Criminal process in Queensland [Second edition.] 9780455239668, 0455239665

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CRIMINAL PROCESS IN QUEENSLAND

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] http://legal.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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NORTH AMERICA Thomson Reuters Eagan United States of America

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CRIMINAL PROCESS IN QUEENSLAND

HEATHER DOUGLAS BA, LLB, LLM, PhD Professor of Law and ARC Future Fellow T.C. Beirne School of Law The University of Queensland

MALCOLM BARRETT BA, LLB, LLM Senior Lecturer of Law James Cook University

EMMA HIGGINS LLB (Hons), BBus (Econ) Solicitor Robertson O'Gorman Solicitors

SECOND EDITION

LAWBOOK CO. 2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Douglas, Heather ... [et al.]. Criminal Process in Queensland. ISBN 978 0 455 23975 0 (pbk.) Includes index. Criminal procedure — Criminal procedure — Queensland. Criminal justice, Administration of — Criminal justice, Administration — Queensland. Other Authors/Contributors: Douglas, Heather. 345.941 © 2017 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility. Websites: Please note that all websites referenced in this text have been checked and are current to 20 May 2017. Disclaimer: The views expressed in this book are those of the authors and do not necessarily reflect those of Legal Aid Queensland or the Crime and Misconduct Commission. Product Developer: Elizabeth Gandy Publisher: Robert Wilson Typeset in Palatino, 9 on 12 point, by Thomson Reuters (Professional) Australia Limited. Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info see http:// www.pefc.org.

For Zachary, Felix and Isabella, Motomi and Shou, and Brent

FOREWORD Margaret McMurdo AC* I am delighted to write this foreword for three reasons. The first is because this edition of Criminal Process in Queensland by Heather Douglas, a Professor in the T.C. Beirne School of Law at the University of Queensland, Malcolm Barrett, a Senior Lecturer in the College of Business, Law and Governance at James Cook University, and Emma Higgins, a solicitor at the Brisbane criminal law specialist firm, Robertson O’Gorman, is an excellent text. Its publication is timely because of the many changes to Queensland criminal procedural law in recent years. Whilst primarily written for undergraduate law students, it would be a valuable addition to the library of legal practitioners and judicial officers at all levels. I regret that such a useful and accessible publication on the criminal law was not available when I was a student. The book comprehensively traverses the Queensland criminal law process from investigation and charge to appeals, pardons and applications by victims for compensation, even where there is no conviction. It explains the onus and burden of proof and its now common reversal; police powers to execute warrants, search, engage in criminal conduct when investigating the most serious crimes, and arrest; the right to silence and increasing infringements upon it; police accountability, complaints against police and the exclusion of confessions as evidence in court; how charges are laid and proceedings commenced, the prosecutorial discretion to charge, the classification of offences as summary or indictable, and time frames for bringing charges; the committal process post Moynihan; the framing and presentation of indictments; plea bargaining and case conferencing; withdrawing guilty pleas; double jeopardy and related issues; disclosure, prosecutorial duties and the fair trial doctrine; juries and majority verdicts; nolle prosequis; abuse of process, prejudicial pre-trial publicity and change of trial venue; legal representation, including legal aid, self-represented defendants and the McKenzie friend; lawyer incompetence and commonly arising ethical considerations; sentencing and preventative detention; and appeals and further evidence on appeal. The concluding chapter deals with the benefits and weaknesses of restorative justice, a concept used primarily for youth and minor offending, Murri Courts, and the criminal justice system’s treatment of victims. The second reason for my delight is that the book encourages the law students for whom it was primarily written to think critically about the criminal law. It explains DNA evidence in terms easily understood by those who may not have studied science and emphasises that the possibility of innocent mismatches increases in Indigenous and ethnic populations. It discusses bail and how its refusal impacts upon Indigenous over-representation in the criminal justice system. It emphasises that the efficiency and affordability of the criminal justice *

President of the Queensland Court of Appeal 1998-2017.

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system depends on most matters becoming pleas of guilty so that substantial discounts are given to those who plead guilty, whilst questioning the justice of this pragmatism. It discusses judicial exercises of discretion, including in sentencing, and provides a brief but thoughtful analysis of Attorney Generals’ appeals against sentence generally and of Lacey v Attorney General of Qld in particular. In the chapter on sentencing principles it refers to the significant influence on sentencing outcomes of the media, community attitudes and politicians with their focus on the victim and the not always justified perception of the need to protect a fearful community. It is those who will study this book who will guide the future reform of the criminal law. It is essential that they not only know what the law is but think analytically about how it can be improved to keep the justice in the system. The third reason for my delight in writing this foreword is that the royalties from the sale of the book are going to Queensland’s oldest and largest pro bono legal centre, Caxton Legal Centre, of which I am patron. I congratulate the authors for their scholarship, diligence and philanthropy.

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PREFACE As teachers and practitioners of criminal law and procedure for many years, we have come together to provide a resource for students, early-career practitioners in criminal law (both prosecution and defence) and those in a variety of government and non-government organisations, who need to know about how the Queensland criminal process works. As authors, we share the view that while it is important to develop an understanding of current criminal process, it is also important to consider the ways in which the law may impact unfairly on particular groups in our communities and how the criminal justice process might be improved. For example, Aboriginal and Torres Strait Islander people have for too long been over-represented at all levels of the criminal justice system, and increased pressure to get tough on crime may only intensify such over-representation. Can Murri Courts help to address these issues? Women are disproportionately the victims of domestic violence, what is the role of the criminal law in this context? Criminal process is not static – it shifts and changes in response to changing views in society. There is increasing emphasis on the need for criminal process to be “efficient” and this emphasis has led to significant changes in criminal processes, including that magistrates courts can deal with ever more serious matters, the role of committals is limited, there are increased requirements related to disclosure and an offender levy has been introduced. The increased focus on the role of the criminal justice system in supporting victims of crime has had a profound impact on the way the criminal process has developed – for example, there is a greater emphasis on community protection at the sentencing stage. Community attitudes towards sexual assaults against children and serious organised crime have influenced extraordinary shifts in the way crime is policed and in the way sentencing takes place. In an era where criminal events are broadcast instantly via the internet and where there are increased pressures on court resources, the idea of what constitutes a fair trial has also been substantially expanded by the High Court and Courts of Appeal over the past 20 years. These issues, shifts and changes have challenged some of the central tenets of criminal law and are discussed throughout this text. This project was very much a joint enterprise, and builds on previous versions of the text. The text could not have been produced without the assistance of a number of people over many years. Our thanks to Soraya Ryan SC, Mark Howden and Emille Boulot who read versions of the chapters. Our university colleagues (both past and present), especially Professors Andreas Scholenhardt and Simon Bronitt; Drs Enshen Li, Kerstin Braun, Ruth Walker, Victoria Colvin and Luke Neal have been a constant source of support, inspiration and knowledge. Thanks also to Rebekkah Markey-Towler, Marcus Thomson, Keilin Anderson and Elissa Morcombe who assisted with research. We also thank the editor for this text, Elizabeth Gandy, who managed the project. Thanks also to our families and friends who were always there for us along the way. Generally, the law is stated as at 8 February 2017.

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TABLE OF CONTENTS Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Preface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix Abbreviations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii Table of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv Table of Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xxxiii Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 1 – Proving Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 2 – Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 3 – Police Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 4 – Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 5 – Charges and Commencing Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 6 – Committals and Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 7 – Pleas and Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 8 – Trial Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 9 – Fair Trial and Abuse of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 10 – Legal Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 11 – Considerations Underlying Sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 12 – Punishment and Penalty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 307 13 – Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 14 – Executive Pardons, Royal Prerogatives of Mercy and Appeals to the High Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 15 – Restoring Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 419

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ABBREVIATIONS ATSI ATSILS BA(Qld) CAA CCJRMA CBO CDPP CES CIN CJC CLA CMC CMCA COAG COVA COVR CRO CSA CSO DCA DMA DPA DRD DSOA EA ECHR ICCPR ICO JA(Qld) JAQ LAQA LIPS LPBRQ LPSRQ LRCWA MCCOC NCA NCSC

Aboriginal and Torres Strait Islander Aboriginal and Torres Strait Islander Legal Service Bail Act 1980 (Qld) Civil Aviation Authority Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) Community based order Commonwealth Director of Public Prosecutions Cannabis Education Session Cannabis Infringement Notice Criminal Justice Commission (Qld) Criminal Law Amendment Act 1945 (Qld) Crime and Misconduct Commission (Qld) Crime and Misconduct Act 2001 (Qld) Council of Australian Governments Criminal Offence Victims Act 1995 (Qld) Criminal Offence Victims Regulation 1995 (Qld) Conditional release order Corrective Services Act 2006 (Qld) Community service order District Court of Queensland Act 1967 (Qld) Drugs Misuse Act 1986 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Dispute Resolution Branch (of Department of Justice and Attorney-General (Qld)) Dangerous Sexual Offenders Act 2006 (Qld) Extradition Act 1988 (Cth) European Court of Human Rights International Covenant on Civil and Political Rights Intensive correction order (Qld) Justices Act 1886 (Qld) Jury Act 1995 (Qld) Legal Aid Queensland Act 1997 (Qld) Litigants in person Legal Profession (Barristers Rules) 2007 (Qld) Legal Profession (Solicitors Rules) 2007 (Qld) Law Reform Commission of Western Australia Model Criminal Code Officers Committee National Crime Authority National Companies and Securities Commission

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ODPP PCMC PIM PPRA PSA(Qld) PSO QCS QMERIT QPS RCADIC RISE ROA SAJJ SEPA SPER TPDAQ VAQ VAU VGOO VIS VOCA VSAC YJ Act

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Office of the Director of Public Prosecutions Parliamentary Crime and Misconduct Committee Public interest monitor Police Powers and Responsibilities Act 2000 (Qld) Penalties and Sentences Act 1992 (Qld) Pre-sentence order Queensland Corrective Services Queensland Magistrates Early Referral into Treatment Program Queensland Police Service Royal Commission into Aboriginal Deaths in Custody Reintegrative Shaming Experiments Program (ACT) Regulatory Offences Act 1985 (Qld) South Australia Juvenile Justice Project Service and Execution of Process Act 1992 (Cth) State Penalties Enforcement Registry Terrorism (Preventative Detention) Act 2005 (Qld) Victim Assist Queensland Victims’ Assistance Unit Vagrant, Gaming and Other Offences Act 1981 (Qld) Victim Impact Statement Victims of Crimes Assistance Act 2009 (Qld) Victorian Sentencing Advisory Committee Youth Justice Act 1992 (Qld)

TABLE OF CASES A A v New South Wales (2007) 230 CLR 500; [2007] HCA 10 . . . . . . . . . . . . . . . . . . . . . . 9.180 Abbott v Western Australia (2005) 152 A Crim R 186; [2005] WASCA 42 . . . . . . . . . . . . 1.30 Achanfuo-Yeboah v The Queen [2016] ACTCA 71 . . . . . . . . . . . . . . . . . . . 10.20, 10.60, 10.80 Ajax v Bird [2010] QCA 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Alderson v Booth [1969] 2 QB 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 Allan v Parkes [1999] QDC 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.270 Andrews v Rockley [2008] QDC 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.180 Antoun v The Queen (2006) 159 A Crim R 513; [2006] HCA 2 . . . . . . . . . 6.30, 8.100, 8.190 Arndt v Rowe [2001] QDC 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120, 2.470 Assistant Commissioner Micheal James Condon v Pompano (2013) 252 CLR 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Attorney General (Qld) v Beattie [2007] QCA 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Attorney-General (Cth) v Breckler (1999) 197 CLR 83 . . . . . . . . . . . . . . . . . . . . . . . . . . 10.140 Attorney-General (NSW) v Milat (1995) 80 A Crim R 530 . . . . . . . . . . . . . . . . . . . . . . . . 10.90 Attorney-General (Qld) v Bridson [2007] QSC 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.300 Attorney-General (Qld) v Burke [2008] QSC 313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.290 Attorney-General (Qld) v Fardon [2013] QCA 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.290 Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 . . . . . 11.190, 12.280 Attorney-General (Qld) v Friend [2009] QSC 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Attorney-General (Qld) v Henry [2014] QSC 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Attorney-General (Qld) v HTR [2007] QSC 19 . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280, 12.300 Attorney-General (Qld) v Morris & Anor [2015] QCA 112 . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Attorney-General (Qld) v Penningson [2016] QSC 146 . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Attorney-General (Qld) v Watego (2003) 142 A Crim R 537 . . . . . . . . . . . . . . . . . . . . . 12.280 Attorney-General (Qld) v Watt [2012] QSC 291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Austin v The Queen (1997) 87 A Crim R 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.140 B Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 . . . . 13.130, 13.150 Bailey v White [1994] QDC 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 . . . . . . . . . . . . . . . . . . . 13.140, 13.150 Bales v Parmeter (1935) SR NSW 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.470 Barac v Director of Public Prosecutions [2009] 1 Qd R 104 . . . . . . . . . . . . . . . . . . . . . . . 9.30 Barton v The Queen (1980) 147 CLR 75 . . . . . . . . . . . . . . . . . 6.20, 6.60, 6.180, 7.100, 8.210, 9.10, 9.50, 9.80 Baytieh v Queensland [2001] 1 Qd R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.70 Beckett v State of New South Wales (2013) 248 CLR 432 . . . . . . . . . . . . . . . . . . . . . . . 9.180 Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50 Berg v Director of Public Prosecutions (Qld) [2015] QCA 196 . . . . . . . . . . . . . . . . . . . . 10.60 Berg v Director of Public Prosecutions [2009] QCA 213 . . . . . . . . . . . . . . . . . . . . . . . . . . 4.50 Black v The Queen (1993) 179 CLR 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.150 BN v Victim Assist Queensland, Department of Justice and Attorney -General [2013] QCAT 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.140 Borsa v R [2003] WASCA 254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 Braysich v R (2011) 243 CLR 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50, 1.60 Brennan v The King (1936) 55 CLR 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30

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Briginshaw v Briginshaw (1938) 60 CLR 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 Brown v Owen [2005] QDC 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.40 Brown v QPS [2011] QDC 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.40 Brownlee v The Queen (2001) 207 CLR 278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.180 Buckley v The Queen (2006) 224 ALR 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260 Bugmy v The Queen (1990) 169 CLR 525 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.80 Bugmy v The Queen [2013] HCA 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.240 Bulsey v State of Queensland [2015] QCA 18 . . . . . . . . . . . . . . . . . . 2.30, 2.40, 2.120, 2.140, 2.170, 2.470 Bunning v Cross (1978) 141 CLR 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.370, 3.70 Burns v The Queen (1994) 71 A Crim R 450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.260 Burrell v The Queen [2009] NSWCCA 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.160 C Cameron v The Queen (2002) 209 CLR 339 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.90 Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279 . . . . . . . . . . . . . . . . . . . . 9.120 Carr v The Queen (1988) 165 CLR 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 Castro v Murray (1875) LR 10 Ex 213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Chamberlain v The Queen (1982) 6 A Crim R 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 Chamberlain v The Queen (No 1) (1983) 153 CLR 514 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 Charlie v Department of Justice and Attorney General (Victim Assist Queensland) [2011] QCAT 443 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.170 Chau v DPP (Cth) (1995) 37 NSWLR 639 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Cheatle v The Queen (1993) 177 CLR 541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.180 Cheng v The Queen (2000) 203 CLR 248 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.180 Chester v The Queen (1988) 165 CLR 611 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260 Cheung v The Queen (2001) 209 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60, 11.90 Chidiac v The Queen (1991) 171 CLR 432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 Clancy v Superintendent of Traffic [2008] QDC 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.40 Coco v R (1994) 179 CLR 427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.40 Coffey v Queensland [2002] QDC 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.470 Coffey v Queensland [2012] QSC 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.460 Coleman v Power (2004) 220 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.180 Collier v Hicks (1831) 2B & Ad 663 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.130 Collins v Western Australia [2007] WASCA 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.190 Commissioner of Police v Barchard [2004] QDC 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.300 Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 . . . . . . . . . . . . 10.140 Connelly v DPP [1964] AC 1254 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Coulter v Ryan [2006] QCA 567 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 Cox v Robinson [2001] 2 Qd R 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.410, 2.480 Cox v Travis [2001] 2Qd R 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.410 Craig v South Australia (1995) 82 A Crim R 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70 Crampton v The Queen (2000) 206 CLR 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60, 14.110 CTM v R (2008) 236 CLR 440 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50, 1.60 Cummings v The Queen (1994) 12 SR (WA) 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.90 D Da Costa v The Queen (1968) 118 CLR 186 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 Dafydd v The Commissioner of Police [2013] QDC 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Damjanovic v Maley (2002) 55 NSWLR 149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.130 Darkan v The Queen (2006) 227 CLR 373 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Davern v Messel (1984) 155 CLR 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.110 Davies v The King (1937) 57 CLR 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 xvi

Table of Cases

Davis v Gell (1924) 35 CLR 275 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.200 Dawson v The Queen (1961) 106 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 De Jesus v The Queen (1986) 68 ALR 1; 22 A Crim R 375 . . . . . . . . . . . . . . . . . . 6.160, 8.120 De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31 . . . . . . . . 9.20 Dellit v Small [1978] Qd R 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 DHG v State of Queensland [2015] 2 Qd R 2011 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 Dietrich v The Queen (1992) 177 CLR 292 . . . . . . . . . . . . . . . . 7.160, 9.10, 9.20, 10.20, 10.30, 10.40, 10.70, 10.80, 10.100 Dimozantos v The Queen (No 2) (1993) 178 CLR 122 . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.120 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 . . . . . . . . . 12.190, 13.200, 14.80 Diplock v Bennett [2009] QDC 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 Director of Public Prosecutions (Qld) v Bakir [2006] QCA 562 . . . . . . . . . . . . . . 4.50, 4.60 Dobbs v Ward [2003] 1 Qd R 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.70 Doherty v Victim Assist Queensland [2012] QCATA 137 . . . . . . . . . . . . . . . . . . . . . . . . . 15.190 Doney v The Queen (1990) 171 CLR 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.30, 8.100, 8.190, 8.210 Donnachy v Riegert (2004) 144 A Crim R 260; [2004] WASCA 48 . . . . . . . . . . . . . . . . 10.60 Donovan v The Queen [1990] WAR 112; Re Walton [1992] 2 Qd R 551 . . . . . . . . . . . . . . 1.90 Dooley v Polzin (1991) 57 A Crim R 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.140 D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 DPP (Cth) v Bayly (1994) 75 A Crim R 549 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20 DPP (Nauru) v Fowler (1984) 154 CLR 627 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.160 DPP (SA) v B (1998) 194 CLR 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.210 DPP (Tas) v Farmer (2005) 157 A Crim R 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 DPP v Carr (2002) 127 A Crim R 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.180 DPP v Wentworth [1996] QCA 333 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.70 Driscoll v The Queen (1977) 137 CLR 517 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.300, 2.310 Duffy v The Queen (1996) 85 A Crim R 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.230 Duke v The Queen (1989) 180 CLR 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.70 Dupas v The Queen (2010) 241 CLR 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.80, 9.140 Dyer v Watson [2004] 1 AC 379, [2002] UKPC D1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 Dyers v The Queen (2002) 210 CLR 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.100, 13.160 E Easterday v The Queen (2003) 143 A Crim R 154; [2003] WASCA 69 . . . . . . . . . . . . . . . 8.30 Eastman v DPP (ACT) (2003) 214 CLR 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20 Ebatarinja v Deland (1998) 194 CLR 444 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.40, 9.20 Edwards Ex parte [1989] 1 Qd R 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.50 Edwards v Queensland Police Service [2014] QDC 38 . . . . . . . . . . . . . . . . . . . . . . . . . . 12.330 Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.70 Emerson v Sparrow (1871) LR 6 Ex 329 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.160 Ettridge v Director of Public Prosecutions (Qld) (2003) 78 ALJR 157; [2003] HCA 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 Everett v The Queen (1994) 181 CLR 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.220 F Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50 . . . . . . . . 11.190, 12.280, 12.290 Fawkes v Schadwell; Ex parte Schadwell [1966] Qd R 20 . . . . . . . . . . . . . . . . . . . . . . . 8.100 Festa v The Queen (2001) 208 CLR 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.110 Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 . . . . . . . . . . . . . . . . . . . . . . . . 13.130 Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 . . . . . . . . . . . . . . . . . 5.40, 13.70 Fitzgerald v The Queen [2014] VSCA 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.100 Fordham v Legal Practitioners’ Complaints Committee [1997] SCWA (FC) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.150 xvii

Criminal Process in Queensland

Fox v Percy (2003) 214 CLR 118 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.110 Frugtniet v Victoria (1997) 148 ALR 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 G GAF v QPS [2008] QCA 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.100 Gallagher v The Queen (1986) 160 CLR 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.120, 14.90 Gant v Kucks [2013] QSC 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.30 GAS and SJK v The Queen (2004) 217 CLR 198 . . . . . . . . . . . . . . . . . 7.30, 7.100, 7.110, 11.40 Gassy v The Queen (2008) 236 CLR 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.40 George v Rockett (1990) 170 CLR 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.50 Ghani v Jones [1970] 1 QB 693 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.140 Giannarelli v Wraith (1988) 165 CLR 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.150 Gibbs v Rea [1998] AC 786 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.180 Gill v Director of Public Prosecutions (1992) 64 A Crim R 82 . . . . . . . . . . . . . . . . . . . . . 9.100 Gilson v The Queen (1991) 172 CLR 353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 Gipp v The Queen (1998) 194 CLR 106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.210, 13.50 Goncalves v The Queen (1997) 99 A Crim R 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Graham v R [2016] HCA 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Green v The Queen (1971) 126 CLR 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Green v The Queen (1997) 191 CLR 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.120 Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 . . . . . . . . . . . . . . . . . . . . . . . . . 11.130 Green v United States 355 US 185 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.120 Grey v The Queen (2001) 184 ALR 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.20, 8.30 Grollo v Palmer (1995) 184 CLR 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Groom v Crocker [1939] 1 KB 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.170 Gulyas v Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263 . . . . . . . . . 11.210 H Hall v Bobbermen [2009] QDC 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Halliday v Nevill (1984) 155 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.40 Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241; [2003] QCA 409; [2003] QSC 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 Harris v The Queen (2004) 150 A Crim R 509 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50 Harris-Davies v Central North Queensland Parole Board [2008] QCA 245 . . . . . . . . 12.220 Harrison v Wilkins [1996] QCA 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Hatzinikolaou v Snape (1989) 41 A Crim R 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 Hawkins v R (1994) 179 CLR 500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.90 He Kaw Teh v The Queen (1985) 157 CLR 523 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 Heke, Re an application for bail [2015] QSC 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.20 Henry v Thompson [1989] 2Qd R 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 Herbert v The Queen (2003) 27 WAR 330; [2003] WASCA 61 . . . . . . . . . . . . . . . . . . . . 11.170 Herron v McGregor (1986) 28 A Crim R 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.150 Higgins v Comans (2005) 153 A Crim R 565; [2005] QCA 234 . . . . . . . . . . . . . . . . . . . . . 10.60 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 . . . . . . . . . . . . . . . . . . . . . . . . . 9.110, 9.120 Hines v Commissioner of Police [2016] QCA 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 Hoare v The Queen (1989) 167 CLR 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.150 Holt v Department of Justice and Attorney-General (Victim Assist Queensland) [2014] QCAT 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.200 Hortin v Rowbottom (1993) 68 A Crim R 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.180 House v The Queen (1936) 55 CLR 499 . . . . . . . . . . . . . . . . . . . . . . . . . 13.200, 13.210, 13.220, 13.230, 14.120 Hulley v Hill (1993) 69 A Crim 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.250

xviii

Table of Cases

I Ibbs v The Queen (1987) 163 CLR 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.120 Ibrahim v The King [1914] AC 599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 Island Way Pty Ltd v Redmound [1990] 1 Qd R 43 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 J Jago v District Court (NSW) (1989) 168 CLR 23 . . . . . . . . . 5.40, 6.180, 7.150, 7.160, 8.210, 9.10, 9.20, 9.30, 9.50, 9.80, 9.100, 14.110 Jiminez v The Queen (1992) 173 CLR 572 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.110 Johns v The Queen (1995) 13 WAR 380 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 Jones v The Queen (1997) 191 CLR 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 K Kable v Director of Public Prosecutions (NSW) (1995) 36 NSWLR 374 . . . . . . . . . . . . 11.70 Kaporonovski v The Queen (1973) 133 CLR 209 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 Kelly v The Queen (2004) 218 CLR 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.310 Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37 . . . . . . . . . . . . . . . . . . . . . . . 13.30 Khalifeh v Job (1996) 85 A Crim R 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 King v Lankford [2000] WASCA 214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 King v The Queen (1986) 161 CLR 423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.170 King v The Queen (2003) 215 CLR 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 Kingswell v The Queen (1985) 159 CLR 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.180 Knight v The Queen (1992) 175 CLR 495 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.40 Kruger v Commonwealth [1996] HCATrans 68 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.140 Kuru v State of New South Wales (2008) 236 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . 2.40, 2.50 L Lacey v Attorney-General of Queensland (2011)242 CLR 573; [2011] HCA 10 . . . . . . 13.210, 13.240 Lacey v Director of Public Prosecutions (Qld) [2007] QCA 413 . . . . . . . . . . . . . . 4.50, 4.60 Lacey v Attorney-General of Queensland (Lacey) (2011) 242 CLR 573 . . . . . 13.210, 13.240 LAI v Director of Public Prosecutions (Qld) & Anor [2016] QCA 287 . . . . . . . . . . . . . . . 1.90 Latoudis v Casey (1990) 170 CLR 534 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 Lauritsen v The Queen (2000) 22 WAR 442 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.160 Lavelle v The Queen (1994) 72 A Crim R 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Lawless v The Queen (1979) 142 CLR 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.20 LCM v The State of Western Australia [2016] WASCA 164 . . . . . . . . . . . . . . . . . . . . . . . 11.210 Leary v The Queen [1975] WAR 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.80 Lee Chun-Chuen v The Queen [1963] AC 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 Lee v The Queen (2014) 308 ALR 252 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.120 Leeth v Commonwealth (1992) 174 CLR 455 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.70 Legal Services Commissioner v Anderson [2009] LPT 001 . . . . . . . . . . . . . . . . . . . . . . 10.100 Legal Services Commissioner v Griffiths [2008] LPT 17 . . . . . . . . . . . . . . . . . . . . . . . . . 10.150 Legal Services Commissioner v Winning [2008] LPT 13 . . . . . . . . . . . . . . . . . . . . . . . . . 10.150 Legal Services Commissioner v Winning (No 2) [2008] LPT 014 . . . . . . . . . . . . . . . . . 10.100 Leutich v Walton [1960] WAR 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.470 Levy v Victoria (1997) 189 CLR 579; [1997] HCA 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.140 Libke v The Queen (2007) 235 ALR 517; (2007) 230 CLR 559; [2007] HCA 30 . . . . . . 13.110 Likiardopoulos v R (2012) 247 CLR 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16 . . . . . . . . . . . . . . . . . . . . . . . . 13.130

xix

Criminal Process in Queensland

Longman v The Queen (1989) 168 CLR 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 Loveday v Ayre [1955] Qd R 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Lowndes v The Queen (1999) 195 CLR 665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260 M M v The Queen (M) (1994) 181 CLR 487; [1994] HCA 63 . . . . . . . . . . . . . . . . . . . 13.50, 13.110 Macartney v The Queen (2006) 31 WAR 416; [2006] WASCA 29 . . . . . . . . . . 10.100, 10.130 MacKenzie v The Queen (1996) 190 CLR 348 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 Mackenzie v The Queen (2004) 150 A Crim R 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 MacPherson v The Queen (1981) 147 CLR 512 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 Maddeford v The Scheme Manager – Department of Justice and Attorney-General (Victim Assist Queensland) [2014] QCAT 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15.190 Maguire v Beaton (2006) 162 A Crim R 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.400 Maher Ex parte [1986] 1 Qd R 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 Mallard v The Queen (2005) 224 CLR 125 . . . . . . . . . . . . . . . . . . . . . . 8.20, 8.30, 14.30, 14.60 Malvaso v The Queen (1989) 168 CLR 227 . . . . . . . . . . . . . . . . . . . . . . . . 7.100, 11.230, 13.190 Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 . . 11.80, 11.90, 11.130, 11.150, 11.210 Maxwell v The Queen (1995) 184 CLR 401 . . . . . . . . . . . . . . . . . 5.40, 7.30, 7.40, 7.50, 7.60, 7.70, 7.80, 7.100, 8.210, 11.50 May v O’Sullivan (1955) 92 CLR 654 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.100, 8.190 McCarthy v Xiong (1993) 2 Tas R 280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 McCasker v Corrective Services Commission (Qld) [1998] 2 Qd R 261 . . . . . . . . . . . 12.220 McCreed v The Queen (2003) 27 WAR 554; [2003] WASCA 275 . . . . . . . . . . . . . . . . . . . 9.20 McDermott v The King (1948) 76 CLR 501 . . . . . . . . . . . . . . . . . . . . . . 2.260, 3.40, 3.50, 3.60 McFarlane v Sharp [1972] NZLR 838 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 McGarry v The Queen (2001) 207 CLR 121 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260, 12.270 McInnis v The Queen (1979) 143 CLR 575 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.20, 10.30 McKenzie v Coffey [2002] QDC 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.460 McKenzie v McKenzie [1971] 3 WLR 472 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.130 McKinney v The Queen (1991) 171 CLR 468 . . . . . . . . . . . . . . . . . . . . . . . . . . 2.260, 2.310, 9.10 Meissner v The Queen (1995) 184 CLR 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50, 7.70 Melbourne v The Queen (1999) 198 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 MFA v The Queen (MFA) (2002) 213 CLR 606; [2002] HCA 53 . . . . . . . . . . . . . . . . . . . . 13.50 Michaels v The Queen (1995) 184 CLR 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120, 2.170 Mickelberg v The Queen (1988) 167 CLR 259 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50, 14.90 Mickelberg v the Queen (no 3) (1992) 8 WAR 236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130 Mill v The Queen (1988) 166 CLR 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.10, 11.110 Moevao v Department of Labour [1980] 1 NZLR 464 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Mokbel v Director of Public Prosecutions (Vic) (2006) 14 VR 405; [2006] VSC 487 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.70 Mokbel v DPP (Vic) and DPP [2007] VSCA 195 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.70 Momcilovic v R (2011) 245 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.40 Morris v The Queen (1987) 163 CLR 454 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.80, 14.120 Moti v The Queen (2011) 245 CLR 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30, 9.40 Mraz v The Queen (1955) 93 CLR 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.120 Mraz v The Queen (No 2) (1956) 96 CLR 62 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.160 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 . . . . . . . . . . . . . . . . . . . . . . . 11.210 Mullen v The King [1938] St R Qd 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30, 1.40, 1.50 Munda v Western Australia [2013] HCA 38 . . . . . . . . . . . . . . . . . . . . . . . 11.180, 11.240, 11.270 Munro v The Queen [2006] NSWCCA 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 Murphy v The Queen (1989) 167 CLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140, 9.120 Murray v R (2002) 211 CLR 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 Muscat v Douglas (2006) 233 ALR 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.100

xx

Table of Cases

N Neal v The Queen (1982) 149 CLR 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.190 New South Wales v Canellis (1994) 181 CLR 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 . . . . . . . . . . . . 2.50, 2.150 New South Wales v Delly (2007) 70 NSWLR 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 . . . . . . . . . . . . . . . . . . . . . . . . . 9.70 Nicholls v The Queen; Coates v The Queen (2005) 219 CLR 196 . . . . . . . . . . . . 2.320, 13.70 Nieto v Mill (1991) 54 A Crim R 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.130 Norden v The Queen [2009] QCA 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; [2004] HCA 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Nudd v The Queen (2006) 225 ALR 161; 80 ALJR 614 . . . . . . . 10.100, 10.170, 10.190, 14.90 O O’Grady v The Queen (2014) 88 ALJR 960; [2014] HCA 38 . . . . . . . . . . . . . . . . . . . . . . . 13.30 O’Neill No 2 v Her Majesty’s Advocate [2013] UKSC 36 . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 O’Halloran v O’Byrne [1974] WAR 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.150 Ostrowski v Palmer (2004) 218 CLR 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.40 Owen v Edwards [2006] QCA 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 P Parker v The Queen (1964) 111 CLR 665 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 Parker v The Queen (1997) 186 CLR 494 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.180, 14.110 Patel v R [2012] HCA 29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.130 Pearce v The Queen (1998) 194 CLR 610 . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.190, 7.250, 11.70 Pemble v The Queen (1971) 124 CLR 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 Pepper v Attorney General for the State of Queensland [2008] 2 Qd R 353; [2008] QCA 207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20 Petty and Maiden v The Queen (1991) 173 CLR 95 . . . . . . . . . . . . . . . . . . . . . . . . . 2.260, 9.10 Pitt v Queensland Police Service [2012] QDC 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.40 PNJ v The Queen (2009) 252 ALR 612; [2009] HCA 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 Police v Drury [2011] QMC 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.40 Police v Thompson [1969] NZLR 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120 Pollock v R (2010) 242 CLR 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Porter v The Commissioner of Police [2012] QDC 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.330 Postiglione v The Queen (1997) 189 CLR 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110, 11.130 Purcell v Venardos [1996] 1 Qd R 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.30 Q Queensland Bacon Pty Ltd v Rees (1976) 115 CLR 266 . . . . . . . . . . . . . . . . . . . . . 2.30, 2.270 R R v AAM; ex parte A-G (Qld) [2010] QCA 305 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20, 14.40 R v Allison (2003) 138 A Crim R 378; [2003] QCA 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.60 R v Alt [2013] QCA 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.160 R v Anderson (1991) 53 A Crim R 421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.160 R v Andrews [1987] 1 Qd R 21; (1986) 22 A Crim R 201 . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.120 R v Andrews [2012] QCA 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Anunga (1976) 11 ALR 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.350 R v Apostilides (1984) 154 CLR 563 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Arnold; Ex parte A-G (Qld) [2002] QCA 357 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.90 xxi

Criminal Process in Queensland

R v Atkins (Dean) [2010] 1 Cr App R 8; [2009] EWCA Crim 1876 . . . . . . . . . . . . . . . . . . 2.390 R v Aubrey (1995) 79 A Crim R 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.350 R v Azar (1991) 56 A Crim R 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.340 R v Baden-Clay (2016) 90 ALJR 1013; [2016] HCA 35 . . . . . . . . . . . . . . . . . . . . . . . 13.50, 13.60 R v Bagust [2003] QCA 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.180 R v Baker [2011] QCA 104 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 R v Ball (1981) 3 Cr App R (S) 283 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.190 R v Barbaro [101] QSC 346 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.60 R v Barlow (1997) 188 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30 R v Batchelor [2003] QCA 246 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.330 R v Batiste (1994) 77 A Crim R 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70 R v BAX [2005] QCA 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v BBS [2009] QCA 205 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30 R v BBU [2009] QCA 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30, 11.220 R v BCX [2015] QCA 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.310 R v Beere [1965] Qd R 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Beetham [2014] QCA 131 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 R v Belbruno, (2000) 117 A Crim R 150; [2000] VSCA 201 . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Bell [2010] EWCA Crim 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v Benbrika and Ors (Ruling No 3) [2011] VSC 342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.80 R v Benz (1989) 168 CLR 110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.80, 14.100 R v Bernier (1998) 102 A Crim R 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.260 R v Birks (1990) 19 NSWLR 677 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 R v Boag (1994) 73 A Crim R 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v Bojovic [2000] 2 Qd R 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v Booth (1999) 105 A Crim R 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 R v Borsellino [1977] Qd R 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.300 R v Bossley [2012] QSC 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.340, 2.60 R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807 . . . . . . . . . . . . . . . . . . . . . 10.130 R v Brauer [1937] QWN 18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Breeze [1999] QCA 303 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.300 R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487; (1997) 92 A Crim R 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40, 12.50 R v Broad and Prior [2010] QCA 53 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50, 11.60 R v Bropho (2004) 36 SR WA 328 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v Brown (1989) 44 A Crim R385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.30 R v Brown (1995) 1 Cr App R 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Brown [1994] 2 Qd R 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.50 R v Brown [1998] AC 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.20 R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156 . . . . . . . . . . . . . . . . . . . . 13.210 R v Buchanan [2016] QCA 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 R v Burden; Ex parte Attorney-General (Qld) (2005) 153 A Crim R 104 . . . . . . . . . . . 11.180 R v Burnett [1944] VLR 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.60 R v Butler & Lawton & Marshall [2011] QCA 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60 R v Butler [2001] QCA 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v Butler [2009] QCA 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.70 R v Buttigieg (1993) 69 A Crim R 21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 R v C [1999] QCA 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Cain (No 1) (2001) 121 A Crim R 365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.50 R v Cant [2016] QCA 52 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50 R v Carkeet [2009] 1 Qd R 190 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v Carlton [2009] QCA 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.320 R v Carr [1972] 1 NSWLR 608 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.390 R v Carr-Briant [1943] 1 KB 607 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 R v Carroll (1985) 19 A Crim R 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.180, 13.170 R v Carroll (2000) 115 A Crim R 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.180 R v Carroll (2002) 213 CLR 635 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30, 7.190, 7.180

xxii

Table of Cases

R v Carroll [2001] QCA 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.180 R v CBK [2014] QCA 35 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Chan [2001] 2 Qd R 662 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.130 R v Chard; Ex parte Attorney-General (Qld) [2004] QCA 372 . . . . . . . . . . . . . . . . . . . 12.200 R v Chekeri (2001) 122 A Crim R 422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.110 R v Cheshire (1995) 76 A Crim R 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.120 R v Cho [2001] QCA 196 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.340 R v Chong; Ex parte Attorney-General (Queensland) [2008] QCA 22 . . . . . . . . . . . . 11.260 R v Christensen (2005) 156 A Crim R 397 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50, 2.70 R v Clare [1994] 2 Qd R 619 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 R v Clark [2000] QCA 145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.40 R v Clarke (1975) 61 Cr App R 320 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.140 R v Clarke [2016] QCA 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150 R v Clough [2008] QSC 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130 R v Cockrell (2005) 2QdR 448; [2005] QCA 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.170 R v Cole (1994) 77 A Crim R 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 R v Colless [2010] QCA 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.220 R v Collins [1987] 1 SCR 265 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.70 R v Collins [2000] 1 Qd R 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v Conde [2015] 1 Qd R 562; QCA 63 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.150 R v Condren (1987) 28 A Crim R 261 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50 R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574; (1990) 49 ACrim R 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.90, 13.180 R v Copsey [2008] EWCA Crim 2043 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 R v Cornwell [2009] QCA 294 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Cosh [2007] QCA 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.330 R v Coss [2015] QCA 33 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20 R v Coss [2016] QCA 44 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.150 R v Cowan [2016] 1 Qd R 433; [2015] QCA 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 R v Cox [2010] QCA 262 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Crofts [1999] 1 Qd R 386 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110, 12.220 R v Cromwell [2008] QCA 191 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v Crossley (1999) 106 A Crim R 80 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.130 R v Crothers [2010] QCA 334 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.40, 10.70 R v Cunningham [2014] 2 Qd R 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.50 R v D [2000] 2 Qd R 659; [2000] QCA 203 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.310, 11.120 R v D [2003] QCA 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.270 R v Daetz [2003] NSWCCA 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.280 R v DAL [2005] QCA 281 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 R v Dales (1995) 80 A Crim R 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.40 R v Daley; Ex parte A-G (Qld) [2005] QCA 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20, 14.30 R v Daniel (1997) 94 A Crim R 96 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.240 R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140 R v D’Arcy (2003) 140 A Crim R 303; [2003] QCA 124 . . . . . . . . . . . . . . . . . . . . . . 8.140, 9.130 R v D’Arcy [2000] QSC 425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140, 11.160 R v D’Arcy [2005] QCA 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140 R v DAU; Ex parte A-G (Qld) [2009] QCA 244 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Davidson (1996) 92 A Crim R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.20 R v Day [2008] QSC 358 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50, 2.70 R v De Simoni [1981] 147 CLR 383; HCA 31 . . . . . . . . . . . . . . . . . . . . . . . . . 11.40, 11.100, 11.210 R v de Voss [1995] QCA 518 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.80 R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8 . . . . . . . . . . . . . . . . . . . . . . 7.250 R v Donald (1983) 11 A Crim R 47 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50 R v Doyle [1980] Qd R 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.200 R v DPP; Ex parte Kebilene [2000] 2 AC 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.80 R v Dullroy; Ex parte Attorney-General of Queensland [2005] QCA 219 . . . . . 11.90, 11.170

xxiii

Criminal Process in Queensland

R v Dunrobin [2008] QCA 116 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.80 R v East (2008) 190 A Crim R 225; [2008] QCA 144 . . . . . . . . . . . . . . . . . . . . . . . . 10.70, 10.80 R v Edie [2006] QCA 111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.220 R v Edwards (1983) 77 Cr App R 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.180 R v Edwards (2009) 255 ALR 399; [2009] HCA 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 R v El Zarw (1991) 58 A Crim R 200 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.160, 7.170 R v Entsch [1979] Qd R 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Erasmus [2006] QCA 245 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Esposito 1998) 105 A Crim R 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 R v Essenburg [2002] QCA 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 R v Evans; R v Pearce [2011] QCA 135 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50, 11.220 R v Everleigh [2003] 1 Qd R 398 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v F [2000] 2Qd R 331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 R v F; ex parte Attorney-General [1998] QCA 97 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 R v Falconer (1990) 171 CLR 30 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50, 1.90 R v Ferguson [2008] QDC 136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130 R v Ferguson [2009] QDC 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130 R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130, 9.110, 9.150 R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35 . . . . . . . . . . . . . . . . 8.200, 8.210 R v Fernando (1997) 95 A Crim R 533 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.120, 11.160 R v Finch; Ex parte Attorney-General (Qld) [2006] QCA 60 . . . . . . . . . . . . . . . . . . . . . 11.310 R v Fingleton (2003) 140 A Crim R 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 R v Fletcher [1998] 2Qd R 437 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v Flynn [2008] 2 Cr App R 20; [2008] EWCA Crim 970 . . . . . . . . . . . . . . . . . . . . . . . . . 2.390 R v FN [2005] QCA 113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.230 R v Fraser [2004] 2 Qd R 544; [2004] QCA 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.70 R v Frawley (1993) 69 A Crim R 208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70 R v Fuentes [2012] QSC 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.60 R v Fuller (1997) 92 A Crim R 151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 R v Fuller (1997) 95 A Crim R 554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.80 R v G (G) & B (S) [2009] EWCA Crim 1207 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.220 R v Gallagher; Ex parte Attorney-General [1999] 1 Qd R 200; (1997) 98 A Crim R 513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v GAM [2011] QCA 288 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.90 R v Garland (2014) 242 A Crim R 493; [2014] QCA 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.270 R v Gaudry [2005] QCA 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.330 R v Georgiadis [1984] VR 1030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v Gilbert (2008) 186 A Crim R 153; [2008] QCA 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.230 R v Glennon (1992) 173 CLR 592 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.10, 9.110, 9.120, 9.150, 14.80, 14.100 R v Goldburg (NSWCCA, No 60607 of 1992 unreported) . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Goodger [2009] QCA 377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Gordon; Ex parte Attorney-General (Qld) [1975] Qd R 301 . . . . . . . . . . . . . . . . . . . 7.250 R v Green (1983) 33 SASR 211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v Green [1997] 1 Qd R 584 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 R v Greig [2000] QCA 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.160 R v Griffiths [2013] QCA 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Grosser [2002] SASC 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.90 R v Gudgeon (1995) 83 A Crim R 228 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70, 10.80, 10.90 R v H (1993) 66 A Crim R 505 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.190 R v H (1995) 83 A Crim R 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Hall [1980] Qd R 304 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.100 R v Hamade (2011) 220 A Crim R 151; [2011] QCA 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.80 R v Hammond &Loosemore [2016] QSC 98 . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.60, 2.70 R v Hanbury (1979) 1 Cr App R (S) 243 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.190

xxiv

Table of Cases

R v Handlen [2012] QSC 317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v Hannigan [2009] QCA 40 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.280 R v Hanson; R v Ettridge [2003] QCA 488 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.170 R v Hardy [2010] QCA 28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.120, 2.140 R v Hargraves, Hargraves and Stoten (2008) 73 ATR 775; [2008] QSC 267 . . . . . . . . . 8.30 R v Hatten [2007] QCA 46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.270 R v HAU [2009] QCA 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Hayes [2008] QCA 371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Hennessy [2010] QCA 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20 R v Hesketh; Ex parte Attorney-General [2004] QCA 116 . . . . . . . . . . . . . . . . . . . . . . . 12.180 R v Hill ; R v Young [2014] QCA 107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.60 R v Hill; Ex parte Attorney-General [2003] QCA 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.120 R v Holcroft [1997] 2 Qd R 392;[1996] QCA 478 . . . . . . . . . . . . . . . . . . . . . . . . . 12.190, 12.200 R v Holton [1998] 1 Qd R 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.220 R v Holzinger [2016] QCA 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.240 R v Hood [2005] 2 Qd R 54 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150, 12.200 R v Hopper; Ex parte Attorney-General (Qld) (2014) 241 A Crim R 228; [2014] QCA 108 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.190, 13.210 R v Houghton (2002) 129 A Crim R 313; [2002] QCA 159 . . . . . . . . . . . . . . . . . . . . . . . . . . 7.90 R v Hughes [1983] 1 Qd R 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.50 R v Hughes [2000] QCA 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150 R v Hurst [2006] QCA 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Hurst [2014] QCA 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.130 R v Hytch (2000) 114 A Crim R 573 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.170 R v IAS (2004) 146 A Crim R 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70 R v Illin [2014] QCA 285 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.130, 11.260 R v Jacobs [1993] 2 Qd R 541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v James, Tappin and Thomas [2009] QSC 93 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.190 R v Jaudzems [2014] QSC 75 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30 R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 . . . . . . . . . . . . . . . . . . . . . . 8.200, 8.210 R v Johannsen (1996) 87 A Crim R 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 R v JX [2016] QCA 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.160 R v K (2003) 144 A Crim R 468 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.160 R v Kaddour (2004) 148 A Crim R 597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110 R v Kaporonowski [1972] Qd R 465 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 R v Karlsson [2015] QCA 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.80, 13.200 R v Karounos (1995) 63 SASR 451 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229 . . . . . . . . . . . . . . . . . . . 14.50 R v Keating [2002] QCA 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v Keen [2016] 2 Qd R 1; [2015] QSC 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.60 R v Kendrick [2015] QCA 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Khoury [2004] QDC 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 R v Kina [1993] QCA 480 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50 R v Kingston [2008] QCA 193 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.280 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 . . . . . . . . . . 9.20 R v Kirkman (1987) 44 SASR 591 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 R v Kok Cheng Tan (2002) 128 A Crim R 286; [2002] WASC 42 . . . . . . . . . . . . . . . . . . . 9.160 R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301 . . . . . . . . . . . . . . . . . . . . . . . . 5.40 R v KU; Ex parte A-G (Qld) [2008] QCA 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90, 12.40 R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Lacey; Ex parte Attorney-General (Qld) (2009) 197 A Crim R 399; [2009] QCA 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.160, 13.230 R v LAE [2013] QCA 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 R v Lambert [2002] 2 AC 545 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.40, 1.80 R v Leak [1969] SASR 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.170 R v Lee (1950) 82 CLR 133 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40, 3.70 R v Leece (1996) 65 FCR 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30

xxv

Criminal Process in Queensland

R v Leikfett; Ex parte Attorney General (Leikfett) [1973] Qd R 355 . . . . . . . . . . . . . . 13.220 R v Leith [2000] 1QdR 660 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.190 R v Lenahan [2009] QCA 187 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.130 R v Leslie [1989] 2 QdR 378 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.80 R v Liddle [2006] QCA 45 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Lin [2006] QDC 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.340 R v Lister [2009] QCA 368 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v LK (2010) 241 CLR 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30 R v Lobell [1957] 1 QB 547 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Logan [2009] QDC 237 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.40 R v Long (2002) 128 A Crim R 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.130 R v Long; Ex parte Attorney-General (Qld) (2003) 138 A Crim R 103 . . . . . . . . 9.110, 9.130 R v Lovell [1999] 2 Qd R 79 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.160 R v Lovell; Ex parte Attorney General (Qld) [2015] QCA 136 . . . . . . . . . . . . . . . . . . . . . 13.30 R v Lowrie [1998] 2 Qd R 579 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v LR [2006] 1 Qd R 435; [2005] QCA 368 . . . . . . . . . . . . . . . 2.20, 2.30, 2.300, 2.360, 3.70 R v Lui [2009] QCA 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v M (CA) [1996] 1 SCR 500 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.180 R v M; Ex parte Attorney-General [2000] 2 Qd R 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150 R v MacKenzie [2002] 1 Qd R 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v MacLachlan [2000] VSC 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.130 R v Major [2015] 2 Qd R 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Major; ex parte Attorney-General (Qld) [2011] QCA 210 . . . . . . . . . . . . . . 11.220, 11.270 R v Marchi, Marchi and Mead (1996) 91 A Crim R 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 R v Markusic[2004] QCA 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Marsden [2003] QCA 473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150, 12.160 R v Marshall [1981] VR 725 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.100 R v Martens (2009) 262 ALR 106; [2009] QCA 351 . . . . . . . . . . . . . . . . . . . . . . . . . 8.30, 14.30 R v Mathers [2008] QCA 69 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.160 R v Matterson; Ex parte Helfenbaum (1993) 65 A Crim R 264 . . . . . . . . . . . . . . . . . . . 10.60 R v Maxwell (1998) 102 A Crim R 374 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v McCann [2016] QCA 216 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40, 12.50 R v McClintock [2009] QCA 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140 R v McDougall and Collas (2006) 166 A Crim R 191; [2006] QCA 365; [2007] 2 Qd R 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v McGrath [2006] 2 Qd R 58; [2005] QCA 463 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.310 R v McMillan [2010] QSC 309 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.330 R v McQuire and Porter (2000) 110 A Crim R 348 . . . . . . . . . . . . . . . . . . . . . . . . . 7.100, 11.130 R v Mead [2010] QCA 370 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.130 R v Meid [2006] QCA 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.120 R v Melano; Ex parte Attorney-General [1995] 2 Qd R 186; (1995) 75 A Crim R 392 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.220 R v Menniti [1985] 1 Qd R 520 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50, 1.60 R v Metius [2009] QCA 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.160 R v Miletic [1997] 1 VR 593 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 R v Mill [2007] QCA 150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.80, 10.120 R v Milos [2014] QCA 314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 R v Ming Yeuk Lam (1998) 100 A Crim R 188 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.210 R v Minor (1992) 79 NTR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.240 R v Mirza; Ex parte A-G (Qld) [2008] QCA 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Moffatt [1998] 2 VR 229 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260, 12.280 R v Mokany [2014] QCA 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 R v Mondon [2001] QCA 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Moodie [1999] QCA 125 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v Moore [1999] 3 NZLR 385 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.200 R v Moti [2009] QSC 293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30

xxvi

Table of Cases

R v Mrzljak [2005] 1 Qd R 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.80 R v Muller [2006] 2 Qd R 126 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Munck [2010] QSC 416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50, 2.70, 2.120 2.340, 3.40 R v Mundraby [2004] QCA 493 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v Munt [1999] QCA 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.130 R v Muratovic [1967] Qd R 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Murdock; Ex parte A-G [1980] Qd R 504 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.120 R v Murphy (1985) 158 CLR 596 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20 R v Murphy (1989) 167 CLR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.140 R v Murray [2014] QCA 250 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v N [2015] QSC 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.70 R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.220 R v Ndizeye [2006] QCA 537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.50 R v Nerbas [2012] 2 Qd R 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v Nguyen (2004) 149 A Crim R 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.210 R v Nikora [2014] QCA 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.80 R v Nitu [2012] QCA 224 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.40 R v NM [2013] 1 Qd R 374; [2012] QCA 173 . . . . . . . . . . . . . . . . . . . . . . . . . 13.20, 13.30, 13.190 R v Noyes [2005] 1 Qd R 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.40, 9.90, 9.100, 9.160 R v Nuttall; ex parte A-G, [2011] QCA 120 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.180 R v Oates [1986] 1 SCR 103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.40 R v Ogawa [2011] 2 Qd R 350 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.140 R v Ogden [2014] QCA 89 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v OL [2004] QCA 439 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Onea (1994) 74 A Crim R 395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.130 R v Orchard [2005] QCA 141 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v O’Rourke (2002) Qld Lawyer Reps 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.80, 9.100 R v P (1992) 111 ALR 541 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.220 R v P [2016] QSC 49 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70, 2.120 R v Paddon [1999] 2 Qd R 387 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100 R v Pangallo (1991) 56 A Crim R 441 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v Pantoja (1996) 88 A Crim R 554 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v Parker (1912) 14 CLR 861 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.390 R v Patel (No 2) [2012] QSC 420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.110, 9.140 R v Patel (No 4) [2013] 2 QD R 544; [2013] QSC 62 . . . . . . . . . . . . . . . . . . . . . . . . 8.130, 8.140 R v Patel; ex parte A-G (Qld) [2011] QCA 81 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.190 R v Peachy [2006] QCA 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.180 R v Peirson [2014] QSC 134 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.60, 2.360 R v Pesnak (2000) 112 A Crim R 410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v Peters (1995) 83 A Crim R 142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v Petersen [2008] QCA 405 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 R v Pham [2009] QCA 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.80, 11.320 R v Pohl [2014] QSC 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.60, 2.70 R v Porter [2002] QCA 59 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60 R v Powderham [2002] 2 Qd R 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v Power [2002] QCA 497 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.100 R v Prentice [2003] QCA 34 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.120 R v Promizio (2004) 142 A Crim R 592 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.70 R v Punj (2002) 132 A Crim R 595 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Purdon [2016] QSC 128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.60 R v Purnell [2012] QSC 60 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.330, 2.340 R v Quinlan [2012] QCA 132 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.90 R v R (2003) 138 A Crim R 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.370, 2.450 R v Raabe [1985] 1 Qd R 115 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30 R v Rasmussen (2000) 110 A Crim R 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v Rehavi (1998) 101 A Crim R 569 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.130 R v Rich (1997) 93 A Crim R 483 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50, 10.70

xxvii

Criminal Process in Queensland

R v Riley [2007] QCA 391 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v Roberts [2002] QCA 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.250 R v Robyn Bella Kina (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50 R v Rogers (1994) 181 CLR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.160 R v Rogers (2013) 231 A Crim R 290 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Rogers [1998] QCA 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.40 R v Rogerson (1992) 174 CLR 268; [1992] HCA 25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.150 R v Rollason; Ex parte Attorney-General (Qld) [2008] 1 Qd R 85; [2007] QCA 65 . . . 8.30 R v Rondo (2001) 126 A Crim R 562 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30 R v Rowe [2006] QCA 379 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v S [2000] 1 Qd R 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.160 R v SAA [2009] QDC 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.130 R v Sang [1980] AC 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.30 R v SAT (2006) 170 A Crim R 156; [2006] QCA 70 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Saunders [1983] 2 Qd R 270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.200, 8.210 R v SBY [2013] QCA 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 R v Scarth [1945] St R Qd 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30 R v Self (1992) 95 Cr App R 42 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.250 R v Selu; ex parte Cth DPP [2012] QCA 345 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v Seymour [2012] QSC 14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.330 R v Sheppard [2001] 1 Qd R 504; (2000) 111 A Crim R 258; [2000] QCA 57 . . . . . . . . 12.310, 13.190 R v Shillingsworth [1985] 1 Qd R 537 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.40 R v Shillingsworth [2002] 1 Qd R 527 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.140 R v Singh [2006] QCA 71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.220 R v Skeates [1978] Qd R 85 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v Skerritt (2001) 119 A Crim R 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Skinner; Ex parte Attorney-General [2001] 1 Qd R 322 . . . . . . . . . . . . . . . 12.180, 12.200 R v Sloan (1988) 32 A Crim R 366 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20 R v Smith (2003) 138 A Crim R 172; [2003] QCA 76 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.330 R v Smith [1997] QCA 109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Smith [1999] SADC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 R v Smith [2004] QCA 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.70 R v Smith [2004] QCA 417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Smith [2016] QCA 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.50 R v Smith Ex Parte Attorney-General (2000] 117 A Crim R 1; [2000] QCA 443 . . . . . . . 5.40 R v Sneesby [1951] St R Qd 26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.210 R v Sokol [2011] QCA 20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170 R v Sopher (1993) 70 A Crim R 570 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Souter (1997) 93 A Crim R 400 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.90 R v Spina [2012] QCA 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.80 R v Spizzirri [2001] 2 Qd R 686 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.30 R v Stafford [2009] QCA 407 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.60 R v Stanley [2015] QSC 327 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.50 R v Stead; Ex parte Attorney-General [1997] QCA 236 . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50 R v Stephens [2006] QCA 123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.100, 12. 120 R v Stevens [2006] QCA 361 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Stinchcombe [1991] 3 SCR 326 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.20 R v Stone [1999] 2 Qd R 413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260, 12.270 R v Storey (1978) 140 CLR 364 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.160, 7.170, 13.120 R v Stuart [1973] Qd R 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.120 R v Stuart [1974] Qd R 297 (CCA) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.120, 8.140 R v Stuck [2008] QCA 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.90 R v Sullivan [1971] 1 QB 253; (1970) 54 Cr App R 389 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Summerlin [2009] QCA 297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.200 R v Svabo (2000) 112 A Crim R 215 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.80 R v Swaffield (1998) 192 CLR 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.260, 3.60, 13.70

xxviii

Table of Cases

R v Sysel [2000] QCA 233 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150 R v Tait [1999] 2 Qd R 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.20, 13.30 R v Taufahema (2007) 228 CLR 232 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.110 R v Taylor (1999) 106 A Crim R 578 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.160 R v Thompson (1893) 2 QB 12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Tighe & Maher (1926) 26 SR (NSW) 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.150, 10.160 R v Tillet (1969) 14 FLR 101 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 R v Tilley: Ex parte Attorney-General [1999] QCA 244 . . . . . . . . . . . . . . . . . . . . . . . . . . 12.230 R v TL [2005] 1 Qd R 659 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 R v Toon [2015] QSC 117 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.60 R v Tootoo (2000) 115 A Crim R 90; [2000] QCA 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 R v Tran; Ex parte Attorney-General (Qld) (2002) 128 A Crim R 1 . . . . . . . . . . . . . . . . 12.180 R v Tricklebank (1993) 69 A Crim R 351 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.250 R v Turner [2010] QSC 473 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 R v Upton (No2) (2013) 229 A Crim R 275; [2013] QCA 149 . . . . . . . . . . . . . . . . . . . . . . 13.190 R v Verdins (2007) 16 VR 269; [2007] VSCA 102 . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170, 11.210 R v Verrall [2012] QCA 310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.40 R v Verrall [2013] 1 Qd R 587 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.40 R v Verrall [2015] QCA 72 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.90 R v Versac (2013) 227 A Crim R 569; [2013] QSC 46 . . . . . . . . . . . . . . . . . . . . . . . . . 2.60, 2.120 R v Versac [2011] QCA 318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 R v Viers [1983] 2 Qd R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.140, 7.150 R v Vincent; Ex parte Attorney-General [2001] 2 Qd R 327 . . . . . . . . . . . . . . . 12.160, 12.200 R v Wade [2012] 2 Qd R 31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v WAF [2009] QCA 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.100 R v Wagner (1993) 66 A Crim R 583 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.90 R v Ward [2009] QSC 38 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.80 R v Warickshall (1783) 1 Leach 263 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 R v Webber (2000) 114 A Crim R 381 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.230 R v Weiss (2004) 145 A Crim R 478; [2004] VSCA 73 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.110 R v Wells [2008] QCA 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.450 R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538 . . . . . . . . . . . . . 11.170 R v Willersdorf [2001] QCA 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.130 R v Williams (1990) 53 SASR 253 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.110 R v Williams [1959] NZLR 502 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.60 R v Williamson (2012) 224 A Crim R 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.50 R v Williamson [2010] QCA 27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.280 R v Willoughby [2009] QCA 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.160 R v Wilson (1986) 22 A Crim R 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Wilson [1995] 1 VR 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.180 R v Wilson [1998] 2 Qd R 599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.80, 12.270 R v Wilson [2008] QCA 349 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 R v Wood (1967) 52 Cr App R 74 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Woodman [2013] QCA 359 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.190 R v Wrigley [1998] QCA 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.100 R v Yarwood [2011] QCA 367, 377 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.170, 11.210 R v Young [No 2] [1969] Qd R 566 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.50 R v Youssef (1990) 50 A Crim R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 R v Zischke [1983] 1 QdR 240 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 R v ZSK [2006] QDC 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.70 R v Zurek [2006] QCA 543 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 R v Rollason and Jenkins; ex parte A-G (Qld) [2008] 1 Qd R 85; [2007] QCA 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 Ratten v The Queen (1974) 131 CLR 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.50 Rayney v RT & BF Turner Pty Ltd [2008] QDC 95 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50 Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73 . . . . . . . . . . . . . . . . . . . . 9.20

xxix

Criminal Process in Queensland

Re Nolan; Ex parte Young (1991) 172 CLR 460 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20 Reeves v The Queen (2013) ALJR 215; [2013] HCA 57 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.70 Reid v The Queen [1980] AC 343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.110 Rice v Connolly [1966] 2 QB 414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.260 Ridgeway v The Queen (1995) 184 CLR 19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.80, 8.210 Riley v Western Australia (2005) 30 WAR 525; [2005] WASCA 190 . . . . . . . . . . . . . . . 2.450 Robinson v The Queen (1991) 180 CLR 531 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.50 Roddan v Walker [2000] WASCA 376 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.180 Roddan, Ex parte (1995) 86 A Crim R 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 Rodriguez v The Queen [2001] WASCA 394 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.210 Rogers v The Queen (1989) 44 A Crim R 301 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.240 Rogers v The Queen (1994) 181 CLR 251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.190, 9.30 Rona v District Court (SA) (1995) 77 A Crim R 16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.90 Roster v The Queen (1993) 66 A Crim R 112; 113 ALR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 Roth-Beirne v Western Australia (2005) 156 A Crim R 101 . . . . . . . . . . . . . . . . . . . . . . . 10.120 Rowe v Kemper [2009] 1Qd R 247 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.240, 2.260, 2.270, 2.470 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.50 Ryan v The Queen (2001) 206 CLR 267 . . . . . . . . . . . . . . . . . . . . . . 11.70, 11.170, 11.180, 11.210 S S v The Queen (1989) 168 CLR 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.40 Saif Ali v George Mitchell and Co [1980] AC 198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.180 Sanderson & Anor v Bank of Queensland Limited [2016] QCA 137 . . . . . . . . . 10.40, 10.60 Sankey v Whitlam (1978) 142 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.20 Saunders v Bowman [2008] QCA 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 Saunders v Herold (1991) 105 FLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.180 Savvas v The Queen (1995) 183 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60 Schmidt v Argent [2003] QCA 507 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.370 Scolaro v Armour (1991) 56 A Crim R 447 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.110 Scrivener v DPP [2001] QCA 454; (2001) 125 A Crim R 279 . . . . . . . . . . . . . . . . . . . . . . . 4.50 Sheldrake v DPP [2005] 1 AC 264 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.80 Short v Davey; Ex parte Short [1980] 1 Qd R 412 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6.30 Simpson v Attorney General (Baigent’s Case) [1994] 3 NZLR 667 . . . . . . . . . . . . . . . . . 2.50 Sinanovic v The Queen (1998) 103 A Crim R 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 Sinanovic v The Queen (No 1) (2001) 122 A Crim R 524; [2001] HCA 35 . . . . . . . . . . . . . 4.80 Sinclair v The King (1946) 73 CLR 316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.360, 3.60 SJK v The Queen (1994) 217 CLR 198 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7.30 Skinner v The Queen (1913) 16 CLR 336 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.200 Smith v The Queen (1985) 159 CLR 532 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.130 Sodeman v The King (1936) 55 CLR 192 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 Spinosa v Victims Assist Queensland [2016] QCAT 173 . . . . . . . . . . . . . . . . . . . . . . . . . . 15.170 Spratt v Blake (1997) 92 A Crim R 91 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.140, 2.170 Stack v Western Australia (2004) 29 WAR 526 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.350 Stingel v The Queen (1990) 171 CLR 312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60 Stuart v The Queen (1959) 101 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.260 Stuart v The Queen (1974) 134 CLR 426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.30 Sysel v Dinon [2003] 1 Qd R 212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.150 Szulc v Chief Executive Officer Department of Environment and Conservation [2012] WASCA 143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.50 T Tabe v R (2005) 225 CLR 418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.70 Thammaruknon v Queensland Police Service [2016] QDC 3 . . . . . . . . . . . . . . . . . . . . . . 7.50 Thomas v Mowbray (2007) 233 CLR 307 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30 xxx

Table of Cases

Thompson v The Queen (1989) 169 CLR 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.100 Thompson v The Queen (1999) 165 ALR 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.260, 12.280 TKWJ v The Queen (2002) 212 CLR 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100, 10.190, 13.80 Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 . . . . . . . . . . . . . . . 3.30, 3.40, 3.50, 3.60, 3.70 Tombling v Universal Light Bulb Co Pty Ltd [1951] 2 TLR 289 . . . . . . . . . . . . . . . . . . . 10.180 Trobridge v Hardy (1955) 94 CLR 147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.290 Tuckiar v The King (1934) 52 CLR 335 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.100, 13.180 Turnbull v Commissioner of Police [2016] QDC 36 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.100 Turner v Randall; Ex parte Randall [1988] 1 Qd R 726 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5.80 U United Mexican States v Cabal (2001) 209 CLR 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.80 V Van Den Hoek v The Queen (1986) 161 CLR 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.60, 13.70 Van der Meer v The Queen (1988) 62 ALJR 656 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40, 3.70 Veen v The Queen (No 1) (1979) 143 CLR 458 . . . . . . . . . . . . . . . . . . . . . 11.150, 12.260, 14.120 Veen v The Queen (No 2) (1988) 164 CLR 465 . . . . . . . . . . . . . . . . . . . . . 11.10, 11.120, 11.140, 11.150, 11.190, 11.210, 11.260, 12.260, 14.120 Vinson v Hongara [2014] QDC 249 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11.60 Vreeker v Police (SA) (2004) 144 A Crim R 544 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.120 W Walden v Hensler (1987) 163 CLR 561 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.40 Walker v Maroney [2015] QDC 87 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.120 Walker v The Queen (1998) 101 A Crim R 152; [1998] WASCA 43 . . . . . . . . . . . . . . . . . . 10.70 Walters v Lawler [2001] QDC 204 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.140, 2.470 Walton v Gardiner (1993) 177 CLR 378 . . . . . . . . . . . . . . . . . . . . . . . . 7.150, 7.160, 8.210, 9.10, 9.30, 9.60, 9.80 Wan v Sweetman (1998) 19 WAR 94 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.180 Warrill v The King [1943] St R Qd 39 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13.30 Webb v The Queen (1994) 181 CLR 41 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.20, 13.80 Weinel v Fedcheshen (1995) 65 SASR 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10.60 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 . . . . . . . . . . . 13.110, 13.130, 13.150 Weissensteiner v The Queen (1993) 178 CLR 217 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.100 Wendo v The Crown (1963) 109 CLR 559 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.40 White v The Queen (1906) 4 CLR 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.20 White v The Queen (1962) 107 CLR 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14.80, 14.120 Whitelaw v O’Sullivan [2010] QCA 266 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.30, 2.120, 2.470 Wilde v The Queen (1988) 164 CLR 365 . . . . . . . . . . . . . . . . . . . . . . . 9.10, 9.20, 13.110, 13.120 Williams v Spautz (1992) 174 CLR 509 . . . . . . . . . . . . . . . . . . . . . . . . . 7.150, 9.30, 9.80, 9.170 Williams v Spautz (2011) 245 CLR 456 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9.40 Williams v The Queen (1986) 161 CLR 278 . . . . . . . . . . . . . . . . . . . . 2.120, 2.130, 2.170, 2.290 Williams v The Queen [1936] QWN 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8.210 Williamson v Director of Public Prosecutions (Qld) [2001] 1 Qd R 99; [1999] QCA 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4.20 Wilson v The Queen [2015] NZSC 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.80, 9.30 Wong v The Queen (2001) 159 FLR 328; [2001] WASCA 32 . . . . . . . . . . . . . . . . . . . . . . . 10.70 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 . . . . . . . . . . . . . 11.80, 11.90, 11.100, 11.230, 13.200 Wood v Director of Public Prosecutions [2008] EWHC 1056 . . . . . . . . . . . . . . . . . . . . . 2.120 Woolmington v Director of Public Prosecutions (UK) [1935] AC 462 . . . . . . . . . . . . . . 1.50 xxxi

Criminal Process in Queensland

Wotton v Director of Public Prosecutions [2008] 1 Qd R 95; [2007] QSC 42 . . . . . . . . 4.50 Wright v Police Service (Qld) [2002] 2Qd R 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.50 Write v Queensland Police Service [2002] 2Qd R 667 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.70 Y Yeo v Attorney-General (Qld) (2007) 170 A Crim R 213 . . . . . . . . . . . . . . . . . . . . . . . . . 12.290 Yeo v Attorney-General (Qld) [2011] QCA 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.290 Yeo v Attorney-General (Qld) [2012] 1 Qd R 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12.280 York v The Queen (2005) 225 CLR 466 . . . . . . . . . . . . . . 11.90, 11.230, 11.260, 12.190, 12.210 Z Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2 . . . . . . . . . . . . . . . . . . . . . . . . 11.40, 11.90

xxxii

TABLE OF STATUTES COMMONWEALTH

Listening Devices Act 1984: 3.60

Commonwealth of Australia Constitution Act 1900

Search Warrants Act 1985: 2.50

s 71: 9.20 s 77: 13.20 s 77(iii): 5.140 s 80: 8.180

Commonwealth Places (Administration of Laws) Act 1970: 5.140

NORTHERN TERRITORY Justices Act 1979 s 106: 6.40

QUEENSLAND

Commonwealth Places (Application of Laws) Act 1970: 5.140

Acts Interpretation Act 1954

Crimes Act 1914

Australian Solicitors Conduct Rules 2012 (ASCR): 10.150

ss 4G-4H: 5.130 s 4J: 5.140 s 4JA: 5.140 s 15B: 5.140 s 50BA: 8.30

Criminal Code 1995 Ch 9 Pt 9.1: 5.50

High Court Rules 2004 r 41.02: 14.80 r 42.03: 14.80

Judiciary Act 1903 s 30(c): 5.140 s 35: 13.20, 14.80 s 35(2): 14.80 s 35A: 13.20, 14.80, 14.120 s 35AA: 14.80 s 36: 14.130 s 37: 14.130 s 39(2): 5.140, 13.20

Telecommunications (Interception and Access) Act 1979 s 45: 8.30 s 45A: 8.30

NEW SOUTH WALES Crimes Act 1900: 7.250 s 33: 7.250 s 110: 7.250 s 394A: 5.40

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006: 7.200 Director of Public Prosecutions Act 1986 Pt 3: 9.100

Jury Act 1977 s 46: 8.140

s 14D: 8.140

r 3: 10.150 r 3.1: 10.170 r 4.1.2: 10.170 r 4.1.4: 10.170 r 17: 10.180 r 17.1: 10.190 r 17.2: 10.190 r 17.3: 10.160 r 19: 10.180 r 19.1: 10.180 r 19.10: 10.180 r 20: 10.160 r 20.2: 10.160 r 22.1: 10.180 r 22.2: 10.180 r 22.3: 10.180

Bail Act 1980: 1.110, 4.10, 4.20, 12.70, 12.90 s 6: 4.50 s 7: 4.20 s 7(2)(b): 4.30 s 8: 4.20, 4.50 s 9: 4.20 s 10: 4.20, 4.50, 4.60 s 10(2): 4.50 s 10(3): 4.50 s 11: 4.10, 4.30, 4.60 s 11(2A): 4.60 s 11A: 4.50 s 11AB: 4.60 s 13: 4.20, 4.50, 6.80 s 14(1A): 4.30 s 14A: 4.40 s 14A(1): 4.40 s 15: 4.20 s 16: 4.20, 6.80, 7.220 s 16(1): 4.20, 4.30 s 16(1A): 4.20 s 16(3): 4.20 s 18: 4.50 s 19: 4.50 s 20: 4.50

xxxiii

Criminal Process in Queensland

Bail Act 1980 — cont s 21: 4.70 s 21(8): 4.70 s 23: 4.70 s 29: 4.50 ss 31-33: 4.50 s 32A: 4.70 s 32B: 4.70 s 32B(2)(a): 4.70 s 33: 4.50 s 34BA: 6.70 s 35: 4.50

Barristers’ Rule 2011: 10.150 r 5(a): 10.150, 10.170 r 5(c): 10.170 r 21: 10.160 rr 25-36: 10.180 r 25: 10.150 r 26: 10.180 r 35: 10.180 r 41: 10.190 r 42: 10.190 r 43: 10.160 r 48: 10.180 r 49: 10.180 r 50: 10.180 r 78: 10.170 r 79: 10.160 rr 95-98: 10.160 rr 99-100: 10.160

Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010: 6.10 Constitution of Queensland 2001 s 36: 14.20

Corrective Services Act 2000 s 75(2): 12.220 s 75(4): 12.220

Corrective Services Act 2006 (CSA): 12.170, 12.210 sch 1: 12.220 sch 4: 12.220 s 122(2)(a): 5.120 s 135(4): 2.140 s 136: 2.140 s 181: 12.220 s 182: 12.220, 12.230 s 184: 12.220 s 344: 11.40 s 400: 12.220 s 498: 12.230

Crime and Corruption Act 2001 (CCA): 3.70 sch 2: 3.90 s 4: 3.70 s 9: 3.130 s 10: 3.130 s 15: 3.80 s 36: 3.70, 3.80 xxxiv

s 38: 3.80 s 41(1): 3.90 s 41(2): 3.80 s 42: 3.110 s 42(4): 3.90 s 45(1): 3.80 s 45(2): 3.90 s 46: 3.110 s 50: 3.80, 3.110 s 51: 3.80 s 216: 3.120

Crime and Misconduct Act 2001: 3.70, 3.120 Criminal Appeal Act 1912 s 6(1): 13.50

Criminal Code Act 1899: 1.20 Div 4A: 8.30 s 590AB: 8.30 s 590AL: 8.30

Criminal Code 1995: 1.20 ss 13.1–13.5: 1.100 s 13.1(1): 1.100 s 13.1(2): 1.100 s 13.2(1): 1.100 s 13.5: 1.100

Criminal Code Amendment Act 2014 s 35: 7.220

Criminal Code (Abusive Domestic Relationship Defence and Other Matter) Amendment Act 2010 s 304B: 1.20

Criminal Code (Criminal Organisations) Regulation 2013: 1.20, 3.140 Criminal Code (Double Jeopardy) Amendment Act 2007: 1.20, 7.210, 7.220 Criminal Code (Palliative Care) Act 2003 s 282A: 1.20

Criminal Code and Jury and Other Amendment Act 2008: 1.20 Criminal Code and the Justices Act Amendment Act 1975 s 34: 13.220

Criminal Code and Other Acts Amendment Act 1961 s 304A: 1.20

Criminal Code and Other Legislation Amendment Act 2011: 1.20, 13.30 Criminal Law Amendment Act 1894 s 10: 3.30, 3.40

Table of Statutes

Criminal Law Amendment Act 1945 s 18: 12.280

Criminal Law Amendment Act 1997: 1.20 Criminal Law (Criminal Organisations Disruption) and Other Legislation Act 2013: 1.20, 1.110, 3.140 Criminal Law (Domestic Violence) Amendment Act 2015: 12.350 s 7: 1.20 s 14: 1.20 s 15: 1.20 s 18: 1.20

Criminal Law (Domestic Violence) Amendment Act 2016 s 3: 1.20 s 5: 1.20 s 6: 1.20

Criminal Law (Rehabilitation of Offenders) Act 1986: 12.50 s 3: 12.40 s 5: 12.40

s 13(5): 12.280 s 13(6): 12.280 s 15: 12.290 s 16A(2)(b): 12.280 s 17: 12.290 s 27: 12.290 s 28: 12.290

Director of Public Prosecutions Act 1984 s 11: 5.30 s 12: 5.30 s 13: 5.30 s 24C: 8.30

Dispute Resolution Centres Act 1990: 15.60 s 31: 15.60

District Court Act 1967 (DCA) s 60: 5.120 s 60(2)-(3): 5.120 s 61: 5.120 s 61(1)(a): 5.120 s 65: 8.120 s 118(3): 13.20 s 119: 13.20

Criminal Offence Victims Act 1995 (COVA): 1.20, 15.140, 15.210

District Court Act 1968

Criminal Practice Rules 1999

Domestic and Family Violence Protection Act 2012: 12.330

r 20(6): 6.190 schs 2-4: 6.110

Criminal Procedure Rules 1999: 8.50 r 51: 11.40

Criminal Proceeds Confiscation Act 2002: 2.90, 12.360 Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013: 12.360 Crown Proceedings Act 1980 s 15: 4.70

Dangerous Prisoners (Sexual Offenders) Act 2003 (DPA): 11.190, 12.280 s 5: 12.280 s 5(1): 12.280 s 5(2): 12.280 s 5(6): 12.280 s 5(8): 12.280 s 8: 12.280 s 8(2): 12.280 s 11: 12.280 s 12: 12.290 s 13: 12.290 s 13(1): 12.280 s 13(2): 12.280 s 13(3): 12.280 s 13(4): 12.280, 12.300 s 13(4)(a): 12.280

s 334: 13.20

s 26: 12.350 s 151: 15.130 s 177: 2.140 s 178: 2.140 s 179: 2.140

Drugs Misuse Act 1986: 1.40, 1.70, 5.60, 6.190, 7.150 Pt 2: 5.50 s 4A: 6.190 s 5: 2.100 s 9: 1.70 s 10(2): 5.60 s 10(3): 5.60 s 10(4): 5.60 s 10A: 5.60 s 13: 5.60, 5.100 s 14: 5.60, 5.100 s 127: 5.80 s 129(1)(c): 1.70

Drugs Misuse Regulation 1987: 6.190 Electricity (Continuity of Supply) Act 1985: 5.80 s 5(1)(c)(i): 5.80

Evidence Act 1977 Pt 1 Div 4A: 8.30 Pt 2 Div 4: 15.130 Pt 2 Div 4A: 15.130 s 21AC: 8.30 s 21M: 10.120

xxxv

Criminal Process in Queensland

Evidence Act 1977 — cont s 21N: 10.120 s 21O: 10.120 s 21P: 10.120 s 93A: 8.30 s 93B: 8.30, 8.70 s 132: 11.50 s 132C(3): 11.60

Health Act 1937 s 130: 7.150

Human Rights Act 2004 (ACT) ss 21-22: 9.20 s 22(1): 1.40

Jury Act 1995: 1.20, 8.140 s 4: 8.140 ss 9-10: 8.140 ss 15-16: 8.140 s 18: 8.140 ss 26-27: 8.140 s 35: 8.170 s 39: 8.140 s 42: 8.140 s 43: 8.140 s 44: 8.140 s 46: 8.140 s 47: 8.140 ss 50-51: 8.140 s 50: 8.160 s 57: 8.150 s 59: 8.150 s 59(1)(a)(iii): 8.180 s 59(4): 8.150 s 59A: 8.150 s 60: 8.150 s 69A: 8.160 s 70: 8.160 s 70(1): 8.160 s 70(8): 8.160 s 70(12): 8.160

Jury Act 1997 s 47: 8.140, 9.150

Justices Act 1886: 5.30, 8.40, 8.100 s 19: 5.80, 5.110 s 24: 5.80 s 30: 5.80 s 35: 8.170 s 41: 8.30 s 42(1A): 5.30 s 42(2): 2.170 ss 42-56A: 2.200 s 43: 7.20 s 52: 5.80 s 52(2): 5.80 s 53: 4.30 s 53A: 15.60 s 53A(2): 15.60 s 65: 2.170 s 83A: 8.40 s 83A(5): 8.100 ss 83B-83F: 8.30

xxxvi

s 83B: 8.40 s 83B(4): 8.40 s 83F: 8.30, 8.40, 8.50 s 88: 9.60 s 104: 6.40 s 104(2): 6.30 s 104(2)(b): 7.40 s 104(5): 6.80, 8.70 s 104A: 6.40 s 108: 4.50, 6.40 s 110A: 6.50, 6.60 s 110A(4): 6.60 s 110A(6): 6.60 s 110B: 6.50 s 110B(3)(a): 6.50 s 110B(3)(b): 6.50 s 110B(7): 6.50 s 113: 6.40, 7.40, 8.120 s 114: 6.70 s 115: 6.70 s 126: 6.80, 6.100 s 139: 5.110 s 140: 5.110 ss 142-143: 5.80 s 142: 5.80, 8.100 s 142(2): 5.80 s 142A: 8.100 s 145: 8.100 s 145(2): 7.40 s 146: 8.100 s 146(1)(a): 8.40 s 146A: 5.80 s 147: 8.40 s 148: 8.100 s 149: 8.40, 8.100 ss 150-152: 8.100 ss 157-158: 5.80 s 158A: 5.80 s 222(1): 13.20 s 222(2): 13.20 s 222(2)(a): 13.20 s 222(2)(b): 13.20 s 222(2)(c): 13.20 s 222(3): 13.20 s 222(4): 13.20 s 222(5): 13.20 s 222(8): 13.20 ss 222C-222E: 13.20 s 223: 13.20 s 224(1)(a): 13.20 s 224A: 13.20 s 225: 13.20 s 226: 13.20 s 227: 13.20 Part 5 Divs 5–9: 6.20

Justices Regulation 2014 reg 13: 5.30 reg 14: 5.30 sch 2: 5.80

Legal Aid Queensland Act 1997:10.110 Pt 3: 10.110 s 12: 10.110

Table of Statutes

Liquor Act 1992 s 182: 2.270

Magistrates Courts Act 1921: 13.170 Magistrates Act 1991 s 21A: 13.70

Mental Health Act 2000: 1.90, 12.270 Ch 7 Pt 6: 12.270 s 405: 1.90

Mental Health Act 2016: 1.90 s 685: 1.90

Peace and Good Behaviour Act 1982 s 54(2): 1.110 s 54(3): 1.110 s 55(3): 1.110

Penalties and Sentences Act 1992 (PSA): 11.10, 12.10, 12.20, 12.30 Pt 3: 12.40, 12.60, 12.320 Pt 3, Div 1: 12.20 Pt 3, Div 3: 12.20 Pt 3, Div 4: 12.20, 12.320 Pt 3A: 11.50, 12.20, 12.330 Pt 4: 12.20 Pt 4, Div 2: 12.110 Pt 5: 12.20 Pt 6: 12.20, 12.180 Pt 8: 12.20 Pt 9: 12.20 Pt 9A: 11.300 Pt 9B: 11.310 Pt 9C: 12.360 Pt 9D: 11.310 Pt 10: 12.20 Pt 10A: 11.60, 11.220 Pt 12: 11.30 Pt D, Div 2: 11.290 Pt D, Div 3: 11.190 sch 1: 12.230 sch 1C: 7.20, 12.250 sch 2: 12.270 s 3(b): 11.160, 11.190, 12.260 s 3(c): 11.230 s 3(d): 11.70 s 3(f): 12.110, 12.120 s 3(h): 11.30 s 5: 2.480, 12.110 s 8A: 11.60 s 9: 11.80, 11.140 s 9(1): 11.140 s 9(1)(a): 11.150 s 9(1)(b): 11.160 s 9(1)(d): 11.180 s 9(1)(e): 12.260 s 9(2): 11.200, 12.220 s 9(2)(a): 11.290, 11.310, 11.320, 12.180 s 9(2)(b): 11.90 s 9(2)(c): 11.170, 15.140 s 9(2)(d): 11.130 s 9(2)(e): 11.190, 11.220 s 9(2)(f): 11.210

ss 9(2)(k)-(m): 11.110 s 9(2)(h): 11.170 s 9(2)(i): 11.230 s 9(2)(j): 11.110 s 9(2)(p): 11.250, 15.100 s 9(2)(r): 11.200, 11.260 s 9(2A): 11.290, 11.300, 12.220 s 9(3): 11.290, 11.300, 12.220 s 9(4): 11.220, 11.290, 11.310, 12.220 s 9(5): 11.290, 11.310, 12.220 s 9(6): 11.290, 11.310 s 9(6)(a): 11.310 s 9(6)(b): 11.310 s 9(6)(c): 11.310 s 9(6)(d): 11.310 s 9(6A): 11.220, 11.320, 12.220 s 9(7): 11.290, 11.320, 12.220 s 9(8): 11.250 s 9(9): 11.60 s 9(10A): 11.270 s 9A: 11.170 s 9D: 12.250 s 10: 11.60 s 11: 11.130, 11.210 s 12: 12.40, 12.50 s 12(2)(a): 12.40 s 12A: 11.270, 12.350 s 13: 7.90, 11.90, 11.130 s 13(2): 7.90 s 13(3): 7.90 s 13(4): 7.90 s 13A: 11.230 s 13A(7): 11.230 s 13B: 11.230 s 15: 11.40, 11.50 s 15(1): 11.40 s 15(3): 11.40 s 15AD: 11.100 s 15AE: 11.100 s 15AH: 11.100 ss 15B-15F: 11.160, 12.70 s 18: 12.70 s 19: 12.70 s 19(2A): 12.70 s 19(2B): 12.70 s 20(1): 12.70 s 20(1A): 12.70 s 21: 12.70 s 22: 12.80 ss 23-24: 12.80 s 25: 12.80 s 27: 12.80 s 28: 12.80 ss 29-33A: 12.90 s 36(2): 12.320 s 37: 12.320 s 43B: 12.330 s 43B(2): 11.110 s 43B(3): 12.330 s 43C(2): 12.330 s 43C(3): 12.330 s 43F: 12.330 s 44: 12.110 s 45: 12.110 xxxvii

Criminal Process in Queensland

Penalties and Sentences Act 1992 (PSA) — cont s 45(2): 11.110, 12.200 s 46: 12.110 s 48: 12.120 s 49: 12.110 s 50: 12.110 s 51: 12.110 s 57: 12.110 s 61O: 12.250 s 69: 12.110 s 82: 12.110 s 90: 12.150 s 91: 12.150 s 92: 12.150 s 92(1)(b)(i): 12.150 s 92(5): 12.150 s 93: 12.150 s 94: 12.150 s 95: 12.150 s 96: 12.150 s 97: 12.140 s 98: 12.90 s 100: 12.160 s 101: 12.160 s 102: 12.160 s 103(1): 12.160 s 103(2): 12.160 s 105: 12.160 s 106: 12.160 s 107: 12.140 s 108B(2A): 11.210 s 111: 12.50, 12.180 s 112: 12.150, 12.180 s 113: 12.180 s 114: 12.180 s 115: 12.180 s 117: 12.180 s 118: 12.180, 12.200 s 121: 12.140, 12.180 s 122: 12.140, 12.180 ss 123-125: 12.140, 12.180 s 143: 12.50, 12.200 s 144: 12.200 s 144(2): 12.190 s 144(4): 12.190 s 147: 12.200 s 147(2): 12.200 s 147(3): 12.200 s 148: 12.200 s 151: 11.50 s 152: 12.50, 12.220 s 153: 12.220 s 153A: 12.220 s 154: 12.180, 12.220 s 155: 12.220 s 156: 12.220 s 156A: 11.110, 12.220 s 158A: 12.220 s 159: 12.220 s 159A: 11.110, 12.220 s 160B: 12.220 s 160C: 12.220 s 160D: 12.220

xxxviii

s 161A(a): 12.230 s 161B(1): 12.230 s 161B(3): 12.230 s 161B(3)(a): 12.230 s 161C: 12.230 s 161D: 12.240 s 161E(1): 12.240 s 161E(2): 12.240 s 161N: 12.250 s 161P: 12.250 s 161Q: 7.20, 12.250 s 161R: 11.90, 12.250 s 161S: 11.230, 12.250 ss 161T-161ZC: 12.340 s 161V: 12.250 s 161W: 12.340 s 161ZI(6): 1.110 s 162: 12.270 s 163: 12.270 s 163(1)(a): 12.270 s 163(1)(b): 12.270 s 163(3): 12.260, 12.270 s 163(4): 12.260, 12.270 s 166: 12.270 s 165: 12.270 s 167: 12.270 s 168: 12.270 s 169: 12.270 s 170: 12.270 s 171: 12.270 s 172: 12.270 s 173: 12.270 s 173(1): 12.270 ss 179A-179H: 11.60 s 179C: 12.100, 12.120 s 180: 12.220 s 188(2): 11.230 s 208: 12.240 s 215: 12.240 s 222: 12.240 s 302: 12.220 s 305: 12.220

Police Powers and Responsibilities Act 1997: 1.20 Police Powers and Responsibilities Act 2000 (PPRA): 1.20, 2.10, 2.20, 3.10, 5.90 Ch 9: 2.280, 2.340 Ch 10: 2.110 Ch 11: 2.80, 2.110 Ch 14: 2.130 Ch 14, Pt 4: 2.210 Ch 15: 2.140, 2.260, 2.280 Ch 15, Pt 3: 2.280 Ch 16: 2.380 Ch 17: 2.400 Ch 17 Pt 2: 2.20 Ch 17 Pt 4: 2.410 Ch 17 Pt 5: 2.460 Ch 17 Pt 6: 2.420 Ch 17 Pt 7: 2.430 Ch 17 Pt 17: 2.370 sch 1: 2.20

Table of Statutes

Police Powers and Responsibilities Act 2000 (PPRA) — cont sch 2: 2.20 sch 5: 2.20 sch 6: 2.30, 2.60, 2.70, 2.90, 2.100, 2.240, 2.380, 2.400, 2.410, 2.420 s 8: 2.260 s 10: 3.20 s 19: 2.60 s 19(5): 2.60 s 21(2): 2.60 s 21A: 2.60 s 22: 2.60 ss 29-39: 2.60 s 29: 2.30, 2.60 ss 30-32: 3.140 s 30: 2.60 s 30(1)(a)(ii): 2.30 s 30(1)(a)(vi): 2.30 s 31: 2.60 ss 31-32: 2.30 s 32: 2.60 s 33: 2.60 s 40: 2.270 s 41: 2.270 ss 42-43A: 2.270 ss 44-49: 2.240 s 46: 2.240 s 46(1)(c): 2.240 s 47(1)(a): 2.240 s 48: 2.240 s 50(1): 2.30 s 50(2): 2.30 s 53BAA: 3.140 s 54: 2.60 s 57: 2.60 s 57(2): 2.60 s 60: 2.60 ss 150-158: 2.70 s 150(1): 2.70 s 150(2): 2.70 s 150(1)(b)-(d): 2.70 s 150(4): 2.40, 2.70 s 150(5): 2.70 s 150(7): 2.40 s 151: 2.70 s 152: 2.70 ss 154-154B: 2.70 s 154: 2.70 s 154A: 2.70 s 155: 2.70 ss 156-157: 2.70 s 156(1)(b)(i): 2.70 s 156(1)(c): 2.70 s 156(1)(d): 2.70 s 157: 2.70 s 157(1)(a): 2.50, 2.70 s 157(1)(e): 2.50 s 157(1)(h): 2.50 s 157(1)(i): 2.50 s 157(1)(j): 2.50 s 158: 2.70 s 159: 2.70 ss 159(a)-(d): 2.70

s 160: 2.70 s 160(3): 2.70 s 161: 2.70 s 161(1): 2.40 s 195: 12.281 ss 198-204: 2.90 s 200: 2.90 s 204: 2.90 ss 211-220: 2.100 s 211: 2.100 s 212: 2.100 s 213: 2.100 ss 221-227: 2.110 s 221: 2.110 s 222(2): 2.110 s 224: 2.110 s 225: 2.30, 2.110 s 226: 2.110 ss 228-277: 2.110 s 229: 2.80, 2.110 s 230(3): 2.110 ss 232-238: 2.110 ss 258-262: 2.110 s 258: 2.30 s 284: 2.30 s 300: 2.100 s 306: 2.100 s 309: 2.100 s 328(2)(b): 2.190 s 349: 2.340 s 365: 2.280 s 365(1): 2.140 s 365(2): 2.120, 2.140 s 365(3): 2.140 s 365A: 2.120, 2.140 ss 369-373: 2.150 s 370: 2.150 s 371: 2.150 s 372: 2.150 ss 375-381: 2.210, 4.30 s 375: 2.210 s 376: 2.210 s 377: 2.210 s 378: 2.210 s 378A: 2.210 s 379: 2.210 s 379A: 2.210 s 380: 2.210 s 381: 2.210 s 382: 4.30, 5.80 ss 388-389: 5.80 s 390G: 2.30 s 390I: 2.30 s 391: 2.160 s 393: 2.160 s 393(2): 2.170 s 394: 2.220 s 395: 2.100 s 396: 2.280 s 397: 2.260 s 398: 2.260, 2.280 s 401: 2.290 ss 403-411: 2.360 s 403: 2.290 xxxix

Criminal Process in Queensland

Police Powers and Responsibilities Act 2000 (PPRA) — cont s 403(4): 2.290 ss 405-406: 2.290 s 414: 2.280 s 415: 2.280 s 415(2): 2.280 s 416: 3.30, 3.40 s 417: 2.260 ss 418-419: 2.300 s 418: 2.300 s 418(6): 2.300 s 420: 2.350 ss 422-423: 2.360 s 422: 2.360 s 423: 2.360 s 423(2): 2.30 s 431: 2.340 s 431(2): 2.340 s 433: 2.340 s 435: 2.340 s 436: 2.330 s 437: 2.330 s 438: 2.330 s 439: 2.330, 3.30, 3.40 ss 442-443: 2.380 s 443: 2.380 ss 445-456: 2.400 s 445: 2.400 s 446: 2.400, 2.430 s 447: 2.400 ss 448-449: 2.400 s 448: 2.400 ss 450-452: 2.400 s 453: 2.400 s 454: 2.400 ss 457-466: 2.400 s 457: 2.400 s 461: 2.400 ss 467-468: 2.410 s 470: 2.410 ss 471-473: 2.410 s 472(4A): 2.410 s 474: 2.410 s 492: 2.460 s 493: 2.460 s 495: 2.420 s 497: 2.420 s 498: 2.420 s 499: 2.420 ss 503-506: 2.430 ss 509-511: 2.430 ss 512-521: 2.440 s 512: 2.440 s 516: 2.30 s 517: 2.410, 2.440 s 517(4): 2.440 s 519: 2.440 s 520: 2.440 ss 526-532: 2.460 ss 614-616: 2.70 s 614: 2.470 s 615: 2.470 s 615(1): 2.30

xl

s 616: 2.470 s 616(1): 2.470 s 616(2): 2.470 s 616(3): 2.470 ss 624-625: 2.30 ss 624-626: 2.60 s 624: 2.380 s 625: 2.380 ss 629-632: 2.60 s 633: 2.240, 2.480 s 635: 2.70 s 637: 2.70, 2.240 s 740: 2.100 s 742: 2.100 s 743: 2.100 s 790: 2.140, 2.180 s 791: 2.140, 2.180, 2.270, 2.480 ss 800-801: 2.70

Police Powers and Responsibility Regulations 2000 sch 3: 2.270

Police Powers and Responsibility Regulations 2012 sch 9 s 3: 2.70

Police Responsibility Code 2012 (PRC): 2.300 s 26: 2.340 s 31: 2.330

Police Service Administration Act 1990 s 10.21: 3.120

Queensland Criminal Code: 1.20, 8.80, 11.30, 13.220 s 1: 1.20, 8.200, 14.20 s 2: 5.60 s 3: 5.60 s 3(3): 5.90 s 3(4): 5.60 s 3(5): 5.80 s 5: 5.90 s 7(b): 7.130 s 7(c): 7.130 s 7(d): 7.130 s 8: 7.130, 14.110 s 9: 14.110 s 12: 1.110 s 16: 7.120, 7.250, 13.190 s 17: 1.70, 7.120, 7.140, 7.150, 7.160, 7.170, 7.210, 7.250 s 18: 14.20 s 22: 8.50 s 22(2): 1.90 s 23(1)(a): 1.50, 1.90, 13.70 s 23(1)(b): 1.50, 7.130, 13.30 s 24: 1.50, 1.90, 2.180 s 26: 1.70 s 27: 1.70, 1.90 s 36(2): 5.70 s 54A(4): 8.150 s 60A: 1.110 s 60A(2): 1.110

Table of Statutes

Queensland Criminal Code — cont s 60B: 1.110 s 60B(3): 1.110 s 60C: 1.110 s 60C(2): 1.110 s 63: 12.230 s 75: 12.230 s 76: 1.110 s 77: 3.140 s 77B: 1.110 s 77C: 1.110 s 119B: 13.70 s 123: 5.90, 7.170 s 129: 10.150 s 137: 2.170 s 210: 12.270 s 210(5): 1.70 s 215(5): 1.70 s 216(4): 1.70 s 218A: 11.310 s 218A(9): 1.70 s 219: 12.270 s 228D: 11.320 s 230: 1.70 s 236: 1.70 s 268: 1.50 s 269: 1.50 s 271: 1.50, 7.130 s 271(2): 1.90 s 272: 1.50, 1.90, 7.130 s 228DA(4): 1.110 s 254: 2.250 s 271(1): 13.70 s 271(2): 13.70 s 291: 7.130 s 293: 7.130 s 300: 7.130 s 302: 12.270 s 304: 1.70, 1.80 s 304A: 1.70, 1.90, 8.80 s 304A(1): 1.90 s 304B: 1.50 s 305: 8.80, 11.90, 12.270 s 305(2): 12.220 s 306: 12.230 s 310: 7.130, 8.80, 8.150 s 317: 6.130, 7.130, 7.250 s 320: 7.130, 11.90, 11.220 s 328A(2): 7.250 s 335: 5.90, 11.220 s 339: 2.280 s 340: 5.100 s 349: 12.230 s 352: 5.90 s 365: 2.190 ss 382-390: 2.190 s 382: 2.190 s 384: 2.190 s 398: 5.70, 5.100 s 408C: 5.70, 8.210 s 409: 6.120, 7.130 s 411: 7.130, 12.230 s 469: 5.70 s 552: 2.250

s 552A: 5.100, 7.20 s 552B: 5.100, 7.20 s 552BA: 5.100, 7.20 s 552BB: 5.100 s 552D: 5.100, 7.20 s 552D(2A): 7.20 s 552F: 5.120 s 552H: 5.100, 7.20 s 552I(3): 7.40 s 552J: 5.100 s 559: 9.130 s 560: 5.30, 6.100, 6.190 s 560(4): 5.120 s 561: 6.180, 6.190 s 563: 7.60, 8.200, 8.210 s 563(1): 8.200 s 563(3): 8.200 s 564(1): 6.120 s 564(2): 6.120 s 564(3): 6.120 s 565: 6.120 s 567(1): 6.150, 7.20 s 567(2): 6.150 s 568: 7.80 s 568(12): 6.170 s 569: 6.170 s 572: 6.130 s 573: 6.120 ss 575-589: 7.130 s 576: 7.130 s 590: 6.100, 6.190, 8.70 s 590(2): 6.100 s 590(3): 6.100, 6.190 s 590A: 8.70, 8.80 s 590A(1): 8.70 s 590A(2): 8.70 s 590A(3): 8.70 s 590A(7): 8.70 s 590AA: 3.20, 8.70, 8.80, 8.90, 8.120, 9.90 s 590AA(2)(b): 8.30 s 590AB(2): 8.30 s 590AB(2)(b): 8.30 s 590AC: 8.30 s 590AD: 8.30 s 590AE: 8.30 s 590AE(2): 8.30 s 590AE(3): 8.30 s 590AE(3)(b): 8.30 s 590AF: 8.30 s 590AH: 8.30 s 590AH(2)(c)(i)(A): 8.30 s 590AI: 8.50 s 590AJ(2)(a): 8.30 ss 590AJ(2)(b)-(d): 8.30 s 590AJ(2)(e): 8.30 s 590AJ(2)(f): 8.30 s 590AK: 8.30 s 590AL: 8.30 s 590AM: 8.50 s 590AN: 8.50 s 590AO(1): 8.30 ss 590AO(2)-(8): 8.30 ss 590AO(3)-(6): 8.30 s 590AP: 8.30 xli

Criminal Process in Queensland

Queensland Criminal Code — cont s 590AQ: 8.30 s 590AR: 8.30 s 590AS: 8.30 s 590AX: 8.30 s 590AAA: 8.50, 8.120 s 590AOA: 8.30 s 590AOA(1): 8.30 s 590AOA(2): 8.30 s 590AOA(3): 8.30 s 590AOA(5): 8.30 s 590AOA(6): 8.30 s 590AOA(7): 8.30 s 590AOA(8): 8.30 s 590AOA(11): 8.30 s 590B: 8.80 ss 590D-590F: 8.30 s 592: 9.60 s 592A(2)(a): 7.180 s 597A: 8.120 s 597B: 6.170, 8.120 s 597C: 8.120 s 598: 7.40, 7.170 s 598(2)(a): 8.120 s 600: 7.40, 8.120 s 601: 7.40 ss 602-603: 7.40 s 604(1): 8.120 s 613: 1.90 s 614: 8.130 s 614(2): 8.130 s 614(3): 8.130 s 614(6): 8.130 s 615(1): 8.130 s 615(5): 8.130 s 615A: 8.130 s 615B(1): 8.130 s 615C: 8.130 s 616: 10.20 s 617: 5.120, 8.190 s 617(1): 5.120 s 617(2): 5.120 s 617(3): 5.120 s 617(4): 5.90, 5.120 s 618: 8.100 s 619: 8.100, 8.190 s 620: 8.190 s 629(1): 7.40 s 631A: 7.40 s 632(3): 2.320 s 645: 1.90 s 648: 7.40, 8.120, 11.40 s 651: 5.80, 13.20, 13.30 s 659: 5.100 s 668: 13.20, 14.20 s 668B(1): 13.30 s 668D(1)(a): 13.30 s 668D(1)(b): 13.30 s 668D(1)(c): 13.30, 13.190 s 668E: 13.40, 13.80 s 668E(1): 14.20 s 668E(1A): 13.100, 13.150 s 668E(2): 13.30, 14.20 s 668E(3): 13.190

xlii

s 668F: 13.30, 14.20 s 669: 13.30, 13.160, 14.20 s 668A: 13.230 s 669A(1): 13.20, 13.30, 13.210, 13.220, 13.230, 13.240 s 669A(2): 8.210, 13.30 s 669A(2)(b): 8.210 s 669A(5): 13.30 s 669A(6): 13.20 s 669A(1A): 9.80, 13.30 s 669B: 13.30 s 669B(2): 13.30 s 671(1): 13.30 s 671(2): 13.30 s 671(3): 13.30 s 671A: 13.30 s 671B: 13.30, 14.30 s 671B(1)(c): 13.90 s 671D: 13.30 s 671D(1): 13.30 s 671D(1A): 13.30 s 671F: 13.30 s 671K: 13.30 s 672A: 8.30, 13.90, 14.20, 14.50 s 672A(a): 13.90, 14.20 s 672A(b): 14.20 s 675: 13.90, 14.20 s 677: 13.90, 14.20 s 678A: 7.220 s 678A(1): 7.210 s 678A(2): 7.220, 7.230 s 678A(3): 7.230 s 678B: 7.220, 7.230, 7.240, 7.250 s 678C: 7.230, 7.240 s 678C(2): 7.230 s 678D: 7.220 s 678E: 7.230, 7.240 s 678F: 7.220 s 678G: 7.220 s 678G(7): 7.220 s 678H(1): 7.240 s 678H(2): 7.240 s 678H(3): 7.240 s 678I: 7.220 s 678J: 7.220 s 678K: 7.240 s 700: 7.150 s 705: 6.80 s 706A: 7.100 Ch 5: 5.70 Ch 16: 7.230 Ch 42A: 5.100 Ch 58: 5.90 ss 545A-552: 2.250 Ch 58A: 5.30, 5.60, 5.100 Ch 60: 5.60 Ch 62: 8.30 Ch 62 Div: 8.30 Pt 6: 5.100

Regulatory Offences Act 1985 (ROA): 2.410, 5.70 s 5(2): 1.70, 5.70 s 5: 5.70

Table of Statutes

Regulatory Offences Act 1985 (ROA) — cont s 6: 5.70 s 6(2): 1.70, 5.70

Serious and Organised Crime Legislation Amendment Act 2016: 1.20, 3.140, 4.20, 12.250 s 2(2): 1.110 s 60A: 1.110 s 60BQCC: 1.110 s 60C: 1.110 s 143: 1.110 s 144: 1.110 s 288: 2.60

State Penalties Enforcement Act 1999: 12.100 Summary Offences Act 2005: 2.410, 5.110, 12.100 s 8: 12.150 s 9: 12.150 s 10D: 1.70, 1.110 s 15(3): 1.70 s 17(3): 1.70 s 23B(3): 1.70

Supreme Court Act 1995 s 203: 8.120

Tattoo Parlours Act 2013: 1.20, 3.140 Terrorism (Commonwealth Powers) Act 2002 s 102.3(1): 1.110 s 102.3(2): 1.110

Terrorism (Preventative Detention) Act 2005: 2.100 Transport Operations (Marine Safety) Act 1994 ss 202A-202B: 12.310

Transport Operations (Road Use Management) Act 1995: 2.60 s 79: 4.40, 5.110 s 79B: 11.90, 11.110, 12.310 s 114: 1.70

Vicious Lawless Association Disestablishment Act 2013: 1.20, 1.110, 3.140 Victims of Crime Assistance Act 2009 (VOCA): 1.20, 12.320, 15.10, 15.140 Ch 3, Pts 4–7: 15.200 Ch 12: 15.200 Pt 2: 15.140 Pt 3: 15.140, 15.200, 15.210 Pt 7: 15.140 Pt 9: 15.150 Pt 10: 15.150 Pt 12: 15.150

Pt 14: 15.200 Pt 16: 15.200 sch 2: 15.200 sch 3: 15.180, 15.200 s 5: 15.160 s 8: 15.140 ss 10-12: 15.140 s 15: 11.50, 15.140 s 15(8): 11.220 s 15A: 15.140 s 16: 15.140 s 25: 15.170 s 26: 15.160 s 27: 15.180 s 28: 15.200 ss 38-39: 15.200 s 41: 15.200 s 42: 15.200 s 45: 15.200 s 46: 15.200 s 49: 15.200 s 51: 15.150 s 52: 15.150 s 54: 15.150 s 63: 15.150 ss 64-69: 15.150 s 64: 15.150 s 78: 15.190 s 80: 15.190 s 81: 15.190 s 82: 15.190 s 85(2): 15.200 s 88: 15.200 s 90: 15.200 s 91: 15.200 s 93(2): 15.200 s 97: 15.200 s 98: 15.200 s 100: 15.200 s 100(2): 15.200 s 116: 15.200

Youth Justice Act 1992 (YJ Act): 11.10 sch 1: 11.160 s 13: 2.140 ss 14-21: 2.210 ss 22-24A: 15.40 s 33: 15.50 s 34: 15.50 s 34(3): 15.50 ss 35-36: 15.50 s 35(1): 15.50 s 36(5): 15.50 s 38: 15.50 s 57: 2.150 s 150: 11.250, 15.100 s 150(3): 11.50 s 327: 15.40

WACC, s 17: 7.140 Weapons Act 1990 s 155: 12.310

xliii

Criminal Process in Queensland

SOUTH AUSTRALIA

WESTERN AUSTRALIA

Criminal Law Consolidation Act 1935

Criminal Appeals Amendment (Double Jeopardy) Act 2012: 7.180

s 350(1A): 8.210

Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008: 7.180

CPA (WA) s 118(4): 8.130

UNITED KINGDOM TASMANIA Criminal Code s 40(2)(c): 13.220

Criminal Code Amendment Act 2008: 7.180 Justices Act 1959 s 56A: 6.60 s 57: 6.60

Criminal Appeal Act 1907 s 4(1): 13.110

Criminal Justice Act 2003: 7.200 Criminal Procedure and Investigations Act 1996: 8.20 Criminal Procedure and Investigations Act 2003: 8.20

VICTORIA

TREATIES AND CONVENTIONS

Charter of Human Rights and Responsibilities Act 2006

European Convention for the Protection of Human Rights and Fundamental Freedoms

ss 24-25: 9.20, 9.100 s 24: 9.20 s 25(1): 1.40 s 25(2)(c): 9.100

Crimes Act 1958 s 568(1): 13.110

Crimes (Criminal Trials) Act 1999: 8.20 Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011: 7.180 Sentencing Amendment Act 2010: 12.190 Sentencing Amendment (Abolition of Suspended Sentences & Other Matters) Act 2013: 12.190

xliv

Art 6: 9.20, 9.100

International Covenant on Civil and Political Rights: 9.20, 10.20, 12.290 Art 9: 12.290 Art 14: 9.100 Art 14(1)(c): 9.100 Art 14(5): 13.30

Universal Declaration of Human Rights Art 10: 9.20

United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power Art 6(a): 15.140

Introduction The criminal process focuses on the practical operation of the criminal law. Criminal procedure governs the lifecycle of a crime from investigation of the offending through to a charge, trial, sentence and appeal. While the title of this book suggests that the criminal process is segregated from substantive criminal law, it is actually the case that the procedures discussed in this book apply to each offence and defence discussed in substantive criminal law texts. The process is interwoven with the substantive law. Crime is not an abstract concept. This book presents a critical analysis of the criminal process.1 Two important texts inform the basis of our approach – “Findlay” and “Brown”.2 Unlike those books however, this text focuses on Queensland and recent developments in the state. Nevertheless, Queensland criminal law is not examined in a jurisdictional vacuum and where relevant, Queensland is evaluated by reference to other states and territories and to the Commonwealth. In many areas discussed in this book, the approach has been led by High Court decisions, which have brought all Australian jurisdictions increasingly into line. Like the Findlay and Brown texts, we accept that the machinery is relevant to the way in which we understand the implementation of criminal law, otherwise we would have a distorted view of the operation of the criminal law.3 This book asks how the relevant processes work, how they impact on the people involved in the criminal justice system and whether the process should impact in this way. These concerns were once the province of criminologists.4 Along with the traditional segregation between criminal law and criminal process, criminology remained outside, or on the fringes of, the law school curriculum. Criminology developed from the discipline of sociology and focuses on the study of crime, criminal behaviour and law enforcement. However, with increasing frequency, criminological studies assist lawyers in understanding the operation of criminal law, and have greatly influenced the consideration and development of the criminal process.5 Further, commentators, including researchers and the judiciary, increasingly fuse all three areas in their discussions of the operation, application and implementation of criminal law and process.6

1

2

3 4 5 6

For a discussion of the critical analysis of criminal law, see M Kelman, “Criminal Law: The Origins of Crime and Criminal Violence” and WJ Chambliss, “Towards a Radical Criminology” in D Kairys, The Politics of Law (Pantheon, New York, 1982) pp 214-229 and 230-241. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (Oxford University Press, South Melbourne (Vic) 2014); D Brown, D Farrier, D Neal and D Weisbrot, Criminal Laws (Federation Press, Annandale (NSW) 2015). Findlay et al, n 2, pp 1, 2; Brown et al, n 2, pp 1-2. S Hurwitz and K Christiansen, “Introduction”, Criminology (Fairleigh Dickinson University Press, New Jersey, 1983). See, eg, D McBarnet, Conviction: Law the State and the Constructions of Justice (Macmillan, London, 1981). The judgments of Kirby J provide many examples of this approach – see, eg, his judgment in Fardon v Attorney General for the State of Queensland (2004) 223 CLR 575; [2004] HCA 46 at

1

Criminal Process in Queensland

Without an understanding of criminal procedure, it is difficult to understand the reasons some matters go to court, while others do not. Many of the policy considerations that are not clearly set out in substantive criminal law become clearer when the procedures surrounding the criminal law are examined. For example, when do police officers or staff of the Office of the Director Public Prosecutions (ODPP) pursue a criminal prosecution? The procedural context is important in answering this question. A good illustration is provided by the decision whether to charge a 15-year-old with carnal knowledge of another 15-year-old pursuant to Criminal Code 1899 QCC(Qld), s 215. Such a matter would rarely be charged; generally, the prosecutors would not exercise their discretion to charge for policy reasons. In order to understand how criminal procedure defines the limits, application and implementation of the substantive criminal law, we need to understand criminal procedure, including sentencing, in a broad sense. This broad approach explains why, in this book, we have looked at issues such as criminal lawyers’ ethics, socio-legal research about pleading guilty and the potential for discrimination in the approach to policing offences. While the Criminal Code is fairly comprehensive on substantive law,7 it only scratches the surface in relation to criminal procedure. In Queensland, rules about the criminal process are located in a diverse range of statutes. The Code includes most of the rules relevant to the entering of the plea and the running of the trial and appeal in the higher courts.8 However, to understand the procedures relevant to matters heard in the magistrates’ courts, it is necessary to refer primarily to the Justices Act 1886 (Qld). In Queensland, many common law criminal process rules have been legislated and significantly updated over the past 20 years. Most of the rules relevant to policing, including the investigation and charge process, have been streamlined, updated and relocated to specific legislation. Rules related to policing are now largely found in the Police Powers and Responsibilities Act 2000. Bail, jury and sentencing matters are located in the conveniently named Bail Act 1980 (Qld), the Jury Act 1995 (Qld) and the Penalties and Sentences Act 1992 (Qld) respectively. The common law continues to be important in relation to most burden of proof issues and the concept of the “fair trial”. Many who study the criminal law are, for the most part, familiar with limiting their examination to statute law and the High Court and Court of Appeal case law. However, statistics demonstrate that over 96% of criminal matters in Queensland are finalised in the magistrates’ court.9 Most of these matters are resolved on a plea of guilty. This means that, generally, criminal law matters do not generate reported decisions. The practical effect of the criminal law on the magistrates’ court and the guilty plea has implications for the protections

7

8 9

2

[121] ff; see also PEasteal (ed) Balancing the Scales: Rape, Law Reform and Australian Culture (Federation Press, Sydney 1998), which brings together researchers from a range of backgrounds. BWright, Codifications of English Criminal Law, Imperial Projects and the Self-Governing Codes: The Queensland and Canadian Examples (The Queensland and Canadian Examples Research Seminar Series 2006, Law School, University of Queensland). See also the Criminal Practice Rules 1999 (Qld). Magistrates Court of Queensland, “Annual Report 2015-2016”, available at: http://www.cou rts.qld.gov.au/__data/assets/pdf_file/0005/498461/mc-ar-2015-2016.pdf.

Introduction

provided to the accused through various procedural rules. Drawing on criminological research, some of these implications are discussed throughout the text. While our liberal traditions embrace a notion of the rule of law, which stipulates that the law should be comprehensive, consistent and certain,10 commentators have shown how a formal approach to the equal application of legal rules may promote substantive injustice.11 It is partly for this reason that discretion is and must remain a lynchpin of criminal procedure and sentencing. This book constantly returns to the question of how discretion is exercised by judges and magistrates in the criminal justice system and on what basis they exercise that discretion. Sentencing practice provides a particularly good illustration of this issue where as a result of mandatory sentencing regimes discretion has recently been diminished. For example, a fine may penalise one offender but be insignificant to another. The penalties and sentencing legislation allows the sentencer to exercise their discretion in the allocation of fines and one of the matters the sentencer is formally able to take into account is the offender’s ability to pay.12 While in some contexts a period of imprisonment will operate as a strong individual deterrent, in other contexts it may have the opposite effect. For example, judges in the Northern Territory have recognised that young Indigenous men from Groote Eylandt may see imprisonment as a rite of passage and may commit crime in order to go to prison.13 Thus, in order for the criminal justice process to deliver justice, it is important that the sentencer is able to exercise discretion in response to relevant local considerations. “Fairness” is another central theme of this book. This concept, like the exercise of discretion, encompasses a concern with substantive justice. The purpose of procedural rules is to ensure a fair trial. The notion of ensuring a fair trial encompasses balancing fairness to the accused on the one hand and fairness to the community on the other hand. These two concerns demonstrate the tension implicit within the criminal justice system. While Voltaire’s adage that “it is better to risk saving a guilty man than to condemn an innocent one”14 operates on one side, on the other side there is an increasing need to evade risk and protect the community.15 In this text, we explore the legal safeguards that exist in the criminal justice process. It has been suggested that the High Court of Australia is developing a doctrine of fair trial.16 This concept is examined more closely in Chapter 9. This book provides an explanation and critique of the operation of the criminal law from charge to trial, conviction, sentencing and appeal. It also looks at some 10

See generally S Bottomley and S Bronitt, Law in Context (Federation Press, Sydney 2006) Part A.

11

A Hutchinson, Dwelling on the Threshold: Critical Essays on Modern Legal Thought (Carswell, Toronto, 1988) p 23. Penalties and Sentences Act 1992 (Qld), s 48. See Bara Bara v James [2000] NTSC 8. Voltaire, Zadig (1747), Ch 6. https://ebooks.adelaide.edu.au/v/voltaire/zadig/chapter6.html. Illustrated by indefinite detention provisions and criminal organisation policing; cf the increasing protection offered to the accused by virtue of the requirements of prosecution disclosure. See, eg, E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Butterworths, 2015) pp 769-808.

12 13 14 15

16

3

Criminal Process in Queensland

of the developments in victim compensation and restorative justice initiatives. In effect, we have attempted to set out the criminal process as a journey from the beginning (investigation) to the end (sentencing and appeal). During the journey, the investigation, interpretation and application of relevant statutes, guidelines and policies related to criminal procedure and sentencing will be explored.

4

CHAPTER 1 Proving Offences [1.10]

[1.40]

Sources of Criminal Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 [1.20] Queensland reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 [1.30] Interpreting the Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Proving an Offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 [1.50] The prosecution – general rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 [1.60] The accused – general rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 [1.70] Exceptions to the general rules – reverse onus defences . . . . . 17 [1.80] When is a reverse onus defence justified? . . . . . . . . . . . . . . . . . . . 19 [1.90] Mental infirmity and the proof rules . . . . . . . . . . . . . . . . . . . . . . . . 21 [1.100] Commonwealth provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 [1.110] Whittling down the Woolmington principles . . . . . . . . . . . . . . . . 23

SOURCES OF CRIMINAL PROCEDURE [1.10] Criminal law, including criminal procedure and sentencing, has been subject to significant review in Queensland in the past 27 years. The reform that has followed the reviews has generally been rather piecemeal and unfortunately, in Queensland, it has generally not been directed at achieving greater uniformity with other states and territories.

Queensland reforms [1.20] The Criminal Code Act 1899, the first Schedule of which comprises the Criminal Code (Qld) (QCC), was drafted by Sir Samuel Griffith1 and much of it remains either in its original form or continues to closely resemble the original form. The Griffith QCC has had a significant influence on the creation of similar legislation in other Australian jurisdictions, such as Western Australia and the Northern Territory, as well as overseas.2 The changes that have happened have for the most part occurred since 1990 as the QCC has been subjected to extensive review. The reviews have resulted in significant changes to criminal procedure, the introduction of new offences and the introduction of some offence specific (not of general application) excuses and defences. However most of the QCC excuses and defences that have broad application and the offences remain similar or the same as originally enacted. 1

2

See Sir Samuel Griffith, Draft of a Code of Criminal Law: Prepared for the Government of Queensland (Queensland Government Printer, Brisbane, 1897); R O’Regan, “Sir Samuel Griffith’s Criminal Code” (1995) Australian Bar Review 141. For an interesting portrait of Sir Samuel Griffith, see R Joyce, Samuel Walker Griffith (University of Queensland Press, 1984). G MacKenzie, “An Enduring Influence: Sir Samuel Griffith and his Contribution to Criminal Justice in Queensland” (2002) 2 QUT Law & Justice Journal 53; (2007) 26 University of Queensland Law Journal, 39; H Gibbs “The Queensland Criminal Code: From Italy To Zanzibar Address At Opening Of Exhibition Supreme Court Library” (Brisbane 19 July 2002) http://me dia.sclqld.org.au/schp/exhibitions/crimcode/20020719_Harry%20Gibbs.pdf.

[1.20] 5

Criminal Process in Queensland

During the time of the Goss Labor government, the Griffith QCC was to be repealed and replaced by the Criminal Code 1995, which was passed by the Queensland Parliament. The Goss reforms was heavily criticised3 and, following the change of State government in Queensland in early 1996, the new government resolved not to proclaim the Criminal Code 1995. Nevertheless, other legislation that had formed part of the criminal justice legislative package produced by the Goss government did come into operation, including the Jury Act 1995 (Qld)4 and the Criminal Offences Victims Act 1995 (Qld). The Criminal Offences Victims Act 1995 (Qld) has now been replaced by the Victims of Crime Assistance Act 2009 (Qld).5 Subsequently, the Borbidge National-Liberal Coalition government resolved to conduct its own review of the Criminal Code. Hence, in July 1996, the Criminal Code Advisory Working Group reported to the Attorney-General and on 3 April 1997, the Criminal Law Amendment Act 1997 came into operation. The reforms were generally not significant, although one reform instituted throughout the Code was that of increasing maximum penalties for many offences. In 1998, the Taskforce on Women and the Criminal Code was formed by the Queensland Beattie government and they presented their report in 2000. Recommendations in that report led to a number of changes to sexual offences in the QCC.6 There have also been significant reforms to police investigative powers. In November 1997, Parliament passed the Police Powers and Responsibilities Act 1997 (Qld), which was followed by the Police Powers and Responsibilities Act 2000 (Qld).7 Other aspects of Queensland criminal procedure have also been reformed including changes to the rules of double jeopardy in 20078 and new rules in respect of judge-alone trials and majority verdicts in 2008.9 In 2008, the Bligh Labor government appointed the Hon Martin Moynihan to review the civil and criminal justice system in Queensland. The key terms of reference with respect to criminal justice reform were the summary disposition of indictable offences, the reform of the committal proceedings process and sentencing discounts for an early plea.10 In December 2008, Moynihan handed down his report, which made 60 recommendations.11 The Queensland government responded and introduced significant change to disclosure requirements,12

3 4 5 6 7 8 9 10 11

12

See, eg, R O’Regan, “Law Reform and Politics” (1996) 14 Australian Bar Review 1. Discussed in Chapter 8. Discussed in Chapter 15. See Taskforce of Women and the Criminal Code, Report of the Taskforce on Women and the Criminal Code (2000) Discussed in Chapters 2 and 3. Discussed in Chapters 2 and 3. See Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld), discussed in Chapter 8. See Criminal Code and Jury and Other Amendment Act 2008 (Qld), discussed in Chapter 9. Discussed in Chapter 7. Hon Martin Moynihan, “Review of the Civil and Criminal Justice System in Queensland” (Queensland Government, Brisbane, 2008): http://www.justice.qld.gov.au/__data/assets/pd f_file/0020/26291/Review-of-the-civil-and-criminal-justice-system-in-Queensland.pdf, Viewed 07/04/2017. Discussed in Chapter 8.

6 [1.20]

Proving Offences

CH 1

limits on the availability of the committal13 and the expansion of the jurisdiction of the Magistrates Court.14 Other more focused reviews include the Queensland Law Reform Commission’s review of the excuse of accident and the defence of provocation and the review by Mackenzie and Colvin of homicides in the context of an abusive domestic relationship.15 The former review resulted in amendments to the QCC, which amongst other changes included reversing the onus of proof for the partial defence of provocation.16 The latter review resulted in the introduction of a new partial defence.17 The partial defence of killing in an abusive domestic relationship, when successfully raised, reduces what would otherwise be murder to manslaughter.18 A number of recent reviews have also resulted in reforms. In September 2014, the Newman Liberal National Party (LNP) established the Special Taskforce on Domestic and Family Violence in Queensland, which released its report Not Now, Not Ever: Putting an End to Domestic Violence in Queensland in February 2015.19 The Palaszczuk Labor government’s legislative response to the report’s 139 recommendations includes: increasing penalties for a breach of a domestic violence order; providing that a complaint for an offence can specify that it occurred in the context of domestic violence; mandating recorded convictions, where relevant, also recording that it is a domestic violence offence (QCC, s 1) and when a conviction is not recorded, mandating that the offence be recorded on the person’s criminal history as a domestic violence offence;20 enacting a new offence of Choking, Suffocation or Strangulation in a Domestic Setting;21 prescribing that when a person is convicted of a domestic violence offence, the conviction must, in the absence of exceptional circumstances, be treated as a circumstance of aggravation for the purpose of sentencing; and allowing a party to a prosecution to make a submission as to the appropriate sentence to be imposed.22 In October 2015, the Queensland Organised Crime Commission of Inquiry delivered its final report into the nature and extent of organised crime in the 13

Discussed in Chapter 6.

14 15

Discussed in Chapter 6. See Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of Provocation (2008) and G Mackenzie and E Colvin, Victims Who Kill Their Abusers: A Report on Defences (2009). See Criminal Code and Other Legislation Amendment Act 2011 (Qld). For other defence introduced to the QCC see Criminal Code (Palliative Care) Act 2003 (QCC, s 282A Palliative Care) and Criminal Code and Other Acts Amendment Act 1961 (QCC, s 304A Diminished Responsibility). See Criminal Code (Abusive Domestic Relationship Defence and Other Matter) Amendment Act 2010 (Qld) s 304B. Special Taskforce on Domestic and Family Violence in Queensland, Not Now, Not Ever: Putting an End to Domestic Violence in Queensland (February 2015): https://www.communiti es.qld.gov.au/resources/gateway/campaigns/end-violence/about/special-taskforce/dfv-rep ort-vol-one.pdf. Viewed 07/04/2017. Criminal Law (Domestic Violence) Amendment Act 2015 (Qld) ss 7, 14, 15, 18. For a discussion of non-fatal strangulation in the context of domestic violence see: H Douglas and R Fitzgerald, “Strangulation, Domestic Violence and the Legal Response” (2014) 36(2) Sydney Law Review 231. Criminal Law (Domestic Violence) Amendment Act 2016 (Qld) ss 3, 5, 6.

16 17

18 19

20 21

22

[1.20] 7

Criminal Process in Queensland

state23 and in December the same year the report from the statutory review of the Criminal Organisation Act 200924 was delivered. Finally, in March 2016 the Taskforce established to review Queensland’s organised crime laws delivered its report.25 The government responded to the three reports addressing organised crime by enacting the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) (Amendment Act 2016). The Act reforms aspects of the existing legislative regime that addresses the problem of organised crime. In particular, the Amendment Act 2016 reforms are directed at the raft of laws introduced by the previous government in 2013 which target “outlaw motorcycle gangs”.26 The most recent reforms to domestic violence laws and organised crime laws are addressed in [12.250] and other relevant sections of this book including below where the issue of proof is addressed.

INTERPRETING THE CRIMINAL CODE [1.30] The QCC continues to be an important source for rules about criminal procedure, especially where the particular offence will be dealt with in either the District Court or the Supreme Court. Thus, an understanding of how codes should be interpreted is important. According to Pearce, codification is an attempt to “gather together all the relevant statute and case law on a given topic and restate it in such a way that it becomes the complete statement of the law on that topic”.27 However, even as Sir Samuel Griffith drafted the QCC, he realised its limitations: It is assumed that the object of the process [of codification] is to reduce to writing the whole of the law upon a given subject, in such a manner that when the code becomes law every legal question which can arise upon the subject with which it deals will be provided for by its express language … [W]hen codification is judged by that standard, it is easy to show that the standard is not attained.28

It is a mistake to interpret the Code based on the presumption that it simply enacts the existing common law. Such an approach to interpretation has been 23

24

25

26

27

28

Queensland Organised Crime Commission of Inquiry Report (October 2015): http://www.orga nisedcrimeinquiry.qld.gov.au/__data/assets/pdf_file/0017/935/QOCCI15287-ORGANISED-CRI ME-INQUIRY_Final_Report.pdf. Viewed 11/04/2017. Department of Justice and Attorney-General, Review of the Criminal Organisation Act 2009 (December 2015): http://www.parliament.qld.gov.au/documents/tableOffice/TabledPapers/ 2016/5516T432.pdf. Viewed 11/4/17. Department of Justice and Attorney-General, Taskforce on Organised Crime Legislation (March 2016) http://www.justice.qld.gov.au/__data/assets/pdf_file/0017/463022/report-of-t he-taskforce-on-organised-crime-legislation.pdf. Viewed 11/04/2017. See Criminal Law (Criminal Organisations Disruption) Amendment Act 2013; Tattoo Parlours Act 2013; Vicious Lawless Association Disestablishment Act 2013; Criminal Law (Criminal Organisations Disruption) and Other Legislation Act 2013; Criminal Code (Criminal Organisations) Regulation 2013. See D Pearce, “Statutory Interpretation in Australia” (Butterworths, 1988) p 160; A Ashworth, “Interpreting Criminal Statutes: A Crisis of Legality?” (1991) 107 Law Quarterly Review 419 at 420. For an extract of Griffith’s draft letter to the Queensland Government, see T Crofts and K Burton, The Criminal Codes: Commentary and Materials (6th ed, Lawbook Co., Sydney, 2009) p 4.

8 [1.30]

Proving Offences

CH 1

endorsed by the High Court in Brennan v The King,29 where the court found that the Code was intended to replace the common law and that “its natural meaning should be construed without any presumption that the code intended to do any more than restate the existing law”. Later, in Stuart v The Queen,30 Gibbs J noted that: [I]t should be remembered that the first duty of the interpreter of [the code’s] provisions is to look at the current text rather than at the old writing which has been erased; if the former is clear, the latter is of no relevance.

Gibbs J was referring here to the previous versions of law that the Code had been written to encapsulate. In certain situations, however, the meaning of a word or provision may be ambiguous, a particular word may have acquired a technical meaning or there may be a gap in the Code.31 In all these situations, the courts have found that it is appropriate to look to the common law, including decisions in non-code jurisdictions, to ascertain the legal position.32 In Barlow v The Queen, Kirby J found that where quandaries about interpretation arise, the Code provision should be read in a way that favours consistency with other jurisdictions and with justice in mind.33 One of the clear gaps in the QCC is in the burden of proof rules.34 These rules are discussed below.

PROVING AN OFFENCE [1.40] The presumption of innocence underpins the rules about proving most crimes in all Australian jurisdictions. Ashworth has observed that the presumption is justified: [B]y reference to the context of the criminal trial – with fundamental liberties at stake for the defendant – and more widely the context of a criminal justice system in which enormous powers over individuals may be wielded by the State … [T]here is considerable imbalance of resources between the state and the defendant … the system is known to be fallible, and above all, because conviction and punishment constitute official censure of a citizen for certain conduct and respect for individual dignity and autonomy requires that proper measures are taken to ensure that such censure does not fall on the innocent.35

29 30 31

32 33 34 35

(1936) 55 CLR 253 at 263. (1974) 134 CLR 426 at 437. R v Barlow (1997) 188 CLR 1 at 12, 19; aff’d Stuart v The Queen (1974) 134 CLR 426 at 437 per Gibbs J; see also R v LK (2010) 241 CLR 177 at 220 [97] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. See, for eg, R v Scarth [1945] St R Qd 38 at 43-44, 47-49; R v Raabe [1985] 1 Qd R 115; Mullen v The King [1938] St R Qd 97; see also R v Barlow (1997) 188 CLR 1 at 19-20 per Kirby J. R v Barlow (1997) 188 CLR 1. These matters are discussed in A Ashworth, “Interpreting Criminal Statutes: A Crisis of Legality?” (1991) 107 Law Quarterly Review 419 at 427-432. Mullen v The King [1938] St R Qd 97; Abbott v Western Australia (2005) 152 A Crim R 186; [2005] WASCA 42. A Ashworth, “Four Threats to the Presumption of Innocence” (2006) 10 International Journal of Evidence and Proof 241 at 251; K Ong, “Statutory Reversals of Proof: Justifying Reversals and the Impact of Human Rights” (2013) 32 University of Tasmania Law Review 248 at 250-253. [1.40] 9

Criminal Process in Queensland

The right to be presumed innocent is one of a bundle of rights that collectively constitute the right to a fair trial.36 The presumption is expressed in international declarations and treaties37 and in some jurisdictions such as Canada and France, it is entrenched in their constitutional Bill of Rights.38 Victoria and the Australian Capital Territory have followed the New Zealand model by including the presumption in a statutory Bill of Rights.39 In the first High Court decision to consider the Victorian Charter, members of the Court agreed with the Victorian Court of Appeal that the relevant reversal of onus provision is inconsistent with the presumption of innocence.40 The relevant provision, which is found in the Victorian controlled drugs act, is similar to provisions found in other drugs acts, including the Drugs Misuse Act 1986 (Qld). It states that a person is deemed to be in possession of a substance which is found in premises the person occupies unless the person can satisfy the court that they were not in possession of the substance.41 Many of the rules in relation to proving a crime have been developed with the assumption that a judge and jury will try the person. In the context of the jury trial, the distinction between law and fact is more important. The judge’s role is to decide on the law, while the role of the jury is to decide the facts – although the distinction between law and fact is not always easily made.42 However most people charged with criminal offences plead guilty and many are unrepresented in the Magistrates Courts.43 If they do contest the charge, the magistrate, sitting alone, will decide on both the law and facts of the case.44 A number of writers have suggested that in the majority of cases the proof rules are not applied strictly, particularly in the Magistrates Courts. This has led some to suggest that the reality

36

37 38

39

40

41 42 43 44

J Gans, T Henning, J Hunter and K Warner, Criminal Process and Human Rights (The Federation Press, 2011) p 379; A Gray, “Constitutionally Protecting the Presumption of Innocence” (2012) 31 University of Tasmania Law Review 132 at 148-153; See Chapter 9. See, eg, Universal Declaration of Human Rights, Art 11 and the International Covenant on Civil and Political Rights, Art 14(2). See, eg, Canadian Charter of Rights and Freedoms, s 11(d); Declaration of the Rights of Man and of the Citizen (France), Art 9. See also A Gray, “Presumption of innocence in Australia: A threatened species” (2016) 40 Criminal Law Journal 262 at 270-274. See New Zealand Bill of Rights Act 1990 (NZ) s 25(c); Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(1); Human Rights Act 2004 (ACT) s 22(1). See also Legal Affairs and Public Safety Committee, Inquiry Into a Possible Human Rights Act for Queensland, Report No 35 June 2016. Momcilovic v R (2011) 245 CLR 1 at 60 [79] per French CJ, 200 [511] per Crennan and Kiefel JJ and 245 [673] per Bell J (the Court held that the relevant section did not apply to the offence that was the subject of the appeal). See also R v Lambert [2002] 2 AC 545, [35]; R v Oates [1986] 1 SCR 103. See Drugs Poisons and Controlled Substances Act 1981 (Vic) s 5; Drugs Misuse Act 1986 (Qld) s 129. See, eg, the discussion in Ostrowski v Palmer (2004) 218 CLR 493. The implications of pleading guilty are discussed in Chapter 6. P Rush, Criminal Law (Butterworths, 1997) p 44; see also Clancy v Superintendent of Traffic [2008] QDC 73 for discussion of a magistrate’s error with respect to burden of proof matters.

10 [1.40]

CH 1

Proving Offences

is that a presumption of guilt is infused throughout the criminal justice system.45 Despite this, the same proof rules apply at all levels of the court system. In the adversarial system, the trial has been likened to a contest and the proof rules set up the rules of the contest.46 These rules clarify who is required to prove what, and to what standard or level they are required to prove the matter, in order to persuade the trier of fact. The QCC is silent on the question of proof rules, and the courts have thus followed the common law.47 Proof issues can be divided into two: • the legal burden (or persuasive onus); and • the evidential burden (or evidentiary onus). Both of these burdens will be considered as they apply first to the prosecution and then to the defendant.

The prosecution – general rules [1.50] The prosecution generally has the legal burden of proving all of the elements of the criminal offence and of disproving any excuses raised by the defendant.48 Although it is common to use the term “defences” for any matter of exculpation, the term excuses or grounds of exculpation should be used where the prosecution bears the legal burden of proving the matter beyond reasonable doubt.49 These excuses include: • provocation in assault cases:50 QCC, ss 268 and 269; • self-defence:51 QCC, ss 271 and 272; • killing for preservation in an abusive domestic relationship: QCA s 304B; • accident:52 QCC, s 23(1)(b);

45

46 47 48

49 50 51 52

See D Brown, D Farrier, L McNamara A Steel, M Grewcock, J Quilter and M Schwartz, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, 2015) pp 240-242. See D Cairns, Advocacy and the Making of the Adversarial Criminal Trial (Clarendon Press, 1998) p 103. Mullen v The King [1938] St R Qd 97 followed. Dixon J in Mullen suggested an alternative interpretation of the QCC in relation to this issue, but this has not been pursued. Note that in some literature “defences” are referred to as excuses and justifications. Eg, accident is generally understood to be an excuse while self-defence is considered to be a justification. While an excuse encapsulates conduct that is not generally socially approved but is forgivable, a justification describes socially approved conduct: for discussion, see Law Reform Commission of Western Australia, Review of the Law of Homicide, Final Report (Project 97, 2007) pp 16-17. However, as the distinction has little practical relevance in this text the term “defence” is used as a reference to any matter of exculpation. However, in the context of the discussion of proof, the word excuse is used in reference to a matter where the prosecution bears the onus of proof and the word defence is used in reference to matters where the accused bears the onus of proof. See CTM v R (2008) 236 CLR 440 at 446 [6]; Loveday v Ayre [1955] Qd R 264 at 267-8. R v Major [2015] 2 Qd R 307 at 312 See R v Muratovic [1967] Qd R 15; Graham v R [2016] HCA 27 at [9]. See R v Skerritt (2001) 119 A Crim R 510 at 516 and CTM v R (2008) 236 CLR 440 at 447, [8] per French CJ, Gummow, Crennan and Kiefel JJ. [1.50] 11

Criminal Process in Queensland

• mistake of fact:53 QCC, s 24; and • (sane) automatism:54 QCC, s 23(1)(a). Generally, excuses are identifiable as they state that in prescribed circumstances a “person is not criminally responsible” or they declare certain behaviour to be “lawful”.55 The Code excuses are written from the accused’s perspective; they state what must be raised if the accused is to successfully rely on the excuse. The use of the word “or” in an excuse indicates an alternative basis for raising the excuse while the word “and” is cumulative in that it indicates an additional matter[s] that must be raised. However, when it comes to the prosecution disproving an excuse the terms “or” and “and” have the opposite meaning. From the prosecutions perspective the word “or” as expressed in an excuse indicates two or more elements each of which must be disproved, while the word “and” indicates an alternative basis for disproving an excuse.56 The proof rules do not apply in the same way to all exculpatory provisions. Sometimes, either expressly or by construction, the burden of proof shifts to the accused. These types of provisions are described here as defences or “reversal of onus defences”. The burden of proof associated with defences is discussed further (at [1.70]). Arising from the presumption of innocence is the foundation principle that a person cannot be held criminally responsible unless the prosecution proves its case (and disproves any excuse) to the high standard of “beyond a reasonable doubt”.57 Even strong suspicion raised by the evidence is not enough to displace this rule.58 This principle has been described as a “golden thread” running through the criminal law. In Woolmington’s case,59 the accused was charged with the murder of his wife from whom he was separated. It was alleged that Woolmington went to the house where the victim was living with a gun hidden inside his coat and shot her. There were no witnesses and the accused contended that the shooting was an accident. The trial judge directed the jury that unless the accused could satisfy them that the killing was an accident, he should be found guilty. Woolmington was convicted of murder and he was sentenced to death by hanging. Woolmington appealed on the basis that the judge’s direction suggested he was required to prove that it was an accident. He argued that the accused was not required to prove either the elements of the offence or that it was an accident. The House of Lords reviewed the decision because it raised an exceptional point of law. In the review, Viscount Sankey famously commented (at 481-482): Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject to what I have already said as to the defence of insanity and subject also to any statutory

53 54

56 57 58

R v Wilson [2008] QCA 349 and R v Falconer (1990) 171 CLR 30 at 63 per Deane and Dawson JJ. See R v Falconer (1990) 171 CLR 30 at 41-43 per Mason CJ, Brennan and McHugh JJ, at 61 per Deane and Dawson JJ, and at 68 per Toohey J. Compare for example CCA s 271 with s 272. Section 304B of the CCA is an exception as it is a partial excuse that reduces murder to manslaughter. See, eg, R v Hoet [2016] QCA 230. Dawson v The Queen (1961) 106 CLR 1 at 17. Mullen v The King [1938] St R Qd 97 at 121 per Douglas J.

59

Woolmington v Director of Public Prosecutions (UK) [1935] AC 462 at 481-482.

55

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exception … If at the end of and on the whole of the case there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

The standard for the legal onus, “beyond reasonable doubt”, has often been the subject of appeal. The case law has reiterated that the phrase is a “time-honoured formula” and should be left to the jury without explanation.60 Judges should not illustrate or explain the phrase;61 the words simply mean what they say.62 Attempts to define the phrase have been unsuccessful. For example, in the Goncalves case it was decided that “absolute certainty” did not provide an appropriate definition.63 In Punj’s case, where it was emphasised that the question of whether there is a reasonable doubt is a matter for the jury, the court stated that “the vital point is that the accused must be given the benefit of any doubt considered reasonable”.64 In Green v R,65 the trial judge told the jury that it had to be satisfied “beyond reasonable doubt”, but then described that expression variously as being “the stage at which the jury either had no doubt at all” or that “there was something nagging at the back of their minds which made them hesitate, which, when examined, was shown not to be a rational doubt”. The High Court referred to a number of cases in which trial judges had been admonished for “needlessly” explaining the classical statement of the nature of the onus of proof resting on the prosecution, and said: It is thus remarkable that in this instance the learned trial judge, undeterred by the failures of illustrious predecessors, has made a new endeavour to explain that which requires no explanation and to improve upon the traditional formula. So far from succeeding where they did not, he has, in our opinion, not only confused the jury but has misdirected them.66

Despite clear warning not to illustrate or explain the phrase, occasionally trial judges embark upon such an endeavour. Perhaps caught up in the enthusiasm of an impending Ashes cricket series the trial judge in R v CBK67 compared the term beyond reasonable doubt with an umpire’s leg before wicket (LBW) decision. His Honour concluded that a criminal trial is similar to an LBW decision in that “the benefit of the doubt goes to the defendant.” Unsurprising the Court of Appeal, in overturning the conviction, criticised the trial judge for trivialising the task of the jury and it correctly pointed out that the trial judge’s direction probably made no sense to members of the jury who were not sports loving.68

60 61 62 63 64 65 66 67

Dawson v The Queen (1961) 106 CLR 1 at 18. R v Wilson (1986) 22 A Crim R 130. R v Punj (2002) 132 A Crim R 595. Goncalves v The Queen (1997) 99 A Crim R 193. R v Punj (2002) 132 A Crim R 595 at 598. Green v The Queen (1971) 126 CLR 28. Green v The Queen (1971) 126 CLR 28 at 32. R v CBK [2014] QCA 35 at [4].

68

[2014] QCA 35 at [7]-[10]. [1.50] 13

Criminal Process in Queensland

It is also important to note that despite the fact that a judge’s direction on proof may be correct except for one small part of the direction, this “small part” may be enough to impair the fairness of the accused’s trial.69 In Queensland, the Supreme Court has developed a Benchbook to assist judges in giving appropriate directions. In relation to the concept of “reasonable doubt”, the Queensland Benchbook recommends that a judge should not attempt to explain the term unless the jury seeks some assistance as to its meaning. In such cases, the following direction will suffice:70 A reasonable doubt is such as you, the jury, consider to be reasonable on a consideration of the evidence. It is therefore for you and each of you whether you have a doubt that you consider reasonable. If at the end of your deliberations you as reasonable persons, are in doubt about the guilt of the defendant, the charge has not been proved beyond reasonable doubt.

Although the suggestions for directions and summing up set out in the Benchbook are usually followed by trial judges in Queensland, the introduction to the Queensland Benchbook does point out that the forms of words used are not intended to be used on every occasion. While it has been observed that the Queensland Benchbook is a valuable aid to judges, it is not intended to be “an inflexible and all-encompassing code”.71 Cases may need to be approached in different ways depending on their facts or context, and directions and summing up should be adapted to fit each individual case.72 The High Court in Pollock v R emphatically stated that trial judges must not stridently adhere to a model direction. In reference to the Benchbook’s model direction on provocation, which included a sevenfold test, the High Court stated that: In every case in which provocation is raised it is necessary for the trial judge to explain the concept and the ways in which the prosecution may eliminate it. Model directions, when appropriately adapted to the case, may assist trial judges in this task, but model directions must not be used in a way that distracts attention from the central task of the judge in instructing the jury. That task is to identify the real issues in the case and to relate the directions of law to those issues. The seven propositions identified by the Court of Appeal in the earlier appeal in this matter were not intended to be used as a template for jury directions. That they came to be included in the Bench Book may explain their use by the trial judge and trial counsel’s acquiescence in that course. But, as these reasons explain, their use in this case misdirected the jury.73

69

70

See, eg, Robinson v The Queen (1991) 180 CLR 531 at 535 per Mason CJ, Brennan, Deane, Toohey and McHugh JJ, where the trial judge correctly addressed the jury on the onus and standard of proof but went on to suggest that, because the accused had a great interest in the outcome of the case, his evidence should be particularly carefully scrutinised. This was found to impair the fairness of the trial. Supreme Court of Queensland – The Queensland Supreme and District Courts Benchbook, p 57. For a copy of the Benchbook, see: http://www.courts.qld.gov.au/court-users/practitioners/b enchbooks. Viewed 11/04/2017. Similar tools exist in other jurisdictions. See also R v CBK [2014] QCA 35 at [11]-[12].

71 72

R v Clarke (2005) 159 A Crim R 281 at 290 per McMurdo P. See the recommendations of the Queensland Law Reform Commission, A Review of Jury Directions, Report No 66, 2009, at [9.130].

73

(2010) 242 CLR 233 at 251-252, [67].

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Similarly in Darkan v R, it was noted that an erroneous direction, based on one found in the Queensland Benchbook, had been made in the trial.74 The established basis for the high standard associated with the legal onus of beyond reasonable doubt, can be explained by Blackstone’s classic formula: Better that ten guilty persons escape than that one innocent person suffer.75

Although this was said during a period when capital punishment applied to murder and the outcome was irreversible, it is still a well-guarded concept, at least rhetorically. This approach to proof reflects the fact that the state has far greater resources at its disposal than does the accused, so the burden should be left to the state. For example, the state, in investigating and prosecuting a crime, can mobilise the police service. It is therefore only proper that the prosecution must prove all the elements of the offence and disprove any excuse raised beyond a reasonable doubt. The prosecution must also satisfy the evidentiary onus in relation to proving all the elements of the crime being prosecuted. This means that the prosecution must present evidence to support each element of the crime being prosecuted.76 The question of whether the evidentiary onus has been satisfied is a matter for the judge. In this respect, the judge acts as a kind of gatekeeper. The judge must decide whether there is evidence fit to go to the jury or evidence that warrants the attention of the jury.77 If the matter is not raised on the evidence, the judge will not allow it to go to the jury. If there is appropriate evidence, the judge will direct the jury that they can consider it.78 This aspect of the proof rules places an obligation on the prosecution to call, or point to, evidence of the matter that must be proved. For example, in a situation where the accused is charged with common assault, the elements of common assault under QCC, s 245, include the application of force, without consent. The prosecution will usually call the victim to give evidence about their experience, including evidence on the issue of consent. Although the prosecution also has the legal onus of negating excuses beyond a reasonable doubt, this does not mean that the prosecution must bring evidence to meet every such excuse that could possibly arise in relation to the offences charged.79 Rather, the prosecution will need to negative only those excuses that are arise on the evidence. Furthermore, in order to satisfy their burden of negativing excuses, the prosecution must negate only one, of the cumulative element of a relevant defence in order to negative the excuse.

74 75 76 77

78 79

See Darkan v The Queen (2006) 227 CLR 373; R v Hayes [2008] QCA 371. W Morrison (ed), Blackstones Commentaries on the Laws of England (Cavendish, London, 2001) p 358. Some statutory exceptions and clarifications exist here: see, for eg, Transport Operations (Road Use Management) Act 1995 (Qld) s 120. E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Butterworths, 2015) pp 16-17; see also Braysich v R (2011) 243 CLR 451 at 452-454, [31]-[33] per French CJ, Crennan and Kiefel JJ for a good discussion of the evidentiary onus. R v Menniti [1985] 1 Qd R 520; (1984) 13 A Crim R 417 at 425. Braysich v R (2011) 243 CLR 451 at 454, [36] per French CJ, Crennan and Kiefel JJ; see also R v Lobell [1957] 1 QB 547 at 551. [1.50] 15

Criminal Process in Queensland

The accused – general rules [1.60] Generally, the accused is not required to prove or disprove anything. This position is related to another fundamental thread in the criminal law, the accused’s right to silence and privilege against self-incrimination.80 In most cases, this right extends from initial contact with police through to the trial.81 However, the evidential onus rests with the accused in relation to matters of excuses and defences. The accused may satisfy the evidential onus by presenting evidence that provides a “sufficient foundation”,82 or evidence that enlivens the issue83 for the excuse or defence claimed. For example, the evidential burden may be satisfied by the accused giving or calling evidence or through cross-examination of the prosecution evidence.84 The accused person does not necessarily need to testify in order to raise an excuse or defence.85 The evidentiary burden of raising the excuse or defence may occur on the prosecution case.86 However, in CTM v R87 the High Court held that the appellant’s out-of-court statement to police was insufficient to satisfy the evidential burden. The appellant was convicted of sexual intercourse with a girl under the age of 16. In an interview with police, he said that he believed the girl to be in grade 10 at school and to be 16 years of age. At trial, the defence denied that sexual intercourse occurred and the appellant neither gave evidence nor was the girl cross-examined as to what she said, if anything, about her age or what grade she was in at school. The majority of the High Court held that as the evidential onus had not been satisfied, the trial judge therefore had correctly not instructed the jury on the excuse of reasonable mistake of fact.88 The decision is significant as it means that the defence must enliven an excuse or defence by presenting evidence or by means of its cross-examination even where the excuse or defence is inconsistent with its primary case at trial.89 In order to advise the jury whether they should consider a particular excuse or defence, the judge must consider all the evidence and decide whether the excuse or defence is in fact raised on the evidence. In deciding this, the judge is required to consider the version of events most favourable to the accused.90 If the judge finds that no reasonable jury could hold the evidence sufficient to raise a reasonable doubt, the judge should withhold the excuse or defence from the jury’s

80

See Queensland Law Reform Commission, The Abrogation of the Privilege Against SelfIncrimination, Report No 59 (2004) p 14.

81 82 83

This is discussed in Chapter 2. P Crofts and D Barker, Essential Criminal Law (Cavendish Publishing, Sydney, 2005) p 9. CTM v R (2008) 236 CLR 440 at 496 [194] per Hayne J.

84 85

R v Buttigieg (1993) 69 A Crim R 21 at 27. Lee Chun-Chuen v The Queen [1963] AC 220 at 233; Van Den Hoek v The Queen (1986) 161 CLR 158 at 169. He Kaw Teh v The Queen (1985) 157 CLR 523 at 592. (2008) 236 CLR 440. (2008) 236 CLR 440 at 456-457 [36]-[39] per Gleeson CJ, Gummow, Crennan and Kiefel JJ and 496 [194] per Hayne J. See (2008) 236 CLR 440 at 472-476 [101]-[119] for Kirby J compelling dissenting judgment. Braysich v R (2011) 243 CLR 451 at 457 [47]; Stingel v The Queen (1990) 171 CLR 312 at 318, see also R v Menniti [1985] 1 Qd R 520; (1984) 13 A Crim R 417.

86 87 88 89 90

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Proving Offences

deliberations.91 However, the judge should leave the issue to the jury if he or she is in the least doubt about whether the evidence is sufficient.92 Evidence may seem weak or tenuous, but as long as the evidence supports a reasonable possibility of the excuse or defence, it should be left to the jury to consider.93 Even when an excuse or defence has not been overtly raised by the accused and/or is inconsistent with those that have been overtly raised, where there is evidence of an excuse or defence, it is the duty of the judge to leave the matter to the jury.94 This last principle is important in situations, for example, where the accused being prosecuted with an assault offence argues his or her case on the basis of self-defence, and in the process adduces evidence for the defence of provocation. In such a situation, the judge should put both matters to the jury for its consideration. The accused does not have to prove that their version of events is true; rather, the accused usually seeks to raise doubts about the prosecution story by presenting an alternative story. This means that a finding by the jury or the magistrate of “not guilty” is not necessarily a finding that the crime was not committed, but rather a finding that there is a reasonable doubt about whether it was committed by the accused and therefore the accused remains innocent. This may be an important distinction, especially from a victim’s perspective. Where the defence present evidence in support of an alternative story, a trial judge must not direct a jury that it must decide which of the alternative stories it believes. Where the alternative story enlivens an excuse, the question is not whether the jury believes the defence’s story but whether the prosecution has, beyond reasonable doubt, negatived the excuse as a possibility.95

Exceptions to the general rules – reverse onus defences [1.70] There are some exceptions to the general rules set out above. In Woolmington’s case, Viscount Sankey pointed to the exception of insanity and other statutory exceptions. In such matters, the accused may have both the evidential onus and legal burden. In situations where the accused has the legal burden of proving a matter, the civil standard of proof is applied. This is a lower standard and it is expressed as being “on the balance of probabilities”.96 In Queensland a substantial number of defences (reverse onus defences) have been created. Where the accused decides to raise a defence, they will have both the evidentiary burden – that is, the obligation of enlivening the defence – and the legal burden. Defences can take one of a number of different legislative forms. 91 92

Stingel v The Queen (1990) 171 CLR 312 at 333. (1990) 171 CLR 312 at 334.

