Criminal procedure 9780409341454, 0409341452

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LexisNexis Questions and Answers Criminal Procedure Kerstin Braun LLM (UQ), PhD (Qld) Lecturer, School of Law and Justice, University of Southern Queensland

Andrew Hemming MA (Dublin), LLB (Hons) (CDU), GCertEd (Hull), MSc (Salford), MUrbanPlan (Melb), PhD (CDU) Senior Lecturer, School of Law and Justice, University of Southern Queensland

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Braun, Kerstin. Criminal Procedure. 1st edition. 9780409341447 (paperback) 9780409341454 (ebook) LexisNexis questions and answers. Includes index. Criminal procedure — Australia — Textbooks. Criminal investigation — Australia. Trial practice — Australia. Hemming, Andrew. 345.9405

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Table of Cases References are to paragraph numbers A Alford v Magee (1952) 85 CLR 437 …. 5-1, 5-13, 5-15 Alister v R (1984) 154 CLR 404 …. 5-4 Azzopardi v R (2001) 205 CLR 50 …. 2-1, 2-5–2-9, 2-17, 2-20, 5-1 B Barton v R (1980) 147 CLR 75 …. 4-9, 5-24, 5-31 Basto v R (1954) 91 CLR 628 …. 2-4, 2-5 Bataillard v R (1907) 4 CLR 1282 …. 6-10 Beckett v New South Wales (2013) 248 CLR 432 …. 5-24 Bell v R (1994) 77 A Crim R 213 …. 1-19 Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] 31 FCR 523 …. 1-17 Black v R (1993) 179 CLR 44 …. 5-1 Boucher v R (1954) 110 CCC 263 …. 5-4 Bratty v Attorney-General for Northern Ireland [1963] AC 386 …. 521 Brown v R (1913) 17 CLR 570 …. 5-12 — v — (1986) 160 CLR 171 …. 5-1, 5-7, 5-23

Bugmy v R (2013) 249 CLR 571 …. 6-4 Bunning v Cross (1978) 141 CLR 54 …. 2-1, 2-3, 2-4 C Cheatle v R (1993) 177 CLR 541 …. 5-1, 5-7 Chow v DPP (NSW) (1992) 28 NSWLR 593 …. 4-10 Cleland v R (1982) 151 CLR 1 …. 2-4 Cokara v Director of Public Prosecutions (DPP) (Qld) [2012] QCA 250 …. 3-24 Collins v R (1980) 31 ALR 257 …. 2-4 Collis v Smith (1909) 9 CLR 490 …. 6-10 CTM v R (2008) 236 CLR 440 …. 5-21 D Dietrich v R (1992) 177 CLR 292 …. 5-1, 5-10, 5-15 Director of Public Prosecutions v Toomalatai (2006) 163 A Crim R 192 …. 2-4 Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 …. 6-5, 6-7 Doja v R (2009) 198 A Crim R 349 …. 4-6 Douglas v Blackler [2001] NSWSC 901 …. 1-17 Duke v R (1989) 180 CLR 508 …. 2-4 E Ebatarinja v Deland (1998) CLR 444 …. 2-14 Evans v R (2007) 235 CLR 521 …. 5-3 Everett and Phillips v R (1994) 181 CLR 295 …. 6-4 G George v Rockett (1990) 170 CLR 104 …. 1-9, 1-17 Glinski v McIver (1942) AC 726 …. 5-4

Green v R (1971) 126 CLR 28 …. 5-1, 5-12, 5-15 H Hili v R (2010) 242 CLR 520 …. 6-8 House v R (1936) 55 CLR 499 …. 5-20, 6-4, 6-10, 6-12 Hughes v Dempsey (1915) 17 WALR 186 …. 1-9 I Ibbs v R (1987) 163 CLR 447 …. 6-2, 6-17 K Kozul v R (1981) 147 CLR 221 …. 5-26 Kumar v DPP [2013] VSCA 297 …. 4-10, 4-18 Kuru v State of New South Wales [2008] HCA 26 …. 1-10 L Lawson v Dunlevy [2012] NSWSC 48 …. 3-29, 3-30 Lee Chun-Chuen v R [1963] AC 220 …. 5-21 Leigh v Cole (1853) 6 Cox C 329 …. 1-15 Liberato v R (1985) 159 CLR 507 …. 6-10 Lippl v Haines (1989) 18 NSWLR 620 …. 1-13, 1-14 M Mallard v R (2005) 224 CLR 125 …. 6-13 Martino v State of Western Australia [2006] WASCA 78 …. 6-17, 6-18 Maxwell v R (1996) 184 CLR 501 …. 4-9, 4-10 McDermott v R (1948) 76 CLR 501 …. 2-12, 6-10 McInnis v R (1979) 143 CLR 575 …. 5-10 Meissner v R (1995) 184 CLR 132 …. 4-10, 4-17–4-20 Michaels v R (1995) 184 CLR 117 …. 1-19 Miles v R (1997)17 WAR 518 …. 6-17

Momcilovic v R (2011) 245 CLR 1 …. 5-1, 5-21 Morris v R (1987) 163 CLR 454 …. 6-10 Munda v Western Australia (2013) 249 CLR 600 …. 6-21 O O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 296; 1 All ER 129 …. 1-17 Osland v The Secretary of the Department of Justice [2010] HCA 24 …. 6-13 P Parker v DPP (1992) 28 NSWLR 282 …. 6-2 Pearce v R (1998) 194 CLR 610 …. 4-11, 4-13, 4-14 Petty and Maiden v R (1991) 173 CLR 95 …. 2-1, 2-16, 2-19, 2-20 R R v Acott [1997] 1 All ER 706 …. 5-21 — v Adamic (2000) 117 A Crim R 332 …. 2-4 — v Anunga (1976) 11 ALR 412 …. 2-1, 2-11 — v Atkinson [1976] Crim LR 307 …. 1-18 — v Ayers [1984] AC 447 …. 4-6 — v Bodsworth [1968] 2 NSWR 132 …. 2-4 — v Burt [2000] 1 Qd R 28 …. 2-12 — v Carroll (2002) 213 CLR 635 …. 4-11, 4-12, 4-26, 4-27 — v Chivers [2011] EWCA Crim 1212 …. 2-18 — v Christie [1914] AC 545 …. 2-1 — v Connors (2012) 223 A Crim R 162 …. 3-29 — v Conway [2005] QCA 194 …. 2-9 — v Cornelius (1936) 55 CLR 235 …. 2-4 — v DAH [2004] QCA 419 …. 2-1, 2-9 — v Dixon (1992) 28 NSWLR 215 …. 2-12

— v Drummond [2013] SASCFC 135 …. 6-13, 6-15 — v Economou (1989) 51 SASR 421 …. 5-24 — v Falconer (1990) 171 CLR 30 …. 5-30, 5-31 — v Fardon [2010] QCA 317 …. 5-20, 5-23 — v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227 …. 5-20 — v Grandinetti [2005] 1 SCR 27 …. 6-10 — v Hawi (No 7) [2011] NSWSC 1653 …. 5-3 — v Henry [1999] NSWCCA 111 …. 6-17 — v Houghton [2002] QCA 159 …. 6-18 — v Ireland (1970) 126 CLR 321 …. 2-1, 2-4 — v Janceski (2005) 64 NSWLR 10 …. 4-4 — v Jell [1991] 1 Qd R 333 …. 5-24 — v K [2003] NSWCCA 406 …. 5-11, 5-15 — v Khazaal (2012) 246 CLR 601 …. 5-21 — v Kops (1893) 14 LR (NSW) 150 …. 2-6 — v Lamb and Thurston [2002] NSWSC 357 …. 2-11 — v Lander (1989) 52 SASR 424 …. 2-7, 2-8 — v Le [2007] QCA 259 …. 5-28, 5-31 — v Lee (1950) 82 CLR 133 …. 2-1, 2-4, 2-5 — v Lee Kun [1916] 1 KB 337 …. 2-14 — v Lorkin (1995) 82 A Crim R 196 …. 5-24 — v Lovell [1999] 2 Qd R 79 …. 6-20 — v MacDonald (1995) 65 SASR 322 …. 4-7 — v Maddeford (2001) 120 A Crim R 497 …. 6-20 — v Moran [1998] VSCA 64 …. 2-1 — v Osenkowski (1982) 30 SASR 212 …. 6-4 — v Pahuja (1987) 49 SASR 191 …. 5-25, 5-31 — v Phung Huynh [2001] NSWSC 115 …. 2-11

— v Plotzki [1972] Qd R 379 …. 2-12 — v Prasad (1979) SASR 161 …. 5-25 — v Pritchard (1836) 7 Car & P 303 …. 2-14 — v Rae [2006] QCA 207 …. 5-27, 5-31 — v Reid [1999] 2 VR 605 …. 4-8, 4-15 — v Rondo (2001) 126 A Crim R 562 …. 1-9 — v Skaf [2004] NSWCCA 37 …. 5-11 — v Smart (Ruling No 5) [2008] VSC 94 …. 5-25, 5-31 — v Smith (1982) 7 A Crim R 437 …. 6-20 — v Spina [2005] VSCA 319 …. 4-8, 4-15 — v Stankovich (2004) 149 A Crim R 88 …. 1-18 — v Swaffield (1998) 192 CLR 159 …. 2-1 — v Taousanis [1999] NSWSC 107 …. 5-28 — v Tran [2000] FCA 188 …. 5-4 — v Tran [2006] SASC 276 …. 2-17 — v Verdins [2007] VSCA 102 …. 6-20 — v WAF & SBN [2009] QCA 144 …. 2-1 — v Wickham (1971) 55 Cr App R 199 …. 2-6 Roffey v State of Western Australia [2007] WASCA 246 …. 6-2, 6-18 RPS v R (2000) 199 CLR 620 …. 2-6 Ryan v R (2001) 206 CLR 267 …. 6-20 S Samuels v Western Australia [2005] WASCA 193 …. 6-4 Stapleton v R (1952) 86 CLR 358 …. 2-3 State of New South Wales v Corbett (2007) 230 CLR 606 …. 1-17 Swaffield v R (1996) 88 A Crim R 98 …. 2-3 T

Thomas v R (1960) 102 CLR 584 …. 5-12, 5-15 TLM v State of Western Australia [2009] WASCA 106 …. 6-22 Tofilau v R [2007] HCA 39 …. 6-10, 6-11, 6-12 U United Mexican States v Cabal [2001] 209 CLR 165 …. 3-14, 3-26 V Van Den Meer v R (1988) 35 A Crim R 232 …. 2-4 Veen v R (No 2) (1988) 164 CLR 465 …. 6-17, 6-18 W Waugh v R [1950] AC 203 …. 2-7 Weiss v R (2005) 224 CLR 300 …. 6-7 Weissensteiner v R (1993) 178 CLR 217 …. 2-1, 2-5–2-9, 2-17 Whitehorn v R (1983) 152 CLR 657 …. 5-1, 5-4 Williams v R (1986) 161 CLR 278 …. 1-15, 1-19 Wong v R (2001) 207 CLR 584 …. 6-2, 6-8 Wood v R [2012] NSWCCA 21 …. 5-4 Woods v R (1994) 14 WAR 341 …. 6-17 Woolmington v DPP [1935] AC 462 …. 5-1 Wright v Queensland Police Service [2002] 2 Qd R 667; [2002] QSC 046 …. 1-17

Table of Statutes References are to paragraph numbers COMMONWEALTH Constitution s 80 …. 5-1, 5-7, 5-23 Crimes Act 1914 …. 6-2, 6-17, 6-19, 6-20 s 3E …. 1-17 s 3E(5)(d) …. 1-18 s 3R …. 1-20 s 3R(2) …. 1-20 s 3UEA …. 1-8 s 3W …. 1-15 s 3ZS(1) …. 1-14 s 17A …. 6-2 ss 23A–23W …. 2-1, 2-3 s 23H …. 2-11 s 205(2) …. 1-20 Criminal Code 1995 Div 13 …. 5-1 s 13.2(1) …. 5-12

s 13.3.6 …. 5-21 s 101.5(1) …. 5-21 Evidence Act 1995 s 20 …. 2-6 s 20(2) …. 2-1, 2-6, 2-17 s 26 …. 5-1 s 89(1) …. 2-1 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-3 s 141(1) …. 5-12 Judiciary Act 1903 s 35A …. 6-1, 6-10, 6-11 s 78 …. 5-1, 5-10 Migration Act 1958 …. 6-2 AUSTRALIAN CAPITAL TERRITORY Bail Act 1992 …. 3-4, 3-20 s 8(1)(a)–(e) …. 3-4 s 9A(2) …. 3-4, 3-20 ss 9C–9G …. 3-4 s 25 …. 3-11, 3-28 s 25(4) …. 3-13, 3-29 s 28 …. 3-9 s 36 …. 3-12 s 49 …. 3-10, 3-31 Crimes Act 1900 Pt 12 …. 4-5

s 188…. 1-8, 1-10 s 190 …. 1-8 s 194 …. 1-17 s 194(5)(d) …. 1-18 s 205 …. 1-20 s 205(1) …. 1-20 s 212 …. 1-15 s 220(2) …. 1-13 s 221 …. 1-15 s 260 …. 4-6 s 264 …. 4-7 s 269 …. 4-8, 4-15 Crimes (Sentencing) Act 2005 …. 6-2, 6-17, 6-19, 6-20 Evidence Act 2011 s 20 …. 2-6 s 20(2) …. 2-6, 2-17 s 26 …. 5-1 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-3 s 141(1) …. 5-12 Supreme Court Act 1933 s 370(1) …. 6-1, 6-5, 6-7 s 370(3) …. 6-1, 6-7 s 370(7) …. 6-1, 6-8 NEW SOUTH WALES Bail Act 2013 …. 3-4, 3-20

s 16A …. 3-5, 3-25 s 19(2) …. 3-5, 3-20 s 20 …. 3-4, 3-20 s 25 …. 3-13 s 28 …. 3-13 s 33 …. 3-9 s 79 …. 3-10, 3-31 Crimes Act 1900 s 97 …. 6-17 Crimes (Appeal) and Review Act 2001 Pt 7 …. 6-13 s 76 …. 6-13 s 100 …. 4-12, 4-28, 6-14 s 101 …. 4-12, 4-28 Crimes (Sentencing Procedure) Act 1999 …. 6-2, 6-17, 6-19, 6-20, 6-23 s 5(1) …. 6-2 s 21A(3)(e) …. 6-20 s 21A(3)(f) …. 6-20 s 21A(3)(i) …. 6-20 s 21A(3)(j) …. 6-20 s 23 …. 6-22 s 23(2) …. 6-22 s 23A(2) …. 6-21 s 23A(3)(i) …. 6-20 s 23A(5AA) …. 6-21 Criminal Appeal Act 1912 s 5D …. 6-4 ss 5D–5DB …. 6-4 s 6(1) …. 6-1, 6-7

s 6(2) …. 6-1, 6-5, 6-7 s 6(3) …. 6-1, 6-8 s 7 …. 6-1, 6-5, 6-7 s 8 …. 6-1, 6-5, 6-7 Criminal Procedure Act 1986 Ch 2 Pt 2 …. 4-5 s 8(2) …. 4-9 s 11 …. 4-5 s 16 …. 4-6 s 17 …. 4-6 s 18 …. 4-6 s 20 …. 4-7 s 21 …. 4-7 s 21(2) …. 4-8, 4-15 s 29 …. 4-8, 4-15 s 36 …. 5-1, 5-10 s 129(2) …. 4-3 s 132 …. 5-23 s 281 …. 2-1, 2-3 Director of Public Prosecutions Act s 13 …. 5-4 Evidence Act 1995 s 20 …. 2-6 s 20(2) …. 2-6, 2-17 s 26 …. 5-1 s 53 …. 5-3 s 53(1) …. 5-3 s 53(3) …. 5-3

s 53(3)(c) …. 5-3 s 55(c) …. 5-28 s 89A …. 2-1, 2-16, 2-18 2-20 s 89A(1) …. 2-18, 2-20 s 89A(2) …. 2-18, 2-20 s 89A(5)(b) ….. 2-18 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-3 s 141(1) …. 5-12 Jury Act 1977 s 55F …. 5-1, 5-5 s 55F(2)(a) …. 5-5 s 55F(3)(a) …. 5-5 s 55F(4) …. 5-7 s 75C …. 5-19 Law Enforcement (Powers and Responsibilities) Act 2002 s 9(1)(b) …. 1-8 s 9(2) …. 1-10 s 10 …. 1-13 s 47 …. 1-17 s 61 …. 1-20 s 62(1)(a) …. 1-18 s 72 …. 1-18 s 99 …. 1-15 s 115 …. 1-19 ss 122–131 …. 2-1, 2-3 s 201…. 1-14

s 202(1) …. 1-14 s 202(2) …. 1-14 s 231 …. 1-15 NORTHERN TERRITORY Bail Act 1982 …. 3-4, 3-20 s 7A …. 3-4 s 8(2)(a) …. 3-4, 3-20 s 25 …. 3-9 s 27(2) …. 3-11, 3-28 s 27A …. 3-29 s 27A(a) …. 3-13 s 27A(b) …. 3-13 s 37B …. 3-10, 3-31 Criminal Code s 300 …. 4-9 s 305 …. 4-5 s 305(3) …. 4-5 s 308 …. 4-8 s 309 …. 4-8, 4-15 s 311 …. 4-6 s 312 …. 4-6, 4-7 s 341 …. 4-8, 4-15 s 360 …. 5-1, 5-10 s 368 …. 5-1, 5-7 s 411(2) …. 6-1, 6-7 s 411(3) …. 6-1, 6-5, 6-7 s 411(4) …. 6-1, 6-8 s 414 …. 6-4

Domestic and Family Violence Act 2007 s 84 …. 1-8 Evidence (National Uniform Legislation) Act s 20 …. 2-6 s 20(2) …. 2-6, 2-17 s 26 …. 5-1 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-3 s 141(1) …. 5-12 Police Administration Act s 117 …. 1-17, 1-18 s 118 …. 1-20 s 123 …. 1-15 s 126(2) …. 1-13 s 126(2A) …. 1-8 s 126(2A)(f) …. 1-10 s 137 …. 1-19 ss 140–142 …. 2-1, 2-3 Sentencing Act 1995 …. 6-2, 6-17, 6-19, 6-20 QUEENSLAND Bail Act 1980 …. 3-4, 3-20 s 9 …. 3-4, 3-20 s 11(1) …. 3-11, 3-28 s 11(2) …. 3-29 s 13 …. 3-3 s 14A …. 3-8 s 16 …. 3-20

s 16(1) …. 3-5, 3-20 s 16(3) …. 3-5, 3-25 s 16(3A) …. 3-5, 3-25 s 20 …. 3-9 s 21 …. 3-12 s 29 …. 3-10, 3-31 Criminal Code Ch 68 …. 6-14 s 17 …. 4-11 s 561 …. 4-9, 5-24 s 564(1) …. 4-5 s 561(1) …. 5-24 s 564(3) …. 4-5 s 567(1) …. 4-8, 4-15 s 567(2) …. 4-8, 4-15 s 568(12) …. 4-8, 4-15 s 572 …. 4-7 s 573 …. 4-6 s 590(1) …. 4-3 s 597A …. 4-8, 4-15 s 614 …. 5-15, 5-20, 5-23 s 615 …. 5-15, 5-20, 5-23 s 615(1) …. 5-20 s 615(4) …. 5-20 s 615(4)(c) …. 5-20, 5-23 s 615(5) …. 5-20 s 616 …. 5-1, 5-10 s 668E(1A) …. 6-1, 6-7

s 668E(2) …. 6-1, 6-5, 6-7 s 668E(3) …. 6-1, 6-8 s 668F(2) …. 6-1, 6-5, 6-7 s 669 …. 6-1, 6-5, 6-7 s 669A …. 6-4 s 672A …. 6-13 s 672A(a) …. 6-13 s 677 …. 6-13 s 678B …. 4-28, 6-14 ss 678B–678C …. 4-12, 4-28 s 678D(2) …. 4-28 s 678D (3) …. 4-28 s 678F …. 4-28 Criminal Code Act 1899 s 17 …. 4-25 s 618 …. 2-6 s 620(1) …. 2-6, 2-9 Criminal Law Amendment Act 1894 s 10 …. 2-4, 2-5 Evidence Act 1977 s 130 …. 5-27 Jury Act 1995 s 43 …. 5-17 s 43(2)(b) …. 5-17 s 43(3) …. 5-17 s 43(4) …. 5-17 s 43(6) …. 5-17 s 56 …. 5-18 s 56(1)(a) …. 5-18

s 59(3) …. 5-7, 5-18 s 59A …. 5-1 s 69A …. 5-11, 5-15 s 70 …. 5-19 s 70(8) …. 5-19 Penalties and Sentencing Act 1992 …. 6-2, 6-17, 6-19, 6-20 s 3(b) …. 6-17, 6-18 s 9(2)(a) …. 6-2 s 155 …. 6-17 Police Powers and Responsibilities Act 1997 s 95 …. 2-4 Police Powers and Responsibilities Act 2000 Ch 15 …. 2-1, 2-3 s 21(2) …. 1-13 s 151 …. 1-17 s 156 …. 1-18 s 156(1)(b) …. 1-17 s 365 …. 1-15 s 365(1) …. 1-15 s 365(2) …. 1-15 s 403. …. 1-19 s 416 …. 2-4 s 418 …. 2-1 s 418(1) …. 2-3 s 418(2) …. 2-3 s 419 …. 2-3 s 420 …. 2-1, 2-11 s 420(2) …. 2-11

s 420(3) …. 2-11 s 420(4) …. 2-11 s 420(5) …. 2-11 s 423 …. 2-3 s 431 …. 2-1, 2-3 s 433 …. 2-1, 2-11 s 433(1) …. 2-11 s 436 …. 2-1, 2-3, 2-5 s 436(3) …. 2-3 s 439 …. 2-1, 2-3 s 609(1)(b) …. 1-8 s 609(2) …. 1-8 s 609(2)(c) …. 1-9 s 609(4)(c)(i) …. 1-8 ss 615–616 …. 1-15 s 800 …. 1-20 Sch 6 …. 1-9 Police Powers and Responsibilities Regulation 2012 s 26(1) …. 2-3 Sch 9 …. 2-3 SOUTH AUSTRALIA Bail Act 1985 …. 3-4, 3-20 s 6(1) …. 3-9 s 10(1) …. 3-4, 3-20 s 10(1)(b) …. 3-5, 3-20 s 10A …. 3-5, 3-25 s 11(2) …. 3-11, 3-13, 3-28 s 17 …. 3-10, 3-31

Criminal Law Consolidation Act 1935 Pt 10 …. 4-12, 4-28, 6-14 s 277 …. 4-5 s 278(1) …. 4-8, 4-15 s 278(2) …. 4-8, 4-15 s 281(2) …. 4-7 s 288 …. 5-1, 5-10 s 352 …. 6-4 s 353(1) …. 6-1, 6-7 s 353(2) …. 6-1, 6-5, 6-7 s 353(4) …. 6-1, 6-8 s 353A …. 6-13 s 353A(1) …. 6-13, 6-15 s 353A(2) …. 6-13 s 369 …. 6-13 Sch 3 r 4(3) …. 4-5 Sch 3 r 4(4) …. 4-5 Criminal Law (Sentencing) Act 1988 …. 6-2, 6-17, 6-19, 6-20 s 11 …. 6-2 Evidence Act 1929 s 18(1)(b) …. 2-6, 2-9 Intervention Orders (Prevention of Abuse) Act 2009 s 37…. 1-8 Jury Act 1927 s 57 …. 5-1 s 57(2) …. 5-7 s 57(3)(b) …. 5-7 Summary Offences Act 1953 s 67 …. 1-2, 1-8, 1-18

s 67(4) …. 1-18 s 75 …. 1-15 s 78 …. 1-19 s 79A …. 2-1, 2-3 s 82 …. 1-13 TASMANIA Bail Act 1994 …. 3-4, 3-20 s 7(2)(a) …. 3-9 s 9 …. 3-10, 3-31 s 23 …. 3-4, 3-20 Criminal Code Ch XXXVIII …. 4-5 Ch XLIV …. 4-12, 4-28, 6-14 s 311(2) …. 4-8, 4-15 s 312 …. 4-5 s 317 …. 4-5 s 326(1) …. 4-7 s 326(3) …. 4-8, 4-15 s 368 …. 5-1, 5-10 s 402(2) …. 6-1, 6-7 s 402(3) …. 6-1, 6-5, 6-7 s 402(4) …. 6-1, 6-8 s 403(2) …. 6-1, 6-5, 6-7 s 404 …. 6-1, 6-5, 6-7 s 419 …. 6-13 Criminal Code Act 1924 s 26 …. 1-15 s 26A…. 1-13

s 27 …. 1-15 s 27(2) …. 1-15 s 401 …. 6-4 s 402A …. 6-13, 6-15 s 402A(5) …. 6-13 Criminal Law (Detention and Interrogation) Act 1995 s 4 …. 1-19 ss 5–9 …. 2-1, 2-3 Evidence Act 2001 s 20 …. 2-6 s 20(2) …. 2-6, 2-17 s 26 …. 5-1 s 85A …. 2-1, 2-3 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-1, 2-3 s 141(1) …. 5-12 Family Violence Act 2004 s 10 …. 1-8, 1-10 Jury Act 1899 s 43 …. 5-1 s 43(3) …. 5-7 Justices Act 1959 s 106L(1)(b) …. 1-8 Police Offences Act 1935 s 60…. 1-2 Search Warrants Act 1997

s 5 …. 1-18 s 5(1) …. 1-17 Sentencing Act 1997 …. 6-2, 6-17, 6-19, 6-20 VICTORIA Bail Act 1977 …. 3-4, 3-20 s 4(1) …. 3-4, 3-20 s 4(2)(d)(ii) …. 3-5, 3-20 s 5 …. 3-9 s 5(2) …. 3-11, 3-28 s 9 …. 3-12 s 11 …. 3-8 s 13 …. 3-5, 3-25 s 23 …. 3-12 s 30 …. 3-10, 3-31 Constitution Act 1975 s 87E(b) …. 6-13 Crimes Act 1958 s 26A…. 1-13 s 325 …. 5-23, 5-25, 5-31 s 458…. 1-15 s 459A …. 1-13 s 459(1)(a) …. 1-15 s 459A(1)(b) …. 1-8 s 462A …. 1-15 s 464A …. 1-19 ss 464A–464H …. 2-1, 2-3 s 465 …. 1-17 s 465(1) …. 1-18

Crimes (Mental Impairment and Unfitness to Be Tried) Act 1977 s 21(2)(b) …. 5-30 s 21(3) …. 5-30 Criminal Procedure Act 2009 Ch 7A …. 6-14 Pts 5.2–5.3 …. 4-5 Pt 5A.. 4-12 s 33 …. 5-1, 5-10 s 53A … 6-14 s 77 … 6-14 s 161 …. 4-9 s 163 …. 4-3 s 165 …. 4-7 s 166 …. 4-6 s 170 …. 4-8, 4-15 s 193 …. 4-8, 4-15 s 195 …. 4-8, 4-15 s 197 …. 5-1, 5-10 s 197(3) …. 5-10 s 244 …. 6-14 s 276(1) …. 6-1, 6-7 s 277 …. 6-1, 6-5, 6-7 s 281 …. 6-1, 6-8 s 287 …. 6-4 s 327 …. 6-13 Sch 1 …. 4-5 Sch 1 reg 2 …. 4-5 Sch 1 reg 5 …. 4-8, 4-15 Sch 1 reg 7 …. 4-5 Evidence Act 2008

s 20 …. 2-6 s 20(2) …. 2-6, 2-17 s 26 …. 5-1 s 138 …. 2-3 s 138(1) …. 2-3 s 138(3) …. 2-3 s 139 …. 2-3 s 141(1) …. 5-12 Family Violence Protection Act 2008 s 157 …. 1-8 Juries Act 2000 s 46 …. 5-1, 5-7 Sentencing Act 1991 …. 6-2, 6-17, 6-19, 6-20 s 5(4) …. 6-2 WESTERN AUSTRALIA Bail Act 1982 …. 3-4, 3-5, 3-20 s 5 …. 3-4, 3-20 s 7(1) …. 3-4, 3-20 s 15 …. 3-3 s 28 …. 3-9 s 35 …. 3-12 s 48 …. 3-12 s 51 …. 3-10, 3-31 Sch 1 Pt C cl 3A …. 3-5 Sch 1 Pt C cl 3C …. 3-5, 3-25 Sch 1 Pt D cl 1 …. 3-11, 3-28 Criminal Appeals Act 2004 Pt 5A …. 6-14

s 24 …. 6-4 s 27(1) …. 6-4 s 30 …. 6-1, 6-5, 6-7 s 30(4) …. 6-1, 6-7 s 31 …. 6-1, 6-8 Criminal Investigation Act 2006 Pt 11 …. 2-1, 2-3 s 1(3)(c) …. 1-17 s 1(3)(d) …. 1-17 s 4 …. 1-9 s 16 …. 1-15 s 31(2) …. 1-14 s 35 …. 1-8 s 41(3)(a) …. 1-18 s 42 …. 1-17 s 43(6). …. 1-18 s 128 …. 1-15 s 132(2) …. 1-13 s 137(3) …. 2-1, 2-11 s 137(3)(d) …. 2-11 s 140 …. 1-19 s 154 …. 2-11 s 155(2) …. 2-11 s 294 …. 6-17 s 405 …. 6-17 s 420 …. 2-11 Criminal Code s 27 …. 5-30

Criminal Procedure Act 2004 Pt 5A …. 4-28 s 83(6) …. 4-9 s 85 …. 4-5 s 114 …. 5-1 s 114(2) …. 5-7 s 114(4) …. 5-7 s 118 …. 5-23 s 131(3) …. 4-6 s 132 …. 4-7 s 133(3) …. 4-8, 4-15 s 133(4) …. 4-8, 4-15 s 172 …. 5-1, 5-10 Sch 1 Div 2 cl 2(2) …. 4-8, 4-15 Sch 1 Div 2 cl 2(3) …. 4-8, 4-15 Sch 1 Div 2 cl 5(1) …. 4-5 Sch 1 Div 2 cl 5(2)(a) …. 4-5 Sch 1 Div 2 cls 7-9 …. 4-8, 4-15 Evidence Act 1906 s 8(1)(c) …. 2-6, 2-9 Restraining Order Act 1997 s 62B …. 1-8, 1-10 Sentencing Act 1995 …. 6-2, 6-17, 6-19, 6-20 s 6 …. 6-17 s 6(4) …. 6-2 s 88 …. 6-17 s 140 …. 6-13

Contents

Table of Cases Table of Statutes Chapter 1 Policing: Search, Arrest and Detention Chapter 2 Policing: Right to Silence and Police Interrogation Chapter 3 Commencing Proceedings: Charge and Bail Chapter 4 Indictment, Pleas and Double Jeopardy Chapter 5 Trial Process: Participants and Proof Chapter 6 Appeal Process and Sentencing Index

[page 1]

Chapter 1

Policing: Search, Arrest and Detention

Key Issues 1-1 This chapter focuses on (investigative) police powers and considers the power to enter and search premises as well as the power to arrest persons. It also briefly touches on the issue of detaining a person after arrest while matters including the right to silence during police interviews are explored further in Chapter 2 of this book. The lawful exercise of police power is a very important area of criminal procedure as ultimately unauthorised police conduct may make certain evidence gathered in the process inadmissible in a subsequent trial.

Entry and search prior to arrest 1-2 Both entry and search of private premises constitutes a significant infringement of the occupants’ rights to privacy and liberty. The necessity to afford police powers to enter and search private premises to carry out law enforcement tasks efficiently and the protection of individual privacy interests requires balancing. Ultimately, entering and searching can only be lawful where the actions are permitted by a specific power. Where authorisation for entry and search is missing, a trespass offence is committed and potential evidence seized may be excluded in future criminal proceedings.

Police powers to enter and search have been enshrined in a number of statutes in different Australian jurisdictions. While the requirements for entry and search vary between jurisdictions, many underlying principles are similar. This chapter outlines similarities and differences in statutory law and its requirements in the context of the individual problem questions. Despite the introduction of numerous statutory police powers in Australian jurisdictions relating to entering and searching, common law powers in this area remain important, especially where gaps in statutory law exist. Entry and search of private premises prior to an arrest can occur for a number of different reasons considered in this chapter, including: • assisting a person in need, for example, in the case of violence; • securing evidence; and • entering to arrest a person expected to be in or on the premises. [page 2] The police power to lawfully enter and search is subject to different conditions depending on the reasons for entry and search. When attempting to solve a problem question in this area, it is necessary to identify first whether entry and search are authorised by a warrant or executed without a warrant. Due to the importance of protecting privacy interests of owners and occupiers, entry and search of private premises are generally only lawful where a warrant authorises the conduct. Warrants are issued by the appointed authority in the particular jurisdiction. This is often a justice of the peace or a magistrate who assesses whether the conditions governing entry and search in the particular jurisdiction are met in the individual case prior to issuance of warrant. In the decision-making process the authority considers the necessary conditions for issuance of warrant and thus weighs the colliding interests, namely the individual’s right to privacy and the public interest in effective law enforcement. Bestowing the decision-making power on a third party, namely the

warrant issuing authority, and not vesting it in the acting police officer introduces an additional outside element of control into the process. As a general principal, in most Australian jurisdictions warrants have to be specific to effectively protect individual rights to liberty and privacy. That means that the issuance of general warrants lacking specifics, including, who performs the search, what is the subject and what is the object of the search, is not permitted in most Australian jurisdictions. In South Australia and Tasmania, however, general search warrants subject to certain conditions are nevertheless still permitted as per s 67 of the Summary Offences Act 1953 (SA) and s 60 of the Police Offences Act 1935 (Tas). As pointed out above, the need to protect the privacy rights of individuals generally requires that a warrant exists authorising police conduct. Yet, situations can arise in which entry and search is lawful without warrant. For example, search without warrant is lawful in cases: • in which the owner consents to entry and search; or • where a warrant cannot be practically obtained beforehand due to the circumstances of the case (for example, in the case of violence or urgency). In the above scenarios entry onto and search of private premises is lawful without a warrant as long as the conduct is in line with statutory conditions or in accordance with common law powers.

Arrest with and without warrant 1-3 Another important police power that this chapter discusses is the power to arrest a person. Similar to the police conduct discussed in the context of entry and search, an arrest can also significantly infringe individual rights including the right to liberty. On the other hand the arrest may be necessary to allow for effective law enforcement and community [page 3]

protection. Ultimately, an arrest can only be lawful where it is justified by statutory or common law. Today, most Australian jurisdictions have enacted specific legislation dealing with the police power to arrest persons and its requirements. Yet, common law principles regarding arrest are nevertheless important particularly in areas not regulated by statute. Comparable to the situation of entry and search, an arrest can occur with or without a warrant. As an arrest constitutes a significant infringement of the individual right to liberty, arrests should generally be carried out with a warrant. As explained above, the assessment of the situation by the warrant issuing authority introduces an element of objectivity into the process. Yet, arrests can be lawful without a warrant especially in situations where an offence has just been committed or is being committed depending on the requirements of the particular jurisdiction. The offences that allow for an arrest without warrant as well as the reasons for an arrest also differ between jurisdictions. While under common law arrests can only occur for the purpose of initiating criminal proceedings against an individual and taking them before court, some statutory provisions (see, for example, the extensive provisions in Queensland and New South Wales on arrest without warrant discussed in Question 2) contain an extensive number of reasons as to why an arrest may occur including preserving evidence and questioning a suspect. While an arrest can be carried out through the physical restraint of a person, it is also possible to place a person under arrest through words alone without any physical force. In any event, in most jurisdictions the arrested person must be informed about the grounds for their arrest as soon as this is reasonably practical. The level of force that police are allowed to use to carry out an arrest and overcome potential resistance from a suspect generally has to be reasonable and/or proportionate depending on the jurisdiction. Ultimately, an unlawful arrest may not only result in civil liability for wrongful arrest but may also lead to the inadmissibility of evidence gathered in relation to the arrest during a subsequent criminal trial.

Detention 1-4 Under common law, a person who has been arrested needs to be brought in front of a judicial officer as soon as reasonably practical. Where this is not the case, the detention of the person may become unlawful with the consequence that evidence gathered in the process may not be admissible in a subsequent criminal trial. A number of Australian jurisdictions have introduced statutory provisions allowing the detention of an arrested person for an explicitly stated number of hours for interviewing and investigative purposes prior to their release. Matters concerning police interviews and the right to silence during questioning are discussed in detail in Chapter 2. [page 4]

Reasonable suspicion/reasonable belief 1-5 Legislation in most jurisdiction uses the terms reasonable suspicion (suspicion on reasonable grounds) or reasonable belief (belief on reasonable grounds) as a requirement for the lawful exercise of the respective police powers. The exact meaning of these terms in light of the relevant police power will be discussed in the context of the individual problem questions. 1-6 Before tackling the subsequent questions, please check that you are familiar with the following: ✓ ✓ ✓ ✓ ✓

police powers to enter and search without warrant in emergencies/(family) violence situations; police powers to enter and search without warrant to arrest a person; conditions for obtaining a warrant and lawfully executing a warrant; police powers to arrest with and without warrant; police powers to detain a person after an arrest; and

✓

meaning of ‘reasonable suspicion’ and ‘reasonable belief’ as requirements for different police powers.

Question 1 Bruce Brutal has been married to Helga for 10 years. They have an eight-year-old son, Marvin. Their relationship is characterised by domestic violence with Bruce frequently beating Helga. Bruce is well-known to the local police as they are often called out to the Brutal’s home located at 17 Honeysuckle Place to settle violent altercations. In March 2014, the police were called out 16 times to increasingly violent confrontations at the Brutal’s home. On the last few occasions Helga was severely injured and had to be taken to hospital. Despite their intervention, Helga took Bruce back every time after he apologised to her and promised never to hit her again. Helga refused to take out any protection orders against Bruce. On 17 April 2014 Constable Nathan is on his usual police round through the neighbourhood. He hears a female screaming from inside 17 Honeysuckle Place and notices sounds that suggest someone is being beaten and pushed forcefully. He hears a male voice screaming: ‘This time I am going to kill you for good.’ As Constable Nathan knows about Bruce and Helga’s relationship history and has been to their house many times in the past, he immediately [page 5] suspects that Bruce is beating Helga again and wants to end the violence. He arrives at the door, knocks and screams: ‘This is Constable Nathan. What is going on inside? Open the door. Helga, do you need help?’ There is no answer from inside but Constable Nathan can hear continuous beating and high pitched screams. Suddenly Marvin’s face appears at the upstairs window. He yells down to Constable Nathan: ‘Dad is going to kill mom.’ On hearing this Constable Nathan opens the unlocked front door and rushes inside. He searches the place and finds Helga just in time to stop Bruce from beating her unconscious. With his arrival, Bruce stops the violent attacks on Helga. Still angry and fired up, Bruce tells Constable Nathan to get the hell out of his house. Constable Nathan, however, remains in the premises for another 20 minutes until an ambulance arrives to take Helga, who is badly injured and drifting in and out of consciousness at this stage, and Marvin, who is in shock, to the local hospital. Advise on the following: (i) Was Constable Nathan’s entry and search of 17 Honeysuckle Place to stop the violence lawful? (ii) Was it lawful that Constable Nathan remained in the dwelling for 20 minutes after the domestic violence stopped even when Bruce asked him to leave?

Time allowed: 40 mins

Answer Plan (i)

Lawfulness of entry and search of 17 Honeysuckle Place. • Entry and search based on warrant. • Requirements for warrantless search? – Reasonable suspicion/reasonable belief? – Domestic violence/violence/danger for life? (ii) Lawfulness of remaining in the dwelling until arrival of ambulance. • Reasonable assistance? • Reasonable time?

Answer Guide (i) Lawful entry and search of 17 Honeysuckle Place 1-7 Constable Nathan’s entry and search of 17 Honeysuckle Place would be lawful if the Constable had obtained a warrant to enter the premises or, in the case of no warrant, if his actions were authorised by statutory or common law. The facts of the case do not suggest that Constable Nathan obtained a warrant authorising his entry and search [page 6] of 17 Honeysuckle Place. Rather, he passed the house on his routine walk through the neighbourhood and was alerted to the situation within through screams. He believed he had to act immediately to stop the violence and thus did not apply for and receive a warrant. As no warrant was issued, his actions would be lawful if they were in line with

statutory provisions relating to entry and search of private premises or justified by common law powers.

Requirements for lawful entry in the case of emergency/violence 1-8 The common law recognises that a person who enters premises in the case of necessity to preserve life or property is justified in doing so. This common law principle has been enshrined in various Australian statutes particularly in light of domestic violence. A number of jurisdictions allow for police entry and search of premises where the officer reasonably believes (has reason to believe) domestic violence (or physical injury/attack/imminent threat for life, health or safety) has occurred, is occurring or is imminent in order to prevent violence or further injury. The specific requirements for the respective jurisdiction are enshrined in the following statutes: Crimes Act 1900 (ACT) ss 188 and 190; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 9(1)(b); Domestic and Family Violence Act 2007 (NT) s 84 (if the officer believes a person to be in the premises against which a domestic violence order could be issued);) Police Administration Act (NT) s 126(2A); Justices Act 1959 (Tas) s 106L(1)(b) and note that reasonable suspicion is sufficient for entering in the case of family violence: Family Violence Act 2004 (Tas) s 10; Family Violence Protection Act 2008 (Vic) s 157; in regards to entering in the case of serious violent offences, see Crimes Act 1958 (Vic) s 459A(1)(b). In Western Australia, the Criminal Investigation Act 2006 (WA) explicitly refers to entry to prevent violence in s 35 and states that a police officer who reasonably suspects that an act by a person that involves the use of violence against a person is occurring or is just about to occur may enter the place to prevent such violence. This is further clarified in the context of domestic violence in s 62B of the Restraining Order Act 1997 (WA), which states that where a police officer reasonably suspects that domestic violence occurs they may enter the premises. The situation is similar in Queensland as enshrined in s 609(1)

(b), (2) and (4)(c)(i) of the Police Powers and Responsibilities Act 2000 (Qld). Reasonable suspicion that an imminent threat for a person’s life, health or safety exists is also required in s 3UEA of the Crimes Act 1914 (Cth) in the federal context; however, it is necessary that in addition the entry takes place to prevent a thing that is on the premises from being used in connection with a terrorism offence. While no comparable explicit powers exist in South Australia as such, s 37 of the Intervention Orders (Prevention of Abuse) Act 2009 (SA) [page 7] allows for entry and search where firearms are suspected in cases where an intervention order exists. In addition, South Australia is one of only two Australian jurisdictions that allow for the issuance of general warrants. Section 67 of the Summary Offences Act 1953 (SA) empowers the South Australian Commissioner of Police to issue general warrants that remain in force for six months allowing individual officers to enter into, break open and search any house, building, premises or place where he or she has reasonable cause to suspect that an offence has been recently committed, or is about to be committed.

Meaning of ‘reasonable suspicion’/’reasonable belief’ 1-9 With the exception of South Australia, the above overview of statutory provisions in Australian jurisdictions shows that for Constable Nathan’s entry to be lawful he must have reasonably suspected (suspected on reasonable grounds) or reasonably believed (believed on reasonable ground) that (domestic/family) violence, an attack or threat for life, health, safety had occurred, was occurring or was just about to occur, depending on the requirements of the respective jurisdiction. The question therefore arises as to how ‘belief’ or ‘suspicion’ are defined and whether Constable Nathan’s belief or suspicion was reasonable in this case. Regards the definition of suspicion, the High Court case of George v

Rockett (1990) 170 CLR 104 at 115 held that, ‘The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown’. Hughes v Dempsey (1915) 17 WALR 186 emphasised that: [R]easonable suspicion means that there must be something more than imagination or conjecture. It must be the suspicion of a reasonable man, warranted by facts from which inference can be drawn; but it is something which falls short of legal proof.

In R v Rondo (2001) 126 A Crim R 562 the court clarified that even hearsay can form the basis for a reasonable suspicion. In statutory law, s 4 of the Criminal Investigation Act 2006 (WA) assumes a person to reasonably suspect something: … if he or she personally has grounds at the time for suspecting the thing and those grounds (even if they are subsequently found to be false or non-existent), when judged objectively, are reasonable.

Similarly, Sch 6 of the Police Powers and Responsibilities Act 2000 (Qld) defines reasonable suspicion as a suspicion ‘on grounds that are reasonable in the circumstances’. In comparison to reasonable suspicion, a reasonable belief as defined in George v Rockett (1990) 170 CLR 104 at 116 ‘is an inclination of the mind towards assenting to, rather than rejecting, a proposition’. Reasonable belief therefore constitutes a stricter standard than reasonable suspicion and therefore requires a higher level of certainty. [page 8] Whether Constable Nathan held a reasonable suspicion/reasonable belief depends on the circumstances of the case. Here, the following circumstances could support a reasonable suspicion and even a reasonable belief: • Constable Nathan had been to Helga and Bruce’s house many times in the past and had witnessed an increase in violent attacks on Helga by Bruce over the past month. He knew that in the last number of instances Helga was injured so severely by Bruce that she had to be taken to the hospital.

