was the extent to which the Court should quash a conviction even if it were satisfied that the appellant’s guilt had been proved.
2 Some members of the High Court considered the decision of Weiss in Libke v The Queen [2]. The case concerned the behaviour of a prosecutor when cross-examining the accused. All members of the Court were critical of the conduct but only Kirby and Callinan JJ would have allowed the appeal. In considering whether the proviso should be applied in a joint judgment their Honours stated:
[45] As it is put in Stokes v The Queen, an appellate court should only apply the proviso if the irregularity "could not reasonably be supposed to have influenced the result". If this cannot be ruled out, it may be impossible for a court to be satisfied that a substantial miscarriage of justice has not occurred. What occurred here could not justify the negative supposition required to deny the appellant a retrial. In our view this is so even if the irregularities were confined to the prosecutor's comments and did not extend, as we believe, to the questions that we have identified.
[46] Not only will there be cases in which it is proper to allow the appeal and order a new trial, even though the appellate court may be persuaded on the admissible evidence to the requisite degree of the appellant's guilt, but also, as much more often will be the case, even after a careful examination of the record for itself, it will simply be impossible for that court to assess the impact of the irregularities on the fairness of the trial. Ultimately, an appellate court may only apply the proviso if it is affirmatively satisfied that no substantial miscarriage of justice to the accused has occurred. A significant denial of procedural fairness will not, of course, be the only occasion for allowing an appeal. The reasoning of the Court in Weiss does not suggest otherwise.
[47] What occurred in the present case plainly involved an interference with the fairness of the trial, whether it should be characterized as procedurally or otherwise irregular. Because of the repetition of the conduct, and the trial judge's abstention from reproof and checking of it, it can only be described as significant. At one end of the scale, the relevant conduct can be seen to have posed a real risk of a wrongful conviction. At the other end, it is difficult to see how it could have done otherwise than to prejudice the jury against the appellant.
3 And later:
[50] We have undertaken for ourselves the exercise which Weiss reiterates should be undertaken. We have independently assessed the evidence, making due allowance for such natural limitations as apply to appellate processes. But in doing so, necessarily, we have had regard to the complexion that the evidence, counsel's addresses and the trial judge's summing up may well have assumed, by reason of the highly inappropriate remarks of the prosecutor, and more, the trial judge's apparent silent approval of them.
[51] In undertaking this exercise, we are not attempting to predict what a jury may or may not do, but simply to make it clear that we are not convinced that a substantial miscarriage of justice has not occurred.
[52] Weiss is only part of the relevant law on the topic. What the law is presents a question for legal analysis of the relevant statute and of the several authorities which together bear upon it. Weiss was written against the background of, and should be read subject to, almost a century of elucidation of the language of the "proviso" in criminal appeal statutes. It certainly did not cast doubt on the existence of the forensic burden imposed on the prosecution to demonstrate innocuous harmless error once a mistake of law, or observance of the requirements of justice, or an irregularity has been proved to have occurred in a criminal trial. That is the position here. Weiss holds that in undertaking its assessment, the appellate court must keep in mind that the jury has returned a verdict of guilty. The relevance and force of that consideration are capable of immense variation according to the degree of irregularity in the conduct of the trial.
4 Hayne J, with whom Gleeson CJ and Heydon J, agreed stated:
[115] None of the appellant's grounds of appeal being made out, it is, of course, not necessary to go on to consider the application of the proviso. It is as well to emphasise, however, that the unanimous decision of this Court in Weiss v The Queen warned against attempting to describe the operation of the statutory language in other words, lest such expressions mask the nature of the appellate court's task in considering the application of the proviso. The Court expressly discountenanced any attempt to predict what a jury (whether the jury at trial, or some hypothetical future jury) would or might do. Rather, the Court said that "in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'". Unless, and until, a majority of this Court qualifies what is said in Weiss, the intermediate courts of Australia must continue to apply that decision.
5 So nothing has changed and we still await guidance as to when it might be that the proviso cannot be applied to an irregularity in the trial notwithstanding that the Court is of the view that the appellant was properly convicted on the evidence.
6 A question arose as to the way the Court should approach s 6(3) of the Criminal Appeal Act after finding error in the exercise of the sentencing discretion. There was a suggestion that the decision in R v Johnson [3] meant that the words in the subsection permitting the Court to allow an appeal if it is of the opinion that some other sentence “is warranted in law and should have been passed” required the Court to consider whether the sentence passed was manifestly excessive before intervening. There has been some question also about the admissibility of evidence of post-sentence facts. This decision was the subject of some discussion at the conference in 2005.
7 In Douar v R [4] the various decision bearing on these issues were considered without ultimately determining the correctness of Johnson. Thereafter the issue seemed to have gone into the “too-hard basket”. However it was raised recently and the issue has been finally determined.
8 In Baxter v R [5] there was an error by the Judge in stating the maximum penalty for the offence with which he was concerned. The error was made twice during the sentencing remarks and once at a place where it might be considered to have been more than a simple slip. There was also evidence placed before the Court of material relevant to the applicant’s psychiatric state, although it was clearly not fresh and should have been available before the sentencing judge. The issue arose as to whether the Court should intervene and whether in determining that question it should consider the tendered evidence. The Crown argued relying upon Johnson that the sentence imposed was not manifestly excessive and the Court should not take into account the new evidence.
9 Kirby J found that there had been a material error in misstating the maximum penalty as that error in the circumstances of the case could have affected the sentence imposed and therefore Douar applied. His Honour concluded that the Court should re-sentence the appellant taking into account the new material. Spigelman CJ agreed with Kirby J but went on to point out that what Hunt AJ said in Johnson was not intended to bring about the effect for which it was being used by the Crown as authority and should not be taken as requiring the Court to determine whether the sentence is “outside the appropriate range” as a pre-condition to the formation of the opinion in s 6(3).
10 The Chief Justice stated:
17 The words “warranted in law” in s6(3) do not refer only to the situation in which a sentence actually passed was outside the permissible range. That would focus attention only on the time of the original sentence and the reasoning process of the sentencing judge. For the reasons I have identified above, the dual reference to the present tense reinforces the express reference to the “opinion” of the Court of Criminal Appeal to emphasise that it is the appellate court that is making a judgment as to whether or not the sentence actually passed was “warranted in law”. The subsection is not directed to answering the question as to whether or not the particular sentence was warranted in law from the perspective of the original sentencing judge alone.
18 In these circumstances the phrase “warranted in law” should be understood as a reference to the entire body of legal rules that inform the exercise of a sentencing discretion, i.e. both statutory requirements and sentencing principles developed at common law.
19 The import of par [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed by some allowance for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides.