93 94

For a discussion of self-defence, see R v Youssef (1990) 50 A Crim R 1 at 3. Stingel v The Queen (1990) 171 CLR 312 at 333, 334. See also Supreme Court of Queensland – The Queensland Supreme and District Courts Bench Book, No 61B, http://www.courts.qld.gov .au/__data/assets/pdf_file/0009/86067/sd-bb-61b-defence-not-raised-by-counse-but-raisedon-evidence.pdf. Viewed 11/04/2017. See Murray v R (2002) 211 CLR 193 at 201-202 [23] per Gaudron J, 212-213 [56]-[57] per Gummow and Hayne JJ and 216-218 [71]-77] per Kirby J (although his Honour held that in the context of the direction read as a whole there had not been a “material error”).

95

96

R v Carr-Briant [1943] 1 KB 607; Sodeman v The King (1936) 55 CLR 192 at 233. [1.70] 17

Criminal Process in Queensland

For instance, it is a defence where the accused must disprove a presumption of law. An example is that, pursuant to QCC, s 26, every person is presumed to be of sound mind. However, the accused will have a defence if he or she can prove that his or her mind was not sound pursuant to QCC, s 27. Thus, QCC, s 27 provides for a reverse onus defence of insanity because it requires the rebuttal of the presumption of sound mind: QCC, s 26. Some defences express in unambiguous terms that the onus of proof is on the accused. For example, the partial defences of provocation (QCC, s 304) and diminished responsibility (QCC, s 304A) both state that “it shall be for the defence to prove that the person charged is, by virtue of this section, liable to be convicted of manslaughter only”. Similarly, the offence of “disturbing religious worship” (QCC, s 207) explicitly states that “any person who wilfully and without lawful justification or excuse, the proof of which lies upon the person”, disturbs religious worship, is guilty of an offence.97 Some statutory provisions use more ambiguous language to reverse the onus of proof. Typically, such provisions state that it is a “defence to prove” something or that it is a defence to “show” something as specified by the legislation. For example in relation to the offence of “carnal knowledge with children under 16”, the provision states that it is “a defence to prove that the accused person believed, on reasonable grounds, that the child was of or above the age of 16 years”: QCC, s 215(5).98 Similarly the “former conviction or acquittal” provision (QCC, s 17) states that “[i]t is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted”. There are a number of other similarly worded provisions in the QCC and other statutes.99 Deeming provisions also use similar language to reverse the onus of proof. Deeming provisions and presumptions are distinguishable on the basis that in the case of the former there is no direct correlation between what is deemed and what must be proved to establish the defence, whereas in the case of the latter there is a direct correlation between what is presumed and what must be proven to displace the presumption; (see above). For example, the deeming provision found in the Drugs Misuse Act 1986 (Qld) states that an occupier or person concerned in the management or control of a place is deemed to be in possession of dangerous drug found in or on that place. The defence is established not by proof that the physical or mental element of the offence of possession100 cannot be established

97

For other examples, see “Common Nuisances” (QCC, s 230); “Misconduct with Regard to Corpses” (QCC, s 236); and Summary Offences Act 2005 (Qld) ss 10D, 15(3), 17(3) and 23B(3).

98 99

See R v Cole (1994) 77 A Crim R 91. See also “Indecent Treatment of Children Under 16” (QCC, s 210(5)); “Abuse of Intellectually Impaired Persons” (QCC, s 216(4)); “Using the Internet etc to Procure Children Under 16” (QCC, s 218A(9)); mistake of fact in respect to dangerous drugs and related matters (Drugs Misuse Act 1986 (Qld) s 129(1)(c)). See also Regulatory Offences Act 1985 (Qld) ss 5(2) and 6(2). The physical element of possession is defined in the CCA, s 1 as actual or constructive control of the thing. The mental element of possession of a dangerous drug (Drugs Misuse Act 1986 (Qld) s 9) is knowledge that the person has the object or thing: see R v Clare [1994] 2 Qd R 619; Tabe v R (2005) 225 CLR 418 at 427–428, 463–464.

100

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but by the more onerous task of proving that the accused “neither knew nor had reason to suspect that the drug was in or on that place.”101 Finally, some statutory provisions state that material is assumed to be evidence of a matter. It will then be for the accused to present evidence that contradicts the assumption. For example, certified images taken by police detection devices – for instance “red-light” cameras – are assumed to be accurate and are evidence of time, location and the things depicted in the image. The accused must present evidence to support any claim that the equipment is inaccurate.102 The principle underlying this approach was discussed by the High Court in Gilson’s case. The court noted that the point of Woolmington was to be practical and protective, rather than a device for the guilty to escape by raising a dilemma of proof between offences.103

When is a reverse onus defence justified? [1.80] There are a number of arguments that should be considered to determine whether the reversal of the legal onus of proof is justified.104 One argument is that the interests in protecting the community should be balanced against the rights of the individual. The English courts expressed this balance in terms of a proportionality test which requires the risk of wrongful conviction to be weighed against the community’s interest in ensuring perpetrators are punished.105 Where the offence is particularly serious and has the potential to have a significant impact on the broader community, it has been argued that a reverse burden may be appropriate – for example, Ashworth has suggested that threats such as terrorism and human trafficking may support a move towards reverse burdens.106 However, English authority supports the conclusion that the seriousness of the offence acts as a factor supporting the preservation of the presumption of innocence.107 This supports the argument that where deprivation of liberty is a possible result, the presumption of innocence should be protected.108 Thus, the

101 102

103 104 105

106 107 108

Drugs Misuse Act 1986 (Qld) s 129(1)(c). See, eg, Transport Operations (Road Use Management) Act 1995 (Qld) s 114; and see E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Butterworths, 2015) pp 15-16. See also Saunders v Bowman [2008] QCA 112. Gilson v The Queen (1991) 172 CLR 353. Australian Law Reform Commission (ALRC), Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [9.36]-[9.63]. R v DPP; Ex parte Kebilene [2000] 2 AC 326 at 384 per Lord Hope; Attorney General’s Reference No 4 of 2002; Sheldrake v DPP [2005] 1 AC 264, [21]; See also Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [2.62]-[2.82]. A Ashworth, “Four Threats to the Presumption of Innocence” (2006) 10 International Journal of Evidence and Proof 243 at 260. R v Lambert [2002] 2 AC 545; Attorney General’s Reference No 4 of 2002; Sheldrake v DPP [2005] 1 AC 264. A Ashworth, “Four Threats to the Presumption of Innocence” (2006) 10 International Journal of Evidence and Proof 243 at 262. [1.80] 19

Criminal Process in Queensland

reversal of the onus may be more easily justified in relation to lower level crimes where the implications for the accused are not so significant.109 Another reason for reversing the onus of proof is that in certain situations there are particular or acute difficulties for the prosecution in proving an element of an offence, or in disproving an excuse or defence.110 Linked to this is the argument that a reversal of the onus is justified where some matter is peculiarly within the accused’s knowledge.111 Finally, it is easier to justify a reversal of onus where it relates to a matter that is not a constituent element of the offence or at least not an “essential element” of the offence.112 The Queensland government justified its decision to reverse the onus of proof for the partial defence of provocation (QCC, s 304) in the following terms:113 1.

the prosecution is often not in a position to contest the defendant’s claims because the only other “witness” is the deceased;

2.

it will lead to more clearly articulated claims of provocation, which is fairer to all concerned including the jury;

3.

it enhances the capacity of the trial judge to prevent unmeritorious claims being raised; and

4.

an analogy with diminished responsibility, which also reduces murder to manslaughter, and where the defendant bears the onus.

Shifting the onus of proof favours law enforcement and, as Hamer suggests, is likely to lead not only to more convictions, but also to more convictions that are erroneous.114 The onus of proof should generally lie with the prosecution unless there are clear and compelling justifications for a shift of the burden. Measured against this requirement, the government’s justifications for reversing the onus of proof for provocation are far from compelling.115

109 110

111 112 113

114 115

Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [9.51]-[9.57]. This was the justification for the reversals on the consorting offences; see p 37: https://www .legislation.qld.gov.au/Bills/55PDF/2016/B16_0084_Serious_and_Organised_Crime_Legislati on_Amendment_Bill_2016E.pdf. Viewed 11/04/2017. See, eg, Queensland Legislation Handbook: Governing Queensland (5th ed, State of Queensland, Department of Premier and Cabinet, 2014) at [7.2.4]. Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [9.42]-[9.50]. See Criminal Code and Other Legislation Amendment Bill 2010, Explanatory Note p 5; See also Queensland Law Reform Commission, A Review of the Excuse of Accident and the Defence of Provocation, Report No 64 (2008) p 492. D Hamer, “The Presumption of Innocence and Reverse Burdens: A Balancing Act” (2007) 66 Cambridge Law Journal 142 at 171. See P Fairall, M Barrett, Criminal Defences in Australia (5th ed, LexisNexis, Sydney, 2016) pp 327-328; K Ong, “Statutory Reversals of Proof: Justifying Reversals and the Impact of Human Rights” (2013) 32 University of Tasmania Law Review 248 at 254-267.

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Proving Offences

To this point, the rules discussed can be represented in Diagram 1.1 Proof rules: Diagram 1.1: Proof rules Legal burden of proof (persuasive onus of proof)

Evidential burden (evidential onus)

Elements

Prosecution

Prosecution

Defences

Prosecution

Accused

Insanity and statutory exceptions

Accused

Accused

Mental infirmity and the proof rules [1.90] Questions of insanity (QCC, s 27) and diminished responsibility (QCC, s 304A) associated with the accused’s mental condition at the time of the offence and questions of fitness to stand trial (QCC, s 613)116 concerning the accused’s ability to understand the proceedings so as to make a proper defence, are frequently dealt with in the specialist Mental Health Court pursuant to mental health legislation.117 When any one of these issues is brought before the Mental Health Court neither party bears the onus of proof and the matter is determined on the balance of probabilities.118 At trial evidence of the accused’s mental infirmity, at the time of the alleged offence, gives rise to rather complex set of proof rules. As discussed previously (at [1.80]), insanity is a reverse onus defence that may be raised by the accused and, in accordance to the principle established in Woolmington, it must be proven on the balance of probabilities by the accused. However, insanity can also be raised by the prosecution – for example, in order to protect the community from a person perceived to be dangerous. When the prosecution raises the defence of insanity, is it required to prove it beyond a reasonable doubt or only to the standard of the balance of probabilities? While the law is not settled on this point, as most cases are dealt with by the specialist court, the weight of judicial and other authority supports the balance of probabilities standard.119 The prosecution may also raise insanity in order to respond to the accused’s claim to a particular excuse. For example, in Falconer’s case,120 the accused argued that the shooting of her husband was an act that occurred independent of her will, or sane automatism: (see QCC, s 23(1)(a)). The High Court held that the psychiatric evidence that supported the excuse of sane automatism was 116 117 118 119

120

See also QCC, s 645 that applies where an accused becomes unfit to continue with the trial once it has commenced. See Mental Health Act 2016 (Qld) (which came into force on 5 March 2017). Mental Health Act 2016 (Qld) s 685. See also LAI v Director of Public Prosecutions (Qld) & Anor [2016] QCA 287 at [23]. E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, Butterworths, 2015) pp 412-413, see Donovan v The Queen [1990] WAR 112; Re Walton [1992] 2 Qd R 551. R v Falconer (1990) 171 CLR 30. [1.90] 21

Criminal Process in Queensland

admissible. The evidence suggested that, due to a psychological blow, Mrs Falconer might have been temporarily unaware of her own conduct. Where the defence relies on evidence of mental malfunction to raise sane automatism, the prosecution may respond by arguing that the accused was in fact suffering from a mental disease and was insane: (see QCC, s 27). In circumstances where there is evidence of both sane automatism and insanity, the jury must acquit if the prosecution fails to prove beyond reasonable doubt that the act was willed (did not occur in a state of sane automatism).121 If the prosecution proves beyond reasonable doubt that the act was willed, the jury can reach a verdict of not criminally responsible on the grounds of insanity if satisfied on the balance of probabilities that the accused suffered from mental disease or natural mental infirmity that robbed him or her of one of the specified capacities: (see QCC, s 27). Evidence of a mental infirmity may be relevant to criminal responsibility even though the excuse of unwilled act has been disproved and the defence of insanity has not been established. In circumstances where the charge includes an element of intent, evidence of a mental infirmity (including evidence of natural mental infirmity) that fails to support the excuse of an unwilled act and fails to prove the defence of insanity, can be relied upon to prevent the prosecution from proving the requisite intent beyond reasonable doubt.122 Where the offence is unlawful homicide and intent is established, the evidence of mental infirmity can also be relied on to prove, on the balance of probabilities, that the accused suffered from an abnormality of the mind which substantially impaired one of the specified capacities: (see QCC, s 304A(1)). If the defence of diminished responsibility is proven the accused will be convicted of manslaughter and not murder. Evidence of mental infirmity and natural mental infirmity is also relevant to other excuses which require the accused to have held a belief123 and for the belief to have been held on reasonable grounds.124 In this context, evidence of mental malfunction and natural mental infirmity is simply being used to raise an excuse and, as stated above, the prosecution must disprove the excuse beyond reasonable doubt.125

Commonwealth provisions [1.100] The Commonwealth proof provisions are set out in ss 13.1–13.5 of the Criminal Code 1995 (Cth). The provisions reflect a similar position to that in Queensland, discussed above. The prosecution bears the legal burden of proving the elements of the offence charged (s 13.1(1)) and of disproving “any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant”: s 13.1(2). In respect of these matters, the standard of proof is beyond reasonable doubt: s 13.2(1). Where the legal burden is on the accused, the standard 121

R v Falconer (1990) 171 CLR 30 at 63 per Deane and Dawson JJ; at 77 per Toohey J; at 86 per Gaudron J.

122

See Hawkins v R (1994) 179 CLR 500 at 517 [18]; R v Arnold; Ex parte A-G (Qld) [2002] QCA 357 at [63].

123 124 125

See, eg, QCC, s 22(2) (Honest claim of right); QCC, s 24 (Reasonable mistake of fact). See, eg, QCC, s 24 (Reasonable mistake of fact); QCC, ss 271(2), 272 (Self-defence). See R v Mrzljak [2005] 1 Qd R 308; R v Dunrobin [2008] QCA 116; P Fairall and M Barrett, Criminal Defences in Australia (5th ed, LexisNexis, Sydney, 2016) pp 64-66 and 274-275.

22 [1.100]

Proving Offences

CH 1

of proof is on the balance of probabilities: s 13.5. The Commonwealth’s guide on how offences should be framed states that “imposing the burden of proof on a defendant should be kept to a minimum.”126

Whittling down the Woolmington principles [1.110] In the early 1990s, Ashworth and Blake examined 540 indictable offences in England and found that for about 40% of the offences examined, the legal burdens or presumptions operated against the defendant.127 Likewise, the Australian Law Reform Commission’s 2016 report, Traditional Rights and Freedoms- Encroachments by Commonwealth Law, identifies a significant number of commonwealth offences where the legal burden is on the accused.128 These include terrorism offences, drug offences, child sex offences that occur outside of Australia, offences related to plastic explosives, taxation related offences and copyright related offences.129 Furthermore, there are an increasing number of situations where the privilege against self-incrimination is abrogated, which further impacts on these principles.130 When it is recalled that most criminal matters are finalised in the Magistrates Court pursuant to a plea of guilty, it seems clear that the high threshold assumed by the Woolmington principles is rarely tested. Although the general rules in regard to proving a crime will usually apply at trial, the number of exceptions is steadily increasing. This has led some commentators to suggest that the Woolmington principles are “unravelling”, “frayed” or “eroded”.131 Fairall refers to the example of jurisdiction. For instance, s 12 of the QCC specifies that the QCC applies to acts, omissions or events occurring in Queensland that constitute an offence.132 In the case of Thompson,133 the High Court considered that jurisdiction was a matter that was properly decided on the balance of probabilities. This was a practical decision. It means that the prosecution case will not fail simply because it cannot prove, beyond a reasonable doubt that criminal acts or omissions occurred within the particular jurisdiction.134 The High Court suggested that extending the Woolmington principles to jurisdiction would adversely affect the public interest. Such an extension may mean that a wrongdoer, who may be subject to the laws of two 126 127 128 129 130 131

132 133 134

Attorney-General’s Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (2011) at [4.3.1]. A Ashworth and M Blake, “The Presumption of Innocence in English Criminal Law” [1996] Criminal Law Review 306 at 314. See also A Gray, “Presumption of Innocence in Australia: A Threatened Species” (2016) 40 Criminal Law Journal 262. Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [9.66]-[9.97]. For a discussion of some examples, see generally, Queensland Law Reform Commission, The Abrogation of the Privilege Against Self-Incrimination, Report No 59 (2004). See, eg, A Gray, “Presumption of Innocence in Australia: A Threatened Species” (2016) 40 Criminal Law Journal 262; P Fairall, “Unravelling the Golden Thread – Woolmington in the High Court of Australia” (1993) 5 Bond Law Review 229; G Orchard, “The Golden Thread – Somewhat Frayed” (1988) 6 Otago Law Review 615. See Chapter 5. Thompson v The Queen (1989) 169 CLR 1 at 15; see also QCC, s 12. (1989) 169 CLR 1 at 12. [1.110] 23

Criminal Process in Queensland

jurisdictions, would escape conviction because it could not be proven beyond reasonable doubt that the act occurred in one jurisdiction rather than the other.135 While generally the matter of jurisdiction will not be in issue, when the issue is raised by the accused, the Crown must prove the matter occurred in the relevant jurisdiction on the balance of probabilities.136 State legislation in response to terrorism and more recently in response to the activities of criminal organisations (outlaw motorcycle gangs) has also further “frayed” Woolmington’s golden thread. For example, according to the terrorism legislation, a person who is intentionally a member of a terrorist organisation and who knows the organisation is a terrorist organisation, commits an offence.137 The legislation provides a defence where: [T]he person proves that he or she took all reasonable steps to cease to be a member of the organisation as soon as practicable after the person knew that the organisation was a terrorist organisation.138

Dissatisfied with the effectiveness of the existing legal regime the Newman government passed a series of laws in 2013 aimed at combating the activities of criminal organisations. A common feature of many of the Newman reforms was the reliance on reverse onus provisions.139 For example, the Criminal Law (Criminal Organisations Disruption) Amendment Act 2013 enacted the offences of: 1.

being a participant in a criminal organisation and being knowingly present in a public place with two or more people who are also participants in a criminal organisation (QCC, s 60A);

2.

being a participant in a criminal organisation and entering or attempting to enter a prescribed place or a prescribed event (QCC, s 60B); and

3.

being a participant in a criminal organisation and recruiting or attempting to recruit another to participate in a criminal organisation (QCC, s 60C).

For each offence, it is a defence to prove “that the criminal organisation is not an organisation that has, as 1 of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity.”140 Many of the 2013 reverse onus provisions have been or are being repealed by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). However, the 2016 Act also includes 135 136 137 138 139

140

(1989) 169 CLR 1 at 12. See R v WAF [2009] QCA 144. Terrorism (Commonwealth Powers) Act 2002 (Qld) s 102.3(1). Terrorism (Commonwealth Powers) Act 2002 (Qld) s 102.3(2). The now repealed Vicious Lawless Association Disestablishment Act 2013 (Qld) included reverse onus provisions relevant to penalty. Also repealed are the circumstances of aggravation which applied to affray, misconduct in relation to a public office, grievous bodily harm, serious assault and obtaining or dealing with identification information. The circumstances of aggravation would not be imposed if the accused proved “that the criminal organisation is not an organisation that has, as one of its purposes, the purpose of engaging in, or conspiring to engage in, criminal activity”. The amendments to the Bail Act 1980 (Qld) were perhaps the most controversial component of the 2013 reforms. The now repealed provisions prevented a court or the police from granting bail if the person was or was at any time a participant in a criminal organisation unless the person could show cause as to why his/her ongoing detention was not justified. QCC, ss 60A(2), 60B(3), 60C(2).

24 [1.110]

Proving Offences

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replacement offences and new offences, some of which include reverse onus defences. Following a two-year transitional period, the Amendment Act 2016 has the effect of repealing QCC, ss 60A and 60B.141 The Amendment Act 2016 also replaces QCC, ss 60A and 60C with the new offences of recruiting a person to become a participant in a criminal organisation (QCC, s 76) and habitually consorting with recognised offenders (QCC, s 77B). Where the charge is pursuant QCC, s 77B, it is not an offence to consort in certain specified circumstances, such as where the offender with whom the accused consorts is a close family member, provided the accused proves on the balance of probability that the consorting was reasonable in the circumstances (QCC, s 77C). A defence that requires the accused to prove that his or her conduct was reasonable or that he or she took [all] reasonable steps is particularly onerous and, in the context where decisions about family engagement can lead to criminal culpability, is particularly repugnant to justice.142 A media driven legislative shift in policy that focuses on the victim and the perceived need to protect a fearful community, in part, explain the increasing reliance on convictions based on the absence of proof of innocence.143

141 142

143

Serious and Organised Crime Legislation Amendment Act 2016 (Qld) ss 2(2), 143, 144. For other reverse onus defences introduced by the 2016 amendments see Summary Offences Act 2005 (Qld); s 10D (reasonable for the purpose), QCC, s 228DA(4) (took all reasonable steps); Peace and Good Behaviour Act 1982 (Qld) ss 54(2) and (3), 55(3); Penalties and Sentences Act 1992 (Qld) s 161ZI(6) (reasonable excuse for contravening). See D Garland, The Culture of Control (OUP, New York, 2002) pp 11-12; see also Chapter 11 (Sentencing) and Chapter 15 (Victims of Crime). [1.110] 25

CHAPTER 2 Policing [2.10] [2.30]

[2.50] [2.80]

[2.120] [2.180]

[2.260]

[2.370] [2.390]

[2.450] [2.470] [2.480]

Introduction to Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Key Concepts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 [2.30] Reasonable . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 [2.35] Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 [2.40] What is a warrant? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Search Powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 [2.60] PPRA search powers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Covert Investigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 [2.90] Monitoring orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 [2.100] Covert searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 [2.110] Controlled activities and controlled operations . . . . . . . . . . . . . . 44 Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 [2.130] PPRA: arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Alternatives to Arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 [2.190] Notice to appear . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 [2.200] Complaint and summons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 [2.210] Discontinuing arrest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 [2.220] Other options . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Police Questioning and the Right to Silence . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 [2.270] Name and address limitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58 [2.280] PPRA limitations: Ch 15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 [2.290] Time limits for police questioning . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 [2.300] Presence of friend, relative or lawyer . . . . . . . . . . . . . . . . . . . . . . . . 61 [2.310] Recording questioning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 [2.340] Providing an appropriate caution . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 [2.350] Aboriginal and Torres Strait Islander people . . . . . . . . . . . . . . . . . 65 [2.360] Persons with impaired capacity and intoxicated persons . . . . 66 Post-Arrest Searches . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 [2.380] PPRA search powers of persons in custody . . . . . . . . . . . . . . . . . . 68 Identifying Material and Forensic Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . 68 [2.400] PPRA forensic procedures and identification material . . . . . . . 69 [2.410] Identifying particulars in Queensland . . . . . . . . . . . . . . . . . . . . . . . 71 [2.420] Non-medical examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 [2.430] Forensic procedures performed by doctors and dentists . . . . . 72 [2.440] Safeguards for forensic procedures . . . . . . . . . . . . . . . . . . . . . . . . . . 73 DNA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 [2.460] PPRA DNA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 The Use of Reasonable Force in Effecting Police Powers . . . . . . . . . . . . . . . 76 Offence to Contravene or not Obey a Police Officer . . . . . . . . . . . . . . . . . . . . 77

27

Criminal Process in Queensland

INTRODUCTION TO POLICING [2.10] This chapter overviews the powers and responsibilities of police in the investigation of criminal offending. The manner in which police investigations are carried out has implications for the fair trial of the accused. Findlay et al observe that in the majority of cases, what happens before the trial determines the ultimate outcome of the trial.1 Given that police investigation will frequently intrude on an individual’s autonomy, liberty and privacy, it is important that police powers are only exercised to the extent that they are necessary for the particular purpose. Police also operate in an environment where there are many opportunities for corruption,2 so a clear legislative framework is important to ensure that the police and the public understand police powers and responsibilities. The chapter does not attempt to summarise all police powers as prescribed by the Police Powers and Responsibility Act 2000 (Qld), rather it addresses the key powers that are central to law enforcement. These include searches independent of arrest, search warrants, arrest powers, alternatives to arrest, questioning, covert operation and forensic procedures.

[2.20] During the 1980s, there was a great deal of dissatisfaction in relation to the operation of the Queensland Police Service (QPS). Media exposure of a number of corrupt police practices, including planting evidence, fabricating admissions (police “verbals”) and charges, as well as receiving bribes,3 led to the Fitzgerald Inquiry.4 The Inquiry found that such practices were indeed occurring and recommended a comprehensive review of police powers. The Criminal Justice Commission (CJC) subsequently reviewed current police powers and made a number of proposals.5 The Commission’s proposals resulted in the enactment of a

1

M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford University Press, 2014) p 36.

2

See, eg, Crime and Misconduct Commission, Operation Tesco: Report of an Investigation into Allegations of Police Misconduct on the Gold Coast (Brisbane, 2011): http://www.ccc.qld.gov.a u/research-and-publications/publications/police/operation-tesco-report-of-an-investigationinto-allegations-of-police-misconduct-on-the-gold-coast.pdf/download; Viewed 15/04/2017. Crime and Misconduct Commission, Dangerous Liaisons – A Report Arising from a CMC Investigation into Allegations of Police Misconduct (Operation Capri) (Brisbane, 2009): http:// www.ccc.qld.gov.au/research-and-publications/publications/police/dangerous-liaisons-a-re port-arising-from-a-cmc-investigation-into-allegations-of-police-misconduct-operation-capri .pdf/download. Viewed 15/04/2017. See ABC, Four Corners: The Moonlight State (Sydney, ABC, 1987); see also P Dickie, The Road to Fitzgerald: Revelations of Corruption Spanning Four Decades (UQ Press, 1988). Similar problems have also been exposed in other States: see D Brown, D Farrier, L McNamara, A Steel, M Grewcock J Quilter and M Schwartz, Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2011) pp 459-465. G E Fitzgerald, Chairman, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Queensland Government, 1989).

3

4 5

See Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane, 1993). The Criminal Justice Commission has been replaced by the Crime and Corruption Commission (CCC).

28 [2.10]

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CH 2

number of legislative instruments, which were formulated over some years and culminated in the PPRA. Section 5 of the PPRA states that the purposes of the Act are: (a)

to consolidate and rationalise the powers and responsibilities police officers have for investigating offences and enforcing the law;

(b)

to provide powers necessary for effective modern policing and law enforcement;

(c)

to provide consistency in the nature and extent of the powers and responsibilities of police officers;

(d)

to standardise the way the powers and responsibilities of police officers are to be exercised;

(e)

to ensure fairness to, and protect the rights of, persons against whom police officers exercise powers under this Act;

(f)

to enable the public to better understand the nature and extent of the powers and responsibilities of police officers;

(g)

to provide for the forced muster of stray stock.

Thus, the PPRA provides a comprehensive overview of police powers and responsibilities. The Bill for the PPRA was initially described as “a central reference point for police and the community”.6 In R v LR, Keane J states in reference to s 5 that:7 One of the main reasons advanced for the passage of the PPR Act in 2000 was to ‘provide powers necessary for effective modern police and law enforcement’. However, it was also the intention of the legislature to ‘ensure fairness to, and protect the rights of, persons against whom police officers exercise their powers…’

KEY CONCEPTS Reasonable [2.30] “Reasonable” is a key concept in the PPRA. The legislation utilises such phrases as “reasonable suspicion”, “reasonably believes”, police officer or court official was “reasonably satisfied”, “reasonably necessary”, “reasonable time”, “earliest reasonable opportunity”, “unreasonable interference” and “reasonable opinion of the professional”.8 6

7 8

Explanatory Notes, Police Powers and Responsibilities Bill 2000 (Qld) p 1. Police powers are also contained in a number of other pieces of legislation but the discussion here is limited to the PPRA. See PPRA, Sch 1 for a list of Queensland acts not affected by the PPRA. [2006] 1 Qd R 435 at [41]. The term reasonable is also frequently used in combination with terms such as “facilities”, “fluency”, “opportunity”, “steps”, “costs” and “period”. Some terms are also expressed in the negative such as “without unreasonable delay”. The terms are also expressed slightly differently in reference to the task of evaluating whether the police officer has met a relevant threshold requirement. For example, the term “reasonable suspicion” becomes “reasonable grounds for suspecting” and “reasonably believes” becomes “reasonable grounds for suspecting”. [2.30] 29

Criminal Process in Queensland

The term “reasonable” when used to qualify a state of mind or something else such as time or steps taken, usually imposes an objective standard.9 In George v Rockett the High Court states that:10 [w]hen a statute prescribes that there must be “reasonable grounds” for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The Queensland Court of Appeal applied George v Rockett to the PPRA in R v LR.11 The Court of Appeal quashed the appellant’s rape convictions and ordered a retrial on the basis that his record of interview with police should not have been admitted as the appellant was clearly affected by alcohol at the time of the interview. Section 423(2) of the PPRA states that a police officer must not question an intoxicated person until the officer is “reasonably satisfied” that drugs or alcohol are no longer influencing the person’s ability to understand his or her rights and to decide whether to answer questions. In reference to the requirement that the officer be “reasonably satisfied” McPherson JA states that:12 I cannot doubt, however, that it is designed to set up an objective criterion to be determined by reference to the external evidence or indicia of the influence of liquor rather than simply to the officer’s subjective even if honest impression of the matter.

Therefore, where a police officer or some other person, such as a court official, must hold a reasonable suspicion or reasonable belief, the relevant individual must hold such a suspicion or belief and it must be objectively reasonable to do so.13 In determining whether the requisite suspicion or belief was reasonably held, a court will have regard to the information available to a police officer or judicial officer at the precise time that he or she exercised the relevant power. For example, in R v N14 the police went to a hotel room in response to a noise complaint. Once in the room the police formed a suspicion that illicit drug use was taking place. N was consequently strip-searched and her handbag was searched. The police found $305.55 and an iPhone in her handbag but there was no evidence of illicit drugs. The police officer then searched the iPhone and found incriminating evidence of illicit drug trafficking. The court found that the police officer might have had a reasonable suspicion as to the existence of illicit drugs which justified the strip search and the search of N’s bag pursuant to ss 29 and 30(1)(a)(ii) of the PPRA. However, the search of the iPhone was illegal as the existence of $305.55 in N’s handbag, even after a night out at a concert, was an insufficient basis for the police officer to form a reasonable suspicion that the phone contained evidence of a

9

13

Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane, 1993) Vol I, p 43. (1990) 170 CLR 104 at 112 See also Rowe v Kemper [2009] 1 Qd R 247 at 254; R v BBS [2009] QCA 205 at [43]-[44]; R v Bossley [2012] QSC 292 at [14]. [2006] 1 Qd R 435. [2006] 1 Qd R 435 at [5] and [44]-[45] per Keane JA who states “when examined objectively, there was no basis on which the officer could have been reasonably satisfied that the appellant’s level of intoxication was not affecting his ability to understand his rights or to decide whether or not to answer questions”. See R v N [2015] QSC 91 at [33].

14

[2015] QSC 91.

10 11 12

30 [2.30]

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CH 2

serious offence and that the evidence may have been destroyed.15 Therefore Carmody CJ exercised his discretion to exclude the evidence obtained from the search of the iPhone as the search could not be justified on the basis of ss 29 and 30(1)(a)(vi) of the PPRA. When a police officer is making inquiries, he or she is not constrained by the rules of evidence. They can take into account “anonymous tip-offs” and statements heard from other people. However, whatever the police officer relies upon, it must be “reasonable” to rely upon it and the officer may need to verify information in some circumstances before acting upon it. For example in R v Jaudzems16 police stopped a vehicle to conduct a random breath test. While the test was administered one of the constables contacted Police Communications. The constable was informed that, according to police “intel”, the driver was involved in the large-scale supply of ecstasy to bouncers who were responsible for distributing the drug in the Cairns area. The constable was also informed that the person who provided the information had been “open and honest” about his own involvement in the driver’s drug activities. Henry J concluded that, based on the recorded conversation with Police Communications, the subsequent search of the vehicle was lawful as the constable held a reasonable suspicion that unlawful dangerous drugs may be in the vehicle (PPRA, ss 31-32).17 By contrast, seeing a young man driving an expensive vehicle with panel damage is insufficient to raise a reasonable suspicion that there may be a weapon or unlawful dangerous drugs in the vehicle or that the vehicle may have been stolen.18 While a police officer may rely on information provided by another person, it is necessary for the police officer to form his or her own belief or suspicion and he or she cannot rely on the fact that the person providing the information holds the relevant belief or suspicion.19 As stated above, the term reasonable usually imposes an objective requirement, however, the legislative context may require the imposition of a subjective element. For example, in Whitelaw v O’Sullivan,20 the Court of Appeal held that that the phrase, a police officer can take steps that he or she “considers to be reasonably necessary to prevent a breach of the peace” (PPRA, s 50(2)), when read in context, imposes a subjective requirement that the relevant police officer 15

16 17

18 19

20

See also R v Peirson [2014] QSC 134 where there was slightly more evidence of illicit drug related activity than in R v N and accordingly the police officer was found to have held the reasonable suspicion necessary to justify the search of the applicant’s mobile phone. See footnote 66 for the circumstances when police can compel a person to provide the password access to an electronic storage device such as a phone. [2014] QSC 75. The Court reached its conclusion even though additional evidence presented by the constable to support his suspicions were described as being of “dubious reliability” with the constable statements being described as “wrong” and not being consistent with earlier statements. See R v Rondo (2001) 126 A Crim R 562 at 576; R v Fuentes [2012] QSC 288 at [21]. Bulsey v State of Queensland [2015] QCA 187 at [15]. See also R v Purdon [2016] QSC 128 at [19]-[25] where it was held that evidence that the applicant was observed leaving an address which had previously been brought to the sergeant’s attention in “relation to drug offences”, was an insufficient basis to raise a reasonable suspicion that the applicant had unlawful drugs on his person or in his vehicle. [2010] QCA 366. [2.30] 31

Criminal Process in Queensland

considers that the steps taken are reasonably necessary. However, the Court went on to hold that if the step taken included the use of force, s 50(2) must be read as subject to s 615(1) of the PPRA, which states that police must use only reasonably necessary force when performing their duties under the Act. Whether the force was reasonably necessary is determined by an objective standard.21 Furthermore under the Criminal Code (Qld) (QCC), terms such as “a person’s honest and reasonable belief” have been interpreted as imposing a hybrid requirement rather than a reasonable person requirement.22 Accordingly, relevant personal characteristics of the person are taken into account when determining whether the belief was reasonably held. Perhaps because the PPRA generally adopts the relatively low threshold requirement of a “reasonable suspicion”, the courts, in the context of police powers, have imposed the objective standard of a reasonable person rather than the hybrid standard that takes into account the relevant police officer’s personal circumstances. However, in limited circumstances personal characteristics of the individual are likely to be relevant to the assessment of reasonableness under the PPRA. For example, the reference to the “reasonable opinion of the professional” in ss 390I and 390G of the PPRA, will be assessed by reference to what a person with professional qualifications in health care would consider reasonable in the circumstances. The distinction between a “belief” and a “suspicion”23 was discussed by the High Court in George v Rockett.24 The court noted that: the facts which can reasonably ground a suspicion may be quite insufficient to reasonably ground a belief yet some factual basis for the suspicion must be shown.25

The High Court also cited an earlier case, in which Kitto J found that: a suspicion that something exists is more than mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust amounting to a slight opinion …26

In George v Rockett the Court went on to state that: The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination

21

22 23

24 25 26

[2010] QCA 366 at [25]-[27]. The decision includes statements by McMurdo P’s suggesting that the term “reasonable suspects” (PPRA, s 50(1)) also imposes a subjective requirement only. Such an approach would be inconsistent with the way the term is usually interpreted. P Fairall and M Barrett, Criminal Defences in Australia (5th ed, LexisNexis., Sydney, 2016) pp 64-67. PPRA, Sch 6 for the definitions of reasonable belief and reasonable suspicion. See also Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane, 1993) Vol I, p 43. (1990) 170 CLR 104. (1990) 170 CLR 104 at 115. Queensland Bacon Pty Ltd v Rees (1976) 115 CLR 266 at 267. See also Dobbs v Ward [2003] 1 Qd R 185 at [19]-[20]; R v Bossley [2012] QSC 292 at [14].

32 [2.30]

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CH 2

of the mind may, depending on the circumstances, leave something to surmise or conjecture.27

Both terms are used in the PPRA however when prescribing the threshold requirement necessary for police to exercise one of their many PPRA powers, the term reasonable suspicion is more commonly used than the term reasonable belief. Of course, ultimately, a police officer’s suspicion may come to nothing, but this does not necessarily mean that there were no reasonable grounds for having the suspicion.28 Given the objective standard inherent in the word “reasonable”, the material that leads a police officer to be suspicious should be sufficient to induce suspicion in the mind of a reasonable person. It is also important that the suspicion is actually held by the relevant officer at the time the particular power is exercised. In other words, it is wrong for a court to assess the evidence and make a finding that, given the evidence, a suspicion could have been held by the relevant police officer.29 The phrase “reasonably necessary” has been equated with “appropriate and adapted” and with the principle of proportionality.30 An assessment of proportionality can be helpful in determining whether a measure is “reasonably necessary”. Macken suggests that “proportionality requires an assessment as to whether the measure in question is the least restrictive means to achieve a legitimate end”.31

Consent [2.35] Consent is also a key concept in understanding the way police undertake law enforcement. Consent is relevant to policing in three ways. First, police are able to undertake, by way of consent, many activities independently of the powers and constraints of the PPRA. For example, a person may consent to attend a police station to answer questions or consent to a have a police officer entering his or her home or searching a person’s bag or other belongings. The legality of police enforcement activities and the admissibility of evidence will likely depend on whether the police are exercising a PPRA power or acting with consent. For example in R v Bossley32 the applicant was attending a music festival in Brisbane when he was stopped by a police officer and asked whether the officer could look inside his bum bag. Mr Bossley handed the bag to the officer who, upon searching the bag, found illicit drugs. The police officer gave evidence that in accordance with s 29 of the PPRA he formed a reasonable suspicion that Mr Bossley was carrying illicit drugs and he was therefore authorised to search the bag. The Court found that as the officer’s suspicion was based on nothing other than the applicant’s fidgety and talkative behaviour, the fact he was carrying a bum-bag and the fact that he was approached by “younger females”, the officer’s suspicion was not reasonably held. The search of the bag was not therefore lawful within the terms of the PPRA. However, the relevant evidence was admitted as the search of 27 28 29 30 31

(1990) 170 CLR 104 at 116. Dobbs v Ward [2003] 1 Qd R 158; [2002] QSC 109 at [12] per Holmes J. See Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175 at [70]-[72] per Holmes J. See Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33. C Macken, “Preventative Detention in Australian Law: Issues of Interpretation” (2008) 32 Criminal Law Journal 71 at 86.

32

[2012] QSC 292. [2.35] 33

Criminal Process in Queensland

the bag was with Mr Bossley’s consent. The officer had put out his arm and asked Mr Bossley whether he could look in the bag. Mr Bossley believed that he had to comply with the request so he handed the bag to the officer. As the search was by way of consent, it was a lawful search.33 It is not the case that police enforcement conduct must be justified either pursuant to their PPRA powers or by reference to consent. Some activities that form part of the conduct can be justified by reference to the PPRA while related activities undertaken at approximately the same time can be justified by way of consent. For example, where police reasonably suspects the existence of a prescribed circumstance they can stop, detain and search an individual and stop detain and search a vehicle (PPRA, ss 29 and 31). If the police find a mobile phone or some other electronic storage device, provided they continue to have a reasonable suspicion that a prescribed circumstance exists, the device can also be searched pursuant to the PPRA. If however, the device is password protected or it is encrypted, the police do not have the power to compel an individual to provide the password or decryption code. The search of the electronic storage device can only proceed if the police request the password or decryption code and the individuals provides the necessary information by way of consent.34 Second, there are certain police functions that can be performed by way of consent, however, these functions are subject to restrictions or requirements prescribed by the PPRA. For example, a person can consent to be frisked or strip-searched, however the PPRA search safeguards apply to both statutory authorised searches and searches by way of consent.35 Similarly a person can consent to answer police questions however if, at any time during the questioning, the officers suspect the person has committed an indictable offence, the officer must give the person the appropriate warning prescribed by the PPRA.36 Some police powers prescribed by the PPRA expressly provide that relevant activities

33

34

35

36

See also R v Hammond & Loosemore [2016] QSC 98 where one officer went to the front door and said to a female who was inside the house “mind if I come in”. The female responded by saying “yeah”. Although her response was literally a refusal, her tone may have suggested that she was acquiescing to the officer’s request. At the same time, two officers entered the dwelling via the back door without seeking permission to do so. The entrance by the police was not with the consent of the occupier as the police officer who entered via the front door had not asked whether he could enter until he was perhaps a step or two inside the house, the female at the front door stated that she was not the occupier of the house and the individuals who occupied the dwelling made it clear that they were not consenting to the police presence in the dwelling. There was no basis to suggest that the officers who entered through the back door had done so with consent. See for example R v Varga [2015] QDC 82 and R v Peirson [2014] QSC 134. In circumstances where police are exercising their stop, detain and search powers most people will perceive a request by police as a legally enforceable demand. Note that where access to an electronic storage device is refused, police will be compelled to apply for a search warrant that includes an access to electronic storage device order (PPRA, ss 150 and 154). Sections 624-625 of the PPRA apply when a “police officer searching a person…”. By way of contrast see the receipt of property safeguards which states that when a “police officer seizes anything under this Act or a warrant, the police officer must…”. PPRA, s 415. Police have an obligation to warn a person of their rights in circumstances where the person is being interviewed at the station or in the field. It does not apply where the individual seeks out the officer in a social setting and initiates the conversation out of self-interest see R v Williamson [2010] QCA 277 at [31].

34 [2.35]

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such as non-intimate forensic procedures can occur by way of consent.37 Finally, there are some activities that cannot be lawfully performed by police even with the consent of the person who is the subject of the activity. For example, only doctors, dentists and forensic examination nurses can conduct intimate forensic procedures. Furthermore, police will be criminally responsible for causing death or grievous bodily harm, if the force used does not come within the terms of s 615 of the PPRA, even if the victim consents to the force.38

What is a warrant? [2.40] In some circumstances, police may be required to obtain a warrant in order to exercise a power. A warrant is essentially a document that gives police the authority to carry out a particular power such as a search or arrest. It is a document that authorises police to engage in conduct that would otherwise be unlawful.39 Depending on the circumstances, warrants may be issued by a justice of the peace, a magistrate or a higher court judge. For example, a justice of the peace, a magistrate or judge can issue search warrants (PPRA, s 150(7)) however only magistrates can issue a post-search approval (PPRA, s 161(1)) and only a Supreme Court judge can issue a warrant authorising structural damage to a building (PPRA, s 150(4)). The warrant operates as a check on the misuse and limits of police powers. Furthermore, as police are acting in accordance with a judicial-sanctioned authority, a warrant also provides protection to police. An officer is protected from criminal or civil action in respect to his or her conduct when executing the terms of a warrant. It also has the advantage that the officer, who executes the warrant, need not hold a reasonable suspicion as to the existence of the prescribed circumstances that justified the issuing of the warrant.40

SEARCH POWERS [2.50] The right to privacy is strongly guarded by the common law and a search of private property (or of the person) is essentially an invasion of privacy.41

37 38

39

40 41

See, eg, PPRA, Ch 17 Pt 2. See also ss 225 and 258 of the PPRA. As to why a person’s consent to death or grievous bodily harm is immaterial to criminal responsibility see QCC, s 284 and P Fairall, M Barrett, Criminal Defences in Australia (5th ed, LexisNexis., Sydney, 2016) Ch 5. In the absence of a warrant, a statutory authority or consent, police activities such as detaining suspects, searching suspects, entering and searching premises and arresting suspects would constitute an assault, trespass or false imprisonment. See, eg, Halliday v Nevill (1984) 155 CLR 1 at 10 (implied license to enter a driveway); Coco v R (1994) 179 CLR 427 at 435-436 (statutory power to use a listening device does not authorise entrance to premises without consent); Kuru v State of New South Wales (2008) 236 CLR 1 at 14-15 (police who enter with the consent of the occupier to investigate a possible domestic violence offence, commit a trespass if consent is revoked and they fail to leave). See, eg, Bulsey v Queensland [2015] QCA 187 at [16]. George v Rockett (1990) 170 CLR 104 at 115. A person is understood to have a private interest in the inviolability of his house, “his castle and fortress”: see Semayne’s case (1604) 77 ER 194 at 195; see also Kuru v New South Wales (2008) 236 CLR 1; [2008] HCA 26 in relation to action for trespass against police. [2.50] 35

Criminal Process in Queensland

Warrants are often obtained by police to carry out searches. In George v Rockett,42 the High Court discussed the law and process related to search and seizure. In that case, certain documents were seized from the appellant’s solicitor and given to the magistrate for safekeeping pursuant to a warrant. The court observed that, in prescribing conditions with respect to warrants, the need for an effective justice system must be balanced against the need to protect the individual from the arbitrary invasion of privacy and property. The court accepted that the specific requirements enacted in relation to applying for and issuing search warrants, have been established to protect those individual interests. In George v Rockett, the court noted that generally such requirements should be interpreted strictly.43 However, the courts have also observed that although strict compliance should be observed where requirements are intended to both protect individuals against oppressive use of police powers as well as protecting their individual privacy, there is also a need to protect public security. If there is “excessive insistence on correctness of every detail”, the balance may be struck too far in favour of the individual.44 In the 1990s, the National Crime Authority (NCA) searched the businessman John Elliot’s records and found certain incriminating material. The court found that the evidence collected during the search had been illegally obtained because search warrants had been inappropriately issued. The court refused to hear the evidence and the NCA case of fraud against Elliot collapsed.45 Clearly, depending on the circumstances of the case, the balance between individual interests and public security may fall either way. In New South Wales v Corbett,46 the High Court examined the validity of a search warrant obtained pursuant to the Search Warrants Act 1985 (NSW). The relevant police had obtained the warrant to search for firearms belonging to Corbett. Corbett had recently had his shooter’s licence suspended. The police had information that although there were records suggesting Corbett possessed several guns, there was no record that he had surrendered them. The warrant referred to the suspicion of an offence under firearms legislation that was no longer in force. Counsel for Corbett argued that police could not have a reasonable suspicion regarding an offence, which no longer existed. The majority of the High Court referred to Beneficial Finance Corporation v Commissioner of Australian Federal Police and, specifically, to Burchett J, who said: The authorities make it clear that the statement of the offence in a search warrant need not be made with the precision of an indictment. That would be impossible, and indeed to attempt it would be irrational, bearing in mind the stage of the investigation at which a search warrant may issue. The purpose of the statement of the offence in the warrant [is to] set bounds to the area of search which the execution of the warrant will involve, as part of the investigation into a suspected crime.47

42 43

(1990) 170 CLR 104. (1990) 170 CLR 104 at 115. Also see, eg, R v Christensen (2005) 156 A Crim R 397 at 402; R v Day [2008] QSC 358 at [15]-[16]; R v Munck [2010] QSC 416 at [37]-[38].

44 45 46

See Wright v Police Service (Qld) [2002] 2 Qd R 667; [2002] QSC 46 per Holmes J. See ABC, Background Briefing: Waiting for the Watchdog: NCA (17 November 1996). (2007) 230 CLR 606; [2007] HCA 32.

47

Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523 at 533 per Burchett J; see also New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32 at [99] per Callinan and Crennan JJ (Gleeson CJ and Gummow J agreeing).

36 [2.50]

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The High Court in New South Wales v Corbett found that there could be no mistake about “the object of the search or about the boundaries of the search warrant” and that the reference to the incorrect Act was “mere surplusage” (at [107]). They found the warrant was valid.48 In R v Christensen49 the applicant, Christensen, was charged with two counts of unlawful possession of dangerous drugs. Christensen sought a ruling that the evidence located in the course of a search of the premises was inadmissible as the search warrant was not valid. The search warrant was executed at an unlicensed premises, known as a “recover” club where night club-goers head to in the early hours of the morning. In the course of the search Christensen’s bag was searched and drugs and money were found. The court found that the warrant was very broad in its application and there was “less than careful attention to the detail of the warrant” and that the description of the offence did not set “any rational parameters for the search” as it did not identify any particular suspect, or particular place of offending other than “Brisbane” and gave an incongruent time of the alleged offence.50 It was held that the warrant was invalid and therefore the search was unlawful. The court went on to emphasise the importance of strict adherence to statutory requirements in the context of search warrants.51

PPRA search powers Searching persons, vehicles and places without a warrant [2.60] Where a police officer reasonably suspects that a prescribed circumstance exists, the police officer may stop, detain and search a person, and anything in the person’s possession, for anything relevant to the circumstances for which the person is detained (PPRA, ss 29-39). “Prescribed circumstances” include where the police officer has a reasonable suspicion that the person has a dangerous drug, weapon, tainted property that the person has committed a certain offence or that the person has consorted, is consorting or is likely to consort with 1 or more recognised offenders (PPRA, ss 29 and 3052) or that the person has consorted, is consorting or is likely to consort with one or more recognised offenders. In this 48 49 50 51

52

See also Rayney v RT & BF Turner Pty Ltd [2008] QDC 95 where the descriptions of place and evidence to be searched were too broad to be certain. The warrant was held to be invalid. (2005) 156 A Crim R 397. (2005) 156 A Crim R 397 at [7]-[8]. (2005) 156 A Crim R 397 at [11]-[12]. The execution of a warrant will be unlawful if the conduct of police is unreasonable see, eg, PPRA, s 157(1)(a), (e), (h) (i) and (j). See also Simpson v Attorney General (Baigent’s Case) [1994] 3 NZLR 667. As a result of amendments introduced by the Serious and Organised Crime Legislation Amendment Act 2016 s 288, an officer may stop and search a person when the officer reasonably suspects the person is wearing a prohibited item such as clothing or jewellery displaying: a name of an identified organisation; a patch, insignia or logo of an identified organisation; or an image, symbol abbreviation or acronym of an identified organisation. See also R v Peirson [2014] QSC 134 at [28] where the officer’s observations that the applicant was unsteady on his feet, had dilated pupils, was sweating profusely from his lip and did not strongly smell of alcohol meant that he held a reasonable suspicion that the applicant had unlawful drugs in his possession. However, in R v Bossley [2012] QSC 292 and R v Purdon [2016] QSC 128 it was found that there was an insufficient basis for the police to form a reasonable suspicion of the existence of the relevant prescribed circumstances. [2.60] 37

Criminal Process in Queensland

context, the police officer is likely to conduct a frisk search of the person by running their hands over the outside of the person’s clothes or examine clothes removed with the consent of the person (PPRA, Sch 6). However, the PPRA does not restrict the type of search that can be conducted and it could involve a strip search.53 The police can also search bags and electronic devices that are in the person’s possession however, it does not include the power to compel an individual to provide a password to gain access to electronic device.54 There is also power to stop, detain and search vehicles and detain their occupants55 if the police reasonably suspect one or more of the prescribed circumstances exist (PPRA, ss 31 and 32). The search of the vehicle and its contents can only be to obtain anything that relates to the circumstances that gave rise to the detention of the vehicle and its occupants.56 Police also have the power to stop vehicles for a variety of reasons including licence checks and breath testing (PPRA, s 60). Where a police officer is exercising the power under s 60, he or she is not required to have any particular state of mind.57 They may search public places without a warrant and stay at the place for as long a period of time as is reasonably necessary to carry out the search. Police have the power to seize things found at the place or on a person at the place in circumstances where the police officer reasonably suspects that the things will provide evidence of an offence (PPRA, s 33). The PPRA also authorises police to enter a place, which includes the area surrounding a dwelling, to perform a variety of functions including making inquiries, delivery of documents and checking compliance with a relevant law (PPRA, ss 19 and 22).58 However, police cannot enter a dwelling59 unless they are acting: with the consent of the occupier (PPRA, s 19(5)); pursuant to a search warrant; in the exercise of their powers to arrest or to detain a person who is in the dwelling (PPRA, s 21(2);

53 54 55

56 57

58 59

Police must comply with the safeguards: PPRA, ss 624-626 and 629-632. Note that the police cannot conduct an activity that is not a search such as a forensic procedure. See fn 66 as to when police can compel a person to provide password access to an electronic storage device such as a phone. An occupant is someone who is inside a vehicle at the time it is stopped or detained. See, eg, R v Keen [2016] 2 Qd R 1; [2015] QSC 7 at [39] where individuals standing near a vehicle at a service station were found not to be occupants as they had not been inside the vehicle when it was approached by police (discretion was exercised to admit the evidence of the unlawful drugs and related paraphernalia found as a result of the illegal search); R v Barbaro [2015] QSC 346 at [18] where individuals who were in a fast food restraint with their vehicle parked in the car park were found not to be occupants (evidence excluded). See also R v Toon [2015] QSC 117 (evidence excluded); R v Versac (2013) 227 A Crim R 569 [40]-[41] (evidence excluded); R v Pohl [2014] QSC 173 (evidence excluded). PPRA, s 31(1)(c). See also R v Versac [2013] QSC 46 at [40]. While exercising a power to stop a vehicle under s 60 of the PPRA, the officer may form a reasonable suspicion that it is necessary to exercise another power such as that expressed in ss 29 or 31 of the PPRA. See, eg, R v Fuentes [2012] QSC 288. See R v Hammond & Loosemore [2016] QSC 98 at [48]-[50]. Note that the police must enter for one of the prescribed reasons; otherwise, the entrance onto the place will be illegal. Note that a dwelling is defined to include homes, apartments and boats that are used for residential purposes. However, a dwelling does not include a caravan, tent or a cave (PPRA, Sch 6).

38 [2.60]

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to verify the personal details of a reportable offender60 who generally resides at the dwelling (PPRA, s 21A) or to investigate whether an offence against the Transport Operations (Road Use Management) Act 1995 (Qld) or the Heavy Vehicle National Law (Queensland) has been committed (PPRA, ss 54 and 57).61

Search warrants, obtaining documents [2.70] Police can apply for a warrant to search a place including a private residence or a vehicle (PPRA, ss 150-158).62 To obtain a search warrant, the police officer will usually apply to a “justice”.63 The information in support of the warrant must be given by the police officer on oath, in person or by telephone or similar device (PPRA, ss 150(5) and 800-801). According to s 151 of the PPRA, the justice: may issue a search warrant only if satisfied there are reasonable grounds for suspecting the evidence or property mentioned in section 150(1): (a)

is at the place; or

(b)

is likely to be taken to the place within the next 72 hours.

Thus, it will not be sufficient for a police officer to be sure that the items, which is evidence of the commission of an offence or otherwise comes within PPRA, s 150(1)(b)-(d), will be at a particular place or will likely to be taken to the place.64 The police officer will also need to convince the justice to hold the same reasonable suspicion.65 If a justice, who is not a magistrate or judge, refuses to issue the warrant, the police officer can apply to a magistrate or a judge (PPRA, s 152). Only a magistrate or judge can issue a warrant requiring a person to provide access to information stored electronically (PPRA, ss 154-154B)66 and only a Supreme Court

60

A person who has committed a prescribed sexual offence against a child see the Child Protection (Offender Reporting) Act 2004 (Qld) s 5.

61

See R v Hammond & Loosemore [2016] QSC 98 at [52]-[61] where it is noted that if the officer is required to open a door to enter a dwelling he or she must have the approval of an officer of at least the rank of inspector (PPRA, s 57(2). For the definition of a place see PPRA, Sch 6.

62 63

64 65 66

PPRA, s 150(2). “Justices” or “justice” means “justices of the peace or a justice of the peace having jurisdiction where the act in question is, or is to be, performed, and includes a stipendiary magistrate and, where necessary, a Magistrates Court”: see Justices Act 1886 (Qld) (JA) s 4. PPRA, s 150(3)-(4) specifies the circumstances under which the application must be made to a magistrate and Supreme Court judge. Where the offence relates to certain other legislation, see PPRA, s 159. For a discussion of the meaning of “indictable offence”, see Chapter 5. Police Powers and Responsibility Regulations 2012 (Qld) Sch 9 s 3 specifies what details must be included on an application for a warrant. See R v Tillet (1969) 14 FLR 101 at 105-108. Police can compel a person to provide access to an electronic storage device such as a phone or computer if the police act pursuant to the terms of a search warrant authorising the police to compel access to such a devises (PPRA, s 154). A police office can also make an application to a magistrate or judge for an access information order to compel a person to provide access to a device in circumstances where they do not have s 154 authority to compel access: see PPRA, s 154A. The power to compel access is however limited as it potentially infringes the privilege against self-incrimination. It applies where police act under the authority of a warrant (s 154) or where the device is held under the authority of a warrant (s 154A). It may not apply where the seizure of the devise is authorized by a [2.70] 39

Criminal Process in Queensland

judge can issue a warrant authorising structural damage to a building (PPRA, s 150(4)).67 Search warrants end seven days after they are issued unless otherwise stated (PPRA, s 155).68 Where relevant the warrant must state certain things such as the address to be searched,69 brief particulars of the relevant offence,70 whether the warrant can be executed at night71 and the evidence or property that may be seized (PPRA ss 156-157).72 If the warrant contains inadequate detail, it will be regarded as a general warrant. General warrants are not recognised as valid by the common law and are not authorised by the PPRA.73 Homes J in R v Christensen states that:74 Whichever view one takes, the description of the offence in this case could not have set any rational parameters for the search. It identified no suspect, gave no particular as to place of offending beyond “Brisbane”, and gave a particular as to time which was nonsensical: although issued on 22 July, the warrant purported to relate to an offence on 24 July. The details of the evidence which could be seized, including an array of drugs other than methylamphetamine, bore no obvious relation to the offence alleged. This warrant, in my view, was hopelessly wide and obscure and was bad for that reason alone.

The police officer is required to leave a copy of the warrant with the occupier of the property or, if they are not present, to leave a copy in a conspicuous place (PPRA, s 158). This requirement encourages accountability. Further, the police officer must also provide the occupier with the officer’s details as soon as reasonably possible (PPRA, s 637). In executing a warrant, wherever reasonably practical, a police officer must ask the occupier to provide access to the place and the officer must allow reasonable time for the occupier to comply (PPRA, s 635).

67

68 69 70

71 72

post-search approval order (which does not retrospectively provide police with a search warrant but gives them retrospective search warrant powers PPRA, s 160(3)) or where the devise is seized in the course of a warrantless search. See R v Turner [2010] QSC 473 at [17]-[28] structural damage means damage that “impacts on the structural integrity of the building”. It does not include damage to a structure within a structure. It is quite common for search warrants to be issued for a much shorter time than seven days. PPRA, s 157(1)(a). PPRA, s 156(1)(b)(i). See Write v Queensland Police Service [2002] 2 Qd R 667 at 676 where it was held that the relevant title and section number of the QCC was insufficient to satisfy the requirement that the warrant provide brief particulars of the offence. See R v Versac [2011] QCA 318 at [15]-[17] for what information is sufficient to meets the brief particulars requirement.

73

PPRA, s 156(1)(d) and Sch 6 for a definition of night. PPRA, s 156(1)(c). Failure to adequate identify the relevant items will be viewed as an attempt by police to engage in a “fishing expedition” which is not permissible under the PPRA see Dobbs v Ward [2003] 1 Qd R 158 at 167. Police can seize items identified by the warrant and any other item that is evidence of an offence that is discovered in the course of executing the warrant or exercising arrest powers, see Island Way Pty Ltd v Redmound [1990] 1 Qd R 431. However an item will be illegally seized if it is such that its discovery did not occur incidentally to the execution of the warrant or the exercise of the power of arrest, see McFarlane v Sharp [1972] NZLR 838. See also R v N [2015] QSC 91 at [22]-[23]. See R v Christensen (2005) 156 A Crim R 397.

74

R v Christensen (2005) 156 A Crim R 397 at [8].

40 [2.70]

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The police can also use force that is reasonably necessary (PPRA, ss 157 and 614-616). In some circumstances, there will be insufficient time to obtain a search warrant. For instance, where the police officer needs to act quickly to avoid loss of evidence, it may be appropriate to carry out the search and obtain post-search approval. Such an approach can only be taken where the offence is one identified in s 159 (a)-(d) of the PPRA (which includes all indictable offences) and the police officer reasonably suspects that evidence may be destroyed or concealed if an immediate search is not carried out (PPRA, s 160).75 A police officer would not have a reasonable suspicion that the prerequisites for an emergency search exist if they have secured the relevant vehicle or premises. As the police would control who gains access to the vehicle or premises there would be no basis for reasonably suspecting that evidence could be lost.76 As soon as reasonably practicable77 after the search, the police officer who conducted the search78 is required to obtain post-search approval from a magistrate (PPRA, s 161). If the police conduct an illegal search, a post-search approval does not correct the illegalities of the search. A post-search approval simply retrospectively approve a search that, other than the absence of a warrant, was conducted lawfully.79

COVERT INVESTIGATION [2.80] In some circumstances, it will be impossible for police to obtain evidence about an offence unless they go “undercover”. Sometimes this requires police to observe and participate in illegal activities in order to maintain their cover and obtain the necessary evidence. However, in some situations police may become immersed in their cover. For example, Pollock documents a number of examples in the United States where police have become addicted to drugs during their covert investigations.80 It is not uncommon for police officers to masquerade as drug users or prostitutes in order to obtain convictions.81 These kinds of activities 75

76

77

78 79 80

81

R v Hammond & Loosemore [2016] QSC 98 at [64] where the police officers suspicion that the person was in possession of a bong was insufficient justification for an emergency search. Possession of a bong is a simple offence against the Drugs Misuse Act 1986 (Qld) s 10(2), which is not prescribed by s 159 of the PPRA. R v Day [2008] 358 at [25]; R v Pohl [2014] QSC 173 at [25]; R v P [2016] QSC 49 at [53]. A post-search is more likely to be justified in circumstances where police happen upon illegal activity and the situation could be described as fluid. See, eg, R v Briggs [2011] QSC 337. Whether the application was made as soon as reasonably practical will depend on both the time delay and the nature of the police officer’s ongoing time demands. In R v P [2016] QSC 49 at [56]-[60] a 28 day delay and in R v Day [2008] QSC 358 at [29] a 10 day delay, were both found not to be as soon as reasonably practicable. For a discussion on the meaning of the phrase “reasonably practicable”, see [2.30]. See R v Day [2008] 358 at [28]; R v Munck [2010] QSC 416 at [28] and R v P [2016] QSC 49 at [54]. See R v Day [2008] QSC 358 at [27]-[28]; R v Milos [2014] QCA 314 at [3]. J Pollock, Ethics in Crime and Justice (Wadsworth, Belmont, 1994) pp 115-116. See also the movie Rush based on the life of an undercover narcotics officer in the US (1991, directed by Lili Zanuck). Crime and Misconduct Commission, Regulating Prostitution: An Evaluation of the Prostitution Act 1991 (Brisbane, 2004) p 81. See also Wilson v The Queen [2015] NZSC 189. [2.80] 41

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raise ethical considerations.82 How far should police be able to go in order to secure evidence and convictions? Marx suggests that before undercover operations are undertaken a number of questions should be answered:83 1.

How serious is the crime being investigated?

2.

How clear is the definition of the crime?

3.

Are there alternatives to deceptive practices?

4.

Is the undercover operation consistent with the spirit and the letter of the law?

5.

Is it public knowledge that the police engage in such practices?

6.

Is the goal prosecution and not just a fishing expedition?

7.

Would the crime be likely to occur regardless of the operation?

8.

Are there reasonable grounds to suspect the target?

9.

Will the practice prevent serious crime from occurring?

In Ridgeway v The Queen,84 Australian and Malaysian police were involved in a joint undercover operation. In order to prosecute heroin traffickers and suppliers in Australia, the Australian Federal Police arranged for the importation of heroin into Australia. In the course of this activity, Ridgeway was charged with importation offences. Ultimately, the High Court found that the evidence used to convict Ridgeway had been illegally obtained and that the evidence should be excluded on public policy grounds.85 Since Ridgeway, there have been significant amendments to the PPRA, particularly in light of increasing concerns about terrorism. The powers related to covert searches and controlled activities and are discussed below. As controlled operations involve police engaging in potentially criminal conduct, strict guidelines are now applied to such operations.86

Monitoring orders [2.90] A police officer may apply to the Queensland Supreme Court for a monitoring order (PPRA, ss 198-204). Such an order directs a financial institution to provide information to the police officer about a named person. According to PPRA, s 200, the Supreme Court may make a monitoring order “if it is satisfied that there are reasonable grounds for suspecting that the person named in the application”: (a)

82 83

84 85 86 87

has committed, or is about to commit, a confiscation offence;87 or

See generally, E Colvin, “Controlled Operations, Controlled Activities and Entrapment” (2002) 14 Bond Law Review 227-250. G Marx, “Who Really gets Stung? Some Issues Raised by the New Police Undercover Work” in F Elliston and M Feldberg, Moral Issues in Police Work (Rowman and Allanheld, Totawa, NJ, 1985) pp 106-107. (1995) 184 CLR 19. See the discussion at [3.60]. Controlled operations are dealt with in Ch 11 of the PPRA. A “confiscation offence” is defined in PPRA, Sch 6 and refers to offences under the Criminal Proceeds Confiscation Act 2002 (Qld) (or parallel legislation in other jurisdictions).

42 [2.90]

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(b)

was involved in the commission, or is about to be involved in the commission, of a confiscation offence; or

(c)

has benefited directly or indirectly, or is about to benefit directly or indirectly, from the commission of a confiscation offence; or

(d)

has been, or is about to be, involved in a serious crime related activity; or

(e)

has acquired directly or indirectly, or is about to acquire directly or indirectly, serious crime derived property.

The financial institution that is the subject of the order must not disclose the fact of the existence of the order, other than to their lawyer for the purposes of obtaining advice, or to a police officer, or to officers or agents of the institution for the purposes of complying with the order (PPRA, s 204). Such orders are obviously very useful for police in enabling them to track the proceeds of crime.

Covert searches [2.100] An application for a covert search warrant may be made to the Queensland Supreme Court to enter and search property for evidence of a “designated” offence, terrorism or organised crime (PPRA, ss 211-220). “Designated” offences include offences where, if convicted, the person may be sentenced to life imprisonment – that is, where the offence involves a serious risk of death or serious injury to a person, unlawful killing, attempted murder or conspiracy to murder (PPRA, Sch 6).88 “Terrorism” is defined in s 211 of the PPRA and “organised crime” means “an ongoing criminal enterprise to commit serious indictable offences in a systematic way involving a number of people and substantial planning and organisation” (PPRA, Sch 6). The definition of “organised crime” is very broad and could cover offences such as drug trafficking89 or stealing90 where there is an organised group that steals cars, changes identifying features and on-sells the cars. To apply for a covert search warrant, the police officer must have at least the rank of Inspector (PPRA, s 212) and the judge must hear the application in the absence of the person who is the subject of the application. However, the applicant police officer, a “public interest monitor” and the applicant’s and/or monitor’s lawyer will usually be present for the hearing of the application (PPRA, s 213). The “public interest monitor’s” (monitor) role under the PPRA was developed in 1998 in response to the Fitzgerald Inquiry to ensure that broad issues of public interest and accountability are covered in certain circumstances.91 The role of the monitor is, among other things, to monitor applications for covert search warrants (PPRA, ss 740 and 742). The monitor also gathers statistical information about the effectiveness of covert search warrants and may report police misconduct to either the CCC or the Parliamentary Crime and Corruption Committee (PCCC) (PPRA, s

88 89 90 91

See also QCC, ss 300, 306 and 309. Drugs Misuse Act 1986 (Qld) s 5. QCC, s 395. The monitor also has functions under other legislation: see, eg, Terrorism (Preventative Detention) Act 2005 (Qld). [2.100] 43

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742).92 The monitor is required to submit an annual report setting out statistical information to the Minister (PPRA, s 743).93

Controlled activities and controlled operations [2.110] Chapters 10 and 11 of the PPRA set out the requirements for engaging in controlled activities (PPRA, ss 221-227) and controlled operations (PPRA, ss 228-277). The controlled activities and controlled operations regimes provide for the authorisation of law enforcement officers to engage in criminal conduct. As stated above, law enforcement officers have traditionally engaged in what are commonly called “sting” or “entrapment” operations, which include officers committing offences in order to collect evidence of criminal conduct. The controlled activities and controlled operations regimes were enacted to ensure there are limits on the nature and duration of illegal conduct engaged in by officers. The legislative regimes also provide certainty as to consequences of engaging in such conduct and ensures that the conduct is subjected to appropriate oversight. Law enforcement officers must not engage in unlawful conduct except in accordance with the controlled activities and controlled operations regimes. There is however, an exception, which allows officers to investigate minor matters and to investigate activities that, by their nature, cannot be planned (PPRA, ss 222(2) and 230(3)). Controlled activities may only be carried out where the police officer considers that it is reasonably necessary to obtain evidence about “controlled activity offences” (PPRA, s 224). According to s 221 of the PPRA, a “controlled activity offence” means a seven-year imprisonment offence, an indictable offence mentioned in Sch 2 of the PPRA, or an indictable or simple offence mentioned in Sch 5 of the PPRA. Thus, controlled activities may relate to a broad range of offences, including the possession of objectionable films or computer games, brothel offences, stealing, fraud and wilful damage. The public interest monitor does not monitor controlled activities. Controlled activities involve one or more meetings between a police officer and a person where the police officer deliberately conceals the true purpose of their communication with the person. Controlled activities must be authorised by a police officer with at least the rank of Inspector. In providing such authority, the authorising officer must have regard to the nature or extent of the activity and must reach a finding that the activity is appropriate in the circumstances. The authority lasts for no longer than seven days (PPRA, s 224). The PPRA provisions protect the person who authorised the activity and the officer who engage in the controlled activity from both civil and criminal liability. However, the protection does not extend to circumstances where the police officer’s actions or omissions in carrying out the controlled activity result in injury, death or serious damage or loss of property (PPRA, s 225). Evidence gathered as a result of a controlled activity is not inadmissible merely because it was obtained by an unlawful act carried out in the context of an authorised controlled activity (PPRA, s 226). However, such evidence may be inadmissible for other reasons – 92 93

The roles of the CCC and PCMC are examined in Chapter 3. For a discussion about the development and role of the public interest monitor, see NSW Law Reform Commission, Surveillance: An Interim Report, Report No 98 (2001) at [6.45].

44 [2.110]

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for example, see the discussion of the exclusion of evidence on public policy grounds (at [3.60]). The controlled operations regime allows law enforcement officers to engage in larger scale activities over an extended period of time. Controlled operations are directed at a more limited range of serious offences than controlled activities. They can be conducted by either the police or by law enforcement officers acting under the auspices of the CCC (PPRA, s 229). Applications to conduct controlled operations are also subjected to a greater degree of scrutiny than controlled activities, including review by the Controlled Operations Committee (PPRA, ss 232-238).94

ARREST [2.120] Despite the almost comprehensive nature of the PPRA, it does not include a definition of “arrest”. The power of arrest involves the deprivation of an individual’s freedom.95 If a police officer unlawfully detains a person, there may be civil and criminal action taken in relation to assault and false imprisonment.96 For example, in Bulsey v Queensland97, the first appellant delivered a speech at a meeting on Palm Island following the death in police custody of his close friend Mr Mulrunji Doomadgee. Sometime after the meeting, a riot broke out resulting in the police station being set alight and buildings being destroyed. Based on a video recording of the events and on the police “running sheets”, Detective Miles prepared a list of people to be arrested in connection with the offences committed during the riot. Detective Miles returned to Townsville before the Special Emergency Response Team (SERT), acting on the basis of the list prepared by Detective Miles, arrested the first appellant. Just before 6am, members of the SERT wearing black helmets and masks forced their way into the first appellant’s home, which he shared with the second appellant and their six children. The first appellant gave evidence that he awoke to the sound of loud noises and the next thing he knew he was on the floor handcuffed with guns pointing at him. He gave evidence that he was taken outside with only a towel wrapped around him and it was not until he was in the street that the police provided him with a pair of trousers. The police took him to the airport where he heard that his wife had been taken to hospital. He was both scared and worried about his pregnant partner’s wellbeing. He was flown to Townsville and taken to the police station. He was 94 95 96

97

For reasons of space, controlled operations are not dealt with in detail. However, note the protections and restrictions in the PPRA, ss 258-262. Williams v The Queen (1986) 161 CLR 278 at 305 per Wilson and Dawson JJ, who describe arrest as the “beginning of imprisonment”. See, eg, New South Wales v Delly (2007) 70 NSWLR 125; [2007] NSWCA 303 where compensatory damages were awarded for unlawful arrest. See also Arndt v Rowe [2001] QDC 313 and Whitelaw v O’Sullivan [2010] QCA 366 where police officers were convicted of assault for the use of excessive force whilst purporting to exercise the power of arrest. See also R v Hardy [2010] QCA 28 which concerned a person being handcuffed and whether this constituted excessive force in the execution of an arrest or whether the person was handcuffed before arrest, thus making the arrest unlawful. The court found (at [35]) that the mere fact of arrest did not justify the use of handcuffs. See further at [2.470]. [2015] QCA 187. [2.120] 45

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subsequently interviewed and refused watch house bail. As it was a Saturday the first appellant had to wait until Monday before he was taken before a magistrate and granted bail. The arrest of the first appellant was illegal as the officers who arrested him were following the directions of Detective Miles and they did not personally hold the requisite reasonable suspicion that the first appellant had committed an indictable offence (PPRA, s 365(2)).98 The Court of Appeal found the respondents liable for the tort of assault, battery and false imprisonment.99 The second appellant, the first appellant’s wife, was also successful in her action for false imprisonment. She was the only person awake when the police arrived. She observed armed members of the SERT surround her home. She tried to open the door but the police used force to gain entry. A number of armed members of the SERT entered the home yelling orders and waving their firearms around. Although she was seven months pregnant, she was initially ordered to lay down on the ground before being ordered to sit on the couch. Fraser JA in the Court of Appeal stated that:100 In the situation described in the evidence, the respondent’s argument that the second appellant’s will was not wholly overborne cannot be accepted. The fact that the police gave the second appellant permission to sit on the couch after she explained her inability to lie on her stomach or sit on the floor hardly detracts from the conclusion that the police controlled her movements. In short, the second appellant was made a frightened and shocked prisoner in her own home. There being no lawful justification for that, the second appellant proved the respondent was liable for the tort of false imprisonment.

Another consequence of unlawful detention is that evidence collected as a result of the unlawful detention may be excluded.101 It is also the case that the lawfulness of an arrest may fluctuate between lawful and unlawful.102 There are at least two contexts in which an arrest takes place. The first is the physical restraint of the arrested person, which may or may not be associated with words.103 The second is the use of words coupled with the submission of the arrested person. An arrest does not require physical restraint in order to be

98

In response to the decision, Queensland Parliament enacted s 365A of the PPRA, which authorises police to arrest a suspect when instructed to do so by another police officer. See Explanatory Notes, Australian Crime Commission (Queensland) and Other Legislation Amendment Bill 2016 p 2.

99 100

He was awarded $165,000 in damages. [2015] QCA 187 at [75]. See also Henry v Thompson [1989] 2 Qd R 412 where the respondent, and Aboriginal man, successfully sued three police officers for assault. The respondent was arrested for the use of indecent language and taken to the local police station. At the station where he was punched and knocked to the ground, one officers then jumped up and down on his head and shoulders and another officer urinated on the respondent’s stomach. In the context of an unlawful search see, eg, R v Versac (2013) 227 A Crim R 569 at [4]-[8] and [44]-[88]; R v P [2016] QSC 49 at [61]-[118] and R v Munck [2010] QSC 416 at [34]-[61] (where the interview was found to be involuntary). See Michaels v The Queen (1995) 184 CLR 117; Mackenzie v The Queen (2004) 150 A Crim R 451 at [53]-[60]. See Conley (1982) 30 SASR 226 at 239-40 where King CJ stated that the one overriding requirement of an arrest is that the person must be deprived of his or her liberty. See also G Williams, “Requisites for a Valid Arrest” (1954) Criminal Law Review 6 at 11-14.

101

102 103

46 [2.120]

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effected. In Alderson v Booth, it was noted that words may be sufficient to constitute an arrest, but they are not always necessary.104 Lord Parker CJ said that:105 There are a number of cases, both ancient and modern, as to what constitutes an arrest, and whereas there was a time when it was held that there could be no lawful arrest unless there was an actual seizing or touching, it is quite clear that that is no longer the law. There may be an arrest by mere words, by saying “I arrest you” without any touching, provided, of course, that the defendant submits and goes with the police officer. Equally it is clear, as it seems to me, that an arrest is constituted when any form of words is used which in the circumstances of the case were calculated to bring to the defendant’s notice, and did bring to the defendant’s notice, that he was under compulsion and thereafter he submitted to that compulsion.

In the case of Delit v Small, the police officer had explained to the suspect that he was arresting him. On appeal, the words of the police officer were considered sufficient for a valid arrest.106

PPRA: arrest [2.130] Under the common law, the power to arrest a person reasonably suspected of having committed a crime, is given for the purpose of enabling that person to be brought before a justice as soon as reasonably practicable so that they may be dealt with according to law.107 In Queensland, lawful arrest can continue for the purpose of investigation and a police officer may arrest a person either with or without a warrant, depending on the circumstances. The provisions associated with arrest and custody powers are located in Ch 14 of the PPRA, which sets out certain circumstances for a lawful arrest. These are discussed below.

Arrest without a warrant [2.140] Section 365(1) of the PPRA states that it is lawful for a police officer to arrest an adult without a warrant where the police officer reasonably suspects the adult has committed, or is committing, an offence.108 Pursuant to s 365(1) of the PPRA, the arrest must also be reasonably necessary for one of the specific reasons listed in the PPRA.109 The reasons are listed as (PPRA, s 365(1)): (a)

to prevent the continuation or repetition of an offence or the commission of another offence;

(b)

to make inquiries to establish the person’s identity;

104 105 106

107 108 109

Alderson v Booth [1969] 2 QB 217.See also Bulsey v Queensland [2015] QCA 187 at [12]-[13] and Police v Thompson [1969] NZLR 513. [1969] 2 QB 217 at 220. Dellit v Small [1978] Qd R 303. See also Wood v Director of Public Prosecutions [2008] EWHC 1056 where the suspect was not informed he was being arrested and resisted. The restraint by police was held to be unlawful. See further Hatzinikolaou v Snape (1989) 41 A Crim R 389 and Byczho (1981) 7 A Crim R 263. Williams v The Queen (1986) 161 CLR 278 at 283; [1986] HCA 88 at [5] per Gibbs CJ. The lawfulness of the arrest is not affected if the person is later found not to have committed an offence: see Ghani v Jones [1970] 1 QB 693. It is for the prosecution to identify the grounds upon which the accused was arrested and the trial judge is not to identify alternative grounds not relied upon by the prosecution: see R v Hardy [2010] QCA 28 at [34]. [2.140] 47

Criminal Process in Queensland

(c)

to ensure the person’s appearance before a court;

(d)

to obtain or preserve evidence relating to the offence;

(e)

to prevent the harassment of, or interference with, a person who may be required to give evidence relating to the offence;

(f)

to prevent the fabrication of evidence;

(g)

to preserve the safety or welfare of any person, including the person arrested;

(h)

to prevent a person fleeing from a police officer or the location of an offence;

(i)

because the offence is an offence against section 790 or 791;

(j)

because the offence is an offence against the Domestic and Family Violence Protection Act 2012, section 177, 178 or 179;

(k)

because of the nature and seriousness of the offence;

(l)

because the offence is— (i) (ii)

an offence against the Corrective Services Act 2006, section 135(4); or an offence to which the Corrective Services Act 2006, section 136 applies.

In response to the Court of Appeal decision in Bulsey v Queensland110 [see at 2.120] the parliament enacted an exception to the requirement that the arresting officer must hold the requisite reasonable suspicion. It is now lawful for a police officer to follow the instructions of another police officer, provided that the other officer holds a reasonable suspicion as to the existence of the prescribed circumstances and it was not practicable for the other officer to conduct the arrest or for the arresting officer to personally form the required reasonable suspicion (PPRA, s 365A). The exception is intended to have application to “large scale operations and in exigent circumstances”.111 There are a number of alternatives available to arrest, such as issuing a notice to appear (discussed at [2.190]). Such alternatives should be preferred where arrest is not reasonably necessary. For example, where the (suspected) offence is trivial, an alternative approach to arrest should be preferred. The requirement that the arrest be reasonably necessary should address the problem of the police arresting people on trivial charges, or “holding charges”, in order to investigate or interrogate a suspect in relation to other more serious charges where any suspicion is not reasonable.112 Importantly, s 365(2) of the PPRA specifically states that it is lawful for a police officer, without a warrant, to arrest a person whom the police officer reasonably suspects has committed, or is committing, an indictable offence, “for the purpose of questioning” the person about the offence, or for the investigation of the offence 110 111

Bulsey v Queensland [2015] QCA 187. Explanatory Notes, Australian Crime Commission (Queensland) and Other Legislation Amendment Bill 2016 p 2.

112

See, eg, Walters v Lawler [2001] QDC 204 per O’Sullivan J; see also Spratt v Blake (1997) 92 A Crim R 91. See further, A Hemming, M Kumar and E Peden, Evidence: Commentary and Materials (8th ed, Thomson/Lawbook Co., Sydney, 2013) pp 753-754.

48 [2.140]

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(under PPRA, Ch 15). If a police officer wishes to interview a suspect, the suspect may be arrested pursuant to this provision. Once the person is under arrest, various protections exist in the PPRA to ensure that police perform their functions appropriately and within justifiable limits. Section 365(2) thus avoids any question of whether the suspect was acting consensually with police officers. This has been problematic in the past as there are no clear limits as to when a police officer can or is exercising power with the “consent” of the suspect.113 In limited circumstances, children may be arrested without a warrant.114

Arrest with a warrant [2.150] Police may arrest a person named in a warrant (PPRA, ss 369-373). Where a warrant is issued, “arrest” is defined to include “apprehend, take into custody, detain, and remove to another place for examination or treatment” (PPRA, s 369). Police officers must apply to a justice for a warrant (PPRA, s 370).115 The justice may issue an arrest warrant only if they are satisfied there are reasonable grounds for suspecting that the person has committed the offence. In circumstances where the relevant offence is a non-indictable offence,116 the justice must also be satisfied that proceedings by way of complaint and summons,117 or notice to appear118 for the offence, would be ineffective (PPRA, s 371). This approach encourages police to pursue alternatives other than arrest for non-indictable matters. An arrest warrant must state the name of the applicant for the warrant and the applicant’s rank, registered number and station. The warrant must also state that any police officer may arrest the person named in the warrant and it must identify the offence that the person is alleged to have committed119 (PPRA, s 372).

Information to be provided upon arrest [2.160] Regardless of whether the person is arrested under a warrant or not, the arresting officer must tell the person they are under arrest and the offence for which they are arrested as soon as practicable after the arrest (PPRA, s 391). Where a police officer arrests a person with a warrant, the police officer must inform the person that they are under arrest and the reason for the warrant. Before the person is released from police custody, a police officer must give to the person, in writing, the name, rank and station of the arresting officer. These requirements

113

114

115 116 117 118 119

Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane, 1993) Vol III, pp 602-604; see also D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz, Criminal Laws (5th ed, Federation Press, Sydney, 2015) p 450-453. See Youth Justice Act 1992 (Qld) s 13; PPRA, s 365(3). Children are dealt with differently from adults in the criminal justice system for a range of reasons. For a discussion of some of the differences in approach, see D Palmer, W de Lint and D Dalton, Crime and Justice: A Guide to Criminology (5th ed, Lawbook Co., 2016) Ch 5. Note also Justices Act 1886 (Qld) s 57, which allows the justice to issue a warrant for arrest in particular circumstances. For a discussion of the meaning of “indictable offence”, see Chapter 5. See [2.200]. Discussed at [2.190]. On this point, see at [2.50] and the discussion of New South Wales v Corbett (2007) 230 CLR 606; [2007] HCA 32. [2.160] 49

Criminal Process in Queensland

encourage accountability – the information provided to the arrested person will assist them in any complaint they may wish to pursue.

Obligation to take the arrested person to a court [2.170] If a police officer arrests a person, the police officer must, as soon as reasonably practicable, take the person before a court (PPRA, s 393; Justices Act 1886 (Qld) s 65). This consideration will not be relevant where the police officer releases the person without charging them, or decides to use an alternative approach to arrest (see [2.180]), or where bail is granted.120 The failure to take a person to a court as soon as is reasonably practicable may amount to unlawful detention. This may ultimately lead to the court’s exclusion of any evidence obtained during the period of unlawful detention. The unlawfully detained person may also succeed with a civil action.121 As to what length of time is considered to be “as soon as reasonably practicable” varies depending on the time of the arrest, the time it takes to lay charges and the availability of a magistrate. Prior to the enactment of the PPRA what was considered to be “as soon as reasonably practicable” did not take into account the time needed to question the suspect or to conduct further investigation.122 In Williams v The Queen Mason and Brennan JJ state that:123 If a person cannot be taken into custody for the purpose of interrogation, he cannot be kept in custody for that purpose, and the time limited by the words “as soon as practicable” cannot be extended to provide time for interrogation. It is therefore unlawful for a police officer having the custody of an arrested person to delay taking him before a justice in order to provide an opportunity to investigate that person’s complicity in a criminal offence, whether the offence under investigation is the offence for which the person has been arrested or another offence.

However, under s 403 of the PPRA a suspect can be questioned before being taken before a court [see [2.280]-2.360]. What is reasonably practicable in a particular case is a question of fact.124 Where the person has been arrested and there is no complaint in writing, the details of the charge will be entered on the Bench charge sheet and a copy will be provided to the court (JA s 42(2)).

120 121

122

123 124

See PPRA, s 393(2); and the discussion on bail in Chapter 4 at [4.20]. See Michaels v The Queen (1995) 184 CLR 117 for a discussion of when unlawful detention may subsequently become lawful. See also Spratt v Blake (1997) 92 A Crim R 91 in relation to holding charges and Bulsey v Queensland [2015] QCA 189 discussed above. Note that s 137 of the QCC creates an offence where a person “wilfully and without lawful excuse” delays taking a person before a justice. If a person was arrested out of court hours, the person could be question during the period prior to the court opening. However, police could not delay bring a person before the court in order to question the suspect or conduct further investigations. The law therefore provided police with the incentive to arrest suspects in the early part of the evening or over the course of the weekend so as to maximize the time available before they took the person before the court. (1986) 161 CLR 278 at 295: see also pages 297 and 312. For the contrary view, see Gibbs JC at pages 283-285.). Williams v The Queen (1986) 161 CLR 278 at 283.

50 [2.170]

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ALTERNATIVES TO ARREST [2.180] When arrest is unnecessarily and inappropriately exercised, the consequences “are often anger on the part of the person arrested and an escalation of the situation leading to the person resisting arrest and assaulting police”.125 This pattern of escalation is often called the “trifecta”126 – for example, a person may use offensive language, which results in their arrest and which, in turn, leads them to become angry and resist or assault police.127 This problem has been particularly pronounced in Indigenous communities where, for instance, people are arrested for drinking in a public place.128 In Coleman v Power, the High Court discussed public order offences and implied that a certain level of seriousness is required before “offensive” conduct will amount to a criminal offence.129 The majority of the High Court also narrowly construed the offence of “insulting words”.130 The approach of the High Court necessarily places limits on the role of arrest in public order offending. Prior to various changes brought about by the PPRA, police in Queensland relied heavily on arrest powers.131 Police now have a variety of alternatives available to them, which helps to avoid and minimise the stress associated with arrest.

Notice to appear [2.190] The notice to appear process provides an alternative to arrest and to proceeding by complaint and summons (PPRA, ss 382-390). Where the police officer reasonably suspects that a person has committed or is committing an offence, they may issue and serve on the person a notice to appear (PPRA,

125

126 127 128

129

130 131

DPP v Carr (2002) 127 A Crim R 151; [2002] NSWSC 194 at [35] per Smart AJ. Note also PPRA, ss 790 and 791. See also S Lilburn, “Arresting Moments: Identifying Risks for Women and their Children from the Time of Police Arrest” (2001) 26(3) Alternative Law Journal 115. C Feerick, “Policing Indigenous Australians: Arrest as a Method of Oppression” (2004) 29 Alternative Law Journal 188. See also T Walsh, “Offensive Language, Offensive Behaviour and Public Nuisance: Empirical and Theoretical Analyses” (2005) 24 University of Queensland Law Journal 123 at 141-143. J H Wootten, “Royal Commission into Aboriginal Deaths in Custody”, Report of the Inquiry into the Death of David John Gundy (AGPS, Canberra, 1991) pp 286-287. For a copy of the report, see: http://www.austlii.edu.au/au/other/IndigLRes/rciadic/individual/brm_djg/130.ht ml. Viewed 15/04/2017. For an example of how matters can spiral out of control, see J Corrin and H Douglas, “Another Aboriginal Death in Custody: Uneasy Alliances and Tensions in the Mulrunji Case” (2008) 28(4) Legal Studies 531. Coleman v Power (2004) 220 CLR 1; see also T Walsh, “The Impact of Coleman v Power on the Policing Defence and Sentencing of Public Nuisance Cases in Queensland” (2006) 6 Melbourne University Law Review 1, 2 and Andrews v Rockley [2008] QDC 104 where the appellant’s public nuisance conviction for nude sunbathing was set aside as the court could not be satisfied that his flaccid penis was visible by members of the public who were traversing the beach. In any event, the appellant held an honest and reasonable mistaken belief (QCC, s 24) that his penis was not visible. (2004) 220 CLR 1 at 25 per Gleeson CJ, at 73 per Gummow and Hayne JJ, and at 99 per Kirby J. See also Saunders v Herold (1991) 105 FLR 1 and Hortin v Rowbottom (1993) 68 A Crim R 381; Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane 1993) App 8 at A28. [2.190] 51

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s 382).132 The notice, which is signed by the police officer, sets out details of the offence alleged to have been committed and details of the time and place for the associated court appearance (PPRA, s 384). The notice is then lodged with the court and the matter then proceeds in the same way as a matter initiated by arrest or a complaint and a summons matter. Over 50% of matters proceed by notice to appear.133 Notices to appear have been issued for offences as diverse as sexual assault, robbery and drug-related offences.134 A notice to appear can be issued where arrest is not reasonably necessary (PPRA, s 365). The CJC found a dramatic reduction in the use of the “complaint and summons”135 process by police shortly after the notices were introduced.136

Complaint and summons [2.200] Another way of ensuring the accused’s appearance before the court is to proceed via a “complaint and summons” (JA(Qld), ss 42-56A, 58). The police officer will make a written complaint and, in response, the justice may issue a summons requiring the person complained about to appear before the court. The summons is served on the suspected person and states the date and place of the relevant court hearing. However, the “complaint and summons” process is considered to be cumbersome and time-consuming and the “notice to appear” process is generally preferred.137

Discontinuing arrest [2.210] Chapter 14, Pt 4 of the PPRA allows for discontinuation of arrest in certain circumstances (PPRA, ss 375-381). If the arrested person is released under this Part, the charge associated with their arrest is also discontinued (PPRA, s 375). For example, the person’s arrest may be discontinued when the police decide that there is no longer a reasonable suspicion that justifies the arrest. This situation might occur, for instance, after the police have interviewed the person (PPRA, s 376). Alternatively, after arresting the person, the police officer may decide that 132

As discussed above, it can also be issued where a police officer is asked to do so by another police officer who holds the requisite reasonable suspicion: PPRA, s 328(2)(b).

133

Criminal Justice Commission, Police Powers in Queensland: Notices to Appear, Research Paper, Vol 5, No 2 (Brisbane, 1999) p 4: http://www.ccc.qld.gov.au/research-and-publication s/publications/cjc/police-powers-in-queensland-notices-to-appear-research-paper-vol-5-no2. pdf. Viewed 15/04/2017. Note that the CCC in the Volkers investigation considered whether a sexual assault charge should have been dealt with on a notice to appear: see Crime and Misconduct Commission, The Volkers Case: Examining the Conduct of the Police and the Prosecution (Brisbane, 2003) pp 14-17: http://www.ccc.qld.gov.au/research-and-publications/publications/misconduct/the-vo lkers-case-examining-the-conduct-of-the-police-and-prosecution.pdf. Viewed 15/04/2017. See discussion at [2.200]. Criminal Justice Commission, Police Powers in Queensland: Notices to Appear, Research Paper, Vol 5, No 2 (Brisbane, 1999) p 6: http://www.ccc.qld.gov.au/research-and-publication s/publications/cjc/police-powers-in-queensland-notices-to-appear-research-paper-vol-5-no2. pdf. Viewed 15/04/2017. Corrective services continue to use the complaint and summons to initiate a breach of a community based order where the notice to appear process is not available. For a discussion of sentencing options, including community based orders, see Chapter 12.

134

135 136

137

52 [2.200]

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arrest is not the best way to pursue the matter (PPRA, s 377). Where a person is arrested for being intoxicated in a public place, arrest may be discontinued once the person is delivered to a hospital or other safe place (PPRA, s 378). In addition, where a person is arrested for being intoxicated in a public place or for a public nuisance offence, the arrest may be discontinued so that the person can be transported to a sober safe centre (PPRA, s 378A). In certain cases involving minor drugs matters, the person’s arrest may be discontinued and they may be diverted to a drug diversion assessment program (PPRA, s 379).138 In other cases, the arrest of a child may be discontinued and the child may be cautioned or warned (PPRA, s 380).139 Once the person’s arrest is discontinued, the police officer requires new evidence in order to re-arrest (PPRA, s 381).

Other options Infringement notices and on-the-spot fines [2.220] Some offences can be dealt with by an infringement notice, which requires the payment of a fine. Some infringement notices are issued “on the spot” – for example, parking fines – while others are posted in the mail – for example, speed camera tickets. Certain organisations are approved by government to issue infringement notices.140 In Queensland, in 2008, the CMC (now the CCC) released their report on policing nuisance offences and noted that most nuisance offences passed through the courts on a guilty plea or were heard ex parte. The CMC recommended that: • on-the-spot fines would improve efficiency and cost savings for both the police and courts; • for nuisance offenders no conviction should be recorded; and • fines should be lower and more consistently applied.141 The CMC also noted risks associated with the ease of issuing on-the-spot fines as against more informal resolutions of public space issues, including the use of cautions and move-on powers (see below). In 2010, Queensland police were given the power to order on-the-spot-fines for public nuisance, urinating in a public place and obstructing police or contravening a police direction in relation to public nuisance or urinating in a public place (PPRA, s 394). The offences for 138

139

140 141

See also s 379A of the PPRA which provides that police can, at any time prior to a court appearance, discontinue proceedings against a child who is 12 years or older for a graffiti offence and offer the child the opportunity to participate in a graffiti removal program. Some research suggests that most children who are cautioned will not reoffend: see S Dennison, A Stewart and E Hurren, Police Cautioning in Queensland: The Impact on Juvenile Offending Pathways, Report No 306 (Australian Institute of Criminology, 2006) p 5: http://w ww.aic.gov.au/media_library/publications/tandi_pdf/tandi306.pdf. Viewed 15/04/2017. For police procedures in regard to the caution in this context, see Youth Justice Act 1992 (Qld) ss 14-21. In Queensland, note that the State Penalties Enforcement Registry manages the payment of fines: see http://www.sper.qld.gov.au. Viewed 15/04/2017. Crime and Misconduct Commission, Policing Public Order: A Review of the Nuisance Offence (Brisbane, 2008) p xix: http://www.ccc.qld.gov.au/research-and-publications/publications/p olice/2008-review-of-the-public-nuisance-offence/review-public-nuisance.pdf. Viewed 15/04/ 2017. [2.220] 53

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which infringement notices can be served are outlined in the State Penalties Enforcement Regulations. The regulations dictate what offending can be charged by infringement notice and how many penalty units each offence is worth. Almost 80% of such offences involve police as complainants, including resisting, obstructing or disobeying their directions and on-the-spot fines can now also be issued for these matters.142

Move-on powers and warning for consorting [2.230] In some circumstances, an alternative to arrest may be to ask the person to “move on”. These powers can be exercised in the absence of a reasonable suspicion that the person has committed, or is committing, an offence. The threshold for the exercise of move-on powers is much lower than for arrest. When they were introduced move-on powers were considered to be very controversial. It was argued, for example, that the exercise of such powers would inevitably impact on those who have few places to move to,143 and that they may also disproportionately affect Indigenous people. In 2010, the CJC published its review of the move-on powers. It found that young adult males between the ages of 17-24 were the most likely group to be moved on. Disturbingly, however, the CJC reported that one six-year-old had been directed to move on and over a two-year period police had directed juveniles under 13 years of age to move-on on 144 occasions. In the same two-year period, 42.6% of all move-on directions were given to Indigenous Australians, which meant that Indigenous Australians were 20 times more likely to be directed to move on than non-Indigenous people.144 [2.240] The move-on powers are set out in ss 44-49 of the PPRA. Section 46 of the PPRA prescribes that a police officer can direct a person to move on if the person is at or near a public place or a prescribed place and the police officer reasonably suspects that the person’s behaviour is or has adversely affected others in the area in one of four ways. Section 47 of the PPRA is similar but it is significantly more controversial. It prescribes that a police officer may direct a person to move on if the person is in a public place or a prescribed place145 and the police officer reasonably suspects the person’s mere presence is or has been: (a)

causing anxiety to a person entering, at, or leaving the place, reasonably arising in all the circumstances; or

(b)

interfering with trade or business at the place by unnecessarily obstructing, hindering or impeding someone entering, at, or leaving the place;

(c)

disrupting the peaceable and orderly conduct of any event, entertainment or gathering at the place.

142

Summary Offences and Other Acts Amendment Bill (Hansard, 11 November 2008), p 3368 (Hon J C Spence). See, eg, T Walsh and M Taylor, “You’re Not Welcome Here: Police Move-On Powers and Discrimination Law” (2007) 30(1) University of New South Wales Law Journal 151. Crime and Misconduct Commission, Police move-on powers: A CMC review of their use (December 2010) pp 18-19. From the date, it was not possible to determine the impact of move-on powers on the homeless.

143 144

145

For a list of prescribed places, see PPRA, Sch 6.

54 [2.230]

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The direction to move on should not be given unless it is reasonably necessary in the interests of “public safety, public order or the protection of rights and freedoms of other persons” (PPRA, s 48). The person can receive quite specific directions, which may include a direction not to return to the place for up to 24 hours. However, the direction given must be reasonable in light of the circumstances in which it is given. The police officer must give reasons for the order and if practical, they must warn the person that it is an offence to fail to comply with the order. Having given the warning, the police must allow the person reasonable opportunity to comply with the direction (PPRA, s 633). The officer who gives a move-on direction must also, as soon as reasonably practical, provide his or her particulars such as name, rank and station (PPRA, s 637).146 The application of the move-on powers was explored in Rowe v Kemper.147 Rowe was a 65 year old homeless man who was using the public toilets, in Brisbane’s Queen St mall to change his clothes. The cleaner, Doman, arrived and he asked Rowe to leave the toilet block. Rowe asked for and received more time to finish using the toilet block. After Doman once again asked Rowe to leave, the two men argued. Doman went for the police and four police officers returned to the scene. Two officers where escorting Rowe away from the toilet when he became defiant and insisted that the officers provide their particulars. Rowe was given a formal direction to leave the area and not return for eight hours. Almost immediately after this direction was given, the police officers arrested him for contravening a direction.148 At his subsequent trial, the magistrate convicted Rowe of contravening a police direction and of obstructing police in the performance of their duty. Rowe unsuccessfully appealed to the District Court however on appeal to the Court of Appeal, the verdicts were set aside and an acquittal was entered on both counts. The Court of Appeal’s decision clarifies the operation of the move-on powers in four respects. First, the officer’s reasonable suspicion that the direction to move-on can be given must be based on the person’s present and past behaviour and not on the officer’s prediction as to the possible impact of the person’s future behaviour or presence.149 Second, it is necessary to identify the police officer’s reasons for directing the person to move-on and it is not open to the court to identify and act on alternative reasons that appear to have been open to the officer. At trial, the police officer gave evidence that he gave a direction to Rowe because the officer reasonably suspected that Rowe’s behaviour was causing anxiety to Doman (PPRA, s 47(1)(a)). The magistrate also relied on the fact that it was open to police to give a direction as, when Rowe became defiant, it was reasonable to suspect that he was being disorderly (PPRA, s 46(1)(c)). The Court of Appeal held that as the police can only act if they hold a subjective suspicion that is reasonable in the circumstances, it was not open to the magistrate to identify alternative suspicions that may or may not have existed at the time.150 Third, the direction given must be reasonable when considered in light of the reasons for the

146 147 148

See Rowe v Kemper [2009] 1 Qd R 247 at 280 [110] per Mackenzie AJA. However, McMurdo P at 258-259 [25] and Homes JA at 273-274 [80] were less unequivocal in their views. Rowe v Kemper [2009] 1 Qd R 247. See further at [2.480].

149

Rowe v Kemper [2009] 1 Qd R 247 at 256 [13].

150

Rowe v Kemper [2009] 1 Qd R 247 at 257 [17], 271-272 [68]-[70]. [2.240] 55

Criminal Process in Queensland

police giving the direction. The officer in Rowe’s case gave the direction because he reasonably suspected that Rowe’s failure to leave caused Doman anxiety, and he was unable to clean the toilet. The direction to leave the area for 8 hours was unlawful as it “was not closely linked or related, and was disproportionate” to the need to remove Rowe so that the toilet could be cleaned.151 Fourth, the legislation sets out a sequence that must be followed. The officer must form the requisite reasonable suspicion, he or she must give a direction, if reasonably practicable, the officer must then give a warning that it is an offence to fail to comply with the direction in the absence of a reasonable excuse, and a second warning must be given that the failure to comply with the direction, may result in arrest. Having given the warnings, the officer must provide the person with a reasonable opportunity to comply (PPRA, s 633). Only after the sequence has been followed and the person fails to move-on will there be a contravention of a lawful direction. Holmes JA found that Rowe had not contravened a lawful direction as the officer had only warned him that he could be arrested and the officer had not warned him that if he failed to comply he could be charged with an offence. On the other hand, McMurdo P and Mackenzie AJA found that Rowe had not contravened a lawful direction, as the officer had not given him a reasonable opportunity to comply. McMurdo P pointed to the fact that Rowe was 65 year old, his actions were slow and deliberate “[h]e obviously needed more time than many others might need to comply with a direction like the one given”.152 The Serious and Organised Crime Legislation Amendment Act 2016 extends police powers to take pre-emptive action to reduce the risk of offending. The Act amends the PPRA to allow police officers to give an official warning for consorting,153 to a person who is not a child (PPRA, s 53BAB), in circumstances where the officer reasonably suspects that a person has consorted, is consorting or is likely to consort with 1 or more recognised offenders154 (PPRA, s 53BAC). The warning can be given orally or in writing155 and it must state that the identified person[s] is a recognised offender and that consorting with the recognised offender on a further occasion may constitute an offence of habitual consorting (QCC, s 77B).156 If the person, who is warned, is at a place with the recognised offender the person may be given a direction to leave the place and not return for a reasonable period of not more than 24 hours (PPRA, s53BAE).157 It is an offence to fail to comply with a direction (PPRA, s 791).

151 152 153 154

155 156 157

Rowe v Kemper [2009] 1 Qd R 247 at 258 [22], 272 [72]-[73] and 275-276, 281-282 [90]-[91], [115]. Rowe v Kemper [2009] 1 Qd R 247 at 258 [24] and 283 [120]. The term consort is broadly defined by the QCC, s 77A. A recognised offender is defined as a person who has been convicted of an offence that has a maximum penalty of at least 5 years imprisonment or who has been convicted of one of the prescribed offences listed in the QCC, s 77. A recognized offender must also be 18 years of age or older (PPRA, s 53BAA). If given orally the safeguards set out in the PPPRA, s 633 apply but they do not apply if the warning is in writing. Note the long list of consorting activities which must not be prosecuted QCC, s 77C. Presumably, the direction will be given orally and therefore the PPRA, s 633 safeguards apply.

56 [2.240]

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Citizen’s arrest [2.250] There is no doubt that the vast majority of arrests are made by police officers. However, the QCC allows for citizens’ arrests in certain circumstances where they find the person committing an offence (see QCC Ch 58, ss 545A-552). A citizen can also arrest someone they believe on reasonable grounds to have committed an offence. In Queensland, it is the duty of the person arresting to take the arrested person “forthwith before a justice to be dealt with according to law” (QCC, s 552). The arresting citizen can use force such as would be “reasonably necessary to overcome any force used in resisting such arrest” (QCC, s 254).158

POLICE QUESTIONING AND THE RIGHT TO SILENCE [2.260] The PPRA states that everyone in the community has a social responsibility to help police officers prevent crime and discover offenders (PPRA, s 8). This means that police can ask questions of citizens in the course of their investigations; however, citizens are not obliged to answer those questions.159 In Rice v Connolly, Lord Parker CJ expressed the common law rights and duties in similar terms:160 It seems to me quite clear that though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and indeed the whole basis of the common law is that right of the individual to refuse to answer questions put to him by persons in authority, and a refusal to accompany those in authority to any particular place, short, of course, of arrest.

The powers and responsibilities of the PPRA about police questioning apply to suspects who have been arrested for an indictable offence (PPRA, s 398). At common law, suspects have a right to remain silent in their dealings with police and this right is maintained (PPRA, s 397).161 In Petty v The Queen, the right to remain silent was stated in the following terms: A person who believes on reasonable grounds that he or she is suspected of having been a party to an offence is entitled to remain silent when questioned or asked to supply information by any person in authority about the occurrence of an offence, the identity of the participants and the roles which they played.162

The well-established position is that the police must not use a threat or promise in order to obtain a confession.163 The right to silence is inextricably linked to the burden of proof rules164 and no accused should be forced to incriminate

158

See R v Self (1992) 95 Cr App R 42; Hulley v Hill (1993) 69 A Crim 52 (NT).

159

162 163

Such people are sometimes referred to as “invitees”. Often they may not realise that they are not required to speak to police: see M Findlay, Criminal Law: Problems in Context (OUP, Melbourne, 2006) p 170. [1966] 2 QB 414; [1966] 2 All E.R. 649 at 652. As there is no obligation to speak to police, the concept of withholding information does not have a legal basis. See also G Heydon, “When Silence Means Acceptance: Understanding the Right to Silence as a Linguistic Phenomenon” (2007) 32(3) Alternative Law Journal 149. Petty and Maiden v The Queen (1991) 173 CLR 95 at 99. See McDermott v The King (1948) 76 CLR 501 at 511 per Dixon J; see also PPRA, s 416.

164

See Chapter 1 at [1.60].

160 161

[2.260] 57

Criminal Process in Queensland

themselves. The accused has no duty to admit guilt or to prove their innocence.165 Further, the right to remain silent recognises the vulnerability of the accused in circumstances where they are often alone and unsupported. In this regard, a number of reports have exposed police fabrication of confessions.166 Generally, Ch 15 of the PPRA will be relevant to interviews conducted by police before the person is charged.167 Kirby J has pointed out that there are a number of reasons, other than guilt, which explain why a person may remain silent. He notes that some people may experience shock, or feel upset or confused, or they may want to protect others or themselves from something they see as embarrassing. Suspects may not be able to explain their defence; they may be suspicious of police or advised by lawyers to remain silent.168 Police have sometimes misused their powers in order to obtain confessional evidence.169 One researcher found that, in 1976, 96% of those accused had allegedly made confessions when interviewed by police.170 This is quite an extraordinary figure. The circumstances surrounding police interviews have changed significantly since the advent of recording equipment. This technology has made police procedures much more visible and accountable. Despite the procedures for interview set out in the PPRA, complaints frequently arise and, although the right to remain silent is strongly guarded, there have been many statutory modifications.171 One important limitation is discussed below.

Name and address limitation [2.270] Under the PPRA, the name and address power provides an exception to the general right to remain silent.172 In certain circumstances, a police officer may require a person to state their name and address. These circumstances include where the police officer finds the person committing an offence and where the

165 166

167

168

169 170

171 172

Petty and Maiden v The Queen (1991) 173 CLR 95 at 102, 103. Chairman G E Fitzgerald, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Queensland Government, 1989); J R T Wood, Royal Commission into the New South Wales Police Service (New South Wales Police Integrity Commission, Sydney, 1997). However Ch 15 of the PPRA also applies in circumstances where a police officer offers a suspect an opportunity to talk with police once new evidence is brought to light in order to clarify any ambiguity in a previous interview or after the person is charged (PPRA, s 417). See Chapter 11 where it is noted that assistance to police is relevant in consideration of mitigation in sentence. See R v Swaffield (1998) 192 CLR 159 at 146; [1998] HCA 1 per Kirby J; see also E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia: Cases and Commentary (7th ed, LexisNexis, 2015) p 660. See, eg, McKinney v The Queen (1991) 171 CLR 468; see also Stuart v The Queen (1959) 101 CLR 1, discussed in K Inglis, The Stuart Case (2d ed, Black Inc, 2002). See N Stevenson, “Criminal Cases in the NSW District Court: A Pilot Study” in J Basten, M Richardson, C Ronalds and G Zdenkowski (eds), The Criminal Injustice System (Australian Legal Workers Group (NSW), 1982). For a discussion, see Queensland Law Reform Commission, The Abrogation of the Privilege Against Self-Incrimination, Report No 59, (2004). In prescribed circumstances a person will also be require to provide his or her age (PPRA, ss 42-43A).

58 [2.270]

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police officer reasonably suspects173 that: the person has committed an offence, or the person may be able to assist in the investigation, or the person has consorted, is consorting, or is likely to consort with one or more recognised offenders (PPRA, s 41).174 The police officer may also require evidence of the person’s name and address (PPRA, s 40). If a person does not provide their name and address, they may be charged with an offence (PPRA, s 791).175 In situations where the person decides not to provide their name and address, the person does not commit an offence if, for example, it is not proved that the person has committed an offence or that they could have helped in the investigation (PPRA, s 40).176

PPRA limitations: Ch 15 [2.280] Chapter 15 of the PPRA applies177 to those who are arrested pursuant to s 365 of the PPRA. It also applies to those who are in custody for a charged offence that has not been decided – for example, in situations where bail has been refused. The Chapter also provides for those who are serving a prison sentence or, if a child, a detention order. It does not, however, apply to covert police operations.178 Chapter 15, Pt 3 of the PPRA establishes a number of safeguards for certain suspects in the interrogation context. This Part applies to a person (“relevant person”) if the person is in the company of a police officer for the purpose of being questioned as a suspect for an indictable offence (PPRA, ss 414 and 415).179 Therefore, if a person was being interviewed about a minor offence, the safeguards discussed below would not be available. Presumably, the rationale behind this approach is that generally minor offences will be dealt with by issuing a “notice to appear” (see [2.190]) and will rely on evidence other than a confession to substantiate the charge. However police often discuss minor offences with suspects without recording the discussion or issuing a warning and, in circumstances where an admission or confession is made, details of the discussion will frequently be included in the brief to the prosecution (QP9) (see [5.30]). In many cases the admissibility of the confession could presumably be contested successfully on the basis of unreliability or unfairness (see Chapter 3 at [3.60]). However, most minor offences proceed swiftly through the Magistrates Court with unrepresented defendants who plead guilty, so objections to the inclusion of the confession in this context are unlikely.

173

For an example of when there were found to be no “reasonable grounds to suspect” in relation to the name and address power, see Allan v Parkes [1999] QDC 235. See also Queensland Bacon Pty Ltd v Rees (1976) 115 CLR 266 at 303 per Kitto J.

174

Note also that certain legislation activates the name and address power: see Police Powers and Responsibilities Regulation 2000 (Qld), Sch 3. The PPRA, s 633 safeguards apply to requirements: see at [2.240] for the decision of Rowe v Kemper [2009] 1 Qd R 247. For similar powers to request name, address and age see the Liquor Act 1992 (Qld) s 182. PPRA, s 398. PPRA, s 396 and Ch 9.

175 176 177 178 179

Note that this Part does not apply in situations where the police officer is exercising a power under an Act to detain a person to search them or to require the person to give information or answer questions: see PPRA, s 415(2). [2.280] 59

Criminal Process in Queensland

In R v Kingston,180 the police were called to the victim’s house to remove Kingston after an allegation of domestic violence. At the time, the victim did not want to make a complaint. Nevertheless, the police spoke to Kingston, who admitted pushing the victim over. The interview, however, was not recorded and no caution was given. Later the victim decided to complain and Kingston was charged with assault occasioning actual bodily harm (QCC, s 339). The police sought to present evidence of the unrecorded conversation. Kingston objected but the evidence was allowed on the basis that Kingston was not a “relevant person” and was not protected by Ch 15 of the PPRA.181 The implications of the case are wide. In many contexts, police may decide to record a conversation with a person without first cautioning them (see [2.340]) or advising them of their relevant rights (see [2.300]). During the course of the conversation, the person may make “spontaneous” admissions or a confession. In such circumstances, the police may seek to have the conversation admitted into evidence on the basis that recorded evidence is reliable and not unfair because, at the time of the interview, the person was not a suspect and therefore Ch 15 was not applicable. In such circumstances, the police officer should be cross-examined on the reasons for the conversation. Such cross-examination will sometimes disclose that the reason for the conversation was, indeed, because the person was a suspect.

Time limits for police questioning [2.290] The right to personal liberty has been recognised as the most elemental and important common law right.182 This right cannot be taken away unless there is lawful authority and, when it is taken away, it must be limited to the time prescribed by law.183 However, the right to personal liberty must be balanced against the need for efficient investigation of the crime.184 In the past, some police have detained persons for very long periods. This can be oppressive and may place pressure on the accused to provide a confession so that they can be released from detention. While police can detain a person for a reasonable time to investigate the suspected offences, the question of what is a “reasonable time” will vary depending on the circumstances (PPRA, s 401). For example, it will take longer to investigate a number of serious offences than to investigate a single offence. If a person is being interviewed with an interpreter, this may also take a longer time. The PPRA effectively places a limit or cap on “reasonable time”. A “reasonable time” cannot exceed eight hours (PPRA, s 403) unless the police officer applies to a justice for an extension of time for investigation (PPRA, ss 405-406). Within the eight-hour period, there must be no more than four hours spent questioning the person. The remainder of the eight-hour period will be “time out” and this can exceed four hours within the eight-hour period. “Time out” may include, for example, meals and rest (PPRA, s 403(4)).

180 181 182

[2008] QCA 193. See also R v Williamson [2010] QCA 27 at [31]. See Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagher J.

183

Williams v The Queen (1986) 161 CLR 278 at 292 per Mason and Brennan JJ.

184

Williams v The Queen (1986) 161 CLR 278 at 296 per Mason and Brennan JJ.

60 [2.290]

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Presence of friend, relative or lawyer [2.300] The police officer must inform the suspect to be questioned that they have a right to speak to a friend or relative as well as a lawyer before questioning begins (PPRA, ss 418-419).185 The police officer also has a statutory obligation to ascertain whether the suspect wishes to exercise his or her right to speak to a lawyer.186 Not only does the interviewee have the right to have a friend or relative and a lawyer present during the interview, but the PPRA requires the police to delay the interview for a reasonable time so that the person can make the telephone calls to contact the support person or lawyer and that person has time to arrive (PPRA, s 418). The interviewing police officer does not comply with the statutory obligations by simply asking the suspect whether he or she wishes to talk to a friend or relative and a lawyer. The officer must substantially comply with the terms of s 23 of the Police Responsibility Code 2012 (PRC). Therefore the suspect must be told that they have a right to telephone a friend or relative and a lawyer to ask them to be present during questioning. Furthermore, the suspect must be told that questioning will be delayed to enable the relevant person or people to attend.187 However, there is no duty upon the police to provide support or legal assistance.188 It is up to the accused to arrange and pay for the attendance of the lawyer or support person. As Findlay et al. point out, most people fail to take advantage of their “right” to a lawyer as waiting for a lawyer usually conflicts with the higher priority of getting out of the police station as quickly as possible.189 Generally, Legal Aid Queensland will not provide financial assistance to ensure the attendance of a lawyer at the police interrogation.190 The person will, however, often be able to make telephone contact with a legal aid officer, who will usually advise them to remain silent. If the person does manage to arrange to speak to a lawyer, and if it is reasonably practicable, the police officer must ensure that the conversation cannot be overheard.191 The question of what is a “reasonable time” to delay to allow a support person and/or a lawyer to arrive for the interview will depend on the circumstances. The PPRA states that, unless there are special circumstances, a delay of more than two hours may be unreasonable (PPRA, s 418(6)).

185

This provision entrenches the common law right: see R v Borsellino [1977] Qd R 507.

186 187 188

R v LR [2006] 1 Qd R 435 at 450. Police Responsibility Code 2012 (PRC) s 23. See also R v LR [2006] 1 Qd R 435 at 450 [49]. The failure of police to allow access to a lawyer will not necessarily lead to the exclusion of the confession made – this will be a matter of discretion for the exercise of the trial judge: see Driscoll v The Queen (1977) 137 CLR 517. See M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford University Press, Melbourne, 2014) p 60. See Legal Aid Queensland, Grants Policy Manual: http://www.legalaid.qld.gov.au/About-us/P olicies-and-procedures/Grants-Policy-Manual. Viewed 15/04/2017. See Commissioner of Police v Barchard [2004] QDC 131 where the suspect contacted and spoke with his lawyer prior to interview. The police were able to overhear the conversation. In this case it was accepted that it was not reasonably practicable to find a private room and the evidence was admitted.

189 190 191

[2.300] 61

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Recording questioning [2.310] The problems associated with unrecorded confessions to police are well known. In Driscoll v The Queen,192 Gibbs CJ observed: It is very common for an accused person to deny that he made an oral confession which police witnesses swear that he made. The accused has an obvious motive to claim that police testimony of this kind is false. On the other hand it would be unreal to imagine that every police officer in every case is too scrupulous to succumb to the temptation to attempt to secure the conviction of a person whom he believes to be guilty by saying that he has confessed to the crime with which he is charged when in fact he has not done so.

More recently, members of the High Court have observed that the problems go beyond those enunciated in Driscoll v The Queen. In Kelly v The Queen,193 it was observed that: [t]he disputes could turn on questions not only of fabrication, but also of misunderstanding, misrecollection, coercion, or oppression in a broad sense. Considerable amounts of court time were taken up, generally in the absence of the jury, in resolving disputes about confessions. Considerable amounts of police time, too, were taken up in interviews slowly recorded by officers operating typewriters or writing in notebooks. Grave allegations were commonly made suggesting police perjury, brutality and pressure.

In the landmark case of McKinney v The Queen,194 the two accused persons, McKinney and Judge, were charged with a number of offences. They had been arrested in an early morning raid and interrogated for many hours. The case against them consisted of signed records of interview. The accused persons argued that police fabricated the records of interview and that they had signed them because the police had overborne them. At the trial, the jury were given no guidance in relation to dealing with this type of evidence. On appeal, the majority noted that: [o]nce it is accepted that a record of interview may be fabricated, it must also be accepted that the atmosphere, including the isolation and powerlessness of a suspect held in police custody, which allows for its fabrication may also be conducive to the suspect signing a false document.195

The majority laid down a “rule of practice of general application” for jury directions warning them of the dangers of convicting in cases where there is uncorroborated and disputed police evidence of confessional statements allegedly made by an accused in police custody. The majority judgment sets out the requirements of such a direction and when it must be given to juries by the judge.196 The majority was also clear that the context in which this ruling was

192 193 194

195 196

(1977) 137 CLR 517 at 539. (2004) 218 CLR 216; [2004] HCA 12 at [25] per Gleeson CJ, Hayne, Hayden JJ. (1991) 171 CLR 468; [1991] HCA 6. For a discussion about the impact of this case, see W G Roser, “McKinney and Judge: Corroboration and a New Category of Unreliable Evidence?” (1994) 68 Australian Law Journal 27. McKinney v The Queen (1991) 171 CLR 468; [1991] HCA 6 at 474 (CLR) per Mason, Deane, Gaudron and McHugh JJ. (1991) 171 CLR 468 at 476; see also R v D [2000] QCA 203 at [21]. See also Supreme Court of Queensland, The Supreme and District Courts Bench Book, at 36. “Out-of-Court Confessional

62 [2.310]

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made was one in which reliable and accurate audiovisual and recording equipment was increasingly available.197

[2.320] Section 632(3) of the QCC does not allow warnings to the jury about the unreliability of a “general class” of witness (police would be considered to be such a class). The circumstances of the particular case will have to be considered in deciding whether the McKinney-style warning should be given. In any event, in practice, judges (at least of the higher courts) are very cautious about unrecorded interviews. In recent years, the High Court has been very clear about the desirability of recording interviews with police. Concerns often arise where part of the interrogation is recorded while other parts are not recorded.198 The High Court addressed this situation in Nicholls v The Queen.199 In that case, police alleged at trial that Coates made certain admissions to police during a break in the interview. Police officers gave evidence that Coates had asked for the tape to be interrupted so that he could talk off the record. Coates denied both asking to talk off the record and saying anything while the tape was not running. The trial court had admitted the evidence of admissions. Ultimately, the matter was appealed to the High Court where Gleeson CJ200 suggested that asking for termination of the recording is akin to silence. McHugh J201 stressed the need for a mechanical record. It was also noted that the police had made no attempt, once the recording resumed, to put the admissions allegedly made in the break to the accused. The conviction was quashed on the basis that the evidence had been wrongly admitted.

PPRA [2.330] Police questioning must, if practicable, be recorded (PPRA, s 436). A recorded confession is admissible as evidence. The PPRA notes a number of instances when it may not be practical to record a confession – for example, the facilities for recording may be problematic or the confessions are made to police at the scene of the crime or as the person is apprehended after running away from an armed robbery.202 In R v Batchelor,203 for instance, the accused allegedly killed two people in a remote place and then telephoned police. Police were worried for the safety of others and of Batchelor and called in a police negotiator. The negotiator spoke with Batchelor to try to diffuse the situation. During the conversation with the negotiator, Batchelor made various unrecorded admissions that were subsequently admitted at his trial. On appeal, the court found there had been no

197 198 199 200 201 202

203

Statements” for notes on appropriate directions in these circumstances. See further, Kelly v The Queen (2004) 218 CLR 216 at 233. (1991) 171 CLR 468 at 478. (2005) 219 CLR 196; [2005] HCA 1 at [109]. Gleeson CJ found it unnecessary to determine, in the circumstances, whether a McKinney warning was necessary. (2005) 219 CLR 196. (2005) 219 CLR 196 at 208 per Gleeson CJ. (2005) 219 CLR 196 at 242 per McHugh J. See R v Purnell [2012] QSC 60 at [11] where the police officer did not breach the requirement to record the questioning of the suspect as the police officers recording device malfunctioned. [2003] QCA 246. [2.330] 63

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unfairness.204 Where it is not practicable to record, police may take a written confession or an admission. In such circumstances the confession must be read back to the suspect, a copy of the record given to the suspect and the “read back” must be recorded. Before the record is read back, the suspect must be given an explanation as to the procedure that will be followed (see PRC, s 31) and the suspect must be given the opportunity during and at the end of the read back to correct errors (PPRA, s 437). Generally, if the confession is not recorded or police fail to comply with the “read back” requirements, there is a real risk that it will not be admitted into evidence.205 However, even where the requirements for recording and “read back” are not followed, the court may still admit into evidence a record of questioning or a record of a confession or admission.206 In deciding whether to admit the unrecorded material, the court may consider the reasons police did not comply with the recording requirement and may admit the material if it is in the interests of justice (PPRA, s 439). A copy of the recording must be provided either to the person interviewed or to their lawyer (PPRA, s 438).207

Providing an appropriate caution [2.340] In the oppressive and isolated environment of a police station, a person may believe that they must answer police questions. Many people will not understand that they have a right to silence. For these reasons, as soon as a person becomes a suspect and regardless of where they are located, the police officer must advise the person of this right – that is, they must caution the person before questioning commences (PPRA, s 431).208 The caution has two limbs: that a suspect does not have to do or say anything; and anything they do say or do will be recorded and may be used in evidence later.209 204 205

206

207

208

209

R v Batchelor [2003] QCA 246. See, eg, R v Smith (2003) 138 A Crim R 172; [2003] QCA 76 where the appellant’s convictions for assault occasioning bodily harm were overturned as the relevant officer failed to record his admissions even though it was practical to do so. See also R v Seymour [2012] QSC 14 where the applicant’s statements were excluded as the police failed to comply with the “read back” requirements. It must be a record of what was allegedly said and s 349 of the PPRA does not confer a discretion to admit oral testimony as to what was allegedly said. See R v Smith (2003) 138 A Crim R 172 at 177-180; [2003] 76 at [19]-[28] and R v McMillan [2010] QSC 309 at [61]-[63]. In effect, the statutory regime displaces the common law discretion to exclude evidence on public policy grounds or in fairness to the accused as they apply to confessions and admissions made when a person is in the company of police for questioning about an indictable offence. Note, however, the comments of Gleeson CJ in R v Azar (1991) 56 A Crim R 414 at 420, where his Honour notes that there are numerous reports to the effect that a confession made to police will not be inadmissible merely because the caution was not administered. Presumably, the question of exclusion will depend on an assessment of voluntariness, reliability and fairness: see Chapter 3 at [3.0-60]. See R v Munck [2010] QSC 416 at [56] where the applicant was not asked whether he wished to participate in an interview and he was not told that his conversation with police was being recorded (evidence excluded). See also R v Purnell [2012] QSC 60 and R v Bossley [2012] QSC 292 where the police should have given the warning earlier (in both decisions admissions made prior to the warning were admitted).

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A formula of words has been developed for this purpose. Pursuant to s 26 of the PRC,210 the caution must substantially comply with the following terms: Before I ask you any questions I must tell you that you have the right to remain silent. This means you do not have to say anything, answer any question of make any statement unless you wish to do so. However, if you do say something or make any statement, it may later be used as evidence. Do you understand?

The caution must be understood by the interviewee and therefore it may need to be given in, or translated to, a language in which the person can communicate with reasonable fluency or, if the person has inadequate hearing, it may need to be written (PPRA, s 431(2)). If a police officer reasonably suspects211 that a relevant person is unable, because of inadequate knowledge of the English language or a physical disability, to speak with reasonable fluency in English, the police officer must arrange for an interpreter to attend and the interrogation must be delayed until the interpreter arrives (PPRA, s 433).212 If the police officer reasonably suspects the person does not understand the caution, the police officer may ask the person to explain the meaning of the caution in their own words, or the officer may further explain the caution. If practicable, the caution must be electronically recorded (PPRA, s 435).

Aboriginal and Torres Strait Islander people [2.350] Particular issues have been identified for Aboriginal and Torres Strait Islander (ATSI) people in the context of police interrogation.213 These issues were recognised in the 1950s by Kriewaldt J of the Northern Territory Supreme Court.214 Some of the difficulties relate to attitudes to police as well as problems with hearing and linguistic issues.215 In the Anunga case, Foster J developed a set of guidelines to be followed by police when interviewing ATSI people.216 These became known as the Anunga Guidelines and these guidelines have informed the requirements now set out in the PPRA. The Anunga Guidelines are also set out in the Queensland Supreme Court Equal Treatment Bench Book,217 which is intended to 210 211 212 213

214 215

216 217

For the text of the Police Responsibility Code 2012, see Police Powers and Responsibilities Regulation 2012 (Qld) Sch 9. For a discussion of “reasonable suspicion” in this context, see R v Cho [2001] QCA 196. For a discussion about when an interpreter should be provided, see R v Lin [2006] QDC 298. Policing Indigenous people continues to be a major concern: see Crime and Misconduct Commission, Restoring Order: Crime Prevention, Policing and Local Justice in Queensland’s Indigenous Communities (November, 2009) http://www.ccc.qld.gov.au/research-and-publica tions/publications/police/restoring-order/restoring-order-crime-prevention-policing-and-loc al-justice-indigenous-communities.pdf. Viewed 15/04/2017. See H Douglas, “Justice Kriewaldt, Aboriginal Identity and the Criminal Law” (2002) 26 Criminal Law Journal 203 at 212-213. For a discussion of these issues, see H Douglas, “The Cultural Specificity of Evidence: The Current Scope and Relevance of the Anunga Guidelines” (1998) 21 University of New South Wales Law Journal 27; H McRae and G Nettheim, Indigenous Legal Issues: Commentary and Materials (4th ed, Lawbook Co., 2009) Ch 10. See also Stack v Western Australia (2004) 29 WAR 526; [2004] WASCA 300. R v Anunga (1976) 11 ALR 412; see also R v Aubrey (1995) 79 A Crim R 100. See Supreme Court of Queensland, Equal Treatment Bench Book, Ch 12 p 106-108: http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf. Viewed 15/04/2017. [2.350] 65

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assist judges in Queensland. Police are also required to comply with the Anunga Guidelines as they are incorporated into the Queensland Police Service’s Digital Electronic Recording of Interviews and Evidence Manual. The guidelines include the need to have an interpreter and a support person present at the police interview, the need to take care in administering the caution and the need to avoid closed questions. In circumstances where the police officer reasonably suspects that the person to be interviewed is an ATSI person, the PPRA requires police to notify a legal representative to act on behalf of the person. A support person must also be present if the interview is to proceed. These requirements may be unnecessary where the police officer reasonably believes that the person is not at a disadvantage compared to others in the community more generally (PPRA s 420).

Persons with impaired capacity and intoxicated persons [2.360] Sections 422-423 of the PPRA deal with police questioning of persons with impaired capacity and intoxicated persons. Where the police officer reasonably suspects that the relevant person is a person with impaired capacity,218 if practicable, the police officer must allow the person to contact a support person and talk to the support person in circumstances where they will not be overheard by the police officer. A support person must be present during the interview (PPRA, s 422). Given that an interview cannot proceed with a person with impaired capacity unless a support person is present, it is in the interests of the police officer to assist the person with impaired capacity as much as possible to locate a support person and to facilitate their attendance at the police station. If a police officer wants to question a relevant person who is apparently under the influence of liquor or a drug, the police officer must delay the questioning until he or she is reasonably satisfied the liquor or drug no longer affects the person’s ability to understand their rights and to decide whether or not to answer questions (PPRA, s 423).219 Presumably, such a delay would have to be within the time limits set out in ss 403-411 of the PPRA. The introduction of this provision has altered the common law which prohibits the questioning of a suspect where his or her capacity to know what he or she is confessing has been destroyed.220 McPherson JA has noted that under the PPRA the focus of the consideration is on: [the] person’s ability to understand his rights and to decide whether or not to answer the questions being or about to be put to him. It is enough for this purpose if his ability to do either of those things is “affected” by the influence of alcohol221

218

220

For a discussion, see New South Wales Law Reform Commission, People with an Intellectual Disability and the Criminal Justice System: Policing Issues, Discussion Paper No 29 (1993). See R v LR [2006] 1 Qd R 435; [2005] QCA 368 at [6], [26]-[34], [39]-[40] and [45] where it was found that, based on the applicants conduct during the recorded interview, the officer could not have been reasonably satisfied that the applicant was no longer affected by alcohol. See also R v Peirson [2014] QSC 134 at [28]-[31] where, although the applicant was under the influence of illicit drugs, he was not deprived of the ability to understand his rights or know whether or not to answer questions. For the common law position prior to the PPRA, see Sinclair v The King (1946) 73 CLR 316.

221

See R v LR [2006] 1 Qd R 435; [2005] QCA 368 at [3] per McPherson JA.

219

66 [2.360]

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POST-ARREST SEARCHES [2.370] Police searches and some forensic procedures are standard parts of police investigation. Many of the procedures are very straightforward – for example searching a person’s pockets or taking fingerprints. Others are intrusive and may involve a significant invasion of privacy – for example strip searches and internal body searches. A police inquiry found that most people regard strip searches by police as traumatic and degrading.222 There is evidence that search procedures have sometimes been undertaken by police in ways that cause unnecessary loss of dignity, embarrassment and discomfort.223 In his report, Fitzgerald suggested that intrusive powers were being used by police in a haphazard way. He recommended that such powers should only be allowed in limited circumstances and that these circumstances should be clearly delineated. Some powers, he suggested, should only be permitted after seeking judicial authority.224 Most of Fitzgerald’s recommendations are reflected in the current law. In its inquiry into the use of strip searches, the former CJC225 noted that detainees in police watch-houses may pose a risk in respect of concealing potential evidence or illegal items such as drugs, or concealing items that may assist in escape or which may contribute to harm.226 While it may be the case that strip searches in the watch-house are routine,227 they exclude body cavity searches, which have special rules.228 The discretion to exclude evidence is a matter of public policy229 and any evidence collected as a result of inappropriate processes used in searches or in collecting forensic evidence may be excluded on this basis.230

222

223

224 225 226

227

Criminal Justice Commission, Police Strip Searches in Queensland: An Inquiry into the Law and Practice (Brisbane, 2000) p v: http://www.ccc.qld.gov.au/research-and-publications/publicat ions/cjc/police-strip-searches-in-queensland-an-inquiry-into-the-law-and-practice.pdf. Viewed 15/04/2017. For the negative impact of strip-searches see also the Queensland Ombudsman, The Strip Searching of Female Prisoners Report: An investigation into the strip search practices at Townsville Women’s Correctional Centre (Brisbane, 2014) pp 5-6: https://w ww.ombudsman.qld.gov.au/improve-public-administration/reports-and-case-studies/invest igativereports/strip-searching-of-female-prisoners-report--2014- Viewed 15/04/2017. A George, Strip Searches: Sexual Assault by the State in P Easteal (ed), Without Consent: Confronting Adult Sexual Violence (Proceedings of a conference held 27-29 October 1992) (AIC, Canberra, 1993) p 215. See also eg, Schmidt v Argent [2003] QCA 507 where the court accepted that there was a lack of respect for the person’s dignity. G E Fitzgerald, Chairman, Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Queensland Government, 1989) pp 176-179. Now the Crime and Corruption Commission (CCC). Criminal Justice Commission, Police Strip Searches in Queensland: An Inquiry into the Law and Practice (Brisbane, 2000) pp 21 and 33: http://www.ccc.qld.gov.au/research-and-publication s/publications/cjc/police-strip-searches-in-queensland-an-inquiry-into-the-law-and-practice. pdf. Viewed 15/04/2017.

228 229

Criminal Justice Commission, Police Strip Searches in Queensland: An Inquiry into the Law and Practice (Brisbane, 2000) p 23: http://www.ccc.qld.gov.au/research-and-publications/publica tions/cjc/police-strip-searchesin-queensland-an-inquiry-into-the-law-and-practice.pdf. Viewed 15/04/2017. See PPRA, Ch 17 Pt 7 (Forensic procedures performed by doctors and dentists). See Bunning v Cross (1978) 141 CLR 54.

230

See R v R (2003) 138 A Crim R 160 at 164-165 per Jerrard J. [2.370] 67

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PPRA search powers of persons in custody [2.380] Search powers of persons in custody are covered by the provisions in Ch 16 of the PPRA. Where a person is lawfully arrested or is in lawful custody for a charge of an offence that has yet to be decided,231 or where a person is serving a sentence, or is detained under another Act, a police officer may search and re-search that person (PPRA, ss 442-443). “Search” is defined to include a “frisk-search”.232 These searches are also referred to as “pat-down” searches. “Search” in regard to a person is not clearly defined in the PPRA but includes those searches that are known as “strip searches”.233 Such searches may include the removal of clothing and require the person to get into certain positions, such as squatting or bending over, in order to see if anything is concealed inside the body. However, police are required to take reasonable care to protect the dignity of the person being searched and a strip search cannot include an examination of the persons’ body or part of the person’s body.234 If the police officer finds something during the search that they reasonably suspect might provide evidence of the commission of an offence, or which may endanger a person’s safety, or may be used for escape, or which the police officer thinks should be kept safe, the police officer can seize the thing (PPRA, s 443).

IDENTIFYING MATERIAL AND FORENSIC PROCEDURES [2.390] Police use identifying particulars in a number of ways. Identifying information found at a crime scene can be compared to identifying information about people held on a computer database, or identifying information of a particular suspect. As well as being used to check the identity of a suspect, a database is also important in assisting the police to manage their data – for example, sometimes people will have a range of aliases. This data management can be very important at the sentencing stage, particularly in the case of a person with prior convictions, which need to be accurately listed.235 Until recently, fingerprinting was the most well-known technology for detection and identification. Fingerprinting developed alongside photography and was initially used to keep track of prisoners released on licence or on a “ticket of leave”. On release, they were fingerprinted and later photographed, and their

231 232 233

234 235

For example, the person might be in lawful custody because bail has been revoked or because bail has been refused. See PPRA, Sch 6 and at [2.60] for the definition of “frisk search”. Criminal Justice Commission, Police Strip Searches in Queensland: An Inquiry into the Law and Practice (Brisbane, 2000) pp 10 and 11: http://www.ccc.qld.gov.au/corruption/past-investiga tions/past-public-hearings/cjcpublic-hearings-1991-2000 Viewed 18/04/2017. See PPRA, ss 624 and 625 for the safeguards that apply to searches. See at [2.400], for examination of the person’s body. See Criminal Justice Commission, Report on a Review of Police Powers in Queensland Vol V (Brisbane, 1993) p 839, although note the dangers of under-developed science in this field: IR Coyle, D Field, P Wenderoth, “Pattern Recognition and Forensic identification: The Presumption of Scientific Accuracy and Other Falsehoods” (2009) 33(4) Criminal Law Journal 214.

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names were added to the “Habitual Criminals Register”.236 Sir Samuel Griffith described the fingerprint as the “unforgeable signature”.237 In 1903, Australian police agreed on a uniform system of fingerprint identification. By 1906, the Queensland police were systematically collecting the fingerprints of known “bad characters under arrest”238 and fingerprinting is still used as an integral part of both identification and investigation. During 1990-1991, police data revealed that in 2,805 cases, fingerprints were matched with prints in a database, leading to 1,822 arrests.239 A qualified expert may, for example, give evidence in a trial that particular fingerprints found at a crime scene are identical to those of the accused. The expert will usually demonstrate the similarity between a fingerprint found at the scene and the fingerprint of the accused.240 In their review of police powers, the former CJC found that in 1990-1991, 11,220 sets of fingerprints were found at crime scenes. Courts take judicial notice of the fact that no two fingerprints are the same.241 New technologies in this area of identification are constantly developing and gradually these will expand the tools that are available to police.242 DNA technology has become increasingly important in the investigation of crime and the identification of suspects. Specific provisions in the PPRA deal with DNA. These are discussed separately (at [2.450]). Forensic procedures are carried out for investigative, rather than identification, purposes. For example, such procedures may need to be carried out to retrieve illegal drugs smuggled inside the body of a suspect or to take an imprint of the jaw of an accused where they are suspected of biting a victim. While the Model Forensic Procedures Bill 2000 (Cth) recommended uniform forensic procedures across Australia, these have not been instituted. Disparate models of regulation exist in all Australian States and Territories.243

PPRA forensic procedures and identification material [2.400] Forensic procedures include both “intimate” and “non-intimate” procedures (PPRA, Ch 17). They are fully defined in Sch 6 of the PPRA.

236 237 238 239 240

241 242

243

J Ward, Crime-Busting: Breakthroughs in Forensic Science (Blandford Press, London, 1998) p 90. R v Parker (1912) 14 CLR 861 at 863. M Finnane, Police and Government: Histories of Policing in Australia (OUP, Melbourne, 1994) p 80. Criminal Justice Commission, Report on a Review of Police Powers in Queensland Vol V (Brisbane, 1993) p 839. A Hemming, M Kumar and E Peden, Evidence: Commentary and Materials (8th ed, Thomson/ Lawbook Co., Sydney, 2013) p 492. For suggested jury directions on the application of fingerprint evidence, see Supreme Court of Queensland, The Supreme and District Court Benchbook at [54]: http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/86057/sd-bb54-fingerprints.pdf. Viewed 15/04/2017. R v Carr [1972] 1 NSWLR 608. See, eg, the development of facial mapping and iris imprints: R v Atkins (Dean) [2010] 1 Cr App R 8; [2009] EWCA Crim 1876. In relation to voice recognition, see R v Flynn [2008] 2 Cr App R 20; [2008] EWCA Crim 970. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford University Press, 2009) pp 39-41. [2.400] 69

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“Non-intimate” forensic procedures include photographing a part of the person’s body (for example, a bruise or a cut), taking a sample from the person using a swab or a scraping, and taking a DNA sample. Examinations of the external part of the person’s body, which require removal of clothing or contact with their body, are also defined as “non-intimate” forensic procedures. “Intimate” forensic procedures include external examination of, taking a sample by means of a swab, washing, vacuuming, suction scraping or lifting by tape and photographing or measuring a person’s external genital or anal area, buttocks or, for a female, breasts. Internal examination of a body cavity is also included as are procedures performed on a person which involve taking hair, a sample or swab from a body cavity other than the mouth, an x-ray, dental impression or sample of blood or urine. Police officers may seek to perform a forensic procedure on a person who is reasonably suspected of committing an offence (PPRA, ss 448-449).244 Forensic procedures will be allowed to take place with the consent of the person on whom the procedure is to be performed.245 In circumstances where a person is suspected of committing an indictable offence but they do not consent to a procedure, a “forensic procedure order” may allow the procedure to take place (PPRA, ss 447 and 457). Thus, where non-indictable offences are suspected, it seems that intimate forensic procedures can only take place where the person consents. The PPRA sets out the procedure for obtaining a “forensic procedure order” under ss 457-466. A magistrate may make a forensic procedure order only “if satisfied on the balance of probabilities there are reasonable grounds for believing performing the forensic procedure concerned … may provide evidence of an indictable offence” that the person is suspected of committing and that it is therefore justified (PPRA, s 461). The provision lists a number of factors to consider in relation to whether or not the procedure is justified, including the seriousness of the offence and the degree of participation alleged. If such an order is made, the police officer may detain the person so that the procedure can take place. Consent must be “informed” consent – that is, police officers are required to give an explanation about, among other matters, the reason the procedure is to be performed, the type of procedure that is to be performed and the fact that the person does not have to consent. The person must be given enough time to make a decision as to whether they will consent. Consent must also be recorded (PPRA, ss 448, 453 and 454). Generally, only appropriately qualified people can perform forensic procedures, although the type of qualification required varies according to the procedure (PPRA, ss 445-456). However, pursuant to PPRA, s 445, only doctors, dentists and a forensic nurse examiner can carry out intimate forensic procedures and there are some further limitations placed on the procedures that dentists can carry out (PPRA, s 446).

244

See Maguire v Beaton (2006) 162 A Crim R 21. In this case the concept of “reasonable suspicion” was discussed in the context of carrying out forensic procedures. Latham J found (at 25) that “reasonable suspicion” in this context must be based on reasonable grounds. See also the discussion of this concept at [2.60].

245

Special rules exist for children and those with impaired capacity: see PPRA, ss 450-452.

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Identifying particulars in Queensland [2.410] The Ch 17 Pt 4 provisions of the PPRA deal with a person’s “identifying particulars”, which are their palm prints, fingerprints, handwriting, voiceprints, footprints, a photograph of the person’s identifying features (a scar or a birth mark), a measurement of any part of the person’s body (other than the person’s genital or anal area, buttocks or, for a female, breasts) (PPRA, Sch 6). Identifying particulars can be taken by a police officer from a person who is arrested for an “identifying particulars offence”. The term “identifying particulars offence” covers a broad range of offending. Among other matters, it includes offences for which the maximum penalty is at least one year’s imprisonment (such as assault and stealing), offences under the Regulatory Offences Act 1985 (Qld) (such as shoplifting) and offences under the Summary Offences Act 2005 (Qld) (such as public nuisance or trespass). The police officer can hold the person for a reasonably necessary amount of time to take such particulars and may use reasonable force (PPRA, s 517). If the person is being held in custody for an identifying particulars offence (for example, a situation where the person is charged but bail is refused), a police officer can take the relevant person’s identifying particulars. However, a person does not need to be arrested or to be in police custody in order to activate this power. Where a police officer has charged a person with an “identifying particulars offence” on a “notice to appear”,246 the police officer may require the person to return to the police station at a later time to provide identifying particulars (PPRA, ss 467-468 and 470).247 In certain circumstances, a court may order that identifying particulars be taken in order to identify a person suspected of having committed an offence to confirm that person’s identity and to find out the person’s criminal history from criminal records (PPRA, ss 471-473). If a person is not found guilty of an “identifying particulars offence” and there are no further proceedings for the offence, the identifying particulars should be destroyed within a reasonable time. If the person is found guilty of the offence or another identifying particulars offence, or the matter does not proceed because, for instance, the person is unfit to plead due to mental illness, the identifying particulars will not be destroyed (PPRA, s 474). Where, following a guilty plea, the charges against a child are dismissed and the child is referred to the restorative justice process, his or her identifying particulars will not be destroyed until his or her obligations are fulfilled under the restorative justice agreement (PPRA, s 474(4A)).

Non-medical examination [2.420] While non-medical examinations are covered by the provisions of Ch 17 Pt 6 of the PPRA, the expression, “non-medical examination”, is not clearly defined in the PPRA. According to Sch 6, it means a non-intimate forensic procedure, other than taking a DNA sample or palm prints, fingerprints,

246

See above at [2.190].

247

For a discussion of how the relevant information should be provided, see Cox v Travis [2001] 2 Qd R 261; and Cox v Robinson [2001] 2 Qd R 261 where it was noted that a person should be clearly warned that a failure to comply could lead to prosecution for an offence. [2.420] 71

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handwriting, voiceprints or footprints. Such procedures are not often used. However, they may be used in circumstances where the police investigator is looking for a feature that is unique to the offender and which would connect the offender to the crime being investigated. For example, a swab may be taken from a person’s hand in order to look for gunpowder residue.248 A non-medical examination may be appropriate in such a case. To conduct these kinds of examinations, the police officer must be satisfied that such an examination may provide evidence of an indictable offence (PPRA, s 495). Only police officers authorised by the Commissioner or by a police officer of a certain rank or a police job description are permitted to conduct these types of examinations (PPRA, s 497). Where the police officer has started a proceeding249 against the person for an indictable offence, they may apply for an order allowing the person to be held for a reasonable time so that the examination can take place (PPRA, s 498). It is also possible for the police officer to issue a notice requiring the person to attend the police station at a later date for such an examination (PPRA, s 499).

Forensic procedures performed by doctors and dentists [2.430] Forensic procedures can be carried out by doctors, dentists and forensic nurse examiners where the person either consents to the procedure being carried out250 or where a forensic procedure order has been made (PPRA, Ch 17 Pt 7). Such procedures include internal body examinations, extracting a bullet or examining fractures. Note that there are certain limitations to the kinds of forensic procedures dentists carry out. They may examine a person’s mouth, take a sample of a person’s saliva, take a dental impression of a person’s mouth or examine a bite mark on a person (PPRA, s 446). Similar to the requirements related to police interrogation, before such a procedure is commenced, the police officer must advise the person of their right to have two independent people present during the procedure. The police officer must also advise that, in order to exercise this right, the person can telephone a friend or relative and a lawyer. Further, the police officer must wait a reasonable period of time for the people called to attend. The length of time that is “reasonable” will depend on how far the independent person has to travel and the time the independent person indicated they would arrive. If the person wants to speak to their support person once that person arrives, the police officer should provide reasonable facilities for this to occur. The independent person may also stay and give advice during the procedure. If the independent person fails to attend within a reasonable time, the procedure can nevertheless proceed (PPRA, ss 503-506). Forensic procedures can be carried out in order to obtain evidence of an offence to which the procedure relates. If a sample of a thing is taken from the person during the procedure, the person or someone nominated by the person must be given part of the sample or thing (for example, blood), or an equivalent (for 248

Second Reading Speech, Police Powers and Responsibilities (Forensic Procedures) Amendment Bill 2003 (Qld) (Hansard, 15 May 2003) p 1974. The assistance of Inspector Steve Donnelly (Metropolitan North Region) and Senior Detective Ray Brownhill (Queensland Police Service) in researching [2.580] is acknowledged.

249

That is, by arrest, complaint and summons, or notice to appear.

250

See discussion at [2.400].

72 [2.430]

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example, a replica bullet), for their own purposes. A copy of the results from the analysis of the sample must also be given to the person or his or her nominee as soon as is reasonably practicable (PPRA, ss 509-511).

Safeguards for forensic procedures [2.440] Various safeguards exist to protect the person who is the subject of a forensic procedure (PPRA, ss 512-521). For example, an interpreter may be present so that the procedure can be explained (PPRA, s 512). If other people have been asked to assist in carrying out intimate forensic procedures, the Act directs that in such cases the person assisting should be of the same sex as the person undergoing the procedure, or they should be another doctor, dentist or forensic nurse examiner (PPRA, s 517). Reasonable force can also be used to carry out the procedure (PPRA, s 517(4)). Further, if it is reasonably necessary for a person to remove clothing for a non-intimate procedure (for example, photographing a particular tattoo), the person’s dignity must be protected. To this end, the police officer must not require the person to remove more clothing than is necessary and the presence of other people should be limited to those who need to be there (PPRA, s 519). During a forensic procedure, a person may withdraw their consent. In such a situation, the procedure must be immediately stopped. The admissibility of evidentiary material collected before the withdrawal of consent will not be affected by the withdrawal (PPRA, s 520).

DNA [2.450] Watson, Crick and Franklin discovered deoxyribonucleic acid (DNA) in 1953.251 DNA is found in the nucleus of every cell in the body. It can be extracted from saliva, mucus, skin cells, hair roots, blood and semen. The result of scientific analysis of these substances produces something like the barcode found on shopping goods.252 The use of DNA profiling in criminal investigations began in the 1980s. It was first used in a criminal investigation in England in 1986253 and first tendered as evidence in the United States in 1987, and in Australia in 1989.254 In Australia, DNA profiling has been considered as a form of real evidence, which is generally given by an expert.255 DNA is much more likely to be left at a crime

251 252

J Watson and F Crick, “Structure for DNA” (1953) 171 Nature 737. J Ward, Crime-Busting: Breakthroughs in Forensic Science (Blandford Press, London, 1998) p 176.

253 254 255

C Porter, “The Forensic Use of DNA” (2005) 37 Australian Journal of Forensic Sciences 5. A Leaver, Investigating Crime (LBC Information Services, 1997) p 220. A Hemming, M Kumar and E Denden, Evidence: Commentary and Materials (8th ed, Thomson/Lawbook Co., Sydney, 2013) p 492-493. For suggested jury directions on the application of DNA evidence, see Supreme Court of Queensland, Supreme and District Court Benchbook at [53]: http://www.courts.qld.gov.au/__data/assets/pdf_file/0007/86056/sd-bb53-dna.pdf. Viewed 15/04/2017. Courts have noted that juries should be advised that a DNA match to the accused is evidence that the accused could be the offender, not that the accused is the offender: see R v Fletcher [1998] 2 Qd R 437; R v Pantoja (1996) 88 A Crim R 554. [2.450] 73

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scene than a fingerprint. For example, in about 25% of burglaries, perpetrators cut themselves on broken glass at the crime scene. Because so many burglars are repeat offenders, their DNA is already on various databases and can be matched to the DNA from the crime scene.256 The availability of DNA evidence may increase the likelihood of a matter proceeding to court and it may also increase the likelihood of a guilty plea being entered by the accused.257 Developments in the collection and analysis of DNA have been extremely important both in securing convictions and in ensuring the acquittal of innocent people.258 However, although developments in the use of DNA in the criminal sphere have been very important, there are a number of concerns in regard to its use. Edwards argues that the innocent have much to fear as it has become increasingly apparent that innocent people could be victims of a DNA “cold hit”. This is a situation where a person who was not previously connected to the crime by any other evidence becomes connected by virtue of DNA matching.259 According to Porter,260 it may be possible for the defence to challenge DNA profile evidence on a number of grounds. For example, the DNA may become contaminated. Such contamination may occur if the suspect’s DNA is inadvertently mixed with other DNA261 by the person collecting the material at the crime scene.262 The CCC recognised the need for specialised training for police in the collection, storage and delivery of DNA samples.263 Manipulation and disputed readings264 may also provide grounds for exclusion, and there can be innocent explanations for DNA being found at a crime scene, especially within a small community.265 Furthermore DNA matching simply involves the identification of a probability factor, a DNA sample cannot provide a 100% match for a particular purpose. It is therefore possible for there to be a coincidental match. Edwards notes that the chances of a coincidental match increase when databases are large or if there is any possibility

256 257 258 259 260 261 262 263

264 265

See L Freney and T Ansford, “DNA in Forensic Science: Infallible Crimebuster?” (1999) Jan-Feb Proctor 16. M Briody, “The Effects of DNA Evidence on Property Offences in Court” (2006) 17 Current Issues in Criminal Justice 380 at 391. R v R (2003) 138 A Crim R 160 at 161 per McPherson J. K Edwards, “Cold Hit Complacency: The Dangers of DNA Databases Re-examined” (2006) 18 Current Issues in Criminal Justice 92 at 112. See also R v Wells [2008] QCA 173. Porter also refers to cases where there are identical twins and triplets: see C Porter, “The Forensic Use of DNA” (2005) 37 Australian Journal of Forensic Sciences 5, 6. See R v Butler [2001] QCA 385 where the jury appropriately rejected DNA evidence on the basis of contamination. See N Scudder and D Hamer, “Exclusionary DNA of Forensic Workers and Australian Forensic Procedures Legislation” (2006) 18 Current Issues in Criminal Justice 125 at 126. Crime and Misconduct Commission, Forensics under the Microscope (Brisbane, 2002) p 26: htt p://www.ccc.qld.gov.au/research-and-publications/publications/misconduct/forensics-unde r-themicroscope-challenges-in-providing-forensic-science-services-in-queensland.pdf Viewed 17/04/2017. Some methods of analysis are disputed: see Riley v Western Australia (2005) 30 WAR 525; [2005] WASCA 190 at [16]. For example, in R v Rowe the defendant, accused of bank robbery, argued that DNA material found on a bank teller’s shirt could have found its way onto the shirt innocently days prior to the robbery. The forensic analyst agreed this was possible: see R v Rowe [2006] QCA 379 at [7].