•

He heard a female voice screaming and noticed sounds related to beating and forceful pushing from inside 17 Honeysuckle Place. • He heard a male voice yelling: ‘This time I am going to kill you for good.’ • He called out for Helga from outside the front door and asked whether she needed any help. He did not receive a response but kept hearing screams and sounds related to forceful beating from inside the house. • Marvin shouted through the window that his father was going to kill his mother. All of the above provide a factual basis that gives rise to a reasonable suspicion as well as to a reasonable belief that a threat for Helga/violence towards Helga was currently occurring inside 17 Honeysuckle Place and that urgent intervention was required to provide assistance to her. Thus in light of the above, it can be argued that Constable Nathan’s entry and search for Helga was lawful even in jurisdictions that require the satisfaction of the stricter standard of reasonable belief that violence or threat was occurring.

(ii) Lawfully remaining in premises until arrival of ambulance 1-10 While Constable Nathan’s entry of 17 Honeysuckle Place and his search for Helga appear lawful due to the reasonable belief/suspicion that violence was occurring, the question arises as to whether remaining in the premises with Helga until the arrival of an ambulance was also lawful particularly given that Bruce asked Constable Nathan to leave. As pointed out above, the common law recognises the right to enter premises in emergencies. Whether this encompasses a right to remain on the premises, however, is less certain. For example, in Kuru v State of New South Wales [2008] HCA 26, a case in which no danger to life or property was evident, the court held that police officers had no special common law (or statutory) justification to remain on the premises after being asked to leave by the occupier. To clarify the situation further, a number of statutes in Australian jurisdictions now explicitly address the question of how long a person can remain in or on the premises they have lawfully entered. In

Queensland, as per s 609(2)(c) of the Police Powers and Responsibilities Act 2000 (Qld), [page 9] it is lawful for the police officer to stay on the premises for the time reasonably necessary to give or arrange for reasonable help to any person at the place. In the Australian Capital Territory, s 188 of the Crimes Act 1900 (ACT) states that a police officer may enter premises and may take the action that is necessary and reasonable to protect life. Section 126(2A)(f) of the Police Administration Act (NT) sets out that where a person has suffered injury the officer may remain in the premises until assistance reasonable to the person in the circumstances has been arranged. Section 9(2) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) enshrines that an officer may only stay on the premises as long as is reasonably necessary in the circumstances. Section 10 of the Family Violence Act 2004 (Tas) allows police officers to stay on the premises for such period that the officer considers reasonably necessary to prevent family violence. In Western Australia s 62B of the Restraining Order Act 1997 (WA) permits a police officer to remain on or in the premises as long as the officer considers necessary to give or arrange such assistance that is reasonable in the circumstances. It is therefore necessary to consider whether it was reasonable for Constable Nathan to remain in the premises for around 20 minutes until an ambulance arrived to take Helga and Marvin to the hospital. The facts of the case state that Helga was severely injured and drifting in and out of consciousness. In addition, Marvin was in shock. At least Helga required urgent medical attention at the hospital for her injuries. Requesting an ambulance for a severely injured person and waiting for its arrival seems reasonable assistance in the circumstances. Therefore, in light of the above statutory provisions Constable Nathan’s stay in the premises appears lawful even after Bruce asked him to leave. In addition, the facts state that Bruce was visibly still angry and fired up.

Therefore, it could also be argued that it was reasonable and necessary for Constable Nathan to remain in the premises until Helga was taken to the hospital to protect Helga from future attacks and preserve her life. Based on the statutory requirements outlined above, it is lawful that Constable Nathan remained on the premises until an ambulance arrived despite the fact that Bruce asked him to leave 17 Honeysuckle Place.

Examiner’s Comments 1-11 The question required an examination of ‘reasonable suspicion’ and ‘reasonable belief’ in the context of entry and search in a (domestic/family) violence situation. It was important to identify the relevant statutory laws relating to entry and search in the case of (family) violence/threat to life in the respective jurisdiction and to apply the law to the facts of the case. A detailed analysis of Constable Nathan’s knowledge as described in the question was necessary. It was also vital to clearly differentiate between the power to enter and search the premises on the one hand and the power to remain in or on the premises after being asked [page 10] to leave by one of the occupants on the other hand. As the facts do not suggest that Helga asked Constable Nathan to enter and stay, particularly as she was drifting in and out of consciousness, it is important not to rely on the tempting assumption that Constable Nathan’s entry and stay are justified on the basis of Helga’s consent as one of the occupiers.

Keep in Mind You should avoid the following common errors:

• • • • • • •

Not understanding clearly what the question asks you to do. Not pointing out the relationship between entry and search authorised by warrant and warrantless powers. Not clearly outlining the statutory requirements for entry and search in the case of violence. Not precisely applying the law to the facts of the case. Not differentiating between entering and searching on the one hand and remaining in the premises on the other hand. Assuming Helga consented to Constable Nathan’s entry, search and stay in the premises. Not providing a separate conclusion for part (i) and part (ii) of the question.

Question 2 On 30 March 2015 around midday Mackie Moneymaker entered the premises of the First National Savings Bank wearing a storm mask and carrying a shotgun. He grabbed Penny Shortbottom who was standing in line inside the bank, dragged her up to the teller and demanded money immediately. In the case of non-compliance he threatened to kill Penny. On receiving $500,000 he panicked and shot both the teller and Penny who died immediately. Afterwards he quickly left the bank. When realising that he was being followed by some pedestrians who had heard the shots in the bank and had seen him take off his storm mask on exiting, he entered an apartment building close to the bank, 55 Doorknock Terrace. The building contained 20 high-end residential units. The pedestrians called the police and provided information about Mackie’s criminal conduct, his appearance and his whereabouts. The first police cars arrived only minutes later at 55 Doorknock Terrace. Senior Sergeant Amaretto, who was in charge of the operation, ordered all available police officers to search the units of 55 Doorknock Terrace immediately to find and arrest Mackie. Earl Grey is the owner and occupier of Unit 5, 55 Doorknock Terrace. The police knocked on his door and stormed into his flat in search of Mackie as soon as he opened the door. [page 11] While the search of the premises was unsuccessful, Mackie was detained a little while later when trying to cross the street behind 55 Doorknock Terrace. Mackie tried to escape his arrest by punching wildly to all sides. One police officer therefore restrained Mackie’s hands forcefully behind his back, while another put handcuffs on him. Mackie

had small bruises from the police officers’ grip. All other arrest procedures were complied with. Mackie was charged and brought in front of a court soon after the arrest. Immediately after Mackie’s arrest Senior Sergeant Amaretto informed all the residents about the recent developments. Earl Grey is outraged about the police conduct and the search of his unit. Advise and provide explanations to Earl on the following matters: (i) He has heard on TV that Australia is no ‘police state’ and thinks that it is necessary for the police to obtain a piece of paper allowing them to search private property. What does Earl Grey mean and was that necessary in this case? (ii) Earl is of the opinion that the police officers should have formally introduced themselves before entering his apartment. He thinks that they should have told him what they were doing and should have politely asked for his consent to come in. He believes that while at least Senior Sergeant Amaretto has shown some manners and provided explanations to him afterwards this can clearly not be sufficient. Is Earl’s view correct? (iii) Earl is concerned about Mackie’s arrest and wants to know whether the police officers were allowed to arrest him without any written authorisation from the justice system. He also does not know whether they were allowed to restrain Mackie in a way that gave him bruises. Time allowed: 60 mins

Answer Plan (i)

Lawfulness of warrantless search. • Lawfulness of entry and search? – Entry and search based on warrant. – Requirements warrantless search? ■ Search to arrest. ■ Urgency. (ii) Execution of search. • Necessity to provide information before entry and search? – Practicality of providing information in this case. – Information as soon as reasonable practical. [page 12] (iii) Lawfulness of arrest without warrant.

•

Arrest without warrant. – Reasonable suspicion/reasonable belief that an offence has been committed. – Required offence. – Lawful purpose. – Reasonable force.

Answer Guide (i) Lawfulness of warrantless search 1-12 Earl Grey is of the opinion that entering and searching his apartment required a ‘piece of paper’. Generally, police officers can only enter and search private premises with a warrant. A warrant is a written authorisation from the relevant authority allowing police officers to enter and search for certain items or persons. As the warrant is issued by a third party, often a justice of the peace or a magistrate depending on the jurisdiction, and not the executing police officer, it instils a degree of objectivity into the warrant process. Therefore, Earl Grey is generally right in believing that entry and search of private premises require authorisation by warrant. In this case the police have not applied for and been issued a warrant. Yet, a warrantless search may nevertheless be lawful where it is permitted by statutory or common law power.

Warrantless search to arrest 1-13 The common law grants police officers power to enter and search premises to arrest a person under several conditions including that they believe on reasonable and probable grounds that the person they are searching for is in the premises. This was discussed, for example, in Lippl v Haines (1989) 18 NSWLR 620, a case dealing with entry prior to a warrantless arrest. In South Australia, s 82 of the Summary Offences Act 1953 highlights that the common law powers regarding arrest shall apply in South Australia in addition to the powers set out in the act suggesting that a police officer may enter the premises

to arrest a person if they believe on reasonable and probable grounds that they are in or on the premises. The right to enter and search to arrest has been enshrined in and partially modified by statutory law in Australian jurisdictions. For example, a number of jurisdictions allow entry to arrest if the police officer believes on reasonable grounds that the person to be arrested is in the premises (and, in some jurisdictions, has committed a certain specified offence). This is enshrined in s 220(2) of the Crimes Act 1900 (ACT), s 10 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 126(2) of the Police Administration Act (NT) (where the person has committed on offence punishable by more than [page 13] six months imprisonment), s 26A of the Criminal Code Act 1924 (Tas) (for the purpose of making a lawful arrest without warrant) and s 459A of the Crimes Act 1958 (Vic) (where the person has committed a serious indictable offence in Victoria). Other jurisdictions, Queensland and Western Australia, only require a reasonable suspicion. Section 21(2) of the Police Powers and Responsibilities Act 2000 (Qld) states that a police officer may enter without a warrant to arrest someone without the consent of the occupier, if they reasonably suspect the person to be arrested to be in the dwelling. The same applies in Western Australia where s 132(2) of the Criminal Investigation Act 2006 (WA) allows a police officer to enter and search premises where they reasonably suspect the person to be. The above overview shows that while some statutory provisions require a reasonable suspicion that the person the police are searching for is in the premises, others call for the higher standard of a reasonable belief. The common law requires not only a belief on reasonable but also probable grounds. Regarding the difference between reasonable

suspicion and belief, although in the context of entering in emergencies/violence situations, refer to Question 1 above. The question arises as to whether the police had a reasonable suspicion/reasonable belief that Mackie was in one of the units of 55 Doorknock Terrace. The facts of the case state that several pedestrians saw Mackie entering the multi-apartment building, 55 Doorknock Terrace, and not exiting. Furthermore, the first police cars arrived at the address only minutes after the phone call by pedestrians suggesting that Mackie could not have gone far and making it probable that he must have taken refuge in one of the apartments. Therefore, the facts of the case seem to satisfy the requirements for a reasonable suspicion as well as a reasonable belief and the common law standard of reasonable and probable grounds for believing that Mackie was still somewhere in the premises of 55 Doorknock Terrace. Also Mackie has likely committed serious offences/indictable offences including two homicide offences. As some jurisdictions allow for entry and search to arrest only in the case of certain more serious offences, this is likely satisfied in this case. Therefore Earl should be advised that while generally searches of private premises require a warrant, in this case entry and search without warrant are justified by statutory and common law power and thus lawful without warrant.

(ii) Execution of search 1-14 Earl Grey believes that prior to entering his premises the police officers should have introduced themselves, provided details for their actions and requested his consent to come in. Earl Grey’s view would be correct if police officers were required to do so under statutory or common law and no exceptions applied. [page 14] The consent of an occupier can make police entry and search of private premises lawful. In this case, however, Earl Grey did not explicitly consent. He opened the door and police entered immediately

in search of Mackie. As pointed out above, however, police had the power to enter and search Earl’s apartment without warrant to arrest Mackie (police power to enter to arrest a person). Therefore they did not have to rely on Earl’s consent to enter in this case. The question arises, however, whether they were under the obligation to introduce themselves and to explain to Earl why they wanted to search his unit prior to entering. Under the common law, entering premises to arrest a person requires making a proper announcement prior to entering, unless the circumstances are exigent. This obligation was discussed, for example, in Lippl v Haines (1989) 18 NSWLR 620. Statutory law in different Australian jurisdictions has partially enshrined and modified this common law requirement. In Western Australia, s 31(2) of the Criminal Investigation Act 2006 (WA) requires an officer to identify himself or herself and to provide information to the occupant unless the officer reasonably suspects that to do so will endanger the purpose of the proposed entry or the effectiveness of any search of the place. In the latter case they must do so as soon as practical after the place is entered. In New South Wales, ss 201 and 202(1) and (2) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) require the police to give reasons for entering and searching as soon as reasonable practical. Also under s 3ZS(1) of the Crimes Act 1914 (Cth) a constable prior to entry must announce that they are authorised to enter and give the person in the premises and opportunity to allow entry, unless immediate entry is required to ensure safety, and that the effective execution of the arrest is not frustrated. The above shows that while a proper introduction may generally be necessary prior to entering and searching, this is not necessarily the case in exigent circumstances. The question therefore arises whether exigent circumstances existed in this case. Here, the police had to act immediately and urgently as only a number of police officers had already arrived at the scene and they needed to search 20 apartments. It can be argued that in this case introducing themselves and explaining the reasons for entering and searching was not practical in the circumstances as it would have given Mackie time to hide or escape. In

addition, Senior Sergeant Amaretto provided the information to owners and occupiers immediately after the arrest. Given the circumstance of the case, this appears to be the first time that providing the information was reasonably practical and could be undertaken without endangering the arrest of Mackie and the safety of the community. As such, it seems that police have complied with the requirements concerning identification and explanations associated with entering. In light of the above, Earl Grey should be advised that due to the particular circumstances of the case the officers were likely not required [page 15] to formally introduce themselves and explain their actions prior to entry and search. Their actions were also lawful without Earl’s consent due to statutory and common law power to enter to arrest a person regardless of the occupant’s consent.

(iii) Lawfulness of arrest 1-15 Earl is unsure whether police officers were allowed to arrest Mackie without any written authorisation from the justice system. He also does not know whether they were allowed to restrain Mackie in a way that gave him bruises. Earl should be advised that generally a warrant should be obtained prior to an arrest. The facts of the case do not state that the police officers did apply for and receive a warrant prior to arresting Mackie. However, a warrantless arrest is lawful if it is authorised by statutory or common law. Statutory law in different Australian jurisdictions sets out that a police arrest without warrant requires a reasonable suspicion (suspicion on reasonable grounds): Crimes Act 1900 (ACT) s 212; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 99; Police Administration Act (NT) s 123; Police Powers and Responsibilities Act 2000 (Qld) s 365; Criminal Investigation Act 2006 (WA) s 128; Summary Offences Act 1953 (SA) s 75/reasonable belief (belief on reasonable grounds); Criminal Code Act 1924 (Tas) s 27(2); Crimes Act

1958 (Vic) ss 458 and 459(1)(a) that the person to be arrested has committed a particular offence. The facts of the case state that Mackie was seen by pedestrians coming out of a bank wearing a storm mask after several shots were fired inside. They phoned the police immediately and indicated to arriving police officers into which building Mackie had gone. This appears sufficient for police to reasonably believe/suspect that Mackie had committed a particular offence. The kind of offences that allows for an arrest without warrant differs between Australian jurisdictions. While some jurisdictions allow arrests without warrants based on any offence (see, for example, s 365(1) of the Police Powers and Responsibilities Act 2000 (Qld)), others require the commission of certain serious offences: see, for example, s 27 of the Criminal Code Act 1924 (Tas). As pointed out above, the offences committed by Mackie include two homicides and are therefore crimes. Thus even in jurisdictions that require a more severe offence to be committed for a warrantless arrest the requirements for an arrest are met. Statutory law in some jurisdictions allows an arrest without warrant simply where there is a reasonable suspicion/reasonable belief that an offence is being committed or has been committed and without any additional requirements (for example, New South Wales, Northern Territory, South Australia and Western Australia in the case of serious offences). Courts have found that the purpose of an arrest, however, must be to commence criminal proceedings and an arrest for any other [page 16] reasons, for example, for questioning the suspect is unlawful. It was found in Williams v R (1986) 161 CLR 278, a case discussing the lawful purpose of detaining a person (at 284–5) that: The power given by the common law, and by statutes in the form of those in force in Tasmania, 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 he may be dealt with according to law. If the arrested

person is detained for any longer period or for any other purpose the detention will be an unlawful infringement of his civil liberties.

In addition to a reasonable belief/reasonable suspicion that an offence has been committed, other jurisdictions set out a number of purposes in statutory law as to why a warrantless arrest can occur (for example, Victoria and the Australian Capital Territory). For example, as per s 212 of the Crimes Act 1900 (ACT), a police officer may make a warrantless arrest if he suspects on reasonable grounds that an offence has been committed and that proceedings by summons against the person would not achieve one or more of the purposes listed in the section including preventing concealment, loss or destruction of evidence and ensuring their appearance before a court. A similar provision exists in s 3W of the Crimes Act 1914 (Cth). A wide range of reasons for arrest without warrant exists in Queensland and New South Wales, including preventing the arrestee from fleeing from a police officer and in Queensland arrest for questioning: see Police Powers and Responsibilities Act 2000 (Qld) s 365(2). In this case, the police arrested Mackie to take him into custody and to commence proceedings against him. Arresting someone to commence proceedings against them is a legitimate purpose for the arrest in all Australian jurisdictions. Finally, the question arises as to whether the force used when arresting Mackie was lawful. As the question explicitly states that all other arrest procedures were complied with, questions including whether Mackie has received notification of the grounds for the arrest do not have to be considered. Generally and depending on the jurisdiction, when making an arrest police can use the degree of force that was reasonably necessary (Crimes Act 1900 (ACT) s 221; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 231; Police Powers and Responsibilities Act 2000 (Qld) ss 615–616; Criminal Code Act 1924 (Tas) s 26; Criminal Investigation Act 2006 (WA) s 16) and/or not disproportionate (Crimes Act 1958 (Vic) s 462A) to make the arrest and to overcome any resistance. Here, Mackie was fighting his arrest and punching wildly to all sides which is why the police officer decided to handcuff him. Regarding the question of when handcuffing a person is reasonable, the case of Leigh v Cole (1853) 6 Cox C 329 at 331–2 found that:

… with respect to handcuffing, the law undoubtedly is, that police officers are not only justified, but they are bound to take all reasonably requisite

[page 17] measures for preventing the escape of those persons they have in custody for the purpose of taking them before the magistrates; but what those reasonable measures are must depend entirely upon circumstances, upon the temper and conduct of the person in custody, on the nature of the charge, and a variety of other circumstances which must present themselves to the mind of any one.

Considering the serious nature of the offences committed, that Mackie was physically fighting his arrest and the safety of arresting police officers, handcuffing Mackie seems a reasonable application of force in the circumstances. Putting on the handcuffs could only be carried out by holding Mackie’s hands behind his back which caused bruises. Yet, as holding his hands was unavoidable to handcuff Mackie, this level of force too seems reasonable in the circumstances. Earl should therefore be advised that Mackie’s arrest was lawful for the above reasons.

Examiner’s Comments 1-16 The question required an examination of the law relating to warrantless entering and searching to arrest a person. In addition, the question dealt with specific aspects of arrests. It was important to identify the relevant statutory provisions and apply them to the problem at hand. In order to attempt the question, it was necessary to understand that the requirements for entry and search to arrest differ from the conditions for entry and search in the case of violence/emergency situations. Regarding the arrest, the question had to be discussed whether handcuffing Mackie and the bruises arising from this action are based on the application of ‘reasonable’ force. It should not be overlooked that the question asked for advice to be given to Earl Grey. Therefore each of the answers had to conclude on how Earl Grey should be advised.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Automatically assuming that entry and search are unlawful simply because no warrant has been issued. • Not realising that the statutory provisions and requirements for entry and search to arrest differ from those for entry and search in emergency/violence situations. • Not applying the relevant law in the jurisdiction in question to the facts of the case in assessing whether the requirements have been met in detail. • Addressing the bruises in the context of ‘reasonable force’ but not addressing the handcuffing of Mackie and the question of whether this was reasonable in this case. [page 18] • •

Not clearly defining reasonable suspicion and reasonable belief in the context of search and arrest. Not providing advice to Earl Grey as a conclusion at the end of parts (i)–(iii).

Question 3 In June/July 2014, Sergeant Bensoni, together with five other police officers including Senior Sergeant Careless, was assigned to carry out surveillance on Damien Drugster. From their surveillance of Damien’s premises at 45 Crescent Place, the police officers were convinced that Damien was involved in the illegal drug trade and that he imported and sold prohibited substances. The police did not suspect that Damien currently kept drugs on the premises. However, they received information from a reliable informant who had frequently worked with them in the past, Seamus Sure, that Damien had a talent for poetry and was a fanatical diary writer. They were told that he kept two diaries at any given time. The police suspected, although Seamus made no mention of this, that

the diaries contained relevant information that would help them establish a link between Damien and the illegal drug trade. They requested a warrant to carry out a search of Damien’s house on Friday 25 July 2014. The warrant application was drafted by Senior Sergeant Careless who was tired and uninspired after a long day at work. He could not remember the exact address of Damien’s house and did not want to look it up. He therefore put ‘third house on the left after the Caltex petrol station on Crescent Place’ on the application. This description, however, was incorrect as the third house after the Caltex petrol station is number 43 and not number 45. Senior Sergeant Careless included the names of the officers involved in the operation in the warrant. Yet, because he was tired he forgot to include Sergeant Bensoni’s name. While he did include in the warrant rather generally that the object of the search were two ‘journals with notes in Damien’s handwriting’ and clarified how they knew about the existence and location of the journals, he did not include how or why the journals could be used as evidence against Damien for the alleged offences. He also did not remember what offences Damien was exactly suspected of committing. He therefore included in the application that Damien was suspected of ‘something to do with drugs and criminal law on various dates in 2014’. In accordance with the relevant processes (including a sworn application by Senior Sergeant Careless), the warrant was granted for the mentioned officers and for the requested location (third house on the left after the Caltex petrol station on Crescent Place) for Friday 25 July 2014. Nobody spotted that Bensoni’s name was missing from the warrant. Yet, on the day of the search the police officers noticed straight away that the property location description was incorrect. Yet, they thought, ‘what is one house number among friends’ and decided to go ahead with [page 19] the search regardless. They waited until 11.30 pm to enter and search because they hoped that this might show the neighbours that police are keeping the neighbourhood safe at all hours. When the operation started Sergeant Bensoni, as the leader of the search, entered 45 Crescent Place and performed the search. The formalities of entry and search on the night, including providing Damien with a copy of the warrant, were observed. The evidence found during the search led police to reasonably believe that Damien had committed a number of serious drug-related offences. They subsequently arrested him and brought him to the police station. As it was Friday night he was not taken before a court until Monday morning when the courts recommenced. During his detention over the weekend he was questioned by police officers and subsequently charged. Advise in relation to the following matters: (i) (ii)

Was the warrant valid? Assume the warrant is valid. Was Sergeant Bensoni’s entry and search of 45 Crescent Place lawful? (iii) Assume Damien’s arrest is lawful. Was it lawful to detain Damien in police custody and question him without taking him before court until Monday morning?

(iv)

Imagine it is 10 pm and the officers are watching Damien’s dwellings. They have not applied for a warrant to enter and search at this stage. They are tipped off by a credible source that a drug exchange will occur at Damien’s place in the next half hour. Can Senior Sergeant Careless request a warrant via telephone or even via text message? Time allowed: 120 mins

Answer Plan (i)

Validity of the search warrant? • Compliance with statutory requirements? • Formalities concerning obtaining warrant, for example, sworn complaint, correct issuing authority — Nothing stated to the contrary. • Reasonable suspicion/reasonable belief that item sought exists and is located on the premises to be searched. • Sufficient demonstration of reasonable suspicion/belief that item will be evidence? • Sufficient description of alleged offence? • Sufficient description of premises to be searched. (ii) Lawful execution of warrant by Sergeant Bensoni? • Entry and search with warrant. – Sergeant Bensoni authorised to search? [page 20] – –

Authorisation to search the premises? Permitted search at night time? — No particular reasons for search at night and no explicit authorisation. (iii) Lawfulness of detention? • Arrest assumed to be lawful. • Lawful purpose of detention? • Delay in taking Damien before court? Depends on jurisdiction. (iv) Obtaining warrant via telephone or SMS?

• •

Statutory provisions on telephone warrant. Depends on jurisdiction. Possible warrant via SMS depending on jurisdiction.

Answer Guide (i) Validity of search warrant 1-17 The warrant authorising entry and search is valid if it complies with the relevant substantial statutory provisions relating to the issuance of search warrants. A warrant which violates relevant statutory conditions may be invalid with the consequence that the evidence may not be admissible in court. In that regard it was found in George v Rockett (1990) 170 CLR 104 at 110–11 that: State and Commonwealth statutes have made many exceptions to the common law position … Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorise the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature’s concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation.

Yet, more recent Queensland case law, Wright v Police Service (Qld) [2002] 2 Qd R 667 has cautioned that it is important that no ‘excessive insistence on correctness of every detail’ develops in regards to warrants in order to allow for effective law enforcement. A similar finding was made in the case of State of New South Wales v Corbett (2007) 230 CLR 606 according to which a minor defect will not invalidate a warrant. Whether a violation of statutory conditions for the issuance of a warrant leads to an overall unlawfulness will therefore likely depend on the severity of the violation of privacy rights and the significance of the search for the public interest in law enforcement. The required conditions for obtaining a warrant differ between Australian jurisdictions. Yet, a large number of Australian jurisdictions require that the following conditions are met. Depending on the jurisdictions, the police officer making the

application for issuance of warrant needs to demonstrate, under oath, that they have [page 21] a reasonable suspicion (reasonable grounds for suspecting) (Crimes Act 1914 (Cth) s 3E; Crimes Act 1900 (ACT) s 194; Police Powers and Responsibilities Act 2000 (Qld) s 151; Search Warrants Act 1997 (Tas) s 5(1); Criminal Investigation Act 2006 (WA) s 42) or that there are reasonable grounds for believing (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 47; Police Administration Act (NT) s 117; Crimes Act 1958 (Vic) s 465) that the items sought are in or on the premises to be searched or will be there within a specified timeframe (usually within 72 hours). Furthermore, in many jurisdictions before a warrant can be issued, it is necessary to provide a description which identifies the specifics of the alleged offence, the facts which show that the items exist and are located at the premises, as well as explanations as to why the items searched are evidentiary material. The same considerations as in Question 1 apply in regards to the definition of reasonable suspicion and reasonable belief. Here, the facts of the case state that Senior Sergeant Careless outlined in the application that he received information about the location of the two journals in Damien’s house from a credible informant, Seamus Sure, who had been a reliable informant to the police in the past. The police officer may rely on appropriate information provided by other persons including informers and tip-offs from members of the public when outlining a reasonable suspicion/reasonable belief. This was discussed, for example, in the UK case of O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 296; 1 All ER 129, which was concerned with an arrest without warrant after a briefing from a superior officer. As there are no indications that Seamus Sure is not a credible informer and given the useful information provided by him in the past, the information provided by Seamus Sure may found the basis

for both reasonable suspicion and reasonable belief for the existence of the journals in Damien’s premises. While Senior Sergeant Carless may have sufficiently outlined reasonable suspicion/reasonable belief that the items are located on the premises, the warrant could be invalid if he had not sufficiently demonstrated reasonable belief/reasonable suspicion that the two journals, if found, could serve as evidence regarding the alleged drug offences. In George v Rockett (1990) 170 CLR 104, a case in which two bundles of pages in handwriting were specified as the object of the search, it was held that the police officer had failed to explain how the bundles, if located through search, would be relevant as evidence for the alleged offences. As per the case (at 117): Where a specific object is identified, the question whether there are reasonable grounds for believing that, if it exists and is found, it will afford evidence as to the commission of an offence is a discrete question to be answered according to the facts set out in the complaint. Where the object is identified by description, the broader and less specific the description, the more difficult it is likely to be to satisfy the requirement of reasonable

[page 22] grounds for believing that a thing answering the description will afford evidence of the commission of an offence.

In George v Rockett the search warrant application was considered inadequate. The facts of this case are similar to the facts in George v Rockett. Senior Sergeant Careless stated that they were searching for ‘journals with notes in Damien’s handwriting’ which is a broad description not clearly outlining a nexus between the object of the search and its evidential status. Applying the findings in George v Rockett to this case suggests that the search warrant could be inadequate and thus invalid in this case due to the absence of any explanations on reasonable belief/suspicion of whether the journals, if found, would be relevant evidence for the alleged drug offence. Furthermore, the warrant could be invalid due to the vague and limited description of the alleged offences. In statutory law, s 156(1)(b) of the Police Powers and Responsibilities Act 2000 (Qld) and s 1(3)(c)

and (d) of the Criminal Investigation Act 2006 (WA) require specific descriptions of alleged offences in the warrant. In that regard Queensland courts have held that the bare specification of the offence is insufficient to satisfy the legislative requirements: see Wright v Queensland Police Service [2002] QSC 046 at [40]. According to New South Wales case law, the offence needs to be included in the warrant regardless of whether statutory law explicitly contains such a requirement: see Douglas v Blackler [2001] NSWSC 901. While a description of the alleged offence is necessary, it has been held that the description of the offence in a search warrant need not be made with the precision of an indictment: see Beneficial Finance Corporation v Commissioner of Australian Federal Police [1991] 31 FCR 523 at 524. This is the case as the police officer will often not know the details of the offence, yet, and may be carrying out the search to investigate the details further. In this case, Senior Sergeant Careless’ description, however, does not appear to satisfy the requirements of describing the alleged offence. His description is extremely vague and does not even mention a particular offence. The only thing the application does mention is that the offence has ‘something to do with drugs and criminal law’. In addition no approximate dates are given as to when the offences were allegedly committed. The application simply refers to various dates in 2014. The description of the offences as well as the lack of dates when the offences were allegedly committed makes the description imprecise. The vagueness in regards to the alleged offence suggests that Senior Sergeant Careless’ application overall does not demonstrate reasonable belief or suspicion that a particular offence has been committed. Another reason why the warrant could be invalid is related to the description of the property to be searched. The application does not contain a house number but describes the premises as the ‘third house on the left after the Caltex petrol station on Crescent Place’. The question therefore arises as to whether this description is sufficient. The reasons [page 23]

why the premises must be sufficiently identifiable include that the officer undertaking the search must know where to search and to avoid searching the wrong premises. The facts of the case state that Senior Sergeant Careless described the house as the third house left after the Caltex petrol station on Crescent Place. While it may have been preferable to use house numbering to clarify what premises are to be searched, the house can nevertheless be identified with the description provided. It is thus unlikely that the search warrant would be invalid on this basis alone. That the police searched the wrong house is not a question of validity of the warrant but should be addressed when discussing the lawfulness of its execution. In summary, it seems likely that the search warrant will be found invalid as it does not sufficiently specify the alleged criminal offences and fails to sufficiently explain what evidential value the object of the search has for the alleged drug offences. Both of these violations do not appear to be only minor defects of the warrant, thus likely rendering it invalid.

(ii) Lawfulness of execution of warrant by Sergeant Bensoni 1-18 The question assumes that the search warrant itself is valid and focuses on its execution. The question needs to be addressed as to whether Sergeant Bensoni’s entry and search of 45 Crescent Place at 11.30 pm was authorised by the warrant. The facts of the case state that the police obtained a warrant to enter and search premises. Yet, Sergeant Bensoni’s name was not included in the warrant. While a number of officers were explicitly named and the warrant was thus not addressed to all officers in the police force in general, his name was missing due to on oversight of Senior Sergeant Careless. Therefore the question has to be addressed whether Sergeant Bensoni was authorised to carry out the search of the premises. R v Stankovich (2004) 149 A Crim R 88, a case dealing with the lawfulness of a car search based on a warrant from which the acting officer’s name was missing due to an unintentional oversight, held that the search conducted by an officer not named in the warrant was an unauthorised search. Also statutory provisions in different Australian jurisdictions set

out that the member of the police force carrying out the search must be named in the warrant: see Crimes Act 1914 (Cth) s 3E(5)(d); Crimes Act 1900 (ACT) s 194(5)(d); Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 62(1)(a); Police Administration Act (NT) s 117; Summary Offences Act 1953 (SA) s 67; Search Warrants Act 1997 (Tas) s 5; Crimes Act 1958 (Vic) s 465(1); Criminal Investigation Act 2006 (WA) s 41(3)(a). The facts of the case at hand are similar to Stankovich. Sergeant Bensoni entered and searched the premises while not being named in the warrant due to Senior Sergeant Careless’ oversight. This suggests that in this case the search by Sergeant Bensoni is likely not authorised by the warrant and thus not lawful. [page 24] Additionally, Sergeant Bensoni’s actions could be unlawful if he was not authorised to search 45 Crescent Place. In the UK case of R v Atkinson [1976] Crim LR 307 police officers were authorised by warrant to search a specific apartment but realised they had made a mistake with the apartment number on the warrant and subsequently searched another apartment not named in the warrant. As this was a breach of the warrant conditions the court held their search to be unlawful. Here, the police officers, including Sergeant Bensoni, realised that they had received a warrant to search the third house on the left after the Caltex petrol station while 45 Crescent Place was the fourth house on the left after the Caltex petrol station. As they went ahead with the search regardless thinking ‘what is one house among friends’ their search of the premises is not authorised by the warrant and thus likely unlawful. Sergeant Bensoni’s conduct could also be unlawful as he entered and searched the house at 11.30 pm and thus at night-time. While the warrant itself remained silent on when entry and search can be carried out it has been traditionally assumed under common law that warrants should not be executed at night. In South Australia, however, statutory provisions relating to general warrants set out that a police officer can

search at any time of the day or night: Summary Offences Act 1953 (SA) s 67(4). In comparison, s 72 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) and s 156 of the Police Powers and Responsibilities Act 2000 (Qld) state that a warrant may be executed during the day but not at night unless this is particularly authorised by the warrant. In Western Australia the search can only take place between 6 am and 9 pm, unless the safety of persons involved would otherwise be endangered or the effectiveness of the search jeopardised: Criminal Investigation Act 2006 (WA) s 43(6). As no particular reasons exist in this case for conducting the search at night but for demonstrating to the neighbours that the police is protecting them at all hours and no specification in the warrant authorises a search at night, the search conducted at 11.30 pm does not appear authorised by the warrant and may thus not be lawful depending on the statutory requirements in the respective jurisdiction. Overall, Sergeant Bensoni’s actions, namely entry and search, are likely not authorised by the warrant due to the absence of his name from the warrant, searching premises not authorised in the warrant and due to searching premises at night time without specific reason or authorisation.

(iii) Lawfulness of detention 1-19 The question assumes that the arrest was lawful and asks whether the subsequent weekend detention until the courts recommenced on Monday morning was also lawful. Under common law, an arrested person must be brought before a court as soon as reasonable practicable, as the detention may otherwise become unlawful. For case law see, for example, Michaels v R (1995) 184 CLR 117 and Williams v R (1986) 161 CLR 278. Damien was arrested late on [page 25] Friday night at around 11.30 pm which is outside of court hours. He

was not brought before court until Monday morning when courts reopened. This gives rise to the question of whether it was lawful to detain Damien over the weekend during which he was also questioned. A number of Australian jurisdictions have enacted statutory provisions enshrining the maximum amount of time that a person may be detained for questioning. The exact times vary between jurisdictions. The maximum investigation period is four hours in New South Wales (Law Enforcement (Powers and Responsibilities) Act 2002 s 115) and in South Australia (Summary Offences Act 1953 s 78); six hours in Western Australia (Criminal Investigation Act 2006 s 140), eight hours in Queensland (four hours on, four hours off: Police Powers and Responsibilities Act 2000 s 403). No maximum limits apply in the Northern Territory (Police Administration Act s 137), Tasmania (Criminal Law (Detention and Interrogation) Act 1995 s 4) and Victoria (Crimes Act 1958 s 464A). Damien was detained by police much longer than permitted by some of the statutes as he spent the whole weekend in detention. It needs to be noted, however, that he was not arrested and detained for questioning purposes alone. Rather he was arrested with the intention to bring him before the court and to charge him. The question is therefore whether Damien was brought before a court as soon as it was reasonably practicable. In Bell v R (1994) 77 A Crim R 213 at 217 it was found that: … the question of reasonable practicability is not to be concluded solely by reference to ordinary weekday working hours. In terms of the way in which it deals with liberty of the subject, the justice system is not closed for business on Sundays. The question of reasonable practicability needs to be related to the administrative arrangements that exist from time to time in connection with persons who are made available to the police to deal with the issues that can be involved in granting or declining bail.

Some Australian cities have set up on call magistrates’ services that can be contacted for bail matters on weekends. Therefore depending on the arrangements in the particular location in which Damien was arrested it may have been reasonably practical to contact a magistrate on call or an after-hours court house and bring Damien before them over the weekend. The lawfulness of Damien’s detention hence ultimately depends on whether it would have been reasonably

practicable to bring him before a judicial officer sooner than Monday morning.

(iv) Warrant via telephone or SMS 1-20 Senior Sergeant Carless could apply for a warrant via telephone or other means of telecommunication if this was permitted by law. A number of Australian jurisdictions allow for the request of a warrant via telephone in cases where an application in a different form is not practical. For example, s 3R of the Crimes Act 1914 (Cth), s 205 of the Crimes Act 1900 (ACT), s 61 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 118 of the Police Administration Act (NT) and s 800 of the Police Powers and Responsibilities Act 2000 (Qld) [page 26] state that if a police officer cannot make an application for a warrant in person they can do so by telephone. The possibility was introduced to accommodate situations like the one in question where police officers have to act fast within time constraints and would endanger the purpose of the particular operation if they were required to apply for a warrant in person first. While requesting a warrant via telephone is possible in a large number of jurisdictions, requesting a warrant per text message as such is not explicitly permitted by statutory law. Yet, it needs to be pointed out that s 205(1) of the Crimes Act 1900 (ACT) and s 3R of the Crimes Act 1914 (Cth), for example, allow for making an application via ‘other electronic means’ which might therefore include text messages. Sections 205(2) and 3R(2) subsequently clarify that voice communication may be required where practical. Depending on the jurisdiction, Senior Sergeant Careless may be able to apply for a warrant via telephone and possibly even via text message.

Examiner’s Comments 1-21 The question required an extensive examination of the law of entry and search with a warrant as well as detention of a person after arrest. The problem question was very detailed and thus required meticulous time management and structuring skills from students. It was important to clearly differentiate between matters relating to the validity of the warrant itself (part (i)) and questions relating to how the warrant was executed by the acting officer (part (ii)). It was also important to see that part (ii) assumed the warrant was valid and focused on problems associated with executing the search. Similarly, it was necessary to see that for part (iii) the arrest was assumed lawful and the question focused merely on the weekend detention. The last part (part (iv)) made it necessary to identify statutory provisions relating to search warrants and application via modern technologies, such as telephone and text message, in individual jurisdictions.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Having poor time management and structuring skills. • Not considering in detail whether Damien could be detained at the police station over the course of the weekend. • Not precisely identifying the relevant law in the jurisdiction in question and not applying the relevant law to the facts of the case. • Not outlining the requirements for obtaining a warrant. • Not pointing out that there are no particular reasons why the premises had to be searched at night. • Not differentiating clearly between validity of the warrant and lawfulness of its execution.

[page 27]

Chapter 2

Policing: Right to Silence and Police Interrogation

Key Issues 2-1 All Australian jurisdictions have legislated to regulate the conduct of police interrogations: Crimes Act 1914 (Cth) s 23A–23W; Criminal Procedure Act 1986 (NSW) s 281 and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 122–131; Police Administration Act 1978 (NT) ss 140–142; Police Powers and Responsibilities Act 2000 (Qld) Ch 15; Summary Offences Act 1953 (SA) s 79A; Criminal Law (Detention and Interrogation) Act 1995 (Tas) ss 5–9; Evidence Act 2001 (Tas) ss 85A and 139; Crimes Act 1958 (Vic) ss 464A–464H; Criminal Investigation Act 2006 (WA) Pt 11. An important component of police interrogations are safeguards to ensure the rights of and fairness to persons questioned for indictable offences. Police are required to inform an accused of his or her right to silence. See, for example, s 431 of the Police Powers and Responsibilities Act 2000 (Qld), which requires that a caution be given prior to a person being questioned and further requires that police ensure that the person understands the caution given. Any lack of understanding will then trigger the right to an interpreter: s 433. A suspect also has the right to communicate with a friend, relative or lawyer and ask them to be present during questioning: s 418. The

questioning must, if practicable, be electronically recorded: s 436. Nevertheless, even if the requirements for the recording of questioning are not met, the evidence may still be admitted if it would be in the interests of justice to do so: s 439. If the suspect is Aboriginal or a Torres Strait Islander, then particular arrangements have to be satisfied in relation to a lawyer being present and the support person, unless given the person’s level of education and understanding he or she is not at a disadvantage in comparison with members of the Australian community generally: s 420. Not all Australian jurisdictions have specific provisions dealing with indigenous people, such as Western Australia, which relies on a general provision under s 137(3) of the Criminal Investigation Act 2006 (WA): The arrested person is entitled — (a) to any necessary medical treatment; and

[page 28] (b) to a reasonable degree of privacy from the mass media; and (c) to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and (d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.

In addition, the Anunga Rules as outlined in R v Anunga (1976) 11 ALR 412 would also apply ‘when an Aboriginal person is being interrogated as a suspect’. The right to silence has two limbs: (1) the right to remain silent in the face of police questioning or pre-trial silence; and (2) the right to stay silent at trial. The link between the two limbs is the prohibition (except in New South Wales) of drawing any adverse inference at trial from the exercise of the right to silence. The distinction at common law between the right to silence before trial and the prohibition on drawing any adverse inference at trial is explained in Petty v Maiden (1991) 173 CLR 95 at 99, which finds expression in s 89(1) of the Evidence Act 1995 (Cth):

In a criminal proceeding, an inference unfavourable to a party must not be drawn from evidence that the party or another person failed or refused: (a) to answer one or more questions; or (b) to respond to a representation; put or made to the party or other person by an investigating official who at that time was performing functions in connection with the investigation of the commission, or possible commission, of an offence.

In 2013, New South Wales legislated to alter the right to silence in some cases by inserting s 89A Evidence of Silence in Criminal Proceedings for Serious Indicatable Offences into the Evidence Act 1995 (NSW). Section 89A deals with official questioning in relation to the offence charged, and permits unfavourable inferences to be drawn from failure to mention a fact that the defendant later relied on in his or her defence of the charge and could reasonably have been expected to mention in the circumstances existing at the time. It should be stressed that such unfavourable inferences are entirely separate from inferences drawn from a decision to remain silent at trial. As to the right to silence at trial, the leading authority is Azzopardi v R (2001) 205 CLR 50 at 64 [34] where Gaudron, Gummow, Kirby and Hayne JJ held: [T]he fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt.

The principle stated in Azzopardi is reflected in s 20(2) of the Evidence Act 1995 (Cth): [page 29] The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

Azzopardi clarified previous High Court authority and confined a Weissensteiner direction (Weissensteiner v R (1993) 178 CLR 217) to

exceptional cases, as explained by Wilson J in R v WAF & SBN [2009] QCA 144 at [45]: In rare and exceptional cases, where evidence is capable of explanation only by disclosure of additional facts known only to the defendant, it may be proper to comment on the defendant’s failure to give evidence. But it is not proper to do so merely because the defendant has failed to contradict some aspect of the case for the prosecution, or to fill a gap in the prosecution evidence.

Where a trial judge has given a Weissensteiner direction and directed the jury that an inference of guilt ‘may be more safely drawn from the proven facts when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge’ in circumstances that are not exceptional, then an appellate court will quash the conviction as in R v Moran [1998] VSCA 64 at [29] per Kenny JA: The only evidence against the applicants was, in this case, the conversation of 6 April 1993. It was a conversation of uncertain significance and pregnant with possibilities, each possibility involving illicit conduct but not necessarily the conduct alleged. The deficiencies in the Crown case were, it seems to me, sufficient to explain the applicants’ remaining silent. This is not a case in which the applicants’ failure to give evidence permitted the jury to be satisfied that the Crown had proved its case against them beyond reasonable doubt.