11 Latham J agreed with both the Chief Justice and Kirby J but pointed out that it is only if the error may have affected the sentence imposed that it is necessary to determine whether some other sentence is warranted in law. Her Honour noted that even in the case of a misstatement of the maximum penalty it does not necessarily follow that the error may have affected the sentence imposed, for example because the error occurs in only one of a number of sentences, see Tadrosse [6].
12 In The Queen v Hillier [7] the High Court considered a Crown appeal from a decision of a Court of Appeal setting aside a verdict and ordering an acquittal on a charge of murder. The case was a circumstantial one aimed at proving that H was the killer. The High Court held that the Court misdirected itself in considering the ground of appeal by not considering all of the evidence in the trial. The Crown relied upon opportunity for H to kill the deceased, motive to do so, damage to H’s hand and DNA evidence.
13 In the joint judgment allowing the appeal, the evidence relied upon by the Crown at trial was considered in detail. The majority in the Court of Appeal after reviewing various aspects of the evidence had concluded:
…………that "[a]t face value" these considerations provided "strong grounds for an inference that someone else may have entered the house and been responsible for [the] death" of Ms Hardwick. The majority went on to say that "there may be explanations for these matters that are compatible with the Crown case" but said that "potentially exculpatory inferences cannot be ignored merely because there may be other possible explanations for the relevant facts".
It was held that this reasoning was erroneous [8]
14 It was stressed in the joint judgment that it is “of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence”[9] and that:
“Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal…………..” [10]
The failure of the majority in the Court of Appeal was to concentrate on evidence favouring the innocence of H without considering the evidence as a whole, including the fact that H gave evidence at the trial and what conclusion the jury would have made about his evidence.
15 The appeal was allowed and the matter referred back to the Court of Appeal to be reconsidered by a differently constituted court.
Dealing with all grounds of appeal
16 In The Queen v Cornwell [11] the High Court had before it an appeal by the Crown against orders from the Court of Criminal Appeal granting the accused a new trial. In the course of considering the appeal the majority of the High Court had cause to consider again the requirement that an intermediate court deal with all grounds of appeal even though they may only result in a re-trial. The background is that there was a cross-appeal by the accused complaining that the Court of Criminal Appeal did not adequately address the ground that the verdict was unreasonable, ground 5. The majority in the High Court concluded that the reasons as stated were not sufficient for dismissing that ground of appeal and remitted the matter.
17 The majority held:
[105] Intermediate appellate courts in criminal appeals must deal with grounds of appeal which, if made out, could result in a verdict of acquittal notwithstanding that a ground justifying an order for a new trial has been made out. That principle does not apply here, for apart from ground 5, none of the grounds of appeal, if made out, were likely to result in a verdict of acquittal as distinct from an order for a new trial. This case presents a different and more difficult problem. Intermediate courts of appeal in this country are very busy, and it is understandable that they should not wish to deal with matters which it is not necessary for them to deal with. However, while no universal rule can be enunciated, intermediate courts of appeal should bear in mind the factors making it desirable for them to deal with all grounds of appeal, rather than to deal with what is seen as a decisive ground in a way which apparently renders it unnecessary to deal with other grounds. That is because of the trouble caused if this Court, as here, disagrees with the intermediate court of appeal on one ground it did deal with fully, considers that its treatment of the other ground it dealt with was incomplete, and has returned the matter to the intermediate court for the four grounds not dealt with and the one ground not completely dealt with to be considered again. The trouble comes in the form of cost, delay and the need for reargument. This is particularly so in criminal appeals, where adding to delays can result in accused persons who are ultimately acquitted at a second trial having to remain imprisoned for longer than necessary, and longer than in justice they should be.
Verdict of acquittal or retrial
18 In The Queen v Taufahema [12] a majority of the High Court allowed an appeal by the Crown against a decision to direct a verdict of acquittal rather than order a retrial in a situation where the Crown could not indicate any error on the part of the Court of Criminal Appeal in the exercise of its discretion but wished to conduct a further trial on a basis other than that which it relied upon at trial or before the Court of Criminal Appeal. In the end the decision probably can be distinguished, if need be, on the basis of its unusual facts.
19 The Court of Criminal Appeal has power to order a retrial “if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make”: see s 8(1) of the Criminal Appeal Act. In relation to that section the majority said:
[49]………One of the key "circumstances" referred to in s 8(1), and one of the key factors in assessing whether a new trial is an adequate remedy, is "the public interest in the due prosecution and conviction of offenders"[28]. It is in "the interest of the public ... that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury."[29] This passage highlights two points about the present case.
[50] First, there is no doubt that Senior Constable McEnallay was murdered; almost all murders are very serious crimes, and murders of police officers while carrying out their duties are no exception to that generalisation.
[51] Secondly, whether or not one chooses to call the errors identified by the Court of Criminal Appeal "blunders", they were certainly "technical", and they were errors by the trial judge rather than by the prosecution. For it was the trial judge rather than the prosecution who bore primary responsibility for the circumstances which led the Court of Criminal Appeal to allow the appeal. Apart from the errors in summing up criticised by the Court of Criminal Appeal, it was by reason of the trial judge's influence, in a long debate with counsel for the prosecution after the evidence had closed but before final addresses, that the prosecution ended up not pressing its original case as opened to the jury, instead relying only on a case turning on a "foundational crime" of evading lawful apprehension which does not exist. The fact is that the trial which took place was a flawed one. The question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal - that is, an order terminating the possibility of any investigation by a jury, in an unflawed fashion, of the accused's role in the circumstances leading to Senior Constable McEnallay's death. An order for acquittal conflicts with "the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision."……………………
20 The majority accepted that it was not appropriate to order a retrial where the evidence at the first trial was insufficient to support a conviction. The majority stated:
[52]………In Gerakiteys v The Queen, Gibbs CJ, when considering what was a sound exercise of the power of a court of criminal appeal to order a new trial, said:
"It would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction."
That proposition rests in part on the idea that if the evidence is unchanged at the second trial, accused persons should not be placed in jeopardy of conviction by a second jury where an appellate court has found that the evidence was insufficient at the first trial; and in part on the idea that a new trial should not be ordered merely to give the prosecution an opportunity of mending its hand and presenting new evidence at the second trial which it failed to present at the first.
However they were of the view that this proposition did not apply in the case before them.
21 There is a considerable discussion in the majority judgment of what is meant by the proposition that the Crown should not be permitted to make a new case on a retrial. They noted:
[60] The authorities on whether appellate courts should order a new trial or an acquittal offer very little explicit exposition of what is meant, conceptually, by a "new case which was not made at the first trial". However, the way the authorities have been decided tends to show that the "new case" test is not easy for accused persons to satisfy. It is proposed to examine four of those authorities.