74 [2.450]

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of the involvement of relatives in the crime.266 In Australia, databases are still relatively small but the problem of relatedness is a real issue, particularly in Indigenous or ethnic communities, which may be especially insular. The more insular the community, the more likely it is that people will intermarry and reproduce within that community, effectively limiting the genetic diversity of that community.267 In the case of R v Bropho,268 where an Indigenous man was charged with rape leading to the conception of a child, DNA could not exclude Bropho as the father. However, when further searches were conducted, it was found that there were four potential fathers on the DNA database. In this case, the DNA profile evidence was excluded.269 In Victoria in 2009, the chief of Victoria Police ordered police to stop giving DNA evidence because of fears that there had been a corruption of some of the collected material and because some data had been misinterpreted.270 Clearly, defence counsel should carefully scrutinise any DNA evidence the prosecution seek to admit and not assume reliability of DNA evidence.271

PPRA DNA [2.460] DNA samples may be taken in a number of contexts via a mouth swab or a hair follicle (see PPRA, Ch 17 Pt 5). Where a police officer initiates a proceeding for an indictable offence by placing the person under arrest or by issuing a notice to appear or by a complaint and summons,272 the person can be detained for a reasonable time in order for a DNA sample to be taken. Alternatively, the person can be issued with a notice requiring them to come to the police station at a later time to provide a sample. The court can also order that a DNA sample be taken during a proceeding for an indictable offence or after finding a person guilty of an indictable offence. In all cases the legislation specifically directs the decisionmaker to consider the rights and liberties of the person as well as the public

266 267

K Edwards, “Cold Hit Complacency: The Dangers of DNA Databases Re-examined” (2006) 18 Current Issues in Criminal Justice 92, 97. K Edwards, “Cold Hit Complacency: The Dangers of DNA Databases Re-examined” (2006) 18 Current Issues in Criminal Justice 92, 100.

268

(2004) 36 SR WA 328.

269

R v Bropho (2004) 36 SR WA 328 is discussed in K Edwards, Cold Hit Complacency: The Dangers of DNA Databases Re-examined (2006) 18 Current Issues in Criminal Justice 92 at 100-101. Gardiner has also suggested that DNA collection may impact significantly on Indigenous people. He suggests that Indigenous people may be more likely than others to be required to provide DNA material for testing: see G Gardiner, “‘Racial Profiling’: DNA Forensic Procedures and Indigenous People in Victoria” (2005) 17 Current Issues in Criminal Justice 47. See M Rout, Victoria Police Chief Simon Overland Orders DNA Evidence Halt, The Australian (9 December 2009). Contaminated evidence led to the dropping of at least one murder charge. On this point, see also M Findlay and J Grix, “Challenging Forensic Evidence? Observations on the Use of DNA in Certain Criminal Trials” (2003) 14 Current Issues in Criminal Justice 269. Note also that procedures for testing the blood and urine of a person suspected of committing a sexual or other serious assault are dealt with in Ch 18 of the PPRA and are not discussed in this book. See at [2.190].

270

271

272

[2.460] 75

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interest.273 One judge has suggested that it is unlikely that a person could be successfully prosecuted for a contravention offence if she or he failed to respond to a police request in relation to obtaining a DNA sample.274 Taking a DNA sample inconsistent with the terms of the PPRA can result in civil or criminal liability. For example, in Coffey v Queensland & Ors275 the defendants were found liable for two acts of battery that occurred while taking a DNA sample from a prisoner at Lotus Glen. The first act consisted of using force that was not reasonably necessary to take the plaintiff to ground while the second act consisted of taking 239 strains of hair, which exceeded that which was reasonably necessary for a DNA sample. If either the person’s arrest or the proceeding for the indictable offence is discontinued or not proceeded with, or the person is found not guilty, or the proceeding is not commenced within a year after the sample is taken,276 the DNA sample must be destroyed within a reasonable time. DNA that is not destroyed is stored on a Queensland database and on the national “CrimTrac” database (PPRA, ss 492 and 493).277 DNA evidence is highly susceptible to misuse. Edwards notes that it is highly probative, easy to conceal, can be obtained surreptitiously and transported easily.278 Perhaps partly for these reasons, the PPRA has created a number of offences for the inappropriate use and supply of DNA samples and analysis (PPRA, ss 526-532). These offences all provide for a maximum penalty of two years imprisonment.

THE USE OF REASONABLE FORCE IN EFFECTING POLICE POWERS [2.470] Police officers and law enforcement officers may use reasonably necessary force when exercising or attempting to exercise a powers under the PPRA or another act such as executing a warrant, undertaking surveillance and covert search powers (PPRA, s 614). Police officers may also use reasonably necessary force against an individual to exercise, or attempt to exercise, a power (PPRA, s 615). Generally the force used against an individual must not include force likely to

273 274

275 276 277

278

Note that the forensic procedure safeguards apply to the taking of DNA samples see [2.440] above. See McKenzie v Coffey [2002] QDC 370 per White DCJ. However, Gans suggests that the refusal to submit to DNA testing, especially where mass community screenings are conducted, may identify potential suspects but also damage the privilege against selfincrimination: see J Gans, “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) 13 Current Issues in Criminal Justice 169. [2012] QSC 186 at [56]-[68] and [74]-[75]. See Chapter 5 at [5.50] for a discussion of the classification of offences. See CrimTrac: http://www.crimtrac.gov.au/. Viewed 18/04/2017. Note that special rules exist for children. The Australian Law Reform Commission (ALRC) recommended that laws about DNA collection, storage and privacy should be uniform throughout Australia: see ALRC, Essentially Yours: The Protection of Genetic Information in Australia, Report No 96 (Canberra, 2003), especially the executive summary. Currently there are variations which may have implications for uniform standards applied to CrimTrac. K Edwards, “Cold Hit Complacency: The Dangers of DNA Databases Re-examined” (2006) 18 Current Issues in Criminal Justice 92, 112.

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cause grievous bodily harm or death (PPRA, s 615). However, in certain “critical situations” – for example, where the police officer reasonably suspects that the person is likely to cause grievous bodily harm or death to another person – if the police officer reasonably believes that it is necessary, he or she may use force that is likely to cause grievous bodily harm or death.279 Before using this high level of force, the police officer must first, if practicable, call upon the person to stop doing the act (PPRA, s 616).280 The former CJC (now the CCC) noted in its report into police powers that the issue of proportionality was a central consideration and suggested that the prevention of serious crime would be a sufficient justification for high levels of force.281 If police use excessive force, that is force not within the terms of PPRA, ss 615 or 616, the officer will be exposed to the possibility of civil and criminal liability. For example, in Whitelaw v O’Sullivan282 the Court of Appeal held that the respondent, a police officer, could be convicted of common assault for the use of force that was not reasonably necessary to prevent a breach of the peace.283 Also see Coffey v Queensland & Ors284 above where the plaintiff successful sued the state and two police officers for the excessive use of force in the course of a DNA sample being taken. If a suspect responds to an excessively violent show of police force by defending themselves against the force, the suspect would be responding in self-defence285. This would constitute a basis for a civil action.286

OFFENCE TO CONTRAVENE OR NOT OBEY A POLICE OFFICER [2.480] In the absence of a reasonable excuse, it is an offence to contravene or fail to obey a direction or order made by a police officer pursuant to powers set out in the PPRA, s 791. The maximum penalty for contravention is, depending on the circumstances, 40 penalty units or 60 penalty units (PPRA, s 791).287 If the person was intoxicated in public at the time of the offending, the person will also be sentenced to a period

279

280

281 282 283 284 285 286 287

The application of the section is not entirely clear, however it would appear that the officer must form a reasonable suspicion as to the existence of one of the circumstances in PPRA, s 616(1) or (2), the officer must also reasonably believe that force likely to cause grievous bodily harm or death is necessary and such force must be reasonably necessary for one of the purposes set out in PPRA, s 616(3). Sections 614 and 615 of the PPRA also apply to anyone assisting a police officer, or in the case of PPRA, s 614 anyone assisting a police officer or law enforcement officer. However only police officers are authorized to use force that is likely to cause death or grievous bodily harm. Criminal Justice Commission, Report on a Review of Police Powers in Queensland (Brisbane, 1993) Vol I, p 50. [2010] QCA 266 at [26]-[28]. See also Arndt v Rowe [2011] QDC 313. [2002] QDC 370. See the discussion of self-defence in P Fairall and M Barrett, Criminal Defences in Australia (5th Ed LexisNexis Butterworths, 2016) Ch 10. For discussions of wrongful arrest, see Bulsey v Queensland [2015] QCA 187; Bales v Parmeter (1935) SR NSW 182; and Leutich v Walton [1960] WAR 109. A penalty unit is generally valued at $100: see Penalties and Sentences Act 1992 (Qld) s 5. [2.480] 77

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of a minimum community service order of 40 hours. In circumstances where a police officer gives an oral direction to a person and the person does not obey it, the police officer is required, if practicable, to warn the person288 that they may be charged with an offence and give them “reasonable further opportunity to comply” with the direction prior to charging them (PPRA, s 633).289

288

289

A warning must be such as would reasonably be expected to convey to the particular recipient the message that non-compliance will be an offence: see Cox v Robinson [2001] 2 Qd R 261 at [13]-[15] per Thomas JA (Davies JA and Pincus JAA agreeing). See also Rowe v Kemper [2009] 1 Qd R 247; [2008] QCA 175 at [78]-[80] per Holmes J. See also Walters v Lawler [2001] QDC 204 where the person was arrested because of the “offence” of leaving a place knowing a police officer was wanting to speak to them. O’Sullivan J found there was no such offence and that the subsequent arrest was unlawful.

78 [2.480]

CHAPTER 3 Police Accountability Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Police Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 Excluding Out-of-Court Confessions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80 [3.40] Voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 [3.50] Person in authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 [3.60] Basal voluntariness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 [3.70] The discretion to exclude . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 [3.80] Complaints Against Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 [3.90] Making a complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 [3.100] Corrupt conduct by police. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87 [3.110] Police misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 [3.120] Minor misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88 [3.130] Resolution of the complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 [3.140] False complaints . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 [3.150] Complaints about the Crime and Corruption Commission . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 [3.160] Policing Organised Crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90 [3.10] [3.20] [3.30]

OVERVIEW [3.10] In this chapter, police procedure is considered with particular focus on the legal consequences of police failing to follow procedures as set out in the Police Powers & Responsibilities Act 2000 (Qld). The discussion focuses on two aspects of procedure, the lawful collection of evidence and making a complaint in response to police conduct.

POLICE PROCEDURE [3.20] When police fail to abide by the procedures set out in the PPRA, or behave in an unfair manner, a complaint can be made to the Crime and Corruption Commission (CCC) or to the Ethical Standards Command of the Queensland Police Service. A stay of proceedings may be ordered1 and there may be criminal and civil actions available.2 If evidence is gathered in breach of the PPRA or in circumstances where officers carry out procedures unfairly, this may lead to an application to exclude the evidence.3 The PPRA does not affect the common law under which a court in a criminal proceeding may exclude evidence in the exercise of its discretion or stay 1 2 3

See [9.30]. See Chapter 2. R v Davidson (1996) 92 A Crim R 1 at 21 where Derrington J sets out some historical discussion in regard to the exclusion of confessional evidence.

[3.20] 79

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the proceeding in the interests of justice.4 The discretion to exclude evidence applies to any breach of police procedures, or any unfairness, whether the breach relates to arrest, search or questioning of a suspect or another matter. The decision to exclude evidence from a criminal proceeding may be made during pre-trial proceedings,5 during a voir dire in the District Court or Supreme Court,6 or prior to or during the trial if the matter is before the Magistrates Court. It is not uncommon for the admissibility of certain types of evidence to be challenged by the defence. To ensure that a jury does not hear highly prejudicial and potentially inadmissible evidence, the defence, at a pre-trial hearing or on a voir dire may apply to have the evidence excluded. The type of evidence that the defence typically seeks to exclude includes: • a confession made by the defendant; • physical items seized by police during a search; or • DNA evidence collected by police.

EXCLUDING OUT-OF-COURT CONFESSIONS [3.30] Defendants in criminal proceedings have a right to remain silent.7 Answers given by a defendant in an interview with police are referred to as out-of-court confessions. Admissible evidence of a confession is particularly damaging for the accused’s case. As such, the PPRA sets out requirements that police officers questioning a suspect about his or her involvement in an indictable offence must meet. Police cannot obtain a confession by threat or promise.8 Section 10 of the Criminal Law Amendment Act 1894 similarly provides that confessions may not be relied upon in a prosecution if such a confession has been made following a threat or promise by someone in authority.9 Before admitting an out-of-court confession into evidence, the court must be satisfied that the confession is not fabricated,10 that it is voluntary,11 reliable and fairly obtained. The High Court addressed some of these issues in Tofilau v The Queen.12 Gummow and Hayne JJ stated that: There are three separate but overlapping inquiries that may be made in deciding whether evidence of an out-of-court confessional statement is admissible. First there is the question, commonly decided as a question of “voluntariness” presented when the confession in issue was made to someone identified as a “person in authority”. Second, there may be the consideration of exclusion of the evidence of the confession based upon notions of “basal voluntariness”. Finally there is the discretion to exclude

4

PPRA, s 10.

5 6 7 8 9

QCC, s 590AA as to the types of pre-trial applications. A voir dire is essentially a “trial within a trial” and takes place in the absence of the jury. See Chapter 2. PPRA, s 416. Criminal Law Amendment Act 1894 (Qld) s 10.

10 11

Fabrication is less of a problem with the advent of recording and the requirements placed on Police to record. See Chapter 2 for further discussion. PPRA, s 439; Criminal Law Amendment Act 1984 (Qld), s 10.

12

(2007) 231 CLR 396; [2007] HCA 3 at [28].

80 [3.30]

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evidence of the confession for reasons of fairness, reliability, probative value or public police.13

Voluntariness [3.40] In order for a confession to be admissible, the court must be satisfied that the confession was made voluntarily.14 The onus to prove that a confession was made voluntarily lies with the Crown.15 If the circumstances surrounding the making of a confession raise concerns of some impropriety, or if the confession is not made freely and voluntarily, then the prosecution must prove on the balance of probabilities that it was voluntary or the confession will be excluded from evidence.16 A confessional statement will be excluded as being involuntary if it has been obtained from a defendant in circumstances that cause the defendant “fear of prejudice or hope of advantage, exercised or held out by a person in authority”.17 Gummow and Hayne JJ state that “the rules governing the exclusion of certain confessions made to persons in authority [voluntariness] and the principle of ‘basal voluntariness’ take their place as aspects of the one principle”.18 In Tofilau v The Queen the High Court referred to this principle as the “inducement rule”. There are four possible reasons that justify the existence of the inducement rule: reliability, jury danger, police discipline and the impact on free choice.19 In relation to reliability, Eyre B and Nares J said: Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not entitled to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt, and is therefore admitted as proof of the crime to which it refers.20

In relation to jury danger, it has been suggested that, although an involuntary confession may be true, a jury may give excessive weight to it compared to other evidence.21 Questions may also arise as to whether the prosecution has properly discharged the burden of proof.22 With respect to police discipline, it has been stated that persons in custody should not be subjected to improper pressure, ill-treatment or improper methods23 In such circumstances, the exclusion of a confession obtained in the shadow of

13

See also Tofilau at [245] per Callinan, Heydon and Crennan JJ.

14 15

McDermott v The King (1948) 76 CLR 501 at 511 per Dixon J. R v Thompson (1893) 2 QB 12; Wendo v The Crown (1963) 109 CLR 559 at 572; R v Griffiths [2013] QCA 120 at [81]. R v Beere [1965] Qd R 370 per Gibbs J. Tofilau at 401 citing Ibrahim v The King [1914] AC 599 at 609. See also R v Munck [2010] QSC 416 at [46]-[54]. Tofilau at [56] per Gummow and Hayne JJ.

16 17 18 19 20 21 22

Tofilau at [286], [290], [292] and [293] per Callinan, Heydon and Crennan JJ. R v Warickshall (1783) 1 Leach 263 at 263-264; 168 ER 234 at 234-235, quoted in Tofilau at [286] per Callinan, Heydon and Crennan JJ Tofilau at [290] per Callinan, Heydon and Crennan JJ. Tofilau at [291] per Callinan, Heydon and Crennan JJ.

23

Tofilau at [292] per Callinan, Heydon and Crennan JJ. [3.40] 81

Criminal Process in Queensland

impropriety both protects the accused and deters police from using such methods.24 Finally, the inducement rule is said to rely upon the principle that the accused should “exercise … a free choice to speak or be silent”.25 Where the confession is “generated by the power of the inducement made by the person in authority”,26 rather than as a product of free choice. The police interview procedures discussed previously27 are designed to ensure, as far as possible, that confessions are voluntarily made. Confessions not proven to be voluntary will be excluded. Interviewing police must not obtain a confession using any threat or promise.28 Oppressive or cross-examination-style questioning by police may also support a claim that the confession is not voluntarily made.29 Other related issues, such as the poor sound quality of tape recordings, may raise doubts about the voluntariness, and thus the reliability, of the confession and may lead to its exclusion.30

Person in authority [3.50] The term “person in authority” for the purposes of the rule of evidence on voluntariness refers to the person known or believed by the person giving the confession to have “lawful authority to affect the course of the investigation of or the prosecution of the offence in question”.31 In McDermott v The King,32 Dixon J confined the expression “person in authority” to include “officers of police and the like, the prosecutor, and others concerned in preferring the charge” (at [10]). The confession need not be made to the person in authority themselves but could be made in the presence of such a person. In Tofilau, the High Court was concerned with police officers who posed as gang members during an undercover police investigation. The undercover police officer told several murder suspects that if they wanted to join the gang and profit from the activities of the gang, they would have to tell the truth to the gang boss about their involvement in specific murders. The undercover police advised the suspects that if they told the truth, their problems would go away, but that charge and conviction were inevitable if they did not tell the truth. The undercover police claimed that they could ensure this because they had influence over corrupt police

24 25 26

Tofilau at [291] and [292] per Callinan, Heydon and Crennan JJ. R v Lee (1950) 82 CLR 133 at 149; Van der Meer v The Queen (1988) 62 ALJR 656 at 665; 35 A Crim R 232. Tofilau at [293] per Callinan, Heydon and Crennan JJ.

27

See [2.370].

28 29

PPRA, s 416; Criminal Code Amendment Act 1894 s 10. Van Der Meer v The Queen (1988) 62 ALJR 656; 35 A Crim R 232; Roster v The Queen (1993) 66 A Crim R 112; 113 ALR 1; R v Brauer [1937] QWN 18. R v Mondon [2001] QCA 402 although lack of recording will not inevitably lead to exclusion of the confession from evidence: PPRA, s 439. The issue of whether or not it is recorded would be of greater relevance to public policy or fairness discretion. (2007) 231 CLR 396; [2007] HCA 39 at [29] and [45] per Gummow and Hayne JJ; at [13] per Gleeson CJ; at [320] per Callinan, Heydon and Crennan JJ (Kirby J dissenting at [190]).

30

31 32

(1948) 76 CLR 501.

82 [3.50]

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CH 3

officers. Subsequent confessions were made to the “gang boss” and recorded.33 The majority of the High Court found that the confessions made to the “gang boss” were not made to a person in authority given that those making the confessions neither knew nor believed that those to whom they spoke had lawful authority to affect the investigation or prosecution of the murders.34 Further, the claimed connection of the “gang bosses” to real, but corrupt, police officers did not embody the power of an authority of the State.35 Callinan, Heydon and Crennan JJ commented that “[a] perception by the suspect that the coercive power of the state is being used is central … [W]here that perception does not exist, the basis for the inducement rule is not present”.36 Generally, the holding out of a promise of advantage has been associated with confessions made to those in authority. Promises of advantage held out by a person not in a position of authority will rarely be seen to impact on the person’s choice to speak or remain silent, although there might be some occasions where they may.37

Basal voluntariness [3.60] Where the confession is not made to a person in authority, there may be a question of basal voluntariness. In Tofilau v The Queen, Gummow and Hayne JJ stated that “the rules governing the exclusion of certain confessions made to persons in authority [voluntariness] and the principle of ‘basal voluntariness’ take their place as aspects of the one principle”.38 Likewise, Callinan, Heydon and Crennan JJ stated that, similar to confessions made to a person in authority: The relevant conclusion is described as the will being overborne. The circumstances that yield that conclusion … are described as “the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure”. All are species of compulsion.39

Circumstances where confessions may be excluded on the basis of basal voluntariness have been factors external to the accused. For example, the confession was excluded in circumstances when it was made late at night by an accused who had fainted twice and was in a “dopey condition”.40 Another confession was excluded where the person making the confession had stabbed someone, blacked out, attempted suicide by poisoning and was found wet, cold

33 34

Tofilau at [26]. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [12] per Gleeson CJ; at [79], [87], [97] and [107] per Gummow and Hayne JJ; at [320] per Callinan, Heydon and Crennan JJ.

35

Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [310] per Callinan, Heydon and Crennan JJ. (2007) 231 CLR 396; [2007] HCA 39 at [320] per Callinan, Heydon and Crennan JJ; see also Gleeson CJ (at [12]). Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [62] per Gummow and Hayne JJ. Tofilau at [56] per Gummow and Hayne JJ. (2007) 231 CLR 396; [2007] HCA 39 at [58] and [60] per Gummow and Hayne JJ; at [327] per Callinan, Heydonand Crennan JJ, quoting Dixon Jin McDermott v The King (1948) 76 CLR 501 at 511.

36 37 38 39

40

R v Burnett [1944] VLR 115 at 116-117 per O’Bryan J. [3.60] 83

Criminal Process in Queensland

and distressed – his stomach was pumped and then a confession had been elicited.41

The discretion to exclude [3.70] Even where a confession is made voluntarily, it is still possible for it to be excluded. In Tofilau v The Queen, Gummow and Hayne JJ commented: To the extent to which questions of fairness are distinct from reliability, and to the extent to which questions of controlling police conduct and methods are relevant, they are best dealt with under the discretion.42

The “discretion” to exclude evidence has three overlapping aspects: 1.

The unfairness discretion – this would entail a finding that, in all the circumstances, it would be unfair to use the evidence against the accused.43

2.

The public policy discretion – where the evidence has been illegally or improperly obtained and is unacceptable for admission.44

3.

The prejudicial value of the evidence exceeds its probative value.45

A decision to exclude evidence on the basis that it would be unfair to the accused to admit it concerns both the reliability of the confession and procedural fairness.46 For example, Brennan J has pointed out that, in particular circumstances, a confession would not have been made if the interview had been properly conducted.47 The High Court in R v Swaffield48 and, in particular, the joint judgment of Toohey, Gaudron and Gummow JJ, requires that, where voluntariness is not in issue, the discretion to exclude confessional evidence should be exercised by reference to considerations of reliability and with respect for the right of an accused to stay silent. As their Honours said: [T]he purpose of that discretion is the protection of the rights and privileges of the accused. Those rights include procedural rights. There may be occasions when, because of some impropriety, a confessional statement is made which, if admitted, would result in the accused being disadvantaged in the conduct of his defence.49

41

42 43 44 45

46 47 48 49

R v Williams [1959] NZLR 502. Both examples are quoted in Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [338] per Callinan, Heydon and Crennan JJ. See also Sinclair v The King (1946) 73 CLR 316 for a discussion on the effect of unsoundness of mind on the making of a confession. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [54]. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [247] per Callinan, Heydon and Crennan JJ. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [246] per Callinan, Heydon and Crennan JJ; at [8] per Gleeson CJ. (2007) 231 CLR 396; [2007] HCA 39 at [248] per Callinan, Heydon and Crennan JJ. This matter is not discussed further here, but see generally, P K Waight and C R Williams, Evidence: Commentary and Materials (7th ed, Lawbook Co., 2006) pp 12-13. R v Lee (1950) 82 CLR 133. Duke v The Queen (1989) 180 CLR 508 at 513. (1998) 192 CLR 159 at 197. (1998) 192 CLR 159 at 197.

84 [3.70]

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In the case of Swaffield, Kirby J regarded the critical question as to whether there was unfairness as: whether the trick may be thought to involve such unfairness to the accused or otherwise be so contrary to public policy that a court should exercise its discretion to exclude the evidence.50

In this context, the rules relating to police procedures have been described as “a yardstick” against which issues of unfairness (and impropriety) can be measured.51 Clearly, police tactics of subterfuge and deception are not in themselves a ground for exclusion of a confession obtained in a covert way. Although the High Court has emphasised the need for caution in the admission of evidence covertly obtained by police, it has also recognised that police investigation should not be unduly hampered.52 In Em v The Queen,53 the appellant was a suspect in a murder investigation who refused to talk to the police “if it’s on the tapes”. The police told him that the recording device and their phones had been turned off. Em asked whether there was a wire “like in the movies” and the police interviewers advised that Em would just have to trust the police. The interview then proceeded, unrecorded, and the officers made a written record. Later, the police officers collected Em from his home and took him to a park. Each of the officers was fitted with a covert recording device on this later occasion.54 On the way to the park the police officers repeatedly told Em that they were not trying to trick him, they also cautioned Em, reminding him that he did not have to talk to the police. The police did not advise Em that the conversation was being recorded. While the trial judge excluded the first conversation on the basis that it was not recorded, he admitted the second covertly recorded conversation into evidence. Ultimately, Em was convicted of murder. Em appealed against conviction on the basis, in part, that the second conversation should also have been excluded. The majority of the High Court found that the behaviour of the police in obtaining the second confession, recorded in the park, was not unfair.55 Gummow and Hayne JJ observed that the admissions were reliable and the methods used by police were lawful (at [121]). Kirby J was the sole dissenting voice. Although he accepted that resolving a serious murder is a matter of high public importance, he found the police behaviour unfair. Referring to Swaffield, Kirby J observed that “in evaluating

50

(1998) 192 CLR 159 at 221.

51

R v LR [2006] 1 Qd R 435; [2005] QCA 368 at [51] per Davies J, referring to R v Swaffield (1998) 192 CLR 159 at 190; [1998] HCA 1 at [55] ; Van der Meer v The Queen (1988) 62 ALJR 656 at 666; [1988] HCA 56. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [416] per Callinan, Heydon and Crennan JJ; at [66] per Gummow and Hayne JJ. See also R v Fraser [2004] 2 Qd R 544; [2004] QCA 92; and R v B [2000] QCA 19. Note the distinction that is sometimes made between tricks and “dirty tricks”: see R v Collins [1987] 1 SCR 265 at 286-287, quoted in A Palmer, “Applying Swaffield: Covertly Obtained Statements and the Public Policy Discretion” (2004) 28 Criminal Law Journal 217. (2007) 232 CLR 67; [2007] HCA 46. The police had obtained the required warrants under the Listening Devices Act 1984 (NSW): see Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [120] per Gummow and Hayne JJ. Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [90] per Gleeson and Heydon JJ; at [116] per Gummow and Hayne JJ.

52

53 54 55

[3.70] 85

Criminal Process in Queensland

fairness courts must take into account a suspect’s right to silence and the concomitant entitlement to choose whether or not to speak to the police”.56 In Tofilau, members of the High Court referred to Canadian authority which suggested that in circumstances where a confession was elicited by a police officer pretending to be a chaplain or a legal aid lawyer, or where truth serum was injected into a diabetic, the confession should be excluded. It was observed that even though there was no concern about reliability, in these circumstances such behaviour would be “so appalling as to the shock the community.”57 Evidentiary material that is collected as a result of a breach of the PPRA may be excluded on the basis of the public policy discretion. The public policy discretion was discussed in the case of Ridgeway v The Queen.58 In that case, it was said that: [The public interest] “will vary according to other factors of which the most important will ordinarily be the nature, the seriousness and the effect of the illegal or improper conduct engaged in by the law enforcement officers and whether such conduct is encouraged or tolerated by those in higher authority in the police force or in the case of illegal conduct by those responsible for the institution of criminal proceedings”.59

The High Court in Ridgeway asked if the accused, but for the police conduct, would have been a law-abiding person.60 If the answer to this question were “yes”, it would be more likely that evidence would be excluded.

COMPLAINTS AGAINST POLICE [3.80] In his 1989 report, Fitzgerald described existing approaches to police misconduct as “inefficient and ineffective”.61 He concluded that the Queensland Police Service: is debilitated by misconduct … incompetence and deficient leadership [and that] lack of discipline, cynicism, disinterest, frustration, anger and low self-esteem are the result … [T]he [police] culture … includes contempt for the criminal justice system, disdain for the law and rejection of its application to police, disregard for the truth and abuse of authority.62

Fitzgerald claimed that police whistleblowers would often become the subject of false complaints, fabricated evidence and punitive transfers. He recommended the development of an independent body to deal with complaints.63 The Criminal Justice Commission (CJC), subsequently the Crime and Misconduct Commission (CMC) and now the Crime and Corruption Commission (CCC)

56 57 58 59 60 61 62 63

Em v The Queen (2007) 232 CLR 67; [2007] HCA 46 at [237] per Kirby J. Tofilau v The Queen (2007) 231 CLR 396; [2007] HCA 39 at [355] per Callinan, Heydon and Crennan JJ. (1995) 184 CLR 19; see also Bunning v Cross (1978) 141 CLR 54. (1995) 184 CLR 19 at 38. (1995) 184 CLR 19. G E Fitzgerald, Report of a Commission of Inquiry Pursuant to Orders in Council (1989) p 285: http://www.ccc.qld.gov.au/about-the-ccc/the-fitzgerald-inquiry. G E Fitzgerald, Report of a Commission of Inquiry Pursuant to Orders in Council (1989) p 200: http://www.ccc.qld.gov.au/about-the-ccc/the-fitzgerald-inquiry. G E Fitzgerald, Report of a Commission of Inquiry Pursuant to Orders in Council (1989) p 286-287 and 303: http://www.ccc.qld.gov.au/about-the-ccc/the-fitzgerald-inquiry.

86 [3.80]

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was established in 1989 in response to the recommendations of the Fitzgerald Inquiry to improve accountability and raise integrity in Queensland. The CCC operates under the Crime and Corruption Act 2001 (Qld) (CCA) and is an independent law enforcement commission. It is primarily concerned with: • Combating and reducing the incidence of major crime; and • Continuously improving the integrity of and reducing the incidence of corruption in the public sector.64 In 2009, almost 20 years after the Fitzgerald Report, the CMC published “Dangerous Liaisons – A report arising from a CMC investigation into allegations of police misconduct (Operation Capri)”.65 The CMC recognised that there was no panacea to the apparent misconduct of police exposed by the report. The CMC concluded that: [W]hat is required is a fundamental reaffirmation to individual police officers and their supervisors of the value of maintaining professional standards: the recognition, at every level and across all ranks, of the imperative to comply with procedures, act with integrity and be accountable for their actions, and of the need to be vigilant in maintaining standards.66

In 2014, following a review of the then Crime and Misconduct Act 2001 (Qld) by Callinan and Aroney, the powers and objectives of the CCC were amended.67 The Queensland Parliament amended the definition of “official misconduct” to limit it to “corrupt conduct”. In so doing, the nature and scope of the investigative power of the CCC was changed and for the purposes of police misconduct, a new regime of referrals by the CCC for internal police investigation was established.

Making a complaint [3.90] Complaints about police can be made either to the Queensland Police Service or to the CCC.68 Several types of matters may be complained of and, depending on the type of matter, the complaint will be treated in a particular way as outlined below. These types of matters are corrupt conduct by police, police misconduct and minor misconduct.

Corrupt conduct by police [3.100] “Corrupt conduct” is defined by s 15 of the CCA. The term refers to conduct that justifies dismissal69 or conduct that could, if proved, be a criminal offence.70 Corrupt conduct may be complained of directly to the CCC71 or to the 64 65

68 69

CCA, s 4. Crime and Misconduct Commission, Dangerous Liaisons – A report arising from a CMC investigation into allegations of police misconduct (Operation Capri) (2009). Crime and Misconduct Commission, Dangerous Liaisons – A report arising from a CMC investigation into allegations of police misconduct (Operation Capri) (2009) p 115. I Callinan and N Aroney, Review of the Crime and Misconduct Act And Related Matters: Report of the Independent Advisory Panel (Crown Law, Brisbane, 2013) CCA, s 36. CCA, s 51; see also Public Services Act.

70

CCA, s 50.

66 67

[3.100] 87

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Queensland Police Service. The Police Commissioner is under a duty to notify the CCC if they reasonably suspect “that a complaint, or information or matter (also a complaint), involves, or may involve, corrupt conduct”.72 Corrupt conduct complaints that are made to the Queensland Police Service will ordinarily be investigated by the CCC as it has primary responsibility for dealing with complaints about matters involving corrupt conduct.73 Matters may also be referred back to the Police Commissioner for investigation.74

Police misconduct [3.110] Police misconduct is conduct by a police officer that “is disgraceful, improper or unbecoming of a police officer or shows unfitness to be or continue as a police officer or does not meet the standard of conduct the community reasonably expects of a police officer”.75 Police misconduct is a broader term than corrupt conduct. Misconduct complaints may be made directly to the CCC but the role of the CCC in police misconduct is limited to a monitoring role.76 The complaint may also be made to the Queensland Police Service and the Commissioner of Police retains primary responsibility for dealing with complaints about police misconduct.77 The way in which the Commissioner will dealt with police misconduct is addressed by: CCA, s 42. The Commissioner of Police may, in an appropriate case, ask the commission to deal with a complaint about police misconduct or deal with the complaint in cooperation with the commissioner of police.78

Minor misconduct [3.120] Complaints that fall within customer service issues are made directly to the Queensland Police Service (QPS) and the QPS has an online complaint form. Alternatively, a complaint in relation to these types of matters can be made to the local police station.79 The types of customer service issues would include: • Slowness or inefficiency in dealing with a call; • Rudeness from the officer; • A failure by the officer to identify himself or herself.

71

CCA, s 36.

72 73 74 75 76 77 78 79

CCA, s 38. CCA, s 45(1). CCA, s 41(2). CCA, Schedule 2 definition of Police misconduct. CCA, s 45(2). CCA, s 41(1). CCA, s 42(4). See Queensland Police website: https://www.police.qld.gov.au/online/ComplimentsandCo mplaints.htm

88 [3.110]

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Resolution of the complaint [3.130] Eade and Barnes suggest there are four ways of responding to complaints, but also note problems associated with these methods:80 1.

Investigation (may lead to criminal or disciplinary charges).

2.

Mediation (between parties in order to come to an agreement about the appropriate response). This is usually carried out in private and so can provide little information to the police service in regard to reforms that may be necessary.

3.

Informal resolution (such as an apology or explanation). This process is “speedy and simple” but will not impact on systemic issues.

4.

Managerial resolutions (such as an apology). There is an inherent danger that managers will try to minimise the seriousness of the allegations.

The CCC and Police Commissioner, depending on who deals with the particular complaint, have broad discretion as to how to respond to the complaint. Options include, but are not limited to: • laying of criminal charges;81 • disciplinary proceedings;82 • dismissal of the police officer;83 • an apology; • rejection of frivolous complaints.84 The CCC will monitor the way in which the Police Commissioner deals with complaints.85

False complaints [3.140] Individuals who make false complaints to the QPS may be prosecuted.86 Likewise, individuals who make frivolous complaints made to the CCC may also be prosecuted.87 The Callinan/Aroney report, “Review of the Crime and Misconduct Act 2001” (Qld) discusses the problem with false or frivolous complaints being made to the then CMC.88 The report expresses the view that to achieve efficiency, effectiveness and deterrence there should be a requirement for a statutory

80

A Eade and M Barnes, Making the Response Fit the Complaint: Alternative Strategies for Resolving Complaints against Police, Research and Issues Paper Series (Crime and Misconduct Commission, Queensland, 2001). Over 1,700 misconduct complaints and over 1,200 breach of discipline complaints are generated every year in Queensland.

81 82 83 84 85

CCA, s 50. CCA, s 50. CCA, s 50. CCA, ss 42 and 46. CCA, s 45.

86 87 88

Police Service Administration Act 1990 (Qld) s 10.21. CCA, s 216. 2013 Review of the Crime and Misconduct Act 2001 (Qld): http://www.parliament.qld.gov.au/ documents/tableOffice/TabledPapers/2013/5413T2447.pdf. [3.140] 89

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declaration in a prescribed form that sets out a real basis for a suspicion in support of a complaint.89 As a result, complaints must now be made through a statutory declaration.

Complaints about the Crime and Corruption Commission [3.150] Complaints about the CCC can be referred to the Parliamentary Crime and Corruption Committee (PCCC), a standing committee of the Legislative Assembly.90 The Parliamentary Crime and Corruption Commissioner is a Member of Parliament who helps the PCCC perform its functions.91

POLICING ORGANISED CRIME [3.160] Policing organised crime has become increasingly contentious in recent years. It has resulted in the passing of the Vicious Lawless Association Disestablishment Act 2013 and associated legislation92 in 2013 and in 2016 the Parliament passed the Serious and Organised Crime Legislation Amendment Act 2016. Organised crime operates in a dynamic environment. It is not exclusive to geographical areas or to particular social systems.93 It has been difficult to formulate a definition of organised crime. The popular focus for organised crime has been on “outlaw motor cycle gangs”. However, since the Report of the Taskforce on Organised Crime and through the introduction of the Serious and Organised Crime Legislation Amendment Act 2016, there is a recognition that organised crime includes illicit drug markets, online child sex offending, financial crime and violent crime.94 The Serious Organised Crime Legislation Amendment Act 2016 introduces a consorting regime that makes it an offence for a person to consort on two occasions with two others who have convictions for serious indictable offences. The recognised offender is a person who has previously been convicted of an indictable offence punishable by a maximum penalty of five or more years imprisonment or to other prescribed offences.95 Police are required to give an official warning to the offender and at least one of the occasions of consorting must occur after the issue of the warning. The official

89

2013 Review of the Crime and Misconduct Act 2001 (Qld) at page 205: http://www.parliament .qld.gov.au/documents/tableOffice/TabledPapers/2013/5413T2447.pdf.

90

CCA, s 9.

91 92

CCA, s 10. Vicious Lawless Association Disestablishment Act 2013; Tattoo Parlours Act 2013; Criminal Law (Criminal Organisation Disruption) Amendment Act 2013; Criminal Law (Criminal Organisation Disruption) and Other Legislation Act 2013; and the Criminal Code (Criminal Organisations) Regulation 2013.

93

A Wilson, Report of the Taskforce on Organised Crime Legislation (2016) http://www.justice.q ld.gov.au/__data/assets/pdf_file/0017/463022/report-of-the-taskforce-on-organised-crimele gislation.pdf A Wilson, Report of the Taskforce on Organised Crime Legislation (2016) http://www.justice.q ld.gov.au/__data/assets/pdf_file/0017/463022/report-of-the-taskforce-on-organised-crimele gislation.pdf

94

95

QCC, s 77.

90 [3.150]

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CH 3

warning can be given orally or in writing and must be given in relation to each convicted offender. If the official warning is given orally, it must be confirmed in writing, including by electronic means, within 72 hours otherwise the oral warning lapses and has no legal effect.96 The consorting can occur in public or in private and is not limited to physical association. The offence is sufficiently broad so as to capture any kind of communication including electronic. The consorting offence is accompanied by warrantless stop, search and detain powers for police. Police can search a person they reasonably suspect has consorted, is consorting or is likely to consort.97 As these new offences and powers have only recently been introduced, it is unclear how the offences will be applied by police. It is important to note that there is a review function that must be undertaken five years after commencement.

96 97

PPRA, s 53BAA. PPRA, ss 30-32. [3.160] 91

CHAPTER 4 Bail [4.10] [4.30]

[4.60] [4.80] [4.90]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 [4.20] Bail in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 Forms of Bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 [4.30] Police bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 [4.40] Cash bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 [4.50] Court bail on an undertaking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 96 Bail Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99 [4.70] Surety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Bail pending appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102 Emerging Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

OVERVIEW [4.10] This chapter examines issues related to the discretion of police and the courts in relation to bail and outlines the forms of bail and the process for applying for bail. “Bail” is not defined in the Bail Act 1980 (Qld) (BA(Qld)). However, it is best described as the granting of “conditional liberty” to a person who has been charged with criminal offences on the basis that the person undertakes to attend at court at some future date to answer the charges against them. Through the imposition of appropriate conditions,1 bail operates to protect the community.

Bail in Queensland [4.20] The BA(Qld) regulates the conditions and qualifications for the granting of bail. There are a number of obvious advantages a person granted bail gains as compared to someone who is refused bail and is consequently held in custody on remand. Those advantages include having easier access to their lawyer in preparing for trial, being able to prepare themselves psychologically for the trial experience while still in their familiar community, and the ability to maintain work and family commitments. Consistent with the presumption of innocence until guilt is proven, in most cases in Queensland, there is a “prima facie right” to bail prior to conviction.2 Accordingly, in the majority of cases, the onus is on the prosecution to satisfy the court that bail should be refused on the basis that the accused is an “unacceptable risk”.3

1 2 3

BA(Qld), s 11. BA(Qld), s 9. Where a person has been convicted of an offence and intends to appeal the decision, it is extremely difficult to obtain bail pending the appeal. “No grant of bail is absolutely free of risk…”: Williamson v Director of Public Prosecutions (Qld) [2001] 1 Qd R 99; [1999] QCA 356 at [11] per Thomas JA. See also BA(Qld), s 16(1) and (1A).

[4.20] 93

Criminal Process in Queensland

However, in certain cases, the presumption in favour of a grant of bail shifts and the accused bears the onus of satisfying the court that their detention in custody is not justified – that is, there is a “show cause” situation and a reversal of the onus.4 In practice, this means that the bail applicant must satisfy the court that they are not an “unacceptable risk”.5 The reverse onus, or “show cause” position applies in a number of circumstances, including where the accused is charged with a breach of the Bail Act 1980 or where they are charged with an indictable offence alleged to have involved the use, or threatened use, of a firearm, offensive weapon or explosive substance.6 The reverse onus, or “show cause” position also applies in those matters where only the Supreme Court may grant bail.7 In addition, in March 2017, Parliament introduced an amendment to the BA(Qld) to place a person who is charged with a relevant domestic violence offence in a show cause position.8 If the person is charged with a relevant domestic violence offence, then the Court must consider the risk of further domestic violence in assessing whether the person has shown cause.9 Further, the Serious and Organised Crime Legislation Amendment Act 2016 places a person charged with a relevant consorting offence in a “show cause” position.10 The Explanatory Notes underpinning this legislation detail that a person who is charged with the offence of contravening a public safety order or breaching an Organised Crime Control Order is placed in a show cause position.11 Clearly, it will be more difficult to obtain bail in one of the “show cause” situations; however, the fact remains that, even for a murder charge,12 it is possible to obtain bail. Appropriate bail conditions can be crafted according to the circumstances of the particular case in an attempt to overcome the potential risks of granting bail. Regardless of which forum considers a bail application, section 16 of the BA(Qld) makes it clear that bail will be refused where the decision-maker is satisfied that: • the person would fail to attend court when required; or • if released on bail they would commit an offence, harm a person or interfere with witnesses; or • for their own safety they should remain in custody.

4 5 6

BA(Qld), s 16 (3). BA(Qld), ss 15 and 16 (1). BA(Qld), s 16 (3).

7

BA(Qld), ss 13 and 16(3): ie where a person is charged with an offence under the Criminal Code if, on conviction, the sentencing court will have to decide whether to impose a mandatory sentence of imprisonment for life, or an indefinite sentence (see chapter 14). Bail (Domestic Violence) and Another Act Amendment Act (2017) cl 6. Bail (Domestic Violence) and Another Act Amendment Act (2017) cl 6. See also Serious and Organised Crime Legislation Amendment Bill 2016 cl 7. Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016, p 6 available at: http://www.parliament.qld.gov.au/Documents/TableOffice/TabledPapers/2016/ 5516T1491.pdf.

8 9 10 11

12

See, eg, Heke, Re an application for bail [2015] QSC 374.

94 [4.20]

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A bail application can be made to a court at any time, including at the conclusion of the committal if the accused is committed for trial, during trial, and at the conclusion of the trial, pending sentence.13

FORMS OF BAIL Police bail [4.30] If a person is arrested and charged with an offence, the watch-house keeper or manager or the officer-in-charge of a police station, will be obliged to consider whether to grant watch-house bail.14 The police may or, where it is not practicable to take the person before a court within 24 hours after the person is taken into police custody, must release the person, either by granting bail or by issuing them with a Notice to Appear.15 This takes the form of cash bail, discussed at [4.40], or an undertaking, discussed at [4.50]. Where an officer-in-charge of the police station or the watch-house manager grants bail, they have wide-ranging discretion with respect to the conditions under which they may release a person on bail.16 In Queensland, many arrests will be discontinued17 after preliminary investigations and interrogations have been carried out. Accused persons may then be served with a Notice to Appear or the matter may proceed by the complaint and summons process.18 Bail is not required in these circumstances. In situations where police are reluctant to release the accused, they will leave the decision about bail to the courts. Bail involves the loss of liberty and, as such, a decision to refuse bail is serious. The police officer will be justified in refusing bail where they are satisfied that the person would fail to attend court when required or, if they were released on bail, that they would commit an offence, harm a person (including the risk of the accused harming his or herself) or interfere with witnesses.19

Cash bail [4.40] A police officer may release the person on “cash bail”.20 In this situation, the person is required to make a deposit of money as security for their appearance at court. If the person does not appear as required, the money will be forfeited. In Queensland, cash bail may be granted in relation to most non-indictable offences.21 However, there are a few non-indictable offences, most notably

13 14 15 16 17 18 19 20

BA(Qld), ss 8 and 10. BA(Qld), s 7 BA(Qld), s 7(2)(b). BA(Qld), s 11. PPRA, ss 375-381. Justices Act 1886 (Qld), s 53; PPRA (Qld), s 382. See also [2.270]. BA(Qld), s 16(1). BA(Qld), s 14(1A).

21

BA(Qld), s 14A. [4.40] 95

Criminal Process in Queensland

drink-driving,22 that are expressly excluded from the scope of cash bail.23 Further, this form of bail is not available in an application for bail to a higher court – in those cases bail will always be on an undertaking, with or without conditions.

Court bail on an undertaking [4.50] The usual form of bail in Queensland, whether from police, a Magistrate or a higher court, is by entering into an “undertaking”.24 This is effectively a contract or promise to appear at court at a later date, with or without conditions imposed.25 If a person has entered into an undertaking to appear and later fails to appear, they commit an offence against the BA(Qld)26 and a warrant may be issued for their arrest. Similarly, a breach of any condition of bail constitutes an offence.27 Any money that was paid as part of the bail condition will be forfeited and an arrest warrant will be issued for the breach offence.28 An exceptional approach is taken to bail where the accused is a person who has or appears to have an impairment of the mind. Section 11A of the BA (Qld) provides that where such a person does not, or appears not, to understand the nature and effect of entering into a bail undertaking and that if the person would otherwise have been released on bail if they understood the undertaking, then the person with the impairment may simply be released without bail, or released without bail into the care of the person with whom they normally reside or with their carer. An accused is entitled to make an application for bail, or an application to vary bail, at any stage of the criminal proceedings. Similarly, the prosecuting authorities are entitled to make an application to vary or revoke bail at any time. It is relevant to note that the entitlement to apply for bail is limited once an application has been made and refused. A fresh application can only be brought if the applicant demonstrates that there has been a change in facts or circumstances since bail was previously granted or refused.29 This limitation does not apply to the power to make any variation to the terms and conditions of bail.30 As to which court will hear an application for bail, although only the Supreme Court may grant bail in respect of an offence of murder and other matters covered by section 13 BA(Qld),31 all courts have a general power to grant bail and to enlarge, vary or revoke any bail that has been granted.32 There are a number of 22

Transport Operations (Road Use Management) Act 1995 (Qld), s 79.

23 24 25 26 27 28 29

BA(Qld), s 14A(1); see also the Schedule to the Act. BA(Qld), s 6 for a definition of “undertaking”. BA(Qld), ss 11 and 20. BA(Qld), s 33. BA(Qld), s 29. BA(Qld), ss 31-33 and 35. See, eg, Ex parte Edwards [1989] 1 Qd R 139; Scrivener v DPP [2001] QCA 454; (2001) 125 A Crim R 279. For an example of an application to vary a reporting condition, see Berg v Director of Public Prosecutions [2009] QCA 213. Other matters included in BA(Qld), s 13 include: offences that upon conviction would result in imprisonment for life or an indefinite sentence.

30 31 32

See BA(Qld), s 10.

96 [4.50]

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factors that are relevant in determining which court should here the bail applications. These factors include the stage of the proceedings that the matter has reached. If, after a person is charged, the Magistrate refuses bail because the person presents as an unacceptable risk, the person may make an application to the Supreme Court for a bail order.33 An accused is entitled to apply for bail before the presiding magistrate at the conclusion of their committal proceedings.34 Following the committal, and pending the presentation of an indictment in the District or Supreme Court, the accused can elect to apply for bail in the Magistrates Court or the court to which they have been committed.35 Once an indictment is presented in the District or Supreme Court, an application can be made to that court.36 The decision as to whether or not to grant bail is a matter of weighing the competing public interest considerations – that is, ensuring that the accused appears before the court and that both the public and potential witnesses are protected – with the interests of the accused, who should not be unnecessarily detained while it has not been proved that they are guilty.37 Factors that support a grant of bail include a lack of opposition by the prosecutor, specific personal responsibilities of the accused (such as their employment and family commitments), and any risks to the physical or mental health of the accused if they were to be remanded in custody. Factors that may lead to a refusal of bail include a defendant’s history of failing to appear at court when required and a defendant’s history of committing similar offences when on a previous grant of bail. Where a decision-maker refuses to grant bail, the reasons for refusal must be recorded on the relevant papers.38 An accused whose application for bail is refused, or who is aggrieved by any conditions attached to a grant of bail, may apply again to a court for bail or for a variation to an existing bail order.39 However, in order to overcome the initial refusal, the later application must show evidence of a material change of circumstances.40 The case of Director of Public Prosecutions (Qld) v Bakir illustrates a later successful bail application due to a material change. Initially bail was refused on the ground that there was an unacceptable risk that the accused would interfere with witnesses. At the subsequent application, Bakir agreed not to live or enter the Gold Coast area, which is where the alleged offences were committed and where two key prosecution witnesses resided. Additionally, further information became available that weakened some of the evidence against him. In granting bail, the judge also considered that it was significant that the accused’s trial was not likely to take place until 2008 and that he had been in custody since mid-2006. In

33 34 35 36

See BA(Qld), s 16. Justices Act 1886 (Qld), s 108. BA(Qld), s 8. BA(Qld), s 8.

37 38 39

For discussion see Re Tesic [2015] QSC 205. BA(Qld), s 18. BA(Qld), s 19.

40

See Director of Public Prosecutions (Qld) v Bakir [2006] QCA 562, citing Scrivener v Director of Public Prosecutions (Qld) (2001) 125 A Crim R 279 per McPherson JA; and R v Hughes [1983] 1 Qd R 92. [4.50] 97

Criminal Process in Queensland

reaching its decision, the Court of Appeal noted R v Cain (No 1)41 where Sperling J had stated that the prospect of a person not convicted of any offence being imprisoned for two years waiting to go to trial was inconsistent with modern concepts of civil rights, unless there were exceptional circumstances. In Lacey v Director of Public Prosecutions (Qld),42 the Court of Appeal affirmed that a possible extended delay of a trial, while an important factor to consider when determining bail, is not necessarily a critical factor. In this case, Jade and Dionne Lacey were charged with the murder and unlawful wounding of Kevin Palmer, as well as with a series of offences, including attempted murder, assault, torture and deprivation of liberty in connection with the alleged abduction of Owen Matthews. In relation to Matthews, it was alleged that the Lacey brothers assaulted him, discharged a firearm at him, abducted him and took him to an island where they forced him to dig his own grave. It was also alleged that they shot him in the hand and forced him to telephone his mother to demand money in exchange for his life. In appealing the primary judge’s refusal of bail, the appellants argued that substantial delay before trial “of itself ‘shows cause’”. The Court of Appeal rejected that argument, stating: The length of delay, the reasons for that delay and the strength of the Crown case will always be matters of degree which must be balanced to arrive at a decision as to whether bail should be granted … The strength of a Crown case and the consequent risks of flight and interference with Crown witnesses do not diminish as the length of time to trial increases. On the other hand, in a case in which it is demonstrated that the time in custody on remand will likely exceed any custodial sentence which might be imposed after conviction, the relative importance of time may very well be regarded by the judge as outweighing the other relevant factors … Section 16(3) of the Bail Act cannot be read as if its operation was conditioned by a guarantee of a trial within a given time frame.43

Once a trial has commenced in either the District Court or the Supreme Court, the accused is formally placed in the charge of the jury and the trial judge decides any question concerning whether bail should continue during the trial or be granted for any adjournment.44 The trial judge’s decision is final. The case of Wotton v Director of Public Prosecutions (Qld)45 illustrates the operation of section 10 of the Bail Act. Wotton was one of six people charged over the 2006 Palm Island riots. He pleaded guilty in the District Court and applied for bail pending his sentence. When his application to the trial judge was refused, Wotton applied to the Supreme Court. The term “trial” is defined in s 6 of the BA(Qld) to include sentencing. The prosecution contended that the applicant’s reliance on the BA(Qld), s 10, in bringing the further application, could not be sustained as s 10(3) clearly made the trial judge’s decision final. Helman J agreed that BA(Qld), s 10(3) has that effect, but commented that it does not deny an aggrieved accused the right to seek a review of the initial decision by the trial judge.

41 42 43

R v Cain (No 1) (2001) 121 A Crim R 365 at 367 per Sperling J. [2007] QCA 413. Lacey v Director of Public Prosecutions (Qld) [2007] QCA 413 at [13]-[14].

44

BA(Qld), s 10(2) and (3).

45

Wotton v Director of Public Prosecutions [2008] 1 Qd R 95; [2007] QSC 42 per Helman J.

98 [4.50]

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BAIL CONDITIONS [4.60] A court may impose general conditions and any special conditions considered necessary to secure the accused’s appearance and to ensure that they do not commit further offences, endanger the public or interfere with witnesses.46 Any conditions imposed “shall not be more onerous” than are necessary in light of the offence, the accused’s circumstances and the public interest.47 Beyond this limitation, the court or police officer can craft conditions to suit the particular case. Common conditions that are imposed include: • ·reporting regularly to a particular police station; • residing at a particular address and advising authorities of any change of address; • having no contact with prosecution witnesses; • staying away from particular locations; • surrendering a passport or undertaking not to apply for a passport; • obtaining treatment for drug or alcohol-related conditions; and • observing a curfew. As an example, in the case of Director of Public Prosecutions (Qld) v Bakir, very stringent conditions were imposed on Bakir (the accused).48 The accused was charged with a number of serious offences, including attempted murder, dangerous conduct with a weapon and robbery. Bakir was granted bail on conditions that included a surety of $100,000, surrendering his passport and not approaching any international departure points, residing interstate, maintaining a curfew, refraining from any contact with his co-accused and witnesses and reporting to a designated police station five times a week. A person may also be required to participate in a rehabilitation program, pursuant to section 11 of the BA(Qld). One such program is specifically enumerated by section 11AB of the BA(Qld). This provides that offenders may complete the Drug and Alcohol Assessment Referral (DAAR) program. DAAR is a course provided by approved program facilitators with a focus on drug and alcohol use, education and prevention. Although home detention is not a condition of bail utilised in Queensland, the imposition of a curfew might effectively amount to home detention where movement is restricted according to certain hours and by restricting who might accompany the person. For example, with respect to young offenders, bail conditions may include a curfew, requiring the person to remain at a specified residence between the hours of 8 pm and 6 am.49 Similarly, in the case of persons with an impaired capacity, a condition may be crafted requiring a nominated adult to accompany the person whenever they leave their place of residence.

46 47 48

BA(Qld), s 11. BA(Qld), s 11(2A). [2006] QCA 562.

49

Note for a consideration of the issues associated with policing curfews see: Angela Robinson and Isabelle Bartkowiak-Theron, “Policing Youth Curfews: The ‘Wee Willie Winkie’ Model of Enforcing Bail Conditions” (2014) 2 Australasian Journal of Policing 10. [4.60] 99

Criminal Process in Queensland

However, there is generally no provision for formal monitoring via an electronic monitoring device for persons who have not yet been convicted of an offence.50 An application may also be made to vary or revoke bail conditions.51 In Re an application for variation of bail by Scott Andrew Price,52 the accused applied to have a requirement for a surety to the extent of $60,000 deleted from his bail conditions. Fryberg J, in granting the application, considered it particularly relevant that Price had already been held in custody for almost two-and-a-half years for the offences, at various times, and that it was unlikely that his sentence would be longer than a month or two.

Surety [4.70] A surety is someone who effectively acts as a guarantor for the accused’s appearance by providing a bail deposit. The BA(Qld) imposes restrictions in respect of those who may and may not act as sureties. It also outlines the procedure to be adopted by a court in considering whether or not to accept a person as a surety in the particular case.53 For example, in Queensland a person must not be accepted as a surety if that person or their family would suffer ruin or injury as a result of the undertaking being forfeited.54 Once a surety is accepted, if the person becomes concerned that the accused may breach their undertaking to appear at court, they may apply to the court to be discharged from their obligations.55 If, on the other hand, the accused absconds and the surety has taken no action, an order for payment of the surety amount can be made56 and the surety consequently forfeits the money or secured deposit they have provided. In Queensland, a surety may apply to have a payment order revoked or varied.57 However, it is difficult to succeed in this application given that the onus is on the applicant to establish that, in all the circumstances, the payment would be against the interests of justice.58 In Baytieh v Queensland,59 the applicant successfully argued that the order to pay $10,000 was not in the interests of justice. In this case, the surety took all appropriate steps to ensure that the accused, Osman, complied with his bail conditions, including appearing at court. Baytieh, a Minister of Religion, regularly

50

51

The issue of electronic monitoring of a person while on bail was discussed in Lacey v DPP (Qld); Lacey v DPP [2007] QCA 413 [21]. Note also that cases of domestic violence are an exception. See Bail (Domestic Violence) and Another Act Amendment Bill 2017 (Qld), cl. 4 which allows the court to consider the imposition of a special condition on bail that the accused wear an electronic tracking device in cases where the accused is charged with offences involving domestic violence. BA(Qld), s 10.

52

[2004] QSC 84.

53 54

BA(Qld), s 21. BA(Qld), s 21(8).

55 56

BA(Qld), s 23. BA(Qld), s 32A.

57

BA(Qld), s 32B.

58 59

BA(Qld), s 32B(2)(a). [2001] 1 Qd R 1. The procedure was, at the time, by way of an application under s 15 of the Crown Proceedings Act 1980 (Qld). That provision was omitted in 1999.

100 [4.70]

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counselled the accused, assisted him with his Legal Aid applications, accompanied him to meetings with his legal adviser and psychologist, and remained in frequent contact with him. On the morning of Osman’s court hearing, Baytieh met Osman at court and spoke to him. Osman said he was very nervous and he wanted to buy some cigarettes. Osman then disappeared. The court noted that it would be a rare case for the court to exercise its discretion and revoke an order for payment and found little judicial authority on relevant factors to the exercise of the discretion60 McMurdo P and Davies JA indicated that relevant considerations may include financial hardship, which had arisen for the surety since giving the undertaking, and the reasonableness of the surety’s expectation that the accused would comply with their bail. Jones J added the following considerations: • steps that the surety took to ensure that the accused would attend the court; • any circumstances which ought to have alerted the surety that the accused was likely to abscond; • the circumstances which caused the surety to enter into the undertaking to secure the accused’s release; • the nature of the relationship between the surety and the accused and the level of control the surety has over the accused’s behaviour, and whether the relationship is likely to persuade the accused to return in the event that he or she absconds; • the assistance given by the surety in attempts to re-apprehend the accused; and • the extent of the financial impact of the forfeiture on the surety and his or her family. In very different circumstances, an application for relief from payment of $1 million was refused in Mokbel v Director of Public Prosecutions (Vic) and Director of Public Prosecutions (Cth).61 Mrs Mokbel acted as a bail surety for her brother-inlaw, Antonios Mokbel. He absconded on the 28th day of his trial on Commonwealth drug importing charges after the prosecutor had previously indicated that he would be seeking to have Mokbel’s bail revoked at the close of the prosecution case. The trial proceeded in his absence, he was found guilty and sentenced to 12 years’ imprisonment. Gillard J’s reasons for rejecting the argument that it would be unjust to require payment included that: • Mrs Mokbel was not a genuine surety as she did not possess assets worth $1,000,000 (and had misled the court about this); • the evidence did not establish that Mrs Mokbel had taken all reasonable steps to ensure Mokbel’s appearance and, on the evidence, there were numerous reasons she should have been alerted to the risk that he might abscond; and • Mrs Mokbel did not fully reveal her true financial position and many of the family assets were derived from engaging in criminal activities. 60

The court acknowledged that the culpability of the surety would be a relevant consideration, but in this case there was nothing to indicate anything other than the surety’s assiduous efforts to ensure Osman’s appearance.

61

Mokbel v Director of Public Prosecutions (Vic) (2006) 14 VR 405; [2006] VSC 487 per Gillard J. The matter was unsuccessfully appealed to the Victorian Court of Appeal: Mokbel v DPP (Vic) and DPP (C’th) [2007] VSCA 195. [4.70] 101

Criminal Process in Queensland

In Queensland, an affidavit of justification is required from the surety before the surety will be accepted. The surety must demonstrate to the Registrar of the Court that their financial position will not become dire if the surety amount is required to be forfeited. A surety must be over the age of 18, not previously convicted of an indictable offence, of sound mind and not be under administration.62 A surety may be offered in cash or against the equity in the surety’s home. For example, if the surety is $50,000 and the person has equity of $100,000 in their home with the balance being the subject of a mortgage, the person would need to justify to the Registrar that the value of the home and the amount remaining on the mortgage support the provision of $50,000 promise to forfeit that amount of equity.

BAIL PENDING APPEAL [4.80] Where an accused is convicted and intends to appeal their conviction and/or sentence, a question may arise as to whether bail should be granted pending the determination of the appeal. Generally, there is no prima facie right to bail at this stage as the presumption of innocence has been displaced by the outcome of the trial. In such a case, the court must be satisfied that exceptional circumstances exist given that a grant of bail is akin to suspending the jury’s verdict until the appeal is determined. In the leading case in Queensland, Ex parte Maher,63 Thomas J considered that there are two key considerations in establishing exceptional circumstances supporting a grant of bail. His Honour noted that: [i]n some cases it may be possible to discern immediately a patent error in the proceedings below which indicates that the applicant has a good chance of success upon appeal. This may afford sufficient reason to grant him bail … In some cases an appellant may inevitably be required to serve an unacceptable portion of his sentence before his appeal can be heard. This commonly occurs when the main penalty is a short custodial term … Indeed, experience suggests that these instances are the most common examples of favourable exercise of discretion for applicants for bail after a conviction.64

In the Chamberlain v The Queen65 Lindy Chamberlain was initially able to obtain bail pending an appeal to the Federal Court against her conviction for the murder of her child. She argued there was nothing to indicate that she would fail to appear and it was desirable she be reunited with her infant child, who was only a few days old at the time of the application. The appeal to the Federal Court against her conviction was unsuccessful and she was returned to custody. She then sought bail from the High Court pending her application for special leave to appeal to that court.66 On this occasion, bail was refused. Brennan J stated that

62 63 64

BA(Qld), s 21. [1986] 1 Qd R 303, affirmed in Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241; [2003] QCA 409. Ex parte Maher [1986] 1 Qd R 303 at 311-312.

65

Chamberlain v The Queen (1982) 6 A Crim R 385.

66

Chamberlain v The Queen (No 1) (1983) 153 CLR 514.

102 [4.80]

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granting bail in those circumstances would “whittle away the finality of the jury’s finding and … treat the verdict merely as a step in the process of [the] appeal”.67 In United Mexican States v Cabal,68 the High Court held that it will ordinarily only grant bail pending an appeal if there are strong grounds that the appeal will succeed and that any sentence imposed on conviction is likely to have been substantially served before the outcome of the appeal.69 As an example of the second key consideration, One Nation Party leader, Pauline Hanson, applied for bail pending her appeal against conviction for fraud offences for which she had received a three-year sentence of imprisonment. Bail was refused, as the appeal was likely to be heard three weeks after it had been lodged and it could not be claimed that a sentence of more than three weeks would be excessive and unlikely.70 Willis contends that the current ‘exceptional circumstances’ test for bail applications pending appeal is too restrictive, especially when considering those applications that are made shortly after conviction.71 He suggests that it is almost impossible for appellants to show they have a strong prospect of success on an appeal shortly after conviction. While acknowledging the policy grounds for the strict approach that is currently adopted, Willis points to the alternative systems employed in New Zealand and Canada as examples of better practice.72 In both countries, the legislative test for the prospects of success on appeal is couched in more liberal terms, giving bail decision-makers greater discretion as to whether bail should be granted.

EMERGING CONCERNS [4.90] In recent years, several concerns have been identified in relation to bail; in one editorial bail was described as a “hot political issue”.73 Key issues include the defacto use of bail as, in effect, a form of penalty prior to a finding of guilt, the increased emphasis of bail decisions on community protection, and particular issues associated with bail for Aboriginal and Torres Strait Islander people and other marginalised groups.

67 68 69

70

71 72 73

(1983) 153 CLR 514 at 520. (2001) 209 CLR 165. It follows that when bail is sought pending a special leave application to the High Court, the applicant must point to strong grounds that special leave to appeal will be given: see United Mexican States v Cabal (2001) 209 CLR 165; and Sinanovic v The Queen (No 1) (2001) 122 A Crim R 524; [2001] HCA 35. Hanson applied unsuccessfully to the Supreme Court for bail: see Hanson v Director of Public Prosecutions (Qld) [2003] QSC 277. Appeals against that refusal to both the Court of Appeal (Hanson v Director of Public Prosecutions (Qld) (2003) 142 A Crim R 241; [2003] QCA 409) and to the High Court (Ettridge v Director of Public Prosecutions (Qld) (2003) 78 ALJR 157; [2003] HCA 68) were unsuccessful. However Hanson’s appeal against conviction was successful, resulting in an acquittal. See J Willis, “Bail Pending Appeal after Conviction and Sentence on Indictment” (2005) 29 Criminal Law Journal 296. J Willis, “Bail Pending Appeal after Conviction and Sentence on Indictment” (2005) 29 Criminal Law Journal 296 at 308-314. S Odgers, “Editorial: Bail” (2010) 34 Criminal Law Journal 345. [4.90] 103

Criminal Process in Queensland

As noted earlier, overwhelmingly bail is granted in circumstances where the defendant has not yet pleaded guilty or been found guilty. In these circumstances, the defendant is presumed innocent.74 Freiberg and Morgan describe bail as “criminal process oriented” rather than “performance–based”75 but note that the lines have become increasingly blurred between bail and sentence. For example, sometimes bail may be used as an opportunity to test the defendant’s prospects of rehabilitation and, if successful on a rehabilitation program undertaken while on bail, the offender may receive a reduced sentence.76 Thus, the bail condition itself appears to be more like part of the sentence. In its 2007 review of domestic violence laws, the Victorian Law Reform Commission (VLRC) examined bail and questioned whether some bail conditions were being used for punishment rather than assistance. They argued that conditions imposed in family violence cases were often onerous, both in nature and in the number imposed, and sometimes set accused persons up to fail.77 In particular, bail conditions that placed blanket restrictions on travel by public transport and broad geographic exclusion zones were concerning.78 Since breach of bail conditions is a criminal offence, overly onerous conditions can increase the risk of breach. Breach of bail conditions may lead to remand, which could have been avoided if more appropriate conditions were initially imposed. Furthermore, despite the presumption of innocence, in relation to an increasing range of offences, the onus is being placed on the defendant to satisfy the court that bail should be granted on the basis that the accused is not an “unacceptable risk”. In several jurisdictions, the onus has been placed on the defendant in response to offences involving domestic violence.79 David Brown has identified that approaches such as identifying categories of offence and types of prior convictions as, essentially grounds for refusing bail, shifts bail from a strategy to ensure a person appears before the court to a crime prevention strategy.80 He notes that this approach deflects focus onto the “accused’s membership of pre-set, legislatively defined categories or populations”81 and away from the offender and their individual characteristics and circumstances. Finally, there are particular issues associated with bail that relate to Aboriginal and Torres Strait people and other marginalised groups. In 2016, the Australian

74 75 76

77 78 79 80 81

P Shrestha, “Two Steps Back: The Presumption of Innocence and Changes to the Bail Act 2013 (NSW)” (2015) 37 Sydney Law Review 147. A Freiberg and N Morgan, “Between Bail and Sentence: The Conflation of Dispositional Options” (2004) 15(3) Current Issues in Criminal Justice 220, 222. See for a discussion in the Canadian context: N Myers, “Eroding the Presumption of Innocence: Pre-Trial Detention and the Use of Conditional Release on Bail” (2016) British Journal of Criminology (online first). Victorian Law Reform Commission (VLRC), Review of Family Violence Laws: Report (2006), 62. VLRC at 62. E Ng and H Douglas, “Domestic and Family Violence and the Approach to Bail”. (2016) 34 (2) Law in Context: A Socio-Legal Journal, 36-57. D Brown, “Looking Behind the Increase in Custodial Remand Populations” (2013) 2 (2) International Journal for Crime Justice and Social Democracy 80, 85. D Brown, “Looking Behind the Increase in Custodial Remand Populations” (2013) 2 (2) International Journal for Crime Justice and Social Democracy 80, 85.

104 [4.90]

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Bureau of Statistics reported that the number of unsentenced prisoners in adult corrective services custody had increased by 22% from the previous year.82 Around 27% of remand prisoners are Aboriginal and Torres Strait Islander people.83 Odgers argues: This is partly because current bail laws discriminate against people in situations of socio-economic disadvantage. They are less able to make cash deposit, or to find surety, usually have no employment to underline “community ties”, and have less access to permanent or acceptable accommodation.84

In their empirical research, Weatherburn and Snowball found that Aboriginal and Torres Strait Islander people were nearly two times more likely than others to be refused bail, that they have much longer criminal records, are more than twice as likely to have 10 prior convictions and more than three times more likely to have 12 or more prior convictions.85 Weatherburn and Snowball suggest that these numbers might be indicative of a greater likelihood that this group breach bail conditions, or that it might reflect much more intense police scrutiny of these people.86 The high number of Aboriginal and Torres Strait Islander people on remand continues to be of great concern, especially given that these numbers are growing and that such people are so significantly over-represented.87 Presumptions against bail, such as the recent introduction of a presumption against bail in cases involving domestic violence related offending, are likely to disproportionately affect certain groups, such as Aboriginal and Torres Strait Islander people.88

82 83 84 85 86 87 88

ABS, Prisoners in Australia 2016, http://www.abs.gov.au/ausstats/[email protected]/mf/4517.0. D Weatherburn and L Snowball, “The Effect of Indigenous Status on the Risk of Bail Refusal” (2012) 35 Criminal Law Journal 50. S Odgers, “Editorial: Bail” (2010) 34 Criminal Law Journal 345, 346. D Weatherburn and L Snowball, “The Effect of Indigenous Status on the Risk of Bail Refusal” (2012) 35 Criminal Law Journal 50 at 54 & 57. D Weatherburn and L Snowball, “The Effect of Indigenous Status on the Risk of Bail Refusal” (2012) 35 Criminal Law Journal 50 at 57. L Stone, “A Better Approach to Bail for Aboriginal and Torres Strait Islander People” (2016) 25 Human Rights Defender 19. D Pheeney, “Do You Reckon I’m Gunna Get Bail?’: The Impact and Consequences of New South Wales Bail Laws on Aboriginal Juveniles” (2012) 7(30) Indigenous Law Bulletin 3. [4.90] 105

CHAPTER 5 Charges and Commencing Proceedings [5.10] [5.20]

[5.50]

[5.100] [5.120] [5.130] [5.140]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 [5.30] Bench charge sheet . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 [5.40] The discretion to charge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109 Classification of Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 [5.60] Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 [5.70] Regulatory offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114 [5.80] Simple offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 115 [5.90] Indictable offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Indictable Offences that may be Dealt With Summarily . . . . . . . . . . . . . . . 118 [5.110] Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121 Indictable offences dealt with on indictment . . . . . . . . . . . . . . . . . . . . . . . . . 122 [5.120] District Court/Supreme Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122 Commonwealth – Classification of Offences . . . . . . . . . . . . . . . . . . . . . . . . . . 124 Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124

OVERVIEW [5.10] This chapter considers the way in which offences are brought before the court, are classified, and the wide-reaching consequences of that classification. The different forums for dealing with the most minor through to the most serious offences are examined, with a particular focus on the substantial role of the Magistrates Court in both simple and indictable offences.

CHARGES [5.20] The decision to charge a person with an offence will usually be made during the police investigation. Throughout the course of criminal proceedings, consideration must be given by the Prosecution to the discretion to charge, amend charges and discontinue charges. While the exercise of discretion is discussed below, it is necessary first to examine the practical requirements of the bench charge sheet in Queensland.

Bench charge sheet [5.30] Regardless of the seriousness of a charge and the method of charging,1 the accused will be required at some early stage to attend at a Magistrates Court.2 1

As to the method of charging see Chapter 2. In essence, a person may be charged through a “Notice to Appear” ([2.270]), “arrest and charge” ([2.190]) or “complaint and summons” ([2.280]).

2

It is to be noted that Commonwealth offences are also ordinarily commenced in a Queensland Magistrates Court.

[5.30] 107

Criminal Process in Queensland

After receiving a complaint and investigating a matter, the decision of a police officer in Queensland to charge a particular offence should be guided by the Office of the Department of Public Prosecutions Guidelines (Director’s Guidelines).3 The police officer will then make a decision as to how to charge,4 and then prepare relevant documentation namely: • the Court Brief (QP9); and • bench charge sheets. The QP9 is a police document that sets out the facts alleged against the defendant and describes those facts which the prosecution say are relevant to proving the charge or charges before the court. The QP9 is the first document that is disclosed to the defendant. The QP9 must be prepared and delivered by the arresting police officer to the police prosecution corps as soon as practicable after commencing proceedings and prior to the first appearance.5 Prior to an offence being mentioned6 before a magistrate, the relevant police officer must also complete a “bench charge sheet” for each offence. A bench charge sheet is prepared pursuant to the Justices Act 1886 (Qld). This informs the court of the charge with which it is concerned. A bench charge sheet is required for each individual offence before the Magistrates Court including simple, regulatory and indictable offences. A copy of the bench charge sheet must be presented to the clerk of the court7 and must state the name of the accused and the complainant, the offence charged and the particulars of the offence.8 Particulars should include the time and place at which the offence was allegedly committed, information about any person aggrieved by the offence, information about property involved in the offence, if any, and any aggravating circumstances.9 Where the accused is present at a proceeding and does not object, further charges can be added or charges can be amended, even though no complaint in writing has been made.10 For example, in certain circumstances, the police prosecutor and the accused may negotiate about the charges to be proceeded with and this negotiation process may lead to charges being added, amended or withdrawn with the consent of the parties.11

3

4 5 6 7 8 9 10 11

For the Director’s Guidelines, see: http://www.justice.qld.gov.au/__data/assets/pdf_file/001 5/16701/directors-guidelines.pdf; For the Queensland Police Service application of the Guidelines see Chapter 3 of the Queensland Police Service Operational Procedures Manual, Issue 55 published November 2016, https://www.police.qld.gov.au/corporatedocs/Operatio nalPolicies/Documents/OPM/Chapter3.pdf. Consider the method of charging as discussed in Chapter 2. See Queensland Police Service Operational Procedures Manual Issue 55 at Chapter 3 in relation to Prosecution process. That is an initial proceeding, usually brief, before the Magistrates Court. Justices Regulation 2014, regulation 13 Justices Regulation 2014, regulation 14. Justices Regulation 2014, regulation 14. Justices Act 1886 (Qld), s 42(1A). See the discussion about charge and plea bargaining in Chapter 7 ([7.20]). As to the procedure for negotiation in the Magistrates Court, see Magistrates Court Practice Direction 9 of 2010.

108 [5.30]

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As each matter comes before the court, the magistrate will consult the bench charge sheet and decide whether the matter should be sent to a higher court for trial or must be dealt with in the Magistrates Court. In general, the following options are available: • If the matter charged is a summary offence and the accused wants to plead “guilty”, the magistrate may hear the plea immediately or adjourn for a plea at a later stage.12 • If the matter charged is a summary offence and the accused wants to plead “not guilty”, the magistrate will adjourn the matter for case conferencing and for a summary hearing in the Magistrates Court at a later stage.13 • In some cases where indictable offences are triable summarily, the magistrate may give the police prosecutor or an accused a choice about whether they want to proceed at the Magistrates Court or go to a higher court.14 • If the magistrate decides that the matter must be dealt with by a higher court or, for indictable matters triable summarily, the prosecutor or accused decides they want a jury trial, the magistrate can set a future date for the matter to be returned to the Magistrates Court for a committal proceeding.15 If the person is ultimately committed for trial at the higher court in relation to an offence, the charge must be reduced to an indictment16 Following the committal, the Office of the Director of Public Prosecutions (ODPP) will become formally involved in the matter17 and, based on a further consideration of the matters set out in the Director’s Guidelines, will prepare an indictment.18

The discretion to charge [5.40] The decision to prosecute a charge is a discretionary one. The Director’s Guidelines (Qld) were developed to assist police and staff of the ODPP in the exercise of their discretion. The aim of the guidelines is to encourage consistency, efficiency, effectiveness and transparency in the administration of justice. The guidelines reflect the fact that the decision to prosecute requires a balancing exercise between the interests of the community in prosecuting the guilty and in ensuring that the innocent are not convicted. There is a duty for the prosecutor to act fairly and impartially in the process. Ultimately, the decision to prosecute is represented as a two-tier test.

12 13 14 15 16 17

18

See the discussion about jurisdiction and the categorisation of charges at [5.50]. See Chapter 8 for a discussion of the hearing process. Consider Practice Direction 9 of 2010 in relation to the procedure for summary offences following the 2010 Moynihan Review. QCC, Ch 58A, discussed further below. See Chapter 6 ([6.20]) for a discussion about committals. QCC, s 560; see Chapter 6 ([6.90]) for a discussion about indictments. The Office of the Director of Public Prosecutions will usually become involved in proceedings at the committal stage; see Direct of Public Prosecutions Act 1984 (Qld) ss 11, 12 and 13. In practice, this does not often happen in regional jurisdictions where Police Prosecutors will conduct the Prosecution until the charges are transmitted following committal. An “indictment” is the equivalent of the bench charge sheet in the higher courts and causes the proceedings to commence in the higher courts. See chapter 6 ([6.90]) for further discussion of indictments. [5.40] 109

Criminal Process in Queensland

• The prosecutor must be satisfied that there is sufficient evidence. • If it is established that there is sufficient evidence, then the prosecutor must also be satisfied that it is in the public interest to prosecute.19 In relation to whether there is sufficient evidence to prosecute, the guidelines set out a number of matters for consideration. For example, guideline 4(i) of the Director’s Guidelines states that a prima facie case is necessary, but not enough and, further, that a prosecution should not proceed if there is no reasonable prospect of conviction.20 The guidelines in Queensland also stress that even though a magistrate may have decided to commit an accused for trial, the prosecution is still required to reassess the prospects of the case in light of the guidelines. In considering whether the prosecution should proceed, the prosecutor should consider the matters listed in guideline 4(i), including: (a)

the availability, competence and compellability of witnesses and their likely impression on the court;

(b)

any conflicting statements by a material witness;

(c)

the admissibility of evidence, including any alleged confession;

(d)

any lines of defence which are plainly open; and

(e)

any other factors relevant to the merits of the Crown case.

If the prosecutor decides that there is sufficient evidence to continue the prosecution, the prosecutor should then consider whether it is in the public interest that the matter proceeds. There are a number of factors which must be considered in respect of the public interest criterion including, but not limited to:21 (a)

the level of seriousness or triviality of the alleged offence, or whether or not it is of a “technical” nature only;

(b)

the existence of any mitigating or aggravating circumstances;

(c)

the youth, age, physical or mental health or special infirmity of the alleged offender or a necessary witness;

(d)

the alleged offender’s antecedents and background, including culture and ability to understand the English language; …

(f)

the degree of culpability of the alleged offender in connection with the offence; …

(i)

the prevalence of the alleged offence and the need for deterrence, either personal or general; …

(k)

any entitlement or liability of a victim or other person to criminal compensation, reparation or forfeiture if prosecution action is taken; …

19

See Director’s Guidelines, guideline 4.

20 21

See Director’s Guidelines, guideline 4. Director’s Guidelines, guideline 4.

110 [5.40]

Charges and Commencing Proceedings

CH 5

(m)

the likely length and expense of a trial; …

(o)

the likely outcome in the event of a conviction considering the sentencing options available to the court; …

(s)

the necessity to maintain public confidence in the Parliament and the … Courts; and

(t)

the effect on public order and morale.

Guideline 4(ii) of the Director’s Guidelines asserts that the more serious the offence is, the more likely that the public interest will require a prosecution. The decision to prosecute must also be made impartially22 that is, without being influenced by race, religion, politics, personal feelings, perceived political advantage or the possible effect on the prosecutor’s career.23 However, these guidelines are, in fact, simply guidelines and the decision to prosecute is ultimately made at the discretion of the prosecutor. The courts have been reluctant to interfere with this process unless there is perceived to be an abuse of process.24 In the case of Maxwell v The Queen, Gaudron and Gummow JJ observed that although the court always retains the power to prevent an abuse of process: certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions not to prosecute … The integrity of the judicial process – particularly its independence and its impartiality and the public perception thereof– would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.25

In Maxwell, the court was asked whether the trial judge, when the prosecution had accepted a plea in full satisfaction of an indictment, had any power to reject the plea. The court answered in the affirmative in situations of abuse of process, but otherwise in the negative if it involved a review of the prosecution’s decision.26 The purpose of criminal proceedings, “is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment”.27 If a prosecution is launched for any other purpose, it may be considered improper and thus an abuse of process.28 In certain circumstances, the prosecution may be considered oppressive, and this may also

22 23

24 25 26

Director’s Guidelines, guideline 4(iii). See R Hunter, “Fear and Loathing in the Sunshine State” (2004) 19(44) Australian Feminist Studies 145 where the Fingleton case is discussed; see also Fingleton v The Queen (2005) 227 CLR 166. See the discussion in regard to abuse of process in Chapter 9 ([9.30]). Maxwell v The Queen (1996) 184 CLR 501 at 534.

27

Maxwell v The Queen (1996) 184 CLR 501 at 536 per Gaudron and Gummow JJ. This decision related to an interpretation of the Crimes Act 1900 (NSW), s 394A. Jago v District Court (NSW) (1989) 168 CLR 23 at 47 per Brennan J.

28

See the discussion in regard to abuse of process in Chapter 9 ([9.30]). [5.40] 111

Criminal Process in Queensland

be an abuse of process. For instance, the prosecution may be oppressive where the charge lacks particularity.29 Kirby J has observed that: [T]he rule established for criminal trials in Australia is ordinarily one which requires a high degree of specificity in the accusations, charges and evidence proffered by the prosecution.30

If the charges are insufficiently particularised, they are likely to be difficult for the accused to answer.31 In other circumstances, for example, where the prosecution is considered doomed to fail, the specific charge is not appropriate to the allegations made, there is a duplication of other charges, or the charge is made in relation to actions already dealt with by the criminal process, continuing with the prosecution may be considered to be an abuse of process.32

CLASSIFICATION OF OFFENCES [5.50] Criminal offences can be classified in a range of ways. Findlay et al have suggested that offences can be categorised according to the harms involved – for example: • death; • bodily injury; • traffic; • public health and safety; • public order; • offences against the state; • property offences; • environmental offences; • paternalistic offences – such as failure to wear a seatbelt or a helmet; and • drug offences.33 Offences can also be categorised according to their seriousness, which is often dependent on a number of factors, including: • the impact of the offence on victims; • the monetary value of any loss or damage incurred; • the extent of the culpability of the offender – was the offence intentionally committed or was the offender reckless or negligent?; or • the likelihood or potential for harm.

29

This has been noted especially in sexual abuse cases: see, eg, R v Rogers [1998] QCA 83; and R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301. However, the absence of particularity without other factors is not sufficient to justify a stay of an indictment see R v Smith Ex Parte Attorney-General (2000] 117 A Crim R 1; [2000] QCA 443.

30 31

KRM v The Queen (2001) 206 CLR 221; [2001] HCA 11 at [96] per Kirby J. S v The Queen (1989) 168 CLR 266; R v Clark [2000] QCA 145 is a case dealing with the inadequacy of particulars in sexual offences. R v Noyes [2005] 1 Qd R 169 at [24] per Holmes J (McMurdo P and Muir J agreeing). M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford University Press, 2014) pp 14-15.

32 33

112 [5.50]

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CH 5

The initial categorisation of an offence can greatly impact upon subsequent decisions made by those administering the criminal justice system.34 For instance, the seriousness of a crime will often influence the level of resources that are allocated to its investigation and prosecution. Drug importation and trafficking offences appear to warrant very high levels of resource expenditure and attract high penalties,35 suggesting they sit on the serious end of the classification spectrum. However, the perceived seriousness of a criminal offence may change depending on the social context and philosophical outlook of those attempting to classify the offence. As mentioned, many regard drug offences as very serious crimes, while others suggest that certain drug offences, such as possession of certain substances, should not be crimes at all, but rather should be dealt with as a health issue.36

Criminal Code Offences [5.60] An offence is defined by s 2 of the QCC. The categorisation of an offence is set out in s 3 of the QCC. The categorisation of offences is depicted in Diagram 5.1. “Categories of criminal offences in Queensland”. In summary: • Regulatory offences are always dealt with in the Magistrates Court.37 • Simple offences are also dealt with in the Magistrates Court.38 • Indictable offences are ordinarily heard and finalised in the District or Supreme Court39 but, particular charges committed in prescribed circumstances may or must be dealt with summarily, that is in the Magistrates Court.40

34 35 36

37 38 39 40

See also M Findlay, Problems for the Criminal Law (Oxford University Press, Melbourne, 2001) pp 141-143. For drug offences generally see Drugs Misuse Act 1986 (Qld) Pt 2 and Criminal Code 1995 (Cth) Ch 9 Pt 9.1. See, eg, G Hughes, “War on Drugs Failing: Ex-Judge”, The Weekend Australian (24-25 February 2007), commenting on an interview with Don Stewart, former chairman of the National Crime Authority. See also R Evans, “The Slow Road to Drug Law Reform” (1995) 69(12) Law Institute Journal 1208; D Burrows, “Towards a Regulated Market for Illicit Drugs: Effects of the Harm Reduction Model of Controlled Drug Availability” (2005) 16 International Journal of Drug Policy 8; C Feerick, “Controlling Cannabis Use Effectively: An Ideological or Attainable Goal?” (2005) 29 Criminal Law Journal 116; A Wodak and T Moore, Modernising Australia’s Drug Policy (UNSW Press, 2002); S Bronitt and B McSherry, Principles of Criminal Law (2nd ed, Lawbook Co., 2005) pp 785-790 and 826-827. QCC, s 3(4). QCC, s 3(4). QCC, Ch 60; see also chapter 6 ([6.90]) in relation to indictments. QCC, Ch 58A. [5.60] 113

Criminal Process in Queensland

Diagram 5.1. Categories of criminal offences in Queensland

Offences QCC, s3

Criminal

Indictable

Crimes

Regulatory

Simple

Misdemeanours

Although most crimes are codified, there are provisions in respect of some indictable offences that are found in other pieces of legislation. For example, the Drugs Misuse Act 1986 (Qld) (DMA (Qld)) contains indictable drug-related offences.41 Below, the division of offences in the Commonwealth jurisdiction is also considered.

Regulatory offences [5.70] The Regulatory Offences Act 1985 (Qld) (ROA) provides police with an alternative to laying a charge of an indictable or simple offence. Regulatory offences can only be dealt with in the Magistrates Court. There are three regulatory offences: 1.

Unauthorised dealing with shop goods.42 This offence is colloquially referred to as a ‘shoplifting offence’ and is charged where the value of the items stolen is less than $150. It is an alternative to stealing;43

2.

Leaving a hotel and other venue without paying.44 This offence is often charged when a person does not pay for food, drink, accommodation or similarly consumable goods without paying for them. The value of the good must be $250 or less. This offence is an alternative to fraud;45 and

41

42 43 44

See for example Drugs Misuse Act 1986 (Qld) ss 10(2), (3), (4), (4A) and 10A – simple offences. The Drugs Misuse Act 1986 (Qld) s 13 outlines which of the indictable offences can be dealt with summarily. Section 14 of the Drugs Misuse Act 1986 (Qld) also allows some indictable offences to be dealt with summarily where there is no allegation of commercial purpose. ROA, s 5. QCC, s 398. ROA, s 6.

45

QCC, s 408C.

114 [5.70]

Charges and Commencing Proceedings

3.

CH 5

Damage to property where the value of the damage or the loss caused is less than $250. This is an alternative to wilful damage.46

Penalties for these offences are restricted to fines. It is important to note that, save for several limited exceptions, all the excuses and defences set out in Ch 5 of the QCC do not apply in relation to regulatory offences.47 However, there are legislative defences incorporated into the ROA.48 A person can be charged with a ROA offence or they can be charged with the equivalent indictable offence. Whether to charge with an indictable offence or a regulatory offence is a matter for prosecutorial discretion.

Simple offences [5.80] “Simple” offences are “everything other than” offences described as “crime”, “misdemeanours” or “regulatory offences”.49 As a general rule, the prosecution of a simple offence must begin within a year of the matter arising50 to ensure the timely disposition of such minor matters. This is in contrast to indictable offences which may be commenced at any time.51 Simple offences are generally heard summarily in the Magistrates Court52 by a magistrate sitting alone. In certain circumstances, a judge of a higher court may hear a simple matter. This will occur when a simple offence is charged along with an indictable offence and the accused has requested that the higher court dispose of the matter.53 In certain circumstances, the hearing and determination of a simple offence by a magistrate can take place ex parte (in the accused’s absence).54 However, before this can occur, the prosecutor must be able to satisfy the court that the accused has been served with a copy of a summons or notice to appear at court.55 For certain offences, an accused may notify the court in writing that they wish to plead guilty and have the matter dealt with in their absence.56 If the hearing does take place ex parte, the magistrate cannot impose a prison sentence. The magistrate is also prohibited from making an order with the effect of cancelling, suspending or otherwise affecting a licence, permit, or similar: JA(Qld), s 142(2).

46 47 48 49 50

54 55

QCC, s 469. QCC, s 36(2). ROA, ss 5(2) and 6(2). QCC, s 3(5). Note that regulatory offences are in effect simple offences. JA(Qld), s 52. See also JA(Qld), s 52(2) in relation to complaints of matters commenced against the QCC or the Drugs Misuse Act 1986. See [5.90]. JA(Qld), ss 19, 24 and 30. Procedure on a hearing is discussed in Chapter 8. QCC, s 651; See R v Tootoo (2000) 115 A Crim R 90; [2000] QCA 312 for a discussion of the proper manner for dealing with summary offences in accordance with QCC, s 651. JA(Qld), s 142. JA(Qld), ss 142-143 and PPRA (Qld), ss 382, 388-389.

56

JA(Qld), s 146A.

51 52 53

[5.80] 115

Criminal Process in Queensland

In Diplock v Bennett,57 Diplock was convicted of various traffic offences in the Magistrates Court. He was advised by written notice that the matter was listed for summary hearing at 9 am on 29 October 2008. The hearing was decided in his absence, having commenced at 8.53 am and concluded at 8.58 am. Diplock successfully appealed against his conviction and the matter was remitted to the Magistrates Court for rehearing. Diplock was in fact present in the court precinct at 9.00 am. His evidence was that he had arrived at 8.56 am but the sign outside the court room stated that the court was not open to the public. When he did enter the court room, he discovered that his matter had already been concluded and that the magistrate was unwilling to rehear the matter in his presence. Irwin DCJ found that it was: an irregularity for a matter to be dealt with ex parte in circumstances where the matter has been called on prior to the time at which the appellant was required to appear before the Court.58

His Honour further found that, given the circumstances, it was also an irregularity for the magistrate to refuse to exercise his discretion to rehear the matter.59 Magistrates Courts have the power to order that an unsuccessful party to a summary criminal hearing have “just and reasonable” costs awarded against them.60 In deciding whether to award costs against a complainant in Queensland, the magistrate may take into account a range of matters, including whether the proceeding was brought and continued in good faith and whether the investigation was conducted appropriately.61 The costs are determined, ordinarily, in accordance with the Justices Regulation 2014 (Qld) Schedule 2.62 In Turner v Randall; Ex parte Randall,63 the Full Court upheld an appeal against a magistrate’s refusal to order costs against the prosecution. Randall had been charged with an offence under the Electricity (Continuity of Supply) Act 1985 (Qld).64 At the hearing, the prosecutor conceded that he was unable to tender any evidence of an element of the offence, and withdrew the complaint. The court emphasised that there was no requirement for “exceptional circumstances” to be established before a public officer, who laid a complaint in his official capacity and failed in that complaint, could have costs awarded against them.65 The High Court in Latoudis v Casey,66 dealing with Victorian provisions similar to those applying in Queensland, held that courts are not to be influenced in the exercise of their discretion to award costs against the police or public officers by arguments that they will be deterred from prosecuting cases for fear of costs

57 58 59 60 61 62 63 64 65

[2009] QDC 222. Diplock v Bennett [2009] QDC 222 at p 4. Diplock v Bennett [2009] QDC 222 at p 4, referring to Justices Act 1886, s 142(6). JA(Qld), ss 157-158. JA(Qld), s 158A; Bailey v White [1994] QDC 43. Justices Regulation 2014 (Qld) schedule 2. [1988] 1 Qd R 726. Electricity (Continuity of Supply) Act 1985 (Qld) s 5(1)(c)(i). [1988] 1 Qd R 726 at 729.

66

(1990) 170 CLR 534. See also Coulter v Ryan [2006] QCA 567.

116 [5.80]

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CH 5

orders being made, nor should they be influenced by arguments that Legal Aid may be available to an accused. The police are indemnified against payments of costs orders and courts cannot assume an accused is legally aided. Even if a particular accused is receiving Legal Aid, it would be inappropriate to draw a distinction between those who are and those who are not receiving such assistance.67 In Latoudis v Casey, Mason CJ said (at 542): To burden a successful defendant with the entire payment of the costs of defending the proceedings is in effect to expose the defendant to a financial burden which may be substantial, perhaps crippling, by reason of the bringing of a criminal charge which, in the event, should not have been brought. It is inequitable that the defendant should be expected to bear the financial burden of exculpating himself or herself, though the circumstances of a particular case may be such as to make it just and reasonable to refuse an order for costs …

It should be noted that the principles applying to costs following dismissal of a charge may equally apply in relation to costs of an unjustified adjournment.68 For example, in Coulter v Ryan69 the magistrate refused costs against the police for a further adjournment despite four previous adjournments by the prosecution when the defence was in a position to proceed. The charge of driving under the influence of alcohol was dismissed following a summary trial. The matter was appealed and ultimately the Court of Appeal made an order for costs against the prosecution for the further adjournment in the fixed amount of $900. Prosecution under the DMA are a notable exception as s 127 states that no costs will be awarded for proceedings under this act.

Indictable offences [5.90] The more serious offences are categorised as “indictable offences”. There is no time limit on the prosecution of indictable offences. As depicted in Diagram 5.1, in Queensland indictable offences are, in turn, classified as either “crimes” or “misdemeanours”. Crimes are usually considered to be more serious than misdemeanours. The particular provision of the statute creating the offence will identify the offence as a crime or a misdemeanour. For example, QCC, s 335 creates the offence of “common assault”, and states that: Any person who unlawfully assaults another is guilty of a misdemeanour, and is liable, if no greater punishment is provided, to imprisonment for three years.

Section 352 of the QCC, on the other hand, creates the offence of “sexual assault”, and expressly identifies it as a crime: Any person who – (a)

unlawfully and indecently assaults another person; or

(b)

procures another person, without the person’s consent – (i)

to commit an act of gross indecency; or

(ii) to witness an act of gross indecency by the person or any other person; is guilty of a crime.

67

Latoudis v Casey (1990) 170 CLR 534 at 542-543 per Mason J.

68 69

Coulter v Ryan [2006] QCA 567 at [20]-[24] and [29]. [2006] QCA 567. [5.90] 117

Criminal Process in Queensland

Historically the distinction between crimes and misdemeanours was that for police to arrest a suspect for a misdemeanour a warrant was required whereas police could generally arrest a suspect for a crime without a warrant.70 However, the Police Powers and Responsibilities Act 2000 (Qld) has abolished this distinction as it lists the circumstances when a person can be arrested for any indictable offences – both misdemeanours and crimes. However, the distinction between the two forms of indictable offences still has some relevance as whether a citizen has the power of arrest depends on whether the offence is a crime or a misdemeanour.71 The main consideration to keep in mind for procedural purposes is whether an offence is “non-indictable/simple” or “indictable”. The general position is that indictable offences will be prosecuted by way of an indictment.72 Where a person is charged on indictment, they will usually be eligible to have their matter heard before a judge sitting alone or a judge and jury in either the Supreme Court or the District Court.73 However, the wide-reaching jurisdiction of the Magistrates Court in relation to indictable offences means that many of the more serious offences are now decided in that court.

INDICTABLE OFFENCES THAT MAY BE DEALT WITH SUMMARILY [5.100] There are a number of reasons the prosecutor or accused may prefer that their matter be heard in the Magistrates Court. Matters will usually be finalised more quickly in the Magistrates Court. Because the proceedings are dealt with more quickly, there will be cost savings. Matters heard in the Magistrates Court also tend to be less formal, which may, perhaps, be advantageous to an accused who cannot afford private legal representation, and therefore conducts their own defence. However, informality may be disadvantageous to the accused as the rules of evidence and proof may not be so stringently applied in summary hearings as compared to trials in the superior courts. In this regard, Willis contends that the term “summary justice … can also be used to describe a justice that is … Kingswood rather than Rolls Royce”.74 An accused person may also have a view about whether their interests would be best served by having a jury making the final decision about their guilt. An important incentive for an accused person in Queensland to elect to proceed in the Magistrates Court is that the maximum penalty that can be imposed will ordinarily be lower for serious offences. For example, for the offence of stealing without circumstances of aggravation, the maximum penalty is five years’ imprisonment: QCC, s 398. However, if the requisite conditions are met for

70

QCC, s 5. There are a number of exceptions to this general rule, for example, the crime of “perjury” QCC, s 123 requires an arrest to be with a warrant.

71

QCC, Ch 58. There are also some procedural differences between crimes and misdemeanours, see, eg, QCC, s 617(4).

72 73 74

QCC, s 3(3). Judge alone trials and jury trials are addressed at Chapter 8 ([8.130]). J Willis, “The Magistracy: The Undervalued Work-horse of the Court System” (2001) 18 Law in Context 129 at 133.

118 [5.100]

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the offence to be dealt with summarily, the maximum penalty that may be imposed by the magistrate is three years’ imprisonment.75 Another significant incentive for an accused to have the matter determined in the Magistrates Court is that their conviction will be deemed to be a conviction for a simple offence, rather than for an indictable offence.76 This may have a positive effect on a subsequently imposed penalty if the person returns to court at a later stage charged with a similar matter. Further, a conviction for a simple, rather than indictable, offence may have a less severe impact upon employment and other opportunities. Most indictable offences are able to be dealt with summarily in the Magistrates Court. Chapter 58A of the QCC addresses the particular indictable offences that may or must be dealt with summarily, and the related rules and conditions that apply. While not all indictable matters can be dealt with summarily, those offences that may be so dealt with form three categories. First, under s 552A of the QCC, if the prosecution elects, the offences listed within that section must be heard summarily. For example, if a person is charged with a serious assault on a police officer pursuant to s 340 of the QCC, the Prosecution will elect whether or not the charge is to be heard and determined in the Magistrates Court or the District Court.77 Second, s 552B of the QCC provides the accused with a right of election. In other words, the accused can elect to have their matter heard and determined by a judge with or without a jury in a higher court, or by a magistrate. For example, if a person is charged with assault occasioning bodily harm, the person could elect whether or not the charge is to be heard and determined in the Magistrates Court or the District Court.78 Thirdly, s 552BA of the QCC prescribes indictable offences that must be dealt with by a magistrate in certain circumstances.79 An offence must be dealt with summarily, pursuant to s 552BA, if the offence is a relevant offence. A relevant offence is: • any offence against the Code where the maximum penalty is not more than three years; or • any offence relating to property and contracts (pursuant to QCC Part 6) which is not an offence against Chapter 42A (Secret Commissions) or is not an excluded offence against section 552BB. An excluded offence is an offence against a provision listed in s 552BB Column 1 where: • no relevant circumstance is listed for the provision in Column 3; or

75

QCC, s 552H.

76

QCC, s 659.

77

Consider below discussion in relation to the jurisdiction of the District Court in criminal matters. Consider below discussion in relation to the jurisdiction of the District Court in criminal matters.

78 79

QCC, ss 552BA and 552BB. [5.100] 119

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• one or more relevant circumstances are listed for the provision in Column 3 and at least one of the relevant circumstances applies in relation to the offence. For example, if a person is charged with stealing a boat where the value of the boat is $35,000 (that is more than the prescribed value80) then the offence is an excluded offence because it is listed in Column 1 and one of the Relevant Circumstances in Column 3 exists. Because it is an excluded offence, it is not a relevant offence and therefore must be dealt with on indictment in the District Court. By way of another example, if a person is charged with entering premises and committing an indictable offence of stealing where the value of the stealing would be $10,000 then the offence is not an excluded offence. This is because, although it is listed in Column 1, the Relevant Circumstance in Column 3 does not exist, that is, if the charge of stealing were laid, the value of the stealing is not above the prescribed value. As a result, it is not an excluded offence and becomes a relevant offence. The offence committed in these circumstances must be dealt with summarily in the Magistrates Court. These provisions are, however, subject to the overall discretion of the magistrate.81 If the magistrate is satisfied that the accused would not be adequately punished on summary conviction,82 they must abstain from hearing the matter.83 In GAF v QPS,84 the court made it clear that s 552D does not change the maximum penalty. The provision only requires that the magistrate consider what the appropriate range is. If the magistrate considers that the appropriate penalty is imprisonment for three years or less, the magistrate is able to deal with the matter.85 Where an indictable matter has been finalised summarily, the convicted person can appeal on the basis that the magistrate erred in deciding to convict or sentence summarily.86 For example, the magistrate in R v Hall87 exercised his discretion to hear several matters of enter premises involving multiple offenders. In sentencing the offenders, the magistrate imposed cumulative sentences for each of the offences to ensure that the overall sentence of five years reflected the seriousness of the matters. At the time, the maximum sentence that could be imposed for a housebreaking charge was two years’ imprisonment. The appellants were successful in their appeal against the sentence on the basis that the magistrate should have abstained from hearing the matter since it was clear that he could not adequately punish them other than by ordering the three cumulative terms.88 The DMA s 13 provides that certain drug offences where the person is liable to not more than 15 years imprisonment may be heard and decided summarily. In 80

See QCC, s 552BB.

81 82 83 84 85 86 87

QCC, s 552D. QCC, s 552H confirms that the Magistrates Court jurisdiction prescribes a maximum penalty of 3 years imprisonment. GAF v QPS [2008] QCA 190 at [23]. [2008] QCA 190. Turnbull v Commissioner of Police [2016] QDC 36 at [15]. QCC, s 552J. [1980] Qd R 304.

88

See Chapter 13 in relation to appeals.

120 [5.100]

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addition, s 14 of the DMA provides that where a person is charged with an offence of possession of dangerous drugs and the maximum penalty is more than 15 years imprisonment, the proceedings can be heard summarily if there is no allegation of commercial purpose. The Magistrates Court Practice Direction 8 of 2010 considers when the jurisdiction question must be determined. Ordinarily at the first or second mention, the Prosecution or Defence must elect whether the charge is to be heard and decided summarily or on indictment. The process from that point, including disclosure, negotiation and trial issues are addressed at Chapters 7 and 8.

Magistrates Court [5.110] Current statistics indicate that between 93% and 96% of all criminal matters in Queensland are finalised in the Magistrates Court.89 Of all the Queensland Courts, “it is the Magistrates Court that most people will have contact with”.90 Willis has stressed that the court and magistracy are the “undervalued work-horse[s] of the court system”.91 Traditionally, the Magistrates Court is referred to as an “inferior” court, whereas the District and Supreme Courts are known as “superior” courts. Public perception may well be that the Magistrates Court deals only with the most trivial offences but, as we explain below, this is far from reality. While the Magistrates Court deals with a vast number of minor offences, it also hears and determines an increasing number of indictable offences. In addition, it is where the vast majority of bail applications are heard. The court also performs an important administrative function by conducting preliminary “examinations of witnesses” or “committal” hearings, where it is ascertained whether or not matters concerning the most serious indictable offences should proceed to trial by a judge and jury in either the District Court or the Supreme Court. It is certainly the case that the least serious offences are dealt with in the Magistrates Court. Typical matters dealt with on a daily basis in the court include drink-driving offences92 and public space offences.93 Section 19 of the Justices Act 1886 (Qld) outlines the jurisdiction of the court as follows: Whenever by any Act past or future, or by this Act, any person is made liable to a penalty or punishment, or to pay a sum of money, for any offence, act, or omission, 89

90

91

Australian Bureau of Statistics, 4513 Criminal Courts, Australia 2014-2015 available at http://w ww.abs.gov.au/ausstats/[email protected]/Lookup/4513.0main+features112014-15; Queensland Courts, Magistrates Court of Queensland Annual Report 2015-2016, p4 available at http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0005/498461/mc-ar-2015-2016.pdf. Queensland Courts, Magistrates Court of Queensland Annual Report 2015-2016, p15 available at http://www.courts.qld.gov.au/__data/assets/pdf_file/0005/498461/mc-ar-2015-2016. pdf.

92

J Willis, “The Magistracy: The Undervalued Work-horse of the Court System” (2001) 18 Law in Context 129. Willis usefully provides a brief history of the magistracy through the early colonial period, the “public service” period and the “modern” period. See also K Mack, S Roach Anleu and A Wallace ‘Everyday Work in the Magistrates Courts: Time and Tasks’ (2011) 21 Journal of Judicial Administration 34-53. Transport Operations (Road Use Management) Act 1995 (Qld) s 79.

93

Summary Offences Act 2005 (Qld). [5.110] 121

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and such offence, act, or omission is not by the Act declared to be an indictable offence, and no other provision is made for the trial of such person, the matter may be heard and determined by a Magistrates Court …

In terms of its physical or geographical jurisdiction, the general position is that matters should be dealt with by a Magistrates Court that is located within a 35-kilometre radius of where the offence is alleged to have occurred.94

INDICTABLE OFFENCES DEALT WITH ON INDICTMENT District Court/Supreme Court [5.120] In order to determine whether an offence will be dealt with in the District or Supreme Court, the starting point is s 60 of the District Court of Queensland Act 1967 (Qld), which generally limits the court’s jurisdiction to offences that are punishable by no more than 20 years’ imprisonment.95 However, that general limitation is removed by s 61 in respect of a long list of more serious offences in the QCC, including many sexual offences and property offences, some of which attract a maximum penalty of life imprisonment.96 The court also has jurisdiction to deal with an offence by a prisoner who wilfully damages, or attempts to damage, corrective services property during a riot, with the consequence of “endangering” the corrective services facility – an offence that also attracts a maximum penalty of life imprisonment.97 Although the District Court has jurisdiction to deal with very serious offences, the prosecutor has a discretion to present the indictment in the Supreme Court after consideration of certain factors, including the complexity of the case, the seriousness of the alleged offence, any particular importance attached to the case and any other relevant consideration.98 Generally, trials for indictable offences should take place in the presence of the accused so that they can hear and respond to the more serious allegations made against them. Section 617(4) of the QCC affords greater flexibility for the court to allow the accused to be absent from a trial for a misdemeanour on conditions the court thinks fit. However, where the accused person is being tried for a crime, the general position is that the trial must take place in the accused’s presence99: QCC, s 617(1). Where the accused’s conduct (or rather, “misconduct”) in court makes it impracticable for the proceedings to continue in their presence, the court can order the accused to be removed and continue the trial in their absence.100 In addition, in a joint trial of two or more persons, where any or all of the accused are ill or

94 95 96 97 98

JA(Qld), ss 139 and 140 in relation to adjournment to a different place. DCA, s 61. DCA, s 60(2)-(3). Corrective Services Act 2006 (Qld) s 122(2)(a); see also DCA, s 61(1)(a). QCC, s 560(4).

99

QCC, s 617(1).

100

QCC, s 617(2).

122 [5.120]

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infirm, the court may proceed in their absence.101 Considerations of prejudice to the accused and the interests of justice are important in determining whether the accused person will be allowed to be absent. In R v Stuart,102 Stuart and his co-accused, Finch, were charged with murder arising out of the firebombing of a Brisbane nightclub. Stuart was admitted to hospital on the seventh day of the trial after swallowing some pieces of wire. The trial should have commenced about three weeks earlier, but three days prior to the date set down for the hearing, Stuart had swallowed pieces of wire, “sharpened to a needle point at each end and fastened in the form of a cross by rubber bands”.103 They required surgical removal and postponement of the trial. Lucas J interpreted the words in QCC, s 617, that he “may order him to be removed, and may direct the trial to proceed in his absence”, as authorising the making of an order to proceed if it should be necessary.104 His Honour considered that, in all the circumstances, the interests of justice required the continuation of the trial in Stuart’s absence, as he had deliberately self-harmed (and also withdrawn instructions to his lawyer on the same day) in an effort to delay the proceedings, and that doing so would not infringe upon Finch’s right to receive a fair trial.105 By contrast, in R v Hill; Ex parte Attorney-General,106 the appellant was successful in having his conviction for unlawful wounding with intent to do grievous bodily harm overturned on the basis that the trial judge wrongly continued the trial in his absence. Hill arrived at court after having taken an overdose of various prescription medications. His psychiatrist was at the court as he was to give evidence as part of the defence case. After examining Hill, the doctor considered that he urgently required medical attention and that he was unfit to instruct his lawyer for the next 24-48 hours. The trial judge granted Hill bail for approximately 48 hours and proceeded to continue the trial in the accused’s absence on the basis that Hill’s overdose was a voluntary act. The Court of Appeal, in upholding the appeal, pointed out that the trial could easily have been adjourned for two days and that there was “no proper basis for the learned trial Judge to conclude here that the appellant exhibited a clear desire not to take any further part in his trial”.107 In contrast to simple offences, prosecutions for indictable offences may generally be commenced at any time. This position extends also to any indictable offence that is dealt with summarily in the Magistrates Court108. Until 1992 in Queensland, a rule had long existed requiring a prosecution for an unlawful killing – that is, murder or manslaughter – to commence within a year and a day

101 102

103 104 105 106 107

QCC, s 617(3). [1973] Qd R 460. Stuart and Finch both appealed unsuccessfully against their convictions on a large number of grounds, to the Court of Criminal Appeal and to the High Court. The Court of Criminal Appeal affirmed Lucas J’s ruling to proceed in Stuart’s absence: R v Stuart [1974] Qd R 297 (CCA); see also Stuart v The Queen (1974) 134 CLR 426. R v Stuart [1973] Qd R 460 at 462. [1973] Qd R 460 at 463-464. [1973] Qd R 460 at 466. [2003] QCA 379. R v Hill; Ex parte Attorney-General [2003] QCA 379.

108

QCC, s 552F. [5.120] 123

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of the time the complaint arose. The rationale for the “year and a day” rule may have had some basis in less advanced medical knowledge, where it was more difficult to establish the necessary causal link between an injury, for example, a knife wound inflicted by an accused person, and the death of the victim more than 12 months later. The principle underlying the maxim “time does not run against the Crown” is one based on the interests of justice. Many years may, and often do, elapse between the beginning of an investigation and the ultimate charge. In serious matters, the interests of justice and the interests of the public demand that such a delay should carry little weight. Lengthy delays in prosecuting sexual offences are not uncommon, particularly where the victim was a child at the time of the alleged offence and a complaint is not made until many years after the incident.

COMMONWEALTH – CLASSIFICATION OF OFFENCES [5.130] The decision to charge in the Commonwealth regime is ordinarily exercised by the investigating body or the Commonwealth Director of Public Prosecutions. Regard should be had to the Prosecution Policy of the Commonwealth which provides a similar two stage test that must be satisfied before a prosecution is commenced: • There must be sufficient evidence to prosecute the case; and • The prosecution would be in the public interest.109 The classification of Commonwealth criminal offences is set out in ss 4G-4H of the Crimes Act 1914 (Cth). The distinction is made simply between “summary” offences and “indictable” offences on the basis of the penalty that may be imposed in relation to the particular offence under any Commonwealth law. Those offences that are punishable by imprisonment for a period exceeding 12 months are “indictable” offences, while those that are either not punishable by a term of imprisonment, or punishable by a period of imprisonment that does not exceed 12 months, are classified as “summary” offences.110

JURISDICTION [5.140] If an offence against a Commonwealth law occurs in Queensland, it may be dealt with by that State’s courts pursuant to s 39(2) of the Judiciary Act 1903 (Cth),111 which vests State courts with federal jurisdiction. Each court in Queensland has specific power to deal with federal offences.112

109 110 111 112

CDPP Prosecution Policy available from: https://www.cdpp.gov.au/prosecution-process/pro secution-policy. This general classification scheme is subject to statutory provisions “where the contrary intention appears”: see Crimes Act 1914 (Cth) ss 4G-4H. Judiciary Act 1903 (Cth) s 30(c) and Commonwealth Constitution s 77(iii). See generally, the Commonwealth Places (Application of Laws) Act 1970 (Cth); Commonwealth Places (Administration of Laws) Act 1970 (Qld).

124 [5.130]

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As is the case under Queensland law, some Commonwealth indictable offences may be dealt with summarily.113 If a person is charged with an offence punishable by imprisonment for a period less than ten years, the person’s charge may be heard and determined summarily. When sentencing a person for a Commonwealth offence, a magistrate sitting in the summary jurisdiction has the discretion to impose a maximum penalty of: • If the index offence is punishable by a maximum penalty of 5 years imprisonment – a sentence of imprisonment not exceeding 12 months or a fine not exceeding 60 penalty units; • If the index offence is punishable by a maximum penalty of between 5 and 10 years – a sentence of imprisonment not exceeding 2 years or a fine not exceeding 120 penalty units.114 The process and procedure for electing jurisdiction, disclosure, conferencing and hearing procedures in the Magistrates Court is addressed by Practice Direction 22 of 2011. If the matter is to be heard on indictment then, similar to Queensland, the Commonwealth Director of Public Prosecutions will prepare and present an indictment in the District or Supreme Court. In addition, a prosecution of an individual for a Commonwealth offence may be commenced as follows: • If the index offence has a maximum penalty of more than 6 months at any time; or • In any other case, at any time within 1 year after the commission of the offence.115

113

See Crimes Act 1914 (Cth) ss 4J and 4JA.

114 115

Crimes Act 1914 (Cth) s 4J. Crimes Act 1914 (Cth) s 15B. [5.140] 125

CHAPTER 6 Committals and Indictments Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 Committals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127 [6.30] Test for committal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128 [6.40] Procedure at committal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 [6.50] Committal with examination of witnesses . . . . . . . . . . . . . . . . . . 130 [6.60] Hand-up committals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 [6.70] Registry Committal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133 [6.80] Other matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134 [6.90] Indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 [6.100] Procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135 [6.110] Rules concerning indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136 [6.150] Joinder . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 [6.160] Joinder and prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 [6.170] Co-accused charged on one indictment . . . . . . . . . . . . . . . . . . . . . 141 [6.180] Ex officio or direct indictments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 [6.190] Circumventing the Time Limit to Present an Indictment in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144 [6.10] [6.20]

OVERVIEW [6.10] This chapter discusses committal proceedings and general matters relating to indictments. Particular attention is given to the protections afforded to the accused by the committal hearing and the impact of the Moynihan changes1 on these protections since 2010. Issues in relation to the rules surrounding indictments will also be considered.

COMMITTALS [6.20] An outline of the procedures associated with summary trials and other matters falling within the jurisdiction of the Magistrates Court in Queensland appear in Chapters 5 and 8. This chapter addresses the other significant aspect of the magistracy’s jurisdiction, namely committal hearings or “examinations of witnesses” in relation to indictable offences. Part 5 Divs 5 – 9 of the Justices Act 1886 (Qld) govern committal hearings, which are conducted in order to establish whether or not there is sufficient evidence to justify sending a person charged with a serious indictable offence to trial in one of the higher courts. Committals have traditionally been characterised as administrative proceedings. However, in R v 1

See Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld) – a legislative response to M Moynihan, Review of the Civil and Criminal Justice System in Queensland (Queensland Government, 2008) (the Moynihan Review), that introduced a number of amendments to the criminal process.

[6.20] 127

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Murphy, the High Court noted that although committals are non-judicial, as they do not result in a binding determination of rights, they have a “distinctively judicial character” as the magistrate is bound to act judicially.2 Other purposes of the committal hearing are usually to: • filter out weak cases; • disclose the prosecution case to the defence; • provide the accused with an opportunity to test the strength of the prosecution case by cross-examining prosecution witnesses; and • provide an opportunity to call evidence in rebuttal.3 These purposes have long been regarded as an important safeguard for an accused person charged with a serious offence as a committal significantly contributes to the prospect for a fair trial. In Barton v The Queen,4 the High Court stated (at 100): [C]ommittal proceedings are an important element in our system of criminal justice. They constitute such an important element in the protection of the accused that a trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair.

Test for committal [6.30] The duty imposed upon a magistrate presiding over committal proceedings is expressed in s 104(2) of the JA. A person should not be committed to trial where there is insufficient evidence to prove an essential element of the offence.5 In Purcell v Vernados,6 Ambrose J said: There is a very long line of authority to support the proposition that indeed in determining whether the prosecution has adduced sufficient evidence to put a defendant on trial, a committing magistrate should have regard to the reliability of the evidence not for the purpose of determining whether [the magistrate] personally is persuaded of guilt but for the purpose of determining whether any reasonable jury properly instructed could return a verdict of guilty upon it.7

The Moynihan Review recommended that the test for committals be more stringent to reflect a more robust test in line with the test applied in New South Wales.8 In New South Wales, the test requires that a magistrate consider all of the

2

R v Murphy (1985) 158 CLR 596 per Gibbs CJ, referring to Sankey v Whitlam (1978) 142 CLR 1 at 83-84.

3

Barton v The Queen (1980) 147 CLR 75 at 99 per Gibbs and Mason JJ, at 105 per Stephen J, and at 109 per Aickin J; see also R v Sloan (1988) 32 A Crim R 366; and DPP (Cth) v Bayly (1994) 75 A Crim R 549. Barton v The Queen (1980) 147 CLR 75 at 99 per Gibbs and Mason JJ, at 105 per Stephen J, and at 109 per Aickin J; see also R v Sloan (1988) 32 A Crim R 366; and DPP (Cth) v Bayly (1994) 75 A Crim R 549. Short v Davey; Ex parte Short [1980] 1 Qd R 412; Doney v The Queen (1990) 171 CLR 207; Purcell v Venardos [1996] 1 Qd R 310. [1996] 1 Qd R 310. [1996] 1 Qd R 310, 320; affirmed by Martin Jin Gant v Kucks [2013] QSC 285; see also Antoun v The Queen (2006) 159 A Crim R 513. M Moynihan, Review of the Civil and Criminal Justice System in Queensland (Queensland Government, 2008), p 215

4

5 6 7 8

128 [6.30]

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CH 6

evidence and determine whether there is a “reasonable prospect that a reasonable jury, properly instructed, would convict the accused of an indictable offence”. Despite adopting contested committals and amendments to disclosure and case conferencing requirements, the more stringent test for committals has not been introduced.

Procedure at committal [6.40] The prosecution presents its evidence against the accused with the object of establishing that there is a sufficient case for the matter to go to trial in a higher court.9 Sections 104 and 108 of the JA require a magistrate, after the prosecution has led all its evidence, to discharge the accused if there is insufficient evidence or, where there is sufficient evidence, to commit the accused for trial. The magistrate is required to ask the accused if they wish to say anything or to enter a plea. The accused is not under any obligation to say anything or to enter a plea. If, however, a plea of guilty is entered, the matter will be committed to the relevant higher court for sentencing.10 Alternatively, if the accused does want to offer evidence, the magistrate then hears that evidence and subsequently decides whether or not, on all of the evidence presented, the accused should be committed for trial. In practice, after seeing and testing the prosecution case, it is not uncommon for the accused to enter a plea at, or soon after, the committal.11 Pleading guilty at this early stage attracts the benefit of a sentence discount.12 Section 104 of the JA requires that the committal proceeding generally takes place in the presence and hearing of the accused13 and, where the accused has a lawyer, the legal representative. In a Northern Territory case, Ebatarinja v Pryce,14 which was ultimately determined in the High Court,15 equivalent requirements in the provisions of the Northern Territory legislation16 were of critical significance. In the High Court, the issue was whether or not a magistrate had power to conduct a committal hearing in relation to Ebatarinja, a young, deaf and mute Indigenous person who was charged with three serious offences. Ebatarinja’s legal representative had applied for an order prohibiting the committal hearing, which had previously commenced. The hearing had effectively been “suspended” to determine whether or not, as a matter of law, the proceedings should continue, as it was clear the accused did not understand the charges or the nature of the proceedings.17 In the Northern Territory Supreme Court, Mildren J refused the application and held the committal should take place, stating (at 115; 378-379):

9

In relation to jurisdiction, see Chapter 5.

10 11 12 13 14 15 16

JA(Qld), s 113. A plea may be entered at any time during, or at the end of the committal. See Chapter 7. The defendant may be excused from certain proceedings JA(Qld), s 104A. Ebatarinja v Pryce (1997) 137 FLR 281 (NT SC); and Ebatarinja v Deland (1997) 6 NTLR 107; 92 A Crim R 370. Ebatarinja v Deland (1998) 194 CLR 444. Justices Act 1979 (NT) s 106.

17

Ebatarinja v Deland (1998) 194 CLR 444 at 448; see also (1997) 6 NTLR 107; 92 A Crim R 370. [6.40] 129

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The fact that compliance with the provisions will prove “ritualistic” does not prevent completion of the committal proceedings. … As I have already said, the learned Magistrate has a duty to act justly and fairly, and this includes the duty to offer the [appellant] opportunity to be heard. It is the opportunity to be heard which is important. If the [appellant] cannot be heard, so be it. The [appellant] is not called upon to plead and no adverse finding other than a finding that there is a case to answer can be made which is likely to affect the [appellant’s] interests.

Ebatarinja’s appeal against that decision was refused. He then appealed to the High Court. In a unanimous judgment, the Court made an order prohibiting the further hearing of the committal proceeding, holding that the legislation required an accused to be capable of understanding the case against him as a condition precedent to being committed for trial, and that the language of the statutory requirement must be given real meaning.18 The court noted (at 453): The words “presence or hearing of the defendant” have more than a formal significance. It is hardly to be supposed that the conditions of the section can be complied with by taking the preliminary examination in the presence of a defendant who is in a coma.

The prosecution could, however, still proceed against Ebatarinja by the alternative method of proceeding by an ex officio indictment. Ex officio indictments are discussed at [6.180]. There are four usual methods by which a matter can be committed to the higher court: 1.

committal with examination of witnesses;

2.

hand up committal;

3.

registry committal;

4.

full committal – note however that this is only an option if the charges were laid before the 2010 changes that commenced on 1 November 2010.19

Committal with examination of witnesses [6.50] Prior to the Moynihan amendments commencing in 2010, a full committal with examination of all witnesses was able to be conducted as of right. If a person chose to test the evidence of each witness individually, before the matter was committed to the Supreme or District Court, the defendant had that option. However, following the Moynihan amendments, a system was introduced whereby witnesses would only be examined if the prosecution consented to their

18

19

For a critical analysis of the grounds for the High Court’s decision, which were confined to mere statutory interpretation rather than concepts of procedural fairness and natural justice, see P Pether, “We Say the Law is Too Important Just to Get One Kid: Refusing the Challenge of Ebatarinja v Deland and Ors” (1999) 21 Sydney Law Review 114. Compare Mokbel v DPP (Vic) [2008] VSC 433 where Mokbel argued that his committal proceeding should be regarded as an abuse of process. The court held that a committal, as a non-judicial proceeding, cannot fall within the doctrine of abuse of process. Note: Full committals are not further addressed by this book because they are no longer a regular occurrence.

130 [6.50]

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CH 6

examination or if the magistrate held that it was in the interests of justice for the particular witness or witnesses to be examined. The process for this examination is as follows: 1.

The defence serves upon the prosecution a notice [JA(Qld), s 110B(3)(a)];

2.

The prosecution responds to that notice [JA(Qld), s 110B(3)(b)];

3.

If the prosecution consents to the examination, the matter is listed for a committal hearing with examination of witnesses;

4.

If the prosecution does not consent to the examination, the defence must file an application seeking examination of the witnesses [JA(Qld), s 110B)7];

5.

The Magistrate hears that application; and a. b.

If successful, the matter is listed for a committal hearing with examination of witnesses; If unsuccessful, the matter proceeds as a hand up committal [JA(Qld), s 110A].20

Before the matter is considered by the Magistrate, JA(Qld), s 110B requires that notice is provided by the defence to the prosecution and that the defendant must advise the prosecution of the following: • the name of the maker of the written statement the subject of the application; • the general issues relevant to the making of the application; • the reasons to be relied on to justify the calling of the maker of the written statement to give oral evidence; and • a time for the prosecution to respond to the defendant’s communication. Somewhat problematically, it is conceivable that by providing the above information to the prosecution the defence may revealing an area of weakness in the prosecution case. This may deprive the defence of the strategic advantage of surprise at trial. Where the prosecution does not consent to the cross-examination JA(Qld), s 110 applies. It states that a magistrate must not give a direction for a witness to be examined at committal proceedings unless the magistrate is satisfied there are substantial reasons why, in the interests of justice, the maker should attend to give oral evidence or be made available for cross-examination on the written statement. A number of magistrate’s court decisions have considered what is required to establish the existence of substantial reasons as to why the examination is in the interests of justice. The following propositions can be drawn from the magistrate’s decisions and two New South Wales superior court decisions. Magistrate Hine in BJG v Police [2011] QMC 1. The principles are respectfully adopted from that case as including: a.

20

The concept of “the interests of justice” must be interpreted with “considerable width” and should be interpreted broadly (p14);

JA(Qld), s 110A. [6.50] 131

Criminal Process in Queensland

b.

There can be no rigid or exhausted definition of what constitutes “substantial reasons” and it would be undesirable to give one. Relevant issues inevitably vary from case to case” (p28);

c.

It would be wrong to limit substantial reasons to situations where cross-examination is likely to result in the discharge of the defendant or establish grounds for a no bill application” (p29);

d.

Substantial reasons may be constituted by requiring a witness for cross-examination for a proper understanding of the nature of the prosecution case or for an understanding of the basis of a relevant opinion held by a witness (p29);

e.

Substantial reasons may be shown where this leads to a narrowing of matters in dispute (p24);

f.

Substantial reasons may arise if a refusal to cross-examine leaves the accused uncertain of the evidence which may be led against him (p30);

g.

Special or substantial reasons may be established where versions of relevant events are inconsistent (p22).

Substantial reasons’ has been interpreted as follows: • In Police v DWB,21 Judge Butler considered the importance of the avoidance of a Basha inquiry as a consideration in relation to whether substantial reasons for cross-examination had been established. • In Police v DAG,22 issues of inconsistency of a witness statement and credit of that witness establish substantial reasons in the interests of justice. • In MJA v Police,23 it was in the interests of justice for two witnesses to be cross-examined where those two witnesses received the preliminary complaints in sexual assault matters and those complaints were not adequately particularised in the witnesses’ statements. • In Archer v Police,24 Magistrate Costanzo ruled that it was in the interests of justice for an examination to occur because it would not be appropriate for the defendant to wait for a voir dire without any hearing of the relevant matter in cross-examination. If the application is successful and a magistrate rules that cross-examination is to occur then a committal hearing with cross-examination of the relevant witnesses will be conducted.

21 22

[2011] QMC 4 at pages 8 and 9. [2012] QMC 1.

23

[2012] QMC 11.

24

[2011] QMC 54

132 [6.50]

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CH 6

Hand-up committals [6.60] Hand up committals are the most common form of proceeding in Queensland and in most jurisdictions that still conduct committal proceedings.25 Where matters do not proceed by committal with examination, or where the person is in custody, the hand up committal is the preferred method. Section 110A of the JA(Qld) enables a “paper” committal and/or a committal consisting of a combination of oral evidence and sworn, written statements. Where used, the written statements take the place of oral evidence. A paper, or “hand-up”, committal is a rubber-stamping process, as the magistrate is not required to consider whether or not there is sufficient evidence to commit: JA(Qld), s 110A(6). Arguably, this method of bypassing the cross-examination of witnesses could cause unfairness to the accused. There are, however, limited safeguards. The provision requires that the accused agrees to a paper committal.26 Ordinarily, the defendant is legally represented. However, an unrepresented accused can be committed on “the papers” provided a hearing is conducted by a magistrate with the accused present and the magistrate is satisfied that: a.

the accused understands what is happening and the consequences (dismissal, committal for trial or sentence);

b.

the accused is aware that they can apply for Legal Aid; and

c.

the accused is made aware that while they have a right to apply to cross-examine witnesses, they will need to show that this is justified and that an explanation of what this involves is provided to the accused.27

The move towards paper committals is another example of the criminal justice system’s response to economic pressures and potential delays in the courts. While the prosecution’s disclosure obligations, and the prosecution statements obtained through the paper committal process should result in providing the defence with sufficient advance notice of the prosecution’s case, it is arguable as to whether this amounts to a proper substitute for oral examination and the opportunity to cross-examine prosecution witnesses. This raises the question of whether or not paper committals really satisfy the requirements indicated for a fair trial enshrined, for instance, in Barton v The Queen.28

Registry Committal [6.70] The Moynihan changes introduced a system of registry committals which are paper committals handled by the Registry of the Magistrates Court rather than by the Magistrate. Section 114 of the JA(Qld) authorises a clerk of the court to

25

26

Committals have been virtually abolished in Western Australia and Tasmania. In Tasmania, there are no longer any “contested” committals, although an “uncontested” committal is still open to an accused: Justices Act 1959, (Tas) ss 56A and 57. JA(Qld), s 110A.

27

JA(Qld), s 110A(4).

28

Barton v The Queen (1980) 147 CLR 75. [6.70] 133

Criminal Process in Queensland

order a defendant to be committed for trial or sentenced in the District or Supreme Courts.29 This may only occur in the following circumstances:30 • the indictable offence is not to be heard and decided summarily; • the evidence of witnesses is intended to be given in written statements; • the written statements have been filed in the court and copies given to the defendant; • the defendant is not in breach of any condition of a bail undertaking; and • the defendant is legally represented and the lawyer has given the relevant notice pursuant to the JA(Qld). In order to complete a Registry Committal, the defendant’s lawyer will complete a Notice of Intention to Proceed via Registry Committal.31 This document will confirm what charges are to proceed, whether an election has been made to enter a plea of guilty or not guilty and whether there has been an election as to whether the written statements are to be provided to the defendant. If the defendant wishes to plead guilty to the offences and be committed for sentence, the defendant must also complete an Acknowledgement of Plea notice32 Once these documents are signed by the defendant, they are served on the prosecution. The prosecution then confirm that the matter is able to proceed and the counter-signed Notice of intention to proceed via registry committal together with any acknowledgement of plea is sent to the relevant magistrates Court Registry. The Clerk of the Court then considers the request and, if satisfied that all of the relevant prerequisites are met, will process the committal.33 After the defendant is committed, there must not be any examination of any witness.34 Pursuant to JA(Qld), s 115, the Clerk of the Court does not have any power to vary a bail undertaking or grant bail on the Registry Committal. The Bail Act 1980 (Qld) confirms that the bail undertaking will continue once the matter has been committed.35 The verdict and judgment record showing that the committal has been finalised is provided to the legal representatives and the prosecution together with the bail undertaking.

Other matters [6.80] If the accused is committed for trial, they will be advised of the requirement to give notice to the prosecution of any alibi within 14 days.36

29 30 31 32 33 34 35

JA(Qld), s 114. JA(Qld), s 114. See Magistrates Court Practice Direction 14 of 2010 Annexure A. See Magistrates Court Practice Direction 14 of 2010 Annexure B. JA(Qld), s 115. JA(Qld), s 114. Bail Act 1980 (Qld) s 34BA.

36

JA(Qld), s 104(5)

134 [6.80]

Committals and Indictments

CH 6

If an application for bail is made at the end of the committal, the magistrate will deal with the application, provided that it is not one of the circumstances that can only be considered by the Supreme Court.37 In addition, if the accused is committed for trial, they will receive a copy of the witness statements.38 It is then a matter for the Office of the Director of Public Prosecutions (ODPP) to decide whether or not to prosecute upon indictment.39 In general, there will be some considerable delay between the committal proceeding and a trial or further hearing. A number of factors determine the length of time a committal and trial including: • the nature of the charges; • the degree of complexity of the prospective trial and its duration; • whether or not the accused is in custody; and • the caseloads of the District and Supreme Courts. Further, the parties will often engage in plea negotiations following the committal, which highlights the importance of the committal process as a vehicle for the accused to hear the prosecution case against them. The prosecution may also reduce the charges after the committal – that is, after the evidence has been tested by the accused.

INDICTMENTS [6.90] In this section, indictments are discussed, first, on the basis that a committal/disclosure hearing has taken place and the accused has been committed for trial or sentence; and second, about (or concerning) the use of “ex officio” indictments. Ex officio indictments may be presented in circumstances where there has been no antecedent committal/disclosure hearing.

Procedure [6.100] After the committal, notices will be sent to the committal witnesses requiring them to give evidence at the subsequent trial. The initial charging documents, witness statements and, where the accused is granted bail, the bail undertaking, will be sent to the ODPP.40 As indicated, the ODPP will then consider whether to proceed to trial, taking into account the evidence from the committal and guideline 4 of the ODPP Director’s Guidelines. If it is decided to proceed to a trial in either the District Court or the Supreme Court, the ODPP will then prepare the indictment – that is, the document which sets out the charges against the accused.41

37 38 39

Bail Act 1980 (Qld), ss 13 and 16. QCC, s 705; JA(Qld), s 126. As to the decision to prosecute see Chapter 5.

40

JA(Qld), ss 126.

41

QCC, s 560. [6.100] 135

Criminal Process in Queensland

The ODPP is entitled to a period of six months from the time of the committal to present the indictment to the relevant court.42 This period of time can be extended43 by the court, but where the ODPP fails to comply with the relevant timeframe, the accused is entitled to be discharged from the consequences of the committal.44 A discharge will not, however, bar the ODPP from proceeding again at a later stage, although there may be circumstances where an application to stay the later indictment may be warranted on the grounds of an abuse of process.

Rules concerning indictments [6.110] A number of rules apply to the form and content of the indictment, which is the formal charging document to which the accused will be required to plead at the commencement of the trial.45

Particulars [6.120] The accused is entitled to a sufficient degree of particularity in the indictment – that is, sufficient information to be able to know what the charge is and to respond to the charge.46 Specifically, the indictment must include: • the name of the court at which it is presented; • a description of the offence; • particulars of the time and place of the alleged offence; • where relevant, particulars of the name of the person alleged to be aggrieved (that is, the victim); and • where relevant, particulars of and any property involved in the offence. In addition, the indictment must allege each element or ingredient of the offence.47 If the offence is charged with a circumstance of aggravation, this must also appear in the indictment.48 The offence can be described using the words of the relevant provision of the QCC or of any other legislative provision defining the offence49

42 43

44

45 46 47

48 49

QCC, s 590. See also the Director’s Guidelines which indicate indictments should be presented within 4 months. QCC, s 590(2) and (3). An extension of time within which to present the indictment may be granted by the court if the court is satisfied that good cause is shown and no miscarriage of justice is likely to result: see Director of Public Prosecutions v Cicolini [2008] 2 Qd R 313; [2007] QCA 336. See Re Jenkin (1991) 57 A Crim R 124; see also R v Foley [2003] 2 Qd R 88; [2002] QCA 522, discussed below in relation to ex officio indictments; and R v Ford; Ex parte Attorney-General (Qld) [2006] QCA 440. See Criminal Practice Rules 1999 (Qld) schedules 2-4. QCC, ss 564(1) and 565. See R v McGoldrick (1994) 71 A Crim R 152: on a charge of robbery under QCC, s 409, the indictment did not allege an essential element of the definition of “offence” – ie, the use or a threat to use actual violence. QCC, s 564(2). QCC, s 564(3).

136 [6.110]

Committals and Indictments

CH 6

In R v Rogers,50 Dowsett J stated: As a minimum requirement, it is necessary that there be sufficient particularity in the allegations to demonstrate one identifiable transaction which meets the description of the offence charged, distinguishable from any other similar incidents suggested by the evidence. I cannot see how there can be a trial in the absence of that degree of particularity.51

Sufficiency of particularity is critical for two reasons: first, to give the accused sufficient information of what is alleged; and second, to eliminate the risk of duplicity of charges.52 However, an absence of particularity will not of itself be enough to justify staying an indictment.53 The usual remedy will be to seek a direction from the court for further particulars to be given to the accused and, if necessary, the trial will be postponed until that has occurred.54 In S v The Queen, the High Court referred to numerous difficulties caused to an accused where charges were inadequately particularised. Difficulties may include: • the risk that any one of a number of offences could fall within the description of the relevant count; • the fact that the accused may have to answer charges on unspecified occasions; • the risk that individual members of a jury might identify different occasions as constituting the relevant offences, with the consequential risk of finding the accused guilty on the basis of a “general disposition” to commit offences of that kind; and • the difficulty of raising “double jeopardy” pleas where it is uncertain which offence the accused had been charged with.55

Amendment [6.130] The indictment may be amended at any time before the trial, and during the trial, as long as the proposed amendment is not material to the merits of the case and the accused’s defence will not suffer an injustice or prejudice as a consequence.56 In R v CAE,57 the court held that QCC, s 572 places the onus on the prosecution to demonstrate the non-materiality of the amendment and the absence of prejudice to the accused. 50 51 52

53 54 55 56 57

[1998] QCA 83. R v Rogers [1998] QCA 83. R v S [2000] 1 Qd R 445 at 452 per Mackenzie J; see also S v The Queen (1989) 168 CLR 266; and R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301 at [48] per Holmes JA. The common rule against duplicity demands that each individual count on an indictment charges one offence only: Johnson v Miller (1937) 59 CLR 467; see also Walsh v Tattersall (1996) 188 CLR 77. For an illustration of an appeal where duplicity, lack of particularity and a lack of positive evidence resulted in a successful appeal against conviction, see R v Boyd [2001] QCA 421 per Williams JA. R v Smith (2000) 117 A Crim R 1. QCC, s 573; R v B; Ex parte Attorney-General (Qld) [2001] QCA 065; R v Lewis [1994] 1 Qd R 613 at 624; and Stevenson v The Queen (1996) 90 A Crim R 259 per Pincus JA. S v The Queen (1989) 168 CLR 266; and R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301 at [48] per Holmes JA. QCC, s 572. [2008] QCA 177. [6.130] 137

Criminal Process in Queensland

In R v Fahey,58 the Queensland Court of Appeal allowed an amendment to be made to a defective indictment after conviction. The indictment did not conform to the words of the offence charged (unlawfully doing grievous bodily harm with intent59) by omitting the word “unlawfully”. It was clear that the three appellants had intended to plead guilty to the offence, and when the judge’s associate arraigned the accused on the indictment, she read out the correct description of the offence. The court’s formal record of verdict and judgment also indicated the correct description.60 Thomas JA noted that the omission was not a minor one, as it was an element of the offence. Nevertheless, the appellant had not suffered any disadvantage from the error and the court ordered an amendment of the indictment.61 If there had been unfairness or an abuse of process, the court may have refused to hear the charge or stay the proceedings.

Overloading of charges [6.140] The indictment should not be overloaded – that is, it should not include charges of a trivial nature. As Lawton LJ states in R v Ambrose:62 The language of ordinary people in this country sums up this kind of situation. The ordinary man does not like, as he puts it, the book being thrown at someone, or, to use the phrase which is in common use, everything being thrown at an accused person except the kitchen sink. The ordinary man is right: it is not fair.63

In R v Siugzdinis,64 Muirhead J, in the Supreme Court of the Northern Territory, cited Lawton LJ’s statement when he stayed 12 of 21 counts on an indictment.

JOINDER [6.150] The general rule is that only one “count” (that is, offence) may be charged in one indictment.65 However, joinder is permitted in circumstances where the offences charged: • are based on the same facts; or • form part of a series of offences of the same or similar character; or • are a series of offences committed in the prosecution of a single purpose.66 The decision to join counts on an indictment is a matter for the ODPP prosecutor who signs the indictment. There must be a common factual origin for there to be an appropriate joinder of charges based on the same facts. This was the case in R v Collins,67 where the accused was charged with breaking and entering, stealing 58 59

[2002] 1 Qd R 391; [2001] QCA 82. QCC, s 317.

60 61 62

R v Fahey [2002] 1 Qd R 391; [2001] QCA 82 at [8], [10], [12], [18] and [20] per Thomas JA. R v Fahey [2002] 1 Qd R 391; [2001] QCA 82 at [28]-[30] per Thomas JA. (1973) 57 Cr App R 538; see also R v Siugzdinis (1984) 15 A Crim R 136.

63 64 65 66

(1973) 57 Cr App R 538 at 540. (1984) 15 A Crim R 136 at 147 per Muirhead J. This case dealt with an ex officio indictment, but the principle applies equally. QCC, s 567(1). QCC, s 567(2).

67

[1996] 1 Qd R 631 at 637 per McPherson JA.

138 [6.140]

Committals and Indictments

CH 6

(or receiving in the alternative) and arson in the one indictment. Collins had been found in possession of goods taken from a warehouse that had been broken into and set alight on the previous day. In order for charges to be appropriately joined on the basis that they form part of a series of offences of the same or similar character, the time, place and circumstances of the alleged offences must be taken into account, as well as their character.68 In R v Cranston,69 the court indicated that as the “test” requiring consideration of many factors is so imprecise, a liberal exercise of the discretion to sever counts on an indictment (and therefore order separate trials) is called for where the level of prejudice to the accused is sufficiently strong.70 Permissible joinder for a series of offences committed in the prosecution of a single purpose is illustrated by R v Cranston, where the offender was charged with the attempted rape of a woman and assault of another (the assault victim was trying to rescue the rape victim). The assault occurred in the prosecution of the single purpose of rape. Although it is unusual, even multiple charges of murder can be joined on one indictment, as long as there is compliance with the joinder rules.71 For example, in the Queensland case of R v Fraser,72 the accused was charged with four murders in the one indictment. The murders were all alleged to be of a similar character, in that the four female victims had been attacked in the Rockhampton area within the period of four months, the circumstances pointed to each attack being sexually motivated, each victim was violently killed, three victims suffered incapacitating blows to the head, and the bodies were dumped in bushland areas north-east of Rockhampton with minimal effort taken to conceal the bodies. The case is particularly noteworthy as during the trial one of the alleged victims was found to be alive and in hiding with her boyfriend. The prosecution then entered a nolle presequi in respect of that count on the indictment.73

Joinder and prejudice [6.160] Joinder of charges may be desirable from the accused’s viewpoint, provided the joinder is proper in the circumstances, as it means that the accused does not need to go through more than one trial – for example, where charges are properly framed and there is no improper “splitting” of offences to include a greater number of charges. Similarly, joinder may be beneficial to the prosecution, and the administration of justice generally, by reducing both the time and costs associated with multiple trials. However, a particular concern frequently arising from the joinder of charges will be the admissibility of evidence on two or more counts. There may well be evidence on one count that, as a matter of law, is inadmissible on another count, 68 69

R v Cranston [1988] 1 Qd R 159. [1988] 1 Qd R 159.

70

[1988] 1 Qd R 159 at 164-165 per Macrossan J.

71 72

R v Andrews [1987] 1 Qd R 21; (1986) 22 A Crim R 201. [2004] 2 Qd R 544; [2004] QCA 92.

73

R v Fraser [2004] 2 Qd R 544; [2004] QCA 92 at [1] per de Jersey CJ, and at [104] per Mackenzie J. Fraser was convicted of the murders of two of the victims and manslaughter of the third. [6.160] 139

Criminal Process in Queensland

resulting in potential prejudice, as the jury may take the inadmissible evidence into account. This is of particular significance in cases involving multiple sexual offences (but is by no means confined to sexual offences). For example, in De Jesus v The Queen,74 the indictment contained two counts of rape against two different women. De Jesus was convicted of both rapes, but his appeal to the High Court was successful on the basis that the evidence on one count was inadmissible on the other and the two rapes should not have been joined in the one indictment. The High Court held that there was no doubt that the joinder was highly prejudicial to the applicant and he should have been tried separately on each count.75 A great deal of faith is placed in the trial judge’s directions, which are given to the jury at the end of the trial in regard to what evidence may be used in relation to each count on the indictment. The impact of these directions on the jury’s deliberations is uncertain and generally unknowable. Many Court of Appeal decisions and a number of significant High Court decisions where joinder has been the subject of an appeal have also concerned similar fact or “propensity” evidence.76 Given the subject matter of this book, evidential rules will not be discussed in detail here. However, the close relationship between joinder issues and this area of the law of evidence needs to be emphasised. The essential point is that the admissibility of “propensity” or similar fact evidence is subject to rigorous rules because of its highly prejudicial character. Such evidence will only be admissible where it has a “strong degree of probative force” such that the probity outweighs its prejudicial effect.77 In R v KP,78 the Queensland Court of Appeal considered that the trial judge, after (correctly) ruling against an objection to joinder of numerous sexual offences, should have then proceeded to consider whether or not the charges should be heard together. In other words, the judge ought to have considered whether or not, due to the evidence which would be led by the prosecution on the various charges, the accused would suffer prejudice by a single trial and, if that were the case, whether separate trials should be ordered.79 The Court of Appeal held that seven counts (of the 35 charged) ought not to have been proceeded with at the same trial. That conclusion was reached by considering the rules about similar fact evidence, and finding that a single trial would result in the jury being exposed to

74 75 76

78

(1986) 68 ALR 1; 22 A Crim R 375. (1986) 68 ALR 1 at 3. Phillips v The Queen (2006) 225 CLR 303; S v The Queen (1989) 168 CLR 266; R v MAP [2006] QCA 220; R v Kay [2006] QCA 302; R v Ford [2006] QCA 142; and R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301. HML v The Queen (2008) 235 CLR 334; Phillips v The Queen (2006) 225 CLR 303; and Pfennig v The Queen (1995) 182 CLR 461. The necessary degree of probative force may be found where the facts are “strikingly similar”. See also R v MAP [2006] QCA 220; R v BBG (2007) 174 A Crim R 86; [2007] QCA 275 (where McMurdo P emphasised (at [5]) the High Court’s statements in both Phillips and Pfennig that similar fact evidence is inadmissible unless, viewed in the context of the prosecution case, there is no reasonable view of it consistent with the innocence of the accused); and R v MAY [2007] QCA 333. R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301.

79

R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301 at [51]-[52] per Holmes JA.

77

140 [6.160]

Committals and Indictments

CH 6

highly prejudicial and legally inadmissible evidence on those charges. The convictions on those seven counts were set aside and a new trial ordered.80

Co-accused charged on one indictment [6.170] More than one person can be charged and tried on the one indictment, for the same or different offences, if the charges arise out of the same or substantially similar facts.81 Where the prosecution alleges that one or more persons are secondary participants, or parties, to the offence, the indictment may charge more than one person.82 The particular mode of participation by the secondary offender/s should be indicated in the indictment unless the prosecution cannot establish the identity of the principal, as opposed to the secondary, offender/s.83 In those circumstances, it is sufficient to identify the offence alleged against the accused persons. As is the case with joinder of counts, an application may be made for each accused to have a separate trial, and again it is a matter for the exercise of judicial discretion.84 Generally, however, where the accused are charged with offences under a common purpose, as a matter of principle and policy, it is unlikely that the court will grant separate trials.85 When the court considers an application for separate trials for two or more accused persons, the mere fact that evidence that is admissible against one accused, but which may not be admissible against another, will not be sufficient reason to order separate trials.86 In the case of R v Swan87 the Court of Appeal allowed an appeal against conviction for murder on the basis that separate trials should have been ordered. In that case, the principle was restated and confirmed that co-offenders should be tried together. However, in Swan, the circumstances of the evidence and the prejudice that flowed to one defendant from evidence admissible against the co-offender caused real concerns for how the trial judge might properly direct the jury. Jackson J in that case said: A separate trial may be called for where the apparent evidence admissible against another defendant but not against the relevant defendant would have the effect of bolstering the important witnesses’ credibility against the relevant defendant.

80

81 82 83 84 85

R v KP; Ex parte Attorney-General (Qld) [2006] QCA 301 at [54]-[63] per Holmes JA. See also R v Patel [2009] QSC 166 where the applicant was charged with three counts of manslaughter, one count of unlawfully doing grievous bodily harm and one count of unlawfully doing grievous bodily harm, with an alternative count of the unlawful removal of an organ causing actual bodily harm. Patel sought an order for separate trials which was refused with the judge finding that hearing the matters together would not cause impermissible prejudice. QCC, s 568(12). QCC, s 569. Georgianni v The Queen (1985) 156 CLR 473 at 497. QCC, s 597B.

86

R v Lewis and Baira [1996] QCA 405; Webb v The Queen (1994) 181 CLR 41; R v Phillips [1967] Qd R 237. R v Ginger [1997] QCA 90.

87

[2013] QCA 217. [6.170] 141

Criminal Process in Queensland

EX OFFICIO OR DIRECT INDICTMENTS [6.180] A prosecutor may present an indictment, known as an “ex officio” indictment to a superior court.88 An ex officio can be presented: whether the accused has been committed for trial or not and against any person for an indictable offence who with the person’s prior consent has been committed for trial or for sentence for an offence before that court.89

Presenting an ex officio is a matter within the discretion of the prosecutor and is not subject to review.90 However, once the indictment has been presented, the court has an inherent power to prevent an abuse of its process and, in exceptional circumstances, may stay the indictment as an abuse of process.91 The scope of the circumstances in which an ex officio may be presented and illustrations of the inappropriate use of an ex officio indictment are considered below. An ex officio may be presented following a committal on one or more charges where the evidence given at committal discloses the commission of further offences or an alternative offence – for example, a committal held for a murder charge may result in an indictment for manslaughter. As long as the accused is advised of an intention of further charges via an ex officio, this does not present a problem as the accused has had the opportunity to test the evidence against them at the committal. However, it is clear from the wording of the provision that the committal process may be bypassed altogether. In R v Webb,92 Philp J noted that where someone agrees to plead guilty to a charge that has not been the subject of a committal, the protective function of the magistrate filtering out weak cases is lost, and there is no opportunity to see or test any evidence against the accused.93 It may be, of course, that the person is legally and factually guilty and is willing to assist the criminal justice process by pleading guilty to an ex officio indictment at the earliest possible opportunity in order to take advantage of a sentence discount for an early plea. Although a magistrate may refuse to commit a matter to a higher court on the basis that there is insufficient evidence, the prosecutor may still present an ex officio indictment.94 Significant questions of fairness to an accused may arise in these circumstances,95 particularly where an offender may feel pressure to plead guilty to an ex officio. In Barton v The Queen,96 the High Court articulated the benefits to the accused of a committal and held that where an ex officio has been presented, the court may stay or postpone the proceedings to prevent an abuse of process and to

88

QCC, s 561.

89 90 91 92 93 94 95

QCC, s 561 and Director’s Guidelines. Barton v The Queen (1980) 147 CLR 75. Barton v The Queen (1980) 147 CLR 75; see also the discussion of Jago v District Court (NSW) (1989) 168 CLR 23 in Chapter 9, Fair Trial and Abuse of Process. [1960] Qd R 443. R v Webb [1960] Qd R 443 at 446 per Philp J. R v Grant-Taylor; Ex parte Johnson [1980] Qd R 387. R v Foley [2003] 2 Qd R 88; [2002] QCA 522.

96

(1980) 147 CLR 75.