In R v DAH [2004] QCA 419 at [11], McPherson JA described as exemplary the trial judge’s directions below on the onus of proof where the accused has exercised his or her right to silence at trial: In this case the accused man has chosen not to give evidence. One consequence of the rule that the onus of proof rests on the prosecution is that an accused person is not under any legal obligation to give evidence. While you have not heard the accused man deny from the witness box that he committed either offence, the fact he has not given evidence in his trial does not by itself support an inference against him. The rule you have to apply is that no adverse inference should be drawn against him because he decided not to give evidence. It is a choice he is permitted to make by law. Equally, the fact that he chose not to give evidence does not strengthen the case, or supply additional proof of the case against him.

Evidence obtained during police interrogation, such as a confession or an admission, may be held to be inadmissible by a court because: (1) the evidence was not voluntarily given in the exercise of free choice; and (2) in the exercise of judicial discretion. On the nature of voluntariness, in R v Lee (1950) 82 CLR 133 at 144 the High Court set out the two common law rules:

[page 30] These rules, stated in abbreviated form, are — (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.

Judicial discretion to exclude evidence can be classified under three headings: (1) the unfairness discretion; or (2) the public policy discretion; or (3) the Christie discretion (after R v Christie [1914] AC 545, where the prejudicial impact of the evidence is greater than its probative value). For the unfairness discretion, in R v Swaffield (1998) 192 CLR 159 at 197 [78] Toohey, Gaudron and Gummow JJ noted that the essential purpose of the discretion was the protection of the rights of the accused: Unreliability is an important aspect of the unfairness discretion but it is not exclusive … the 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.

For the public policy discretion, Barwick CJ in R v Ireland (1970) 126 CLR 321 at 335 identified the competing public requirements: Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion.

The public policy discretion is founded on the ‘deliberate or reckless disregard of the law by those whose duty it is to enforce it’: Bunning v Cross (1978) 141 CLR 54 at 78. 2-2 Before tackling the following questions, please check that you are familiar with the following: ✓

nature of the safeguards to protect the rights of suspects during

✓ ✓ ✓

police interrogation; meaning of the ‘right to silence’, and any jurisdictional differences in the drawing of unfavourable inferences; particular requirements that apply to Aboriginal suspects; and criteria under which evidence obtained under police interrogation may be deemed inadmissible by a court. [page 31]

Question 1 George, an unemployed 21-year-old male, had previously come to the attention of the police as a petty thief who preyed on elderly women living alone, stealing their handbags and any portable items of value he could find in their homes in order to feed his drug habit. After a string of break-ins, focused on Mermaid Street, the police sought out several persons known to them, including George who the police found drinking in one of his known haunts. The police told George they were investigating a series of thefts and asked him to accompany them to the police station for questioning. George nodded his consent, but was very unsteady on his feet and had to be assisted into the police car by Constable Druitt. On the journey in the car, Druitt’s police partner, Constable Lansbury, asked George if he had been in Mermaid Street recently. George shrugged his shoulders. Lansbury prodded George in the chest and repeated his question. George was somewhat intimidated by being prodded and mumbled that he might have been in Mermaid Street. Lansbury then asked George if he had broken into any of the houses in Mermaid Street. George again mumbled he might have, before falling asleep. When the police car arrived at the police station at 9.30 pm, George was immediately taken to an interview room where he was interrogated by Constables Lansbury and Druitt, and told he was under arrest on suspicion of breaking into a number of houses in Mermaid Street. George complained that he was too tired to answer any questions and needed to sleep. Lansbury said he could not sleep until he had answered some questions. George kept repeating that he was too tired. Then Lansbury said to George: ‘It would be better for you if you told us the truth. If you tell us all you know, the Magistrate will go easier on you.’ George sat silent for a while and then asked for a cup of coffee. Lansbury told George he could have his coffee after he told the truth. When George shook his head, the two policemen left the room and did not return for two hours by which time it was midnight. Lansbury and Druitt woke George up and offered him a steaming hot cup of coffee if he would answer their questions. George could not resist the coffee and proceeded to

admit to breaking into three houses in Mermaid Street and taking cash, jewellery and watches. After George had admitted the thefts, Druitt cautioned him. Lansbury then turned on the electronic recording device and told George to repeat his admissions for the benefit of the tape. George said he wanted a lawyer present, but Lansbury said it was far too late at 1.00 am to find a lawyer, and in any event a lawyer was not necessary as he had already admitted to the crimes. Still George hesitated until Lansbury said the taping would be completed very quickly and then George could go to sleep in a comfortable bed in the police cells. George, who was [page 32] exhausted, reluctantly agreed and confessed to the break-ins and thefts on tape, finally getting to bed at 2.00 am. Assuming George’s confession is disputed, on what grounds could George’s defence counsel argue that the evidence of the confession on the tape should be found to be inadmissible? Who bears the onus of proof? Time allowed: 40 mins

Answer Plan There are two main grounds under which George’s defence counsel could argue the ‘confession’ evidence should be excluded: (i) Procedural breaches. • Failure to caution George in the police car and at the police station. • Failure to allow George to rest and recover before questioning. • Failure to allow George to have access to a lawyer. • Failure to record the interview from the outset. (ii) Admissibility of the evidence. • The voluntariness of the confession: the prodding in the car; the inducement to tell the truth; and the conditional offer of a cup of coffee. • Judicial discretion. – Unfairness. – Public policy. The second issue is the onus of proof and which party, the Crown or

the defence, bears the onus.

Answer (i) Procedural breaches 2-3 The procedural breaches are common to all Australian jurisdictions as similar legislation has been enacted to regulate the conduct of police interrogations across Australia: Crimes Act 1914 (Cth) ss 23A–23W; Criminal Procedure Act 1986 (NSW) s 281; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ss 122– 131; Police Administration Act 1978 (NT) ss 140–142; Police Powers and Responsibilities Act 2000 (Qld) Ch 15; Summary Offences Act 1953 (SA) s 79A; Criminal Law (Detention and Interrogation) Act 1995 (Tas) ss 5–9; Evidence Act 2001 (Tas) ss 85A and 139; Crimes Act 1958 (Vic) ss 464A–464H; Criminal Investigation Act 2006 (WA) Pt 11. This part of the answer will focus on Queensland. Apart from the particular sections identified in the Queensland legislation, which should [page 33] be substituted for the student’s own jurisdiction, the analysis applies to all Australian jurisdictions. The starting point chronologically is the failure of the police to caution George that he was not obliged to say anything, either in the police car or at the police station. Under s 431(1) of the Police Powers and Responsibilities Act 2000 (Qld), ‘a police officer must, before a relevant person is questioned, caution the person in the way required under the responsibilities code’. The form of the caution is found in s 26(1) of Sch 9 of the Police Powers and Responsibilities Regulation 2012 (Qld): 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 or make any statement

unless you wish to do. However, if you do say something or make a statement, it may later be used as evidence. Do you understand?

Clearly, George was not informed of his right to remain silent until after George had admitted the thefts. On its own, a failure to caution a suspect will not lead a judge to exclude the confessional evidence using the discretion to exclude evidence for unfairness. See, for example, Swaffield v R (1996) 88 A Crim R 98 at 102 where Pincus JA stated: ‘We were referred to no recent decision in which a confession was excluded merely on the ground of absence of a caution’ (citing Stapleton v R (1952) 86 CLR 358 at 375–6 in support). However, if there were additional factors present such as the accused was an especially vulnerable interviewee, or there was other illegal or improper conduct such as the person being refused access to a lawyer, or depriving the person of sleep or holding the person too long, then this could enliven the discretion to exclude the evidence on the ground that the evidence was obtained illegally. This is the situation under ss 138 and 139 of the uniform evidence legislation, which applies in the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory, and where s 138(1) also places the burden on the Crown to persuade the judge to admit evidence obtained illegally or improperly: Evidence that was obtained: (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

In determining the balancing act under s 138(1), a non-exclusive list of factors that the court may take into account are stated in s 138(3), among which include the probative value of the evidence; the importance of the evidence in the proceeding; the nature of the relevant offence; the gravity of the impropriety or contravention; and whether the impropriety or contravention was deliberate or reckless. [page 34]

This list reflects five factors identified by Stephen and Aickin JJ in Bunning v Cross (1978) 141 CLR 54 at 78–80, as relevant in determining whether illegally obtained evidence should be admitted: 1. whether a deliberate disregard for the law was involved; 2. whether the nature of the illegality affects the cogency of the evidence so obtained; 3. the ease with which the law might have been complied with in procuring the evidence in question; 4. the nature of the offence charged; and 5. the intent of the legislation. Here, on the facts, it would appear that George’s confession is the only evidence linking George to the thefts, while the contraventions were deliberate. The contraventions also included a failure to allow George access to a lawyer, and a failure to allow George to sleep and recover prior to questioning. The intent of the legislation is to prevent this type of police behaviour. The nature of the offence, theft, is common and was not accompanied with violence. Under s 418(1) of the Police Powers and Responsibilities Act 2000 (Qld), a suspected person has a right to communicate with a friend, relative or lawyer. Essentially, before a police officer starts to question a suspect, the police officer must inform the person that he or she may talk to a friend or relative and ask them to be present during questioning, and talk to a lawyer and arrange for the lawyer to be present during questioning. Importantly, under s 418(2) ‘the police officer must delay the questioning for a reasonable time to allow the person to telephone or speak to a person mentioned in subsection (1)’. Additionally, under s 423 Questioning of Intoxicated Persons, if the suspect is apparently under the influence of liquor or a drug, questioning must be delayed: … until the police officer is reasonably satisfied the influence of the liquor or drug no longer affects the person’s ability to understand his or her rights and to decide whether or not to answer questions.

Again, on the facts, it would appear that neither s 419 nor s 423 were complied with by the police, which, in addition to the failure to give a caution under s 431, would likely trigger judicial discretion to exclude

George’s confessional evidence under the public policy discretion on the ground that the evidence was obtained illegally. Finally, there is the question of the failure to record George’s initial admission to the thefts after taking the cup of coffee and before being cautioned. Under s 436 of the Police Powers and Responsibilities Act 2000 (Qld) the questioning must, if practicable, be electronically recorded, and under s 436(3): … if the person makes a confession or admission to a police officer during the questioning, the confession or admission is admissible in evidence against the person in a proceeding only if it is recorded.

[page 35] This exclusion is subject to s 439 which allows a court to admit the evidence even though there has been non-compliance with s 436 if ‘the court is satisfied, in the special circumstances of the case, admission of the evidence would be in the interests of justice’. Here, it was obviously practicable to record George’s admission the first time he admitted to the thefts as George repeated his admission for the benefit of the tape. Judicial assessment of the ‘interests of justice’ necessarily involves the exercise of judicial discretion and consideration of whether George’s confession was voluntary.

(ii) Admissibility of evidence 2-4 The procedural breaches may well be sufficient to cause George’s confessional evidence to be excluded. However, other actions taken by Lansbury and Druitt also militate in favour of exclusion of the evidence on the grounds that: (a) the confession was involuntary; and (b) it would be both unfair and contrary to public policy to admit the confessional evidence. On the nature of voluntariness, in R v Lee (1950) 82 CLR 133 at 144 the High Court set out the two common law rules: These rules, stated in abbreviated form, are — (1) that such a statement may not be admitted in evidence unless it is shown to have been voluntarily made in the sense that it

has been made in the exercise of free choice and not because the will of the accused has been overborne or his statement made as the result of duress, intimidation, persistent importunity or sustained or undue insistence or pressure, and (2) that such a statement is not voluntary if it is preceded by an inducement, such as a threat or promise, held out by a person in authority, unless the inducement is shown to have been removed.

Note that the Crown has the burden on the balance of probabilities of satisfying the court that the mandatory requirement of voluntariness has been satisfied: Basto v R (1954) 91 CLR 628 at 635–6. The common law position on voluntariness is buttressed by statute, as exampled by s 10 of the Criminal Law Amendment Act 1894 (Qld): No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.

Section 10 above is reinforced by s 416 of the Police Powers and Responsibilities Act 2000 (Qld) which states: ‘A police officer who is questioning a relevant person must not obtain a confession by threat or promise.’ To come within s 10, the evidence must be induced by a threat or promise, and has its origin in the Victorian equivalent of s 10 which was discussed in R v Cornelius (1936) 55 CLR 235 at 245 per Dixon, Evatt and McTiernan JJ: At common law no confession is admissible in evidence unless it is a free and voluntary statement. If it is made as a result of violence, intimidation, or of

[page 36] fear, it is not voluntary. It is not voluntary if it is given in consequence of a threat made, or a promise of advantage given, in relation to the charge by a person in authority, as, for instance, an officer of police … The promise or threat might be implied and need not be express.

Thus, it can be seen that s 10 does not apply to the use of violence or force, and recourse must be had to the common law to exclude such a confession for lack of voluntariness. We are told that ‘Lansbury prodded George in the chest and … George was somewhat intimidated by being prodded’. Such prodding would be unlikely to fall within a definition of violence or force, although it would be taken into account in all the circumstances.

Of more significance is the statement made by Lansbury to George: ‘It would be better for you if you told us the truth. If you tell us all you know, the Magistrate will go easier on you.’ For promises, it was held in R v Bodsworth [1968] 2 NSWR 132 at 139 that moral exhortation to tell the truth is not an inducement: Merely to urge a person on moral or religious grounds to ‘speak out’ or ‘tell the truth’ is not likely to cause him to tell untruths, and it is difficult to see on what principle to be applied in today’s detection of crime a statement which follows such exhortation should be excluded.

Moral exhortation can be distinguished from remarks that made a person believe it would be in his or her interests to speak to the police when they asked him or her questions. In Director of Public Prosecutions v Toomalatai (2006) 163 A Crim R 192 at 200 [37] Bell J held that ‘[t]his seems to me to amount to an inducement that he would be treated more favourably by the police if he told them what he knew’. Thus (at [38]) such advice from a person in authority amounted to an inducement and made the confession involuntary: It is one thing to advise young persons about to be interviewed that they have the right to remain silent and, if they are to say anything at all, they should tell the police the truth. This may constitute no inducement. It is quite another to advise young persons it would be better for them to tell the police the truth when this advice carries the express or implied inducement that doing so may bring more favourable treatment or the avoidance of perceived harm.

Lansbury’s statement that the magistrate would go easier on George if he told the truth goes beyond moral exhortation, and constitutes an inducement as identified by Bell J in Toomalatai. Such an inducement is reinforced by the blatant use of a cup of coffee to persuade George to answer questions, when the two policemen knew he was tired and just wanted to sleep. The test to be applied is the effect of police conduct in all the circumstances of the case on the will of the person making the confessional statement, as Brennan J pointed out in Collins v R (1980) 31 ALR 257 at 307: The conduct of police before and during an interrogation fashions the circumstances in which confessions are made and it is necessary to refer

[page 37] to those circumstances in determining whether a confession is voluntary. The principle, focusing upon the will of the person confessing, must be applied according to the age, background and psychological condition of each confessionalist and the circumstances in which the confession is made. Voluntariness is not an issue to be determined by reference to some hypothetical standard: it requires a careful assessment of the effect of the actual circumstances of a case upon the will of the particular accused.

Given the onus is on the Crown to prove the confession was voluntary (Basto v R), on the facts, it is most unlikely that the Crown would be able to satisfy the court on the balance of probabilities that George’s confession was voluntary. By contrast, in seeking to persuade a court to exercise either the unfairness discretion or the public policy discretion, the onus is on the defence: R v Lee (1950) 82 CLR 133. In terms of exercising the unfairness discretion to exclude George’s confessional evidence, as Wilson, Dawson and Toohey JJ pointed out in Van Den Meer v R (1988) 35 A Crim R 232 at 248, the focus of the unfairness discretion is not on whether the accused was treated unfairly, but whether the manner in which the confession was obtained makes it unfair to use the confession against the accused: In considering whether a confessional statement should be excluded, the question is not whether the police have acted unfairly; the question is whether it would be unfair to the accused to use his statement against him: The King v Lee (1950) 82 CLR 133, at 154; Cleland v The Queen (1982) 151 CLR 1, at 18. Unfairness, in this sense, is concerned with the accused’s right to a fair trial, a right which may be jeopardised if a statement is obtained in circumstances which affect the reliability of the statement.

Considerations relating to the treatment of the accused that may render a confession unfair were discussed by Brennan J in Duke v R (1989) 180 CLR 508 at 513: Trickery, misrepresentation, omission to inquire into material facts lest they be exculpatory, cross-examination going beyond the clarification of information voluntarily given, or detaining a suspect or keeping him in isolation without lawful justification — to name but some improprieties — may justify rejection of evidence of a confession if the impropriety had some material effect on the confessionalist, albeit the confession is reliable and was apparently made in the exercise of a free choice to speak or to be silent.

These comments in relation to trickery and misrepresentation apply a fortiori here, as in all probability the court would find George’s confession was not made voluntarily. A case directly on point with the

question is R v Adamic (2000) 117 A Crim R 332, where a police officer had failed to delay questioning to allow a suspect to speak to a friend, relative or lawyer. Holmes J (at 336 [13]–[14]) held that: (1) the police had contravened s 95 of the Police Powers and Responsibilities Act 1997 (Qld); and (2) even though the evidence was cogent and the charge serious (possession of heroin) this was a proper case for exclusion of the evidence. [page 38] As regards the public policy discretion, which is founded on the ‘deliberate or reckless disregard of the law by those whose duty it is to enforce it’ (Bunning v Cross (1978) 141 CLR 54 at 78 per Stephen and Aickin JJ), the competing public interests of bringing to conviction those who commit criminal offences and the protection of the individual from unlawful and unfair treatment must be weighed against each other: R v Ireland (1970) 126 CLR 321 at 335 per Barwick CJ. Clearly, there is an overlap between the unfairness discretion and the public policy discretion. Here, the degree of reliability under all the circumstances of George’s ‘confession’ to a string of petty thefts in Mermaid Street has to be weighed against the numerous deliberate procedural breaches committed by Lansbury and Druitt. By way of conclusion, a court would likely exclude George’s confessional evidence for three reasons: (1) the confession was not voluntary in the sense it was obtained by inducement, in breach of s 10 of the Criminal Law Amendment Act 1894 (Qld); (2) it would be unfair given the manner in which the George’s confession was obtained to use his confession against George; and (3) given the numerous deliberate procedural breaches committed by Lansbury and Druitt, the weighting exercise undertaken by a court in deciding whether or not to exercise the public policy discretion would favour excluding the confessional evidence.

Examiner’s Comments 2-5 There are two main issues to be covered. The first issue deals with the procedural breaches, while the second issue deals with the admissibility of the evidence. The two issues are linked in that the procedural breaches may lead to the evidence being excluded either under the relevant section of the statute, such as s 436 of the Police Powers and Responsibilities Act 2000 (Qld) which requires a confession to be electronically recorded, or on public policy grounds. However, other actions by the police may cause the evidence to be excluded because the confession was not voluntary either under statute, such as a breach of s 10 of the Criminal Law Amendment Act 1894 (Qld) because the Crown cannot discharge the onus of proof, or at common law, and because it would be unfair to the accused, George, to admit the evidence given the manner in which it was obtained. Thus, the exclusion of George’s confessional evidence is a combination of two factors: (1) the interaction between statutory breaches by the police and judicial discretion to exclude the evidence; and (2) the overlap between statute law and common law. As to the onus of proof, essentially where the issue is one of whether the confession was voluntary, the onus is on the Crown: ‘unless the contrary is proved’ in s 10 of the Criminal Law Amendment Act 1894 (Qld) and at common law: Basto v R (1954) 91 CLR 628 at 635–6. However, unlike the onus of proof for voluntariness which rests with the Crown, [page 39] the onus of proof lies with the defendant to show a reason for the judge to exercise his or her discretion to exclude a confession from evidence: R v Lee (1950) 82 CLR 133.

Keep in Mind You should take care to: • Identify all the various procedural breaches. If on reading a question it becomes clear that a key issue is the admissibility of confessional evidence, then the factual matrix will likely contain a number of potential procedural breaches such as those relating to administering the caution, access to a friend, relative or lawyer, and recording the confession. The number and significance of the breaches, combined with the degree of premeditation in committing these breaches by the police, will likely determine the outcome of the exercise of judicial discretion. • Once the breaches have been identified, then the courts adopt a four-step process to decide whether or not the evidence should be admitted. The first step is to determine whether the confession was made voluntarily. If the court decides the confession was involuntary, then in principle the process ends at this point. However, judges regularly continue the four-step process both for completeness and to cover the possibility that if they are wrong on this point there are other reasons to support their ultimate conclusion on the admissibility of the evidence. The same approach should be adopted in hypothetical examinations. The second step is to assess the reliability of the evidence. The third step is to consider whether it would be unfair to the accused to admit the evidence. The fourth step is to decide whether the evidence should be excluded on public policy grounds. This four-stage checklist should be employed when answering any question involving the admissibility of confessional evidence.

Question 2 Caroline had been convicted in a jury trial of obtaining money from her insurance company by falsely pretending her car had been stolen. The Crown case was that Caroline and her partner Trevor disposed of the car in order to defraud the insurance

company. The Crown case rested almost entirely on the evidence of Trevor. Caroline did not give or call any evidence. The trial judge directed the jury that they must not assume guilt from Caroline’s failure to give evidence. The trial judge continued by referring to Caroline not giving evidence at four places in the summing up. As well as repeating that the effect of such a course was to leave Crown evidence [page 40] incriminating Caroline uncontradicted, the trial judge stated: ‘She chose the comfort and sanctuary of the dock instead of the rigours of the witness box.’ Advise Caroline on the prospects of a successful appeal against conviction on the ground that the practical effect of the trial judge’s comments was to negate in the minds of the jury the warning not to infer guilt from Caroline’s failure to give evidence, and to convey the impression that no innocent person in such circumstances could have failed to give evidence. Time allowed: 30 mins

Answer Plan This question deals with the issue of the appropriate directions by the trial judge to the jury when the defendant exercises his or her right to silence at trial, as opposed to the privilege against self-incrimination which covers a suspect’s right not to answer questions under police interrogation. There are two issues to be considered under the appeal ground that the trial judge misdirected the jury on the inferences, if any, that may be drawn from the defendant’s decision not to take the witness stand: (i) Interpretation of statutory requirements. • Whether the relevant statute specifies that the judge alone or the judge and the prosecutor are allowed to comment on the exercise by the defendant of the right to silence at trial. (ii) Nature of the trial judge’s direction to the jury. • Whether the circumstances of the case fall within the directions set out by the High Court in Azzopardi v R (2001) 205 CLR 50.

•

Whether rare and special circumstances apply such that the evidence is capable of explanation by disclosure of additional facts known only to the defendant as identified in Weissensteiner v R (1993) 178 CLR 217.

Answer (i) Interpretation of statutory requirements 2-6 The relevant sections dealing with comment on failure to give evidence are: the uniform evidence legislation s 20 (Evidence Acts of Commonwealth, Australian Capital Territory, Northern Territory, New South Wales, Tasmania and Victoria); Evidence Act 1929 (SA) s 18(1) (b); Evidence Act 1906 (WA) s 8(1)(c). The statutory language in South Australia and Western Australia is identical: ‘the failure of any person charged with an offence to give evidence shall not be made the subject of any comment by the prosecution.’ This has been interpreted [page 41] as meaning that the trial judge (and where applicable a co-accused) are able to comment on a defendant’s failure to give evidence: R v Wickham (1971) 55 Cr App R 199. There is no such prohibition on comment by the prosecution in Queensland: Weissensteiner v R (1993) 178 CLR 217 at 233 per Brennan and Toohey JJ. Indeed, Queensland has two singular provisions, both of which are found in the Criminal Code 1899 (Qld). The first is contained in s 618: At the close of the evidence for the prosecution the proper officer of the court shall ask the accused person whether the person intends to adduce evidence in the person’s defence.

The effect of s 618 above is to draw the jury’s attention to the accused’s specific response to this question, and the fact that a conscious decision has been made whether or not to enter the witness box. The second provision is s 620(1) of the Criminal Code 1899 (Qld),

where in the judge’s summing up ‘it is the duty of the court to instruct the jury as to the law applicable to the case, with such observations upon the evidence as the court thinks fit to make’. In terms of judicial discretion to comment on the accused’s exercise of the right to silence, this discretion is bounded by High Court authority, most notably, Azzopardi v R (2001) 205 CLR 50 and Weissensteiner v R (1993) 178 CLR 217, both of which cases are considered in the second part of this answer: (ii) Nature of the trial judge’s direction to the jury. The language of s 620(1) of the Criminal Code 1899 (Qld) above can be compared with s 20(2) of the uniform evidence legislation: The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

In Azzopardi v R (2001) 205 CLR 50 at [53]–[56], the High Court discussed the application of s 20(2) and the meaning of ‘suggest’: It is a section which regulates comments by the judge and by the prosecution. The prosecution may say nothing about the fact that the accused did not give evidence … The effect of the sub-section is that the judge, the accused and any co-accused may comment on the fact that the accused did not give evidence, but the judge may not, by that comment, ‘suggest’ that the accused failed to give evidence because he or she was guilty, or believed that he or she was guilty, of the offence charged … ‘Suggest’ is a word of very wide application. It was held in RPS (2000) 199 CLR 620 at 630 [20] that the prohibition in s 20(2) should be given no narrow construction, that ‘s 20(2) requires a line to be drawn and it should be drawn in a way that gives the prohibition against suggesting particular reasons for not giving evidence its full operation’. If s 20(2) is not interpreted in that way, the opportunity to exculpate has become an obligation to selfincriminate (R v Kops (1893) 14 LR (NSW) 150 at 190 per Innes J).

Thus, for the right to stay silent at trial, notwithstanding the differences in statutory language between jurisdictions and the singular Queensland [page 42] provisions, all Australian jurisdictions are bound by Azzopardi v R (2001) 205 CLR 50 and Weissensteiner v R (1993) 178 CLR 217.

(ii) Nature of trial judge’s direction to jury 2-7 The question to be resolved here is whether the trial judge’s repeated references in the summing up to Caroline not giving evidence, his statement that the effect of such a course was to leave Crown evidence incriminating Caroline uncontradicted, and the comment that ‘she chose the comfort and sanctuary of the dock instead of the rigours of the witness box’, sufficiently departs from model directions as to constitute a successful appeal ground. The Judicial Commission of New South Wales has published in the Criminal Trial Courts Bench Book (at 2-1010) a suggested direction where the accused has failed to give or call evidence: [The accused] has not given [or called] any evidence in response to the Crown’s case. There are a number of important directions of law which I must give you in relation to that fact. Although an accused person is entitled to give or call evidence in a criminal trial, there is no obligation upon [him/her] to do so. As I have already pointed out, the Crown bears the onus of satisfying you beyond reasonable doubt that the accused is guilty of the offence charged. [The accused] bears no onus of proof in respect of any fact that is in dispute. I remind you that [he/she] is presumed to be innocent until you have been satisfied beyond reasonable doubt by the evidence led by the Crown that [he/she] is guilty of the offence charged. Therefore, it follows that [the accused] is entitled to say nothing and make the Crown prove [his/her] guilt to the high standard required. I direct you, as a matter of law, that [the accused’s] decision not to give evidence cannot be used against [him/her] in any way at all during the course of your deliberations. That decision cannot be used by you as amounting to an admission of guilt. You must not draw any inference or reach any conclusion based upon the fact that [the accused] decided not to give (or call) evidence. You cannot use that fact to fill any gaps that you might think exist in the evidence tendered by the Crown. It cannot be used in any way as strengthening the Crown case or in assisting the Crown to prove its case beyond reasonable doubt. You must not speculate about what might have been said in evidence if [the accused] had given evidence (or what might have been said by [name of person] if that person had been called by the accused as a witness in the trial).

This suggested direction, particularly the passage relating to filling gaps in the Crown evidence, follows High Court authority in Azzopardi v R (2001) 205 CLR 50 at 64 [34] per Gaudron, Gummow, Kirby and Hayne JJ where the expression ‘make-weight’ is also employed: The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond

[page 43] reasonable doubt. It is, therefore, clear beyond doubt that the fact that an accused does not give evidence at trial is not of itself evidence against the accused. It is not an admission of guilt by conduct; it cannot fill in any gaps in the prosecution case; it cannot be used as a make-weight in considering whether the prosecution has proved the accusation beyond reasonable doubt.

The High Court in Azzopardi also took the opportunity to narrow its own previous authority in Weissensteiner v R (1993) 178 CLR 217. In Weissensteiner, the appellant was convicted of the murder of a couple who owned a cruising boat. The appellant, who had been hired to crew the boat, was found in sole possession of the boat. The couple had disappeared and left behind all their possessions. At his trial, the appellant did not give evidence and called no witnesses. The sole ground of appeal was a passage from the trial judge’s direction to the jury (at 224): I remind you that the onus is on the prosecution and the fact that the accused has not given or called evidence proves nothing. I remind you that the consequence of that circumstance is that you have no evidence from the accused to explain the evidence put before you by the prosecution, and that moreover, this is a case where the truth is not easily ascertainable by the prosecution. You remember rather here it seeks to have you infer guilt from such facts as it is able to prove to your satisfaction. Such an inference may be more safely drawn from the proven facts when the accused elects not to give evidence of relevant facts which can be easily perceived to be in his knowledge.

The focus of the court centred on the last sentence above, and whether in the circumstances of the case it was permissible for the trial judge to suggest to the jury that the inference could be more safely drawn where the facts were uniquely within the appellant’s knowledge. The joint judgment of Mason CJ, Deane and Dawson JJ (at 228–9) answered this question in the affirmative: There is a distinction, no doubt a fine one, between drawing an inference of guilt merely from silence and drawing an inference otherwise available more safely simply because the accused has not supported any hypothesis which is consistent with innocence from facts which the jury perceives to be within his or her knowledge. In determining whether the prosecution has satisfied the standard of proof to the requisite degree, it is relevant to assess the prosecution case on the footing that the accused has not offered evidence of any hypothesis or explanation which is consistent with innocence … We think that the trial judge was correct in his view that this was an appropriate case in which to direct the jury as to the manner in which they might take into account the failure of the accused to give evidence.

However, the joint judgment in Azzopardi v R (2001) 205 CLR 50 at 75 [68] narrowed a Weissensteiner direction to ‘rare and exceptional’ cases: It is to be emphasised that cases in which a judge may comment on the failure of an accused to offer an explanation will be both rare and exceptional. They will occur only if the evidence is capable of explanation by disclosure of additional facts known only to the accused. A comment

[page 44] will never be warranted merely because the accused has failed to contradict some aspect of the prosecution case.

Thus, a Weissensteiner direction is only justified if the accused is in sole possession of additional facts. Consequently, unless this test is satisfied a trial judge will risk a successful appeal if a Weissensteiner direction is given in anything other than ‘rare and exceptional’ circumstances. Here, the factual matrix is based on the case of R v Lander (1989) 52 SASR 424, which was heard by the South Australian Court of Appeal. King CJ (at 425) disapproved of the trial judge’s comments to the jury: It is, of course, necessary for a trial judge to take care not to make comments which might have the practical effect of negating in the minds of the jury the warning not to infer guilt from the failure to give evidence. Remarks comparing ‘the comfort and sanctuary of the dock’ with ‘the rigours of the witness box’ and remarks of similar import, are apt to have that effect. I think that remarks of that kind should be avoided. They tend to arouse feelings of disapproval, even indignation, at the exercise by an accused person of his legal right to refrain from giving evidence. They tend for that reason to deflect the jury from a sober and dispassionate evaluation of the evidence in the case and the significance of the absence of sworn denials by the accused in that process of evaluation. Such remarks tend rather to incline the jury to engage in the illegitimate process of drawing an inference of guilt from the failure to give evidence.

Matheson J (at 431) was particularly concerned that the trial judge had referred four times to the fact that the accused had not given evidence, and cited Waugh v R [1950] AC 203 at 211 per Lord Oaksey: In such a state of the evidence the judge’s repeated comments on the appellant’s failure to give evidence may well have led the jury to think that no innocent man could have taken such a course … [emphasis added]

Matheson J concluded that the cumulative effect of the trial judge’s

comments had gone too far.

Conclusion 2-8 On the basis of High Court authority in Azzopardi v R (2001) 205 CLR 50 at 64 [34] per Gaudron, Gummow, Kirby and Hayne JJ, and the decision of the South Australian Court of Appeal in R v Lander (1989) 52 SASR 424, Caroline’s appeal would be successful. This is not a case where rare and special circumstances apply, such that the evidence is capable of explanation by disclosure of additional facts known only to the defendant as identified in Weissensteiner v R (1993) 178 CLR 217.

Examiner’s Comments 2-9 Having identified that the issue is the right to silence at trial, the key to this question is a comparison between the directions given by the trial judge to the jury in the factual matrix and a model direction [page 45] following the principles identified by the High Court in Azzopardi v R (2001) 205 CLR 50. The distinction between the right to remain silent in the face of police questioning or pre-trial silence, and the right to stay silent at trial needs to be made clear. Before considering model directions to the jury on the right to stay silent at trial, it is necessary to examine the statutory context. Essentially, there are two regimes: (1) the uniform evidence legislation which covers the Commonwealth, New South Wales, Victoria, Tasmania, Australian Capital Territory and the Northern Territory; and (2) the ‘common law’ states of Queensland, South Australia and Western Australia. The uniform evidence legislation is governed by s 20(2) of the Uniform Evidence Acts, while for the ‘common law’ states the relevant sections are: Criminal Code 1899 (Qld) s 620(1); Evidence

Act 1929 (SA) s 18(1)(b); and Evidence Act 1906 (WA) s 8(1)(c). The conclusion to be drawn from the analysis of the statutory context of the right to stay silent at trial is that, notwithstanding the differences in statutory language between jurisdictions and the singular Queensland provisions, all Australian jurisdictions are bound by Azzopardi v R (2001) 205 CLR 50 and Weissensteiner v R (1993) 178 CLR 217. Examination questions that involve the right to silence at trial usually involve a hypothetical direction by the trial judge which requires a comparison with model directions that flow from High Court authority. One issue is whether on the factual matrix the evidence is capable of explanation by disclosure of additional facts known only to the defendant as identified in Weissensteiner v R (1993) 178 CLR 217. Thus, far more leeway is available to the trial judge if the factual matrix falls into the ‘rare and exceptional’ case category. Thus, take the example where the trial judge states: While you have been deprived of the opportunity of hearing his story tested in crossexamination you must not assume he is guilty simply because he has not gone into the witness box [emphasis added].

Does the first part of the sentence in italics constitute a misdirection to the jury? In R v Conway [2005] QCA 194 at [37] McMurdo P held that the italicised phrase was contrary to the presumption of innocence and the right to silence, and was not a case where there were facts which explained or contradicted the evidence against the accused person only within the accused person’s knowledge. Consequently, a two-step process is involved where the trial judge’s directions to the jury on the defendant’s exercise of the right to silence are in issue: (1) Do the directions contravene the model directions outlined in Azzopardi v R (2001) 205 CLR 50; Judicial Commission of New South Wales Criminal Trial Courts Bench Book, 2-1010; or R v DAH [2004] QCA 419 at [11] per McPherson JA? (2) Does the case fall into the ‘rare and exceptional’ category? [page 46]

Keep in Mind You should take care to identify the salient parts of the factual matrix: • Caroline did not give or call any evidence. Thus, the right to silence at trial is an issue. • The Crown case rested almost entirely on the evidence of her partner Trevor, who was also involved in the disposal of the car. Hence, the factual matrix does not fall within the ‘rare and exceptional’ category. The question would need to give a factual matrix on point with Weissensteiner v R (1993) 178 CLR 217, such that the defendant was in possession of the deceased’s property in unexplained circumstances, before a trial judge could safely direct a jury that they could draw an inference more safely because the accused had not supported any hypothesis which was consistent with innocence from facts which the jury perceived to be within his or her knowledge. • The mixed message that the trial judge was conveying to the jury by on the one hand directing the jury that they must not assume guilt from Caroline’s failure to give evidence, while on the other hand making repeated references to this failure and Caroline’s avoidance of the witness box. This is the trigger for the comparison with the model directions in the absence of ‘rare and exceptional’ circumstances.

Question 3 Cilla was born and raised in an Aboriginal community in Queensland and learnt English at school. Cilla had serious health problems, left school and her community at the first opportunity, and went to live in Toowoomba, Queensland with her partner Alex. Cilla’s Auntie Dora lived in Warwick, 80 kilometres south of Toowoomba, but they were not close and Cilla never visited her Auntie. Alex drank heavily and regularly assaulted Cilla. After one extended drinking session, Alex came home and attempted to assault Cilla. Cilla grabbed a kitchen knife and stabbed Alex in the arm. Alex collapsed on the floor and passed out. Cilla panicked and fled to a friend’s house. After three days had passed, Cilla returned home to find it had become a crime scene. When Cilla identified herself, Sergeant Rockett informed her that Alex was dead and

asked her if she would come to the police station to answer some questions. Cilla agreed. At the police station, Cilla was left alone in an interview room for over an hour. Sergeant Rockett returned with Constable Baker. Sergeant Rockett cautioned Cilla at the commencement of the interview and asked her if she understood the caution, to which she answered ‘yes’. Rockett put to Cilla that: ‘You don’t need a lawyer to be present do you?’ Cilla looked unsure but thought Rockett wanted her to say ‘no’, so Cilla said ‘no’. [page 47] Next, Rockett asked Cilla if she had killed Alex. Cilla replied ‘yes’. Rockett then told her she was under arrest for murder. When they pressed her to answer further questions, Cilla repeatedly said ‘no’. Both officers left. Four hours later they returned with Cilla’s Auntie Dora and asked Dora to talk to Cilla about answering questions. Rockett and Baker left Cilla and Dora alone with each other for twenty minutes. During that time, Auntie Dora repeatedly urged Cilla to tell the truth as it was the best way to help herself. On the return of the police officers, Cilla agreed to answer questions. During the interview, Cilla was asked if: (1) she intended to stab Alex; (2) she left Alex bleeding profusely and unconscious on the floor; and (3) she told no one what had happened until she returned home three days later. To these three questions Cilla simply replied ‘yes’. Cilla was then charged with murder. Both parts of Cilla’s interview were electronically recorded. What issues would the court need to consider if the confession was disputed at trial? Time allowed: 40 mins

Answer Plan There are two main grounds under which Cilla’s defence counsel could argue the ‘confession’ evidence should be excluded: (i) Procedural breaches. • Failure to follow the proper procedures for questioning Aboriginal people. (ii) Admissibility of the evidence. • The voluntariness of the confession: the use of Auntie Dora by a person in authority to change her mind and answer further questions.

Answer 2-10 This question can usefully be read as a variation of Question 1 above. In Question 1, under procedural breaches, there was a failure to caution and a failure to record the interview from the outset. These failures are not present in Question 3, where the focus is on the failure to follow the proper procedures for questioning Aboriginal people. Also in Question 1, the voluntariness of the confession involved consideration of the prodding in the car; the inducement to tell the truth; and the conditional offer of a cup of coffee. Here, in Question 3, the voluntariness of Cilla’s confession concerns the use of Auntie Dora as an instrument of a person in authority (the police) to persuade Cilla to change her mind and answer further questions. [page 48]

(i) Procedural breaches 2-11 All Australian jurisdictions either have specific statutory provisions for the questioning of Aboriginal people and Torres Strait Islanders (such as Queensland), or rely on general provisions covering the rights of arrested persons in conjunction with the common law in the form of the ‘Anunga Rules’ as formulated by Foster J in R v Anunga (1976) 11 ALR 412 (such as Western Australia). The equivalent Commonwealth legislation is s 23H of the Crimes Act. These provisions or rules focus on indigenous persons not having the same proficiency in English as average Australians, and the consequent need for an interpreter to be present in such situations. Students should establish the relevant law in their own jurisdiction. Here, an example of both a specific statutory provision (Queensland) and a general provision supplemented by the Anunga Rules (Western Australia) will be detailed in the answer. The fact that Cilla is an Aboriginal person immediately triggers s 420

of the Police Powers and Responsibilities Act 2000 (Qld) in relation to the questioning of Aboriginal people and Torres Strait Islanders: (1) This section applies if: (a) a police officer wants to question a relevant person; and (b) the police officer reasonably suspects the person is an adult Aborigine or Torres Strait Islander. (2) Unless the police officer is aware that the person has arranged for a lawyer to be present during questioning, the police officer must: (a) inform the person that a representative of a legal aid organisation will be notified that the person is in custody for the offence; and (b) as soon as reasonably practicable, notify or attempt to notify a representative of the organisation. (3) Subsection (2) does not apply if, having regard to the person’s level of education and understanding, a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally. (4) The police officer must not question the person unless: (a) before questioning starts, the police officer has, if practicable, allowed the person to speak to the support person, if practicable, in circumstances in which the conversation will not be overheard; and (b) a support person is present while the person is being questioned. (5) Subsection (4) does not apply if the person has, by a written or electronically recorded waiver, expressly and voluntarily waived his or her right to have a support person present. (6) If the police officer considers the support person is unreasonably interfering with the questioning, the police officer may exclude the person from being present during questioning.

It can be seen that both s 420(2), which deals with a lawyer being present, and s 420(4), which covers a support person, are both qualified under s 420(3) and (5) respectively. Section 420(3) allows a police officer to dispense with the need for a lawyer being present if the officer ‘reasonably suspects’ the indigenous person is not at a disadvantage [page 49] compared to members of the Australian community generally. Section 420(5) allows the right to a support person to be waived provided the waiver is recorded. If a court concludes that the provisions of s 420 have not been complied with, any evidence so gathered will be deemed inadmissible.

On the facts, Cilla may have an inadequate knowledge of English which raises the issue of compliance with s 433 in relation to the right to an interpreter: (1)

(2)

(3)

This section applies if a police officer reasonably suspects a relevant person is unable, because of inadequate knowledge of the English language or a physical disability, to speak with reasonable fluency in English. Before starting to question the person, the police officer must arrange for the presence of an interpreter and delay the questioning or investigation until the interpreter is present. In this section — investigation means the process of using investigative methodologies, other than fingerprinting, searching or taking photos of the person, that involve interaction by a police officer with the person, for example, an examination or the taking of samples from the person.

In Western Australia, there are no equivalent provisions for indigenous people in the Criminal Investigation Act 2006 (WA) to ss 420 and 433 of the Police Powers and Responsibilities Act. However, there is a general provision under s 137(3) of the Criminal Investigation Act 2006 covering the rights of arrested persons: The arrested person is entitled — (a) to any necessary medical treatment; and (b) to a reasonable degree of privacy from the mass media; and (c) to a reasonable opportunity to communicate or to attempt to communicate with a relative or friend to inform that person of his or her whereabouts; and (d) if he or she is for any reason unable to understand or communicate in spoken English sufficiently, to be assisted in doing so by an interpreter or other qualified person.

The key provision is s 137(3)(d) which provides for the provision of an interpreter. If the rights of a person are contravened under s 137(3), then s 154, which deals with evidence obtained improperly, provides that any evidence so derived is not admissible in any criminal proceedings against a person in a court unless: (c) the person does not object to the admission of the evidence; or (d) the court decides otherwise under section 155 [court may allow admission of inadmissible evidence].

Western Australia is effectively relying on the fairness principle, and the court’s general discretion to admit otherwise inadmissible evidence under s 155(2) of the Criminal Investigation Act 2006 (WA). In addition, the Anunga Rules as outlined in R v Anunga (1976) 11 ALR 412 would also apply:

[page 50] 1. When an Aboriginal person is being interrogated as a suspect, unless he is as fluent in English as the average white man of English descent, an interpreter able to interpret in and from the Aboriginal person’s language should be present, and his assistance should be utilised whenever necessary to ensure complete and mutual understanding. 2. When an Aboriginal person is being interrogated it is desirable where practicable that a ‘prisoner’s friend’ (who may also be the interpreter) be present. The ‘prisoner’s friend’ should be someone in whom the Aboriginal has apparent confidence. He may be a mission or settlement superintendent, or a member of the staff of one of these institutions who knows and is known by the Aboriginal. He may be a station owner, manager or overseer or an officer from the Department of Aboriginal Affairs. Combinations of persons in situations are variable and the categories of persons I have mentioned are not exclusive. The important thing is that the ‘prisoner’s friend’ be someone in whom the Aboriginal has confidence, by whom he will feel supported. 3. Great care should be taken in administering the caution when it is appropriate to do so. It is simply not adequate to administer it in the usual terms. … Police officers, having explained the caution in simple terms, should ask the Aboriginal person to tell them what is meant by the caution, phrase by phrase, and should not proceed with the interrogation until it is clear the Aboriginal has apparent understanding of his right to remain silent. Most experienced police officers in the territory already do this. The problem of the caution is a difficult one but the presence of a ‘prisoner’s friend’ or interpreter and adequate and simple questioning about the caution should go a long way towards solving it. 4. Great care should be taken in formulating questions so that, so far as possible, the answer which is wanted or expected is not suggested in any way. Anything in the nature of crossexamination should be scrupulously avoided as answers to it have

5.