Having reviewed authorities in the High Court on this issue, the majority concluded:
[67] These authorities suggest that the difference between the case relied on in a first trial and the case to be relied on in a second trial must be substantial if the difference is to stand as a bar to an order for a second trial.
22 The majority concluded that the intended case and that conducted at the first trial were not substantially different and so it was not unfair for the Crown to seek to remould its case based upon principally the same evidence led at the first trial.
23 In R v Abbas [13] the Court allowed an appeal against conviction on the basis that the verdict was unsupportable on the evidence. The trial concerned the shooting of two persons and the issue was whether the appellant was one of the persons responsible. The Crown case was a circumstantial one. The judgment of the Chief Justice concludes with the following paragraphs:
99 This case comes down to one issue. Does the absence of a clear video record of blood or injury on the face of the Appellant raise a reasonable doubt about his guilt? In my mind it does raise a reasonable doubt.
100 The preponderance of the evidence is that there was a significant amount of blood on the face of the alleged perpetrator, both at the time of the fight with [the victim] and at the time of the shooting. In the absence of any expert evidence that the CCTV system may not pick up such detail, the complete absence of any visual manifestation of blood on the Appellant, or of any conduct consistent with such an injury, on the video footage, creates in my mind a reasonable doubt, notwithstanding the other evidence.
101 There is no reason to believe that this deficiency in the Crown case can be remedied without some modification of the Crown case at the trial or new evidence. Nevertheless, the strength of the balance of the case is such that, in my opinion, this Court should not direct a verdict of acquittal. Whether there should be a second trial should be left to the exercise of a prosecutorial discretion.
102 The orders I propose are:
1 Appeal allowed.
2 A new trial be conducted.
24 I understand that the Crown intends to proceed against the appellant again with further evidence as to the CCTV footage. The appellant has sought special leave in the High Court. It will be interesting to see how the Court applies the statement of the majority in Taufahema as to the proposition set out in para 14 above.
25 The High Court considered the issue of the consequence of an order for a retrial in AJS v The Queen [14]. That was a case where the Court of Appeal of Victoria had determined that there was insufficient evidence to support a conviction of incest. There had been an available alternative count of indecent assault. The Court quashed the conviction for incest but made an order for a new trial. The appellant argued that he was entitled to have the Court enter a verdict of acquittal on the incest count and a retrial on the alternative count.
26 The Court said this about the identification of orders sought by an appellant:
[3] Neither before nor after the Court of Appeal made its orders did the appellant make any submission to that Court about the form of the orders to be made if his appeal succeeded. The consequence is that the Court of Appeal has not expressly considered the issues that now arise. It is for the appellant to formulate the precise orders which are sought in an appeal. If that is done, any controversy about the form of the orders can be identified, and arguments advanced that will assist the Court to resolve that controversy. If, after publication of reasons and pronouncement of orders, some issue emerges about the form of those orders, application should be made, before the order is perfected, to relist the matter for further argument about the form that the orders should take. These steps not having been taken in this matter, this Court must deal with the matter without the benefit of the Court of Appeal's consideration of the issues that have been debated.
27 The High Court was of the view that an acquittal should have been entered once the Court of Appeal found that the charge of incest was unsustainable. The joint judgment of the Court stated:
[5] Directing the entry of judgment and verdict of acquittal would not engage principles of estoppel or preclusion that fall for consideration where there is a double prosecution of an accused, either in the one proceeding or in successive proceedings. A new trial of the appellant, limited to a charge of committing an indecent act, would not be a second or subsequent prosecution. It would be the continuation of so much of the original prosecution as remained alive after the Court of Appeal's determination of the appeal. In particular, the entry of judgment and verdict of acquittal on the count of incest would not found a plea of autrefois acquit in answer to the statutory alternative offence, any more than a jury's verdict of not guilty to the count of incest, at the first trial, would have precluded the jury from going on to consider that alternative offence.
28 Later the joint judgment considered further the consequence of the verdict of acquittal on the incest charge for a retrial on the charge of indecent assault. It held:
[19] No question of double jeopardy arises in the present matter. The proceedings commenced by the prosecution against the appellant were, as the Court of Appeal's orders recognised, only partly determined by that Court's disposition of the appeal. The second of the offences now under consideration (the offence of committing an indecent act) was a statutory alternative to the first. There has been and would be no double prosecution of the kind considered in Pearce. In Pearce, the prosecution sought and obtained convictions for two offences charged in the one indictment. Further, unlike Island Maritime, there would be no separate institution of a second prosecution. In this case the prosecution does not seek to institute new and different proceedings against the appellant after the final determination (against the prosecution) of earlier proceedings. The charge of incest preferred against the appellant has now been finally resolved in his favour. He is entitled to the entry of judgment and verdict of acquittal of that offence. But the other, lesser, statutory alternative offence of committing an indecent act put in issue by the presentment charging the appellant with incest has not been determined by the Court of Appeal and remains unresolved.
29 The Court also considered what might arise at the trial of the indecent assault if the complainant gave evidence of penetration consistent with an allegation of incest. The joint judgment stated:
[24] When an accused person has been acquitted of a charge by verdict of a jury, it will not be possible to know why the jury reached its verdict. In those circumstances, the reference to the person having the "full benefit" of an acquittal may reflect the opacity of that verdict. But it is important to recognise that the references made to the "full benefit" of an acquittal are no more than a particular restatement of a more fundamental principle. That principle is that the verdict, as recorded in the court's record, is not to be controverted. And where, as here, the reasons for quashing the conviction are known, the reasons for directing entry of judgment and verdict of acquittal are known. There would be a controverting of that record only if the jury were to be left in a position where in the course of considering whether the appellant had committed an indecent act they might consider whether there had been, or may have been, an act of digital penetration of the complainant. A concession by the prosecution that the evidence may not be understood by the jury as establishing that there had been that penetration, or in default of such a concession, a direction to that effect, would give the appellant the full benefit of the verdict to which he was and is now entitled in respect of the count of incest.
[25] While the exact content of directions to the jury must depend upon the way in which the real issues in the case emerge at trial, it is not immediately apparent why it would be necessary to explain to the jury the reason that the conclusion that there had been digital penetration is not open. If, as may be expected, the credit of the complainant is taxed with her earlier accounts of the events giving rise to the prosecution, that would be reason enough for the jury to be told that they must proceed on the footing that there was no digital penetration. Further explanation of why they must proceed on that basis would very probably not be necessary. In particular, to tell the jury of an earlier trial, conviction and successful appeal would, at first sight, appear to introduce unnecessary and distracting complexity to the trial of the offence of committing an indecent act.
Evidence for the purpose of resentencing
30 R v Deng [15] was a Crown appeal that was dismissed on discretionary grounds notwithstanding that the sentence was held to be manifestly inadequate. At the hearing of the appeal counsel for the respondent attempted to tender material that could and should have been before the sentencing judge. Briefly it was the ERISP of the respondent that gave a different version of the events from those outlined in the agreed statement of facts. The evidence was rejected.