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ensure a fair trial.97 Whether the power should be exercised to stay or postpone proceedings depends on balancing the accused’s interests against the community’s interests. In this case, three members of the court also held that: A trial held without antecedent committal proceedings, unless justified on strong and powerful grounds, must necessarily be considered unfair.98

The absence of a committal of itself will not necessarily lead to the staying of an ex officio indictment.99 Some distinct unfairness to the accused needs to be demonstrated. In R v Siugzdinis,100 following a committal for trial on a total of eight charges, an ex officio indictment was presented charging the two accused on 21 counts. The two accused sought to have 13 counts quashed on the basis that they constituted an abuse of process or were oppressive. Muirhead J ordered a stay of proceedings in relation to 12 of the counts. In his reasons, His Honour stated a number of propositions, including: • charging new counts after a committal tends to deprive a person of the full benefit that a committal is designed to provide; • the power to charge another offence after a committal is corrective in nature rather than a method for the prosecution to substitute its own views for those of the magistrate; and • the practice of presenting ex officio indictments should be confined to cases where, for good reason, the interests of justice require proceeding without a committal. Further, when an application is made to quash an indictment, the court must be guided by principles of fairness.101 Indictments were quashed in R v Haslett102 where the two accused were placed in a distinctly unfair situation due to the conduct of the prosecutor. The two accused were charged with perjury and attempting to pervert the course of justice. Before the designated committal date, the solicitor for one of the accused applied for particulars of the charges. The particulars consisted of a copy of the trial transcript, which formed the basis for the perjury (only) charges. On the day of their committal, defence counsel applied for further particulars of the charges and for an adjournment until those particulars were provided. The magistrate granted both applications and the committal was adjourned for approximately three months. A week later (and without having provided the further particulars), the prosecution presented ex officio indictments charging both accused with the same offences. Asche J found that the Hasletts had been deprived of a committal without any real cause. Taking into account both the interests of the accused and

97 98

100 101

(1980) 147 CLR 75. Barton v The Queen (1980) 147 CLR 75 at 100 per Gibbs ACJ and Mason J, and at 109 per Aickin J. R v Cooney (1987) 31 A Crim R 256 at 264 per Andrews CJ (Williams and Moynihan JJ agreeing); see also Jago v District Court (NSW) (1989) 168 CLR 23. (1984) 15 A Crim R 136 (NT SC) per Muirhead J. (1984) 15 A Crim R 136 at 146.

102

(1987) 31 A Crim R 85.

99

[6.180] 143

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those of the community, there was a significant element of unfairness if the proceedings commenced on indictment were permitted to continue.103

CIRCUMVENTING THE TIME LIMIT TO PRESENT AN INDICTMENT IN QUEENSLAND [6.190] In the discussion on presenting indictments, reference was made to the six-month time limit within which the prosecutor must present the indictment to the court.104 Where the time limit has not been extended, the prosecution cannot try to circumvent s 590 of the QCC by presenting an ex officio indictment. That course was attempted unsuccessfully by the prosecution in R v Foley105 where, due to “inefficiency in the management of the Director’s office”,106 the indictment had not been presented within six months of the committal. Approximately three weeks after the six months had expired, the prosecution applied for an extension of time. The application was refused. Subsequently, an ex officio was presented. The court considered that the terms of s 561 – “whether the accused person has been committed for trial or not” – referred to some other offence,107 rather than the offence for which the accused had already been committed for trial.108 Therefore, an ex officio indictment could not be presented in order to overcome the refusal of an extension of time to present an indictment for the matters committed for trial. The case of R v Boulle109 is considered a novel situation. The charges related to a number of drug and fraud offences. In part, the prosecution case was that Boulle had consulted doctors on 14 occasions in order to obtain prescriptions for Sudafed or Telfast, telling each doctor that he needed to stock up as he was going overseas for several months and that the tablets were needed to manage his sinus problems. Boulle successfully obtained 11 prescriptions, which provided him with 1,760 tablets. When the original indictment was being drafted, the responsible legal officer at the ODPP was apparently informed by a government chemist that pseudoephedrine (the active ingredient in the tablets) did not fall within the relevant

103 104 105

106 107 108

109

R v Haslett (1987) 31 A Crim R 85 at 102. QCC, s 590. [2003] 2 Qd R 88; [2002] QCA 522. The Court of Appeal declined to follow R v Harker (2002) 128 A Crim R 317, where a single judge of the Supreme Court refused to stay an ex officio in similar circumstances on the ground that the non-compliance with QCC, s 590 was due to an administrative malfunction or incompetence, rather than a deliberate attempt to avoid the appropriate procedure of applying for an extension of time under QCC, s 590(3). R v Foley [2003] 2 Qd R 88 at 90 per de Jersey CJ, Davies JA and Jones J. [2003] 2 Qd R 88 at 96 per de Jersey CJ, Davies JA and Jones J. In R v Foley [2003] 2 Qd R 88, the court considered that no indictment had been presented as the person who signed the indictment was not authorised to do so and therefore it was not appropriate to order a stay. However, the court also ordered that an ex officio could not be presented charging the particular offence which had already been committed for trial. See also R v Ford; Ex parte Attorney-General (Qld) [2006] QCA 440; and Director of Public Prosecutions v Cicolini [2008] 2 Qd R 313; [2007] QCA 336; cf R v Harker (2002) 128 A Crim R 317. [2006] QSC 253 per Fryberg J.

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definition of a “dangerous drug” for the purposes of the Drugs Misuse Act 1986.110 Ephedrine fits the definition, but not pseudoephedrine. With that information, the ODPP decided not to proceed on any of the charges because there was no such charge as trafficking in pseudoephedrine, and it was pointless to pursue the other charges. Boulle’s solicitors were advised in writing that the prosecution would not proceed.111 Later, a second chemist was consulted as to the pharmacological properties of pseudoephedrine. The second chemist stated that the earlier information was wrong and that pseudoephedrine fall within the extended definition of what constitutes a “dangerous drug”.112 The prosecution then presented an ex officio indictment charging Boulle with trafficking in ephedrine. Fryberg J ordered that the ex officio indictment that was presented was unlawful as it breached QCC, s 590 and was therefore void. His reasoning adopted the approach in Foley – that an ex officio could not be presented in relation to an offence that had already been the subject of a committal proceeding. Further, the letter sent to Boulle’s solicitors by the ODPP had signalled that he had been discharged from the effects of his earlier committal, and that it could not therefore present an indictment under s 560 of the QCC.

110 111 112

See Drugs Misuse Act 1986 (Qld) s 4A and the list of dangerous drugs in the Schedules of the Drugs Misuse Regulation 1987 (Qld). See Criminal Practice Rules 1999 (Qld) r 20(6). Drugs Misuse Act 1986 (Qld) s 4A extends the definition to salts, derivatives and stereoisomers. The second chemist stated that the drug was a stereo-isomer of ephedrine. [6.190] 145

CHAPTER 7 Pleas and Double Jeopardy Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Charge and Plea Bargaining . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 [7.30] Prosecutorial discretion in bargaining . . . . . . . . . . . . . . . . . . . . . . 149 [7.40] Pleading Guilty and Changing Pleas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150 [7.50] May a guilty plea be withdrawn or refused? . . . . . . . . . . . . . . . 151 [7.80] Why Plead Guilty? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155 [7.90] Discount for an early plea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156 [7.100] Sentencing Indication Bargaining. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157 [7.110] Plea and Charge Bargaining: An Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160 [7.120] Double Jeopardy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161 [7.130] Alternative verdicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 162 [7.140] Statutory defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164 [7.160] Issue estoppel, abuse of process and previously inadmissible evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 [7.170] Controverting an earlier acquittal . . . . . . . . . . . . . . . . . . . . . . . . . . 170 [7.180] The limits of the double jeopardy principle: Carroll . . . . . . . . 171 [7.190] The debate and reforms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173 [7.210] Queensland reforms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177 [7.250] Rule preventing double punishments . . . . . . . . . . . . . . . . . . . . . . 179 [7.10] [7.20]

OVERVIEW [7.10] This chapter focuses on a range of issues and practices concerning the guilty plea. The rules relating to double jeopardy and the increasingly limited protection afforded by those rules are also considered.

CHARGE AND PLEA BARGAINING [7.20] In Chapter 5 it was emphasised that only a very small percentage of matters actually proceed to a contested trial, and that the vast majority of matters end in a guilty plea by the accused. There are a number of factors, which, individually or collectively, have the effect of encouraging such an outcome. Both formal and informal rules and practices exist to promote the entering of a guilty plea and such rules and practices play a critical role in keeping the over-burdened criminal justice system functioning.1 The various practices that are considered below relate to the number and/or seriousness of charges where some charges are dropped or reduced and the

1

See, eg, D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) p 337.

[7.20] 147

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accused subsequently pleads guilty to the remaining charges – collectively called “charge” or “plea” bargaining and “sentence bargaining/indications”.2 Given that a potential advantage for an accused in having an indictable or either way3 offence(s) heard summarily4 is the legislative constraint on a magistrate in terms of the maximum penalty that may be imposed,5 “charge” bargaining often occurs between the prosecution and defence to reduce or alter charges so that they can be dealt with summarily. Findlay et al contend that because police regard obtaining convictions as a measure of success in achieving crime control, they are motivated to exercise their discretion to plea bargain as it reduces the possibility of charges being dismissed by a magistrate at a committal hearing.6 This motivation may extend to instances where police agree to change the factual basis on which an accused is sentenced, for example, by removing contentious facts that reflect poorly on the accused. Plea negotiation may also be based on the accused’s promise to assist law enforcement, for example, by identifying other persons of interest in an investigation.7 Further, although the Office of the Director of Public Prosecutions (ODPP) Director’s Guidelines (Qld)8 states that it is “not appropriate to overcharge to provide scope for plea negotiation” the common practice of laying multiple charges, or “overcharging”, is thought to facilitate both charge and plea bargaining. The “bargain” here involves reducing the charges that are ultimately presented and to which the accused pleads guilty.9 The distinction between indictable and non-indictable offences is considered in Chapter 5 and Chapter 6 outlines and discusses the various rules relating to indictments. To provide some context for the material here on charge bargaining and guilty pleas some fundamental points must be noted.

2

3 4

See also J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, LexisNexis, 2005) pp 697-698; K Mack and S Anleu, “Balancing Principle and Pragmatism: Guilty Pleas” (1995) 4 Journal of Judicial Administration 232; and N Vamos, “Please Don’t Call it ‘Plea Bargaining’” (2009) 9 Criminal Law Review 615. See Chapter 5 at [5.60] and [5.100] for a discussion of indictable and either way offences. See Chapter 5 at [5.100].

5

See QCC, s 552H. See also Chapter 5 concerning indictable offences that may be dealt with summarily and note that the decision whether or not to summarily hear any of the indictable offences under QCC, ss 552A, 552B or 552BA is ultimately a matter for the discretion of the magistrate (QCC, s 552D). The exception is when an accused is charged with an offence listed on Schedule 1 C of the Penalty and Sentences Act 1992 (Qld) (PSA) and it is alleged that the offence occurred with circumstances of aggravation (PSA, s 161Q), in which case a magistrate is unable to hear the matter (QCC, s 552D(2A).

6 7

See M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) p 112. See Chapter 13 for a discussion of the benefits of an accused for assisting in law enforcement endeavours. Office of the Director of Public Prosecutions, Director’s Guidelines: 10(v) see also 17(iii): http ://www.justice.qld.gov.au/__data/assets/pdf_file/0015/16701/directors-guidelines.pdf. Viewed 12/04/2017. For a succinct summary of the research on plea bargaining in the US and UK, see D Brown, D Farrier, L McNamara A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) pp 337-340.

8

9

148 [7.20]

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First, as indicated in Chapter 6, in cases involving serious indictable offences,10 the indictment is only prepared and presented to the relevant higher court where the matter has been committed to the higher court by a magistrate following committal proceedings or where the matter is proceeding by way of an ex officio or direct indictment (see [6.180]). Second, the general rule is that a complaint or indictment is to charge only one offence.11 If more than one offence is included, the charge may be void for duplicity. However, “joinder of charges” is permitted in specified circumstances.12 All of these circumstances require a sufficient nexus between the charges to allow them to be heard together at one trial. In Chapter 6, concerns about joinder of charges are discussed in the context of potential prejudice to the accused – and the possibility of addressing those concerns by applying for separate trials for some or all of the charges was also discussed. Another alternative lies in the process of charge and plea-bargaining, where an agreement is reached that the prosecution will accept a guilty plea on one or more charges in exchange for dropping another charge or charges. Finally, it needs to be remembered that charges may be altered or amended by the police or the ODPP at any time subject to rules relating to abuse of process (see [9.30]).

Prosecutorial discretion in bargaining [7.30] The role of discretion in police decision-making has been noted previously – for example, the decision whether or not to charge a person (see Chapter 4). Discretion also plays a pivotal role in how the police and the ODPP frame certain charges and whether they engage in charge and plea-bargaining. It is entirely a matter within the discretion of the police and prosecution to determine the charges to be laid against a person and that exercise of discretion is generally not subject to judicial review, save for exceptional cases where there is an abuse of process (see Chapters 4 and 9). Similarly, charge bargaining is immune from judicial review, although gross undercharging might amount to an abuse of process.13 The exercise of prosecutorial discretion on whether or not to prosecute, what to charge and how to frame the charge or charges, is governed by the facts, the law and the ODPP’s Director’s Guidelines and Director’s Statement.14 In Queensland, guideline 10(iii) and (v) of the Director’s Guidelines indicate that charges must adequately and appropriately reflect the criminality that can reasonably be proven and that it is inappropriate to overcharge to provide scope for plea negotiation. Further, guideline 14 refers to “charge negotiation” as an agreement to plead guilty in return for some benefit from the prosecutor, such as some charges being 10 11

That is, those that cannot be dealt with summarily in the Magistrates Court. Justices Act 1886 (Qld) s 43; QCC, s 567(1). See also Chapter 6.

12 13

See Chapter 6 [6.150]. Maxwell v The Queen (1995) 184 CLR 501 at 513-514 per Dawson and McHugh JJ, referring to R v Brown (1989) 44 A Crim R 385, where it was held that the prosecutor’s decision to proceed on a lesser charge is entirely a matter of prosecutorial discretion and that, while the court has an inherent power to prevent an abuse of process, it would only be an extreme case that would justify intervention.

14

See Chapter 4. [7.30] 149

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dropped or a lesser offence being charged despite some evidence to support a more serious charge. The guideline also indicates circumstances where charge bargaining may be appropriate – for example, where evidence becomes available that will reduce the strength of the prosecution case, or where the accused offers to plead guilty to a specific charge on an indictment and/or to give evidence against a co-offender.15 Guideline 17 provides: The public interest is in the conviction of the guilty. The most efficient conviction is a plea of guilty. Early notice of the plea of guilty will maximise the benefits for the victim and the community. Early negotiations (within this guideline) are therefore encouraged. Negotiations may result in a reduction of the level or the number of charges. This is a legitimate and important part of the criminal justice system throughout Australia. The purpose is to secure a just result.

The ODPP’s Director’s Guidelines also stress that if the accused maintain his or her innocence the bargaining process cannot include an agreement to accept a guilty plea, and that the “bargain” must be appropriate in light of the nature of the accused’s criminal conduct.16 Further, any charge bargaining must involve consultation with victims, their families and the investigating police officer.17

PLEADING GUILTY AND CHANGING PLEAS [7.40] Regardless of the court the matter proceeds in, the procedure in respect of a trial is that the charge or charges are read out to the accused and they will be asked to enter a plea (see Chapter 8).18 When matters are dealt with summarily (see Chapter 5) in the Magistrates Court, it is common practice for the charges to be “taken as read” (meaning the charges are not read out by the magistrate) and for the legal representative to enter a plea of guilty on behalf of the accused. Where indictable offences are dealt with summarily, each offence must be read and the defendant asked at the end of each reading how he or she pleas to that particular offence.19 An accused may choose to enter a plea during or at the end of the committal, but is under no obligation to do so: Justices Act 1886 (Qld), s 104(2)(b).20 If the 15

ODPP, Director’s Guidelines, guideline 10(iii).

16

ODPP, Director’s Guidelines, guidelines 17 (i) and (ii). Note also that the ODPP must keep a written record of any charge negotiations: ODPP guideline 17(iv); and see also GAS and SJK v The Queen (1994) 217 CLR 198, discussed at [7.100], which supplements ODPP guideline 17. ODPP, Director’s Guidelines, guideline 17(vi). For non-indictable offences, see JA(Qld), s 145; for charges dealt with on indictment, see QCC, ss 598 and 600. For pleas apart from guilty or not guilty, see QCC, ss 602-603. Note also that if no plea is made, ie, the accused “stands mute”, then the court may order a plea of not guilty to be entered and a trial must take place: QCC, s 601. Note further that a plea of not guilty may be changed to a guilty plea at any time during the trial: QCC, s 631A. This course might be adopted where the prosecution evidence is unfolding a strong case against the accused and a guilty finding is inevitable, and the defence perceives it is best to plead in anticipation that some reduction in sentence might be given for the albeit late plea. Brown v QPS [2011] QDC 301 at [33]. See R v Logan [2009] QDC 237 where DCJ Durward SC commented on the necessity for a plea of guilty at the conclusion of a committal hearing to be made by the accused personally, rather than through their legal representative, unless special circumstances exist QCC, s 552I(3); See also Pitt v Queensland Police Service [2012] QDC 378.

17 18

19 20

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accused pleads guilty they will then be convicted: JA(Qld), s 145(2); QCC, ss 598 and 600.21 Pleading guilty is an admission of the elements of the offence, but it does not amount to a conviction – there is no conviction until the court accepts the plea amounting to a determination of guilt.22 The court accepts the plea when the allocutus is administered (QCC, s 648).23

May a guilty plea be withdrawn or refused? Withdrawal of plea by an accused [7.50] A guilty plea can be withdrawn with the court’s leave.24 Where the order is refused, the appellant bears the onus of proof to persuade the appellate court to set aside a conviction based on a guilty plea.25 Only where it is established that there is a “strong case and exceptional circumstances” will a guilty plea be set aside.26 In R v Mundraby,27 the Court of Appeal dismissed an appeal against the refusal of an application to withdraw a guilty plea as the appellant failed to satisfy the court that a miscarriage of justice would occur as a consequence of the refusal.28 Mundraby pleaded guilty to a charge of grievous bodily harm, which resulted from an argument during which he bit off the victim’s finger. After the plea was entered, the allocutus29 was administered and Mundraby’s sentencing was adjourned to a later date. McPherson JA considered there was no suggestion that he was motivated to plead guilty due to fraud, compulsion, threats or other impropriety.30 All members of the court emphasised the High Court’s statement in Meissner: A court will act on a plea of guilty when it is entered in open court by a person who is of full age and apparently of sound mind and understanding, provided the plea is entered in exercise of a free choice in the interests of the person entering the plea. There is no miscarriage of justice if a court does act on such a plea, even if the person entering it is not in truth guilty of the offence.31

To have a plea of guilty withdrawn, an applicant must show that a miscarriage of justice has occurred or will occur if leave is refused.32 While the list of

21 22 23 24

If a guilty plea is entered at committal, the accused will be convicted and the matter committed to a higher court for sentencing: JA(Qld), s 113. Maxwell v The Queen (1995) 184 CLR 501 at 508 per Dawson and McHugh JJ, and at 531 per Gaudron and Gummow JJ. R v Verrall [2013] 1 Qd R 587 at [3]-[5]. See QCC, ss 648, 629(1). Maxwell v The Queen (1995) 184 CLR 501 at 509-510 and 522 per McHugh and Dawson JJ; R v Mundraby [2004] QCA 493 at [11] per McPherson JA.

25 26 27

R v Wade [2012] 2 Qd R 31 at [42]. Borsa v R [2003] WASCA 254 at [20]; R v Carkeet [2009] 1 Qd R 190. [2004] QCA 493 per McPherson, Jerrard JJA and MacKenzie J.

28

R v Mundraby [2004] QCA 493 at [11] per McPherson JA – the plea was not attributable to a consciousness of guilt; referring to R v Boag (1994) 73 A Crim R 35 at 36-37. For the meaning of “allocutus”, see Chapter 11 at [11.40]. [2004] QCA 493 at [12] per McPherson JA. Meissner v The Queen (1995) 184 CLR 132 at 141 per Brennan, Toohey and McHugh JJ. R v Mundraby [2004] QCA 493 at [11].

29 30 31 32

[7.50] 151

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circumstances cannot be circumscribed, Muire JA in R v Wade33 identifies three common circumstances where the refusal to withdraw a guilty plea may result in a miscarriage of justice:34 • The accused did not understand the nature of the offence or it was not the accused’s intention to admit guilt; • The evidence before the court did not support a conviction for the relevant offence; and • The guilty plea was not free and voluntary. Central to any circumstance that gives rise to a miscarriage of justice in this context is that the guilty plea cannot be “attributable to a genuine consciousness of guilt.”35 Even if the plea was not attributable to a genuine consciousness of guilt, there is no miscarriage of justice if the evidence of guilt is overwhelming. Therefore, for a guilty plea to be withdrawn and the conviction set aside, the appellant must show that there is an arguable case or triable issue which could result in an acquittal or a conviction for a less serious offence.36 For example, in R v Nerbas,37 at trial the applicant had initially contested four charges involving the importation and possession of border controlled drugs. The prosecution’s case was, in part, based on incriminating internet searches undertaken on the applicant’s computer at a time when only the applicant had access to the computer. The defence argued that the computer’s clock may have been inaccurate and therefore another person with access to the computer conducted the searches. To the surprise of the defence, the prosecution called evidence from a computer expert who testified as to the accuracy of the computer’s time and date settings. During an adjournment, the appellant’s lawyers informed him that they could no longer act for him if he changed his instructions and conceded that he had undertaken the searches. Subsequently, on the applicant’s instructions, a guilty plea to all charges was entered. The Court of Appeal found that the unjustified threat by his lawyers to withdraw, and thereby leave the appellant without legal representation was, at least in part, likely to have induced the appellant’s guilty plea. The Court of Appeal went on to state that, although the prosecution had a strong case and the applicant’s recent explanation of the facts were not compelling, the applicant was entitled to a trial free of his lawyer’s inducement to guilty plea. Accordingly, the Court of Appeal upheld the appeal to have the guilty plea withdrawn.38

33 34

35 36 37 38

[2012] 2 Qd R 31. [2012] 2 Qd R 31 at [51]. See also Thammaruknon v Queensland Police Service [2016] QDC 31 at [64] where Morzone DCJ identifies seven circumstances where a miscarriage of justice may arise from a guilty plea. R v Mundraby [2004] QCA 493 at [11]; R v Nerbas [2012] 1 Qd R 362 at [13]. [2012] 2 Qd R 31 at [51]. [2012] 1 Qd R 362. See R v Williamson (2012) 224 A Crim R 160 where, due to “grossly inadequate legal advice”, the appellant did not understand the nature of the offence or the proceeding of the court. Consequently, her guilty plea to one count of torture was set aside by the Court of Appeal. See also R v Wade [2012] 2 Qd R 31 where the Court of Appeal held the appellant’s guilty plea to murder had not been an exercise of free choice. The appellant had intended to contest

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From a practical point of view, Howen39 addresses some of the difficulties facing a legal practitioner whose client informs them that they wish to enter a guilty plea whilst at the same time asserting that they are innocent of the charge or charges. As Howen points out, there are cases where it is clear the actual conduct elements of the offence occurred – for example, on an assault charge – but an operative defence, such as provocation or self-defence, blurs the simplicity of the distinction between “I did it” and “I didn’t do it”. Howen emphasises the importance of providing clear, written advice to a client who will plead guilty. The critical factor is to ensure that the accused makes an informed decision of their own free will, with a genuine consciousness of guilt, as any later attempt to have the plea withdrawn will involve the court examining the circumstances surrounding the decision to plead guilty. The Queensland Court of Appeal, in R v Allison,40 emphasised that an accused who enters a plea must do so understanding and intending that they are admitting guilt of the offence. The court noted: [E]xperience shows that some people charged with serious offences (and particularly offences of incest or indecently dealing with children) wish both to maintain to their lawyers that they are actually innocent, and also to plead guilty.41

In circumstances where an accused is effectively stating “I’m not guilty, but I’ll plead guilty”, it is imperative that defence counsel has written instructions indicating that the accused wishes to plead guilty and understands that a plea constitutes a full admission of guilt.42 Allison appealed his conviction for an offence of assault causing bodily harm on the basis that he was not given timely information about what he considered an adequate incentive to plead guilty. Allison received a sentence of 18 months’ imprisonment.43 At all times he had maintained his innocence, but he claimed that it was only while the jury was considering its verdict that he became aware that the prosecutor had told defence counsel, just before the trial began, that if Allison pleaded guilty, he would not press for a custodial sentence. There was no evidence that Allison had given any instructions to his counsel or to his solicitor to plead guilty. Allison’s trial counsel gave evidence that contradicted that given by Allison. The trial counsel testified that he had discussed the late offer by the prosecution with Allison, and that that he had told Allison that he could not guarantee that the judge would not impose a custodial sentence. Counsel also swore that Allison’s attitude was that the prosecution’s offer was not 100% sure, and that he maintained his innocence. The appeal against conviction was dismissed, McMurdo P noting that “signed

39 40 41

42 43

his murder charge however, on entering the courtroom; he had a “panic attack and/or pronounced anxiety” and consequently entered a guilty plea to escape the courtroom. A Howen, “How to Withdraw a Plea of Guilty – Lessons Old and New” (2005) 43(3) Law Society Journal 42. (2003) 138 A Crim R 378; [2003] QCA 125. R v Allison (2003) 138 A Crim R 378; [2003] QCA 125 at [26] per Jerrard JA; see also R v MacKenzie [2002] 1 Qd R 410; [2000] QCA 324; Hon Justice R Mazza, Ethical Issues for Defence Counsel on a Plea of Guilty (2016 March) Brief 14 at 17. R v Allison (2003) 138 A Crim R 378; [2003] QCA 125 at [26] per Jerrard JA. The sentence also took into account other less serious offences: R v Allison (2003) 138 A Crim R 378 at 379; [2003] QCA 125 at [5] per Jerrard JA. [7.50] 153

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instructions properly witnessed by the barrister’s instructing clerk would almost certainly have avoided this whole unfortunate exercise”.44

Withdrawal of acceptance of plea by prosecution [7.60] Where the prosecution has accepted a guilty plea to a lesser charge, it may, with the leave of the court, withdraw that acceptance prior to sentencing: Maxwell v The Queen.45 There are two qualifications to this proposition: (a)

there may be circumstances affecting the prospects of a fair trial on the more serious charge – for example if witnesses are no longer available; and

(b)

broader considerations of fairness – for example, where the accused made admissions which would not have been made but for the plea agreement.46

In DPP v Wentworth,47 the prosecution accepted a guilty plea to two charges on an indictment containing numerous charges, entered a nolle prosequi48 on the remaining charges, and then presented a further indictment, charging Wentworth with two of the original offences. Wentworth successfully applied for a stay of the later indictment. The ODPP appealed to the Court of Appeal against the stay, but the appeal was dismissed. The decision to further prosecute Wentworth arose due to a misunderstanding between two prosecutors: before the agreement was made to plead to two counts, a different prosecutor had offered a deal that involved Wentworth pleading to five counts – that offer had not been accepted by Wentworth. The court noted that the process where the ODPP accepts pleas to some offences and does not proceed on others is plainly in the public interest and that process would be put at risk if the ODPP could rescind its decision on the basis of differing opinions between prosecutors.49

May the judge refuse to accept a guilty plea? [7.70] When a guilty plea is made, the court is not obliged to accept it unless it is voluntary – that is, made in the “exercise of a free choice in the interests of the person entering the plea”.50 Therefore, a guilty plea may be refused where the court considers it is a product of intimidation, fear, improper inducement or harassment.51 If it appears to the judge that a plea of guilty is not “genuine”, the judge must either obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered.52

44 45 46 47 48 49

R v Allison (2003) 138 A Crim R 378 at 379; [2003] QCA 125 at [2]. (1995) 184 CLR 501 at 515. Maxwell v The Queen (1995) 184 CLR 501 at 534 per Gaudron and Gummow JJ. [1996] QCA 333. Meaning “unwilling to proceed” – ie, where the prosecution elects not to proceed on a particular matter: QCC, s 563. See also Chapter 8 at [8.200]. DPP v Wentworth [1996] QCA 333 per Fitzgerald P, Davies JA and Thomas J.

50 51

Meissner v The Queen (1995) 184 CLR 132 at 144. Maxwell v The Queen (1995) 184 CLR 401 at 511 per McHugh and Dawson JJ; and Meissner v The Queen (1995) 184 CLR 132.

52

Maxwell v The Queen (1995) 184 CLR 401 at 511 per McHugh and Dawson JJ.

154 [7.60]

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WHY PLEAD GUILTY? [7.80] People plead guilty for a number of reasons, some pragmatic, others personal. For example, an accused may simply wish to get the matter over with, or they may wish to protect someone, or take the blame for something they have not actually done.53 In the 1970s, English researchers Baldwin and McConville54 interviewed accused persons who changed their plea to guilty at a late stage. They found that about 37% maintained their innocence of all or some of the charges despite their guilty plea. The interviewees consistently said that they experienced considerable pressure to plead after some informal negotiations had occurred. The main reasons for pleading guilty were: • a sense of hopelessness about trying to rebut police evidence and the severity of sentence if they did try to rebut the evidence and failed; • the anxiety and weariness caused by the case dragging on, particularly if the accused was held in custody; and • the attraction of the “bargain” offered. They also pointed to pressure by (defence) counsel. Baldwin and McConville concluded that anyone “may face a set of circumstances where the only reasonable alternative open to them is in fact to plead guilty, despite being innocent of the offence”.55 Concerns about charge and plea bargaining have been expressed by a number of sources. Findlay, for example, points out that the willingness of police and prosecutors to abandon some charges where the accused agrees to plead guilty to other charges brings into questionable focus the veracity (or otherwise) of the initial charging process.56 If charges are dropped because during preparation for trial it becomes apparent that the available evidence will not sustain a conviction, there can be no basis to bargain – the charges should simply be dropped. The question then becomes whether “overcharging” provides scope for bargaining in circumstances where sufficient evidence would not – and could not – have been led. A further criticism identified by Findlay et al57 is the use of plea bargains to

53 54

55

56 57

See, eg, A Howen, “How to Withdraw a Plea of Guilty – Lessons Old and New” (2005) 43(3) Law Society Journal 42. J Baldwin and M McConville, Negotiated Justice (Martin Robertson, London, 1977) pp 59-82: for a summary, see D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) pp 337-340. See D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) p 338, referring to J Baldwin and M McConville, Negotiated Justice (Martin Robertson, London, 1977) pp 65-66; see also P Tague, “Guilty Pleas or Trials: Which does the Barrister Refer” (2008) 32 Melbourne University Law Review 242. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) p 140. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) p 140. See, also D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) pp 345-346. [7.80] 155

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“close the files”. Offering to an accused charged with several offences a deal to plead guilty to one offence, and at the same time plead to outstanding similar, but unrelated, charges, enables a single sentencing hearing for a number of offences. This is a practice Findlay describes as a hidden agenda, which can subvert the principle of justice.58 Bargains resulting in clearing the books on property offences are particularly attractive to police as they comprise a category of offences with a very low clear-up rate.

Discount for an early plea [7.90] The most obvious reason for pleading guilty is that the sentencing legislation requires the court to take into account a guilty plea at sentencing and enables the court to reduce the sentence it would have imposed had the accused pleaded not guilty.59 While Chapters 11 and 12 deal with sentencing in detail, some consideration is given here to the discount afforded to a plea of guilty for the purposes of the present discussion. The timing of the guilty plea will be a key factor to be taken into account for a reduced sentence.60 Traditionally, a guilty plea has been regarded as an expression of remorse by the accused, thereby providing a rationale for sentence reduction. However, it is abundantly clear that a key “benefactor” of a guilty plea is the criminal justice system itself – a guilty plea eliminates (or at least reduces) the costs and time associated with a full trial. In Cameron v The Queen,61 the High Court stressed that “the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice”.62 Cameron was arrested at Perth airport with what was thought to be 3, 4 Methylenedioxymethamphetamine-n (commonly known as “ecstasy”) in his bag. He denied any knowledge of the drug. Cameron was charged with possessing ecstasy but, when analysed, it was in fact found to be Methylamphetamine (commonly known as “speed”). The defence lawyer wrote to the prosecution indicating that Cameron would plead guilty to an amended indictment alleging possession of speed. At the sentencing hearing, Cameron’s lawyer submitted that he should be sentenced on the basis that he pleaded guilty at the earliest possible time. The sentencing judge imposed a prison term of 10 years, reduced to nine years on the basis of the plea. Cameron 58

59 60

61 62

M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) pp 111-113. See also the discussion on joinder of charges at [6.180]; and QCC, s 568, which specifically allows joinder for property offences; and D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) pp 345-346. Penalties and Sentences Act 1992 (Qld) (PSA(Qld)) s 13. PSA(Qld), s 13(2); see also Cameron v The Queen (2002) 209 CLR 339; and R v Stuck [2008] QCA 165. The court is required to state that it took the plea into account; if, notwithstanding the plea, the court does not reduce the sentence, it must also record reasons for the refusal: PSA(Qld), s 13(3) and (4). (2002) 209 CLR 339. Cameron v The Queen (2002) 209 CLR 339 at 346 per Gaudron, Gummow and Callinan JJ. For a discussion of sentencing, see Chapter 11, Sentencing; see also D Field, “Plead Guilty Early and Convincingly to Avoid Disappointment” (2002) 14(2) Bond Law Review 251; and C W Pincus, “Cameron v R: Case and Comment” (2002) 26 Criminal Law Journal 189.

156 [7.90]

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appealed to the Court of Criminal Appeal, arguing that a greater reduction should have been made. The prosecution counter-argued that he could have pleaded sooner, and his appeal was dismissed. His further appeal to the High Court was successful – the court accepted that he could not be expected to plead before the initial charge was amended to reflect the correct drug.63 Field notes that systemic delays caused by under-funding in both legal aid and prosecution offices often frustrate the efforts of parties to negotiate charges, and therefore plea indications, in their final form. He asserts that delays in pleading guilty are not simply due to an accused’s refusal to “face reality”.64 Further, the research of Mack and Anleu indicates that the main obstacle to early and effective plea discussions is the delay in the case actually reaching the legal representatives who can realistically evaluate the case.65 The causes of delay include overcharging by police, lack of legal aid resources, inexperienced lawyers handling the matter until the proceedings are advanced and the absence of the ODPP early on in the proceedings (especially in the Magistrates Court). They argue that any reform of pre-trial procedures must acknowledge and properly support “plea discussions” by addressing each of those factors which contribute to delay.66 They also argue in favour of judicial indication of the likely sentence in the event of a guilty plea.

SENTENCING INDICATION BARGAINING [7.100] While charge bargaining is a well-accepted practice, and virtually immune from judicial review, “sentencing bargains” – that is, indications of a proposed sentence from the judge or magistrate – are not generally permitted in Queensland.67 However in 2010, Queensland’s Chief Magistrate issued Practice Procedure No 9 which encourages the prosecution and defence to engage in case conferencing.68 Case conferencing formalises negotiations between the prosecution

63 64 65

66

67

68

Cameron v The Queen (2002) 209 CLR 339; see also R v Houghton (2002) 129 A Crim R 313; [2002] QCA 159 at 315 (A Crim R) per Fryberg J. D Field, “Plead Guilty Early and Convincingly to Avoid Disappointment” (2002) 14(2) Bond Law Review 251 at 254. See also J Payne, Criminal Trial Delays in Australia: Trial Listing Outcomes, Australian Institute of Criminology, Research and Policy Series No 74 (2007) pp 46-50: http://www.aic.gov.au/p ublications/current%20series/rpp/61-80/rpp74.aspx. Viewed 12/4/2017. For an in-depth discussion, see generally K Mack and S Anleu, Pleading Guilty: Issues and Practices (AIJA, Melbourne, 1995); and K Mack and S Anleu, “Reform of Pre-Trial Criminal Procedure: Guilty Pleas” (1998) 22 Criminal Law Journal 263. R v McQuire and Porter (2000) 110 A Crim R 348; see also R v Marshall [1981] VR 725. Brown notes the position in NSW, where a Sentencing Indication Pilot Scheme was introduced but subsequently disbanded, and the recent recommendation by the ALRC to introduce a sentencing indication scheme: see ALRC, Sentencing of Federal Offenders, Discussion Paper No 70 (2005): http://www.alrc.gov.au/publications/publist/dp.htm; see also D Brown, D Farrier, L McNamara, A Steel, M Grewcock, J Quilter and M Schwartz Criminal Laws: Material and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, Sydney, 2015) pp 346-348; and Sentencing Advisory Council (Vic), Sentencing Indication and Specified Sentencing Discounts, Final Report (2007): https://www.sentencingcouncil.vic.gov. au/sites/default/files/publicationdocuments/Sentence%20Indication%20and%20Specified%20 Sentence%20Discounts%20Final%20Report.pdf. Viewed 12/04/2017. QCC, s 706A. [7.100] 157

Criminal Process in Queensland

and defence to address matters in dispute which may result in a “substitution or withdrawal of charges and/or the agreement as to a factual basis of sentence and submissions on the sentence range.”69 Case conferencing only applies to matters that are to be heard summarily and it does not apply to Commonwealth offences, matters that will be brought before the Children’s Court or a specialist court.70 At sentencing, both the prosecution and defence make submissions to the court on an appropriate range of sentencing and it may well be the case that they agree on an appropriate sentence. However, it is clear that the primary responsibility for imposing a sentence lies with the judge or magistrate.71 Sentencing is a matter for the exercise of the judge’s discretion, guided by various rules and principles.72 As the likely sentence, which is unpredictable notwithstanding sentencing rules and principles and submissions based on “comparable cases”, is a critical factor in making the decision whether to plead guilty, some authorities consider that there is a need for proper judicial sentence indication.73 Mack and Anleu note that, in essence, all “plea discussions” are really about sentence.74 Given the imbalance of power between the state as prosecutor and the accused, it is arguable that permitting judges to indicate sentence would address that imbalance by providing more certainty, thus enabling the accused to be better informed about the consequences of a guilty plea.75 The particularly repugnant aspect of judicial indication of a likely sentence is where counsel meet the judge in their chambers in order to get an idea of the sentence that would be imposed on a plea of guilty. That practice is objectionable as it occurs in private, away from the “public” arena of the court, and undermines public confidence in the administration of justice. Further criticisms are made on the basis that it is inappropriate to obtain an indication of sentence in a situation where the judge does not have all the material relevant to sentencing before them.76 Mack and Anleu underline the importance of the availability of adequate information at the indication stage, adding that if the accused does decide to plead, they should be given the opportunity to provide further evidence in

69

Practice Direction No 9 of 2010.

70 71 72 73

Practice Direction No 9 of 2010. Malvaso v The Queen (1989) 168 CLR 227. For a detailed examination of sentencing, see Chapters 11 and 12. See, eg, K Mack and S Anleu, Pleading Guilty: Issues and Practices (AIJA, Melbourne, 1995) pp 149-160; P Sallman, Report on Criminal Trials (AIJA, Melbourne, 1985); ALRC, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (June 2006) Part D – Procedural and Evidential Issues in Sentencing – 15: Sentence Indication Scheme. K Mack and S Anleu, “Guilty Pleas: Discussions and Agreements” (1996) 6 Journal of Judicial Administration 8 at 17-18, citing P Sallman, Report on Criminal Trials (AIJA, Melbourne, 1985) p 156; and J B Bishop, Prosecution Without Trial (Butterworths, Sydney, 1989) p 183. See also K Mack and S Anleu, Pleading Guilty: Issues and Practices (AIJA, Melbourne, 1995) p 150. K Mack and S Anleu, Pleading Guilty: Issues and Practices (AIJA, Melbourne, 1995) p 150, referring to G Hampel, “Plea Bargaining – A Judge’s Involvement” (1985) 60 Law Institute Journal 1304 at 1305. See, eg, P Gerber, When is Plea Bargaining Justified? (2003) 3(1) Queensland University of Technology Law Journal 210; K Mack and S Anleu, Reform of Pre-Trial Criminal Procedure: Guilty Pleas (1998) 22 Criminal Law Journal 263 at 272. See also [7.50]; and R v McQuire and Porter (2000) 110 A Crim R 348.

74

75

76

158 [7.100]

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mitigation of sentence.77 They also stress that, in order to alleviate any perception that the judge may be encouraging a plea, the court should emphasise that no view is being expressed on whether the accused should plead guilty or proceed to trial. Ultimately, Mack and Anleu consider that formal and open judicial sentence indication will encourage early and proper pleas.78 In GAS and SJK v The Queen79 the two juvenile accused were originally charged with the murder of an elderly woman at her home. As a result of plea negotiations, the prosecution presented a new indictment for manslaughter on the agreement that both would plead guilty to that charge and that each would be sentenced on the basis of being an aider or abettor, rather than as a principal offender. GAS and SJK were each sentenced to six years’ imprisonment. The ODPP successfully appealed against the sentences on the ground that they were manifestly inadequate and the sentences were increased to nine years’ imprisonment. GAS and SJK appealed to the High Court, contending that because there was a plea agreement, the Court of Appeal should not have heard the ODPP’s appeal at all. The appeal was dismissed; the High Court held that there was no agreement as to sentencing and that, in any event, “it was not within the capacity of the parties to agree that each accused would receive a lesser sentence than a principal”.80 In a unanimous joint judgment, the court articulated a set of principles in relation to plea agreements, which, in brief are: 1.

The prosecutor, alone, has responsibility for deciding the charges.81

2.

The accused person, alone, must freely decide whether or not to plead guilty to the charge.

3.

The sentencing judge, alone, decides the sentence to be imposed.

4.

While there may be an understanding between the prosecution and the defence on the evidence that will be led or any admissions that will be made, the understanding will not bind the judge. The conduct of counsel cannot circumscribe the judge’s responsibility to apply the relevant law.82

77

The research, involving interviews with judges, police prosecutors, ODPP staff and defence solicitors and barristers, found that the judge in fact did have sufficient information on which to base an indication. However, in terms of any time savings (and therefore cost savings), later research made it difficult to conclude that sentence indications promote efficiency since some accused persons may have opted for a sentence indication before pleading guilty when, even without the availability of the scheme, they may have pleaded guilty at a relatively early stage anyway: K Mack and S Anleu, Reform of Pre-Trial Criminal Procedure: Guilty Pleas (1998) 22 Criminal Law Journal 263 at 272, citing D Weatherburn, E Matka and B Lind, Sentence Indication Scheme (NSW Bureau of Crime Statistics, Sydney, 1995); and D Spears, P Poletti and I MacKinnell, Sentence Indications Hearings Pilot Scheme (Judicial Commission of New South Wales, 1994). K Mack and S Anleu, Reform of Pre-Trial Criminal Procedure: Guilty Pleas (1998) 22 Criminal Law Journal 263 at 272. (2004) 217 CLR 198. For a comprehensive analysis of the decision, see K Warner, “Sentencing Review 2003-2004: Part II, Sentencing Aiders and Abettors and Plea Bargaining Agreements” (2005) 29 Criminal Law Journal 46.

78 79

80 81 82

GAS and SJK v The Queen (2004) 217 CLR 198 at 212. See also GAS and SJK v The Queen (2004) 217 CLR 198 at 210-211; Barton v The Queen (1980) 147 CLR 75; and Maxwell v The Queen (1995) 184 CLR 501. See also R v Power [2002] QCA 497. [7.100] 159

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General observations made by the High Court in GAS and SJK v The Queen83 also highlighted the necessity of recording any agreement made between the parties on matters of fact to be put to the court concerning the question of sentence, and the desirability of recording agreements of “every substantial matter … which may later be said to have been relevant to the decision of an accused person to plead guilty”84 in order to reduce debate about the basis for the accused’s choice to plead guilty.

PLEA AND CHARGE BARGAINING: AN ANALYSIS [7.110] Some of the key issues concerning charge and plea bargaining have already been discussed in this chapter to demonstrate how the criminal justice system relies on a guilty plea. In GAS and SJK v The Queen,85 the High Court re-emphasised that it is for the accused and the accused alone to choose whether or not to plead guilty. While the concept of free and informed choice is echoed in the ODPP guidelines and the literature, it is also clear that many accused persons experience pressure from various sources to plead guilty. Further, Mack and Anleu86 challenge the notion that an accused who plea bargains can be universally considered knowledgeable, robust and capable of making a free and rational choice to plead guilty. They contrast the social characteristics of persons who actually come before the courts having negotiated a plea – that is, young, poor, Indigenous, uneducated or under-educated, and unemployed – with their legally constructed identity of robust, informed people with free choice. Their research indicated that, in fact, those most likely to plead guilty were Indigenous, inarticulate accused who would not present well in court, men rather than women, and those who ran a high risk of getting a prison term – all of whom are likely to be particularly vulnerable to the offer of a discounted sentence for a guilty plea. Mack and Anleu also found that other relevant factors leading to guilty pleas were limited financial resources, limited legal aid resources, and delays in the criminal justice system.87 All of these structural and individual factors can and do contribute to the high percentage of guilty pleas, and highlight the difficulties inherent in the law’s requirement for the guilty plea to be a voluntary product of free choice. In offering a range of possible reform options, Mack and Anleu acknowledge that abolition of “agreed guilty pleas is politically untenable”.88 They suggest an alternative, which would provide greater moral accountability for both lawyers

83 84

(2004) 217 CLR 198. GAS and SJK v The Queen (2004) 217 CLR 198 at 214.

85

(2004) 217 CLR 198.

86

K Mack and S Anleu, “Choice, Consent and Autonomy in a Guilty Plea System” (2000) 7(1) Law in Context 75. K Mack and S Anleu, “Choice, Consent and Autonomy in a Guilty Plea System” (2000) 7(1) Law in Context 75 at 81-83. For references to other jurisdictions where neither guilty plea nor plea bargains are available on the premise that an accused is presumed innocent until proven guilty, see K Mack and S Anleu, “Choice, Consent and Autonomy in a Guilty Plea System” (2000) 7(1) Law in Context 75 at 87.

87 88

160 [7.110]

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and sentencing judges – that is, that a formal statement be provided to the court setting out the reasons for the plea agreement. They also argue that accused persons need to be more meaningful participants in a new enlightened negotiation process that acknowledges the reality of the individual accused’s circumstances and which, rather than treating them like an artificial construct, encourages defence lawyers to conduct themselves in a “truly ethical” manner.89 In summary, a number of advantages and disadvantages can be associated with the law’s current system of plea and charge bargaining: Advantages • certainty of results; • reduction in costs to the accused – both financial and penal; and • reduction in costs to the criminal justice system. Disadvantages • accused persons are often under enormous pressure to plead for the wrong reasons; • accused persons who cannot afford legal representation, or who are not eligible for legal aid, cannot engage in the process; • the risk that an accused may misunderstand an agreement; • bargaining which occurs in private reduces confidence in the criminal justice system for victims and the public; and • courts are not properly appraised of the real facts in a case.

DOUBLE JEOPARDY [7.120] The essence of the classic rule prohibiting repeated prosecutions for the same offence has been described as follows: [T]he underlying idea … is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.90

Recent reforms to the law in Australia and elsewhere are chipping away at one of the few fundamental rights of an accused person not to be tried twice for the same offence, or essentially the same offence – that is, the rule against double jeopardy. There are currently four different versions of the rule:

89

K Mack and S Anleu, “Choice, Consent and Autonomy in a Guilty Plea System” (2000) 7(1) Law in Context 75 at 85-92; see also J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (Butterworths, Sydney, 1995) p 166. Mack and Anleu also advocate the abolition of the sentence discount for a guilty plea, arguing that the discount is premised on an artificial construction of the accused as a rational being with complete freedom of choice: see Mack and Anleu, at 90.

90

Green v United States 355 US 185 (1957) at 187-188. [7.120] 161

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• A person cannot be tried for an offence of which they have earlier been convicted or acquitted – that is, “autrefois convict” or “autrefois acquit”: QCC, s 17; • An earlier acquittal cannot be undermined or controverted in later proceedings, even for a different offence; • Where a judge excludes confessional evidence at a trial, that evidence cannot be relied on at a later trial for a different offence; and • A person cannot be punished twice for the same criminal act: QCC, s 16.

Alternative verdicts [7.130] The operation of the principle that a person cannot be tried for an offence of which they have earlier been convicted or acquitted takes place within the context of the scheme of “alternative verdicts” provided in the QCC. Where someone is charged with a particular indictable offence, common sense would dictate that they can only be found guilty – or not guilty – of the offence specified in the indictment. However, many of the offences that appear in the QCC overlap – for example, where a person is charged with murder, the prosecution has to prove that the accused unlawfully killed the victim – that is, caused the victim’s death – and at the time of doing the act which caused death, either intended to kill, or to do grievous bodily harm to the victim: QCC, ss 291, 293 and 300. However, the prosecution may not be able to prove the intention element beyond reasonable doubt and so the accused cannot be found guilty of murder. Assuming that the prosecution has proved that the accused indeed caused the death of the victim, and no relevant defences are available,91 the accused can be found guilty of the lesser offence of manslaughter: QCC, s 310. There is no issue of “double jeopardy” here – the accused is not being tried twice for the same offence, as the prosecution has been able to prove by the evidence the elements of a complete offence, which is open as an alternative verdict on the indictment for murder: QCC, s 576. The outcome would be similar in any case involving one of the alternative verdict provisions found in QCC, ss 575-589. Some examples of offences where one or more alternative verdict is available appear in Diagram 7.1. Diagram 7.1: Alternative verdicts QCC offence s 575 Offence involving circumstance/s of aggravation

s 576 Murder: s 300 s 578(1) Rape: s 349

91

Alternative verdict Offence with or without circumstance/s of aggravation Example: assault occasioning bodily harm (s 339), the bodily harm cannot be proved – an alternative verdict is available on common assault: s 335. Manslaughter: s 310 Unlawful sodomy: s 208 Attempted sodomy: s 209

For example, QCC, ss 271 and 272 – self-defence; and s 23(1)(b) – an accidental event.

162 [7.130]

Pleas and Double Jeopardy

QCC offence

s 579 An offence involving a specific intention to cause the result

s 583 Any offence

CH 7

Alternative verdict Indecent treatment of a child under 16: s 210(1) Carnal knowledge of a child under 16: s 215 Abuse of an intellectually impaired person: s 216 Procuring young person for carnal knowledge: s 217(1) Procuring sexual acts by coercion: s 218 Incest: s 222 Sexual assault: s 352 Example: on the rape charge, the element of lack of consent cannot be proved but the sexual act occurred with a person under 16 – an alternative verdict of carnal knowledge of a child under 16 (s 215) can be returned. An offence with the specific result but where intention is not an element Example: on a charge of grievous bodily harm with the intention of doing grievous bodily harm (s 317) and the intention cannot be proved – an alternative verdict of doing grievous bodily harm (s 320) can be returned. Attempting to commit the offence

Any issue in regard to an alternative verdict can be raised by the prosecution, the defence or the judge and, if counsel does not raise it, the judge is obliged to do so where it fairly arises.92 In R v Rehavi,93 the accused had been charged with grievous bodily harm with intention to do grievous bodily harm (QCC, s 317), an offence which is more serious than simply “grievous bodily harm”: QCC, s 320. As Diagram 7.1 indicates, an alternative verdict for QCC, 317 is QCC, s 320. The charge against Rehavi arose from an incident in a Gold Coast nightclub – the victim approached the bar with an empty glass to order more drinks. As the victim reached around Rehavi to put the glass down, he was apparently pushed and hit in the face with the empty glass, which Rehavi had allegedly smashed on the bar. There was some inconsistency in the evidence regarding whether Rehavi first broke the glass or whether it broke on impact with the victim’s face. The judge did not leave simply “grievous bodily harm” (QCC, s 320) to the jury and Rehavi was convicted of the more serious offence of grevious bodily harm with intent: QCC, s 317. 92 93

R v Rehavi (1998) 101 A Crim R 569 at 576; R v Willersdorf [2001] QCA 183 at [20]. (1998) 101 A Crim R 569. [7.130] 163

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Rehavi successfully appealed against his conviction on the basis the judge should have left basic “grievous bodily harm” to the jury even though counsel had agreed with the trial judge that the case would proceed as guilty on “intentional grievous bodily harm”, or nothing.94 The Court of Appeal was concerned that the jury did not want to acquit and so their verdict may have been compromised, and held that a jury should be permitted to return any verdict available on the evidence that was consistent with justice to the accused.95 However, in R v Willersdorf,96 the Court of Appeal emphasised that a judge does not always have to direct on an alternative verdict – it depends on the evidence in the particular case and the test is whether or not the alternative verdict fairly arises for consideration on the whole of the evidence.97 In R v Mead98 for example, the appellant was convicted of two counts of robbery based on his involvement in the prosecution of a common unlawful purpose (QCC, s 8). The Court of Appeal held that to convict the appellant of stealing, the prosecution would have been required to prove that the appellant was an aider, abetter, counsellor or procurer (QCC, s 7(b), (c) or (d)). Therefore, as the prosecution’s case was based on establishing s 8 secondary liability and not QCC, s 7, the trial judge correctly refused to leave stealing as an alternative verdict to an offence of robbery.99

Statutory defence [7.140] Ordinarily a plea of guilty or not guilty is made at the commencement of the trial.100 At common law, where someone is charged with an offence and they claim to have previously been either convicted or acquitted of that offence, they can enter a plea of “autrefois convict” or “autrefois acquit”. Effectively, the plea is a response to the fact that the accused cannot be put in jeopardy a second time for something that has been finally disposed of on a previous occasion. Section 17 of both the QCC provides a statutory defence,101 which largely reflects the common law concepts of “autrefois convict” and “autrefois acquit”. Additionally, in situations that technically do not fall within s 17, the court may still prevent the

94

98

That approach was taken because at two previous trials Rehavi was charged with simply “grievous bodily harm” – the first was aborted, the second resulted in a hung jury. At the beginning of the third trial, the prosecutor presented a new indictment, charging “intentional grievous bodily harm”. R v Rehavi (1998) 101 A Crim R 569 at 576; see also R v Chan [2001] 2 Qd R 662 at 664-665 per Pincus JA, and at 674 per Thomas J. [2001] QCA 183. R v Willersdorf [2001] QCA 183, where R v Rehavi was distinguished. The trial judge directed the jury only on s 411 of the QCC – aggravated robbery – and not on s 409 – basic robbery. In Willersdorf, the lesser offence did not arise in the circumstances, the evidence clearly pointed to aggravated robbery. See also R v Lenahan [2009] QCA 187. [2010] QCA 370.

99

[2010] QCA 370 at [22]-[24].

100 101

See generally, Chapter 8 on trial procedure. As a defence, it is up to the accused to prove on the balance of probabilities that they fall within the scope of the QCC and WACC, s 17: R v Viers [1983] 2 Qd R 1; see also Chapter 1.

95 96 97

164 [7.140]

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prosecution from going ahead on the grounds that it amounts to an abuse of process.102

Former conviction or acquittal [7.150] Section 17 of the QCC states: It is a defence to a charge of any offence to show that the accused person has already been tried, and convicted or acquitted upon an indictment on which the person might have been convicted of the offence with which the person is charged, or has already been acquitted upon indictment, or has already been convicted, of an offence of which the person might be convicted upon the indictment or complaint on which the person is charged (emphasis added).

The effect of QCC, s 17 is that, where a person has already been convicted or acquitted for the same offence, they cannot be tried for that offence again. Further, if the person has already been convicted or acquitted of an offence that was an alternative verdict to the one charged the first time, or is available as an alternative verdict on the newly charged offence, they cannot be tried on that charge a second time. Double jeopardy principles underlie the section – the person should not be put at risk a second time for something that has already been dealt with, or was open as an alternative verdict on the earlier occasion.103 The function of QCC, s 17 is to prevent a further prosecution on a less serious offence after a prosecution has failed on a more serious offence – such as pursuing a charge for manslaughter after an acquittal on murder. The provision also prevents a further prosecution on a more serious offence after obtaining a conviction for a less serious offence – for example, bringing a charge of murder after receiving a manslaughter conviction. It is a question of law for the judge to determine whether the person raising QCC, s 17 has previously been convicted or acquitted and falls within the provision. Clearly, the previous matter must be finalised. For example, if the prosecution filed a nolle prosequi on the charge on the first occasion, then there is no scope for the operation of the section. Where relevant, QCC, s 17 of the QCC applies in relation to a previous acquittal or conviction on indictment, but the provision refers only to a previous conviction on an indictment. Nevertheless, where someone has had a case dismissed against them, which was instituted on complaint in the Magistrates Court, an equivalent form of protection is available. Section 700 of the QCC enables an accused in that position to apply for a Certificate of Dismissal from a Magistrates Court, which operates as a bar to any further prosecution for the same offence.104 Clearly, many cases will not fall within the “double jeopardy” protection afforded by QCC, s 17 and the scheme of alternative verdicts. For example, there are cases, which strongly suggest double jeopardy but where s 17 does not apply.

102 103

104

See Chapter 9 for a discussion on abuse of process. See, eg, O’Halloran v O’Byrne [1974] WAR 45 at 47, where the accused had been charged with rape. The judge did not direct the jury on the alternative verdicts for rape, and the accused was convicted of rape. His appeal against conviction was successful and the conviction quashed. The prosecution then charged him with a less serious sexual offence arising from the same facts. An “autrefois acquit” argument succeeded as it had been open to the jury as a matter of law to convict on that lesser charge at the trial for rape. The issue of a certificate is discretionary and requires a hearing on the merits of the application. [7.150] 165

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In such cases, it may be possible to seek a stay of the proceedings, as the prosecution constitutes an abuse of process. Chapter 9 deals with fair trial doctrine and abuse of process and it is noted there that an abuse of process may occur for many reasons and, in exceptional cases, a permanent stay of proceedings may be granted.105 For the purposes of the present discussion, it may be appropriate to grant a permanent stay of proceedings where continuing the prosecution would be oppressive or constitute an abuse of process.106 This may occur where the prosecution on a later occasion concerns an offence which is substantially the same as an offence dealt with on an earlier occasion, or which deals with substantially the same facts traversed in the earlier case. In R v Viers,107 the accused was charged with being in possession of cannabis, at the time a dangerous drug under s 130 of the Health Act 1937 (Qld).108 The police had raided his home and found separate amounts of drugs – a small jar of seeds and some cannabis in Viers’ bedroom and close to 1.5 kilograms of cannabis in bags in another bedroom. Viers was charged with being in possession of a “prohibited plant” (cannabis sativa) and pleaded guilty to the charge in the Magistrates Court. Immediately Viers had left the courtroom, he was arrested for possession of a “dangerous drug” in relation to the large quantity of cannabis that had been found at his home, a much more serious charge. Facing that charge in the Supreme Court, he entered a special plea, raising QCC, s 17. However, the court found that this did not afford a defence because the second charge was not open the first time around as an alternative verdict. Thomas J noted that the charge before him was an obvious example of double jeopardy, which would be barred at common law.109 The first prosecution was for possession of a “prohibited plant”, the second for possession of a “dangerous drug” – while they were one and the same in fact, they were legally separate offences. The indictment was stayed as an abuse of process because the police had never indicated they would proceed with a further charge after obtaining a guilty plea on the first charge.110 In Walton v Gardiner,111 the High Court permanently stayed proceedings where the requirements for a plea of res judicata112 were not strictly met but where allowing the proceedings to continue would be an abuse of process. The case arose out of highly controversial deep sleep therapy conducted at Chelmsford Private Hospital in Sydney in the 1960s through to the early 1970s. Twenty-four deaths occurred as a result of “treating” a range of psychiatric conditions by barbiturate-induced comas. Complaints by the Health Department were referred

105 106 107 108 109 110 111 112

See Chapter 9 at [9.60]-[9.70] for a discussion of the relevant law on when a permanent stay will be granted; and see generally, Jago v District Court (NSW) (1989) 168 CLR 23. See Williams v Spautz (1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ. [1983] 2 Qd R 1. The offence would now fall within the Drugs Misuse Act 1986 (Qld). R v Viers [1983] 2 Qd R 1 at 5-6. R v Viers [1983] 2 Qd R 1 at 3. (1993) 177 CLR 378. “Res judicata” is a rule that where a matter has been dealt with by a court, the judgment is final and conclusive.

166 [7.150]

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to the New South Wales Medical Tribunal in 1986 against three doctors, Gardiner, Herron and Gill. However, the proceedings against Herron and Gill were permanently stayed as an abuse of process due to the lengthy delay between the time the practices were exposed and the time of the proceedings.113 The later Chelmsford Royal Commission Report made a number of damning findings against the use of deep-sleep therapy and the doctors involved in its use.114 After the Report’s release, further complaints were instituted against the three doctors in the Medical Tribunal. The doctors again obtained a permanent stay of the new complaints on the basis they were so unfair and oppressive that they constituted an abuse of process. The Health Department appealed, unsuccessfully, against that decision in the High Court. Mason CJ, Deane and Dawson JJ held that the Court of Appeal had power to order the stay, and that it was correct in doing so. In their reasons they agreed with the views of Gleeson CJ and Kirby P in the Court of Appeal that there were many features of oppression and unfairness in the case which were similar to those that the principles against double jeopardy are designed to protect. They concluded: Members of the Court of Appeal were fully justified in paying regard to the notions of fairness to an accused person which underlie the common law principle against double jeopardy. Notwithstanding the Department’s argument to the contrary, the substance of the complaints against the respondents in the current proceedings corresponded, to a very large extent, with the substance of the complaints against them in the proceedings which had been permanently stayed … in Herron v McGregor in 1986. … It is true that the absence of an earlier hearing on the merits and the variations between personal complainants and the details of the complaints mean that, even if a strict rule against double jeopardy is applicable to proceedings in the Tribunal, the current proceedings would not fall within it. The sense of injustice which inspires the doctrine against double jeopardy was, however, plainly present in large measure.115

Issue estoppel, abuse of process and previously inadmissible evidence [7.160] Given that the double jeopardy principles – and s 17 (to the extent it applies) – serve to protect an accused from being prosecuted again for the same conduct, a question arises as to what, if any, protection exists where an issue has been previously decided and the same issue arises in a later proceeding. Without descending into the intricacies of the law relating to various forms of estoppel, some basic points can be made. Concepts behind the double jeopardy rules include the desirability of finality and fairness to the accused – a matter once decided cannot be the subject of another trial – and, for criminal law purposes, the

113 114

Herron v McGregor (1986) 28 A Crim R 79; 6 NSWLR 246. New South Wales Royal Commission into Deep Sleep Therapy, Report of the Royal Commission into Deep Sleep Therapy (NSW Government Printing Office, Pyrmont, 1990).

115

Walton v Gardiner (1993) 177 CLR 378 at 398 per Mason CJ, Deane and Dawson JJ. [7.160] 167

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prosecution has ended, or merged with the judge’s decision or the jury’s verdict.116 The rationale behind “issue estoppel” is similar – namely, where an issue has been finally determined, it cannot be raised or challenged in a later proceeding. Issue estoppel enjoyed a brief period of recognition in the criminal law context before being rejected by the High Court in the 1994 decision of R v Rogers,117 where the court opted to rely instead on the broad discretionary power to prevent an abuse of process.118 Hunter laments the High Court’s distancing itself from the application of common law rules, premised as they are on the protective principles of double jeopardy, in favour of a possible remedy resting solely on the exercise of discretion.119 An exercise of power based on mere discretion, rather than a clear rule, necessarily limits the exercise of power by its very nature. In R v Rogers,120 the appellant had previously been tried for four armed robberies and, at the previous trial, the prosecution relied on four police records of interview allegedly containing admissions. The trial judge ruled three of those interviews inadmissible, as they had not been obtained voluntarily. As a consequence, Rogers was convicted on two of the charges and acquitted of the other two. Three years later, he was tried for another string of robberies and the prosecution sought to rely on the same four records of interview. Rogers sought a permanent stay of the proceedings on the basis this would be unfair and an abuse of process; the trial judge refused the application. Rogers then unsuccessfully appealed against the refusal to the New South Wales Court of Criminal Appeal, where he argued both issue estoppel (that is, that the admissibility of the record of interview had already been dealt with) and abuse of process. On his appeal to the High Court the same two grounds were argued.121 The majority of the High Court held that issue estoppel has no application in the criminal law122 but the court could exercise its discretionary power to prevent

116

117

118 119

120 121 122

Subject, of course, to any appeal or similar mechanism discussed in Chapter 13. The maxim “res judicata” applies to the situation where the cause of action or prosecution has been finalised in the ordinary sense. (1994) 181 CLR 251; see also Mraz v The Queen (No 2) (1956) 96 CLR 62; R v El Zarw (1991) 58 A Crim R 200; R v Storey (1978) 140 CLR 364; and R v Carroll (2002) 213 CLR 635. For an analysis of the decline of issue estoppel in criminal proceedings, see J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151. For commentary on the application of the doctrine in civil proceedings, see J Forbes, Evidence Law in Queensland (7th ed, Lawbook Co., 2008) pp 102-104. Compare Mraz v The Queen (No 2) (1956) 96 CLR 62; see also R v Storey (1978) 140 CLR 364. J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151 at 152. Hunter notes that the “heyday” of issue estoppel in criminal law in Australia was during the Dixon High Court, culminating in Mraz v The Queen (No 2) (1956) 96 CLR 63. (1994) 181 CLR 251. R v Rogers (1994) 181 CLR 251 at 257-258 per Brennan J. Their Honours considered that the technical and legalistic nature of issue estoppel was inappropriate in criminal proceedings – a commonly key cited reason for its inappropriateness is that the issues cannot be clearly defined, nor the manner in which the jury reasoned the issues. See also R v Carroll (2002) 213 CLR 635 at 647 and 650 per Gleeson CJ and Hayne J, and at 662 per Gaudron and Gummow JJ.

168 [7.160]

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an abuse of process and stay the proceedings.123 In reaching its decision in Rogers, the court emphasised that tendering the material was a direct challenge to the final determination made in the 1989 verdicts of acquittal, a challenge which invited “the scandal of conflicting decisions” and “jeopardised public confidence in the administration of justice”.124 As Hunter notes, the Mason High Court produced a number of “rightsoriented” decisions, including Dietrich v The Queen125 and Jago v District Court (NSW),126 which highlighted the importance of fairness of process and the imbalance of power between an accused and the state.127 Discarding the technical baggage associated with issue estoppel is consistent with the Mason High Court’s reformist approach of modifying legal archaisms, but discarding the right encompassed within issue estoppel to the possibility of a favourable exercise of discretion is concerning.128 From an accused’s perspective, it is far more difficult to start from the position of having to persuade the court that an abuse of process has occurred. If the argument fails before the trial judge, an appeal arguing error in making a discretionary judgment is difficult to establish. As Hunter emphasises, the flexibility associated with a discretion may be attractive to the judiciary (and, it should be added, the prosecution), but for an accused, flexibility, particularly in this context, means the loss of certainty.129

123

124 125 126

127 128 129

R v Rogers (1994) 181 CLR 251. Mason CJ held (at 254) that the prosecution was an abuse of process (and issue estoppel has no application in criminal proceedings), relying on R v Storey (1978) 140 CLR at 317-374 per Barwick CJ, at 379-389 per Gibbs J and at 400-401 per Mason J. Deane and Gaudron JJ considered (at 275-278) there was no justification for importing issue estoppel into criminal proceedings. They noted that only Stephen, Murphy and Aickin JJ in Storey accepted that issue estoppel applies in criminal proceedings. Brennan J considered (at 258-269) issue estoppel can apply in criminal law and that the prosecution was estopped from leading the same evidence in the second trial. McHugh J, dissenting on the appeal (at 284-285), did not consider an estoppel arose on the facts as the determination that the confessions were not voluntary was not an ultimate issue at the 1989 trial, nor was it essential to the determination of the ultimate issue, ie, whether or not Rogers had committed the robberies. He noted, however (at 284), that “in theory, the doctrine of issue estoppel should apply in criminal trials as well as civil”, although there are a number of difficulties in its application. R v Rogers (1994) 181 CLR 251 at 280 per Deane and Gaudron JJ. (1992) 177 CLR 292: see discussion in Chapter 10 at [10.40]. (1989) 168 CLR 23; see also Walton v Gardiner (1993) 177 CLR 378, discussed above. See further, J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151 at 154-155. J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151 at 154-155. J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151 at 155 and 169-171. J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18(1) University of New South Wales Law Journal 151 at 170. In a slightly different context, see the discussion of difficulties with the common law rules in cases where an accused is convicted of an offence against the person and the victim subsequently dies in M Goode, “Double Jeopardy Where the Defendant Is Convicted for a Non-Fatal Offence and the Victim Later Dies” (2009) 33 Criminal Law Journal 196. [7.160] 169

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Controverting an earlier acquittal [7.170] Prior to Rogers, the Queensland Court of Criminal Appeal upheld an appeal against conviction for perjury (QCC, s 123) on double jeopardy principles in R v El Zarw.130 El Zarw had been tried and acquitted of murdering his wife. At the trial, he denied the killing and relied on alibi and other evidence in his defence. He was later charged with perjury and attempting to pervert the course of justice131 on the basis that he had lied and had conspired with other witnesses to lie at his murder trial. El Zarw entered a plea that he had previously been acquitted. Essentially his argument was premised on two bases – res judicata and issue estoppel. The court noted that the state of the law as to whether issue estoppel applied in criminal proceedings was uncertain.132 Ambrose J considered that it would be fruitless to decide which of the doctrines of issue estoppel and res judicata would apply, as the point was whether or not El Zarw could rely on his earlier acquittal.133 Ambrose J upheld the appeal, stating that, “without substantially different evidence”, the prosecution would be breaching the rule against double jeopardy by trying to go behind the earlier verdict of acquittal, and that amounted to an abuse of process.134 Mackenzie J emphasised the importance of the rule that a verdict of acquittal cannot be challenged in a later trial so that an accused is given the full benefit of the earlier acquittal.135 The court upheld the appeal as there was no difference in substance between the evidence relied on earlier and that tendered at the second trial.136 In R v Carroll,137 two members of the High Court noted that the outcome of El Zarw’s appeal involved a recasting of the problem138 into a determination of whether El Zarw’s second trial was an abuse of process.139 Gaudron and Gummow JJ considered that the result in El Zarw is supportable as the plea of previous acquittal should have been allowed. Their Honours noted, however, that the Court of Criminal Appeal seemed to reason that the verdict of guilty on the perjury charge was “unsafe”, due to insufficient extra evidence, and so there was no additional dimension to the prosecution case. On that basis, the Court of

130 131 132 133

(1991) 58 A Crim R 200. El Zarw was actually charged with three counts of perjury and one count of conspiring to pervert the course of justice. R v El Zarw (1991) 58 A Crim R 200 at 204-209 per Ambrose J, and at 214 per Mackenzie J. (1991) 58 A Crim R 200 at 209 per Ambrose J.

134

(1991) 58 A Crim R 200 at 209-210 per Ambrose J.

135

(1991) 58 A Crim R 200 at 214 per Mackenzie J, citing Barwick CJ in R v Storey (1978) 140 CLR 364 at 372. (1991) 58 A Crim R 200 at 219-221 per Mackenzie J. However, his Honour considered (at 215) there was no objection in principle to a subsequent charge of perjury where it becomes apparent that the perjury was committed for the purpose of obtaining the earlier acquittal.

136

137 138

(2002) 213 CLR 635 (discussed at [7.180]). The special pleas in s 598 of the QCC are meant to resolve this issue. For example, a plea of autrefois acquit, triggering the defence in QCC, s 17.

139

R v Carroll (2002) 213 CLR 635 at 668-669 per Gaudron and Gummow JJ.

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Criminal Appeal had held that the perjury case in El Zarw went behind the verdict of acquittal and breached the double jeopardy rules.140

The limits of the double jeopardy principle: Carroll [7.180] Similar circumstances to those in El Zarw led to the prosecution’s appeal to the High Court in R v Carroll.141 Carroll was charged and convicted in 1984 of the 1973 murder in Ipswich of a baby, Deidre Kennedy. The victim had been strangled to death. At trial, evidence was presented of bite marks on the baby’s leg; the prosecution alleged Carroll bit the baby and that he had a propensity for biting small children on the legs. The only triable issue was the identity of the killer. Carroll gave evidence expressly denying killing Kennedy.142 The Court of Criminal Appeal subsequently quashed the conviction and Carroll was acquitted on the ground that the jury’s verdict was unsafe and unsatisfactory.143 Fourteen years later, and with the benefit of developments in forensic dental science which more conclusively linked Carroll with the bite marks, he was charged with perjury, on the basis that he lied under oath when he denied at the murder trial that he had killed Deidre Kennedy. Prior to the perjury trial, Carroll applied for a stay of the perjury proceedings,144 arguing that they were an abuse of process on the basis that he had previously been acquitted of murder. The application was refused145 and Carroll was tried and convicted of the perjury charge.146 An appeal resulted in the guilty verdict being set aside on the grounds that the proceedings constituted an abuse of process, and the verdict was therefore unsafe and unsatisfactory.147 The prosecution then obtained special leave to appeal to the High Court where all five members of the court dismissed the appeal. The High Court held that the perjury charge was an abuse of process, due to the earlier acquittal, and agreed with Williams JA in the Court of Appeal that the stay application should have been granted in the first place. The prosecution and trial for perjury undermined

140 141 142 143

144 145 146

147

(2002) 213 CLR 635 at 668-669 per Gaudron and Gummow JJ. See also D Hamer, “(Dys) functional Double Jeopardy Reform in Queensland” (2008) 19(1) Public Law Review 12. (2002) 213 CLR 635. He also relied on alibi evidence, which was alleged to be false at the perjury trial. R v Carroll (1985) 19 A Crim R 410. The prosecution also alleged Carroll was not in South Australia at the time of the killing, as he had claimed to be. On appeal, the Court of Criminal Appeal held that a reasonable jury could not have been satisfied beyond reasonable doubt on the evidence – the odontological evidence regarding the bite marks from several experts was uncertain; there was no direct evidence placing him in Ipswich at the relevant time; and the evidence regarding his “propensity” for biting children should have been excluded. The application was made under QCC, s 592A(2)(a). R v Carroll (2000) 115 A Crim R 164 per Muir J. At the perjury trial, the prosecution relied on evidence of opportunity, previously led at his murder trial, and fresh evidence including further evidence that Carroll had a propensity for biting small children; new odontological evidence showing that the bite marks were his; and an alleged jail confession. R v Carroll [2001] QCA 394. [7.180] 171

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the earlier acquittal of murder as it raised the same ultimate issue, which had been determined – namely, whether or not Carroll killed Kennedy.148 In their reasons, Gleeson CJ and Hayne J drew particular attention to the fundamental differences in power between the state and an individual accused of a crime, and the serious consequences for an individual who is convicted. Additionally, the judges noted that the “rules which are lumped together under the title ‘double jeopardy’ also recognise the need for safeguards”, otherwise “the power to prosecute could readily be used as an instrument of oppression”, and that finality plays an important role in the criminal justice system.149 Their Honours concluded (at 649): There was manifest inconsistency between the charge of perjury and the acquittal of murder. That inconsistency arose because the prosecution based the perjury charge solely on the respondent’s sworn denial of guilt [of murder]. … Once such manifest inconsistency appeared, then the case for a stay was irresistible.150

Similarly, Gaudron and Gummow JJ held (at 659): The laying of that indictment was vexatious or oppressive in the sense necessary to constitute an abuse of process; in substance there was an attempt to re-litigate the earlier prosecution.

The court considered arguments by the prosecution that a perjury charge may follow an acquittal where the perjury was used as fraud in order to obtain an acquittal, and/or where there was fresh evidence available.151 In obiter, Gaudron and Gummow JJ noted that allowing such exceptions would deprive the double jeopardy principles of much of their content, stating (at 669): The recognition of perjury as a general exception for “fraud” would enable the State, by the expedient of laying such a charge, to controvert an earlier acquittal in any case in which the accused has given evidence affirming a plea of not guilty. Similarly, an exception for “fresh evidence”, whether “substantial” or otherwise, removes an encouragement to thorough investigation in the first instance. Any weakening of the “double jeopardy” principles in the fashion proposed should be by legislative action.

148

149 150 151

R v Carroll (2002) 213 CLR 635. The decision prompted a number of articles on double jeopardy in respect of the consequential moves to reform the law. For a comprehensive analysis, see C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80; and see also the Hon Justice M Kirby, “Carroll, Double Jeopardy and International Human Rights Law” (2003) 27(5) Criminal Law Journal 231. Briefer articles that discuss Carroll include: S Hall, “Truth v Justice: Reconsidering the Rule against Double Jeopardy” (2003) (April) Brief 7; M Byrne (who prosecuted Carroll’s case all the way to the High Court), “Double Jeopardy and Perjury” (2006) (Jan/Feb) 72 Precedent 22; A Vasta (former Judge of the Supreme Court of Queensland, who presided over Carroll’s first trial), “Double Jeopardy: To Amend or Not to Amend” (2006) (Jan/Feb) 72 Precedent 18. R v Carroll (2002) 213 CLR 635 at 643 per Gleeson CH and Hayne J; see also Gaudron and Gummow JJ (at 661) and McHugh J (at 672-673). See also McHugh J (at 676). (2002) 213 CLR 635 at 645 per Gleeson CJ and Hayne JJ, and at 661 and 668 per Gaudron and Gummow JJ.

172 [7.180]

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Legislation creating exceptions firstly in New South Wales and then in Queensland (see below).152

The debate and reforms [7.190] The cases, particularly Carroll, emphasise the important protections afforded to an accused person by the double jeopardy principles. Equally, the necessity for justice to be done, in the sense of convicting the guilty for serious crimes, plays a critical role in an effective criminal justice system. The competing considerations – of protecting a person who has previously been dealt with by a court from oppressive and repeated prosecutions and of maintaining public confidence in the system – are frequently alluded to in discussing the pros and cons of the double jeopardy rules in the current reformist environment.153 Corns identifies five recurring rationales for the existing protective double jeopardy principles: • political/civil libertarian justifications based on the imbalance of power between the state and the individual and the potential for oppression by the state; • wrongful convictions currently occur in the system – with each repeated exposure to the prosecution process, the risk of wrongful conviction increases; • psychological and emotional distress suffered by an accused and others affected by the trial process would increase if subsequent prosecutions were permitted; • the need for finality in legal proceedings is critical for public confidence in the administration of justice; and • double jeopardy principles encourage proper investigation in order to “get it right” the first time.154 152

153

154

The other states have also reformed their double jeopardy laws: see Criminal Law Consolidation (Double Jeopardy) Amendment Act 2008 (SA); Criminal Code Amendment Act 2008 (Tas); Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011 (Vic); Criminal Appeals Amendment (Double Jeopardy) Act 2012 (WA). See, eg, R v Carroll (2002) 213 CLR 635 at 643-644 per Gleeson CJ and Hayne JJ, and at 661 per Gaudron and Gummow JJ; Rogers v The Queen (1994) 181 CLR 251 at 273-274 per Deane and Gaudron JJ; Pearce v The Queen (1998) 194 CLR 610 at 614-615 per McHugh, Hayne and Callinan JJ, at 625-626 per Gummow J, and at 636-637 per Kirby J. See also C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80; C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603; M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Criminal Law Review 87; and S Hall, “Truth v Justice: Reconsidering the Rule against Double Jeopardy” (2003) (April) Brief 7. C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 86-87. The merits of each rationale in the light of proposed reforms are discussed in C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 612. See also M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Criminal Law Review 87 at 97; and P Roberts, “Double Jeopardy Law Reform: A Criminal Justice Commentary” (2002) 65(3) Modern Law Review 393 at 397 and 410-411; G Dingwall, “Prosecutorial Policy, Double Jeopardy and the Public Interest” (2000) 63(2) Modern Law Review 268, both cited by Justice Roslyn Atkinson, Speech Given at Australian Law Students’ [7.190] 173

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Each of the rationales has been debated in various quarters and these statements are often made in the cases.155 Bagaric and Neale156 (who favour an exception to the rules in limited circumstances) expand the argument already noted in relation to the distress caused to the accused. They argue that if being prosecuted twice is abhorrent to our criminal justice system, as well as to an individual accused, it logically follows that being subject to the prosecution process at all must be innately brutal: “half of something that is so painful that it is unthinkable that any person should endure it, must still be very painful”.157 Accordingly, Bagaric and Neale contend that the prosecution process ought to be softened in a number of ways, for example: • putting more resources into the criminal justice system would reduce the length of time between charge and verdict, therefore reducing drawn-out periods of distress for an accused; • costs should be awarded to “successful” accused persons – this would provide acquitted accused with at least partial compensation for the time and massive costs associated with defending proceedings; • in the case of guilty verdicts, the sentencing process should take into account the ordeal already endured by virtue of the prosecution process; and • the preferred order made on a successful appeal would be an acquittal rather than the more commonly ordered retrial.158 Unsurprisingly, Bagaric and Neale readily concede that it is unlikely that any of these concessions will be made. The key concern for some reformists is that public confidence in the administration of justice should be reinforced by ensuring that persons who are guilty of serious offences are dealt with and do not avoid prosecution.159 Further,

155 156

157 158 159

Association (ALSA), Double Jeopardy Forum (Brisbane, 9 July 2003): http://www.archive.scl qld.org.au/judgepub/2003/atkin090703.pdf. See, eg, C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 612. According to Bagaric and Neale, an exception to the rule should apply where someone is charged with homicide and committed a serious offence to assist in obtaining an acquittal. The type of latter offence would be more flexible, to encompass highly defiant conduct, such as interfering with witnesses: M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Criminal Law Review 87 at 109-110. See, however, Corns’ discussion of the “exceptions” to double jeopardy, including statutory Crown appeal rights in Tasmania and Western Australia and Art 4(2) of Protocol 7 to the European Commission for Human Rights: C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 88-92. M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Criminal Law Review 87. M Bagaric and L Neal, “Double Jeopardy in Australia: The Illusion of an Absolute Protection and the Prosecution Process as Punishment” (2005) 8 Criminal Law Review 87 at 108-109. See, eg, C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 87; C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 102; and Justice Roslyn Atkinson, Speech Given at Australian Law Students’ Association (ALSA), Double Jeopardy Forum (Brisbane, 9 July 2003): http://archive.sclqld.or g.au/judgepub/2003/atkin090703.pdf. Viewed 12/04/2017.

174 [7.190]

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victims’ rights have gained considerable political clout in recent years and, although a second trial would cause further distress to persons affected by the accused’s conduct, there is considerable weight for the argument that victims also deserve proper closure. Corns refers to the structural tension between the idea that criminal proceedings are designed to establish “objective truth”160 and the institutional requirements for finality and prohibiting the exercise of oppressive state powers.161 He, too, echoes Blackstone’s words,162 “it is better that ten guilty persons escape than that one innocent person suffer” in asserting that the maxim represents the ideology which, at least until very recently, has won out over any competing public interest in securing the conviction and punishment of the guilty.163 However, just as similarly notorious cases in the United Kingdom and New Zealand created groundswells for reform,164 the Carroll murder and perjury trials and the results of the appeals attracted a great deal of media and political attention.165 The Attorneys-General of both Queensland and New South Wales asked the Standing Committee of Attorneys-General (SCAG) to review the double jeopardy rule. This resulted in a Model Criminal Code Officers Committee

160

That is, whether or not the accused – factually and legally – committed the crime.

161

C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 87. See Chapter 1 at [1.50] in regard to the onus of proof.

162 163 164

165

C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 87. The 1999 UK “McPherson” Inquiry, which followed the acquittal of three men for the racially motivated murder of Stephen Lawrence, found that the police investigation had been entirely inadequate and expressed concerns of institutionalised racism. The police had declined to prosecute and it was left to the parents of the victim to privately prosecute the case. The double jeopardy rule prevented any further prosecution following their acquittal: Sir William McPherson of Cluny, Stephen Lawrence Inquiry, Report, Cm 4262-1 (February 1999), cited in C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 608; see also C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 93. In New Zealand, the Law Reform Commission reviewed the double jeopardy laws after the 1992 acquittal of Kevin Moore for murder. A defence witness had given alibi evidence for Moore. Moore was later charged and convicted for conspiring to pervert the course of justice in relation to the earlier alibi evidence at his murder trial. The Report followed concerns over his having escaped punishment for the murder: see New Zealand Law Commission, Acquittal Following Perversion of the Course of Justice, Report 70 (March 2001): http://www.nzlii.org/nz/other/nzlc/report/R70. Viewed 12/04/2017. Parkinson notes that The Australian alone ran articles on the High Court’s decision in Carroll and double jeopardy (on 6 and 9-12 December 2002): C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 603-604. The Australian (on 10 February 2003), in its editorial, “Law of double jeopardy on trial at last”, wrongly stated that Carroll was twice convicted of murder: see Law Council of Australia’s Submission, Model Criminal Code, Chapter 2: Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals, Discussion Paper (Law Council of Australia, Canberra, 2004) p 4: http://www.lawcouncil.asn.au/lawcouncil/images/ LCA-PDF/docs-0-1999/1721%20Model%20Criminal%20Code%20Officers’%20Committee%20of% 20the%20Standing%20Committee%20of%20Attorneys-General.pdf. Viewed 12/04/2017. [7.190] 175

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(MCCOC) Discussion Paper, proposing significant codified reforms in the national Model Criminal Code.166

[7.200] In 2006, the New South Wales Parliament passed the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW). This Act reflects similar reforms enacted in 2002 in the United Kingdom.167 In its submission to MCCOC’s Discussion Paper, the Law Council of Australia, representing 40,000 lawyers, summarised its position as supporting the retention of double jeopardy laws, stating that the proposals would represent a significant and dangerous departure from the established principles and that they suggested a desire to undermine the traditional accusatorial character of the criminal justice system. The Council also expressed its concern that the proposals did not represent a response to demonstrated deficiencies in the system, but seemed to be driven by media and political responses to exceptional cases, such as that of Carroll.168 Nevertheless, the Act was passed with only minor modifications, and has retrospective operation.

166

167

168

The MCCOC’s proposed reforms would allow: (i) the prosecution for an administration of justice offence connected to the original trial; or (ii) retrial of the original/similar offence where there is fresh and compelling evidence; or (iii) retrial of the original/similar offence where the acquittal is tainted. Recommendations were also made in relation to prosecution appeals against acquittals to extend the powers to cover appeals from acquittals resulting from rulings on the admissibility of evidence at trial. For detailed discussion, see Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code Chapter 2: Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals, Discussion Paper (November 2003): https://www.ag.gov.au/Publications/Docum ents/Double%20jeopardy%20reform%20proposals%20March%202004/Discussion%20paper%2 0Double%20Jeopardy.pdf. Viewed 12/04/2017. Criminal Justice Act 2003 (UK). Neither the NSW nor UK Acts are discussed here, but for a helpful article on the capacity for a retrial where there is “fresh and compelling” evidence, see C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603; see also C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80. The NZLC has recommended retrial in cases where the accused has secured an unmerited acquittal by perjury or other conduct that perverts the course of justice. In R v Moore [1999] 3 NZLR 385 and R v Moore (unreported, CA 399/99, 23 November 1999), Moore was tried for murder. A witness gave alibi evidence for Moore, and he was acquitted. Seven years later he was convicted of conspiracy to pervert the course of justice, relating to the (false) alibi evidence. In a similar fashion to the political events after Carroll, the Commission produced a Report: NZ Law Commission, Report 70, Acquittal Following Perversion of the Course Justice (March 2001): http://www.nzlii.org/nz/other/nzlc/report/R70. Viewed 12/04/ 2017. Law Council of Australia’s submission: Model Criminal Code: Chapter 2: Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals, Discussion Paper (Law Council of Australia, Canberra, April 2004) pp 3-4: http://www.lawcouncil.asn.au/shadomx/apps/fms/f msdownload.cfm?file_uuid=8C723D00-1C23-CACD-2208-BE822D0FFF3A&siteName=lca. Viewed 12/04/2017. See also the Law Council of Australia’s submission to the Minister for Justice and Customs, A Better Mutual Assistance Scheme (Law Council of Australia, Canberra, October 2006) pp 6-7: see website in this note.

176 [7.200]

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Queensland reforms [7.210] Queensland followed New South Wales in 2007 by enacting the Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld).169 The Act inserted a new Ch 68 into the QCC,170 providing exceptions to the double jeopardy rules and relevant procedures. In contrast to the New South Wales reforms, the initial Queensland reforms did not operate retrospectively.171 However, in 2014 Ch 68 was amended to apply retrospectively.172

Retrial for a murder [7.220] Section 678B of the QCC permits a retrial for a murder charge if: • there is fresh and compelling evidence; and • it is in the interests of justice. Although the terminology used is a “retrial for a murder”, the section permits a retrial for murder where the person was originally acquitted of the less serious charge of manslaughter; it is only the retrial offence which must be murder: QCC, s 678B. Where the person was originally acquitted on a trial for murder, there can be no retrial for manslaughter.173 The new exceptions only have application where a person was acquitted at the original trial: QCC, s 678A(2). An application for a retrial order is made to the Court of Appeal by the ODPP. The application must be made within 28 days of the person being charged for the “retrial offence”.174 Before an order can be made, the court must be satisfied that the evidence is both “fresh” – that is, it had not been available, despite reasonable diligence, at the first trial – and “compelling” – that is, reliable, substantial and highly probative.175 In addition, the court must be satisfied that it is in the interests of justice to make an order for a retrial. Section 678F of the QCC indicates the factors that must be considered by the court in making that decision, including the length of time that has passed since the offence was committed and whether the prosecuting authorities failed to act expeditiously or with reasonable diligence, either in relation to the original trial or the application for retrial.

169

170 171 172 173

174 175

The Bill was introduced as a Private Member’s Bill on 19 April 2007 (an earlier version was originally introduced on 2 November 2006): see Criminal Code (Double Jeopardy) Amendment Bill 2007 (Qld), Second Reading Speech (Hansard, 17 October 2007). The Act commenced on 25 October 2007. Note that QCC, s 17 now includes the words “or has already been acquitted upon indictment”: see [7.140]. QCC, s 678A(1). QCC, 678A; See Criminal Code Amendment Act 2014 (Qld), s 35. See Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld) Explanatory Notes, p 5: htt p://www.legislation.qld.gov.au/Bills/52PDF/2007/CrimCDJAmdB07Exp_P.pdf. Viewed 12/04/ 2017. Or within 28 days of a warrant being issued for their arrest: QCC, s 678G. The ODPP must first authorise any police investigation: QCC, s 678I. QCC, s 678D. See R v G (G) & B (S) [2009] EWCA Crim 1207. In this case, the “fresh evidence” was that of a convicted person who offered to give evidence against a co-accused who had been acquitted. The court described the evidence as “manipulative” and “cynical” and that it could not be said to be compelling. [7.220] 177

Criminal Process in Queensland

Further, an order cannot be made unless the court is satisfied that a fair trial is likely to ensue. The accused person is entitled to be heard at the application176 and given that they will have been arrested and charged with the “retrial” offence, s 678J displaces the reverse onus position, which would otherwise apply on a bail application where the retrial offence is murder. Therefore, the accused person should be granted bail unless the prosecution satisfies the court that they pose an “unacceptable risk”.177

Other serious offences [7.230] Section 678C of the QCC permits a retrial in the case of an offence or offences punishable by 25 years’, or life, imprisonment if: • the acquittal is tainted; and • it is in the interests of justice. A “tainted acquittal” is defined in s 678E of the QCC and refers to circumstances where, following an acquittal,178 the accused or another person (for example, a witness for the accused at her or his trial) has been convicted of an “administration of justice offence”179 (for example, perjury, corrupting a witness) in relation to the original trial and, but for the latter offence, it is more likely than not that the accused would have been convicted at their first trial. As is the case for a retrial for murder, s 678C of the QCC allows for a retrial on a more serious offence than the original charge for which the accused was acquitted. However, there can be no retrial where a conviction was obtained for an alternative less serious offence at first instance.180 The same general procedural requirements apply as for QCC, s 678B.

Other matters [7.240] Generally, the prosecution can only make one application for a retrial – but there is an exception where an acquittal follows a retrial that was permitted under the new scheme, and that acquittal is a “tainted acquittal” within the definition provided in QCC, s 678E. Where an order is obtained under either QCC, s 678B or 678C, the prosecution has to present the indictment for the retrial offence within two months; otherwise, an application can be made to have the original acquittal restored: QCC, s 678H(1) and (3).181 Finally, various restrictions are imposed in relation to publication of the identity of a person who is being investigated by the police, or who is the subject of an application for an order for retrial: QCC, s 678K.

176 177 178

179 180

QCC, s 678G(7). See Chapter 4 on bail, especially in relation to Bail Act 1980 (Qld), s 16 (at [4.20]). Either at trial, including a directed acquittal, or on a successful appeal: QCC, s 678A(2). An acquittal resulting from insanity does not fall within the definition of “acquittal”. Where the acquittal was obtained in another jurisdiction and the laws of that jurisdiction do not allow a retrial, there cannot be an order made for a retrial: QCC, s 678A(3). See QCC, Ch 16. QCC, s 678A(2) and 678C(2).

181

Time may, however, be extended for presenting the indictment: QCC, s 678H(2).

178 [7.230]

Pleas and Double Jeopardy

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In the Explanatory Notes to the Act, reference is made to the emphasis afforded to the notion of “finality” in the common law double jeopardy rules, citing Art 14 of the International Covenant on Civil and Political Rights (ICCPR): No one shall be liable to be tried or punished again for an offence for which he [or she] has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

The response given to that statement is “much depends on the interpretation of the word ‘finally’” and that the exceptions in QCC, ss 678B and 678C “merely [redefine] finality”, and are justifiable in the public interest.182 There is little empirical research available on the number of “wrongful acquittals” that occur in fact or, for that matter, as an educated estimate.183 In 2003, arguing against the adoption of a “new evidence” exception to acquittals, Parkinson noted only three identified cases in Australia that would fall within that exception.184 Perhaps, as he suggests in relation to the New South Wales amendments, the Queensland reforms will continue to be of symbolic importance, but have little practical impact in the area of wrongful acquittals.

Rule preventing double punishments [7.250] Another limb of the double jeopardy rule is that a person should not be punished more than once for the same, conduct (punishable act or omission), which is reflected in QCC, s 16.185 Again, there may be situations where this provision may provide protection if s 17 of the QCC does not do so. Section 16 of the QCC states (emphasis added): A person cannot be twice punished either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof the person causes the death of another person …

The case of R v Tricklebank186 illustrates the limitation of the protection to the same punishable acts, and the exception where a subsequent death occurs. The accused was convicted of driving under the influence of alcohol and received a sentence comprising a $400 fine and a period of being disqualified from driving. He was then charged with dangerous driving causing death while being adversely affected by alcohol: QCC, s 328A(2). Tricklebank pleaded guilty and was sentenced to two years’ imprisonment and disqualified from driving for two-and-a-half years. Both offences arose from the same circumstances: Tricklebank, affected by alcohol, had been driving his car at about 80-90km per hour when he hit and killed a pedestrian. On his appeal against sentence, the appellant argued that he had already been punished for the act of drunk-driving and that when the judge imposed sentence 182

Criminal Code (Double Jeopardy) Amendment Act 2007 (Qld), Explanatory Notes, p 3: see htt p://www.legislation.qld.gov.au/Bills/52PDF/2007/CrimCDJAmdB07Exp_P.pdf. Viewed 12/04/ 2017.

183

See also C Corns, “Retrial of Acquitted Persons: Time for Reform of the Double Jeopardy Rule?” (2003) 27 Criminal Law Journal 80 at 99-101.

184 185

C Parkinson, “Double Jeopardy Reform: The New Evidence Exception for Acquittals” (2003) 26 University of New South Wales Law Journal 603 at 620-621. R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8 at [15]-[33].

186

(1993) 69 A Crim R 351. [7.250] 179

Criminal Process in Queensland

for the dangerous driving causing death, he had specifically taken into account the aggravating circumstance of being affected by alcohol. Therefore, he argued, he had been doubly punished for the same act. The Court of Appeal dismissed the appeal, holding that Tricklebank had not been punished twice for the same act when the sentencing judge took into account the aggravating circumstance – the first punishable act constituting the first offence was “drink-driving”, the second was “dangerous driving”.187 The High Court discussed the rule against double punishment in Pearce v The Queen.188 Pearce was charged on indictment with two offences arising from one episode of “home invasion”. He allegedly broke into a house and attacked the 72-year-old occupant, who had been disturbed by the break-in. He was charged with grievous bodily harm (Crimes Act 1900 (NSW) s 33) and an aggravated form of burglary: Crimes Act 1900 (NSW) s 110. Pearce applied for a stay of proceedings on the basis of abuse of process – as a result of being placed in double jeopardy by being charged for two offences for the one incident. That application was refused, and he then pleaded guilty and was sentenced to 12 years’ imprisonment on each count, to be served concurrently.189 The High Court considered: • whether the case presented two prosecutions for what was in reality a single offence – which would attract the double jeopardy rule against double prosecution; • whether the prosecution under both provisions of the Crimes Act 1900 was an abuse of process; and

187

188

189

R v Tricklebank (1993) 69 A Crim R 351 at 358 per McPherson JA, Demack J agreeing (at 362). Macrossan CJ (at 354-355) took a different approach, holding that the first punishable act was driving with alcohol in his system, the second was also driving with alcohol in his system; therefore, he could not be punished twice for the same act. However, he held that the exception in QCC, s 16 applied. See also R v Gordon; Ex parte Attorney-General (Qld) [1975] Qd R 301 where, in similar circumstances where a pedestrian suffered grievous bodily harm, Hanger CJ held that the first punishable act was being in charge of a motor vehicle while under the influence, the second was a different punishable act – ie, dangerous driving causing grievous bodily harm. Williams J held that the proper approach to QCC, s 16 was to establish whether the same wrongful act resulting in the first punishment was the central theme or focal point, or the basic act in the later offence charged. See also R v Dibble; Ex parte Attorney-General (Qld) [2014] QCA 8 where the respondent entered a guilty plea and was fined for causing a public nuisance for throwing a number of punches at the victim. It subsequently transpired that the injury caused by the punches was more serious than first thought and the respondent was charged with causing grievous bodily harm. The Court of Appeal held that the two charges were based on the same conduct, therefore a conviction for grievous bodily harm would be inconsistent with QCC, s 16. Pearce v The Queen (1998) 194 CLR 610. See also the discussion of the test to be applied on a double jeopardy or plea in bar argument of duplicity by a second charge. McHugh, Hayne and Callinan JJ (at 620) asserted that the authorities require attention to be given to the elements of the offences – without a “match” the accused would have to rely on an abuse of argument and seek the court’s discretionary power to stay the proceeding. Compare Kirby J (at 652), who considered that the test adopted in England and the US should be accepted in Australia, ie, that the accused must show that the subject of the second charge or prosecution is the “same offence or substantially or practically the same” to attract the common law right to a plea in bar. Gordon would have to serve one term of 12 years: see Chapter 12 at [12.220].

180 [7.250]

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• whether Pearce had been doubly punished as a result of being charged and sentenced for the two offences. As the two offences each required proof of a different essential fact, there was no double prosecution.190 Specific intent had to be proved under s 33 of the Crimes Act 1900 (NSW), but not under s 110 of that Act, and break and enter had to be proved under s 110 but not under s 33.191 It followed that there was no abuse of process in charging him with both offences as they were “different in important respects”.192 However, the court held that Pearce had been doubly punished. An element of each offence was the infliction of grievous bodily harm to the victim and the only conclusion that could be drawn was that the sentencing judge had taken this into account and had punished him for the same element on each charge.193 Kirby J noted that ordering a conviction is itself punishment, that ordering a second conviction can alone constitute double punishment, and that making prison terms concurrent can never be a complete answer to a complaint about double punishment and, further, is a risky way of practically avoiding double punishment.194

190 191 192

193

194

Pearce v The Queen (1998) 194 CLR 610 at 620 per McHugh, Hayne and Callinan JJ. (1998) 194 CLR 610 at 615 per McHugh, Hayne and Callinan JJ. (1998) 194 CLR 610 at 621 per McHugh, Hayne and Callinan JJ. See the critique of this decision in M Goode, “Double Jeopardy where the Defendant is Convicted for a Non-Fatal Offence and the Victim Later Dies” (2009) 33 Criminal Law Journal 196. However, in Queensland note QCC, s 678B – it is suggested that in a case where an accused is initially convicted of an offence of grievous bodily harm with intent (QCC, s 317) and the victim later dies, it would be difficult for the prosecution to establish the “interests of justice” requirement. (1998) 194 CLR 610 at 623-624 per McHugh, Hayne and Callinan JJ, and at 629 per Gummow J. The majority upheld the appeal and remitted the case to the NSW Court of Criminal Appeal for re-sentencing. Kirby J dissented overall but agreed with the majority on all three issues, holding (at 654-655) that Pearce had a legitimate grievance about the judge’s reasons for sentence, but that there was no error in the total sentence imposed and there would not be any point in sending it back for re-sentencing. See his Honour’s helpful discussion of the common law principles and practices which have evolved into various manifestations of double jeopardy: at 637 and 636-650. Pearce v The Queen (1998) 194 CLR 610 at 650 per Kirby J; see also McHugh, Hayne and Callinan JJ (at 623-624). [7.250] 181

CHAPTER 8 Trial Process Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 Disclosure and the fair trial doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183 [8.30] Prosecution disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186 [8.40] Matters that proceed in the Magistrates Court. . . . . . . . . . . . . . 194 [8.50] Matters that proceed on Indictment . . . . . . . . . . . . . . . . . . . . . . . . 196 [8.60] The defendant’s disclosure obligations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 [8.70] Alibi evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 197 [8.80] Expert evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199 [8.90] Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 [8.100] Hearings/Trials in the Magistrates Courts . . . . . . . . . . . . . . . . . . 200 [8.110] Trials in the higher court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 202 [8.140] Jury trials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 [8.190] Other aspects of superior court trials . . . . . . . . . . . . . . . . . . . . . . . 213 [8.200] Nolle prosequi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 [8.210] Fairness and nolle prosequi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215 [8.10] [8.20]

OVERVIEW [8.10] This chapter examines the critical pre-trial requirement for disclosure, focusing on the prosecution’s disclosure obligations to the accused in the context of the fair trial doctrine. The chapter also considers how hearings are conducted in the Magistrates Courts and trials by jury and judge alone in the higher courts. Attention is given to some particular procedural features of jury trials, including aspects of fairness in the use of a “nolle prosequi”.

DISCLOSURE AND THE FAIR TRIAL DOCTRINE [8.20] In 2010, the Moynihan amendments ushered in new disclosure obligations and procedures in furtherance of the pursuit of the fair trial doctrine. The Hon Martin Moynihan in his report, Review of the Criminal and Civil Justice System in Queensland, stated at the beginning of the chapter dealing with disclosure: Proper and timely disclosure is the lynchpin of our criminal justice process. It provides the accused with knowledge of the case the prosecution proposes to make against them and so is the foundation of a fair trial. … Proper and timely disclosure also serves to balance the inequality of power and resources between the executive government (the prosecution) and an accused (citizen charged with an offence).1

1

Hon M Moynihan, Review of the Criminal and Civil Justice System in Queensland (Queensland Government, 2008) pp 85 and 86: https://www.cabinet.qld.gov.au/documents/2009/Jul/Rev iew%20of%20civil%20and%20criminal%20justice%20system%20in%20Qld/Attachments/Review %20by%20Moynihan.pdf.

[8.20] 183

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The codification of the prosecution’s disclosure regime in Queensland sits comfortably within the theme of the fair trial doctrine. The legislation aims to ensure that an accused has full and proper notice of the prosecution case against them. Elsewhere in Australia, and internationally, similar provisions have been enacted, reflecting the importance of pre-trial disclosure by the prosecution.2 At common law, the courts continue to emphasise the role of fulsome prosecution disclosure as a fundamental aspect of ensuring a fair trial. This was emphasised in the decision of Mallard v The Queen.3 In Mallard, the appellant had been convicted in 1994 of the murder of a woman. His appeal against conviction was unsuccessful, but after serving eight years’ imprisonment, he petitioned for clemency. The Attorney-General referred the petition to the Western Australian Court of Criminal Appeal, where it was refused. Special leave to appeal to the High Court was subsequently obtained and the appeal against conviction was unanimously upheld.4 At trial, a substantial part of the prosecution case relied on Mallard’s alleged confession to police, which was inextricably tied to the central argument put before the High Court that non-disclosure or suppression of material evidence by the prosecution had deprived Mallard of a fair trial.5 For example, in one of his three interviews with police (only one of which was recorded), Mallard was asked what the assailant’s murder weapon was. Mallard told the police that it was a wrench, and he drew a wrench with the name “Sidchrome” on it. At the trial, the prosecution tendered the drawing as an exhibit, alleging that it was the murder weapon. Prior to the trial, police had conducted an experiment on a pig’s head, using a Sidchrome wrench to compare the deceased’s wounds with the wounds to the pig’s head. The results were dissimilar. Another experiment was undertaken by a forensic pathologist, who also concluded that the resulting wounds were dissimilar. Neither the experiments nor the outcomes were disclosed to the accused.6 In addition, residues of Prussian Blue, coloured paint and rust were found in the deceased’s wounds, but Sidchrome wrenches are sold unpainted and they rarely rust.7 Thus, the “pig’s head experiment” evidence was but one instance of non-disclosure.

2

3 4

5 6

7

See, eg, the Crimes (Criminal Trials) Act 1999 (Vic); and the Criminal Procedure and Investigations Act 2003 (UK). In Mallard v The Queen (2005) 224 CLR 125 at 149-155, Kirby J describes the approaches taken to prosecution non-disclosure in Australia and internationally. (2005) 224 CLR 125. Mallard v The Queen (2005) 224 CLR 125 at 142 per Heydon J, at 158 per Kirby J. All members of the court ordered a new trial. Kirby J (at 158) commented: “Whether in all the circumstances, a retrial should be had, is a question properly left to the Director of Public Prosecutions. The matters disclosed in this appeal will doubtless be of assistance to him in making his decision”. See also Gummow, Hayne, Callinan and Heydon JJ (at 141) on the ordering of a retrial. (2005) 224 CLR 125 at 145. This was one of many incidences of non-disclosure or suppression – see also Kirby J (at 145-148) in respect of the selective disclosure concerning “the salt-water experiment” and non-disclosure of various witness statements and sketches. (2005) 224 CLR 125 at 134 per Gummow, Hayne, Callinan and Heydon JJ.

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Kirby J considered that the totality of the non-disclosure raised “a stark question as to the safety of the appellant’s conviction”.8 Particular concern was expressed about suppressing and removing material that was consistent with innocence and presented difficulties for the prosecutor’s hypothesis of Mallard’s guilt before making (so-called) disclosure to the accused.9 Even if the material was not literally in the possession of the Office of the Director of Public Prosecutions (ODPP), it was all readily available from the police since it had been obtained by them to prepare the police brief for the ODPP.10 His Honour reviewed the common law’s approach to the prosecution’s disclosure obligations in various international jurisdictions, noting in particular the Canadian Supreme Court’s decision in R v Stinchcombe,11 where “the fruits of the investigation” were described as “not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done”. Kirby J also referred to R v Brown,12 a case decided by the House of Lords after the introduction of legislation modifying the traditional character of criminal trials.13 In relation to the prosecutor’s duty, Lord Hope said: [F]airness requires that materials in its possession which may cast doubt on the credibility or reliability of those witnesses whom it chooses to lead must be disclosed.14

The fundamental principle reflected by these statements is the overall duty of fairness and this duty exists to ensure that the accused receives a fair trial. By way of contrast, it is difficult to reconcile the increasing burden of pre-trial disclosure placed on the accused with the fair trial doctrine. Overseas jurisdictions have even more onerous obligations on the accused than currently exist in Queensland. For example, in the United Kingdom, the accused is required to disclose a case statement detailing the nature of their defence.15 A failure to disclose a case statement in the United Kingdom, or departure from the statement

8 9 10

11 12 13

14

15

(2005) 224 CLR 125 at 148 per Kirby J. (2005) 224 CLR 125 at 148 per Kirby J. (2005) 224 CLR 125 at 149 per Kirby J. In both the WA Court of Criminal Appeal and the High Court, the respondent did not make any arguments in relation to the evidence. The matters proceeded on the basis of an agreed set of facts – ie, the non-disclosure was conceded; and the central issue was the significance of the prosecution’s failure to disclose: at 150 per Kirby J. See also Lawless v The Queen (1979) 142 CLR 659; and Grey v The Queen (2001) 184 ALR 593 at 599-600, referred to in Mallard (at 150-151). [1991] 3 SCR 326 at 333 per Sopinka J, referred to in Mallard v The Queen (2005) 224 CLR 125 at 152 per Kirby J. [1998] AC 367. Criminal Procedure and Investigations Act 1996 (UK); amended by the Criminal Procedure and Investigations Act 2003 (UK) (referred to in Mallard v The Queen (2005) 224 CLR 125 at 153 per Kirby J). Mallard v The Queen (2005) 224 CLR 125 at 153 per Kirby J, referring to R v Brown [1998] AC 367 at 377 per Lord Hope of Craighead, and followed in New Zealand several times: see, eg, R v Taylor (unreported, NZ CA, 17 December 2003). For a comprehensive discussion of the position in the UK since 2003, see M Redmayne, “Criminal Justice Act 2003: (1) Disclosure and its Discontents” [2004] Criminal Law Review 441. [8.20] 185

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at trial, can lead to adverse comments being made to the jury.16 Commenting on the regime in the United Kingdom, Redmayne notes that judges have not warmly embraced the power to make adverse comment on an accused’s non-compliance with the pre-trial disclosure obligations.17 He asserts that some of the disclosure provisions “allow the government to claim it’s getting tough on defendants or that it is tilting the system’s balance back towards police and victims”18 and suggests that this may be part of a “trend towards image management rather than positive results”.19 The impetus for increasing defence disclosure obligations seems to be a focus on the drive for technocratic justice in the form of time and cost savings. All the defence disclosure requirements in Queensland relate to situations where it is likely that the prosecution would need to call extra witnesses to rebut the accused’s claim. Concerns about delays in the criminal justice system and the length and increased complexity of trials are all legitimate and it is understandable that efforts to narrow the issues at trial may have broad appeal. However, there are also genuine concerns that this cost-efficient approach unduly attacks some of the fundamental tenets of the adversarial system – innocent until proven guilty, the burden of proof which rests on the prosecution, and the right to silence – by requiring the accused to assist in the prosecution’s task.20 It also remains to be seen whether such efficiency objectives are met with the increasing disclosure obligations, or rather are defeated by a concomitant number of pre-trial rulings. If suspicions are confirmed and pre-trial rulings dramatically increase in number, such an increase should be accompanied by an increase in Legal Aid funding.21

Prosecution disclosure [8.30] In previous chapters it has been emphasised that the prosecution has an overall duty to act fairly and impartially. An important aspect of the duty of fairness is the obligation to disclose all relevant material to the accused.22

16 17 18 19

20

21

22

M Redmayne, “Criminal Justice Act 2003: (1) Disclosure and its Discontents” [2004] Criminal Law Review 441 at 445. M Redmayne, “Criminal Justice Act 2003: (1) Disclosure and its Discontents” [2004] Criminal Law Review 441 at 461. M Redmayne, “Criminal Justice Act 2003: (1) Disclosure and its Discontents” [2004] Criminal Law Review 441 at 448. M Redmayne, “Criminal Justice Act 2003: (1) Disclosure and its Discontents” [2004] Criminal Law Review 441 at note 36, citing T Newburn, Crime and Criminal Justice Policy (2nd ed, Longman, 2004) pp 264-265. See, eg, R Gray, The New Pre-trial Disclosure Regime in New South Wales (Paper presented at 6th International Association of Prosecutors Conference, Sydney, September 2001) pp 1-23. G Martin, “Defence Disclosure: Should it be Accompanied by Legal Aid Reform?” (2004) (November) Brief 14; see also R Gray, The New Pre-trial Disclosure Regime in New South Wales (Paper presented at 6th International Association of Prosecutors Conference, Sydney, September 2001) pp 1-23. Mallard v The Queen (2005) 224 CLR 125; Grey v The Queen (2001) 184 ALR 593; Easterday v The Queen (2003) 143 A Crim R 154; [2003] WASCA 69. The prosecution also has a duty to call all material witnesses at trial: R v Apostilides (1984) 154 CLR 563.

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Ashworth and Redmayne state that the prosecution’s failure to fully disclose evidence was a major factor in a string of miscarriage of justice cases in the United Kingdom in the late 1980s to early 1990s.23 To avoid such miscarriages of justice, Ashworth and Redmayne assert that the prosecution should be viewed as the “trustee” of the information gathered in investigations, including that which may undermine the prosecution’s case against the accused, rather than as the “exclusive owner”.24 The prosecution’s disclosure obligations now form part of Ch 62 of the Queensland Criminal Code (QCC)25 and are supplemented by the Director of Public Prosecution’s Director’s Guidelines (“Director’s Guidelines”).26 The ODPP guidelines reflect the changes to the prosecution’s disclosure obligations following the Moynihan amendments. The codified obligations in Queensland apply to committal proceedings, “prescribed summary trials” and trials on indictment.27 The QCC statutory regime prescribes an ongoing duty to give full and early disclosure of all the evidence the prosecution proposes to rely upon and all things that are in the prosecution’s possession.28 “Possession of the prosecution” is defined in s 590AE of the QCC to include:29 • anything that is in the possession of the arresting officer or someone appearing for the prosecution; • anything in the possession of the Director of Public Prosecutions where the ODPP is conducting the prosecution; or • anything in the possession of the police service where the police are prosecuting the matter. The meaning of “possession” is further extended by QCC, s 590AE(3)(b) to include anything that the arresting officer or person appearing for the prosecution is aware is in existence and would be locatable without unreasonable effort.30 Material to be disclosed falls into two categories: 1.

things that must always be disclosed; and

2.

things that must be disclosed upon request.

Mandatory information to be disclosed includes a copy of the relevant charging document, the accused’s criminal history, any statements by the accused, written notice of any “affected child witnesses”, including reasons as to why they may be

23 24

A Ashworth and M Redmayne, The Criminal Process (3rd ed, OUP, 2005) pp 64 and 238-239. A Ashworth and M Redmayne, The Criminal Process (3rd ed, OUP, 2005) p 241.

25

QCC, Ch 62 Div 3.

26

ODPP, Director’s Guidelines, guideline 29, amended at 30 June 2015: http://www.justice.qld. gov.au/__data/assets/pdf_file/0015/16701/directors-guidelines.pdf. QCC, ss 590AB(2) and 590AD: definitions of “relevant proceeding” and “prescribed summary trial” and QCC, ss 590D-590F; see also Justices Act 1886 (Qld) (JA), ss 41, 83B-83F. QCC, s 590AB(2). QCC, s 590AE(2).

27 28 29 30

For a novel interpretation of the meaning of QCC, s 590AE(3), see R v Hargraves, Hargraves and Stoten (2008) 73 ATR 775; [2008] QSC 267; but see the interpretation adopted in R v Moti [2009] QSC 293 (both decisions of a single judge of the Supreme Court). [8.30] 187

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an affected child witness,31 notice of an intention to rely upon certain types of hearsay evidence,32 witness statements, reports of any tests or forensic procedures completed or notice of tests intended to be completed, notice of any original evidence to be relied upon, and anything else the prosecution intends to rely upon.33 Examples of information that must be disclosed on request from the accused include certain particulars of sexual offences or offences of violence about which an “affected child” witness is to testify34 and a copy of the criminal history of a proposed witness for the prosecution or anything that goes to their reliability, credibility or competence.35 The accused may also request a copy of anything that is in the possession of the prosecution but which the prosecution does not intend to rely on.36 In R v Rollason; Ex parte Attorney-General (Qld),37 the Attorney-General referred two questions of law to the Court of Appeal relating to the primary judge’s ruling that affidavits of a federal police agent, Mellor, fell within the definition of material to be disclosed to the accused. Rollason and Jenkins were charged with drug offences and the prosecution case included evidence obtained by authorised telephone intercepts.38 The applications for the warrants were supported by Mellor’s affidavits, and Mellor would be a witness at their trial. Rollason and Jenkins had unsuccessfully sought disclosure of the applications and the affidavits from the Commonwealth Director of Public Prosecutions (CDPP). The CDPP’s refusal was on the basis that, in its view, the material was not relevant, and disclosure would be, in any event, contrary to the public interest. The primary judge, Helman DCJ,39 held that the affidavits fell within the definition of “any statement of a witness in the possession of the prosecution”,40 and that they were relevant to the proceeding41 as they played an important role in the police investigation. Helman DCJ rejected an argument that Rollason and Jenkins had to show there was a legitimate forensic purpose before the material could be considered relevant. He emphasised that the disclosure provisions were enacted for the benefit of accused persons who faced potentially serious consequences by being prosecuted and that there was no reason to construe the provisions in a way that would restrict the rights of the accused. In a unanimous judgment, the Court of Appeal agreed with the interpretation given to the provisions by Helman DCJ. In doing so, the court emphasised the

31

Evidence Act 1977 (Qld) s 21AC.

32 33 34

39 40

Evidence adduced under Evidence Act 1977 (Qld) s 93B. QCC, s 590AH. QCC, s 590AJ(2)(a); ODPP guideline 29(v): http://www.justice.qld.gov.au/__data/assets/pd f_file/0015/16701/directors-guidelines.pdf; refer to QCC, s 590AD definitions and Evidence Act 1977 (Qld), s 21AC for a definition of “affected child”. QCC, s 590AJ(2)(b)-(d). QCC, s 590AJ(2)(e) and (f); and s 590AK. [2008] 1 Qd R 85; [2007] QCA 65. The warrants were issued under the then Telecommunications (Interception and Access) Act 1979 (Cth) ss 45 and 45A. R v Rollason (unreported, Qld Sup Ct, No 475 of 2006, 28 November 2006). QCC, s 590AH(2)(c)(i)(A) (concerning material that must be disclosed).

41

QCC, s 590AJ(2)(e) and (f) (concerning material that must be disclosed, on request).

35 36 37 38

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overarching concern of the disclosure provisions to provide mandatory disclosure42 of any material “that would tend to help the case for the accused”, and that sometimes the case for an accused depends entirely on challenging the admissibility or credibility of prosecution evidence.43 The Court addressed the provision requiring disclosure on request.44 The court stated that its purpose is to ensure that a person who is prosecuted as a consequence of evidence having been obtained while they were unaware it was being obtained will be informed of the basis for their being subjected to governmental surveillance.45 The court referred to Steyn LJ’s statement of the position at common law in the English decision of R v Brown:46 In our adversarial process, in which the police and the prosecution control the investigatory process, an accused’s right to fair disclosure is an inseparable part of his right to a fair trial.

Despite the appearance of extensive prosecutorial disclosure requirements, there are a number of limitations. Restrictions are imposed in relation to disclosure of “sensitive evidence”, witness contact details and material that would be contrary to the public interest to disclose. “Sensitive evidence” is defined in s 590AF of the QCC as anything that contains or displays an obscene or indecent image of a person, or anything which would interfere with that person’s privacy if it was disclosed without their consent.47 Clearly, such evidence will include pornographic images, child exploitation material, police photographs of a naked rape victim and autopsy photographs.48 It is up to the prosecution to determine whether or not material is “sensitive evidence”.49 Guideline 29(vi) of the ODPP Director’s Guidelines states, in part: Sensitive evidence is that which contains an image of a person which is obscene or indecent or would otherwise violate the person’s privacy. It will include video taped interviews with complainants of sexual offences containing accounts of sexual activity, pornography, child computer games, police photographs of naked complainants and autopsy photographs.50

Where a sexual offence matter is being investigated, if the complainant is a child or person with an impairment of the mind, the complainant will take part in a videotaped interview with police. This interview will become what is known as a “s 93A”51 statement and can be tendered as evidence. Section 590AOA of the QCC 42 43

QCC, s 590AH(2)(c)(i)(A). R v Rollason; Ex parte Attorney-General (Qld) [2008] 1 Qd R 85; [2007] QCA 65 at [16], referring to Lord Hope’s statement in R v Brown [1998] AC 367 at 377: “the great principle is that of open justice. It would be contrary to that principle for the prosecution to withhold from the defendant material which might undermine their case against him or which might assist his defence”.

44 45 46 47 48

QCC, s 590AJ(2)(e) and (f). R v Rollason; Ex parte Attorney-General (Qld) [2008] 1 Qd R 85; [2007] QCA 65 at [26]. (1995) 1 Cr App R 191 at 198. QCC, s 590AX. QCC, s 590AF.

49 50

QCC, s 590AO(1). ODPP guideline 29(vi): http://www.justice.qld.gov.au/__data/assets/pdf_file/0015/16701/dire ctors-guidelines.pdf.

51

Evidence Act 1977 s 93A. [8.30] 189

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governs disclosure in relation to s 93A statements. The starting premise is that the prosecution is not obliged to disclose the statement; however, they must give the accused a written notice describing the statement.52 If the accused is legally represented, the written notice must also include details that the accused’s lawyer will be given a copy of the statement on condition that: • the statement will not be copied; • the statement or a copy of the statement will not be given to the accused or any other person apart from another lawyer, the lawyer’s associate, or someone who can give an expert opinion on the statement; • the statement is returned to the prosecution if the lawyer ceases to act for the accused (or the expert is no longer engaged) or 14 days after the end of the proceedings.53 If the accused is not legally represented, the written notice must include details that the accused will not be given a copy of the statement; however, it will be made available for viewing by an “appropriate person”.54 An “appropriate person” is defined to include the accused person, a person engaged by the accused who is considered appropriate, or a lawyer.55 If the prosecution refuses to provide a copy in accordance with the section, a direction can be sought from the court.56 The practical reality may well be that the accused has just one opportunity to assess the complainant’s demeanour on video and the accused will not have a copy to refer to in preparing the matter for trial. Similarly, if the prosecution deems any material to be sensitive evidence,57 the accused must be given written notice describing the thing and, in certain circumstances, the evidence must be made available for viewing.58 A defence lawyer may view the videotape at the offices of the ODPP and, theoretically, there is no reason they could not seek to view it on more than one occasion. The prosecution is also not required to provide the accused with the contact details of a witness unless those details are materially relevant – for example, where the accused is charged with unlawful stalking by telephone, the telephone number of the stalked individual must be disclosed as it is materially relevant.59 Public interest based restrictions on disclosure to the accused may occur where disclosure would affect matters, such as national security, or compromise ongoing investigations.60 The duty of disclosure also applies to new and relevant evidence that becomes available to the prosecution, and even where exculpatory evidence becomes

52 53 54 55 56 57 58

59

QCC, s 590AOA (1) and (2). QCC, s 590AOA(3). QCC, s 590AOA(6). QCC, s 590AOA(11). QCC, s 590AOA(5), (7) and (8). QCC, s 590AF. The material must be made available to the accused, their lawyer or another appropriate person, such as a forensic expert: QCC, ss 590AO(2)-(8), 590AR and 590AS. It can also be made available as the result of a court order: QCC, s 590AO(3)-(6). QCC, s 590AP.

60

QCC, s 590AQ; see ODPP guideline 29(viii).

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available after conviction.61 The post-conviction disclosure obligation relates to reliable evidence that may cause a jury to entertain a reasonable doubt about the accused’s guilt.62 Section 590AL of the QCC makes it clear that the ongoing obligation to disclose continues, notwithstanding a general failure by the prosecution to comply with the prescribed timeframes. In the case of a failure to disclose due to something not actually being in the prosecution’s possession in sufficient time (for example, where the material did not exist at the relevant time), the prosecution is obliged to disclose any matter “as soon as practicable” after it comes into its possession.63 The ODPP guideline states: When new and relevant evidence becomes available to the prosecution after the Disclosure Forms have been published, that new evidence should be disclosed as soon as practicable. The duty of disclosure of exculpatory information continues after conviction until the death of the convicted person. Upon receipt of the file a written inquiry should be made of the arresting officer to ascertain whether that officer has knowledge of any information, not included in the brief of evidence, that would tend to help the case for the accused.

An accused person can apply to the court for pre-trial directions or rulings on disclosure,64 but non-compliance with the statutory obligations for disclosure will not affect the trial’s validity.65 However, non-disclosure may lead to a successful appeal on the basis of a resulting miscarriage of justice.66 In 2010, division 4A was inserted into the Criminal Code 1899 (Qld) and this provides a system for disclosure obligation directions to be issued. Similar provisions were inserted into the Justices Act 2010 in order to facilitate the new disclosure processes introduced by the Moynihan amendments. Some examples of failure by the prosecution to meet its duty of disclosure in Queensland include R v OL,67 R v HAU68 and R v Martens.69 In R v OL,70 very late disclosure by the prosecution of some medical evidence formed the basis for a ground of appeal. Twice before the committal, and again prior to trial, the appellant’s lawyer wrote to the ODPP requesting copies of any medical reports concerning the complainant. The complainant had been medically examined about 10 days after her initial complaint to the police that the appellant, her stepfather, had committed a number of sexual offences against her. The medical record was not made available until the 13th day of the trial, just prior to

61 62 63 64 65 66 67 68 69

QCC, ss 590AL and 590AD; see ODPP guideline 29(xiii). QCC, s 590AD. QCC, s 590AL; see ODPP guideline 29(xiii). QCC, s 590AA(2)(b); Justices Act 1886 (Qld) s 83F. QCC, s 590AC. Grey v The Queen (2001) 184 ALR 593. [2004] QCA 439 per McMurdo P. [2009] QCA 165. (2009) 262 ALR 106; [2009] QCA 351.

70

[2004] QCA 439 pr McMurdo P, Williams JA and Holmes J. [8.30] 191

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the judge’s summing up of the case to the jury.71 The accused then applied, unsuccessfully, for a mistrial.72 On appeal, the respondent, the prosecution, argued that it was not clear that the evidence was, in fact, “in the possession of the prosecution” and that, in any event, non-compliance with the disclosure requirements did not render the trial invalid – if there is good reason, the court can waive a requirement without producing a miscarriage of justice.73 The Court of Appeal held that the lost opportunity to explore the evidence did not deprive the appellant of a chance of acquittal and the trial judge’s refusal to grant a mistrial did not result in a miscarriage of justice. The appeal was therefore dismissed. However, McMurdo P emphasised that the failure to disclose the evidence prior to committal was “extremely regrettable” and expressed her concern that the respondent could not assure the court that the police receive training about their disclosure obligations.74 Her Honour said: [The prosecutor] has undertaken to draw to the attention of the Director of Public Prosecutions my observations made in the course of argument: police officers should be trained as to records of relevant medical examinations of complainants in the brief prepared for committal proceedings so that the defendant and the defendant’s lawyers have access to the information at an early stage, well prior to the committal.75

In R v HAU,76 the appellant was convicted after trial of indecent treatment and six counts of unlawful carnal knowledge of a child under 16. He was sentenced to 18 months’ imprisonment for the charge of indecent treatment and four years’ imprisonment for each of the unlawful carnal knowledge offences. The complainant was his de facto partner’s daughter and it was alleged that he engaged in several acts of sexual activity with her over a period of approximately six weeks. He appealed against his convictions. One ground of appeal was that he was denied a fair trial as a result of the failure of the ODPP to disclose the victim impact statement and a letter from the complainant’s doctor before the complainant child’s evidence was recorded.77 The victim impact statement and letter from the complainant’s doctor contained an account of the alleged events, various aspects of which were 71

72

73 74

75 76 77

The arresting police officer was present at the trial and, during an adjournment, after he heard defence counsel stressing the absence of medical evidence, he told the prosecutor about the medical examination. He had not considered the evidence significant and had not included the medical notes in the brief that went to the ODPP. The report was promptly supplied to the court at the prosecutor’s direction: R v OL [2004] QCA 439 at [12]. The trial judge emphasised that the failure to supply the evidence to the accused was a clear breach of QCC, s 590AB(2)(b), but that in the context of the evidence and the way the trial was conducted, it did not amount to a mistrial. In other words, it was not a case where a sufficiently serious procedural error had occurred, requiring that the jury be discharged and an order made for a retrial conducted with another jury: R v OL [2004] QCA 439 at [13]-[16]. QCC, s 590AU; R v OL [2004] QCA 439 at [13] per McMurdo P. In 2003, s 24C was inserted into the Director of Public Prosecutions Act 1984 (Qld). It imposes on investigating police officers a statutory duty to disclose all relevant material and information obtained during their investigation which might tend to help the case of either the prosecution or the accused. R v OL [2004] QCA 439 at [18]. [2009] QCA 165. See Evidence Act 1977 (Qld) Pt 1 Div 4A.

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inconsistent with the version given by the complainant at trial. They were also inconsistent with the prosecutor’s closing address to the jury. The Court of Appeal held that the accused should have been afforded an opportunity to cross-examine the complainant about those inconsistencies.78 The test to determine whether there had been a miscarriage of justice by reason of non-compliance with the disclosure provisions was set out at paragraphs 36 to 40 of the decision in R v HAU.79 This case was quickly followed by two further appeals against conviction based on a similar non-disclosure of a victim impact statement at the appropriate time. In R v Cornwell,80 the victim impact statement was received by the ODPP approximately five months prior to the trial. It was not provided to the accused until the jury had been deliberating for more than half a day. The appeal was allowed. In contrast, in R v BBU,81 late disclosure of a victim impact statement that did not contain an inconsistent account of events was held to be in breach of the prosecution’s obligations under QCC, s 590AB(2)(b). However, that was not enough to substantiate the appeal. Of note, the accused’s counsel drew the court’s attention to the following: The prosecutor told the judge that, since the Court of Appeal decision in R v HAU, his office had a policy of not taking victim impact statements until after the complainant’s trial evidence had been given. This late taking of, and subsequent late disclosure of, the victim impact statement in this case was inconsistent with the proper practice identified in HAU and in R v Cornwell and with the prosecutorial obligation under s 590AB and s 590AL Criminal Code 1899 (Qld).82

The Court of Appeal expressed their concern about the ODPP’s practice in relation to obtaining victim impact statements. However, the court found that in the present case that the prosecutor had not deliberately withheld the victim impact statement knowing that it may be helpful to the appellant. The court was also comforted by the fact that the published ODPP Guidelines had not been amended to encourage such practice.83 In the case of R v Cox,84 the court distinguished the matter from R v HAU85 and the case of R v Spizzirri86 because the undiscovered documents in Cox did not materially assist the appellant. The appellant was given the opportunity to adjourn the proceedings by the trial judge but did not take up that offer. In R v Martens,87 it was alleged that in September 2001, Martens, while outside Australia, had sexual intercourse with a person under 16 years.88 He was convicted after trial and in 2009 he successfully sought a pardon from the

78 79 80 81 82 83 84 85 86 87

See also R v Spizzirri [2001] 2 Qd R 686 at 693. [2009] QCA 165 at [36] to [40] and quoted in R v Cox [2010] QCA 262. [2009] QCA 294. [2009] QCA 385. R v BBU [2009] QCA 385 at [36]. R v BBU [2009] QCA 385 at [43]-[46]. [2010] QCA 262. [2009] QCA 165. [2001] 2 Qd R 686. (2009) 262 ALR 106; [2009] QCA 351.

88

An offence under s 50BA of the Crimes Act 1914 (Cth). [8.30] 193

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Queensland Court of Appeal.89 At the time of the alleged offence, Martens was a commercial pilot working in Papua New Guinea. At trial, it was alleged that Martens flew the complainant from Morehead to Port Moresby sometime between 10 and 16 September 2001, spent the night with her in his home and had sexual intercourse with her. Martens specifically denied flying the child to Port Moresby between 10 and 16 September 2001. One of the major points in his petition for a pardon was that the records of the Civil Aviation Authority (CAA) established that there was no flight that accorded with the complainant’s allegation. The CAA records, however, were not tendered as evidence in the trial, notwithstanding that they had been identified by Martens as critical to his case. From the time he was arrested and charged in 2004, Martens made continual requests to the Commonwealth Director of Public Prosecutions (CDPP) to obtain the CAA records.90 The prosecutor did not obtain or disclose the records and instead advised Martens that they did not exist – a fact asserted by the CAA itself. In the year following his conviction, Martens’ wife obtained those records from the CAA and passed them on to the CDPP. In the Court of Appeal, the CDPP submitted that Martens could have produced them at his trial had he and his solicitors made reasonable efforts to obtain them. In response, Chesterman JA noted: The records have always existed and have now been produced. It is a poor reflection upon the two organisations that one should have failed to find them, and denied their existence, and the other object to their use in the reference91 on the ground that the petitioner should have obtained them earlier.92

His Honour also noted that the flight records operated to corroborate Martens’ evidence at his trial. In his evidence, Martens had sworn that he had not flown from Morehead to Port Moresby on any of the relevant dates, relying on his own log book.93 The information in the log book was the same as the CAA records. During cross-examination at his trial, the prosecutor had alleged that the log book was a fabrication – an allegation that was clearly wrong.94 Martens’ conviction was quashed.

Matters that proceed in the Magistrates Court [8.40] The timeframe for disclosure in relation to matters which proceed in the Magistrates Court is governed by the Justices Act 1886 and Magistrates Court Practice Direction 13 of 2010. Before the initial appearance, the QP9 is to be delivered to the defence by the prosecuting agency. The QP9, as referenced in Chapter 5, is the first document

89 90 91 92

See Chapter 13. R v Martens (2009) 262 ALR 106 at 143-144; [2009] QCA 351 at [165]-[169]. The Attorney-General for the Commonwealth referred the matter to the Queensland Court of Appeal under QCC, s 672A (the pardon power). R v Martens (2009) 262 ALR 106 at 144; [2009] QCA 351 at [170].

93

R v Martens (2009) 262 ALR 106 at 145; [2009] QCA 351 at [177].

94

R v Martens (2009) 262 ALR 106 at 145; [2009] QCA 351 at [178].

194 [8.40]

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disclosed by the prosecution. Pursuant to the practice direction, it is to be handed to the defendant personally or provided to their legal representative.95 As indicated in Chapter 7, by way of the process called “case conferencing,” certain documents can be sought by the defence to assist in charge negotiation. Those documents must be requested and made available within 14 days of the request.96 This disclosure is important for the purposes of advancing a case in circumstances where negotiation of an outcome may be appropriate. For example, CCTV footage showing an incident, a statement of the financial amount of damage caused, a statement from the complainant as to how an incident arose, or a recording of admissions made by the defendant to QPS may be relevant to the negotiation of matters. In those instances, engaging in case conferencing may be useful. If case conferencing is unsuccessful, then in accordance with the Practice Direction, a matter will be listed for a summary trial and a disclosure direction will be given for a full brief of evidence to be disclosed in five weeks.97 The defence can apply for a Disclosure Obligation Direction in relation to the matter pursuant to section 83F of the Justices Act 1886 (Qld). Such an application is determined as a Directions Hearing pursuant to section 83A of the Justices Act 1886 (Qld). If the prosecutor fails to disclose material in accordance with a disclosure direction made by a Magistrate under the Practice Direction, the defence may apply to the court for an order that a person, ordinarily the arresting officer, file an affidavit in court explaining and justifying the failure to comply with the disclosure obligation direction.98 The court may then adjourn the matter to determine whether or not the person’s affidavit justifies the non-compliance and what further action is to be taken pursuant to section 83B of the Justices Act 1886 (Qld). Section 83B provides the court with the following powers: 1.

Adjourn the matter to allow the prosecution to comply with the disclosure direction; or

2.

If the court is satisfied that the noncompliance is not justified, a costs order may be made in favour of the defendant.99

In the case of Police v Drury [2011] QMC 9, the magistrate was concerned with an application to strike out proceedings owing to a failure by the prosecution to disclose a brief of evidence in relation to a summary traffic offence. Having considered the text of section 83B and the powers itemised by the provision, the

95 96 97 98 99

Magistrates Court Practice Direction 13 of 2010 paragraph [4] available at: http://www.courts .qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf. Magistrates Court Practice Direction 13 of 2010 paragraph [6] available at: http://www.courts .qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf. Magistrates Court Practice Direction 13 of 2010 paragraph [9] available at: http://www.courts .qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf. Magistrates Court Practice Direction 13 of 2010 paragraph [14] and [15] available at: http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf. Justices Act 1886 (Qld), s 83B(4). [8.40] 195

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case cites with approval Robertson J in Brown v Owen,100 where at paragraph [23] His Honour stated: … s149 [of the Justices Act 1886] seems to contemplate a hearing on merits. There is a power to dismiss contained in s146(1)(a) but only after a hearing on the merits. Clearly, a Magistrate can dismiss a complaint where the complainant offers no evidence. Similarly, if the complainant does not appear, the complaint may be dismissed with or without costs; s147.

Robertson J went on to say: However, in purporting to dismiss the complaints without testing whether there had been compliance, he (the magistrates) acted beyond the scope of his power.

In Police v Drury, on the basis of the decision in Brown v Owen, the Magistrate found that there was no power to dismiss the charges and refused to strike out the charge.

Matters that proceed on Indictment [8.50] As discussed in Chapter 6, matters that proceed on indictment are the subject of a committal. In order for the magistrate to consider whether the matter should be committed to the higher court, disclosure is required to be made in the Magistrates Court. Following the disclosure of the QP9,101 the matter is adjourned to the committal callover where the defence advise whether a full brief of evidence or a partial brief of evidence is required. If only a partial brief is required, because for example the defendant wishes to proceed to a sentence, the partial brief is to be disclosed within 14 days.102 If however, a full brief of evidence is required, either for trial or sentence, such a brief must be made available for collection within 5 weeks.103 Section 590AM of the QCC details the methods for making disclosure to the accused, which is supplemented by the ODPP’s guideline 29(xii), requiring a completed “Disclosure Form” to be provided to the accused within the time limits set out in QCC, s 590AI(2). The police brief, which goes to the ODPP, must include a Disclosure Form, which then must be updated by the ODPP. The responsibility for disclosure within the ODPP “rests with the case lawyer or prosecutor if one has been allocated to the matter”.104 If there are further documents required by the defence that are not forthcoming, a disclosure obligation direction hearing can be listed pursuant to section 83F of the Justices Act 1886 (Qld or pursuant to s 590AAA of the QCC). The Criminal Procedure Rules 1999 (Qld) should be considered in relation to the filing of material in support of such an application. See above in relation to disclosure obligation directions.

100

[2005] QDC 40. This case was decided before the commencement of the Moynihan amendments.

101

See Chapter 5.

102

Magistrates Court Practice Direction number 13 of 2010 paragraph [6] Available: http://www. courts.qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf Magistrates Court Practice Direction number 13 of 2010 paragraph [10] Available at: http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0007/85696/mc-pd-13of2010.pdf

103 104

QCC, s 590AN.

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THE DEFENDANT’S DISCLOSURE OBLIGATIONS [8.60] Notwithstanding that the accused has a common law right to silence both before and at trial, in recent years that right has effectively been watered down. In Chapter 1, the whittling down of the accused’s right to silence in relation to the onus of proof rules was discussed by reference to Woolmington v Director of Public Prosecutions (UK). The focus in this chapter is on the increasing demands placed on the accused to disclose certain information to the prosecution before the trial.

Alibi evidence [8.70] Since 1975, the accused has been required to give notice of an alibi to the prosecution.105 Under the current provision, where the accused is to be tried on indictment and wants to rely on an alibi, they must provide particulars of the alibi to the prosecution within 14 days of their committal for trial.106 Evidence in support of an alibi is defined to mean: evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.107

Non-compliance may result in the accused not being able to call any evidence in support of an alibi.108 In practice, such non-compliance will not be sanctioned in this way – it is more likely that leave may be obtained from the judge to call the evidence at trial. Although the evidence can still be presented, late notice will often have a damaging effect on credibility. In R v Sullivan109 particulars of the evidence relating to an alibi had not been provided within the prescribed period. It was held that it was at the discretion of the court at trial to decide whether to allow or prohibit the evidence being given at trial. The mere fact that the information relevant to the alibi was not provided within the prescribed period was held not to, by itself, justify the court refusing permission for the evidence to be called. In the case of R v C110 the Crown chose not to tender the notice of alibi and instead relied on cross-examination of alibi witnesses. In that case, Thomas JA (in dissent) observed that: [26] There is a risk that current community attitudes place an accused person in the position of actually having to prove his innocence whenever a sexual charge is laid. It is important at both trial and appellate levels that strenuous efforts be made to prevent that risk becoming a reality … [28] The very word “alibi” … tends to give off a bad odour. Juries are suspicious of such defences and there is in my view a real danger that a reversal of onus tends to occur when such a defence is introduced especially under the name “alibi”. Trial judges find it difficult to correct this imbalance. Without suggesting that it is always 105 106 107 108

The notice of alibi requirement was inserted into the QCC by Act No 27 of 1975, s 22. QCC, s 590A. See also s 104(5) of the JA(Qld), which requires the magistrate, at committal, to warn the accused of the QCC, ss 590 and 590A(3) requirements. QCC, s 590A(7). QCC, s 590A(1) and (2).

109

[1971] 1 QB 253; (1970) 54 Cr App R 389.

110

[1999] QCA 270. [8.70] 197

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necessary to do so, it would not be amiss in such a case to remind a jury that there is nothing disreputable in the suggestion that an accused was not present at the time, and that such a suggestion is one of the strongest possible assertions of innocence.

If the defence cannot produce an alibi witness who is crucial to the alibi then such evidence is no ground for a stay of proceedings.111 Where an alibi is raised by the defence, the burden is on the prosecution to negative the alibi.112 The case of R v Erasmus113 illustrates the importance of raising alibi evidence. In the appeal against conviction for the murder of the accused’s de facto spouse, a ground for argument concerned the trial judge’s directions regarding alibi evidence. The appellant’s case at trial was that he had nothing to do with the victim’s death and that he was with a friend, Ian Brittin, for most of the time when, according to the forensic evidence, the fatal assault occurred. When interviewed by police, the accused suggested that they get a statement from Brittin. However, Brittin refused to speak to the police and died before Erasmus’s trial. At committal, the accused, who was legally represented, had been informed of his obligation to give notice of any alibi. Had Brittin given an alibi statement, it could have been put before the court, notwithstanding Brittin died before the trial.114 During their deliberation, the jury sought the judge’s assistance as to whether or not it was possible to confirm that the accused was with Brittin – for instance, by evidence from Brittin’s wife, Anne. The accused had referred to Anne’s presence at various times when he claimed to be with Brittin. The judge indicated to the jury that it was not possible to confirm Erasmus’s alibi through Anne as: (a) no notice of alibi had been given in relation to Anne; (b) no application for leave to call alibi evidence from her had been made; and (c) no application had been made for an adjournment to ascertain if she was available to give evidence. In other words, nothing in relation to the possibility of Anne providing alibi evidence had been raised in the trial.115 In R v ZSK,116 McGill DCJ stayed a count of rape on a pre-trial application pursuant to section 590AA of the QCC on the basis that continuing the proceedings would amount to an abuse of process of the court. The accused had given the QCC, s 590A prescribed notice of an alibi as to his whereabouts on certain dates in January 2001 when the offence charged was alleged to have been committed. The accused was committed for trial but when the indictment was presented, the dates alleged in the indictment spanned a period between January and March 2001. The accused argued that the prosecution’s change to the dates was not supported by any evidence but was simply an arbitrary response to his alibi. McGill DCJ noted that there was nothing to suggest that the purpose of the

111 112 113 114

R v Smith [1997] QCA 109 applying R v Goldburg (NSWCCA, No 60607 of 1992 unreported). R v Wood (1967) 52 Cr App R 74. [2006] QCA 245. Evidence Act 1977 (Qld), s 93B.

115

R v Erasmus [2006] QCA 245 at [50]-[56] per Keane J.

116

[2006] QDC 16 per McGill DCJ.

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legislature’s enactment of s 590A was to enable the prosecution to respond to an alibi in this way.117

Expert evidence [8.80] A requirement for the accused to give advance notice of an intention to adduce expert evidence was inserted into the QCC in 1997.118 This provision is useful to the prosecution in cases where the accused relies on medical evidence to support a defence – for example, where an accused, charged with murder, intends to rely on “diminished responsibility”.119 In such cases, the accused must, as soon as practicable, provide notice to the prosecution of the expert’s name and of any finding or opinion of the expert, which will be led at trial. A copy of the expert’s report must also be provided before the trial begins.120 The requirement to disclose expert evidence was introduced into the QCC shortly after the Queensland Court of Appeal’s decision in R v de Voss.121 The appellant’s murder conviction was set aside and substituted by a conviction for manslaughter on the basis that the jury’s murder verdict was unsafe and unsatisfactory.122 There was no dispute that de Voss killed the deceased, but the defence case at trial was that when he strangled her, he was suffering from diminished responsibility.123 At the trial, two psychiatrists gave expert opinion evidence that, as a result of serious depression, de Voss was in a state of diminished responsibility at the time of the killing, and there was no other contradictory evidence. A good deal of other evidence called in the case entirely supported the psychiatrists’ opinions. The court held that in those circumstances no rational jury could have brought back a murder verdict and substituted a verdict of manslaughter with a sentence of nine years’ imprisonment. In its reasons for judgment, the court noted that the prosecution did not receive the two psychiatrists’ reports until the trial was under way and referred to the absence in Queensland of an obligation to exchange reports before trial as “an unsatisfactory practice”.124 R v Ward125 is an example of a single judge decision on pre-trial directions126 regarding the accused’s duty to disclose expert evidence. Ward was charged with

117 118 119

120 121 122 123 124 125 126

R v ZSK [2006] QDC 16 at [25] per McGill DCJ; see also R v H (1995) 83 A Crim R 402; R v Jacobs [1993] 2 Qd R 541. QCC, s 590B QCC, s 304A. Where diminished responsibility is made out, the accused, if found guilty of the killing, will be convicted of manslaughter, rather than murder, which will permit the judge to exercise discretion in sentencing; cf in the case of murder where a mandatory life penalty is imposed: see QCC, ss 310 and 305. QCC, s 590B. [1995] QCA 518. R v de Voss [1995] QCA 518. Appeals are discussed in Chapter 13. QCC, s 304A. For onus of proof matters in relation to diminished responsibility, see Chapter 1 at [1.80]. R v de Voss [1995] QCA 518; see also A West, “Pre-Trial Exchange of Expert Reports in Criminal Matters” (1996) 16 Queensland Lawyer 154. [2009] QSC 38. Where such directions are made pursuant to QCC, s 590AA. [8.80] 199

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negligent manslaughter and it was anticipated that his trial would take 10-12 weeks. Fryberg J effectively directed that the defence disclose all expert material to be used at his trial. In practice, the order required the defence to disclose material prior to forming a definite intention of adducing that evidence, a requirement arguably beyond that imposed in QCC, s 590B.127 In the case of R v Spina128 in the context of considering an appeal against conviction for murder the appeal turned on whether an application to adduce further evidence, should be allowed.

HEARINGS [8.90] Criminal procedure texts commonly focus on the jury trial when describing the trial process. There is no constitutional right to a trial by jury in Queensland and the Commonwealth constitutional “right to trial by jury”129 falls far short of an absolute right. Pre-trial applications can also be made for a judge alone trial in the higher courts.130 Further, as we have stressed, the Magistrates Courts deal with the vast majority of criminal cases and the number of jury trials is relatively few in comparison. There is not a great deal of variance between the courts when it comes to the “trial” process, particularly the course of evidence. However, as one would expect, there are some differences, which are canvassed below.

Hearings/Trials in the Magistrates Courts [8.100] The term “hearing” is used in the Magistrates Courts as opposed to the term “trial”. The main difference between the lower and higher courts is that matters in the Magistrates Court are determined “summarily” – that is, the magistrate determines all questions of fact and law. Similarly, in judge alone trials, the judge decides all questions of fact and law.131 In jury trials, however, the jury decides all questions of fact while the judge decides questions of law. Chapter 5 considered how proceedings are usually initiated in the Magistrates Courts, including by way of “complaint” under the Justices Act 1886 (Qld). A Directions Hearing may be commenced before the hearing proper, which allows a magistrate to make a direction about matters, including disclosure or the provision of expert reports132. Written pleas of guilty are also available in very limited circumstances.133

127

132

Note that ultimately the proceedings against Ward were discontinued by the prosecution entering a “nolle prosequi”. [2012] QCA 179. Commonwealth Constitution s 80. QCC, s 590AA. For a study on judicial fact-finding, see V Waye, “Judicial Fact-Finding: Trial by Judge Alone in Serious Criminal Cases” (2003) 27 Melbourne University Law Review 423. JA(Qld), s 83A(5)

133

JA(Qld), ss 142 and 142A.

128 129 130 131

200 [8.90]

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Where the accused pleads “not guilty”, the magistrate will adjourn the matter for a summary hearing/trial where the evidence will be heard and the case decided.134 When the trial commences, it follows a usual formula: 1.

The defendant is asked to plead.135

2.

The prosecutor is entitled to open the case by providing an outline of the evidence to the magistrate before calling its first witnesses.136

3.

The first witness: a. b. c.

gives their evidence-in-chief; the accused (or their lawyer if they have legal representation) may then cross-examine that witness; that witness may then be re-examined by the prosecutor.

4.

The second and all subsequent witnesses give evidence in this way.

5.

Rules and principles embodied in the law of evidence apply to the various stages of evidence and control the types of material that may be put before the court.137

At the conclusion of the prosecution’s evidence, the accused may make a “no case submission” to the court, meaning that the prosecution has failed to establish through its evidence that a reasonable arbiter of fact could determine, beyond reasonable doubt, that the charge has been made out against the accused (note that a no case submission can also be made in a trial in the District and Supreme Courts).138 Another way of expressing this is to say that the prosecution has not made out a “prima facie” case against the accused. This is a question of law for the magistrate and is quite different from the question as to whether or not the prosecution has made out its case “beyond reasonable doubt”. If the magistrate decides that there is no case to answer, the matter will be dismissed.139 If the no case submission fails, the accused will be asked whether they wish to give or call evidence.140 As the accused has a common law right to silence, there is no obligation for them to give evidence.141

134 135 136 137

138

139 140 141

JA(Qld), s 146. JA(Qld), ss 145 and 146. In relation to pleas, see Chapter 7. JA(Qld), s 148. Knowledge of the law of evidence forms a distinct area of study due to its size and complexity. Useful texts include P K Waight and C R Williams, Evidence: Commentary and Materials (7th ed, Thomson/Lawbook Co., Sydney, 2006); J R S Forbes, Evidence Law in Queensland (7th ed, Thomson/Lawbook Co., Sydney, 2008); and K Arenson and M Bagaric, Rules of Evidence in Australia: Text and Cases (LexisNexis, Sydney, 2005). See May v O’Sullivan (1955) 92 CLR 654 at 658; Doney v The Queen (1990) 171 CLR 207 at 214-215; Antoun v The Queen (2006) 159 A Crim R 513; [2006] HCA 2; and Muscat v Douglas (2006) 233 ALR 131 at 141-143 and 158. JA(Qld), s 149. QCC, s 618. See also Fawkes v Schadwell; Ex parte Schadwell [1966] Qd R 20. Dyers v The Queen (2002) 210 CLR 285; Weissensteiner v The Queen (1993) 178 CLR 217. These decisions also discuss circumstances where the judge may comment on the failure of an accused to give evidence, and what use may be made of such failure by the jury. See [8.100] 201

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If the accused calls or gives evidence, that evidence is put before the court in the same manner as for the prosecution described above. The final stage is the closing address to the court. If the accused does not give evidence, they have the right of final address. The prosecution summarises its case and makes submissions on law to the court, followed by the defence’s closing arguments and submissions. In Queensland, if the accused gives evidence the defence will make its final address first.142 The significance of the order of final addresses in the Magistrates Courts is not as great as in a jury trial in a higher court where counsel addressing last may engage in an emphatic and often dramatic performance to the jury.143 When all the evidence has been heard, the magistrate decides whether or not the charge has been proved to the required standard of proof. If there is a reasonable doubt, the matter will be dismissed.144 Consideration may then be given to an application for a costs order.145 If the charge has been made out beyond reasonable doubt, the magistrate convicts the accused and proceeds to hear submissions on an appropriate sentence.146 Alternatively, if the magistrate agrees, the sentencing hearing may be adjourned to allow for any further material relevant to the sentencing to be obtained.

Trials in the higher court [8.110] As noted, the trial process in the higher courts runs in a similar manner to that in the Magistrates Courts in regard to the order of evidence. The following section focuses on those aspects of trial procedure that are peculiar to the higher courts.

Trial by judge alone or jury [8.120] Prior to a trial in the higher courts, the accused will (usually) have been committed for trial and an indictment containing the charges will have been presented in the relevant court.147 Somewhat similar to the provision for Directions Hearings in the Magistrates Courts, applications may have been made for pre-trial rulings148 and directions.149 Pre-trial applications may concern such matters as the admissibility of confessional or expert evidence, a direction on

142

generally, J R S Forbes, Evidence Law in Queensland (7th ed, Thomson/Lawbook Co., Sydney, 2008). Refer also to Chapter 1 of this text on the onus of proof. QCC, s 619.

143

The rationale being that it will be the last thing the jury hears from counsel before it considers its verdict. For advocacy materials relating to presentation and style of closing arguments, see T Mauet and L McCrimmon, Fundamentals of Trial Techniques (3rd ed, Thomson Reuters, 2011) Ch 7.

144 145

JA(Qld), s 149. See Chapter 5 in relation to costs applications.

146 147 148

JA(Qld), ss 150-152; See Chapter 11 and 12 in relation to sentencing. See Chapter 6 for committals, indictments and ex officio indictments. A broader range of matters may be the subject of pre-trial rulings in the superior courts. Note also QCC, s 596, which permits an application to quash the indictment on the ground

202 [8.110]

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disclosure requirements,150 applications for separate trials in the case of joint accused,151 or an application for trial by a judge sitting without a jury. A trial formally commences when the accused is “arraigned” on the indictment – that is, the charge is read out in front of the court and the accused is asked to respond with a plea of “guilty” or “not guilty”.152 If there is a guilty plea153 or if the accused pleaded guilty at committal and the matter is sent up to a higher court for sentencing154, submissions will be made by counsel for both the prosecution and defence on an appropriate penalty. Where the accused pleads not guilty to an indictment in Queensland, they are “deemed to have demanded that the issues raised by such plea … shall be tried by a jury,155 and are entitled to have them tried accordingly”156 (subject to an application to have a judge only trial). On its face, this might suggest a general right to be tried by jury but, as was highlighted in Chapter 5, many serious indictable offences are tried summarily.