6.

7.

8.

no probative value. It should be borne in mind that it is not only the wording of the question which may suggest the answer but also the manner and tone of voice which are used. Even when an apparently frank and free confession has been obtained relating to the commission of an offence, police should continue to investigate the matter and endeavour to obtain proof of the commission of the offence from other sources. Because Aboriginal people are often nervous and ill at ease in the presence of white authority figures like policemen, it is particularly important that they be offered a meal, if they are being interviewed in the police station, or in the company of police or in custody when a meal time arrives. They should also be offered tea or coffee if the facilities exist for preparation of it. They should always be offered a drink of water. They should be asked if they wish to use the lavatory, if they are in the company of police or are under arrest. It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness, drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time. Should an Aboriginal person seek legal assistance, reasonable steps should be taken to obtain such assistance. If an Aboriginal person [page 51]

states he does not wish to answer further questions or any questions the interrogation should not continue. 9. When it is necessary to remove clothing for forensic examination or for the purposes of medical examination, steps must be taken forthwith to supply substitute clothing. The issues raised by the question go to the compliance by the police with the above legislation in Queensland and Western Australia, and

whether there has been a breach of the legislation sufficient to warrant a court refusing to admit Cilla’s confession relating to the murder of Alex. Integral to such a decision on the admission of the confession is the degree to which Cilla understands English. The facts indicate that while Cilla learnt English at school she had little schooling. She had serious health problems and so: (a) might have missed a lot of schooling; and (b) her health problems may have affected her ability to learn or understand English. It is not clear how old Cilla is, nor the extent to which she has picked up English once she left her community. Cilla’s answers to Rockett’s questions are either ‘yes’ or ‘no’, and the phrasing of the question that Cilla did not need a lawyer using a double negative could be open to misinterpretation to someone who spoke reasonable English, let alone someone with a limited understanding of English. Furthermore, there is the well-known tendency for Aboriginal people to engage in ‘gratuitous concurrence’ in order to please the questioner (R v Anunga (1976) 11 ALR 412), which Foster J explained in this way (at 414): [M]ost Aboriginal people are basically courteous and polite and will answer questions by white people in the way in which they think the questioner wants. Even if they are not courteous and polite there is the same reaction when they are dealing with an authority figure such as a policeman.

In any event, at this point the question is raised as to the need for an interpreter under s 433 of the Police Powers and Responsibilities Act 2000 (Qld), and under s 137(3)(d) of the Criminal Investigation Act 2006 (WA). Certainly, there is no attempt to establish under s 433(1) whether or not Cilla has an adequate knowledge of the English language for the purpose of arranging for an interpreter to be present if necessary. Indeed, in R v Lamb and Thurston [2002] NSWSC 357 at [23], Dunford J held that under equivalent New South Wales statutory provisions there is a positive duty to assist a ‘vulnerable person’ (which includes Indigenous Australians) in exercising his or her rights, citing R v Phung Huynh [2001] NSWSC 115 at [63] as authority, and this duty is not limited to assisting with the making of telephone calls but includes assistance in securing a support person.

Then, there is the question of the length of time Cilla is under interrogation. First, Cilla is left alone for an hour. There is apparently no offer of food and drink. Second, when the two police return and Cilla admits she killed Alex but refuses to answer further questions, [page 52] Cilla is then left alone for a further four hours without any indication of sustenance being offered. Third, when the 20 minutes with Auntie Dora has passed, Cilla has apparently been without sustenance for five hours and 20 minutes (excluding the time taken to conduct the first part of the interview) and may also be suffering from tiredness: see the Anunga Rules 6 and 7. The involvement of Auntie Dora, who may not be someone Cilla actually wanted to be present or filled the role of ‘prisoner’s friend’, occurred in the absence of a legal representative, contrary to s 420(2) of the Police Powers and Responsibilities Act 2000 (Qld), ‘unless a police officer reasonably suspects the person is not at a disadvantage in comparison with members of the Australian community generally’ (s 420(3)), which would appear unlikely on the facts.

(ii) Admissibility of evidence 2-12 The arrival of Auntie Dora is not a neutral act of providing a support person, but instead appears to have the single purpose of getting Dora to encourage Cilla to answer questions, which raises the question of whether persons in authority (the police) are trying to overbear Cilla’s will using Dora as their instrument: McDermott v R (1948) 76 CLR 501. This is reinforced in the factual matrix by Auntie Dora repeatedly urging Cilla, during their 20 minute conversation in the absence of the police, to tell the truth as it was the best way to help herself. A case on point is R v Dixon (1992) 28 NSWLR 215 at 229, where a Community Aboriginal Liaison officer, who was deemed a person in authority as someone perceived by the accused as being capable of

influencing the result of a prosecution, was held to have induced the confession of the accused by saying: ‘Tell the truth, just tell the truth. That’s the only way you can help yourself.’ This was held to be more than a moral exhortation to tell the truth because it held out the prospect that a confession could be in the accused’s interest and might improve his position. Relevantly: (1) ‘some person in authority’ is an all-encompassing phrase; and (2) the test for determining ‘some person in authority’ is subjective in terms of the perception of the accused rather than the person’s actual authority objectively determined: R v Burt [2000] 1 Qd R 28 at 41. Thus, if Cilla perceived Auntie Dora as a person in authority, given she had been procured by the police with no indication Cilla had asked for Auntie Dora to be present, then a court may well follow R v Dixon and hold Auntie Dora induced Cilla’s confession. Indeed, as Matthews J observed in R v Plotzki [1972] Qd R 379 at 384: … when the words of a person in authority may be considered as holding out an inducement or are such as could reasonably be considered to do, the Court will not attempt by fine analysis or the resolution of nice questions of construction, to minimise the effect of such words.

[page 53] Consequently, it is likely that Cilla’s confession would be held to be involuntary.

Conclusion 2-13 Cilla’s confession would in all probability be excluded from evidence because of: (1) the breaches in procedure for questioning Aboriginal people; and (2) the involuntariness of the confession because it was induced by Auntie Dora.

Examiner’s Comments 2-14

The obvious starting point in this question is the fact that Cilla

is an Aboriginal person. As a result, special conditions apply to the interrogation of Cilla either directly where the jurisdiction has specific legislation covering the questioning of Aboriginal people and Torres Strait Islanders, or indirectly under a legislative requirement to provide an interpreter ‘if he or she is for any reason unable to understand or communicate in spoken English sufficiently’. The key test is that the Aboriginal person is not at a disadvantage in comparison with members of the Australian community generally. This is effectively a test of fairness. Such a test follows from the long established common law principle that a person may only be tried if he or she ‘has sufficient understanding to comprehend the nature of [his or her] trial so as to make a proper defence to the charge’: R v Pritchard (1836) 7 Car & P 303 at 304. As the High Court observed in Ebatarinja v Deland (1998) CLR 444 at [27], ‘[i]f 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’, citing R v Lee Kun [1916] 1 KB 337 at 341 at 342 as authority. The same principle applies to the interrogation of the defendant. The second key fact is the role of Auntie Dora. Whenever a character is introduced into a legal hypothetical question, students should be asking themselves what legal principles are attached to the role of the character in the factual matrix. Here, Auntie Dora appears to be an agent for the police to circumvent Cilla’s exercise of her right to silence, which goes to the voluntariness of Cilla’s confessional evidence.

Keep in Mind You should take care to identify the essential parts of the factual matrix which shape the issues to be covered: • Cilla is an Aboriginal person, who had serious health problems, learnt English at school and left school at the first opportunity. This raises the issue of Cilla’s vulnerability.

[page 54] •

•

•

The mixture of police compliance with procedures (administered the caution and electronically recorded both parts of Cilla’s interview) contrasted against non-compliance with the need to establish whether the presence of an interpreter was necessary, sharp practice (the double negative question about Cilla not needing a lawyer to be present) and the breach of a positive duty to assist a ‘vulnerable person’. The length of time Cilla was either being interrogated or left alone in an interview room. On the facts, Cilla was left alone for five hours in total (excluding actual interview time and the 20 minutes with Auntie Dora), apparently all the while without food or drink or rest, in breach of the Anunga Rules 6 and 7. The dubious role of Auntie Dora who was not close to Cilla and who Cilla never visited. Nevertheless, Auntie Dora appears to have been procured by the police with a brief ‘to talk to Cilla about answering questions’ and who ‘repeatedly urged Cilla to tell the truth as it was the best way to help herself’.

Question 4 Peter and Maurice are jointly charged with the murder of Whitey, who was battered to death with a blunt instrument. Peter chose to exercise his right to silence when interrogated by police, but at trial gave evidence that Maurice had killed Whitey. Maurice, on the other hand, did make a statement to the police when interviewed after his arrest, laying sole blame on Peter for the killing of Whitey. Maurice exercised his right to silence at trial. Both Peter and Maurice were convicted of murder and appealed. The grounds of appeal were the directions the trial judge had given the jury for each of the accused. In Peter’s case, the trial judge had told the jury that ‘if the accused (Peter) really had witnessed his co-accused (Maurice) kill the deceased (Whitey), then you might well believe he would have told the police this vital piece of information at the time he was interviewed by the police instead of raising this defence many months later at his trial’. In Maurice’s case, the trial judge had told the jury that ‘given the accused (Maurice) had identified his co-accused (Peter) as the deceased’s (Whitey) killer when interviewed by the police but at his trial has chosen not to enter the witness box, then you might more safely draw an inference of guilt as his co-accused has testified against him’.

Advise both Peter and Maurice on their prospects of a successful appeal. Would the outcome differ depending on the jurisdiction? Would your answer differ if Maurice had decided when the trial started to testify to the effect that Whitey was already dead when he and Peter found Whitey?

[page 55]

Answer Plan There are four issues which need to be addressed: (i) For Peter’s appeal. • The trial judge’s comment on Peter’s late defence, having exercised his pre-trial right to silence. (ii) For Maurice’s appeal. • The trial judge’s comment on Maurice’s exercise of his right to silence at trial in light of: – Maurice’s pre-trial evidence against Peter; and – Peter’s evidence from the witness box against Maurice. (iii) Whether the outcome of the appeals would differ depending on the jurisdiction. (iv) Whether the outcome would differ if Maurice gave evidence inconsistent with his original statement to the police.

Answer 2-15 This question can usefully be read as a variation of Question 2 above. In Question 2, the focus of the question was on the trial judge’s directions to the jury in relation to Caroline’s failure to give any evidence at trial. Here, in Question 4, there are two defendants who have engaged in a ‘cut throat’ defence where each has blamed the other for the murder of the deceased, Whitey. Peter exercised his right to silence when interrogated by police, but elected to give evidence against Maurice at trial. Maurice followed the exact opposite course by laying

blame against Peter under interrogation, but exercised his right to silence at trial notwithstanding Peter had taken to the witness stand against him.

(i) Peter’s appeal 2-16 Peter has exercised his pre-trial right to remain silent, but has later provided a defence by blaming Maurice for the killing of Whitey. The factual matrix is loosely based on the case of Petty and Maiden v R (1991) 173 CLR 95, where it was held that Peter may follow this course without adverse inferences being levelled against him. In Petty and Maiden (at 99) Mason CJ, Deane, Toohey and McHugh JJ rejected the distinction between inferring a consciousness of guilt from silence and denying credibility to a late defence by reason of earlier silence: 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 … An incident of that right of silence is that no adverse inference can be drawn against an accused person by reason of his or her failure to answer such questions or to provide such information. To draw such an adverse inference would be to erode the right of silence or to render it valueless.

[page 56] Brennan J stated (at 104) that the distinction was ‘illusory’, continuing, at 105, to opine that ‘the weight to be given to an innocent explanation advanced by an accused at an appropriate stage of the trial should not be diminished by an omission to advance that explanation earlier’. Hence, the High Court held that it should not be suggested that previous silence about a defence raised at the trial provides a basis for inferring that the defence was a new invention or is rendered suspect or unacceptable. Consequently, on the authority of Petty and Maiden, the trial judge’s direction to the jury regarding Peter was an error of law, in that it carried with it an inference that Peter was under a duty to disclose a defence before the trial so that the Crown could investigate it. The High

Court made it clear Peter was under no such duty. However, if Peter’s case was held in New South Wales there would be legal ramifications flowing from his late defence as a result on the insertion of s 89A into the Evidence Act 1995 (NSW) in 2013. This jurisdictional difference will be discussed in part (iii).

(ii) Maurice’s appeal 2-17 The use by the trial judge of the words ‘more safely draw an inference of guilt’ in the directions to the jury, appears to require consideration of whether the evidence is capable of explanation by disclosure of additional facts known only to the defendant as identified in Weissensteiner v R (1993) 178 CLR 217. Here, the facts are not solely within Maurice’s knowledge as Maurice is not the only person able to shed light on the circumstances of Whitey’s death. Thus, in the absence of rare and exceptional circumstances, the trial judge’s Weissensteiner direction regarding Maurice would be an error of law: Azzopardi v R (2001) 205 CLR 50. However, the circumstances are not straightforward in that Maurice did not enter the witness box to (i) repeat his pre-trial evidence against Peter; and (ii) defend himself against Peter’s allegation he had killed Whitey. On the facts, we are not told what Peter said in the witness box, but it is likely that Peter would comment on Maurice’s exercise of his right to silence and contrast it with his own decision to give evidence in court, as envisaged by s 20(2) of the uniform evidence legislation, which applies in the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory; The judge or any party (other than the prosecutor) may comment on a failure of the defendant to give evidence. However, unless the comment is made by another defendant in the proceeding, the comment must not suggest that the defendant failed to give evidence because the defendant was, or believed that he or she was, guilty of the offence concerned.

The relevant phrase is ‘unless the comment is made by another defendant in the proceeding’, and obiter dicta by Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v R (2001) 205 CLR 50 at [54] suggest there are few limitations under s 20(2) of the uniform evidence legislation on a

[page 57] co-defendant’s ability to suggest the other co-defendant remained silent at trial because he or she was guilty of the offence concerned: If only one of two accused persons gives evidence at their joint trial, it is inevitable that the accused who has given evidence will want to urge the jury to contrast that with the course taken by the other accused. It is well-nigh inevitable that in urging that the evidence given by the accused demonstrates innocence, the suggestion will be made, explicitly or implicitly, that the co-accused stayed silent because, unlike the accused who did give evidence, he or she was guilty.

By contrast, under the ‘common law’ States of Queensland, South Australia and Western Australia, it would appear on the authority of R v Tran [2006] SASC 276 at [43]–[44] per Duggan J that a co-defendant cannot make a prohibited comment under common law principles. However, in the absence of statutory authorisation, I am of the view that defence counsel should not be permitted to make a submission contrary to the cautionary directions discussed in Weissensteiner v The Queen. The contrary view would condone the making of comments which would require correction by the trial judge. Nevertheless, it is important to remember when considering the addresses of counsel, that what is said is not a direction to the jury. Of course, if counsel misstates the law it is important for the trial judge to correct it. Any complaint on appeal will then focus on whether the directions given by the trial judge were effective in removing any potential misunderstanding by the jury.

Consequently, for the ‘common law’ states of Queensland, South Australia and Western Australia, the trial judge’s directions to the jury regarding Maurice constitute an error of law, as even if Peter’s evidence did comment on Maurice’s failure to testify, the trial judge failed to correct any potential misunderstanding by the jury. Indeed, on the facts, the trial judge exacerbated any potential misunderstanding by ignoring the cautionary directions discussed in Weissensteiner v R. As far as the uniform evidence regime is concerned (Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory), notwithstanding the obiter dicta by Gaudron, Gummow, Kirby and Hayne JJ in Azzopardi v R (2001) 205 CLR 50 at [54] above, this was not a case where rare and exceptional circumstances applied. Consequently, the trial judge’s Weissensteiner

direction regarding Maurice is an error of law: Azzopardi v R (2001) 205 CLR 50.

(iii) Effect of jurisdiction on outcome of appeals 2-18 The outcome of Peter’s appeal might be different if the case was to be heard in New South Wales. This follows from the insertion of s 89A Evidence of Silence in Criminal Proceedings for Serious Indictable Offences into the Evidence Act 1995 (NSW) in 2013. Section 89A(1) deals with official questioning in relation to the offence charged, and [page 58] permits unfavourable inferences to be drawn from failure to mention a fact that the defendant later relied on in his or her defence of the charge and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time of official questioning. Such inferences are only open if the conditions in s 89A(2) are met: Subsection (1) does not apply unless: (a) a special caution was given to the defendant by an investigating official who, at the time the caution was given, had reasonable cause to suspect that the defendant had committed the serious indictable offence, and (b) the special caution was given before the failure or refusal to mention the fact, and (c) the special caution was given in the presence of an Australian legal practitioner who was acting for the defendant at that time, and (d) the defendant had, before the failure or refusal to mention the fact, been allowed a reasonable opportunity to consult with that Australian legal practitioner, in the absence of the investigating official, about the general nature and effect of special cautions.

Under s 89A(9): ‘special caution’ means a caution given to a person that is to the effect that: (a) the person does not have to say or do anything, but it may harm the person’s defence if the person does not mention when questioned something the person later relies on in court, and (b) anything the person does say or do may be used in evidence.

Thus, Peter would have the benefit of the advice of an Australian legal practitioner at to the general nature and effect of special cautions,

before deciding whether or not to mention the fact. Any unfavourable inference results from the failure to mention the fact later relied on and not merely from the exercise of silence. This follows from the wording of s 89A(5)(b) which states that s 89A(1) does not apply ‘if evidence of the failure or refusal to mention the fact is the only evidence that the defendant is guilty of the serious indictable offence’. Naturally, no unfavourable inference can be drawn where the undisclosed fact is true, as this completely rebuts the inference the fact has been invented since the official questioning occurred: R v Chivers [2011] EWCA Crim 1212, where it was held that a jury could not sensibly draw any inference from the defendant saying something in evidence, which was accepted on all sides as being true, merely because he had not said so on a previous occasion. Whether the defendant could ‘reasonably have been expected to mention a fact in the circumstances existing at the time’ is a matter for the jury.

(iv) Effect of evidence inconsistent with original statement to police 2-19 Maurice’s early pre-trial defence was that Peter had killed Whitey. Now, at trial, Maurice is raising a completely inconsistent defence, namely, that an unknown third party had killed Whitey before he and Peter arrived on the scene. On the authority of Petty and Maiden (at 101) [page 59] per Mason CJ, Deane, Toohey and McHugh JJ, evidence of Maurice’s original statement inculpating Peter is admissible against Maurice, and the jury would be able to take into account the inconsistency in the pretrial and at trial defences when determining the credibility of the later at trial defence of an unknown third party being responsible for Whitey’s death: Obviously, his [Maiden] assertion to the police that Petty had killed Mark White was

inconsistent with the defence raised at the trial that he had himself accidentally killed White while defending himself from attack. In the circumstances, evidence of the earlier allegation to the authorities against Petty was admissible against Maiden. Among other things, it cast doubt upon the genuineness of the defence that Maiden had killed White accidentally in self-defence or without relevant intent. Evidence of Maiden’s subsequent failure to withdraw the assertion that Petty had killed White was also relevant and admissible in that it could lead to an inference of adherence right up to the time of trial to what was, in effect, an allegation of murder against Petty and constitute a denial by conduct of his defence at the trial.

As a result, it is likely that the inconsistency between Maurice’s two defences would weigh heavily against him in the minds of the jury.

Examiner’s Comments 2-20 The key to answering this question is to identify the exercise of the pre-trial right to silence (Peter) and the exercise of the at trial right to silence (Maurice). The question contrasts the two forms of the right to silence by utilising a co-defendant factual scenario, which is loosely based on Petty and Maiden v R (1991) 173 CLR 95. In many questions the examiner builds the factual scenario around a case, and the ability to identify the case is clearly of great assistance. Students need to be alert to the possibility they have been given a thinly disguised case they have studied. Whenever an examiner ask a supplementary question that starts with ‘Would it make any difference to your answer …’, you can usually assume it will make a difference. Here there were two supplementary questions. As to the first supplementary question, the reference to a different outcome based on the jurisdiction is a clear signal that at least one jurisdiction has passed legislation that alters the relevant law in a significant manner. In this instance it is New South Wales in the form of s 89A of the Evidence Act 1995 (NSW), which allows unfavourable inferences to be drawn from a failure to mention a fact that the defendant later relied on in his or her defence of the charge and where the defendant could reasonably have been expected to mention the fact in the circumstances existing at the time of official questioning. This is pre-trial silence.

The second supplementary question involves a change in Maurice’s defence from blaming Peter to blaming an unknown third party. This triggers an inconsistency and allows the Crown to adduce evidence of [page 60] Maurice’s original statement in seeking to undermine the credibility of Maurice’s later defence. Maurice’s change of defence is fraught with danger.

Keep in Mind You should take care to demonstrate the depth of your knowledge of any qualifications that may exist in the legislation or key distinctions in the cases on point. For example: • The distinction between inferring a consciousness of guilt from silence and denying credibility to a late defence by reason of earlier silence. • In the absence of rare and exceptional circumstances, the use by a trial judge of a Weissensteiner direction would be an error of law: Azzopardi v R (2001) 205 CLR 50. • The inferences under s 89A(1) of the Evidence Act 1995 (NSW) are only open if the conditions in s 89A(2) are met. • On the authority of Petty and Maiden v R (1991) 173 CLR 95, the jury is able to take into account any inconsistency in the pretrial and at trial defences when determining the credibility of the later at trial defence.

[page 61]

Chapter 3

Commencing Proceedings: Charge and Bail

Key Issues 3-1 Chapters 1 and 2 focused largely on the investigation and preparatory stage prior to the commencement of a criminal trial. This chapter is concerned with the commencing of proceedings. It considers the prosecutorial charging decision as well as the question of whether, and under what circumstances, an accused who has been charged (and in some cases convicted) can receive a conditional release on bail.

Charging decision 3-2 Where sufficient evidence exists against an accused, it is ultimately in the discretion of the prosecutor to charge or to continue a prosecution against an accused. Prosecutors will frequently be police prosecutors, who mainly act in the Magistrates Courts, and staff of the Office of the Director of Public Prosecutions (DPP) in superior courts. While it is also possible that private individuals or public bodies other than police initiate prosecutions in Australia, this happens less frequently. In an attempt to increase transparency of and consistency between charging decisions, certain prosecutorial guidelines (Guidelines) have been put into place in all Australian jurisdictions. All Guidelines set out

certain aspects that prosecutors should take into consideration during the charging decision. As guidelines, however, they are not legally binding and do not override the prosecutorial discretion. Based on the above, a two-tier test underlies the charging decision. The first tier requires the prosecutor to assess whether there is sufficient evidence against an accused to commence or continue prosecution. While, as pointed out in previous chapters, it is frequently sufficient for the police to rely on a reasonable suspicion when acting, this is not sufficient to satisfy the first tier of the charging decision. Ultimately, the evidence [page 62] available must support, at least prima facie, a reasonable prospect of conviction; see: • Office of the Director of Public Prosecutions (ACT), The Prosecution Policy of the ACT, cll 2.4–2.7; • Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, cl 4(2); • Office of the Director of Public Prosecutions (Qld), Director’s Guidelines, cl 4(i); • Office of the Director of Public Prosecutions (SA), Prosecution Policy ‘The Decision to Prosecute’; • Office of the Director of Public Prosecutions (Tas), Prosecution Guideline, ‘The Role of an Independent Prosecutor and Guidelines for the Exercise of the Discretion to Prosecute’; • Office of the Director of Public Prosecutions (Vic), Prosecution Policies, The Prosecutorial Decision, cll 2–3; • Office of the Director of Public Prosecutions (WA), Statement of Prosecution Policy and Guidelines (2005), cll 6 and 24; and • note that the Northern Territory Guidelines are currently under review and not publicly available. Most Guidelines include considerations as to when evidence can be

seen to support a reasonable prospect of conviction. These include, depending on the jurisdictions: • the availability, competence, admissibility and credibility of the evidence (for example, witness’ testimony); • any conflicting statements; • any possible lines of defence open to the accused; • the possibility of a false story provided by a witness; and • prior inconsistent witness statements. Only where the first tier of the question concerning sufficient evidence can be answered in the affirmative will the second tier of the test become relevant. The second tier deals with the question of whether the prosecution is in the public interest. As per the respective Guideline the decision maker has to take a number of (sometimes competing) factors into account when assessing whether the prosecution is in the public interest. These include, but are not limited to, the interests and attributes of the victim, attributes of the offender (mental health, age, health, vulnerability), the nature of the alleged offence, the length and costs of a potential trial, time elapsed since the offence was committed, the background of the accused and the necessity to maintain public confidence in parliament and the courts; see: • Office of the Director of Public Prosecutions (ACT), The Prosecution Policy of the ACT, cll 2.8–2.9; • Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, cl 4(3); • Office of the Director of Public Prosecutions (Qld), Director’s Guidelines, cl 4(ii); [page 63] • •

Office of the Director of Public Prosecutions (SA), Prosecution Policy ‘The Decision to Prosecute’; Office of the Director of Public Prosecutions (Tas), Prosecution Guideline, ‘The Role of an Independent Prosecutor and Guidelines for the Exercise of the Discretion to Prosecute’;

•

Office of the Director of Public Prosecutions (Vic), Prosecution Policies, The Prosecutorial Decision, cll 4–5; • Office of the Director of Public Prosecutions (WA), Statement of Prosecution Policy and Guidelines (2005), cll 31–32; and • note that the Northern Territory Guidelines are currently under review and not publicly available. Often the Guidelines explicitly specify what considerations cannot influence the decision to prosecute. These include race, ethnic origin, social position, marital status, sexual preference, religious and political beliefs of the accused or any other person involved, personal feelings towards the offender, political advantages or disadvantages to the government or a political group and any consequences the decision may have for the decision makers; see: • Office of the Director of Public Prosecutions (ACT), The Prosecution Policy of the ACT, cl 2.10; • Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, cl 4(3)(i)–(v); • Office of the Director of Public Prosecutions (Qld), Director’s Guidelines, cl 4(iii); • Office of the Director of Public Prosecutions (SA), Prosecution Policy ‘The Decision to Prosecute’; • Office of the Director of Public Prosecutions (Tas), Prosecution Guideline, ‘The Role of an Independent Prosecutor and Guidelines for the Exercise of the Discretion to Prosecute’; • Office of the Director of Public Prosecutions (Vic), Prosecution Policies, The Prosecutorial Decision, cl 8; • Office of the Director of Public Prosecutions (WA), Statement of Prosecution Policy and Guidelines (2005), cl 33; and • note that the Northern Territory Guidelines are currently under review and not publicly available. Where a defendant is committed to stand trial in a superior court, the prosecution must provide the court with an indictment including certain particulars within a specified time after the committal hearing in order to continue prosecution. Indictments are discussed subsequently in Chapter 4. The above considerations relating to the charging decision

also play an important role in the question of whether prosecution should be continued by presenting an indictment to the higher court. The prosecutorial charging decision is generally not subject to judicial review unless it amounts to an abuse of process. [page 64]

Bail 3-3 After a person has been charged with an offence, there can be an extended waiting period until proceedings actually commence. During this time the accused may be able to apply for and receive bail under certain circumstances and may thus be at liberty while awaiting trial. This can be advantageous for an accused as they are able to prepare their case more easily than when being incarcerated and are able to remain in their normal social environment. A person charged with an offence can seek and receive police bail or bail from a magistrate or from a superior court judge. In most Australian states and territories the authority who deals with the matter at the time of the bail application, for example, before the first court appearance, after the committal, during an adjournment and pending an appeal, has jurisdiction to grant bail. This chapter focuses on bail granted by judicial officers as opposed to police bail. While generally all courts have the power to grant bail (depending on the stage of proceedings), in many jurisdictions the power to grant bail for murder is reserved to the Supreme Court; see, for example, s 13 of the Bail Act 1980 (Qld) and s 15 of the Bail Act 1982 (WA). The bail decision requires the weighing of a number of different (frequently competing) interests. On the one hand, there is the interest that an accused remains at liberty while awaiting trial which is supported by the presumption of innocence, meaning a defendant is innocent until proven guilty. On the other hand, there is the interest of ensuring that the defendant will attend trial, the interest of keeping the community safe as well as preventing the accused from tempering with

witnesses and other evidence. These competing interests have to be balanced in the bail decision-making process. Today, all Australian jurisdictions have introduced legislation specifically relating to bail (Bail Acts) which aims to strike a balance between the competing interests named above.

Decision to grant or refuse bail 3-4 Bail Acts in Australian jurisdictions enshrine different circumstances in which bail should or should not be granted to an accused. These conditions, however, differ between jurisdictions. In the Australian Capital Territory defendants have a right to bail in the case of minor offences that do not attract a custodial sentence and summary offences: see Bail Act 1992 (ACT) s 8(1)(a)–(e). In the two territories, the Northern Territory and the Australian Capital Territory (except where a defendant has a general right to bail), a defendant is entitled to bail unless granting bail is not justified: • Bail Act 1992 (ACT) s 9A(2); and • Bail Act 1982 (NT) s 8 (2)(a). [page 65] (Note that a presumption against bail operates for certain offences in the Australian Capital Territory (Bail Act 1992 (ACT) ss 9C–9G) and the Northern Territory (Bail Act 1982 (NT) s 7A); in those cases the defendant must satisfy the bail decision maker that they should receive bail.) In Queensland, New South Wales, South Australia, Victoria, Tasmania and Western Australia there is a right to bail or a general presumption that a defendant is entitled to bail: • Bail Act 2013 (NSW) s 20; • Bail Act 1980 (Qld) s 9; • Bail Act 1985 (SA) s 10(1);

• • •

Bail Act 1994 (Tas) s 23; Bail Act 1977 (Vic) s 4(1); and Bail Act 1982 (WA) ss 5 and 7(1).

Grounds for refusing bail 3-5 The right to bail or presumption of bail does not operate in certain circumstances depending on the respective jurisdictions. No right to bail or a presumption of bail exists where the prosecution is able to establish that there is an unacceptable risk (New South Wales, Queensland, Victoria) or likelihood (South Australia) that the defendant if released on bail would engage in certain conduct specified in legislation. This conduct includes failing to appear and committing a (serious) offence while on bail: • Bail Act 2013 (NSW) s 19(2); • Bail Act 1980 (Qld) s 16(1); • Bail Act 1985 (SA) s 10(1)(b); and • Bail Act 1977 (Vic) s 4(2)(d)(ii). Under certain circumstances specified in the respective legislation, for example, in case of murder in Queensland and New South Wales or where the person charged is part of a criminal organisation in Queensland, the burden of proof to establish that the defendant is not an ‘unacceptable risk’ shifts onto the defendant (referred to as a ‘show cause’ situation under: • Bail Act 2013 (NSW) s 16A; • Bail Act 1980 (Qld) s 16(3) and (3A); and • not explicitly referred to as a ‘show cause’ situation under the Bail Act 1985 (SA) s 10A. In Victoria, a presumption against bail operates where a defendant has been charged with treason or murder. In these cases the defendant has to demonstrate exceptional circumstances to the court that justify the making of such an order: Bail Act 1977 (Vic) s 13. The Bail Act 1982 (WA) enunciates certain situations, for example, where the accused is charged with a serious offence committed while on bail (Sch 1 Pt C cl 3A), or where the offender has been charged with

[page 66] murder (Sch 1 Pt C cl 3C), in which the defendant has to demonstrate exceptional circumstances as to why he or she should be released. Yet, where the defendant is able to discharge this burden or to establish certain circumstances it is possible to receive bail even in these situations.

Underlying considerations of bail decision 3-6 While the circumstances establishing a right to bail or a presumption of bail vary between Australian jurisdictions, the considerations underpinning the decision to grant bail are similar throughout Australia. These considerations include the personal background of the accused, the nature and seriousness of the offence committed, the commission of any prior (similar) offences, any prior violation of bail conditions, the time a person would spend in custody, special needs of the accused as well as the accused’s need to receive legal advice. After the bail granting authority has assessed whether a person should or should not receive bail in light of the respective Bail Act, the following needs to be considered during the bail decision-making process.

Forms and conditions of bail 3-7 Diverse types of bail as well as possible bail conditions are available in different Australian jurisdictions.

Cash bail 3-8 The type of bail differs between Australian jurisdictions. In Queensland, a magistrate or police officer may grant a defendant cash bail where the magistrate adjourns the hearing of a charge that is not an indictable offence (note that certain offences are excluded). In that case the defendant does not have to enter into a bail undertaking (Bail Act

1980 (Qld) s 14A) but merely deposits cash. Cash bail is not available in Queensland in superior courts. Cash bail is also available in certain circumstances from a police officer in Victoria: see Bail Act 1977 (Vic) s 11. The consequence of cash bail is that where a defendant fails to appear in court, the money paid is forfeited while no offence against the Bail Act as such is committed.

Bail undertaking 3-9 Generally, in order to receive bail an accused must enter into a bail undertaking in most Australian jurisdictions. A bail undertaking is a written undertaking signed by the accused or an accused and their surety stating that the accused will attend a hearing or trial at a later stage and surrender into custody (the exception to entering into an undertaking is cash bail as explained above); see: • Bail Act 1992 (ACT) s 28; • Bail Act 1982 (NT) s 25; • Bail Act 1980 (Qld) s 20; [page 67] • Bail Act 1985 (SA) s 6(1); • Bail Act 1994 (Tas) s 7(2)(a); • Bail Act 1977 (Vic) s 5; and • Bail Act 1982 (WA) s 28. In New South Wales the relevant authority issuing bail must give the accused a bail acknowledgment rather than an undertaking. The bail acknowledgment must be signed by the accused and requires the accused person to appear before court: Bail Act 2013 (NSW) s 33. Where a person does not appear at a later stage or fails to comply with their bail conditions, an offence against the respective Bail Act is committed (see below for further explanations). Also, in that case the accused or surety will generally not be able to receive back any money paid in relation to the bail undertaking.

Bail conditions 3-10 A bail undertaking may be subject to certain bail conditions where the bail decision maker believes imposing said conditions is necessary to reduce the risks associated with bail. Where a bail undertaking does not specify any conditions, so-called unconditional bail, the accused’s only duty is to attend the next court hearing. However, where bail conditions apply the accused has to comply with any specified conditions and failing to comply without a reasonable cause may constitute an offence against the respective Bail Act; see: • Bail Act 1991 (ACT) s 49; • Bail Act 2013 (NSW) s 79 • Bail Act 1982 (NT) s 37B; • Bail Act 1980 (Qld) s 29; • Bail Act 1985 (SA) s 17; • Bail Act 1994 (Tas) s 9; • Bail Act 1977 (Vic) s 30; and • Bail Act 1982 (WA) s 51. (Note the burden of proof to demonstrate reasonable cause as to a failure to comply generally lies with the accused.) An accused who is in breach of their bail conditions may be arrested. Bail conditions are usually imposed to ensure that the defendant will not abscond, tamper with evidence or witnesses, or commit other offences while on bail. Bail conditions must generally be reasonable in light of the offence and be no more onerous than necessary. While some conditions are of a financial nature, others relate to the conduct of the accused.

Financial bail conditions 3-11 Financial bail conditions may include the release of the accused on an undertaking with a deposit of money and/or other security and/or with a surety: • Bail Act 1992 (ACT) s 25; [page 68]

• • • • •

Bail Act 1982 (NT) s 27(2); Bail Act 1980 (Qld) s 11(1); Bail Act 1985 (SA) s 11(2); Bail Act 1977 (Vic) s 5(2); and Bail Act 1982 (WA) Sch 1 Pt D cl 1.

Surety 3-12 A surety is a person who guarantees the courts that the accused will attend future hearings through signing the bail undertaking and depositing the required sum; see, for example, s 21 of the Bail Act 1980 (Qld) and s 35 of the Bail Act 1982 (WA) s 35. Where the accused fails to attend subsequent hearings, the deposit is generally forfeited. Not every person can act as a surety. In most jurisdictions the surety must, for example, fulfill all or a number of the following requirements: • be at least 18 years old; • have no convictions for an indictable offence; • not be a patient under the Mental Health Act; • not be under guardianship; • not be insolvent; and • not be worth less than the required amount in bail. See, for example, s 9 of the Bail Act 1977 (Vic). Whether a person meets these requirements is in the discretion of the bail granting authority. A surety can apply to be discharged from their obligation if they fear that the accused does not comply with the undertaking; see, for example, s 36 of the Bail Act 1992 (ACT), s 23 of the Bail Act 1977 (Vic) and s 48 of the Bail Act 1982 (WA).

Bail conditions relating to conduct 3-13 In addition to the above described financial conditions, courts can order certain conduct-related conditions relevant for the specific case at hand, while keeping in mind that the conditions imposed must not be more onerous than necessary in the circumstances. For example, an accused could be ordered to: • present at the local police station at certain hours of the day/week;

• • •

undergo treatment programs; surrender their passport; reside at a certain address and not leave the house before/after a certain hour; • not take drugs or consume alcohol; or • have no contact or associate with certain persons including victims and witnesses. Further, see: • Bail Act 1992 (ACT) s 25(4); • Bail Act 2013 (NSW) ss 25 and 28; [page 69] • •

Bail Act 1982 (NT) s 27A(a) and (b) (referred to as conduct agreement); and Bail Act 1985 (SA) s 11 (2).

Bail after conviction pending appeal 3-14 The above discussed bail applications prior to the conviction of an accused. An accused who has been convicted and is appealing his or her conviction can also apply for bail depending on the respective jurisdiction. The situation regarding bail before and after conviction differs as the presumption of innocence no longer operates where an accused has been found guilty. Therefore, where a defendant wishes to apply for bail pending their appeal they must demonstrate exceptional circumstances to the bail granting authority as to why they should receive bail. In United Mexican States v Cabal [2001] 209 CLR 165 at 181–2 the High Court outlined that they would grant bail subject to mainly two conditions: (1) there are strong grounds that an appeal will be allowed; and (2) the custodial part (the sentence) is likely to have been substantially served prior to the determination of the appeal. 3-15 Before tackling the following questions, please check that you are familiar with the following:

✓ two-tier decision in the context of the charging decision; ✓ right to/presumption of bail; ✓ considerations when refusing bail; ✓ bail conditions; ✓ bail while awaiting appeal; and ✓ consequences of violating bail conditions.

Question 1 Joe and Sophia Massouri have been married for just over two years. During this time Joe has continuously beaten, raped and sexually assaulted Sophia. Joe comes from a wealthy family which has been involved in local and national politics for decades. While Joe’s brothers are highly influential members of the current government, Joe is a wealthy business owner. Joe frequently supports the current government’s endeavours by making donations and by organising fund-raisers within legal limits. Joe met Sophia on a holiday in a developing country and brought her to Australia to marry. They have been living in Australia ever since. Sophia’s family is very poor. To survive they rely on Sophia sending money provided by Joe every month. Sophia puts up with the situation as she [page 70] sees no way out in this foreign country and wants to ensure the survival of her family back home. On 20 July 2015 Joe returns home from a gala ball in an extremely aggressive mood. He immediately starts yelling at Sophia in front of the butler, housekeeper and gardener that she is a ‘piece of garbage’ and that she does not deserve the lifestyle he is offering her. Joe tells the staff to ‘piss off’, otherwise he will fire them. The household staff depart immediately. Subsequently Joe starts beating Sophia who is unable to defend herself. He drags her to the bedroom and has sexual intercourse with her against her will. Sophia screams and loudly begs him to stop. Sophia’s screams and begging from behind the bedroom door are heard by the butler, the housekeeper and the gardener downstairs who telephone for the police to come and intervene. By the time the police arrive Joe is sitting in the small salon fully dressed while Sophia is lying in bed in tears. She is showing signs of domestic violence and rape. When police interview Joe he states that he has been sitting in the salon since his return from the ball and does not know what is going on with Sophia. He tells the police that he does not appreciate them snooping around. He states that should anything come of this event it will be extremely embarrassing for the current government given that both of his

brothers are influential members. He also makes clear that no more money will come the government’s way should anything happen to him. Ultimately he points out that he will ensure that anyone who makes a charging decision will be fired. When Sophia is interviewed, she says her injuries stem from running against a door and that she is emotional due to a movie she has been watching. She says she does not wish for her husband to be prosecuted and will not be able to testify anything relevant. The butler, housekeeper and gardener describe their observations of the evening as well as similar behaviour in the past and indicate that they will be able to give evidence in court. A background check on the butler shows that he has been convicted of perjury for lying in court once in 2005 in an unrelated matter. Medical evidence shows that Sophia’s injuries are consistent with the infliction of violence and rape rather than running against a door. The current government has identified domestic violence as a major problem in today’s society and has only recently published a report entitled ‘Together We Will End Domestic Violence’. The government has therefore made ending domestic violence one of the main goals of its current term. You are working for the DPP and are asked to prepare advice for your supervisor on whether the DPP should charge Joe for non-fatal and sexual offences against Sophia. Time allowed: 50 mins

[page 71]

Answer Plan There are two issues in relation to the charging decision which need to be addressed: (i) First tier: sufficient evidence? (reasonable prospect of conviction). • Joe’s confession? • Sophia’s witness statement? • Butler? Perjury conviction. • Housekeeper and gardener? Heard screams from bedroom but did not see violent acts. Sufficient? • Medical evidence? (ii) Second tier: public interest. • Considerations relating to the public interest. • Irrelevant considerations.

Answer 3-16 Joe should be charged with the respective offences if the two-tier test relevant for the charging decision can be satisfied. Therefore it has to be assessed first whether there is sufficient evidence that supports a reasonable prospect of conviction against Joe and second whether the prosecution is in the public interest.

(i) First tier: sufficient evidence 3-17 In order to assess whether Joe should be charged, it is necessary to assess whether there is sufficient evidence that supports a reasonable prospect of conviction. Where such evidence is missing no charges should be laid. Depending on the Guidelines in the respective jurisdictions: • Office of the Director of Public Prosecutions (ACT), The Prosecution Policy of the ACT, cll 2.4–2.7; • Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, cl 4(2); • Office of the Director of Public Prosecutions (Qld), Director’s Guidelines, cl 4(i); • Office of the Director of Public Prosecutions (SA), Prosecution Policy ‘The Decision to Prosecute’; • Office of the Director of Public Prosecutions (Tas), Prosecution Guideline, ‘The Role of an Independent Prosecutor and Guidelines for the Exercise of the Discretion to Prosecute’; • Office of the Director of Public Prosecutions (Vic), Prosecution Policies, The Prosecutorial Decision, cll 2–3; • Office of the Director of Public Prosecutions (WA), Statement of Prosecution Policy and Guidelines (2005), cll 6 and 24, [page 72] (and note that the Northern Territory Guidelines are currently under

review and not publicly available), the following can be taken into consideration when assessing a reasonable prospect of conviction: • availability and competence of witnesses and other evidence; • honesty and reliability of witnesses; • possible attacks on witnesses’ credibility; and • admissions of the accused. This book focuses on criminal procedure and not on the law of evidence. Evidential issues will therefore not be discussed in detail. Yet, the following matters would have to be taken into consideration. In the case at hand Sophia states that her injuries have arisen due to running against a door and that she will not be able to testify anything against her husband. This raises doubt regarding the quality of her testimony. In addition, the accused states that he was sitting in the salon since returning from the ball and has nothing to do with any of Sophia’s injuries. While the household staff stated what they had heard that evening and in the past and that they are all available as witnesses, the question arises as to their competence as witnesses. None of the witnesses has seen any acts of domestic violence against Sophia. Yet they have heard Sophia’s screams from the bedroom which in turn has prompted them to phone the police. They may therefore be considered available and competent. Yet, the facts of the case state that the butler has been convicted for perjury in 2005 for lying in court. This matter could form the basis for a potential attack on the butler’s testimony in court. However, nothing indicates that the gardener and the housekeeper are not available and competent to give evidence. While it would have to be taken into consideration that neither saw Sophia being beaten or raped, both can testify that they heard her scream and beg for Joe to stop. Finally, the medical evidence qualifying Sophia’s injuries as consistent with (sexual) violence inflicted by another person and not consistent with running against a door could be taken into consideration. On this basis it seems possible to argue that sufficient evidence exists supporting a reasonable prospect of conviction and thus satisfying the first tier of the test.