31 The judgment of James J contains a consideration of what evidence should be received by the Court for the purposes of resentencing after the finding of error. His Honour applied that part of the judgment in R v Fordham [16] dealing with the reception of fresh or new evidence on a sentence appeal. In effect he held that the Court will not normally receive evidence that could have, or should have, been placed before the sentencing judge even for the purposes of resentencing the appellant or respondent to a Crown appeal.
EVIDENCE
A certificate of immunity
32 In Cornwell v The Queen[17] the High Court considered the jurisdiction of a trial judge to grant a certificate under s 128 of the Evidence Act to an accused who objects to answering questions from his own counsel on matters giving rise to the possibility of prosecution for offences not before the trial court. In that case, the trial judge having admitted evidence of other criminal conduct as being relevant to proof of the charge of conspiracy to import drugs, the accused objected to answering questions about that activity on the basis that the answers would tend to incriminate him of offences other than that for which he was on trial.
33 A majority of the Court held that the trial judge was in error in granting the certificate on the basis that it related to evidence about which the accused could not object. The trial judge had held that the evidence of other offences was not evidence that the accused “did an act the doing of which was a fact in issue” or “had a state of mind the existence of which is a fact in issue” within the terms of s 128(8) and, therefore, the section applied. The High Court held that this was too restrictive an approach to the section and resulted in too radical a departure from what had been the law prior to the section coming into operation.
34 In effect the decision means that, at least for the purposes of s 128(8), evidence that the accused did an act the doing of which is a fact in issue includes evidence tending to prove that the accused did an act the doing of which is a fact in issue. As the evidence of other offences was evidence that tended to prove that the accused was part of the conspiracy charged against him, he could not refuse to answer questions in respect of the evidence of the other offences notwithstanding that those answers might tend to incriminate him of the other offences.[18]
35 Further the Court held that, as the certificate ought not to have been given, it did not bind the second trial judge conducting a retrial of the accused after a hung jury at the first trial. But even had the certificate not been erroneously given, it could not avail the accused at a retrial, because they were not proceedings caught by s 128(7) that prohibits the evidence subject to a certificate being used in proceedings. In effect it was held that the second trial was the same proceeding as that in which the certificate was granted notwithstanding there was a different jury, different judge, different court and different parties were named in the indictment [19].
36 The majority of the High Court was of the view that the use of the evidence at the second trial was not unfair notwithstanding that the accused gave evidence at the first trial in the belief that the evidence could not be used against him at any subsequent proceeding. The second trial judge had refused to reject the evidence under s 137. The Court of Criminal Appeal held that this was an error but the majority of the High Court were of the view that the second trial judge was entitled to reach that decision and the second trial did not miscarry by the reception of the evidence of the accused from the first trial.
Uncharged acts in sexual assault matters
37 The admissibility of evidence of uncharged acts in sexual assault cases was considered by some judges of the High Court in Tully v The Queen [20] even though it was held by a majority that the case was a suitable vehicle for reconsideration of the issue. This has been the subject of Special Bulletin No 18 issued by the Judicial Commission so it is unnecessary to refer to it in detail. However Callinan J took the opportunity to again indicate his view consistent with what he said in Gipp v The Queen[21] that the evidence is not admissible simply to explain the nature of the relationship.
38 However the High Court has granted special leave to revisit the issue in SB v The Queen[22] an appeal from South Australia. Of course Callinan J will not be sitting on that Court, but there appears to be some support for his views from Heydon and Crennan JJ.
39 In Rolfe v R[23] it was held that letters written by the accused apparently admitting and expressing remorse for general sexual misconduct against the complainant were admissible on a trial for particular offences none of which were mentioned in the letters. The admissibility was not based upon relationship or as evidence of “guilty passion” but a general admission of the type of conduct which embraced the offences alleged even though it could not be used to prove any of the counts in the indictment [24].
OFFENCES
Child sexual assault offences
40 On 13 June 2003 s 77(2) of the Crimes Act was repealed and at the same time the offence of having intercourse with a child between the age of 14 and 16 were restructured. Section 77(2) had provided a defence to certain child sexual assault offences where the child was over the age of 14, consented to the intercourse and the accused believed that she was over the age of 16. In CTM v R [25] the question arose as to the consequences of the repeal of s 77(2). In particular the issue was whether the common law defence applied to the new offences created at the time of the repeal of that section. There had been conflicted decisions in the District Court on this question.
41 It was held that the common law defence did not arise. The case considers in depth the history of child sexual assault offences in New South Wales and determined whether from that history parliament could be taken to have intended by the repeal of s 77(2) to also displace the common law defence that would otherwise arise in respect of strict liability offences. The decision also contains dicta that the common law defence does not apply to any of the offences of child sexual assault in the Crimes Act. The consequence of the decision is that those offences are now to be considered as absolute liability offences so far as the age of the child is concerned, such that a mistaken belief that the child is over the age of 16, even if the belief is a reasonable one to hold, provides no defence. Clearly such a mistaken belief will be a highly relevant matter on sentence.
42 In Lodhi v R [26] an indictment alleging certain terrorist offences under the Criminal Code (CTH) was quashed because the statement of each of the charges failed to allege all the ingredients of the offence. The Court considered s 11 of the Criminal Procedure Act (the CP Act ) that in effect provides that it is sufficient description of an offence if the words of the provision creating the offence are used. However, it was held, in accordance with a number of authorities concerned with the section when it appeared as s 145A in the Justices Act, that more was required and that the statement of the offence had to include “the essential factual ingredients” of the offence. In that case the offences did not plead all the particulars of the “terrorist act” relied upon and therefore the charges in the indictment were bad. The Crown was required to replead the charges in the indictment and ultimately the accused was convicted.
43 The scope of the requirement to plead “essential factual ingredients” as distinct from the requirement merely to give particulars to an accused person has never been fully explored. But it has been considered that a defect by failing to give proper particulars in the statement of charge would not be cured by a provision such as s 16 of the CP Act that in effect provides that formal defects in a charge could be ignored. The position, however, has been recently considered in the Court of Appeal.
44 In Knaggs v DPP [27] the Court of Appeal considered the validity of a Court Attendance Notice (CAN) for an offence of assault occasioning actual bodily harm. On the form in the box for the details of the offence it stated:
“Crimes Act 1900, Section 59(1) – T2 Law Part Code 243
Assault occasioning actual bodily harm
Between 8:00 am and 5:30 pm on 24/03/2005 at Potts Point.
did assault Ann TEESE thereby occasioning actual bodily harm to her.”