Judge alone trials [8.130] Before a trial begins,157 the prosecution or defence may make an application to the court that the accused person be tried by a judge sitting without a jury.158 In Queensland, this is referred to as a “no jury order”. No jury orders will only be made when it is “in the interests of justice” to do so.159 The starting presumption is that the interests of justice are best served by the inclusion of the community, through the jury, in the trial process. However, the discretion to order a judge alone trial is an unfettered one, having regard to the particular circumstances of the case.160 The following are non-exhaustive categories of

152 153

that it is formally defective or calculated to prejudice or embarrass the person in their defence – if the application is successful, the court may either quash the indictment or order its amendment. QCC, s 590AA. QCC, s 590AAA. QCC, s 597A; see also De Jesus v The Queen (1986) 68 ALR 1; 22 A Crim R 375; R v Andrews [1987] 1 Qd R 21; (1986) 22 A Crim R 201. An application for a separate trial may also be made at any time during the trial: QCC, s 597B. QCC, s 597C. QCC, ss 598(2)(a) and 648.

154

JA(Qld), s 113 and QCC, s 600.

155

For a brief overview of the history of the jury in Australia, see NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Discussion Paper 12 (Sydney, 1985). QCC, s 604(1); District Courts Act 1967 (Qld) s 65; Supreme Court Act 1995 (Qld) s 203. The trial begins when the jury panel attends before the court: QCC, s 614(6). QCC, s 614; Note that if the prosecutor has brought the application, an order can only be made if the accused consents to a judge alone trial: QCC, s 614(2); CPA(WA), s 118(4). Presumably, to avoid the temptation of “judge shopping”, the QCC, s 614(3) states that if the identity of the trial judge is known to the parties when the application is decided, a no jury order may be made only if the court is satisfied there are special reasons for making it. QCC, s 615(1). R v Clough [2008] QSC 307 at [14] per Mackenzie J. In this case Mackenzie J canvassed a number of issues associated with judge alone trials.

149 150 151

156 157 158

159 160

[8.130] 203

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circumstances that may make a no jury order in the interests of justice and which are included in QCC, s 615(4): • the complexity or length of the trial is likely to be unreasonably burdensome to a jury;161 • there is a real possibility that acts constituting retaliation against a juror would be committed; and • it may be in the interests of justice162 to make a no jury order where there has been significant pre-trial publicity that may affect jury deliberations. In contrast, the court may refuse to make a no jury order “if it considers the trial will involve a factual issue that requires the application of objective community standards including, for example, an issue of reasonableness, negligence, indecency, obscenity or dangerousness”.163 Further, if there is more than one charge or more than one accused charged on an indictment, a no jury order cannot be made against some charges or some defendants; it must be made in relation to all charges and all defendants.164 Apart from the obvious difference of not having a jury, a judge alone trial is essentially conducted in the same manner as a trial by judge and jury. In fact, the judge is required, as far as possible, to apply the same principles of law and procedure as would be applied in a trial before a jury.165 Further, the judge is entitled to make any findings and give any verdict that a jury could have given and each finding or verdict has the same effect as those made by a jury.166 Perhaps the most notorious example of a judge alone trial since the amendments in Queensland is that of Dennis Ferguson. Following an ultimately unsuccessful application for a permanent stay of proceedings based on prejudicial pre-trial publicity, Ferguson was ordered to stand trial on a charge of indecent treatment of a child under 16 years with a circumstance of aggravation.167 He successfully applied for a no jury order on the basis that there had been significant pre-trial publicity that may affect jury deliberations.168 Ferguson was subsequently tried and acquitted of the charge by a judge sitting alone.169

161 162 163 164 165 166 167

168

169

See, eg, R v SAA [2009] QDC 5, where a judge alone trial was ordered due to the complexity of the case. As to the term “interests of justice” see Mickelberg v the Queen (no 3) (1992) 8 WAR 236 at 251. QCC, s 615(5). QCC, s 615A. QCC, s 615B(1). QCC, s 615C. See R v Ferguson [2008] QDC 136 and the subsequent successful appeal by the AttorneyGeneral of Queensland: R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227. R v Ferguson [2009] QDC 158. The ODPP did not oppose the making of a no jury order. It must be further noted that the Hon Judge Robin QC commented that had the ODPP been able to prove the indecent acts that they alleged, there would have been no issue as to whether those acts amounted to indecent acts according to ordinary community standards: R v Ferguson [2009] QDC 158 at pp 5-6. This common sense finding negatived the effect of QCC, s 615(5) and allowed a no jury order to be made. R v Ferguson [2009] QDC 049.

204 [8.130]

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On the other hand, in the case of R v Patel [2012] QSC 419, Patel applied unsuccessfully for a judge alone trial. Patel had been repeatedly labelled by media as “Dr Death” together with other criticisms of his capacity as a surgeon, his character and conduct.170 There was a previous trial that proceeded with a jury and no application was made for a judge alone trial on that occasion.171 In Patel, the court commented that “the law recognizes that juries are capable of handling issues of prejudice arising from the pre-trial publicity that has occurred here”.172 The court ruled that, in spite of the publicity, a fair trial could proceed.173 This is to be read together with the discussion about jury questioning in the selection process as ruled upon in R v Patel (No 4).174

Jury trials Jury selection and empanelling [8.140] The selection of jury members and the empanelling of the jury are regulated by the Jury Act 1995 (Qld).175 The jury of 12 is ultimately chosen from a panel of prospective jurors randomly selected from the electoral roll and summonsed to attend court.176 After pleading to the indictment, but before the selection process begins, the accused is informed of their right to “challenge” a potential juror.177 Both the defence and the prosecution may make peremptory challenges. In Queensland, the prosecution and each accused may make eight peremptory challenges.178 Two less common challenges may also be made: • a “challenge for cause” may be made on the basis that a potential juror is not qualified for service and/or is not impartial, and that questions should be put to him or her;179 and • a “challenge for cause” may be made where questions are put to the entire jury.180 The challenge for cause, where questions are put to the entire jury, is made in the final stage of the jury selection process, after all the jurors have been sworn.

170

R v Patel [2012] QSC 419 at [42].

171 172 173

R v Patel [2012] QSC 419 at [35]. R v Patel [2012] QSC 419 at [46]. R v Patel [2012] QSC 419 at [46].

174 175

[2013] 2 QD R 544; [2013] QSC 62. The main provisions of the Jury Act 1995 (Qld) relating to criminal trials are contained in Pts 5 and 6 of that Act. See JAQ, s 4 for the eligibility requirements and the various grounds of exclusion. Refer also to JAQ, ss 9-10, 15-16, 18 and 26-27. See Lyons v Queensland [2016] HCA 38 where a deaf person who required the services of an Australian Sign Language (“Auslan”) interpreter was excused from jury service in Queensland. JAQ, ss 39 and 44; Criminal Practice Rules 1999 (Qld) r 47. JAQ, s 42. For a discussion about peremptory challenges see: J Horan and J GoodmanDelahunty, “Challenging the Peremptory Challenge System in Australia” (2010) 34 Criminal Law Journal 167. JAQ, s 43. JAQ, s 47.

176

177 178

179 180

[8.140] 205

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Challenges for cause on the basis of prejudicial pre-trial publicity were made in R v Stuart181 and Murphy v The Queen.182 Notwithstanding extensive media attention prior to both trials, the appellate court in both cases held that the respective trial judges had exercised their discretion correctly and had taken appropriate steps in directing and warning the juries about any pre-trial publicity. Of particular significance was the failure of the defence to present a sufficient factual foundation to justify examining prospective jurors. Unsuccessful applications for the special procedure afforded by the Jury Act (Qld) in relation to challenging the entire jury were made by counsel for Bill D’Arcy in all three of his trials for numerous sexual offence charges.183 Section 47 of the Jury Act (Qld) provides the following example of the operation of the provision: Prejudicial pre-trial publicity may be a special reason for questioning persons selected as jurors or reserve jurors in the final stage of the jury selection process.184

D’Arcy unsuccessfully appealed against all his convictions on various grounds, including the trial judges’ refusals of the JAQ, s 47 applications.185 At D’Arcy’s first trial, the JAQ, s 47 application sought four questions to be put to the jury to determine whether or not they could be impartial. The questions focused on the following facts: • D’Arcy had been a Member of Parliament for 22 years prior to his resignation in 2000, and had been subject to adverse publicity when the media reported his receiving $660,000 in superannuation while facing serious charges; • the media had referred to him as “the Phantom” for several years as he lived outside his Woodridge electorate in a luxurious residence, attracting criticism for failing to represent his Woodridge constituents; and • significant media attention had been given to his refusal to resign over the “Net-bet affair”186 and the fact that his refusal might lead to the downfall of the Beattie Government. Douglas J refused the application on the basis that the requirement for “special reasons” under s 47 of the JAQ had not been established,187 and that the normal

181 182 183 184 185

186 187

[1974] Qd R 297, dealing with JAQ, s 43 and referred to in Murphy v The Queen (1989) 167 CLR 94 per Mason CJ and Toohey J. (1989) 167 CLR 94 per Mason CJ and Toohey J, addressing an application under s 46 of the Jury Act 1977 (NSW), which is similar to s 43 of the Jury Act (Qld). The trials took place in 2000, 2002 and 2004. For the ruling of the trial judge, Douglas J, see R v D’Arcy [2000] QSC 425. Featured “examples” are not part of legislation but may extend the meaning of a provision: see Acts Interpretation Act 1954 (Qld), s 14D. A special leave application to appeal to the High Court in relation to the first trial was refused: see R v D’Arcy (2001) 122 A Crim R 268; [2001] QCA 325, where the appeal against conviction was dismissed but the sentence reduced. For special leave application, see D’Arcy v The Queen (Transcript, High Court of Australia, 26 June 2002); and for the appeal from the second trial, see R v D’Arcy (2003) 140 A Crim R 303; [2003] QCA 124. For the final appeal against the convictions arising from the 2004 trial, see R v D’Arcy [2005] QCA 292. The “net-bet affair” related to a company that obtained Queensland’s first online gaming licence. D’Arcy had links to the company. R v D’Arcy [2000] QSC 425 per Douglas J, citing R v Murphy (1989) 167 CLR 94 at 98 and 104.

206 [8.140]

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process of informing a jury of their obligation to cast aside any views outside the courtroom and act only upon the evidence would be sufficient. Similar applications were made and refused in both his second and third trials for similar offences, and in each case an appeal on the JAQ, s 47 point was dismissed.188 In the third appeal, Keane JA noted that both the earlier appeals were rejected as the appellant had not shown “special reasons for inquiry” under s 47 of the JAQ.189 On the basis that there was no point of distinction from the earlier cases, the Court of Appeal rejected the argument that the intensity of the adverse publicity towards D’Arcy had accumulated to the extent that prior to his 2004 trial there were now “special reasons”. Relying on Murphy,190 Keane JA emphasised that: [A] sufficiently exceptional case is not made out simply by pointing to adverse comments made in the media and suggesting that such comments have a general tendency to lead jurors to develop prejudicial feelings against an accused … To goonly so far does not establish a risk that individual jurors may not be “impartial” in the sense that they may be actually biased against the accused, or unable or unwilling to comply with the directions of the trial judge to ignore prejudicial comments in the media about him.191

One example of the operation of jury questioning occurred in the case of R v Patel (No 4).192 Fryberg J ordered that questions be asked of the jurors in the final stage of the jury selection process. The pre-trial publicity in Patel included significant and lengthy labelling of Dr Patel as “Dr Death”. Since 2005, there had been a massive amount of publicity given to the defendant on radio, in television, on the internet, in newspapers and in books.193 It was held that, inter alia, • the judicial discretion under s 47 of the Jury Act should be exercised so as to avoid an unduly lengthy process of questioning and vexatious procedures • prejudicial pre-trial publicity may, in itself, be a “special reason” for the purposes of s 47 of the Jury Act for questioning persons selected as jurors. After the jury is empanelled, the judge informs the jury of their role and of their obligations as jurors – that is, to decide questions of fact, based on the evidence and ultimately to determine whether or not the accused is, beyond reasonable doubt, guilty.194

188

192 193

R v D’Arcy (2003) 140 A Crim R 303; [2003] QCA 124; and for the final appeal against the convictions arising from the 2004 trial, see R v D’Arcy [2005] QCA 292. R v D’Arcy [2005] QCA 292 at [19] per Keane J. Murphy v The Queen (1989) 167 CLR 94. R v D’Arcy [2005] QCA 292 at [24] per Keane J, referring to Murphy v The Queen (1989) 167 CLR 94 at 104. [2013] 2 Qd R 544; [2013] QSC 62. [2013] 2 Qd R 544 at 552.

194

JAQ, ss 50-51.

189 190 191

[8.140] 207

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Hung juries and majority verdicts [8.150] In 2008, the JAQ was amended to allow for majority verdicts in all trials except for charges that attract a mandatory life sentence195 and trials for Commonwealth offences.196 In Queensland, before a majority verdict will be permitted, the judge must be satisfied that after the “prescribed period” for deliberation the jury is unlikely to reach a unanimous verdict.197 The “prescribed period” means: • a total of at least eight hours of deliberation, not including breaks; or • a period of time the judge considers reasonable having regard to the complexity of the trial.198 The case of R v McClintock199 was possibly the first trial to be conducted after the introduction of majority verdicts in Queensland. McClintock was tried on a number of offences against her estranged husband, including attempted murder or, alternatively, unlawful wounding with intent to do grievous bodily harm. Essentially, the facts of the case were that McClintock went to her husband’s home in the early hours of the morning, forced her way in, struggled with him causing him to fall from his wheelchair, repeatedly told him that she intended to kill him, and stabbed him in the chest with a carving knife. At her trial, and not long after the expiration of the prescribed period of eight hours, the judge asked the jury to continue their deliberations in order to attempt to reach a majority verdict of 11 to one. Very shortly afterwards, the jury returned a unanimous verdict that McClintock was not guilty to attempted murder and a majority verdict that she was guilty to malicious wounding. On appeal against her conviction, McClintock argued that the trial judge had not given proper consideration to the statutory provision allowing majority verdicts. The appeal was dismissed. The Court of Appeal decided that the trial judge’s assessment that a unanimous verdict would not be reached if the jury were given more time was vindicated by the rapidity with which the jury reached its majority verdict of guilty. However, the Court of Appeal noted: [I]t is appropriate to caution that a majority verdict may not be taken unless there is sufficient evidence of the unlikelihood of a unanimous verdict. Without such evidence a judge cannot be satisfied in accordance with s 59A(2). The most certain way of ascertaining the fact is to question the jury about the prospect of unanimity. Another would be to give a Black direction after the expiration of the prescribed period and wait a further reasonable time (which the judge must assess). If there is still no verdict the existence of the requirement might be inferred.200

A “Black direction”201 is given where the jury indicate to the court that they are unable to reach a verdict and the conditions for inviting a majority verdict have 195

196 197 198 199 200

See QCC, s 310 (Murder) and s 54A(4) (Aggravated demands with menaces upon agencies of government). Note, however, that a verdict on an alternative charge need not be unanimous, eg manslaughter, as an alternative to murder: JAQ, ss 59(4) and 59A. JAQ, s 59; see also s 57. JAQ, s 59A. JAQ, s 59A(6). [2009] QCA 175. [2009] QCA 175 at [41].

201

Black v The Queen (1993) 179 CLR 44.

208 [8.150]

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not yet been satisfied. The direction is usually given after the jury has been deliberating for some time, or if they return to the courtroom to ask questions of the judge, thereby revealing a deadlock. The effect of the direction is to encourage the jury to reconsider their points of difference. It is cloaked in terms that make it clear that juries can be discharged if a verdict is unable to be reached but that experience shows that in most instances juries will reach agreement.202 If the jury cannot agree on a unanimous or majority verdict, it is said to be a “hung jury” and they will be discharged.203 The accused may or may not be put on trial again.204 The trial of the former Premier of Queensland, Sir Joh Bjelke-Petersen, on perjury charges arising out of the Fitzgerald Inquiry, represents one of the best-known Queensland trials that resulted in a hung jury.205 It became known that the jury foreperson was a member of the National Party and was a Bjelke-Petersen supporter. The defence unsuccessfully applied for the jury to be discharged and the trial therefore ran its full course. Ultimately, the jury was unable to agree on a verdict. In controversial circumstances, the indictment was withdrawn and Sir Joh was not re-prosecuted. Research conducted in the United Kingdom indicates that hung juries are now relatively rare; only around 0.6 percent of all verdicts are hung juries in the United Kingdom.206 Nevertheless, the factors of cost and delay associated with the incidence of hung juries has provided a rationale for the general trend towards permitting majority verdicts. On the other hand, the main criticism of majority verdicts is grounded in the fundamental principle that a person is innocent until proven guilty and a reasonable doubt in the minds of one or two jurors should result in an acquittal. Convicting an accused on the basis of any reasonable doubt is akin to a miscarriage of justice.207

Secrecy of jury deliberations [8.160] In 1997, the secrecy requirement in respect of the jury’s deliberations in Queensland was considerably tightened. Section 70 of the Jury Act creates a number of offences in relation to the publication or disclosure of “jury information”.208 There are very narrow exceptions to the secrecy requirements in Queensland, such as where a former jury member is receiving treatment from a

202

203 204 205

206 207 208

Black v The Queen (1993) 179 CLR 44 at 51; Supreme Court Benchbook direction on Majority Verdicts: http://www.courts.qld.gov.au/__data/assets/pdf_file/0006/86055/sd-bb-52a-major ity-verdict.pdf. JAQ, s 60. JAQ, s 60. See Hon J Carter, Inquiry into the Selection of the Jury for the Trial of Sir Johannes Bjelke-Petersen (Criminal Justice Commission, Queensland, 1993) for the circumstances of the trial and the jury selection. C Thomas, ‘Are Juries Fair?” Ministry of Justice Research Series, Ministry of Justice, London, 2010. See O Hortz, “Juries: A Unanimous Verdict?” (1996) 1(3) Themis 7. “Jury information” is defined in JAQ, s 70(1). For a discussion of the pros and cons of jury secrecy, see J Tunna, “Contempt of Court: Divulging the Confidences of the Jury Room” (2003) 9 Canterbury Law Review 79. [8.160] 209

Criminal Process in Queensland

health professional in relation to issues connected with the person’s service on the jury.209 Jurors are not permitted to make any inquiries about the accused for example, by searching the internet.210 In R v K,211 a retrial was ordered after it was revealed that jurors had undertaken internet searches regarding the accused. K was charged with murdering his first wife and convicted on a retrial. On appeal against conviction, K’s lawyers disclosed that after the trial they had a conversation with members of the jury at a nearby hotel. The jurors informed them that prior to reaching their verdict, some jurors had searched the internet and found information that K had been tried and acquitted of the murder of his second wife and that he had already stood trial for the murder of his first wife.212 If juries require a further direction or need to review certain evidence during the course of their deliberations, that is communicated through a jury note to the trial judge.213 The trial judge reviews each question. The matter is discussed with the lawyers before deciding how to address the question. In the case of R v JX,214 one jury member revealed during the course of deliberations that she had been raped as a younger woman and the other members of the jury sought direction from the trial judge on that issue. Although the note was received, and the trial judge foreshadowed with counsel giving a further direction to the jury about impartiality, the jury returned verdicts of guilty before further directions were given. Although McMurdo P and Morrison JA differed in their reasons for judgment, each concurred that there was a miscarriage of justice which justified a retrial.

Debates about the jury system [8.170] A great deal of discussion and debate concerning various features of the jury system come from a variety of disciplines, many of them outside law.215 There is a large pool of research available on jury decision-making.216 Some commentators suggest that the area is over-researched at the expense of other topics, such as 209

JAQ, s 70(12). See also JAQ, s 70(8); and R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [92]-[112].

210

JAQ, ss 50 and 69A. Making inquiries about the accused is also an offence punishable by a maximum of two years’ imprisonment. (2003) 144 A Crim R 468. R v K (2003) 144 A Crim R 468 at 485-486. For a further discussion of jury misconduct and the possible consequences of jury irregularity, see D Boniface, “Juror Misconduct, Secret Jury Business and the Exclusionary Rule” (2008) 32 Criminal Law Journal 18; R v Metius [2009] QCA 3; and Burrell v The Queen [2009] NSWCCA 163.

211 212

213 214 215

216

See Supreme Court Benchbook, direction number 15: http://www.courts.qld.gov.au/__data/a ssets/pdf_file/0019/86014/sd-bb-15-jury-questions.pdf [2016] QCA 240. Standard legal texts on trial advocacy include material on jury selection, drawing from social and behavioural science research: see, eg, T Mauet and L McCrimmon, Fundamentals of Trial Techniques (3rd ed, Thomson Reuters, 2011) Ch 2. The annotated filmography by K Laster, K Breckweg and J King, The Drama of the Courtroom (Federation Press, Sydney, 2000) pp 34-35 features a list of 26 films portraying various elements of the jury’s operation. See generally: J Horan, Juries in the 21st Century (Federation Press, Leichardt, 2014). See also, for examples T Daftary-Kapur, R Dumas and S Penrod, “Jury Decision-making Biases and Methods to Counter Them” (2010) 15 (1) Legal and Criminological Psychology 133; D Bright

210 [8.170]

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the discretional decision-making that occurs throughout the criminal justice system.217 Co-existing with the literature on jury decision-making is an enormous amount of material devoted to the pros and cons of the jury system and the rules, procedures and practices associated with the jury.218 From the research it is clear that there are two clear bodies of thought – one expresses undeniable support for jury trials, the other serious criticisms. Typical arguments in favour of jury trials include: • as representatives of the community, juries are able to reach objective, just and fair verdicts that align with the greater community’s evolving social and ethical standards; • offenders are more likely to feel that justice has been done if they are judged by their peers, as opposed to a single judge; • the jury system encapsulates the ideals of democracy; and • group decision-making processes often overcome individual frailties.219 Typical arguments against jury trials include: • juries are not representative of the wider community; • a significant number of trials result in a hung jury, particularly where the issues at trial are complex; • the secrecy and unpredictability of deliberations; • cost and time factors; and

217

218

219

and J Goodman-Delahunty, “Gruesome Evidence and Emotion: Anger, Blame and Jury Decision-Making” (2006) 30(2) Law and Human Behaviour 183; and A L Ellison and V Munro, “Turning Mirrors into Windows?: Assessing the Impact of (Mock) Juror Education in Rape Trials” (2009) 49(3) British Journal of Criminology 363. See, eg, J Kadane, “Sausages and the Law: Juror Decisions in the Much Larger Justice System” in R Hastie (ed), Inside the Juror: The Psychology of Juror Decision Making (Cambridge University Press, 1993) p 229. Criminal Justice Commission, Queensland, The Jury System in Criminal Trials in Queensland, Issues Paper (1991); NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report No 48 (1986); NSW Law Reform Commission, Majority Verdicts, Report No 111 (2005); S Bronitt and R Hogg, “The Role and Future of the Jury in the Australian Legal System” (2003) 15(3) Legal Date (Australian National University) pp 1-4; V Bell, “How to Preserve the Integrity of Jury Trials in a Mass Media Age” (2005) 7 The Judicial Review 311; J Clough, “The Role of Judges in Assisting Jury Comprehension” (2004) 14 Journal Judicial Administration 16; C Semmler and N Brewer, “Using a Flow-chart to Improve Comprehension of Jury Instructions” (2002) 9(2) Psychiatry, Psychology and Law 262; T Percy, “Jury Vetting in Western Australia” (2006) (September) Brief 6. Jury vetting is forbidden in Queensland: Jury Act 1995 (Qld) s 35. See, eg, M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) pp 158-161; see also NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report 48 (1986) Ch 2 at [2.3]. For a consideration of jury “nullification”, a discussion of the Eureka rebellion trial in 1855, and the OJ Simpson trial, see I Vodanovick, “Jury Competence, Decision-Making, and Nullification” in K Auty and S Toussant (eds), A Jury of Whose Peers? The Cultural Politics of Juries in Australia (University of Western Australia Press, 2004) pp 34-48. [8.170] 211

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• the real impact of extraneous factors, such as pre-trial publicity and inadmissible evidence, notwithstanding judicial warnings and directions.220 Numerous commentators adopt a middle position, suggesting improvements to the existing jury system for example, the provision of more information to juries and making juries as representative of the community as possible.221 Auty noted in 2004 that in her 20 years of experience as a lawyer she has never seen an Indigenous juror.222 Historically, Indigenous Australians were unable to satisfy the eligibility requirements in regard to property and the electoral roll to be able to serve on a jury. In Queensland, Indigenous persons did not obtain the right to vote in State elections until 1965223 and, as Auty notes, even now they may be administratively excluded from being able to serve as jurors since many will still not be on electoral rolls.224 Recently, debates in relation to juries have centred on the potential prejudice involved with pre-trial publicity particularly because of the pervasive nature of social media and its relationship with the news media.225 Although there remains the admonition at the beginning of trials where juries are told not to make enquiries,226 the question remains whether or not a defendant can be tried fairly in this technology driven age.227

Commonwealth offences – a right to trial by jury? [8.180] Section 80 of the Commonwealth Constitution provides: 220 221

222

223 224

225 226 227

See, eg, NSW Law Reform Commission, Criminal Procedure: The Jury in a Criminal Trial, Report No 48 (1986). A number of possible areas for change are addressed by M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) pp 161-165; see also the NSW Law Reform Commission reports cited above. K Auty, “Putting Aboriginal Defendants off Their Country” in K Auty and S Toussant (eds), A Jury of Whose Peers? The Cultural Politics of Juries in Australia (University of Western Australia Press, 2004) p 60. Voting was not compulsory for Indigenous persons until 1971. See K Auty, “Putting Aboriginal Defendants off Their Country” in K Auty and S Toussant (eds), A Jury of Whose Peers? The Cultural Politics of Juries in Australia (University of Western Australia Press, 2004) p 59. Indigenous Australians could not vote in federal elections until 1948. See also Austlii, Voting and Citizenship Rights, National Report (Reconciliation and Social Justice Library), Vol 3; and M Reid, “Caste-ing the Vote: Aboriginal and Torres Strait Islander Voting Rights in Queensland” (2004) 30(2) Hecate 71. While Queensland was the last to afford State voting rights to Indigenous persons, it was, in 1905, the first to give (non-Indigenous) women the right to vote. For insight into the attitudes of WA parliamentarians in the 1930s-1950s towards the prospect of women being given the right to sit on juries, see S Walker, “Battle-Axes and Sticky-Beaks: Women and Jury Service in Western Australia 1898-1957” (2004) 11(4) Murdoch University Electronic Journal: http://www.murdoc h.edu.au/elaw/issues/v11n4/walker114nf.html. For a discussion of ethnic minority representation in the jury system, see also A Ashworth and M Redmayne, The Criminal Process (4th ed, OUP, 2010) pp 333-337. See Hon A St Eve and M Zuckerman, “Ensuring an Impartial Jury in the Age of Social Media” (2012) 11 Duke Law and Technology Review 1. See the discussion in Queensland Law Reform Commission, A Review of Jury Selection: Report (Queensland Law Reform Commission, Brisbane, 2011) p 293. See N Marder, “Jurors and Social Media: Is a Fair Trial Still Possible” (2014) 67 Southern Methodist University Law Review 617.

212 [8.180]

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The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the state where the offence was committed …

On its face, s 80 of the Commonwealth Constitution appears to embody a fundamental right to trial by jury for serious offences. However, in a number of decisions, the High Court has construed the section narrowly as merely having a procedural, rather than a substantive, effect.228 As a consequence, legislation that allows for summary determination of indictable offences is not beyond power. As is the case in Queensland, a significant number of Commonwealth offences may be determined summarily and, as Brown points out, there is nothing to stop the Commonwealth from allowing extremely serious offences to be dealt with summarily.229 Where a Commonwealth indictable offence is dealt with on indictment, the jury’s verdict must be unanimous.230

Other aspects of superior court trials [8.190] As in the Magistrates Courts, at the end of the prosecution case, a “no case submission” may be made. In Doney v The Queen,231 the High Court emphasised that “a trial judge only has power to direct an acquittal where there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty”.232 Therefore, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury … it must go to the jury”.233

228

229

230 231 232

233

See Kingswell v The Queen (1985) 159 CLR 264, but also note Deane J’s dissenting judgment, especially at 298-300, 307-308 and 319-322. The majority in Cheng v The Queen (2000) 203 CLR 248 held that, where the appellants had pleaded guilty to certain drug offences under the Customs Act 1901 (Cth), it did not raise a question about any possibility of denial of a right to trial by jury and it was unnecessary to reconsider Kingswell. Kirby J (at 251, dissenting) considered that s 80 “has been mocked and evaded in Australia for too long”. See also V Thackeray, “Trial by Jury: A Political Analysis” (2006) 30 Criminal Law Journal 275; and J Stelios, “The High Court’s Recent Encounters with Section 80 Jury Trials” (2005) 29 Criminal Law Journal 139. D Brown, D Farrier, L McNamara, A Steel, M Grewcock, Julia Quilter, and M Schwartz, Criminal Laws: Materials and Commentary (6th ed, Federation Press, 2015) p 383-384. One of the 1998 referendum proposals sought to amend s 80 to ensure a right to trial by jury where an accused faced charges punishable by two or more years’ imprisonment – the proposal failed. Jury Act 1995 (Qld), s 59(1)(a)(iii); Cheatle v The Queen (1993) 177 CLR 541; and Brownlee v The Queen (2001) 207 CLR 278. (1990) 171 CLR 207 at 214-215; see also May v O’Sullivan (1955) 92 CLR 654 at 658. See, eg, R v James, Tappin and Thomas [2009] QSC 93; See also Supreme Court Benchbook direction 14 – Directed Verdict: http://www.courts.qld.gov.au/__data/assets/pdf_file/0018/8 6013/sd-bb-14-directed-verdict.pdf See Antoun v The Queen (2006) 159 A Crim R 513; [2006] HCA 2 for an appeal on the ground of apprehended bias on the part of a District Court judge in a judge-alone trial. When counsel for the accused indicated he would make a no case submission, the judge announced his decision immediately without hearing any argument; and when pressed, he listened to the argument “under sufferance” and then repeated his decision. Note Hayne J’s concern (at [54]) about when and how no case submissions may be made in judge-alone trials, and what the appropriate “test” might be. [8.190] 213

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If a no case submission is made and fails, or is not made at all, the defence can elect whether or not to call evidence.234 During the trial, or before trial on a pre-trial application, points as to the admissibility of evidence will be considered without the jury being present. This is known as a “voir dire”. A “voir dire” might be held, for example, as soon as the jury has been empanelled in order to determine whether or not an alleged confession is admissible. Where an expert witness is to give evidence, a voir dire may be conducted to establish whether the proposed witness is qualified to give an expert opinion (if that is disputed). When all the evidence has been presented to the court, both the prosecutor and defence counsel sum up their cases to the jury in their final addresses. In Queensland, defence counsel has the final right to address the jury. However, if the accused has given or adduced evidence, the final right to address the jury is given to the prosecution.235 The judge then sums up the evidence in the case and directs the jury on the relevant law.236 The jury will then retire to consider its verdict. In the absence of the jury, either counsel may seek to have the trial judge redirect the jury on particular matters.

NOLLE PROSEQUI [8.200] At any time up until the verdict is given, a “nolle prosequi” can be entered by the prosecution. This means that the prosecution does not wish to proceed further on any particular count or counts in the indictment or on the entire indictment.237 The entering of a nolle prosequi (referred to as “nolle” for convenience) involves either the Attorney General or the Director of Public Prosecutions238 informing the relevant court in writing that the prosecution will not proceed any further on the indictment or on a particular charge on the indictment.239 In practice, the Crown Prosecutor will ask for the indictment to be handed back from the judge so that the nolle can be entered against the relevant charge or charges, or in relation to the entire indictment.240 The effect of a nolle is to bring the prosecution of the indictment, or of any charge on the indictment, to an end. However, it does not establish innocence and a further indictment can be presented to the court in relation to the same offence at a later date.241

234 235

QCC, s 617. QCC, s 619.

236

QCC, s 620.

237 238

QCC, s 563. “Nolle prosequi” is Latin for “refuse to pursue”. QCC, s 1.

239 240

QCC, s 563(1). Note that as only certain prosecutors are charged with the authority to enter a nolle, it is often the case that a “paper nolle” is tendered instead of the nolle being entered on the indictment itself. A paper nolle has the same effect; it is simply pre-prepared and signed by an authorised officer of the ODPP. QCC, s 563(3). See Davis v Gell (1924) 35 CLR 275 at 287; R v Saunders [1983] 2 Qd R 270 at 271-272; and R v Doyle [1980] Qd R 308.

241

214 [8.200]

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The prosecution is able to enter a nolle at any time until the verdict is given.242 Clearly, however, entering a nolle late in the prosecution’s case, during the defence case, or later still, may raise questions of fairness to the accused.243

Fairness and nolle prosequi [8.210] The Queensland legislation is silent on this issue; however, the courts have protected the fair trial doctrine by refusing to accept a nolle in circumstances of patent unfairness. For instance, in R v Saunders,244 Shepherdson J took the fairly unconventional approach at the time of refusing to accept a nolle. Saunders had been charged with attempting to procure a “hitman” to kill a man with whom she had previously had a relationship. The prosecution relied on a tape-recording of a damaging conversation alleged to have occurred between Saunders and another person. Late in the trial it became apparent that the tape was a fabrication and the prosecution attempted to enter a nolle. Shepherdson J refused to accept the nolle on the grounds that Saunders had already been through the trial and it would be unfair to expose her to continued uncertainty as to whether she would be put through a further trial. Given the lack of evidence other than the inadmissible recording, the judge directed an acquittal.245 Shepherdson J held (at 274): The Crown’s power to enter a nolle prosequi is, in my respectful view, now subject to the court’s inherent power to prevent abuse of its process …246

The decision in Saunders was unanimously approved in R v Jell; Ex parte Attorney-General,247 where the accused was charged, incorrectly, with fraud (QCC, s 408C) involving altered cheques. The money raised by the cheques still technically belonged to the bank and had not passed to Jell, which was a requirement under QCC, s 408C. As a matter of law, the incorrect charge went to the jury and while the jury was considering its verdict, the prosecution attempted to enter a nolle. The judge refused to accept it and directed an acquittal.248 The Court of Criminal Appeal drew a distinction between the right of a prosecutor to enter a nolle, which is unrestricted, and the inherent right of a court to refuse to 242 243 244 245

246

247 248

R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35. See discussion in R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48. R v Saunders [1983] 2 Qd R 270. R v Saunders [1983] 2 Qd R 270; cf R v Ming Yeuk Lam (1998) 100 A Crim R 188, where the WA Court of Criminal Appeal found that a nolle should have been accepted in relation to the first indictment as the second indictment contained a similar charge, relied on the same evidence and had been filed well ahead of the trial. Prior to Saunders, the accepted view in Queensland was that a judge could not refuse to accept a nolle as it was a decision exclusively within the ODPP’s province and untouchable by the courts: R v Sneesby [1951] St R Qd 26. See a discussion of the Queensland cases up until 1993 in P McDermott, “Nolle Prosequi – The Law and Practice in Queensland” (1993) 17 Criminal Law Journal 319. Shepherdson J approached the question on fair trial grounds, drawing support from Barton v The Queen (1980) 147 CLR 75 where the High Court considered fairness issues surrounding ex officio indictments. See also Kirby J in DPP (SA) v B (1998) 194 CLR 566 at 599-600 and 606. [1991] 1 Qd R 48. Following Jell’s acquittal, the Attorney-General issued a reference to the Court of Criminal Appeal under QCC, s 669A(2). [8.210] 215

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accept a nolle when it would amount to an abuse of process. Thomas J commented (at 63): The entry of a nolle prosequi at the final stages of a trial is effectively an abortion of that trial and a unilateral preservation of rights by one party – the Crown … The power of the court to prevent this happening when it is plainly intended as a means of enlivening an almost dead prosecution, and where the further prosecution must be regarded as an oppressive abuse, is simply an aspect of the court’s duty to control its own process and to ensure that the accused receives a fair trial.

The decision in Saunders has been affirmed on many occasions in Queensland and elsewhere, including by Kirby J in the judgment of DPP (SA) v B.249 The respondent, B, had been charged with six sexual assault offences; the complainant failed to attend the trial to give evidence. Prosecution counsel then indicated she wanted to enter a nolle, but the trial judge would not permit it. In those circumstances, the prosecution had no evidence to put before the court and the judge entered a verdict of not guilty on all charges and discharged the accused. Kirby J cited with approval the Queensland decisions of Saunders250 and Jell251 where nolles were refused and verdicts of not guilty were directed. A trial judge who acts in that manner is not undertaking “a novel review of the prosecutor’s discretion to enter a nolle”, but defending its own process and ensuring “that minimum requirements of a fair trial … are observed in the courts of this country”.252 His Honour noted that the old view that a nolle cannot be refused can, and has, unfairly resulted in a jury’s guilty verdict.253 Kirby J also noted that where unfairness arises from another prosecution for the same matter that was nolled, it may be open to seek a permanent stay of the second proceedings.254 In Gipp v The Queen,255 McHugh and Hayne JJ commented that if the Crown were to attempt to prosecute the two matters that were incorrectly nolle’d (due to the language of QCC, s 563 at the relevant time), at the trial “it would have no alternative to staying the prosecution as an abuse of process”. 249

250

251 252

253 254 255

(1998) 194 CLR 566 at 600. The case went to the High Court after the trial judge referred two questions to the South Australian Full Court under s 350(1A) of the Criminal Law Consolidation Act 1935 (SA) – ie, whether or not the judge had the power to refuse a nolle and, if so, whether or not there were any limitations to the exercise of that power. The Full Court answered “Yes” to both questions. The DPP then appealed to the High Court. The majority held that the Full Court did not have jurisdiction to entertain the questions as the trial had not formally begun when the Crown sought to enter the nolle, and ordered the Full Court’s answers be set aside. Thus, for the majority, it was inappropriate to answer the questions. Kirby J’s dissenting view was that the trial had commenced, and that the Full Court had answered both questions correctly. [1983] 2 Qd R 270 at 274 per Shepherdson J: the judge refused to accept a nolle and directed an acquittal; see also R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 54 and 63; and R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35. [1991] 1 Qd R 48. See also R v Ferguson; Ex parte Attorney-General [1991] 1 Qd R 35. DPP (SA) v B (1998) 194 CLR 566 at 604, citing Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378 at 392; Ridgeway v The Queen (1995) 184 CLR 19 at 33; and Maxwell v The Queen (1995) 184 CLR 501 at 514. See also Barton v The Queen (1980) 147 CLR 75. (1998) 194 CLR 566 at 602, citing Williams v The Queen [1936] QWN 3. (1998) 194 CLR 566 at 602-603 per Kirby J, citing Jago v District Court (NSW) (1989) 168 CLR 23 at 30. (1998) 194 CLR 106 at 129 per McHugh and Hayne JJ.

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In DPP (SA) v B, Kirby J examined some circumstances in which an attempted entry of a nolle may be an abuse of process. His Honour called for the exceptional exercise of reserve power to refuse to accept nolles, while acknowledging that it is probably impossible to provide a comprehensive list of appropriate cases.256 However, a clear case would be where a trial judge refused an additional adjournment because of incompetent or inadequate preparation by the prosecution and, as a result, the prosecution nolle’d in order to enable another prosecution.257 His Honour also included the following circumstances: • where the prosecutor seeks to enter a nolle after the jury asks for assistance and their request signals a possible not guilty verdict;258 • where a case has not gone well for the prosecution and they are seeking the opportunity for a re-run;259 and • where a witness was not available and their evidence was not covered, as hoped, by other witnesses.260 Two other categories may be added to this open-ended list of circumstances: • where the Crown case does not disclose the commission of an offence as alleged in the indictment;261 and • where the prosecution’s case consists of corrupt evidence.262 In cases where a nolle is accepted, conduct by the prosecution that diminishes an accused’s right to a fair trial must be afforded an appropriate remedy for example, by expediting any further proceedings or imposing conditions upon them, ordering a stay of further proceedings, or requiring the matter to proceed to a verdict.263

256

DPP (SA) v B (1998) 194 CLR 566 at 603-605; and R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 54 per Macrossan CJ.

257

(1998) 194 CLR 566 at 605 per Kirby J, referring to Richards v Jamaica (United Nations Human Rights Committee, Communication No 535/1993): Richards was charged with murder, the prosecution accepted a guilty plea to manslaughter but then entered a nolle on that charge and proceeded to prosecute for murder. He was convicted and sentenced to death. The UNHRC found the use of the nolle and further prosecution was inconsistent with fair trial requirements under the ICCPR. (1998) 194 CLR 566 at 602 per Kirby J; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 54 per Macrossan CJ. (1998) 194 CLR 566 at 602 per Kirby J; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 62 per Thomas J. (1998) 194 CLR 566 at 602 per Kirby J; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 62 per Thomas J. P McDermott, “Nolle Prosequi – The Law and Practice in Queensland” (1993) 17 Criminal Law Journal 319; R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48 at 62 per Thomas J; see also R v Ming Yeuk Lam (1998) 100 A Crim R 188.

258 259 260 261

262 263

R v Saunders [1983] 2 Qd R 270: the fabricated tape-recording was essentially the entire prosecution evidence. DPP (SA) v B (1998) 194 CLR 566 at 607 per Kirby J. Note that in Doney v The Queen (1990) 171 CLR 207 at 214-215, the High Court emphasised that “a trial judge only has power to direct an acquittal where there is a defect in the evidence such that taken at its highest it will not sustain a verdict of guilty”. Therefore, “if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury … it must go to the jury”. Applications for a stay of proceedings on an indictment are considered in Chapter 9. [8.210] 217

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Where a nolle has been entered and, as a consequence, the accused has been discharged from the proceedings, the Attorney-General can refer a point of law that arose during the trial to the Court of Appeal.264

264

QCC, s 669A(2)(b).

218 [8.210]

CHAPTER 9 Fair Trial and Abuse of Process Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 The Concept of Fair Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 220 Abuse of Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 223 [9.40] Moti v The Queen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 226 [9.50] Avoiding and Responding to Unfairness or Abuse of Process . . . . . . . . 227 [9.90] Delay . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 229 [9.100] Jago v District Court (NSW) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230 [9.110] Prejudicial Publicity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 233 [9.120] R v Glennon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 234 [9.130] R v Long; Ex parte Attorney-General (Qld). . . . . . . . . . . . . . . . . 236 [9.140] R v Patel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 [9.150] Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 [9.160] Oppressive Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 [9.170] Williams v Spautz. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 238 [9.180] Malicious prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 239 [9.10] [9.20] [9.30]

OVERVIEW [9.10] The related concepts of “fair trial” and “abuse of process” were intensely discussed and significantly developed by the High Court in a group of cases heard in the late 1980s and early 1990s.1 The High Court has acknowledged clear links and overlaps between the two concepts.2 For example, in Jago v District Court (NSW) (“Jago”),3 Toohey J commented (at 117) that: To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.

Mason CJ has also indicated the links between fair trial and abuse of process, stating that the High Court has redefined the essential elements of the fair trial

1

2

3

Wilde v The Queen (1988) 164 CLR 365; Jago v District Court (NSW) (1989) 168 CLR 23 (hereinafter Jago); McKinney v The Queen (1991) 171 CLR 468; Petty and Maiden v The Queen (1991) 173 CLR 95; R v Glennon (1992) 173 CLR 592; Dietrich v The Queen (1992) 177 CLR 292. See also Barton v The Queen (1980) 147 CLR 75; and Walton v Gardiner (1993) 177 CLR 378. In Barton v The Queen (1980) 147 CLR 75, abuse of process and fair trial are linked by Gibbs ACJ and Mason J (at 96), and by Wilson J (at 111). See also Jago (1989) 168 CLR 23 at 71 per Toohey J, and at 30 per Mason CJ. (1989) 168 CLR 23.

[9.10] 219

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through its examination of police interrogation and the right to silence,4 the right to counsel, exhortations to the jury and abuse of process.5 The concepts of “fair trial” and “abuse of process” form the basis of the following discussion, which leads to an examination of the role of the courts in ensuring fair trial and guarding against abuse of process. An understanding of these concepts is important both to ensure the proper conduct of the trial and in relation to appeal. Trial delay, pre-trial publicity and oppressive prosecution have received significant attention. These issues are also considered in discrete sections of this chapter. The question of legal representation, which has created some challenges for what it means to have a fair trial, is discussed in the following chapter.

THE CONCEPT OF FAIR TRIAL [9.20] “Fair trial” has been described as follows: It is fundamental to our system of criminal justice that a person should not be convicted of an offence save after a fair trial according to law. The expression “fair trial according to law” is not a tautology. In most cases a trial is fair if conducted according to law, and unfair if not. If our legal processes were perfect that would be so in every case. But the law recognises that sometimes, despite the best efforts of all concerned, a trial may be unfair even though conducted strictly in accordance with the law. Thus, the overriding qualification and universal criteria of fairness!6

A number of international instruments enshrine a right to a fair trial. For example, Article 10 of the United Nations Universal Declaration of Human Rights asserts fair trial rights. It states that, in criminal matters, everyone is entitled “to a fair and public hearing by an independent and impartial tribunal”. Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) also sets out that the accused has basic minimum rights, such as adequate time and facilities for the preparation of their defence and the free assistance of an interpreter when required.7 In 1980, Australia ratified the International Covenant on Civil and Political Rights (ICCPR). This instrument contains similar minimum requirements. Although such international instruments offer legitimate guidance to the courts,8 their obligations will only be binding on

4

5 6 7

8

Police interrogation and the right to silence are examined in Chapter 2. Inferences of guilt cannot be drawn by the jury as a result of the accused’s exercise of his right to silence: see Petty and Maiden v The Queen (1991) 173 CLR 95; for a good discussion of this case and those that have followed it, see A Hemming, M Kumar and E Peden, Evidence: Commentary and Materials (8th ed, Lawbook Co., 2013) pp 696-702. Note the discussion of pre-trial disclosure and its relevance to fair trial in Chapter 8 at [8.20]; note also that the role of committals with respect to fair trial is discussed in Chapter 6 at [6.20]. The CJ. Hon Sir Anthony Mason, “Fair Trial” (1995) 19 Criminal Law Journal 7. Dietrich v The Queen (1992) 177 CLR 292 at 362 per Gaudron J. See Ebatarinja v Deland (1998) 194 CLR 444 at 454: “If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial.” See also Re East; Ex parte Nguyen (1998) 196 CLR 354; [1998] HCA 73; and De La Espriella-Velasco v The Queen (2006) 31 WAR 291; [2006] WASCA 31. Dietrich v The Queen (1992) 177 CLR 292 at 321 per Brennan J.

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judges once domestic legislation gives them effect.9 To date only Victoria and the Australian Capital Territory have given legislative expression to the ICCPR obligations10 and there are no express rights to fair trial contained in either the Commonwealth or State Constitutions.11 Despite this, some judges of the High Court have found that the fair trial principle is entrenched in s 71 of the Commonwealth Constitution. Both Deane and Gaudron JJ have found that there is an implicit requirement of fair trial in this section, as it requires that judicial power be exercised in accordance with the judicial process.12 Other members of the High Court have not asserted constitutional entrenchment but have affirmed the existence of the principle in strong terms.13 For example, Mason CJ stated in Jago that the right to a fair trial is “entrenched” in the legal system.14 Notwithstanding judicial emphasis on ensuring “fair trial”, the concept is rather vague. The courts have refused to provide an exhaustive or comprehensive definition.15 “Fairness” will depend on the facts of the case16 and will respond to changing values and standards.17 In Dietrich v The Queen, Deane J noted that “the fundamental prescript of the criminal law of this country is that no person shall be convicted of a crime except after a fair trial”.18 In his dissenting judgment in Dietrich, Brennan J noted the limits on public resources and emphasised that the concept of “fairness” is not measured against community values, but rather the question is whether it is unfair “in the sense that it has not taken place according

9

For further discussion, see R Fox, “Criminal Delay as Abuse of Process” (1990) 16 Monash University Law Review 64 at 68. See also eg, Charter of Human Rights and Responsibilities Act 2006 (Vic) s 24, which sets out the accused’s right to be tried by a “competent, independent and impartial” court.

10

Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24-25; Human Rights Act 2004 (ACT) ss 21-22. The ICCPR is also included in a schedule to the Australian Human Rights Commission Act 1986 (Cth). See J Hope, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Federal Law Review 173 at 179. For a discussion of fair trial in New Zealand, see D Mathias, “The Accused’s Right to a Fair Trial: Absolute or Limitable?” (2005) New Zealand Law Review 217 at 248 where he argues the right to fair trial is an absolute right, revocable only in times of national emergency. Dietrich v The Queen (1992) 177 CLR 292 at 326 per Deane J, and at 362 per Gaudron J; see also Assistant Commissioner Micheal James Condon v Pompano (2013) 252 CLR 38, at [177] per Gageler J; Re Nolan; Ex parte Young (1991) 172 CLR 460 at 496 per Gaudron J. The separation of powers is discussed in R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; and Grollo v Palmer (1995) 184 CLR 348 at 376. See also Editorial, “Staying a Trial for Unfairness: The Constitutional Implications” (1994) 18 Criminal Law Journal 317 at 319.

11

12

13 14 15 16 17

18

Frugtniet v Victoria (1997) 148 ALR 320 per Kirby J, who denies the constitutional support for the right; see also Chau v DPP (Cth) (1995) 37 NSWLR 639 at 653. (1989) 168 CLR 23 at 29 per Mason CJ; Dietrich v The Queen (1992) 177 CLR 292 at 299 per McHugh J. Dietrich v The Queen (1992) 177 CLR 292 at 353 per Toohey J. (1992) 177 CLR 292 at 328 per Toohey J. (1992) 177 CLR 292 at 328 per Deane J, and at 364 per Gaudron J. See also Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [8.12]-[8.19]. (1992) 177 CLR 292 at 326 per Deane J. See also CJ. Hon Anthony Mason, “Fair Trial” (1995) 19 Criminal Law Journal 7. [9.20] 221

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to law”.19 Although there is no exhaustive definition of a fair trial, certain attributes are widely recognised as the hallmarks of fairness. These include: a public trial before an independent, impartial and competent court; the accused being informed of the nature of the charges brought against him or her; the accused having sufficient time to prepare his or her defence; the trial not being subjected to undue delay; the accused having a right to legal representation; the accused being presumed innocent until proven to be guilty beyond reasonable doubt; the defence being able to examine prosecution witnesses; the accused having the right not to testify against him or herself; and the accused having the right not to be subjected to double jeopardy.20 “Fair trial” generally appears to be understood as an individual right, although the argument that the right is entrenched in the Constitution would suggest that the concept is more focused on maintaining an independent judiciary.21 As Hope points out, if it is the former purpose, perhaps the right could be waived, whereas if it is the latter, it could not.22 As no one has the right to insist that they are prosecuted by the state, Deane J observed that the fair trial principle is perhaps best described in negative terms – that is, there is no right to a fair trial, rather there is a right not to be tried unfairly.23 The right is one of several, for example, the right to trial by jury24 and the right to remain silent,25 that are heavily guarded in the criminal justice system in the interests of seeking to ensure that innocent people are not convicted of criminal offences.26 A fair trial also requires that the judge appears impartial. Lord Devlin has said: This is why impartiality and the appearance of it are the supreme judicial virtues. It is the verdict that matters, and if it is incorrupt, it is acceptable. To be incorrupt it must bear the stamp of a fair trial. The judge who does not appear impartial is as useless to the process as an umpire who allows the trial by battle to be fouled or an augurer who tampers with the entrails.27

For example, in one case the trial judge interrupted the defendant’s evidence on 92 occasions and also described the defendant’s evidence as “bizarre”. The trial was considered to be unfair and the conviction was set aside.28 In Cesan v The

19 20 21 22

23 24 25 26 27 28

(1992) 177 CLR 292 at 325 per Brennan J (dissenting). See Justice K P Duggan, “Reform of the Criminal Law with Fair Trial as the Guiding Star” (1995) 19 Criminal Law Journal 258 at 268. See also Australian Law Reform Commission, Traditional Rights and Freedoms- Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [8.20]. See J Kennedy, “The Independence of the Judiciary and a Fair Trial” (Sir Ronald Wilson Lecture, 2004) 31(5) Brief 6. J Hope, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Federal Law Review 173 at 196; for further discussion, see also P Pether, “‘We Say the Law is too Important Just to get One Kid’: Refusing the Challenge of Ebatarinja v Deland and Ors” (1999) 4 Sydney Law Review 114 at 126. Jago v District Court (NSW) (1989) 168 CLR 23 at 56-7 per Deane J. See Commonwealth Constitution, s 80; note the discussion of judge alone trials in Chapter 8 at [8.220]. See Chapters 2 and 3. Jago v District Court (NSW) (1989) 168 CLR 23 at 30 per Mason J. P Devlin, The Judge (Oxford University Press, Oxford, 1979) p 4, quoted by Deane J in Webb v The Queen (1994) 181 CLR 41 at 57; [1994] HCA 30. R v Copsey [2008] EWCA Crim 2043.

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Queen, where the judge was noticeably and repeatedly asleep or inattentive during the trial, the trial was considered unfair.29 The safeguarding of fair trial principles is also important in ensuring that the public maintains their faith and confidence in the administration of justice.30 It is both impartiality and the appearance of impartiality that are required for a fair trial and to maintain public confidence in the judicial system.31 It is important to recognise that the fair trial principle applies regardless of the perceived guilt or innocence of the accused.32 Deane J has emphasised the point that, where a verdict of guilty is intrinsically flawed, it is not for the court to say that the accused is so clearly guilty that the requirement of a fair trial can be dispensed with.33 A fair trial may have been afforded despite the fact that the court is satisfied that there was some error, misdirection, or unfairness during the trial, as long as the trial has maintained the overall character of a fair trial according to law. An unfair trial is not a nullity; an unfair trial that results in an acquittal is as final as a conviction, unless the conviction is appealed.34 The question will be whether the “irregularity or prejudicial occurrence has permeated or affected proceedings to the extent that the trial has been rendered unfair”.35

ABUSE OF PROCESS [9.30] The concept of “abuse of process” is related to the “fair trial” concept.36 The concept of “abuse of process” is both wide and vague.37 Whether an abuse of process has occurred is determined by reference to the specific facts and not by the application of a well delimited legal formula. In reference to earlier unlawful extradition cases, the plurality judgment in Moti v The Queen states that:38 [T]he forms of expression adopted in the decided cases must be understood in the context of the particular facts of each case. None should be read as attempting to chart the boundaries of abuse of process. None should be read as attempting to define exhaustively the circumstances of removal of an accused to this country that warrant 29

Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52.

30

C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 University of Tasmania Law Review 75 at 95. North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at 162; [2004] HCA 31 at [27]; and McCreed v The Queen (2003) 27 WAR 554; [2003] WASCA 275 at [10]-[12], [18] per Steytler J. See also Guide to Judicial Conduct (published for the Council of Chief Justices of Australia) (Australian Institute of Judicial Administration Inc, Carlton, 2002) p 19: http://www.aija.org.au/online/GuidetoJudicialConduct.pdf. Viewed 24/04/2017. The Hon Sir Anthony Mason CJ, “Fair Trial” (1995) 19 Criminal Law Journal 7. Wilde v The Queen (1988) 164 CLR 365 at 375 per Deane J. Jago v District Court (NSW) (1989) 168 CLR 23 at 57 per Deane J. (1989) 168 CLR 23 at 56 per Deane J; see also Chapter 13 (Appeals) and the discussion of the proviso. Note Findlay et al have questioned whether the appellate review is sufficient to ensure fair trial: see M Findlay, S Odgers, S Yeo, Australian Criminal Justice (5th ed, Oxford University Press, Melbourne, 2014) p 146. See J Hunter, “Abuse of Process Savages Criminal Issue Estoppel” (1995) 18 University of New South Wales Law Journal 151 at 166-167. C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 University of Tasmania Law Review 75 at 82. (2011) 245 CLR 456 at 479.

31

32 33 34 35

36 37 38

[9.30] 223

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exercise of the power to stay criminal proceedings against that person or as giving some exhaustive dictionary of words by one or more of which executive action must be described before proceedings should be stayed.

In Jago, Brennan J identified the parameters of an abuse of process in very broad terms stating (at 47) that: An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve … The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment … [I]t will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused’s conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him.39

Brennan J’s formulation of “abuse of process” is clearly wide enough to encompass situations where the continuation of processes would result in an unfair trial.40 In Jago, the majority found that the court’s power to stay proceedings in response to abuse of process extended beyond enforcement of particular rules to preventing unfairness.41 However, an abuse of process need not involve unfairness in the sense of an unacceptable risk of wrongful conviction.42 For example, where a prosecution has been instituted for an improper purpose, the court may grant a stay without satisfying itself that unfairness to the particular accused would necessarily ensue.43 It is clear, however, that circumstances where proceedings will be an abuse of process cannot be exhaustively defined.44 Fox traces the doctrine of abuse of process back to 1875, to a case where groundless litigation was pursued. In the matter Fox refers to, the court stayed the litigation in response to the rationale of saving private and public funds.45 In later judgments, courts have made strong statements about a court’s duty to protect itself against abuses of its own processes.46 Richardson J notes that the rationale for the duty is now two-fold.47 First, there is a public interest in the administration 39

See also, Williams v Spautz (1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ.

40

Jago v District Court (NSW) (1989) 168 CLR 23 at 30 per Mason CJ; see also Williams v Spautz (1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ. (1989) 168 CLR 23 at 29 per Mason CJ; see also J Hope, “A Constitutional Right to a Fair Trial? Implications for the Reform of the Australian Criminal Justice System” (1996) 24 Federal Law Review 173 at 175. E Colvin, J McKechnie and J O’Leary Criminal Law in Queensland and Western Australia (6th ed, LexisNexis, 2015) p 562. See Williams v Spautz (1992) 174 CLR 509 at 526-527 per Mason CJ, Dawson, Toohey and McHugh JJ. R v Carroll (2002) 213 CLR 635 at [73] per Gaudron and Gummow JJ.

41

42 43 44 45 46

47

R Fox, “Criminal Delay as Abuse of Process” (1990) 16 Monash University Law Review 64 at 74, discussing Castro v Murray (1875) LR 10 Ex 213. Connelly v DPP [1964] AC 1254; R v Sang [1980] AC 402 at 455 per Lord Scarman; Moevao v Department of Labour [1980] 1 NZLR 464 at 481 per Richardson J; see also Williams v Spautz (1992) 174 CLR 509 at 519-520; and R v Lowrie [1998] 2 Qd R 579 at 596 per Shepherdson J. Moevao v Department of Labour [1980] 1 NZLR 464; see also R v Lowrie [1998] 2 Qd R 579 at 596 per Shepherdson J.

224 [9.30]

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of the law and that its processes are used fairly by the state and by its citizens. The second rationale is related to the first – that unless the court does protect its processes from abuse, public confidence will be eroded. The onus for proving there is an abuse of process lies upon the party who alleges it.48 It is not possible to list exhaustively the circumstances in which an abuse of process occurs.49 The following are therefore examples as to an abuse of process: • prosecution for improper purpose: see [9.180];50 • multiple or repetitive charges and re-litigation of an issue by either the Crown or the accused;51 • unlawful or improper extradition;52 and • the tender of a nolle prosequi in circumstances which may make later prosecutions oppressive: see [8.210].53 In some circumstances, a breach of a prosecutorial undertaking may be considered to be an abuse of process;54 however, there is no absolute rule about this matter and it will depend on the circumstances of the case.55 Where a prosecutorial agreement is breached, any subsequent prosecution may, in certain circumstances, be considered an oppressive prosecution and a stay of proceedings may be appropriate. This is discussed at [9.160]. 48 49

Williams v Spautz (1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. Rogers v The Queen (1994) 181 CLR 251 at 255-256.

50

Williams v Spautz (1992) 174 CLR 509. But see Wilson v The Queen [2015] NZSC 189 where the majority of the Supreme Court of New Zealand refused to order a permanent stay for an abuse of process in circumstances where the prosecution arose out of police activities which included the issuing of bogus search warrants and the commencement of bogus prosecutions. The appellant, a member of a motorcycle gang, was convicted of serious drug offences following the gang’s infiltration by an undercover police officer. The bogus warrants and prosecutions were designed to ‘increase the credibility’ of the undercover police officer amongst suspicious members of the motorcycle gang. However, note the well-argued dissenting judgment of Elias CJ.

51

Walton v Gardiner (1993) 177 CLR 378. See also R v Bell [2010] EWCA Crim 3 on the possibility that a third retrial may be an abuse of process in some circumstances; and PNJ v The Queen (2009) 252 ALR 612; [2009] HCA 6 where the accused was convicted of wounding and grievous bodily harm and was sentenced. Later the victim died and the accused was charged with murder. It was held that this was not an abuse of process or an oppressive prosecution and no stay should be ordered. See also R v Handlen [2012] QSC 317 for abuse of process by the accused for re-litigating an issue. See also Likiardopoulos v R (2012) 247 CLR 265 where it was argued that abuse of process should apply as it was inconsistent to convict the appellant as an accessory to murder in circumstances where the principal was convicted of manslaughter. The High Court held that the verdicts were not inconsistent and the exercise of prosecutorial discretion did not result in unfairness amounting to an abuse of process. Lavelle v The Queen (1994) 72 A Crim R 402; Moti v The Queen [2011] 245 CLR 456.

52 53 54

R v Leece (1996) 65 FCR 544. See R v Peters (1995) 83 A Crim R 142; R v Green (1983) 33 SASR 211; and R v Georgiadis [1984] VR 1030 per Ormiston J. See also Barac v Director of Public Prosecutions [2009] 1 Qd R 104 at 112; [2007] QCA 112 at [27]-[29] per Keane JA.

55

See Barac v Director of Public Prosecutions [2009] 1 Qd R 104 at 112; [2007] QCA 112 at [27]-[29] per Keane JA, where it was held that “it is simply not the case that there is an absolute rule that the Court must grant a stay to prevent the prosecution from resiling from an agreement of the kind in question” (McMurdo P and Jerrard J concurring). [9.30] 225

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Moti v The Queen [9.40] In Moti v The Queen56 the appellant faced seven charges of sexual intercourse, while outside of Australia, with a girl under sixteen years of age. The appellant, an Australian citizen, had been living in the Solomon Islands where he was the Attorney-General. The Australian Governments extradition request was refused. However, in late 2007 there was a change of government in the Solomon Islands and the new government decided to deport the appellant rather than extradite him. Australia’s Acting High Commissioner correctly formed the view that the deportation was unlawful under Solomon Island law. Notwithstanding her concerns about the legality of the deportation, the Acting High Commissioner issued an identity document in respect to the appellant and travel documents for the Solomon Island agents to accompany the appellant on the flight to Australia. On his return to Australia the Commonwealth Director of Public Prosecutions presented an indictment before the Supreme Court of Queensland and the appellant sought an order for a stay in proceedings for an abuse of process. The primary judge ordered a stay in proceedings, a decision which was overturned by the Queensland Court of Appeal. On appeal to the High Court the majority found that there had been an abuse of process and ordered a permanent stay. In the majorities view the focus had to be on the activities of the Australian authorities and accordingly although the illegality of the deportation was a necessary requirement, the illegality alone was not sufficient to establish an abuse of process. The majority identified three ‘basic propositions’ that must be considered. First, in the case of indictable offences, it is usually necessary that the accused is present before the court. Second, for Australia to succeed with an extradition request, the requirement of double criminality ordinarily has to be satisfied. The conduct, which is the subject of the indictment, must be an offence in Australia and in the country extraditing the accused.57 Third, in reference to the Court’s decision in Williams v Spautz, the majority identified two policy considerations that are fundamental as to whether criminal proceedings are an abuse of process:58 First, “the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike”. Secondly, “unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court’s processes may lend themselves to oppression and injustice”. Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts’ processes in a way that is inconsistent with those fundamental requirements.

The fact that a senior Australian official supplied documents knowing that they would be used to illegally deport the appellant, was central to the majorities decision that policy considerations weighed in favour of ordering a permanent stay of the proceedings for abuse of process.59

56 57 58 59

(2011) 245 CLR 456. (2011) 245 CLR 456 at 477. (2011) 245 CLR 456 at 478. (2011) 245 CLR 456 at 480. In R v Nitu [2012] QCA 224 at [24] the Court of Appeal stated that the deliberate unlawfulness or gross negligence by authorities resulting in a person being

226 [9.40]

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AVOIDING AND RESPONDING TO UNFAIRNESS OR ABUSE OF PROCESS [9.50] It is the responsibility of the trial judge to avoid unfairness in the trial. This responsibility is discharged “by controlling the procedures of the trial”.60 The courts possess various powers to control procedures in order to prevent abuse of process and unfair trial.61 Such powers include, but are not limited to: • adjourning the matter to a specific date so that any relevant problems or issues can be remedied; • ensuring appropriate procedures are followed, such as notice and disclosure; • making rulings on certain evidence;62 • changing the venue of the trial; and • providing the jury with appropriate directions.63 In some circumstances, a trial will have been completed and the matter will be appealed on the basis that the trial miscarried because of unfairness or abuse of process.64 In these cases, a new trial may be ordered65 or a stay may be granted.

[9.60] In Queensland, “the power to stay follows as a matter of common law from the inherent jurisdiction of a court to control its own processes”.66 In regard to a stay, which may be granted at any time, it has been stated that: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.67

A stay may be permanent or temporary; however, if a Queensland court is of the view that it is possible to rectify any matters of concern, it is likely that the court will order an adjournment to a specific date: Justices Act 1886 (Qld) s 88; QCC, s 592.

60 61 62

63

64 65

66 67

brought unlawfully to Australia, would be a relevant consideration when determining whether or not proceedings will be stayed. Jago v District Court (NSW) (1989) 168 CLR 23 at 46-47 per Brennan J. Barton v The Queen (1980) 147 CLR 75 at 96 per Gibbs ACJ, and at 96 per Mason J. For example, police interviews: see Chapter 3 at [3.40]. See generally, D Mathias, “Probative Value, Illegitimate Prejudice and the Accused’s Right to a Fair Trial” (2005) 29 Criminal Law Journal 8. J Spigelman, “The Internet and the Right to a Fair Trial” (2006) 7 The Judicial Review 403 at 415; see also RPS v The Queen (2000) 199 CLR 620 at 637; [2000] HCA 3 at [41] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; see also Chapter 8. See Chapter 13 (Appeals). However, the ordering of a retrial may effectively constitute an abuse of process in circumstances where there have already been previous trials of the matter and thus a stay may be the appropriate response: see R v Donald (1983) 11 A Crim R 47. E Colvin, J McKechnie and J O’Leary, Criminal Law in Queensland and Western Australia (7th ed, LexisNexis, 2015) p 562. Walton v Gardiner (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ; see also A Choo, Abuse of Process and Judicial Stays of Criminal Proceedings (OUP, 1993) pp 2-7. [9.60] 227

Criminal Process in Queensland

[9.70] A stay has the character of an adjournment in that proceedings are stopped. However, while a stay means that the matter effectively lies in abeyance, it is not an acquittal since the matter could be reinvigorated at some future time.68 The Commonwealth Constitution requires that the powers of the executive (to charge offences) and the judiciary must maintain their separateness. The courts have maintained that a stay is neither a review of the decision to prosecute nor a “judicial usurpation of the functions of the executive”.69 [9.80] It may be appropriate to grant a permanent stay where there is an unacceptable risk that a trial will be unfair (and thus may result in a wrongful conviction), where the prosecution would be oppressive or to prevent an abuse of process.70 In Jago v District Court (NSW),71 Gaudron J noted (at 75) that the administration of justice would demand a permanent stay where: there is a fundamental defect which goes to the root of [a criminal] trial, “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” … an accused person is denied that which the law guarantees … a fair trial according to law.72

Thus, it is usually in circumstances where a problem cannot be remedied by other means that a permanent stay may be granted. However, the jurisdiction to grant a permanent stay has a dual purpose: to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial that is unfair.73

The courts have emphasised that a permanent stay should be made only in exceptional circumstances.74 The decision to grant a permanent stay is effectively a power to refuse to exercise jurisdiction.75 It runs against the interests of victims, the community and sometimes the accused (in that they lose the chance of acquittal) and may damage public confidence in the courts.76 In Williams v Spautz, the majority of the High Court commented that the courts should generally exercise, rather than refrain from exercising, their jurisdiction, especially where 68

69

70

71 72 73 74

75 76

See, eg, Nicholas v The Queen (1998) 193 CLR 173; [1998] HCA 9 at [41] per Brennan J: at the initial trial certain evidence was excluded and the trial was “permanently” stayed. Subsequently the law was changed so that the previously excluded evidence could now be admitted. The stay was lifted. R Fox, “Jago’s Case: Delay, Unfairness and Abuse of Process in the High Court of Australia” [1990] Criminal Law Review 552 at 557; see also C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 University of Tasmania Law Review 75. Williams v Spautz (1992) 174 CLR 509 at 518 per Mason CJ, Dawson, Toohey and McHugh JJ; see also C Burgess, “Prejudicial Pre-trial Publicity: When will it Ever Result in a Permanent Stay of Proceedings?” (2009) 28(1) University of Tasmania Law Review 63. (1989) 168 CLR 23. Quoting Wilson J in Barton v The Queen (1980) 147 CLR 75 at 111; see also Dupas v R (2010) 341 CLR 237 at 250. Williams v Spautz (1992) 174 CLR 509 at 518-519. Jago v District Court (NSW) (1989) 168 CLR 23 at 58 per Deane J, and at 74 per Gaudron J; Walton v Gardiner (1993) 177 CLR 378; Dupas v R (2010) 341 CLR 237 at 249-251. See also the Hon Sir Anthony Mason CJ, “Fair Trial” (1995) 19 Criminal Law Journal 7 at 11. Jago v District Court (NSW) (1989) 168 CLR 23 at 76 per Gaudron J. Dupas v R (2010) 341 CLR 237 at 251; D Hamer, “Ferguson: A Fair Trial and Other Issues” (2008) 28(9) Proctor 33.

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people are prosecuted for criminal offences. They found that in order to grant a permanent stay: the court must be satisfied that there are no other available means, such as directions to be given by the trial judge, of bringing about a fair trial.77

The order of a permanent stay is effectively a last resort for the court but the power to stay has been exercised in a wide variety of circumstances.78 For example, a permanent stay was granted in R v O’Rourke, where several witnesses were no longer available, various documents had been lost and the layout of the parish where the offences allegedly took place had changed, leading to significant prejudice to the accused.79 A permanent stay can be appealed by the Attorney General (QCC, s 669A(1A)).

DELAY [9.90] According to the familiar and often-quoted saying, “[j]ustice delayed is justice denied.”80 Delay in the criminal justice process is a serious problem. It leads to increased costs and wasted preparation and heightens stress for both accused people and victims of crime.81 It may also be responsible for increasing community disillusionment and dissatisfaction with the legal system.82 In some circumstances, delay may lead to an unfair trial as witnesses die or disappear and memories fade. Delays may occur for a range of reasons, including lethargic prosecutorial practices,83 delay by victims in making a complaint,84 the defendant’s lack of readiness to proceed and under-resourced courts. Delays may also be deliberately orchestrated by practitioners for various reasons.85 The Supreme Court of Queensland is commitment to finalising criminal matters quickly however the number of criminal lodgements has significantly increased and “the rate of disposition of criminal cases remains a concern”.86 In the 2015-2016 year, only 2.4% of criminal matters pending before the Supreme Court were more than 77

Williams v Spautz (1992) 174 CLR 509 at 519 per Mason CJ, Dawson, Toohey and McHugh JJ.

78

See R Fox, “Jago’s Case: Delay, Unfairness and Abuse of Process in the High Court of Australia” [1990] Criminal Law Review 552 at 557. For a list of circumstances, see J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, LexisNexis, 2005) p 1268. (2002) Qld Lawyer Reps 90. The accused was charged with 13 counts of indecent treatment of a child between 1961 and 1964. See also R v Benbrika and Ors (Ruling No 3) [2011] VSC 342.

79 80 81 82 83 84 85 86

Attributed to William Gladstone (1809-1898), British statesman and Prime Minister. L Dessau, “Speedy Trials and a Speedier Criminal Justice System: Recent Observations in Overseas Jurisdictions” (1995) 5 Journal of Judicial Administration 43. J Payne, Criminal Trial Delays in Australia, Research and Public Policy Series No 74 (Australian Institute of Criminology, 2007) p 2. Note that some procedural rules ensure strict timelines are applied – see, eg, timelines for presentment of indictment after committal: QCC, s 590AA; see also Chapter 6 at [6.100]. See D Corker and D Young, Abuse of Process and Fairness in Criminal Proceedings (Butterworths, London, 2000) p 1. J Payne, Criminal Trial Delays in Australia, Research and Public Policy Series No 74 (Australian Institute of Criminology, 2007) p 13. Supreme Court of Queensland, Annual Report 2015-2016, pp 15-16: http://www.courts.qld.go v.au/__data/assets/pdf_file/0006/498237/sc-ar-2015-2016.pdf. Viewed 13/04/2017. [9.90] 229

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24 months old. However, the number of matters pending for a significant period of time fluctuates with 5.3% of matters more than 24 months old in the 2014 – 2015 year. 87 Courts throughout Australia have implemented a number of procedures that are designed to increase the rate at which matters are resolved. For example, the disclosure provisions in the QCC, examined in Chapter 8, assist the courts to avoid delay by ensuring that charges and pleas are resolved at the earliest possible time.88 The introduction of trial by judge alone should also assist in the avoidance of delay.89 Improved use of technology for filing and document exchange has also been a focus of reforms.90 According to the Offices of the Director of Public Prosecutions the staleness of the offences should be considered when deciding to prosecute and, once a decision to prosecute is made, cases and indictments should be prepared as quickly as possible.91 In trying to speed up the criminal justice process, there are a number of competing policy considerations. On the one hand, it is the role of the prosecuting authority to control prosecutions, and the judiciary should generally not interfere with this role.92 In some circumstances, for example the prosecution of sexual offences against children or war crimes (and subsequent trials), prosecutions may take place years after the alleged offences took place.93 Investigations must also be thoroughly carried out. On the other hand, the court has a duty to the community to ensure that matters are dealt with in a timely and cost efficient way.94 Overarching these considerations is the principle that the accused should have a fair trial.

Jago v District Court (NSW) [9.100] In the case of Jago v District Court (NSW),95 the High Court was asked to consider whether the common law recognised a right to a speedy trial or a right to trial within a reasonable time. In October 1981, Jago was charged with numerous 87 88

89

90 91

92 93

94

95

Supreme Court of Queensland, Annual Report 2015-2016, p 1: http://www.courts.qld.gov.a u/__data/assets/pdf_file/0006/498237/sc-ar-2015-2016.pdf. Viewed 13/04/2017. See J Payne, Criminal Trial Delays in Australia, Research and Public Policy Series No 74 (Australian Institute of Criminology, 2007) p 42, where he notes the importance of disclosure for avoiding delay. See Chapter 8 at [8.120]; see also L Dessau, “Speedy Trials and a Speedier Criminal Justice System: Recent Observations in Overseas Jurisdictions” (1995) 5 Journal of Judicial Administration 43 at 47. See the discussion in J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, LexisNexis, 2005) pp 712-716. Office of the Director of Public Prosecutions (ODPP) (Qld), Director’s Guidelines, guidelines 4 (ii)(e) (The Decision to Prosecute – Public Interest Criteria): http://www.justice.qld.gov.a u/__data/assets/pdf_file/0015/16701/directors-guidelines.pdf. Viewed 13/04/2017. Note the difference in approach to prosecution in relation to summary offences compared to indictable offences: see Chapter 4. For an example of a delayed sexual assault prosecution, see the discussion in R v Noyes [2005] 1 Qd R 169; see also A Ashworth and M Redmayne, The Criminal Process (3rd ed, OUP, 2005) pp 25-251. In relation to war crimes, see R v Wagner (1993) 66 A Crim R 583. J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, LexisNexis, 2005) p 712, referring to Rona v District Court (SA) (1995) 77 A Crim R 16 at 24 per Olsson J. (1989) 168 CLR 23.

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counts of fraudulently applying cheques. The offences were alleged to have occurred between April 1976 and January 1979. He was committed for trial in July 1982 on 92 charges, but an indictment was eventually prepared in relation to 30 charges. Under the particular procedure in place in New South Wales at the time, a bill of indictment was found in May 1986.96 After a mention of the matter in June 1986, the matter was listed for hearing in February 1987. When the indictment was finally presented in February 1987, the accused sought a stay of proceedings, which was refused. An appeal to the Court of Appeal failed.97 Jago then appealed to the High Court. Mason CJ found (at 25) that two questions were raised by the facts: The first question [was] whether the common law of Australia recognises a right to a speedy trial separate from and additional to the right to a fair trial. The second [was] whether in this case the appellant’s right to a fair trial has been prejudiced by virtue of undue delay amounting to an abuse of process.

In arguing that a right to a speedy trial existed, the appellant referred the court to Art 14(1)(c) of the ICCPR, which states that “everyone charged with a criminal offence … shall have the right to be tried without undue delay”.98 The Magna Carta was also argued to be of relevance.99 It states in Chapter 29, “We will sell to no man, we will not deny or defer to any man either justice or right.”100 The appellant argued that this supported his right to a speedy trial. In a detailed judgment, Toohey J discussed commentary about the Magna Carta. Ultimately, however, he determined that it was too difficult to find, in the language of the Magna Carta, the principle of a right to a speedy trial.101 Brennan J noted that provisions had been inserted into both the American Bill of Rights and the Canadian Charter of Rights creating an express constitutional right to a speedy trial, but that no similar provisions existed in the Australian Constitution.102 In Jago, the High Court held that the common law neither recognises a right to a speedy trial nor a right to a trial within a reasonable time.103 The court found that the issue of delay was an aspect of the fair trial principle, rather than an

96

97 98 99 100 101 102

103

See Director of Public Prosecutions Act 1986 (NSW) Pt 3. In Jago, according to Brennan J (at 43): “The power to ‘find a bill of indictment’ is … intended to be the equivalent of the power of a grand jury to find and endorse ‘a true bill’ on a bill of indictment which, being handed to the proper officer in court, becomes an indictment.” See also Chapter 6 at [6.90] for a discussion of indictments in the Queensland and Western Australian jurisdictions. The facts are set out in (1989) 168 CLR 23 at 63 per Toohey J. See R Fox, “Jago’s Case: Delay, Unfairness and Abuse of Process in the High Court of Australia” [1990] Criminal Law Review 552 at 554. See R Fox, “Jago’s Case: Delay, Unfairness and Abuse of Process in the High Court of Australia” [1990] Criminal Law Review 552 at 554, discussing Chapter 29 of the Magna Carta. Jago v District Court (NSW) (1989) 168 CLR 23 at 62 per Toohey J. (1989) 168 CLR 23 at 67 per Toohey J; other judges deferred to Toohey J on this point: see Brennan J (at 41), and Mason CJ (at 33). (1989) 168 CLR 23 at 41 per Brennan J. See Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(2)(c); see also J Debeljak, “Balancing Rights in a Democracy: The Problems with Limitations and Overrides of Rights under the Victorian Charter of Human Rights and Responsibilities Act 2006” (2008) 32 Melbourne University Law Review 422. (1989) 168 CLR 23 at 33 per Mason CJ, at 44 per Brennan J, at 70-72 per Toohey J and at 78 per Gaudron J. [9.100] 231

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independent right.104 Thus, the delay itself is not the central concern; rather it is the effect of the delay that is crucial. Deane J noted that the effect of delay may mean that a subsequent trial may be unfair or that continuing proceedings would be unjustifiably oppressive and an abuse of process.105 A renewed charge brought years after dismissal of earlier proceedings for want of prosecution may, for example, be an abuse of process.106 Toohey J noted that the prejudice arising from delay could often be remedied by rulings on the evidence and directions to the jury in relation to the evidence.107 He did find, however, that in some situations the delay may be so great and so prejudicial that such rulings and directions would not ensure a fair trial and that, therefore, a stay of proceedings would be the only appropriate remedy.108 Deane J noted five main factors that should be considered in determining whether a delay amounts to an abuse of process. These factors are: 1.

length of delay;

2.

reasons for delay;

3.

accused’s responsibility and attitude to the delay;

4.

proven or likely prejudice to the accused; and

5.

the public interest in the disposition of charges of serious offences and the conviction of those guilty of crime.109

Brennan J found that the courts could use their resources to mould their procedures to avoid unnecessary delays; however, he also recognised that avoiding delays was not the sole concern of the courts. He commented that resources would not allow the courts to guarantee prompt justice.110 Based on the facts in Jago, the court found that to try the accused would not be oppressive or unfair. However, the High Court accepted that, in cases of undue delay, the courts possess a general power to stay criminal proceedings in order to

104

105 106 107 108 109

110

(1989) 168 CLR 23 at 71 per Toohey J. The common law is therefore at odds with human rights law as the latter recognises the right to a trial without delay as an independent right from that of the right to a fair trial: see ICCPR art 14; European Convention art 6; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 24–25; Dyer v Watson [2004] 1 AC 379, [2002] UKPC D1 at [94]. See also O’Neill No 2 v Her Majesty’s Advocate [2013] UKSC 36 at [25]-[39] where it was held that when evaluating the fairness of a trial it is necessary to consider what occurred from the time the accused became a suspect. However in determining whether there has been an undue delay, the relevant period commences when the accused is notified that he or she is likely to face criminal proceedings. (1989) 168 CLR 23 at 58 per Deane J. (1989) 168 CLR 23 at 58 per Deane J. See generally, Longman v The Queen (1989) 168 CLR 79. (1989) 168 CLR 23 at 71-72 per Toohey J. (1989) 168 CLR 23 at 60-61 per Deane J; noted in S Henchcliffe, “Abuse of Process and Delay in Criminal Prosecutions: Current Law and Practice” (2002) 22 Australian Bar Review 18. See also Gill v Director of Public Prosecutions (1992) 64 A Crim R 82 where there was delay and loss of evidence and a stay was allowed. (1989) 168 CLR 23 at 44 per Brennan J.

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prevent “injustice” to the accused.111 Where proceedings are stayed because of an undue delay, it will be permanent as “time, once spent, cannot be recovered.”112 In Queensland, permanent stays have been granted on some occasions where there has been a significant delay. For example, in R v Khoury,113 the defendant was charged with arson. It was alleged that he burned down a factory in 1997. By 2004, the matter had not gone to trial and five trial listings had not proceeded. The defence had requested an adjournment on only one of those occasions, and that was when the defendant was not financially able to retain a lawyer. The matters had passed through the hands of a number of prosecutors. In the view of Shanahan DCJ, the delay was inexplicable and inexcusable and had impacted on the accused’s ability to fund lawyers.114 Shanahan DCJ ordered a permanent stay. However, in Owen v Edwards,115 Jones J refused to reinstate a permanent stay that had originally been granted by a magistrate but later overturned on appeal. Jones J noted that delay had to be looked at in the context from which it arose, and that “delays of two years or more for a trial which is to occupy three weeks in a regional centre would not be unusual”.116 In R v Wrigley,117 the appellant had been convicted on several counts of assault occasioning bodily harm. The offences had been committed in 1993 and the appellant was convicted in 1998. At trial, the appellant had requested a stay on the basis that the trial would be unfair because the delay meant that potential witnesses were not able to be located and memories would be dimmed. The trial judge had refused the stay. On appeal, Chesterman J stated that delay is not enough to justify a stay of criminal proceedings, and found that there was no basis for finding that the appellant’s chances of acquittal were diminished by the absence of certain testimony, noting that “the fading of recollection is normally a benefit to the defence, not a disadvantage”.118

PREJUDICIAL PUBLICITY [9.110] Both leading up to and during a criminal trial, there is often heightened media and community interest in the defendant and the allegations against him or

111

112

(1989) 168 CLR 23 at 25-26 per Mason CJ. A stay was granted in R v Johannsen (1996) 87 A Crim R 126 where the trial was to be commenced 20 years after the original charge was laid. A number of witnesses had died, certain evidence was unavailable and memories had faded. Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, [2003] UKHR 68 at [20].

113

[2004] QDC 182 per Shanahan DCJ.

114

[2004] QDC 182 at [47] and [48] per Shanahan DCJ; see also R v O’Rourke (2002) Qld Lawyer Reps 90. Owen v Edwards [2006] QCA 526. Owen v Edwards [2006] QCA 526 at [33] per Jones J (Keane JA and Douglas J agreeing). R v Wrigley [1998] QCA 412. R v Wrigley [1998] QCA 412 at [11] and [12] per Chesterman J, referring to Jago v District Court (NSW) (1989) 168 CLR 23 at 60 per Deane J (McPherson JA and White J delivered similar judgments). Similarly, see R v Noyes [2005] 1 Qd R 169; and R v Edwards (2009) 255 ALR 399; [2009] HCA 20.

115 116 117 118

[9.110] 233

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her.119 Media reporting about legal matters is now also extremely accessible via the internet.120 One of the important characteristics of a jury trial is that the jury decides the case on the admissible evidence put before the court.121 However, prior to their recruitment, many jury members may have heard details about the case through the media and they may hear further details through the media while they are still serving on the jury. Thus, there is a risk that, in coming to a conclusion in a particular case, jury members will be influenced by media reporting when deciding their verdict.122 Society’s interests in protecting the integrity of the administration of justice must be balanced against the public interest in the exercise of free expression.123 Where the risks to the integrity of the criminal trial are substantial, the media may need to be restrained124 or the trial stayed. In a number of high profile cases, defendants have argued that it would be impossible for them to receive a fair trial because of pre-trial publicity. The most significant of these cases was R v Glennon.125 This case is examined below, followed by a consideration of the Queensland cases of R v Long; Ex parte Attorney-General (Qld)126 and R v Patel (No 2).127 Another important case on this point is R v Ferguson; Ex parte Attorney-General (Qld) and this is discussed in Chapter 8 at [8.130].128

R v Glennon [9.120] In 1978, Glennon,129 a Roman Catholic priest, was convicted of sexually assaulting a young girl. Later, in 1985, he appeared as a prosecution witness in relation to an assault matter. In this matter his nephew was charged with assaulting two youths. The youths’ defence counsel cross-examined Glennon about the 1978 sexual assault and alleged that he was involved in the assaults on the youths. There was extensive media coverage of the case. As a result of the publicity, other people approached the police and made complaints about Glennon. Glennon was subsequently charged with a number of sexual assault 119

Note that it is generally media attention towards the accused that is considered relevant: see R v Kaddour (2004) 148 A Crim R 597; [2004] NSWCCA 361 where, during Kaddour’s trial, articles appeared in the print media alleging the defence counsel’s involvement in tax fraud.

120

See J Spigelman, “The Internet and the Right to a Fair Trial” (2006) 7 The Judicial Review 403. See the discussion in regard to juries in Chapter 8 at [8.140]; see also A Ardill, “The Right to a Fair Trial” (2000) 25 Alternative Law Journal 3. However, jurors do not appear to be mere puppets of the media; one study found that 99% of jurors believed they were not influenced by specific publicity: see M Chesterman, J Chan and S Hampton, Managing Prejudicial Publicity: An Empirical Study of Criminal Jury Trials In New South Wales (Law and Justice Foundation of New South Wales, Sydney, 2001).

121 122

123 124

These competing interests were recognised by Mason CJ in Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 24. See R v Glennon (1992) 173 CLR 592 at 610-611 per Brennan J. See generally, Australian Law Reform Commission, Contempt: Summary of Report No 35 (AGPS, 1987).

125

(1992) 173 CLR 592.

126 127 128 129

(2003) 138 A Crim R 103. [2012] QSC 420. (2008) 186 A Crim R 483; [2008] QCA 227. The following facts are taken from the judgment: see R v Glennon (1992) 173 CLR 592 at 595-598 per Mason CJ and Toohey J.

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matters and appeared before the Magistrates Court in 1985. On three occasions before Glennon appeared in court in relation to the subsequent matters, Derryn Hinch, who was then a popular radio broadcaster, mounted an attack on Glennon. He alleged that Glennon had acted inappropriately in relation to the youths and also spoke about the prior conviction. Hinch was found guilty of contempt.130 Publicity continued throughout the Hinch case and the appeal process. On the basis of Hinch’s reporting, and the other publicity surrounding his case, Glennon argued that his matter should be stayed as it would be impossible for him to receive a fair trial. The Court of Appeal granted a permanent stay131 and the prosecution sought special leave132 to appeal the matter to the High Court. In the High Court application, Mason CJ and Toohey J noted a clear distinction between the criteria for deciding whether pre-trial publicity amounts to contempt and the criteria used to determine whether pre-trial publicity precludes a fair trial.133 They noted that prior information about a case, and that even holding a tentative opinion about a case, does not necessarily lead to jury partiality.134 They also found that the possibility a juror may acquire irrelevant and prejudicial information was inherent in a criminal trial, but that mere conjecture about the information a juror may have was not a sufficient basis on which to conclude that a fair trial was not possible.135 Brennan J also distinguished between a juror’s actual knowledge and conjecture about the juror’s knowledge.136 He found that some degree of risk “to the integrity of the administration of justice is accepted as the price which has to be paid” to allow some freedom of public expression in relation to crimes of public interest.137 The majority found that the contest in the case was between “some community expectation that an accused charged with a serious … offence will be brought to trial, and the accused’s right to a fair trial”.138 The High Court granted special leave to appeal, allowed the appeal and set aside the order for a permanent stay of proceedings.139 Brennan J observed that a number of approaches can be taken to protect the integrity of the trial where there has been significant publicity – for example, the application of the law relating to criminal contempt, adjourning the trial until the publicity subsides and directing the jury that their verdict must be based on

130 131 132 133

Hinch v Attorney-General (Vic) (1987) 164 CLR 15. Hinch v Attorney-General (Vic) [1987] VR 721; the stay is discussed at 747. For appeals, see Chapter 13. R v Glennon (1992) 173 CLR 592 at 598 [10] per Mason CJ and Toohey J.

134

R v Glennon (1992) 173 CLR 592 at 603 per Mason CJ and Toohey J, referring to their judgment in Murphy v The Queen (1989) 167 CLR 94 at 99. (1992) 173 CLR 592 at 601 per Mason CJ and Toohey J. (1992) 173 CLR 592 at 616 per Brennan J. (1992) 173 CLR 592 at 613 per Brennan J; see also Mason CJ and Toohey J (at 601). A Ardill, “The Right to a Fair Trial” (2000) 25 Alternative Law Journal 3 at 4; see also R v Glennon (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J, at 617 per Brennan J (Dawson J agreeing with Brennan J at 625). (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J, at 617 per Brennan J (Dawson J agreeing with Brennan J at 625).

135 136 137 138

139

[9.120] 235

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evidence given at court and that they should not be influenced by any revulsion or sympathy for the accused.140 Knowledge of an admissible prior conviction for a similar offence is considered differently from other prejudicial information. The wrongful reception or transmission of this kind of evidence by or to the jury may place the fairness of the trial at risk so that it is necessary to discharge the jury.141 Brennan J noted potential problems arising from current practices, such as law enforcement agencies holding press conferences and issuing press releases after a person has been charged with a criminal offence. He suggested that this may sometimes be a form of advertising that is inconsistent with the impartial performance of the functions of a law enforcement agency. He also noted that personalities, like Hinch, “who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure” were promoted in the media,142 and suggested that this phenomenon also posed a potential risk to the fairness of a trial.

R v Long; Ex parte Attorney-General (Qld) [9.130] In R v Long; Ex parte Attorney-General (Qld),143 15 people died as a result of arson at the Palace Backpackers’ Hostel in Childers. Many of those staying at the hostel were young people from overseas on working holidays. There was a high level of public interest in the apprehension and trial of the alleged arsonist, Robert Long. Many articles appeared in local papers, the Courier Mail and The Australian. The trial eventually took place in Brisbane, rather than the closer court at Bundaberg, in order to avoid some of the glare of the publicity.144 Long’s counsel had originally applied for a stay of proceedings on the basis that there was an unacceptable and substantial risk that pre-trial publicity and prejudicial material precluded a fair trial. Counsel argued that jury directions or the conduct of the trial would be incapable of minimising or removing the risk to fair trial. The application for a stay was refused and the matter proceeded to trial where Long was found guilty of murder and arson. Long appealed to the Queensland Court of Appeal on the basis that the application for the stay was incorrectly refused and that evidence was wrongly admitted at trial. He also appealed against sentence. The Court of Appeal found, amongst other matters, that the trial judge’s directions to the jury, to the effect that the jury must consider only the evidence before them at trial, were “careful”145 and would have overcome any risk of unfair trial.146 It was also noted that the lapse of time, of one-and-a-half years, between

140 141 142 143 144 145 146

(1992) 173 CLR 592 at 612 per Brennan J; see also Caratti v The Queen (2000) 22 WAR 527; [2000] WASCA 279 at [282] per Malcolm CJ. (1992) 173 CLR 592 at 617 per Brennan J. (1992) 173 CLR 592 at 610 per Brennan J. (2003) 138 A Crim R 103. Referred to by Dutney J: R v Long (2002) 128 A Crim R 11 at 12. See QCC, s 559; CPA, s 135 in relation to change of forum. (2003) 138 A Crim R 103 at 106 per McMurdo P. (2003) 138 A Crim R 103 at 113 per Davies JA, at 144 [173] per Jerrard JA; see also, R v D’Arcy (2003) 140 A Crim R 303 at 305 per Davies J: see the extended discussion of this case in Chapter 8 at [8.230].

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publicity and trial meant that it was unlikely that the jury members would have remembered the publicity and that internet access to the material did not create a substantial risk of unfair trial.147

R v Patel [9.140] R v Patel (No 2)148 illustrates the impact of modern methods of communication in contributing to prejudicial publicity. Dr Patel sought an application for the permanent stay of proceedings for the unlawful killing of a patient, who died following an operation performed by the accused. It was argued that the nature and volume of adverse publicity about the accused meant that it was impossible for him to receive a fair trial. The adverse publicity included: a Wikipedia page dedicated to the enquiries into the accused’s activities as a Doctor; the criminal proceedings against the accused and allegations made in the United States about his medical practice; several YouTube features about the accused; international media reports about the charges brought against the accused and the trail; the media’s use of the term “Doctor Death” when referring to the accused; hundreds of articles, stories and interviews that focused on the accused and his alleged malpractice; and books written about the accused and his alleged malpractice.149 Fryberg J rejected the application for a permanent stay as his Honour was not convinced that a properly instructed jury could not set aside the prejudicial publicity and reach its decision on the evidence before the court. His Honour also noted that there was no evidence before the court as to the number of people in Brisbane, from where the jury would be drawn, who had visited the relevant websites or who had read the books.

Summary [9.150] In matters where pre-trial publicity creates a risk of an unfair trial, the court will attempt to limit any risk through punishment for contempt, changing the court venue, delaying the trial until the media interest has subsided and/or providing strong directions to the jury about the importance of basing their verdict on the evidence. The courts will be reluctant to rely on conjecture or make assumptions about jury members’ knowledge. In R v Ferguson; Ex parte Attorney-General (Qld), the court emphasised that judges should consider the special procedure laid down in s 47 of the Jury Act 1997 (Qld), which allows

147

148 149

(2003) 138 A Crim R 103 at 103 per Davies JA, at 144 per Jerrard JA. Jerrard JA sets out (at 141) a list of considerations in application for a stay. For an example of significant risk, see R v MacLachlan [2000] VSC 215, where details of the accused’s prior conviction for murder appeared on the widely publicised CrimeNet internet site. [2012] QSC 420. [2012] QSC 420 at [8]. See also Patel v R [2012] HCA 29 at [166] where, in earlier proceedings, Heydon J stated that it was “difficult to imagine that there could be many speakers of English living in Australia, even parts of Australia outside Queensland, in the years before the trial who had not been exposed to the massively unfavourable publicity that the appellant received during these events. It was inflammatory, derisive and bitter.” See also Dupas v R (2010) 241 CLR 237 at 241-242. [9.150] 237

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potential jurors to be cross-examined under oath to test their impartiality.150 Clearly, the courts have a power to grant a permanent stay in circumstances where a fair trial becomes impossible as a result of pre-trial publicity. However, a permanent stay will necessarily only be granted in exceptional circumstances.151

OPPRESSIVE PROSECUTION [9.160] There are a number of reasons why it may be oppressive to the defendant to continue a prosecution.152 For instance, a prosecution may be considered oppressive where: • the charge is too vague;153 • the prosecution is considered doomed to fail;154 • the specific charge may not be appropriate to the allegations made; • the charge may be a duplication of other charges; or • the charge may be made in relation to actions already dealt with by the criminal process.155 Continuing with the prosecution in these circumstances may be considered to be an abuse of process.156 On some occasions, charges may be laid for an improper purpose and this will also give rise to an abuse of process – this situation is considered below.

Williams v Spautz [9.170] The fundamental purpose of criminal action is to decide whether the accused has engaged in conduct that amounts to an offence and whether they should therefore be punished for their actions.157 The issue of oppressive prosecution as an abuse of process was discussed in the judgment of Williams v Spautz.158 Spautz was an academic at the University of Newcastle between 1973-1980. Professor Williams was appointed to the same university in 1977. Spautz became involved in conflict with Williams. He claimed that Williams had

150 151 152 153 154 155

156

157

158

See R v Ferguson; Ex parte Attorney-General (Qld) (2008) 186 A Crim R 483; [2008] QCA 227 at [56]. For a more detailed discussion of this case, see at [8.220]. R v Glennon (1992) 173 CLR 592 at 605 per Mason CJ and Toohey J. Generally, issues associated with charges are examined in Chapters 4 and 6. See R v S [2000] 1 Qd R 445. See Walton v Gardiner (1993) 177 CLR 378. See, eg, the discussion of prosecutorial discretion in Chapter 4 at [4.40]; see also the discussion of double jeopardy in Chapter 7 at [7.120]. See further, eg, the discussion in R v Kok Cheng Tan (2002) 128 A Crim R 286; [2002] WASC 42. In considering whether the continuation of a prosecution is an abuse of process, it will be relevant to consider whether the prosecution has a real prospect of success: see R v Noyes [2005] 1 Qd R 169 at [24] per Holmes J (McMurdo P and Muir J agreeing). Williams v Spautz (1992) 174 CLR 509 at 530 per Mason CJ, Dawson, Toohey and McHugh JJ; see also E Colvin, S Linden and J McKechnie, Criminal Law in Queensland and Western Australia (5th ed, LexisNexis, 2008) p 639. (1992) 174 CLR 509: the facts are set out by Mason CJ, Dawson, Toohey and McHugh JJ at 514-516.

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plagiarised his doctoral thesis and questioned whether Williams was fit for the position. Eventually, the University Council became involved, initially warning Spautz that his behaviour should stop and ultimately, when the behaviour did not stop, dismissing him. Subsequent to his dismissal, Spautz commenced over 30 proceedings against various members of the university. The High Court became concerned with only some of these – specifically, the claims made by Spautz against Williams and others for criminal defamation. At the initial hearing, Smart J permanently stayed the prosecutions as he found they were an abuse of process. Subsequently, the NSW Court of Appeal allowed an appeal and set aside the stay. Williams and others appealed against the decision of the Court of Appeal to the High Court. The High Court allowed the appeal.159 The High Court considered two key matters. The first was whether there was an abuse of process. The majority found that, in situations where the prosecution is brought as a means of obtaining some advantage rather than to carry the prosecution through to a conviction, the prosecution would be improper.160 Although the prosecution may be brought for a number of purposes, the court found that it is the predominant purpose that is the criterion against which the question of “improper” will be measured.161 The majority stated (at 522): [T]he power [to stay proceedings] must extend to the prevention of an abuse of process resulting in oppression, even if the moving party has a prima facie case or must be assumed to have a prima facie case.

Thus, although Spautz may have had a prima facie case for defamation, the predominant purpose of his action was to use the threat of proceedings to secure his reinstatement, and this was improper.162 Another question was whether, in order to stay proceedings, the court must be satisfied that, as a result of the abuse of process, the ensuing trial would be unfair. The majority found (at 519) that this was not necessary: If … a stay is sought to stop a prosecution which has been instituted and maintained for an improper purpose, it by no means follows that it is necessary, before granting a stay, for the court to satisfy itself in such a case that an unfair trial will ensue unless the prosecution is stopped.

Thus, even though the trial of Williams and others may have been fair, the court found that it was appropriate to exercise their discretion and stay the proceedings to prevent an abuse of process.

Malicious prosecution [9.180] In some situations the prosecutor of a criminal offence may be sued for “malicious prosecution”. This civil action has been given a new lease of life as a result of the High Court’s decision in A v New South Wales.163 A was a civilian 159

(1992) 174 CLR 509 at 513 per Mason CJ, Dawson, Toohey and McHugh JJ, at 540 per Brennan J (Deane and Gaudron JJ dissenting at 552 and 556 respectively).

160

(1992) 174 CLR 509 at 527 by per Mason CJ, Dawson, Toohey and McHugh JJ.

161 162

(1992) 174 CLR 509 at 529 per Mason CJ, Dawson, Toohey and McHugh JJ. (1992) 174 CLR 509 at 530 per Mason CJ, Dawson, Toohey and McHugh JJ.

163

(2007) 230 CLR 500; [2007] HCA 10: the facts are set out at 588-589. See also N Maamary, “Determining Where the Truth Lies: Institutional Prosecutors and the Tort of Malicious Prosecution” (2008) 30 Sydney Law Review 357. [9.180] 239

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employee of the New South Wales police force. He was married to S, who had three children, B, D and C. One of S’s children, D, disliked his stepfather, A. D and his brother, C, made various complaints about A sexually interfering with them. These allegations were essentially the principal evidence for the subsequent charges. The allegations led to the children, D and C, being placed in foster care and A was charged with various sexual offences. At a committal hearing in relation to the charges, C admitted in evidence that he had lied and that he and his brother had concocted the stories. After hearing the evidence of the child, D, the magistrate discharged A, finding that there was no reasonable prospect that a jury could convict on the evidence. A then commenced an action, suing for malicious prosecution, among other matters. At the District Court of New South Wales, A’s malicious prosecution action was “partially successful”.164 The State of New South Wales appealed to the Court of Appeal and the judgment of the trial court was set aside. A then appealed to the High Court. In A v New South Wales, the High Court restated (at 604-605) the four elements of the tort of malicious prosecution: 1.

relevant proceedings were initiated;

2.

the proceedings were terminated in favour of the plaintiff;

3.

the defendant, in initiating or maintaining proceedings, acted with malice; and

4.

the defendant also acted without reasonable and probable cause.165

The first and second matters were not disputed. The High Court focused on the third and fourth matters and examined the history of the action, concluding, in relation to “reasonable and probable cause”, that: unless the prosecutor is shown either not to have honestly formed the view that there was a proper cause for prosecution, or to have formed that view on an insufficient basis, the element of reasonable and probable cause is not established.166

The court found that malice is a separate element of the tort167 and the majority stated (at 539) that: [T]o constitute malice, the dominant purpose of the prosecutor must be a purpose other than the proper invocation of the criminal law - “an illegitimate or oblique motive.”168 That improper purpose must be the sole or dominant purpose of the prosecutor.

The court did not define or limit the context in which a prosecution would be classified as “malicious”. They found that where the appellant can show that the

164 165 166 167 168

(2007) 230 CLR 500 at 504; [2007] HCA 10 at [7]. See also Wan v Sweetman (1998) 19 WAR 94; and Roddan v Walker [2000] WASCA 376 at [11] per Parker J. (2007) 230 CLR 500 at 528, 539; [2007] HCA 10 at [80] and [118] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. (2007) 230 CLR 500 at 539; [2007] HCA 10 at [117] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. The court quoted from Gibbs v Rea [1998] AC 786 at 804.

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prosecution was not for a proper purpose, it will necessarily be malicious.169 In this matter, the High Court effectively restored the judgment obtained at trial. A prosecution is terminated in favour of the plaintiff if it does not result in a conviction.170 Prior to Beckett v State of New South Wales,171 if the proceedings ended by entry of a nolle prosequi, the tort of malicious prosecution could only be established if the plaintiff proved his or her innocence. In Beckett the High Court overturned its earlier decision and held that a plaintiff must simply establish that the proceedings were terminated in his or her favour and there is no exception that requires the plaintiff to prove his or her innocence where proceedings are ended by way of a nolle prosequi or similar statutory authority.172

169 170

(2007) 230 CLR 500 at 601; [2007] HCA 10 at [92] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ. Beckett v State of New South Wales (2013) 248 CLR 432 at 439.

171

Beckett v State of New South Wales (2013) 248 CLR 432.

172

Beckett v State of New South Wales (2013) 248 CLR 432 at 454-456. [9.180] 241

CHAPTER 10 Legal Representation [10.10] [10.30] [10.40]

[10.100] [10.110] [10.120]

[10.150]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 243 History matters: McInnis v The Queen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 244 Dietrich v The Queen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 [10.50] Indigent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246 [10.60] Serious offence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247 [10.70] Fault . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248 [10.80] Exceptional circumstances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 250 [10.90] Quality of legal representation . . . . . . . . . . . . . . . . . . . . . . . . . . . 251 Lawyer incompetence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252 Legal aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255 The unrepresented accused . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 [10.130] McKenzie friend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 259 [10.140] “Amicus curiae” or “friend of the court” . . . . . . . . . . . . . . . . 260 Ethical considerations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 261 [10.160] Defending a person believed to be guilty . . . . . . . . . . . . . . . . 263 [10.170] Where the representative believes the client or another defence witness has lied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 264 [10.180] Where the defence lawyer is aware of an error of law or fact that favours the defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265 [10.190] Where a lawyer and the accused disagree on the conduct of the case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266

OVERVIEW [10.10] This chapter examines a number of issues associated with both legal representation and lack of legal representation for an accused person in criminal matters. Building on the discussion of a fair trial in Chapter 9, the importance of legal representation in ensuring a fair trial is explored, followed by a consideration of legal aid services and particular issues associated with unrepresented defendants. The chapter concludes with an overview of ethical considerations specific to legal representatives in criminal matters. The legal profession includes both solicitors and barristers. Solicitors are usually involved in preparing the accused person’s case for the court hearing of the matter, which is then “briefed” to a barrister, who represents the accused in court.1 Many solicitors, however, also represent their clients in court, especially in less serious matters in the Magistrates’ Courts or in matters of short duration in the higher courts. Many barristers also prepare advice on the law in their field of experience.2 Generally, throughout this chapter, we have used either the term

1 2

See the Queensland Law Society website: http://www.qls.com.au. Viewed 14/04/2017. See the Queensland Bar website: http://www.qldbar.asn.au. Viewed 14/04/2017.

[10.10] 243

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“lawyer” or “legal representative” unless there are different rules for barristers and solicitors.

[10.20] A number of international instruments recognise a right to legal representation, especially in criminal proceedings. For example, the International Covenant on Civil and Political Rights (ICCPR) states (at para 14.1(b)): Everyone charged with a criminal offence shall have the right to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing … To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it.

The Basic Principles on the Role of Lawyers, adopted in 1990 by the eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, sets out in its first paragraph that: All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings.

An accused person is entitled to be represented by counsel: Queensland Criminal Code (QCC) s 616.3 However, neither Queensland statute law nor the common law recognises an express right to legal representation at public expense.4 The right to legal representation, specifically during the trial, was examined in two important cases: McInnis v The Queen5 and Dietrich v The Queen.6 These cases are examined below.

HISTORY MATTERS: MCINNIS v THE QUEEN [10.30] In McInnis v The Queen,7 the accused sought an adjournment in order to secure alternative legal representation to replace his barrister who withdrew from the case the day before the trial. His application was refused and he was convicted of various offences, including rape. McInnis appealed on the basis that the refusal to adjourn proceedings had seriously prejudiced him in his trial and constituted a miscarriage of justice. The majority of the High Court held that a miscarriage of justice had not occurred as the accused had not lost a chance of an acquittal due to the way the trial was conducted and evidence against the accused was compelling. However, the argument in favour of a general right to legal representation (at public expense) received significant support from the dissenting

3 4

5 6

This entitlement exists throughout Australia. See the Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Final Report No 129, December 2015) at [8.127] for the historical account of common law’s failure to recognize the right to legal representation. The right to legal representation at public expense is not recognized in other Australian jurisdiction: see for example Achanfuo-Yeboah v The Queen [2016] ACTCA 71 at [56]-[59]. (1979) 143 CLR 575. (1992) 177 CLR 292.

7

(1979) 143 CLR 575.

244 [10.20]

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CH 10

judgment of Murphy J, who referred to authorities from the United States to support his view that there is a right to counsel, commenting (at 586) that: the right to counsel derives from the disadvantage of being unrepresented in a judicial system which claims to dispense equal justice in accordance with the rule of law. Whatever the position in minor cases might be, it is fundamental to the administration of justice in serious cases (which undoubtedly include rape) that an accused has the right to legal representation even if he has no means to engage counsel.

Murphy J found that where a person charged with a serious offence desires legal assistance and is unable to afford it, he should not be forced to trial without legal counsel. He found that the trial should be postponed until legal assistance can be provided. Over ten years later, the High Court revisited the question of the right to legal representation in the case of Dietrich.8

DIETRICH v THE QUEEN [10.40] Dietrich was charged with various drug importation offences. He sought legal aid but was refused on the basis that his defence lacked merit. He unsuccessfully appealed the decision of the Victorian Legal Aid Commission and applied to the Commonwealth Attorney-General and the Minister for Justice for funds for representation, but both applications were refused. He also unsuccessfully sought an adjournment of proceedings from the trial court so that he could secure legal representation. Ultimately, he pleaded “not guilty” to the various charges and, after a trial that ran for 40 days, he was found guilty of importation offences. He sought leave of the Victorian Court of Criminal Appeal to appeal against the conviction on the basis that: every indigent accused charged with an indictable offence is entitled to counsel provided at the expense of the State and that the failure of the trial judge to appoint counsel for the applicant was a miscarriage of justice requiring that the conviction be quashed.9

The Victorian Court of Criminal Appeal refused leave and Dietrich appealed against this decision to the High Court. The sole ground of appeal to the High Court was that the trial had miscarried because of lack of legal representation. The High Court unanimously rejected the argument that the absence of representation for an accused who cannot afford to engage counsel necessarily means that the trial is unfair and that any conviction should be quashed.10 The central principle arising from the case, the Dietrich principle, can be summarised as follows:11 [A] trial judge who is faced with an application for an adjournment or a stay by an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation … in the absence of exceptional circumstances, the trial … should be adjourned, postponed or stayed until legal representation is 8 9 10

11

Dietrich v The Queen (1992) 177 CLR 292. (1992) 177 CLR 292 at 299. (1992) 177 CLR 292 at 300-301 per Mason CJ and McHugh J. See also Gassy v The Queen (2008) 236 CLR 293; [2008] HCA 18 at [150] per Crennan and Kiefel JJ, at [48] per Gummow, Hayne JJ. (1992) 177 CLR 292 at 315 per Mason CJ and McHugh J; see also at 353 per Toohey J and at 337 per Deane J. [10.40] 245

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available. If … an application that the trial be delayed is refused and, by reason of the lack of representation of the accused, the resulting trial is not a fair one, any conviction of the accused must be quashed by an appellate court for the reason that there has been a miscarriage of justice in that the accused has been convicted without a fair trial.12

Deane J accepted that legal representation is an advantage to the accused in “practically every case”.13 He also stressed that although, in an ideal world, legal representation would always be available, the interests of justice cannot be pursued in isolation. He referred to the competing demands on public funds and the limitations on legal aid funding.14 Thus, the High Court in Dietrich did not find there was a right to counsel funded at public expense. What the court did find was that, in certain circumstances, the trial of an unrepresented accused might need to be stayed where, as a result of the lack of legal representation, the trial would be unfair. Mason CJ and McHugh J stated that a trial would be (or will have been) unfair where, as a result of lack of legal representation, the accused lost a real chance of acquittal.15 A stay granted on a Dietrich application will often only need to be temporary to allow the accused to secure legal representation; however, this will depend on the case. The Dietrich case led to a proliferation of “Dietrich applications”, which tested the limits of the principles stated in the case. Some of these issues are discussed below.16

Indigent [10.50] In order for the Dietrich principle to apply, the person must be indigent. Deane J’s judgment in Dietrich suggests that to be indigent, a person must have a lack of means to pay for, or be unable to afford, legal representation at their trial.17 The question of what it means to be “indigent” has been examined on a number of occasions. For example, in R v Marchi, Marchi and Mead, Perry J noted that “indigent” did not mean that the accused was living in poverty; rather it meant that the accused lacked the means to “engage appropriate legal representation to conduct his or her defence”.18 Thus, the question of indigence will also be related to the costs that will be incurred with respect to representation in the specific

12 13

14 15 16

17 18

(1992) 177 CLR 292 at 315 per Mason CJ and McHugh J (emphasis added). All the judges agreed with this statement: see (1992) 177 CLR 292 at 301-302 per Mason CJ and McHugh J, at 349 per Deane J, at 344-345 per Dawson J, at 353-354 per Toohey J, and at 369 per Gaudron J. (1992) 177 CLR 292 at 349 per Deane J. (1992) 177 CLR 292 at 310. See R v Crothers & Ors [2010] QCA 334 at [301] and Sanderson & Anor v Bank of Queensland Limited [2016] QCA 137 at [19]-[20]. For a feminist examination of the Dietrich case, see R Graycar and J Morgan “Dietrich and The Queen” in H Douglas, F Bartlett, T Luker, R Hunter (eds), Australian Feminist Judgments: Righting and Rewriting Law (Oxford: Hart Publishing (2014) pp. 75-82. (1992) 177 CLR 292 at 337 per Deane J. (1996) 91 A Crim R 112 at 118. See also Szulc v Chief Executive Officer Department of Environment and Conservation [2012] WASCA 143 at [42].

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case.19 Some cases will of necessity be more expensive than others. Gibson has commented that indigence is not equated with the legal aid guidelines.20 In the case of R v Rich,21 the court explored whether funds were available from a variety of sources in relation to the question of indigence. For example, the court examined assets (including car, house and superannuation), the availability of funds from the accused’s de facto22 and the sale of assets. Cox J rejected the idea that the concept of “indigence” was only considered in light of the present state of affairs, or was understood by a “snapshot” test.23 He noted that it was up to the accused to take the initiative in relation to obtaining sufficient funds.24 Therefore, what occurred with respect to finances before the stay application was granted may also be relevant. The issue of indigence may often be related to the issue of fault. In Ex parte Roddan, the court noted that there might be particular difficulties in deciding on the question of indigence where the financial position of the accused is relevant to his defence.25 For example, in some situations the financial position of the accused and the reasons for being in that position may be relevant to both defending the charge and to indigence.

Serious offence [10.60] The question of what constitutes a “serious” offence has generally been narrowly defined. In Dietrich, Mason CJ and McHugh J referred to “serious indictable” matters,26 and Deane J inferred that the principle did not apply to proceedings before a magistrate or judge without a jury.27 This would seem to generally exclude the application of the principle in summary trials.28 Deane J also noted that a non-serious offence was a matter where there was no threat of deprivation of liberty.29 In Khalifeh v Job, the court found that an offence carrying a maximum penalty of $4,000 and imprisonment for one year upon summary conviction, should not be regarded as “serious”.30 19 20

R v Fuller (1997) 92 A Crim R 151 at 153. F Gibson, “Legal Aid: A Decade After Dietrich” (2003) 41 Law and Society Journal 52; see also R v Karounos (1995) 63 SASR 451 at 458 per King CJ; see also [10.110].

21

(1997) 93 A Crim R 483.

22

See also R v Smith [1999] SADC 36, where the assets of the wife were also taken into account. (1997) 93 A Crim R 483 at 488.

23 24 25 26 27 28

29

30

(1997) 93 A Crim R 483 at 488. (1995) 86 A Crim R 1 at 6. (1992) 177 CLR 292 at 312. (1992) 177 CLR 292 at 336 per Deane J. This principle is generally applied: see Donnachy v Riegert (2004) 144 A Crim R 260; [2004] WASCA 48 at [55] per Roberts-Smith J; however, the Dietrich principle has been applied in some summary matters: see Weinel v Fedcheshen (1995) 65 SASR 156. (1992) 177 CLR 292 at 336 per Deane J: Dietrich’s counsel suggested (at 350) that “seriousness” required punishment by imprisonment. This test was applied in King v Lankford [2000] WASCA 214 where the offences were resisting arrest, hindering police and assault. (1996) 85 A Crim R 68 per Sheller J; see also R v Essenburg [2002] QCA 4 per McPherson JA, where an offence of possessing an unlicensed weapon was considered to be a “nonserious” offence. [10.60] 247

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Up to the present point in time, the Dietrich principle has also been limited to trials. In R v Matterson; Ex parte Helfenbaum, Cox J refused to stay proceedings in relation to a committal.31 The judge noted that Helfenbaum was not in jeopardy of a penalty of imprisonment until indicted and put on trial.32 Similarly, the principle has not been held to apply either to civil proceedings generally or to witnesses in a Commission of Inquiry.33 For example, in an investigation of a death, a witness sought a stay so that he could obtain legal representation. The witness was concerned that the death may be attributed to him during the investigation. The majority of the High Court held that the Dietrich principle was not applicable to the protection of the interests of witnesses generally or, more specifically, to the protection of a witness at an inquiry.34 Kirby J commented in Sinanovic v The Queen35 that the Dietrich principle has not so far been extended to appeals to courts of criminal appeal against conviction. He noted that such an extension would have significant economic implications.36 Kirby J has observed that many appeal litigants cannot afford legal representation and he reiterated that the Dietrich principle has not been extended to criminal appeals.37

Fault [10.70] According to the Dietrich principle, the accused can’t be at fault in relation to their lack of legal representation. An accused who declined or persistently refused legal representation may be considered to be at fault.38 However, the refusal of legal representation need not necessarily be deliberate or wilful for there to be fault.39 For example, in R v Small, the accused was charged with armed robbery. He explained his failure to obtain legal representation on the basis that he was on methadone, distressed and not well educated. Although he thought that 31 32

33

34 35 36 37 38

39

(1993) 65 A Crim R 264; see also Higgins v Comans (2005) 153 A Crim R 565; [2005] QCA 234 at [22] per Keane JA and Berg v Director of Public Prosecutions (Qld) [2015] QCA 196 at [56]. (1993) 65 A Crim R 264 at 267. For this reason, the Dietrich principle is unlikely to be applied to bail applications; but for an alternative view, see G Zdenkowski, “Defending the Indigent Accused in Serious Cases: A Legal Right to Counsel?” (1994) 18 Criminal Law Journal 135 at 145. New South Wales v Canellis (1994) 181 CLR 309 at 329 per Mason CJ, Dawson, Toohey and McHugh JJ; Sanderson & Anor v Bank of Queensland Limited [2016] QCA 137 at [21]. Generally, in relation to legal representation before tribunals, see M Hocken, P Latimer and S Marsden, “Legal Representation before Tribunals, Committees and Other Bodies” (2007) 14(2) ELaw Journal: Murdoch University Electronic Journal of Law 122: http://www.eprints.qut.edu.au/141 83. Viewed 14/04/2017. New South Wales v Canellis (1994) 181 CLR 309 at 329 per Mason CJ, Dawson, Toohey and McHugh JJ. (1998) 103 A Crim R 452. (1998) 103 A Crim R 452 per Kirby; see also Johns v The Queen (1995) 13 WAR 380; and R v Petersen [2008] QCA 405 at [30] per McMurdo P. Crampton v The Queen (2000) 206 CLR 161 at 205-206 per Kirby J. See also Achanfuo-Yeboah v The Queen [2016] ACTCA 71 at [49]-[59]. Dietrich v The Queen (1992) 177 CLR 292 at 336 per Deane J, and at 365 per Gaudron J; see also R v Frawley (1993) 69 A Crim R 208 at 211-212; R v Crothers & Ors [2010] QCA 334 at [301]-[302]. R v Small (1994) 72 A Crim R 462 at 473 per Hunt CJ.

248 [10.70]

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he had arranged counsel for his trial, he had not checked and legal aid had subsequently been withdrawn. Despite his personal circumstances, Small was found to be at fault and a stay was refused.40 The High Court has agreed that the test of fault focuses on: the reasonableness of the conduct of an accused in all of the circumstances; and excluded situations in which it could fairly be said that the accused, by his gratuitous and unreasonable conduct, had been the author of his own misfortune.41

In R v Rich, the court took into account that the accused did not save or make any effort to secure loans. Cox J found it was for the accused to take the initiative to secure funds for legal representation and he had not done this.42 Fault is a question of fact which will involve discretionary judgment,43 and the question of fault will be resolved by reference to the circumstances surrounding the reasons the person is unrepresented.44 In R v Batiste,45 the accused constantly changed her legal aid solicitors and refused to properly explain to the court why she had done this. She also refused to waive legal professional privilege in relation to a letter that may have offered some explanation. A stay was refused. In R v Promizio, legal aid was granted to the accused on two separate occasions, but was then cancelled due to lack of instructions and the accused person’s unreasonable and “intractable” conduct.46 A stay was refused. In R v East,47 the day before the accused’s trial was to commence, his legal representative applied for leave to withdraw on the basis that East had complained to the legal representative about the running of the trial and that East had claimed that the trial was not ready to proceed. Without hearing from East, the trial judge granted leave to the legal representative to withdraw and directed that the trial would commence on the following day. The accused sought an adjournment to obtain legal representation, the application was refused and East was subsequently found guilty by a jury of various charges. East appealed against the convictions, in part on the basis that he was forced to proceed to trial against his wishes. The Court of Appeal found that the trial judge had made an assumption that the accused was using delaying tactics and that the trial judge “had no sufficient basis” for taking the “exceptional course” of refusing an adjournment as it may have been possible for East to obtain legal representation in

40

41 42 43 44

(1994) 72 A Crim R 462 at 474 per Hunt CJ. See also R v Gudgeon (1995) 83 A Crim R 228 at 244, where senior counsel was hospitalised and the defendant did not arrange for a replacement – Gudgeon was found to be at fault; cf Walker v The Queen (1998) 101 A Crim R 152; [1998] WASCA 43 where the accused had not sought legal representation while hospitalised and had not had the opportunity to source legal representation post-discharge – therefore no evidence of fault. Craig v South Australia (1995) 82 A Crim R 359 at 369-370 per Brennan, Deane, Toohey, Gaudron and McHugh JJ, quoting Olsson J from the Court of Appeal. (1997) 93 A Crim R 483 at 488 and 490. Craig v South Australia (1995) 82 A Crim R 359 at 372. R v Batiste (1994) 77 A Crim R 266 at 273 per Carruthers J.

45 46

(1994) 77 A Crim R 266 at 274 per Smart J. (2004) 142 A Crim R 592 at 596; see also R v IAS (2004) 146 A Crim R 416; R v Crothers & Ors [2010] QCA 334 at [302]-[303].

47

(2008) 190 A Crim R 225; [2008] QCA 144. [10.70] 249

Criminal Process in Queensland

a relatively short time.48 It is clearly important for the trial judge to hear from the accused before making a decision that the accused is at fault. The need to balance fairness with the need for efficient and effective administration of justice was also discussed in the case.49

Exceptional circumstances [10.80] The court will also need to be satisfied that there are no exceptional circumstances that would justify the trial proceeding in spite of the lack of legal representation. Not surprisingly, there is no definitive list of examples of exceptional circumstances.50 In Dietrich, Toohey J noted (at 356-357) that most trial judges would have had: the experience of a litigant in person who seems able to conduct his or her part in the proceedings with skill and, sometimes, to a successful conclusion. But such situations are exceptional.

In R v Fuller,51 Fuller and Cummings were charged with fraud in relation to millions of dollars. They made every reasonable effort to obtain legal representation and, at the time of their trial, the court accepted that they were indigent. However, Mathieson J noted that both applicants were experienced and skilled commercial lawyers. He accepted that at their committal hearing they had appeared in person and taken objections and cross-examined on the evidence. Their legal skills were found to create exceptional circumstances and a stay was refused.52 However the South Australian Court of Criminal Appeal overturned Mathieson J’s decision and ordered a temporary stay of proceedings. The Court took into account the large number of charges, the prospect that the trial would be both lengthy and complex and the fact that neither accused had been practicing lawyers for some years.53 In exceptional circumstances, an appeal court will quash a conviction where an unrepresented accused made poor decisions in how he or she conducted his or her defence at trial.54 In R v Wilson,55 the accused was known to suffer from a psychiatric condition and had a tendency to lose control. The accused had not met his barrister until the morning of the trial and had dismissed the barrister soon after. He was unrepresented and he failed to lead evidence which tendered to

48

49 50

R v East (2008) 190 A Crim R 225; [2008] QCA 144 at [53]-[63] per Keane JA, at [116] per Fryberg J, and at [121] per Lyons J: the court allowed the appeal, set aside the convictions and ordered a new trial. R v East (2008) 190 A Crim R 225; [2008] QCA 144 at [55]-[56] per Keane JA; see also Wong v The Queen (2001) 159 FLR 328; [2001] WASCA 32 at [53] per Kennedy J.

51 52 53 54

See S Kift, “The Dietrich Dilemma” (1998) 13 Queensland University of Technology Law Journal 205 at 215. (1997) 92 A Crim R 151. (1997) 92 A Crim R 151 at 160. R v Fuller (1997) 95 A Crim R 554. The usual position is stated in R v Mill [2007] QCA 150 at [57] as “an unrepresented accused person is not denied a fair trial because he or she conducts his or her case on the basis of errors of judgment which arise because of the accused person’s imperfect appreciation of his or her situation.”

55

[1998] 2 Qd R 599.

250 [10.80]

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undermine the prosecution’s case that he intended to kill when he stabbed the victim in the stomach with a small knife. Wilson later successfully appealed against his conviction for attempted murder. The Court of Criminal Appeal found that “his decision to dismiss his lawyers cannot be separated from his mental condition and the effect which it had on his behaviour”.56 While his decision may have been ill-advised, the circumstances were considered to be exceptional.57 In Achanfuo-Yeboah v The Queen,58 the ACT Court of Appeal ordered that the applicant’s sentence be temporarily stayed to allow him to acquire funds to pay for legal representation at the sentencing appeal. The court found that, the fact there was an arguable ground of appeal and that there was a real chance the applicant could earn sufficient income to pay for legal representation, constituted exceptional circumstances that justified a stay of the sentence and the granting of bail.59 Exceptional circumstances have also been linked to the requirement that there be no fault.60 It would appear to be a wide category.

Quality of legal representation [10.90] As previously noted, in Dietrich all the members of the High Court agreed that legal representation would be an advantage to an accused in every case.61 The key issue was the importance of legal representation to a fair trial. Since Dietrich, there has been much discussion of what it means to be “legally represented”. The Dietrich case seems to say that legal representation need only be “competent”.62 Other cases have suggested that the legal representative must be “adequate”63 or “appropriate to the demands of the particular case”.64 An “adequate” legal representative is not a “Rolls Royce” representative.65 Depending on the case, an “adequate” legal representative may be one who appears in the criminal jurisdiction regularly.66 It is clear that it is not for trial judges to embark on an assessment of the relative degrees of competence and experience of lawyers

56

R v Wilson [1998] 2 Qd R 599 at 654.

57

R v Wilson [1998] 2 Qd R 599 at 653. Wilson’s attempted murder conviction was substituted with a conviction for causing grievous bodily harm. [2016] ACTCA 71. [2016] ACTCA 71 at [64]-[65].

58 59 60

61 62 63 64 65 66

Dietrich v The Queen (1992) 177 CLR 292 at 336 per Deane J, and at 365 per Gaudron J; see also R v Gudgeon (1995) 83 A Crim R 228 at 244 per McPherson JA and Thomas J; and R v East (2008) 190 A Crim R 225; [2008] QCA 144 at [59] where Keane JA noted (in obiter) that “serial terminations … to put off the day of the trial” would be found to be exceptional circumstances within the principle. (1992) 177 CLR 292 at 301-302 per Mason CJ and McHugh J, at 316 per Brennan J, at 349 per Deane J, at 344-345 per Dawson J, at 353-354 per Toohey J, and at 369 per Gaudron J. (1992) 177 CLR 292 at 310 per Mason CJ and McHugh J, at 353 per Toohey J, and at 345 per Dawson J. See R v Page (unreported, NSW CCA, 22 November 1993). R v Souter (1997) 93 A Crim R 400. Cummings v The Queen (1994) 12 SR (WA) 172 at 178. Attorney-General (NSW) v Milat (1995) 80 A Crim R 530 at 536. [10.90] 251

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available to act for the person.67 The mere fact that an accused cannot be represented by particular counsel or his chosen counsel will not necessarily mean that he or she is “unrepresented”.68 If the legal representation was “manifestly inadequate”, or the terms and conditions of legal aid too restrictive, the accused may appropriately be regarded as being unrepresented.69 The question of manifest inadequacy and restrictive grants of aid will depend on the circumstances. In Attorney General (NSW) v Milat,70 the legal aid organisation had provided a package which Milat’s lawyers found insufficient. However, the court found that the legal aid package was in fact sufficient for Milat to secure competent representation.71 A different view was taken in R v Souter. In that case, the court found that the legal aid available was utterly unrealistic for a complex case involving 63 counts of fraud and 85 witnesses, and that it would be impossible to secure legal representation for the designated sum.72 The question for the court to decide is not whether the remuneration rate is reasonable but whether, if the person was unable to obtain legal representation, the subsequent trial would be unfair.73

LAWYER INCOMPETENCE [10.100] Claims about lawyer incompetence and the impact of such incompetence on fair trial increased after the Dietrich case.74 Legal representatives have a broad discretion in conducting a case in a particular way and the accused is usually held to the way the legal representative decides to proceed at the trial.75 For example, during the trial, the legal representative uses their expertise and discretion to make decisions about whether to call witnesses, what questions to ask, what arguments to follow and what tactical approaches to use.76 However, where the appellant can show that the conduct of the legal representative resulted in a material irregularity in the trial and that the material irregularity affected the outcome of the trial, the trial may be considered to be unfair.77 In such circumstances, it may be appropriate to set aside the conviction. Thus, the impact 67

Attorney-General (NSW) v Milat (1995) 80 A Crim R 530 at 535.

68 69 70 71 72 73 74

R v Gudgeon (1995) 83 A Crim R 228 at 243. Attorney-General (NSW) v Milat (1995) 80 A Crim R 530 at 536. (1995) 80 A Crim R 530. (1995) 80 A Crim R 530 at 536; see also R v Grosser [2002] SASC 193. R v Souter (1997) 93 A Crim R 400. Attorney-General (NSW) v Milat (1995) 80 A Crim R 530 at 541. See Nudd v The Queen (2006) 225 ALR 161 at [47] per Kirby J; see also D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 where the High Court maintained the immunity of legal practitioners who give advice affecting the conduct of a trial from subsequently being sued for negligence on account of their advice and conduct.

75

R v Birks (1990) 19 NSWLR 677 at 683-685 per Gleeson CJ; Nudd v The Queen (2006) 225 ALR 161 at 164 [9]. R v Birks (1990) 19 NSWLR 677 at 683-685 per Gleeson CJ. For a discussion of whether particular counsel made “tactical decisions” or “an error”, see Munro v The Queen [2006] NSWCCA 350 at [21]-[22] per Beazley JA. See TKWJ v The Queen (2002) 212 CLR 124 at 149 per McHugh J; see also R v Paddon [1999] 2 Qd R 387; see also Chapter 13 (Appeals).

76

77

252 [10.100]

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of incompetence on the outcome of the trial will usually be a key consideration. Nevertheless, it will be very difficult to discharge the “heavy burden” associated with this course – and the “pragmatic consequence” of incompetent representation will not be the sole consideration.78 In order to have a conviction set aside, it will not always be required (at least in theory) that the appellant satisfy the court that incompetent representation changed the outcome of the trial. As McHugh J points out in TKWJ v The Queen,79 even where the prosecution case is strong, the accused is entitled to a fair trial.80 However, it is possible that an accused may not receive a fair trial if, for example, counsel fails to address the jury or cross-examine material witnesses for no valid reason.81 This may be reason enough to set aside a conviction and direct a retrial. It is inevitable that trial lawyers will, from to time, make decisions in the course of a trial that in retrospect may not seem ideal,82 and valid criticisms may be made of trial counsel’s approach to matters after the trial.83 However, an accused’s disappointment will not be sufficient to ground a successful appeal,84 and these matters will not usually amount to unfairness and the setting aside of a conviction – “not every error makes the trial unfair”.85 In TKWJ v The Queen,86 the High Court considered the issue of counsel incompetence. In this case, the appellant had been convicted of indecent assault. The appellant claimed that his legal representative was incompetent in omitting to call evidence of good character during the trial. Gleeson CJ commented (at [16]) that: [I]n the context of the adversarial system of justice, unfairness does not exist simply because an apparently rational decision by trial counsel, as to what evidence to call or not to call, is regarded by an appellate court as having worked to the possible, or even probable, disadvantage of the accused. For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered or wise.

In later commenting on TKWJ v The Queen, Kirby J suggested that the judgment affirms the relevance of professional competence in deciding whether or not a trial has been unfair.87 In Tuckiar v The King,88 an Indigenous man was convicted of the murder of a policeman. Tuckiar appealed against the conviction. Ultimately, the High Court set 78 79 80 81 82 83 84 85 86 87

88

See Nudd v The Queen (2006) 225 ALR 161 at [90] per Kirby J. (2002) 212 CLR 124. TKWJ v The Queen (2002) 212 CLR 124 at [76] per McHugh J; Dietrich v The Queen (1992) 177 CLR 292. TKWJ v The Queen (2002) 212 CLR 124 at [76] per McHugh J; see also Nudd v The Queen (2006) 225 ALR 161 at [17] and [19] per Gummow and Hayne JJ. R v Miletic [1997] 1 VR 593 at 598 per Winneke P, Charles and Callaway JJA. R v Green [1997] 1 Qd R 584 at 586 per Fitzgerald P and Thomas J. J Hunter, C Cameron and T Henning, Litigation II: Evidence and Criminal Process (7th ed, LexisNexis, 2005) p 1280. TKWJ v The Queen (2002) 212 CLR 124 at [77] per McHugh J. (2002) 212 CLR 124. Nudd v The Queen (2006) 225 ALR 161 at [42] per Kirby J; on competency, see also Legal Services Commissioner v Winning (No 2) [2008] LPT 014; and Legal Services Commissioner v Anderson [2009] LPT 001. (1934) 52 CLR 335. [10.100] 253

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aside the conviction on the basis that Tuckiar had been denied a fair trial.89 In this case, the High Court found that a fair trial had been denied for a number of reasons, including that counsel was incompetent. Tuckiar’s counsel had divulged privileged information to the court, inappropriately failed to object to certain evidence presented by the prosecution, failed to make submissions on the law, and concurred with judicial directions that were wrong. In R v Paddon,90 counsel for the defence had adduced evidence of the accused’s prior convictions and had called a witness, who ultimately damaged the accused’s credibility. Chesterman J suggested that “flagrant incompetence” might give rise to the apprehension that an accused was not tried fairly.91 His Honour noted (at 397) that: Flagrant incompetence, in the sense of the obvious, shocking ineptitude, will not be demonstrated by an error of judgment in the conduct of a criminal defence. There must, at the least, be something in the conduct of the defence which could never be thought by competent counsel in the circumstances of the trial to be of any possible advantage to the accused.

The court accepted that there were satisfactory explanations for calling the evidence. Chesterman J commented that, where satisfactory explanations could be given for calling evidence, it was “unsatisfactory” for arguments to be addressed to claims of flagrant incompetence.92 His Honour confirmed that the question of whether flagrant incompetence led to an unfair trial would depend on the case. However, Chesterman J’s test should be used cautiously in light of McHugh J’s comment, in TKWJ v The Queen, that the test of flagrant incompetence will not always be helpful.93 More recently, in Nudd v The Queen,94 the High Court accepted that the appellant’s legal representative was “incompetent to a serious degree”.95 From Kirby J’s description of the professional incompetence of the legal representative, it could properly be said that the incompetence was “flagrant”.96 Among other things, the lawyer failed to take proper instructions, failed to properly understand or advise the accused on the elements of the offence he was charged with, gave incorrect advice in relation to the evidence, inappropriately conceded certain matters, failed to object to certain evidence, and introduced prejudicial information in the closing address. Despite this, however, the majority found that the case against the accused was overwhelming, that there was no real doubt about the

89 90 91 92 93

(1934) 52 CLR 335 at 347 per Duffy CJ, Dixon, Evatt and McTiernan JJ. [1999] 2 Qd R 387. [1999] 2 Qd R 387 at 397 per Chesterman J. R v Paddon [1999] 2 Qd R 387 at 398-399 per Chesterman J. McHugh J noted that “a test such as ‘flagrant incompetence’ while a convenient label that may show that a miscarriage of justice has occurred in a particular case” is not always helpful: see TKWJ v The Queen (2002) 212 CLR 124 at 97 per McHugh J. However, for a discussion of the phrase “flagrant incompetence”, see Macartney v The Queen (2006) 31 WAR 416; [2006] WASCA 29.

94 95 96

(2006) 225 ALR 161. (2006) 225 ALR 161 at [53] per Kirby J, at [158] per Callinan and Heydon JJ. Nudd v The Queen (2006) 225 ALR 161 at [54] per Kirby J, and see also [160] per Callinan and Heydon JJ.

254 [10.100]

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appellant’s guilt and that the process had ultimately not departed from the essential elements of a fair trial.97

LEGAL AID [10.110] In Australia, legal aid began as a response to the inherited British belief that lawyers had a responsibility to provide free or reduced rate services to those among the poor who were unable to afford legal fees but were considered to have a “deserving” case. The tradition was that the “gentleman’s profession” devote 10% of its time to such charitable cases. The concept of “legal aid” had begun in England with the establishment of a court-based system in 1495. Paupers’ Rules gave the Chancellor power to appoint lawyers to appear for poor people in civil cases before the King’s Bench. While initial arrangements focused on civil cases, the subsequent delivery of legal aid services has principally been in the area of serious criminal offences.98 Statutory schemes now exist throughout Australia99 to provide legal assistance for many people who are financially disadvantaged. These various systems are very similar.100 In Queensland the scheme operates pursuant to the Legal Aid Queensland Act 1997 (Qld). These Acts establish the legal aid service (LAQA, Pt 3), which employ legal representatives to assist disadvantaged clients and also fund private practitioners to assist clients. There is no individual right to legal aid and a careful decision-making process is involved in deciding how State funding will be allocated to particular cases. In handing down their judgment in Dietrich, Mason CJ and McHugh J commented that it was difficult for them to assess the full practical implications that would flow from their decision.101 Brennan J commented (at 323) that: The Courts do not control the public purse strings; nor can they conscript the legal profession to compel the rendering of professional services without reward. The provision of adequate legal representation for persons charged with the commission of serious offences is a function which only the Legislature and the Executive can perform. No doubt, demands on the public purse other than legal aid limit the funds available.

In deciding whether to provide assistance, a number of matters are taken into account, including the applicant’s assets and income, the cost of obtaining assistance from a private lawyer and any benefits or detriments that may accrue to

97

98

99 100 101

(2006) 225 ALR 161 at [20] per Gleeson CJ, at [109] per Kirby J, at [159] per Callinan and Heydon JJ. The majority also found that there had been no miscarriage of justice; See further, Chapter 13 (Appeals). For an historical overview of legal aid, see J Giddings, Legal Aid in Victoria: At the Crossroads Again (Fitzroy Legal Service, Melbourne, 1998). In the period 2014-2015, 18,177 applications for aid for criminal matters were approved, compared to 6,786 applications approved for family law matters and 2986 applications approved for civil matters other than family law matters: see Legal Aid Queensland, Annual Report 2014-2015 (Brisbane, 2015) p 31. For further information, see National Legal Aid: http://nationallegalaid.org/. Viewed 14/04/ 2017. See S Armstrong, “What Has Happened to Legal Aid?” (2001) 5 University of Western Sydney Law Review 91 at 97. (1992) 177 CLR 292 at 311-312 per Mason CJ and McHugh J. [10.110] 255

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the applicant or the community as a result of either granting or refusing legal aid: LAQA, s 12. Essentially, in deciding whether to grant aid, a two-pronged test is applied which assesses the merits and the means of the applicant. The merits test has three parts: 1.

The “reasonable prospects of success” test, which is based on the legal and factual merits of the case. Legal aid is more likely to be granted where this test can be satisfied. In Dietrich, it was essentially this part of the test that Dietrich’s application for legal aid failed. The defence he proposed to run was considered to be unlikely to succeed.

2.

The “prudent self-funding litigant” test, which, according to Legal Aid Queensland’s Grants Policy Manual, puts the applicant onto an even footing with a privately funded person without “deep pockets” and asks whether such a person would be prepared to fund the litigation.

3.

The “appropriateness of spending limited public legal aid funds” test, which examines the benefit of funding the litigation for the individual and/or the community.102

The means test assesses a person’s income, assets and potential contributions. The Legal Aid authorities follow State priorities for legal aid funding. Serious crimes, especially matters to be heard in either the District Court or the Supreme Court, are prioritised. Accordingly, a legal or factual merits test is not applied to application for legal aid where the trials or sentencing is in the District Court or Supreme Court. Summary prosecutions and pleas of guilty in the Magistrates Court are the lowest priorities in the criminal matters hierarchy.103 A number of problems exist in providing legal aid to disadvantaged clients. In their study of legal aid in Queensland, Giddings et al104 noted that experienced lawyers were increasingly moving away from representing legally aided clients. The consequence of this is a reduced choice of practitioners for disadvantaged litigants. Increasingly, junior practitioners are acting for legally aided clients, leading to what Giddings et al describe as a “juniorisation” of legal practice in crime. The study also found that, in order to make sufficient income from legal aid practice, firms need to take on a very high volume of legal aid work.105 The study found that although legal aid is provided for committals, most of the matters for which clients are funded by legal aid proceed by “hand-up committal”. However, 102 103

104

105

Legal Aid Queensland, Grants Policy Manual: http://www.legalaid.qld.gov.au/About-us/Polici es-and-procedures/Grants-Policy-Manual Viewed 14/04/2017. In Queensland, funding will not usually be granted for applications for an adjournment or stay pursuant to the Dietrich case: see Legal Aid Queensland, The Grants Policy Manual: http ://www.legalaid.qld.gov.au/About-us/Policies-and-procedures/Grants-Policy-Manual/Guideli nes-State-%E2%80%93-Criminal. Viewed 14/04/2017. See J Giddings, J Dewar and S Parker, “Being Expected to do More with Less: Criminal Law Legal Aid in Queensland” (1999) 23 Criminal Law Journal 69. See also S Tomsen, “Legal Services and Neo-Liberalism in an Unequal Legal Order” (2008) 10 Flinders Journal of Law Reform 609 where Tomsen argues that the focus on efficiency is eclipsing the need for substantive equality in the provision of legal services. It should be noted that the trend towards “juniorisation” and taking on too many matters applies more to private practitioners who take up legally aided work than to legal aid staff lawyers (“in-house” lawyers) who are often very experienced.

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as a result of the Moynihan reforms most committals are hand-up or registry committals. 106 The decision to make legal aid available for a hand-up or registry committal is subject to a merits test if the maximum penalty is 14 years imprisonment or less, however the merits test does not apply where the maximum penalty exceeds 14-year imprisonment.107 Where those accused are unable to afford to pay privately for representation and they are unsuccessful in their application for legal aid, they are likely to be self-represented.

THE UNREPRESENTED ACCUSED [10.120] People who are not represented by a lawyer are often described as “unrepresented”, “self-represented” or “litigants in person” (LIPS). A significant number of unrepresented people appear before the courts.108 The availability of legal aid means that an unrepresented accused in the superior courts is most likely appealing a conviction109 or applying for bail.110 This causes particular challenges for courts, both when the accused pleads guilty and when they decide to contest the charges. Usually the accused’s representative is relied on to discuss charges with the prosecution, object to particular evidence, ensure that certain evidence is put before the court, and conduct cross-examination of prosecution witnesses to test their case. However, unrepresented accuseds are largely ill-equipped to do this. In a background paper, the Australian Law Reform Commission recognised that unrepresented parties have particular needs in relation to legal and procedural knowledge and assistance in the conduct of proceedings.111 An unrepresented person effectively alters the role of the magistrate or judge. In England, Lord Woolf has suggested that judges confronted with unrepresented parties will need to take an interventionist approach.112 However, there are limits 106 107

See Chapter 6 on committals. The annual reports for the magistrate court district court and trial division of the supreme court fail to provide statistics on the number of self-represented defendants that appear before the courts. For a discussion, see C Craigie, Unrepresented Litigants: The Criminal Justice Perspective (Public Defenders Office, NSW, 2005): http://www.publicdefenders.nsw. gov.au/Pages/public_defenders_research/Papers%20by%20Public%20Defenders/public_def enders_unrepresented_litigants.aspx. Viewed 14/04/2017. See also D L Rhode, Access to Justice (OUP, New York, 2004) esp pp 81-82.

108

Court of Appeal cases where the appellant is self-represented make up about 24% of the matters in which a judgment is delivered; see Supreme Court of Queensland, Annual Report 2015-2016, p 9: http://www.courts.qld.gov.au/__data/assets/pdf_file/0006/498237/sc-ar-201 5-2016.pdf. Viewed 14/04/2017.

109

Supreme Court of Queensland, Equal Treatment Benchbook (2nd ed) p 145: http://www.cour ts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf. Viewed 14/04/2017. Australian Law Reform Commission (ALRC), The Unrepresented Party, Adversarial Background Paper No 4 (1996) p 2. Lord Woolf, Access to Justice: Interim Report to the Lord Chancellor on the Civil Justice System in England and Wales (UK Department for Constitutional Affairs, 1995) p 135: http://www.dc a.gov.uk/civil/interfr.htm. Viewed 14/04/2017. ALRC, The Unrepresented Party, Adversarial Background Paper No 4 (1996) p 11. See also R v Mill [2007] QCA 150 at [57] per Keane JA where the unrepresented defendant pursued a “flawed strategy” and his conviction did not reflect a miscarriage of justice.

110 111

112

[10.120] 257

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as to how far a judge or magistrate can intervene in an adversarial system where the judge should remain neutral.113 In MacPherson v The Queen,114 Mason J noted (at 534): Giving full weight to the adversary character of a criminal trial and the difficulties of advising an accused who is not represented, I nevertheless consider that the trial judge is bound to ensure that an accused person has a fair trial. To that end he is under a duty to give the accused such information and advice as is necessary to ensure that he has a fair trial.

It has been noted by Ipp J that judges will frequently interrupt to explain issues of law and evidence and, if obvious questions have arisen but have not been asked by the unrepresented party, the judge will either ask, or ensure that the accused asks, the relevant question.115 However, in Dietrich, Mason CJ and McHugh J accepted that any attempt by the judge to fulfil the role of the defence counsel is bound to cause problems. They accepted that the judge cannot investigate facts or advise and direct the defence.116 In the High Court decision of King v The Queen, involving an accused who was unrepresented at trial, Kirby J considered the role of the judge in this context: Because the applicant was unrepresented for the greater part of the trial, it was the duty of the trial judge to provide him with such information and advice concerning his rights as was necessary to put him in a position where he could make “an effective choice whether he should exercise those rights”. This is so, although the dismissal of counsel followed the applicant’s own decision. Whilst making it clear that the judge is not advising an accused on how rights should be exercised or the case conducted, the judge must assume the difficult task of ensuring that the accused is made aware of the important choices that have to be made. Such choices are informed by practical and forensic circumstances, not simply legal principles.117

It may be difficult for the judge to attain the right balance in the level and type of intervention. In the Queensland case of R v Zurek,118 the appellant appealed on the basis that his trial had been unfair as a result of a number of matters, including the particular interventions of the trial judge.119 In that case, it was suggested that the trial judge had cross-examined the unrepresented accused and, essentially, had taken on a prosecutorial role. In R v Esposito,120 Wood CJ said (at 57): [O]nce the judge resorts to extensive questioning, particularly of the kind that amounts to cross-examination in a criminal trial before a jury, then he is treading on

113 114 115 116 117 118

119 120

(1981) 147 CLR 512 at 534. D Ipp, “Judicial Intervention in the Trial Process” (1992) 69 Australian Law Journal 365 at 369 and 370. (1992) 177 CLR 292 at 302 per Mason CJ and McHugh J; see also MacPherson v The Queen (1981) 147 CLR 512 at 547 per Brennan J. King v The Queen (2003) 215 CLR 150 at 179 per Kirby J. [2006] QCA 543. R v Zurek [2006] QCA 543: the conviction was set aside and a new trial was ordered. See also R v Mokany [2014] QCA 51 at [32] where the trial judge was criticised for questioning the accused so as to make a point for the prosecution but the Court of Appeal concluded that the questioning did not result in a miscarriage of justice. (1998) 105 A Crim R 27 at 57. Supreme Court of Queensland, Equal Treatment Benchbook, Ch 12: ; and Western Australian Bench Book, Equality before the Law, Ch 8: http://www.supremecourt.wa.gov.au/publicatio ns/pdf/equality_before_the_law_benchbook.pdf. Viewed 14/04/2017.

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thin ice. The thinness of that ice will depend upon the identity of the witness being examined … and on whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties.

The Supreme and District Courts’ Benchbook include specific directions and information to be given to unrepresented accuseds. Information includes advice on the accused’s entitlements to challenge jury members, to cross-examine witnesses and to object to questions asked by the prosecutor.121 Judges and magistrates should also warn unrepresented accuseds about the range of penalties that may be imposed.122 It has been pointed out that, in relation to an unrepresented person, the duties of the judge or magistrate will depend on the circumstances of the case.123

McKenzie friend [10.130] “McKenzie friend” is a term used to describe someone who assists an unrepresented person in court by “taking notes, making suggestions and giving advice from the bar table”.124 Such a person does not actually represent the person125 and they cannot generally address the court unless they are invited to do so by the judge or magistrate in the case.126 The term comes from the case of McKenzie v McKenzie.127 In that case, reference was made to a previous case where Lord Tenterden had said: Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions and give advice.128

In R v Bow County Court; Ex parte Pelling,129 the court stated the following principles: In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require a litigant in person to have the assistance of a

121

122 123

124 125 126

Supreme and District Courts Benchbook; Unrepresented Defendant: http://www.courts.qld.g ov.au/__data/assets/pdf_file/0018/86004/sd-bb-6-unrepresented-deft.pdf. Viewed 17/04/ 2017. See Vreeker v Police (SA) (2004) 144 A Crim R 544 at 549 per Gray J. See Roth-Beirne v Western Australia (2005) 156 A Crim R 101 at 107 per Pullen JA. Note also Evidence Act 1977 (Qld) s 21N, which prohibits cross-examination of a protected witness by an unrepresented accused. “Protected witness” is defined in Evidence Act 1977 (Qld) s 21M. Pursuant to ss 21O and 21P of the Evidence Act 1977 (Qld), the court will arrange for a Legal Aid lawyer to carry out the cross-examination (unless the accused arranges for legal representation or decides not to cross-examine the protected witness). Supreme Court of Queensland, Equal Treatment Benchbook Second Edition, p 145; http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf. Viewed 14/04/2017. In the sense that they have no right to act as an advocate: see R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807 at 1825. See Damjanovic v Maley (2002) 55 NSWLR 149 at 159 per Stein JA.

127

[1971] 3 WLR 472.

128

Collier v Hicks (1831) 2B & Ad 663 per Lord Tenterden CJ, cited in McKenzie v McKenzie [1971] 3 WLR 472. [1999] 1 WLR 1807 at 1827.

129

[10.130] 259

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McKenzie friend … A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend … The assistance of a McKenzie friend is available for the benefit of the litigant in person and whether or not a McKenzie friend is paid or unpaid for his services, he has no right to provide those services; the court is solely concerned with the interests of the litigant in person.

The High Court has found that the question of whether a person should be allowed to have a McKenzie friend is very much a matter of practice and procedure for the particular court. The matter will be decided at the discretion of the judge or magistrate.130 It is considered exceptional to allow a person who has not been admitted to practice to actually represent a person. There are good reasons for this which are not grounded in the need to maintain a lawyer’s monopoly or on technicalities, but rather on the basis that “courts must ensure that the safeguards which follow from legal representation are not eroded by allowing parties to be represented by unqualified persons who have neither the responsibilities nor the duties of counsel”.131 Furthermore the unqualified assistant will not have insurance which leaves the assistant and the accused exposed to risk should an allegation of negligence arise as a result of the proceedings.132 Some of the matters that may lead to a decision to allow a McKenzie friend to support an unrepresented person include: • the complexity of a matter; • difficulties of the unrepresented party, such as language difficulties; and • the fact that the matter is heard in the lower courts.133 The “guiding principle” will be the question of what is in the interests of justice.134 In Macartney v The Queen,135 the court reviewed the authorities and observed that the appellant was “articulate, and had a good understanding and grasp of the factual issues which he wanted to raise in support of the appeal” and so could represent himself; however, in the circumstances it was appropriate that he could call on the support of a “McKenzie friend”.

“Amicus curiae” or “friend of the court” [10.140] A “McKenzie friend” should be distinguished from an “amicus curiae” or “friend of the court”. “Amicus curiae” refers to those people who seek permission to intervene in a case in which they are acting neither for the prosecution nor the accused. Usually the role of the friend of the court will be to present information to the court, or to present their own point of view or that of an organisation, or specialists’ views.136 In Kruger v Commonwealth,137 in refusing counsel’s application to appear as “amicus curiae”, Brennan CJ said that: 130 131 132

Smith v The Queen (1985) 159 CLR 532 per Brennan J. Macartney v The Queen (2006) 31 WAR 416; [2006] WASCA 29 at [3] per Steytler P. Supreme Court of Queensland, Equal Treatment Benchbook Second Edition, p 146; http://ww w.courts.qld.gov.au/__data/assets/pdf_file/0004/94054/s-etbb.pdf. Viewed 14/04/2017.

133 134 135

Damjanovic v Maley (2002) 55 NSWLR 149 at 162-163 per Stein JA. Damjanovic v Maley (2002) 55 NSWLR 149 at 163 per Stein JA. (2006) 31 WAR 416; [2006] WASCA 29 at [4] per Steytler P.

136

See, for eg, Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 where leave was granted to the Tasmanian Wilderness Society Inc. See also S Kenny, “Interveners and Amici Curiae in the High Court” (1998) 20 Adelaide Law Review 159.