(ii) Second tier: public interest 3-18 If the first tier can be satisfied, namely that sufficient evidence is available against an accused, the question has to be considered whether the prosecution is in the public interest. The relevant Guidelines in the respective jurisdictions provide certain factors that have to be taken into consideration when assessing whether the prosecution is in the public interest: • Office of the Director of Public Prosecutions (ACT), The Prosecution Policy of the ACT, cll 2.8–2.9; • Office of the Director of Public Prosecutions (NSW), Prosecution Guidelines, cl 4(3); • Office of the Director of Public Prosecutions (Qld), Director’s Guidelines, cl 4(ii); [page 73] •

Office of the Director of Public Prosecutions (SA), Prosecution Policy ‘The Decision to Prosecute’; • Office of the Director of Public Prosecutions (Tas), Prosecution Guideline, ‘The Role of an Independent Prosecutor and Guidelines for the Exercise of the Discretion to Prosecute’; • Office of the Director of Public Prosecutions (Vic), Prosecution Policies, The Prosecutorial Decision, cll 4–5; • Office of the Director of Public Prosecutions (WA), Statement of Prosecution Policy and Guidelines (2005), cll 31–32; and • note that the Northern Territory Guidelines are currently under review and not publicly available. The following factors would have to be considered regarding public interest and the factors enshrined in the Australian Capital Territory Guidelines will be taken into consideration to allow for a detailed example. Students would need to confirm whether all of these are relevant in their respective jurisdiction. The alleged offences, namely non-fatal offences against the person and sexual offences, are of a serious nature. This is particularly highlighted by the fact that the

government has made ending domestic violence one of their main goals. In addition, it would have to be considered whether the victim has any special attributes relevant to public policy. Here it appears that Sophia is especially vulnerable. The facts of the case state that Sophia puts up with her situation as she feels she has ‘no way out in this foreign country’ and so she can send money home to her struggling family. Another relevant consideration is the effect of the decision on public morale and order. Given that one of the government’s main goals is ending domestic violence, charging Joe with domestic violence offences could be seen as positive for the public morale. Furthermore, the prevalence of the alleged offence and the need for deterrence have to be assessed. The facts of the case point out that the government has identified domestic violence as a major problem in today’s society and outlined the need for ending it immediately. It can therefore be argued that the offences in question are prevalent in society and that the need for deterrence is severe. The factors to consider also include whether the alleged offence is of public concern which is the case with domestic violence for the reasons discussed above. Ultimately, the public interest and the charging decision can also depend on the need to maintain public confidence in institutions such as parliament and courts. It could be argued that charging a person despite their potential financial support of the government could maintain public confidence in parliament and courts. On the other hand, the attitude of the victim has to be taken into consideration. Sophia argues that Joe did not commit any offences against her and that she won’t be able to testify anything relevant in court. She also points out that she is opposed to any prosecution of her husband. [page 74] Yet, it needs to be noted that the victims’ attitudes are only one consideration among many. In light of the above, it could be argued

that charging Joe with the offences against Sophia is in the public interest despite Sophia’s wishes. None of the factors raised by Joe can be taken into consideration during the course of the charging decision. Whether Joe has influential brothers in the current government and would withdraw financial support is equally as irrelevant as per the Guidelines as his threat that anyone who makes a charging decision against him will be dismissed from their position. As a conclusion, the supervisor should be advised that Joe should be charged with the respective offences as both tiers of the charging decision are likely satisfied in this case.

Examiner’s Comments 3-19 The question required an in-depth examination of the underlying principles of the prosecutorial charging decision. Students should avoid considering the question of sufficient evidence and public interest together as the requirements differ. In addition, students should outline that where no sufficient evidence exists public policy considerations do not become relevant. Students were also expected to provide an in-depth examination of the facts of the case and to apply the law to the facts.

Keep in Mind You should avoid the following common errors: • Not understanding what the question asks you to do. • Not explaining that the charging decision is based on two distinct tiers. • Not sufficiently analysing the question of whether there is sufficient evidence including the credibility of the different witnesses in order to establish whether the first tier is satisfied. • Not engaging in a detailed assessment of the individual factors relevant for public policy considerations and failing to apply the

•

law to the facts of the case in the context of the second tier. Failing to identify that Joe’s threats and arguments are irrelevant considerations for the charging decision as per the Guidelines.

Question 2 Ivan Novak, who is 21 years old, came to Australia with his family when he was 10 years old from what was then called Yugoslavia. He holds dual Australian and Bosnian citizenship but only has an expired Bosnian passport. Ivan lives with his parents in Australia and has no relatives left living in Bosnia. Yet, he has a brother living in Croatia. He has a girlfriend [page 75] in Australia who lives close to his parents. He works as a tradesperson apprentice and has been described by his supervisor as very unreliable. Ivan has a number of criminal convictions, the most significant being several robbery convictions and two very serious possession of dangerous drugs charges. He has been treated in the hospital for overdosing on drugs several times in the past and failed a urine drug test while on parole for another offence, which amounted to a breach of his parole order. On 1 July 2015 Ivan was arrested for perjury (giving false testimony) in a hearing which took place on 1 June 2015. He is alleged to have given false testimony during that hearing about his involvement in a drive-by murder. At a pre-trial hearing for the perjury trial, Ivan applied for bail but this was refused by the judge. When considering the bail application the judge found that in Ivan’s favour it had to be considered that he did not flee the country during the month between testifying at the hearing and his subsequent arrest. However, the judge ultimately refused bail because of Ivan’s history of drug offences and the risk that Ivan would reoffend while on bail, the seriousness of the perjury charge, his unsatisfactory employment record as well as the flight risk to Bosnia (making it likely that he would not appear at trial and commit further offences while on bail). Ivan thinks that this is unfair. He believes that there is no flight risk as Australia exercises control over its ports and it would be impossible for him to flee to Bosnia. He believes that his criminal history shows no pattern of repeat offending of any particular type of offence and believes he is not likely to reoffend while on bail. While he admits that he has breached a parole order in the past due to drug use, he thinks this should have nothing to do with his current bail application. (i) Please advise Ivan on the relevant bail considerations and whether the judge’s decision to refuse bail is justified. (ii) Would your advice be different if Ivan was not suspected of committing perjury in relation to a drive-by murder but suspected of committing murder? Explain why or

why not. (iii) Ivan is convicted of perjury but is aiming to appeal his conviction on various grounds. Is there a right to bail after a conviction and pending appeal? If so, what are the general requirements? Time allowed: 50 mins

Answer Plan (i)

Advice on bail related to perjury charge. • General right to bail or presumption of bail? • Refusal to grant bail due to unacceptable risk? • Seriousness of the offence. [page 76]

– Character and background of the accused. – History of the defendant. – Strength of evidence against the defendant. (ii) Advice on bail related to murder charge. • General right to grant bail or presumption of bail? • Show cause situation? • Has Ivan shown cause? (iii) Bail after conviction and before appeal. • No prima facie right to bail/presumption of bail. • Conditions for release on bail after conviction. – Strong grounds that an appeal will be allowed. – Custodial part (the sentence) is likely to have been substantially served prior to the determination of the appeal.

Answer (i) Advice on bail related to perjury charge

3-20 Many Bail Acts in Australia set out that the accused has a general right to bail or enshrine a general presumption that a defendant is entitled to bail; in the two territories, the Northern Territory and the Australian Capital Territory, a defendant is entitled to bail unless granting bail is not justified (Bail Act 1992 (ACT) s 9A(2); Bail Act 1982 (NT) s 8(2)(a)) or there is a general assumption against bail. In New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia there is a right to bail or a presumption that a defendant is entitled to bail: • Bail Act 2013 (NSW) s 20; • Bail Act 1980 (Qld) s 9; • Bail Act 1985 (SA) s 10(1); • Bail Act 1994 (Tas) s 23; • Bail Act 1977 (Vic) s 4(1); and • Bail Act 1982 (WA) ss 5 and 7(1) in certain circumstances. This might mean that Ivan is generally entitled to bail. In addition, however, the Bail Acts enshrine that under a number of circumstances an accused should not receive bail. Whether the decision to refuse Ivan bail is justified would therefore depend on the relevant considerations set out in the respective Bail Act. As indicated above, no right to bail or a presumption of bail exists where the prosecution is able to establish that there is an ‘unacceptable risk’ (New South Wales, Queensland and Victoria) or likelihood (South Australia) that the defendant if released on bail would engage in certain conduct specified in legislation. This conduct includes failing to appear and committing a (serious) offence while on bail: • Bail Act 2013 (NSW) s 19(2); • Bail Act 1980 (Qld) s 16(1); [page 77] • •

Bail Act 1985 (SA) s 10(1)(b); and Bail Act 1977(Vic) s 4(2)(d)(ii)

or where the bail authority is satisfied that the granting of bail is unjustified: • Bail Act 1992 (ACT) s 9A(2); and • Bail Act 1982 (NT) s 8 (2)(a). Whether releasing Ivan on bail is an unacceptable risk or whether the granting of bail is unjust depends on the circumstances set out in the respective Bail Acts. The circumstances enshrined in the Bail Act 1980 (Qld) are considered below in detail to exemplify whether the granting of bail could be considered an unacceptable risk by the bail decision maker in this case. Students should read the Bail Act in their respective jurisdiction closely to identify whether the same considerations apply. Section 16 of the Bail Act 1980 (Qld) states: 16 Refusal of bail (1)

(2)

Notwithstanding this Act, a court … authorised by this Act to grant bail shall refuse to grant bail to a defendant if the court … is satisfied — (a) that there is an unacceptable risk that the defendant if released on bail — (i) would fail to appear and surrender into custody; or (ii) would while released on bail — (A) commit an offence; or … In assessing whether there is an unacceptable risk with respect to any event specified in subsection (1)(a) the court … shall have regard to all matters appearing to be relevant and in particular, without in any way limiting the generality of this provision, to such of the following considerations as appear to be relevant — (a) the nature and seriousness of the offence; (b) the character, antecedents, associations, home environment, employment and background of the defendant; (c) the history of any previous grants of bail to the defendant;

… In light of the above, it has to be assessed whether there is an unacceptable risk of granting bail in Ivan’s case.

Unacceptable risk that defendant would fail to appear and surrender into custody 3-21 As per the legislation the risk of whether the defendant would fail to appear has to be assessed, including: • in light of the nature and seriousness of the offence;

• the character, antecedents etc of the defendant; and • the history of any previous bail. Whether an unacceptable risk exists that Ivan would fail to appear and surrender into custody will be assessed below. [page 78]

Nature and seriousness of offence 3-22 The facts of the case state that Ivan has allegedly committed perjury in the context of a murder investigation. Perjury is a serious offence as it is likely to attract a prison sentence.

Character, antecedents, associations, home environment, employment and background of defendant 3-23 In Ivan’s favour it has to be considered that he had been arrested over a month after giving the alleged false testimony and could have fled the jurisdiction in the interim if he had wished to do so. Yet, Ivan did not take the opportunity to leave the country. In addition, the facts of the case do not suggest that he has ever failed to appear when previously charged with and convicted of any offences. Further, the facts state that he has a number of community ties: he works as a tradesperson apprentice and lives with his parents; most of his family and his girlfriend also live in Australia; Ivan has been living in Australia since he was 10 years old; he has no family left in Bosnia; and his Bosnian passport has expired. On the other hand, Ivan has a criminal history. The most significant entries are offences of robbery and possession of dangerous drugs. The facts of the case do not suggest that Ivan has currently overcome his drug addiction for which he has been hospitalised a number of times in the past. His employment as a tradesperson apprentice also does not appear to constitute a strong community tie as the facts of the case state that his employer describes him as very unreliable. In addition, the circumstances of Ivan’s case suggest a greater flight

risk for the following reasons. Ivan holds dual citizenship (Bosnian/Australian) despite his expired Bosnian passport. The facts of the case state that his brother continues to live in an overseas jurisdiction, Croatia, which is very close to the country of his citizenship, Bosnia. These circumstances make it more likely that Ivan could successfully obtain flights and take up residence abroad in Bosnia. While Ivan argues that Australia has control over its ports it may nevertheless be possible for him to travel abroad. Finally, the argument that Ivan did not flee the country when he received the notice to appear at the hearing, or even after his appearance, does not necessarily constitute a very important consideration. This is because when Ivan attended the hearing and allegedly committed perjury he was not yet aware as to whether he would be charged with perjury. Ultimately, at that stage there was no reason for him to flee the country, yet. In light of the above considerations, there seems to be an unacceptable risk that the defendant would fail to appear and surrender into custody.

Unacceptable risk that defendant would commit offence 3-24 Second, the question has to be addressed as to whether there is an unacceptable risk that the defendant would commit an offence while on bail. While it may be argued that Ivan’s criminal history did not necessarily [page 79] show any pattern of specific reoffending, for example, robbery and drug offences, and that he was young (he is only 21 now) when most offences were committed, these arguments appear unconvincing. Nothing in the facts of the case suggests that Ivan no longer uses drugs. The facts state that he had to seek hospital treatment several times in the past as he overdosed on drugs. His ongoing drug addiction

makes it likely that he will continue to commit drug offences while released on bail. Ivan’s criminal history contains two serious drug offence convictions. In addition, in the parole incident, he had failed a urine test screening for drugs. All of the above suggests a risk of reoffending in relation to drug offences. This point is enhanced by the fact that Ivan had previously breached a parole order due to drug use suggesting his carelessness in this context. In Ivan’s case there appears to be an unacceptable risk that while released on bail: (1) Ivan would fail to appear and surrender into custody; and (2) Ivan would commit an offence. In light of the above, the judge’s decision to refuse bail appears justified. For further consideration, see Cokara v Director of Public Prosecutions (DPP) (Qld) [2012] QCA 250.

(ii) Advice on bail related to murder charge 3-25 The situation between scenario (i) and (ii) differs as Ivan is suspected of committing murder and not perjury in scenario (ii). In a number of Australian jurisdictions defendants have to show cause or demonstrate exceptional circumstances as to why they should be released on bail where they have committed murder. In some jurisdictions this is referred to as a ‘show cause’ situation (‘show cause’: Bail Act 1980 (Qld) s 16(3) and (3A); Bail Act 2013 (NSW) s 16A; not explicitly referred to as ‘show cause’: Bail Act 1985 (SA) s 10A); the defendant has to demonstrate exceptional circumstances to the court that justify the making of such an order in Victoria (Bail Act 1977 (Vic) s 13) and Western Australia (Bail Act 1982 (WA) Sch 1 Pt C cl 3C). Nothing suggests that Ivan has shown cause or outlined exceptional circumstances as to why there is not an unacceptable risk of him failing to appear at trial and or of committing another offence while on bail. Therefore also in this case it is unlikely that Ivan would be granted bail.

(iii) Bail after conviction and before appeal 3-26 An accused who has been convicted and is appealing his or her conviction can apply for bail depending on the respective jurisdiction. The situation regarding bail before and after conviction differs as the

presumption of innocence no longer operates where an accused has been found guilty. Therefore, where a defendant wishes to apply for bail pending their appeal they must demonstrate exceptional circumstances to the bail granting authority as to why they should receive bail. In United Mexican States v Cabal [2001] 209 CLR 165 at 181–2 the High Court outlined that they would grant bail subject mainly to two conditions: [page 80] (1) strong grounds that an appeal will be allowed; and (2) the custodial part (the sentence) is likely to have been substantially served prior to the determination of the appeal. Whether Ivan could receive bail would thus depend on whether he can meet these two conditions. As the facts of the case merely state that he is planning to appeal on a number of grounds and no information is provided as to how much of the custodial sentence he would have served no definitive answer can be provided as to whether he would receive bail. Thus, after outlining the requirements for bail pending an appeal it would have to be concluded that additional information is required to assess Ivan’s chances of receiving bail under these circumstances.

Examiner’s Comments 3-27 The question required an in-depth examination of the right to bail/presumption of bail and situations in which an unacceptable risk can lead to the denial of bail. It was important to identify the relevant statutory laws relating to bail in the relevant jurisdiction. A detailed assessment of what constitutes an ‘unacceptable risk’ was also necessary. The question could not be sufficiently answered without precisely applying the law to the facts of the case. Considerations in favour of and against bail had to be weighed up in detail in order to ultimately advise as to whether the judge’s decision to refuse bail was justified.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Not pointing out the relationship between right to bail and ‘unacceptable risk’. • Not clearly outlining the statutory requirements for bail considerations. • Not precisely applying the law to the facts of the case. • Not differentiating between factors for and against bail in the case at hand. • Not providing a conclusion as to whether the judge’s decision to refuse bail appears justified.

Question 3 On 7 September 2015 Raymond was arrested for beating his wife Sasi, with whom Raymond was living at the time. Raymond and Sasi have six children together. Raymond has been a heavy drinker for years and has been known to get violent and aggressive when he consumes alcohol. Raymond applied for and received bail on his own undertaking subject to the following conditions: (1) Raymond must reside at a certain nominated [page 81] address; (2) Raymond must comply with the conditions set out in the domestic violence order issued the same day the incident occurred; (3) Raymond must not consume any alcohol; and (4) Raymond must submit to a breath test when so required by police. The prosecution argued that the fourth bail condition relating to breath-testing was necessary to identify whether Raymond had been complying with bail condition (3) (alcohol abstinence) as well as functioning as a necessary deterrent from consuming alcohol. While Raymond generally has no problem with the first three bail conditions and accepts that he is not allowed to consume alcohol while on bail, he believes that having to take breath tests whenever required by police goes too far. (i) Explain to Raymond what bail conditions are and for what reasons they can generally be imposed. (ii) Advise Raymond as to whether bail condition (4) (submitting to breath tests whenever required to do so by police) can generally be imposed and whether this

condition is more onerous than necessary in his case. (iii) Assume all four bail conditions are valid. What are the consequences if Raymond refuses to take a breath test because he does not feel like it when so required by the police? Would your answer change if Raymond failed to appear at the police station and to take the breath test because he was hospitalised after a severe accident? Time allowed: 50 mins

Answer Plan (i)

Explain to Raymond what bail conditions are and why they can be imposed. • Bail undertaking. • General objectives of bail conditions. (ii) Breath-testing as bail condition. • Can breath-testing generally be imposed as a bail condition? (Check whether in line with the objectives). • Was this bail condition more onerous than necessary in this case? (iii) Consequences of violation of bail conditions. • Criminal offence. • Possibility to arrest. • Exception where accused can show reasonable cause.

Answer (i) Bail conditions 3-28 A bail undertaking may be subject to certain bail conditions where the bail decision maker believes imposing said conditions is necessary to [page 82]

reduce the risks associated with bail. Where a bail undertaking does not specify any conditions, so-called unconditional bail, the accused’s only duty is to attend the next court hearing. However, where bail conditions apply the accused has to comply with any specified conditions. Bail conditions are usually imposed to ensure that the defendant will not abscond, temper with evidence or witnesses, endanger members of the public or commit other offences while on bail. They must generally be reasonable in light of the offence and not be more onerous than necessary. While some bail conditions are of a financial nature others relate to the conduct of the accused. Financial bail conditions may include the release of the accused on an undertaking with a deposit of money and/or other security and/or with a surety: • Bail Act 1992 (ACT) s 25; • Bail Act 1982 (NT) s 27(2), • Bail Act 1980 (Qld) s 11(1); • Bail Act 1985(SA) s 11(2); • Bail Act 1977 (Vic) s 5(2); and • Bail Act 1982 (WA) Sch 1 Pt D cl 1. In addition to the above described financial conditions, courts can order certain conduct-related conditions relevant for the specific case at hand while keeping in mind that the conditions imposed must not be more onerous than necessary in the circumstances.

(ii) Breath-testing as bail condition Can breath-testing generally be imposed as bail condition? 3-29 Whether breath-testing can be imposed as a bail condition needs to be primarily assessed by considering the relevant bail legislation in the respective jurisdiction. As pointed out above, the main objectives of bail conditions, which are similar throughout Australia, relate to ensuring that a person appears and surrenders into custody, does not commit any offences while on bail, does not endanger the safety or welfare of the public, and does not interfere with witnesses or otherwise obstructs the course of justice: see, for example, s 11(2) of the Bail Act 1980 (Qld). In addition some Bail Acts contain specific, non-exhaustive

conditions that can be imposed. For example, s 25(4) of the Bail Act 1992 (ACT) states that bail conditions can include: • a requirement that the accused person report periodically, or at specified times, at a stated place; and • a requirement that the accused person reside at a stated place; and • a requirement that the person undergo psychiatric treatment or other medical treatment; and • a requirement that the accused person participate in a program of personal development, training or rehabilitation; and • a requirement that the person accept supervision by the directorgeneral; and comply with any reasonable direction of the directorgeneral. [page 83] Section 27A of the Bail Act 1982 (NT) even explicitly states that an accused person may be prohibited from consuming alcohol or a drug (other than a drug as prescribed for the person by a health practitioner). While bail conditions (1)–(3) seem to fall within the objectives of bail conditions (for example, keeping the accused from interfering with witnesses, ensuring they will attend future hearings, and preventing the commission of future offences), breath-testing as such does not fall within the primary objectives of bail conditions. It is also not explicitly listed as a possible exemplary bail condition in any jurisdiction. Therefore the question arises as to whether it could be imposed as an ancillary power to the ones listed. One of the permissible objectives for bail conditions is to prevent further offending while on bail. As Raymond is known to become violent when consuming alcohol, prohibiting the consumption of alcohol while on bail appears within the objectives of the bail conditions. It could thus be argued that monitoring the consumption of alcohol through random screenings could be ancillary to a permitted objective of the bail conditions and thus valid in itself: see R v Connors (2012) 223 A Crim R 162. This line of argument, however, was rejected in Lawson v Dunlevy [2012]

NSWSC 48, where it was held that random alcohol screenings do not fall under the primary objectives of bail conditions in New South Wales and can thus not be imposed as a bail condition. Regardless of the above, bail condition (4) would be invalid if the condition had to be considered more onerous than necessary. This will be discussed below.

Bail condition more onerous than necessary 3-30 When considering the validity of bail conditions, condition (4) should be assessed as to whether it is more onerous than necessary as such a condition would be invalid. In Lawson v Dunlevy [2012] NSWSC 48 the bail condition to undergo random breath tests was considered more onerous than necessary as the condition did not specify: • that the police officer making the request needed to have a reasonable suspicion that the person had consumed alcohol; • the location for, or the method of, testing to which a person may be subject; or • the number of times in one hour or one day that a person could be requested to undergo a breath test. In light of the above it was argued in Lawson v Dunlevy that an accused could be subject to a large number of tests in one day and could be asked by police officers to undergo a test a long distance from the accused’s home making it difficult for an accused without transport to comply with the request. Due to these reasons the condition was considered far more onerous than could possibly be required in the circumstances prevailing in the matter. This, however, does not mean that a similar condition could not be imposed if it were more narrowly defined. [page 84] The facts at hand are similar to the facts of Lawson v Dunlevy. In

this case bail condition (4) is also vague and does not contain any specifications as to how many tests can occur in one day as well as where and how the tests have to be undertaken. Therefore in this case it seems possible to argue that bail condition (4), the breath-testing condition, is more onerous than necessary making bail condition (4) overall invalid.

(iii) Consequences of violation of bail conditions 3-31 The question assumes that all four bail conditions are valid. Where Raymond fails to comply with a bail condition imposed on him via his bail undertaking he is probably committing a criminal offence enshrined in the Bail Act if he has no reasonable cause for his noncompliance; see: • Bail Act 1991 (ACT) s 49; • Bail Act 2013 (NSW) s 79; • Bail Act 1982 (NT) s 37B; • Bail Act 1980 (Qld) s 29; • Bail Act 1985 (SA) s 17; • Bail Act 1994 (Tas) s 9; • Bail Act 1977 (Vic) s 30; and • Bail Act 1982 (WA) s 51. (Note the burden of proof to demonstrate reasonable cause as to why he failed to comply generally lies with Raymond.) Raymond could therefore be arrested for an offence against the respective Bail Act. The answer would differ in the case where Raymond failed to attend the breath-testing at the police station because he was hospitalised after a severe accident. In this case Raymond would be able to show reasonable cause for failing to comply with the bail condition by providing medical evidence relating to his illness and hospital stay. In this case his conduct would likely not constitute an offence against the Bail Act and he would not be in violation of his bail undertaking.

Examiner’s Comments

3-32 The question required an in-depth examination of the objectives and validity of bail conditions. It was important to identify why courts may impose bail conditions and to assess in detail whether bail condition (4) relating to breath-testing was valid and not onerous in the case at hand. In addition, students had to identify the consequences that arise where an accused is in violation of their bail conditions and note that exceptions can apply where an accused has reasonable cause for non-compliance.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. [page 85] • • •

•

Not clearly identifying the reasons behind imposing bail conditions in relation to the relevant bail legislation. Not precisely applying the law to the facts of the case. Not providing a conclusion as to whether bail condition (4) relating to breath-testing in the case at hand is more onerous than necessary. Not differentiating between violating bail conditions with and without reasonable cause.

[page 87]

Chapter 4

Indictment, Pleas and Double Jeopardy

Key Issues 4-1 Chapter 3 discussed the considerations relevant to the charging decision and the decision to continue prosecutions. In addition, it outlined the requirements for receiving bail prior to and during the criminal trial as well as pending appeal. After a person has been charged with an indictable offence and committed to a higher court the Attorney-General or Director of Public Prosecutions (DPP) has to decide whether to present an indictment to the higher court (in some jurisdictions within a specific timeframe) after which the matter will be set down for trial. This chapter deals with indictments with and without prior committal proceedings before discussing pleas and their effects as well as matters relating to the double jeopardy principles.

Indictment 4-2 Indictable offences are usually more serious offences heard by judge and jury mostly in higher courts. They differ from summary offences which are usually less severe offences over which a magistrate has original jurisdiction.

Indictment after committal hearing

4-3 In Australia, prosecution of an indictable offence usually follows a committal process led by a magistrate, aimed at identifying whether there is sufficient evidence to commit the defendant to trial in a higher court or whether a reasonable prospect of conviction exists. In the past, committal proceedings were mainly oral hearings where evidence could be tested by prosecution and defence. Yet, over the course of the past two decades many Australian jurisdictions have changed the procedure to a process where witnesses’ statements are tendered in writing rather than verbally (so-called ‘paper committal’ or ‘hand-up committal’). Some jurisdictions, Tasmania and Western Australia, have abolished committal proceedings altogether. After a person has been committed, the Attorney-General or DPP must decide whether to proceed to trial based on the evidence presented during the committal process and in accordance with the considerations in the respective Guidelines outlined in Chapter 3. [page 88] Where the Attorney-General or DPP intends to proceed, an indictment must be presented to the respective higher court. In some jurisdictions there is a time limit regarding how long after the committal hearing the indictment must be presented. For example, the indictment has to be presented within six months after the date the person has been committed to trial in Queensland and Victoria: Criminal Code (Qld) s 590(1); Criminal Procedure Act 2009 (Vic) s 163. In New South Wales it must be presented within four weeks after the committal of the accused person for trial: Criminal Procedure Act 1986 (NSW) s 129(2). While it is necessary to understand that indictments are usually presented after committal proceedings have taken place, the particulars of committals are not the focus of this chapter and will not be discussed in further detail. The power of the Attorney-General or DPP to present indictments without prior committal proceedings is discussed below.

Formalities of indictments

4-4 Indictments are written statements outlining a charge or a number of charges to which the defendant will subsequently have to plead. While special pleas are available (see double jeopardy below) the most common pleas are guilty or not guilty. The objectives of indictments have been characterised as follows in R v Janceski (2005) 64 NSWLR 10 at 22 per Spigelman J: Most of the functions performed by the process which initiates criminal proceedings, particularly an indictment for serious offences, have been fully satisfied by the precise terms of the charge appearing, as it does, in the same form in the various indictments. These include: (i) (ii) (iii) (iv) (v)

Informing the court of the precise identity of the offence with which it is required to deal … Providing the accused with the substance of the charge which he or she is called upon to meet, including identification of the essential factual ingredients … Enabling the court to ensure that only relevant evidence is admitted and to properly instruct the jury on the relevant law … Determining the availability of a plea of autrefois acquit and autrefois convict … To invest the trial court with jurisdiction to hear and determine the prosecution …

4-5 Therefore indictments must contain certain formalities. An indictment must generally contain: the court in which the offence will be tried; a description of the alleged offence(s) including the essential legal elements; the time, the place and the manner in which the alleged offence took place; and, where relevant, the particulars of the aggrieved and of property involved in the offence: • Crimes Act 1900 (ACT) Pt 12; • Criminal Procedure Act 1986 (NSW)Ch 2 Pt 2; • Criminal Code (NT) s 305; • Criminal Code (Qld) s 564(1); [page 89] • • • •

Criminal Law Consolidation Act 1935 (SA) s 277 (generally referred to as information); Criminal Code (Tas) Ch XXXVIII; Criminal Procedure Act 2009 (Vic) Pts 5.2–5.3; Sch 1; and Criminal Procedure Act 2004 (WA) s 85; Sch 1 Div 2 cl 5(1).

In a number of Australian jurisdictions it is sufficient that the indictment describes the offence by using the same words that the respective section in a statute, Act or other legislative instrument uses. Being able to rely on the language of the statutory provision itself rather than having to produce a description has the potential to reduce mistakes in indictments: • Criminal Procedure Act 1986 (NSW) s 11; • Criminal Code (Qld) s 564(3); and • Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cl 5(2)(a). In South Australia, Tasmania, the Northern Territory and Victoria, legislation specifies that the charges in an indictment must be provided in ordinary language: • Criminal Code (NT) s 305(3); • Criminal Law Consolidation Act 1935 (SA) Sch 3 r 4(3) and (4); • Criminal Code (Tas) ss 312 and 317; and • Criminal Procedure Act 2009 (Vic) Sch 1 regs 2 and 7. 4-6 Where indictments fail to contain the required formalities, they are defective. Not all defective indictments, however, will result in an invalid indictment as not all defects lead to a miscarriage of justice. Some jurisdictions set out specific circumstances in which certain defects do not affect the indictment: • Crimes Act 1900 (ACT) s 260 (for example, imperfect statement of time); • Criminal Procedure Act 1986 (NSW) s 16 (for example, offence committed on an impossible day, stating the time of an offence wrongly unless time is an essential ingredient); • Criminal Code (NT) s 311 (for example, indictment not to be quashed where formal defect does not cause surprise or uncertainty to be accused); and • Criminal Procedure Act 2009 (Vic) s 166 (for example, omitting or incorrectly stating the time, stating an impossible day for the offence). Whether a conviction based on a defective indictment will stand depends on whether the particular error prejudiced the defendant and

led to a miscarriage of justice: see R v Ayers [1984] AC 447. In some cases the indictment is so flawed that it has to be considered a nullity rather than only defective. This has been found to be the case where an indictment failed to contain the mental elements of the offence: see Doja v R (2009) 198 A Crim R 349. In such cases no charges would have been laid and a subsequent trial would be a nullity. [page 90] In the case where a defective indictment is noticed at the beginning of the trial, the defence can object to the indictment. In that case a court can order the provision of particulars to the accused. Otherwise, the indictment can also be amended: • Criminal Procedure Act 1986 (NSW) ss 17 and 18; • Criminal Code (NT) s 312; • Criminal Code (Qld) s 573; and • Criminal Procedure Act 2004 (WA) s 131(3).

Amendment of indictment 4-7 Any time before or during the trial, where necessary, indictments can be amended if the amendment is not material to the merits of the case or would disadvantage or lead to injustice for the accused. For example, an amendment may be necessary where the indictment and evidence vary, where a count is missing or where certain words are missing from or have incorrectly been inserted into the indictment: • Crimes Act 1900 (ACT) s 264; • Criminal Procedure Act 1986 (NSW) ss 20 and 21; • Criminal Code (NT) s 312; • Criminal Code (Qld) s 572; • Criminal Law Consolidation Act 1935 (SA) s 281(2); • Criminal Code (Tas) s 326(1); • Criminal Procedure Act 2009 (Vic) s 165; and • Criminal Procedure Act 2004 (WA) s 132.

Requests for amendment of the indictment by the prosecution may not always be successful. For example, in R v MacDonald (1995) 65 SASR 322, an accused was charged with sexual offences particularised to have occurred on certain dates which were important to the offences and to the defence of the accused. The trial judge refused leave for an amendment of these particulars as the defendant would otherwise have had to face an essentially new case at a late stage.

Joinder of counts 4-8 The general rule in a number of Australian jurisdictions is that there is one count, that is, offence, per indictment and that the indictment must generally only relate to one accused: • Criminal Code (Qld) s 567(1); • Criminal Code (Tas) s 311(2); and • Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cl 2(2) and (3). Yet, there is the possibility to join several charges or charges against several defendants in one indictment if certain circumstances are fulfilled: • Crimes Act 1900 (ACT) s 269; • Criminal Procedure Act 1986 (NSW) s 29 (accused and prosecution consent, offences arise out of the same circumstances, offences form part of a series of offences of the same or similar character); [page 91] •

• • •

Criminal Code (NT) ss 309 (same set of facts or part of a serious of offences of similar character, or a serious of offences committed in the prosecution of a single purpose) and 308; Criminal Code (Qld) ss 567(2) and 568(12); Criminal Law Consolidation Act 1935 (SA) s 278(1) (same facts, or form part of series of offences of the same or similar character); Criminal Code (Tas) s 311(2) (arise out of substantially the same

facts, form part of a series of similar character); • Criminal Procedure Act 2009 (Vic) ss 170, 193 and 195; Sch 1 reg 5; and • Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cll 7–9. Although the conditions for joining several charges in one indictment vary between jurisdictions, a joinder is generally possible where the offences are based on the same/similar set of facts (factual nexus) or form part of a series of offences (of similar character). Some defendants may prefer to have a number of charges heard in the one trial to finalise matters speedily and to avoid numerous trials. Yet, others may object to a joinder particularly where evidence is submitted that is only admissible on one count but not on another. This holds the risk that the jury could take inadmissible evidence into consideration. Therefore, even where a joinder is permissible in the respective jurisdiction, the court still has discretion to separate charges where the evidence relevant for one charge may prejudice jurors regarding another charge and thus lead to an unfair trial or where joint charges could embarrass the accused: • Criminal Procedure Act 1986 (NSW) s 21(2) (prejudiced or embarrassed); • Criminal Code (NT) s 341 (prejudice or embarrassed); • Criminal Code (Qld) s 597A (prejudiced or embarrassed); • Criminal Law Consolidation Act 1935 (SA) s 278(2) (prejudiced or embarrassed); • Criminal Code (Tas) s 326(3) (prejudiced or embarrassed); • Criminal Procedure Act 2009 (Vic) ss 193, 195; and • Criminal Procedure Act 2004 (WA) s 133(3)(4) (prejudiced). The accused can make an application to the court for the separation. R v Spina [2005] VSCA 319 at [106] discussed joinder of charges (citing R v Reid [1999] 2 VR 605) and found that: [I]t is desirable to mention that it has long been accepted that the rule should receive a liberal interpretation consistent with the policy underlying it, namely, to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together. This involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in

respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and

[page 92] expeditious and final litigation as well as with the convenience of witnesses. The requirement that the charges are to be founded on the same facts does not mean that the facts in relation to the charges must be identical in substance or be virtually contemporaneous. It is sufficient if the charges have a common factual origin … or if there is a sufficient connection or nexus between them … In order to determine if the relevant nexus exists, one has regard to the charges and, broadly, the evidence that is to be led in relation to them by the parties.

Indictment without committal hearing 4-9 The above outlined that indictments are generally presented to a higher court after a committal process has taken place and the accused has been committed to trial. Yet, the Attorney-General or DPP have the right to present an indictment to the relevant court with or without previous committal. That means an indictment can be presented where no committal process has occurred, where the accused has not been committed or where the committal hearing did not relate to certain offences the prosecution subsequently wishes to charge. This form of indictment is frequently referred to as ex officio or direct indictment: • Criminal Procedure Act 1986 (NSW) s 8(2); • Criminal Code (NT) s 300; • Criminal Code (Qld) s 561; • Criminal Procedure Act 2009 (Vic) s 161; and • Criminal Procedure Act 2004 (WA) s 83(6). The prosecution generally has discretion as to whether they will present a direct indictment and the decision is not subject to judicial review: Maxwell v R (1996) 184 CLR 501; Barton v R (1980) 147 CLR 75. The direct indictment, however, can be refused by a court where the ex officio indictment constitutes an abuse of process (for example, intentional circumvention of committal process and thus depriving the accused of a chance to test the evidence and placing him or her at a disadvantage).

Pleas 4-10 A trial for an indictable offence commences with the reading of the indictment to the accused, the so-called arraignment. The accused is subsequently asked how they plead to the charges. Where the defendant pleads guilty and the court accepts the plea, a sentencing hearing will follow. An accused is free to plead guilty even where they have not committed the offence: see Meissner v R (1995) 184 CLR 132. Reasons as to why an innocent accused may choose to plead guilty include speedy settlement of the issue and avoiding an unsettling and lengthy trial experience as well as potential benefits resulting from a deal with the prosecution based on an early plea of guilty: see Kumar v DPP [2013] VSCA 297. Matters relating to sentencing are discussed further [page 93] in Chapter 6 in the context of appeals. Where the defendant pleads not guilty the trial commences. A defendant is free to change their plea from not guilty to guilty anytime during the trial. While the accused may be able to withdraw their guilty plea prior to sentencing, withdrawing may be difficult especially where the accused was legally represented when entering the guilty plea: see Kumar v DPP [2013] VSCA 297. In this instance, the accused has the onus to establish why not being able to withdraw a guilty plea would lead to a miscarriage of justice. Ultimately, it is in the court’s discretion as to whether a plea of guilty may be withdrawn: see Chow v DPP (NSW) (1992) 28 NSWLR 593. A court may reject a guilty plea where they believe the plea was not voluntarily made, for example, where it was entered into due to force, fear, intimidation or inducement: Meissner v R (1995) 184 CLR 132; Maxwell v R (1996) 184 CLR 501.

Double jeopardy 4-11

The principles relating to double jeopardy set out that an

accused cannot be tried twice for the same offence. This principle includes that a person cannot be retried for an offence of which they have previously been acquitted or convicted; an earlier acquittal cannot be undermined by a subsequent conviction even for a different offence (see R v Carroll (2002) 213 CLR 635), and a person cannot be punished twice for essentially the same criminal act (arising from the same set of circumstances). The double jeopardy rule was mainly introduced to ensure that convictions or acquittals were final and a prosecution could not be repeated at a later stage. When assessing whether the double jeopardy rules apply, it is necessary to compare the different elements of an offence and to identify whether they overlap. The principle applies only where the elements of different offences are wholly identical. That means the double jeopardy principle does not operate where the offences arise out of the same conduct but have led to different consequences as the elements would not be wholly identical. See, for example, Pearce v R (1998) 194 CLR 610, where the accused was convicted for a number of charges (beating victims) arising out of a single event, namely breaking into a house, as the double jeopardy rules did not apply (note that double jeopardy is different to the question of double punishment, which is relevant to sentencing considerations). On matters relating to sentencing, see Chapter 6. Where, at the beginning of the trial, an accused points out that the prosecution should not go ahead for reasons of double jeopardy, they can either rely on a special plea (autrefois acquit and autrefois convict) or a statutory defence: Criminal Code Act 1899 (Qld) s 17, depending on the requirements of the respective jurisdiction. Ultimately, a court would have to order a stay of proceedings where double jeopardy is successfully raised. [page 94] 4-12 After the decision of R v Carroll (2002) 213 CLR 635, in which essentially a retrial for the murder of a baby was barred due to the

double jeopardy rules even after new significant evidence had been discovered, many Australian jurisdictions have weakened their double jeopardy rules. New South Wales was the first jurisdictions to do so as early as 2006. Depending on the jurisdiction, a retrial is now allowed after a prior acquittal in case of a very serious offence, murder or a lifesentence offence (depending on the jurisdiction), where fresh and compelling evidence arises that was not available during the original trial. In addition, a retrial is possible for a serious offence (with a timely sentence between 15 and 25 years depending on the jurisdiction) where the original acquittal is tainted (accused has been convicted of an administration of justice offence regarding the earlier trial). However, a retrial is only possible where this is in the interest of justice: • Crimes (Appeal) and Review Act 2001 (NSW) ss 100 and 101; • Criminal Code (Qld) ss 678B–678C; • Criminal Law Consolidation Act 1935 (SA) Pt 10; • Criminal Code (Tas) Ch XLIV (exceptions to the double jeopardy rules); and • Criminal Appeals Act 2004 (WA) Pt 5A. 4-13 Before tackling the following questions, please check that you are familiar with the following: ✓ ✓ ✓ ✓ ✓

formalities of indictments; joinder of charges in one indictment and separation of joint charges; guilty pleas and their effects; different aspects of the double jeopardy rule; and exceptions to the double jeopardy rule.

Question 1 Marco Elastico is a talented soccer player and plays for a local but up and coming soccer team in Australia, the ‘Footlockers’. Marco’s talent has not gone unnoticed by the coach, William Kraft. William has had several chats with Marco outlining how important it is that he scores goals during the matches as the team is relying on him. Marco felt that he was under a lot of pressure and sometimes believed that everything was getting too

much for him. Recently, he started to become worried about his mental health. In a desperate attempt to win and not let the team down, he committed a few fouls during the last soccer match which caused the ‘Footlockers’ to lose. [page 95] After the match, William had a stern word with Marco in the changing rooms. He was outraged and started yelling and screaming that the last thing the ‘Footlockers’ needed were players who do not follow the rules. Marco felt as though everything was getting out of control and left. William stayed behind in the changing rooms to chat with the other players and to develop a strategy for their next match. About 10 minutes later Marco returned to the changing room where the rest of the ‘Footlockers’ were listening to the coach outlining the next game plan. Marco had a .22 calibre rifle with him that was still in his car from a previous hunting expedition. He wanted to vent his anger and frustration with the ‘Footlockers’ and their unrealistic expectations. He fired the gun into the changing room. One shot emerged from the rifle, went through one player and ultimately hit William Kraft, the coach. Both the player and the coach died immediately due to the sustained injuries. Marco is charged with two counts of murder. Advise Marco regarding the following matters: (i)

Marco believes that he cannot be charged with two counts of murder because he only fired one shot. Charging him twice would violate the double jeopardy rules. Please explain to Marco whether his assumption is correct.

(ii)

The two murder charges are joined in one indictment and heard in front of the same jury. Marco, who is legally represented at the time by another lawyer, is convicted of both charges and sentenced to life imprisonment. He is not happy about this at all and comes to you for advice after his conviction. He believes that the fair trial principle dictates that the charges should have been heard separately during two different trials and by different juries. He remembers that he has heard one of his friends in law school say something about ‘one count per indictment’. During the trial he tried to rely on insanity due to his mental health problems and feels that two different juries may have reached two different verdicts. He believes that the Australian government only wants to save taxpayers’ money by grouping offences together randomly in one trial at the expense of justice. Advise Marco on whether the court was able to hear the two murder charges together.

(iii) Assume that before the murder trial starts and Marco is convicted he is now agreeable with hearing the two murder charges in one indictment. In addition, he tells you that he has recently been committed to trial for five computer hacking charges (indictable offences) that all occurred around two years prior to the murders. He wonders whether it is possible and advisable to hear the murder charges and the computer hacking charges all in one trial to get things over and done with. Marco says he would prefer to put all of his criminal activity behind him as fast as possible and to start anew.

Time allowed: 40 mins

[page 96]

Answer Plan (i)

Double jeopardy. • Double prosecution for essentially the same offence? – Two deaths and therefore elements do not wholly overlap: see Pearce v R (1998) 194 CLR 610. – Therefore, two charges (despite arising out of one fired shot). (ii) Joining of charges. • General rule in a number of jurisdictions: One count per indictment. • Joinder possible (exception): factual nexus/same set of facts/series of offences. Same action caused the death of two persons. • Joinder possible. • Prejudice or embarrassment? Not apparent = especially no evidence admissible on one count and inadmissible on another count. (iii) Can computer hacking charges be joined? • Joinder possible: factual nexus/same set of facts/series of offences. Here unrelated and different offences.

Answer (i) Double jeopardy 4-14 Under the double jeopardy rules a person cannot be prosecuted twice for essentially the same offence. In the case at hand, Marco believes that he cannot be charged with two counts of murder as he

only fired one shot and a prosecution for two counts of murder would therefore violate the principles relating to double jeopardy. In order to advise Marco, it is necessary to compare the different elements of the offences in question and to identify whether they overlap. The double jeopardy principle applies only where the elements of different offences wholly overlap. That means double jeopardy does not operate where the offences arise out of the same conduct but have different consequences. In this case the elements would not be wholly identical. See, for example, Pearce v R (1998) 194 CLR 610 where the accused was convicted for a number of charges (beating victims) arising out of a single event, namely the breaking into a house as the double jeopardy rules did not apply. (Note that double jeopardy is different to the question of double punishment which is relevant for sentencing. On sentencing, see further Chapter 6.) While both murder charges overlap to some degree because both arise out of the same conduct, namely firing of one shot into the changing room, not all elements overlap. The consequences of the act differ as two (and not one) deaths, the death of the coach and the death of one player, have occurred as a result of the shooting. This means that the two offences are not wholly identical. Therefore Marco should be advised that he is not being prosecuted twice for the same offence but for two [page 97] different offences despite the fact that both offences arise from the same fired shot. The double jeopardy rules have no application to the prosecution of Marco in scenario (i).