45 The claimant was convicted in the Local Court and again on an appeal to the District Court. He sought prerogative-type relief against both the magistrate and the judge. It was argued that the CAN was defective in that it failed to comply with s 175(3)(b) of the CP Act in that it failed to “briefly state the particulars of the alleged offence” in accordance with that section. It was argued that, as there are many ways in which an offence of assault could be committed, the notice should have indicated how it was alleged that the claimant had assaulted the complainant and how she was injured. According to the claimant the notice should have said:
“The accused threw a television set at the face of the said Ann Teese in the accused’s office, which struck her on her raised arms, and he then seized her just below both elbows and pushed her against a wall of the office, causing bruising and contusions to her arms and head.”
The claimant contended that this defect was such that the CAN was a nullity and did not commence proceedings against him.
46 Section 175 of the CP Act provides:
175 Form of court attendance notice
(1) A court attendance notice must be in writing and be in the form prescribed by the rules.
(2) The rules may prescribe one or more forms of court attendance notice.
(3) A court attendance notice must do the following:
(a) describe the offence,
(b) briefly state the particulars of the alleged offence,
(c) contain the name of the prosecutor,
(d) require the accused person to appear before the court at a specified date, time and place, unless a warrant is issued for the arrest of the person or the person is refused bail,
(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.
(4) The rules may prescribe additional matters to be included in court attendance notices.
(5) A court attendance notice may describe an offence, act or other thing in a way that is sufficient under this Act for the purposes of an indictment or an averment in an indictment.
47 Campbell JA gave the leading judgment of the Court and dismissed the application. It was assumed that the CAN was defective and his Honour considered what consequence flowed from that defect. It was considered that there were two routes to answer the question. The first was based upon construction of the CP Act. Campbell JA referred to Project Blue Sky Inc & Others v Australian Broadcasting Authority [28] a decision concerned with the consequences of failing to comply with a provision of a statute and Berowra Holdings Pty Ltd v Gordon [29]. His Honour then stated:
39 The requirement created by section 175(3)(b) is an imperfect obligation, in the sense that it does not make express provision for the consequences of failure to comply with it. Nothing in the statute states that proceedings purportedly commenced without complying with section 175(3)(b) will be invalid or a nullity or in any other way of no effect. Thus, it is only if there is a necessary implication to that effect that such a consequence will arise.
40 In a situation like the present, where it is not alleged that the CAN fails to identify all the elements of an offence, I do not find in the statute any necessary implication that any failure of the CAN to “briefly state the particulars of the alleged offence” should result in either the CAN, or a conviction in proceedings begun by the CAN, being void.
48 Campbell JA then went on to consider the operation of ss 11 and 12 of the CP Act. Those sections are relevantly as follows:
11. The description of any offence in the words of an Act … creating the offence, or in similar words, is sufficient in law.
12(1) For the purposes of this or any other Act, a summary offence, or an indictable offence that may be dealt with summarily, is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms.
(2) This section applies to a statement or description of an offence in any court attendance notice …
(3) Nothing in this section affects any other method of stating or describing an offence.
(4) Nothing in this section affects any requirement made by or under this Act in relation to the form of a court attendance notice …”
49 In relation to s 12 his Honour stated:
44 Each of section 12(1), (2) and (3) uses (through differing grammatical cognates) two different notions – that of stating the offence, and that of describing the offence. Those verbs are precisely the ones used in section 175(3)(a) and (b). As well, section 12(1) and section 175(3)(b) both contain the notion of brevity or shortness. In section 175(3)(b), “briefly” is an adverb that qualifies the requirement to “state the particulars of the alleged offence”. I recognise that section 12(1) is concerned with stating or describing the offence itself, while section 175(3)(b) creates an obligation to state “the particulars of” the offence. Even so, it seems to me that section 12(1) can cast light upon the degree of specificity with which an offence needs to be described and particularised in the CAN. That light is cast in an imprecise way, through creating an impression that the shade of meaning to be attributed to the general words of section 175(3)(a) and (b) is at the less elaborate rather than the more elaborate end of the spectrum of meanings that those general words can bear. The way one gains this sort of impression about shades of meaning falls well short of a rigorous logical process. However, alertness to nuances of meaning and shades of language is a legitimate part of the task of construing the statute as a whole, and having regard to the scope and object of the whole statute. It is one part, though in the present case is not a sufficient part, of deciding whether there is any necessary intendment in the Criminal Procedure Act that a CAN that does not comply with section 175(3)(b) is invalid.
50 His Honour considered s 16 of the CP Act that applies to a CAN as it does to an indictment. He stated:
[48]…………The wording of section 16(2) is broad, and its reference to a defect in a CAN “in substance or in form” is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void.
49 The claimant argued that section 16(2) had no application in the present circumstances, because it applies only to “any indictment” (including in that expression the extended meaning of “any CAN”) and, because section 175(3) sets out what a CAN “must” do, any CAN that fails to comply with section 175(3) was not the type of entity to which section 16(2) could apply. I do not accept the correctness of that process of reasoning. The exercise I am presently engaged in is one of deciding whether a failure to comply with one or other of the requirements of section 175(3) renders void the CAN and any resultant proceedings. The argument that the claimant advances already presumes the answer to that question by asserting that section 16(2) applies only to valid CANs, and hence not to a CAN that breaches any of the requirements of section 175(3). Rather, the task of construction that should be performed is one that involves construing the whole statute.
51 Having considered the various provision of the CP Act relevant to the task, Campbell JA came to the conclusion that it was not the intention of Parliament that a defect in the CAN in relation to the statement of particulars would result in the invalidity of the CAN to commence a prosecution.
52 His Honour next considered extrinsic aids to construction including the history of the section and what was said in the second reading speech when s 175 was amended. In effect it was stated that it was not intended that the section would alter the law that existed under the Justices Act. Campbell JA then considered the provisions of that Act including s 65, now s 16(2) of the CP Act, and s 145A, now s 12. His Honour considered the line of authority that was concerned with the provisions of particulars in an information including John L Proprietary Ltd v The Attorney-General for the State of New South Wales [30] and Stanton v Abernathy [31] and then stated:
83 It follows that, under the law that applied before the introduction of section 175 Criminal Procedure Act, a failure to supply particulars in an information did not invalidate any proceedings commenced by that information. As the apparent intention of the legislature in enacting section 175(3)(b) was not to alter the pre-existing state of affairs under the Justices Act concerning the contents of informations, this consideration of the pre-existing law leads to the same conclusion as I have arrived at from a construction of the relevant provisions of the Criminal Procedure Act considered in isolation.
53 There was no reference in the review of decisions dealing with the equivalent of s 145A and s 65, or their CP Act equivalents, to Lodhi.