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[H]e fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case. The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.138

The court has a discretion to hear from amicus curiae139 and the High Court has emphasised the importance of hearing from a friend of the court in cases where important issues of legal principle are at stake.140

ETHICAL CONSIDERATIONS [10.150] Law schools, law societies and bar councils take responsibility in relation to the proper training and appropriate admission of lawyers to practise as competent lawyers. However, once lawyers commence practising, their involvement with clients is usually extremely private and, indeed, is required to be kept private.141 Nevertheless, it is important that lawyers are accountable to the community and to their clients and that ethical standards are maintained.142 A number of statutory instruments as well as the common law143 regulate legal practitioners. Queensland has adopted the Australian uniform ethical standards for both barristers and solicitors as set out in the 2011 Barristers’ Rule as amended (Qld) (BRQ) and the Australian Solicitors Conduct Rules 2012 (ASCR). There appears to be general agreement that ethics in the area of criminal law present a special case.144 Legal ethics is a vast area and it is recognised as a separate field of study.145 Therefore, this section only provides an overview of some key areas of ethical concern which impact specifically on lawyers practising in criminal law. The primary ethical duty of lawyers is to the administration of justice (or to the court).146 Sometimes this duty is difficult to reconcile with the “zealous advocacy” 137

Kruger v Commonwealth [1996] HCATrans 68 at p 12 per Brennan CJ.

138 139 140 141

Citied in Levy v Victoria (1997) 189 CLR 579 at 604; [1997] HCA 31. Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319 at 331. Attorney-General (Cth) v Breckler (1999) 197 CLR 83 at 134-135 per Kirby J. See generally, A Hemming, M Kumar and E Peden, Evidence: Commentary and Materials (8th ed, Lawbook Co., 2013) pp 166-211.

142

Note there are also specific ethical issues with respect to prosecution authorities: see J Jackson, “The Ethical Implications of the Enhanced Role of the Public Prosecutor” (2006) 9 (1) Legal Ethics 35; see also Office of the Director of Public Prosecutions (Qld), Director’s Guidelines (Brisbane, 2015): http://www.justice.qld.gov.au/__data/assets/pdf_file/0015/1670 1/directors-guidelines.pdf. Viewed 14/04/2017. For an example of common law regulation, see Giannarelli v Wraith (1988) 165 CLR 543. See E Cape, “Rebalancing the Criminal Justice Process: Ethical Challenges for Criminal Defence Lawyers” (2006) 9 Legal Ethics 56 at 57. See generally, Y Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (6th ed, LexisNexis, Sydney, 2013). See BRQ rr 5(a), 25; ASCR r 3; R v Rogerson (1992) 174 CLR 268; [1992] HCA 25. See also J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (LexisNexis, Sydney, 1995) p 175; and A Smith, “Defending the Unpopular Down-Under” (2006) 30 Melbourne University Law Review 495 at 530.

143 144 145 146

[10.150] 261

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required of a lawyer on behalf of their client in the adversarial system.147 The increasing pressure on lawyers to disclose material to the court in the interests of efficiency often conflicts with their duty to the client.148 The limits of “zealous advocacy” were explored in Legal Services Commissioner v Winning.149 In this case, the Legal Services Commission150 sought orders that Winning, a defence lawyer, was guilty of professional misconduct. Winning had received information that the local police planned to raid his clients’ house. He telephoned his clients, who were members of the Rebels bikie club, and advised them: “I’ve got some good drum that the coppers are gonna raid all the rebels in Rockhampton … so you know get rid of bongs … cash … Anything … everything ya know.”151 The conversation was recorded by police. White J dismissed the charge and, following High Court authority,152 found that frustrating a police investigation could not be described as preventing the course or the administration of justice.153 The adversarial nature of the justice system was emphasised and Winning’s lawyer made references to other advice that a lawyer might appropriately give to a client, such as advising a client to exercise their right to silence and to resist a police search where there is no appropriate warrant.154 Both of these examples are accepted as common and ethical practice. White J also observed that it is well established that where a legal practitioner assists in the commission of a crime, they will be criminally responsible as a party to the crime.155 In his discussion of the case, Watt notes that there is a fine line between advocacy and conspiracy,156 but in this case there was no evidence that Winning 147

148

149

150

See generally, T Prenzler, Ethics and Accountability in Criminal Justice (Australian Academic Press, Bowen Hills, 2009) pp 87-88; D Luban, Lawyers and Justice: An Ethical Study (Princeton University Press, 1988); see also A Smith, “Defending the Unpopular Down-Under” (2006) 30 Melbourne University Law Review 495 at 539-547. See also Fordham v Legal Practitioners’ Complaints Committee [1997] SCWA (FC) on confidentiality issues; and Legal Services Commissioner v Griffiths [2008] LPT 17 where a legal practitioner suggested he bribe a magistrate in order to obtain a good result at committal – obviously this was both unethical and criminal. E Cape, “Rebalancing the Criminal Justice Process: Ethical Challenges for Criminal Defence Lawyers” (2006) 9 Legal Ethics 56 at 71. Note that independence is also considered an important virtue for criminal lawyers, see: N Jorgensen, “Lawyer Independence in Criminal Proceedings: A most professional virtue” (2014) 17 (1) Legal Ethics 55. See also Chapter 8 at [8.20] (disclosure). [2008] LPT 13. For a good discussion of the case, see N Watt, “Raid Tip-off – Saintly or Sinful?” (2009) (March) Proctor 49. On zealous advocacy, see S Keim, “Fearless Advocacy and Bar Rule 60” (2010) 28(2) The University of Queensland Law Journal 325; R Mortensen, “Keim on the Muzzle Rule: A Reply and Joinder” (2010) 28(2) The University of Queensland Law Journal 329. For further information about the Legal Services Commission Queensland, see http://www. lsc.qld.gov.au/. Viewed 14/04/2017.

151 152 153

Legal Services Commissioner v Winning [2008] LPT 13 at [14]. R v Rogerson (1992) 174 CLR 268 at 293–294; [1992] HCA 25 per Deane J. Legal Services Commissioner v Winning [2008] LPT 13 at [23].

154 155

Legal Services Commissioner v Winning [2008] LPT 13 at [24]. Legal Services Commissioner v Winning [2008] LPT 13 at [26]; R v Tighe & Maher (1926) 26 SR(NSW) 94 at 108-109 per Street CJ. N Watt, “Raid Tip-off – Saintly or Sinful?” (2009) (March) Proctor 49 (and note also his comment that the destruction of evidence is a crime: see QCC, s 129).

156

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knew precisely what was at his clients’ house or that he had direct knowledge of criminal activity.157 Ashworth and Blake have identified a number of issues, specifically relevant to criminal lawyers, which raise ethical concerns. These include: • defending a person believed to be guilty; • where the representative believes a client or another defence witness has lied; • where the defence lawyer is aware of an error of law or fact that favours the defence; • where the defence lawyer offers advice to a client who wishes to plead not guilty; and • where a lawyer and the accused disagree on the conduct of the case.158 Plea bargaining and advising an accused in relation to plea are examined in Chapter 7. The remaining issues are discussed in turn below.

Defending a person believed to be guilty [10.160] Smith suggests that there are a number of standard replies to the question “How can you represent a person you know is guilty?” First, “knowing” that someone is guilty is different to “believing” someone is guilty. The standard responses for a lawyer who “believes” their client is guilty may include: that the adversarial system requires competent counsel on both sides; that the defence lawyer has a critical role in ensuring access to justice; and the importance of checking official power.159 The underlying philosophy of the criminal justice system is that the accused is innocent until proven guilty.160 The personal views of the particular lawyer about the accused’s guilt are not relevant.161 One lawyer interviewed for Smith’s research commented: If you are interested in process or the right to fair trial you shouldn’t be in the business of making up your mind about guilt or innocence or the worthiness of the client.162

Thus, it is not unethical to represent an accused believed by the legal representative to be guilty; rather, it may be unethical to refuse to represent a client on this basis. Barristers are expected to follow the “cab-rank” rule, so called

157

158

159 160 161

162

For the potential that such activities could be caught by serious organized crime legislation see D Middleton and M Levi, “Let Sleeping Lawyers Lie: Organised Crime, Lawyers and the Regulation of Legal Services” (2015) 55 (4) British Journal of Criminology 647. M Blake and A Ashworth, “Some Ethical Issues in Prosecuting and Defending Criminal Defendants” (1998) 16 Criminal Law Review 16; see also M Blake and A Ashworth, “Ethics and the Criminal Defence Lawyer” (2004) 7 Legal Ethics 2. A Smith, “Defending the Unpopular Down-Under” (2006) 30 Melbourne University Law Review 495 at 507. See Chapter 1. See BRQ, rr 43 and 79; ASCR rr 17.3 and 20; see also R v Tighe & Maher (1926) 26 SR(NSW) 94 at 108-109 per Street CJ; Emerson v Sparrow (1871) LR 6 Ex 329 at 371. See further, M Blake and A Ashworth, “Some Ethical Issues in Prosecuting and Defending Criminal Defendants” (1998) 16 Criminal Law Review 16 at 19. A Smith, “Defending the Unpopular Down-Under” (2006) 30 Melbourne University Law Review 495 at 513, quoting lawyer Domenico Cornidi. [10.160] 263

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because generally barristers must act on “a first come, first served basis”.163 Generally, barristers should not refuse briefs; however, there are a number of exceptions to this general rule.164 Solicitors generally have a choice about whether or not to represent a client. Further, some lawyers have pointed out that they may be unable to represent the accused to the best of their ability because of their views in respect of the accused. In such circumstances, some lawyers will refuse to act.165 In circumstances where the legal representative “knows” that their client is guilty, it may be difficult to continue representing the party without misleading the court and it will be unethical for the legal representative to run a positive defence or present an alibi in circumstances where the accused has confessed their guilt to the legal representative.166

Where the representative believes the client or another defence witness has lied [10.170] Where a legal representative becomes aware that the client or another defence witness has lied to the court, they must refuse to take further part in the case unless the court is informed of the lie. However, the legal representative can only inform the court of the lie if authorised by the client to do so; otherwise, the barrister should simply withdraw and will not be required to inform the court of the lie.167 Cape points out that it is possible for the legal representative to take instructions whereby they avoid “knowing” certain facts. Such avoidance may then facilitate the making of arguments, which would not otherwise be available with full instructions. According to Cape: Assuming the lawyer does, by careful guidance to a questioning of the client, succeed in avoiding the disclosure of potentially embarrassing information, for what reason can that be criticised in terms of the lawyer’s obligation to the court?168

For example, a common approach in practice is for counsel to listen to the police record of interview and assess the police case before taking instructions. Cape recognises that this is a risky strategy as it may be difficult to give appropriate

163

164

BRQ, r 21. See M Bagaric and P Dimopoulos, “Legal Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics” (2003) 3 Queensland University of Technology Law and Justice Journal 2 at 18. However, generally, they should not refuse briefs: BRQ, r 21. For situations where briefs must be refused: see BRQ rr 95 – 98 and where they may be refused: BRQ rr 99 – 100.

165

A Smith, “Defending the Unpopular Down-Under” (2006) 30 Melbourne University Law Review 495 at 511.

166 167 168

ASCR, r 20.2; BRQ, r 79. BRQ, r 78; ASCR r 20.1. See also Groom v Crocker [1939] 1 KB 194. E Cape, “Rebalancing the Criminal Justice Process: Ethical Challenges for Criminal Defence Lawyers” (2006) 9 Legal Ethics 56 at 73.

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advice without full instructions.169 It may also conflict with the legal representative’s duty to the administration of justice and their general duty to act honestly and fairly.170

Where the defence lawyer is aware of an error of law or fact that favours the defence [10.180] Because of their overriding duty to the court, the legal representative must not mislead the court. Lord Denning has noted: The duty of counsel to his client … is to make every honest endeavour to succeed. He must not, of course, knowingly mislead the court … but short of that, he may put such matters … as in his discretion he thinks will be most to the advantage of his client.171

Legal representatives have a duty not to make a misleading statement to the court and to furnish the court with any binding authorities that the court has not been informed of, even if those authorities are against the interests of their client.172 Further, lawyers must not make false statements to their opponent173 and they should take “all necessary steps” to correct any misleading statements made.174 However, a legal representative will not have made a false statement simply by failing to correct an error stated by the opponent to the barrister.175 Sometimes the prosecution will be unaware that the person being defended has a criminal record, that their record may be incomplete, or they may be unaware that the person has outstanding criminal matters. If the accused’s representative is aware of a client’s prior convictions or outstanding matters, are they obliged to correct their opponent and/or the court? There is a clear duty to correct errors about law but facts are generally considered to be a different matter.176 The underlying premise of the criminal law is that the prosecution must prove its case. If the defence passively stands by and watches as the court is misled in relation to a factual matter, the defence counsel will probably not be misleading the court and thus will not be breaching their ethical obligations.177 It will, however, be inappropriate to make positive statements of fact that the defence lawyer knows

169

170 171

172 173 174 175 176 177

E Cape, “Rebalancing the Criminal Justice Process: Ethical Challenges for Criminal Defence Lawyers” (2006) 9 Legal Ethics 56 at 73; see also Nudd v The Queen (2006) 225 ALR 161 at [54] per Kirby J. BRQ, rr 5(a) and 5(c); ASCR rr 3.1, 4.1.2 and 4.1.4. Tombling v Universal Light Bulb Co Pty Ltd [1951] 2 TLR 289, as quoted in M Bagaric and P Dimopoulos, “Legal Ethics is (Just) Normal Ethics: Towards a Coherent System of Legal Ethics” (2003) 3 Queensland University of Technology Law and Justice Journal 2 at 23. BRQ rr 25 -36; ASCR rr 17 and 19; R v Edwards (1983) 77 Cr App R 5. BRQ, r 48; ASCR, r 22.1. BRQ, r 49; ASCR, r 22.2. BRQ, r 50; ASCR, r 22.3. BRQ, r 35; ASCR r 19.10. See M Blake and A Ashworth, “Some Ethical Issues in Prosecuting and Defending Criminal Defendants” (1998) 16 Criminal Law Review 16 at 20. See Saif Ali v George Mitchell and Co [1980] AC 198 at 220 per Lord Diplock; and M Blake and A Ashworth, “Some Ethical Issues in Prosecuting and Defending Criminal Defendants” (1998) 16 Criminal Law Review 16 at 169. [10.180] 265

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to be untrue.178 Thus, a submission such as “My client has no known prior convictions” would constitute a breach of ethics.

Where a lawyer and the accused disagree on the conduct of the case [10.190] The legal representative should run the case in accordance with their client’s instructions.179 However, a barrister will not have breached their duty to their client simply by choosing to run the case in a certain way, which may be contrary to the client’s wishes. Legal representatives will make “forensic judgments” about the issues to be heard in the trial, about the quickest and simplest way to proceed and about informing the court of appropriate authority.180 In TKWJ v The Queen,181 Gleeson CJ observed that lawyers inevitably make choices about how to run cases and that there is no one way of approaching an individual case.182

178 179 180

BRQ, r 26; ASCR, r 19.1. Note that one of the problems in Nudd v The Queen (2006) 225 ALR 161 was that counsel had not obtained proper instructions. See [10.100] BRQ, rr 41 and 42; ASCR rr 17.1 and 17.2.

181

(2002) 212 CLR 124.

182

TKWJ v The Queen (2002) 212 CLR 124 at [16] per Gleeson CJ.

266 [10.190]

CHAPTER 11 Considerations Underlying Sentencing [11.10] [11.20] [11.30] [11.40]

[11.70] [11.90]

[11.140]

[11.200]

[11.290]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 267 What is punishment? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 268 Influence of community, politics and media . . . . . . . . . . . . . . . . . . . . . . . . 270 The sentencing hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272 [11.50] Proof and sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273 [11.60] Other matters in the sentencing hearing . . . . . . . . . . . . . . . . . 274 Judicial discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 275 [11.80] “Staged process” or “instinctive synthesis”? . . . . . . . . . . . . . 276 Limits to discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 277 [11.100] Guideline judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 [11.110] Totality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 280 [11.120] Maximum . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 281 [11.130] Parity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 282 Aims of punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 283 [11.150] Just punishment or proportionality . . . . . . . . . . . . . . . . . . . . . . 284 [11.160] Rehabilitation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 285 [11.170] Deterrence (specific and general) . . . . . . . . . . . . . . . . . . . . . . . . 287 [11.180] Denunciation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290 [11.190] To protect the community from the offender . . . . . . . . . . . . . 292 Factors relevant to sentencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 294 [11.210] The offender’s character, age and intellectual capacity . . . 294 [11.220] Damage, injury or loss caused by the offender . . . . . . . . . . . 296 [11.230] Co-operation with authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 297 [11.240] The offender’s cultural background . . . . . . . . . . . . . . . . . . . . . . 298 [11.260] Hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301 [11.270] Domestic and family violence . . . . . . . . . . . . . . . . . . . . . . . . . . . 302 [11.280] Extra-curial punishment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 303 Preference for community-based sentences . . . . . . . . . . . . . . . . . . . . . . . . . 303 [11.300] Violent offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 [11.310] Sexual offences in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . 304 [11.320] Specified offences associated with computer games and images in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 305

OVERVIEW [11.10] The factors underlying the sentencing process and the considerations underlying the choice of an appropriate penalty are considered in this chapter. Sentencing is not a purely logical exercise1 and is influenced by a range of factors. Any consideration of the process of sentencing must acknowledge that different people in our community will have quite different expectations of the 1

Veen v The Queen (No 2) (1988) 164 CLR 465 at 476 per Mason CJ, Brennan, Dawson and Toohey JJ; Mill v The Queen (1988) 166 CLR 59 at 63.

[11.10] 267

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sentencing process. It is highly likely that not all those expectations will be compatible or achievable. The question of what is an appropriate penalty in a particular situation is often difficult to resolve and, even for serious offences, there may be little consensus about what punishments fit which crimes or what the particular relationship between offence, offender and penalty should be. This lack of consensus may be reinforced by the sense of arbitrariness that surrounds sentencing hearings. In sentencing offenders, a range of possible outcomes is available. Many offenders and their legal representatives will be uncertain about the likely result of a sentencing hearing before it is completed. The options for penalty are much the same throughout Australia. In Queensland, possible penalties for adult State offenders are set out in the Penalties and Sentences Act 1992 (Qld) (PSA(Qld)). Penalty options are discussed in Chapter 12. In this chapter we explore some underlying issues, including what punishment is and the factors that judges and magistrates must consider in deciding on an appropriate penalty. Our focus in this chapter, and in Chapter 12, is on adult offenders.2

WHAT IS PUNISHMENT? [11.20] The concept of “punishment” is pivotal to the criminal law. Once guilt is established, the ensuing sentencing process is concerned with punishing the offender. Hart’s classic statement on punishment involves five elements: 1.

It must involve pain or other consequences normally considered unpleasant.

2.

It must be for an offence against legal rules.

3.

It must be of an actual or supposed offender for his offence.

4.

Person(s) other than the offender must intentionally administer it.

5.

It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.3

However, Hart’s approach, particularly in relation to the first element, may be too simplistic. Garland suggests that punishment is actually “a complex set of interlinked processes and institutions rather than a uniform object or event”.4 He argues that punishment does not have a single meaning or purpose and it is not susceptible to formulaic or logical definition.5 Wilson proposes that one way to understand punishment is that it is a “setback to interests”; he then goes on to point out that it is also more and less than this.6 2 3

4 5 6

In sentencing juveniles under 18 years see especially Youth Justice Act 1992 (Qld). H Hart, Punishment and Responsibility: Essays in the Philosophy of Law (Clarendon Press, Oxford, 1968) pp 4-5; discussed in M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) pp 237-238. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 16. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 16. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 44.

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Punishment does not have to be considered as something unpleasant by the individual offender in order to be classified as “punishment”. For example, a person who has been institutionalised for significant periods of their life may ultimately prefer to be in prison. Indeed, as Findlay et al point out, concerns have been expressed about the lack of unpleasantness of prison life, leading to suggestions that prison life should be difficult and that it is more than liberty that should be lost when a period of imprisonment is imposed.7 Similarly, a wealthy person may not experience any unpleasantness by having to pay large fines. As Hart’s first point reflects, the idea of “unpleasantness” is a question of what an “ordinary person” would find unpleasant. One of the problems with understanding punishment as a “setback to interests”, or as necessarily unpleasant, is that, of course, not all unpleasant matters are “punishment”. Taxes, a requirement to pay compensation, quarantine, as well as other requirements and constraints, are not punishment, despite their unpleasantness to most ordinary people. Ultimately, it is the symbolic effect of a penalty, rather than the effect it has on the specific offender, that is arguably what is significant when characterising something as punishment.8 Wilson suggests that punishment represents the “social clout of the norm”.9 It is a symbolic stick that helps to keep the community in order. However, a different approach to that of both Wilson and Hart is that punishment is, or can be, a technique of social engineering. According to this view, the justification for punishment is the enhancement of social welfare. This idea reflects the concept that punishment should be, or can be, rehabilitative. Thus, sentencing outcomes should be considered in light of how they can be used to rehabilitate offenders. Restorative justice programs are examined in Chapter 15. Such programs also aspire to have an effect on the offender’s behaviour and outlook. Rehabilitation is discussed at (see [11.160]). Hart’s four additional requirements relate to the rule of law. This central principle of government means that government authority must be exercised according to laws that have been made through correct and established procedures, and that those laws are publicly disclosed and applied equally. Essentially, this means that the state and its courts should not be able to punish arbitrarily.10 Sentencing requirements are not as stringent and comprehensive as rules are in other areas of the criminal law. Sentencing requires a range of matters to be considered by judges and magistrates; the question as to which matters have more or less weight will, in most cases, depend on the particular circumstances of the accused and the offence they have committed. Ultimately, the sentencing process is extremely discretionary, although it is subject to appellate review.11 7

8 9 10

11

M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) pp 208-209. However, international human rights instruments demand certain standards in prisons: see H Douglas and J Touchie, “Maximum Security: ‘Being in the Belly of the Beast’” (2006) 30 Criminal Law Journal 73. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 45; see also M Findlay, Criminal Law: Problems in Context (2nd ed, OUP, Melbourne, 2006) p 385. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 45. The Hon Murray Gleeson CJ., Courts and the Rule of Law (Paper delivered 7 November 2001, University of Melbourne): http://www.hcourt.gov.au/assets/publications/speeches/former-j ustices/gleesoncj/cj_ruleoflaw.htm. See Chapter 13 Appeals. [11.20] 269

Criminal Process in Queensland

Hart’s fifth element – that punishment must be imposed and administered by an authority constituted by a legal system against which the offence is committed – may be problematic in some contexts. In Australia, the state does oversee the punishment systems. However, due largely to economic imperatives, increasingly prisons, community service regimes and various rehabilitative programs are being privatised. This trend has generated some concerns, especially in the prison sector where, for justifications based on security concerns, many procedures may not be adequately accountable.12 The sentencing process requires a balanced approach, which takes into account issues and concerns relating to the individual offender and the broader community, and which also captures both public and private interests. Thus, in sentencing offenders, the criminal justice system must attempt to balance individual autonomy and social welfare.13

INFLUENCE OF COMMUNITY, POLITICS AND MEDIA [11.30] Sentencing is the most public aspect of the criminal justice process. Punishment indicates the degree of both the censure of the particular act and of the disapproval of the society.14 However, the public also play an increasingly important role in shaping sentencing policy.15 Members of the community have strong views on the application of sentences.16 Politicians and the media capitalise on this very high level of public interest and we regularly see “law and order” issues, with a strong emphasis on harsher sentences, raised by politicians. However, in describing the rather shallow effect of sentencing reforms, Casper and Brereton use the expression, the “bark and bite” effect.17 The “bark” refers to legislative reform, usually focused on increasing maximum penalties.18 The “bite”

12

13 14 15

16

17 18

For discussion, see J Rynne and R Harding, “Private Prisons” in Y Jewkes, B Crewe and J Bennett, eds. Handbook on prisons (Routledge, New York, 2016). According to a recent report there are nine privately operated prisons in Australia and 18.3% of the prisoner population is held in privately operated facilities, see Australian Productivity Commission, “Report on Government Services 2016: Chapter 8 Corrective Services” (2016) Productivity Commission: http://www.pc.gov.au/research/ongoing/report-on-government-services/2016/ justice/corrective-services/rogs-2016-volumec-chapter8.pdf at [8.4]. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 71. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 61. For a discussion of the impact of public attitudes and the reform of one punch killing sentences see: J. Quilter, “Populism and Criminal Justice Policy: An Australian Case Study of Non-Punitive Responses to Alcohol-Related Violence” (2015) 48 (1) Australian and New Zealand Journal of Criminology 24-52. K Gelb, “Purposes of Sentencing: Community Views Victoria” Sentencing Advisory Council (Vic), 2011 https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-docume nts/Purposes%20of%20Sentencing%20Community%20Views%20In%20Victoria.pdf J Casper and D Brereton, “Evaluating Criminal Justice Reforms” (1984) 18 Law and Society Review 104. For example, the consistent amendment made to the QCC in 1997 was an increase in penalties across the board.

270 [11.30]

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is usually left to the judiciary, which has a broad discretion to impose the sentence in each case and rarely imposes the maximum.19 Freiberg has noted that there has been a reorientation of the criminal justice system – it has been transformed from a “bipolar” dialogue between state and offender to a “triangular conversation that includes the community”.20 White and Perrone suggest that since the 1960s, there has been a “transformation of public opinion into a driver for sentencing reform”21 and Pratt describes the “public” as the “new axis of penal power”.22 Some researchers have suggested that judges are duty-bound to consider public opinion when sentencing23 and, indeed, some judges also take this view.24 One of the purposes of the PSA(Qld) is to promote public understanding of sentencing practices and procedures: PSA(Qld), s 3(h). Unfortunately, however, public engagement with the sentencing process is often ill-informed,25 fails to reflect empirical realities and does not take into account the fact that a range of matters must be balanced in the sentencing process.26 Poor media reporting contributes to this position. Media reporting about crime often sensationalises events by using disingenuous re-enactments and fictional representations, thus encouraging fear in the community.27 Findlay et al point out, “[t]he intentions for influencing the sanction process may vary, and even conflict, depending on the agency of government from which they emanate, or the manner in which they are interpreted in popular media”.28 Many have recognised the need to educate the public with a view to including them in the sentencing process. Some jurisdictions have developed sentencing councils to fulfil these functions,29 since research suggests that the more the public understands the sentencing process the more likely they are to accept the

19

20

21 22 23 24 25

26 27

28 29

As Findlay et al point out, sometimes calls are made to fetter judicial discretion: see M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) pp 207-208. A Freiberg, “The Four Pillars of Justice: A Review Essay” (2003) 36 The Australian and New Zealand Journal of Criminology 223 at 224. See also Emily Kerr, “Raising the Fourth Pillar: Public Participation in Australian Sentencing – a Comparative Perspective” (2012) 36 Criminal Law Journal 173. R White and S Perrone, Crime and Social Control (OUP, Melbourne, 2005) p 165. J Pratt, Punishment and Civilisation: Penal Tolerance and Intolerance in Modern Society (Sage, London, 2002) p 181. S Shute, “The Place of Public Opinion in Sentencing Law” (1998) Criminal Law Review 465 at 475. G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) Ch 5. D Indermaur, “Dealing the Public in: Challenges for a Transparent and Accountable Sentencing Policy” in A Freiburg and K Gelb (eds), Penal Populism, Sentencing Councils and Sentencing Policy (Routledge, New York, 2013) Ch 4. R White and S Perrone, Crime and Social Control (OUP, Melbourne, 2005) p 166. P Schlesinger and H Tumber, Reporting Crime: The Media Politics of Criminal Justice (Clarendon Press, Oxford, 1994) Ch 6. See generally, Justice Geoffrey Eames, “The Media and the Judiciary” (2007) 2 High Court Quarterly Review 47. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) p 208. Also see Chapter 8 in relation to pre-trial publicity and juries. For a discussion of these developments, see A Freiburg and K Gelb, “Penal Populism, Sentencing Councils and Sentencing Policy” in A Freiburg and K Gelb (eds), Penal Populism, [11.30] 271

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sentences that are handed down.30 One study showed that where community members were better informed about the factors relevant to sentencing they had a more lenient approach to sentence than the judge.31

THE SENTENCING HEARING [11.40] Once a person pleads32, or is found guilty, of an offence the sentencing court will need to consider a range of information before deciding the appropriate sentence for the offender. Sentencing is dealt with during the sentencing hearing. In circumstances where the offender has pleaded guilty, the sentencing hearing will usually take place immediately. In more serious matters, especially where the offender is found guilty after a jury trial, the sentencing hearing may be adjourned to a later date so that defence and prosecution have time to prepare. Often, in circumstances where there will be some delay in listing the sentencing hearing, the defendant may be arraigned and enter their plea of guilty in order to secure a particular date for sentencing. In Queensland, if the person pleads guilty, or after the person is found to be guilty, the appropriate court officer asks the convicted person whether he or she has anything to say about the sentence being passed (QCC, s 648). This is referred to as the administration of the “allocutus” and is the court’s acceptance that guilt has been established.33 Once these processes have been completed, submissions are made by counsel for both the offender34 and the prosecution with a view to providing the court with all the information that is necessary for deciding the appropriate sentence to be imposed.35 The information considered by the court will relate to the offender and, particularly where the offender pleaded guilty, the circumstances of the offence. Where there has been a plea of guilty, the prosecution will provide a summary of the facts of the case to the court and ordinarily will tender any criminal history or traffic history relevant to the offender. Naturally, the court should not take into account matters that did not ultimately proceed.36 Where the offender has pleaded

30

31 32 33

Sentencing Councils and Sentencing Policy (Routledge, 2013) Ch 1. Queensland re-established a Sentencing Advisory Council in 2016, see Pt 12 PSA. K Warner, J Davis, M Walter, R Bradfield and R Vermey, “Gauging Public Opinion on Sentencing: Can Asking Jurors Help?” (2009) Trends and Issues in Crime and Criminal Justice 371. K Warner and J Davis, “Involving Juries in Sentencing: Insights from the Tasmanian Jury Study” (2013) 37 Criminal Law Journal 246. See Chapter 7. See also Rule 51, Criminal Procedure Rules 1999 (Qld). See also R v Verrall [2012] QCA 310 per Holmes J at [4]. Note that a failure to administer the allocutus does not invalidate the judgment: R v Shillingsworth [1985] 1 Qd R 537 at 543 per Williams J.

34

Or by the offender if self-represented.

35

See Shanahan DCJ, Benchbook on Sentencing, “Sentencing Procedure” (A1): http://www.scl qld.org.au/benchbooks/benchbook-on-sentencing/. Note also that the court must be closed in relation to some matters Supreme and District Courts Benchbook, “Closed Court Exceptions to the General Rule of Openness” 61: http://www.courts.qld.gov.au/__data/assets/pd f_file/0007/86065/sd-bb-61-closed-court-exceptions-to-the-general-rule-of-openness.pdf. R v Dales (1995) 80 A Crim R 50; R v De Simoni [1981] HCA 31.

36

272 [11.40]

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CH 11

not guilty, the court will have heard most of the information about the offence in the context of the hearing or trial, and the focus of the prosecutor may be directed to the victim or victims of the offending and prior history of the offender whereas the focus of the defence counsel may be directed to eliciting the circumstances and background of the offender. As part of their submissions, the defence counsel will usually make submissions about appropriate penalties. Section 15 PSA 1995 (Qld) provides that a court may receive any information that it considers appropriate to enable it to impose the proper sentence. Section 15(3) PSA 1995 (Qld) identifies that a sentencing submission made by a party means “a submission stating the sentence, or range of sentences, the party considers appropriate for the court to impose”.37 As the courts have stated many times, it is ultimately a matter for the court to decide on the appropriate sentence.38 In order to obtain more information about the offender and their circumstances, the court may order a pre-sentence report.39 If such a report is ordered, the sentencing hearing will be adjourned until the report is ready. Once the report is complete, a copy is provided to the court, the prosecution authority and the offender or their legal representative. The report will include a discussion of the matters relevant to sentencing in the particular case and may also include medical or other details. Reports often discuss the risk of the offender reoffending, consider the range of available penalties and make recommendations in regard to what would be considered an appropriate penalty.

Proof and sentencing [11.50] The sentencing hearing is now clearly recognised as being as adversarial as the trial itself, and, as such, minimum procedural safeguards exist in respect of all disputed matters. While a plea of guilty to an offence involves an admission by the offender of each of the elements of the offence,40 and a judicial finding or jury verdict of guilt satisfies the requirements of proof beyond reasonable doubt of all the elements of the offence, proof of any other facts relevant to sentencing will be decided during the sentencing hearing. The rules of evidence are more relaxed in a sentencing hearing and often the judicial officer will simply hear submissions from the defence and prosecution and make a decision.41 Since 2000, s 132C of the Evidence Act 1977 (Qld) sets out certain rules relating to fact finding on sentencing. Section 132C states: (2)

The sentencing judge or magistrate may act on an allegation of fact that is admitted or not challenged.

37

Section 15(3) PSA 1995 (Qld) overcomes the decision in Barbaro v The Queen & Zirilli v The Queen (Barbaro v The Queen) (2014) 253 CLR 58 where the High Court held, by majority, that the practice in Victoria of permitting or requiring counsel for the prosecution, in certain circumstances, to make a submission as to the available range of sentences for an offence is wrong in principle and should cease. See also R v Heckendorf [2017] 59 at [21]-[22].

38

See Barbaro v The Queen & Zirilli v The Queen (2014) 253 CLR 58; GAS and SJK v The Queen (2004) 217 CLR 198 at [30] per Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ.

39 40

PSA(Qld), s 15(1); Corrective Services Act 2006 (Qld) s 344. Maxwell v The Queen (1995) 184 CLR 501; and Harris v The Queen (2004) 150 A Crim R 509 at [49].

41

See PSA(Qld), s 15. [11.50] 273

Criminal Process in Queensland

(3)

If the allegation of fact is not admitted or is challenged, the sentencing judge or magistrate may act on the allegation if the judge or magistrate is satisfied on the balance of probabilities that the allegation is true.

(4)

For subsection (3), the degree of satisfaction required varies according to the consequences, adverse to the person being sentenced, of finding the allegation to be true…

(5)

In this section – allegation of fact includes the following– (a)

(b) (c) (d)

information under the Penalties and Sentences Act 1992, section 15 or evidence given at a hearing in relation to an order under part 3A of that Act; information under the Youth Justice Act 1992, section 150(3) or in a pre-sentence report under section 151 of that Act; information given to the court under the Victims of Crime Assistance Act 2009, section 15;42 other information or evidence.

This provision makes it clear that if counsel for the prosecution or defence want to rely on a particular fact, and that fact is not admitted by the other party or is challenged by the other party, the party seeking to rely on the fact must satisfy the judge or magistrate of the fact on the balance of probabilities. The standard is the same regardless of which party intends to rely on the particular fact. Sometimes an agreed schedule of facts will be handed up by the parties.43 While it remains a matter for the sentencing judge or magistrate to decide on the facts that satisfy them, because the schedule of facts is agreed between the parties it is usually accepted by the court and relied on in sentencing.

Other matters in the sentencing hearing [11.60] It will only be necessary for the prosecution or the offender to call evidence about an aggravating or mitigating circumstance if the asserted matter is controverted by the other party, or if the sentencing judge is not prepared to act on the assertion, even though it is not controverted by the other party.44 Further, where the sentencing judge is not persuaded of the existence of a fact, the fact does not exist for the purposes of sentencing.45 The High Court has held that the degree of culpability (where it is not an element of the offence) is a matter for the sentencing judge. The sentencing judge may take their own view of the facts, so long as this view does not conflict with the jury’s verdict.46 At the end of the sentencing hearing, the sentence will be

42 43 44 45 46

See R v Smith [2016] QCA 9 per Gotterson JA [6]-[7]; R v Evans; R v Pearce [2011] QCA 135. See R v Broad and Prior [2010] QCA 53; R v Cant [2016] QCA 52. Evidence Act 1977 (Qld) s 132C(3); also R v Broad and Prior [2010] QCA 53. This is implied in s 132C(3) of the Evidence Act 1977 (Qld). Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at 12, quoting from Savvas v The Queen (1995) 183 CLR 1 at 8 per Deane, Dawson, Toohey, Gaudron and McHugh JJ.

274 [11.60]

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stated by the magistrate or judge. In stating the sentence, judges and magistrates should avoid the use of emotive, inflammatory or invective language.47 While courts are generally required to explain the sentence to the offender, the court has particular duties of explanation in some circumstances. If a sentence of imprisonment or suspended imprisonment is imposed,48 the court is required to state the reasons for the decision: PSA(Qld), s 10. The court is also required to record the reasons in writing. However, a sentence is not invalid merely because the court failed to state the reasons for the sentence of imprisonment: PSA(Qld), s 10. Since 2012, on being sentenced for an offence, an offender becomes liable to pay an “offender levy”.49 The levy is not part of the sentence and indeed must not be taken into account in sentencing PSA(Qld), s 9(9).50 It is a flat fee depending on the court in which the person was sentenced.51

JUDICIAL DISCRETION [11.70] Sentencing judges and magistrates have a wide discretion.52 This ensures that the judge or magistrate can sentence appropriately after consideration of all the particular circumstances of both the offence and the offender.53 However, consistency in sentencing is also important in order to ensure fairness and public confidence.54 Justice McMurdo has said that “the maintenance of the sentencing discretion is an essential part of a functional criminal justice system. It keeps the ‘justice‘ in the “system”. But the sentencing discretion must be exercised according to law”.55 Section 3(d) of the PSA(Qld) states that one of the purposes of the Act is to promote “consistency of approach in the sentencing of offenders”. Sentencing discretion is subject to a range of constraints that are flexible enough to permit individualised sentencing while at the same time encouraging consistency. Members of the High Court have noted that “[t]he judicial air is thick with trends,

47

R v Porter [2002] QCA 59 at [26] per Williams JA; R v Butler & Lawton & Marshall [2011] QCA 265.

48

See Chapter 12 at [12.190] and [12.210].

49

Pt 10A PSA(Qld), ss 179A-179H. For discussion see H Douglas and A Chrzanowski, “A Consideration Of The Legitimacy And Equity Of Queensland’s Offender Levy” (2013) 23 (3) Current Issues in Criminal Justice 317. Vinson v Hongara [2014] QDC 249. The amount is identified in PSA(Qld), s 8A. See R v Smith [2004] QCA 31 per de Jersey CJ; see also Leeth v Commonwealth (1992) 174 CLR 455 at 476; The Hon Chief Justice Martin of Western Australia “The Art of Sentencing” (Speech at the Sentencing Conference 2014 at the Singapore Academy of Law and State Courts Singapore) http://www.supremecourt.wa.gov.au/_files/The%20Art%20of%20Sentencin g%20-%20an%20Appellate%20Court%20Perspective%20Martin%20CJ%2014%20Oct%202014.pdf. See Kable v Director of Public Prosecutions (NSW) (1995) 36 NSWLR 374 at 394 per Mahoney ACJ. Australian Law Reform Commission (ALRC), Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) at [5.7]. The Hon Justice Margaret McMurdo AC Address to the Queensland Magistrates State Conference, Brisbane, 4 August 2011.

50 51 52

53 54 55

[11.70] 275

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statistics, appellate guidance and, often enough these days, statutory guidance”.56 However, although there are many constraints on the exercise of judicial discretion, sentencing is not a mechanical or scientific process.57 In fact, the High Court has observed that prescriptions that could result in “the process of sentencing [becoming] any more technical than it already is” are to be avoided.58 A range of matters need to be considered and may include judicial precedents, that reflect appropriate sentencing ranges and recommend consideration of particular principles in sentencing for particular offences. Perhaps most important is the consideration of the maximum or mandatory penalty set out in the relevant statute and the matters set out in the PSA(Qld). These matters are discussed further in [11.90] and [11.120], but first it is appropriate to briefly consider the debate about how the sentencing discretion is exercised, and specifically whether the decision-making process is a “two-stage process”, a process of “instinctive synthesis”, or some other process altogether.

“Staged process” or “instinctive synthesis”? [11.80] One of the main concerns in sentencing is that the decision-making process is accountable and reasoned and that sentences are consistent. The two-stage process of decision-making requires that the outer limit of the sentence is first determined and then appropriate increments and decrements are made accordingly.59 It is argued that this process is “a logical, rational enterprise that has stages and levels in argument which should be made transparent in full and proper reasons”.60 By contrast, “instinctive synthesis” is understood in the following way: “[i]n general, a sentencing court will, after weighing all the relevant factors reach a conclusion that a particular penalty is the one that should be imposed”.61 In 2005, the High Court allowed special leave to appeal in the case of Markarian v The Queen.62 The Markarian case involved an appeal against sentence on the basis that the New South Wales Court of Appeal had inappropriately applied a two-stage process in sentencing the offender.63 The High Court granted special leave to appeal as there was uncertainty as to whether the two-stage or instinctive 56 57 58 59

60 61

62 63

Markarian v The Queen (2005) 228 CLR 357 at 388 per Gleeson CJ, Gummow, Hayne and Callinan JJ. See Ryan v The Queen (2001) 206 CLR 267 at 273 per McHugh J; see also G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) pp 19-20. Pearce v The Queen (1998) 194 CLR 610 at 622; [1998] HCA 57 at [39]. Wong v The Queen (2001) 207 CLR 584 at 611-612 per Gaudron, Gummow and Hayne JJ; see also Markarian v The Queen (2005) 228 CLR 357 at 377-378; [2005] HCA 25 at [51] per McHugh J; and Bugmy v The Queen (1990) 169 CLR 525 at 535. See R Edney, “Still Plucking Figures Out of the Air? Markarian and the Affirmation of Instinctive Synthesis” (2005) 1 High Court Quarterly Review 50 at 51. Markarian v The Queen (2005) 228 CLR 357 at 373; [2005] HCA 25 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ; For an overview see R v Karlsson [2015] QCA 158 per Carmody J at [47]-[53]. (2005) 228 CLR 357; [2005] HCA 25. For a discussion of this case, see H Bennett and G A Broe, “Judicial Neurobiology, Markarian Synthesis and Emotion: How Can the Human Brain Make Sentencing Decisions” (2007) 31 Criminal Law Journal 75.

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synthesis approach was more appropriate to the exercise of the sentencing discretion in this particular case. The majority of the High Court ultimately preferred the instinctive synthesis approach, and rejected the staged test, noting that: Following the decision of this court in Wong64 it cannot now be doubted that sentencing courts may not add and subtract item by item from some apparently derived figure, passages of time in order to fix the time which an offender must serve in prison.65

However, the majority also commented that: The law strongly favours transparency. Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. There may be occasions when some indulgence in an arithmetical process will better serve those ends. This case was not however one of them because of the number and complexity of the considerations which had to be weighed by the trial judge.66

Edney suggests that this approach indicates that the High Court is trying to take a middle ground between the two-stage and instinctive synthesis approaches and that, although generally an approach of instinctive synthesis is preferred, in simple cases an approach closer to the staged process may be appropriate.67 In Queensland, judges of the Court of Appeal have sometimes engaged with the terminology of “instinctive synthesis”. For example in the case of R v Pham,68 Keane JA commented on the instinctive synthesis approach and observed: [T]he nature of the sentencing process, [was] described in the High Court in Markarian, as a process of “instinctive synthesis”. In such a process, some of the principles prescribed by s 9 of the PSA may have great weight and others little weight, depending on the circumstances of each offence and each offender. In some cases, some of these principles will have little or no effect upon the outcome of the process because, in the particular circumstances, other principles have an almost overwhelming claim on the sentencing discretion.

LIMITS TO DISCRETION [11.90] The statutory maximum, minimum (or mandatory) penalty69 associated with the proven offence is a key constraint in limiting judicial discretion in relation 64 65

66 67

68 69

Wong v The Queen (2001) 207 CLR 584. Markarian v The Queen (2005) 228 CLR 357 at 374; [2005] HCA 25 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ: see the separate comments of McHugh J, who also supported the instinctive synthesis test (at [73]). Markarian v The Queen (2005) 228 CLR 357 at 375; [2005] HCA 25 at [39] per Gleeson CJ, Gummow, Hayne and Callinan JJ. R Edney, “Still Plucking Figures Out of the Air? Markarian and the Affirmation of Instinctive Synthesis” (2005) 1 High Court Quarterly Review 50 at 53; see also A Lovegrove, The Framework of Judicial Sentencing (Cambridge University Press, Cambridge, 1997) pp 260262. [2009] QCA 242 at [6]. See also eg. R v Karlsson [2015] QCA 158; R v Nikora [2014] QCA 192. See, eg, QCC, s 320, which provides that the maximum penalty for grievous bodily harm is 14 years, and see [11.120]. See also, eg, QCC, s 305, which provides that the mandatory penalty for murder is life imprisonment; and s 79B of the Transport Operations (Road Use Management) Act 1995 (Qld), which provides for mandatory suspension or disqualification of licence. Note also discussion in [12.240] in relation to repeat serious sex offenders and [11.90] 277

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to sentencing: PSA(Qld), s 9(2)(b).70 Thus, if the prosecution wants to ensure that a higher statutory maximum penalty associated with an aggravated form of the offence is available, it will usually have to charge and prove that aggravated form of the offence.71 If the offender pleads guilty, or informs the relevant law enforcement agency of an intention to plead guilty, this must be taken into account as well.72 Sentencing data and statistics may be helpful to the court in particular situations.73 However, while sentencing councils and other research bodies regularly produce statistics about sentencing, commentators note the ‘ambivalence or antipathy’ of courts to the wider use of statistics.74 The High Court has expressed reservations about their use. In Wong v The Queen,75 Kirby J noted (at [91]) that: Raw statistics may afford impressions as to the range and patterns of sentencing; but they can sometimes mask a great variety of facts concerning an offence and an offender which only the study of the detailed reasons in each case would unveil.

Any sentence that involved the offender or someone else in committing further offences would clearly be an improper exercise of discretion.76 Further, sentencing decisions can be appealed and this possibility will also operate as a constraint on the exercise of discretion.77 Ashworth describes this as “judicial self-regulation”.78 Importantly, too, the sentencing discretion is guided by the application of the sentencing principles set out in the PSA(Qld).79 This is discussed further from [11.150]).80

[12.250] in relation to serious and organised crime. See also Andrew Hemming, “The Constitutionality of Minimum Mandatory Sentencing Regimes: A Rejoinder” (2013) 22 Journal of Judicial Administration 224 for a discussion. 70 71

72 73

Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4] per Gleeson CJ, Gummow and Hayne JJ. R v De Simoni (1981) 147 CLR 383, see also R v Cromwell [2008] QCA 191 per Keane JA at [17]. Although see [12.230] in relation to sexual offences and [12.240] in relation to offences associated with serious organised crime. PSA(Qld), s 13; see also the discussion in Chapter 7 at [7.90] in respect of the effect on penalty of pleading guilty. The Queensland Sentencing Manual provides relevant information in respect of sentence range in previous case decisions: see J Robertson, Queensland Sentencing Manual (Thomson, subscription service.)

74

A Freiberg and S Krasnostein, “Statistics, Damn Statistics and Sentencing” (2011) 21 Journal of Judicial Administration 73.

75

Wong v The Queen (2001) 207 CLR 584 at [91] per Kirby J. See also R v Verrall [2015] QCA 72 per Dalton J at [57]. See, eg, R v Rasmussen (2000) 110 A Crim R 295 where it was found to be improper to order the offender to pay back drug dealers as part of the penalty.

76 77 78

79 80

See, eg, York v The Queen (2005) 225 CLR 466. A Ashworth, “Techniques for Reducing Sentence Disparity” in A von Hirsch, A Ashworth and J Roberts (eds), Principled Sentencing: Readings on Theory and Policy (3rd ed, Hart Publishing, Oxford, 2009) pp 243-244. R v Dullroy; Ex parte Attorney-General of Queensland [2005] QCA 219 at [28] per White J. Except in the context of mandatory penalties, see discussion in [12.240] and PSA(Qld), s 161R.

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Courts also follow sentencing principles developed in previous cases. For example, in R v Pesnak,81 the offender was found guilty of manslaughter. He had not pleaded guilty but later expressed his remorse at the sentencing hearing. Referring to caselaw regarding the relevance of the expression of remorse to sentencing, the court found that, in the circumstances, remorse carried little weight because it was not related to a guilty plea.82 Prosecution and defence counsel often supply comparable sentencing decisions and make submissions about their similarities and differences between the seriousness and circumstances of the comparable cases with the matter being sentenced. This material can be taken into account in determining the appropriate sentence.83 While courts regularly take into account sentences previously applied in similar cases,84 each offender will ultimately be sentenced on an individual basis.

Guideline judgments [11.100] Guideline judgments are now used in some jurisdictions in Australia.85 Guideline judgments contain guidelines that courts take into account in sentencing offenders in relation to specific offences. In 2010 the Queensland Parliament introduced a procedure for issuing guideline judgments.86 Part 2A of the PSA sets out the procedure. The Attorney General, the Director of Public Prosecutions or the Chief Executive Officer of Legal Aid Queensland may apply for a guideline judgment or the Court of Appeal may give a guideline judgment on its own initiative.87 In giving or reviewing a guideline judgment, the Court of Appeal must consider the need for consistency and the need to promote public confidence in the criminal justice system.88 Some believe that since all judgments of the Court of Appeal are binding on lower courts, there is no need to have formal guideline judgments. In fact, all judgments of the Court of Appeal are, in effect, guideline judgments. Gleeson CJ of the High Court has observed: The expressions “guidelines” and “guidelines judgments” have no precise connotation. They cover a variety of methods adopted by appellate courts for the purpose of giving guidance to primary judges charged with the exercise of judicial discretion. Those methods range from statements of general principle, to more specific indications of particular factors to be taken into account or given particular weight,

81 82

R v Pesnak (2000) 112 A Crim R 410 at 412. R v Pesnak (2000) 112 A Crim R 410 at 412 [14].

83

87

R v Ogden [2014] QCA 89 per Fraser JA at [7] (Gotterson JA and Morrison JA concurring); Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2. See R v KU [2008] QCA 154. See also R v Murray [2014] QCA 250 per Fraser JA at [17] for the use of “comparable sentencing decisions” where the maximum penalty has increased. See, eg, Supreme Court of New South Wales, Sentencing Guideline Judgments: http://www.s upremecourt.justice.nsw.gov.au/Pages/SCO2_practiceprocedure/sco2_sentencingguidelin ejudgments.aspx. There are currently no Queensland examples but see Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342 where the Victorian Director of Public Prosecutions asked the Victorian Court of Appeal to give a guideline judgement to assist sentencing courts in deploying the Community Correction Order as a sentencing option. See PSA(Qld), ss15AD, 15AE.

88

PSA(Qld), s15AH.

84 85

86

[11.100] 279

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and sometimes to indications of the kind of outcome that might be expected in a certain kind of case, other than in exceptional circumstances.89

The High Court has identified possible constitutional concerns in relation to guideline judgments because in some cases they may go beyond judicial power.90 Edney and Bagaric point out that although guideline judgments may be helpful in promoting consistency, they are only directory and are not binding.91

Totality [11.110] The common law principle referred to as the “totality principle” is generally understood as a limiting principle.92 It is particularly important where a person is being sentenced for more than one offence93 or when the offender is currently serving a sentence while being sentenced for another offence.94 The principle provides that the total or “aggregate” sentence imposed should be consistent with the offender’s criminal record and future prospects.95 Thomas describes the totality principle in the following way: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is “just and appropriate”.96

The general principle to be followed is that where two or more offences charged form part of the same transaction – for example, criminal damage committed in the course of a burglary – concurrent sentences should be imposed.97 However, separate penalties should somehow be applied to each offence charged98 and these penalties may be specifically ordered to be served cumulatively: see PSA(Qld),

89 90 91

92

93 94 95 96 97

98

Wong v The Queen (2001) 207 CLR 584 at 590-591; [2001] HCA 64 at [5] per Gleeson CJ. Wong v The Queen (2001) 207 CLR 584 at 603; [2001] HCA 64 at [141]-[144] per Gaudron, Gummow and Hayne JJ, at 635 per Kirby J. M Bagaric and R Edney, Sentencing in Australia (Thomson Reuters, Sydney, 2014) p 42. see also Spigelman CJ, “Sentencing Guideline Judgements” (1999) 11(1) Current Issues in Criminal Justice 5. Some studies have suggested that it works as a “driver” for sentence rather than a limit: see A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 275. Mill v The Queen (1988) 166 CLR 59; see also PSA(Qld), s 9(2)(k)-(m). For a discussion of the principle and review of cases see R v LAE [2013] QCA 189 at [32]-[37]. DPP (Tas) v Farmer (2005) 157 A Crim R 150. D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) pp 57-58; Postiglione v The Queen (1997) 189 CLR 295 at 304. D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) p 56, cited in Mill v The Queen (1988) 166 CLR 59 at 63; and Postiglione v The Queen (1996) 189 CLR 295 at 340. See R v Crofts [1999] 1 Qd R 386 at 387 and A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) pp 270-271. Note that in R v Williams (1990) 53 SASR 253, the South Australian Court of Appeal stressed that it is wrong to make unrelated sentences concurrent. See also the discussion of double jeopardy at [7.120][7.250]. R v Crofts [1999] 1 Qd R 386.

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s 156 in relation to imprisonment.99 In most circumstances, the sentence imposed for the most serious offence (where there are multiple offences) will be adequate to punish the criminality involved.100 The principle also requires that courts take into account time already served on remand (while waiting for trial or sentence).101 Similarly, where the offender is already serving a period of imprisonment for other offences, consideration should be given to what the sentence would have been imposed had the matters been heard together.102 Generally, the totality principle is concerned with sentences of imprisonment, although it is also relevant when other forms of penalty are applied. Further, the PSA(Qld) allows for an additional penalty to be imposed at the same time as another penalty for the same offence – for example a fine may be imposed along with a community service order: PSA(Qld), s 45(2) or a non-contact order PSA(Qld), s 43B(2). The court can also impose other penalties, such as disqualification from driving a motor vehicle. This can be imposed for any offence which involves the use of a motor vehicle: Transport Operations (Road Use Management) Act 1995 (Qld) s 79B. In these situations, the court should also consider the totality principle.

Maximum [11.120] The imposition of the maximum penalty should be reserved for the worst category of case for which the penalty is prescribed.103 In Veen (No 2), the High Court noted: [T]hat does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case: ingenuity can always conjure up a case of greater heinousness.104

For example, in Queensland the imposition of a life sentence may be justified when: (a)

99

100 101

102 103

104

the offence is grave enough to require a very long sentence;

Eg, where separate consecutive terms of imprisonment are imposed on an offender for separate offences. One sentence does not start to run until the other is compete – cf concurrent where sentences run at the same time. Cumulation may offend the totality principle: see Postiglione v The Queen (1996) 189 CLR 295 at 340. Note that in certain circumstances in Queensland, however, sentences must be served cumulatively: see PSA(Qld), s 156A; see also R v Booth (1999) 105 A Crim R 288. For a discussion of cumulation and the totality principle see R v Baker [2011] QCA 104 [35]-[47]. See PSA(Qld), s 159A and Mill v The Queen (1988) 166 CLR 59 at 67. See PSA(Qld), ss 9(2)(j), 159A; note also that remand can be particularly stressful as prisoners often cannot access educational, support or other opportunities until sentenced, often prisoners on remand have not yet been found guilty. See Rick Sarre “Challenging Spiralling Remand in Custody Rates: What Legal and Procedural Changes Can Address the Trend?” (2016) 2 (3) Journal of Criminological Research, Policy and Practice 1. R v F [2000] 2 Qd R 331 at 333. R v Fernando (1997) 95 A Crim R 533; Veen v The Queen (No 2) (1988) 164 CLR 465 at 499, citing Ibbs v The Queen (1987) 163 CLR 447 at 451-452; see also Markarian v The Queen (2005) 228 CLR 357 at [31] per Gleeson CJ, Gummow, Hayne and Callinan JJ. This was also discussed in The Queen v Kilic [2016] HCA 48 at [17]-[20] per Bell, Gageler, Keane, Nettle and Gordon JJ. Veen v The Queen (No 2) (1988) 164 CLR 465 at 478. [11.120] 281

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(b)

an examination of the offender’s history suggests that they are of “unstable character” and that the offender is likely to further offend; and

(c)

if they do reoffend, the injury to others is likely to be particularly serious.105

Note that in R v Chivers106 de Jersey J observed that the “worst category” test is subjective and artificial because of the imprecision of the exercise. In many cases, it may be difficult to decide whether a particular crime is the “worst category” of case.

Parity [11.130] As noted at [11.70], consistency is important in fostering public confidence and fairness in the sentencing process. Therefore, another common law principle, that of parity of treatment amongst co-offenders, is a compelling consideration in the sentencing process.107 Gaudron and Dawson JJ have noted that the “parity principle” is based on the “equal justice principle”. In Postiglione v The Queen, they commented that: Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them.108

Thus, where two people commit a crime together or commit the same crime, all other things being equal, the penalty should be the same for both. However, it is rare for all other things to be equal. The culpability of each offender in the criminal activity,109 the decision to plead guilty110 (see PSA(Qld), s 13), and the different personal circumstances of each offender including their character (see PSA(Qld), s 11) will all be factors that influence the approach to sentence. In R v Crossley, for example, different sentences were justified because one co-offender was younger than the other and their criminal records were different.111 While in R v Hurst, the relevant co-offenders were involved in drug offences received different penalties because of differences in culpability, criminal history and personal circumstances.112

105 106 107

108 109 110

111 112

See R v Murdock; Ex parte A-G [1980] Qd R 504; and regarding requirement (a), see R v D [2000] 2 Qd R 659 at 660-661 [8]. [1993] 1 Qd R 432; (1991) 54 A Crim R 272. Postiglione v The Queen (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ, at 309 per McHugh J; see also Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at [31] per French CJ, Crennan and Kiefel JJ. (1997) 189 CLR 295 at 301 per Dawson and Gaudron JJ; see discussion R v Illin [2014] QCA 285 per Fraser JA at [25]. (1997) 189 CLR 295 at 302 per Dawson and Gaudron JJ; see also PSA(Qld), s 9(2)(d). See, eg, R v Onea (1994) 74 A Crim R 395 at 403, where a co-offender entered a plea of not guilty while Onea contested the charge. The co-offender received a much more lenient penalty. See also R v McQuire and Porter (2000) 110 A Crim R 348. (1999) 106 A Crim R 80 at 82-83 [10] per McMurdo P; R v Munt [1999] QCA 141 at [7]; see also R v McQuire and Porter (2000) 110 A Crim R 348. [2014] QCA 168. See also R v Illin [2014] QCA 285 on for a discussion of the parity principle and its limitations.

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Although the risks of disparity of sentence may be reduced when the same judge sentences both co-offenders, this is not always appropriate or possible.113

AIMS OF PUNISHMENT [11.140] As noted at [11.20] and [11.30], the aims of punishment have changed over time and are influenced by a range of factors. In Queensland, there are five potential purposes of sentencing and these are the only justifications for punishment.114 The purposes are: • just punishment or proportionality; • rehabilitation; • deterrence; • denunciation; and • community protection. These five purposes of punishment are stated in PSA(Qld), s 9(1) and reflect the principles of the common law.115 Indeed, they have been incorporated in sentencing legislation throughout much of Australia.116 In some cases, more than one purpose may be relevant PSA(Qld), s 9(1)(f). The purposes have been described as “guideposts”, which sometimes point in different directions.117 Thus, the various aims of sentencing may be in conflict in any given fact situation and depending on which aims are most important in the circumstances certain sentences may be determined to be more appropriate than others. The purpose of the sentence is not to “dispose” of social problems118 or to ensure that the victim or the state has revenge on the offender.119 As Jacoby has pointed out, during the 19th century, the desire for revenge came to be seen as uncivilised120 and is no longer an acceptable reason for punishment. Indeed, using the sentencing process to dispose of social problems has regularly been a concern of the courts. Under-resourced mental health facilities and pressures on services for poorer members of the community mean that sometimes the justice system is

113 114

115

116 117 118 119 120

Postiglione v The Queen (1997) 189 CLR 295 at 338 per Kirby J. Thomas JA has referred to PSA(Qld), s 9 as “sentencing guidelines”: see R v Shillingsworth [2002] 1 Qd R 527. See also K Warner, J Davis and H Cockburn, “The Purposes of Punishment: How do Judges Apply a Legislative Statement of Sentencing Purposes?” (2017) 41 Criminal Law Journal 69. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ. There is much discussion about the effectiveness of sentencing in achieving any of these aims, see Mirko Bagaric and Theo Alexander “The Capacity of Criminal Sanctions to Shape the Behaviour of Offenders: Specific Deterrence Doesn’t Work, Rehabilitation Might and the Implications for Sentencing” (2012) 36 Criminal Law Journal 159. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) p 211. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ. See R v Clarke (1975) 61 Cr App R 320; and Dooley v Polzin (1991) 57 A Crim R 420. See the discussion of vengeance in D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) pp 31 and 66. S Jacoby, Wild Justice: The Evolution of Revenge (Harper and Row, London, 1985). [11.140] 283

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the end point for certain offenders. In the United Kingdom case of R v Clarke,121 for example, the offender had damaged a flowerpot and caused damage worth £1. She was 23 years old at the time and her criminal history included numerous convictions for nuisance offences, prostitution and minor drug matters. She had abandoned two children and developed a mental illness that caused her to become violent and chaotic. Hospitals had refused to take her because she was too difficult. The first court to hear her matter sentenced her to 18 months’ imprisonment for the theft of the flowerpot on the basis that the community needed to be protected. This was appealed and the Appeal Court said: [C]ourts are not dustbins into which social services can sweep difficult members of the public. Still less should … judges use their sentencing powers to dispose of those who are socially inconvenient. If the courts [take this route] the road ahead would lead to destruction of liberty … [T]he courts exist to punish according to the law those convicted of offences. Sentences should fit crimes.122

Further consideration of the purposes of sentencing follow in the next sections.

Just punishment or proportionality [11.150] The principle of proportionality is a key sentencing principle.123 The concept of proportionality is sometimes referred to as “just punishment” or “just deserts”. This justification for punishment is based on the principle that those who commit crimes deserve to be punished124 and that the punishment should fit the crime.125 Findlay argues that the idea of “just deserts” “relies on the potential to calculate and compare proportionality in punishment with the harm caused by crime”.126 Section 9(1)(a) of the PSA(Qld) provides that a sentence may be imposed on an offender “to punish the offender to an extent that is just in all the circumstances”. Sentencing commentators suggest that the concept of “just deserts” has become increasingly significant and has overtaken rehabilitative ideals.127 Zdenkowski proposes that Australian sentencing policy has “cherry picked” the best aspects of

121 122

R v Clarke (1975) 61 Cr App R 320. (1975) 61 Cr App R 320 at 323.

123

See R Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489. For further discussion see A von Hirsch, Deserved Criminal Sentences (Hart Publishing, Oxford, 2017). See introduction to Chapter 4 in A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998) p 141. Alternatively, note that von Hirsch regards “just deserts” as “an integral part of judgments of praise and blame”: see A von Hirsch, Proportionate Sentences: A Desert Perspective in von Hirsch and Ashworth (eds) pp 1170-171. See the extended discussions in M Bull, Punishment and Sentencing: Risk, Rehabilitation and Restitution (OUP, 2010) pp 32-35; A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) Ch 4. See also Hoare v The Queen (1989) 167 CLR 348 at 354. M Findlay, Criminal Law: Problems in Context (2nd ed, OUP, Melbourne, 2006) p 386. D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP, UK, 2002) pp 8-9. See also M Gerber and J Jackson “Retribution as Revenge and Retribution as Just Deserts” (2013) 26 (1) Social Justice Research 61 for a discussion of the meaning of retribution as just deserts compared with retribution as revenge.

124

125

126 127

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the “just deserts” theory.128 In this regard, the notion of “proportionality” has become a central feature of sentencing. The principle of “proportionality” operates to ensure that penalties are neither too lenient nor too excessive.129 In the cases of Veen v The Queen (No 1) and Veen v The Queen (No 2), the High Court emphasised the significance of the concept of “proportionality”.130 In 1975, Veen, then aged 20 years, killed a man and was convicted of manslaughter on the basis of diminished responsibility. He was sentenced to life imprisonment. The sentencing judge found that although the life sentence was not otherwise appropriate, Veen should receive a life sentence to protect the community from his uncontrollable urges. Veen ultimately appealed successfully to the High Court and his sentence was reduced to 12 years. In Veen (No 1), the court held the unanimous view that a sentence should not be increased beyond what is proportionate to the crime merely to protect the community from the risks posed by the offender.131 Veen was subsequently released and, in 1983, killed another person. He pleaded guilty to manslaughter (on the basis of diminished responsibility) and the sentencing judge sentenced him to life imprisonment. Again, Veen appealed to the High Court. This time, the High Court did not interfere with the sentence. On this second occasion, Veen was significantly older and had a prior conviction for manslaughter. These were important considerations for the Court. In any event, the High Court confirmed that “[t]he principle of proportionality is now firmly established in this country”.132 However, rather cryptically, the court also recognised the potential difficulties, noting that: [T]he practical observance of a distinction between extending a sentence merely to protect society and properly looking to society’s protection in determining the sentence calls for a judgment of experience and discernment.133

In Markarian v The Queen, McHugh J stated: “[b]oth proportionality and consistency commonly operate as final checks on a sentence proposed by a judge. They guard against hidden errors in the process…”134 134

Rehabilitation [11.160] Rehabilitation is focused on changing the behaviours and attitudes of the individual offender. Particular types of penalties may therefore be selected because they are thought to assist in bringing about such changes in an offender. 128

129 130

131 132 133 134

G Zdenkowski, “Sentencing Trends: Past, Present and Prospective” in D Chappell and P Wilson, Crime and the Criminal Justice System in Australia: 2000 and Beyond (LexisNexis, Sydney, 2000) p 165. See ALRC, Same Crime, Same Time: Sentencing of Federal Offenders, Report No 103 (2006) at [5.6]. See Veen v The Queen (No 1) (1979) 143 CLR 458; and Veen v The Queen (No 2) (1988) 164 CLR 465; see also R Fox, “The Meaning of Proportionality in Sentencing” (1994) 19 Melbourne University Law Review 489; and “The Killings of Bobby Veen: The High Court on Proportion in Sentencing” (1988) 12 Criminal Law Journal 339. Veen v The Queen (No 1) (1979) 143 CLR 458. at 467, 468, 482-483 and 495. Veen v The Queen (No 2) (1988) 164 CLR 465 at 472 per Mason CJ, Brennan, Dawson and Toohey JJ. Veen v The Queen (No 2) (1988) 164 CLR 465 at 474 per Mason CJ, Brennan, Dawson and Toohey JJ. [2005] HCA 25; (2006) 228 CLR 357 at [83] per McHugh J. [11.160] 285

Criminal Process in Queensland

For example, certain conditions may be included in sentencing orders, such as attending education, therapy or work programs in order to facilitate an offender’s rehabilitation from criminal offending.135 Section 9(1)(b) of the PSA(Qld) states that the sentence can be imposed “to provide conditions in the court’s order that the court considers will help the offender to be rehabilitated”. Section 3(b) of the PSA(Qld) also states that one of the purposes of the Act is to provide for the appropriate rehabilitation of offenders.136 In circumstances where there has been some delay between the commission and prosecution of the offence and where there has been no offending in the intervening period, rehabilitation may be inferred and may operate as a mitigating feature in sentencing.137 However, judicial opinion is divided on whether rehabilitation can be proved in the absence of demonstrated remorse.138 Garland has tracked the development of the rehabilitative ideal and its influence on penal policy from the beginning of the 20th century until at least the late 1980s.139 He notes that early in the 20th century, the question of punishment was “reformulated in technical terms as a question of social engineering and adjustment” and the role of the expert also became very important.140 Thus, rehabilitation-oriented penalties are often extremely individualised and incorporate measures that will assist in the treatment of the particular offender. Penalties focused on rehabilitation aim to serve a therapeutic function by effecting changes in the behaviour of convicted persons. Psychiatrists’ and psychologists’ reports may be particularly important in penalties aimed at rehabilitation.141 It is argued that rehabilitation is not only in the interests of the happiness, health and satisfaction of the offender but also in the interests of social health in general by virtue of the view that social reform reduces crime frequency.142 Rehabilitation is considered to be particularly important where the offender is a young person. The courts have long recognised that prison should be avoided for young people and, where prison is the only available alternative, the youthfulness of the offender may mitigate against a lengthy sentence in consideration of their prospects of rehabilitation.143 Even where the offence is violent, the youth of an

135 136

137 138 139 140

141 142 143

A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 86. See also Chapter 15 for a discussion of restoring justice and alternatives. Although the section also identifies that the protection of the Queensland community remains as the “paramount consideration”; so rehabilitative ideals may be sacrificed to community protection aims. See R v Alt [2013] QCA 343 for a discussion. R v D’Arcy [2000] QSC 425 at [163]-[169] per Chesterman J. See D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) pp 185-187. Garland refers to this approach as “penal welfarism”: see p 35. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 185; see also M Foucault, Discipline and Punish: The Birth of the Prison (Penguin Books, London, 1997) pp 190-191. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) pp 34-39. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 38. R v Taylor (1999) 106 A Crim R 578 per McMurdo P; D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) p 195.

286 [11.160]

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offender, especially where they have no prior convictions, remains a material consideration.144 Where a crime is particularly serious and the young offender has a relevant criminal record, other sentencing principles may take precedence.145 The principles underlying the juvenile justice legislation in Queensland emphasise rehabilitation with respect to children.146 Minor drug offending is another area where rehabilitation may take precedence.147 For example, ss 15B-15F of the PSA(Qld) provide diversion for treatment and education as an option for penalty in the case of certain eligible drug offences. Many commentators have suggested that support for rehabilitation as a sentencing justification has been diminishing since the 1970s. Allen has written in this regard.148 Garland, in turn, has suggested that indices of change in sentencing policy include the change in the emotional tone of crime policy, the return of the “victim” as an important factor and the decline of the rehabilitative ideal.149 These indices are interrelated. Studies that demonstrate the failure of many rehabilitation programs,150 as well as the increasing focus on community protection and “just punishment”, all contribute to the decreasing relevance of rehabilitation to sentencing. However, in spite of this, community-based and supervisory sentencing options that support the rehabilitative ideal operate throughout all Australian jurisdictions.

Deterrence (specific and general) [11.170] Bentham argued that the first thing that should come to the mind of a provident legislator is to “obviate the danger of the like mischief in future”.151 Thus, unlike “just punishment”, which is focused on the past, the aim of deterrence seeks to curb future offending, similar to rehabilitation. However, it seeks to achieve this aim not by rehabilitation but by making the cost of offending outweigh any benefit or by creating a fear of punishment in potential offenders.152

144 145 146 147

R v Lovell [1999] 2 Qd R 79 at 82 per Byrne J (with whom Davies JA agreed); see PSA(Qld), s 9(3); Lauritsen v The Queen (2000) 22 WAR 442; [2000] WASCA 203. See, eg, R v Fernando (1997) 95 A Crim R 533. Youth Justice Act 1992 (Qld) Sch 1, esp Principle 8. Although in cases of drug trafficking it is considered to be of less relevance: R v Willoughby [2009] QCA 105.

148

See generally, F A Allen, “The Decline of the Rehabilitative Ideal” in A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998).

149

D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) Ch 1. See G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 95. Not all studies of this type are negative: see S Rex, “A New Form of Rehabilitation?” in A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998) p 35. J Bentham, The Principles of Penal Law in J Bowring (ed), The Works of Jeremy Bentham (Ann Arbor, Michigan, 1986). See A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998) p 44; A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 79.

150

151 152

[11.170] 287

Criminal Process in Queensland

Posner has applied economic analysis to this approach.153 Although recognising that not all crimes can be deterred by penalty, he suggests that people make calculations about losses and gains when deciding whether or not to carry out a crime. This objective of punishment is encapsulated in the PSA(Qld), s 9(1)(c), which states that the sentence can be imposed to “deter the offender or other persons from committing the same or a similar offence”. There are two possible aspects to deterrence: 1.

specific (or personal or special or particular) deterrence, which seeks to deter the particular offender from reoffending;

2.

general deterrence, which seeks to deter the community or a general group in the community from reoffending.

Sometimes judgments bundle these two aspects together154 and at other times, they consider each aspect separately.155 According to Mackenzie’s research, some Queensland judges suggest that specific deterrence may be useful where a person has no, or very little, criminal history. Certain penalties may deter such an offender from reoffending. Similarly, penalties such as suspended sentences, or good behaviour bonds, may have specific deterrent effects.156 Where the offender suffers from a mental illness or cognitive deficit, deterrence is likely to be less relevant, or even irrelevant, depending on the level of illness or deficit.157 Courts tend to assume that penalties containing an element of general deterrence are effective.158 However, there has been significant research on the links between penalty and deterrence that has tended to show that penalty is relatively ineffective in deterring criminal offending.159 It has been argued that deterrence-oriented punishment will be useful for certain matters, such as traffic offences, and not for others, such as burglary.160 Drink-driving laws, which focus on fines and loss of licence, have been extremely effective in reducing this kind of offending. However, this may have as much to do with broad education programs as with deterrent penalties.161 General deterrence-oriented penalties have often been discussed by judges in “white collar crime” matters, including those involving fraud and theft in circumstances where people are placed in positions of

153 154 155 156 157 158 159

160 161

R Posner, “An Economic Theory of Law” (1985) 85 Columbia Law Review 1193. See, eg, R v Riley [2007] QCA 391. R v Selu; ex parte Cth DPP [2012] QCA 345. G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 102. See R v Verdins (2007) 16 VR 269 at 271; [2007] VSCA 102 at [5]; R v Yarwood [2011] QCA 377. Ryan v The Queen (2001) 206 CLR 267 at [43] per McHugh J. See Raymond Peternoster, “How Much Do We Really Know About Criminal Deterrence?” (2010) 100 (3) The Journal of Criminal Law and Criminology 765; see also D Weatherburn, S Vignaeendra, A McGrath, The Specific Deterrent Effect of Custodial Penalties on Juvenile Offending, Background Paper No 33 (Australian Institute of Criminology, 2009). T Bennett and R Wright, Burglars on Burglary (Gower, London, 1984) Chs 5 and 6. See A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 82; see also R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538 in relation to dangerous driving.

288 [11.170]

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trust.162 Deterrence, both general and specific, has also been identified as an important aspect of sentencing in cases involving domestic and family violence.163 The aim of general deterrence was discussed in the case of R v Pangallo.164 Pangallo was a solicitor who was found guilty of bribing a public prosecutor. He had bribed the prosecutor in an effort to ensure that fraud charges against his client would not proceed. The prosecution, on the basis that the original sentence of periodic detention was inadequate, appealed the sentence. Lee CJ said (at 443): [I]n my view the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected. The police are in constant contact with members of the legal profession’s barristers and solicitors and the opportunities for bribery are great. But those circumstances of themselves mean that the element of deterrence must be kept very much to the forefront of the mind of the sentencing judge when a solicitor appears on a charge such as the present one.

General deterrence has been considered by judges to be an important factor in a number of other crimes. There is some research to support the view that planning-oriented crimes may be deterred by certain sentencing approaches – for example, planned armed robberies.165 Where crimes are considered to be prevalent, general deterrence may also be considered to be important.166 However, some have raised concerns that increasing the sentence on the basis of offence prevalence is unsound from a normative perspective because defendants should be punished for their acts, not those of other offenders.167 For an example of where prevalence was considered, see R v Sokol168 where the accused was intoxicated and punched the victim in the face while the accused held a glass. The glass broke lacerating the victim’s temple. The victim required stitches. In considering sentence, the Chief Justice commented (at [9]) on the relevance of both specific and general deterrence: The prevalence of offending, where intoxicated patrons respond irrationally to perceived slights by punching with a fist containing a glass, warrants strongly deterrent sentences. It has even led to a requirement that some hotels and clubs replace glass tumblers with plastic ones. It may be accepted that the applicant would be most unlikely to offend in this way again. But the need to secure general deterrence is extremely important in these cases. That prevalence left it open for His Honour to move towards the upper limit of the appropriate range. The need for sentences to secure general deterrence in this area is enhanced by the feature that these offences are not infrequently committed by persons who would not otherwise 162

G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 102.

163

See [11.270].

164 165

(1991) 56 A Crim R 441. See R Harding, “Rational-Choice Gun Use in Armed Robbery” (1990) 1 Criminal Law Forum 427; see also R v Dullroy; Ex parte Attorney-General of Queensland [2005] QCA 219; R v Skeates [1978] Qd R 85. See also PSA(Qld), s 9(2)(h), which specifically mentions prevalence as a factor to be taken into account. See also Herbert v The Queen (2003) 27 WAR 330; [2003] WASCA 61 per Miller J considering the prevalence of burglary; and R v Lui [2009] QCA 366 on the prevalence of vigilante attacks. Mirko Bagaric and Theo Alexander, “The Fallacy of Punishing Offenders for the Deeds of Others: An Argument for Abolishing Offence Prevalence as a Sentencing Aggravating Consideration” (2016) 38 Sydney Law Review 23.

166

167

168

R v Sokol [2011] QCA 20. [11.170] 289

Criminal Process in Queensland

fall foul of the criminal law – energetic young men, in employment, from stable family backgrounds and of otherwise good character, who fail to recognize the risks associated with inebriation.169

This case highlights one of the risks associated with aims of general deterrence in sentencing. Increasing the penalty for a particular offender on the basis that it will deter others may be unfair when any potential link is impossible to prove.170 This approach would appear to conflict with the notion of “just punishment”. Further, the aim of deterrence relies on the view that offenders make rational choices. For many offenders, however, this is probably not the case. Ultimately, claims about the deterrent effect of sentencing are usually not based on research and thus will be difficult, if not impossible, to prove.171

Denunciation [11.180] One of the purposes of punishment is said to be denunciation, which refers to the idea that a penalty should convey a message to the offender and the community that the behaviour is wrong. Section 9(1)(d) of the PSA(Qld) states that a sentence may be imposed on an offender “to make it clear that the community, acting through the court, denounces the sort of conduct in which the offender was involved”. Kirby J, in a judgment of the High Court reviewing the punishment of a priest found guilty of sexual offences involving children, commented that: A fundamental purpose of the criminal law, and of the sentencing of convicted offenders, is to denounce publicly the unlawful conduct of an offender. This objective requires that a sentence should also communicate society’s condemnation of the particular offender’s conduct. The sentence represents “a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic code of values as enshrined within our substantive criminal law”.172 In the case of offences against children, which involve derogations from the fundamental human rights of immature, dependent and vulnerable persons,173 punishment also has an obvious purpose of reinforcing the standards which society expects of its members.174

However, in the same judgment, Kirby J noted that denunciation is inherent in the punishment itself and that if the person was additionally punished because he was a paedophile as well as a priest, this would be an error.175

169 170

171

172 173

174 175

Note that PSA(Qld), s 9A explicitly identifies that voluntary intoxication is not a mitigating factor in sentencing. See also M Bagaric and E Richard, Sentencing in Australia (Thomson Reuters, Sydney, 2014) p 179 where the authors noted that the practice of imposing harsher sentences to discourage other offenders from committing the same or similar offences does not work, as the additional pain that is inflicted on the offenders to pursue this objective has no positive social effects. A Ashworth, Sentencing and Criminal Justice (12th ed, Cambridge University Press, Cambridge, 2010) pp 80-81; see also A von Hirsch, Censure and Sanctions (OUP, Oxford, 1993) p 41. R v M (CA) [1996] 1 SCR 500 at 558 per Lamer CJ: this quote appears in Kirby J’s judgment. J Martin, “Justice for Victims? – The Sentencing of Public Trust Figures Convicted of Child Sexual Abuse: A Focus on Religious Leaders” (1994) 32 Alberta Law Review 16 at 32: this quote appears in Kirby J’s judgment. Ryan v The Queen (2001) 206 CLR 267 at [118]. Ryan v The Queen (2001) 206 CLR 267 at [120].

290 [11.180]

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In order to denounce a particular offence, the severity of the penalty should provide a clear statement that the community will not tolerate the particular type of offending.176 Denunciation is rarely discretely discussed in Queensland Court of Appeal judgments. However, Mackenzie’s research, which drew on interviews with a number of Queensland judges, found that denunciation underlies most sentencing decisions, although it is rarely the primary consideration.177 According to Lee CJ of the New South Wales Court of Appeal, sentences that seek to denounce a particular crime are more likely to involve a period of imprisonment because other penalties suggest a certain level of leniency.178 In cases involving domestic and family violence, denunciation has been considered an important aim of sentencing. For example, in the cases of Munda v Western Australia, where the appellant pleaded guilty to the manslaughter of his defacto spouse, the court stated:179 A consideration with a very powerful claim on the sentencing discretion in this case is the need to recognise that the appellant, by his violent conduct, took a human life, and, indeed, the life of his de facto spouse. A just sentence must accord due recognition to the human dignity of the victim of domestic violence and the legitimate interest of the general community in the denunciation and punishment of a brutal, alcohol-fuelled destruction of a woman by her partner. A failure on the part of the state to mete out a just punishment of violent offending may be seen as a failure by the state to vindicate the human dignity of the victim; and to impose a lesser punishment by reason of the identity of the victim is to create a group of second-class citizens, a state of affairs entirely at odds with the fundamental idea of equality before the law.

In the case of R v Nuttall; ex parte A-G,180 the offender was convicted of 36 counts of official corruption committed while he was a member of the Queensland Legislative Assembly. In sentencing, Muir JA observed: “The offending conduct calls for severe punishment to mark its public denunciation in no ambiguous way and to serve as a deterrent to others who may be tempted to abuse high office”.181 The relationship between an increased sentence and the effectiveness of denunciation is contested. The Canadian Law Reform Commission has suggested that the social effects that denunciation seeks to achieve can be more effectively achieved through publicity at the trial, conviction and the pronouncement of sentence. The Commission found that increased severity of the sentence did not increase the effectiveness of denunciation.182

176

178 179 180 181

New South Wales Law Reform Commission, Sentencing, Discussion Paper No 33 (1996) Ch 3 at [3.9]. G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 113; see also R v Burden; Ex parte Attorney-General (Qld) (2005) 153 A Crim R 104, where McMurdo P noted that denunciation could also be understood as shaming – this approach suggests that the focus is on the specific offender rather than sending a message to the general community. R v McKenna (unreported, NSW CCA, Lee AJ, 16 October 1992) p 9. Munda v Western Australia [2013] HCA 38 at [55]. [2011] QCA 120. R v Nuttall ex parte A-G (Qld) [2011] QCA 120 at [73].

182

Law Reform Commission of Canada, Criminal Procedure: Control of the Process (1975) p 24.

177

[11.180] 291

Criminal Process in Queensland

To protect the community from the offender [11.190] Garland argues that the key concerns for the criminal justice system have shifted towards harm and loss reduction, crime prevention and risk management.183 This shift has subtly changed the role of the criminal justice system arguably into a more forward looking process and this is reflected in changes in approaches to sentencing. Section 9(2)(e) of the PSA(Qld) states that a sentence may be imposed “to protect the Queensland community from the offender”. Further, the purposes of the PSA (Qld) include ensuring that the protection of Queenslanders is a “paramount consideration” in appropriate circumstances of (s 3(b)).184 The High Court has emphasised that community protection is also relevant in considering the appropriate sentence.185 In its broad sense, this could be consistent with rehabilitative sentences, which aim to re-educate the offender to ensure they do not reoffend. Such re-education should also ensure the future protection of the community. However, usually community protection-oriented sentencing is focused on incapacitating the offender in some way.186 Garland refers to the approach associated with community protection as “punitive segregation”.187 Sentences that may be used to protect the community through incapacitation may include penalties involving imprisonment, detention within the home, electronic monitoring, curfews,188 control orders189 and disqualification. In the context of some communities, such as Aboriginal and Torres Strait Islander communities, community protection-oriented sentences may also involve banishment from the community.190 One of the risks of such punishments that are anchored in aspirations for community protection is that they may be excessively punitive.191 The aim of community protection inevitably relies on an assessment of the risk of the offender reoffending. For example, in Queensland, an indefinite detention regime (PSA(Qld)) and preventative detention legislation192 specifically rely on evidence in regard to the risk of the offender reoffending. Such assessments have

183 184 185 186 187 188 189 190 191

192

D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 171. See for discussion, Sexual offenders [11.310]; [12.240]; violent offenders [11.300]; [12.230] and serious organised crime [12.250]. Veen v The Queen (No 2) (1988) 164 CLR 465 at [13] per Mason CJ, Brennan, Dawson and Toohey JJ. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 84. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 16. For an example of the application of a curfew, see Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324. See Pt D, Div. 3 PSA(Qld). R v Yunipingu (unreported, NT SC, Martin CJ, 24 June 2002). W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 44; see also S Monterosso, “Punitive Criminal Justice and Policy in Contemporary Society” (2009) 9(1) QUT Journal of Justice 13. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); see also the discussion in Chapter 12 at [12.270].

292 [11.190]

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been found to be unreliable193 and research suggests that generally risk is over-predicted.194 Bottoms and Brownsword note a false positive rate of 66% (see also [12.300]).195 This means that people who do not need to be incapacitated in order to protect the community may be needlessly, and unfairly, imprisoned or disqualified.196 Von Hirsch points out that serious crimes are rare events, and the rarer the event the more likely the incidence of false positive calculations of risk.197 As the incapacitation response is likely to be particularly harsh for serious matters (that is, imprisonment), this merely exacerbates the problem. This mirrors the issues identified with general deterrence-focused sentencing – that is, offenders may be penalised more than they deserve. Clearly, again, this approach may conflict with the theory of “just punishment”. The advantages of incapacitation via preventative detention are, in the short term at least, obvious. While detained, the offender cannot reoffend. However, in the longer term, the disadvantages may outweigh the advantages.198 Lacey points out that imprisonment has social costs (on families, for example). She also notes that the prison experience often has deleterious impacts on the individuals who are usually eventually released.199 Bottoms and Brownsword suggest that the incapacitation approach creates a problem of competing rights.200 They note that the offender has the right to be released at the end of the sentence but that citizens have the right not to be assaulted.201 This balancing process is particularly difficult in circumstances where preventative detention legislation is not applicable. In Veen (No 2), the High Court struggled to reconcile proportionality (or “just punishment”) and community protection.202 193

C Warner, “Sentencing Review 2002-2003” (2003) 27 Criminal Law Journal 325 at 338; P Shea, Psychiatry in Court: The Use(fullness) of Psychiatric Reports and Psychiatric Evidence in Court Proceedings (2nd ed, Hawkins Press, Sydney, 1996) p 155. See also D Ruschena, “Determining Dangerousness: Whatever Happened to the Rules of Evidence” (2003) 10 Psychiatry, Psychology and Law 122.

194

A von Hirsch and A Ashworth (eds), Principled Sentencing: Readings on Theory and Policy (2nd ed, Hart Publishing, Oxford, 1998) p 90. A E Bottoms and R Brownsword, “The Dangerousness Debate After the Floud Report” (1982) 22 British Journal of Criminology 229 at 230.

195 196 197 198

199

200 201 202

A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) p 84. A von Hirsch, Doing Justice: The Choice of Punishments – Report of the Committee for the Study of Incarceration (Hill and Wang, New York, 1976). J Trevena and D Weatherburn, “Does the First Prison Sentence Reduce the Risk of Further Offending?” [2015] (187) Contemporary Issues in Crime and Justice 1 and also Christina Stahlkopf, et al “Testing Incapacitation Theory: Youth Crime and Incarceration in California” (2010) 56 Crime and Delinquency 253 – the authors find that a prison sentence may increase the likelihood of further offending. N Lacey, “Principles, Policies and Criminal Justice” in L Zedner and A Ashworth (eds), The Criminological Foundations of Penal Policy: Essays in Honour of Roger Hood (OUP, Oxford, 2003) pp 94-95. See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 592 [20] per Gleeson CJ, who echoed this point. A E Bottoms and R Brownsword, “The Dangerousness Debate After the Floud Report” (1982) 22. Veen v The Queen (No 2) (1988) 164 CLR 465 at 469-470 [6]-[9] per Mason CJ, Brennan, Dawson and Toohey JJ. [11.190] 293

Criminal Process in Queensland

FACTORS RELEVANT TO SENTENCING [11.200] In general, a sentencing court will use “instinctive synthesis” to weigh all the relevant factors in order to reach a conclusion that a particular penalty is the one that should be imposed.203 A central principle in sentencing is to balance the objective factors of the offence against the subjective factors of the offender. Section 9(2) of the PSA(Qld) sets out a number of matters the court must take into account in sentencing the offender. While Queensland courts must have regard to mitigating and aggravating factors (PSA(Qld), s 9(2)), whether a circumstance is aggravating or mitigating is not always specifically defined. In any event, by virtue of s 9(2)(r), which notes that the court must consider “any other relevant circumstance”, the list is extremely broad204 – effectively all the particular circumstances relating to the offender and the offence should be considered.205 Some of the issues that have been highlighted in the case law are examined below.

The offender’s character, age and intellectual capacity [11.210] Generally, all other things being equal, a person who has been convicted of relevant previous offences will receive a higher sentence than a person who has no relevant prior convictions.206 Pursuant to s 9(2)(f) of the PSA(Qld) and the common law, the character of the offender is a relevant consideration. Prior convictions may manifest a “continuing attitude of disobedience to the law” and will usually, therefore, increase the moral culpability of the offender, particularly where the prior convictions are similar offences to those for which the accused is to be sentenced.207 The High Court has noted that the public estimation or repute of a person may not correspond with that person’s intrinsic nature.208 In other words, the offending behaviour may rebut evidence of good character even where presented in good faith. Further, “good character”, pursuant to s 11 of the PSA(Qld) and the common law, may refer both to an absence of prior convictions and / or to a general perception held in the community that the person is of good character.209 Both the PSA(Qld), s 9(2)(f) and the common law recognise that age may have some impact on sentencing. Youthful offenders, especially where they are first offenders, will generally receive more lenient penalties.210 In relation to advanced

203 204 205 206 207 208 209 210

Markarian v The Queen (2005) 228 CLR 357 at [37] per Gleeson CJ, Gummow, Hayne and Callinan JJ. See M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) pp 246-247. See R v De Simoni (1981) 147 CLR 383 at 389 per Gibbs CJ. See R v TL [2005] 1 Qd R 659 at 663: see also the discussion of parity at [11.130] R v Maxwell (1998) 102 A Crim R 374 at 379; Veen v The Queen (No 2) (1988) 164 CLR 465 at 496. See Melbourne v The Queen (1999) 198 CLR 1 at 9-10 [16] per McHugh J. Ryan v The Queen (2001) 206 CLR 267 at 276 [27] per McHugh J. R v Taylor (1999) 106 A Crim R 578 at 583 [15]; Rodriguez v The Queen [2001] WASCA 394; see also D A Thomas, Principles of Sentencing (2nd ed, Heinemann, London, 1979) p 195. This is related to the question of rehabilitation, discussed at [11.160].

294 [11.200]

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age, Steytler J observed in Gulyas v Western Australia,211 that “there is no uniform approach in respect of a plea for mercy on account of advanced age”. However, mercy has sometimes been extended to older people on the basis that, for an offender of advanced age, each year of a sentence represents a substantial proportion of the period of life which is left to them.212 Nevertheless, in R v Belbruno,213 the Victorian Court of Appeal stated that older age alone, without other mitigating factors, would not impact on penalty. Further, offenders of older age who also have health issues are more likely to receive more lenient treatment from the courts.214 The intellectual capacity of the accused must also be considered in sentencing an offender.215 Reduced intellectual capability is generally likely to reduce the offender’s culpability in relation to the offending216 and will also impact on the justification for the punishment relied on.217 The Victorian Court of Appeal has examined the issue and in a 2007 case observed: Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:

211 212 213 214 215

216

217

1.

The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.

2.

The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.

3.

Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.

4.

Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.

5.

The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.

(2007) 178 A Crim R 539; [2007] WASCA 263 at [33]. Gulyas v Western Australia (2007) 178 A Crim R 539; [2007] WASCA 263 at [33] per Steytler J; see also R v Markusic [2004] QCA 249. (2000) 117 A Crim R 150; [2000] VSCA 201. See, eg, R v Sopher (1993) 70 A Crim R 570 at 575; Austin v The Queen (1997) 87 A Crim R 570 PSA(Qld), ss 9(2)(f); 108B(2A); Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14. In relation to mental health and sentencing see: R v Andrews [2012] QCA 266; Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39. R v Yarwood [2011] QCA 367; R v Goodger [2009] QCA 377. On the consideration of Asperger’s Disorder see R v Kuzmanovski; ex parte A-G (Qld) [2012] QCA 91; on foetal alcohol spectrum disorder, cognitive disability and sentencing see H Douglas ‘Foetal Alcohol Spectrum Disorders: A Consideration of Sentencing and Unreliable Confessions’ (2015) 23 Journal of Law and Medicine 427 and see also LCM v The State of Western Australia [2016] WASCA 164. See the comprehensive discussion of these issues in R v Verdins (2007) 16 VR 269; [2007] VSCA 102. [11.210] 295

Criminal Process in Queensland

6.

Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.218

Damage, injury or loss caused by the offender [11.220] Any damage, injury or loss caused by the offender must be considered in sentencing: PSA(Qld), s 9(2)(e).219 Garland argues that one of the central shifts in criminal justice policy has been “the return of the victim”. He comments: The new political imperative is that victims must be protected, their voices must be heard, their memory honoured, their anger expressed, their fears addressed … A zero-sum policy game is assumed where the offender’s gain is the victim’s loss, and being “for” victims automatically means being tough on offenders.220

This shift is reflected in some more recent legislative developments.221 It is now common for sentencing judges to consider victim impact statements.222 Copies of statements should be provided to the defence as soon as possible after the plea of guilty is indicated by the defendant.223 Material in a victim impact statement may be considered as facts for the purposes of sentencing if not controverted by the other party.224 However, concerns have been expressed in respect of statements by victims in relation to harm sustained where such statements are not open to question or scrutiny.225 For example, in a Queensland case, Fryberg J noted the limitations of such statements as evidence of their assertions: Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements. The purpose of those statements is primarily therapeutic. For that reason victims should be permitted, and even encouraged, to read their statements to the court. However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment.226

218

219 220 221 222 223 224 225

226

R v Verdins (2007) 16 VR 269; [2007] VSCA 102 at [32]: these principles were accepted in R v Yarwood [2011] QCA 367 at [24] per White JA (Fraser JA and North J concurring) and R v Goodger [2009] QCA 377 at [21] per Keane JA (Fraser JA and Atkinson J agreeing). See also Chapter 15 for a discussion of restorative justice. D Garland, Punishment and Modern Society: A Study in Social Theory (OUP, New York, 1990) p 11. For example, the introduction of PSA(Qld), s 9(4) and (6A), discussed at [11.310] and [11.320]. See also [12.250] on the response to organised crime. Part 10B Penalties and Sentences Act 1992 (Qld). R v BBU [2009] QCA 385 per McMurdo P [43]-[49] (see also discussion of disclosure at Chapter 8). R v Evans; R v Pearce [2011] QCA 135. See M Hinton, “Guarding Against Victim-Authored Victim Impact Statements” (1996) 20(6) Criminal Law Journal 310; A Ashworth, “Victim Impact Statements and Sentencing” (1993) 17 Criminal Law Journal 498 at 503. R v Singh [2006] QCA 71 per Fryberg J (McMurdo P and Williams JA agreeing) and R v P (1992) 111 ALR 541 at 545. See also T Booth “‘Cooling Out’ Victims of Crime: Managing Victim Participation in the Sentencing Process in a Superior Sentencing Court” (2012) 45(2) Australian & New Zealand Journal of Criminology 214-230. See also PSA(Qld), s179N.

296 [11.220]

Considerations Underlying Sentencing

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Ultimately, the sentencing judge must decide how information about victim impact will be given to the court and to what extent, if at all, the material contained in a victim impact statement should be admissible or influence sentence.227 A higher impact on the victim or the community may operate to increase the penalty. The level of the impact of the crime on the victim is also reflected in maximum penalties for offences. For example, the maximum penalty for minor assaults is three years’ imprisonment in Queensland, while for grievous bodily harm the maximum penalty is 14 years’ imprisonment.228 The level of vulnerability of the victim is also a consideration – for example, the victim’s vulnerability due to age would be an aggravating feature as would breach of trust within a relationship.229

Co-operation with authorities [11.230] The degree to which the offender co-operates with authorities is taken into account when imposing sentence. In particular, the offender’s assistance with authorities in relation to the investigation of the particular crime being sentenced, as well as with other crimes, will be taken into account and will operate as a mitigating factor in sentence.230 If offenders undertake to assist authorities in the future, this should also be taken into account.231 Thus, both past or current assistance and the promise of assistance will generally be considered as mitigating factors in penalty.232 One of the purposes of the PSA(Qld) includes encouraging particular offenders to cooperate with law enforcement agencies in proceedings or investigations about major criminal offences (s3(c)).233 In Wong v The Queen, Gaudron and Hayne JJ noted that the offender’s co-operation with authorities is often difficult to distinguish from mitigating factors, such as remorse and the guilty plea: It must often be the case that an offender’s conduct in pleading guilty, his expressions of contrition, his willingness to co-operate with the authorities, and the personal risks to which he thereby exposes himself, will form a complex of inter-related considerations, and an attempt to separate out one or more of those considerations will not only be artificial and contrived, but will also be illogical.234

In York v The Queen,235 the offender had assisted the authorities in their investigation and her assistance had led to the conviction of a brutal murderer. In the particular circumstances of the case, the offender’s assistance was recognised

227 228 229 230 231

232 233 234

Victims of Crime Assistance Act 2009 (Qld) s 15(8). See QCC, ss 335 (assault) and 320 (grievous bodily harm). R v Major; ex parte Attorney-General (Qld) [2011] QCA 210. PSA(Qld), ss 9(2)(i) and 13B apply in this context. PSA(Qld), s 13A. See R v Gilbert [2008] QCA 178. See also Practice Direction No 4 of 2014 (issued by the Chief Justice on 17 February 2014): http://www.courts.qld.gov.au/__data/asse ts/pdf_file/0017/225521/sc-pd-4of2014.pdf (pp 8-9) which reiterates the framework for the practical operation of PSA(Qld), s 13A. See, eg, Malvaso v The Queen (1989) 168 CLR 227 at 239. In particular see PSA(Qld), s 161S in relation to serious organised crime, see also [12.240]. Wong v The Queen (2001) 207 CLR 584 at 611-612 [74]-[76] per Gaudron and Hayne JJ

235

(2005) 225 CLR 466. [11.230] 297

Criminal Process in Queensland

as being very brave. This, along with other matters, led to a significant reduction in sentence.236 In situations where the offender’s sentence is reduced on the basis of a promise of future assistance, the courts in Queensland are required to impose a penalty and state the level of reduction that is made as a result of the promise of assistance. In Queensland, the court is closed and a statement is made in regard to the penalty being reduced pursuant to PSA(Qld), s 13A and also what sentence would have been imposed but for the promised assistance: PSA(Qld), s 13A(7). In R v Webber, the Queensland Court of Appeal found that the sentencing discretion had miscarried because of the failure to state the sentence that would have been imposed but for the promise of assistance.237 McMurdo P and Chesterman J noted that the discount should be discernible and worthwhile,238 while Pincus JA noted that the discount should be significant and separate from the discount given for a guilty plea.239 If the offender fails to fulfil their promise of assistance, they may be re-sentenced: PSA(Qld), s 188(2). The rationale underlying discount in sentence for co-operation or promised co-operation is said to be in part because co-operation is a tangible expression of remorse and a desire to put things right. Sentence reduction is also a reward for co-operation and this is utilitarian as “it may encourage others to assist the police to unravel conspiracies and other crimes”.240 Clearly, assistance provided to authorities in the criminal investigation process has benefits to the community, particularly in regard to its cost-savings with respect to time and resources. It may also help to ensure that certain offenders, who might otherwise have evaded the authorities, are investigated or successfully prosecuted.

The offender’s cultural background [11.240] Generally, judges have been unwilling to explicitly recognise race as a disadvantage per se on the basis that it would be contrary to racial discrimination legislation.241 However, studies have shown that certain cultural groups are over-represented at all levels of the criminal justice process.242 This is particularly the case for Aboriginal and Torres Strait Islander people in Australia. In 2015, Aboriginal and Torres Strait Islander prisoners comprised over a quarter (27% or 9,885) of the total prisoner population in Australia, indicating that the rate for Aboriginal and Torres Strait Islander prisoners was 16 times higher than for

236

York v The Queen (2005) 225 CLR 466.

237 238 239

(2000) 114 A Crim R 381; see also R v FN [2005] QCA 113. (2000) 114 A Crim R 381 at 382. (2000) 114 A Crim R 381 at 384; see also R v Gilbert (2008) 186 A Crim R 153; [2008] QCA 178.

240 241

Duffy v The Queen (1996) 85 A Crim R 456. See Rogers v The Queen (1989) 44 A Crim R 301 at 307 per Malcolm CJ. This aspect of the judgment is discussed by Mildren J in R v Minor (1992) 79 NTR 1 at 12; cf R v Welsh (unreported, NSW SC, Hidden J, 28 August 1997): “much of the contact of Aboriginal people with the criminal law can be traced to their dispossession and the breakdown of their culture”.

242

See R Hood, Race and Sentencing (OUP, Oxford, 1992).

298 [11.240]

Considerations Underlying Sentencing

CH 11

non-Aboriginal and Torres Strait Islander prisoners.243 Ashworth suggests that the problem of race in sentencing must be examined at three levels. First, consideration must be given to the question of social policy in relation to racial discrimination generally. Ashworth suggests that while there is racial discrimination in society, it will continue to impact on criminal justice. Second, the issue must be considered at the level of justice administration – for example, judges and magistrates must be appropriately trained. Third, the level of criminal justice policy must be considered. Certain policies may have at least indirectly discriminatory impacts.244 Sentencing Aboriginal and Torres Strait Islander people has caused particular concern for the judiciary, especially in the wake of the Royal Commission into Aboriginal Deaths in Custody (RCADIC).245 The judge in R v Fernando found that the sentencing judge must “avoid any hint of racism, paternalism or collective guilt”.246 Earlier, in Neal v The Queen,247 Brennan J restated the principle that sentencing should not be discriminatory, but also noted (at 326): [I]n imposing sentences courts are bound to take into account, in accordance with those principles, all material facts including those facts which exist only by reason of the offender’s membership of an ethnic or other group.

The RCADIC found that the deliberate and systematic disempowerment of Aboriginal and Torres Strait Islander people had resulted in social devastation of communities, including alcohol and drug abuse, broken families and unemployment. The RCADIC found that these factors had in turn led to over-representation of Aboriginal and Torres Strait Islander people in the criminal justice system.248 The RCADIC recommended that custodial sentences should be a penalty of last resort.249 Despite these principles, the problems with funding and maintaining community service programs in remote Aboriginal and Torres Strait Islander 243

Australian Bureau of Statistics, Prisoners in Australia, 2015, A Snapshot: http://www.abs.gov.au/ ausstats/[email protected]/Lookup/by%20Subject/4517.0~2015~Main%20Features~Aboriginal%20and %20Torres%20Strait%20Islander%20prisoner%20characteristics~7. See also C Cunneeen et al Penal Culture and Hyperincarceration: The Revival of the Prison (Routledge, 2016) esp. at 93, 145.

244

For detailed discussion, see A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Cambridge, 2010) pp 241-245. Australian Government, Report on the Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra, 1991); see also H Douglas and Douglas, Indigenous Crime and Settler Law: White Sovereignty After Empire (Palgrave, 2012) especially ch. 5 and 7 a for a discussion of concerns raised in the 1950s. (1992) 76 A Crim R 58 at 63; see also M Flynn, “‘Not Aboriginal Enough’ for Particular Consideration When Sentencing” (2005) 6 Indigenous Law Bulletin 15. (1982) 149 CLR 305; followed in Munda v Western Australia [2013] HCA 38 and Bugmy v The Queen [2013] HCA 37. See for discussion T Anthony, “Indigenising Sentencing? Bugmy v the Queen” (2014) 35 (2) Sydney Law Review 451; T Anthony, L Bartels, A Hopkins, “Lessons Lost in Sentencing: Welding Individualised Justice to Indigenous Justice” (2015) 39(1) Melbourne University Law Review 47. Australian Government, Report on the Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra, 1991) Vol 1 p 20; see also the discussion of this point in the Supreme Court of Queensland, Equal Treatment Benchbook at [10.5]: http://www.courts.qld.gov.au/__data/ assets/pdf_file/0004/94054/s-etbb.pdf. Australian Government, Report on the Royal Commission into Aboriginal Deaths in Custody (AGPS, Canberra, 1991) Vol 5.

245

246 247

248

249

[11.240] 299

Criminal Process in Queensland

communities may make imprisonment more likely.250 Judges have frequently recognised the correlation between social devastation, aboriginality and offending. For example, in sentencing Munda, the High Court observed: “It is recognised that a background of profound disadvantage … may be taken into account in mitigation of drunken offending”.251 In R v Daniel,252 the Queensland Court of Appeal addressed the relationship between cultural considerations and sentence. Moynihan J restated (at 129-130) the need for a balanced approach to sentencing: The sentencing of any offender calls for an endeavour to balance competing considerations reflecting, for example the particular circumstances of the offence, the offender and the victim, and more general public considerations such as deterrence of the offender and others, rehabilitation and community standards … It may be appropriate to reflect particular considerations relevant to a particular community in sentencing.

In the same case, Fitzgerald P also commented that factors personal to the offender should be taken into account in sentencing and that such personal factors may have a special significance in relation to Aboriginal and Torres Strait Islander people.253

[11.250] Where the offender is an Aboriginal or Torres Strait Islander person, s 9(2)(p) of the PSA(Qld) specifically requires courts to have regard to any submissions made by a representative of a community justice group in the offender’s community: PSA(Qld), s 9(8).254 Submissions may relate to the offender’s relationship to his community, any cultural considerations and any considerations relating to available programs and services. The Queensland Court of Appeal has stressed that the sentencing court is not required to follow any directions in such submissions, but is required to consider such submissions.255 The Murri Court is a Queensland Magistrates Court which deals with sentencing Aboriginal and Torres Strait Islander offenders.256 The court takes into account cultural issues in a forum where Aboriginal and Torres Strait Islander people can

250

251

252 253

254 255 256

Carol Steiker suggests that there are, in effect, two criminal justice systems – one for privileged and another for indigent minorities: see C Steiker, “Tempering or Tampering? Mercy and the Administration of Criminal Justice” in A Sarat and N Hussain, Forgiveness, Mercy and Clemency (Stanford University Press, California, 2007) p 19. Munda v Western Australia [2013] HCA 38 at [133]; S Jeffries and C Bond, “Does Indigeneity Matter? Sentencing Indigenous Offenders in South Australia’s Higher Courts” (2009) 42(1) Australian and New Zealand Journal of Criminology 47. (1997) 94 A Crim R 96 per Moynihan J. R v Daniel (1997) 94 A Crim R 96 at 128 per Fitzgerald P (dissenting on outcome). Note that Fitzgerald P’s judgment in this case provides an excellent overview of how courts have approached sentencing Indigenous people. See R v. Clark [2008] QCA 51. R v Roberts [2002] QCA 105 per Byrne J. See Magistrates Courts Practice Direction No 2 2016 “Queensland Murri Court”: http://www .courts.qld.gov.au/__data/assets/pdf_file/0007/464173/mc-pd-2of2016.pdf.

300 [11.250]

Considerations Underlying Sentencing

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have input into the sentencing process. The Murri Court principles are in accordance with PSA(Qld), s 9(2)(p).257

Hardship [11.260] “Hardship” has long been recognised as a factor for consideration by judges when sentencing offenders.258 Hardship can be taken into account under PSA(Qld), s 9(2)(r) that allows the court to consider any other relevant circumstance. For example, in the case of R v Bernier,259 the offender’s severe depression, the fact that he did not speak English and the separation from family while in prison were taken into account in reducing the penalty.260 In York v The Queen,261 the sentencing judge took into account evidence that the offender had assisted authorities, which put her life at risk if she was imprisoned. The sentencing judge had reduced the penalty partly on this basis. The AttorneyGeneral ultimately appealed the sentence to the High Court, where Hayne J noted (at 478) that: The effect of serving a term of imprisonment, and the conditions under which an offender would serve that sentence, are relevant matters that may be taken into account by a sentencing judge – at least when that effect and those conditions are shown to be different from, and more onerous than, the effect on and conditions undergone by other prisoners.

The effect of the sentence on others tends not to be considered other than in exceptional circumstances.262 In R v Chong263 the Attorney General appealed against a sentence for wounding and breach of an intensive correction order. The sentencing judge had ordered Chong to undertake 15 months’ probation and a two and half years imprisonment with court ordered parole to begin on the day of sentence. The offender had a number of children, one of whom she was currently breastfeeding. In dismissing the appeal, Atkinson J, in the lead judgment, observed that the best interests of the children who are dependent on the offender fell within section 9(2)(r) of the PSA: “any other relevant circumstance”.264 After discussing a range of issues, she also observed: “All of these factors meant that the degree of hardship that imprisonment would involve for the young children of the respondent was exceptional and able to be taken account of as a ‘relevant

257

258 259 260 261 262

See also s 150 of the Youth Justice Act 1992 (Qld). For a discussion of the distinct aims and objectives of Indigenous courts, see E Marchetti and K Daly, “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” (2007) Sydney Law Review 415. See also Chapter 15, especially [15.100]. R G Fox, “When Justice Sheds a Tear: The Place of Mercy in Sentencing” (1999) 25(1) Monash University Law Review 1, 16. (1998) 102 A Crim R 44. Note that in some cases mental illness may not lead to mitigation of sentence because of community protection concerns: see Veen v The Queen (No 2) (1988) 164 CLR 465 at 476-477 (2005) 225 CLR 466.

263

T Walsh and H Douglas, “Sentencing Parents: The Consideration of Dependent Children” (2016) 37 Adelaide Law Review 135 and see, eg, R v Illin [2014] QCA 285. R v Chong; Ex parte Attorney-General (Queensland) [2008] QCA 22.

264

R v Chong; Ex parte Attorney-General (Queensland) [2008] QCA 22 [33]. [11.260] 301

Criminal Process in Queensland

circumstance’ in the sentence imposed.”265 In Burns,266 the offender was convicted of trafficking cocaine as part of a carefully planned operation. Burns submitted that a lengthy prison sentence would be particularly harsh because it would separate her from her three children. Anderson J noted that the interests of family and dependants were relevant in relation to the choice between custodial and non-custodial options.267 The impact of sentence on dependants was also discussed in R v Tilley.268 Tilley was convicted of official corruption offences; she had a long history of prior convictions and was the sole carer of a young child. In considering sentencing, de Jersey J commented (at 6): The public interest is promoted by preserving wherever possible a family unit … Rehabilitation and preservation of a stable family environment are both relevant and important to the process of sentencing. However … they are but two factors which are required to be balanced against the need for deterrence and retribution … [I]n the instant case the effect upon the respondent and her child of separation, distressing though it may be, cannot by itself displace the other factors … The public interest also requires that the family life and circumstances of ordinary parents and their children be safeguarded by the proper administration of justice through a police force free of corruption.

Domestic and family violence [11.270] In recent times, there has been an increased focus on domestic and family violence. Statistics have emphasised the severity of the problem. For example, domestic and family violence related homicides accounted for over one third of total homicide victims in Australia between 2013-2014 and victims were overwhelmingly women (75%).269 Studies have expressed concerns about sentencing in the context of domestic and family violence related offending and have suggested that offending behaviours are minimised.270 There have also been concerns that offenders’ criminal records have not shown which offences were committed in a domestic and family violence context, making it difficult to identify risk factors.271 Legislative changes introduced in 2015 in Queensland attempt to address these concerns. Where the offence is carried out in the context of domestic and family violence this is considered to be an aggravating factor (PSA(Qld), s 9 (10A)). Pursuant to PSA(Qld), s 12A the Court must ensure that the offence is recorded

265

R v Chong; Ex parte Attorney-General (Queensland) [2008] QCA 22 [42].

266 267 268

Burns v The Queen (1994) 71 A Crim R 450. (1994) 71 A Crim R 450 at 458 per Anderson J. (1991) 53 A Crim R 1.

269

Australian Bureau of Statistics, 4510.0 – Recorded Crime – Victims, Australia, 2015 http://www .abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4510.0~2015~Main%20Features~Intro duction~2; see also Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, http://dfvbenchbook.aija.org.au/ at ch 9.5. H Douglas, “The Criminal Law’s Response to Domestic Violence: What’s Going On?” (2008) 30 Sydney Law Review 439; C Bond and S Jeffries, “Similar Punishment? Comparing Sentencing Outcomes in Domestic and Non-Domestic Violence Cases” (2014) 54 British Journal of Criminology 849. H Douglas, “Not a Crime Like Any Other: Sentencing Breaches of Domestic Violence Protection Orders” (2007) 31 Criminal Law Journal 200.

270

271

302 [11.270]

Considerations Underlying Sentencing

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either as a conviction for a domestic violence offence or where no conviction is recorded that the offence is entered in the offender’s criminal history as a domestic violence offence. As noted, earlier denunciation272 and deterrence273 have been considered important aims in sentencing offences associated with domestic and family violence.

Extra-curial punishment [11.280] In some cases, an offender comes before the court in circumstances where he or she has already been punished for the offence in some way by an entity other than the sentencing court. This is referred to as “extra-curial punishment” and may be taken into account in sentencing.274 James J in R v Daetz275 concluded that “while it is the function of the courts to punish persons who have committed crimes, a sentencing court, in determining what sentence it should impose on an offender, can properly take into account that the offender has already suffered some serious loss or detriment as a result of having committed the offence.” Specifically, James J found that extra-curial punishment undertaken by a private citizen against the offender in response to the commission of the offence is one of the relevant material facts that should be taken into account in determining the appropriate sentence.276

PREFERENCE FOR COMMUNITY-BASED SENTENCES [11.290] Generally, a sentence of imprisonment should be a sentence of last resort and sentences that allow the offender to remain in their community should be preferred: PSA(Qld), s 9(2)(a). There are a number of reasons for this approach. The impact of imprisonment can be very serious, including loss of employment and disconnection from family and social support networks. Research also shows that the likelihood of reoffending increases once a person has been incarcerated.277 In Mackenzie’s research, many of the Queensland judges interviewed expressed concerns about ordering imprisonment. Their concerns included the fact that imprisonment is a very expensive penalty for the community, that the experience does not rehabilitate offenders and may, in fact, have the opposite effect, and that prison strips people of responsibility when offenders should actually be learning to take responsibility.278 It is notable that prisoner populations have increased in Queensland between 2014 and 2015 (up by 4%).279

272 273 274 275 276 277 278 279

Munda v Western Australia [2013] HCA 38 at [55]. R v Major [2011] QCA 210. M Chong, J Fellows and F Richards, “Sentencing the ‘Victimised Criminal’: Delineating the Uncertain Scope of Mitigatory Extra-Curial Punishment” (2013) 35 Sydney Law Review 379. [2003] NSWCCA 216 at [62]. R v Daetz [2003] NSWCCA 216 at [62]; see also R v Hannigan [2009] QCA 40. W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 53. G MacKenzie, How Judges Sentence (Federation Press, Sydney, 2005) pp 65-68. Australian Bureau of Statistics, Prisoners in Australia, 2015, A Snapshot: http://www.abs.gov.au/ ausstats/[email protected]/Lookup/by%20Subject/4517.0~2015~Main%20Features~Queensland~22. [11.290] 303

Criminal Process in Queensland

The PSA(Qld) sets out four exceptions to the principle that imprisonment is a last resort: 1.

when sentencing an offender for an offence involving the counselling or procuring, attempting or conspiring to use violence or an offence which resulted in physical harm: PSA(Qld), s 9(2A) and (3);

2.

when sentencing sexual offences committed in relation to children under 16 years: PSA(Qld), s 9(4), (5) and (6);

3.

when sentencing an offender charged with certain specified offences associated with computer games and images: PSA(Qld), s 9(6A) and (7) and

4.

in sentencing an offender under part 9D, division 2 (serious organised crime circumstance of aggravation).

These first three exceptions are discussed at [11.300]; [11.310] and [11.320]. The fourth exception is discussed in the next chapter ([12.250].

Violent offences [11.300] There has been some discussion in the case law about what constitutes “violence” for the purposes of PSA(Qld), s 9(2A) and (3). In R v Breeze,280 the court noted (at [17]) that: The expression “violence” has now acquired what might be called resonances which have perhaps broadened its meaning. In some contexts it seems to be used as descriptive of any act, whether violent in the ordinary sense or not, to which the user of the word strongly objects.

In R v Breeze,281 in the course of a robbery, violence was threatened to the victim. This was therefore considered to be an offence involving violence for the purpose of PSA(Qld), s 9(3).282 Once an offence has been identified as subject to s 9(2A) of the PSA(Qld), the provisions in s 9(3) must also be applied. Section 9(3) requires that the court must have primary regard to a range of matters, including community protection and any relevant matters about the safety of the community. See also Part 9A PSA(Qld) in relation to convictions of Serious Violent Offenders [12.230].

Sexual offences in Queensland [11.310] Pursuant to PSA(Qld), s 9(4) “in sentencing an offender charged with any offence of a sexual nature committed in relation to a child under 16 years,” the principles in PSA(Qld), s 9(2)(a) do not apply and “the offender must serve an actual term of imprisonment unless there are exceptional circumstances”.283

280 281 282 283

[1999] QCA 303 per Pincus, Davies JJA and Demack J. [1999] QCA 303. R v Breeze [1999] QCA 303 at [22] per Pincus, Davies JJA and Demack J. For a discussion of “exceptional circumstances” in this context see R v BCX [2015] QCA 188 per Burns J [29]-[36].

304 [11.300]

Considerations Underlying Sentencing

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Under the previous iteration of this provision, the question as to which offences should be identified as sexual offences committed in relation to children less than 16 years has been considered in the case law.284 For example, in R v McGrath,285 the offender was charged with offences under s 218A of the QCC: “us[ing] electronic communication with intent to procure a person under the age of 16, or a person the adult believes is under the age of 16, to engage in a sexual act”. McGrath used an internet chat room to communicate with two people he believed were 13-year-old girls. In reality, they were police officers. Defence counsel submitted that since the offences were not ultimately committed against children under 16 years, the offender was not subject to PSA(QLd), s 9(4) (now s 9). However, the court found that the offence was in fact subject to PSA(Qld), s 9(4), Mackenzie J noting (at [36]) that: The essence of the offence is using the internet with one of the two intentions, and what is done by the offender to demonstrate his intention is done, so far as he is subjectively concerned, in relation to a child under 16, the offence is properly described as one committed in relation to a child under 16.

Pursuant to PSA s9(5) in determining whether there are “exceptional circumstances a court ‘may have regard to the closeness in age between the offender and the child’”. Once the offence is identified pursuant to s 9(4) of the PSA(Qld), the considerations set out in PSA(Qld), s 9(6) must be applied. However, if there is no specific child involved, clearly the effects on a particular child (pursuant to PSA(Qld), s 9(6)(a), (b), (c) and (d)) cannot have any operation.)286 See also Part 9B of the PSA(Qld) in relation to “Repeat Serious Child Sex Offences” [12.240] and Part 9D of the PSA(Qld) “Serious and Organised Crime” [12.250].

Specified offences associated with computer games and images in Queensland [11.320] The PSA(Qld), ss 9(6A) and (7) make it clear that a number of offences related to child abuse publications, including photographs, computer-generated images and games, now fall outside the principle of imprisonment as a last resort: PSA(Qld), s 9(2)(a).287 The possession of child exploitation material (QCC, s 228D) is often charged and is now clearly captured in PSA(Qld), s 9(6A).288 Once the offence is identified pursuant to PSA(Qld), s 9(6A), the considerations set out in PSA(Qld), s 9(7) must be applied.

284

R v Finch; Ex parte Attorney-General (Qld) [2006] QCA 60.

285

[2006] 2 Qd R 58; [2005] QCA 463 per MacKenzie J (de Jersey CJ and Williams JA concurring). R v McGrath [2006] 2 Qd R 58; [2005] QCA 463 at [39] per Mackenzie J (de Jersey CJ and Williams JA concurring).

286 287

See the list of relevant offences for this Part: PSA(Qld), s 9(6A).

288

R v Carlton [2009] QCA 241; and R v Pham [2009] QCA 242. [11.320] 305

CHAPTER 12 Punishment and Penalty [12.10] [12.20] [12.40] [12.60]

[12.100]

[12.130]

[12.170]

[12.190]

[12.210]

[12.260]

[12.280] [12.300] [12.310]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 Hierarchy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308 [12.30] Concerns about the sentencing hierarchy . . . . . . . . . . . . . . . . 309 Recording a Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 310 Releases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 [12.60] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 312 [12.70] Orders to release certain offenders . . . . . . . . . . . . . . . . . . . . . . . 313 [12.80] Recognisances for property-related offences . . . . . . . . . . . . . . 314 [12.90] Release on entering into recognisance . . . . . . . . . . . . . . . . . . . 314 Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 [12.100] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314 [12.110] Fines in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316 Orders Served in the Community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 [12.130] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 318 [12.150] Probation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 320 [12.160] Community service orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 322 Intensive Orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 [12.170] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 323 [12.180] Intensive correction orders in Queensland . . . . . . . . . . . . . . . 324 Suspended Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 [12.190] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 325 [12.200] Order of suspended imprisonment in Queensland . . . . . . . 328 Imprisonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 [12.210] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 329 [12.220] Imprisonment in Queensland . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331 [12.230] Serious violent offenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 333 [12.240] Repeat serious child sex offenders . . . . . . . . . . . . . . . . . . . . . . . 335 [12.250] Serious and organised crime . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 335 Indefinite Sentences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 [12.260] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 337 [12.270] Indefinite sentences in Queensland . . . . . . . . . . . . . . . . . . . . . . 339 Sexual offenders and preventive detention . . . . . . . . . . . . . . . . . . . . . . . . . 341 Risk Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 346 Other Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 [12.310] Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348 [12.320] Orders for restitution and compensation . . . . . . . . . . . . . . . . . 349 [12.330] Non-contact orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349 [12.340] Control orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 350 [12.350] Domestic violence orders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 351 [12.360] Serious drug offence certificates . . . . . . . . . . . . . . . . . . . . . . . . . 351

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OVERVIEW [12.10] This chapter discusses the penalties currently available to the court when sentencing offenders. Penalty options for adult State offenders are set out in the Penalties and Sentences Act 1992 (Qld).1 A range of penalties is available, although as Garland points out: [T]here is a whole range of possible punishments (tortures, maiming, stonings, public whippings, etc) which are simply ruled out as “unthinkable” because they strike us as impossibly cruel and “barbaric” – as wholly out of keeping with sensibilities of modern, civilized human beings.2

However, what is socially tolerable or in keeping with modern sensibilities is not static. For example, the general acceptance of options such as indefinite detention and preventive detention is relatively new,3 while the death penalty in Australia has now become unacceptable.4 In this chapter we discuss the view that in Queensland a hierarchy of penalties apply. The relevance of recording a conviction in the sentencing process is then explored, together with an overview of the penalty options available in Queensland. Then follows some discussion of the preventive detention regimes and the assessment of risk. The chapter concludes with a brief discussion of compensation and reparation orders and non-contact or restraining orders in the sentencing process.

HIERARCHY [12.20] The PSA(Qld) does not explicitly set out a hierarchy of sentencing options; however, a hierarchy is inferred from the structure of the legislation.5 The range of options is set out in the PSA(Qld) in the following order: • Orders to release certain offenders: PSA(Qld), Pt 3 Div 1. • Release on entering into a recognisance: PSA(Qld), Pt 3 Div 3. • Fine: PSA(Qld), Pt 4. • Intermediate orders: probation orders and community service orders: PSA(Qld), Pt 5. • Intensive correction orders: PSA(Qld), Pt 6. • Order of suspended imprisonment: PSA(Qld), Pt 8.

1

2 3 4

5

Note that while those who are charged with Commonwealth offences will be dealt with by State courts and the same penalty options will usually be available, there are some differences in approach especially with respect to consistency between States: see generally Australian Law Reform Commission, Same Time, Same Crime: Sentencing of Federal Offenders, Report No 103 (2006): http://www.austlii.edu.au/au/other/alrc/publications/repor ts/103. D Garland, Punishment and Modern Society: A Study in Social Theory (Clarendon, Oxford, 1990) p 214. Indefinite detention was introduced in 1992 in Queensland; preventive detention was introduced in Queensland in 2003. The death penalty was abolished in Queensland in 1922. The last execution in Queensland took place in 1913. See J Lennan and G Williams, “The Death Penalty in Australian Law” (2012) 34 Sydney Law Review 659, 669-670. G Mackenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 64.

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• Imprisonment: PSA(Qld), Pt 9. • Indefinite sentences: PSA(Qld), Pt 10. The PSA(Qld) also allows for sentencing courts to order restitution and compensation (PSA(Qld), Pt 3 Div 4) and non-contact orders (PSA(Qld), Pt 3A) at the time of sentence. Most offence provisions state a maximum fine or a maximum period of imprisonment. In most cases, the range of penalties listed above will be available for consideration by the sentencing court and the appropriate sentence will depend on the circumstances of the offence and the offender, together with a consideration of the matters discussed in Chapter 11.6

Concerns about the sentencing hierarchy [12.30] The sentencing hierarchy (along with other matters discussed in Chapter 11) limits discretion in the imposition of sentence. One drawback of a hierarchy is that it tends to foster a “one-size fits all” approach with respect to reoffending. Generally, judges and magistrates move up the sentencing hierarchy with each subsequent offence of the same type. Although this may be a logical approach in many contexts of offending, sometimes it will not be appropriate. For example, it may not be ideal in the context of domestic violence offending where, for instance, fines may be inappropriate even where the perpetrator is at the beginning of their offending history.7 A strict approach to a sentencing hierarchy may be inappropriate in other circumstances depending on the particular defendant’s resources and circumstances and also the resources and circumstances of the community in which the offender lives – for example, in some situations supervision-oriented penalties may be difficult to resource.8 This may be especially the case in remote areas that sometimes lack suitable programs and supervision options. Further, it may be better for some defendants to serve a gaol sentence rather than a penalty that may put their lifestyle under pressure in a situation where they are unlikely to be able to fulfil the requirements of the penalty. In the case of a person who has to travel a long distance to report to police officers to fulfil supervision requirements, an alternative penalty may be more appropriate. The use of “diversion” at the pre-trial, the pre-sentence or the pre-release stage can add flexibility to the formal sentencing options. Diversion involves screening for offenders who may have the potential to reform or engage in treatment programs and avoid further engagement with the criminal process.9 The current structure of the PSA(Qld) is generally flexible enough to accommodate such considerations.

6 7 8 9

See also the discussion in Chapter 11 at [11.90] in relation to mandatory and minimum penalties. See H Douglas, “Not a Crime Like any Other: Sentencing Breaches of Domestic Violence Protection Orders” (2007) 31 Criminal Law Journal 220. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford, Melbourne, 2014) pp 229-230. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford, Melbourne, 2014) pp 229-230. [12.30] 309

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RECORDING A CONVICTION [12.40] A particularly important consideration for the judge or magistrate at the sentencing stage is whether or not to formally record a conviction (PSA(Qld), s 12).10 Although the police will retain a record of all convictions whether they are formally recorded or not in Queensland, when a criminal record is made available for other purposes, unrecorded convictions will not appear on the record. For example, when an employer requests a criminal history of a potential employee from the police, unrecorded convictions will not be listed on the history. However, if a person seeks to obtain a “Blue Card”11 in order to work with children and young people, they will be required to disclose recorded and unrecorded convictions or those convictions subject to a spent conviction order. However, if the convictions are unrecorded, this will operate in favour of the person hoping to work with children.12 In some circumstances, recorded convictions may have ramifications for those hoping to travel or work overseas. Clearly, the recording of a conviction can have important ramifications for a person’s way of life.13 The decision not to record a conviction may also have implications for offenders where they come before the court on a similar offence at a later date. Effectively, this approach adds a further sentencing option and thus a further level to the sentencing hierarchy. Generally, a conviction is less likely to be recorded where the crime is trivial,14 victimless, where there is only minor criminal history or where there are no prior convictions.15 In Walden v Hensler, Brennan J observed that triviality cannot be determined by reference to the maximum penalties applicable for the offence.16 In the same case, Dawson J observed (at 595 [16]) that: [T]riviality must be ascertained by reference to the conduct which constitutes the offence for which the offender is liable to be convicted and to the actual circumstances in which the offence is committed … [I]n determining triviality [it] is clearly the offence committed by the offender and not the offence in the abstract.

In the Queensland case of R v Entsch,17 possession of a very small amount of cannabis was found to be a trivial offence and the matter was dismissed. In Entsch, Wanstall CJ observed that the court should have regard to the trivial nature of the offence and the character of the accused.18 Since this case was decided,

10 11 12 13

14 15

See Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 3 for the definition of “conviction”. See Queensland Family and Child Commission: http://www.qfcc.qld.gov.au/ and https://ww w.bluecard.qld.gov.au/disqualification.html. See also Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) s 5. See also R v Lister [2009] QCA 368. For a discussion of the consideration of whether to record a conviction and the impact on employment see: R Bradfield, “Sentences Without Conviction: Protecting an Offender from Unwarranted Discrimination in Employment” (2015) 41(1) Monash University Law Review 40.

16 17

See PSA(Qld), s 12(2)(a). R v Briese; Ex parte Attorney-General [1998] 1 Qd R 487; (1997) 92 A Crim R 75; see R v Rogers (2013) 231 A Crim R 290 for a recent example of the court applying these factors. (1987) 163 CLR 561 at 576-577 [25] per Brennan J. [1979] Qd R 4.

18

R v Entsch [1979] Qd R 4 at 7.

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Queensland19 has developed alternative sentencing approaches for responding to minor drug matters. In R v Briese; Ex parte Attorney-General,20 the court recognised that the decision not to record a conviction effectively gives the accused the right to conceal what has happened in a criminal court.21 Such a decision, therefore, has public ramifications. In this case, the court noted that it was appropriate, when deciding whether to record a conviction, to bear in mind the public harm. It was also noted that the more serious the offence, the greater the public interest in knowing about it. In relation to certain types of offending, courts have found that there is a public right to know about the matter.22 For example, the courts have stated that, unless there are exceptional circumstances,23 a conviction should be recorded in the case of offences of a sexual nature involving children.24 In R v Mirza,25 the offender pleaded guilty to attempted indecent treatment of a child under 12 years and was sentenced to 12 months’ probation without a conviction being recorded. In refusing the Attorney-General’s appeal against sentence, McMurdo P listed a number of factors requiring consideration in relation to recording a conviction in the particular case, including: absence of pre-meditation, any actual physical indecent contact with or evidence of significant impact on the complainant; the guilty plea; his excellent history of solid employment and voluntary community service; his promising rehabilitative prospects; and the impact that recording a conviction would have on his economic or social wellbeing and on his chances of finding future employment.26

The decision in relation to recording a conviction can be the subject of appeal.27

[12.50] The sentencing judge or magistrate generally has a broad discretion in relation to whether to record a conviction, but pursuant to PSA(Qld), s 12, the judge or magistrate is required to take into account the nature of the offence, the character and age of the accused and the impact that recording a conviction will

19 20 21

22

23 24 25 26 27

PSA(Qld), Pt 3; recall also the police discretion to caution and release certain offenders: see the discussion in Chapter 2 at [2.290]. [1998] 1 Qd R 487; (1997) 92 A Crim R 75. See DHG v State of Queensland [2015] 2 Qd R 2011 where a conviction was not recorded, but Government web pages named the applicant and recorded details of his sentence, this was found to breach PSA(Qld), s 12. See R v KU; Ex parte A-G (Qld) [2008] QCA 154, at [214] (“recording of a conviction for the offence of rape is the irreducible minimum level of denunciation required…”). Also see R v DAU; Ex parte A-G (Qld) [2009] QCA 244 (where Holmes JA said R v KU was not authority that a recording of a conviction was appropriate in every case of rape); R v SBY [2013] QCA 50. R v SAT (2006) 170 A Crim R 156; [2006] QCA 70; R v Mirza; Ex parte A-G (Qld) [2008] QCA; R v McCann [2016] QCA 216. R v Gallagher; Ex parte Attorney-General [1999] 1 Qd R 200; (1997) 98 A Crim R 513; R v Rogers (2013) 231 A Crim R 290. R v Mirza; Ex parte A-G (Qld) [2008] QCA 23. R v Mirza; Ex parte A-G (Qld) [2008] QCA 23 at [17] per McMurdo P (Holmes JA and Fryberg J agreeing). R v Briese; Ex parte Attorney-General (1997) 92 A Crim R 75, esp at 75. [12.50] 311

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have on the offender’s social and economic wellbeing and chances of finding employment.28 However in relation to domestic violence offences see [12.350]. In R v Brown,29 the court found that none of these matters had predominance – they should be kept in balance and none should be overlooked. However, the court noted that in a particular case one factor might carry greater weight. In R v Briese; Ex parte Attorney-General,30 the court suggested that it may be appropriate to consider the following: • whether violence was used and, if so, to what extent; • whether there was exploitation or abuse of trust; • whether there was economic loss to victims; • the propensity or risk of reoffending; and • the seriousness of the offence. Certain sentencing options31 require the recording of a conviction. Depending on the circumstances, criminal convictions will not appear on a person’s criminal record after a certain period of time has elapsed. This is because the person is presumed to be rehabilitated.32 Note that in some circumstances criminal histories presented to Queensland courts retain old entries.33

RELEASES Background [12.60] In some circumstances, a court may decide to release an offender absolutely34 or to release an offender on certain conditions. This type of penalty is more likely to be considered in cases where the offence is considered to be trivial (see [12.40]). In a study in the United Kingdom in 1988, research showed that over half of the good behaviour bonds ordered (the common law equivalent of a release) were granted in theft cases where there was little or no loss of property

28

29 30 31 32 33 34

For a discussion of impact on employment prospects, see R v Ndizeye [2006] QCA 537; R v McCann [2016] QCA 216. Note the particular concerns for juvenile offenders: R v Cunningham [2014] 2 Qd R 285. R v Brown [1994] 2 Qd R 182. [1998] 1 Qd R 487; (1997) 92 A Crim R 75. For example, imprisonment (PSA(Qld), s 152), suspended imprisonment (PSA(Qld), s 143) and home detention orders: PSA(Qld), s 111. Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld); indictable offences committed 10 years ago; summary offences committed 5 years ago. See R v Stanley [2015] QSC 327 for discussion. See also Andrew West, “Revealing criminal histories” (2016) 36 Queensland Lawyer 12. According to Ashworth, absolute discharges occur in less than 1% of cases in the UK: see A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 320.

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and where the offences were often committed by offenders of fairly good character.35 Part 3 of the PSA(Qld) provides a range of alternative responses that can be applied to offences alone or in conjunction with other penalties. Although sentencing responses set out in this Part of the PSA(Qld) have been associated with trivial offences, they may also be useful in more serious matters, especially when applied in conjunction with another penalty – for example, in some circumstances, an order pursuant to Pt 3 of the PSA(Qld) may be usefully ordered along with a fine. Further, in certain circumstances, the court may release an offender absolutely or on condition that the offender is of good behaviour for a certain period of time. The offender may also be required to enter into a “recognisance”. The term “recognisance” comes from the Latin “acknowledgment”. In this context, it means that the person will be indebted to the court for an amount of money specified by the court and the debt will be extinguished if the offender remains of good behaviour until the completion of the order. The court may also require sureties.36

Orders to release certain offenders [12.70] Pursuant to s 19 of the PSA(Qld), the court may release the offender absolutely, with no further requirements. This option is sometimes referred to as “admonish and discharge”. Section 19 of the PSA(Qld) also provides that the court may release the offender on the condition that they enter into a recognisance to be of good behaviour and agree to appear before the court at any time they are called upon for sentence during a specified period (this type of sentence is referred to as a “good behaviour bond”). The period cannot be more than three years. In considering whether this response is appropriate, the court must have regard to similar matters to be considered in relation to whether to record a conviction: PSA(Qld), s 18 (see [12.50]). If an order is made under this provision, the court must not record a conviction: PSA(Qld), s 16. As long as the offender does not contravene the order, it will ultimately terminate when the specified period of time expires: PSA(Qld), s 21. Pursuant to ss 15B – 15F and 19(2A), (2B) of the PSA(Qld), the court has a further discretion to impose conditions requiring the offender to attend drug assessment and education sessions. If the court makes an order in this way it must not record a conviction. As with PSA(Qld), s 19 offences, this kind of penalty is often referred to as a “good behaviour bond”.37 If the offender contravenes the order – for example, by reoffending or failing to fulfil any required conditions – the court may require that the recognisance is forfeited or they may make another order as if the offender had not been released: PSA(Qld), s 20(1), (1A). In its effect,

35

36 37

D Moxon, Sentencing Practice in the Crown Court, Home Office Research Study 103 (London, 1988) pp 47-48, referred to in A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 321. The concept of “surety” here is similar to the concept in the Bail Act 1980: see the discussion in Chapter 4 at [4.70]. It may also be referred to as a “conditional discharge” or a “bind-over” order. [12.70] 313

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this penalty tends to operate as a suspended fine.38 If, however, the offender does not contravene the order, the order will ultimately terminate when the specified period of time expires: PSA(Qld), s 21.

Recognisances for property-related offences [12.80] When an offender is convicted of a property offence, and the court thinks it is appropriate to do so, the court may adjourn the sentence for a certain period of time (not longer than six months): PSA(Qld), ss 23–24. The offender will be required to enter into a recognisance (in an amount the court thinks is appropriate). Pursuant to this form of penalty, the court will usually require the offender to do certain things related to property within the specified time – for example, to restore property to, or compensate, the victim: PSA(Qld), s 25. If the court makes such an order, it must not record a conviction: PSA(Qld), s 22. If any conditions are not fulfilled by the required time, the court may sentence the offender as if the offender has not yet been sentenced, or require the forfeiture of the recognisance: PSA(Qld), s 27. As long as the requirements have been fulfilled by the offender, the recognisance terminates when the offender returns to court on the adjourned date: PSA(Qld), s 28.

Release on entering into recognisance [12.90] Whether or not it records a conviction, the court may release the offender on a recognisance pursuant to Div 3 of the PSA(Qld), ss 29-33A. This Division allows the court to order an offender convicted on indictment to serve a short period of imprisonment (not longer than one year) followed by release on entering into a recognisance in a specified amount. Alternatively, where the offender is convicted summarily, the court may release the offender on a recognisance (in an appropriate amount and with or without sureties)39 on the condition that the offender is of good behaviour for a period (not longer than one year). The recognisance will generally terminate at the end of the period set by the court. This penalty can be applied instead of another sentence with one exception – it cannot be applied if the court is of the opinion that probation is more appropriate: PSA(Qld), s 98.

FINES Background [12.100] A fine is an amount of money that is usually paid into state revenue40 as a punishment for an offence. The fine is the most common penalty imposed and it is imposed in a wide range of scenarios, including both summary and more 38 39 40

A. Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 322. The concept of “surety” here is similar to the concept in the Bail Act 1980: see the discussion in Chapter 4 at [4.70]. See Queensland Government, State Penalties Enforcement Registry (SPER): http://www.sp er.qld.gov.au. SPER collects the fines and is a division of the Office of State Revenue.

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serious offences.41 Wilson and others suggest that while fines are a good deterrent, they are a poor signifier of moral condemnation.42 Samuels asserts that fines should not be used where the aim of the penalty is to rehabilitate the offender or to protect the community.43 Fines are generally considered a cost-effective penalty which cause minimal disruption to the offender’s personal circumstances. However, as O’Malley44 has observed, while we might assume that the offender is punished because the offender pays the fine, there is no requirement that this should be the case. This means that friends, employers or family members45 may actually pay the fine. Fines are easy for courts to impose since they neither require the consent of the offender nor do they require any testing of the offender. Some studies also suggest that fines are followed by fewer reconvictions, but this may be because courts tend to impose fines on those with greater life stability.46 One of the disadvantages of fines, however, is that they can be difficult to collect. One United States study showed that about 20% of fines remain unpaid.47 Samuels has suggested that, as a method of encouraging timely payment, the offender should receive a discount for prompt payment and interest should accrue for late payment.48 Such an approach may encourage people to pay in a timely fashion but could also have inequitable results. Many people have served a period of imprisonment in lieu of paying a fine. Not only is this very expensive for the State but, on a practical level, it is also difficult to support due to lack of prison 41

42

43 44 45

46

47

48

In Australia in 2010-2011, 68% of adult male offenders and 69% of adult female offenders were ordered to pay fines: see R White and S Perrone, Crime, Criminality and Criminal Justice (2nd ed, Oxford University Press, South Melbourne, 2015) pp 493-494. See also A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 327. The situation is also similar in the US: see S Hillsman and J Greene, “The Use of Fines as an Intermediate Sanction” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992) p 124. See W Wilson, Central Issues in Criminal Theory (Hart Publishing, Oxford, 2002) p 74. See also S Hillsman and J Greene, “The Use of Fines as an Intermediate Sanction” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992) p 124. However, see R v Stephens [2006] QCA 123 at [7] where Jerrard JA accepted that fines “should be more than mere token and should contain a component of denunciation”. A Samuels, “The Fine” (1977) 41 Journal of Criminal Law 192 at 193; A Samuels, “The Fine: The Principles” [1970] Criminal Law Review 201. P O’Malley, “Fines, Risks and Damages: Money Sanctions and Justice in Control Societies” (2009) 21(3) Current Issues in Criminal Justice 365. Note there has been some discussion as to whether fines should be applied in cases involving domestic and family violence as the fine may be paid from the family finances or the victim of the offence may be coerced into paying the fine, see AIJA, National Domestic and Family Violence Bench Book, http://dfvbenchbook.aija.org.au/options/fines/. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 328. Indeed, some authors have suggested that stable individuals with good income flow are best suited to fines: see A Samuels, “The Fine” (1977) 41 Journal of Criminal Law 192; see also J Greene, “The Unit Fine: Monetary Sanctions Apportioned to Income” in A von Hirsch and A Ashworth, Principled Sentencing (Hart Publishing, Oxford, 1998) p 269. G Cole, “Monetary Sanctions: The Problem of Compliance” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992) p 143. A Samuels, “The Fine” (1977) 41 Journal of Criminal Law 192 at 196. [12.100] 315

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space and it may be extremely unfair for the offender. One particular study showed that large numbers of Indigenous women were being imprisoned for unpaid fines.49 Walsh’s research has demonstrated that marginalised people are more likely than other members of the community to be charged with public nuisance-type offences for which the penalty usually imposed is a fine.50 There is a real risk that for minor offences some offenders will ultimately serve a period of time in prison in order to pay off a fine. Increasingly, it is possible for infringement notices to be issued. For example, police officers often issue fines for less serious matters, for example traffic matters. These can be paid by post, at a police station or court without the need to appear before a magistrate or judge. This approach has the advantage of saving time and resources. It is also reported that there is a high level of compliance when fines are applied in this way.51 However, the risks and disadvantages of this approach are that it is too generalised since infringement notices issued in this way are not adjusted for an individual’s circumstances, the system may mask weak cases, and there is no independent scrutiny,52 even though in most cases the person who receives such a fine can demand that they be heard in court.53 In cases where a person is charged with a minor matter, such as an offence under the Summary Offences Act 2005 (Qld), the person will usually be given a notice to appear (see [2.270]). In these circumstances, the person’s solicitor may make a written submission to the prosecution. The prosecution may sometimes decide to withdraw the charge and issue an infringement notice. This will mean the person does not have to attend court. (In relation to charge negotiation see [7.20]; [7.30]).

Fines in Queensland [12.110] In Queensland, a fine may be imposed whether or not a conviction is recorded (PSA(Qld), s 44) and can also be imposed in addition to, or instead of, another sentence: PSA(Qld), s 45.54 In situations where different offences are founded on the same facts or are part of a series of events, a single fine may be

49 50

51

52

53 54

E Coupland, “Dramatic Rise in Imprisonment Rates for Indigenous Women” (2001) January Balance 8. T Walsh, “Won’t Pay or Can’t Pay? Exploring the Use of Fines as a Sentencing Alternative for Public Nuisance Type Offences in Queensland” (2005) 17(2) Current Issues in Criminal Justice 217 at 234. R Fox, “Criminal Sanctions at the Other End” (Paper presented at 3rd National Outlook Symposium on Crime in Australia: Mapping the Boundaries of Australia’s Criminal Justice System (1999, Canberra): http://www.aic.gov.au/events/aic%20upcoming%20events/1999/~/ media/conferences/outlook99/fox.ashx. R Fox, “Criminal Sanctions at the Other End” (Paper presented at 3rd National Outlook Symposium on Crime in Australia: Mapping the Boundaries of Australia’s Criminal Justice System (1999, Canberra). However, in many cases the cost of the hearing combined with the offender levy (PSA(Qld), s 179C) is likely to outweigh the cost of the fine (see [11.70]). A number of studies suggest that fines are often imposed along with other penalties: see, eg, S Hillsman and J Greene, “The Use of Fines as an Intermediate Sanction” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992) p 125.

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ordered for a group of offences: PSA(Qld), s 49. In deciding the amount of the fine, the court must take into account the maximum penalty available for the offence: PSA(Qld), s 45.55 Most offences set out the maximum fine available in relation to the particular offence. However, where this is not the case, the maximum fine payable by an individual is 165 penalty units: PSA(Qld), s 46. A penalty unit is adjustable according to inflation.56 The current value for a penalty unit is $110 for most matters: PSA(Qld), s 5. The sentencing judge or magistrate can order that the fine be paid in instalments (PSA(Qld), s 50) and that the defendant be allowed a certain amount of time to pay: PSA(Qld), s 51. In some circumstances, the sentencing judge may not allow time to pay the fine and will register the fine with the State Penalties Enforcement Registry (SPER)57 immediately: PSA(Qld), s 51. SPER will assist the offender to make arrangements to repay the fine. If the fine is not paid within the required time, it is automatically referred to SPER and this will attract an administrative fee. Fine option orders have been introduced into the PSA(Qld), which address the concerns associated with imprisonment for non-payment of fines. One of the stated purposes of the PSA(Qld) when it was introduced was that of “making provision so that offenders are not imprisoned for non-payment of fines without the opportunity of obtaining a fine option order”: PSA(Qld), s 3(f). At any time after the fine is ordered (or issued in the case of an infringement notice), the offender can apply for a fine option order: PSA(Qld), Pt 4 Div 2. Such an order allows the fine to be converted to community service work. Fine option orders can be granted where the court is satisfied that the offender cannot pay the fine, or that the offender’s family will suffer hardship if the fine is paid, or that the offender is suitable for community service work: PSA(Qld), s 57. Such orders can be quite onerous as currently up to five hours of work can be ordered for each penalty unit: PSA(Qld), s 69. Fine option orders account for a significant amount of the workload of Community Corrections in Queensland.58 Ultimately, if fines are not paid (or community service work is not completed in lieu of the fine), a range of responses is available, including seizure of property, garnishing earnings, direct debits from social security accounts and, as a last resort, arrest and imprisonment.59 In Queensland, the State Penalties Enforcement Registry (SPER)60 55 56

57 58

59

60

For a discussion about the imposition of a maximum penalty, see Scolaro v Armour (1991) 56 A Crim R 447. The approach is followed in a number of jurisdictions around the world: see A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) pp 330331. See Queensland Government, State Penalties Enforcement Registry: http://www.sper.qld.g ov.au. Australian Bureau of Statistics reports that fine option orders accounted for 1038 out of the 3332 reparation orders (31%) in 2015: http://www.abs.gov.au/AUSSTATS/[email protected]/DetailsPa ge/4512.0June%20Quarter%202016?OpenDocument. See generally, State Penalties Enforcement Act 1999 (Qld), which sets out the various alternatives; see especially Div 7A, which introduced vehicle immobilisation (wheel clamping) in 2009. See also Queensland Government, State Penalties Enforcement Registry: http ://www.sper.qld.gov.au. With respect to the calculation of periods of imprisonment in lieu of payment of fines, see PSA(Qld), s 82. See https://sper.qld.gov.au, it also collects the offender levy, and money owed on other court orders. [12.110] 317

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is responsible for the collection of fines. For the 2015-2016 financial year SPER collected $297.7 million which was paid into State revenue.61

[12.120] In deciding on the fine amount, the court must, as far as practicable, take into account the financial circumstances of the offender62 and the burden of the fine on the offender: PSA(Qld), s 48.63 However the offender levy cannot be considered in this context (PSA(Qld, s 179C) and see [11.60]. Consideration of the financial circumstances of the offender and their capacity to pay a fine extends beyond current income and includes an analysis of savings, assets and financial obligations.64 This ensures that substantive justice and equal impact are also taken into account in relation to penalty.65 Notably Ashworth has commented that having regards to the means of the offender has been blurred as a practice for three reasons: (1) the old rule that fines should not be increased for the rich; (2) the difficulties in obtaining accurate information about an offender’s financial situation; and (3) courts’ reluctance to impose fines that appear derisory to them and to newspaper readers.66 It has been observed that the size of the fine relative to the financial circumstances of the offender will impact on its deterrent effect. Thus, an analysis of the possible effect of the deterrent is relevant to the consideration of the purpose of the sentence.67 As with other sentences, it is possible to appeal against the imposition of a fine, or in relation to the amount of the fine.68 While it is for the offender to put material before the court relating to financial circumstances, courts have been willing to consider a reassessment of the amount of the fine on appeal when this has not occurred.69

ORDERS SERVED IN THE COMMUNITY Background [12.130] Probation orders require the offender to enter into a bond for a specific period of time. During the period of the probation order, the offender will be required to report to an authorised officer, they must not commit another offence, and must take part in counselling and programs as directed. Community service 61

67 68

Queensland Government, State Penalties Enforcement Registry, Debts registered with SPER as at 30 June 2016: https://sper.qld.gov.au/about-us/statistics/statistics-1606.php. Indeed, as Walsh argues, imposing a fine on a person who does not have the capacity to pay fails to comply with the goals outlined in s 3(f) of the PSA(Qld): see T Walsh, “Won’t Pay or Can’t Pay? Exploring the Use of Fines as a Sentencing Alternative for Public Nuisance Type Offences in Queensland” (2005) 17(2) Current Issues in Criminal Justice 217. For a discussion of the application of these principles, see R v Meid [2006] QCA 124. See Walker v Maroney [2015] QDC 87, [24]. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 329. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 329. R v Stephens [2006] QCA 123 at [11] per Jerrard J. See, eg, R v Prentice [2003] QCA 34.

69

R v Cheshire (1995) 76 A Crim R 261 at 270; R v Meid [2006] QCA 124.

62

63 64 65 66

318 [12.120]

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orders (CSOs) require the offender to carry out unpaid work for a specific number of hours. Petersilia et al note that these types of penalties were significantly expanded in the United States in the 1980s as alternatives to prison,70 and a similar expansion has occurred in Australia. Petersilia et al suggest that the purposes of the intermediate types of sanctions are to:71 • save taxpayers money (intermediate sanctions are much cheaper than incarceration); • specifically and generally deter criminal offending; • protect the community by exerting significant control over offender behaviour; and • rehabilitate offenders by ordering treatment and counselling programs (thus recognising the failure of prisons to rehabilitate).72 Some research has shown that the availability of these sentencing alternatives has not significantly displaced incarceration, despite the original intentions.73 In Australia, during the June quarter 2016, approximately 10% of those under corrective services supervision were placed on community service orders and approximately 38% were sentenced to probation.74 The hours of work ordered on a CSO are not correlated to income lost as a result of the hours worked or to the level of a fine that may have been imposed as an alternative in the circumstances. In the case of Nieto v Mill,75 the offender was found guilty of two counts of theft. On the first count he received a fine of $100, and on the second count, he was ordered to serve 80 hours of community service work. He appealed on the basis that the CSO was excessive, arguing that if the hours of work ordered were calculated at $20 per hour (based on his normal wage), this would result in a comparable penalty of $1,600. The offender argued that, compared to the fine, this penalty was excessive. This argument did not succeed. Leggo J found (at 37) that CSOs are a substantial punitive measure requiring offenders to incur a significant reduction of their personal liberty each week without the community bearing the financial costs associated with imprisonment, and without the offender experiencing the complete disruption of social, financial and employment obligations that results from imprisonment. 70

J Petersilia, J Byrne and A Lurigio, “Introduction: The Emergence of Intermediate Sanctions” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992) pp ix-x.

71

J Petersilia, J Byrne and A Lurigio, “Introduction: The Emergence of Intermediate Sanctions” in J Byrne, A Lurigio and J Petersilia (eds), Smart Sentencing: The Emergence of Intermediate Sanctions (Sage Publications, Newbury Park, 1992); see also New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996) at [9.1]. See also A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 438. J Austin and B Krisberg, “The Unmet Promise of Alternatives to Incarceration” (1982) 28 Crime and Delinquency 374; see also New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996) at [9.28]. Australian Bureau of Statistics, Corrective services, Australia, June Quarter 201, Issue 4512.0: http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4512.0Main+Features1June%20Quarte r%202016?OpenDocument. See also R White and S Perrone, Crime, Criminality and Criminal Justice (2nd ed, Oxford University Press, South Melbourne, 2015) p 574. (1991) 54 A Crim R 35.

72 73

74

75

[12.130] 319

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Leggo J found that the element of punishment inherent in the CSO scheme is derived from the loss of the defendant’s leisure time – rather than the nature of the task which they are being required to perform. He found that it was not valid to compare different amounts of fines with different numbers of hours imposed on CSOs in different cases. Some disadvantages and risks may be associated with these kinds of penalties.76 For example, such penalties potentially widen the net of penal control, increasing the surveillance of civilian life.77 Thus, instead of reducing the number of people under State supervision in custody, such penalties have in fact operated to increase the number of people in the community who are under State supervision. Often those who previously may have been placed on bonds or ordered to pay fines now have orders requiring supervision.78 Risks may also be associated with “stacking” penalties – that is, imposing more than one penalty at a time so that the overall penalty will in fact be more severe for individual offenders.79 One of the potential problems with respect to orders to perform unpaid work is that, as with imprisonment, offenders have the opportunity to mix with other offenders, thus making it more difficult to break with offending behaviour.