(ii) Joining of charges 4-15 After being convicted of the murder charges, Marco wants to know whether it was possible to join the two murder charges in one indictment and hear them in the same trial. The general rule in a

number of Australian jurisdictions is that there is one count, that is, offence, per indictment: • Criminal Code (Qld) s 567(1); • Criminal Code (Tas) s 311(2); and • Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cl 2(2) and (3). In the case at hand this would mean that as per the general rule in some jurisdictions, there should have only been one murder charge in one indictment. Yet, the possibility to join several charges or charges against several defendants in one indictment if certain circumstances are fulfilled exists in all Australian jurisdictions: • Crimes Act 1900 (ACT) s 269; • Criminal Procedure Act 1986 (NSW) s 29 (accused and prosecution consent, offences arise out of the same circumstances, offences form part of a series of offences of the same or similar character); • Criminal Code (NT) ss 309 (same set of facts or part of a serious of offences of similar character, or a serious of offences committed in the prosecution of a single purpose) and 308; • Criminal Code (Qld) ss 567(2) and 568(12); • Criminal Law Consolidation Act 1935 (SA) s 278(1) (same facts, or form part of series of offences of the same or similar character); • Criminal Code (Tas) s 311(2) (arise out of substantially the same facts, form part of a series of similar character); • Criminal Procedure Act 2009 (Vic) ss 170, 193 and 195; Sch 1 reg 5; and • Criminal Procedure Act 2004 (WA) Sch 1 Div 2 cll 7–9. Although the conditions for joining several charges in one indictment vary between jurisdictions, a joinder is generally possible where the offences are based on the same/similar set of facts (factual nexus) or form part of a series of offences (of similar character). In the case at hand the same action, namely the firing of the gun, caused the death of two persons: the coach and one player. Due to the particular facts of this case, one shot killing two persons, the evidence relevant to the two counts is very closely linked and mixed. The

offences are of the same character, occurred at the same time, place and due to the same conduct. The counts are therefore based on the same set of facts and can be joined in one indictment and heard during one trial as per the joinder rules. [page 98] However, even where a joinder is permissible, the court still has discretion to separate charges where the evidence relevant for one charge may prejudice jurors regards another charge and thus lead to an unfair trial or where joint charges could embarrass the accused: • Criminal Procedure Act 1986 (NSW) s 21(2) (prejudiced or embarrassed); • Criminal Code (NT) s 341 (prejudice or embarrassed); • Criminal Code (Qld) s 597A (prejudiced or embarrassed); • Criminal Law Consolidation Act 1935 (SA) s 278(2) (prejudiced or embarrassed); • Criminal Code (Tas) s 326(3) (prejudiced or embarrassed); • Criminal Procedure Act 2009 (Vic) ss 193 and 195; and • Criminal Procedure Act 2004 (WA) s 133(3) and (4) (prejudiced). In this case, there is no apparent risk of prejudice or embarrassment for the accused in joining the two counts in one indictment. Particularly, there is no evidence that is admissible regarding one count but not regarding the other count. In addition, the facts of the case state that Marco was legally represented by another lawyer during the entire trial. If Marco believed it was necessary to sever the two murder charges, his legal representative should have made such a request for separation which he failed to do. This makes it doubtful whether Marco will be able to argue post-trial that the charges should have been separated. Marco’s argument that the Australian Government is only trying to save taxpayer’s money at the expense of justice is not overall convincing. In R v Spina [2005] VSCA 319 at [106] (citing R v Reid) it was found that dealing with several charges in one trial:

… involves the striking of a balance between on the one hand, the need to ensure that by charging the accused with separate offences in the one presentment he or she is not thereby unduly prejudiced or embarrassed at trial by reason of evidence being led in respect of each of the charges and, on the other, the interest of the public in the efficient allocation of judicial resources, consistency in verdicts and expeditious and final litigation as well as with the convenience of witnesses.

Nothing suggests in this case that an overall balance has been struck to Marco’s disadvantage. In light of the above, Marco should be advised that it was lawful to join the two counts of murder in one indictment and to hear them in the same trial.

(iii) Can computer hacking charges be joined with murder charges? 4-16 In the last scenario, Marco is agreeable with hearing the two murder charges in one indictment. In addition, he wants to know whether a number of computer hacking charges for which he has recently been committed to trial can be heard at the same time. The computer hacking and the murder charges could be joined if this was in accordance with [page 99] the joinder rules. That means that there must be a factual nexus between the offences, or the offences must arise out of the same set of facts or form part of a series of offences. The facts of the case state that the computer hacking charges are unrelated to the murder charges and occurred around two years prior to the murder charges. As there is no common nexus between the charges, the criteria for joining them in one indictment do not seem satisfied. While the accused may find it desirable to hear all charges (murder and computer hacking) in one trial to get matters finalised and move on with his life, Marco should be advised that the charges will likely not be joined and heard together during the same trial.

Examiner’s Comments 4-17 The question required an examination of the double jeopardy rule as well as questions related to the admissibility of joining several counts in one indictment. In order to adequately address the question of whether in this case the double jeopardy rule prevents Marco from being charged with two counts of murder, it was necessary to outline and distinguish what offences had occurred and whether and to what extent they overlapped. Students needed to ensure that they clearly outlined in their answer that the two offences did not wholly overlap despite the fact that they arose from the same act, namely the firing of the gun. In relation to the joinder of different offences and the question of whether a joinder was possible in this case, it was necessary for students to outline the general rule in many jurisdictions first, in this case charging one count per indictment, prior to outlining the exceptions to the rule. It was subsequently important to apply the law to the facts of the case in an attempt to identify whether the different charges (two counts of murder as well as two counts of murder and five computer hacking charges) could be joined in one indictment.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Not explaining the general rules prior to their exceptions. • Failing to provide relevant statutory and case law. • Not applying the law to the facts of the case. • Failing to advise Marco regards his specific questions.

Question 2 Barbara-Ann is charged with two very serious drug offences. When the judge asks her how she pleads she says she pleads guilty to the charges.

[page 100] Consider the following separate and partially unrelated scenarios and provide advice as requested: (i)

Barbara-Ann is not guilty of the offences. However, she does not want to sit through the agony of a trial and just wants things to be over and done with. She has been tried and convicted in the past, despite being innocent, ultimately leaving her with a large bill for her legal representation. She does not want to repeat this experience. In addition, her legal representative has discussed matters with the prosecution with the consequence that there will be a ‘discount’ for her early guilty plea. Can the court accept her guilty plea even where Barbara-Ann is not guilty?

(ii)

Shortly before the arraignment, one of the trial judges in Barbara-Ann’s trial was walking from his office to the court room. Without knowing that it was BarbaraAnn, he noticed a scared looking female in the building’s foyer surrounded by a group of males in black outfits with matching red shoes, appearing to be closing in on her. While he could not understand everything that was being said in detail as he was too far away, he did hear one of the men say to Barbara-Ann ‘You will take the fall for this and get Berny out of trouble. We have your daughter and you know what will happen to her if you don’t. You know the motto of the ‘‘Urbanos’’ is “all for one-and one for all”’. The judge quickly tried to find a security officer but the foyer was deserted by the time of their return. During the arraignment the judge recognised Barbara-Ann immediately from the earlier scene. Barbara-Ann is not legally represented. Should the court accept Barbara-Ann’s guilty plea? What could be the consequences for the trial if the guilty plea was accepted? (iii) In scenario (i) Barbara-Ann changed her mind after pleading guilty and prior to sentencing. She now wants to withdraw her earlier plea, plead not guilty and go through with the trial. Her legal representative diligently explained the consequences of pleading guilty to her in writing prior to the arraignment and Barbara-Ann confirmed in writing that this is exactly what she wanted to do. However, she now believes her legal representative is an idiot and all his advice is useless as he was unwilling to engage in a romantic relationship with her. She believes that she is the accused and proceedings must therefore revolve around her and her justice. She is of the opinion that she needs to able to change her mind at least once during a trial. She can not see where the harm is as she has not been sentenced, yet, and therefore no court time has been wasted. Advise Barbara-Ann whether withdrawing the guilty plea in her case is possible, whether there is an onus of proof and what would have to be established to justify a withdrawal. (iv)

Imagine that in scenario (ii) no trial judge witnessed the scene in the foyer and Barbara-Ann’s guilty plea was accepted by the court. [page 101]

She has not been sentenced, yet. Her brother Xavier has since been able to organise your law firm Shaker & Baker to provide legal representation to BarbaraAnn.

(v)

Your supervising partner asks you to advise whether Barbara-Ann can withdraw her guilty plea and on what basis. Assume Barbara-Ann pleaded not guilty and was tried for and acquitted of the drug offences due to the availability of a defence. It subsequently turns out that Berny committed the offences. Can Berny be tried for the drug offences or do the double jeopardy rules prevent a trial against Berny from going ahead? Time allowed: 80 mins

Answer Plan (i)

(ii)

(iii)

(iv)

(v)

Can the court accept a guilty plea even where Barbara-Ann is not guilty? • Generally yes — see Meissner v R (1995) 184 CLR 132. Should the court have accepted Barbara-Ann’s guilty plea? What could be the consequences for the trial if the guilty plea was accepted? • (Problem) Risk of unfair trial if plea accepted. • Meissner v R (1995) 184 CLR 132: should not have accepted as likely induced by threat or intimidation and potential mistrial. Can Barbara-Ann withdraw her guilty plea in scenario (i)? • Likely miscarriage of justice if she is unable to withdraw? Especially as she was legally represented and her lawyer explained the consequences of a guilty plea to her. Can Barbara-Ann withdraw her guilty plea in scenario (ii)? • Likely miscarriage of justice if she is unable to withdraw? Especially due to the intimidation and threat. Can Berny be tried for the drug offences if Barbara-Ann has already been tried and acquitted? • Double jeopardy? Only applies to Barbara-Ann, not another person.

Answer (i) Can court accept guilty plea even where Barbara-Ann not guilty? 4-18 An accused is free to plead guilty even where they have not committed the offence. In Meissner v R (1995) 184 CLR 132 at 141 it was found that: A person charged with an offence is at liberty to plead guilty or not guilty to the charge, whether or not that person is in truth guilty or not guilty. An [page 102] inducement to plead guilty does not necessarily have a tendency to pervert the course of justice, for the inducement may be offered simply to assist the person charged to make a free choice in that person’s own interests. 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.

Reasons as to why an innocent accused may choose to plead guilty include speedy settlement of the issue and avoiding an unsettling and lengthy trial as well as potential benefits resulting from a deal with the prosecution based on an early plea of guilty. It was found in Kumar v DPP [2013] VSCA 297 that even pleading guilty based on a deal with the prosecution does not take away the validity of the plea. The facts of the case state that Barbara-Ann does not trust the legal system any longer after her prior experience. She wants to avoid the costs for being legally represented but also the agony of a lengthy trial. In addition, she wants to receive a ‘discount’ for her early guilty plea from the prosecution. While the ‘discount’ may be considered a form of inducement, it cannot be considered an inducement to the degree that Barbara-Ann is no longer able to make her own free choice. In addition, Barbara is of full age and of sound mind and the plea entered into is in her interest. Therefore the court will likely accept her guilty plea even though she is not guilty as no miscarriage of justice can be expected to arise in scenario (i).

(ii) Court accepting guilty plea and consequences of acceptance 4-19 Unless a plea is voluntary a court is not obligated to accept the plea and may refuse it. As pointed out above, Meissner v R (1995) 184 CLR 132 states that a plea is voluntary if the person making it is able to exercise ‘free choice’. The question therefore arises whether in this case the plea was induced by intimidation or whether Barbara-Ann was still able to exercise free choice. The facts of the case state that a number of male members of the ‘Urbanos’ closed in on Barbara-Ann in the court’s foyer suggesting to her that they had her daughter. In addition, the comment ‘you know what will happen to her if you don’t’ indicates that the daughter will experience harm if Barbara-Ann does not plead guilty to the charges. This supports the argument that Barbara-Ann’s decision to plead guilty was induced by intimidation and she was unable to exercise her free will as she was fearing for the life or well-being of her daughter. Accepting Barbara-Ann’s guilty plea thus contains the risk of an unfair trial. The court should therefore reject Barbara-Ann’s guilty plea in scenario (ii).

(iii) Can Barbara-Ann withdraw guilty plea in scenario (i)? 4-20

As pointed out in Meissner v R (1995) 184 CLR 132 at 157:

It is true that a person may plead guilty upon grounds which extend beyond that person’s belief in his guilt. He may do so for all manner

[page 103] of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred.

Barbara-Ann would thus have to demonstrate that a miscarriage of justice is likely to occur if she is unable to withdraw her plea. In scenario (i) nothing suggests that a miscarriage of justice is likely to

occur. The facts of the case state that Barbara-Ann was legally represented and that her lawyer advised her diligently in writing about the consequences of pleading guilty. Barbara-Ann also expressed to her legal representative in writing that pleading guilty was exactly what she wanted for a number of reasons. Therefore her guilty plea is valid and voluntary, even if it was entered into, among other reasons, to receive a sentencing ‘discount’ from the prosecution. While Barbara-Ann may be disappointed in her lawyer at the current time due to personal issues, nothing suggests that the legal advice provided by the lawyer was incorrect or ambiguous. It is therefore unlikely that Barbara-Ann will be able to demonstrate that a miscarriage of justice will occur if she is unable to withdraw her guilty plea in scenario (iii).

(iv) Can Barbara-Ann withdraw guilty plea in scenario (ii)? 4-21 The question asks you to advise whether Barbara-Ann, who is now represented by your firm, can withdraw her earlier guilty plea. Whether Barbara-Ann will be able to withdraw her guilty plea is based on the underlying question of whether she is able to demonstrate that a miscarriage of justice is likely to occur if she is unable to withdraw her plea. In comparison to scenario (iii) Barbara-Ann is likely able to outline relevant grounds in this scenario due to being subjected to intimidation and threats. As per the facts of the case, a group of males in black outfits with matching red shoes closed in on her in the foyer and told her that she will take the fall for this and get Berny out of trouble because they have her daughter. This conduct constitutes intimidating conduct making it impossible for Barbara-Ann to exercise her free will in the decision to plead guilty. It is therefore likely that Barbara-Ann will be able to demonstrate that a miscarriage of justice will occur if she is unable to withdraw her plea successfully in scenario (iv).

(v) Can Berny be tried for drug offences if Barbara-Ann already tried and acquitted? 4-22

Berny could not be tried for the drug offences if the double

jeopardy rules prevented Berny’s prosecution. The double jeopardy rules state that [page 104] a person cannot be tried twice for essentially the same offence for which they have previously been acquitted or convicted. In this case, however, the double jeopardy rules only apply to Barbara-Anne as she has previously been tried and acquitted of the drug offence. Berny, on the other hand, has never been tried for these offences in the past. As the double jeopardy rules do not apply to Berny, he can be prosecuted for the drug offences.

Examiner’s Comments 4-23 The question required an examination of guilty pleas and their effects as well as the possibility to withdraw a guilty plea after arraignment prior to sentencing. Additionally, it was necessary to consider and apply the double jeopardy rules to the question at hand. In order to address the question in sufficient detail, students needed to outline whether an innocent accused is able to plead guilty and why an accused may consider to do so. In addition, students had to differentiate between different scenarios and the question of whether a court should or should not have accepted a guilty plea, and the related question of whether a guilty plea can be withdrawn after arraignment. Regarding the double jeopardy principle it was important to demonstrate an understanding of to whom the principles relate, namely the previous accused, and not a third party.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do.

• • •

Not sufficiently differentiating between the facts of the different scenarios. Not applying the law to the facts of the case. Incorrectly applying the double jeopardy rules.

Question 3 After a rough week at work Gertrude is looking forward to a fun-filled weekend. On Friday evening she queues up at one of Australia’s latest and greatest techno-revival clubs, the ‘Fish-market’, in order to see her favourite band, ‘Dead Mouse Project’, perform live. Pamela is walking past the line of excited club goers including Gertrude. Gertrude fears that Pamela is trying to cut in line to get into the club before her and therefore shoulder-barges Pamela. Pamela is outraged and punches Gertrude in the stomach. Subsequently, some punches are exchanged between Gertrude and Pamela until Pamela says ‘Stop. Enough. I am done’. Pamela then sits down by herself on a bench near a close-by kebab stand in order to get her head around what just happened. Five minutes later Gertrude walks [page 105] across to Pamela and punches Pamela in the stomach. The force of the punch is so strong that Pamela falls from the bench to the ground. When Pamela gets up she feels dizzy and goes straight home. The police are called and arrive after Pamela has left the scene. Gertrude is charged with committing a public nuisance offence. Gertrude appears in court two weeks later and pleads guilty to the public nuisance charge. The facts read to the court on the indictment are that Gertrude and Pamela were in a consensual fight outside the ‘Fish-market’. Gertrude was fined $600. Pamela felt terribly nauseous as she was walking home from the ‘Fish-market’. She went straight to bed. When Pamela’s mother, Judy, checked on her the next morning, she was unresponsive. Judy called an ambulance and Pamela was rushed to hospital. The doctor said that there was severe internal bleeding which was likely to cause extensive damage to internal organs. The doctor considered that the injury was consistent with blunt force trauma (being struck in the stomach). When the doctor provided a statement to police, a month after the offence, police charged Gertrude with doing grievous bodily harm. (i) (ii)

Advise whether Gertrude can be prosecuted for doing grievous bodily harm or whether the double jeopardy rules apply. Assume the double jeopardy rules do apply. What could Gertrude do when being charged with doing grievous bodily harm in order to rely on double jeopardy? Time allowed: 30 minutes

Answer Plan (i)

Double jeopardy rules applicable? • Double jeopardy applicable if Gertrude has already been charged with and convicted/acquitted of the offence. – Depends on how the public nuisance offence has been particularised. Here: consensual fight. However, relevant punch causing the injury happened after the consensual fight and after Pamela had already left and taken a seat on the bench, and therefore double jeopardy rules apply. • Charging Gertrude with GBH possible. (ii) Assume double jeopardy did apply — what could Gertrude do? • Depends on jurisdiction: special plea or defence.

Answer (i) Double jeopardy rules applicability 4-24 In order to advise Gertrude on whether the double jeopardy rules prevent her from being charged with doing grievous bodily harm, the [page 106] rules have to be considered in detail first. As per the underlying principle of double jeopardy the prosecution cannot charge an accused for an offence they have already been charged with and either convicted or acquitted of in the past. In order to identify whether the double jeopardy rules apply here, the question needs to be addressed as to what Gertrude has been charged with and convicted of. The facts of the case state that she has been convicted of a public nuisance offence. The key question is therefore how the public nuisance offence has been particularised. The facts of the case state that the public nuisance

offence related to a consensual fight. This particularises the fight between Gertrude and Pamela in line at the ‘Fish-market’. Yet, the punch that likely caused the injury to Pamela’s stomach and could thus constitute grievous bodily harm was arguably not consensual. Pamela said, ‘Stop. Enough. I am done’, after the exchange of violence in the line-up for the ‘Fish-market’. That suggests that Pamela had withdrawn her consent and removed herself to the bench near the kebab stand. Therefore, any subsequent violence, namely the punch Pamela received on the bench from Gertrude, occurred without Pamela’s consent. It can therefore be argued that the punch which caused the internal bleeding did not form part of the public nuisance charge. As Gertrude has not been charged and convicted for the punch in the stomach, it is likely that Gertrude can be charged with grievous bodily harm and that such prosecution does not violate the double jeopardy principles.

(ii) Effect of double jeopardy on Gertrude 4-25 The question asks students to assume the double jeopardy rules apply in this case. That means students must assume that charging Gertrude with GBH is a violation of the double jeopardy rules. What Gertrude could do when charged with grievous bodily harm depends on the requirements of the specific jurisdiction. In some jurisdictions Gertrude could rely on a special plea (autrefois acquit/autrefois convict) or on a statutory defence (Criminal Code Act 1899 (Qld) s 17) relating to the double jeopardy rules. The double jeopardy rules would prevent Gertrude from being retried for an offence for which she has previously been convicted.

Examiner’s Comments 4-26 The question required students to identify the principles relating to double jeopardy. In addition, it was important to outline and discuss in detail what exactly Gertrude had already been charged with and convicted of. Only a thorough application of the law to the facts of the case allowed students to identify that the public nuisance offence does not likely include the second punch that caused the internal injuries.

Based on this finding students were able to draw a conclusion regarding the double jeopardy rules. [page 107] The second part of the question required engagement with special pleas or statutory defences which can be raised where an accused believes they are being retried in breach of the double jeopardy rules.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Not sufficiently differentiating between the facts of the different scenarios. • Not applying the law to the facts of the case. • Incorrectly applying the double jeopardy rules.

Question 4 In October 2001 Melville was interviewed by police in relation to the murder of baby Shaniya-Jay whose dead body had been found in the dumpster of a public library in Australia in April 2000. It could be confirmed that Shaniya-Jay died of strangulation. During the examination bite marks and bruises were identified on the baby’s arms and legs. Dental records eventually lead to the questioning of Melville who was subsequently charged with murder. During the trial in November 2001 Melville claimed that he was interstate visiting his grandmother during the estimated time of Shaniya-Jay’s death and had nothing to do with the murder. While Melville was originally convicted of murder, the conviction was quashed on appeal as the court of appeal found that the prosecution had led no evidence to disprove Melville’s claim that he was interstate visiting his grandmother as well as matters relating to the bite mark evidence. By 2002, the police had obtained substantial new DNA evidence relating to the bite marks as well as a witness who could testify that Melville was in fact in town at the time of Shaniya-Jay’s death. Melville was therefore charged with perjury on 21 May 2002. The indictment presented against Melville claimed he had committed perjury in the earlier

murder trial by swearing he did not kill Shaniya-Jay. In November 2002 a jury convicted him of perjury. (i)

Assume it is 2002. Melville comes to you for advice. He believes that although he was not technically retried for murder, the second trial was essentially a retrial of the earlier murder trial. He wants to know whether the double jeopardy rules apply here and whether the new trial should have taken place. Address Melville’s concerns.

(ii) Imagine the following: Melville, for various reasons, had been tried for and acquitted of Shaniya-Jay’s murder for the first time in 2008 [page 108] due to insufficient evidence placing him at the crime scene. In 2009, a credible witness has come forward who can testify that Melville was in fact in town at the time of Shaniya-Jay’s death and was even seen near the dumpster at the time the baby’s death occurred. The witness did not come forward earlier as he was afraid of Melville and feared his repercussions. He is, however, prepared to testify now. Advise Melville on whether he can be retried for the murder of Shaniya-Jay in 2009 despite his earlier acquittal in 2008. Time allowed: 60 mins

Answer Plan (i)

Situation in 2002. • Double jeopardy applicable to perjury trial? • No ‘retrial’ for murder but conviction automatically contravenes the original acquittal. Therefore double jeopardy. See R v Carroll (2002) 213 CLR 635. (ii) Situation in 2009. • Double jeopardy rules applicable to retrial after original acquittal. • Legislative amendments commencing from 2006 in many Australian jurisdictions. – Prosecution for murder (very serious offence). – Fresh and compelling evidence? – In the interest of justice? ■ Retrial likely fair? Nine years later but no information

that witnesses/evidence is lost. ■ Police diligence? Witness did not come forward prior due to fear of repercussions. No information that police acted without diligence.

Answer (i) Situation in 2002 4-27 Melville’s trial for perjury (lying about his involvement in the original murder trial) should not have occurred if the trial constituted a violation of the double jeopardy rules. The trial for perjury was initiated by the prosecution as new DNA evidence was available and a witness had come forward linking Melville to the crime scene around the time of the baby’s death. The double jeopardy rules set out that a person cannot be retried for the same offence in order to provide finality for the accused. In this case, however, Melville was not retried for murder but for another offence (perjury related to lying in the original trial). As such there is no ‘retrial’ per se. However, in R v Carroll (2002) 213 [page 109] CLR 635 the court found that where a conviction for perjury inevitably controverts a previous acquittal for murder such conviction is inconsistent with double jeopardy principles. In the case at hand, the conviction for perjury directly contravenes Melville’s original acquittal in the murder trial. Melville should therefore be advised that a trial for perjury should not have occurred due to the double jeopardy rules. In addition, students need to note that in 2002 no exceptions to the double jeopardy rules in the case of very serious offences and fresh and compelling evidence existed.

(ii) Situation in 2009 4-28

The situation in 2009 differs significantly from the situation in

2002 as many Australian jurisdictions have introduced statutory exemptions to the double jeopardy rules: • Crimes (Appeal) and Review Act 2001 (NSW) ss 100 and 101; • Criminal Code (Qld) ss 678B–678C; • Criminal Law Consolidation Act 1935 (SA) Pt 10; • Criminal Code (Tas) Ch XLIV (exceptions to the double jeopardy rules); and • Criminal Appeals Act 2004 (WA) Pt 5A. In many jurisdictions a retrial is possible in the case of a very serious offence/murder/life sentence offence where fresh and compelling evidence exists. The definitions of fresh and compelling evidence are provided in the respective legislation. The answer to this question will focus on the legislation in Queensland in order to provide a detailed assessment while noting that the definitions in other jurisdictions are largely comparable. Melville could be re-prosecuted for murder if there is fresh and compelling evidence and the prosecution is in the interest of justice: Criminal Code (Qld) s 678B. The prosecution could argue that there is fresh and compelling evidence. In Queensland, the terms ‘fresh’ and ‘compelling’ are defined in s 678D(2) and (3). Evidence is fresh if: (1) it was not adduced in the proceedings in which the person was acquitted; and (2) it could not have been adduced in those proceedings with the exercise of reasonable diligence. Evidence is compelling if: (1) it is reliable; and (2) it is substantial; and (3) in the context of the issues in dispute in the proceedings in which the person was acquitted, it is highly probative of the case against the acquitted person. The evidence, namely the witness who has just recently come forward and can place Melville at the crime scene at the time of the death, is fresh in the sense that the evidence was not and could not have been adduced in the initial trial. Nothing suggests that the police failed to exercise reasonable diligence in finding the witness. The evidence, namely the witness statement, is reliable, substantial and highly probative. The facts of the case describe the witness as credible and the witness’ testimony places Melville at the crime scene and disproves that he was visiting his grandmother at the time making it compelling and probative.

[page 110] The next question to address is whether a retrial is in the interest of justice: Criminal Code (Qld) s 678F. This encompasses whether the retrial is likely to be fair to the accused. A court should particularly take into consideration how much time has passed since the alleged commission of the offence. Here, the offence was alleged in 2000 and nine years have passed prior to the potential retrial. While this is a rather long period, it may not be long enough to prevent a retrial in the interest of justice. In addition, nothing suggests that any of the original witnesses and evidence has been lost making it doubtful that a retrial would not be fair to the accused. In addition, the question has to be considered whether the police were acting diligently during the original trial as a retrial cannot be based merely on the carelessness of investigating authorities. The facts of the case do not suggest that the police failed to act with reasonable diligence. As per the facts of the case the witness did not dare to come forward as he was afraid of potential repercussions by the accused. The witness, however, is no longer afraid of the accused and is now willing to testify. In light of the above Melville should be advised that he could be retried for murder due to fresh and compelling evidence depending on the requirements in the respective jurisdiction.

Examiner’s Comments 4-29 The question required students to discuss the double jeopardy rules and possible exceptions to the rules which have recently been introduced in a number of Australian jurisdictions. Students had to be very diligent in addressing scenario (i) and scenario (ii) as the law relating to double jeopardy and retrials for certain offences had significantly changed during the timeframe set out in the questions. Ultimately, it was important for students to engage in a detailed assessment of the statutory exceptions to the double jeopardy rules and apply the law to the facts of the case.

Keep in Mind You should avoid the following common errors: • Not understanding clearly what the question asks you to do. • Failing to provide relevant case law. • Failing to provide relevant legislation and definitions provided in legislation regarding exceptions to the double jeopardy rules. • Failing to demonstrate the difference in legislation between 2002 and 2009. • Not applying the law to the facts of the case. • Incorrectly applying the double jeopardy rules.

[page 111]

Chapter 5

Trial Process: Participants and Proof

Key Issues 5-1 The key participants in a criminal trial are: the judge, the jury (unless it is a trial by judge alone), the accused, the prosecutor and the defence. The trial processes are distinct from the gathering of evidence by the parties, as the trial is where the evidence is examined and tested. The facts are determined by an impartial tribunal (jury or judge) divorced from the investigation or presentation of evidence. The trial is presided over by a judge whose prime function is to ensure a fair trial, and who leaves the decisions as to the evidence to be adduced, the witnesses to be called and the manner of the questioning to the parties. Nevertheless, the judge has the ultimate control over the questioning of witnesses, as exampled by s 26 of the uniform evidence legislation: The court may make such orders as it considers just in relation to: (a) the way in which witnesses are to be questioned; and (b) the production and use of documents and things in connection with the questioning of witnesses; and (c) the order in which parties may question a witness; and (d) the presence and behaviour of any person in connection with the questioning of witnesses.

It is often stated that a criminal trial in Australia is adversarial in nature, but a more accurate description is ‘accusatorial’ given the heavy

burden of proof placed on the Crown, as summed up by the High Court in Azzopardi v R (2001) 205 CLR 50 at [34] per Gaudron, Gummow, Kirby and Hayne: The fundamental proposition from which consideration of the present matters must begin is that a criminal trial is an accusatorial process, in which the prosecution bears the onus of proving the guilt of the accused beyond reasonable doubt.

However, a prosecutor fulfils two roles in a criminal trial: the prosecutor is both an adversary of the accused and a minister of justice on behalf of the community, with the obligation of pursuing the truth with fairness and detachment rather than seeking to win at any cost. Deane J in [page 112] Whitehorn v R (1983) 152 CLR 657 at 663–4 explained the prosecutor’s duty of fairness: Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in performing his function of presenting the case against an accused, he will act with fairness and detachment and always with the objectives of establishing the whole truth in accordance with the procedures and standards which the law requires to be observed and of helping to ensure that the accused’s trial is a fair one.

This is consistent with the fundamental right of the accused to be tried fairly: Dietrich v R (1992) 177 CLR 292 at 299 per Mason CJ and McHugh J. The accused has a statutory right to be represented at trial: see Judiciary Act 1903 (Cth) s 78; Criminal Procedure Act 1986 (NSW) s 36; Criminal Code (NT) s 360; Criminal Code (Qld) s 616; Criminal Law Consolidation Act 1935 (SA) s 288; Criminal Code (Tas) s 368; Criminal Procedure Act 2009 (Vic) ss 33 and 197; Criminal Procedure Act 2004 (WA) s 172. Such a statutory right reflects High Court authority that legal representation is regarded as being essential to a fair trial where the charge is serious: Dietrich v R (1992) 177 CLR 292 at 301–2 per Mason CJ and McHugh J. An important aspect of a fair trial is judicial instruction to the jury. These instructions are predominantly given: (1) at the beginning of the

trial; and (2) during the summing up. At the outset of the trial, the focus is on the nature of a criminal trial and the duty of jurors. Jurors are reminded that they are prohibited from making inquiries outside the courtroom, the case should only be discussed in the jury room when everyone is present and they should put aside media reporting of the trial relying solely on the evidence presented in court. The summing up occurs after counsels’ final addresses. The function of the summing up is to give the jury directions concerning the legal issues and to provide a summary of the evidence. The legal issues are limited to those raised during the trial, and the directions on the law are confined to giving the jury just sufficient law to decide on the charge(s) against the accused: Alford v Magee (1952) 85 CLR 437 at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ. The role of the jury is to determine the facts in accordance with the evidence, and to apply the relevant principles of law to those facts in coming to a verdict. The jury’s obligations were summarised by Mason CJ, Brennan, Dawson and McHugh JJ in Black v R (1993) 179 CLR 44 at [15] in the following manner: Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That is an important responsibility. You must fulfil it to the best of your ability. Each of you takes into the jury room your individual experience and wisdom and you are expected to judge the evidence fairly and impartially in that light. You also have a duty to listen carefully and objectively to the views of every one of your fellow jurors. You should calmly weigh up one another’s opinions about the evidence and test them by discussion.

[page 113] Majority verdicts are allowed in all Australian jurisdictions except in the Commonwealth and the Australian Capital Territory. The terms of the legislation differ according to the type of offence, the number of jurors comprising the majority, and the length of time for jury deliberation before a majority verdict is available. The legislation relevant to majority verdicts is mostly to be found in the respective Jury Acts: Jury Act 1977 (NSW) s 55F; Criminal Code (NT) s 368; Jury Act

1995 (Qld) s 59A; Juries Act 1927 (SA) s 57; Jury Act 1899 (Tas) s 43; Juries Act 2000 (Vic) s 46; Criminal Procedure Act 2004 (WA) s 114. For Commonwealth indictable offences, s 80 of the Constitution preserves the right to trial by jury which cannot be waived (Brown v R (1986) 160 CLR 171), and s 80 has been interpreted to mean a right to a unanimous verdict of a jury of 12 people: Cheatle v R (1993) 177 CLR 541. To succeed in a criminal trial, the prosecution must prove all the elements of the offence charged and negate any defences raised (except those with a legal burden on the defence) beyond reasonable doubt: Woolmington v DPP [1935] AC 462. Most defences have an evidential burden only, which requires the defence to satisfy the judge that there is a reasonable possibility the defence exists. Once the evidential burden of raising a particular defence has been satisfied by the defendant, then the onus of proof switches to the Crown to negative that defence beyond reasonable doubt. Where there is legal burden on the defence, such as for diminished responsibility and insanity, the standard of proof is on the balance of probabilities. The Criminal Code 1995 (Cth) defines the two types of burdens of proof in Div 13 (a legal burden of proof and an evidential burden of proof): 13.1 Legal burden of proof — prosecution (1) The prosecution bears a legal burden of proving every element of an offence relevant to the guilt of the person charged. (2) The prosecution also bears a legal burden of disproving any matter in relation to which the defendant has discharged an evidential burden of proof imposed on the defendant. 13.2 Standard of proof — prosecution (1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt. … 13.3 Evidential burden of proof — defence (1) Subject to section 13.4, a burden of proof that a law imposes on a defendant is an evidential burden only. … (6)

In this Code: evidential burden, in relation to a matter, means the burden of adducing or

pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist. [page 114] 13.4 Legal burden of proof — defence A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly: (a) specifies that the burden of proof in relation to the matter in question is a legal burden; or (b) requires the defendant to prove the matter; or (c) creates a presumption that the matter exists unless the contrary is proved. 13.5 Standard of proof — defence A legal burden of proof on the defendant must be discharged on the balance of probabilities.

The High Court clarified the meaning of an evidential burden in Momcilovic v R (2011) 245 CLR 1 at [665] per Bell J: An evidential burden is not an ‘onus of disproof’. An evidential burden does no more than oblige a party to show that there is sufficient evidence to raise an issue as to the existence (or non-existence) of a fact. Discharge of an evidential burden may require that an accused lead evidence in a defence case. It may be discharged by evidence adduced in cross-examination of witnesses in the prosecution case. In rare cases it may be discharged by reference to evidence adduced by the prosecution in chief.

Essentially, an accused is presumed to be innocent until proven guilty, and the burden of proof is on the prosecution to the criminal standard of proof of beyond reasonable doubt. The High Court has cautioned trial judges against attempting to explain the term ‘beyond reasonable doubt’ to the jury: Green v R (1971) 126 CLR 28. The word ‘reasonable’ is not an objective standard, and it is a matter for the jury to set their own standard of persuasion. 5-2 Before tackling the following questions, please check that you are familiar with the following: ✓ ✓ ✓

role of the key participants in a criminal trial and the nature of a criminal trial; meaning of the ‘burden of proof’ and the ‘standard of proof’; judicial instruction to the jury, evidence in the jury room and outside the jury room, and majority verdicts; and

✓

right of the accused to a fair trial.

Question 1 Alfred was on trial for murder. The Crown case was that Alfred was the man who entered a bank in Parramatta, Sydney dressed in overalls and a beanie and shot a bank teller dead in a botched armed robbery. [page 115] The whole case turned on whether Alfred was the man caught on the bank’s security cameras. The judge was satisfied that a view of the bank’s premises would assist the jury in understanding the evidence. The judge also acceded to Crown’s counsel’s request to require Alfred to parade before the jury wearing the overalls and balaclava that had been found by police at Alfred’s house at the time of his arrest. In his closing address, Crown counsel put a list of 50 questions to the jury which called for an explanation by the accused, Alfred, by using the technique of asking ‘how did’ and ‘why was it’ and ‘if the accused had been’. The jury of 12 persons returned seven and a half hours after retiring to consider their verdict and told the judge they could not reach a unanimous verdict. The judge then directed the jury that they could now bring in a majority verdict of 11:1. An hour later the jury came in with a verdict of guilty. (i) Advise Alfred as to the availability of any grounds of appeal and his likelihood of success. (ii) How would your answer differ as regards a majority verdict of 11:1 if Alfred had been tried: (a) in a different jurisdiction for murder; and (b) for armed robbery rather than murder in New South Wales? Time allowed: 40 mins

Answer Plan (i)

There are three main grounds under which Alfred’s defence counsel could argue his conviction for murder should be quashed and a new trial ordered: (a) Demonstration or parade. • Requiring Alfred to parade in the overalls and a balaclava was unfairly prejudicial to Alfred.

(b) Prosecutor’s closing address. • The prosecutor’s technique of putting questions to the jury which effectively called for an explanation by the accused impermissibly reversed the onus of proof. (c) Length of time before a majority decision can be considered. • A majority verdict is only permitted after at least eight hours of deliberation in New South Wales. (ii) How would your answer differ: (a) if Alfred had been tried in a different jurisdiction for murder, any Australian jurisdictions require a unanimous verdict? (b) if Alfred had been tried for armed robbery rather than murder in New South Wales, the lesser charge alters either the time for jury deliberation and/or the majority number out of 12 persons? [page 116]

Answer (i) Availability of grounds of appeal and likelihood of success (a) Demonstration or parade 5-3 Section 53(1) of the Evidence Act 1995 (NSW) states: ‘A judge may, on application, order that a demonstration, experiment or inspection be held.’ Section 53(3) sets out the matters a judge is to take into account in deciding whether to make an order. For present purposes, the relevant subsections are (b) and (c): (b) (c)

whether the demonstration, experiment or inspection will, in the court’s opinion, assist the court in resolving issues of fact or understanding the evidence; the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time.

On the facts, the judge made two orders under s 53(1): (1) to allow a view of the bank’s premises; and (2) to require Alfred to parade before

the jury wearing overalls and a balaclava. The decision to allow a view of the bank’s premises is consistent with R v Hawi (No 7) [2011] NSWSC 1653, where Hulme J (at [1]) observed that: ‘A picture is said to be worth a thousand words; sometimes a first-hand look can be worth a thousand pictures.’ In Hawi, the trial was concerned with a riot and murder that occurred at Terminal 3, at Sydney Airport. The Crown submitted that the jury would be able to make a better assessment of distances and the general layout of the terminal by seeing the scene for themselves. In granting the Crown’s application, Hulme J was ‘satisfied that a view will assist the jury in understanding the evidence’ (at [15]), and ‘there is no danger that the view might be unfairly prejudicial or confusing’: at [16]. This would appear also to be the case here. However, the situation is different with the parading of Alfred in overalls and a balaclava. The case on point is Evans v R (2007) 235 CLR 521. In Evans, the High Court held that: (1) showing the jury what the accused looked like when wearing the overalls and balaclava tendered no relevant evidence; and (2) s 53 of the Evidence Act 1995 (NSW), which provides for the ordering that a demonstration, experiment or inspection be held, does not apply to conduct inside the court room. Kirby J held that any probative value of the demonstration was outweighed by the danger that the evidence might have been unfairly prejudicial: see s 53(3)(c) above. The High Court in Evans split 3:2 on whether to apply the proviso (see Chapter 6 on Appeals and Sentencing), with the majority ordering a new trial. Here, at this juncture, it can be said that Alfred has an appeal point in relation to him being ordered to parade before the jury that will be upheld on the authority of Evans v R (2007) 235 CLR 521, but whether a new trial would be ordered will also depend on the resolution of the two other grounds of appeal: (b) and (c) below. [page 117]

(b) Prosecutor’s closing address

5-4

As stated in the question above:

In his closing address, Crown counsel put a list of 50 questions to the jury which called for an explanation by the accused, Alfred, by using the technique of asking ‘how did’ and ‘why was it’ and ‘if the accused had been’.

The prosecutor has a duty to act fairly: Whitehorn v R (1983) 152 CLR 657 at 663–4 per Deane J. Section 13 of the Director of Public Prosecutions Act 1986 (NSW) empowers the Director to furnish guidelines for prosecutions. The most recent guidelines were published in 2007. Guideline 2 sets out that a prosecutor is a ‘minister of justice’ whose role is to assist the court to arrive at the truth and that ‘the purpose of a criminal prosecution is not to obtain a conviction’: Boucher v R (1954) 110 CCC 263 at 270 (Rand J). Guideline 3 deals with fairness and states that ‘a prosecutor must act impartially and fairly according to law’. The duty of a prosecutor to act fairly has been the subject of judicial consideration in a number of high profile cases including Alister v R (1984) 154 CLR 404; R v Tran [2000] FCA 188; and Wood v R [2012] NSWCCA 21. In Alister v R (1984) 154 CLR 404 at 429 Murphy J made the following critical observation in relation to the prosecutor’s cross-examination: By the series of questions the prosecutor was suggesting that ‘the Ananda Marga was responsible for the Bunbury bombings … but the accused would, of course, falsely claim that the Ananda Marga was wrongly accused, just as they falsely disclaimed responsibility for the Hilton Hotel bombing’. Any answer disclaiming responsibility was confirmation of the prosecutor’s suggestion. That is the inference which a juryman could be expected to draw from such a question: see Glinski v McIver (1942) AC 726, at 781.

The case on point with the factual matrix here is Wood v R [2012] NSWCCA 21, where the first of the 50 questions was: ‘How did the accused know exactly where Caroline’s body was located before it was found by the police?’ In Wood, ground 6 of the appeal, namely, the trial miscarried by reason of the prejudice occasioned by the Crown prosecutor, was upheld by the Court of Criminal Appeal because the Crown prosecutor reversed the onus of proof. McClellan CJ at CL summed up (at [604]–[605]): The difficulties which the prosecutor’s conduct created are so significant that I am satisfied it caused the trial to miscarry occasioning a miscarriage of justice. The fundamental problem with the course taken by the prosecutor was that both

generally and with respect to particular questions the prosecutor reversed the onus of proof. Asking questions, even in a rhetorical manner, and inviting the jury when considering its verdict to consider whether the applicant had provided satisfactory answers to the questions was an impermissible course for the prosecutor to follow.

[page 118] Thus, on the authority of Alister v R (1984) 154 CLR 404 at 429 per Murphy J and Wood v R [2012] NSWCCA 21 at [604]–[605] per McClellan CJ at CL, Alfred would appear to have suffered a miscarriage of justice as a result of the prosecutor’s list of 50 questions in his closing address. The matter would be put beyond doubt if the trial judge had failed to follow the statutory procedures laid out where a majority verdict is involved.

(c) Length of time before majority decision can be considered 5-5 The procedures to be adopted when a jury returns a majority verdict are dealt with under s 55F of the Jury Act 1977 (NSW). There is no issue with the judge’s direction that a majority verdict was constituted by 11:1 under s 55F(3)(a). However, under s 55F(2)(a) the minimum period of time for deliberation before a majority verdict may be returned is eight hours. Thus, in directing the jury that they could bring in a majority verdict of 11:1 after seven and a half hours deliberation, the trial judge committed a legal error: (2)

(3)

(4)

A majority verdict may be returned by a jury in criminal proceedings if: (a) a unanimous verdict has not been reached after the jurors have deliberated for a period of time (being not less than 8 hours) that the court considers reasonable having regard to the nature and complexity of the criminal proceedings. … In this section: ‘majority verdict’ means: (a) a verdict agreed to by 11 jurors where the jury consists of 12 persons at the time the verdict is returned. … A verdict that the accused is guilty of an offence against a law of the Commonwealth must be unanimous.

Conclusion 5-6 Given all three grounds of appeal (the parade, the prosecutor’s closing address and the length of time before a majority verdict may be returned) have been resolved in Alfred’s favour, an appeal court will find he has suffered a miscarriage of justice and order a retrial.

(ii) Different answer regarding majority verdict of 11:1 (a) Alfred tried in different jurisdiction for murder 5-7 If the court was exercising federal jurisdiction, then under s 55F(4) the verdict must be unanimous. For Commonwealth indictable offences, s 80 of the Constitution preserves the right to trial by jury which cannot be waived (Brown v R (1986) 160 CLR 171), and s 80 has been interpreted to mean a right to a unanimous verdict of a jury of 12 people: Cheatle v R (1993) 177 CLR 541. Majority verdicts are permitted in all jurisdictions except the Commonwealth and the Australian Capital Territory. Victoria and the [page 119] Northern Territory are similar to New South Wales in having 11:1 majority verdicts but differ in only requiring six hours jury deliberation: s 46 of the Juries Act 2000 (Vic); s 368 of the Criminal Code (NT). Thus, if Alfred had been tried in Victoria or the Northern Territory there would have been no error of law. By contrast with New South Wales, under s 114(2) of the Criminal Procedure Act 2004 (WA) a jury is only required to deliberate for three hours and the decision of ten or more jurors ‘shall be taken as the verdict on the charge’. However, s 114(4) states that s 114(2) does not apply to a charge of murder. Thus, for Alfred to be convicted of murder in Western Australia, the jury would have to be unanimous. The same unanimous verdict applies for murder in Queensland, South Australia and Tasmania: Jury Act 1995 (Qld) s 59(3); Juries Act 1927 (SA) s 57(2); Jury Act 1899 (Tas) s 43(3).