54 The issue was more recently considered in Rockdale Beef P/L v Industrial Relations Commission [32]. The Court was comprised of the Chief Justice, the President and Basten JA. The case concerned charges under the Occupational Health and Safety Act. The judge at first instance in the Commission dismissed one of the charges and ruled that it would be an abuse of process to proceed with the other. The matter was referred to the Full Bench of the Commission and ultimately came before the Court of Appeal where declarations were sought, one being that one of the charges was defective in that it failed to plead an essential element of the offence.
55 The particular charge was laid under s 10 of the Act. The section provided:
“10(2) A person who has control of any plant … used by people at work must ensure that the plant … is safe and without risks to health when properly used.”
56 Section 10(3)(d) was also relevant and it provided:
10(3) The duties of a person under this section:
…
(d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.”
57 The charge was in the following terms:
[the claimant] failed to ensure that plant used by people at work over which it had control was safe and without risks to health when properly used contrary to s10(2) of the Occupational Health & Safety Act 2000.”
The alleged defect in the charge was the failure to state that the plant was being controlled “in the course of a trade, business or other undertaking”. It was argued that what was missing was an essential legal element of the offence.
58 The Chief Justice was of the view that the failure was to state a legal ingredient and not a factual one by construing s 10 because it was only if the plant was being controlled under s 10(3)(d) that an offence arose. He stated:
26 This is not a case in which the Second Opponent can rely on the traditional provision that charging an offence in the words of an act creating the offence is sufficient, now found in s11 of the Criminal Procedure Act 1986. The issue is what are the “words of [the] Act” which “create the offence”. In my opinion, those words include the relevant part of s10(3)(d).
27 Nor does s16 of the Criminal Procedure Act 1986 apply to save a charge that omits an essential legal element of an offence. (Ex parte Lovell; Re Buckley (1938) 3 SR(NSW) 153 at 173; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 at 120; Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [26].)
28 In my opinion, the position is the same as that which this Court recently considered in Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121. That case involved alleged offences under each of ss101.4(1), 101.5(1) and 101.6(1) of the Commonwealth Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth). Each of those sections referred to a person committing a “terrorist act”. The term was defined in s100.1 of the Code. The Court of Criminal Appeal held that the failure to plead aspects of that definition was defective, on the basis that the matters constituted an essential element of the offence. (See Lodhi supra at [83]-[94].)
59 The Chief Justice was also of the view that the defect prevented the Commission from having jurisdiction to hear and determine the charge.
60 Justice Basten came to a different view. The President agreed with Basten JA.
61 After referring to the relevant provisions of the Criminal Procedure Act and decided cases on the issue of whether the failure to state an ingredient of an offence was a defect curable under s 16, Basten JA stated:
122 At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between “essential legal elements” and “essential factual particulars”. Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act, were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor, was Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263):
“It was sought to get over this by appeal to s 65 of the Justices Act, 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … . The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge.”
To the same effect, Davidson J stated (p 265):
“The further contentions were submitted first, that there was merely a variance which was cured by reason of ss 65 and 115 of the Justices Act; … .
As to the first of these points, however, the section relied upon does not warrant a conviction for an offence that does not exist and the magistrate stated the effect of his order in the precise terms of the information: Ex parte Lovell … . If it had really been intended to rely upon proof of a sale, there should have been an amendment and then if desired by the defendant an adjournment to enable him to raise his defence completely to that charge.”
Street J agreed with the Chief Justice.
123 These remarks are inconsistent with the proposition that a failure properly to plead the elements of an offence necessarily rendered the information invalid. Indeed, the power of “amendment” itself may be inconsistent with such a conclusion. Accordingly, so long as a defect can be remedied by amendment, the informations are not “void” in the sense that the “defects cannot be removed by amendment or otherwise put aside”, adopting the terminology of Mahoney JA in Boral Gas at 518C-D [33], nor are the proceedings based on them a nullity.
62 In relation to the decision of the judge to dismiss the charge as defective Basten JA stated:
125 ……………The error lay in the fact that the failure to plead that the conduct in question took place in circumstances where the relevant plant was controlled in “the course of a trade, business or other undertaking” was a failure to allege an essential legal element of the offence. Nevertheless, the complaint did not involve a fundamental issue, going to the fairness of the prosecution, and should better be described as a complaint “at the level of technical validity”, adopting the language of Gleeson CJ in Stanton [34]: see [118] above. Because the charge stated that the plant was “used by people at work” and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a “drag chain conveyor” also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking.
63 After referring to the decision in Knaggs and the history of the relevant provisions examined by Campbell JA, Basten JA stated:
130 That history demonstrates that it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b).
131 The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs, Campbell JA noted that the deficiencies in a court attendance notice could be “so gross that as a matter of construction s 16(2)(a) would be read as not applying to them”: at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2).
132 More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least “the nature of” that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77].
133 Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2).
64 The situation would appear to be that s 16(2) can apply to save a charge even if there was a failure to state all the essential legal ingredients of the offence provided that an amendment of the charge would not result in a new charge being alleged or where there is no uncertainty or ambiguity in the statement of the charge, or where certain ingredients can be inferred from what is stated in the charge. But there will be situations where the charge is so defective, for example where it is not obvious what offence is being alleged, where s 16(2) cannot be relied upon.
65 Of course it has been determined that the Court of Criminal Appeal is not bound to follow the Court of Appeal and has refused to do so [35].
66 In Petroulias v R [36] a majority of the Court held that the inclusion of a person in the jury who was disqualified from being a juror tainted the whole jury with the effect that the jury had to be discharged not just the juror. As a result some question has arisen as to what action a trial judge should take to ensure that the jury panel does not contained any person who was disqualified before the jury is empanelled.
67 One suggestion, and as I understand it the course adopted with the new jury panel in the trial of Petroulias, is for the judge to go through with the panel the reasons for disqualification and ask the members of the panel whether any one falls within the categories. Annexed is a copy of a form used by the Sheriff to try to weed out disqualified persons. One of the problems may be that this information is provided at a time well before the empanelment takes place.
68 In RJS v R [37] the Court was concerned with an appeal against conviction after a majority verdict was given. In effect after the trial judge was informed that the jury could not agree, he gave the a Black direction but informed them that at 2.30pm, that is 8 hours after the jury retired, if they still could not reach a unanimous verdict, they could give a majority verdict. At 2.45pm the jury sent a note indicated that they had reached a majority verdict and that no further deliberation could affect that decision. The judge then had the jury brought into court and accepted the verdict.
69 The Crown conceded that there were two errors made by the judge. Firstly the judge did not determine what period of time was “reasonable having regard to the nature and complexity of the criminal proceedings”.[38] The second was that the judge did not examine the foreperson of the jury on oath. [39] The Chief Justice stated:
[25] In the present case, the course of events should have been to give the Black direction and then, in the absence of the jury, to take submissions from counsel as to when, in the particular circumstances of this case, a reasonable time could be said to have expired. It is inappropriate to determine that there should be a general practice about whether the trial judge, having determined what was such a reasonable time, should upon the elapse of that time, intervene in the jury’s deliberations. What should occur will vary from case to case.