[12.140] In Queensland, intermediate sanctions include probation and community service orders (CSOs). There is scope in the Queensland intermediate sentences provisions for inclusion of specific conditions related to treatment and counselling, which may assist in the rehabilitation of offenders. In situations where different offences are founded on the same facts, or are part of a series of events, a single probation order or CSO may be ordered for a group of offences: PSA(Qld), ss 97 and 107. Intermediate orders can be revoked or amended by application: PSA(Qld), s 122. If the order is revoked, the offender may be re-sentenced: PSA(Qld), s 121. It is also an offence to contravene an intermediate order and, if convicted, the magistrate has a range of options: PSA(Qld), ss 123–125.

Probation [12.150] There are two forms of probation order available in Queensland: PSA(Qld), s 92: (i)

the offender may be released under the supervision of a corrective services officer; or

76 77

New South Wales Law Reform Commission, Sentencing, Discussion Paper 33 (1996) at [9.4]. See, eg, N Morris and Michael Tonry, Between Prison and Probation (OUP, Oxford, 1990) p 225. The increased focus on civilian supervision is compatible with what Garland argues is an “all-pervasive managerialism that affects every aspect of criminal justice”: see D Garland, The Culture of Control: Crime and Social Order in Contemporary Society (OUP, Oxford, 2002) p 19. See D Weatherburn and R Bray, “Alternative Sanctions, Prison Costs and Prison Overcrowding” (1992) 16 Criminal Law Journal 20 at 27-28; see also R White and S Perrone, Crime, Criminality and Criminal Justice (2nd ed, Oxford University Press, South Melbourne, 2015) p 573, citing C Cunneen, E Baldry, D Brown, M Brown, M Schwartz and A Steel, Hyperincarceration and Penal Culture: The Revival of the Prison (Routledge, Surry, 2013). A Ashworth, A von Hirsch, A Bottoms and M Wasik, “Bespoke Tailoring Won’t Suit Community Sentences” (1995) 145 New Law Journal 970.

78

79

320 [12.140]

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(ii)

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the offender is sentenced to a period of imprisonment of no longer than one year, to be released under the supervision of a corrective services officer at the end of the term of imprisonment.80

When probation is ordered in the first situation, the period of probation may be for a period of not less than six months and not more than three years: PSA(Qld), s 92. If probation is ordered to commence at the completion of a prison sentence, probation may be for a period of not less that nine months and not more than three years: PSA(Qld), s 92. Probation can be ordered regardless of whether the court has recorded a conviction (PSA(Qld), s 90); however, the offence must be punishable by imprisonment: PSA(Qld), s 91. This requirement is not particularly significant as there are now many summary offences that have a maximum period of imprisonment available.81 The offender must also consent to being placed on probation and also to the conditions of the order: PSA(Qld), s 96.82 Pursuant to s 93 of the PSA(Qld), the probation order must contain a number of conditions, including: • not committing an offence while on probation; • reporting to correctional services officers as required; and • attending counselling and other programs as required. At the judge or magistrate’s discretion, the probation order may also contain a number of other conditions, such as submitting to treatment: PSA(Qld), s 94. The judge or magistrate must also explain the probation order to the offender: PSA(Qld), s 95.83 The relationship between probation and other penalties has been the subject of some discussion in the caselaw. In the case of R v Hood,84 Jerrard J noted (at 65) that: • Concurrent sentences of up to 12 actual months of imprisonment can be imposed at the same time as orders for immediate probation made on other counts.85 • A sentence of up to 12 months served as an intensive correction order cannot be made concurrent with a probation order of any length.86

80

See also PSA(Qld), s 92(5), which states that the term of imprisonment referred to in PSA(Qld), s 92(1)(b)(i) must not be suspended.

81

See Summary Offences Act 2005 (Qld): eg, a person can be imprisoned for a conviction of begging (s 8) or for wilful exposure (s 9). R v Marsden [2003] QCA 473. See R v Clarke [2016] QCA 173 where the offender committed further offences while on probation, the offender’s compliance with the probation order was considered. [2005] 2 Qd R 54. Sysel v Dinon [2003] 1 Qd R 212.

82 83 84 85 86

See PSA(Qld), s 112; R v M; Ex parte Attorney-General [2000] 2 Qd R 543. However, there appears to be a different position for juvenile offenders: see R v M; Ex parte Attorney-General [2000] 2 Qd R 543; [1999] QCA 442. [12.150] 321

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• Orders for a suspended sentence (of any length) cannot be made concurrently with orders for a sentence of probation for either that same offence (PSA(Qld), s 92(5)) or for any other offences.87 In R v Hood,88 Jerrard J noted that it was irrational for the court to be prohibited from making concurrent orders for suspended sentences and probation orders for different offences and yet be permitted to order concurrent terms of up to one year of actual imprisonment and probation for different offences.89 Thus, he held (at 67) that: • a suspended sentence of any length can properly be imposed at the same time as a sentence of probation for other offences; and • a sentence of imprisonment suspended after serving 12 months can be imposed concurrently with probation for other offences with or without imprisonment for those other offences before release on probation. It was suggested by Jerrard J in Hood that the decision as to whether two penalties can be applied concurrently should be based on whether they are inconsistent with each other and whether there will be any difficulty in compliance.90 This is a practical approach, however it is not clear that the rules set out here will always allow the most practical approach.

Community service orders [12.160] A community service order (CSO) requires the offender to perform unpaid community service for a specified number of hours: PSA(Qld), s 102. As with probation orders, CSOs can be ordered regardless of whether the court has recorded a conviction: PSA(Qld), s 100. The offence must be punishable by imprisonment and the court must be satisfied that the offender is a suitable person to perform community service under the order: PSA(Qld), s 101. Further, similar to probation, the offender must consent to being placed on a community service order and the conditions of the order: PSA(Qld), s 106.91 According to PSA(Qld), s 103(1), the CSO must contain certain requirements, including that the offender: • not commit offences during the period of the order; • regularly reports to an authorised officer; and • undertakes a specific number of hours of community service. The number of hours of community service ordered to be performed must not be less than 40 or more than 240, and they must be carried out within a year of the order being made: PSA(Qld), s 103(2). The judge or magistrate must also explain the community service order to the offender: PSA(Qld), s 105. A CSO cannot be combined with an intensive correction order as these penalties would be inconsistent with each other.92 It is, however, possible to combine a CSO with a suspended sentence so long as there is no inconsistency 87 88 89 90

R v Sysel [2000] QCA 233; R v Hughes [2000] QCA 16. [2005] 2 Qd R 54. R v Hood [2005] 2 Qd R 54 at 67. R v Hood [2005] 2 Qd R 54 at 67.

91

R v Marsden [2003] QCA 473.

92

R v Greig [2000] QCA 276.

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between them.93 A probation order can be imposed at the same time as a community service order.94

INTENSIVE ORDERS Background [12.170] Since 1988, intensive orders have been available in most Australian States.95 Throughout Australia, intensive orders sometimes have the effect of “detaining” offenders in the community and, more specifically, in their homes rather than in prison. They are sometimes referred to as “home detention orders”.96 In a New South Wales study, it was found that intensive correction orders were most commonly used for driving offences, acts intended to cause injury and offences against justice procedures.97 The risks of “net-widening” have also been discussed in research about home detention. In particular, there is a concern that surveillance will be everywhere for certain offenders – even at home. In addition, offenders who would not previously have received a period of imprisonment may be ordered to serve home detention.98 However, the magnitude of this problem may not be particularly large given that only 988 offenders were on home detention type orders orders during the June quarter of 2016.99 There are additional concerns relating to the potential unfairness of this penalty, depending on class and possibly gender. George notes that those without

93 94

95

96

97 98 99

R v Vincent; Ex parte Attorney-General [2001] 2 Qd R 327. R v Mathers [2008] QCA 69: note the discussion about the response of the court in circumstances where a CSO was breached as a result of a failure to attend for work but the probation order was not breached. Mathers had complied satisfactorily with the probation order. A George, “Women and Home Detention: Home is Where the Prison Is” (2006) 18 Current Issues in Criminal Justice 79. Intensive correction orders were introduced in Queensland in 1992: see discussion in G Mackenzie, How Judges Sentence (Federation Press, Sydney, 2005) p 65. Note that the offender may be directed by an authorised corrective services officer to reside at a “community residential facility” for periods of not longer than seven days during the duration of the ICO: PSA(Qld), s 114(f). For examples in Victoria and New South Wales, see the overview in S Parker and M Bagaric, “Overview of Corrections and Sentencing (Home Detention) Bill” (2001) 1 Criminal Law News Victoria 11 at 12. See also M Henderson, Benchmarking Study of Home Detention Programs in Australia and New Zealand (National Corrections Advisory Group, Melbourne, 2006): http://assets.justice.vic.gov.au/corrections/r esources/41e43b80-5b93-4d04-a055-5529ac690cd5/benchmarking_study.pdf. Note also that Queensland operated a system of post-release home detention between 1987-2006; this was abolished with the introduction of the Corrective Services Act 2006 (Qld). Clare Ringland, “Intensive correction orders versus other penalties: Offender profiles” Crime and Justice Bulletin, No. 162, NSW Bureau of Crime Statistics, 2013. K Mitchell, “Home Detention” (1999) New Zealand Law Journal 363 at 365. Australian Bureau of Statistics, Corrective services, Australia, June Quarter 2016, Issue 4512.0: http://www.abs.gov.au/AUSSTATS/[email protected]/Lookup/4512.0Main+Features1June%20Quarte r%202016?OpenDocument. See also R White and S Perrone, Crime, Criminality and Criminal Justice (2nd ed, Oxford University Press, South Melbourne, 2015) p 574. [12.170] 323

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stable housing will be unlikely to be eligible for this kind of penalty, some who are placed on an intensive order may be constantly “trapped” at home with young children, and others will have a large and comfortable house to themselves.100 Although one of the potential advantages of this type of penalty is maintaining family contact, some research reports that many families feel the strain of constant surveillance.101

Intensive correction orders in Queensland [12.180] In order to make an intensive correction order (ICO), the court must record a conviction: PSA(Qld), s 111.102 Pursuant to the PSA(Qld), if a court sentences a person to serve a period of imprisonment of one year or less, the court may order an ICO: PSA(Qld), s 112.103 Similar to probation and community service orders (and contrasting with orders of imprisonment in a prison), the offender must agree to an ICO: PSA(Qld), s 117. Note that unlike most “home detention” type orders throughout Australia, ICOs cannot impose a curfew on the offender. The effect of an ICO is that the offender serves a period of “imprisonment” within the community, rather than in a prison: PSA(Qld), s 113. This matter has caused some debate. In R v Skinner; Ex parte Attorney-General,104 the Queensland Court of Appeal discussed the effect of Pt 6 of the PSA(Qld) and noted (at [14]) that: the provisions … appear to require that, for the purposes of the Corrective Services Act, a sentence ordered to be served by intensive correction order is a sentence of imprisonment.

The court noted the awkwardness in the application of some provisions of the corrective services legislation to ICOs as a result of this assumption. This awkwardness resulted from “the statutory fiction” created by Pt 6 of the PSA(Qld) that an ICO is a term of imprisonment.105 For example, in R v Hesketh; Ex parte Attorney-General,106 the Attorney-General appealed a sentence of a 12-month ICO (imposed on 23 November 2003) on the basis that it was manifestly inadequate. On 14 April 2004, the Queensland Court of Appeal increased the sentence to two-and-a-half years’ imprisonment, to be suspended after serving nine months. Pursuant to s 113 of the PSA(Qld), the ICO originally ordered was regarded as a period of imprisonment, and therefore the nine-month period of actual imprisonment was ordered to run from 23 November 2003: PSA(Qld), s 154. This meant that the offender was deemed to have already served over seven months of the required period of actual imprisonment ordered in the new sentence. Further, if an ICO is a term of imprisonment, does this mean that PSA(Qld), s 9(2)(a), which 100 101 102 103

A George, “Women and Home Detention: Home Is Where the Prison Is” (2006) 18 Current Issues in Criminal Justice 79 at 82-83. K Mitchell, “Home Detention” (1999) New Zealand Law Journal 363 at 365. R v Tran; Ex parte Attorney-General (Qld) (2002) 128 A Crim R 1 at 4-5 [15].

104 105

See, eg, R v Rasmussen (2000) 110 A Crim R 295, where the court found that probation was inadequate and that a sentence of imprisonment was called for. The court substituted probation with an ICO. [2001] 1 Qd R 322. R v Skinner; Ex parte Attorney-General [2001] 1 Qd R 322 at 325.

106

[2004] QCA 116 at [19] per McPherson, Williams JJA and Holmes J.

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states that imprisonment is a last resort,107 is activated? This point was considered in the case of R v Bagust108 where, ultimately, McMurdo P noted (at [5]): In my view, an offender is not sentenced to a period of imprisonment for the purposes of s 9(2)(a) … if sentenced to a period of imprisonment to be served by way of intensive correctional order and, seemingly, a fully-suspended sentence.109

Thus, as West points out, it is a paradox that an ICO can be both a sentence of imprisonment and not a sentence of imprisonment, depending on the circumstances.110 An ICO is generally more demanding than the intermediate penalties.111 This is due to the fact that an ICO involves strict compliance with a number of specific conditions required under the PSA(Qld), including112 reporting, attending counselling and other programs, undertaking community service work and abiding by specific residential conditions: PSA(Qld), s 114. Other requirements, such as medical treatment, may also be mandated in the specific order: PSA(Qld), s 115. An ICO can be revoked or amended by application: PSA(Qld), s 122. If the order is revoked, the offender may be re-sentenced: PSA(Qld), s 121. It is also an offence to contravene an ICO and, if the offender is convicted for a contravention or breach, the court has a range of options: PSA(Qld), ss 123–125. Usually, in such circumstances, imprisonment (in a prison) is ordered. Where there are multiple offences and the court sentences the offender to two or more terms of imprisonment at the same time, the court can only order an ICO if the total period to be served is less than one year: PSA(Qld), s 118. As noted previously, an ICO and probation cannot be ordered to be served at the same time. Curiously, when a court activates a suspended sentence, an ICO can be imposed cumulatively on the activated suspended sentence. This is because, in activating a suspended sentence, the court is not actually “sentencing” an offender within the meaning of PSA(Qld), s 118.113

SUSPENDED IMPRISONMENT Background [12.190] An order of suspended imprisonment, also referred to as a “suspended sentence”, enables the court to “denounce the seriousness of an offence through the formal imposition of a sentence of imprisonment while allowing for a merciful

107

See discussion in [11.290].

108 109 110

[2003] QCA 385. Dutney and Philippides JJ agreed. A West, “When is a Sentence of Imprisonment Not a Sentence of Imprisonment?” (2004) 24 Queensland Lawyer 240 at 242. See M Bagaric and R Edney, Sentencing in Australia (Thompson Reuters, Pyrmont, 2014) p 594-5. R v Tran; Ex parte Attorney-General (Qld) (2002) 128 A Crim R 1 at 4-5 [15] per McMurdo P and Douglas J. R v Skinner; Ex parte Attorney-General [2001] 1 Qd R 322 at [11] per de Jersey CJ, Davies and Pincus JJ.

111 112 113

[12.190] 325

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response to the circumstances of the offender”.114 A clear personal deterrent threat is also inherent in a suspended sentence115 since the actual term of imprisonment will only be activated if the offender reoffends during the period of the suspension, although such activation is not mandated.116 According to Freiberg, the High Court reaffirmed the value of suspended sentences in Dinsdale v The Queen.117 However, there is some uncertainty more generally about the role and seriousness of suspended imprisonment, especially where it is not ordered along with conditions or other penalties. In 2006, the Victorian Sentencing Advisory Committee (VSAC) recommended that suspended sentences should be phased out over three years on the basis that it is difficult to reconcile the philosophical differences inherent in the penalty.118 The VSAC noted that there is disagreement as to whether a suspended sentence is more severe than other non-custodial penalties, whether it is an appropriate substitute for a custodial sentence and whether this type of penalty has internal logic. However, in 2008, the VSAC released Part 2 of their report on suspended sentences and recommended that any decision to abolish suspended sentences be deferred. This was on the basis that there was evidence they had begun to be used less frequently and that this type of penalty had a role to play in minimising the risk of substantial and unsustainable increases in the prison population.119 However, from 2010120 suspended sentences began to be phased out in Victoria and have now been completely phased out.121 Warner reports that public and offender perceptions about suspended sentences are generally that they are not very

114

115

116

117

118

119 120 121

L Bartels, “The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles” (2007) 31 Criminal Law Journal 113; see also R v Holcroft [1997] 2 Qd R 392 per Lee J. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 321; see also M Bagaric and T Alexander, “The Capacity of Criminal Sanctions to Shape the Behaviour of Offenders: Specific Deterrence Doesn’t Work, Rehabilitation Might and the Implications for Sentencing” (2012) 36 Criminal Law Journal 159 at 163. Victorian research has shown that just over one quarter (27.5%) of those who were placed on suspended sentences between 2001-2007 breached their sentence and nearly two-thirds (62.8%) of those sentences were restored upon breach. N Turner, Suspended Sentences in Victoria: A Statistical Profile (Sentencing Advisory Council, Melbourne, 2007). See S Hart, C Michie, D Cooke, “Precision of Actuarial Risk Assessment Instruments” (2007) 49 British Journal of Psychiatry 6; A Freiberg, Pathways to Justice: Sentencing Review 2002, Report (Sentencing Advisory Council, Department of Justice (Vic), 2002) p 123: https://www .sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Pathways%20to%20 Justice_0.pdf; see also Dinsdale v The Queen (2000) 202 CLR 321. Victorian Sentencing Advisory Council, “Suspended Sentences Final Report” (2006) Part 1 at [3.74]: http://www.sentencingcouncil.vic.gov.au/wps/wcm/connect/Sentencing+Council/Fin d/Publications. See also M Bagaric and T Alexander, “The Capacity of Criminal Sanctions to Shape the Behaviour of Offenders: Specific Deterrence Doesn’t Work, Rehabilitation Might and the Implications for Sentencing” (2012) 36 Criminal Law Journal 159, 163. See Sentencing Advisory Council, Suspended Sentences and Intermediate Sentencing Orders, Final Report, Part 2 Summary (Sentencing Advisory Council, Melbourne, 2008). Sentencing Amendment Act 2010 (Vic). Sentencing Amendment (Abolition of Suspended Sentences & Other Matters) Act 2013 (Vic). See also: Sentencing Advisory Council Victoria, Community Correction Orders: Monitoring Report (2014): https://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-doc

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severe.122 She suggests, however, that there may be advantages in imposing suspended sentences alongside other penalties. The conditional suspended imprisonment option available in Western Australia reflects this position. It is, however, understandable that the public finds it difficult to see suspended imprisonment (without any conditions) as a very serious penalty, especially when it is compared with, arguably more demanding, options, such as intensive orders which are lower in the sentencing hierarchy. In Dinsdale v The Queen,123 the High Court set out the two-step process required before a suspended sentence could be imposed. Kirby J noted (at 346): The starting point … is the need to recognize that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise.124

It is clear that a suspended sentence is an alternative to imprisonment and not an alternative to a penalty lower on the hierarchy, such as a fine. As Warner points out, a suspended sentence is not appropriate in a situation where, for example, an offender is too rich to be concerned about a fine, or too poor to pay one.125 A suspended sentence is a serious penalty and not simply a formality.126 The decision to suspend the sentence will be based on a consideration of the specific facts of the case and other relevant factors. In Dinsdale there was some discussion about the purposes underlying the suspension of a sentence of imprisonment.127 Kirby J accepted that a range of matters could be taken into account in consideration of whether to suspend a sentence of imprisonment, including the offender’s prospects of rehabilitation, all the circumstances and information available, the nature of the particular offence, the low likelihood of the offender reoffending, the impact that a prison sentence would have on the

122

123 124

125

126 127

uments/Community%20Correction%20Orders%20Monitoring%20Report_0.pdf for a discussion of the extent to which the new community correctional orders have replaced suspended sentences. K Warner, “Sentencing Review 1999” (2000) 24 Criminal Law Journal 359 at 362; see also M Bagaric, “Suspended Sentences and Preventative Sentences: Illusory Evils and Disproportionate Punishments” (1999) 22 University of New South Wales Law Journal 535. (2002) 202 CLR 321. See also Dinsdale v The Queen (2000) 202 CLR 321 per Gleeson CJ and Hayne J at [12]–[13]. See also the discussion in L Bartels, “The Use of Suspended Sentences in Australia: Unsheathing the Sword of Damocles” (2007) 31 Criminal Law Journal 113 at 118. This two-step process is reflected to some extent in PSA(Qld), s 144(2) and (4). K Warner, “Sentencing Review 1999” (2000) 24 Criminal Law Journal 359 at 362, referring to R v Hanbury (1979) 1 Cr App R(S) 243; and R v Ball (1981) 3 Cr App R(S) 283. In New South Wales, offences associated with driving while disqualified and assault occasioning actual bodily harm attract the highest rates of suspended sentences: see Judicial Commission of New South Wales, “Common offences in the NSW Local Court: 2010” (2012) 40 Sentencing Trends and Issues 1 at 12. R v H (1993) 66 A Crim R 505 at 510. See also L Bartels, “To Suspend or Not to Suspend: A Qualitative Analysis of Sentencing Decisions in the Supreme Court of Tasmania” (2009) 28(1) University of Tasmania Law Review 23. [12.190] 327

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offender and his family, and the “social stigma” that followed the conviction (apart from a prison term).128 In York v The Queen,129 the High Court discussed the appropriateness of a suspended sentence. York had pleaded guilty to serious drug matters. However, she had assisted authorities in their investigation and her assistance had led to the conviction of a brutal murderer. As a result, the offender had received threats to her life and safety. There was also evidence that certain women prisoners would harm York on her arrival at prison. The sentencing judge formed the view that if York was imprisoned she would face a real danger of being killed and therefore suspended the sentence entirely. The Court of Appeal reversed this decision and found that a sentence of actual imprisonment was appropriate in the circumstances. However, the High Court disagreed and reinstated the original sentence of the sentencing judge. McHugh J noted (at [32]) that: [The sentencing judge] had to balance the safety of Mrs York against the powerful indicators that her crimes required a custodial sentence. In wholly suspending Mrs York’s sentence, Atkinson J appropriately balanced the relevant, even if conflicting, considerations of ensuring the sentence protected society from the risk of Mrs York re-offending and inflicting condign punishment on her on the one side and ensuring the sentence protected her from the risk of her fellow inmates committing serious offences against her on the other side. In suspending the sentence, the learned judge made no error of principle. Nor was the suspended sentence manifestly inadequate.130

Both Dinsdale and York make it clear that suspended sentences may be considered appropriate for a range of reasons.

Order of suspended imprisonment in Queensland [12.200] A court can only order a suspension of all or part of a sentence of imprisonment if it records a conviction: PSA(Qld), s 143. Pursuant to the PSA(Qld), if a court sentences a person to a period of imprisonment of five years or less, and the court is satisfied that suspension of all or part of the sentence is appropriate, it may order that all or part of the sentence is suspended: PSA(Qld), s 144. A suspended sentence remains in suspension for a stated period, which must be not less than the period of imprisonment and not more than five years: PSA(Qld), s 144. The period of the suspension can be longer than the period of imprisonment – for example, a one-year imprisonment period could be suspended for three years.131 When the court suspends a period of imprisonment, the court must state an operational period during which the offender must not commit another offence punishable by imprisonment: PSA(Qld), s 144. If the person does reoffend during the period of the suspension, they will be in breach of the suspended sentence and must serve the whole of the suspended sentence, unless certain things can be shown. Specifically, where the circumstances make it unjust to require the offender

128 129

See Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [88] per Kirby J; see also Collins v Western Australia [2007] WASCA 108 at [16] per McLure J. (2005) 225 CLR 466.

130

See also Gleeson CJ (at [8]), Hayne J (at [40]), Callinan and Heydon JJ (at [67]–[68]).

131

See R v Smith [2004] QCA 417.

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to serve the whole of the suspended part of the sentence,132 the court has some discretion in relation to its response. The onus will be on the offender to show that it would be unjust to order the offender to serve the balance of the sentence: PSA(Qld), s 147(2). Pursuant to s 147(3) of the PSA(Qld), in making a decision about how to respond to a breach, the court should consider, among other matters, the nature and circumstances of the reoffending,133 the criminal history of the accused and any genuine efforts made by the defendant to rehabilitate: PSA(Qld), s 147(3).134 In response to a breach, and depending on the circumstances, the court may consider extending the operational period of the sentence,135 further suspending the sentence (if the time has expired) or order the person to serve part or the whole of the suspended part of the sentence: PSA(Qld), ss 147 and 148.136 The courts have found that this is not a resentencing exercise on the original offence.137 It is possible to impose a suspended sentence together with a fine,138 probation139 or, depending on the circumstances, a CSO.140

IMPRISONMENT Background [12.210] Prison is an expensive penalty option. In 2014-2015 the cost of keeping a person in prison was approximately $301 per day.141 In recognition of the unsustainable cost of imprisonment many countries, including Australia, have embraced the approach of “justice reinvestment”. This approach aims to better understand the causes of crime and to develop community based initiatives to

132 133 134

135 136

137 138 139 140 141

R v Holcroft [1996] QCA 478 per Lee J; see also the discussion in M Shanahan, P Smith and S Ryan, Carter’s Criminal Law of Queensland (21st ed, LexisNexis, Sydney, 2016) pp 1753-1754. See, eg, R v Hurst [2006] QCA 102. The courts have emphasised that these are not necessarily the only matters to be taken into account: see R v Stevens [2006] QCA 361 at [22] per McMurdo P. See also R v Kendrick [2015] QCA 27. See, eg, R v Muller [2006] 2 Qd R 126. See R v Summerlin [2009] QCA 297 at [21] per Fraser JA; and Norden v The Queen [2009] QCA 42 [12]-[16] per Holmes JA, emphasising the discretionary nature of this process. In relation to whether the activated part of the suspended sentence should be served cumulatively or concurrently with another sentence, see R v Chard; Ex parte Attorney-General (Qld) [2004] QCA 372 per Williams JA. In relation to parole recommendations with respect to activated suspended sentences, see R v Liddle [2006] QCA 45. R v Skinner; Ex parte Attorney-General [2001] 1 Qd R 322 (pursuant to PSA(Qld), s 118). See PSA(Qld), s 45(2). R v Hood [2005] 2 Qd R 54 at 65 [41]. R v Vincent; Ex parte Attorney-General [2001] 2 Qd R 327. Productivity Commission Report on Government Services 2016, Fig 8.11, p 8.22: http://www.p c.gov.au/research/ongoing/report-on-government-services/2016/justice/rogs-2016-volumecjustice.pdf. [12.210] 329

Criminal Process in Queensland

address these causes. The goal is to invest in these other approaches in order to cut crime and save money at the same time.142 In 2014-2015, approximately 6.5% of those found guilty of an offence in Queensland were ordered to serve a custodial sentence in a correctional institution.143 Despite the apparently small proportion of offenders being sentenced to imprisonment, there was a significant increase of 7% in the prison population between June 2014 and June 2015.144 In 2014, there were 186 people per 100,000 in prison in Australia, compared with 196 people per 100,000 in 2015.145 Certain groups in the community, especially Aboriginal and Torres Strait Islander people, constitute a disproportionate number of prisoners. For example, in Australia in 2015, this group made up approximately 27% of the prison population.146 Queensland judges interviewed for Mackenzie’s research made a number of adverse comments about imprisonment. For example, they noted: • Gaols won’t do much for the person or society … • Gaol doesn’t rehabilitate offenders … • Drugs are freely available in prison and something like 60% of property crimes are drug related … • … they have to be re-integrated in the end. • Prison strips of responsibility when what you want to do is make them take responsibility.147 The judges’ comments are supported by research.148 A commonly-held view is that prisons are, in fact, a good training ground for criminal behaviour and that the likelihood of a person reoffending actually increases once a person has been imprisoned.149 The effect of a prison sentence is greater than simply a loss of

142

For links to relevant materials see UNSW, Justice reinvestment http://justicereinvestment.un sw.edu.au/.

143

Australian Bureau of Statistics, Criminal Courts 2014-2015, Issue 4513.0, Table 7: http://www.ab s.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4513.0~2014-15~Main%20Features~Defen dants%20proven%20guilty~4. Australian Bureau of Statistics, Prisoners in Australia, Crime and Justice Release No 4517.0 (Canberra. 2015): http://www.abs.gov.au/ausstats/[email protected]/mf/4517.0. See also C Cunneen eta al, Penal Culture and Hyperincarceration: The revival of the prison (Ashgate, 2013). Australian Bureau of Statistics, Prisoners in Australia, Crime and Justice Release No 4517.0 (Canberra. 2015): http://www.abs.gov.au/ausstats/[email protected]/mf/4517.0. Many of the people currently in prison will be there as a result of breaches of various court orders and non-payment of fines.

144

145

146

147 148 149

Australian Bureau of Statistics, Prisoners in Australia, Crime and Justice Release No 4517.0 (Canberra, 2015): http://www.abs.gov.au/ausstats/[email protected]/Lookup/by%20Subject/4517.0~ 2015~Main%20Features~Aboriginal%20and%20Torres%20Strait%20Islander%20prisoner%20ch aracteristics~7. See also M Bagaric, “Taking Indigenous Over-Imprisonment Seriously: Time for Concrete Solutions Not More Good Intentions” (2015) 39 Criminal Law Journal 231. Quotations from individual judges extracted from G Mackenzie, How Judges Sentence (Federation Press, Sydney, 2005) pp 66-67. J Nicholson, “Sentencing – Good, Bad and Indifferent” (2012) 36 Criminal Law Journal 205, esp. 209-210. C Jonson, “The Effects of Imprisonment” in F Cullen and P Wilcox (eds), The Oxford Handbook of Criminological Theory (Oxford University Press, New York, 2013); Sentencing

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liberty. Many prisons are overcrowded150 and, as Findlay points out, they can be “violent, inhuman, unsafe, confrontational, and exploitative”.151 In York v The Queen, Gleeson CJ observed that for some offenders, prisons are dangerous places.152 Research supports this and shows that many prisoners are placed at significant physical and psychological risk if they are sentenced to serve a period of imprisonment.153 One of the concerns about prison is that prisoners will, usually, eventually be released back into the community and they may have lost many of the skills required for independent living. With its focus on community supervision of prisoners post-release (parole), the Corrective Services Act 2006 (Qld) attempts to address the difficulty prisoners face with reintegration and recidivism.154

Imprisonment in Queensland [12.220] In Chapter 11, the approach underlying the PSA(Qld) was examined – that is, except for violent offences, sexual offences involving children under 16, and certain offences involving images of children, a sentence of imprisonment is a penalty of last resort: PSA(Qld), s 9(2), (2A), (3), (4), (5), (6A) and (7). A court may make an order of imprisonment only where it records a conviction: PSA(Qld), s 152. Further, the court should generally not impose a single period of imprisonment for a group of offences regardless of whether the offences are based on the same set of facts or form part of a series.155 However, as noted in Chapter 11 in the discussion of the totality principle (at [11.110]), generally, imprisonment will be served concurrently (PSA(Qld), s 155) unless ordered to be served cumulatively: PSA(Qld), s 156. In certain circumstances, the sentence must be served cumulatively: PSA(Qld), s 156A. For example, where a prisoner commits an offence while serving a period of imprisonment or commits an offence after escaping from lawful custody, a sentence of imprisonment must be ordered to be served cumulatively: PSA(Qld), s 156A.

150 151

152 153

154 155

Advisory Council Victoria, “Does Imprisonment Deter? A Review of the Evidence” (2011): htt ps://www.sentencingcouncil.vic.gov.au/sites/default/files/publication-documents/Does%20I mprisonment%20Deter%20A%20Review%20of%20the%20Evidence.pdf. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, Oxford, Melbourne, 2014) pp 223, 225. M Findlay, “The ‘Demise of Corrections’ Fifteen Years: Any Hope for Progressive Punishment?” (2004) 16 Current Issues in Criminal Justice 57 at 65; see also H Douglas and J Touchie, “Maximum Security: ‘Being in the Belly of the Beast’” (2006) 30 Criminal Law Journal 73. (2005) 225 CLR 466 at [5] per Gleeson CJ. For discussion of York v The Queen (2005) 225 CLR 466, see [12.270]; R v Nguyen (2004) 149 A Crim R 343. See also C Jonson, “The Effects of Imprisonment” in F Cullen and P Wilcox (eds), The Oxford Handbook of Criminological Theory (Oxford University Press, New York, 2013). Corrective Services Bill 2006 (Qld), Explanatory Notes, p 1. R v Crofts [1999] 1 Qd R 386. But see R v Nagy [2004] 1 Qd R 63; [2003] QCA 175 per Williams JA (with whom Jerrard JA and Muir J agreed), where he suggested that there may be other options open in these circumstances, such as fixing a sentence for the most serious offence that is higher than it would have been had it stood alone, thus taking into account overall criminality. However, Williams JA noted risks with this approach. See also the case of R v Colless [2010] QCA 26, relating to a string of rapes and sexual assaults on women in Brisbane during 2006-2008. [12.220] 331

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The maximum term of imprisonment that can be ordered by the court is usually stated specifically in the relevant offence provision. However, where the maximum is not stated, the PSA(Qld) imposes a maximum of five years for convictions on indictment and two years for other convictions: PSA(Qld), s 153A. In exercising its discretion and in consideration of the relevant factors,156 the court may impose the maximum period or a period less than the maximum, including where the maximum period is life imprisonment: PSA(Qld), s 153.157 Where the person is convicted of murder (QCC, s 302), the person will be imprisoned for life or for an indefinite period: QCC, s 305.158 The sentence ordered to be served is referred to as the “head sentence”.159 Generally, the period of imprisonment imposed on the offender starts, in relation to conviction on indictment, on the day the court imposes imprisonment and, on summary conviction, at the beginning of the offender’s custody for the imprisonment: PSA(Qld), s 154. The term of imprisonment does not automatically run while the defendant is on bail awaiting appeal or while at large (for example, if the prisoner has escaped): PSA(Qld), ss 158A and 159. As part of the sentencing order, the sentencing court is required to state the pre-sentence custody served and declare the part of the time that is taken to be imprisonment already served under the sentence, or declare that no time is taken to be imprisonment already served under the sentence: PSA(Qld), s 159A.160 While any time that the offender was held in custody in relation to the proceedings will generally be taken into account as imprisonment already served, the court has a discretion to “otherwise order”: PSA(Qld), s 159A.161 In 2006, significant reforms were introduced with the CSA, along with consequential amendments to the PSA(Qld). One of the major policy objectives of the reforms is truth in sentencing or, as the Explanatory Notes state, “[to] ensure that the sentence imposed by a court operates upon a prisoner for the whole of the period of imprisonment”.162 The reforms impact particularly on the concepts of remissions and parole. Previously, prisoners who had served two-thirds of their sentence would be eligible for early release (remissions). This release was administratively granted as a reward for good behaviour.163 Prisoners granted release as a result of remissions were released, without further supervision, into

156 157 158

159 160 161 162 163

See Chapter 11. Clearly, the court may decide to apply a non-custodial penalty. Save for exceptional circumstances, the person will be imprisoned for at least 20 years and, for a double murder, at least 30 years: see QCC, s 305(2); and Corrective Services Act 2006 (Qld) s 181. For a discussion about life sentence in murder cases, see J L Anderson, “‘Indefinite, Inhumane, Inequitable’ – The Principle of Equal Application of the Law and the Natural Life Sentence for Murder: A Reform Agenda” (2006) 29 University of New South Wales Law Journal 139. See the discussion in R v Edie [2006] QCA 111. See, eg, Harris-Davies v Central North Queensland Parole Board [2008] QCA 245. Thus s 159A of the PSA(Qld) states a general rule but still leaves the court with significant discretion to order otherwise: see R v Holton [1998] 1 Qd R 667. Corrective Services Bill 2006 (Qld), Explanatory Notes, p 1. Remissions were largely curtailed as a result of legislative changes in 2001. For a consideration of the way in which remissions operated in Queensland prior to 2001, see McCasker v Corrective Services Commission (Qld) [1998] 2 Qd R 261.

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the community. The Explanatory Notes for the CSA observe that the concept of remissions effectively overrides the sentencing discretion of the court164 and the CSA abolishes the concept of remissions.165 As part of the sentence, the sentencing judge or magistrate has traditionally ordered that the prison sentence be served for a specific period (a non-parole period) before parole can be considered. The decision to release on parole was previously made administratively. The CSA establishes parole as the only form of early release from custody. According to the Explanatory Notes for the CSA, “prisoners on parole will be supervised in the community for the duration of their sentence of imprisonment and returned to custody if necessary to protect the community”.166 Prisoners serving short terms of imprisonment of three years or less (and not for a serious violent or sexual offence) will be released on parole on the date set by the sentencing court: PSA(Qld), s 160B. Applications for parole by sex offenders,167 serious violent offenders (discussed in the next section of this chapter)168 and prisoners serving periods of imprisonment of more than three years, will be considered by the parole board at the time recommended by the sentencing court or after serving a fixed percentage of imprisonment: CSA, s 180; PSA(Qld), ss 160C and 160D.169

Serious violent offenders [12.230] When an offender is convicted of an offence against a provision in Schedule 1 of the PSA(Qld) and is sentenced to 10 or more years of imprisonment, the PSA(Qld) requires the court to declare that a person is convicted of a serious violent offence: PSA(Qld), ss 161A(a) and 161B(1).170 Further, when an offender is convicted of an offence against a provision in Schedule 1 of the PSA(Qld) and sentenced to five or more, but less than 10, years’ imprisonment, the court may declare that a person is convicted of a serious violent offence: PSA(Qld), s 161B(3).171 Numerous offences are included in the Schedule – for example, riot, threatening violence, robbery, rape and attempted murder.172 164

Corrective Services Bill 2006, Explanatory Notes, p 3.

165

However, pursuant to s 400 of the CSA, remissions granted under the previous s 75(2) or (4) of the Corrective Services Act 2000 will not be affected. Corrective Services Bill 2006, Explanatory Notes, p 4. “Sex offender” means a prisoner who is serving a sentence for a sex offence set out in CSA, Sch 1; see also CSA, Sch 4. “Serious violent offender” means a prisoner who is serving a sentence for a serious violent offence as set out in the PSA(Qld), Sch; see also CSA, Sch 4. Sex offenders must serve 50%: CSA, s 184; violent offenders must serve 80%: CSA, s 182. The position in relation to breach of parole is complex. For some further discussion, see G Mackenzie and N Stobbs, Principles of Sentencing (The Federation Press, Sydney, 2010) pp 197-199 (no new editions). This includes situations where the offender is convicted for an offence of counselling, procuring, attempting or conspiring to commit a Schedule offence: PSA(Qld), s 161A(a). This includes situations where the offender is convicted for an offence of counselling, procuring, attempting or conspiring to commit a Schedule offence: PSA(Qld), s 161B(3)(a). Section 161C of the PSA(Qld) applies in deciding whether an offender is sentenced to 10 years or more or between five and ten years of imprisonment. In R v Powderham [2002] 2 Qd R 417, the Court of Appeal found that the application of this provision was ambiguous and,

166 167 168 169

170 171

[12.230] 333

Criminal Process in Queensland

The cases of R v Bojovic173 and R v Collins174 state the primary principles in relation to those situations where there is a discretion to declare an offender a serious violent offender. In Collins, McPherson J emphasised that the decision to declare should not be made “mechanically or automatically”, that the decision to declare is “penal and prejudicial” and that it should be “fully warranted in all the circumstances”.175 In Bojovic, the court confirmed that the discretion was “simply another option that has been placed in the court’s armoury”176 in relation to penalties and sentencing. In considering whether to exercise the discretion, McPherson J observed in R v Orchard177 that the discretion appears to be directed to the particular offence being sentenced and not towards offences for which the offender has been sentenced on previous occasions.178 The Court of Appeal has observed that a declaration might be appropriate where there is a perceived need to protect the community.179 In R v Tilley,180 the court stated that the Crown prosecutor should request that a declaration be made where there is discretion.181 However, if no application is made and the judge intends to exercise the discretion, the judge should call for submissions before doing so.182 Despite the title of this Part of the PSA(Qld),183 it is possible for a declaration to be made where the offence is not violent.184 However, according to Fryberg J’s analysis in Everleigh185 of a number of relevant judgments, the use of violence has, in many cases, been a significant factor in the decision to make a declaration.186 The declaration that the offender is a serious violent offender has an impact on eligibility for parole; the offender will be required to serve 80% or 15 years of their sentence (whichever comes first) before being eligible for parole.187 In R v McDougall and Collas,188 the court emphasised that a critical factor to consider

172

given that the Division is prejudicial to the liberty of the accused, the sentence should be restrictively calculated. Note that it falls to the prosecutor to ask for such a declaration: see R v Tilley: Ex parte Attorney-General [1999] QCA 244. QCC, ss 63, 75, 411, 349 and 306 respectively.

173 174

[2000] 2 Qd R 183. [2000] 1 Qd R 45; see also R v Orchard [2005] QCA 141 at [6] per McPherson JA.

175

[2000] 1 Qd R 45 at [28] per McPherson JA; see also R v Bojovic [2000] 2 Qd R 183 at [29] per the court. R v Bojovic [2000] 2 Qd R 183; (1999) 113 A Crim R 1 at [29] and [33] per the court. [2005] QCA 141. R v Orchard [2005] QCA 141 at [6] per McPherson JA. R v Keating [2002] QCA 19 per Thomas JA. [1999] QCA 424. R v Tilley [1999] QCA 424.

176 177 178 179 180 181 182

R v Moodie [1999] QCA 125; see also R v Everleigh [2003] 1 Qd R 398 at 430-431 [111] per Fryberg J for an overview of the current state of the law.

183 184 185 186 187 188

That is, “Convictions of serious violent offences”. See, eg, R v BAX [2005] QCA 365. R v Everleigh [2003] 1 Qd R 398. R v Everleigh [2003] 1 Qd R 398 at 427 [93] and [100] per Fryberg J. See CSA, s 182. R v McDougall and Collas (2006) 166 A Crim R 191; [2006] QCA 365 at [18]. See PSA(Qld), s 161D prior to 2006; repealed by CSA, s 498. Note also that the most significant changes to remission were introduced in the CSA.

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when sentencing was the effect on parole. In this case, the Court of Appeal made a number of important observations calculated to assist the courts in relation to the consideration of the declaration, including whether:189 • the offence has features warranting a sentence requiring the offender to serve 80% of the head sentence before being able to apply for parole; • reasons should be given for the exercise of the discretion and the defendant should have an opportunity to be heard; • for the reasons to show that the declaration is fully warranted in the circumstances it will usually be necessary that declarations be reserved for the more serious offences that, by their nature, warrant them.

Repeat serious child sex offenders [12.240] In 2012, laws were introduced in relation to sentencing repeat serious child sex offenders. Pursuant to PSA(Qld), s 161D a serious child sex offence is an offence that involved counselling or procuring the commission of an offence mentioned in Schedule 1A of the PSA(Qld) and the offence was committed in relation to a child under 16 years and in circumstances in which the offender convicted of the offence would be liable for imprisonment for life. Offences under schedule 1A include for example: unlawful sodomy, QCC, s 208; carnal knowledge or with children under 16, QCC, s 215 and incest, QCC, s 222. An offender is convicted of a repeat serious child sex offence if, when convicted of the repeat serious child sex offence, the offender was an adult and before the offender committed the repeat serious child sex offence the offender had been had committed and convicted of another serious child sex offence when an adult PSA(Qld), s 161E(1). In circumstances where the offender is convicted of a repeat serious child sex offence the offender is liable to life imprisonment or an indefinite sentence PSA(Qld), s 161E(2). When this legislation was introduced, police expressed concern that an offender may consider killing their victim to evade punishment.190

Serious and organised crime [12.250] In 2016 the Queensland Government introduced Part 9D PSA(Qld). This Part was added to the PSA(Qld) on the introduction of the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) in response to a number of government inquiries.191 In particular, the Explanatory Notes to the Serious and

189 190 191

For the complete list, see R v McDougall and Collas [2007] 2 Qd R 87 at [19] per Jerrard, Keane, Holmes JA. D Hurst, “Police Service’s Dire Warning Over Two-Strike Policy for Child Sex Offender”. Brisbane Times 11 July 2012. The provisions were applied in R v Holzinger [2016] QCA 160. This Part was added to the PSA(Qld) on the introduction of the Serious and Organised Crime Legislation Amendment Act 2016 (Qld). The regime was introduced in response to various inquiries including the Queensland Organised Crime Commission of Inquiry (2015) http://www .organisedcrimeinquiry.qld.gov.au/__data/assets/pdf_file/0017/935/QOCCI15287-ORGANISE D-CRIME-INQUIRY_Final_Report.pdf; Department of Justice and Attorney General, The Taskforce on Organised Crime Legislation (2016) http://www.justice.qld.gov.au/taskforce-int o-organised-crime; Department of Justice and Attorney General, Review of the Criminal [12.250] 335

Criminal Process in Queensland

Organised Crime Legislation Amendment Act 2016 (Qld) highlight a number of incidents involving outlaw motorcycle gangs (OMCGs) including incidents in 2013 outside a restaurant in a Brisbane Suburb, at a music festival in Coolangatta and outside a Broadbeach restaurant.192 The Explanatory Notes state: The Australian Crime and Intelligence Commission (ACIC) has identified OMCGs as one of the most high profile manifestations of organised crime which have an active presence in all Australian States and Territories. OMCGs have become one of the most identifiable components of Australia’s criminal landscape and identify themselves through the use of colours.193

This Part of the PSA sets out a special sentencing regime for certain offences committed where there is a “serious organised crime circumstance of aggravation”.194 The meaning of “serious organised crime circumstance of aggravation” is set out in s161Q PSA(Qld). The provision states that “it is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which the offender is convicted that, at time of the offence was committed, or at any time during the course of the offence” the offender was a participant in a criminal organisation and knew or ought reasonably to have known that the offence was being committed: • at the direction of a criminal organisation or • in association with 1 or more persons who were at the time the offence was committed or at any time during the course of the commission of the offence, particpants in a criminal organisation or • for the benefit of the criminal organisation. When Part D applies, the court must apply the law (not taking into account this Part) and determine the appropriate penalty for the offence. This is the “base component” of the sentence. Unless the offender is sentenced to life imprisonment, the court must then impose a mandatory term of imprisonment additional to the base component. This second component must ordinarily be imposed cumulatively on the base component and the second component must not be mitigated or reduced.195 The length of the additional mandatory imprisonment period of seven years applies where the relevant offence attracts a maximum penalty of seven years or more. Alternatively, where the relevant offence attracts a maximum sentence of less than seven years, the maximum sentence for the offence applies. The offender begins to serve the second component first and the base component takes effect after that: PSA(Qld), s 161R. In addition, a control order must be made: PSA(Qld), s 161V. See [12.340].

194

Organisation Act 2009 (2015) http://www.parliament.qld.gov.au/documents/tableOffice/Tab ledPapers/2016/5516T432.pdf. See also [2.140] in relation to police powers in this context. See Serious and Organised Crime Legislation Amendment Bill 2016, Explanatory Notes, http s://www.legislation.qld.gov.au/Bills/55PDF/2016/B16_0084_Serious_and_Organised_Crime_ Legislation_Amendment_Bill_2016E.pdf at 4. See Serious and Organised Crime Legislation Amendment Bill 2016, Explanatory Notes, http s://www.legislation.qld.gov.au/Bills/55PDF/2016/B16_0084_Serious_and_Organised_Crime_ Legislation_Amendment_Bill_2016E.pdf at 4. Note a number definitions for Part D are set out in PSA(Qld), s 161N.

195

Note cooperation with authorities can be taken into account, see: PSA(Qld), s 161S.

192

193

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Prescribed offences are set out in Schedule 1C, PSA(Qld) and comprise a wide range of offences including sexual offences, property offences, offences involving violence, and offences relating to the administration of justice. “Participant” in a criminal organisation is widely defined in this Part. It includes being an accepted, provisional or honorary member or an office holder of the criminal organisation; identifying themselves in any way as belonging (eg by wearing an insignia); or where their conduct would “reasonably” lead someone to consider the person is a participant of the organisation (the legislation provides examples including tending the cannabis plants) (PSA(Qld) s 161P). “Criminal organisation” also has a broad definition and this is set out in PSA (Qld), s 61O. It is defined as “a group of 3 or more persons, whether arranged formally or informally who in engage in, or have as their purpose (or 1 of their purposes) engaging in, serious criminal activity and who, by their association, represent an unacceptable risk to the safety, welfare or order of the community”. The provision goes on to explain that it is not relevant if the association has a name, is capable of being recognised by the public as a group, exists as a group beyond the criminal activity or has a legal personality. It also makes it clear that it does not matter that the people in the group have different roles or interests or change from time to time. Similarly, the word “engage” in the provision has a wide definition and includes organising, planning facilitating and supporting the criminal activity.

INDEFINITE SENTENCES Background [12.260] One of the underlying concepts often associated with criminal justice is “finality”. This idea, that there is some clear limit on prosecution and penalty, has historically been reflected in the “double jeopardy” principle and in maximum penalties.196 The common law does not sanction preventive detention because it is a “departure from the fundamental principle of proportionality”.197 However, in 1992 indefinite sentences were introduced in Queensland.198 These sentences allow the court to impose an indefinite sentence on an offender in certain circumstances. In a speech delivered to the Queensland Law Society in 1991, the then Attorney-General of Queensland explained the justification for indefinite sentences. He observed, quoting a passage from John Stuart Mill: The principle is, that the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of any action of any of their members, is self-protection.199 … Society should as far as it is possible to determine, inflict upon those who offend against it the punishment which is necessary to protect itself, and 196 197

198

199

See O Roos, “Commonwealth Legislative Power and ‘Non Punitive’ Detention: A Constitutional Roadmap” (2005) 1 High Court Quarterly Review 142 at 144. Buckley v The Queen (2006) 224 ALR 416 at 418 [6]; see also Chester v The Queen (1988) 165 CLR 611 at 618. See further, B McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Criminal Law Journal 94 at 96. See R Lindsay, “Punishment Without Finality - One Year in the Life and Death of Alan Egan” (2009) 33(1) Criminal Law Journal 45. Similar regimes now operate in most Australian jurisdictions. For an overview, see B Power, “‘For the Term of His Natural Life’: Indefinite Sentences – A Review of Current Law and a Proposal for Reform” (2007) 18(1) Criminal Law Forum 59. J S Mill, On Liberty (Penguin, New York, 1985). [12.260] 337

Criminal Process in Queensland

inflict no more and no less. The reason for this is that any other course of action gratuitously detracts from the sum total of possible human happiness.200

Thus, the Attorney-General relied on utilitarian principles to support this development. As discussed in Chapter 11 (see [11.190]), one of the reasons for imposing sentences is to protect the community from the offender: PSA(Qld), s 9(2)(e). Further, s 3(b) of the PSA(Qld) also states that one of the purposes of this Act includes: Providing for a sufficient range of sentences for the appropriate punishment and rehabilitation of offenders, and, in appropriate circumstances, ensuring that protection of the Queensland community is a paramount consideration.

These provisions allow the focus on community protection to override any limitation that may be imposed by a requirement of just punishment in “appropriate circumstances”.201 Although Parke and Mason observe that punishing an offender in circumstances where the punishment is not deserved (or just) is “an anathema to our sense of justice”,202 in Veen v The Queen (No 2), the High Court observed that the legislature could establish a regime for indefinite detention.203 A particular concern raised about indefinite sentences is that their focus on community protection relies on an assessment of the future risk or danger of the offender to the community. There is now a significant body of literature which demonstrates that the risk of future offending is notoriously difficult to predict. The issue of risk prediction and assessment is discussed further (see [12.300]). Risk predictions are often made by psychologists and psychiatrists and, while it may not be necessary for specialist medical evidence to be led on the issue of whether or not the offender is a serious risk or danger to the community,204 normally this type of evidence is called and will be expected by the court.205 In assessing the evidence in the case of McGarry,206 the majority of the High Court was concerned that despite the evidence demonstrating that McGarry was currently a risk, it did not forecast the future risk he would pose to the community at the expiration of the nominal term of imprisonment.207 This question of risk at the end of the term of imprisonment that would have been served but for the application of indefinite imprisonment provisions is a key consideration in relation to indefinite imprisonment. The nominal sentence becomes relevant for the purposes of review but, as the High Court has observed:

200

201 202 203

D Wells MLA, Sentencing Philosophy and Prison Reform in Queensland: Dangerous Offenders (Speech to the Queensland Law Society, Brisbane, 2 November 1991). See also the reference in J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312 at 320. Recall Veen v The Queen (No 1) (1979) 143 CLR 458 at 468 per Mason J, at 497 per Aickin J. J Parke and B Mason, “The Queen of Hearts in Queensland: A Critique of Part 10 of the Penalties and Sentences Act 1992 (Qld)” (1995) 19 Criminal Law Journal 312 at 321.

204 205 206

(1988) 164 CLR 465 at 486; see also McGarry v The Queen (2001) 207 CLR 121 at 143 [60] per Kirby J. R v Stone [1999] 2 Qd R 413 at 419. McGarry v The Queen (2001) 207 CLR 121 at 143-144 [67] per Kirby J. (2001) 207 CLR 121.

207

(2001) 207 CLR 121 at 161-162 [127]-[128].

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It has an important role in the decision to be made under [PSA(Qld), s 163(3) and (4)]. In particular, in considering the risk of serious harm to members of the community if an indefinite sentence were not imposed, a sentencing judge is required to consider the protective effect of the finite sentence that would otherwise be imposed.208

The effect of a lengthy period of finite imprisonment is that the offender is incapacitated for a period of time.209 The court is required to consider whether this level of incapacitation is sufficient or whether the greater protection of the indefinite sentence is needed. The High Court has observed that if this were not the case, the consequence would be the “banalisation of indefinite imprisonment”.210 In Thompson v The Queen,211 Kirby J observed (at 224): Where there was any possibility that an order of indefinite imprisonment might be made, it was essential that the procedure observed should be regular and scrupulously thorough and that the materials, including the pre-sentence reports, should be as adequate and complete as fairness to the prisoner required.212

Since the introduction of indefinite sentences, the courts have repeatedly emphasised the exceptional nature of this penalty.213

Indefinite sentences in Queensland [12.270] A court may impose an indefinite sentence on an offender who is convicted of a “qualifying offence”: PSA(Qld), s 163. “Qualifying offence” is defined as an indictable offence against a provision of the QCC listed in Schedule 2 PSA(Qld), or that involved counselling or procuring the commission of, or attempting or conspiring to commit, a relevant Code provision: PSA(Qld), s 162. Examples of qualifying offences include murder (QCC, ss 302, 305), taking a child for immoral purposes (QCC, s 219) and indecent treatment of children under 16 (QCC, s 210): PSA(Qld), sch 2. Before an indefinite sentence can be imposed, the court must be satisfied that the Mental Health Act 2000 (Qld)214 does not apply: PSA(Qld), s 163(3). In imposing an indefinite sentence, the court must also be satisfied (s 163(3)): (b)

that the offender is a serious danger to the community because of: (i) (ii) (iii)

the offender’s antecedents, character, age, health or mental condition; and the severity of the offence; and any special circumstances.

208

Buckley v The Queen (2006) 224 ALR 416 at 425-426 [40]; see also 418 [7].

209

In the case of the application of short finite sentences and the decision to make an order for indefinite imprisonment, see McGarry v The Queen (2001) 207 CLR 121 at 130-131 [25]. Buckley v The Queen (2006) 224 ALR 416 at 426 [42]. (1999) 165 ALR 219. See also R v Moffatt [1998] 2 VR 229 at 255 per Hayne JA. Buckley v The Queen (2006) 224 ALR 416 at 427 [44]; Lowndes v The Queen (1999) 195 CLR 665 at 679 [39]; R v Hatten [2007] QCA 46 at [14]; and McGarry v The Queen (2001) 207 CLR 121 at 126. Specifically, Ch 7 Pt 6 of the Mental Health Act 2000 (Qld). This Part of the Mental Health Act 2000 relates to situations where a person can be detained as a result of mental health issues.

210 211 212 213

214

[12.270] 339

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Further, pursuant to PSA(Qld), s 163(4), in determining whether the offender is a serious danger to the community, the court must have regard to: (a)

whether the nature of the offence is exceptional; and

(b)

the offender’s antecedents, age and character; and

(c)

any medical, psychiatric, prison or other relevant report in relation to the offender; and

(d)

the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

(e)

the need to protect members of the community from the risk mentioned in paragraph (d).215

The prosecution has the onus of proving that an offender is a serious danger to the community: PSA(Qld), s 169. It will not be sufficient to show that there is simply a risk of reoffending.216 In making the decision that the offender is a serious danger to the community, the court must be satisfied by “acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the finding”: PSA(Qld), s 170.217 A broad range of evidence can be considered, including medical reports: PSA(Qld), s 167. For example, although counsel for the prosecution can apply for an indefinite sentence to be imposed (PSA(Qld), s 163(1)(b)), they can only do so with the consent of the Attorney-General: PSA(Qld), s 165. Further, where the court intends to order an indefinite sentence on its own initiative (PSA(Qld), s 163(1)(a)), or where the prosecution applies, the matter must be adjourned for at least 20 days so that the parties can organise the calling of evidence: PSA(Qld), s 166. If the court does order an indefinite sentence, it must give reasons for doing so: PSA(Qld), s 168. The order must also state the term of imprisonment (the “nominal sentence”) the court would have authorised had it not imposed an indefinite sentence: PSA(Qld), s 163(2). There are also mechanisms in the PSA(Qld) that ensure that indefinite sentences are reviewed. The offender may apply for such a review (PSA(Qld), s 172) but, in any event, the court is obliged to undertake periodic review of the sentence: PSA(Qld), s 171. At each review, the court must be satisfied that the offender continues to be a serious risk to the community and, if not, the court is required to order the indefinite sentence be discharged and then sentence the offender on the violent offence for which the indefinite sentence was originally imposed: PSA(Qld), s 173. As an example of the application of these provisions, Raymond Garland218 was sentenced for a number of offences in 1998. Indefinite sentences were imposed on four charges of rape and life imprisonment was identified as the sentence that

215

This is not an exhaustive list; other factors may also be considered: see R v D [2003] QCA 547 at [33], where the risk of further degradation, outrage, blighted lives and miserable families was also considered. See also R v Wilson [1998] 2 Qd R 599 at 668-670 per Pincus J, where he emphasises that dangerousness should be assessed at the time of sentencing.

216 217

McGarry v The Queen (2001) 207 CLR 121 at 159 [118] per Kirby J. This has been described as a “very high standard of proof”: see R v Stone [1999] 2 Qd R 413 at [5] per de Jersey CJ.

218

R v Garland (2014) 242 A Crim R 493; [2014] QCA 3.

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would have been imposed but for the indefinite sentence. The sentence was reviewed in 2012 but Garland was considered a continuing risk and was not released. The matter was reviewed again in 2014. In the 2014 review, the applicant argued the conclusion that Garland was still a serious danger to the community within the meaning of s 173(1) should not have been reached because: “if the indefinite sentence was discharged that would simply mean that the applicant would continue his imprisonment on the basis of the nominal sentence, namely the life sentence; and that would not mean an immediate release into the community because, if the applicant made an application for parole, the applicant’s release would be governed by decisions made by the Parole Board”. (at [15]). The Court of Appeal dismissed the application finding that the impact of the parole provisions is only one factor to weigh in the balance (at [53]) and that under s 173(1) the court has to decide whether it is satisfied that the offender is: “still a serious danger to the community when a review is made”. If the court cannot reach that state of satisfaction then it is obliged to discharge the indefinite sentence. The words of subsection (1) make it clear by the use of the phrase “when a review is made” that it means that the relevant offender is currently a serious danger at the time when the court conducts the review (at [60]).

SEXUAL OFFENDERS AND PREVENTIVE DETENTION [12.280] In recent times, debates about law and order have concerned the question of how to deal with sex offenders, particularly those who offend against children.219 Although the indefinite sentences provisions may be applicable when the person is before the court for sentencing, those provisions do not operate when sexual offenders are due to be released at the expiration of their sentence. In 2003, the Queensland Parliament introduced its controversial Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). According to the Explanatory Notes, the legislation would enable “the Supreme Court to order the post-sentence preventive detention or supervision of sex offenders who pose a serious danger to the community if released at their sentence expiry date”.220 At the time the DPA was introduced, s 18 of the Criminal Law Amendment Act 1945 (Qld) (CLA) allowed indeterminate detention of those sexual offenders who are incapable of exercising control over their sexual instincts, but where continued treatment may cure the incapacity. However, according to the Explanatory Notes for the DPA, the test in s 18 of the CLA was outdated and difficult for prosecuting authorities to meet.221 Further, this provision did not apply to those offenders who chose not to control their sexual instincts or who were incapable of being cured.222 219

220 221

See M Bull, Punishment and Sentencing (Oxford University Press, South Melbourne, 2015) ch 4: “Child Sexual Offences and Community Notification”; B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011). For a consideration of whether these systems should exist see: A Ashworth and L Zedner, Preventive Justice (Oxford University Press, 2014) pp 144–152; P Keyzer and B McSherry, “The Preventive Detention of ‘Dangerous’ Sex Offenders in Australia: Perspectives at the Coalface” (2013) 2 International Journal of Criminology and Sociology 296. Dangerous Prisoners (Sexual Offenders) Bill 2003 (Qld), Explanatory Notes, p 1. Dangerous Prisoners (Sexual Offenders) Bill 2003 (Qld), Explanatory Notes, p 2.

222

Dangerous Prisoners (Sexual Offenders) Bill 2003 (Qld), Explanatory Notes, p 2. [12.280] 341

Criminal Process in Queensland

Thus, the focus of the DPA is on catching those who may be at risk of “falling through the cracks” between the criminal justice and mental health schemes.223 In Queensland, impetus for the DPA was provided by extensive public concern when Dennis Raymond Ferguson224 was released in 2003 after serving a sentence for the kidnap and sexual abuse of three children.225 The DPA applies to those prisoners who are serving a period of imprisonment for a “serious sexual offence”: DPA, s 5(6).226 During the last six months of the prisoner’s period of imprisonment (DPA, s 5(2)),227 an application can be made to the Supreme Court for orders for continuing detention or for supervision of a prisoner post-release: DPA, ss 5(1) and 8.228 The courts have found that applications need to be commenced within a reasonable time; if they are commenced too late they may be refused.229 Initially, a preliminary hearing will take place and if the judge is satisfied that there are reasonable grounds for believing that the prisoner poses a serious danger to the community, they will set a date for a hearing in relation to imposing a final order. At this point, the judge may also order that the prisoner be examined by two psychiatrists. The psychiatrists must prepare independent reports that address the risk posed by the prisoner: DPA, ss 8 and 11. The Supreme Court can ultimately make a final continuing detention order or a supervision order: DPA, s 13(5).230 To make an order, the court must be satisfied that the prisoner is a “serious danger to the community” in the absence of a continuing detention order or a supervision order: DPA, s 13(1) and (2). The paramount consideration in deciding to make one of these orders is the need to ensure adequate protection of the community: DPA, s 13(6).231

223

224 225 226 227

228 229

230

231

See G Zdenkowski, “Community Protection Through Imprisonment Without Conviction: Pragmatism versus Justice” (1997) 3 Australian Journal of Human Rights 1 at 12-14. Zdenkowski also notes (at 13) that it is misleading to suggest that there can be a “seamless web of community protection via state action” For an extended discussion, see B McSherry and P Keyzer, Sex Offenders and Preventive Detention (The Federation Press, Sydney, 2009) pp 6-12. B McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Criminal Law Journal 94 at 100-101. This is defined in the Schedule to the Act as an offence of a sexual nature involving violence or against children. The requirement that the application be made so late in the prisoner’s term of imprisonment is so that the prisoner can make the most of the rehabilitation programs available in prison: Dangerous Prisoners (Sexual Offenders) Bill 2003 (Qld), Explanatory Notes, p 5. The application is made by the Attorney-General in Qld: DPA, s 5. See, eg, Attorney-General (Qld) v Watego (2003) 142 A Crim R 537, where the application was made only one week before the prisoner was due to be released. Note also that courts have noted that appropriate treatment and programs should be provided to prisoners during their period of imprisonment and prior to an application under the preventive detention legislation: see Attorney-General (Qld) v Friend [2009] QSC 135. Note that if a supervision order is made, the “prisoner” may be required to wear an electronic tracking device: DPA, s 16A(2)(b); Queensland Government, Managing Sex Offenders in the Community: https://www.qld.gov.au/law/crime-and-police/crime-prevention-and-s tatistics/managing-sex-offenders-in-the-community/. See Fardon v Attorney-General (Qld) (2004) 210 ALR 50 at [54] and [210]; Attorney-General (Qld) v Henry [2014] QSC 108.

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In Attorney-General (Qld) v Francis,232 the Queensland Court of Appeal observed (at [39]): The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.233

Both preventive detention orders234 and supervision orders are regularly made. In Yeo v Attorney-General (Qld), the court concluded that the respondent was suitable for strictly supervised release from custody.235 While in Attorney-General (Qld) v Penningson236 the court made an order for continued detention. On some occasions, despite an application for detention or supervision, the court has dismissed the application.237 The court may decide that the person would be a serious danger to the community if released only if it is satisfied (DPA, s 13(3): (a)

by acceptable, cogent evidence; and

(b)

to a high degree of probability;

that the evidence is of sufficient weight to justify the decision. In making the decision about final orders, the court must consider the psychiatrists’ reports produced pursuant to DPA, ss 8(2), 11 and 13(4)(a) as well as a number of other matters relevant to the offender’s prior offending history, efforts at rehabilitation and risk generally: DPA, s 13(4). Usually, psychiatric reports are produced and psychiatrists are subjected to cross-examination. The courts have taken the view that evidence produced in support of applications under the Act should be of a high standard – at least, the standard of evidence required for indefinite detention applications is presumably required under the DPA.238 Lyons J has noted: Given the fact that what is at stake is the respondent’s right to personal liberty this is a serious enquiry and on the basis of Briginshaw v Briginshaw it is clear that reasonable satisfaction should not be produced by “inexact proofs, indefinite testimony, or indirect inferences”.239

232 233 234 235 236 237 238

239

[2007] 1 Qd R 396; [2006] QCA 324. Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [39]; see also Attorney-General (Qld) v HTR [2007] QSC 19 at [93] per Lyons J. M Brown, “Preventive Detention and the Control of Sex Crime: Receding Visions of Justice in Australian Case Law” (2011) 36(1) Alternative Law Journal 10. [2012] 1 Qd R 276. [2016] QSC 146. See, eg, Attorney-General (Qld) v Watt [2012] QSC 291. See Thompson v The Queen (1999) 165 ALR 219 at 224 per Kirby J; see also R v Moffatt [1998] 2 VR 229 at 255 per Hayne JA; and note the discussion above in relation to indefinite detention. See also McSherry’s comments: B McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Criminal Law Journal 94 at 106. Attorney General (Qld) v HTR [2007] QSC 19 at [54] per Lyons J, quoting from Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. [12.280] 343

Criminal Process in Queensland

In deciding to order preventive detention, the court in Attorney-General (Qld) v Beattie240 considered that the accused’s refusal to participate in certain rehabilitation programs, seen against his history of “irresponsible denial”, meant that the court could not be satisfied that he would make genuine efforts to control his paedophilia.241

[12.290] In terms of providing mechanisms of accountability and protection, the DPA requires that the court provide reasons for its decision (DPA, s 17) and orders can be appealed (DPA, Pt 4). Any orders made must be regularly reviewed (DPA, s 27) or the “prisoner” may apply for review with the leave of the court: DPA, s 28. What has been of significant and increasing concern in recent cases is that the quality of the detention should be rehabilitative rather than punitive. This requires the provision of appropriate courses and treatment for prisoners during periods of preventive detention. However, this has not always been made available to prisoners.242 Rehabilitation also needs to be amenable to the cultural requirements of the “prisoner”.243 The first application under the DPA in 2003 involved Robert John Fardon. This case provided a test case for the constitutionality of these kinds of regimes. Fardon had a lengthy criminal record.244 In 1967, Fardon was placed on a good behaviour bond. In 1980, he was sentenced to 13 years’ imprisonment for rape and indecent dealing of a 12-year-old girl and the wounding of her 15-year-old sister. He was released on parole and within 20 days of release he raped and assaulted a woman. In 1989, he was sentenced to serve 14 years’ imprisonment for these offences. Before the expiration of his sentence, the Attorney-General made an application under the DPA. Muir J of the Supreme Court made an initial order requiring psychiatric examination pursuant to DPA, s 12.245 Fardon appealed on the basis that the DPA was beyond the legislative competence of the Queensland Parliament. By a 2:1 majority, the Queensland Court of Appeal dismissed the appeal.246 Fardon appealed to the High Court, arguing that s 13 of the DPA (the final orders provision) conferred jurisdiction on the Supreme Court that was repugnant to its integrity as a court. The majority found the provision was valid

240 241

242 243 244 245 246

[2007] QCA 96. Attorney General (Qld) v Beattie [2007] QCA 96 at [32] per Keane JA (Holmes JA and Douglas J agreeing). But see J Ware, W Marshall and L Marshall, “Categorical Denial in Convicted Sex Offender Cases: The Concept, its Meaning, and its Implication for Risk and Treatment” (2015) 25 (Part B) Aggression and Violent Behavior 215. See Yeo v Attorney-General (Qld) (2007) 170 A Crim R 213; [2007] QCA 32; Yeo v AttorneyGeneral (Qld) [2011] QCA 170. Attorney-General (Qld) v Burke [2008] QSC 313. See Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 587 [4]; most recently see Attorney-General (Qld) v Fardon [2013] QCA 365. See Attorney-General (Qld) v Fardon [2003] QSC 200. See Attorney-General (Qld) v Fardon [2003] QCA 416 per de Jersey CJ and Williams J (McMurdo P dissenting). See also the discussion in B McSherry, “Indefinite and Preventive Detention Legislation: From Caution to an Open Door” (2005) 29 Criminal Law Journal 94 at 102.

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and remitted Fardon back to the Queensland Court of Appeal for hearing.247 Gleeson CJ observed (at 389): [T]he way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an intractable problem.

Callinan and Heydon JJ stated (at 658) that the DPA was: designed to achieve a legitimate, preventative, non-punitive purpose in the public interest, and to achieve it with due regard to a full and conventional judicial process, including unfettered appellate review.248

McHugh J identified a number of key points (at 596):249 • the DPA was directed, not at a particular person but at all those who were serving a period of imprisonment for a “serious sexual offence”; • when making an order under s 15 of the DPA, the Supreme Court was exercising judicial power; • the court retains a discretion to make an order; • the court must be satisfied of unacceptable risk to a high degree of probability and the Attorney-General bears the onus of proof; • the DPA is directed to those who have not been rehabilitated while serving a period of imprisonment; • there is nothing in the Act that might lead to the perception that the court is acting in conjunction with the legislature or the executive.250 In his dissenting judgment, Kirby J found the DPA invalid.251 He noted the risks inherent in predicting future dangerousness, suggesting that such predictions by psychiatrists could at best be informed guesses.252 He observed that there was no evidence that the “detention” pursuant to the order would be carried out anywhere other than in the offender’s usual prison cell and thus the effect of the order was continued punishment, not simply detention.253 The DPA thus offended the rule against double jeopardy.254 Kirby J noted that the effect of such an order under the DPA was the deprivation of the fundamental human right to personal liberty based on an unreliable guess in regard to the risk of danger to the

247

251 252 253

Fardon v Attorney General (Qld) (2004) 223 CLR 575 per Gleeson CJ, McHugh, Gummow, Callinan, Hayne JJ majority (Kirby J dissenting). The case paved the way for the development of similar regimes in other Australian jurisdictions, see T Tulich, “Post-Sentence Preventive Detention and Extended Supervision of High Risk Offenders in New South Wales” (2015) 38 (2) UNSW Law Journal 823. See also (2004) 223 CLR 575 at 592 [19] per Gleeson CJ. Fardon v Attorney General (Qld) (2004) 223 CLR 575 at 596 [34] per McHugh J; see also Gummow J (at 617 [102]). See also Fardon v Attorney General (Qld) (2004) 223 CLR 575 at 617 [102] per Gummow J, where he notes that “[p]erception as to the undermining of public confidence is an indicator, not a touchstone, of invalidity; the touchstone concerns institutional integrity”. Fardon v Attorney General (Qld) (2004) 223 CLR 575 at 648 [198] per Kirby J. (2004) 223 CLR 575 at 623 [125] per Kirby J. (2004) 223 CLR 575 at 643 [130] per Kirby J.

254

(2004) 223 CLR 575 at 643 [180] per Kirby J; see also Chapter 7.

248 249 250

[12.290] 345

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community.255 He also emphasised the court’s role in protecting unpopular minorities and the role of Ch III of the Commonwealth Constitution in this regard.256 His Honour found that the DPA did not conform to established legal principle and that it created an inappropriate role for the court.257 Ultimately, the risks associated with orders pursuant to the DPA have been balanced against the risks of releasing potentially dangerous offenders at the completion of their sentence. The regime appears to be popular with a community that is focused on risk aversion, potentially at the expense of many of the established principles of criminal justice. In April 2010, the United Nations Human Rights Committee (the Committee) considered a complaint brought to their attention by Robert Fardon and Ken Tillman. Fardon and Tillman were detained pursuant to the preventive detention legislation in Queensland and New South Wales respectively. The two men argued that the preventive detention legislation inflicted arbitrary detention and double punishment contrary to the International Covenant on Civil and Political Rights (ICCPR).258 The Committee upheld the complaint and found that the further imprisonment of Fardon and Tillman under these laws was inconsistent with the ICCPR. Keyzer, who helped prepare the complaint, notes that, as a result of this decision, post-sentence detention under Australia’s preventive detention regimes is inconsistent with international human rights law and the two men should be released along with others currently being held in prison under preventive detention legislation.259 Keyzer observes that in order to effect the Committee’s decision, and comply with their obligations under the ICCPR, Australian States that have preventive detention regimes in place should adopt preventive detention policies that do not use prison, which is punitive in character, as a venue for treatment.260

RISK ASSESSMENT [12.300] The key assessment for judges hearing preventive detention applications and considering indefinite sentences is risk assessment; this is a science that continues to be, at best, imprecise.261 Risk assessment techniques rely on a range

255 256

(2004) 223 CLR 575 at 623 [125] per Kirby J. (2004) 223 CLR 575 at 642 [135] per Kirby J.

257 258

(2004) 223 CLR 575 at 645 [148] per Kirby J. For further discussion, see: R Sifris, “An International Human Rights Perspective on Detention Without Charge or Trial: Article 9 of the International Covenant on Civil and Political Rights” in B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011). P Keyzer, “Queensland and NSW Preventive Detention Laws Inconsistent with International Human Rights Law” (News Release, 23 April 2010): https://bond.edu.au/news/44432/queens land-and-nsw-preventive-detention-laws-inconsistent-international-human-rights-law. For discussion see P Keyzer “The International Human Rights Parameters for the preventive detention of serious sex offenders” in B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011) p 29-31. R Tully, S Chou, K Browne, “A Systematic Review on the Effectiveness of Sex Offender Risk Assessment Tools in Predicting Sexual Recidivism of Adult Male Sex Offenders”. (2013) 33 Clinical Psychology Review 287.

259

260

261

346 [12.300]

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of assumptions that are increasingly being challenged.262 For example, the preventive detention regimes apply to “serious sexual offenders”, a group considered to share particular characteristics, including a “particularly high propensity to re-offend”.263 However, this assumption is increasingly being disputed;264 research suggests that serious sexual offenders as a group have a relatively low probability of reoffending, perhaps around 17.5% or less.265 The challenge for the courts is in identifying those who will reoffend. This is a highly problematic task given that risk predictions are found to be incorrect as often as they are correct and, as the stakes increase, so, too, do mistakes.266 Courts have placed a strong emphasis on the risk assessment reports and other evidence of psychiatrists.267 A number of concerns have been identified in relation to this. For example, in discussing a proposal for the development of sexual offending monitoring legislation, Sullivan et al argue that requiring psychiatrists to determine eligibility for coercive supervision, rather than to inform treatment, is ethically contentious and may negatively impact on any therapeutic relationship.268 Essentially, psychiatrists are asked to assess danger, a skill that Ruschena argues is not a part of psychiatric training. Accordingly, a psychiatrist’s prediction of dangerousness is ultimately a subjective view.269 This suggests that the judge’s decision may be informed largely by the psychiatrist’s subjective view. Further, research has found that psychiatric evidence is likely to make the “safer” bet and overestimate risk.270 Overlaying this is the recognised tendency of judges to be similarly conservative in their predictions, favouring public safety over individual

262

263

264

265

266

267

268 269 270

For an overview of some of the techniques used see D Cooke and C Michie, “Violence Risk Assessment: Challenging the Illusion of Certainty” in B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011) pp 147-163. Dangerous Prisoners (Sexual Offenders) Bill 2003 (Qld) Explanatory Notes, p 1; see also D Biles, Sentence Release Options for High Risk Sexual Offenders (Department of Justice and Community Safety, ACT, 2005) p 18. See J La Fond, “Sexual Offender Commitment Laws in the USA: The Inevitable Failure of Misusing Civil Commitment to Prevent Future Sex Crimes” in B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011) pp 51-62. See M Oliver and S Wong, “Treatment Programs for High Risk Sexual Offenders: Program and Offender Characteristics, Attrition, Treatment Change and Recidivism” (2013) 18 (5) Aggression and Behaviour 579. M Vigorita, “Judicial Risk Assessment: The Impact of Risk, Stakes, Jurisdiction” (2003) 14(3) Criminal Justice Policy Review 361 at 373. Notably it is unclear whether standard risk assessment tools work across cultures and different offending groups, see R Tully, S Chou, K Browne, “A Systematic Review on the Effectiveness of Sex Offender Risk Assessment Tools in Predicting Sexual Recidivism of Adult Male Sex Offenders”. (2013) 33 Clinical Psychology Review 287. See L Thomson, “The Role of Forensic Mental Health Services in Managing High-Risk Offenders: Functioning or Failing?” in B McSherry and P Keyzer, Dangerous People: Policy, Prediction and Practice (Routledge, New York, 2011). D H Sullivan, P E Mullen and M T Pathe, “Legislation in Victoria on Sexual Offenders: Issues for Health Professionals” (2005) 183(6) Medical Journal of Australia 318 at 321. D Ruschena, “Determining Dangerousness: Whatever Happened to the Rules of Evidence” (2003) 10 Psychiatry, Psychology and Law 122 at 127. H Kemshall, “MAPPA, Parole and the Management of High-risk Offenders in the Community” in N Padfield (ed), Who to Release? Parole, Fairness and Criminal Justice (Willan Publishing, Devon, 2007) p 211. [12.300] 347

Criminal Process in Queensland

liberty.271 Smallbone and Wortley argue that sexual crime should be recognised as a legal, not a psychiatric, phenomenon in order to avoid some of these concerns.272 While the court must have regard to a range of matters, including psychiatric reports, established patterns of offending and prior convictions in assessing risk,273 the list provided in the preventive detention statutes is not exhaustive, and matters such as relationship instability, a personal history of being abused as a child, denial of the nature of crimes and resistance to treatment have also been seen to heighten risk.274 Psychiatrists draw together many of these factors using psychological testing instruments and these have been key tools in the determination of risk in the preventive detention and indefinite detention cases. However, the appropriateness of such tools is also increasingly being challenged.275 Within the framework provided by these tests, psychiatrists have emphasised age and offending contexts. For example, older age is thought to militate against risk and thus lessen the need for detention orders to be made. In one case, the psychiatric expert stated: As you get older, your sex drive probably reduces. Once you get past 60, sexual offending reduces. It may reflect simply a lack of interest, it may reflect greater self-control with age and also simply lack of social access to potential victims.276

However, the assumption that serious sex offenders are less likely to reoffend the older they are is not clearly supported by research. Although it is accepted that adolescent males are more likely to offend than older men, there may be some subgroups of offenders whose violent offending does not vary with age,277 and serious sex offenders may be such a group.

OTHER ORDERS Background [12.310] A number of other orders are available in Queensland and can be made as part of a sentence. Not only can orders be made that the offender return property to, or compensate, the victim of an offence, but orders may also be made that the offender stays away from the victim or others associated with the victim.

271

272

273 274 275 276 277

Although this may be considered to be appropriate: see M Vigorita, “Judicial Risk Assessment: The Impact of Risk, Stakes, Jurisdiction” (2003) 14(3) Criminal Justice Policy Review 361 at 372. S Smallbone and R Wortley, “Criminal Diversity and Paraphilic Interests Among Adult Males Convicted of Sexual Offences Against Children” (2004) 48(2) International Journal of Offender Therapy and Comparative Criminology 175 at 185. These issues have arisen in other contexts – eg, in relation to expert evidence in insanity cases. DPA, s 13(4). See also Attorney-General (Qld) v Bridson [2007] QSC 307 at [37] per White J. See G Woodworth and J Kadane, “Expert Testimony Supporting Post-Sentence Civil Incarceration of Violent Sexual Offenders” (2004) 3 Law, Probability and Risk 221. Attorney-General (Qld) v HTR [2007] QSC 19 at [42] per Lyons J, quoting from Dr Beech’s report which was submitted to the court. G Harris and M Rice, “Adjusting Actuarial Violence Risk Assessments Based on Aging or the Passage of Time” (2007) 34(3) Criminal Justice and Behaviour 297 at 309.

348 [12.310]

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Ashworth suggests that a compensation order sits rather uncomfortably with other forms of penalty, especially where it operates as the central feature of the penalty,278 because it does not fit neatly with the theoretical ideas underpinning punishment.279 In other cases, where it forms one part of the total sentence, it can be justified as “a reparative element which accompanies a proportionate sentence”.280 These alternatives are discussed below.281

Orders for restitution and compensation [12.320] Orders for restitution and compensation can generally be made whether or not the court records a conviction. Part 3 Div 4 of the PSA(Qld) allows the court to make an order requiring the offender to make restitution or pay compensation in relation to an offence committed.282 The court will adjourn the matter for a specific period so that the payments can be made. The court may order that the offender be imprisoned if they fail to comply with the order: PSA(Qld), s 36(2). However, any imprisonment is limited to one year on an indictable matter and six months on a summary matter: PSA(Qld), s 37. In circumstances where imprisonment may result from failure to comply, a conviction must be recorded. This kind of order may be made along with another sentence. The introduction of the Victims of Crime Assistance Act 2009 (Qld) may impact on the relevance of PSA(Qld), Pt 3. A victim can now apply for compensation pursuant to the VOCA where the accused has not yet been dealt with in the criminal courts. Therefore, the issue of compensation may have been resolved via the VCAA well before the offender is sentenced.283 These orders can be appealed.284

Non-contact orders [12.330] Non-contact orders require that the offender not have any contact with the victim against whom the offence was committed. Such orders may also require that the offender not have contact with an associate of the victim (someone who was with the victim when the offence was committed) or that the offender not go to a stated place or within a specific distance of a stated place. Non-contact or restraining orders can be made whether or not a conviction is recorded and can be

278

282 283

A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 324. Reparation and compensation are usually associated with civil law, although clearly it will often be difficult and impractical to sue offenders: see also L Zedner, “Reparation and Retribution: Are they Reconcilable?” (1994) 57 Modern Law Review 228. A Ashworth, Sentencing and Criminal Justice (5th ed, Cambridge University Press, Oxford, 2010) p 324. Note that it is possible for a sentencing court to order a person to surrender a passport: PSA(Qld), s 195. In relation to disqualifications see see Weapons Act 1990 (Qld) s 155; driver’s licence, Transport Operations (Road Use Management) Act 1995 (Qld), s 79B; marine licence, Transport Operations (Marine Safety) Act 1994 (Qld), ss 202A–202C. See also Chapter 15 in relation to compensating victims. See the discussion in Chapter 15 (Restoring Justice).

284

See R v Sheppard [2001] 1 Qd R 504; [2000] QCA 57.

279

280 281

[12.330] 349

Criminal Process in Queensland

made along with another sentencing order: PSA(Qld), Pt 3A.285 Non-contact or restraining orders have been ordered in various situations, including where the offender has been convicted of rape,286 indecent treatment of child under 12 years287 and of assault.288 If a person contravenes a non-contact order, they commit an offence.289 In Queensland, in situations where an offender is found guilty of an indictable offence committed against a person (a “personal offence”), the court may make a non-contact order: PSA(Qld), s 43B. Such orders may be made for a period of up to two years.290 The scheme under the PSA(Qld) is similar to that under the Domestic and Family Violence Protection Act 2012 (Qld).291 Before the court makes a non-contact order, it must be satisfied that there is an unacceptable risk that the offender would injure or harass the victim, damage the victim’s property or act in a way that could reasonably be expected to make the victim fear injury or damage to property.292

Control orders [12.340] Part 9D PSA(Qld) includes a scheme of “control orders” (see ss 161T-161ZC). A control order is a court order made to prevent, restrict or disrupt an offender’s involvement in serious criminal activity. A control order might prohibit an offender from associating with certain people or prohibit them for going to a certain place. Control orders also become relevant in the assessment of a person’s suitability for a licence, permit, certificate or other authority under the affected occupational licensing Acts. While control orders must be made as a consequence of conviction for an offence aggravated by the “Serious Organised Crime circumstance of aggravation”, there are other circumstances where a court has the discretion to make a control order (PSA(Qld, s 161W). See also the discussion of serious and organised crime at [12.250].

285 286 287 288 289 290

291

292

In Queensland, such an order should not be made where an order can be made under the Domestic and Family Violence Protection Act 2012 (Qld): see PSA(Qld), s 43B(3). R v Cosh [2007] QCA 156. Porter v The Commissioner of Police [2012] QDC 115. R v Gaudry [2005] QCA 395; Edwards v Queensland Police Service [2014] QDC 38. PSA(Qld), s 43F. That is, either two years from the day on which the term of imprisonment ends or two years after the day on which the order is made: see PSA(Qld), s 43C(2). This provision has caused some concern in relation to when an order starts where a period of suspended imprisonment has been ordered: see R v Gaudry [2005] QCA 395. As an alternative to a restraining order, the sentencing court may make or extend a domestic violence protection order if that is more appropriate: see generally, Domestic and Family Violence Protection Act 2012 (Qld). See PSA(Qld), s 43C(3) for the list of matters the court may be satisfied of in order to make a non-contact order.

350 [12.340]

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Domestic violence orders [12.350] Pursuant to section 12A PSA(Qld),293 a sentencing judge or magistrate must record a conviction for a domestic violence offence as a conviction for a domestic violence offence if: • the offence states that circumstance of aggravation that it is a domestic violence offence; • the offender is convicted of the offence; and • the court is satisfied that the offence is a domestic violence offence In addition, a court, upon conviction of the offender for an offence involving domestic violence, may make a Protection Order pursuant to section 26 of the Domestic and Family Violence Protection Act (2012) (Qld).

Serious drug offence certificates [12.360] In May 2013, Parliament introduced the Criminal Proceeds Confiscation (Unexplained Wealth and Serious Drug Offender Confiscation Order) Amendment Act 2013 (Qld). The Act introduced a system of categories for serious drug offences: Part 9C “Serious Drug Offences” Penalties and Sentences Act 1992. Once convicted of the offence, a certificate may be issued by the sentencing judge. Depending on the type of offence and how many times the offender has committed the offence, such certificates trigger the confiscations jurisdiction294 where property including vehicles, bank accounts and real property may be the subject of confiscation proceedings.

293 294

This part was introduced pursuant to the Criminal Law (Domestic Violence) Amendment Act 2015. For discussion see R v Poynter [2016] QDC 82. Criminal Proceeds Confiscation Act 2002. [12.360] 351

CHAPTER 13 Appeals [13.10] [13.20] [13.30]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 Appeals from the Magistrates Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 353 Appeals from the District and Supreme Courts. . . . . . . . . . . . . . . . . . . . . 356 [13.40] Appeal against conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 359 [13.90] Fresh or new evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 365 [13.100] The proviso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366 [13.120] Precluding the proviso . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 368 [13.160] The discretion to order a new trial . . . . . . . . . . . . . . . . . . . . . . . 371 [13.190] Appeal against sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374

OVERVIEW [13.10] This chapter considers the appeal processes that are available where the accused’s journey through the criminal justice system has resulted in conviction and sentence. In other chapters, we have considered a range of possible avenues an accused might pursue to ensure fairness of process before conviction – for example, seeking the exclusion of any unfairly or illegally obtained evidence or seeking a permanent stay of proceedings on the grounds of abuse of process. In this chapter, we examine the appeal mechanisms available to both the convicted person and to the prosecution or Attorney-General. Consideration is also given to the mechanisms that enable trial judges and the Attorney-General to refer questions of law arising out of a trial to an appellate court. The court in which an offence is heard and determined will depend on the way an offence is classified which, in turn, also determines the avenues that are available for appeal. In addition, “rights” of appeal vary according to the particular avenue of appeal and the subject matter of the appeal. Some appeals are “as of right”, while others require obtaining leave of the appellate court. Further, the “rules” vary in terms of the material that may be considered by particular appellate courts. These rules are discussed below in an overview of the appeal process from decisions of the Magistrates Court and the District and Supreme Courts. This is followed by an examination of the substantive law and issues concerning appeals against conviction and sentence.

APPEALS FROM THE MAGISTRATES COURT [13.20] An “as of right” appeal is available to a convicted person, a complainant, or a person who “feels aggrieved” by an order made by a justice in a summary way on complaint for an offence or breach of duty, to a single judge of the District

[13.20] 353

Criminal Process in Queensland

Court1 within one month of a magistrate’s order being made at the conclusion of a hearing for an offence Justices Act 1886 (Qld): s 222(1). In some circumstances, an extension of time may be granted: JA(Qld), s 224(1)(a). In considering whether or not to extend time, the court will consider the interests of justice; factors to be taken into account include whether or not the appeal is a viable one, the length of the delay, the reasons for the delay and prejudice to the respondent.2 An appeal to the District Court may be available not only to the original “parties” to the hearing, but also to anyone who feels aggrieved by the decision. This raises the question of the appropriateness of extending appeal rights to persons who are not parties to the legal “contest” between the State and the accused. With the increasing emphasis on victims’ rights throughout the criminal justice system,3 some might argue that a victim who is dissatisfied with a magistrate’s decision is properly afforded the opportunity to appeal as an “aggrieved” person. However, what is clear is that standing to appeal is not afforded to a mere “busybody”; the aggrieved person must have a “real or direct interest in the proceedings”.4 To institute an appeal, a notice of appeal is filed in the District Court registry, stating the ground or grounds of appeal.5 There are three clarifications or “exceptions” set out in JA(Qld), s 222(2). First “a person can not appeal against a conviction or order made in a summary way under the Criminal Code s 651”: JA(Qld), s 222(2)(a) (see [5.80]). Second, if a Magistrates Court summarily decided an indictable offence,6 the complainant7 can only appeal against the sentence imposed or any costs order made by the magistrate: JA(Qld), s 222(2)(b). An appeal of that nature will also be to a single judge of the District Court. However, the Attorney-General may also appeal against a sentence8 imposed by a magistrate following the summary determination of an indictable offence. All appeals by the Attorney-General are

1

2 3

Note also that where a magistrate is exercising federal jurisdiction, an avenue of appeal exists, in theory, directly to the High Court if that court gives special leave: Commonwealth Constitution (Cth) s 77, read with Judiciary Act 1903 (Cth) ss 35, 35A and 39(2). However, all state appeal avenues should be pursued before seeking leave to the High Court. R v Tait [1999] 2 QdR 667; for discussion of R v Tait in the context of an appeal to the District Course see: Dafydd v The Commissioner of Police [2013] QDC 12. See Chapter 15, which discusses restorative justice.

4

McCarthy v Xiong (1993) 2 Tas R 280 at 305 per Underwood J. There the appellant was charged with trespass of a certain property. The property’s owner was regarded as a person aggrieved by the decision. Underwood J (at 305) noted, however, that the requirement to have a real or direct interest does not require a proprietary or pecuniary interest.

5 6

See JA(Qld), ss 222(3), (4), (5), (8) and 222C-222E. See QCC, Ch 58A, discussed in Chapter 5 at [5.100].

7 8

The complainant in the Magistrates Court will usually be a police prosecutor. The Attorney-General can also refer a point of law which arose at a summary trial for an indictable offence to the Court of Appeal. This is the case even where the accused was acquitted or where the prosecution indicated it would not proceed further. However, the outcome of the reference does not affect the accused’s discharge: QCC, s 669A(2A) and (5). Additionally, the Attorney-General may appeal against an order made by a magistrate in a summary way on a complaint for an offence or breach of duty within 1 month after the date of the order to a District Court judge: JA(Qld), s 222(2A).

354 [13.20]

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heard in the Court of Appeal: QCC, s 669A(1).9 Consequentially, an appeal by a convicted person is automatically moved from the District Court to the Court of Appeal if the Attorney-General also appeals: QCC, s 669A(6). Third, if the appellant contested the case in the Magistrates Court, they may appeal against conviction and/or sentence. However, if an appellant pleaded guilty, any appeal is confined to sentence or an order for costs: JA(Qld), s 222(2)(c). As Ashworth has noted about appeals in the lower levels of the United Kingdom court hierarchy, this restriction, in light of the fact that most accused plead guilty, is concerning since a plea of guilty does not necessarily equate to factual and legal guilt.10 In any event, Queensland case-law has identified some possible exceptions, for example where the appellant’s plea was equivocal or, upon analysis, amounted to a plea of not guilty, or where the appellant had entered a plea of guilty to a charge that clearly did not exist at law.11 In R v Hennessy,12 for example, the judge on appeal was persuaded that the appellant had entered pleas of guilty without a proper understanding of what was entailed in the pleas. The appellant claimed he was of unsound mind when he entered the pleas and the appeal was allowed. Where the appeal is conducted in the District Court, the appellant, including an appellant who is in custody, is generally entitled to be present at the hearing: JA(Qld), s 224A.13 An appeal generally proceeds as a rehearing of the case on the original evidence that was before the magistrate: JA(Qld), s 223. That evidence will be available as a transcript of the recorded proceedings in the Magistrates Court. However, if the appeal judge is satisfied that there are special grounds warranting leave to be granted for “new” evidence to be given, that additional evidence will also be considered.14 The principles that govern the circumstances where “new” or “fresh” evidence may be received are discussed later in this chapter at [13.90]. After considering the evidence, if the judge upholds the appeal, the judge will make relevant orders, either varying or substituting the magistrate’s order/s or setting aside the original order/s and sending the matter back to the Magistrates Court for reconsideration: JA(Qld), s 225.15 Regardless of whether or not the appeal is successful, a costs order can be made by the District Court judge: JA(Qld), s 226. A further appeal from the judgment of the District Court judge is

9 10 11 12 13

14 15

The reference in the section is simply to “court”; however, QCC, s 668 defines “court” as the Court of Appeal. See also [13.30]. A Ashworth and M Redmayne, The Criminal Process (4th ed, OUP, New York, 2010) pp 372-373. Ajax v Bird [2010] QCA 2 at [5]. [2010] QCA 345; see also Hall v Bobbermen [2009] QDC 188. However, where the appeal is only on a question of law, an appellant must obtain the court’s leave to be present. While a convicted person who appeals is generally entitled to be present, this does not mean that they must be present, and the District Court judge can make a sentencing order in the appellant’s absence. See, eg, Hines v Commissioner of Police [2016] QCA 3. See also JA(Qld), s 227, which enables a District Court judge to refer any question of law arising from the case to the Court of Appeal for its opinion. See, eg,: Harrison v Wilkins [1996] QCA 170. [13.20] 355

Criminal Process in Queensland

available to the Court of Appeal if the Court of Appeal grants leave.16 In practice, the application for leave is filed in the Court of Appeal, together with the notice to appeal and, where leave to appeal is granted, the court immediately proceeds to hear the appeal.17

APPEALS FROM THE DISTRICT AND SUPREME COURTS [13.30] Appeals from either the District Court or the Supreme Court are heard by the Court of Appeal.18 An appeal is available “as of right” in Queensland if it only involves a question of law: QCC, s 668D(1)(a). In all other cases, leave to appeal must be obtained from the Court of Appeal: QCC, s 668D(1)(b) and (c).19 In theory at least, for leave to be granted the appellant must demonstrate reasonable prospects of success.20 Findlay points to Art 14(5) of the International Covenant on Civil and Political Rights which affords to all persons convicted of a crime a right of review of conviction and sentence by a higher tribunal. In circumstances where leave is refused there may be a concern that the principle is not fully applied in the higher courts of Australia.21 However, while the requirement for leave to be obtained may have been introduced to act as a filter to prevent floods of appeals, it is likely that other factors including financial considerations, inappropriate legal advice, or the fear that a sentence may be increased, may be more likely to deter a convicted person from appealing.22 In practise, the question of leave is usually dealt with alongside the consideration of the merits of the appeal.23 A convicted person must lodge their appeal (and, if necessary, an application for leave to appeal), stating the grounds of appeal,24 within one month, although the time can be extended if there are good reasons for doing so: QCC, s 671(1) and (3). In considering whether or not to extend time, the court will have regard to the

16

17

18

19 20 21 22 23 24

District Court of Queensland Act 1967 (Qld) s 118(3); Attorney-General (Qld) v Morris & Anor [2015] QCA 112. See also for a discussion of leave R v NM [2013] 1 Qd R 374; [2012] QCA 173 at [2]-[6] per Holmes JA. The time limit for lodging the appeal is 28 days from the order of the District Court Judge: District Court Rules 1968 (Qld) r 334. See also District Court of Queensland Act 1967 (Qld) s 119 for the Court of Appeal’s powers on a further appeal, including the power to make a costs order. In 2014-2015 the Queensland Court of Appeal 64 appeals against conviction were lodged Supreme Court of Queensland, Annual Report 2014-2015 at p15: http://www.courts.qld.gov. au/__data/assets/pdf_file/0006/458502/scar-2014-2015.pdf. See, eg, R v Zischke [1983] 1 QdR 240 - where appeal mixed on law and fact. Lewis (2006) 163 A Crim R 169. M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, Melbourne, 2014) p 281. A Ashworth and M Redmayne, The Criminal Process (4th ed, OUP, New York, 2010) p 374. See R v NM [2013] 1 Qd R 374; [2012] QCA 173 at [2]-[6] per Holmes JA. Grounds for appeals against conviction are discussed in detail at [13.40]; grounds for appeals against sentence are considered at [13.190].

356 [13.30]

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interests of justice. Factors to be taken into account include whether or not the appeal is a viable one, the length of the delay and the reasons for the delay.25 An applicant26 may appeal against the conviction and/or sentence that is ordered by the trial or sentencing court. This includes a sentence imposed for a summary offence by either the District Court or the Supreme Court under QCC, s 651.27 The Attorney-General may also (as of right) appeal a sentence or the stay of an indictment: QCC, s 669A(1) and (1A).28 While the Attorney-General cannot appeal against an acquittal, they can refer to the Court of Appeal a point of law arising from the trial, framing it as a question for the court to determine. However, the court’s response to the reference cannot affect the acquittal: QCC, s 669A(2) and (5).29 This course might be taken, for example, where an issue in the trial presents a “test case” to the judge, as in R v Lovell; Ex parte Attorney General (Qld)30 concerning the definition of grievous bodily harm.31 A trial judge can also refer a point of law arising at trial to the Court of Appeal: QCC, s 668B. The procedure is commonly referred to as a “case stated”. For example, in R v Kaporonowski,32 the trial judge stated a case, asking whether or not, on the evidence at the trial, a defence of accident33 was available to Kaporonowski, and whether or not a defence of provocation is available to a person

25

26

27

28 29

R v Tait [1999] 2 Qd R 667 at 668 at [5]; see also R v Buchanan [2016] QCA 33 emphasising that an extension of time must be in the interests of justice; see also Kentwell v The Queen (2014) 88 ALJR 947; [2014] HCA 37; O’Grady v The Queen (2014) 88 ALJR 960; [2014] HCA 38 on this point. The term “applicant”, rather than “appellant”, is used when an appeal first requires the leave of the court – ie, in all circumstances apart from where the appeal is taken on a question of law alone. In 2014-2015, 64 appeals against conviction and 43 appeals against both conviction and sentence were filed in the Queensland Court of Appeal: Queensland Courts, Supreme Court of Queensland Annual Report 2014-2015, p 9: http://www.courts.qld.gov.au/__data/assets/pd f_file/0006/458502/sc-ar-2014-2015.pdf. The same time limit applies to the Attorney-General for lodging an appeal and possible extension of time as for a convicted person: QCC, s 671(2) and (3). See QCC, s 669A(2) for the other matters which may be the subject of a reference – eg where a ruling by the trial judge that certain (prosecution) evidence was inadmissible led to the prosecution entering a nolle prosequi (see Chapter 8 at [8.200]) and the AttorneyGeneral wishes to test that ruling. See also the discussion in respect of the reforms to the double jeopardy rules in Chapter 7 at [7.210].

30

[2015] QCA 136.

31

For other examples see R v F; ex parte Attorney-General [1998] QCA 97; R v Rollason and Jenkins; ex parte A-G (Qld) [2008] 1 Qd R 85; [2007] QCA 65. R v Kaporonowski [1972] Qd R 465. The Court of Criminal Appeal decided that the answers to the questions were “yes” and “no” respectively. Kaporonovski appealed to the High Court against that decision but the appeal was dismissed: Kaporonovski v The Queen (1973) 133 CLR 209.

32

33

QCC, s 23(1)(b). (Note that s 23(1)(b) has since been amended by the Criminal Code and Other Legislation Amendment Act 2011 (Qld). However, the amendment does not change the circumstances in which a person is criminally responsible.) [13.30] 357

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charged with doing grievous bodily harm. When a judge states a case,34 the trial continues but the “judgment” or its “execution” is postponed until the Court of Appeal has delivered its answer to the reference: QCC, s 668B(2). In practice, this means that if the trial proceeds and a guilty verdict is returned, the accused can be convicted and sentenced. However, the actual serving of the sentence is suspended until the reference is answered. In theory, bail could be granted pending the decision of the reference, but presumably exceptional circumstances would need to be shown.35 Although an appellant is generally entitled to be present at the hearing,36 legally represented appellants commonly do not appear in person in the Court of Appeal. Increasingly those in custody will appear on video-link. At the appeal hearing, the court and the parties will have a copy of the appeal record book which is produced by the court. Where there is an appeal against conviction and sentence this will include the trial transcript and the judge’s sentencing remarks: QCC, ss 671A and 671K.37 Where the appeal is against sentence only, the appeal record book will not ordinarily contain the trial transcript. As with appeals at the lower level, additional evidence may be adduced on an appeal: QCC, s 671B.38 The principles governing these circumstances and illustrative cases concerning “fresh” or “new” evidence are discussed (at [13.90]). The court can only uphold an appeal against conviction where one of the specified grounds is established. All appeals are further subject to an important qualification, known as “the proviso”. The application of the proviso is discussed later in this chapter (at [13.100]). When an appeal against conviction is upheld, the court must39 quash the conviction and direct a verdict of acquittal to be entered: QCC, s 668E(2). This is of practical importance as without that order being formally made there is no basis to trigger a successful appellant’s release from custody.

34

Note that at any time before verdict, the defence may make an application for the trial judge to refer a point of law to the Court of Appeal, by a case stated, and the judge is obliged to make the reference: QCC, s 668B(1).

35

For a discussion of bail applications after a guilty verdict, see Chapter 4 at [4.80].

36

QCC, s 671D. In Queensland, the appellant is entitled to be present unless the appeal involves only a question of law, in which case leave is required: QCC, s 671D(1) and (1A). See also Supreme Court of Queensland Practice Direction 2 of 2010, Court of Appeal, http://w ww.courts.qld.gov.au/__data/assets/pdf_file/0006/86433/sc-pd-2of2010.pdf published by the Chief Justice 7 May 2010. In addition, the trial judge in Queensland is required to provide a report to the court giving their opinion of the case: QCC, s 671A(1). In practice, it is unusual for a trial judge to comment on any aspect of the case in their report, but there is authority that the judge’s opinion is a factor to be taken into account at the appeal: Warrill v The King [1943] St R Qd 39.

37

38 39

See also QCC, s 671B in relation to the general powers of an appeal court to order such things as the production of documents, witnesses, or expert assistance. That is, subject to the court’s power in special cases: QCC, s 668F. For example, where the person was convicted of an offence and on the evidence the jury must have been satisfied beyond reasonable doubt that they were guilty of another offence that was open on the indictment, the court can substitute the jury’s verdict on the former offence with a guilty verdict on the other offence, and impose a sentence, provided the sentence is less than that ordered by the trial judge.

358 [13.30]

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There are two final points to note. The court has power to order a new trial40 where it considers there has been a miscarriage of justice that would best be addressed by a retrial (see at [13.160]). Further, and conversely to appeals from the Magistrates Court, no costs can be awarded on any appeal to the Court of Appeal: QCC, s 671F.

Appeal against conviction Grounds of appeal [13.40] A notice of appeal must include one or more grounds of appeal, framed by reference to the grounds specified in the appropriate legislation: QCC, s 668E. They are: 1.

the jury’s verdict is unreasonable or cannot be supported having regard to the evidence; or

2.

the trial judge has made a wrong decision on a question of law; or

3.

there has been a miscarriage of justice.

Clearly, there may be some overlap between the grounds; however, unreasonableness of verdict arguments are usually separated from miscarriage arguments. Where the court finds there has been an error of law or a miscarriage of justice, the question then becomes whether the proviso should be applied – that is, notwithstanding successful arguments by the appellant, whether the court should dismiss the appeal since no substantial miscarriage of justice has actually occurred.41

Unreasonable or cannot be supported by the evidence [13.50] This ground of appeal has often been referred to in the cases as an “unsafe and unsatisfactory verdict”.42 In M v The Queen (M),43 the High Court held that the approach to be taken in deciding whether or not the jury’s verdict was unsafe or unsatisfactory should be to consider all the evidence that was before the trial court and decide whether “it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.44 The High Court recognised that there may 40 41

42

43 44

QCC, s 669. See Judge S Tilmouth, “The Wrong Direction: A Case Study and Anatomy of Successful Australian Criminal Appeals” (2015) 40 Australian Bar Review 18 for an overview of successful appeals based on particular grounds. See, eg, Chidiac v The Queen (1991) 171 CLR 432 at 451-452; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 534 and 607; Carr v The Queen (1988) 165 CLR 314 at 330-334; and Knight v The Queen (1992) 175 CLR 495 at 511. Other terms used include “unjust or unsafe”: Davies v The King (1937) 57 CLR 170 at 180; and “dangerous or unsafe”: Ratten v The Queen (1974) 131 CLR 510 at 515. For a discussion on whether the Court of Appeal is effectively usurping the jury’s verdict by deciding that their verdict was unsafe or unsatisfactory, see J Gans, “Whom do you Believe?: Criminal Appeals, Conflicting Testimony and the Burden of Proof” (2000) 22 Sydney Law Review 220. (1994) 181 CLR 487; M v The Queen [1994] HCA 63. M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ. Brennan, Gaudron and McHugh JJ each delivered separate dissenting judgments. McHugh J [13.50] 359

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be cases where a verdict is unsafe despite not falling within the “unreasonable/ unsupportable” criteria, and that such cases call for setting aside a conviction on the basis of a miscarriage of justice. The majority in M45 emphasised that this ground of appeal concerns only factual issues, the responsibility for which is primarily entrusted to the jury. At trial, the jury has an advantage that the appellate court does not share – namely, seeing and hearing the witnesses.46 Therefore, in answering the question whether it was open to the jury to return a guilty verdict, the court must pay full regard to the jury’s benefit in seeing and hearing the witnesses. The court stated (at 493-494): [I]n most cases a doubt experienced by an appellate court as to the guilt of the accused will be one which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appellate court that it may conclude that no miscarriage of justice occurred. … If the evidence contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, it is bound to act and to set aside the verdict.47

Subsequent to M,48 the High Court in MFA v The Queen (MFA)49 revisited the question as to what test should be applied where it is argued that the jury’s verdict was “unsafe or unsatisfactory”. In this case, the court unanimously dismissed MFA’s appeal against conviction for two sexual offences committed against a young male, holding that the verdicts were not “unreasonable”. The difference in terminology used by the court reflects the wording of the New South Wales statute,50 which substantially mirrors the legislation in Queensland. In MFA, the appellant was charged with a total of nine sexual offences but the jury acquitted him on seven counts.51 Gleeson CJ, Hayne and Callinan JJ stated that if there had been a guilty verdict on one of the other seven counts and a not guilty verdict on another, where the charges were supported by essentially the same evidence, there would have been a factual inconsistency.52 However, the

45 46 47

(at 425) considered that the correct test to apply was whether a reasonable jury must have had a reasonable doubt about the accused’s guilt. Brennan J (at 501-502), adopted Dawson J’s approach in Chidiac v The Queen (1991) 171 CLR 432 at 451, where the test was stated as whether on the whole of the evidence a jury acting reasonably was bound to have a reasonable doubt. However, Brennan J also referred to the task of the appellate court as being one to determine whether the jury, acting reasonably, must have entertained a reasonable doubt (emphasis added), citing Knight v The Queen (1992) 175 CLR 495 at 504-505 and 511-512; [1992] HCA 56 at [13]; [21]. (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ. M v The Queen (1994) 181 CLR 487 at 493-494 per Mason CJ, Deane, Dawson and Toohey JJ. This point was recently re-emphasised in R v Baden-Clay (2016) ALJR 1013; [2016] HCA 35 at [65].

48 49

See also Jones v The Queen (1997) 191 CLR 439; and Gipp v The Queen (1998) 194 CLR 106. (2002) 213 CLR 606; [2002] HCA 53.

50 51 52

Criminal Appeal Act 1912 (NSW) s 6(1). An appeal to the NSW Court of Criminal Appeal from the District Court was dismissed. MFA v The Queen (2002) 213 CLR 606 at 615-616 per Gleeson CJ, Hayne and Callinan JJ; [2002] HCA 53 at [33]. See MacKenzie v The Queen (1996) 190 CLR 348 at 366-368 per Gaudron,

360 [13.50]

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evidence on both counts for which the jury returned guilty verdicts was materially different from the evidence relied on for the other seven counts and was significantly supported by evidence from a witness.53 Further, although there were inconsistencies between the complainant’s evidence and that of the witness in relation to the two counts that resulted in verdicts of guilty, the jury may have acted entirely upon the evidence of the complainant, believing it to be truthful to the requisite standard of proof.54 Their Honours stressed that “[t]he test established by s 6(1) of the Criminal Appeal Act 1912 is unreasonableness, not inconsistency”.55

[13.60] In 2016, the High Court stated in R v Baden-Clay: Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court “must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty”.56

This approach may suggest a deferential stance to jury verdicts. Certainly in R v Baden-Clay,57 the High Court underlined the ‘central place of the jury’ and the continuing importance of its role as representative of the community. The “unreasonable, cannot be supported by the evidence” ground of appeal focuses on the reasonableness of the jury’s conduct. Considering the traditional respect for the jury’s role as the arbiter of fact, this ground poses a steep hurdle for an appellant. In summary, the current test for appellate courts to apply is to consider whether, on the whole of the evidence, it was open to the jury to be satisfied of the accused’s guilt beyond reasonable doubt, giving proper allowance for the jury’s advantage in seeing and hearing the witnesses. An applicant’s appeal will only be

53 54

55

56

57

Gummow and Kirby JJ on factual inconsistencies between verdicts where an accused is charged with multiple counts, approving King CJ’s comments in R v Kirkman (1987) 44 SASR 591 at 593 that juries sometimes act according to an “innate sense of fairness and justice”, rather than strictly logical considerations, thus producing “compromise” verdicts. See also R v DAL [2005] QCA 281, where McPherson JA (at [6]-[8]) noted that the increase in appeals relating to inconsistent verdicts is promoted by multiple count indictments; and Keane JA (at [29]) referred to “merciful disagreement” between jury members as a possible explanation for inconsistent verdicts. There was no similar support for the other seven counts. MFA v The Queen (2002) 213 CLR 606 at 615-616 per Gleeson CJ, Hayne and Callinan JJ, at 628-629 per McHugh, Gummow, Kirby JJ, and at 628-629 per Gleeson CJ, Hayne and Callinan JJ. MFA v The Queen (2002) 213 CLR 606 at 618 per Gleeson CJ, Hayne and Callinan JJ; see also McHugh, Gummow and Kirby JJ (at 630-632), where their Honours rejected the argument that Jones v The Queen (1997) 191 CLR 439 supported the proposition that, in a case dealing with a number of sexual offences, a jury must either accept or reject all of the offences, however on the facts of Jones, inconsistent verdicts could not stand because they were, on the evidence, illogical and unreasonable. This approach was affirmed in SKA v The Queen (2011) 243 CLR 400 at 405 per French CJ, Gummow and Kiefel JJ and see also BCM v The Queen [2013] HCA 48. (2016) 90 ALJR 1013; [2016] HCA 35 at [66] quoting from M v The Queen (1994) 181 CLR 487 at 494-495. See also BCM v The Queen (2013) 88 ALJR 101; [2013] HCA 48 observing that in deciding whether a verdict of guilty was unreasonable, the appellate court is required to disclose in its reasons “its assessment of the capacity of the evidence to support the verdict” (following SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13). (2016) 90 ALJR 1013; [2016] HCA 35 at [65]. [13.60] 361

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successful on this ground when the evidence indicates that a guilty verdict was not open and that consequently there has been a miscarriage of justice.58

Wrong decision on any question of law [13.70] An error of law made by the trial judge, which may result in a successful appeal against conviction, includes matters such as ruling certain evidence admissible when as a matter of law it is inadmissible,59 misdirecting the jury on the applicable onus or standard of proof, or failing to leave a defence open on the evidence to the jury.60 For example, in Nicholls v The Queen; Coates v The Queen,61 the High Court quashed Coates’ conviction for murder and ordered a new trial, having determined that the trial judge had wrongly admitted into evidence admissions made by Coates “off-camera” during a break in a recorded police interview.62 Similarly, in Ridgeway v The Queen,63 the High Court held that the trial judge ought, on public policy grounds, to have ruled inadmissible all the evidence obtained that tended to show the heroin supplied to Ridgeway had been, or was reasonably suspected of being, illegally imported. Without that evidence, Ridgeway could not have been found guilty of the offence he faced at trial, leading the High Court to uphold his appeal against conviction and order a stay of proceedings. Misdirections on the onus of proof may also constitute an error of law and lead to a successful appeal,64 as can misdirections on the operation of specific provisions of the Criminal Code. The judge’s task of summing up the evidence and directing the jury on matters of law was considered in Chapter 8 at [8.190]. A failure to leave to the jury a defence that is open on the evidence may also found a successful appeal. For example in R v Beetham65 the appellant was found guilty and convicted of grievous bodily harm. He appealed against his conviction on the basis that the trial judge erred in failing to direct the jury about QCC, s 271(2) (self-defence against unprovoked assault). At trial, counsel for the appellant asked that the jury only be directed in terms of QCC, s 271(1) and QCC, s 23(1). Neither counsel nor the judge discussed whether QCC, s 271(2) should be left to the jury. The Court of Appeal found that in the circumstances had QCC, s 271(2) been left

58 59

60 61 62

See also R v Hill; R v Young [2014] QCA 107 at [10]-[14] for a summary of the test to be applied by the court in determining whether the verdict is unreasonable. Errors of law based on admissibility or non-admissibility of evidence are more appropriately addressed in the law of evidence: for a brief overview of the rules concerning the admissibility of other occasion/similar fact evidence, see Chapter 6 at [6.160]. Another example is a failure by a trial judge to direct the jury on alternative verdicts that are open on the indictment: see Chapter 7 at [7.150]. (2005) 219 CLR 196. See also Chapter 2 at [2.450]. See also R v Swaffield (1998) 192 CLR 159, where the High Court held that Swaffield’s confession to an undercover police officer had been obtained unfairly and should have been excluded by the trial judge. For an example where the appellant (unsuccessfully) argued that evidence should have been excluded see R v Cowan [2016] 1 Qd R 433; [2015] QCA 87.

63

(1995) 184 CLR 19. See also Chapter 2 at [2.120].

64 65

See Chapter 1 at [1.50]. [2014] QCA 131. See also Reeves v The Queen (2013) ALJR 215; [2013] HCA 57 on misdirection that consent must be informed consent (from NSWCA).

362 [13.70]

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to the jury, there was a real possibility of an acquittal and quashed the conviction and ordered a retrial. The defence may directly raise self-defence without directly raising provocation. While the evidence that will be relied on to discharge the evidential onus for self-defence would usually be different in nature from that relied on to make provocation a live issue, where evidence emerges in the trial, which makes provocation an issue fit to be left to the jury, the trial judge has a duty to leave provocation to the jury. A failure to do so will found a successful appeal on the basis that the trial judge made an error that constitutes a miscarriage of justice.66 Fingleton v The Queen67 is a rare case where a point of law, affording total immunity against the charge, was overlooked both at trial and on appeal at the State level. The former Chief Magistrate of Queensland was convicted of an offence of unlawful retaliation against a witness: QCC, s 119B. In her capacity as Chief Magistrate, Fingleton decided to transfer a particular magistrate to Townsville. That magistrate sought judicial review of the transfer decision and a co-ordinating magistrate, Gribbin, provided an affidavit in support of the application for review. At the time, there was considerable friction between the Chief Magistrate and Gribbin over various matters which indicated a lack of loyalty on his part. As a consequence, the Chief Magistrate sent an email asking Gribbin to show cause why he should not be removed from his position as a co-ordinating magistrate. The Chief Magistrate’s appeal against conviction was unsuccessful in the Court of Appeal68 but upheld on a further appeal to the High Court. There, for the first time, an argument was presented, and accepted, that s 21A of the Magistrates Act 1991 (Qld) afforded total immunity to the charge. The provision protected the Chief Magistrate in her administrative functions. Kirby J noted that “she should not have been prosecuted, still less tried and convicted, for she was entitled to the immunity belatedly invoked on her behalf”.69

Miscarriage of justice [13.80] The third and final ground is a catch-all provision, indicated by the words, “on any ground whatsoever” (there was a miscarriage of justice). As indicated above, frequently grounds of appeal will overlap, as an unreasonable verdict or an error of law will produce a miscarriage of justice. This ground, however, makes it clear that any matter that causes a miscarriage of justice may (subject to the 66

67 68

69

Van Den Hoek v The Queen (1986) 161 CLR 158 at 161-162 per Gibbs CJ, Wilson, Brennan and Deane JJ, and Mason J in a separate judgment (at 169), noting there is a long line of authority to this effect and citing Parker v The Queen (1964) 111 CLR 665 at 681; Da Costa v The Queen (1968) 118 CLR 186 at 213; and Pemble v The Queen (1971) 124 CLR 107 at 117-118 and 132-133. (2005) 227 CLR 166; [2005] HCA 34. Fingleton’s appeal against sentence was upheld and the original sentence of 12 months’ imprisonment (with an effective parole eligibility date after serving eight months) was reduced to 12 months’ imprisonment, suspended after serving six months, with an operational period of two years: R v Fingleton (2003) 140 A Crim R 216 at 226 [33]; [2003] QCA 266. Fingleton v The Queen (2005) 227 CLR 166 at 212 [131] per Kirby J; [2005] HCA 34. See R Hunter, “Fear and Loathing in the Sunshine State” (2004) 19(44) Australian Feminist Studies 145. [13.80] 363

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proviso in QCC, s 668E: see [13.100]) ground a successful appeal against conviction. A miscarriage of justice may arise because of a number of faults in combination.70 A broad approach is taken by the courts in regard to the matters that might fall within this ground and, as the discussion of R v Svabo71 indicates, it may be sufficient to demonstrate only the appearance of a miscarriage of justice. This is particularly so where there is some irregularity that may undermine public confidence in the criminal justice system, such as apparent bias on the part of the judge, counsel or a juror. In Webb v The Queen,72 a member of the jury took a bunch of flowers to the court, during Webb’s trial for murder, and asked in open court that they be passed on to the victim’s mother. The appellant argued on his appeal that the jury should have been discharged when this occurred. In dismissing the appeal, the court concluded that, in the circumstances of the case, a fair-minded and informed member of the public would not have a reasonable apprehension or suspicion that the jury did not discharge its task impartially. Alone, the individual juror’s behaviour would have that effect, but when taken with the individual’s personality, explanation for her conduct and the judge’s directions to the jury at the end of the trial, the effect was dispelled.73 In R v Svabo,74 convictions for rape and burglary were quashed and a new trial ordered as the appellant’s counsel had not disclosed the circumstances of his relationship with the prosecuting counsel prior to and during the trial. Prior to the trial in April 1999, the pair had been in a relationship which lasted for 11 months but which broke down in January 1999. A few days after the trial concluded, they spent a weekend together, sharing a motel room. The appellant became aware of the nature and extent of the relationship when he was in prison, following the guilty verdict on both counts. On appeal, two arguments were advanced. The first, alleging incompetence of defence counsel, was rejected,75 but the second, based on counsel’s “impropriety” in failing to disclose the relationship, succeeded. The court concluded that a miscarriage, or perceived miscarriage, had occurred on grounds analogous to cases involving apprehended bias.76 In considering whether or not the non-disclosure of the relationship caused a miscarriage of justice, His Honour held that the appropriate test to apply was:

70 71 72 73

Leary v The Queen [1975] WAR 133; R v Leslie [1989] 2 Qd R 378. (2000) 112 A Crim R 215. (1994) 181 CLR 41. Webb v The Queen (1994) 181 CLR 41 at 52-53 per Mason CJ and McHugh J. See also R v Hamade (2011) 220 A Crim R 151; [2011] QCA 152.

74 75

(2000) 112 A Crim R 215; [2000] QCA 194. See Chapter 10 at [10.100] for a discussion of how lawyer incompetence may, in exceptional cases, result in unfairness or miscarriage of justice, particularly McHugh J’s comments in TKWJ v The Queen (2002) 212 CLR 124 at 148 [76]; [2002] HCA 46. Although see Kendirjian v Lepore [2017] HCA 13 in relation to a lawyer’s advice not to settle in a civil proceeding. Such as that alleged against the juror in Webb v The Queen (1994) 181 CLR 41: R v Svabo (2000) 112 A Crim R 215 at 216 [6] per de Jersey CJ, and at 225 [48] per Thomas JA.

76

364 [13.80]

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whether, with knowledge of all the relevant circumstances, an ordinary fair-minded citizen in the position of the appellant would entertain a reasonable suspicion that justice had miscarried.77

His Honour concluded in the affirmative and emphasised that counsel was under a duty to inform the appellant of his “on again off again” relationship with the prosecutor to enable the appellant to decide whether or not he wanted other counsel representing him. He further held that a person in the appellant’s position who had such information “would have at least a lingering suspicion that [he] did not have the benefit of fair play”.78 Clearly, a broad range of cases may result in a miscarriage of justice. Other examples have been discussed in other chapters where miscarriage occurred due to prejudicial pre-trial publicity,79 and incompetent legal representation.80

Fresh or new evidence. [13.90] In limited circumstances, the court may give leave to a party to adduce further evidence on appeal (QCC, 671B(1)(c)). The distinction between fresh and new evidence was explained by McMurdo P in R v GAM:81 Fresh evidence is evidence which either did not exist at the time of trial or which could not then with reasonable diligence have been discovered. New or further evidence is evidence on which a party seeks to rely in an appeal which was available at the trial or which could, with reasonable diligence, then have been discovered.

Where the appellant in a criminal appeal seeks to adduce fresh evidence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, there is a significant possibility that the jury, acting reasonably, would have acquitted the accused.82 While usually, the evidence must be fresh in order to be admitted, in exceptional cases the court can exercise its discretion and receive new evidence if refusing to do so would lead to a miscarriage of justice.83 Exculpatory evidence may not emerge until years after the trial, at which point the wrongly convicted person may have exhausted their appeal options and spent considerable time in prison for an offence they did not commit.84 In such cases, an alternative course is to petition for an executive pardon from the Governor of

77 78

79 80 81 82 83 84

R v Svabo (2000) 112 A Crim R 215 at 228 [60] per Thomas JA; de Jersey CJ adopted the same test (at 216 [6]). R v Svabo (2000) 112 A Crim R 215 at 233 [77]-[80] per Thomas JA. Note also that his Honour stressed that the mere fact of being in a relationship (in the circumstances, a “transitional” stage of the relationship, which resumed later) would not be a sufficient basis for showing a reasonable suspicion that justice had miscarried due to the fact that counsel would not properly perform his role; it was the failure to disclose the relationship that was critical: at 229 [63]. See Chapter 9 at [9.100]. See Chapter 10 at [10.100]. [2011] QCA 288 at [43]. Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ; 288-289 per Deane J. R v Condren; ex parte Attorney-General [1991] 1 Qd R 574, 579; R v GAM [2011] QCA 288 at [45] per McMurdo P. For the double jeopardy reforms for the “converse” situation, see Chapter 7 at [7.210]: a retrial for a murder charge may, in certain circumstances, be permitted on the basis that fresh and compelling evidence becomes available after an acquittal. [13.90] 365

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Queensland: QCC, s 672A.85 If that option is taken, ordinarily the result is that the entire case is referred to the Court of Appeal, where it will be heard as if it was an appeal: QCC, s 672A(a). Pardons are discussed in Chapter 14. Notably, it is also possible to make a different argument on appeal than was made at trial,86 which may be linked to the availability of fresh or new evidence.

The proviso [13.100] Where the appellant succeeds in making out a ground of appeal, it does not follow as a matter of course that the appeal will be upheld and the appellant acquitted. The “proviso” operates as a filter on that outcome. According to s 668E(1A) of the QCC: … the Court may, notwithstanding that it is of the opinion that the point/s raised … might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

The proviso gives the court a discretion to dismiss the appeal where it considers that no “substantial” miscarriage of justice has occurred. Yet if an appellant shows that the verdict was unreasonable on the evidence, how can there be any room for the proviso to be applied? If an error of law is established, will that always negate the application of the proviso or does it depend on the likely – or possible – impact upon the jury’s decision? Are there degrees of miscarriages of justice?87

The test for applying the proviso [13.110] In Weiss v The Queen88 the appellant had been convicted of murder. A key prosecution witness at the trial, Horstead, had been in a de facto relationship with Weiss at the time he was charged. She provided an alibi for him, saying that Weiss was at home on the evening the murder occurred. Some time later, after her relationship with him had ended, she phoned the police and admitted her alibi was false. At trial, Horstead was challenged by the prosecution about why she had changed her story and was asked whether the change was influenced by Weiss’ new relationship with another woman who was only 14 years old at the time. Over objection, the trial judge ruled the question admissible, including the reference to the young woman’s age. On appeal, the Victorian Court of Criminal Appeal held that this was an error of law by the judge,89 but dismissed the appeal, 85

86

87 88

89

A pardon in Queensland discharges the convicted person from the consequences of the conviction: QCC, s 677. Similar in nature to the reserved petition for pardon under QCC, s 672A, QCC, s 675 also preserves the power of the Governor to “extend mercy” to an offender who is serving a prison term. However, the provision is rarely, if at all, used. For an example see: R v Quinlan [2012] QCA 132 although where decisions have been made at trial for tactical reasons the general rule is that litigants are bound by the conduct of their counsel: Crampton (2000) 206 CLR 161; [2000] HCA 60. See also Chapter 10 at [10.100]. For a general overview of the operation of the proviso, see C Penhallurick, “The Proviso in Criminal Appeals” (2003) 27 Melbourne University Law Review 800. (2005) 224 CLR 300; [2005] HCA 81: unanimous decision of the court comprising Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ. See also Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30. The evidence was inadmissible on the grounds that it was more prejudicial than probative: for discussion of the discretion to exclude evidence on this basis, see J Forbes, Evidence Law in Queensland (11th ed, Thomson/Lawbook Co., Sydney, 2016) Ch 10.

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applying the proviso.90 The only ground of appeal entertained by the High Court concerned the proper approach to be taken to the proviso.91 In Weiss, the Victorian Court of Criminal Appeal held that the proper test to apply was whether, without the wrongly admitted evidence, the jury that tried the accused would have convicted him.92 In coming to its decision, the court rejected the argument that the proper test to apply was whether, without the tainted evidence, a hypothetical jury would have convicted. They conceded that if a “hypothetical jury” test was applied, the conviction was not inevitable.93 The High Court in Weiss thoroughly canvassed the history of the law surrounding the proviso,94 emphasising that the proviso calls for something more than merely concluding whether or not there had been a departure from the rules of procedure or evidence. The High Court emphatically confined the test to one that asks whether a substantial miscarriage of justice has occurred – nothing more, nothing less. In carrying out that task, the appellate court must review the whole of the record of the trial and make its own independent assessment of the evidence,95 allowing for the inherent limitations of an appellate court’s inability to see and hear the witnesses.96 After a review of all the evidence, the question to be answered objectively is whether the evidence before the jury proved the accused person’s guilt beyond reasonable doubt.97 The court noted that where it is not possible to answer that question in the affirmative it would then be necessary to order a new trial, unless it is an exceptional case where a verdict of acquittal should be entered. No single description is available of what will constitute “no substantial miscarriage of justice”. However, the High Court was prepared to indicate that there may be cases where, even though all the properly admissible evidence may indicate guilt beyond reasonable doubt, it will still be proper to allow the appeal and order a new trial, such as where there has been a significant denial of procedural fairness.98 Beyond that, the court did not consider whether some errors or miscarriages occurring in a trial might “amount to such a serious breach of the presuppositions of the trial as to deny the application of the proviso”.99

90 91 92 93 94

95 96

The proviso in the Crimes Act 1958 (Vic) s 568(1) mirrors QCC, s 668E(1A). Special leave was refused to appeal on an additional ground. R v Weiss (2004) 145 A Crim R 478; [2004] VSCA 73. Weiss v The Queen (2005) 224 CLR 300 at 304; [2005] HCA 81 at [7]. The proviso can be traced back to the English “Exchequer Rule” in the 1830s, which gave a right to a new trial where evidence had been wrongly admitted. The Criminal Appeal Act 1907 (UK) s 4(1). introduced the proviso in similar, but not identical, language to the proviso appearing in all Australian criminal appeal legislation: Weiss v The Queen (2005) 224 CLR 300 at 306-309 and 311-312. Weiss v The Queen (2005) 224 CLR 300 at 316, citing M v The Queen (1994) 181 CLR 487; Festa v The Queen (2001) 208 CLR 593 at 631-633 per McHugh J. (2005) 224 CLR 300 at 316, citing Fox v Percy (2003) 214 CLR 118 at 125-126 per Gleeson CJ, Gummow and Kirby JJ.

97

(2005) 224 CLR 300 at 315-316; [2005] HCA 81 at [39]-[40].

98

(2005) 224 CLR 300 at 317. See also Libke v The Queen (2007) 235 ALR 517 at 532 [42]-[43] and [46]-[49] per Kirby and Callinan JJ (dissenting). (2005) 224 CLR 300 at 317, referring to Wilde v The Queen (1988) 164 CLR 365 at 373.

99

[13.110] 367

Criminal Process in Queensland

Precluding the proviso Wilde v The Queen [13.120] In Wilde v The Queen,100 the trial judge refused an application for separate trials101 for sexual offences against two different women on different dates. The refusal was made on the incorrect basis that evidence in relation to one count was admissible on the other count on the grounds the evidence was strikingly similar. While the Court of Criminal Appeal agreed with the appellant’s argument that an error of law had occurred, it dismissed the appeal by applying the proviso on the basis of the strength of the prosecution case at trial. Wilde’s appeal to the High Court was also dismissed102 by the majority. The High Court held that putting to one side the error of law, which in its view was not “fundamental”, a reasonable jury would inevitably have convicted. In dissent, Deane and Gaudron JJ both held that the improper joinder of the charges was a fundamental error, and that therefore there was no scope for the application of the proviso. Gaudron J went so far as to hold that any significant error of law in the trial would preclude the proviso. Wilde provided the following propositions to guide an appellate court on the application or non-application of the proviso:103 • Where there has been a departure from the requirements of a properly conducted trial and the appellant has lost a “chance which was fairly open to him of being acquitted”104 or “a real chance of acquittal”,105 a substantial miscarriage of justice has occurred. • Unless it can be said that without the blemish in the trial an appropriately instructed jury, acting reasonably on the evidence properly before them, and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside.106 • Unless it can be said that the accused may have lost a fair chance of acquittal by virtue of the failure to have a fair trial – that is, a trial where the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed; • The question of whether the jury would have inevitably convicted falls to be determined by the Court of Criminal Appeal; 100

(1988) 164 CLR 365.

101

See Chapter 6 at [6.190].

102

The majority consisted of Brennan, Dawson and Toohey JJ. Deane and Gaudron JJ dissented. See M Shanahan, S Ryan, A Rafter, J Costanzo, A Hoare, Carter’s Criminal Law of Queensland (20th ed, LexisNexis, Sydney, 2015) at [668E.85.1], p1123. Wilde v The Queen (1988) 164 CLR 365 at 371, citing Mraz v The Queen (1955) 93 CLR 493 at 514 per Fullagar J. (1988) 164 CLR 365 at 372, citing R v Storey (1978) 140 CLR 364 at 376 per Barwick CJ. (1988) 164 CLR 365 at 372, citing Gallagher v The Queen (1986) 160 CLR 392 at 412-413. See also Lee v The Queen (2014) 308 ALR 252 at [47] at where it was observed: “In a case where impropriety or unfairness permeated or affected a trial to an extent where it ceased to be a fair trial according to law, an appeal court could not dismiss an appeal on the basis that there had been no substantial miscarriage of justice”.

103 104 105 106

368 [13.120]

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• But if a fundamental error was made in the conduct of the trial, the proviso cannot apply, regardless of the strength of the prosecution’s case and regardless of what opinion the appellate court might have as to what the jury would have done. This is because where “an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings”, the accused “has not had a proper trial” and there has been a substantial miscarriage of justice.107 • There is no rigid formula as to what amounts to a fundamental error, each case must be determined on its own circumstances,108 and no mechanical approach can be taken.

Baiada Poultry Pty Ltd v The Queen [13.130] In Baiada Poultry Pty Ltd v The Queen,109 the appellant, a chicken processing company, was convicted for failing to provide a safe working environment. The principal of one of its contractors was killed in a forklift accident. The trial judge failed to direct the jury that the prosecution had to prove beyond reasonable doubt that the applicant’s engagement of skilled subcontractors to perform the work in the course of which the fatal injury occurred did not discharge its obligation to provide and maintain a safe place of work. The Victorian Court of Appeal found that the trial judge had either made a wrong direction on a question law or there had been a miscarriage of justice. The appellant successfully appealed to the High Court. The High Court held that the trial judge’s direction was inadequate. The inadequacy of the direction amounted to a substantial miscarriage of justice and a retrial was ordered. The High Court commented on the application of the proviso: ….the Court in Weiss said that “[c]ases where there has been a significant denial of procedural fairness at trial may provide examples of cases”110 of a kind where, though persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt, an appellate court should nonetheless hold that the proviso is not engaged …Two points of immediate relevance follow from the Court’s decision in Weiss that no single universally applicable criterion can be stated to identify either when the proviso does apply or when it does not apply. First… it is neither possible nor useful to attempt to argue about the application of the proviso by reference to some supposed category of “fundamental defects” in a trial. To do so distracts attention from the necessary task of statutory construction. The question presented by the proviso is whether there has been a “substantial miscarriage of justice”. Second, recognising the need to focus upon whether there has been a substantial miscarriage of justice both reflects and gives proper effect to the text and structure of the proviso…the proviso to the common form criminal appeal statute is cast in permissive terms:111 “the Court of Appeal may, notwithstanding ..., dismiss the appeal if it considers ...” [that no substantial miscarriage of justice has actually occurred].

107 108

(1988) 164 CLR 365 at 373. In Green v The Queen (1997) 191 CLR 334 at 346-347, Brennan CJ considered that the fundamental error exception would not apply where there is only an incorrect ruling on evidence or a misdirection on a particular point of fact or law arising in the trial.

109 110 111

(2012) 246 CLR 92; [2012] HCA 14. Weiss [2005] HCA 81; (2005) 224 CLR 300 at 317. On this point see also Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Lindsay v The Queen (2015) 255 CLR 272; [2015] HCA 16. [13.130] 369

Criminal Process in Queensland

That is, the proviso gives the Court of Appeal power to dismiss the appeal if… [it considers that no substantial miscarriage of justice has actually occurred] is satisfied. No doubt a judgment must be made in deciding whether there has been no substantial miscarriage of justice. But if that condition is met, the power must then be exercised.112

Baini v The Queen [13.140] In Baini v The Queen113 the error or irregularity at trial was the refusal to provide separate trials for separate counts of blackmail, as a consequence the jury heard prejudicial evidence about the appellant which would not have been admissible if there had been separate trials. The appellant appealed successfully to the High Court. On appeal, the majority of the High Court114 made a number of important comments about the application of the proviso which are relevant to the Queensland context. Among other matters, the majority emphasised: • the importance of considering the construction of the relevant statute;115 • that there was no single of universal applicable description for what constitutes a substantial miscarriage of justice;116 • that the appellants demonstration of whether there has been a substantial miscarriage of justice may be effected by the strength of the prosecution case;117 • the court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account118 • the inquiry to be made is whether a guilty verdict was inevitable.119

A recent Queensland example [13.150] A recent illustration of the approach taken to considering the proviso, which reflects the principles established in Weiss v The Queen, is the decision of the Queensland Court of Appeal in R v Conde.120 In R v Conde the appellant was convicted of unlawful stalking with a circumstance of aggravation (use of violence). The victim was a solicitor who represented the appellant’s former wife in an application for a domestic violence order. After a period of continuously contacting the victim, the appellant attended the victim’s professional office and threw a document in the victim’s face. The appellant appealed against the conviction to the Queensland Court of Appeal on various grounds including that the trial judge gave inadequate directions to jury in the summing up. The majority upheld this ground of appeal. The application of the proviso was considered.

112

Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; [2012] HCA 14 at [22]-[25].

113 114 115 116 117 118 119

(2012) 246 CLR 469; [2012] HCA 59. French CJ, Hayne, Crennan, Kiefel and Bell JJ (Gageler J dissenting). Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [14]. Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [26]. Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 at [28]; on this point see, eg, R v Ogawa [2011] 2 Qd R 350 at [250]. Baini v The Queen (2012) 246 CLR 469 [30]; [2012] HCA 59. Baini v The Queen (2012) 246 CLR 469 [32]; [2012] HCA 59.

120

[2016] 1 Qd R 562; [2015] QCA 63.

370 [13.140]

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Lyons J listed the following propositions about the application of the proviso in QCC, s 668E(1A):121 1.

The words of the statute ultimately govern the task an appellate court is called upon to perform, rather than subsequent judicial expositions of the meaning of the statute.

2.

The appellate court must decide for itself whether or not a substantial miscarriage of justice has actually occurred;

3.

There are cases in which it would be possible for such a court to conclude that the error established by the appellant would or should have had no significance in determining the verdict against the appellant;

4.

In considering the application of the proviso, the appellate court must bear in mind that the criminal standard of proof applies, namely, that guilt must be established beyond reasonable doubt;

5.

The appellate court’s task is an objective task, to be performed with whatever advantages and disadvantages exist when deciding an appeal on the record of a trial; it is not an exercise in speculation or prediction;

6.

Regard must be had to the fact that the record includes the jury’s guilty verdict; though the significance of the verdict must be assessed, paying proper regard to what issues the jury were directed to determine in order to arrive at a verdict of guilt.122

Lyons J citing Baini v The Queen123 reiterated that “the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open”.124

The discretion to order a new trial [13.160] The court may order a new trial if it considers that a miscarriage of justice has occurred and that the miscarriage can be more adequately remedied by a new trial rather than by another order: QCC, s 669. Effectively, the decision the court must make is whether to uphold the appeal and enter a verdict of acquittal, or to uphold the appeal and order a new trial. The ability of the court to order a new trial is acknowledgment that there has been a flaw of some kind but, by sending the case back for another jury to decide, it also preserves the sanctity of the role of the jury.125 Corns’ analysis of the caselaw in general, and of High Court appeals in particular, over the period 2002 to 1 May 2006126 found that of the 40 appeals

121 122

123 124 125 126

R v Conde [2015] 1 Qd R 562; QCA 63 at [68]. See also R v Coss [2016] QCA 44 (on inadequate directions leading to a substantial miscarriage of justice). Citing Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, [9], [31], [33]; [39]; [43] and on the first point also Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [21] and also on point 6: Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [28]. (2012) 246 CLR 469; [2012] HCA 59. R v Conde [2016] 1 Qd R 562; [2015] QCA 63 at [69]. A Ashworth and M Redmayne, The Criminal Process (4th ed, OUP, New York, 2010) p 379. C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Criminal Law Journal 343. [13.160] 371

Criminal Process in Queensland

heard by the High Court during that time, only one verdict of acquittal was ordered, whereas there were nine orders for a new trial.127 Corns explains that this results from two key policy considerations. First that the doctrine of separation of powers dictates that it is ultimately a matter for the prosecution rather than the judiciary to decide whether or not to pursue a second trial128 so the court should generally leave the matter open to the prosecution. Second, that our criminal justice system presupposes that trial on indictment will be by judge and jury; therefore, where there is sufficient evidence that a jury could convict, the matter should be determined by the jury on a retrial.129 A third overarching matter could be added; that there is a public interest in the prosecution and conviction of offenders.130 The decision of the appellate court to order a new trial is discretionary and raises two key points: (i)

the principles and “guiding” factors that are taken into account by an appellate court in considering whether or not to exercise the discretion;

(ii)

how courts make the decision as to whether to acquit or order a new trial.

The overarching principles guiding the exercise of the discretion were identified in DPP (Nauru) v Fowler.131 In that case, the High Court stated that there needs to be a balance between the public interest in the proper administration of justice and the interests of the individual. First, consideration should be given to whether or not the admissible evidence at trial was sufficiently cogent to justify the conviction – if not, it would be wrong to order a new trial as it would provide the prosecution with a chance to boost its case for a second attempt to obtain a conviction. If the evidence was sufficiently cogent, consideration should be given to “any circumstances that might render it unjust to the accused to make him stand trial again”.132 These matters are discussed below.

The first consideration – cogency of the evidence [13.170] Clearly, where the appellate court has found that the jury’s verdict was unreasonable or unsupportable, it follows that there can be no grounds for ordering a new trial. In such a case a retrial on the same evidence would be futile.133 Where the evidence is weak, the court may be more reluctant to order a new trial.134 Furthermore, it is well established that a new trial should not be 127 128 129

130 131 132 133

134

C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Criminal Law Journal 343 at 354-355. See Dyers v The Queen (2002) 210 CLR 285 at 314 [81] per Callinan J; [2002] HCA 45. C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Criminal Law Journal 343 at 347; but see the discussion of judge only trials in Queensland in Chapter 8 at [8.130]. R v Anderson (1991) 53 A Crim R 421 at 453 per Gleeson J. (1984) 154 CLR 627. DPP (Nauru) v Fowler (1984) 154 CLR 627 at 630. R v Hanson; R v Ettridge [2003] QCA 488 But see R v Cockrell (2005) 2 Qd R 448; [2005] QCA 59 where the Court of Appeal ordered a new trial where the original trial proceedings were a nullity because the original indictment was invalid. R v Leak [1969] SASR 172 at 176.

372 [13.170]

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granted in order to allow the prosecution an opportunity to run a new case not made at the original trial or be given the opportunity to supplement the original case.135 If the miscarriage occurred due to an error of law, the court may assume that at a second trial the trial judge will not make the same error – and so a new trial will ordinarily be the appropriate course, unless the error of law was fatal to the prosecution case. A fatal error may include, for example, a case where the conviction was essentially based on confessional evidence, which had been wrongly admitted at trial.136 A non-fatal error, for example in the trial judge’s summing up,137 may be able to be addressed in a new trial. In some cases, where a miscarriage of justice is identified, a new trial may be inappropriate. For example in the Fingleton case138 the prosecution case was flawed from the beginning due to the immunity – or complete defence – provided by the Magistrates Courts Act 1921 (Qld).139 While the Fingleton prosecution was flawed from the start, other cases in which the prosecution case becomes fundamentally flawed in the course of the trial may result in an acquittal, such as in the Hanson and Ettridge appeals.140

The second consideration – the evidence is cogent but would it be unjust to order a retrial? [13.180] As DPP (Nauru) v Fowler indicates, the exercise of the discretion is concerned with balancing both the public interest in the administration of justice and the interests of the individual, who has already been through a trial. The cases indicate that when there is cogent evidence against the appellant, the question will then be whether or not it would be unjust to the appellant to order a retrial. The relevant factors will include:141 • The seriousness of the offence. The more serious the offence, the more likely it is that a retrial will be ordered. For example, the Queensland Court of Criminal Appeal ultimately ordered a new trial for murder in R v Condren; Ex parte Attorney-General,142 notwithstanding the fresh evidence, and notwithstanding Condren had already served more than six years of imprisonment. Thomas J, dissenting on the decision for a new trial, noted that the case was six-and-a-half years old and that it would be better to terminate it

135 136 137 138 139 140

141 142

King v The Queen (1986) 161 CLR 423 at 433 per Dawson J. See, eg, R v Swaffield and Pavic v The Queen (1998) 192 CLR 158 where a retrial was ordered for Pavic in circumstances where his confession to police was wrongly admitted. See, eg, R v Hytch (2000) 114 A Crim R 573; [2000] QCA 315. (2005) 227 CLR 166; [2005] HCA 34. See the discussion of grounds of appeal at [13.40]. Corns draws the distinction between fundamental flaws “ab initio” (ie, from the beginning) and fundamental flaws emerging at trial – examples of the former include R v Hanson; R v Ettridge [2003] QCA 488; and R v Carroll (1985) 19 A Crim R 410, which resulted in verdicts of acquittal being ordered on appeal: see C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Criminal Law Journal 343 at 348-350. J Devereux and M Blake, Kenny Criminal Law in Queensland and Western Australia (9th ed, LexisNexis, Sydney, 2016) p 37. [1991] 1 Qd R 574; (1990) 49 ACrim R 79. [13.180] 373

Criminal Process in Queensland

“without the charade of a further jury trial, followed, in the unlikely event of a conviction, by an appeal that must eventually lead to its being set aside”.143 Although the court ordered a new trial, the prosecution did not proceed. • The length of time the appellant has already spent imprisoned for the offence. In Parker v The Queen, the High Court observed that the “length of time that has elapsed since the events giving rise to the charges and the fact that the appellant has served the custodial part of his sentence tell against a new trial”.144 In some cases, the length of time the appellant has already spent imprisoned for the offence may be a more appropriate consideration for the prosecution rather than for the court. For example, in setting aside a verdict and ordering a retrial, Jerrard JA in R v Peachy145 noted that it was a matter for the “Director of Prosecutions whether the period of imprisonment already served by Mr Peachey makes a re-trial unnecessary in the overall interest of justice”. • Other factors. Other less common factors include whether it is possible to have a new trial that is fair where there has been extensive publicity surrounding the initial trial,146 whether or not the prosecution seeks an order for another trial, and the cost of a further trial. For example, the extremely high cost of a new trial, together with the age of the charges, were factors leading to the Victorian Court of Appeal ordering an acquittal in R v Wilson,147 where the first two trials had taken well over a year to be heard. Finally, it is important to emphasise that where a new trial is ordered, it is a matter of discretion for the Director of Public Prosecutions to decide whether or not to proceed.148

Appeal against sentence Appeals against sentence by the convicted person [13.190] An appeal may be taken to the Court of Appeal against sentence by the convicted person with the leave of the court: QCC, s 668D(1)(c).149

143 144 145 146

147 148

149

R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574; (1990) 49 A Crim R 79 at 94 per Thomas J. (1997) 186 CLR 494 per Dawson, Toohey and McHugh JJ at 520. [2006] QCA 162 at [46]. See, eg, Tuckiar v The King (1934) 52 CLR 335, referred to in C Corns, “The Discretion of a Court of Appeal to Order a New Trial or a Verdict of Acquittal” (2006) 30 Criminal Law Journal 343 at 353. See also the discussion of delay in Chapter 9 at [9.90]. R v Wilson [1995] 1 VR 163: the second and third trials together took 440 court sitting days. See also Office of the Director of Public Prosecutions, Director’s Guidelines (Department of Justice and Attorney General, Qld, 2015): http://www.justice.qld.gov.au/__data/assets/pdf_f ile/0015/16701/directors-guidelines.pdf. Guideline 51 sets out relevant factors in deciding whether a prosecutor should commence a re-trial where a trial has ended without a verdict. For discussion of leave see R v NM [2013] 1 Qd R 374; [2012] QCA 173 at [2]-[6] per Holmes JA. In 2014-2015, 156 sentencing appeal leave applications were filed: Queensland Courts, Supreme Court of Queensland Annual Report 2014-2015, p 9: http://www.courts.qld.gov.au/__ data/assets/pdf_file/0006/458502/sc-ar-2014-2015.pdf.

374 [13.190]

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However, there are some limits. In R v Upson (no2)150 the applicant sought leave to appeal against sentence and leave was refused. The applicant then sought leave to appeal against sentence again. The question for the court was whether the applicant had exhausted his avenue of appeal to the Court of Appeal once the first application was refused. Fraser J found that: in the case of an application for leave to appeal against sentence where a previous application was refused on the merits of the proposed appeal, the mere repetition or refinement of the original grounds of appeal, the formulation of different grounds, or reliance upon new evidence, does not take the case outside the general rule that the court lacks jurisdiction to hear the second application.151

The application for leave was refused on the basis that it was futile. If the appeal against sentence is successful, the court will quash the original sentence and order another sentence, which may be more or less severe: QCC, s 668E(3). The power to increase the sentence applies to appeals by the convicted person – but since the Attorney-General/prosecutor also has a right to appeal, ordinarily the sentence would only be increased on the basis of an appeal by the Attorney-General/prosecutor.152 If only the convicted person appeals, and the court intends to increase the sentence, then, according to Neal v The Queen,153 the principles of natural justice require that the applicant be given notice of that intention and the opportunity to withdraw the appeal.154 The Neal requirements will not apply, however, where the Court of Appeal’s proposed sentence will effectively result in one that is less severe. For example, in R v Sheppard,155 the Court of Appeal allowed an appeal against sentence on the basis that Sheppard had, in effect, been doubly punished for the same conduct.156 He had been charged, convicted and sentenced for numerous offences arising from fraudulently obtaining almost half a million dollars from a bank on the basis of forged letters of authority. His initial sentences totalled eight years’ imprisonment with a recommendation for parole after three-and-a-half years. Sheppard’s appeal was successful in relation to his claim that he had received double punishment for some of the charges. The Court of Appeal ordered a sentence of seven years’ imprisonment, with a parole recommendation after three years. The Neal requirements did not have to be satisfied since the sentence in question was not heavier than the original sentence.157

150 151 152 153 154

155 156 157

(2013) 229 A Crim R 275; [2013] QCA 149. R v Upton (No 2) (2013) 229 A Crim R 275; [2013] QCA 149 at [25]; see also R v Woodman [2013] QCA 359. See, eg, R v Patel; ex parte A-G (Qld) [2011] QCA 81 where both the convicted person and the Attorney General (unsuccessfully) appealed the sentence. Neal v The Queen (1982) 149 CLR 305 at 308 per Gibbs CJ, at 310 per Murphy J and at 322 per Brennan J. Note that ordinarily the appellant will appeal against a sentence on the basis that it is manifestly excessive, for an appeal by a sentenced person against sentence on the basis of the inadequacy of sentence see: R v Gardner (Senior) [2012] QCA 290. [2001] 1 Qd R 504; (2000) 111 A Crim R 258. Contrary to QCC, s 16: this provision is discussed in more detail in Chapter 7 at [7.280]. R v Sheppard [2001] 1 Qd R 504; (2000) 111 A Crim R 258 at 259-260 per McMurdo P, at 267-268 per Williams J (Pincus JA agreed with Williams J (at 262)); see also Malvaso v The Queen (1989) 168 CLR 227. [13.190] 375

Criminal Process in Queensland

In some cases, the court will allow the admission of new or fresh evidence. For example, since being originally sentenced there may be a diagnosis of a terminal illness158 or, when there has long delay in hearing the appeal, there may be new evidence that the offender has been significantly rehabilitated.159

[13.200] Unlike the grounds for appeal against conviction, nothing appears in the QCC in relation to the ground or grounds for appeal against sentence. Given that the original sentencing exercise involves the exercise of judicial discretion, it will be necessary to show that the sentencing discretion miscarried in some way.160 Such an error maybe indicated in the judge’s reasons or may be inferred because the sentence is manifestly excessive.161 The High Court has observed that manifest inadequacy, like manifest excess, is a “conclusion”162 and the court’s intervention in the sentence will be justified where the court concludes there must have been a misapplication of principle.163

Appeals against sentence by the Attorney-General [13.210] Section 669A(1) of the QCC provides: The Attorney-General may appeal to the court against any sentence pronounced by: a)

the court of trial; or

b)

a court of summary jurisdiction in a case where an indictable offence is dealt with summarily by that court; and the court may in its unfettered discretion vary the sentence and impose such sentences as to the court seems proper.