(b) Alfred tried for armed robbery 5-8 If Alfred had been tried for armed robbery rather than murder in New South Wales, it would have made no difference as the 11:1 majority applies to any criminal proceeding. It would have made a difference in, for example, Western Australia and South Australia, as a 10:2 decision would have been available for armed robbery rather than the unanimous verdict for murder. South Australia requires a minimum of four hours deliberation: s 57(3)(b) of the Juries Act 1927 (SA).

Examiner’s Comments 5-9 The only ground of appeal that is jurisdiction specific is the relevant legislation dealing with majority verdicts. Even though there are two broad regimes in Australia relating to evidence (the uniform evidence legislation which applies in the Commonwealth, New South Wales, Victoria, Tasmania, the Australian Capital Territory and the Northern Territory, and the ‘common law’ states of Queensland, South Australia and Western Australia), there is no significant jurisdictional difference as regards the other two appeal grounds of the parade and the prosecutor’s address. Both of these appeal grounds fall to be decided by case law as determined by the High Court.

Keep in Mind You should take care in reading the factual matrix to identify the key issues from the ‘clues’ given by the examiner: • You are told that the judge is allowing both a view of the bank premises and requiring Alfred to parade before the jury. This should raise in your mind the criteria for such a view, and the fairness of requiring Alfred to parade. [page 120]

•

•

The form of the questions put by Crown counsel should have suggested a potential reversal of the onus of proof, which needed to be supported by authority. In giving the jury seven and a half hours duration span for deliberation and an 11:1 majority on a murder charge, clearly required examination of the relevant legislation. This was reinforced by the additional questions relating to the jurisdiction and the offence.

Question 2 Benbow was on trial for manslaughter. Benbow was unable to secure Legal Aid and therefore decided to represent himself at trial. The trial judge, Noah J, had reservations about allowing the trial to commence under such circumstances, but mindful of the costs of delay and that both parties wished proceed, Noah J reluctantly agreed to Benbow being self-represented. At numerous times during the trial, Noah J had to intervene to assist Benbow who experienced difficulty following proceedings. Benbow was charged with being criminally negligent in the operation of his ‘Big Bopper’ fairground ride when a young child died after being thrown from the ride. Two jurors conducted research on the Internet during the trial in relation to the safety standards of such rides. During Noah J’s summing up, the judge defined beyond reasonable doubt as meaning a ‘comfortable satisfaction, which can be likened to the task of deciding any of the more important questions which confront you in your daily lives’. Noah J also told the jury that ‘reasonable’ was an objective standard and did not relate to their own individual understanding of the word ‘reasonable’. Noah J’s summing up discussed the law of criminal negligence in general terms and then left it to the jury to apply the law in the case before them. Benbow was found guilty of criminal negligence manslaughter and now seeks your advice on any grounds of appeal he might have. Time allowed: 40 mins

Answer Plan There are four main grounds under which you could argue that Benbow’s conviction for manslaughter should be quashed and a new trial ordered:

(i)

Judge allowing Benbow to be self-represented. • This conflicts with the fundamental right of the accused to be tried fairly. (ii) Internet searches by two of the jurors. • Conducting such searches is not consistent with preserving the sanctity of the jury room. [page 121] (iii) Judge’s definition of ‘beyond reasonable doubt’. • The High Court has rejected the approach adopted by Noah J. (iv) Summing up on criminal negligence was defective. • The function of the summing up is to give the jury directions on the legal issues.

Answer (i) Judge allowing Benbow to be self-represented 5-10 In Australia, the High Court has stated that there is a fundamental right of the accused to be tried fairly: Dietrich v R (1992) 177 CLR 292 at 299 per Mason CJ and McHugh J. The accused has a statutory right to be represented at trial: see Judiciary Act 1903 (Cth) s 78; Criminal Procedure Act 1986 (NSW) s 36; Criminal Code (NT) s 360; Criminal Code (Qld) s 616; Criminal Law Consolidation Act 1935 (SA) s 288; Criminal Code (Tas) s 368; Criminal Procedure Act 2009 (Vic) ss 33 and 197; Criminal Procedure Act 2004 (WA) s 172. Such a statutory right reflects High Court authority that legal representation is regarded as being essential to a fair trial where the charge is serious: Dietrich v R (1992) 177 CLR 292 at 301–2 per Mason CJ and McHugh J: The advantages of representation by counsel are even clearer today than they were in the nineteenth century. It is in the best interests not only of the accused but also of the administration of justice that an accused be so represented, particularly when the offence charged is serious (McInnis v The Queen (1979) 143 CLR 575, at 579, per Barwick CJ

… An unrepresented accused is disadvantaged, not merely because almost always he or she has insufficient legal knowledge and skills, but also because an accused in such a position is unable dispassionately to assess and present his or her case in the same manner as counsel for the Crown (McInnis (1979) 143 CLR 575, at 590, per Murphy J).

In Dietrich, the High Court held that, where an accused facing serious charges (as Benbow is with manslaughter) is unrepresented through no fault of their own, proceedings ought to be stayed until the accused can obtain representation. This right to be represented does not extend to a right to be represented at public expense. However, jurisdictions such as Victoria have legislated to order Victoria Legal Aid to provide legal representation if the court is satisfied the accused may not receive a fair trial without legal representation (s 197(3) of the Criminal Procedure Act 2009 (Vic)): If a court is satisfied at any time that — (a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and (b) the accused is in need of legal representation because the accused is unable to afford the full cost of obtaining from a private law practice or private legal practitioner legal representation in the trial — [page 122] the court may order Victoria Legal Aid to provide legal representation to the accused, on any conditions specified by the court, and may adjourn the trial until that legal representation has been provided.

Thus, here, Noah J should have ordered a stay of proceedings until Benbow was legally represented.

(ii) Internet searches by two jurors 5-11 This issue concerns evidence outside the jury room. A true verdict on the evidence means that jurors must not go on an independent search for facts. Jurors are assessors of evidence not investigators of the facts. Where jurors embark on an independent investigation of their own, there is a possibility that the irregularity may have affected the verdict and cause the trial to miscarry, as occurred in R v Skaf [2004] NSWCCA 37. In Skaf, two members of the jury visited the site of the alleged sexual assault. The court ruled (at [274]) that it could not be satisfied that the irregularity had not affected the verdict

and that the jury would have returned the same verdict had the irregularity not occurred. The court observed (at [277]) that parties relied on information proved under the rules of evidence: The law of evidence may be amended from time to time. But its essential function is constant and vital. In a criminal trial, guilt must be established beyond reasonable doubt based upon admissible evidence. The rules of evidence are the sieve through which information must pass before the jury is required or entitled to consider it. Parties cannot rely upon information that is not proved according to these rules. This is no mere technicality. The rules embody significant policies designed to achieve fairness and efficiency. The need to satisfy those rules in a criminal trial ensures that those policies are met and that all parties know what is being taken into account and are able to address its significance.

The case on point with the factual matrix is R v K [2003] NSWCCA 406, where jury members conducted Internet searches revealing information about the defendant. The defendant was convicted of the murder of his first wife. Jurors had acquired knowledge as a result of Internet searches about the defendant’s history, including that the defendant had been accused of murdering his second wife, and that the current trial was a retrial, in relation to the alleged murder of his first wife. The appellate court held that the evidence concerning the results of the Internet searches relating to the alleged murder of the second wife should be received, by analogy with the cases where evidence had been received showing that documents, which were not in evidence in the trial, had found their way to the jury room. The information was potentially prejudicial as there was a real risk of the jury applying tendency and/or coincidence reasoning, or of them regarding the evidence as having raised bad character, and as a result there should be a new trial. Some jurisdictions specifically prohibit a juror from making inquiries about the accused — see, for example, s 69A of the Jury Act 1995 (Qld): [page 123] (1)

A person who has been sworn as a juror in a criminal trial must not inquire about

the defendant in the trial until the jury of which the person is a member has given its verdict, or the person has been discharged by the judge. … (3)

In this section — inquire includes — (a) search an electronic database for information, for example, by using the internet; and (b) cause someone else to inquire.

Consequently, Benbow will succeed on this ground of appeal relating to the Internet searches by two of the jurors on the authority of R v K [2003] NSWCCA 406 (and if applicable under the relevant Jury Act) where the court stressed the importance of preserving the sanctity of the jury room.

(iii) Judge’s definition of ‘beyond reasonable doubt’ 5-12 Both the common law and statute define the criminal standard of proof as ‘beyond reasonable doubt’: uniform evidence legislation s 141(1); Criminal Code 1995 (Cth) s 13.2(1). The High Court has rejected any attempt to substitute the phrase ‘beyond reasonable doubt’ for other phraseology: Thomas v R (1960) 102 CLR 584. In Thomas, the trial judge had addressed the jury in these terms: There is no particular magic about the way you’ve got to consider it, no special rules, you consider it in an ordinary common sense manner and in the way you would consider the more serious matters which come up for consideration and decision in your lives, and if considering it in that way you come to the conclusion — you come to a feeling of comfortable satisfaction that the accused is guilty, then you should find him so guilty, and that is the standard you should apply with the various verdicts which I have indicated to you.

Fullagar J (at 593) made the following critical observation of the above direction to the jury: I do not think it can be doubted that the last quoted passage contains a misdirection. I think that the first part of it is open to objection. It tends to water down and qualify the plain rule that what is required to justify a conviction is proof beyond reasonable doubt: Brown v The King (1913) 17 CLR 570 where Barton ACJ said at 584: ‘… one embarks on a dangerous sea if he attempts to define with precision a term which is in ordinary and common use with relation to this subject matter, and which is usually stated to a jury without embellishment as a well understood expression’. Then, ‘comfortable satisfaction’ has perhaps gained a certain currency, but even in civil cases it has little, in my opinion, to recommend it … In truth, to ‘come to the feeling’ referred to in his Honour’s charge is by no means the same thing as being satisfied beyond reasonable doubt.

In Thomas, the High Court ordered a retrial. However, in addition to ‘comfortable satisfaction’ criticised in Thomas, Noah J also referred to ‘reasonable’ being an objective standard which is contrary to High Court authority in Green v R (1971) 126 CLR 28 at 33: [page 124] A reasonable doubt is a doubt which the particular jury entertain in the circumstances. Jurymen themselves set the standard of what is reasonable in the circumstances. It is that ability which is attributed to them which is one of the virtues of our mode of trial: to their task of deciding facts they bring to bear their experience and judgment. They are both unaccustomed and not required to submit their processes of mind to objective analysis of the kind proposed in the language of the judge in this case … A reasonable doubt which a jury may entertain is not to be confined to a ‘rational doubt’, or a ‘doubt founded on reason’ in the analytical sense.

Consequently, Noah J has made two errors of law in defining ‘beyond reasonable doubt’ to the jury, which aside from the three other grounds of appeal would be sufficient to require a new trial.

(iv) Summing up on criminal negligence was defective 5-13 Noah J’s summing up discussed the law of criminal negligence in general terms and then left it to the jury to apply the law in the case before them. When a trial judge is explaining the relevant law to the jury, two principles need to be followed: (1) to set out just enough law for the jury to be able to decide a verdict; and (2) to explain how the legal principles relate to the evidence and the issues that emerged during the trial. The most quoted High Court authority in regard to these two principles is Alford v Magee (1952) 85 CLR 437 at 466: [T]he late Sir Leo Cussen insisted always most strongly that it was of little use to explain the law to the jury in general terms and then leave it to them to apply the law to the case before them. He held that the law should be given to the jury not merely with reference to the facts of the particular case but with an explanation of how it applied to the facts of the particular case. He held that the only law which it was necessary for them to know was so much as must guide them to a decision on the real issue or issues in the case, and that the judge was charged with, and bound to accept, the responsibility (1) of deciding what are the real issues in the particular case, and (2) of telling the jury, in the light of the law, what those issues are.

Thus, Noah J has made the very mistake identified by Sir Leo Cussen

in the passage cited above, by discussing the law of criminal negligence in general terms and not explaining how the law applied to the facts in Benbow’s case.

Conclusion 5-14 Benbow will win his appeal on all four grounds as they constitute a miscarriage of justice, and consequently Benbow will face a new trial.

Examiner’s Comments 5-15 It should have been apparent that each paragraph represented a different issue that needed to be addressed in the answer. For example, in the first paragraph you are told Benbow is representing himself at trial despite Noah J’s reservations, along with the judge’s interventions to assist Benbow who was having difficulty following proceedings. [page 125] This should have raised the issue of whether Benbow is undergoing a fair trial. The second paragraph clearly raised the sanctity of the jury room, while the third paragraph directed attention to the dangers of a judge attempting to define the standard of ‘beyond reasonable doubt’. The fourth paragraph left the application of the law to the jury. Each issue required matching case authority. Examiners generally favour ‘clues’ and try to base the factual matrix on cases, at least in part, with which students should be familiar. Here, the factual matrix closely resembled the facts in the leading cases on each issue. Thus, an unrepresented defendant was based on Dietrich; jury Internet searches was based on R v K; defining ‘beyond reasonable doubt’ was based on Thomas and Green; and the inadequate summing up was based on Alford v Magee. Being able to identify these cases reflects a student’s level of knowledge and preparation for the examination. Where relevant

to a student’s own jurisdiction, clearly the particular statute should be cited as with s 69A of the Jury Act 1995 (Qld) for the two jurors’ Internet searches on the accused, Benbow.

Keep in Mind You should remember that in a hypothetical legal problem examiners do not waste words: • The opening sentence is: ‘Benbow was on trial for manslaughter.’ This tells you that the charge is serious, which is relevant to the fact that Benbow is representing himself. You are not told why Benbow was unable to secure Legal Aid, but this fact is relevant: (1) to jurisdictions like Victoria where the judge may order Victoria Legal Aid to provide legal representation if the court is satisfied the accused may not receive a fair trial without legal representation; and (2) to the High Court’s decision in Dietrich that the right to be represented does not extend to a right to be represented at public expense. • You are told Benbow is charged with criminal negligence in relation to his ‘Big Bopper’ ride where a child died, and that two jurors conducted research on the safety standards of such rides. In other circumstances, such research would be considered professional and dedicated. Ask yourself: ‘Why would this research be a legal issue when conducted by a juror?’ • In Noah J’s definition of ‘beyond reasonable doubt’ there are two limbs to the instruction to the jury: one dealing with ‘comfortable satisfaction’ and the other with an objective standard of ‘reasonable’. This suggests that there might be two cases involved and two separate principles. • All you are told about the summing up on criminal negligence is that Noah J discussed the law of criminal negligence in ‘general terms’ [page 126]

and then left the jury to apply the law to the facts. Ask yourself: ‘Is this the limit of a judge’s function to a jury untrained in the law?’

Question 3 Barry was on trial in the Queensland Supreme Court for the murder of his wife. The case had attracted considerable media attention. Paul was summoned for jury selection and was challenged for cause by the defence who alleged Paul was not impartial. The reason cited was that Paul had told all his friends at a barbecue, prior to knowing that he would called up for jury service, that Barry was ‘obviously guilty’. Deacon J dismissed the challenge ruling that in the absence of any other evidence there was no basis to inquire into the impartiality of Paul. The defence then applied for a no jury order under ss 614 and 615 of the Criminal Code (Qld). Deacon J exercised his discretion to refuse the application. His Honour held: The risk of prejudice that may exist from the publicity is likely to be able to be contained and is offset to a significant extent by the interest in deciding the case by reference to community standards considered by a jury. Barry’s defence was that he had acted in self-defence. Deacon J refused to allow selfdefence to go before the jury, ruling that there was insufficient evidence to raise a reasonable possibility of Barry acting in self-defence because the medical evidence indicated his wife had died as a result of a sustained attack. Immediately after the jury retired to consider its verdict, Paul pressed the jury foreman for a vote which resulted in a 10:2 split in favour of conviction. Paul then attacked the two jurors in the minority saying they must be ‘stupid and blind’ in failing to be convinced of Barry’s guilt. In the many hours of jury deliberation that followed, Paul kept up his attack on the two minority jurors until both jurors finally agreed to change their votes. Some of the jurors were uncomfortable with Paul’s behaviour, but no juror raised a concern with the judge before the foreman brought in a verdict of guilty. Advise Barry on any grounds of appeal that may be available to him. Would your answer differ if it transpired after the trial that one of the jurors discovered that Paul was a business rival of Barry’s and Paul had a vested interest in Barry’s conviction? Time allowed: 40 mins

Answer Plan There are three main grounds of appeal for Barry:

(i)

Possibility that Paul was not impartial. [page 127] • •

Deacon J rejected the challenge for cause by the defence. Paul’s behaviour against the two minority jurors in the jury room. (ii) Deacon J’s rejection of the defence’s application for a no jury order. • The risk of prejudice from the pre-trial publicity was considered to be containable and of less significance than Barry being tried by a jury of his peers. (iii) Deacon J’s refusal to allow self-defence to go before the jury. • Deacon J ruled that there was insufficient evidence to raise a reasonable possibility of Barry’s acting in self-defence.

Answer 5-16 This question has been set in Queensland. For students in other jurisdictions it is necessary to consult the relevant equivalent legislation to ascertain whether the statutory language is similar, or whether the issue has been covered in a different manner or the legislation is silent on the issue in which case the common law is applicable.

(i) Possibility that Paul not impartial (a) Deacon J’s rejection of challenge for cause by defence 5-17 Jurors can be challenged peremptorily or for cause. For peremptory challenges, no reason has to be given and the sole question is how many challenges the legislation allows each party. Typically, the information is limited to the person’s name, current occupation and physical appearance. The situation is different where a juror is challenged for cause. Here, s 43 of the Jury Act 1995 (Qld) is applicable:

(1) (2)

(3)

(4)

A party to a civil or criminal trial may challenge for cause against a person selected to serve on the jury or as a reserve juror. A challenge for cause under this section is made by objecting to the selection of the person against whom the challenge is made on either or both of the following grounds — (a) the person is not qualified for jury service; (b) the person is not impartial. A party who makes a challenge for cause must inform the judge of the reasons for the challenge and give the judge information and materials available to the party that are relevant to the challenge. If the judge is satisfied there are proper grounds to inquire into the qualification or impartiality of the person against whom the challenge is made, the judge may — (a) permit the party to put questions to the person in a way and in a form decided by the judge; and (b) if the person’s answers to the questions give grounds for further inquiry — permit the examination or cross-examination of the person on oath.

… (6)

After considering the evidence and submissions of parties, the judge must uphold or dismiss the challenge.

[page 128] Barry’s counsel challenged Paul as being a person who was not impartial under s 43(2)(b) above. However, on the facts the only evidence Barry’s counsel was able to present under s 43(3) was that Paul had told all his friends at a barbecue, prior to knowing that he would called up for jury service, that Barry was ‘obviously guilty’. Given the paucity of evidence and that many people may have made a similar observation in a social setting, it was unsurprising that Deacon J was not satisfied that there were proper grounds to inquire further into Paul’s impartiality under s 43(4), and consequently dismissed the challenge under s 43(6). As a result, no error of law is apparent. To succeed, Barry’s counsel would have needed more concrete evidence of the kind discovered by one of the jurors after the trial was over.

(b) Paul’s behaviour against minority jurors 5-18 Calling for a straw poll of jurors at the outset of a jury’s deliberations is standard practice. However, an unrelenting attack on

the two minority jurors is a different matter. The factual matrix is silent on the reaction of the other jurors to Paul’s behaviour other than some jurors were ‘uncomfortable’. You are told two important facts: (1) the two minority jurors finally changed their minds giving the necessary unanimous verdict for murder under s 59(3); and (2) no juror raised a concern with the judge about Paul’s behaviour before the foreman brought in a verdict of guilty. If a juror had raised a concern, then s 56 would have been applicable: (1)

If, after a juror has been sworn — (a) it appears to the judge (from the juror’s own statements or from evidence before the judge) that the juror is not impartial or ought not, for other reasons, be allowed or required to act as a juror at the trial … the judge may, without discharging the whole jury, discharge the juror.

Thus, if any juror had provided evidence that Paul was not impartial under s 56(1)(a), then the judge could have discharged Paul without discharging the whole jury. This did not happen, and so s 56 has no application on the facts.

(c) Business rival and vested interest in conviction 5-19 Section 70 of the Jury Act 1995 (Qld) preserves the confidentiality of jury deliberations but does provide for exceptions, as under s 70(8): If a member of the jury suspects another member (the suspect) of bias, fraud or an offence related to the suspect’s membership of the jury or the performance of the suspect’s functions as a member of the jury, the member may disclose the suspicion and the grounds on which it is held to the Attorney-General or the director of public prosecutions.

Similar provisions apply in other jurisdictions such as s 75C Juror may report misconduct and other irregularities of the Jury Act 1977 [page 129] (NSW). Here, the discovery by a juror of Paul’s vested interest in Barry’s conviction would have fallen within s 70(8), triggering an investigation by the Crown. Consequently, the juror’s discovery would

have made a difference as Barry did not receive a fair trial given Paul’s bias and the pressure he placed on the two minority jurors.

(ii) Deacon J’s rejection of defence’s application for no jury order 5-20 The starting point is ss 614 and 615 of the Criminal Code (Qld). Under s 614, the prosecutor or the accused person may apply to the court for an order (no jury order) that the accused person be tried by a judge sitting without a jury. The relevant factors in determining whether or not to make a no jury order are set out in s 615(4) and (5): (1)

The court may make a no jury order if it considers it is in the interests of justice to do so.

… (4)

(5)

Without limiting subsection (1), (2) or (3), the court may make a no jury order if it considers that any of the following apply — (a) the trial, because of its complexity or length or both, is likely to be unreasonably burdensome to a jury; (b) there is a real possibility that acts that may constitute an offence under section 119B [Retaliation against or intimidation of judicial officer, juror, witness] would be committed in relation to a member of a jury; (c) there has been significant pre-trial publicity that may affect jury deliberations. Without limiting subsection (1), 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.

On the facts, s 615(4)(c) is relevant as it deals with significant pretrial publicity. Also pertinent is Deacon J’s reference to ‘community standards considered by a jury’ which appears to refer to s 615(5), although Barry is being charged with murder (subjective test) rather than, for example, criminal negligence manslaughter (objective test). In R v Fardon [2010] QCA 317, the Court of Appeal considered a case on point where the trial judge had refused a no jury order in relation to extensive adverse pre-trial publicity. Chesterman JA (at [81]) reviewed the meaning of the phrase ‘interests of justice’ in the context of s 615(1) above: Sections 614 and 615 are in Chapter 62 division 9A, ‘Trial by judge alone’. It follows that trial on indictment before a judge without a jury is exceptional. An applicant for a no jury order must show why the case comes within the exception. An applicant for such an order, prosecutor or accused, must satisfy the court that it is in the interests of justice that that

[page 130] be the mode of trial. If the Code expressed neutrality and no preference for a trial by a jury the order could be had for the asking. As it is the sections make it clear that there must be an application for a trial without a jury and, in accordance with ordinary principles, demonstrate why such an order is in the interests of justice.

On the above authority, there is an onus on the party seeking a no jury order to show why such an order is in the interests of justice. Furthermore, as Chesterman JA observed (at [71]): Appeals from no jury orders are likely to be rare because any challenge is against a judicial discretion exercised by reference to undefined and indeterminate parameters … [t]he width of the discretion conferred by s 615(1) will make challenges to it very difficult.

Finally, there is authority in R v Ferguson; Ex parte Attorney-General (Qld) [2008] QCA 227 at [26] which is unhelpful to Barry’s appeal ground: [T]here is an abundance of authoritative statements that even where a trial is accompanied by adverse publicity, even adverse publicity concerning the accused’s previous criminal convictions, the Court should be slow to conclude the resultant risk of unfairness to the accused is intractable, because the jury is unlikely to be amenable to the directions of the trial Judge to ignore the adverse publicity and render the verdict based on the evidence.

As to the reference by Deacon J to ‘community standards considered by a jury’, Chesterman JA pointed out (at [86]): There is no reason to think, and no basis in law for concluding, that one mode of trial is more ‘socially acceptable’ than the other. The discretion to make a no jury order should be unaffected by any notion that ‘the community’ will more readily accept the validity of one mode of trial over the other.

In any event, even though Deacon J may have been referring to s 615(5) without mentioning ‘objective’ community standards, his reasons for refusing the no jury order (containment and a rebuttable presumption in favour of a jury trial) are consistent with: (1) R v Ferguson; Ex parte Attorney-General (Qld); and (2) R v Fardon [2010] QCA 317. Consequently, it is most unlikely that Barry would be successful in his appeal on the ground that Deacon J incorrectly exercised his discretion to refuse a no jury order: House v R (1936) 55 CLR 499 at 504–5.

(iii) Deacon J’s refusal to allow self-defence to go before jury 5-21 Under s 13.3(6) of the Criminal Code 1995 (Cth), an evidential burden is defined as follows: evidential burden, in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

[page 131] The High Court clarified the meaning of an evidential burden in Momcilovic v R (2011) 245 CLR 1 at [665] per Bell J: An evidential burden is not an ‘onus of disproof’. An evidential burden does no more than oblige a party to show that there is sufficient evidence to raise an issue as to the existence (or non-existence) of a fact.

In R v Khazaal (2012) 246 CLR 601, the High Court further considered the meaning of an evidential burden in the context of the respondent’s conviction for making a document connected with assistance in a terrorist act, knowing of that connection, contrary to s 101.5(1) of the Criminal Code 1995 (Cth). The question for decision was whether the respondent had satisfied the evidential burden under s 13.3(6) above that the making of the e-book was not intended to facilitate assistance in a terrorist act. The High Court held that the evidence pointed to by the respondent did not suggest a reasonable possibility that the making of the e-book was not intended to facilitate assistance in a terrorist act. Heydon J (at [106]) pointed out that once the book was read as whole the evidential burden could not be satisfied: Once its contents are examined as a whole, it contains no material suggesting a reasonable possibility that a person who assembled and disseminated the book, as the respondent did, assembled it with some intention other than an intention to facilitate assistance in a terrorist act.

On the facts here, Deacon J ruled that there was insufficient evidence to raise a reasonable possibility of Barry’s acting in self-defence. The reason for imposing an evidential burden is to prevent the defence from adopting a ‘scatter gun’ approach and ensuring that the Crown does not have to negative every conceivable defence. Lord Morris said in Bratty v Attorney-General for Northern Ireland [1963] AC 386 at 416–17:

As human behaviour may manifest itself in infinite varieties of circumstances it is perilous to generalise, but it is not every facile mouthing of some easy phrase of excuse that can amount to an explanation. It is for a judge to decide whether there is evidence fit to be left to the jury which could be the basis of some suggested verdict.

Thus, it is for Deacon J to decide whether Barry has raised sufficient evidence of self-defence to leave self-defence with the jury. You are told that Deacon J’s refusal was based on the medical evidence of a sustained attack which was inconsistent with self-defence. For a case on point, see R v Acott [1997] 1 All ER 706, where the defendant killed his mother and the medical evidence demonstrated that the deceased died as a result of a sustained attack. Such an attack was conceivably indicative of a loss of self-control by the defendant. However, the trial judge refused to leave provocation with the jury. The House of Lords upheld the trial judge’s decision and cited Lord Devlin in Lee Chun-Chuen v R [1963] AC 220 at 229 as authority: If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility

[page 132] that there was specific provoking conduct resulting in a loss of self-control, there is simply no issue of provocation to be considered by the jury.

The case here against Barry is a fortiori compared with R v Acott (above), given Barry’s defence is self-defence rather than provocation. Also, you are not told whether Barry gave evidence at his trial, but it would be difficult for Barry to satisfy the evidential burden if he did not take the witness stand. In CTM v R (2008) 236 CLR 440, the accused sought to raise mistake of fact as to the complainant’s age. CTM did not give evidence at his trial and it was not put to the girl in cross examination that she had said anything to CTM about her age. Consequently, the High Court held that CTM had not satisfied the evidentiary burden sufficiently to raise the defence of mistake of fact. Here, Barry would be sorely pressed to argue, given the medical evidence, that Deacon J made an error of law in refusing to allow selfdefence to be put before the jury, especially if Barry did not give

evidence on his own behalf: CTM v R (2008) 236 CLR 440. Barry’s counsel would have had to tender more evidence than presently available to satisfy the evidential burden for self-defence.

Conclusion 5-22 Barry’s only realistic ground for a successful appeal lies in the possibility that Paul was not an impartial juror, and depends on the second scenario where one of the jurors discovered Paul had a conflict of interest. Barry will fail on challenging Deacon J’s decisions not to make a no jury order and not to allow self-defence to go to the jury.

Examiner’s Comments 5-23 The question is based in Queensland, but the outcome would be similar in any jurisdiction in Australia with the exception of the no jury order. Only Queensland, New South Wales and Western Australia have no jury orders: Criminal Code (Qld) ss 614 and 615; Criminal Procedure Act 1986 (NSW) s 132; Criminal Procedure Act 2004 (WA) s 118. Apart from minor differences in the relevant sections of the respective Jury Acts, the major point of distinction is whether the particular jurisdiction allows a no jury order to be made or gives the accused the right to choose. The Commonwealth (see Brown v R (1986) 160 CLR 171 where the High Court found that s 80 of the Australian Constitution prevented the accused electing for a trial by judge alone), Victoria, Tasmania and the Northern Territory do not provide for criminal trials by judge alone. Alternatively, even though the particular jurisdiction does allow no jury trials, an accused is allowed to elect to be tried by a judge alone without any discretion in the Crown or the court to refuse such an election. South Australia and the Australian Capital Territory allow the accused the right to choose. Thus, apart from the no jury order, the issues of satisfying the evidential burden for self-defence and dealing with a juror who was demonstrably

[page 133] not impartial, would be determined in a similar manner across all Australian jurisdictions.

Keep in Mind You should take care to identify the key characters in a hypothetical legal problem and the law they notionally ‘carry’ with them: • Paul is clearly a key character and plays the role of ‘rogue’ juror. The question requires you to be able to identify the points in the narrative that intersect with a legislative response to the problem of a ‘rogue’ juror, and how the response differs depending on the point at which the trial has reached when the ‘rogue’ behaviour occurs. • The trial judge, Deacon J, is the obvious other main character who makes two critical discretionary decisions in relation to the no jury order and the evidential burden. As with most legal problem solving questions, there is a need to identify the relevant legislative sections and cases on point. For example, for the no jury order ss 614 and 615 of the Criminal Code (Qld) and R v Fardon [2010] QCA 317 are critical. But it is not sufficient to just mention the two sections. It is necessary to explain how the two sections operate and which criteria are relevant. Here, it was s 615(4)(c) as it deals with significant pre-trial publicity. Again, R v Fardon explained the meaning of the phrase ‘interests of justice’ and that the onus was on the party applying for the no jury order.

Question 4 Gustave was indicted on a charge of murder in Victoria. However, before the trial commenced the Crown declared a nolle prosequi. Six months later, the Crown presented an ex officio indictment against Gustave in the Victorian Supreme Court for murder.

The case against Gustave was circumstantial. When the Crown closed its case, Gustave’s defence counsel applied to the trial judge, Nuttall J, to issue a ‘Prasad direction’ to the jury. The Crown submitted that if a ‘Prasad direction’ was to be put to the jury, such a direction should include the offence of accessory after the fact pursuant to s 325 of the Crimes Act 1958 (Vic) as an alternative to the count of murder in order to ‘clear the presentment’. Nuttall J refused the defence application for the court to issue a ‘Prasad direction’ to the jury because no serious weakness in the Crown case had emerged, noting that such a procedure should be used ‘sparingly and only in circumstances where the trial judge was of the view that the evidence was not sufficiently cogent to justify a conviction’. Nuttall J also refused a defence application to exclude some photographic exhibits from evidence made available to the jury, which depicted ‘ghastly injuries’ to the deceased, because the photographs provided some [page 134] assistance in understanding the pathologist’s evidence of the position of the before and after death injuries. In addition to the photographs, Nuttall J allowed the jury to retire with both Gustave’s recorded interview with the police and a transcript of the interview, to better navigate through the recording to those parts of the interview the jury particularly wanted to revisit. Gustave was convicted of murder. Advise Gustave on any grounds of appeal that may be available to him. How would your answer differ if Gustave admitted killing the deceased but pleaded the defence of non-insane automatism, and Nuttall J directed the jury in the following manner on the onus of proof where the evidence required the jury to consider both non-insane automatism and insanity? If the accused proves on the balance of probabilities that he was acting as an automaton when the deceased was killed by reason of mental malfunction, but fails to prove that his mental malfunction was: (1) transient; (2) caused by trauma, whether physical or psychological, which the mind of an ordinary person would be likely not to have withstood; and (3) not prone to recur, he is entitled to be acquitted on account of unsoundness of mind or on the ground of insanity. However, if he proves that his mental malfunction satisfied these three exempting qualifications, he is entitled to an outright acquittal. Time allowed: 40 mins

Answer Plan There are four issues which need to be addressed:

(i)

Pre-trial procedures. • The Crown initially declared a nolle prosequi, but six months later, the Crown presented an ex officio indictment. (ii) Defence’s request that the court issue a ‘Prasad direction’ was refused. • The case against Gustave was circumstantial, but the Crown sought an alternative verdict of accessory after the fact be included in the ‘Prasad direction’. (iii) Nuttall J’s decision to allow the jury to retire with some exhibits. • The jury was able to take into the jury room. – Photographic exhibits depicting the ‘ghastly injuries’ of the deceased. – Gustave’s recorded interview with the police and a transcript of Gustave’s recorded interview. (iv) Nuttall J’s direction to the jury regarding the onus of proof for non-insane automatism. Nuttall J directed the jury that the onus of proof lay with the accused, Gustave, to show on the balance of probabilities that he was acting like [page 135] an automaton. Once this condition was satisfied, the verdict of either acquittal or insanity depended on whether or not Gustave was able to prove the three exempting qualifications.

Answer (i) Pre-trial procedures 5-24 Before the trial commenced the Crown entered a nolle prosequi, which means that the prosecutor voluntarily discontinued criminal charges against Gustave. A nolle prosequi is available to the Crown between the presentation of the indictment and prior to the verdict:

Beckett v New South Wales (2013) 248 CLR 432. However, a nolle prosequi is subject to judicial review and may be refused by the court if it constitutes an abuse of process: R v Jell [1991] 1 Qd R 333. For example, there is no indication in the factual matrix that the Crown had applied for a nolle prosequi where an adjournment has been or might be refused: R v Lorkin (1995) 82 A Crim R 196; or that refusal of a nolle prosequi was necessary to prevent oppression: R v Economou (1989) 51 SASR 421. The reason for the Crown entering a nolle prosequi may have been because the evidence was not deemed sufficient at the time to shoulder the burden of proof. The legal effect of the entry of a nolle prosequi is simply to withdraw the charges and does not amount to an acquittal. Hence, there is no question here of the application of double jeopardy. The Crown has left open the possibility that Gustave may be re-indicted on the same charge of murder. Six months later, the Crown presented an ex officio indictment against Gustave for murder. The Director of Public Prosecutions in exceptional circumstances is able to file an ex officio indictment, which has the effect of circumventing a committal hearing and proceeding directly to trial in the Supreme Court. See, for example, s 561(1) of the Criminal Code (Qld): A Crown Law Officer may sign and present an indictment in any court of criminal jurisdiction against any person for any indictable offence, whether the accused person has been committed for trial or not.

As a rule, courts frown on ex officio indictments as they prevent the accused from testing the Crown’s case. While the decision to file an ex officio indictment is beyond judicial review, unless the consequential potential unfairness is addressed the situation may warrant a stay of proceedings until committal proceedings are held: Barton v R (1980) 147 CLR 75. However, where the accused has a prior understanding of the nature of the case against him or her, an ex officio indictment is less contentious: Barton v R (1980) 147 CLR 75. Here, Gustave would have previously been through a committal proceeding on the charge of murder, and

[page 136] therefore under the circumstances the Crown filing an ex officio indictment against Gustave was reasonable. Consequently, there is no scope for an appeal ground relating to the pre-trial procedures.

(ii) Defence request for ‘Prasad direction’ refused 5-25 At the close of the Crown case, the defence can request a ‘Prasad direction’ which is a direction to the jury that they can acquit the accused without hearing any more evidence: R v Prasad (1979) SASR 161. In Prasad (at 163) King CJ observed: It is, of course, open to the jury at any time after the close of the case for the prosecution to inform the judge that the evidence which they have heard is insufficient to justify a conviction and to bring in a verdict of not guilty without hearing more. It is within the discretion of the judge to inform the jury of this right, and if he decides to do so he usually tells them at the close of the case for the prosecution that they may do so then or at any later stage of the proceedings.

On the facts here, you are told that the Crown sought to include in the ‘Prasad direction’ the offence of accessory after the fact pursuant to s 325 of the Crimes Act 1958 (Vic) as an alternative to the count of murder in order to ‘clear the presentment’. This scenario is on point with R v Smart (Ruling No 5) [2008] VSC 94. In Smart (at [13]) Lasry J was of the opinion that ‘the evidence may not be sufficiently cogent to justify a verdict of guilty’, following the test set out in R v Pahuja (1987) 49 SASR 191. In coming to this conclusion, Lasry J was mindful that the case against the accused was circumstantial, the deceased’s body (Ms Tanner) had never been found, the accused was a man of good character without prior convictions, and the evidence was that the accused and Ms Tanner got on very well. As to the Crown submission, Lasry J (at [17]) declined to include any reference to an alternative verdict in giving a ‘Prasad direction’ to the jury: [T]o this date the trial has been conducted on the basis that the Crown alleges that the accused murdered Ms Tanner and disposed of her body. The accused has conducted the case on the basis that he is not guilty of that offence. The jury is therefore unaware of

any potential alternative and in my view … it seems to me that I should not raise it in the course of a Prasad direction. It is potentially confusing and may generate an element of unfairness.

Consequently, Lasry J proposed to put the ‘Prasad direction’ to the jury only on the offence of murder and to conduct the trial in accordance with the result. In applying the facts to the law, it should be noted that a ‘Prasad direction’ involves the exercise of judicial discretion. The key question is whether Nuttall J has applied the correct test. Here, it would appear [page 137] that Nuttall J, in refusing the application to issue a ‘Prasad direction’, has correctly applied the test set out in R v Pahuja (1987) 49 SASR 191 ‘that the evidence was not sufficiently cogent to justify a conviction’ given Nuttall J’s finding that ‘no serious weakness in the Crown case had emerged’. It follows that in refusing the application, no issue arose as to whether or not to include in the direction an alternative verdict of accessory after the fact. Consequently, there is no scope for an appeal ground relating to Nuttall J’s refusal to issue a ‘Prasad direction’.

(iii) Decision to allow jury to retire with exhibits 5-26 The photographs, the recorded interview with the police and the transcript of the interview are exhibits which may be taken into the jury room with the judge’s permission. The exercise of judicial discretion is determined by whether or not there is a risk that the exhibit may be used by jurors in a manner not considered by the parties. For example, in Kozul v R (1981) 147 CLR 221 the issue was the discharge of a revolver. The trial judge not only invited the jury to inspect the revolver but also to try and make it discharge. The accused was convicted and appealed to the High Court, who while dismissing the appeal took the opportunity to explain the limits that a jury can make of an exhibit and

the dangers of an examination becoming an experiment. Gibbs CJ observed (at 228): In so far as the learned trial judge suggested that the jury should conduct an experiment designed in part to discover the extent to which a blow to the hand might cause a finger to move, whether by reflex action or in spontaneous response to emotion, he fell into error. In the circumstances of this case an experiment conducted by the jury for such a purpose would have gone beyond an examination and evaluation of the evidence provided by the revolver, and would have had the purpose of gathering additional evidence.

Thus, one test is whether there is a risk that the jury may seek to gather additional evidence not considered by the parties through the conduct of an experiment. Another test is whether the prejudicial effect may exceed the probative value of having the exhibit in the jury room.

(a) Photographs 5-27 A case on point can be found in R v Rae [2006] QCA 207, where the appellant contended that the trial judge erred in exercising his discretion under s 130 of the Evidence Act 1977 (Qld) in not excluding photographic exhibits. McMurdo P (at [42]) observed that the trial judge was of the view that the photographs, which depicted ‘ghastly’ injuries to the deceased, had potential probative value ‘to show the high level of animosity borne by the appellant to his victim tending to establish that the attack was motivated by an intention to kill or to cause grievous bodily harm’. McMurdo P concluded (at [43]) that given all the other [page 138] gruesome evidence ‘[t]he judge’s decision not to exclude the photographs was an unexceptional and quite proper exercise of discretion’. Hence, there is little prospect of success in challenging Nuttall J’s exercise of discretion to allow the photographs into the jury room.

(b) Recorded interview and transcript of interview

5-28 There is authority that a court has an inherent power to control its own processes and a discretionary power to make available any part of the record of proceedings to the jury. In R v Taousanis [1999] NSWSC 107 at [9] Sperling J said: There is an inherent or implied power in this court to control its own processes. The power is hedged in by statute, rules of court, precedent and practice. I do not doubt, however, that a judge has, apart altogether from the operation of s 55C Supply of transcripts to jury of the Jury Act 1977 (NSW), the discretionary power to make available to the jury a transcript of any part of the record of the proceedings to the extent that such proceedings have been conducted before them.

A case on point with the factual matrix is R v Le [2007] QCA 259, where the Queensland Court of Appeal considered the appellant’s argument that the provision of the transcripts of the appellant’s records of interview operated unfairly against the appellant because there was a risk that the jury would attribute to the printed record greater weight than it deserved. Crucially, no complaint was made about the trial judge’s directions to the jury as to the use which they could properly make of the transcripts, which was determinative in the court’s dismissal of the appeal (at [18]): The learned judge’s directions on the proper use of the tape recordings and the transcripts clarified the use the jurors intended to make of the transcripts, namely simply to identify the parts of the audio tapes that the jurors wanted to hear again. There is every reason to accept that the jury used the transcript as their speaker told the learned trial judge the jury intended to, and that the jury appreciated — as they said they did — that the audio tape was the evidence, not the transcript. The directions given could hardly have been clearer, on that point, and nor could the response by the jury spokesperson. That makes it almost impossible to sustain the argument that the provision of the transcripts operated unfairly against Mr Le in this matter.

For Gustave to have succeeded on this point it would have been necessary for him to demonstrate that the erroneous exercise of Nuttall J’s discretion had led to a miscarriage of justice in that it prejudiced his prospects of an acquittal. It would be extremely difficult for Gustave to show how reference by the jury to the transcript of what Gustave said in his interview, to locate what they wanted to hear again, could have had this effect. Consequently, there is no scope to contest Nuttall J’s decision to allow the jury to retire with the recorded interview and a transcript of the interview.

[page 139]

Conclusion 5-29 Gustave has no realistic grounds of success to appeal his conviction on: (i) pre-trial procedures; (ii) Nuttall J’s refusal of the defence’s request that the court issue a ‘Prasad direction’; and (iii) Nuttall J’s decision to allow the jury to retire with some exhibits.

(iv) Direction to jury regarding onus of proof for non-insane automatism 5-30 If Nuttall J’s direction to the jury on the onus of proof for noninsane automatism contains a legal error, then an appellate court would order a re-trial. The direction given by Nuttall J is taken from the judges in the minority (Mason CJ, Brennan and McHugh JJ who gave a joint judgment) in R v Falconer (1990) 171 CLR 30 at 56. It is not the law because the direction required Gustave to prove on the balance of probabilities that he was acting as an automaton when the deceased was killed by reason of mental malfunction. In effect this places both the evidentiary and legal burden of proof on the accused where the defence of automatism is raised. The majority (Deane, Dawson, Toohey and Gaudron JJ) in three separate judgments held that there was no reason to depart from the standard rules on the burden of proof for the defence of automatism. Thus, if the evidence requires a jury to consider both non-insane automatism and insanity, the question of involuntary conduct should be put in two stages. The jury should first ask itself whether the Crown has disproved, beyond reasonable doubt, non-insane automatism (the onus of proof in relation to that defence being on the Crown). If the Crown has failed to do so, then the accused will be entitled to an unqualified acquittal. If the answer to the first question is in the affirmative, the jury should go on to ask a second question, namely, whether the accused has proved, on the balance of probabilities, insanity. If the answer to that second question is in the affirmative, the jury should acquit but with the

rider that the accused was of unsound mind at the relevant time. (See Toohey J: at 77.) Deane and Dawson JJ (at 63) explained the process of determining the onus of proof as follows: [I]n a case where an issue of sane automatism is raised by positive evidence (including expert medical opinion), an accused will be entitled to an acquittal if the prosecution fails to disprove sane automatism beyond reasonable doubt. In that event, the jury will need to go no further. If, however, the prosecution disproves sane automatism and the evidence raises the question of insane automatism, the jury will have to ask themselves whether, on the balance of probabilities, the evidence establishes insanity under s 27 [of the Criminal Code (WA)]. That will … embrace insane automatism. If the evidence does establish insanity, an accused will be entitled to an acquittal, but the jury will be required to say that the acquittal is on account of unsoundness of mind. If the prosecution does disprove sane automatism

[page 140] and if insanity is not established on the balance of probabilities, in the absence of any other defence the jury should convict.