[26] In many cases, the trial judge may well decide to await a further indication from the jury that it is unlikely that the jurors would reach a unanimous verdict. That is not to say that after the passage of a further lengthy period of time, a matter to be determined by the trial judge, some kind of inquiry to the jury would constitute legal error. This is a matter with respect to which the practice should develop in accordance with the experience of the implementation of the majority verdict system over time. It does not require any definitive guidance from this Court.
SUMMING UP
Longman warning
70 The content of the Longman warning in any particular case has continued to be a fertile ground for appellants, and perhaps it will continue to do so because there is more room now for trial judges to depart from a fixed formula that seemed to be required by the decision in R v BWT [40] and I am not sure that the decision in that case would be the same had it been decided in the past year.
71 In Wade v R [41] Barr J summarised the then present state of the law [42] as follows:
[19] As Simpson J observed in R v DRE [2006] NSWCCA 280 at [47], the principle dealt with in Longman v R has, since that case, had a long and rather troubled history. As her Honour observed at [59] no definitive statement of the minimum requirements of a Longman direction have yet emerged.
[20] Some things may be said with confidence. First, the charge to the jury should take into account all the relevant circumstances of the case before the jury. One circumstance will be the length of time which elapsed between the events and the accused’s appreciation of the accusation. In cases of gross delay, the charge will need to be strong. It is not irrelevant that the strong warnings called for in Longman and Crampton resulted from delays approaching and exceeding twenty years. See also R v Sheehan [2006] NSWCCA 233, another case in this Court calling for a strong direction, which was concerned with delays varying between seventeen and twenty-two years.
[21] On the other hand, the shorter the time between events and accusation, the less insistent must surely be the need for a strong warning. Spigelman CJ described DRE, a case involving a delay of up to three years for some counts but only a matter of months for others, as at best a borderline case for a Longman direction. However, I do not understand his Honour to have formed that conclusion from a reckoning of time alone — that a Longman direction was required was accepted by both sides in the appeal — and I would not wish to be understood as proposing such an approach.
[22] There may be other circumstances, too. There may be evidence going directly to the accused’s ability to remember events and otherwise account for his movements and activities. Such circumstances must be borne in mind as well.
[23] Secondly, it may be said that no particular form of words is needed when directing the jury: R v Kesisyan [2003] NSWCCA 259.
[24] Thirdly, it is not necessary, in fact undesirable, to use the words “dangerous to convict” or “unsafe to convict” when giving a Longman warning. These expressions bear similar meanings: Doggett v R (2001) 208 CLR 343 per Glesson CJ at [10]; see also the judgment of Spigelman CJ in R v Robinson [2006] NSWCCA 192 and of Sully J in R v BWT.
[25] What is necessary is that the trial judge should add the weight of judicial opinion that the relevant disadvantages do exist and why they exist.
The most recent consideration of what is necessary by way of warning is KJR v R [43].
72 Some reference should also be made to Tully v The Queen [44]. That was a case from Queensland and is somewhat complicated by a reference to what might be called a Robinson direction, derived from the decision of the High Court in Robinson v The Queen [45], concerned with the warning to be given in relation to the uncorroborated evidence of a child, and its relationship to the Longman warning. However the complaint was that the trial judge should have warned the jury that it would be dangerous to convict on the evidence of the complainant because of the forensic disadvantages to the accused by delay in complaint. No such direction was sought. The child was aged about 10 years and the delay before complaint was about 2 years.
73 One matter that was emphasised particularly by Crennan J with whom Heydon J agreed, was that a Longman warning was required where there was extensive delay because the jury might not appreciate that such a fact might forensically disadvantage an accused and in what manner [46]. Her Honour stated that the question was, “whether all of the circumstances gave rise to some forensic disadvantage to the appellant, palpable or obvious to a judge, which may not have been apparent to the jury, thus necessitating a warning so as to avoid a miscarriage of justice”.
74 Her Honour stated:
[181] The critical issue in relation to the need for a warning in accordance with Longman is whether any delay in complaint (and/or prosecution), be it 20 years or 2 or 3 years, creates a forensic disadvantage to an accused in respect of adequately testing allegations or adequately marshalling a defence, compared with the position if the complaint were of “reasonable contemporaneity”.
[182] The shorter the delay, the more difficult it is to assert that an accused has lost the ability to adequately test the evidence of the complainant or to adequately marshal his defence. In circumstances where the delay is short by comparison with the delay in Longman, and is explained by an accused’s threats, some forensic disadvantage which is palpable and obvious to an experienced judge, but which a jury may fail to appreciate, needs to be identified because a judge must warn of the relevant danger192 before explaining to the jury how the particular danger is to be avoided. Without that circumstance, a warning in accordance with Longman is not imperative because a trial judge is in no position to explain why it would be dangerous to convict on the complainant’s uncorroborated evidence.
……………………..
[186] There was no forensic disadvantage to the appellant, arising out of the explained delay, which would have been palpable or obvious to the trial judge, but would not have been apparent to the jury. The concatenation of circumstances, being the age of the complainant at the time of the offences and at trial, the sexual nature of the offences, the explained delay between the offences and report, and trial, and inconsistencies in the complainant’s evidence, could all be evaluated by the jury in the light of their own experiences. Therefore, it was not necessary for the trial judge to give a warning to avoid a miscarriage of justice.
75 One of the matters referred to by judges both in the majority and minority was the inappropriateness of considering that a warning as to the danger of convicting on the complainant’s evidence arises only in a Longman situation, that is where there is extensive delay. The Court recognised that there might be other factors that justify a warning to avoid the perceptible risk of a miscarriage of justice notwithstanding that there was no extensive delay and no forensic disadvantage [47]. The real difference between the majority and the minority was whether a warning was required in the circumstances of that case notwithstanding that no warning was sought at the trial.
76 There have been amendments in relation to the directions to be given in sexual assault trials by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 which commenced 1 January 2007. Section 294 of the CP Act was amended to include a prohibition on a judge warning that delay in complaint is relevant to the complainant’s credibility “unless there is sufficient evidence to justify such a warning”. The section was also amended to restrict the use of a Longman warning to those cases where the delay in complaint is “significant” and the judge is satisfied that the accused “has suffered a significant forensic disadvantage caused by that delay”. The provision states, “The mere passage of time is not in itself to be regarded as establishing a significant forensic disadvantage” [48]. The section also limits the giving of a warning to those cases where a party requests it. Section 294AA contains a prohibition on a judge warning a jury “of the danger of convicting on the uncorroborated evidence of any complainant”. Relevant parts of the second reading speech relating to these amendments are set out in Special Bulletin 17 issued by the Judicial Commission. There is a discussion of the possible effect of these amendments in Volume 19 No 3 of the Judicial Officer’s Bulletin.