In 2011, the High Court in Lacey v Attorney-General of Queensland (Lacey)164 determined that the Attorney General’s unfettered discretion to appeal against sentence can only be exercised where some error has been demonstrated.165 Since Lacey was decided, the Court of Appeal has applied the principles set out in House v The Queen166 (see [14.120]) in Attorney General’s appeals against sentence. Once

158 159 160

161 162 163 164

165 166

R v Leith [2000] 1 Qd R 660 at 661. See the discussion in R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108. Skinner v The Queen (1913) 16 CLR 336 at 340 per Isaacs J. See also House v The Queen [1936] HCA 40; (1936) 55 CLR 499. For recent example see R v Karlsson [2015] QCA 158 per Boddice J for discussion. Note that the principles underlying appeals against sentence apply equally to appeals from a magistrate to a single judge of the District Court in Queensland. Chapters 11 and 12 address sentencing in detail. See R v Melano [1995] 2 Qd R 186 at 189. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]. Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [57]-[59]. (2011) 242 CLR 573 at 598; [2011] HCA 10 at [62]. The principles in House v The Queen (1936) 55 CLR 499 are applied, see R v Hopper; Ex parte Attorney-General (Qld) (2014) 241 A Crim R 228; [2014] QCA 108 at [14]; R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156 at [39]. See also Director of Public Prosecutions, Director’s Guidelines (Department of Justice and Attorney General, Qld, 2015): guideline 50. (1936) 55 CLR 499 are applied, see R v Hopper; Ex parte Attorney-General (Qld) [2014] QCA 108 at [14]; R v Brown; Ex parte Attorney-General (Qld) [2016] QCA 156 at [39].

376 [13.200]

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an error has been identified the court’s unfettered discretion to vary the sentence is enlivened and the court has the power to substitute an appropriate sentence.167 The Attorney General’s appeal against sentence in Queensland has had a complex history and this is outlined briefly below.

History of attorney-general appeals against sentence in Queensland [13.220] In 1939, the following provision was introduced into the QCC: The Attorney-General may appeal to the Court against any sentence pronounced by the court of trial and the Court may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper.

According to the Parliamentary debates,168 it was introduced so that the Attorney General would have the same rights to appeal against the sentence as a convicted person. In R v Leikfett; Ex parte Attorney General (Leikfett) the Queensland Criminal Court of Appeal carefully reviewed the authorities and determined that the approach taken to an appeal by a convicted person should also be applied to appeals by the Attorney General, that is an error must be identified before the appeal is allowed.169 In 1975, the current form of QCC, s 669A(1) was introduced (see [13.210]).170 The legislative change sought to overcome the decision in Leikfett. During the Second Reading Speech, the Minister for Justice said: “The Bill is being amended to make it clear that the Court of Criminal Appeal has an unfettered discretion to determine the proper sentence to impose when the Attorney-General has appealed against the inadequacy of the sentence”.171 Despite the legislative change the Queensland Court of Appeal in R v Melano; Ex parte Attorney-General172 decided that the court’s discretion was fettered by judicial discretion, even where it was not fettered by the QCC. The Court of Appeal emphasised that an appeal against sentence by the Attorney-General put the freedom of the sentenced person in jeopardy for the second time, and the

167

168 169 170 171 172

In 2014-2015, 3 appeals against sentence were lodged in the Queensland Court of Appeal by the Attorney-General or Commonwealth Director of Public Prosecutions (cf 16 in 2013-14): Queensland Courts, Supreme Court of Queensland Annual Report 2014-2015, p 9: http://www. courts.qld.gov.au/__data/assets/pdf_file/0006/458502/sc-ar-2014-2015.pdf; Department of Justice and Attorney-General, Office of the Director of Public Prosecutions Annual Report 2014-2015 p 19: https://publications.qld.gov.au/dataset/c581f931-288f-4dd9-86f3-df062feba0 a6/resource/e2e7fa9d-065c-4371-843c-b02d65aed6b0/download/odpp-annual-report-2014-1 5.pdf. The ODPP’s Annual Report indicates that 3 appeals were lodged and 4 referrals were filed by the Queensland Attorney-General to the Court of Appeal. Of the appeals lodged in 2014-2015, 4 were upheld. Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 21 November 1939 at 1717. [1973] Qd R 355 at 366. The Queensland Court of Criminal Appeal determined that the principles in House v The Queen (1936) 55 CLR 499 should be followed. Criminal Code and the Justices Act Amendment Act 1975 (Qld), s 34. Queensland, Legislative Assembly, Parliamentary Debates (Hansard), 23 April 1975 at 993; quoted in Lacey HCA at 30. [1995] 2 Qd R 186; (1995) 75 A Crim R 392 at 395. [13.220] 377

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judge’s discretion is found in the factors that are material to the exercise of the court’s discretion.173

[13.230] In R v Lacey; Ex parte Attorney-General (Qld)174 the Queensland Court of Appeal again considered the proper interpretation of QCC, s 669A(1). Dionne Lacey was convicted of manslaughter, and sentenced to 10 years imprisonment. Lacey sought leave to appeal against his sentence and the Attorney-General appealed against the sentence arguing the sentence was “inadequate” or “manifestly inadequate” to the Court of Appeal. Lacey’s appeal was dismissed but the Attorney General’s appeal was upheld and the Court of Appeal substituted a sentence of 11 years. The majority of four Justices of Appeal held that QCC, s 669A(1) should be given its natural meaning and displaced the long held view that the discretion was fettered in two respects: it was first necessary to demonstrate error and, if error was shown, any re-sentencing required the imposition of a sentence at the lower end of the appropriate range.175 The majority stated: ‘there cannot be any real doubt that the intention of the legislature in amending QCC, s 669A to insert the word unfettered was to remove the “judicial fetter”.176 While the majority stated that the Attorney-General’s right of appeal should be used ‘sparingly’, they found that the language of QCC, s 669A(1) left “no room for this Court to decline to exercise the discretion conferred on it simply because it has not been demonstrated that the decision below should be set aside as erroneous in the House v The King sense”.177 The majority found that the language of QCC, s 669A(1) did not limit the power of the court to vary a “proper” sentence imposed by a sentencing judge only to “exceptional cases“.178 McMurdo P dissented in part. After reviewing the legislative history of QCC, s 669A(1), she determined that the correct interpretation lies in an understanding of appellate procedure and statutory construction.179 She referred to House v The Queen180 as setting out the principles governing appeals against an exercise of judicial discretion.181

173

174 175 176 177

Quoting from Everett v The Queen (1994) 181 CLR 295. Note that the High Court in Everett was considering when leave should be given to the Attorney-General to appeal against sentence under s 40(2)(c) of the Criminal Code (Tas); since 1996 it is no longer necessary to obtain leave. (2009) 197 A Crim R 399; [2009] QCA 274. R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [115]; (2009) 197 A Crim R 399 (per: Keane CJ, Muir and Chesterman JJA); see also Chapters 11 and 12 on sentencing. R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at [127].

178 179 180

R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at 411-412 [148]; [133]. R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at [135]. R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at [257]. (1936) 55 CLR 499.

181

R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274; (2009) 197 A Crim R 399 at [270].

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The High Court’s interpretation of QCC, s 669A(1) [13.240] In 2011 the High Court considered the interpretation of QCC, s 669A(1) in Lacey v Attorney-General of Queensland.182 The High Court held (6:1)183 that the jurisdiction conferred by QCC, s 669A(1) required error on the part of the sentencing judge to be demonstrated before the appellate court’s “unfettered discretion” to vary the sentence arose. The majority observed that “absent clear language, it should not be an inferred purpose of s 669A(1) to authorise the Court of Appeal, in the name of ‘equality before the law’, simply to plant a wilderness of single instances with more instances of its own choosing”.184 The majority determined: The appellate jurisdiction conferred by s 669A(1) must be confined, at least when the Attorney-General is asserting that the sentence should be increased, to the evidence before the primary judge, including evidence given at trial, what the jury necessarily found and evidence, if any, given at the sentencing hearing. Having regard to the categories of appellate jurisdiction and the confinement of the Court of Appeal to evidence before the primary judge, it is open to construe s 669A(1) as creating an appeal by way of rehearing and conferring appellate jurisdiction to determine only whether there has been some error on the part of the primary judge. Such error having been detected, the Court has a wide power, indicated by the words “unfettered discretion”, to vary that sentence.185

There has subsequently been significant discussion about this case. For example, in discussing how, in Australia, the common law principle of legality has hardened into a strong clear statement rule that is applied when legislation engages common law rights, Meagher uses the Lacey case as an example.186 Ekins and Goldsworthy discuss the High Court’s decision in Lacey in their consideration of legislative intention. They observe that the High Court’s approach in Lacey suggests that legislative intention is a “product or construct of interpretation” and that “a statute’s purpose is not something in the minds of any one or more lawmakers”.187

182 183 184

(2011)242 CLR 573; [2011] HCA 10. Lacey v Attorney-General of Queensland (2011)242 CLR 573; [2011] HCA 10: French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (Heydon dissenting). Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [55].

185 186

Lacey v Attorney-General of Queensland (2011) 242 CLR 573; [2011] HCA 10 at [60]. Dan Meagher, “The Principle of Legality as Clear Statement of Rule: Significance and Problems” (2014) 36 Sydney Law Review 413 at 424 see also K Warner, “Sentencing Review 2011-2012” (2012) 36 Criminal Law Journal 384.

187

Richard Ekins and Jeffrey Goldsworthy (2014) 40 Sydney Law Review 39 at 41 and 57; see also David Hume, “The Rule of law in Reading Down: Good Law for the ‘Bad man’” (2014) 37 Melbourne University Law Review 620. [13.240] 379

CHAPTER 14 Executive Pardons, Royal Prerogatives of Mercy and Appeals to the High Court [14.10] Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 381 [14.20] Executive pardons and royal prerogatives of mercy . . . . . . . . . . . . . . . . . . 381 [14.40] AAM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 383 [14.50] Condren . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 384 [14.60] Stafford . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 386 [14.70] Butler . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 388 [14.80] Appeals to the High Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389 [14.90] Fresh evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 390 [14.100] Appeal by the prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 391 [14.110] Taufahema . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 392 [14.120] Sentence appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 393 [14.130] Powers of the High Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 395

OVERVIEW [14.10] This chapter builds on the discussion in Chapter 13 and considers the options available to an appellant following exhaustion of the usual appeal process. In particular, it considers an appellant’s right to petition the Attorney-General for an Executive Pardon or the exercise of the Royal Prerogative of Mercy. The chapter discusses both high profile and less publicised petitions considered by the Queensland Court of Appeal. Appeals to the High Court are also examined. The High Court’s consideration of special leave applications following a State appellate court ordering a verdict of acquittal is also discussed.

EXECUTIVE PARDONS AND ROYAL PREROGATIVES OF MERCY [14.20] As noted in Chapter 13 [13.90], an alternative course to an appeal, where avenues of appeal have run out or when a lengthy period has elapsed between trial and the discovery of fresh evidence, is to petition for an Executive Pardon from the Governor in Queensland. Section 18 Criminal Code (QCC) states that the QCC does not affect the Royal prerogative of mercy. Caruso and Crawford explain that the Royal prerogative of mercy accounts for one of the three powers of the institution of mercy: First, the Royal prerogative of mercy by which the Governor, as the Queen’s representative, of each Australian jurisdiction may pardon a convicted person or mitigate a sentence. The prerogative is exercised by the Governor on the binding advice of the executive government of the jurisdiction. Second, to assist the executive in its exercise of the prerogative, statute permits the Crown Law Officer … to seek assistance from the Supreme Court of the jurisdiction by way of referring to the court

[14.20] 381

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a question (of law, fact or both) relating to the petitioned case in respect of which the court must furnish the minister with its opinion. This is the “opinion power”. Third, statute permits the minister to refer a petitioned case to the Supreme Court in full, to be dealt with by the court as an appeal. This is the “reference power”.1

The pardoning power is usually activated by the presentation of a petition to the Governor.2 The petition does not require any particular form3 and may be made in relation to conviction or sentence. The Governor will usually seek advice from the Crown Law Officer (as recognised in QCC, s 672A) and then the Crown Law Officer may refer the matter to Court of Appeal to be heard in full as if it were an appeal: QCC, s 672A(a).4 The Crown law Officer in this context is the Director of Public prosecutions.5 In Pepper v Attorney General for the State of Queensland Muir JA noted that “… a reference under s 672A is a mechanism which the Crown may employ so that the exercise of the pardoning power may be properly informed or so as to grant the petitioner, in effect, a further appeal”.6 The power may be exercised in relation to all offences including summary offences.7 Similar in nature to the reserved petition for pardon under QCC, s 672A, QCC, s 675 also preserves the power of the Governor to “extend mercy” to an offender who is serving a prison term. However, the provision is rarely used. In those cases where the Crown exercises the prerogative of mercy, and the case is not ultimately referred to the Court of Appeal, this will only discharge the convicted person from the consequences of the conviction (QCC, s 677). It is not an acquittal.8 Only the Court of Appeal has the power to quash the conviction. When the Court of Appeal receives a reference pursuant to QCC, s 672A the court proceeds in the same way as it would when hearing an appeal on a miscarriage of justice pursuant to QCC, s 668E(1) (see Chapter 13 at [13.40]).9 If the appeal is allowed, the Court of Appeal may exercise its powers pursuant to QCC, ss 668E(2) and 668F, including the power to order a new trial (QCC, s 669;

1

2 3 4

5 6 7 8 9

D Caruso and N Crawford, “The Executive Institution of Mercy in Australia: The Case and Model for Reform” (2014) 37(1) UNSW Law Journal 312, 313. See also D Hamer, “Wrongful Convictions, Appeals and the Finality Principle: The Need for a Criminal Case Review Commission” (2014) 37(1) UNSW Law Journal 270 at 271 who argues that many wrongful convictions never come to light because of unduly restrictive post-appeal mechanisms. See also Sue Milne, “The Second or Subsequent Criminal Appeal, The prerogative of Mercy and the Judicial Inquiry: The Continuing Advance of Post-Conviction Review” (2015) 36 Adelaide Law Review 211. See s 36 Constitution of Queensland 2001 (Qld). White v The Queen (1906) 4 CLR 152. “Court” in QCC, s 672A is the Court of Appeal, see QCC, s 668. The Crown can also seek the assistance of the court on any point arising in the case with a view to the determination of a petition, by referring that point to the court for its opinion: QCC, s 672A(b). See QCC, s 1. [2008] 2 Qd R 353; [2008] QCA 207 at [11]. See R v AAM; ex parte Attorney General (Qld) [2010] QCA 305, see [14.40]. See Eastman v DPP (ACT) (2003) 214 CLR 318 at 350 [98] per Heydon J. R v Daley; ex parte A-G (Qld) [2005] QCA 162 per Keane JA.

382 [14.20]

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[13.160]).10 If the appeal is dismissed it is possible for the convicted person to seek leave to appeal to the High Court (see [14.80]).11

[14.30] Almost all pardon applications rely on new or fresh evidence. Where an appellant, in arguing that a miscarriage of justice has occurred, relies on evidence that has become available after the trial, the initial task is to persuade the court that it should receive that evidence. The approach to new or fresh evidence will be similar to the approach taken in relation to appeals under QCC, s 671B (see [13.90]). In R v Daley; Ex parte A-G (Qld)12 Daley was convicted of one count of shooting and killing a goat. He appealed the conviction to the Court of Appeal and his application was dismissed. He applied for special leave to appeal to the High Court but his application was refused. In the intervening period, further witness statements were collected and forensic evidence regarding shotgun pellets came to light which had not been presented by the prosecution at trial. Later, the matter was refereed back to the Court of Appeal where, given the new evidence, the conviction was set aside and Daley was acquitted. Keane JA observed: It may be said that this new evidence might have been obtained with reasonable diligence prior to trial so that it would not satisfy the test for the admission of “fresh evidence” ... However that may be, it seems that on a reference ... the Court has a broader discretion to ensure that justice is done and is seen to be done.13

The pardoning power has been successfully relied on in a number of high-profile Australian wrongful conviction cases, including Lindy Chamberlain and John Button.14 Similar reliance was placed on the pardoning power in Mallard v The Queen15 and R v Martens.16 Some further cases of petitions for pardon or the Royal Prerogative of Mercy are discussed below.

AAM [14.40] In 2009, AAM’s17 formal guardians, her parents, petitioned the Governor of Queensland for a pardon in respect of all nine of the offences contained in AAM’s Queensland criminal history. The offences were for minor shop theft and

10 11 12 13 14

15

16 17

See for example R v Coss [2015] QCA 33. For discussion see Bibi Sangha and Robert Moles, “Post-Appeal Review Rights: Australia, Britain and Canada” (2012) 36 Criminal Law Journal 300. R v Daley; Ex parte A-G (Qld) [2005] QCA 162. R v Daley; Ex parte A-G (Qld) [2005] QCA 162 (Keane JA). For a summary of Chamberlain’s and Button’s ordeals and a discussion of the adequacy of appeal and pardon provisions in cases of wrongful conviction, see L Weathered, “Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia” (2005) 17(2) Current Issues in Criminal Justice 203. Mallard v The Queen (2005) 224 CLR 125. The basis for Mallard’s petition was the prosecution’s non-disclosure or suppression of evidence – ie, evidence that assisted the accused’s case: see Chapter 8 at [8.170]. R v Martens (2009) 262 ALR 106; [2009] QCA 351: see the detailed discussion of this case in Chapter 8 at [8.80]. R v AAM; ex parte A-G (Qld) [2010] QCA 305. For discussion of this case see: Betheli O’Carroll, “Intellectual Disabilities and the Determination of Fitness to Plead in the Magistrates’ Courts” (2013) 37 Criminal Law Journal 51. [14.40] 383

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the possession of tainted property or property suspected of being stolen; there was one conviction for breaching a probation order. AAM had originally entered pleas of guilty to the offences, despite the fact that she had a diagnosed permanent intellectual disability that affected her fitness to plead. There was no provision in the QCC for dealing with fitness to plead issues in the magistrate’s court. While it was acknowledged that an appellate court does “not lightly set aside convictions based on pleas of guilty”,18 it was accepted that there was overwhelming evidence that AAM was unfit to plead. The Court of Appeal allowed the appeal and entered verdicts of acquittal with respect to each of the offences.

Condren [14.50] In 1983, Kelvin Condren, an Indigenous person, was convicted of murdering an Indigenous woman in a carpark near a hotel in Mount Isa.19 The victim died as a result of massive head injuries; she also had a large stone inside her vagina. A long metal pole was found beside her. She was discovered at about 6 am and medical evidence at the trial indicated that her injuries were less than 12 hours old. The timing of the lethal attack on the victim was of critical importance as Condren had been arrested for drunkenness at approximately 5.50 pm on the evening in question and spent the night in the police watch-house. Obviously, Condren could not have killed the woman unless he had attacked her before that time. The prosecution case substantially relied on Condren’s alleged confession to police. The police claimed that Condren told them he attacked the woman at 4.15 pm. A witness stated that at about 7.40 pm she had been walking through the carpark to collect her car when she saw a metal bar on the ground and heard moaning sounds, which she assumed were being made by a person who was drunk. Another person, who was later charged with a murder in Darwin, confessed to the Mount Isa killing, describing to police how at about 7.30 pm he had attacked the victim with a long piece of pipe and that he had also “shoved a rock up her arse” before catching a bus out of Mount Isa to travel to Katherine in the Northern Territory. When he gave evidence at Condren’s trial, this person recanted the confession but admitted that he had been in Mount Isa at the relevant time and that he had hit an Indigenous woman a number of times and left her. Condren appealed against his conviction,20 arguing that freshly discovered evidence indicated that there was a significant possibility he would have been acquitted had the evidence been available to the jury at the trial. The fresh evidence included two witnesses, who claimed to have seen the victim alive at about 7.40 pm, and evidence from a linguistic anthropologist. The latter had examined the police record of interview (containing Condren’s alleged confession) and compared it with Condren’s actual style of speech, in the context of normal

18 19

R v AAM; ex parte A-G (Qld) [2010] QCA 305 at [11] per McMurdo P. Condren’s case is of significance due to its particular facts, contextual circumstances, convoluted history of “appeals” and its aftermath. For two more recent illustrative cases of QCC, s 672A petitions where fresh evidence was raised, see R v Stead; Ex parte AttorneyGeneral [1997] QCA 236 (upheld); and R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229 (dismissed).

20

R v Condren (1987) 28 A Crim R 261.

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patterns of “Aboriginal English”, and had found inconsistencies. The Court of Criminal Appeal refused to allow the fresh evidence and dismissed the appeal.21 Subsequently, further information became available that two other people had walked through the carpark in broad daylight between 5.35 pm and 5.45 pm and had not seen the victim.22 Condren then appealed to the High Court.23 Ultimately, Queensland’s Attorney-General referred the whole case to the Queensland Court of Criminal Appeal and the appeal was completely reheard by that court, including all the fresh evidence.24 In relation to the fresh evidence, Thomas J in the Court of Criminal Appeal noted that on a pardoning reference, the principles governing admissibility of such evidence should not be applied inflexibly.25 When cases are referred to the court under the pardoning power, the “test” for receiving further evidence is not as strict as is generally the case where “fresh” evidence is sought to be led on a standard appeal. Ultimately, the court held that it would be unsafe to allow the conviction to stand, but ordered a new trial.26 Three days after the order was made, the charge

21

R v Condren (1987) 28 A Crim R 261. Ambrose J (at 296, McPherson J concurring) held that the evidence of the two new witnesses contained inconsistencies and lacked the required credibility and cogency to have any effect. Macrossan J (at 262) also considered that it was not “fresh” evidence as it could have been, with reasonable diligence, available at the trial. The evidence of the linguistic anthropologist was not permitted as the court considered that Condren’s speech habits were a matter for the jury and not the province of expert testimony: at 296-297 per Ambrose J (McPherson concurring), and at 267 per Macrossan J.

22

For a useful summary of the case and subsequent proceedings, see C Caruana, “Kelvin Condren – Trial by Endurance” (1989) Aboriginal Law Bulletin 58. Condren had sought a pardon from the Governor of the day, but the incumbent AttorneyGeneral would not refer the case back to the Court of Criminal Appeal under QCC, s 672A. Condren then appealed to the High Court, which would not consider the fresh evidence as the court had previously decided in Mickelberg that it has no power to receive fresh or new evidence: Mickelberg v The Queen (1988) 167 CLR 259 at 270-271 per Mason CJ, at 274 per Brennan J, at 297-298 per Toohey and Gaudron JJ (Deane J dissenting). Condren’s counsel sought a direction from the High Court to Queensland’s Attorney-General to refer the entire case back to the Court of Criminal Appeal under QCC, s 672A. The High Court adjourned the case pending advice from the Queensland Attorney-General. In the meantime, there had been a change of government in Queensland. The new Attorney-General made the QCC, s 672A reference: see L Weathered, “Pardon Me: Current Avenues for the Correction of Wrongful Conviction in Australia” (2005) 17(2) Current Issues in Criminal Justice 203 at 205. R v Condren (1990) 49 A Crim R 79. R v Condren (1990) 49 A Crim R 79 at 81-82 per Thomas J, citing R v Young [No 2] [1969] Qd R 566; cf the stricter approach in Mickelberg. Thomas J reconciled the two decisions on the basis that ordinarily the Mickelberg approach should be adopted, but that there is a residual discretion to receive such evidence where refusing to do so would lead to a miscarriage of justice. See also R v Main (1999) 105 A Crim R 412; R v Daly; Ex parte Attorney-General (Qld) [2005] QCA 162; and R v Katsidis; Ex parte Attorney-General (Qld) [2005] QCA 229.

23

24 25

26

(1990) 49 A Crim R 79 at 88 per Thomas J, at 94-95 per Dowsett J. The majority (Kelly and Dowsett JJ) set aside the conviction and ordered a new trial; Thomas J considered there should not be an order for a new trial. [14.50] 385

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of murder was withdrawn and Condren was released, having spent nearly seven years in prison.27

Stafford [14.60] Graham Stafford was convicted in 1992 of murdering his then fiancé’s younger sister, Leanne Holland. Holland’s body was found abandoned in bushland not far from her home, where Stafford had also been staying. She died as a result of blunt trauma to the head. At trial, the prosecution alleged that Stafford had killed Holland in the bathroom of her home by repeatedly striking her on the head with a hammer. The prosecution alleged that Stafford had then placed Holland in the boot of his car before dumping her body two days later. The prosecution led evidence at trial that Holland had been seen by her father and sister on the morning she disappeared and that she was home alone with Stafford. Traces of human blood were found in the bathroom of the house as well as on the lip and lid of Stafford’s car boot. DNA was also found on items in the boot of Stafford’s car, which was the same type as the deceased’s DNA and was DNA shared by only 0.00005% of the Australian population. A hair that was consistent with the deceased’s was also found on a sponge in the boot, as was a maggot that matched the species and age of maggots found on the corpse. Stafford’s partner gave evidence that a silver hammer, which Stafford had kept in their bedroom, had gone missing some time after Holland’s death. The prosecution also relied on evidence of tyre tracks made by Stafford’s car which matched tracks found in the dirt leading to the spot where the body of the deceased was found. Evidence was also led at trial of statements made by Stafford as to his movements at the time of Holland’s disappearance, which were said to be either false or suspicious so as to suggest a consciousness of guilt on his part. Stafford gave evidence at his trial denying any involvement with the death of the deceased. The prosecution did not suggest any motive on Stafford’s part and were unable to displace evidence of his good character. There was also no evidence of blood on any of Stafford’s clothes, although there was evidence to suggest that Holland had cut her foot before she had disappeared and dripped blood from that cut in the house. Stafford also had very little opportunity to kill the deceased. Holland had been sighted in the afternoon and the evening of her disappearance. Stafford had independent evidence that placed him working on his car in his front yard, at a friend’s house, and at a carwash around the same time as the sightings of Holland. It was also improbable that Stafford would attempt to place the deceased’s body in the boot of his car during the day, especially in light of the fact that the car was in full view of neighbours. Stafford unsuccessfully appealed his conviction in 1992. His application for special leave to appeal to the High Court was refused in 1993. In 1997, Stafford 27

Following his release, Condren made a complaint to the Criminal Justice Commission (now the Crime and Corruption Commission) concerning his treatment by police in assaulting and intimidating him, and sought compensation for wrongful imprisonment: see N Lofgren, “Kelvin Condren – Considered by the AJAC” (1994) Aboriginal Law Bulletin 6. For another striking case referred to the Court of Criminal Appeal on a QCC, s 672A reference, see R v Kina [1993] QCA 480, and the summary of the case in K Pringle, “R v Robyn Bella Kina” (1994) Aboriginal Law Bulletin 15; for a further discussion of the Condren and Kina cases, see also D Eades, Courtroom Talk and Neo-colonial Control (Mouton de Gruyter, New York, 2008).

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petitioned the Attorney-General for a pardon and the case was referred to the Court of Appeal for rehearing. At this hearing, Stafford adduced evidence that cast doubt on the fact that the deceased had been killed in the bathroom and kept in his boot for two days. The majority of the Court of Appeal dismissed the appeal and Stafford once again unsuccessfully applied to the High Court for special leave. In 2008, after his release from prison, Stafford again petitioned the Attorney-General for a pardon. On this occasion, the Court of Appeal upheld the appeal, quashed Stafford’s conviction and, by a majority of two to one, ordered a retrial.28 Stafford again adduced evidence in an attempt to cast more doubt on the proposition that Holland’s body had been kept in the boot of his car for two days. Experts gave evidence that the estimated time of the deceased’s death was ill founded and that the maggot found in Stafford’s boot could not have survived for two days and could not be conclusively linked to the maggots found on the corpse. Stafford also argued that he did not have the opportunity to kill Holland given his movements on the day she went missing. While the majority of the Court of Appeal found that the evidence presented at the latest hearing did not advance Stafford’s case beyond that of the 1997 hearing, they determined that the majority of the court in 1997 did not give sufficient weight to the procedural defects of the initial trial. In light of High Court decisions such as Mallard v The Queen,29 the majority (per Keane JA) concluded:30 [I]t can now be seen that the focus of the majority of the Court in 1997 on the substantive effect of the “fresh/new evidence” obscured the point that the procedural defect which gave rise to a miscarriage of justice involved in the presentation by the Crown of a scenario substantial elements of which were, as the new evidence showed, apt to mislead the jury in performing their function. The trial was unfair in a way which was apt to deprive Mr Stafford of the consideration by the jury of the real case which could fairly be made against him rather than a theoretical case important aspects of which were not sustainable on a fair view of the evidence. In my respectful opinion, in this case there was a significant denial of procedural fairness in that the Crown case was presented to the jury in a way which can be seen in retrospect to have unfairly deprived Mr Stafford of “the chance to have the favourable response of the jury” on the question of his guilt.

Keane JA, with whom Fraser JA concurred, determined that a verdict of acquittal was not an adequate remedy for the procedural miscarriage of justice that had occurred. In ordering a retrial Keane JA concluded that:31 On the whole of the evidence before this Court, a jury could reasonably have been satisfied beyond reasonable doubt of Mr Stafford’s guilt, but the question of his guilt was very much a jury question … It may be that the authorities will decide that the prosecution should not proceed further, but that is a matter for the prosecuting authorities. It may be that the effluxion of time has involved a loss of evidence which would make a fair trial now problematic. Whether that is so is first a question for the prosecuting authorities, and if it is to become a question for the courts, that will be a question for another day.

28 29

Holmes JA was of the opinion that a verdict of acquittal should be entered: R v Stafford [2009] QCA 407 at [208]. (2005) 224 CLR 125.

30

R v Stafford [2009] QCA 407 at [151]-[152].

31

R v Stafford [2009] QCA 407 at [170]. [14.60] 387

Criminal Process in Queensland

In partial dissent, Holmes JA held that a verdict of acquittal should be entered as “a jury presented with the prosecution case as it now stands would experience a reasonable doubt as to Mr Stafford’s guilt”.32 In March 2010, almost 20 years after the alleged murder, the Office of the Director of Public Prosecutions released a statement that Mr Stafford would not be tried again.

Butler [14.70] In 2001, Wayne Butler was convicted of the 1983 murder of Ceila Douty on Brampton Island. Douty died from extensive head injuries that had been inflicted by some form of implement. Her body was covered with a red towel. Two days after the murder, the red towel was taken into the possession of Leo Freney, the supervising scientist of the John Tonge Centre. Freney performed forensic tests on the towel between September 1983 and April 1984, at which point he found semen and type “O” blood. Butler was a person of interest in the investigation and was arrested in 1988. He was released the day after his arrest having voluntarily provided a specimen of his blood and saliva for testing. He was found to have type “B” blood, but remained a person of interest in the ongoing investigation. In 1997, Freney supervised DNA testing on the semen found on the towel. On 13 February 1997, testing of the towel yielded a DNA profile of a male person. Comparison of this DNA profile with that which had been obtained from DNA in a sample of Mr Butler’s blood on 7 February 1997 yielded a match. At trial, Butler argued that the sample of semen on the towel from which the DNA was extracted could have been contaminated by the sample of blood or saliva taken from him on 7 February 1997. Butler was convicted and he agitated the same contamination hypothesis on his appeal in 2001. Butler argued that in the intervening thirteen-and-a-half years since the murder and the DNA testing, the towel had been kept in a number of places and the conditions of its storage were unclear. He argued that the towel could have degraded to the point that no DNA sample could be extracted from it, and that his blood sample contaminated the towel, producing the positive match. This argument was rejected by the Court of Appeal. At his rehearing in 2005, following his petition for a pardon, Butler again sought to cast doubt on the reliability of the DNA testing by adducing fresh evidence of a forensic report by Professor Boettcher. On Butler’s application, the hearing was adjourned for over three years to allow further testing to occur. In March 2009, the Court of Appeal received two further forensic reports by Professor Boettcher which expressed an opinion on the forensic testing relied upon at trial and criticised the record-keeping and other administrative processes of the John Tonge Centre. Professor Boettcher’s principal thesis was that the testing of the semen stains taken from the red towel in 1983, which concluded that the donor was a man of blood group “O”, was decisive in excluding Butler, a man of blood group “B”, as the donor of the semen on the towel. Professor Boettcher asserted that there must therefore be a flaw in the subsequent DNA testing. The Court of Appeal doubted Professor Boettcher’s objectivity in the case and found

32

R v Stafford [2009] QCA 407 at [207].

388 [14.70]

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that his views were not apt to cast doubt on the integrity, competence or reliability of the forensic evidence. The appeal was therefore dismissed.33

APPEALS TO THE HIGH COURT [14.80] Numerous references to appellate decisions of the High Court appear in this chapter and in Chapter 13 However, the number of criminal appeals actually heard by the High Court is remarkably low. Only seven justices sit on the High Court and this clearly limits the capacity of the Court.34 In 2015-2016, a total of 14 criminal appeals were heard by the High Court.35 The threshold requirement in s 35(2) of the Judiciary Act 1903 (Cth) to obtain special leave to appeal presents a significant hurdle to an appellant who wants to exhaust every theoretical avenue of appeal.36 In 2015-2016, the court refused 71 of 89 criminal special leave applications throughout Australia. Twenty applications for special leave emanated from Queensland with only three granted.37 However, since the 1980s the number of criminal appeals granted leave has increased, as have the number of sentence appeals.38 Special leave applications are heard in advance of the substantive appeal. Applications for special leave to appeal to the High Court are regularly heard in the Brisbane registry of the High Court. If leave is granted, then the substantive appeal is listed to be heard at a later date at the High Court in Canberra. Commonly between five to seven judges hear the substantive appeal. The criteria for granting special leave appear in s 35A of the Judiciary Act 1903 (Cth). While the court may have regard to any relevant matter, it must have regard to: (a)

whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) (ii)

33 34 35 36

37 38

that is of public importance, whether because of its general application or otherwise; or in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

R v Butler [2009] QCA 111. The Chief Justice and six other Justices, s 5, High Court of Australia Act 1979 (Cth). High Court of Australia, Case summaries: http://www.hcourt.gov.au/registry/case-summarie s-2016. See also Ashworth’s examination of the restrictions on appeal rights in the UK: A Ashworth and M Redmayne, The Criminal Process (4th ed, OUP, New York) Ch 12. The High Court’s jurisdiction to entertain appeals from State courts, including where they exercise federal jurisdiction, and appeals from Territory courts, is provided for in ss 35 and 35AA of the Judiciary Act 1903 (Cth). An application for special leave to appeal is required to be filed within 28 days of the decision being appealed: High Court Rules 2004 (Cth) r 41.02. A notice of appeal must be filed within 14 days of leave being obtained: High Court Rules 2004 (Cth) r 42.03. High Court of Australia, High Court Bulletin: http://www.hcourt.gov.au/library/high-court-bu lletin. Justice M Kirby, “Why Has the High Court Become More Involved in Criminal Appeals?” (2000) 23 Australian Bar Review 1. [14.80] 389

Criminal Process in Queensland

(b)

whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates.39

It follows that there must be “something that is special in the case” and this generally requires that the case “involves some point of law of general application”.40 In Morris v The Queen41 Dawson J emphasised the distinction between leave to appeal and special leave to appeal. He explained special leave to appeal should only be given where “there is some special feature of the case which warrants the attention of this Court. It would be wrong to attempt to formulate rules which would confine the exercise of the jurisdiction to grant special leave. It remains a discretionary jurisdiction”.42 Further Dawson J explained: In exercising its wide discretion to grant special leave to appeal, it is proper that the Court should be influenced by the function which it performs as the final appellate court in the judicial hierarchy. The number of applications for special leave increases year by year, particularly in the criminal law. Since the number of cases with which the Court can properly deal in any one year is limited, it is inevitable that a careful choice must be made having regard to the duty which the Court has to develop and clarify the law and to maintain procedural regularity in the courts below. The Court must necessarily place greater emphasis upon its public role in the evolution of the law than upon the private rights of the litigants before it. Whilst procedurally and otherwise this Court performs in many ways a truly appellate function, more significantly it operates as a court of review and this must ultimately be the most important factor in the selection of those cases in which special leave to appeal is to be granted.43

He stated that the High Court has refused to grant special leave to appeal in criminal cases based upon questions of fact.44 Concerns have been expressed by the court in relation to prosecution appeals – for instance, Kirby J in Dinsdale v The Queen45 noted that the power to hear such appeals should be exercised sparingly, referring to notions of double jeopardy.46 This is discussed further in [14.100].

Fresh evidence [14.90] In Mickelberg v The Queen,47 the High Court stated that there cannot be a miscarriage of justice if the evidence was available at the trial but simply not

39 40 41 42 43 44 45

46

s 35A of the Judiciary Act 1903 (Cth). White v The Queen (1962) 107 CLR 174. (1987) 163 CLR 454. Morris v The Queen (1987) 163 CLR 454 per Dawson J at 475. Morris v The Queen (1987) 163 CLR 454 per Dawson J at 475-476. Morris v The Queen (1987) 163 CLR 454 per Dawson J at 476. Dinsdale v The Queen (2000) 202 CLR 321 at 340-342 [62] per Kirby J; see also R v Benz (1989) 168 CLR 110, esp at 119-120 per Deane J, and at 146 per Gaudron and McHugh JJ; R v Glennon (1992) 173 CLR 592; and see generally, D O’Brien, Special Leave to Appeal (LBC Information Services, North Ryde, 1996) pp 122-135. See Chapter 7 on double jeopardy.

47

(1988) 167 CLR 259.

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given, or if the evidence could have been available with reasonable diligence.48 In addition, the court must be satisfied that the evidence is plausible.49 In Mickelberg, the High Court provided a test as to when an appellate court will set aside a conviction on the basis of fresh evidence: whether the court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant had the fresh evidence been before it at trial;50 or, [whether] the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it.51

In Mickelberg v The Queen,52 Mason CJ noted that one of the propositions underlying this approach is that a court exercising strictly appellate jurisdiction is called upon to decide whether there was an error on the part of the court that originally heard the matter, considering the material which was before that court.53

Appeal by the prosecution [14.100] While it is not possible for the prosecution to appeal against a jury verdict of acquittal,54 the High Court has power to hear an appeal by the prosecution where a state appellate court has upheld an appeal against conviction and ordered a verdict of acquittal.55 It will only be in the most exceptionally strong case of public importance and in the interests of the administration of justice that the court will grant special leave to the prosecution against such an acquittal. R v Glennon56 is one of very few cases where the prosecution was successful. In this case, the majority of the High Court were particularly concerned that Glennon’s appeal against conviction resulting in his acquittal had been upheld on the basis that he had not had a fair trial due to adverse pre-trial publicity. Previously, two judges had each rejected Glennon’s arguments for a permanent stay of the proceedings due to the publicity. In the majority’s view, the

48

49

50

51 52 53 54 55

56

Mickelberg v The Queen (1989) 167 CLR 259 at 301 per Toohey and Gaudron JJ, referring to Gallagher v The Queen (1986) 160 CLR 392 at 395, 402 and 410. As to the requirement that “due diligence” presupposes competent counsel, to establish a miscarriage of justice on the basis of incompetent counsel, flagrant incompetence must be established: Nudd v The Queen (2006) 225 ALR 161; 80 ALJR 614 (see Chapter 10 at [10.100]). Mickelberg v The Queen (1989) 167 CLR 259 at 301-302 per Toohey and Gaudron JJ, noting there is no precise formulation in the cases, but terms used include “credible”, “cogent” and “relevant”. Mickelberg v The Queen (1989) 167 CLR 259 at 273 per Mason CJ, and at 301-302 per Toohey and Gaudron JJ. See also Gallagher v The Queen (1986) 160 CLR 392 at 399 per Gibbs CJ, and at 402 per Mason and Deane JJ. Mickelberg v The Queen (1989) 167 CLR 259 at 301-302 per Toohey and Gaudron JJ, referring to Gallagher v The Queen (1986) 160 CLR 392 at 410 per Brennan J. (1988) 167 CLR 259. [1989] HCA 35; (1989) 167 CLR 259 at 267. See the discussion of double jeopardy in Chapter 7. However, the Crown cannot appeal to the High Court against a jury verdict of acquittal. For the considerations relevant to the High Court’s exercise of its power to grant special leave to appeal a verdict of acquittal ordered by a Court of Appeal, see R v Benz (1989) 168 CLR 110. (1992) 173 CLR 592: see the discussion of Glennon in Chapter 9 at [9.120]. [14.100] 391

Criminal Process in Queensland

approach of the Court of Criminal Appeal failed to accord due weight to the trial judge’s ability to ensure a fair trial would occur and to show any error of principle by the two judges who had earlier refused to grant a stay of proceedings.57

Taufahema [14.110] The High Court considered the circumstances in which it would be appropriate to hear a special leave application where a State appellate court ordered a verdict of acquittal. In R v Taufahema,58 a majority of the High Court granted special leave and upheld a New South Wales prosecution appeal against an acquittal. The High Court ordered that a new trial be held. Taufahema was originally convicted at trial for the murder of a police officer. The police officer had been shot. Taufahema was not the person who shot the police officer but he was convicted on the basis that he was part of a joint criminal enterprise designed to avoid arrest and the shooting had been a foreseen possibility.59 The Court of Criminal Appeal upheld Taufahema’s appeal against conviction and ordered his acquittal on the ground that the asserted “foundational crime” of avoiding arrest was not actually a crime, an essential prerequisite. That court also found there had been other errors in the way the trial had proceeded. The prosecution then obtained special leave to appeal to the High Court. There, the prosecution argued for a new trial on the basis that it would proceed on a different basis, that Taufahema was involved in a joint criminal enterprise of “armed robbery” and that the shooting occurred as a “foreseen possibility”. A majority of the High Court60 held that if the different argument had been put before the Court of Criminal Appeal, that court would have been required to order a new trial, rather than enter a verdict of acquittal. Gummow, Hayne, Heydon and Crennan JJ considered that one of the key issues was the public interest in ensuring persons who are guilty of serious crimes are brought to justice and do not escape on the basis of a technical blunder by the trial judge.61 At the trial, the judge, after the close of the evidence, had suggested to the prosecutor that the case be presented as one where the foundational offence was “avoiding lawful apprehension” (arrest).62 In addition, the majority held that a second trial would not be dissimilar to the first, and that therefore there was no bar to a retrial. The prosecution would rely on the same evidence and merely characterise some of the material in a different way.63 The majority therefore did

57 58 59 60 61 62

63

R v Glennon (1992) 173 CLR 592 at 598 per Mason CJ and Toohey J, and at 615-617 per Brennan J. (2007) 228 CLR 232. For the Queensland law, which is phrased in different terms, see QCC, ss 8 and 9. R v Taufahema (2007) 228 CLR 232 per Gummow, Hayne, Heydon and Crennan JJ (Gleeson CJ, Kirby and Callinan JJ dissented). (2007) 228 CLR 232 at 254 [49] per Gummow, Hayne, Heydon and Crennan JJ. (2007) 228 CLR 232 at 255 [51] per Gummow, Hayne, Heydon and Crennan JJ; cf at 290-291 [168]-[173] per Kirby J, where his Honour emphasised that it was wrong to ascribe to the trial judge the primary responsibility for what had occurred; the judge had made a suggestion which the prosecutor had embraced. (2007) 228 CLR 232 at 262-263 [68] per Gummow, Hayne, Heydon and Crennan JJ; cf at 250 [37] per Gleeson CJ and Callinan J, who considered that the prosecution, just as much as the

392 [14.110]

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not consider that permitting a new trial would breach any double jeopardy principles. Kirby J, dissenting, emphasised that special leave to appeal to the High Court against an acquittal can be allowed in only very exceptional cases. Further, in Taufahema’s case, the prosecution sought to rely on new grounds, which had not been put to the Court of Criminal Appeal, to demonstrate the latter court had made an error. His Honour referred to Crampton v The Queen,64 where although the High Court held that such a new ground could be raised, special leave to appeal on a new ground would only be granted in “exceptional circumstances”.65 Kirby J then commented that “[i]n a sense this is a manifestation of the deep-rooted principle of the law against double jeopardy in its various forms”.66 In Kirby J’s opinion, what the prosecution sought in the High Court was “thrice exceptional” – “special leave”, which is exceptional, the overturning of an order of acquittal, which is also exceptional, and reliance on a basis argued in the High Court for the first time, which will only be permitted in “exceptional circumstances”.67 Further, his Honour emphasised the importance to be attached to the rule forbidding the prosecution from being given an opportunity to argue a new case, not made previously at the first trial, noting that it is an aspect of the double jeopardy principle.68

Sentence appeals [14.120] In considering whether to grant leave to appeal against sentence, the High Court will have regard to s 35A of the Judiciary Act 1903 (Cth) ([14.80]) and the so-called “House principles” enunciated in House v The Queen (see also [13.190]):69 The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes defence, are bound by the conduct of their counsel and the manner in which they conduct the trial, referring to Crampton v The Queen (2000) 206 CLR 161. 64

(2000) 206 CLR 161.

65 66

Crampton v The Queen (2000) 206 CLR 161 at 173-174 [20]-[21]. R v Taufahema (2007) 228 CLR 232 at [151] per Kirby J.

67 68

R v Taufahema (2007) 228 CLR 232 at [151] per Kirby J. R v Taufahema (2007) 228 CLR 232 at 285-286 [158]-[162] per Kirby J, referring to Jiminez v The Queen (1992) 173 CLR 572 at 590-591 per McHugh J; Reid v The Queen [1980] AC 343 at 349-350; Parker v The Queen (1997) 186 CLR 494 at 539; R v Chekeri (2001) 122 A Crim R 422 at 434 [58]; Davern v Messel (1984) 155 CLR 21 at 67 per Deane J; and Jago v District Court (NSW) (1989) 168 CLR 23 at 55 per Deane J.

69

House v The Queen (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ. See also [13.190]. [14.120] 393

Criminal Process in Queensland

in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

The High Court has expressed reluctance to hear sentence appeals unless there has been a gross violation of the principles that ought to guide the sentencing judge’s discretion. This indicates a strong preference for leaving State courts to ensure consistency in sentencing practices.70 However, Bagaric and Edney argue that the High Court has shifted away from its historical reluctance to exercise its appellate jurisdiction in appeals against sentence and observe that: “despite a proclaimed reluctance to the contrary, the High Court has been active in the development and refinement of Australian sentencing principles”.71 In general, leave will not be given by the High Court where the only argument is that the sentence is manifestly excessive. In AB v The Queen McHugh J stated: Only in the most exceptional case would it be right for this Court to allow an appeal on the ground that the sentence is manifestly excessive. The judges of the Courts of Criminal Appeal and intermediate Courts of Appeal hear large numbers of sentence appeals each year. Their members often include sentencing judges. The collective experience of the Courts of Criminal Appeal and Courts of Appeal ordinarily far exceeds the experience of members of this Court as to what is a proper sentence for a particular offence in a particular State or Territory.72

Where leave to appeal against sentence is granted, the court will usually remit the case to the State level for re-sentencing, rather than impose a sentence itself. However, in the cases of Veen v The Queen (No 1)73 and Veen v The Queen (No 74 2), the High Court granted leave on both occasions on the basis that the matter raised important issues of principle, in particular how the sentencing principle of proportionality should be balanced against the principle of community protection. In Veen (No 1), the High Court allowed the appeal against Veen’s sentence of life imprisonment for manslaughter and ordered a sentence of 12 years. Veen subsequently reoffended, by killing another person, and was again sentenced to life imprisonment. His appeal against the second sentence of life imprisonment, Veen (No 2), was unsuccessful. In Dimozantos v The Queen (No 2),75 the High Court had earlier allowed an appeal against sentence on the basis that the sentencing judge had been mistaken about the maximum penalty that applied for the relevant offence, and ordered that re-sentencing be carried out by the State appellate court.76 After he had been re-sentenced at State level, Dimozantos appealed again against that sentence to the High Court. His appeal was again successful and, in the extraordinary circumstances of the case created by the long history of appeals and the relatively

70

75

White v The Queen (1962) 107 CLR 174; see also Veen v The Queen (No 1) (1979) 143 CLR 458; Morris v The Queen (1987) 163 CLR 454. M Bagaric and R Edney, Sentencing in Australia (Thomson Reuters (Professional) Australian Limited, Prymont, 2014) at 121. At [30]; see also Kirby J at [59] [104]. (1979) 143 CLR 458. (1988) 164 CLR 465. Both the Veen cases are discussed in detail in Chapter 11 at [11.150]. See also Neal v The Queen (1982) 149 CLR 305. (1993) 178 CLR 122.

76

Dimozantos v The Queen (1992) 174 CLR 504.

71 72 73 74

394 [14.120]

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minor error in sentencing, the High Court carried out the re-sentencing as it was in the interests of justice to do so.

Powers of the High Court [14.130] As indicated above, where the High Court allows an appeal, and particularly in relation to sentence, the usual approach taken by the court is to remit the case to the lower court for re-sentencing or rehearing. For example, where fresh evidence has become available, the matter will be remitted to the lower court for rehearing with the additional evidence.77 The High Court may also order a new trial.78

77 78

For the powers of the court on hearing an appeal, see Judiciary Act 1903 (Cth) s 37. Judiciary Act 1903 (Cth) s 36. [14.130] 395

CHAPTER 15 Restoring Justice [15.10] [15.20]

[15.100] [15.120]

Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 397 Restorative Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 [15.20] “Retributive justice vs restorative justice”? . . . . . . . . . . . . . . . 398 [15.30] Defining “restorative justice” . . . . . . . . . . . . . . . . . . . . . . . . . . . . 398 [15.40] Restorative justice programs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 399 [15.50] Youth justice conferencing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 400 [15.60] Justice mediation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 401 [15.70] Do restorative justice approaches work? . . . . . . . . . . . . . . . . . 402 [15.90] Limits and challenges for restorative justice . . . . . . . . . . . . . 404 Murri Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 406 Victims’ Assistance and Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 [15.120] Victims of crime and the accused . . . . . . . . . . . . . . . . . . . . . . . . 409 [15.130] Central themes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 409 [15.140] Assistance for victims of crime in Queensland . . . . . . . . . . . 411 [15.150] Victims of Crime Assistance Act 2009 (Qld) . . . . . . . . . . . . . . 412 [15.210] VOCA’s improvements on the previous regime . . . . . . . . . . 416

OVERVIEW [15.10] The primary focus throughout this text has been on the interaction between the accused and the criminal justice system process. The various ways in which a victim’s interests are considered throughout that process have also been identified – that is, from the initial stage of arrest and charge,1 during pre-trial disclosure2 and in the procedures followed during the trial3 and at sentencing.4 This chapter focuses on the notion of “restoring justice”. To that end, the chapter includes a consideration of the legislative schemes operating in Queensland for victims of crime as well as a discussion of the concept of “restorative justice”. Much has been written on the subject of restorative justice and a comprehensive treatment of the topic is beyond the scope of this text. The focus here will be on “conferencing” as it has been applied in the criminal justice setting. The primary linking theme throughout this chapter is the inclusion of victims as active, rather than passive, participants in the justice system.5 Other 1

2 3 4 5

See [2.170]; see generally, Office of Director of Public Prosecutions (ODPP), Director’s Guidelines, guideline 22 and 25: http://www.justice.qld.gov.au/__data/assets/pdf_file/0015/1 6701/directors-guidelines.pdf. See Chapter 8 at [8.20]-[8.80]. For example, the procedures for giving evidence may be modified, especially in the case of a child who is the victim of a sexual offence: see Evidence Act 1977 (Qld) Part 2, Division 4A. See Chapter 11 at [11.220] on the use of victim impact statements. For a discussion about other ways to include victims in the justice process see, eg, K Braun “Legal Representation for Sexual Assault Victims - Possibilities for Law Reform?” (2014) 25 (3) Current Issues in Criminal Justice 819-838.

[15.10] 397

Criminal Process in Queensland

initiatives that offer an alternative approach to mainstream sentencing approaches include Indigenous Sentencing Courts and the Queensland Murri Court is considered in this chapter. In the final part of the chapter, we consider the operation of the Victims of Crime Assistance Act 2009 (Qld).

RESTORATIVE JUSTICE “Retributive justice vs restorative justice”? [15.20] In Chapter 11, the various purported aims of punishment were examined and it was noted that the “retributive” or “just deserts” model focuses on blame – that is, it emphasises giving offenders what they deserve – whereas reform-based aims focus more on restoration, deterrence and rehabilitation.6 Restorative justice research7 indicates that specific deterrence is best achieved through the successful reintegration of offenders into the community.8 John Braithwaite’s “reintegrative shaming theory” maintains that lower crime rates are achieved in societies, which effectively shame criminal acts and reintegrate deviant actors once redress and apology has been made. His theory developed from a comparative analysis of societies with low and high crime rates. According to Braithwaite’s theory, people are shamed both internally through their conscience and externally through experiencing “disgrace shame” in the public domain. Therefore, an effective response to criminal behaviour is to shame the actions of offenders while simultaneously strengthening their connectedness to their communities of care. According to Braithwaite’s observations, the process of shaming and reintegration is a key dynamic in the conduct of victim-offender mediation.9

Defining “restorative justice” [15.30] The question “what is restorative justice” has been considered by Daly who notes that the question tends to be answered in a variety of ways and that there is no clear-cut definition.10 Marshall defines “restorative justice” in the criminal law context as:

6 7

8

9 10

We deliberately query the phrase “retributive justice vs restorative justice” as the meaning to be attributed to both terms is contested in the literature. See the special issue on “The future of Restorative Justice” (2016) 11(1) Victims and Offenders. See also G Johnstone Restorative Justice: Ideas, Values, Debates (Routledge, London, 2013). Note, however, that some writers have stressed the need to “move beyond oppositional caricatures of justice models” where all aspects of retributivism are “nasty and brutish” and all aspects of restorative justice are “nice and progressive”: see, eg, K Daly and R Immarigeon, “The Past, Present, and Future of Restorative Justice: Some Critical Reflections” (1998) 1 Contemporary Justice Review 21 at 32; K Daly, “What is Restorative Justice? Fresh Answers to a Vexed Question” (2016) 11(1) Victims and Offenders 9, 15. J Braithwaite, Crime, Shame and Reintegration (Cambridge University Press, Cambridge, 1989). K Daly, “What is Restorative Justice? Fresh Answers to a Vexed Question” (2016) 11(1) Victims and Offenders 9 at 10.

398 [15.20]

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CH 15

a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future.11

The procedures that tend to be associated with restorative justice may involve diversion from formal court processes, actions taken in parallel with court proceedings, or meetings between the victim and offender at any stage of the criminal process.

Restorative justice programs [15.40] Restorative justice programs are designed to achieve moderated agreements between offenders and victims. Proponents of restorative justice programs view crime as causing harm to people, relationships and the state, rather than simply being a matter between the offender and the state.12 Regardless of the specific aims of particular programs, in terms of the aims of punishment, any focus on retribution is minimised in preference for maximising the opportunities for restoration and rehabilitation. Restorative justice programs commonly comprise features that differentiate them from conventional criminal justice responses. These distinctions are set out in the table below:13 Diagram 15.1: Restorative justice program differences Conventional Criminal Processes

Restorative Justice

Crime is a violation of law and committed against the state.

Crime is a conflict between individuals that has resulted in harm towards victims and communities.

The criminal process determines guilt and imposes punishment.

Restorative justice is more concerned with repairing the harm caused by offending and restoring relationships.

Victims play a passive role.

There is active participation by victims, offenders and their communities.

In Australia, Braithwaite’s concept of reintegrative shaming first appeared in New South Wales where, in 1991, the police in Wagga Wagga instituted a conferencing program.14 In 1993, South Australia15 established a legislative framework accommodating restorative justice practices. Since then all jurisdictions in Australia have passed legislation accommodating various restorative justice 11

12

13 14

T Marshall, Restorative Justice: An Overview, Report (London Home Office Research Development and Statistics Directorate, 1999): http://webarchive.nationalarchives.gov.uk/201009 20133143/http://lcjb.cjsonline.gov.uk/area37/library/restjust.pdf. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 3; H Strang, Restorative Justice Programs in Australia: A Report to the Criminology Council, AIC, Canberra, 2001. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 3. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint, and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) p 459. [15.40] 399

Criminal Process in Queensland

practices.16 In a 2014 review of restorative justice in Australia, Larsen identified the availability of a wide range of restorative justice options in Australia including:17 • conferencing for young offenders;18 • conferencing for adult offenders in some states; • Indigenous sentencing courts;19 and • victim–offender mediation.20 Youth justice conferencing [15.50] and justice mediation [15.60] are practiced in Queensland. These processes are discussed below.

Youth justice conferencing [15.50] Pursuant to the Youth Justice Act 1992 (Qld), community conferences are available for offenders who are children and their victims in Queensland.21 Child offenders are usually referred to conferences by the court or by the police. The aim of these conferences is to allow the child who has committed the offence (“the child”) and other “concerned persons” to deal with the offending in a way that benefits everyone concerned (YJ Act, s 33). A range of people are entitled to participate in the conference including the child, the victim, the conference convenor, a representative of the police and various others (YJ Act, s 34). However, if the conference is to take place, the child and the convenor must attend (YJ Act, s 35(1)). If the child is from an Aboriginal and Torres Strait Islander community the convenor must consider inviting a respected elder or a representative from a community justice group (YJ Act, s 34(3)). The aim of the conference is to come to a conference agreement. This is an agreement in which the child admits the offence and undertakes to address the harm caused by it (YJ Act, ss 35-36). Prior to the conference, the convenor meets with each of the proposed participants of the conference to answer their questions or address their

15

16

17 18 19

20

21

For an informative analysis of the South Australia Juvenile Justice (SAJJ) project, see H Hayes and K Daly, “Youth Justice Conferencing and Re-offending” (2003) 20(4) Justice Quarterly 725. For an overview of conferencing for adult and youth offenders in Australia see J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014) pp 5-15, especially the table on pp 8-9. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at vi-vii. In Queensland see ss22-24A and 327 Youth Justice Act (1992) (Qld); discussed at [15.50]. In Queensland Aboriginal and Torres Strait Islander people can be sentenced in the Murri Court in some circumstances, see Magistrates Courts Practice Direction No. 2 of 2016: http:// www.courts.qld.gov.au/__data/assets/pdf_file/0007/464173/mc-pd-2of2016.pdf. There is some debate about whether such courts are best understood and a form of restorative justice. This is discussed further at [15.100]. Referred to in Queensland as Justice Mediation. See Queensland Government, “Justice Mediation”: https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/setting-d isputes-out-of-court/justice-mediation/. See discussion at [15.60]. See also alternate diversion programs for children: YJ Act, ss 38.

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concerns.22 During the conference participants are encouraged to discuss the consequences of the offence and the most suitable outcome of the conference. More particularly, the offender is given an opportunity to explain the background and circumstances of the offence. The offender’s supporters and, importantly, the victim, are also given an opportunity to discuss how the offence has affected or influenced them. The convenor helps the participants to consider an appropriate outcome that meets the needs of the victim, that is achievable, that is legal,23 and that can help start repairing the harm caused by the child’s behaviour.24 The agreement may include: • a verbal or written apology from the child; • a commitment to monetary restitution; • the performance of work for the victim or the community; or • an agreement that the child will attend counselling.25 The aim of the legislated conferencing option is to divert juveniles away from the formal court processes of the juvenile justice system. Consequently, the restorative justice process is a credible alternative when dealing with criminal behaviour. In Queensland, there are no restrictions placed on the offences that can be referred to youth justice conferencing.

Justice mediation [15.60] Justice Mediation is also available for adults in Queensland as an alternative to dealing with a matter in court.26 In a similar vein to youth conferencing, Justice Mediation provides an alternative to court proceedings. The process for both adult and youth mediation is essentially the same. The parties are brought together to discuss the criminal behaviour and its effects, with a view to reaching a workable agreement. Such a workable agreement often involves an unqualified apology, the payment of restitution or compensation and sometimes an offer to make a donation to a charity of the complainant’s choice. An independent mediator helps the victim and offender to discuss the issues. A successful mediation is one in which all the terms of the agreement are complied

22

23

24

25

26

Queensland Government, “About Restorative Justice Conferences” (2016): https://www.qld .gov.au/law/sentencing-prisons-and-probation/young-offenders-and-the-justice-system/you th-justice-community-programs-and-services/restorative-justice-conferences/about/. Note that the conference agreement cannot provide for the child to be treated more severely for the offence than if the child were sentenced by a court, see Youth Justice Act (1992) (Qld), s 36 (5). Queensland Government, “About Restorative Justice Conferences” (2016): https://www.qld .gov.au/law/sentencing-prisons-and-probation/young-offenders-and-the-justice-system/you th-justice-community-programs-and-services/restorative-justice-conferences/about/. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) p 459. Power to mediate criminal matters is conferred by the Dispute Resolution Centres Act 1990 (Qld). [15.60] 401

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with. It must be noted, however, that matters can only proceed to Justice Mediation if the parties agree to participate voluntarily.27 Matters can be referred to mediation by the police, the ODPP, or the court.28 In practice, the referral process often occurs during the case conferencing process discussed at Chapter 7. The defendant or their legal representative will offer mediation to the Police Prosecutor or Prosecutor from the ODPP. The relevant prosecutor will then speak with the Arresting Officer who will in turn discuss the matter with the complainant. If the Arresting Officer and the complainant are amenable to mediation, then the matter can be referred. Certain matters will not be mediated by the Justice Mediation unit, for example, where the mediation is perceived to be being used for the purpose of obtaining an unjustified amount of compensation which may be said to involve some coercion. Another example involves domestic violence proceedings where the public interest does not necessarily support the mediation route or where the complainant is a police officer. The final consequences of a successful mediation are dependent upon which authority referred the matter to the Justice Mediation: • If the matter was a police referral or a referral from the ODPP or the Police Prosecutor, the matter can be finalised without further prosecution in court. The defendant is discharged and the charge is discontinued. • If the matter was a court referral, the court may decide to not take any further action against the offender, or it may take the successful mediation into account during sentencing.29

Do restorative justice approaches work? [15.70] One way of evaluating the success of restorative justice responses is to examine their impact on recidivism. While some studies have determined that participation by offenders in restorative justice conferencing programs leads to desistance from criminal behaviour, the evidence is mixed.30 There is also a lack of thorough and conclusive empirical research on recidivism as a measure of success. In New South Wales, research by Luke and Lind on several thousand first-time offenders found that conferencing resulted in a 15-20% reduction in the risk of reoffending.31 In contrast, Smith and Weatherburn compared reoffending between young people participating in Youth Justice conferences in New South Wales and those eligible for conference but processed through the children’s court. They found no significant differences between the two groups and concluded that conferencing for young offenders in New South Wales “is no more effective than 27 28 29

30 31

See Justices Act 1886 (Qld) (JA(Qld)) s 53A(2). Mediation is completely voluntary: see Dispute Resolution Centres Act 1990 (Qld), s 31. See JA(Qld), s 53A. For a further discussion on Justice Mediation, see the Department of Justice and AttorneyGeneral website: https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/sett ing-disputes-out-of-court/justice-mediation/. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014. G Luke and B Lind, “Reducing Juvenile Crime: Conferencing versus Court” (2002) 69 Crime and Justice Bulletin: Contemporary Issues in Criminal Justice 1 at 20.

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the NSW Children’s Court in reducing juvenile offending among young person’s eligible for a conference”.32 Researchers have found that in the Australian Capital Territory’s Reintegrative Shaming Experiments (RISE) program, young violent offenders who were assigned to conferencing were significantly less likely to reoffend, compared to similar offenders who went through the court system. However, the same comparative study found that young property offenders and drink-drivers were no less likely to reoffend if they were referred to the conferencing process, as opposed to going to court.33 In Queensland, a small study involving 25 young offenders who took part in conferences found that reoffending was lower when participants saw the conference as a positive experience and who realised the impact of their offending behaviour after hearing the victim’s story.34 A recent systematic review examined the effect of face-to-face restorative justice conferencing on reoffending and victim outcomes and found that restorative justice performed better than court in reducing reoffending.35 In their review of the research, Daly and Marchetti note that when offenders are observed to be remorseful and when conference outcomes are achieved by a genuine consensus, the prevalence of re-offending is reduced.’36 There are limitations on what the conferencing process can achieve. It is well known that individual circumstances, such as poverty, unemployment, unstable living arrangements, as well as mental health and drug-related problems also play a role in the likelihood of recidivism.37 Similarly, age, gender and any history of prior offending are significant factors in the risks of reoffending.38 A further factor that may increase the risk of recidivism is residential instability, or homelessness.

32

33

34

35

36

37

38

N Smith and D Weatherburn “Youth Justice Conferences versus Children’s Court: A Comparison of Re-offending” (2012) Contemporary Issues in Crime and Justice 160: 1–23. See generally J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 7,9 for an overview of recent studies. L W Sherman, H Strang and D J Woods, Recidivism Patterns in the Canberra Reintegrative Shaming Experiments (RISE), Report (Centre for Restorative Justice, Research School of Social Sciences, Australian National University, 2000), referred to in H Hayes and K Daly, “Conferencing and Re-offending in Queensland” (2004) 37(2) Australian and New Zealand Journal of Criminology 167 at 169. For a critical analysis of the RISE findings, see H Hayes and K Daly, “Youth Justice Conferencing and Re-offending” (2003) 20(4) Justice Quarterly 725 at 735. The conferences took place between 2004-2006, see H Hayes, T McGee and M Cerruto “Explaining Continuity and Change in Offending Behaviour after a Restorative Justice Conference” (2011) 23 (2) Current Issues in Criminal Justice 127–143. H Strang and L Sherman, E Mayo-Wilson, D Woods and B Ariel, “Restorative Justice Conferencing (RJC) Using Face-to-Face Meetings of Offenders and Victims: Effects on Offender Recidivism and Victim Satisfaction. A Systematic Review” (2013) Campbell Systematic Reviews no. 12: http://www.campbellcollaboration.org/lib/download/3066/. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) on p 461. See, eg, G Maxwell and A Morris, “Family Group Conferences and Re-offending” in A Morris and G Maxwell (eds), Restorative Justice for Juveniles: Conferencing, Mediation and Circles (Hart Publishing, Oxford, 2001) pp 243-263. See, eg, M Cain, An Analysis of Juvenile Recidivism (Paper presented at the Australian Institute of Criminology Conference, Juvenile Crime and Juvenile Justice, Towards 2000 and [15.70] 403

Criminal Process in Queensland

As a group, homeless people are much more visible to police and are therefore more likely to have contact with them and to be arrested.39

[15.80] It is important to recognise that a reduction in recidivism is only one measure of the success or efficacy of a restorative justice program. Given that two of the key distinctive features of restorative justice are its focus on restoring relationships and providing an opportunity for victims, offenders and members of their communities to actively participate in the process,40 it is important to consider whether restorative justice succeeds in achieving these aims. This is even more difficult to evaluate. Research identifies that victims are generally satisfied with restorative justice processes. For example, in a survey of 154 participants who had experienced New Zealand Ministry of Justice funded restorative justice programs 82% of respondents said they were satisfied with the conference they attended and 74% responded that they felt better after the conference.41 In a study of the ACT based RISE program, researchers identified positive benefits for both victims and offenders were most common when the parties engaged in a restorative justice program as compared to a traditional criminal justice approach.42

Limits and challenges for restorative justice [15.90] Wood and Suzuki consider four future challenges for restorative justice.43 Their analysis is outlined here. First, they identify the definition of restorative justice as a continuing problem. They observe that the term has become increasingly hybridised and diffuse, noting that it is now applied to a multitude of practices in a multitude of settings, often outside of the criminal law. While the authors point out that the debate about the proper definition of restorative justice is not new, they note that the expansion of approaches and contexts where the title “restorative justice” is used emphasises its extraordinary plasticity. Second, Wood and Suzuki point out that much of the early research on restorative justice was focussed on offering alternatives to formal engagement

39 40 41

42

43

Beyond, 1997) p 3; see also: K Daly et al, “Youth Sex Offending, Recidivism and Restorative Justice: Comparing Court and Conference Cases” (2013) 46(2) Australian and New Zealand Journal of Criminology 241. T Walsh, “Waltzing Matilda One Hundred Years Later: Interactions Between Homeless Persons and the Criminal Justice System in Queensland” (2003) 25 Sydney Law Review 75. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 3. Ministry of Justice, New Zealand, “Victim Satisfaction with Restorative Justice: A Summary of Findings” (2011) https://www.justice.govt.nz/assets/Documents/Publications/Restorativ e-Justice-Victim-Satisfaction-Survey-Summary-of-Findings.pdf. H Strang and L Sherman “Repairing the Harm: Victims and Restorative Justice” (2003) 15 Utah Law Review 15–42 (RISE: Reintegrative Shaming Experiments). See also J Shapland, G Robinson, and A Sorsby, Restorative Justice in Practice: Evaluating what works for victims and offenders (Routledge, 2011) Ch 8 reviewing studies of victims views of restorative justice. W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149-172.

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with the criminal justice system.44 Yet, most restorative justice programs have become part of the criminal justice system; they have been “institutionalised within conventional criminal justice systems”.45 There are a number of reasons for this, including the need for sustained funding and their dependence on access to other services such as victim support and offender treatment. This has led to a mainstreaming of restorative justice programs causing some to question whether best practices may be sacrificed for other institutional or system goals.46 In this context, “net widening” has been identified as a potential problem, with individuals being referred to restorative justice programs attached to the criminal justice system who might have previously been diverted away from the criminal justice system altogether in the past.47 Of particular concern in the institutionalisation of restorative justice is the effect this may have on victims of crime. In a study conducted in the USA researchers found that victims were sometimes marginalised in victim-offender mediations as they lacked preparation, were sometimes pressured to behave in a certain way and felt threatened by their offenders.48 Indeed the safeguarding of rights of both victims and offenders has often been raised as a concern in relation to restorative justice practices, although many studies now indicate positive experiences for both victims and offenders and little evidence that offenders’ rights are violated through restorative justice processes.49 Wood and Suzuki observe that the institutional problems may be “less vexing” than the definitional problems and suggest that there are practical ways in which the problems with institutionalisation can be addressed.50 Third, Wood and Suzuki identify a problem they call “displacement”.51 By this, they mean the way “restorative justice” has moved into other pre-existing diversionary or informal criminal justice schemes. This is linked to the institutionalisation of restorative justice programs and their potentially netwidening effect. Wood and Suzuki note, for example, that in some countries restorative justice has displaced cautioning young offenders. In many of these cases, there is not necessarily a specific victim of the offence and thus restorative justice practices may not be necessary.

44

45 46 47 48 49 50 51

K Daly “The Punishment Debate in Restorative Justice” in J. Simon & R. Sparks (Eds.), The Sage Handbook of Punishment and Society 2013 (London, UK: Sage Publications, 2013) pp 356–374. W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149, at 154. W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149, at 155. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 30. J Choi, M Gilbert and D Green “Patterns of Victim Marginalization in Victim-Offender Mediation: Some Lessons Learned” (2013) 59(1) Crime, Law and Social Change 113–132. J Larsen, Restorative Justice in the Australian Criminal Justice System, Report 127, AIC, Canberra, 2014 at 31. W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149, at 161. W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149, at 157. [15.90] 405

Criminal Process in Queensland

Finally, Wood and Suzuki question the relevance of restorative justice.52 The focus of restorative justice mechanisms has been on youth and lower end offending and, with few exceptions, has not developed beyond this application.53 They also point to the inattentiveness of the restorative justice literature to problems of race and ethnicity and highlight that questions remain about its effectiveness for Aboriginal and Torres Strait Islander people. Strang has identified that few conclusions can be drawn about the effectiveness of restorative justice for ethnic and other minority groups and suggests that further research is necessary.54 Daly and Marchetti55 identify similar limitations to those identified by Wood and Suzuki, but also note that participants in restorative justice approaches may not be prepared for the approach taken. Daly and Marchetti also stress that the legal constraints on the restorative justice processes, for example the fact that these processes do not include fact finding or investigative mechanisms, means that restorative justice will never entirely replace criminal justice responses. However, they argue that despite these limitations restorative justice “can make inroads into methods of penalty setting and it may be effective in providing assurances of safety to individual victims and communities”.56

MURRI COURTS [15.100] Queensland’s first Murri Court began operating in Queensland in Brisbane in 2002. Courts for Murri people were established in a number of regions, including Mount Isa, Rockhampton, Townsville, Caboolture, Cherbourg and Ipswich. The Murri Court was closed in 2012 but in 2016, it was relaunched and reinstated across 13 locations in Queensland. In the Murri Court,57 Aboriginal and Torres Strait Islander elders assist the presiding magistrate to communicate with the offender and arrive at a sentence that is both culturally and legally

52 53

54

55

56

57

W Wood and M Suzuki, “Four Challenges in the Future for Restorative Justice” (2016) 11 (1) Victims and Offenders 149, at 158. Note this has been described by Strang and colleagues as a “wasted opportunity” as there is some evidence that restorative justice has good results in matters involving violent crime, see H Strang and L Sherman, E Mayo-Wilson, D Woods and B Ariel, “Restorative Justice Conferencing (RJC) Using Face-to-Face Meetings of Offenders and Victims: Effects on Offender Recidivism and Victim Satisfaction. A Systematic Review” (2013) Campbell Systematic Reviews no. 12: http://www.campbellcollaboration.org/lib/download/3066/ at 48. H Strang, Restorative Justice Research in Britain and Australia: What Do We Know? Paper presented for the Occasional Seminar Series, Australian Institute of Criminology, 18 February 2010. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) p 461. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) p 461. The principles underlying the procedures adopted in the court reflect the Penalties and Sentences Act 1992 (Qld) s 9(2)(p) and the Youth Justice Act 1992 (Qld) s 150; see also Chapter 11 at [11.250]. See also A Morgan and E Louis, Evaluation of the Queensland Murri Court: Final Report, Paper No 39 (Australian Institute of Criminology, Canberra, 2010); Magistrates Courts, Practice Direction No 2 of 2016 – Queensland Murri Court, 13 April 2016.

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appropriate (see PSA(Qld), s 9(2)(p) and also [11.240] and [11.250].)58 Paragraph 7 of the Magistrates Courts practice direction on the Queensland Murri Court identifies that the activities and processes of the Murri Court aim to: a)

engage members of the Aboriginal and / or Torres Strait Islander community in the Murri Court process;

b)

administer a court process that respects and acknowledges Aboriginal and / or Torres Strait Islander culture;

c)

refer defendants to services and other support in the community in order to address the underlying contributors to offending;

d)

ensure that, at sentence, the magistrate is informed regarding the cultural and personal circumstances, efforts at rehabilitation and his or her on-going support needs.59

Paragraph 7 of the Magistrates Courts practice direction on the Queensland Murri Court identifies the goals of the Murri Court are: a)

To reduce the frequency and seriousness of any subsequent contact Murri Court defendants might have with the criminal justice system;

b)

To encourage defendants to take responsibility for their offending and increased awareness of the consequences of their actions for victims and the community;

c)

To encourage magistrates to consider at sentence how cultural and personal circumstances contribute to his or her offending;

d)

To encourage attendance and engagement with support services while on bail;

e)

To facilitate improvements in self-reported physical and psychological health and quality of life;

f)

To improve engagement with, and understanding of, the court process;

g)

To improve Aboriginal and Torres Strait Islander elders and Respected Persons confidence and knowledge in the court process.60

The frequently stated rationale for the emergence of Aboriginal and Torres Strait Islander sentencing courts is that they constitute a response to the overrepresentation of Indigenous persons in the criminal justice system, thus their success can be analysed by their contribution to reductions in recidivism.61 However, this is only one of the goals of the Queensland Murri Court, and as

58

See E Marchetti, “Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers, Elders, Community Representatives, and Indigenous Court Workers” (2014) 36(4) Law and Policy 341. See also L Bartels, Indigenous-Specific Court Initiatives to Support Indigenous Defendants, Victims and Witnesses Brief, 17 April 2015; Indigenous Justice Clearinghouse.

59 60 61

Magistrates Courts, Practice Direction No 2 of 2016 – Queensland Murri Court, 13 April 2016. Magistrates Courts, Practice Direction No 2 of 2016 – Queensland Murri Court, 13 April 2016. See, eg, N Stobbs and G Mackenzie, “Evaluating the Performance of Indigenous Sentencing Courts” (2009) 13 (2) AILR 90. [15.100] 407

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Chief Justice Martin of the Supreme Court of Western Australia has suggested, this is a narrow way to assess their efficacy: If we involve the Aboriginal people in the sentencing process, the sentencing process becomes a much more collegiate, constructive, cooperative, positive and collaborative process than merely the imposition of punishment ... The trouble is that these courts are measured in terms of their impact on recidivism rates, which is a very short-term, blinkered and narrow way of assessing their efficacy.62

Marchetti and Daly63 argue that while Indigenous sentencing courts are often associated with restorative justice and therapeutic jurisprudence, the specific aims and objectives of these specialised courts warrant their being viewed as a category on their own.64 While they share elements that are common to restorative justice and therapeutic programs, Marchetti and Daly assert that the Indigenous sentencing courts have “broader aims and objectives in that they seek to achieve a cultural and political transformation of the law”.65 The increased involvement of Indigenous people in more culturally appropriate sentencing hearings aims to establish “trust between Indigenous communities and ‘white justice’” and the courts aim to transform “racialised relationships”.66 In their recent work drawing on interviews with people who participated in Indigenous sentencing courts, Marchetti and Daly conclude: “the [Indigenous] sentencing courts helped to change the lives and identities of just more than half of partner violence offenders (17 of 30). However, as other studies find, the process of change is not linear and immediate, but zigzag and lengthy…”67

[15.110] The processes operating in Murri Courts in Queensland are set out in the Magistrates Courts practice direction on the Queensland Murri Court68 and they are summarised here. A defendant may be referred to the Murri Court by his or her legal representative, by a community justice group representative, at the instigation of a magistrate or through self-referral. In order to be sentenced in the Murri Court, the defendant must satisfy a number of eligibility requirements:

62

63 64

65

66 67 68

Wayne Martin, Supreme Court of Western Australia, Standing Committee on Aboriginal and Torres Strait Islander Affairs, Hansard, Perth, 30 March 2010, [174]; http://www.aph.gov.au/ Parliamentary_Business/Committees/House_of_Representatives_Committees?url=/atsia/se ntencing/report/chapter7.htm (viewed 14 May 2013) ; see also Kathleen Daly and Gitana Proietti-Scifoni, “‘The Elders Know…The White Man Don’t Know”: Offender’s Views of the Nowra Circle Court” (2011) 7 (24) Indigenous Law Bulletin 17. E Marchetti and K Daly, “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” (2007) 29(3) Sydney Law Review 415, 419. As opposed to other therapeutic courts, such as Drug Courts, which have been established to divert eligible offenders (ie, persons who plead guilty to minor drug offences) into diversion programs. For a brief overview of current diversionary programs in Queensland, see http://www.courts.qld.gov.au/courts/courts-innovation-programs. K Daly and E Marchetti, “Innovative Justice Processes” in M Marmo, W De Lint and D Palmer (eds), Crime and Justice: A Guide to Criminology (4th ed, Thomson/Lawbook Co., Sydney, 2012) p 462. E Marchetti and K Daly, “Indigenous Sentencing Courts: Towards a Theoretical and Jurisprudential Model” (2007) 29(3) Sydney Law Review 415, 443. E Marchetti and K Daly, “Indigenous Partner Violence, Indigenous Sentencing Courts, and Pathways to Desistance” (2016) Violence Against Women online first at 17. Magistrates Courts, Practice Direction No 2 of 2016 – Queensland Murri Court, 13 April 2016.

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• the defendant must identify as an Aboriginal and / or Torres Strait Islander person or have kinship or appropriate ties to the Aboriginal and / or Torres Strait Islander community; • the offence must fall within the jurisdiction of the magistrate’s court (see [5.80] and [5.90]) or the children’s court and be able to be fully determined in that jurisdiction; the defendant must have entered, or intend to enter, a guilty plea; • the defendant is on bail or has been granted bail and • the defendant consents to fully participate in the Murri Court process. During Murri Court proceedings, the magistrate, members of the Community Justice Group, court coordinator, prosecutor, corrective services officer, defence lawyer and defendant usually sit around an oval bar table. Members of community justice groups work closely with the defendant, judicial officers, legal representatives and service providers to find appropriate bail programs and sentences for the defendant. Notably the magistrate retains the ultimate power in determining bail or the sentence (see [11.240] and [11.250]) and Murri courts do not formally recognise Aboriginal criminal law.

VICTIMS’ ASSISTANCE AND COMPENSATION Victims of crime and the accused [15.120] Issues relating to victims of crime have been referred to elsewhere – for example, in Chapter 11 at [11.220], the role and purpose of victim impact statements was examined and, in the discussion of penalties in Chapter 12 at [12.330], orders for compensation and restitution were considered.69 Before turning to the victim assistance and compensation scheme that operates in Queensland, and Western Australia, some of the central themes in the literature on victims and the criminal justice process are explored.

Central themes [15.130] The issue of accommodating victims of crime has gained significant political traction in recent years, which is manifested in various reports and recommendations throughout Australia.70 Brown et al note that approaches to victims’ rights emphasise that the interests of victims are subordinated to both the bureaucratic case flow concerns of the criminal justice system and to the rights and protections afforded to the accused.71 One of the key themes apparent in the literature supporting this approach is that victims are often further victimised by

69

70 71

For a critique of a different approach to compensation, see K Warner and J Gawlik, “Mandatory Compensation Orders for Crime Victims and the Rhetoric of Restorative Justice” (2003) 36(1) The Australian and New Zealand Journal of Criminology 60. See, eg, Victorian Law Reform Commission, The Role of Victims of Crime in the Criminal Trial Process, Report (2016). David Brown, et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, 2015, Leichardt) p 1237. [15.130] 409

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the criminal justice process itself, both inside and outside the courtroom.72 While in more recent years there has been an increased recognition of the need to address a range of concerns for victims, there has also been a general reluctance to accord them special “rights” in the criminal justice process.73 Concerns have been expressed in regard to the promotion of victims as key players in the criminal justice system on the basis that the central concept of the system is its adversarial “battle” between the state and the individual accused, and that it is inappropriate to introduce an element of “private” civil litigation into the criminal justice arena. Strong advocates of this view perceive a victim’s purpose and role to be merely to assist police and the prosecution process by reporting crime and by carrying out their civic duty of giving evidence at trial.74 There are varying degrees of merit in both approaches, and the difficulty lies in formally affording appropriate recognition of victims’ concerns within an adversarial system. Some important, and long overdue, measures have been taken in responding to victims and should be accorded due recognition. For example, the traumas associated with the giving of evidence by sexual offence and domestic and family violence victims and, in particular, children, have been addressed by significant changes to evidentiary procedures with the aim of minimising exposure to unnecessary cross-examination.75 Nevertheless, where victims’ rights are pursued as an all-encompassing “good thing”, the unfortunate corollary is a reinforcement of retributive notions and a fuelling of the ongoing law and order debate.76 Garland states: If victims were once forgotten, hidden casualties of criminal behaviour, they have now returned with a vengeance, brought back into public view by politicians and media executives who routinely exploit the victim’s experiences for their own purposes. … This sanctification of victims also tends to nullify concern for offenders. The zero sum relationship that is now assumed to hold between the one and the other ensures that any show of compassion for offenders, any invocations of their rights, and effort to humanise punishments, can easily be represented as an insult to victims and their families.77

Overall, law and practice should afford due regard to the entitlement of victims to be treated with fairness and dignity, to be provided with relevant information and 72

See generally Kerstin Braun “Legal Representation for Sexual Assault Victims – Possibilities for Law Reform?” (2014) 25 (3) Current Issues in Criminal Justice 819-838; J Herman, “Justice From the Victim’s Perspective” (2005) 11(5) Violence Against Women 571-602.

73

See, eg, Taskforce on Women and the Criminal Code, Women and the Criminal Code, Report (Queensland Government, Office for Women, 2000) pp 64-65; and H Fenwick, “Procedural ‘Rights of Victims’ of Crime: Public or Private Ordering of the Criminal Justice Process?” (1997) 60(3) Modern Law Review 317. David Brown, et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (6th ed, Federation Press, 2015, Leichardt) p 1237; see also A Webster, “Expanding the Role of Victims and the Community in Sentencing” (2011) 35 Criminal Law Journal 21. Reform of this area is reflected in the Evidence Act 1977 (Qld) Pt 2 Divs 4 and 4A, which followed the publication of the Queensland Law Reform Commission’s Report, The Receipt of Evidence by Queensland Courts: The Evidence of Children, Report No 55 (QLRC, Brisbane, 2000). See also s151 Domestic and Family Violence Protection Act (2012) (Qld). D Garland, The Culture of Control (OUP, New York, 2002) p 143. D Garland, The Culture of Control (OUP, New York, 2002) p 143.

74

75

76 77

410 [15.130]

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to be able to access appropriate support services and compensation schemes, while not losing sight of the importance of affording fair process considerations to an accused.

Assistance for victims of crime in Queensland [15.140] This section examines the specific legislative scheme that operates in Queensland that enables assistance for victims of crime and certain other persons affected by crime. The relevant legislation in respect of applications for victim assistance is the Victims of Crime Assistance Act 2009 (Qld). VOCA focuses on: The … timely provision of financial assistance to victims for services they require as a result of their injuries, rather than a compensation-based scheme.78

The VOCA scheme came into effect on 1 December 2009 following a substantial review of compensation schemes for victims of crime in Queensland, including the system under the now repealed Criminal Offences Victims Act 1995 (Qld). The development of victim assistance schemes was influenced by the United Nations’ Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,79 which acknowledges a number of rights and needs of victims. These include access to information about the progress of their case, participation in the criminal justice process and access to compensation and support services.80 In addition to VOCA, practices focused on victims are now well entrenched in the ODPP Director’s Guidelines81 and victim assistance units.82 As a reflection of the United Nations Declaration, Pt 2 of VOCA declares a number of fundamental principles in relation to victims, including that victims should: • receive fair and dignified treatment: VOCA, s 8; • receive information about the services available to them, the investigation and prosecution of the offender: VOCA, ss 10–12; 78

79

80

81

82

Explanatory Notes to the Victims of Crime Assistance Bill 2009, p 2: http://www.legislation.ql d.gov.au/Bills/53PDF/2009/VictimsCrAssB09Exp.pdf. Emphasising the partly symbolic nature of the assistance provided under the VOCA see BN v Victim Assist Queensland, Department of Justice and Attorney-General [2013] QCAT 379 where the applicant requested assistance to enable her and a companion to visit a spiritual healing program to be conducted by the Cree people of Canada. The Tribunal found that the amount went beyond a symbolic expression of the State of the community’s recognition of the injury suffered by BN. Adopted by resolution of the General Assembly of the United Nations in 1985. Clauses 8, 12 and 13 provide for compensation for victims of crime, by the offender or the State. For a copy of the Declaration, see: http://www.un.org/documents/ga/res/40/a40r034.htm. United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, Art 6(a). See M Findlay, S Odgers and S Yeo, Australian Criminal Justice (5th ed, OUP, 2014) pp 344-358. ODPP, Director’s Guidelines (Qld): see especially guidelines 19 and 20 in relation to discontinuing prosecutions; and guidelines 22 and 25, which state general principles in relation to dealing with victims, and other specific matters, such as the granting of bail to an offender, domestic violence, stalking and protecting victims’ security and anonymity: for the Director’s Guidelines, see: http://www.justice.qld.gov.au/__data/assets/pdf_file/0015/16701/direct ors-guidelines.pdf. See the Department of Justice and Attorney-General resources for victims available at https://www.qld.gov.au/law/crime-and-police/victims-and-witnesses-of-crime/; and Legal Aid Queensland’s resources at: http://www.legalaid.qld.gov.au/Find-legal-information/Crimi nal-justice/Victims-of-crime. [15.140] 411

Criminal Process in Queensland

• have the opportunity to the provide the prosecutor with details of the impact the crime has had on them: VOCA, s 15;83 • may request that their victim impact statement is read aloud before the court: VOCA, s 15A and • receive information about the convicted offender: VOCA, s 16.84 While the fundamental principles are not enforceable, VOCA provides for disciplinary action to be taken for a contravention of the principles: VOCA, Pt 3 and s 7.

Victims of Crime Assistance Act 2009 (Qld) [15.150] Applications under VOCA are governed by Pt 9 of the Act. A “victim” of an “act of violence” who has suffered an “injury”, including a child, and who is deemed “eligible”, may apply for assistance.85 An application must generally be made within three years of: • the act of violence; • the death of a victim; or • a child victim turning 18.86 An application can also be made for funeral expense assistance.87 Applications are made to the statutory body, Victim Assist Queensland (VAQ),88 and are assessed by a government assessor within VAQ, who must comply with VOCA, Pt 12. Specifically, an assessor must observe the principles of natural justice and act as quickly as possible.89 An application must be made in the approved form and be accompanied by a statutory declaration, supporting documentation and, in certain cases, a medical certificate outlining the applicant’s injury: VOCA, s 52.90 In assessing the application, assessors are empowered to collect an array of information from various bodies. For example, they may request that the victim undergo a medical examination for the purpose of obtaining a report or they may request the release of information held by the police or the ODPP.91

83 84 85

86 87 88

See also Penalties and Sentences Act 1992 (Qld) s 9(2)(c); and discussion in Chapter 11 at [11.220]. For other principles, see VOCA, Pt 2. See VOCA, s 51. Note that if the victim is a child, the parent or guardian may apply, or if the child is over 12 years and is legally represented, the child’s lawyer, or any other approved person may apply. Similarly, if the victim is an adult with impaired capacity, an application may be made by their guardian, a support person or any other approved person. VOCA, s 54 See VOCA, Pt 10. Note that this is a dramatic change from the previous processes, for the differences between the previous and current schemes, see [15.210].

89 90

See VOCA, Pt 12, especially ss 63 and 64. For an electronic copy of the approved forms, see https://www.qld.gov.au/law/crime-and-p olice/victims-and-witnesses-of-crime/.

91

VOCA, ss 64–69.

412 [15.150]

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Who is a “victim”? [15.160] Section 5 of VOCA defines a “victim” as a person who has suffered harm: • because a crime is committed against the person; or • because the person is a family member or dependant of a person who has died or suffered harm because a crime is committed against that person; or • as a direct result of intervening to help a person who has died or suffered harm because a crime is committed against that person. VOCA also introduced new categories of victims: • primary victim – a person who is injured or dies as a direct result of an act of violence being committed against them; • secondary victim: • parent secondary victim – a parent of a child who is injured as a direct result of

becoming aware that their child has been injured by an act of violence; • witness secondary victim – a person who is injured as a direct result of

witnessing an act of violence; • related victim – a close family member or a dependant of a primary victim who has died.92

What is an “act of violence”? [15.170] Section 25 of VOCA essentially defines an “act of violence” as a crime committed against a person, or attempted to be committed against a person, which directly results in death or injury to the victim.93 The crime must be committed in Queensland; however, the relevant death or injury need not occur in Queensland. The crime can be committed by one or more persons and may involve a series of related crimes. A “related crime” is defined broadly and would extend, for example, to several acts of domestic violence inflicted upon the one victim: VOCA, s 25.

What is an “injury”? [15.180] An “injury” is defined to include any one or more of the following: • a bodily injury; • mental illness;94 • intellectual impairment; • pregnancy; or • disease.95 An “injury” that results from a sexual offence is defined to include such things as a sense of violation, reduced self-worth and any adverse impact on feelings. While injuries such as these may not amount to a mental illness as defined in VOCA,

92 93

VOCA, s 26 See Spinosa v Victims Assist Queensland [2016] QCAT 173 at [16]; Charlie v Department of Justice and Attorney General (Victim Assist Queensland) [2011] QCAT 443 at [20] and [21].

94

As defined in VOCA, Sch 3.

95

VOCA, s 27. [15.180] 413

Criminal Process in Queensland

they are intentionally included to broaden the definition of injury suffered as a result of sexual offences.

Who is “eligible”? [15.190] An assessor may only grant assistance if they are satisfied on the balance of probabilities that the applicant is eligible for assistance: VOCA, s 78. To be eligible to receive financial assistance, the act of violence ordinarily must have been reported to the Queensland Police Service (QPS), the exception being that in the case of a “special primary victim” it will be sufficient if the matter has been reported to a counsellor, psychologist, or doctor. For this purpose, a “special primary victim” is a primary victim: • of an act of violence involving a sexual offence; or • of an act of violence that was committed by a person who was, at the time the act was committed, in a position of power, influence or trust regarding the victim; or • who was a child at the time the act of violence was committed; or • who has an impaired capacity (whether or not the impairment existed when the act of violence was committed); or • who is being threatened or intimidated by the person who committed the act of violence, or by someone else.96 A person will not be eligible for financial assistance if: • without reasonable excuse, they have not reasonably assisted the police or prosecution and, as a result their failure to do so prevented an arrest or prosecution;97 or • they were directly or indirectly involved in the commission of the act of violence98 For example, in Doherty v Victim Assist Queensland [2012] QCATA 137, the Tribunal provided some discussion of the meaning of ‘criminal activity’ of VOCA, s 80. In this case, the applicant was shot by the offender outside his house. The Tribunal found that, on the balance of probabilities, that the main reason he was shot was because he was or had been involved in criminal activity. They found that the victim lent money to offender, knew it would be used to buy drugs, permitted his home to be used for the sale of drugs, and used drugs provided to him by the offender. Even if it could be said that the applicant was not involved in criminal activity at the actual time of the act of violence, it was “inescapable that his shooting by [the offender] was causally connected with the earlier loan, which, itself, involved support for or condoning of the trading of drugs, and their use” at [32].99

96 97 98

VOCA, s 81. VOCA, s 82. VOCA, s 80.

99

See also Maddeford v The Scheme Manager – Department of Justice and Attorney-General (Victim Assist Queensland) [2014] QCAT 350. The Tribunal was satisfied on the balance of probabilities that the act of violence committed against the applicant there was because

414 [15.190]

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Amounts of financial assistance available and the process of assessment [15.200] The maximum amount of financial assistance that is available and the types of expenses that will be provided for on a successful application are conditioned upon which category of victim the applicant falls into – that is, primary, secondary or related victim.100 Further, there is a distinction drawn between the assistance available to a witness secondary victim of a “more serious act of violence” and a “less serious act of violence”.101 A more serious act of violence applies only to murder, manslaughter and dangerous driving causing death. In the case of witness secondary victims, “witness” is defined to include directly witnessing or hearing the act of violence being committed: VOCA, Sch 3. This definition would include, for example, a person who hears their housemate being shot in the next bedroom. In the case of a primary victim, the maximum amount of financial assistance available is $75,000, including a special assistance amount of up to $10,000, plus up to $500 for legal costs.102 The types of expenses that will be provided for include reasonable counselling, medical expenses and loss of earnings up to $20,000: VOCA, ss 38–39.103 In exceptional circumstances, assistance may extend to expenses that will significantly help the victim recover from the act of violence – for example, relocation costs: VOCA, s 28. If assistance is granted for any expenses, the victim will only receive payment after the assessor has been forwarded an invoice or receipt for the expenses: VOCA, s 93(2). However, there is provision for interim assistance of up to $6,000 for expenses incurred during the assessment of an application, but before the final decision: VOCA, Pt 14.104

100 101 102

103

104

she was involved in a criminal activity when the act of violence happened ie, she was the instigator of the argument with the offender and assaulted the offender. See VOCA, Ch 3, Pts 4–7. Defined in VOCA, Sch 3. Special assistance is described as a symbolic gesture by the State to the victim and is paid in a lump sum similar to the previous availability of an ex-gratia payment by the State: see Explanatory Notes to the Victims of Crime Assistance Bill 2009, p 2: http://www.legislation.ql d.gov.au/Bills/53PDF/2009/VictimsCrAssB09Exp.pdf. For the definition of “special assistance”, see VOCA, Sch 3; see also VOCA, Sch 2 (“Amounts and categories for special assistance”). VOCA, Sch 2 classifies acts of violence A–D, according to the seriousness of the act. The maximum amount of special assistance of $10,000 is reserved for a Category A act of violence, which includes serious sexual offences. The maximum special assistance given for a Category D act of violence is $650. Category D includes assault and unlawful stalking. There is capacity for elevation from a lower category classification into a higher category in prescribed circumstances. For the maximum amount of assistance for parent secondary victims, see VOCA, ss 41 and 42; for witness secondary victims, see VOCA, ss 45 and 46; and for related victims, see VOCA, s 49. For the relationship to workers’ compensation claims, see VOCA, Pt 3. Note that the applicant must have included an application for interim assistance in their primary application in order to be entitled to interim assistance: VOCA, s 97. Interim assistance is available for expenses incurred, or expenses that are likely to be incurred, during the assessment process: VOCA, s 98. Any interim assistance that is provided is deducted from the final award of assistance: VOCA, s 100. If an applicant is ultimately unsuccessful in their application for assistance, but has been granted interim assistance, any amount paid is recoverable as a debt to the State: VOCA, s 100(2). The Queensland Government website provides case studies that highlight the differences between three types of victims and the support available for each through financial assistance: https:// [15.200] 415

Criminal Process in Queensland

An assessor can reduce the amount of assistance that would otherwise be paid to an applicant in a number of circumstances – for example, where the applicant directly or indirectly contributed to their injury: VOCA, s 85(2). In Holt v Department of Justice and Attorney-General (Victim Assist Queensland) [2014] QCAT 308, during his morning walk the applicant sounded an air horn at a barking dog. He continued to sound the horn while the owner (the offender) tried to restrain the aggravated animal. There was a minor altercation in which the offender pushed the applicant. The applicant sustained an injury to his shoulder. The Tribunal found that the applicant’s use of an air horn was “ill advised” and “commonsense suggests that continued use of the air horn is likely to aggravate the animal” at [19]. It held that there was sufficient evidence that the applicant contributed to the incident resulting in the act of violence and it was open to the Tribunal, standing in the shoes of the decision-maker, to come to the conclusion that there ought to have been a reduction in assistance by an amount of 50%. If an assessor intends to reduce the amount of assistance given to a victim, or intends to reject the application for assistance altogether, the applicant must be notified and is entitled to make written or oral submissions about the assessor’s proposed decision: VOCA, s 88. Once an assessor has made a final decision, the victim must be notified of the assessor’s decision in writing. If the application was successful, the notice must include an outline of the amounts that are payable: VOCA, s 90. If the application was unsuccessful, a notice in writing must contain reasons for the decision to refuse assistance and an outline of how to apply for an internal review of the decision: VOCA, s 91. An application for an internal review is made to the scheme manager and must be made before any external review is sought from the Queensland Civil and Administrative Tribunal.105 In circumstances where an offender has been convicted, the State can recover any special assistance payment made to a victim from the offender. Before any payment is due, the offender must be given a written notice of the intended recovery. The offender is able to dispute the claim on the basis that their conviction does not relate to the relevant act of violence.106 When a dispute, if any, is settled, the offender then becomes liable for the amount. If the offender does not pay the requisite amount within 28 days, the debt is referred to the State Penalties Enforcement Registry.107

VOCA’s improvements on the previous regime [15.210] Compared to the previous scheme under the Criminal Offence Victims Act 1995 (Qld), the legislative scheme under VOCA includes the following benefits: • A conviction is no longer required before any financial assistance can be sought by a victim. This allows assistance to be sought once a complaint has been made to police, rather than having to wait perhaps years for a conviction (if,

105

www.qld.gov.au/law/crime-and-police/victims-and-witnesses-of-crime/support-for-victimsof-crime/case-studies-victim-of-crime/. For an outline of the internal and external review processes, see VOCA, Pt 18.

106

VOCA, s 116.

107

See VOCA, Pt 16 and [12.110].

416 [15.210]

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indeed, one is ultimately obtained). Further, victims who are injured by an indictable offence dealt with summarily in the Magistrates Court are now able to apply for assistance – this was a group of victims who were previously excluded from receiving financial assistance through a legislative scheme (although a compensation order could be made by a magistrate: see [12.320]). • Applications for assistance are no longer made to a court but to an administrative agency – VAQ. This provides a simpler and easier way to access assistance. It also reduces victims’ costs, contact with the court and contact with the offender.108 • VOCA establishes a Victims’ Assistance Unit (VAU), a “one-stop shop” for victims of crime, in lieu of the motley arrangement of agencies previously involved in providing financial and other assistance.109 • There are complaint mechanisms contained within VOCA for persons who feel that the fundamental principles of the Act are not being observed by the entities or officers they are dealing with as a result of being a victim of an act of violence.110 • New broader categories of victims have been created.111 • Interim financial assistance is now available for victims who need immediate assistance.112 • Adverse impacts suffered by a victim of a sexual offence are clearly identified in the legislation as “injuries”.113

108

110 111 112

Explanatory Notes to the Victims of Crime Assistance Bill 2009, p 19: http://www.legislation.q ld.gov.au/Bills/53PDF/2009/VictimsCrAssB09Exp.pdf. Explanatory Notes to the Victims of Crime Assistance Bill 2009, p 19: http://www.legislation.q ld.gov.au/Bills/53PDF/2009/VictimsCrAssB09Exp.pdf. VOCA, Pt 3. VOCA, s 5. VOCA, Pt 14.

113

VOCA, s 27.

109

[15.210] 417

INDEX A Aboriginal and Torres Strait Island people — see Indigenous persons Abuse of process breach of prosecutorial agreement, [9.30], [9.160] concept, [9.30] court’s powers to avoid, [9.50] stay of proceedings, [9.60]-[9.80] delay, and, [9.100] discretionary power, [7.160] ex officio indictments, [6.180] examples, [9.30] fair trial, and, [9.10], [9.30] indictments, [6.100] ex officio indictments, [6.180] issue estoppel, and, [7.160] nole prosequi, [8.210] oppressive prosecutions, [9.160] overview, [7.160], [9.10], [9.30] rationale for duty, [9.30] stay of proceedings, [7.150], [7.160], [7.180], [9.30] character of stay, [9.70] exceptional circumstances, [9.80] oppressive prosecutions, [9.170] permanent stay, [7.150], [9.60], [9.70], [9.80] Queensland, [9.60] Accident, [1.50] Accountability — see Police accountability Accused — see also Co-accused — see also Legal representation defences, [1.60], [1.110] reverse onus defences, [1.70], [1.80], [1.90] disclosure obligations, [8.60] alibi evidence, [8.70] evidential burden, [1.60], [1.80] fitness to stand trial, [1.90] legal burden, [1.70], [1.80], [1.110] mental condition, [1.90] privilege against self-incrimination, [1.60] abrogation, [1.110] reverse onus defences, [1.70], [1.90] justification, [1.80] right to silence, [1.60], [2.370], [8.60] unrepresented accused, [10.120] Acquittals autrefois acquit, [7.140]

double jeopardy, [7.140], [7.150] controverting acquittal, [7.170], [7.180] effect of defence, [7.150] tainted acquittals, [7.230] wrongful acquittals, [7.240] Admissibility of evidence — see Evidence Age of offender sentencing factors, [11.210] Aggravation indictment particulars, [6.120] Alibis alibi evidence, definition, [8.70] disclosure by accused, [8.70] notice to prosecution, [8.70] Allocutus, [11.40] Alternative verdicts double jeopardy, [7.130], [7.150] grievous bodily harm, [7.130] murder, [7.130] Queensland, [7.130] Alternatives to arrest complaint and summons, [2.200] discontinuation of arrest, [2.210] infringement notices, [2.220] move-on powers, [2.230] reasonably necessary, [2.240] reasonably suspects, [2.240] time to comply, [2.240] notices to appear, [2.140], [2.190], [2.280] nuisance offences, [2.220] on-the-spot fines, [2.220] overview, [2.170], [2.180] Queensland, [2.140], [2.190]-[2.210], [2.280] move-on powers, [2.240] nuisance offences, [2.220] summons, [2.200] Amendments charges, [7.20] indictments, [6.130] Amicus curiae overview, [10.140] Anunga guidelines, [2.350]

419

Criminal Process in Queensland

Appeals — see also Executive Pardons Attorney-General, [13.30] appeals against sentence, [13.210] convictions, against, [13.40] discretion to order new trial, [13.160]-[13.180] error of law, [13.70], [13.110], [13.120], [13.170] grounds of appeal, [13.40]-[13.90], [13.100] miscarriage of justice, [13.80], [13.90], [13.100], [13.160], [13.170] proviso, [13.100]-[13.150] unsafe and unsatisfactory verdict, [13.50] discretion to order new trial, [13.160] cogency of evidence, [13.170] justness of order, [13.180] policy considerations, [13.160] District Court, [13.10], [13.30] fresh evidence, [13.90], [14.20], [14.30] High Court, [14.10], [14.80] House principles, [14.80], [14.120] powers of court, [14.130] sentence appeals, [14.120] special leave applications, [14.80], [14.110], [14.120] Magistrates Court, [13.10] Queensland, [13.20] rights of appeal, [13.20] overview, [13.10] pending appeals, [4.80] bail, [4.80] proviso, [13.100] Bainiv The Queen, [13.140] precluding the proviso, [13.120] test for applying, [13.110], [13.120] rights of appeal, [13.10] international covenants, [13.30] Magistrates Court, [13.20] Supreme Courts, [13.30] sentence, against, [13.190] Attorney-General, [13.210] grounds of appeal, [13.200] High Court, [14.120] stay of proceedings, [9.80] Supreme Courts, [13.10], [13.30] Arraignment, [8.120] Arrest — see also Bail — see also Charges citizens arrest, [2.250] Arrest powers — see also Alternatives to arrest — see also Police questioning discontinuation of arrest, [2.210] information to person, [2.160] overview, [2.120] physical restraint, [2.120] post-arrest searches, [2.370] seizure of things, [2.380] strip searches, [2.370], [2.380] public order offences, [2.180] Queensland, [2.130]-[2.170] 420

reasonably necessary, [2.140] reasonably suspects, [2.140] taking person to court, [2.170] reasonably practicable, [2.170] unlawful detention, [2.120] use of force, [2.470] without warrant, [2.140] words used by officer, [2.120] Arrest warrants applications for warrants, [2.150] information to person, [2.160] overview, [2.40] Queensland, [2.150] Assault elements, [1.50] provocation defence, [1.50] Attorney-General appeals, [13.30] appeals against sentence, [13.210] Executive Pardons, [14.10], [14.20], [14.30] Royal Prerogatives of Mercy, [14.10], [14.20], [14.30] Easterday, Ireland and Ireland, [14.80] Automatism (sane), [1.50], [1.90] Autrefois acquit overview, [7.140] statutory defence, [7.140] Autrefois convict overview, [7.140] statutory defence, [7.140]

B Bail conditional liberty, [4.10] conditions, [4.60] pending appeal, [4.80] surety, [4.70] emerging concerns, [4.90] forms of cash bail, [4.40] police bail, [4.30] undertaking, [4.50] granting of cash bail, [4.40] conditions, [4.60] pending appeal, [4.80] police bail, [4.30] Queensland, [4.20] Supreme Court, [4.50] overview, [4.10] Queensland, [4.20] granting of, [4.20] Supreme Court, [4.50] Balance of probabilities reverse onus defences, [1.80]

Index

Balance of probabilities — cont insanity defence, [1.90] terrorism defences, [1.110] Barristers — see Legal representation Bench book, [1.50] Bench charge sheet, [5.30] Beyond reasonable doubt burden of proof, [1.50] jury directions, [1.50] Queensland bench book, [1.50] Woolmington’s case, [1.50] Bonds — see Good behaviour bonds Burden of proof — see also Standard of proof accused, [1.60], [1.80], [1.110] reverse onus defences, [1.70], [1.80], [1.90] Commonwealth provisions, [1.100] defences, [1.50] accused, [1.60], [1.70], [1.110] reverse onus defences, [1.50], [1.70], [1.80], [1.90] terrorism offences, [1.110] evidential burden, [1.40], [1.80] accused, [1.60] prosecution, [1.50] insanity defence, [1.70], [1.90] jurisdiction, [1.110] legal burden, [1.40], [1.80] accused, [1.70], [1.110] prosecution, [1.50], [1.100] prosecution, [1.50], [1.80] Commonwealth provisions, [1.100] indefinite detention, [12.270] insanity defence, [1.90] reverse onus defences, [1.50], [1.70] insanity, [1.70], [1.90] justification, [1.80] statutory provisions, [1.70]

C “Cab-rank” rule, [10.160] Carnal knowledge with child under 16 reverse onus defence, [1.70] Cash bail, [4.40] Cautions police duty, [2.340] requirements, [2.340] Challenge for cause, [8.140] Character of offender sentencing factors, [11.210]

Charge bargaining — see also Plea bargaining advantages, [7.110] concerns, [7.80] disadvantages, [7.110] judicial review, [7.30], [7.100] overview, [7.20], [7.110] prosecutorial discretion, [7.30] Queensland, [7.30] Charges bench charge sheet, [5.30] classification, [5.50] criminal code, [5.60] indictable, [5.90] regulatory, [5.70] simple, [5.80] discretion to, [5.40] joinder of charges prejudice, and, [6.160] propensity evidence, [6.160] similar fact evidence, [6.160] multiple charges, [7.20] overcharging, [7.20], [7.80] overview, [5.20] Chelmsford Royal Commission, [7.150] Child abuse publications sentencing, [11.320], [12.220] Child sexual offences indefinite sentences, [12.280] preventative detention, [12.280] accountability and protection, [12.290] court’s considerations, [12.280] recording convictions, [12.40] sentencing, [11.310], [12.220] supervision orders, [12.280], [12.280] Child sex offenders, [12.240] Children — see also Young offenders sentencing factors, [11.260] Citizen’s arrest, [2.250] Co-accused indictments, [6.170] parity of treatment, [11.130] Codification limitations, [1.30] overview, [1.30] Committal hearings — see also Disclosure hearings — see also Disclosure obligations guilty pleas, [6.40], [7.40] hand-up, [6.60] other matters, [6.80] 421

Criminal Process in Queensland

Committal hearings — cont overview, [6.10] pleas, [7.40] presence or hearing of defendant, [6.40] procedure, [6.40] purposes, [6.20] test for, [6.30] witnesses, examination of, [6.50] Commonwealth offences jury trials, [8.180] Community-based orders overview, [12.130] Community influences sentencing, [11.30] Community protection indefinite imprisonment, [12.260] overview, [11.190] sentencing, [11.150], [11.190] Community service orders combinations of penalties, [12.160] disadvantages and risks, [12.130] overview, [12.130] Queensland, [12.130], [12.140], [12.160] requirements, [12.160] Compensations victims of crime, [15.120] applications, [12.310] review of schemes, [15.140] Compensation orders overview, [12.320] property-related offences, [12.80] Queensland, [12.310] Complaints Crime and Misconduct Commission conduct, [3.130] police conduct, [3.70] false complaints, [3.120] making a complaint, [3.70] minor misconduct, [3.100] official misconduct, [3.70] police misconduct, [3.90] resolution of complaints, [3.110] summons and alternative to arrest, [2.200] Conditions bail, [4.60] Conferencing overview, [15.10] Confessions admissibility of evidence, [2.330], [3.30] 422

basal voluntariness, [3.40], [3.50] discretion to exclude, [3.60] inducement rule, [3.40] public policy discretion, [3.60], [3.80] unfairness discretion, [3.60], [3.80] unrecorded confessions, [2.280], [2.310], [2.330] voluntariness, [3.30], [3.40] covert investigations, [3.80] inducement rule, [3.40] jury directions, [2.310], [2.320] police questioning, and, [2.260], [2.280], [3.40] prosecution disclosure, [8.20] unrecorded confessions, [2.280], [2.310], [2.330] jury directions, [2.310], [2.320] Consent forensic procedures, [2.400] Constitutions fair trial, [9.20] jury trials, [8.180] right to a speedy trial, [9.100] separation of powers, [9.70] Control orders, [12.340] Controlled activities — see Covert investigations Convictions appeals, [13.40] discretion to dismiss, [13.100] discretion to order new trial, [13.160]-[13.180] error of law, [13.70], [13.110], [13.120], [13.170] grounds of appeal, [13.40]-[13.90] jury verdicts, [13.60] miscarriage of justice, [13.80], [13.90], [13.100], [13.160], [13.170] proviso, [13.100]-[13.150] unsafe and unsatisfactory verdict, [13.50] autrefois convict, [7.140] criminal history, [12.40] double jeopardy, [7.140], [7.150] recording a conviction, [12.40] considerations, [12.50] discretion to record, [12.50] setting aside, [10.100] spent conviction orders, [12.40] Co-operation with authorities future assistance, [11.230] sentencing factors, [11.230] Court system — see District Courts — see Magistrates Court — see Supreme Courts

Index

Covert investigations confessions, [3.80] controled activities, [2.80], [2.110] authorised person, [2.110] offences, [2.110] evidence, [2.80], [2.110] confessions, [3.80] public policy discretion, [3.80] unfairness discretion, [3.80] monitoring orders, [2.90] overview, [2.80] public interest monitors, [2.100], [2.110] Queensland, [2.90]-[2.110] search warrants, [2.100] terrorism offences, [2.80], [2.100] Crime and Corruption Commission overview, [3.130] Crime and Misconduct Commission complaints about conduct, [3.130] establishment, [3.70] nuisance offences, [2.220] overview, [3.120] police misconduct, [3.120] public interest monitor, [2.100] Criminal history convictions, and, [12.40] Criminal Justice Commission establishment, [3.70] police powers and responsibilities, [2.20] reasonable, concept, [2.30] Cross-examination unrepresented accused, [10.120] Cultural background sentencing factors, [11.240]

D

Damage, injury or loss sentencing factors, [11.220] Defences — see also Accused burden of proof, [1.50], [1.80] accused, [1.60], [1.70], [1.110] prosecution, [1.50] terrorism offences, [1.110] former conviction or acquittal, [7.140], [7.150] provocation, [1.60] assault, [1.50] murder, [1.80] insanity — see Insanity defence reverse onus defences, [1.50], [1.70] insanity, [1.70], [1.90]

justification, [1.80] statutory provisions, [1.70] self-defence, [1.50], [1.60] terrorism offences, [1.110] Defendants — see Accused Definitions act of violence, [15.170] alibi evidence, [8.70] dangerous drug, [6.190] injury, [15.180] organised crime, [2.100] possession of prosecution, [8.30] restorative justice, [15.30] search, [2.380] tainted acquittal, [7.230] terrorism, [2.100] victim, [15.160] Delay abuse of process, [9.100] court procedures to avoid, [9.90] fair trial, and, [9.90], [9.100] guilty pleas, [7.90] overview, [9.90] prejudice, [9.100] reasons for delay, [9.90] right to a speedy trial, [9.100] stay of proceedings, [9.100] Dentists forensic procedures, [2.400], [2.430] Denunciation sentencing, and, [11.180] Department of Public Prosecutions (Qld) Director’s Guidelines charge negotiation, [7.30] decision to prosecute, [6.100], [7.30] disclosure obligations, [8.30] sensitive evidence, [8.30] Detention — see Home detention orders — see Imprisonment Deterrence fines, [12.100] general deterrence, [11.170] overview, [11.170], [15.20] specific deterrence, [11.170] Dietrich application, [10.40] Dietrich stay, [10.40] Diminished responsibility overview, [1.90] reverse onus defences, [1.70] 423

Criminal Process in Queensland

Direct indictments overview, [6.180] Directions hearings, [8.100] Director of Public Prosecutions (WA) Director’s Statement disclosure obligations, [8.30] Disciplinary matters minor police misconduct, [3.100] Disclosure hearings overview, [8.30] pleas, [7.40] prosecution disclosure, [8.30] Disclosure obligations accused, [8.60] alibi evidence, [8.70] fair trial doctrine, [8.20] indictment, [8.50] Magistrate Courts, [8.40] prosecution, [8.30] categories of material, [8.30] common law obligations, [8.20] examples of information, [8.30] fair trial doctrine, [8.20] limitations on requirements, [8.30] methods for disclosure, [8.30] new evidence, [8.30] non-compliance with obligations, [8.30], [8.20] ongoing obligation, [8.30] possession of prosecution, definition, [8.30] Queensland, [8.30] sensitive evidence, [8.30] time for disclosure, [8.30] witness contact details, [8.30] Discretions abuse of process, [7.160] appeal against conviction, [13.100] new trial, [13.160]-[13.180] charge bargaining, [7.30] Queensland, [7.30] exclusion of evidence, [2.370], [3.60] public policy discretion, [3.60], [3.80] unfairness discretion, [3.60], [3.80] recording a conviction, [12.50] sentencing, [7.100], [11.70] data and statistics, [11.90] guideline judgments, [11.100] instinctive synthesis, [11.80] limits to discretion, [11.90] maximum penalties, [11.70], [11.90], [11.120] parity of treatment, [11.130] purposes of sentencing, [11.140]-[11.190] recording a conviction, [12.50] sentencing hierarchy, and, [12.30] sentencing principles, [11.90] 424

totality principle, [11.110] two-staged process, [11.80] violent offenders, [12.230] District Courts appeals, [13.10], [13.30] lodgment, [13.30] points of law, [13.30] rights of appeal, [13.30] offences and, [5.120] Disturbing religious worship reverse onus defences, [1.70] DNA technology background to use, [2.450] cold hits, [2.450] corruption of material, [2.450] destruction of samples, [2.460] detention of person, [2.460] Indigenous persons, [2.450] overview, [2.390], [2.450] Queensland, [2.460] storage of samples, [2.460] Doctors forensic procedures, [2.400], [2.430] Domestic violence non-contact orders, [12.330] orders, [12.350] sentencing factors, [11.270] Double jeopardy alternative verdicts, [7.150] Queensland, [7.130] autrefois acquit, [7.140] autrefois convict, [7.140] competing considerations, [7.190] concepts, [7.160] double punishments, [7.250] exceptions to rules, [7.210], [7.240] applications for retrial, [7.240] murder, [7.220] serious offences, [7.230] tainted acquittal, [7.230] wrongful acquittals, [7.240] finality and fairness, [7.160], [7.240], [12.260] former conviction or acquittal, [7.140], [7.150] controverting acquittal, [7.170], [7.180] dismissal of case, [7.150] effect of defence, [7.150] issue estoppel, and, [7.160], [7.170] limits of principle, [7.180] overview, [7.10], [7.120] perjury, [7.170], [7.180], [7.230] rationales for protective principles, [7.190] reforms, [7.190] New South Wales, [7.200] Queensland, [1.20], [7.210] retrospective application, [7.200], [7.210]

Index

Double jeopardy — cont stay of proceedings, [7.150] versions of rule, [7.120] Drug offences dangerous drug, definition, [6.190] ex officio indictments, [6.190] rehabilitation, [11.160]

mitigating factors, [11.60] sexual offences, [8.30] similar fact evidence, [6.160] unlawful detention, and, [2.120] Evidential burden accused, [1.60], [1.80] overview, [1.40] prosecution, [1.50], [1.80]

E

Equal justice principle, [11.130] Estoppel — see Issue estoppel Ethical standards legal profession, [10.150] Extra-curial punishment sentencing factors, [11.280] Evidence — see also Disclosure obligations alibi evidence, [8.70] definition, [8.70] appeals, [13.90] fresh evidence, [13.90], [14.20], [14.30] [14.50], [14.70] assumptions, [1.70] breach of police procedures, [3.20] confessions, [2.330], [3.30] basal voluntariness, [3.40], [3.50] discretion to exclude, [3.60], [3.80] inducement rule, [3.40] public policy discretion, [3.60], [3.80] unfairness discretion, [3.60], [3.80] unrecorded confessions, [2.280], [2.310], [2.330] voluntariness, [3.30], [3.40], [3.50] covert investigations, [2.80] controlled activities, [2.110] public policy discretion, [3.80] unfairness discretion, [3.80] discretion to exclude, [2.370], [3.60] public policy discretion, [3.60], [3.80] unfairness discretion, [3.60], [3.80] DNA evidence, [2.450] exculpatory evidence, [13.90] expert evidence disclosure by accused, [8.80] fingerprint identification, [2.390] fresh evidence, [13.90], [14.20], [14.30] Executive Pardons, [14.20], [14.30], [14.50], [14.70] joinder of charges, and, [6.160] Magistrates Court, [8.100] propensity evidence, [6.160] searches, [2.370] sensitive evidence, [8.30] sentencing hearings, [11.40] aggravating factors, [11.60] fact finding, [11.50]

Ex officio indictments abuse of process, [6.180] fairness, [6.180] guilty pleas, [6.180] overview, [6.90], [6.180], [7.20] time limit for presenting, [6.190] Exculpatory evidence, [13.90] Executive Pardons AAM, [14.40] fresh evidence, [14.20], [14.30], [14.70], [14.90] admissibility, [14.50] overview, [13.90], [14.10], [14.20], [14.30] Expert evidence disclosure by accused, [8.80] fingerprint identification, [2.390]

F

Fair trial absence of representation, [10.10], [10.40] exceptional circumstances for proceeding, [10.80] fault for absence, [10.70], [10.80] indigence, concept, [10.50] quality of representation, [10.90], [10.100] refusal of representation, [10.70] scope of principle, [10.60] serious offence requirement, [10.60] abuse of process, and, [9.10], [9.30] concept, [9.20] Constitution, [9.20] delay, and, [9.90] right to a speedy trial, [9.100] disclosure obligations, [8.20] ex officio indictments, [6.180] fairness, concept, [9.20] guilty pleas, [7.60] international conventions, [9.20] legal representation, [10.10] absence of representation, [10.40]-[10.90], [10.110] competence, [10.90], [10.100] nature of right, [9.20] nole prosequi, and, [8.210] overview, [9.10], [9.20] prejudicial publicity, [9.110], [9.150] 425

Criminal Process in Queensland

Fair trial — cont stay of proceedings, [9.50] absence of representation, [10.40]-[10.70] exceptional circumstances, [9.80] permanent stay, [9.60], [9.70], [9.80], [9.120] prejudicial publicity, [9.120], [9.130] Queensland, [9.60] unfair trials, [9.20], [9.30] court’s powers to avoid, [9.50]-[9.80] propensity evidence, [6.160] Fairness confessions, [3.80] discretion to exclude, [3.60], [3.80] ex officio indictments, [6.180] nole prosequi, and, [8.210] overview, [9.20] Finality double jeopardy rule, [7.160], [7.240], [12.260] Fines collection difficulties, [12.100] deciding fine amount, [12.100] imprisonment for non-payment, [12.100], [12.110] non-payment options, [12.100] Queensland, [12.110] on-the-spot fines, [2.220], [12.100] overview, [2.220], [12.100] Queensland, [12.110] Fingerprint identification expert evidence, [2.390] identifying particulars offences, [2.410] overview, [2.390] Queensland, [2.410] Fitness to stand trial, [1.90] Fitzgerald Inquiry police accountability, [3.120] police powers and responsibilities, [2.20], [2.100] strip searches, [2.370] Forensic procedures — see also Identification material consent to procedures, [2.400] doctors and dentists, [2.400], [2.430] forensic procedure orders, [2.400] intimate procedures, [2.400] non-intimate procedures, [2.400], [2.420] protection of dignity, [2.440] non-medical examinations, [2.420] overview, [2.390] Queensland, [2.400], [2.420]-[2.440] reasonably suspects, [2.400] safeguards, [2.440] 426

Friend of the court, [10.140]

G

Good behaviour bonds conditions, [12.70] contravention of order, [12.70] overview, [12.70] Grievous bodily harm alternative verdicts, [7.130] Guideline judgments sentencing discretion, [11.100] Guilty pleas — see also Charge bargaining — see also Plea bargaining admission of offence, [7.40], [7.50] advice to client, [7.50] committal hearings, [6.40], [7.40] delays, [7.90] ex officio indictments, [6.180] fast track pleas, [7.90] innocence of accused, and, [7.50], [7.80] jury trials, [8.120] Magistrates Court, [1.40], [1.110], [7.40], [8.100] overview, [7.10], [7.40], [7.110] reasons for pleading guilty, [7.80], [7.110] reduction in sentence, [7.90] reform options, [7.110] rejection by court, [7.70] sentencing, [7.100], [11.40], [11.50] reduction in sentence, [7.90] trials, [8.120] unrepresented litigants, [7.70] withdrawal by accused, [7.50] withdrawal of acceptance to lesser charge, [7.60]

H

Hand-up committals, [6.60] Handwriting identifying particulars, [2.410] Hardship sentencing factors, [11.260] Hearings — see also Committal hearings — see also Disclosure hearings directions hearings, [8.100] Magistrates Court, [8.100] overview, [8.100]

Index

Hearings — cont procedure, [8.100] prosecution notice, [8.100] sentencing hearings, [11.40] proof, [11.50] Queensland, [11.50] High Court criminal appeals, [14.80] special leave applications, [14.10], [14.80] criteria for grant, [14.80] House principles, [14.80], [14.120] powers of court, [14.130] sentence appeals, [14.120] Home detention orders curfews, [12.180] fairness of orders, [12.170] overview, [12.170] Queensland, [12.180] suspended sentences, and, [12.180] term of imprisonment, as, [12.180] Human rights fair trial, [9.20] Hung juries, [8.150]

I

Identification material — see also Forensic procedures data management, [2.390] destruction of particulars, [2.410] DNA technology, [2.390], [2.450] cold hits, [2.450] destruction of samples, [2.460] detention of person, [2.460] Indigenous persons, [2.450] storage of samples, [2.460] fingerprint identification, [2.390], [2.410] identifying particulars offences, [2.410] overview, [2.390] Queensland, [2.410] DNA samples, [2.460] time for holding person, [2.410]

impact of imprisonment, [11.190], [11.290], [12.220] indefinite detention, [11.190], [12.10], [12.260] community protection, [12.260] concerns, [12.260] court’s considerations, [12.270] Queensland, [12.270] risk assessment, [12.300] sexual offences, [12.280], [12.300] Indigenous persons, [11.240], [12.210] judicial discretion, [11.110] life sentences, [11.120] life sentences, [11.120] maximum term, [12.220] overview, [12.210] parole, [12.220] preventative detention, [11.190], [12.10] risk assessment, [12.300] sexual offences, [12.280]-[12.290], [12.300] Queensland, [11.290]-[11.320], [12.200], [12.220], [12.230] rates of imprisonment, [12.210] reforms, [12.220] remissions, [12.220] sentence of last resort, [11.290], [12.220] exceptions to principle, [11.290]-[11.320], [12.220] suspended sentences, [12.190] appropriateness, [12.190] deterrence, [12.190] home detention orders, and, [12.180] Queensland, [12.200] violent offenders, [11.300], [12.220], [12.230] discretion to declare, [12.230] Indefinite detention community protection, [12.260] concerns, [12.260] court’s considerations, [12.270] overview, [11.190], [12.10], [12.260] prosecution’s onus, [12.270] Queensland, [12.270] risk assessment, [12.300] sexual offences, [12.280], [12.300]

Impaired capacity police questioning, [2.360]

Indictable offence, [5.90] — see also Commital hearings — see also Disclosure hearings trials, [8.120]

Imprisonment adverse comments, [12.210] child abuse publications, [11.320], [12.220] child sexual offences, [11.310], [12.220] commencement of period, [12.220] cost of imprisonment, [12.210] dependants, and, [11.260] fines, and, [12.100], [12.110] home detention orders, as, [12.180]

Indictments amendments, [6.130] co-accused, [6.170] direct indictments, [6.180] ex officio indictments, [6.90], [6.180], [7.20] fairness, [6.180] time limit for presenting, [6.190] form and content, [6.110] amendments, [6.130] circumstance of aggravation, [6.120]

427

Criminal Process in Queensland

Indictments — cont elements of offences, [6.120] joinder of charges, [6.170], [6.160] overloading of charges, [6.140] particulars, [6.120] sufficiency of particulars, [6.120] joinder of charges, [6.150], [7.20] murder charges, [6.150] prejudice, and, [6.160] requirements, [6.150] temporal connection, [6.150] offence, [5.120] overview, [5.60], [6.90] presentation to court, [6.100] Queensland, [6.100] ex officio indictments, [6.190] Indigenous persons arrest power, and, [2.180] community protection sentences, [11.190] community service programs, [11.240] DNA technology, [2.450] imprisonment, [11.240], [12.210] jury service, [8.170] move-on powers, [2.230] police questioning, [2.350] public order offences, [2.180] Royal Commission into Aboriginal Deaths in Custody, [11.240] sentencing, [11.190], [11.240] Queensland, [11.250] Indigenous Sentencing Courts Murri Court, [11.250] overview, [15.10] Inducement rule, [3.40] Infringement notices overview, [2.220] Insanity defence balance of probabilities, [1.90] overview, [1.90] prosecution, [1.90] reverse onus, [1.70], [1.90] Intensive orders — see Home detention orders Intermediate orders — see Community service orders — see Probation orders International covenants fair trial, [9.20] legal representation, [10.20] rights to appeal, [13.30] Interpretation of Codes ambiguities, [1.30] overview, [1.30] Interrogation — see Police questioning 428

Intoxicated persons police questioning, [2.360] Investigations — see also Police powers and responsibilities police misconduct, [3.110] Issue estoppel abuse of process, and, [7.160] double jeopardy, and, [7.160], [7.170] overview, [7.160]

J

Joinder of charges murder charges, [6.150] prejudice, and, [6.160] propensity evidence, [6.160] requirements, [6.150], [7.20] similar fact evidence, [6.160] temporal connection, [6.150] Judge alone trials no jury orders, [8.130] overview, [8.100], [8.130] procedure, [8.130] Judges jury trials, [1.40], [8.100] accused’s defences, [1.60] unrepresented accused, and, [10.120] Judgments sentencing discretion, and, [11.100] Judicial review charge bargaining, [7.30], [7.100] Juries — see Jury directions — see Jury trials Jurisdiction burden of proof, [1.110] Jury directions beyond reasonable doubt, [1.50] classes of witnesses, [2.320] confessional statements, [2.310], [2.320] prosecution’s burden, [1.50] Jury trials arguments for and against, [8.170] Black direction, [8.150] chalenge for cause, [8.140] constitutional right, [8. 90], [8.180] Commonwealth offences, [8.180] deliberations, [8.150] prescribed period, [8.150] secrecy, [8.160] empaneling jurors, [8.140]

Index

Jury trials — cont hung juries, [8.150] Indigenous jurors, [8.170] majority verdicts, [8.150] overview, [ [8. 90], [8.120], [8.130], [8.170] prejudicial publicity, [8.150], [9.110], [9.150] chalenges for cause, [8.140] procedure, [8.110], [8.190] reasonable doubt, [8.150] role of jury, [1.40], [8.100], [8.140] secrecy of deliberations, [8.160] selection of jurors, [8.140] terrorism offences, [8.180] unrepresented accused, [10.120] verdicts, [8.150] majority verdicts, [8.150] unsafe and unsatisfactory, [13.50]

barristers, [10.10] “cab-rank” rule, [10.160] competence, [10.90], [10.100] effect of incompetence, [10.100] conduct of case, [10.190] duty to not mislead, [10.180] ethical considerations, [10.150] conduct of case, [10.190] correction of errors, [10.180] duty to not mislead, [10.180] guilt of accused, [10.160] lies made to court, [10.170] fair trial, [10.10] absence of representation, [10.40]-[10.90], [10.110] competence, [10.90], [10.100] international covenants, [10.20] Magistrates Court, [8.100] overview, [9.10], [10.10] professional misconduct, [10.150] right to at public expense, [10.20] solicitors, [10.10] unrepresented accused, [10.30], [10.120] chalenges to court, [10.120] judge’s role, [10.120] McKenzie friend, [10.130], [10.140] zealous advocacy, [10.150]

Justice just deserts or retributive, [15.20] restorative — see Restorative justice Justice mediation, [15.60] Juvenile offenders — see Young offenders

L

“Lawyers police questioning, [2.300] delays to contact, [2.300] presence during interview, [2.300] Legal aid availability of practitioners, [10.110] historical background, [10.110] means test, [10.110] merits test, [10.110] overview, [10.110] right to representation, [10.40] statutory schemes, [10.110] Legal burden accused, [1.70], [1.80], [1.110] reverse onus defences, [1.70] overview, [1.40] prosecution, [1.50], [1.80] Commonwealth provisions, [1.100] Legal representation absence of representation, [10.10], [10.40], [10.110] exceptional circumstances for proceeding, [10.80] fault for absence, [10.70], [10.80] indigence, concept, [10.50] quality of representation, [10.90], [10.100] refusal of representation, [10.70] scope of principle, [10.60] serious offence requirement, [10.60]

Life sentences justification, [11.120] Litigants in person, [10.120]

M Magistrates Court appeals, [13.10], [13.20] indictable offences, [13.20] Queensland, [13.20] rights of appeal, [13.20] closing address, [8.100] committal hearings — see Committal hearings evidence, [8.100] guilty pleas, [1.40], [1.110], [7.40], [8.100] hearings, [8.100] indictable offences, [7.20] appeals, [13.20] penalties, [7.20] legal aid, [10.110] legal representation, [8.100] not guilty pleas, [8.100] overview, [1.40], [1.110] pleas, [7.40], [8.100] procedure, [8.100] prosecution notice, [8.100] sentence indication, [7.100] trials, [8.100] Malicious prosecution, [9.180] McKenzie friend amicus curiae, distinction, [10.140] 429

Criminal Process in Queensland

McKenzie friend — cont overview, [10.130]

Murri Court, [11.250], [15.100], [15.110]

Means test legal aid, [10.110]

N

Media reporting — see also Prejudicial publicity sensationalism, [11.30] sentencing, and, [11.30]

National Crime Authority search warrants, [2.50]

Mediation justice mediation, [15.60] police misconduct, [3.110] Supreme Court program, [7.100]

Nolle prosequi abuse of process, [8.210] effect, [8.200] fair trial, and, [8.210] overview, [8.200] refusal to accept, [8.210]

Mental condition of accused — see also Insanity defence fitness to stand trial, [1.90] overview, [1.90] sentencing, and, [11.140] Mental Health Court, [1.90] Merits test legal aid, [10.110] Miscarriage of justice appeal against conviction, [13.80] discretion to order new trial, [13.160], [13.170] fresh evidence, [13.90] Executive Pardons, [14.20], [14.30] Misconduct — see Police accountability

No case submission, [8.100], [8.190]

Non-contact orders, [12.330] Not guilty pleas Magistrates Court, [8.100] trials, [8.120] Notice of discontinuation effect, [8.200] fairness, and, [8.210] overview, [8.200] refusal to accept, [8.210] Notices to appear overview, [2.140], [2.190], [2.280] Nuisance offences, [2.220]

O

Mistake of fact, [1.50] Move-on powers Indigenous persons, [2.230] overview, [2.230] Queensland, [2.240] reasonably necessary, [2.240] reasonably suspects, [2.240] time to comply, [2.240] Moynihan Review guilty pleas, [7.90] Magistrates Court, [10.110] overview, [1.20] Murder alternative verdicts, [7.130] double jeopardy, [7.220] alternative verdicts, [7.130] retrial exception, [7.220] joinder of charges, [6.150] provocation defence, [1.80]

430

Offences — see also Proving offences alternative verdicts, [7.130] classification of, [5.50] commonwealth, [5.130] jurisdiction, [5.140] covert investigations, [2.110] criminal code, [5.60] defined, [5.60] District Court, [5.120] identifying particulars offence, [2.410] indictable, [5.90] Magistrate Court, [5.100], [5.110] public order offences, [2.180] regulatory, [5.70] simple, [5.80] Supreme Court, [5.120] On-the-spot fines overview, [2.220] Onus of proof — see Burden of proof

Index

Organised crime, [12.250] definition, [2.100]

serious drug offence certificates, [12.360] Pending appeal, bail, [4.80]

P

Pardons — see Executive Pardons Parliamentary Crime and Misconduct Committee, [3.130] Parole Queensland, [12.220] Particulars indictments, [6.120] Penalties — see also Imprisonment community-based orders, [12.130] community service orders, [12.130] combinations of penalties, [12.160] disadvantages and risks, [12.130] Queensland, [12.140], [12.160] requirements, [12.160] compensation, [12.310] compensation orders, [12.320] property-related offences, [12.80] Queensland, [12.310] control orders, [12.340] domestic violence orders, [12.350] deterrence, [11.170], [12.100] fines, [2.220], [12.100] colection difficulties, [12.100] imprisonment in lieu, [12.100] non-payment options, [12.100], [12.110] on-the-spot fines, [2.220], [12.100] Queensland, [12.110] home detention orders, [12.170] fairness of orders, [12.170] Queensland, [12.180] indefinite detention, [11.190], [12.10] judicial discretion, [11.70], [11.90] maximum penalties, [11.120] totality principle, [11.110] Magistrates Court, [7.20] maximum penalties, [11.70], [11.90], [11.120], [12.20] multiple penalties, [11.110] non-contact orders, [12.330] options for penalties, [11.10], [12.10] other orders, [12.310] overview, [11.10], [12.10] preventative detention, [11.190], [12.10] probation orders, [12.140] concurrent orders, [12.150] conditions, [12.150] disadvantages and risks, [12.130] forms of order, [12.150] Queensland, [12.140], [12.150] restitution orders, [12.320] restraining orders, [12.330]

Perjury double jeopardy, [7.170], [7.180], [7.230] Personal liberty police questioning, and, [2.290] Persuasive onus — see Legal burden Plea agreements accountability, [7.110] sentencing, and, [7.100] Plea bargaining — see also Charge bargaining advantages, [7.110] concerns, [7.80] disadvantages, [7.110] overview, [7.20], [7.110] police, and, [7.20] withdrawal of guilty plea, [7.50] Pleas — see also Guilty pleas — see also Not guilty pleas autrefois acquit, [7.140] autrefois convict, [7.140] entering a plea, [7.40] overview, [7.40] Police charges, [5.20] plea bargaining, and, [7.20] Police accountability breach of procedures, [3.20] exclusion of confessions, [3.30]-[3.60] complaints against police corrupt conduct, [3.80] false complaints, [3.120] making a complaint, [3.70] minor misconduct, [3.100] official misconduct, [3.70] police misconduct, [3.90] resolution of complaints, [3.110] overview, [3.10] Police bail, [4.30] Police powers and responsibilities arrest — see Arrest powers — see Arrest warrants belief, concept, [2.30] covert investigations, [2.80] controled activities, [2.110] evidence, [2.80] monitoring orders, [2.90] public interest monitor, [2.100] Queensland, [2.90]-[2.110] failure to obey police, [2.480] forensic procedures — see Forensic procedures 431

Criminal Process in Queensland

Police powers and responsibilities — cont identification — see Identification material overview, [2.10] proportionality, [2.30], [2.470] Queensland, [1.20], [2.20] covert investigations, [2.90]-[2.110] purposes of Act, [2.20] questioning — see Police questioning reasonable, concept, [2.30] reforms, [1.20], [2.20] search powers — see Search powers — see Search warrants suspicion, concept, [2.30] use of force, [2.470] warrants, [2.40] Police questioning cautions, [2.340] complaints, [2.260] friend or relative, [2.300] delays to contact, [2.300] presence during interview, [2.300] impaired capacity, [2.360] Indigenous people, [2.350] intoxicated persons, [2.360] jury directions, [2.310], [2.320] lawyers, [2.300] delays to contact, [2.300] presence during interview, [2.300] minor offences, [2.280] overview, [2.260] personal liberty, and, [2.290] promises or promises, [2.260], [3.40] Queensland, [2.280], [2.300], [2.330] impaired or intoxicated persons, [2.360] recording questioning, [2.280], [2.310] breaks in recording, [2.320] non-compliance, [2.330] practicalities of recording, [2.330] relevant persons, [2.390] right to personal liberty, [2.290] right to silence, [2.260], [2.340] name and address, [2.270] safeguards for suspects, [2.390] threats or promises, [2.260], [3.40] time limits, [2.290] unrecorded confessions, [2.280], [2.310], [2.330] jury directions, [2.310], [2.320] Politics sentencing, and, [11.30] victims of crime, [15.130] Prejudice delay, [9.100] joinder of charges, [6.160] propensity evidence, [6.160] Prejudicial publicity fair trial, [9.110], [9.150] jury trials, [8.150], [9.110], [9.120], [9.130], [9.150] 432

chalenges for cause, [8.140] overview, [9.110], [9.150] stay of proceedings, [9.130] permanent stay, [9.120], [9.150] Preliminary hearings — see Committal hearings — see Disclosure hearings Pre-sentence reports, [11.40] Presumption of innocence overview, [1.40] Preventative detention overview, [11.190], [12.10] sexual offences, [12.280] accountability and protection, [12.290] court’s considerations, [12.280] risk assessment, [12.300] Prima facie case, [8.100] Privacy search powers, and, [2.50] Privilege against self-incrimination abrogation, [1.110] overview, [1.60] Probation orders concurrent orders, [12.150] conditions, [12.150] disadvantages and risks, [12.130] forms of order, [12.150] overview, [12.130] Queensland, [12.130], [12.140], [12.150] Promises or threats police questioning, [2.260], [3.40] Propensity evidence admissibility of evidence, [6.160] joinder of charges, and, [6.160] Property-related offences compensation, [12.80] recognisances, [12.80] Proportionality principle, [11.150] Prosecution abuse of process breach of prosecutorial agreement, [9.30], [9.160] oppressive prosecutions, [9.160], [9.170] beyond reasonable doubt, [1.50], [1.100] burden of proof, [1.50], [1.80] Commonwealth provisions, [1.100] defences, [1.50], [1.90]

Index

Prosecution — cont indefinite detention, [12.270] insanity defence, [1.90] to charge, [5.40] decision to prosecute, [7.30] guidelines, [6.100], [7.30] disclosure obligations, [8.30] categories of material, [8.30] common law obligations, [8.20] examples of information, [8.30] fair trial doctrine, [8.20] indictment, [8.50] limitations on requirements, [8.30] Magistrate Courts, [8.40] methods for disclosure, [8.30] new evidence, [8.30] non-compliance with obligations, [8.30], [8.20] ongoing obligation, [8.30] possession of prosecution, definition, [8.30] Queensland, [8.30] sensitive evidence, [8.30] time for disclosure, [8.30] witness contact details, [8.30] evidential burden, [1.50], [1.80] insanity defence, [1.90] legal burden, [1.50], [1.80] Commonwealth provisions, [1.100] malicious prosecution, [9.180] oppressive prosecutions, [9.160] resources, [1.50]

deterrence, [11.170] proportionality principle, [11.150] rehabilitation, [11.160] rehabilitation, [11.20], [11.160] rule of law, [11.20]

Q

QP9, [2.390] Questioning — see Police questioning

R

Race sentencing factors, [11.240] Rape alternative verdicts, [7.130] Recording a conviction considerations, [12.50] criminal history, [12.40] discretion to record, [12.50] overview, [12.40]

Provocation assault, [1.50] murder, [1.80] self-defence, and, [1.60]

Reforms double jeopardy, [1.20], [7.190] New SouthWales, [7.200] retrospective application, [7.200], [7.210] guilty pleas, [7.110] imprisonment, [12.220] Magistrates Court, [10.110] overview, [1.10] police powers and responsibilities, [1.20], [2.20] Queensland, [1.20], [2.20] double jeopardy, [7.210] trials, [1.20]

Public interest monitors, [2.100], [2.110]

Registry committals, [6.70]

Public order offences arrest power, and, [2.180]

Regulatory offence, [5.70]

Prosecution notices, [8.100] Proving offences — see also Burden of proof overview, [1.40], [1.110] presumption of innocence, [1.40] Woolmington’s case, [1.50] erosion of principles, [1.110]

Publicity — see Prejudicial publicity Punishment — see also Penalties administration of punishment, [11.20] double punishments, [7.250] elements, [11.20] just punishment, [11.150] overview, [11.20] purposes of punishment, [11.140] community protection, [11.190] denunciation, [11.180]

Rehabilitation conditions in sentence, [11.160] drug offenders, [11.160] imprisonment, and, [12.210] overview, [11.20], [11.160], [15.20] support for approach, [11.160] young offenders, [11.160] Reintegrative shaming theory, [15.30] Release of offenders overview, [12.60] 433

Criminal Process in Queensland

Release of offenders — cont Queensland, [12.60], [12.90] good behaviour bonds, [12.70] property-related offences, [12.80] Remissions overview, [12.220] Representation — see Legal representation Restitution orders overview, [15.120] Queensland, [12.310] Restorative justice approaches, [15.70] definition, [15.30] deterrence, [15.20] overview, [15.10], [15.20] reintegrative shaming theory, [15.30] retributive justice, and, [15.20] theoretical frameworks, [15.30] Restorative justice programs conferencing, [15.10] Indigenous Sentencing Courts, [15.10] justice mediation, [15.60] limits and challenges of, [15.90] overview, [15.40] success of, [15.80] youth conferencing, [15.50] Restraining orders, [12.330] Right to counsel/legal representation, [10.40] fair trial — see Fair trial human rights — see Human rights legal aid, [10.110] personal liberty police questioning, and, [2.290] privacy search powers, and, [2.50] silence name and address, [2.270] overview, [1.60], [2.260], [8.60] police questioning, and, [2.260], [2.340]name and address, [2.270] Risk assessment preventive/indefinite detention, [12.300] Royal Commission into Aboriginal Deaths in Custody, [11.240] Rule of law, [11.20]

S Search powers covert searches, [2.80] 434

frisk searches, [2.60], [2.380] overview, [2.50], [2.370] post-arrest searches, [2.370] seizure of things, [2.380] strip searches, [2.370], [2.380] privacy, and, [2.50] Queensland, [2.60] post-arrest searches, [2.380] reasonable suspicion, [2.60] search, definition, [2.380] seizure of things, [2.60], [2.380] strip searches, [2.370], [2.380] Search warrants covert searches, [2.100] overview, [2.40], [2.50] post-search approval, [2.70] Queensland, [2.70], [2.100] reasonable, concept, [2.30] reasonable suspicion, [2.70] validity of warrants, [2.50] Secrecy jury deliberations, [8.160] Self-defence, [1.50], [1.60], [2.470] Self-incrimination — see Privilege against self-incrimination Sentence indication bargaining overview, [7.20], [7.100] Sentencing — see also Penalties aggravating factors, [11.60], [11.200] appeals, [13.190] Attorney-General, [13.210] grounds of appeal, [13.200] High Court, [14.120] community influences, [11.30] community protection, [11.150], [11.190] punitive segregation, [11.190] community understanding, [11.30] consistency in sentencing, [11.70], [11.130] co-operation with authorities, [11.230] future assistance, [11.230] degree of culpability, [11.60] denunciation, [11.180] deterrence, [11.170] domestic and family violence, [11.270] evidence, [11.50] aggravating factors, [11.60] fact finding, [11.50] mitigating factors, [11.60] explanation of sentence, [11.60] extra-curial punishment, [11.280] guilty pleas, [7.90], [7.100], [11.40], [11.50] hearings, [11.40], [11.60] degree of culpability, [11.60] explanation of sentence, [11.60] procedural safeguards, [11.50] proof, [11.50] hierarchy of options, [12.10]

Index

Sentencing — cont concerns, [12.30] Queensland, [12.20] imprisonment, [11.110], [11.190], [12.210] child abuse publications, [11.320], [12.220] child sexual offences, [11.310], [12.220] impact, [11.190], [11.290], [12.210] indefinite sentences, [12.260]-[12.270] Indigenous persons, [11.240], [12.210] life sentences, [11.120] reforms, [12.220] Queensland, [11.290]-[11.320], [12.220], [12.230], [12.270] sentence of last resort, [11.290], [12.220] violent offenders, [11.300], [12.220], [12.230] Indigenous persons, [11.190], [11.240] imprisonment, [11.240], [12.210] Queensland, [11.250] Indigenous Sentencing Courts, [15.10] Murri Court, [11.250] instinctive synthesis, [11.80], [11.200] judicial discretion, [7.100], [11.70] data and statistics, [11.90] guideline judgments, [11.100] instinctive synthesis, [11.80] limits to discretion, [11.90] maximum penalties, [11.70], [11.90], [11.120] parity of treatment, [11.130] purposes of sentencing, [11.140]-[11.190] recording a conviction, [12.50] sentencing hierarchy, and, [12.30] sentencing principles, [11.90] totality principle, [11.110] two-staged process, [11.80] mandatory penalties, [11.70], [11.90] maximum penalties, [11.70], [11.90], [11.120], [12.20] media reporting, [11.30] mental ilness, [11.140] minimum penalties, [11.70], [11.90] mitigating factors, [11.60], [11.200] age of offender, [11.210] co-operation with authorities, and, [11.230] multiple penalties, [11.110] overview, [11.10], [11.20], [12.10] plea agreements, [7.100] politics, and, [11.30] pre-sentence reports, [11.40] proof, [11.50] fact finding, [11.50] Queensland, [11.50] proportionality principle, [11.150] public opinion, and, [11.30] public understanding, [11.30] punishment, and, [11.20] purposes of sentencing, [11.140] community protection, [11.150], [11.190] denunciation, [11.180] deterrence, [11.170]

proportionality principle, [11.150] rehabilitation, [11.20], [11.160], [11.190] Queensland, [1.20], [11.50], [11.250], [12.20], [12.50] indefinite sentences, [12.270] release of offenders, [12.60]-[12.90] suspended sentences, [12.200] recording a conviction, [12.40] considerations, [12.50] discretion to record, [12.50] rehabilitation, [11.20], [11.160], [11.190] drug offenders, [11.160] support for approach, [11.160] young offenders, [11.160] release of offenders, [12.60] good behaviour bonds, [12.70] property-related offences, [12.80] Queensland, [12.60]-[12.90] relevant factors, [11.200] age of offender, [11.210] character of offender, [11.210] children of offender, [11.260] co-operation with authorities, [11.230] cultural background, [11.240] damage, injury or loss, [11.220] hardship, [11.250] imprisonment, [11.290]-[11.300] intelectual capacity, [11.210] victim impact statements, [11.220] serious and organized crime, [12.250] social problems, and, [11.140] spent conviction orders, [12.40] submissions, [7.100], [11.40] suspended sentences, [12.190] appropriateness, [12.190] deterrence, [12.190] home detention orders, and, [12.180] Queensland, [12.200] young offenders, [11.160], [11.210] Serious crime, [12.250] Serious drug offence certificates, [12.360] Serious offences — see Indictable offences Sexual offences — see also Child sexual offences — see also Rape evidence, [8.30] joinder of charges, [6.160] preventative detention, [12.280] court’s considerations, [12.280] risk assessment, [12.300] psychiatric reports, [12.300] risk assessment, [12.300] supervision orders, [12.280] Silence — see Right to silence Similar fact evidence admissibility of evidence, [6.160] 435

Criminal Process in Queensland

Similar fact evidence — cont joinder of charges, and, [6.160] Simple offences, [5.80] Solicitors — see Legal representation Spent conviction orders overview, [12.40] Standard of proof accused, [1.70] balance of probabilities, [1.70], [1.90], [1.110] beyond reasonable doubt, [1.50], [1.100] Commonwealth provisions, [1.100] insanity defence, [1.90] Magistrates Court, [8.100] sentencing hearings, [11.50] Stay of proceedings absence of representation, [10.40] exceptional circumstances for proceeding, [10.80] fault for absence, [10.70], [10.80] indigence, concept, [10.50] quality of representation, [10.90] refusal of representation, [10.70] scope of principle, [10.60] serious offence requirement, [10.60] abuse of process, [7.150], [7.160], [7.180], [9.30] court’s powers, [9.60] oppressive prosecutions, [9.170] permanent stay, [7.150], [9.60], [9.70], [9.80] character of stay, [9.70] permanent stay, [7.150], [9.60], [9.70] delay, [9.100] exceptional circumstances, [9.80] prejudicial publicity, [9.120], [9.150] prejudicial publicity, [9.120], [9.130], [9.150] Queensland, [9.60] Summons alternative to arrest, [2.200] Supreme Courts appeals, [13.10], [13.30] lodgment, [13.30] points of law, [13.30] rights of appeal, [13.30] bail, [4.50] mediation program, [7.100] offences, [5.120] Suspended sentences appropriateness, [12.190] deterrence, [12.190] home detention orders, and, [12.180] overview, [12.190] Queensland, [12.200] 436

T

Terrorism covert investigations, [2.80], [2.100] defences, [1.110] definition, [2.100] jury trials, [8.180] Threats or promises police questioning, [2.260], [3.40] Time disclosure by prosecution, [8.30] indictments, [6.100] ex officio indictments, [6.190] nolle prosequi, [8.200] Time limits police questioning, [2.290] Totality principle, [11.110] Trials — see also Disclosure obligations — see also Hearings — see also Legal representation arraignment, [8.120] fair trials — see Fair trials final addresses, [8.190] fitness to stand trial, [1.90] guilty pleas, [8.120] indictable offences, [8.120] judge alone trials, [8.100], [8.130] jury trials — see Jury trials Magistrates Court, [8.100] no case submissions, [8.190] nole prosequi, [8.10], [8.200] abuse of process, [8.210] effect, [8.200] fair trial, [8.210] refusal to accept, [8.210] not guilty pleas, [8.120] notice of discontinuation, [8.200] effect, [8.200] refusal to accept, [8.210] overview, [8.10], [8. 90], [8.110] pre-trial applications, [8.120] procedure, [8.120], [8.190] judge alone trials, [8.130] reforms, [1.20] right to a speedy trial, [9.100] voir dire, [8.190]

U

Undercover operations — see Covert investigations Unfair trials — see Fair trial

Index

Unlawful detention, [2.120]

applications, [12.310] overview, [11.220], [15.10], [15.120] political clout, [15.130] restitution orders, [15.120] Queensland, [12.320] sentencing, and, [11.220]

Unrepresented litigants rejection of guilty plea, [7.70]

V

Verdicts majority verdicts, [8.150] overview, [8.150] unsafe and unsatisfactory, [13.50]

Violent offenders discretion to declare, [12.230] sentencing, [11.300], [12.220], [12.230] Voir dire, [8.190]

W Victim assistance schemes act of violence, definition, [15.170] amounts of assistance, [15.200] assessments, [15.200] applications, [15.150] benefits of scheme, [15.210] eligibility for assistance, [15.190] fundamental principles, [15.140] injury, definition, [15.180] Queensland, [15.140]-[15.210] victim, definition, [15.160]

Warrants — see also Arrest warrants — see also Search warrants overview, [2.40] Woolmington’s case prosecution’s burden, [1.50] erosion of principles, [1.110]

Y Victim impact statements sentencing factors, [11.220] Victims of crime central themes, [15.130] compensation, [15.120]

Young offenders conferencing, [15.60] rehabilitation, [11.160] sentencing factors, [11.210]

437