SENTENCING
Standard non-parole period
77 Section 21A of the Crimes (Sentencing Procedure) Act seems no longer to be a major problem in sentencing appeals, although judges are still finding new ways to use the section erroneously [49]. The provisions in respect of the standard non-parole period are a source of error. In 2007 there have been so far 26 appeals concerned with the standard non-parole provisions of which error was found in 11 cases. Many of the problems are simply a failure of the sentencing judge to give satisfactory reasons for the conclusions or giving sufficient weight to the standard non-parole period. The Court has identified the difficulties in dealing with the standard non-parole provisions in respect of some particular offences. For example there is a standard non-parole period for an offence under s 112(2) aggravated break and enter and commit a serious offence of 5 years even though the maximum penalty is 20 years. There is also the difficulty that an offence under s 112(2) can involve serious offences ranging from larceny to sexual assault to armed robbery. The problem was considered in Marshall v R [50] and an example of the application of the standard non-parole period in such a case can be found in R v Harris [51] in which there are some interesting statistics revealed.
Application of Henry guideline
78 Care should be taken when applying the Henry guideline not to fall into the trap of taking into account when assessing the plea of guilty the strength of the Crown case. It should be remembered that the Henry guideline was postulated before Thomson and Houlton was decided. One of the facts taken into account in Henry was:
7. Plea of guilty, the significance of which is limited by a strong Crown case.
79 But after Thomson and Houlton the strength of the Crown case is not relevant to an evaluation of the discount for the plea. Thus an application of Henry has to take that matter into account. The problem can been in R v Witchard [52] in the following passage (my underlining):
31 In my opinion the present offences were worse than those contemplated in Henry. The respondent committed the offences in company and used actual violence towards Mr McDonald and Mr Delaney. He had a criminal history for assault and was on conditional liberty at the time of the commission of the offence. He used a weapon, namely a bottle, with which he struck Mr Delaney over the head several times. Although the respondent pleaded guilty the Crown case was strong, the respondent having been arrested shortly after the incident, following the activation of the panic button at the railway station. To my mind an appropriate discount for the plea was 15 percent. The sentencing judge described the offences as spontaneous acts of hostility with the consequence that they were committed with a limited degree of planning as was contemplated in the Henry guidelines.
80 It is also to be recalled that the Henry guideline itself takes into account a discount for the plea of about 10 per cent and there have been errors made by judges applying an additional discount for the plea after adopting the Henry guideline [53].
Concurrent or cumulative sentences
81 A number of appeals, particularly Crown appeals, reveal a fairly wide misconception in the District Court as to when it is appropriate to order concurrent sentences. There seems still to exist a view that, if offences are part of the same criminal conduct, the sentences must of necessity be served concurrently. There have been repeated attempts to indicate that this is not so and that the issue is one governed largely by the principle of totality.
82 In Cahyadi v R [54] it was stated:
[27]… there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
83 In R v Harris [55] this was stated in relation to discussion on the principle of totality:
45 Two points may be made. Firstly, the principle is expressed in terms of coming back from the result of a simple aggregation. Secondly, if each individual sentence is appropriate for the criminality of the offence to which it relates, prima facie additional criminality requires an increase in sentence. Obviously the totality principle imposes limits to that last proposition but those limits will rarely if ever go so far as to justify wholly concurrent sentences for all of a series of offences such as those here. Subject to those limits, in general, sentences significantly cumulative should be imposed for separate serious offences of which those here are all examples.
In that case it was held that the simple fact that three offences of break enter and steal were committed as part of one spree did not itself justify concurrent sentences.
Taking Commonwealth matters into account
84 A practice appears to have established, where Commonwealth matters are taken into account under s 16BA of the Crimes Act (Cth), of the relevant form referring to all the offences before the court and asking the judge to take into account the matters on the form when sentencing for all offences. This is actually in accordance with the terms of s 16BA. However in Assafiri v R [56] it was pointed out that the practice could lead to double counting of the matters being taken into account particularly where the sentences for the offences are made cumulative. The Crown accepted at the hearing that the practice should cease.
END NOTES
1. (2005) 224 CLR 300
2. [2007] HCA 30
3. [2005] NSWCCA 186
4. (2005) 159 A Crim R 154
5. [2007] NSWCCA 237
6. (2005) 65 NSWLR 740
7. [2007] HCA 13
8. Ibid at [44]-[45]
9. Ibid at [46]
10. Ibid at [48]
11. [2007] HCA 12
12. [2007] HCA 11; (2007) 234 ALR 1
13. [2006] NSWCCA 331
14. [2007] HCA 27
15. [2007] NSWCCA 216
16. (1997) 98A Crim R 359
17. [2007] HCA 12
18. Ibid at [84]
19. Ibid at [88]
20. [2006] HCA 56; (2006) 81 ALJR 391
21. (1998) 194 CLR 106
22. [2007] HCATrans 253
23. [2007] NSWCCA 155
24. Ibid at [67]
25. [2007] NSWCCA 131
26. [2006] NSWCCA 121
27. [2007] NSWCA 83
28. (1998) 194 CLR 355
29. [2006] HCA 32; (2006) 228 ALR 387
30. (1987) 163 CLR 508
31. (1990) 19 NSWLR 656
32. [2007] NSWCA 128.
33. Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501
34. Stanton v Abernathy (1990) 19 NSWLR 656
35. R v Masters (1992) 26 NSWLR 450
36. [2007] NSWCCA 134
37. [2007] NSWCCA 241
38. See Jury Act s 55F(2)(a)
39. See ibid s 55F(2)(b)
40. (2002) 54 NSWLR 241.
41. [2006] NSWCCA 295.
42. As at September 2006
43. [2007] NSWCCA 165.
44. [2006] HCA 56; (2006) 81 ALJR 391
45. (1999) 197 CLR 162
46. Per Crennan J at [178]
47. See Kirby J at [60]ff, Hayne J at [89]ff, Callinan J at [131].
48. Section 294(5).
49. See Smith v R [2007] NSWCCA 138, where a judge took into account when sentencing for an offence under s 25A that it was aggravated by there being a series of criminal acts.
50. [2007] NSWCCA 24
51. [2007] NSWCCA 130
52. [2007] NSWCCA 167
53. For example R v Wilson-Winship [2007] NSWCCA 163
54. [2007] NSWCCA 1 (2007) 168 A Crim R 41
55. [2007] NSWCCA 130
56. [2007] NSWCCA 159
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