The reference to the defence of insanity (or mental impairment) placing the legal burden on the party raising the defence, with the standard of proof being on the balance of probabilities, is reflected in s 21(2)(b) and (3) of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1977 (Vic). Consequently, on the authority of the majority in R v Falconer (1990) 171 CLR 30, Nuttall J has misdirected the jury on the onus of proof for non-insane automatism. This would be sufficient to constitute a miscarriage of justice and require Gustave to face a new trial.

Examiner’s Comments 5-31 The key to answering this question is to identify the four issues raised in the factual matrix. For the first issue of the pre-trial procedures, the examiner will be expecting both a discussion of the terms nolle prosequi and ex officio indictment as well as an analysis of their legal effect in the context of the factual matrix.

The second issue of the ‘Prasad direction’ contains an addendum in the form of the Crown seeking to include an alternative verdict of accessory after the fact pursuant to s 325 of the Crimes Act 1958 (Vic). This level of specificity often reveals a clue as the actual case that this part of the factual matrix is built around. Here, it was R v Smart (Ruling No 5) [2008] VSC 94, which also provides a handy overview of the test for giving a ‘Prasad direction’. The third issue of allowing the various exhibits into the jury room goes to judicial discretion. On the one hand the photographs depicted ‘ghastly injuries’ which may inflame the jury, while on the other hand the extent of the injuries went to the fault element of intent in a murder trial. Similarly, providing both the interview and the transcript while convenient and practical ran the risk that the jury would rely on the transcript rather than the actual words spoken in the interview. Again, the factual matrix was drawn from two actual cases: R v Rae [2006] QCA 207 and R v Le [2007] QCA 259. The fourth issue of the direction on the onus of proof for non-insane automatism was given in the context of a supplementary question prefaced by: ‘How would your answer differ?’ The examiner is calling attention to the onus of proof, and specifically giving a long quote in the expectation students would be able to identify the case from which the quote was taken. The issue then is whether the quote correctly states the law on the onus of proof for non-insane automatism. As the examiner has altered the factual matrix to an admission of having killed the deceased but with a defence non-insane automatism, it is likely that your answer on whether Gustave may now have an appeal ground may well differ. [page 141]

Keep in Mind You should always be alert to identify significant pieces of information.

For example: • The fact that the same charge of murder was presented in the ex officio indictment against Gustave. You can display your knowledge by telling the examiner that if the Crown had brought a different charge against Gustave that was not part of the original res gestae, then while the decision to file an ex officio indictment is beyond judicial review unless the consequential potential unfairness is addressed the situation may warrant a stay of proceedings: Barton v R (1980) 147 CLR 75. • When the examiner attributes statements to the trial judge ask yourself: do these statements reflect the law and is there a case on point? Thus, Nuttall J gave the criterion for giving a ‘Prasad direction’ as being used ‘sparingly and only in circumstances where the trial judge was of the view that the evidence was not sufficiently cogent to justify a conviction’. This is a correct statement of the law as held in R v Pahuja (1987) 49 SASR 191. The ability to quickly identify the relevant law and the leading case is a key skill in legal problem solving. • For the exhibits being taken into the jury room, the question that should be uppermost in your mind is: under what circumstances would a judge decline to exercise his or her discretion to allow the exhibit into the jury room? These circumstances are: (1) the risks the jury would misuse the evidence; and (2) whether the prejudicial effect may exceed the probative value of having the exhibit in the jury room. • The supplementary question requires a dissection of Nuttall J’s direction on the onus of proof for non-insane automatism. Using first principles, it should be possible to identify that the direction places both the evidentiary and legal onus on Gustave in raising the defence of non-insane automatism. The leading High Court case on automatism is R v Falconer (1990) 171 CLR 30. The examiner would be expecting students to be familiar with the case and to be able to identify the fact that Nuttall J has directed the jury in accordance with the views of the minority rather than the majority judges who decided Falconer.

[page 143]

Chapter 6

Appeal Process and Sentencing

Key Issues Statute — Appeals 6-1 Appeals are creatures of statute. There is no common law right to an appeal. Consequently, for each jurisdiction in Australia it is necessary to commence with the relevant legislation covering appeals. As each jurisdiction has a hierarchy of courts, a mechanism is provided to allow for appeals between lower and higher courts. This may entail legislation across several pieces of legislation, or a single piece of legislation. In the main all Australian jurisdictions have similar rules governing the appeal process, the overriding objective being to avoid a miscarriage of justice. Irrespective of the individual grounds of appeal, the appeal must ultimately be grounded in one of the recognised criteria for the Court of Appeal allowing an appeal. For the purposes of an appeal, it is necessary to distinguish between the Crown as the appellant and the offender as the appellant In most jurisdictions, Western Australia is an exception, an appeal by the offender against conviction on a question of law alone is an as of right appeal. All other appeals by an offender require leave from the Court of Appeal. Thus, an appeal by an offender against sentence

requires leave. The Crown, on the other hand, does not require leave to appeal against sentence. The appeal process is exhausted when leave to appeal is refused. If the appeal is on a question of law alone, then, excepting Western Australia, there is an as of right appeal to the Court of Appeal. However, a further appeal to the High Court requires special leave. The criteria are set out in s 35A of the Judiciary Act 1903 (Cth) and are difficult to satisfy. These criteria relate to a question of law that is of public importance, or whether the interests of the administration of justice require consideration by the High Court. The range of options open to the court deciding the appeal depends on the status of the court hearing the appeal in the court hierarchy. The most senior appellate court is the Court of Appeal or the Court of Criminal [page 144] Appeal in some jurisdictions. The focus in this chapter is on the Court of Appeal, as provided leave is granted by the Court of Appeal to a party, all appeals can ultimately be heard in the Court of Appeal. Broadly, Courts of Appeal have three options if a decision is made to quash a conviction on the grounds that the verdict was unreasonable or there was a wrong decision on a question of law or there was a miscarriage of justice: (1) order an acquittal; (2) substitute an alternative verdict; or (3) order a new trial: Supreme Court Act 1933 (ACT) s 37O(1); Criminal Appeal Act 1912 (NSW) ss 6(2), 7 and 8; Criminal Code (NT) s 411(3); Criminal Code (Qld) ss 668E(2), 668F(2) and 669; Criminal Law Consolidation Act 1935 (SA) s 353(2); Criminal Code (Tas) ss 402(3), 403(2) and 404; Criminal Procedure Act 2009 (Vic) s 277; Criminal Appeals Act 2004 (WA) s 30. On the question of sentencing, the appellant may be either the Crown or the convicted person, appealing on the ground of the sentence being either manifestly inadequate or manifestly excessive respectively. The

Court of Appeal, if of the opinion some other sentence is warranted, whether more or less severe, shall quash the sentence and substitute another sentence: Supreme Court Act 1933 (ACT) s 37O(7); Criminal Appeal Act 1912 (NSW) s 6(3); Criminal Code (NT) s 411(4); Criminal Code (Qld) s 668E(3); Criminal Law Consolidation Act 1935 (SA) s 353(4); Criminal Code (Tas) s 402(4); Criminal Procedure Act 2009 (Vic) s 281; Criminal Appeals Act 2004 (WA) s 31. An appellant may have an appeal point decided in his or her favour, but not have the verdict disturbed because the Court of Appeal considers that there was no substantial miscarriage of justice. This is known as applying the proviso: Supreme Court Act 1933 (ACT) s 37O(3); Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Code (NT) s 411(2); Criminal Code (Qld) s 668E(1A); Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Code (Tas) s 402(2); Criminal Procedure Act 2009 (Vic) s 276(1); Criminal Appeals Act 2004 (WA) s 30(4). The proviso does not apply to appeals decided in lower courts such as a District Court or County Court or Supreme Court.

Statute — Sentencing 6-2 Sentencing statutes contain the purposes, principles and objectives of sentencing, as well as matters that judicial officers are required to take into account as part of the sentencing process. The principal sentencing legislation in each Australian jurisdiction is as follows: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA). Criminal sentencing occurs after the accused has been found guilty and convicted of a criminal offence by a magistrate, a judge sitting alone or [page 145]

a jury. There are various sentencing options open to the judicial officer including a good behaviour bond, a community service order, a fine and a term of imprisonment. This chapter will focus on terms of imprisonment. It is important to distinguish between the sentence handed down or ‘head sentence’, and the proportion of the sentence that must be served in prison which is often called the non-parole period. Determining the appropriate sentence is a subjective balancing act of a number of different purposes served by the imposition of a criminal sentence, such as deterrence and rehabilitation. The governing sentencing principles are set out in each Sentencing Act above. These sentencing principles typically include: (1) a sentence imposed on an offender must be commensurate with the seriousness of the offence; (2) the seriousness of an offence must be determined by taking into account: (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors; (3) a court must not impose a sentence of imprisonment on an offender unless it decides that: (a) the seriousness of the offence is such that only imprisonment can be justified; or (b) the protection of the community requires it. As can be seen from (3) above, imprisonment is a sanction of last resort: Parker v DPP (1992) 28 NSWLR 282. This principle finds expression in statute: Crimes Act 1914 (Cth) s 17A; Crimes (Sentencing Procedure) Act 1999 (NSW) s 5(1); Penalties and Sentencing Act 1992 (Qld) s 9(2)(a); Criminal Law (Sentencing) Act 1988 (SA) s 11; Sentencing Act 1991 (Vic) s 5(4); Sentencing Act 1995 (WA) s 6(4). The specified term of imprisonment is the maximum available and is rarely imposed under judicial discretion, being reserved for the very worst cases with significant aggravating factors: Ibbs v R (1987) 163

CLR 447 at 451–2. Aggravating factors and mitigating factors are factors which in the court’s opinion increase or decrease the offender’s culpability respectively. In the main all Australian jurisdictions have similar rules governing the sentencing process, the overriding objective being to make the punishment fit the crime. The basis on which an offender will be sentenced is a complex mix of factors that range from the objective seriousness of the offence and the circumstances of the offence, to the vulnerability of the victim and any aggravating or mitigating factors. According to the High Court there is no single sentencing principle, and the sentencing court subjectively and intuitively assesses the various sentencing principles to ‘take account of [page 146] all of the relevant factors and to arrive at a single result which takes due account of all of them’: Wong v R (2001) 207 CLR 584 at 611. Precedents and sentencing ranges for comparable offences are frequently used by the courts, with the Crown and the defence citing cases in support of their respective arguments for the appropriate sentence. Under statute, courts are required to take an offender’s character, age and intellectual capacity into consideration when undertaking the sentencing process. Both a guilty plea and the amount of assistance given to law enforcement authorities are factors to be taken into account at sentencing. To be successful in appealing against a sentence, the ground of appeal must be an error of fact or law. In Roffey v State of Western Australia [2007] WASCA 246 at [23], McLure JA identified the prime consideration in securing a successful appeal against sentence: An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

There are a number of Australian jurisdictions where mandatory

sentencing applies, one of which is the Commonwealth for certain people smuggling offences under the Migration Act 1958 (Cth).

Appeal questions 6-3 Before tackling the following questions, please check that you are familiar with the following: ✓

✓

✓ ✓

basis on which a person or the Crown can appeal a decision, and whether the appeal process differs depending on the identity of the appellant; whether an appeal is as of right or is leave required, and whether there is a difference between appealing a conviction as opposed to the sentence; how the appeal process is exhausted, and what options are open to the court deciding the appeal; and application of the proviso.

Question 1 Peter Poster was convicted of stealing a number of items from the home of his next door neighbour Boris Barker. The items included a stamp collection which the Crown alleged was worth over $1 million. Poster did not dispute that he had taken the stamp collection and the other items, but claimed he was acting under an honest claim of right. Poster’s [page 147] defence was that Barker had himself stolen part of Poster’s own stamp collection and that he was only taking back his own property ‘with interest’. The Supreme Court trial judge had refused to allow Poster’s defence of honest claim of right to go to the jury. Poster also disputed the value of Barker’s stamp collection, claiming that the stamp collection was worth ‘much less’ than $1 million. In sentencing Poster to two years’ imprisonment, the trial judge had said that he took into account both the value of the stamp collection and the breach of trust between two keen stamp collectors. Poster has ‘sacked’ his original defence counsel and seeks your advice on an appeal against both conviction and sentence. The Crown has indicated it will cross-appeal on the grounds that the two year sentence is manifestly inadequate. Time allowed: 25 mins

Answer Plan (i)

Nature of the appeal. • Context of the appeal. • Does the appeal require leave or is it as of right? • For an appeal against sentence, the difference between the Crown and the convicted person in the leave to appeal requirements. (ii) Merits of the appeal. • Does the appellant make good a ground of appeal? • Does the appellant overcome the application of the proviso?

Answer (i) Nature of appeal 6-4 At the outset of your answer, observe that the factual matrix is set in the context of a Supreme Court trial, from which an appeal may be made to the Court of Appeal. In advising Peter Poster (PP), it is necessary to identify the nature of the appeal in order to establish whether the appeal is as of right or requires leave. With the exception of Western Australia (see s 27(1) of the Criminal Appeals Act 2004 (WA) where the test is a reasonable prospect of succeeding, for which see Samuels v Western Australia [2005] WASCA 193), an appeal by the offender against conviction on a question of law alone is an as of right appeal. All other appeals by an offender require leave from the Court of Appeal. In PP’s case, the Supreme Court trial judge had refused to allow PP’s defence of honest claim of right to go to the jury. A defence of honest claim of right is required to satisfy an evidential burden only, which is defined as presenting evidence that suggests a reasonable possibility that a jury could accept the defence. The refusal to allow the defence to go to the jury is prima facie a question of law alone, and therefore an as of right appeal would be available to PP. However, if the refusal was grounded

[page 148] in insufficient evidence, this could be a question of mixed fact and law which would require leave to appeal. Assuming, even if leave is required, leave to appeal would be granted, then the appeal argument would be that the conviction should be set aside either because of a wrong decision on a question of law by the trial judge, or having regard to the evidence, it is unreasonable or cannot be supported. Appeals against sentence by the offender always require leave to appeal, as opposed to the mainly as of right position of the Crown if the Director of Public Prosecutions (or in Queensland the AttorneyGeneral) considers an error of law has been made in the exercise of the sentencing discretion by the trial judge: Criminal Appeal Act 1912 (NSW) ss 5D–5DB Appeal by Crown Against Sentence; Criminal Code 1983 (NT) s 414 Appeal and Reference by Crown Law Officer; Criminal Code (Qld) s 669A Appeal by Attorney-General; Criminal Procedure Act 2009 (Vic) s 287 Right of Appeal — Inadequate Sentence; Criminal Appeals Act 2004 (WA) s 24 Rights of Appeal of Prosecutor. South Australia and Tasmania require the Crown to apply for leave to appeal against sentence: Criminal Law Consolidation Act 1935 (SA) s 352 Right of Appeal in Criminal Cases; Criminal Code 1924 (Tas) s 401 Right of Appeal. Irrespective of the right of appeal of the Crown against sentence, the various Offices of the Director of Public Prosecutions publish guidelines as to Prosecution Policy which are broadly similar. For example, the Director of Public Prosecutions in South Australia has stated in Guideline 4 on Prosecution Appeals that the prosecution’s right to appeal ‘will always be exercised with restraint and only where there is a reasonable prospect of success’ citing in support R v Osenkowski (1982) 30 SASR 212 where King CJ observed that ‘it is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges’. In Bugmy v R (2013) 249 CLR 571 at [51], Gageler J summarised the

requirements for the Director of Public Prosecutions to establish a sentence should be varied by the Court of Criminal Appeal: To enliven the discretion of the Court of Criminal Appeal, under s 5D of the Criminal Appeal Act 1912 (NSW), to vary a sentence and impose such sentence as to it seems proper, the Director of Public Prosecutions must establish that the sentence under appeal either: (1) turned on one or more specific errors of principle or of fact; or (2) in the totality of the circumstances was unreasonable or plainly unjust.

Under the second category, as stated in Bugmy v R (2013) 249 CLR 571 at [52] per Gageler J: To establish that ‘the sentence pronounced was manifestly inadequate’, it was incumbent upon the Director to establish that the sentence was outside the range of available sentences in all the circumstances of the case.

For an appellate court to upset the exercise of a trial judge’s sentencing discretion it is necessary to demonstrate an error in the exercise of that [page 149] discretion. To be characterised as manifestly inadequate the sentence must clearly fall outside the appropriate penalty range for the particular offence. As the High Court held in Everett and Phillips v R (1994) 181 CLR 295, the criterion is ‘where the appeal is brought to establish some matter of principle, which must be understood as encompassing what is necessary to avoid manifest inadequacy or inconsistency in sentencing standards’. Indeed, the matter of principle is also subject to the attitude of the Crown in the sentencing court, as McHugh J noted in Everett and Phillips v R (1994) 181 CLR 295 at 307: Even when it appears that the sentencing judge has erred in a fundamental way that may affect the administration of justice, fairness to the sentenced person requires that the Crown’s concurrence with, or failure to object to, a proposed course of action by the sentencing judge must be weighed in the exercise of the discretion.

Thus, PP may be able to argue that when the trial judge sentenced him to two years’ imprisonment, the Crown had not previously suggested in its submission to the court on the appropriate sentence for PP that the appropriate sentence range was such it would be an error to fix the sentence as low as two years’ imprisonment.

As the seriousness of the offence is a factor in determining whether a sentencing error has occurred, the fact that there was dispute over the value of the stamp collection may be relevant. See House v R (1936) 55 CLR 499 at 504–5 per Dixon, Evatt and McTiernan JJ: But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. 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.

Thus, it can be seen that to make out an appeal against sentence there must have been error in exercising the discretion discussed above and beyond the appellate court being more or less lenient. The appeal must demonstrate the application of a wrong principle, mistake of fact, or failure to account for a material consideration.

(ii) Merits of appeal 6-5 The factual matrix gives limited information on the merits or otherwise of the defence of honest claim of right. It is therefore necessary to argue from first principles, always bearing in mind that an appellant has to: (1) make good a ground of appeal; and (2) overcome the application of the ‘proviso’. For example, the Court of Appeal might accept that: [page 150] (1) the trial judge should have left the defence of honest claim of right with the jury; and (2) that as a result the appellant was denied a chance of an acquittal. If the conviction is quashed, the Court of Appeal then has to decide whether to: (1) order an acquittal; (2) substitute an alternative verdict;

or (3) order a new trial: Supreme Court Act 1933 (ACT) s 37O(1); Criminal Appeal Act 1912 (NSW) ss 6(2), 7 and 8; Criminal Code (NT) s 411(3); Criminal Code (Qld) ss 668E(2), 668F(2) and 669; Criminal Law Consolidation Act 1935 (SA) s 353(2); Criminal Code (Tas) ss 402(3), 403(2) and 404; Criminal Procedure Act 2009 (Vic) s 277; Criminal Appeals Act 2004 (WA) s 30. The appropriate criteria for ordering a new trial were considered in the Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at [5], where the High Court identified two principles: (1) the cogency of the evidence; and (2) whether any circumstances existed that would make it unjust for the defendant to be re-tried. Clearly, if the appeal against conviction succeeds, then it is unnecessary for the Court of Appeal to consider the appeal against sentence. Assuming the appeal against conviction is dismissed, then as regards the strength of the appeal against sentence, the Court of Appeal will consider the original sentence and determine whether there has been an error by the trial judge in exercising the sentencing discretion. Relevant factors in assessing whether an error of principle has been made include: (1) the maximum sentence available, which is normally reserved for the very worst cases; (2) the manner in which the original sentence was calculated; (3) the range of sentences for similar offences; (4) the seriousness of the offence, including mitigating and aggravating circumstances; and (5) the personal circumstances of the offender, such as whether this was a first offence. In PP’s case, you are told the trial judge specifically took into account the value of the stamp collection and the breach of trust between the two keen stamp collectors. Thus, if the Court of Appeal were to be satisfied that there was some substance to PP’s claim that the value of the collection was worth ‘much less’ than $1 million and that there was a possibility that the trial judge had overstated the breach of trust by PP, then the sentence of two years’ imprisonment might well be reduced.

Examiner’s Comments

6-6 In reading any hypothetical legal problem, the key is to focus on the essential pieces of information that determine the issues to be discussed. You are asked to advise on an appeal against both conviction and sentence. For this purpose the key pieces of information are: (1) the refusal by the trial judge to leave the defence (or excuse) of honest claim of right with the jury; and (2) the dispute over the value of the stamp collection. The next step is to relate this information to the appeal. This [page 151] involves identifying whether the appeal is as of right or requires leave, and relating the grounds of the appeal to one of the criteria sufficient for the Court of Appeal to allow the appeal. Given time is of the essence in an exam, always focus on the key issues raised by the factual matrix. Here you are told PP is appealing against conviction and sentence, so it is necessary to deal with both aspects of the appeal. You should cite the relevant sections of the statute in your jurisdiction, as well as the appropriate case authority either from the High Court or the Court of Appeal. There are limited facts, but for the appeal against conviction you are told PP did not dispute he had taken the items but claimed the defence of honest claim of right. This suggests the possibility of an error of law alone or an error of mixed fact and law, which leads into a discussion of the nature of the appeal and whether it is as of right or whether leave to appeal is required from the Court of Appeal. It is essential to link the ground of appeal to one of the criteria for the court to uphold the appeal and not apply the ‘proviso’. You should also deal with the options open to the court if it does decide to uphold the appeal. As to sentence, leave to appeal is required. Here you are only told the trial judge had said that he took into account both the value of the stamp collection and the breach of trust between two keen stamp collectors. PP disputed the value of the collection, and the honest claim of right defence casts doubt on the breach of trust by PP. Each argument, if supported with evidence, might sway the Court of Appeal

to reduce the sentence. With the limited information available, all that is required is to step through the process and outline the relevant factors in assessing whether an error of principle, mistake of fact or failure to account for a material consideration has occurred in exercising the sentencing discretion.

Keep in Mind You should bear in mind: • It is important in legal problem solving to distinguish narrative from key facts that raise legal issues. So while examiners do not waste words, the factual matrix is a vehicle to arrive at the legal issues. Identifying the key facts is vital for legal problem solving. • There is a difference between speculation and ‘flipping’ the facts to demonstrate an understanding of a legal principle. Judges regularly collect cases for the purpose of identifying the relevant legal principle(s) for the case in hand, and then apply the facts of the case. By adjusting or varying the facts to show that had x occurred rather than y, then the case would have fallen within or without the identified legal principle(s), judges distinguish between cases and flesh out the legal principle(s). Students need to follow the same process by identifying the legal principle(s) before addressing the particular facts. Some posited variation in the factual matrix to demonstrate [page 152] an understanding of the legal principle(s) is the hallmark of a good student, while speculation may lead to the student entering irrelevant or marginal territory.

Question 2

Barney Blessed appealed both his conviction in the Supreme Court for inflicting grievous bodily harm and his sentence of three years’ imprisonment imposed by the trial judge. The Court of Appeal gave Barney leave to appeal on both conviction and sentence. Discuss the Court of Appeal’s options in deciding Barney’s appeal. Time allowed: 20 mins

Answer Plan (i)

Options in relation to conviction. • Grounds of appeal. • Court of Appeal’s options. (ii) Options in relation to sentence. • Grounds of appeal.

Answer (i) Options in relation to conviction 6-7 Barney may have appealed on one or several grounds, and the Court of Appeal will consider each ground. The court must decide whether the particular ground of appeal has merit and should be upheld. However, the court has a further task in deciding whether or not to apply the ‘proviso’. Applying the ‘proviso’ means that despite the court upholding the ground of appeal, the conviction stands because no substantial miscarriage of justice occurred: Supreme Court Act 1933 (ACT) s 37O(3); Criminal Appeal Act 1912 (NSW) s 6(1); Criminal Code (NT) s 411(2); Criminal Code (Qld) s 668E(1A); Criminal Law Consolidation Act 1935 (SA) s 353(1); Criminal Code (Tas) s 402(2); Criminal Procedure Act 2009 (Vic) s 276(1); Criminal Appeals Act 2004 (WA) s 30(4). In Weiss v R (2005) 224 CLR 300, the High Court held that in applying the ‘proviso’ the appellate court is required to make its own assessment of the whole of the evidence, to be performed by deciding an appeal on the record of the trial. As to the actual test, the High Court

identified (at [35]) an appellate court’s task as deciding objectively whether a substantial miscarriage of justice has actually occurred, which is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial, and is not an exercise in speculation or prediction: [page 153] The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a ‘substantial miscarriage of justice has actually occurred’.

On the assumption that the Court of Appeal did not apply the ‘proviso’, the court has three options: (1) order an acquittal; (2) substitute an alternative verdict; or (3) order a new trial: Supreme Court Act 1933 (ACT) s 37O(1); Criminal Appeal Act 1912 (NSW) ss 6(2), 7 and 8; Criminal Code (NT) s 411(3); Criminal Code (Qld) ss 668E(2), 668F(2) and 669; Criminal Law Consolidation Act 1935 (SA) s 353(2); Criminal Code (Tas) ss 402(3), 403(2) and 404; Criminal Procedure Act 2009 (Vic) s 277; Criminal Appeals Act 2004 (WA) s 30. Section 277 of the Criminal Procedure Act 2009 (Vic) is an example of the type of legislation that sets out the Court of Appeal’s options in relation to a conviction: (1) If the Court of Appeal allows an appeal under section 274, it must set aside the conviction of the offence (‘offence A’) and must — (a) order a new trial of offence A; or (b) enter a judgment of acquittal of offence A; or (c) if — (i) the appellant could have been found guilty of some other offence (offence B) instead of offence A; and (ii) the court is satisfied that the jury must have been satisfied of facts that prove the appellant was guilty of offence B — enter a judgment of conviction of offence B and impose a sentence for offence B that is no more severe than the sentence that was imposed for offence A; or (d) if the appellant could have been found guilty of some other offence (offence B) instead of offence A and the court is not satisfied as required by paragraph (c)

(ii), order a new trial for offence B.

In relation to option (3), the appropriate criteria for ordering a new trial were considered in the Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at [5], where the High Court identified two principles: (1) the cogency of the evidence; and (2) whether any circumstances existed that would make it unjust for the defendant to be re-tried: The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.

[page 154]

(ii) Options in relation to sentence 6-8 Clearly, if Barney’s conviction has been quashed, then it is unnecessary for the Court of Appeal to consider Barney’s appeal against his sentence. If sentencing is still a live issue, Barney will be appealing on the ground that his sentence is manifestly excessive. As the High Court pointed out in Hili v R (2010) 242 CLR 520 at [59] manifest inadequacy does not admit of lengthy exposition: As was said in Dinsdale v The Queen, ‘[m]anifest inadequacy of sentence, like manifest excess, is a conclusion’. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate ‘is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases’. Rather, as the plurality went on to say in Wong, ‘[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons’. But, by its very nature, that is a conclusion that does not admit of lengthy exposition.

The Court of Appeal, if it is of the opinion that some other sentence

is warranted, has the power to quash the sentence and substitute another sentence. The Court of Appeal will consider the circumstances of Barney’s case and whether the trial judge made any error of principle, in deciding whether to quash Barney’s sentence and substitute a less severe sentence: Supreme Court Act 1933 (ACT) s 37O(7); Criminal Appeal Act 1912 (NSW) s 6(3); Criminal Code (NT) s 411(4); Criminal Code (Qld) s 668E(3); Criminal Law Consolidation Act 1935 (SA) s 353(4); Criminal Code (Tas) s 402(4); Criminal Procedure Act 2009 (Vic) s 281; Criminal Appeals Act 2004 (WA) s 31. Section 6(3) of the Criminal Appeal Act 1912 (NSW) below has been extracted as an example of the type of legislation that sets out the Court of Appeal’s options in relation to a sentence: On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal.

Examiner’s Comments 6-9 This question specifically calls for a discussion of the Court of Appeal’s options in deciding Barney’s appeal in relation to both his conviction and sentence. The jurisdiction is not mentioned, and the answer should be tailored to the relevant legislation on which you will be examined, examples of which are given in the Answer. Also, there is no detail on the grounds of Barney’s appeal. Therefore, the whole focus of the answer is on the court’s options, and they include the application of the ‘proviso’. Examples of the ‘proviso’ legislation are also included in the Answer. [page 155]

Keep in Mind You should avoid the following common errors:

• • •

Failing to answer the question. The question was specific and did not require speculation as to nature of the grounds of appeal. Overlooking the application of the ‘proviso’ as part of the options open to the Court of Appeal. Digressing from the Court of Appeal’s options to discuss options open to other courts in the court hierarchy, or the granting of leave to appeal.

Question 3 Jonah Joyce had lost his appeal against conviction for murder in the Court of Appeal, and sought special leave to appeal to the High Court. Joyce’s appeal was grounded on his conviction being the result of the admission by the trial judge of ‘scenario’ evidence where undercover police officers pose as members of a criminal gang. The ‘target’, here Joyce, is a person who is suspected of committing a serious crime, but which the police are unable prove without further evidence. In exchange for material gain and protection from prosecution which the gang leader can supposedly offer, the ‘target’ must inform the gang leader of anything he or she might have done to attract police attention. In this way, a confession was obtained from Joyce. Joyce’s appeal was based on his confession being wrongly admitted because: (1) his confession was involuntary; or (2) in the alternative, his confession should have been excluded on discretionary grounds. Discuss the criteria against which Joyce’s application for special leave to appeal to the High Court will be assessed, whether Joyce’s grounds for appeal may satisfy those criteria, and the likely outcome of the appeal. Time allowed: 20 mins

Answer Plan (i)

Identification of the criteria used by the High Court to assess special leave applications. (ii) Likely prospects of Joyce being able to satisfy these criteria. (iii) Likely outcome of the appeal.

Answer

6-10 The first part of the question requires the identification of the criteria used by the High Court to assess special leave applications, citing the appropriate sections of the statute and relevant case authority. The criteria are set out in s 35A of the Judiciary Act 1903 (Cth) and are [page 156] difficult to satisfy. These criteria relate to a question of law that is of public importance, or whether the interests of the administration of justice require consideration by the High Court. For a summary of the High Court’s approach to the granting of special leave, see Dawson J in Morris v R (1987) 163 CLR 454 at 475–6: 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. From the beginning the Court has refused to grant special leave to appeal in criminal cases upon questions of fact. See Bataillard v The King (1907) 4 CLR 1282, 1289; Collis v Smith (1909) 9 CLR 490, 495. The most recent example of this approach is to be found in Liberato v The Queen (1985) 159 CLR 507, 509 per Mason ACJ, Wilson and Dawson JJ: ‘It has been repeatedly affirmed by this Court that it is not a court of criminal appeal and that it will not grant special leave to appeal in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice.’

In Liberato v R, a majority of the High Court refused to grant special leave to appeal because no question of law was involved and the High Court was merely being asked to substitute for the view taken by the South Australian Court of Criminal Appeal a different view of the evidence and of the effect of the summing up. Thus, the second part of the question requires an assessment of Joyce’s grounds of appeal to establish whether the appeal addresses the High Court’s function as a court of review and is not based on questions of fact. As to Joyce’s grounds of appeal, you are told Joyce’s appeal was based on his confession being wrongly admitted because: (1) his confession was involuntary; or (2) in the alternative, his confession

should have been excluded on discretionary grounds. These two grounds are clearly not based on questions of fact. It is well established that a confession that is not voluntary is inadmissible: see McDermott v R (1948) 76 CLR 501 at 511–12 per Dixon J. The use of ‘scenario’ evidence was developed in Canada and evidence obtained pursuant to it there has been held admissible by the Supreme Court of Canada: R v Grandinetti [2005] 1 SCR 27. Thus, it is likely that when a new technique to extract confessions is developed overseas and is then imported into Australia, the use of such a technique will be challenged and be resolved by the ultimate court of review in Australia. One question raised by the use of the ‘scenario’ technique is whether the police posing as criminals but claiming to have influence with ‘corrupt’ police to protect the ‘target’ suspect are persons in authority, and therefore whether the state’s coercive power is engaged. The other aspect of the involuntariness ground of appeal is whether there was [page 157] compulsion, and the extent to which the ‘target’ Joyce was free to choose whether he spoke or remained silent about the murder. In Tofilau v R [2007] HCA 39 at [17]–[18] and [22], Gleeson CJ dealt with the issues of voluntariness and coercion: The law treats as voluntary a great deal of conduct about which a person, speaking colloquially, may say that he or she had no choice. Since the original rationale for the principle of exclusion of involuntary statements was concern about the unreliability of statements made under coercion, that will sometimes be a useful guide in making a judgment about what kind of conduct will be taken to render a statement involuntary. It is, however, of no assistance to the appellants in this case, because the deception practised upon them was not such as was likely to elicit a false confession. To the extent that abuse of the state’s coercive authority is another part of the rationale for the exclusionary rule, there are two difficulties for the appellants. The first has already been mentioned in dealing with the definite rule: the appellants thought they were talking to criminals, not police officers. The second is that deception is a very common method of seeking to obtain confessions from people suspected of crime … If the deception practised upon the appellants rendered their statements involuntary, then many other forms of deception to which people suspected of crime are subjected will

have the same consequence. The wills of the appellants were not overborne. Their statements were, in a legal sense, voluntary.

The second ground of appeal contended that Joyce’s confession should have been excluded on discretionary grounds of alleged unfairness and public policy. As Gleeson CJ pointed out in Tofilau v R (at [24]) ‘appellate review of judicial discretion, in accordance with the principles stated in House v The King (1936) 59 CLR 499, is not at large’. In order for an appellate court to interfere with a trial judge’s exercise of discretion, it would be necessary to demonstrate that the trial judge made an error of fact or law, took anything irrelevant into account or failed to take anything relevant into account, or that the result was so unjust as to suggest some error not apparent on the face of the trial judge’s reasoning: see Tofilau v R [2007] HCA 39 at [414] per Callinan, Heydon and Crennan JJ below, following House v R (1936) 59 CLR 499 at 504–5 per Dixon, Evatt and McTiernan JJ: If Kellam J’s decision is to be viewed as discretionary, it cannot be said that he made any error of fact or law, took anything irrelevant into account or failed to take anything relevant into account; nor that the result was so unjust as to suggest some error not apparent on the face of his reasoning. If his discretion is not to be viewed as discretionary, it was correct for the reasons set out above. In either event the Court of Appeal was right not to interfere with it.

Conclusion 6-11 It would be open to conclude that both grounds of appeal may come within the ambit of the criteria set out in s 35A of the Judiciary Act [page 158] 1903 (Cth) in order for Joyce to be granted special leave to appeal to the High Court. The appeal grounds are not based on questions of fact, and the first ground would appear to have particular merit in securing special leave to appeal given the ‘scenario’ technique is a recent ‘importation’ from Canada and has been considered by the Supreme

Court of Canada. However, based on the High Court decision in Tofilau v R [2007] HCA 39, the deception practised on Joyce had not overborne his will so as to render involuntary the admissions made under such deception.

Examiner’s Comments 6-12 The question has two parts which both need to be addressed. First, identification of the criteria used by the High Court to assess special leave applications, by reference to the appropriate sections of the statute and relevant case authority. Second, the likely prospects of Joyce being able to satisfy these criteria, and therefore being allowed to argue his appeal in front of the Full Bench of the High Court. Examiners often base a question around a particular case which will have been covered in the course materials and diligent students will be able to readily identify. The leading High Court authority on the admissibility of ‘scenario’ evidence is Tofilau v R [2007] HCA 39. Knowledge of the case would obviously place a student at a significant advantage in answering this question. However, it is possible to proceed from first principles in considering whether the issues raised by the appeal in the hypothetical factual matrix may satisfy the strict overarching criteria required for the High Court to grant special leave to appeal. As to reasons for dismissing the Joyce’s appeal, based on Tofilau v R [2007] HCA 39, although Joyce’s confession was obtained by deception, Joyce’s will was not overborne, there was no duress or intimidation and the confessions were voluntary. As to Joyce’s argument that the trial judge should have exercised his discretion to exclude his confession for reasons of unreliability, unfairness and public policy, those arguments were dismissed in following House v R (1936) 59 CLR 499 at 504–5 per Dixon, Evatt and McTiernan JJ.

Keep in Mind

You should be aware that: • The question does not require an analysis of the merits of the appeal before the Full Bench of the High Court. • The focus of the question is on whether Joyce’s grounds of appeal are likely to meet the criteria for special leave to appeal being granted by the High Court. • The actual conclusion as to whether Joyce would be successful in securing special leave to appeal is less important than the reasoning and authority that lie behind the conclusion. Legal minds differ, [page 159] as evidenced by appellate courts regularly delivering majority and dissenting judgments. It is the process of reasoning that matters in legal problem solving.

Question 4 Scenario 1 Assume that leave to appeal to the High Court from the Court of Appeal has been refused. In which jurisdiction(s) in Australia is it possible that the Court of Appeal may hear a second or subsequent appeal against conviction and on what basis? Scenario 2 Assume that the defendant in a murder trial has been acquitted by the jury. In which jurisdiction(s) in Australia is it possible that the Court of Appeal may order a retrial for murder and on what basis? Time allowed: 20 mins

Answer Plan (i)

Scenario 1. • Identify the jurisdiction(s) that permit a second or subsequent appeal by a convicted person. • On what basis?

(ii) Scenario 2. • Identify the jurisdiction(s) that permit the Crown to secure a second trial for the same offence. • On what basis?

Answer (i) Scenario 1 6-13 At present, South Australia and Tasmania are the only jurisdictions in Australia that permit a second or subsequent appeal: Criminal Law Consolidation Act 1935 (SA) s 353A; Criminal Code 1924 (Tas) s 402A. The Full Court of Criminal Appeal may hear a second or subsequent appeal against conviction where the court is satisfied there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal. In R v Drummond [2013] SASCFC 135, the applicant sought permission under s 353A(2) of the Criminal Law Consolidation Act 1935 (SA) for a second appeal against conviction on the ground that there existed fresh and compelling evidence that should, in the interests of justice, be considered on appeal pursuant to s 353A(1) of the Criminal Law Consolidation Act 1935 (SA). Stanley J refused permission for a second appeal to the Full Court and held: (1) the onus is on the appellant to [page 160] satisfy the appeal court that the requirements of s 353A(1) have been met; (2) permission to appeal against conviction will be granted if the proposed ground of appeal is reasonably arguable; and (3) it was not reasonably arguable that the evidence was either fresh or compelling. Thus, while the opportunity exists for a second appeal in South Australia, the appellant will face the dual hurdle of meeting the onus of

satisfying s 353A(1) and showing the proposed ground of appeal is reasonably arguable. Similar obstacles confront an appellant under s 402A(5) of the Criminal Code 1924 (Tas). A different form of review of a conviction is judicial review, an example of which is found under Pt 7 of the Crimes (Appeal and Review Act) 2001 (NSW). The purpose of Pt 7 is not to provide another avenue of appeal, but to leave open the door to judicial review where there is a strong case that a miscarriage of justice might have occurred. Essentially, the trigger for a judicial review is the emergence of special facts or circumstances which cast doubt on the original conviction. Another example of the post-appeal process is where a convicted person petitions for clemency: see Crimes (Appeal and Review Act) 2001 (NSW) s 76; Criminal Code (Qld) s 672A; Criminal Law Consolidation Act 1935 (SA) s 369; Criminal Code (Tas) s 419; Criminal Procedure Act 2009 (Vic) s 327; Sentencing Act 1995 (WA) s 140. In Mallard v R (2005) 224 CLR 125, the High Court found that under s 140 of the Sentencing Act 1995 (WA) the correct approach was to consider the ‘whole case’. An example of a pardoning power is found in s 672A of the Criminal Code 1899 (Qld) where, under s 672A(a), the Attorney-General is empowered to refer the petition to the Court of Appeal as if it were an appeal. The effect of a pardon under s 677 is to discharge the convicted person from the consequences of the conviction. Section 672A states: Nothing in sections 668 to 672 shall affect the pardoning power of the Governor on behalf of Her Majesty, but the Crown Law Officer, on the consideration of any petition for the exercise of the pardoning power having reference to the conviction of any person or to any sentence passed on a convicted person, may — (a) (b)

refer the whole case to the Court, and the case shall be heard and determined by the Court as in the case of an appeal by a person convicted; or if the Crown Law Officer desires the assistance of the Court on any point arising in the case with a view to the determination of the petition, refer that point to the Court for its opinion thereon, and the Court shall consider the point so referred and furnish the Crown Law Officer with its opinion thereon accordingly.

For an example of the exercise of the royal prerogative of mercy under s 87E(b) of the Constitution Act 1975 (Vic), see Osland v The Secretary of the Department of Justice [2010) HCA 24. The process

that led to the petition for a pardon was outlined by the High Court in Osland (at [1]–[2]): [page 161] On 2 October 1996, the appellant, Mrs Osland, was convicted in the Supreme Court of Victoria of the murder of her husband. On 12 November 1996, she was sentenced to a term of 14½ years imprisonment with a non-parole period of 9½ years. Applications for leave to appeal against her conviction and sentence were dismissed by the Court of Appeal of the Supreme Court of Victoria on 1 August 1997. An appeal to this Court was dismissed on 10 December 1998. On 5 July 1999, Mrs Osland petitioned the Attorney-General for Victoria seeking a pardon in the exercise of the royal prerogative of mercy. That is a prerogative vested in the Queen and exercisable by the Governor of Victoria, acting on the advice of the Premier. As a matter of practice, the Premier acts on the advice of the Attorney-General.

The Attorney-General appointed a panel of three senior counsel whose joint advice recommended that the petition should be denied. Consequently, the Attorney-General recommended to the Premier that the Governor be advised to deny the petition. The Governor accepted this advice and denied the petition.

(ii) Scenario 2 6-14 There is an exception to the double jeopardy rule which permits the Crown to apply for and secure a retrial of an acquitted person for a serious offence if the Court of Appeal is satisfied that: (1) there is fresh and compelling evidence against the acquitted person; and (2) it is in the interests of justice. All Australian states, but not the Commonwealth or the territories, have introduced similar legislation based on the Council of Australian Governments (COAG) model of reform to the double jeopardy rule: Crimes (Appeal and Review) Act 2001 (NSW) s 100; Criminal Code (Qld) Ch 68; Criminal Law Consolidation Act 1935 (SA) Pt 10; Criminal Code (Tas) Ch XLIV; Criminal Procedure Act 2009 (Vic) ss 53A, 77 and 244 and Ch 7A; Criminal Appeals Act 2004 (WA) Pt 5A. An example of the type of legislation now enacted in all Australian states is s 678B of the Criminal Code (Qld):

(1) The Court may, on the application of the director of public prosecutions, order an acquitted person to be retried for the offence of murder if satisfied that (a) there is fresh and compelling evidence against the acquitted person in relation to the offence; and (b) in all the circumstances it is in the interests of justice for the order to be made.

‘No applications for retrial on the basis of fresh and compelling evidence have been made in Australia’: M McMahon, ‘Retrials of Persons Acquitted of Indictable Offences in England and Australia: Exceptions to the Rule against Double Jeopardy’ (2014) 38 Criminal Law Journal 159 at 182.

Examiner’s Comments 6-15 There are two scenarios to be covered. Scenario 1 deals with a second appeal to the Court of Appeal by a convicted person, while Scenario 2 deals with the Crown securing a second trial for the same offence as an [page 162] exception to the double jeopardy rule. You are asked to identify the relevant jurisdictions for each scenario, and the basis for a party coming within the ambit of the legislation for either a second appeal or a second trial. The key to this question is ‘fresh and compelling evidence’. Such evidence may allow a convicted person a second appeal in South Australia and Tasmania, and force an acquitted person to undergo a retrial in all Australian states. The respective legislation is tightly drawn. A convicted person seeking a second appeal faces the dual hurdle of the onus of satisfying s 353A(1) of the Criminal Law Consolidation Act 1935 (SA) and showing the proposed ground of appeal is reasonably arguable, while the Crown in seeking a retrial must overcome the safeguard of ‘in all the circumstances it is in the interests of justice’.

Similar legislation is to be found in s 402A of the Criminal Code 1924 (Tas).

Keep in Mind You should take care to: • Divide your time according to the marks available. It is common practice in exams to display the number of marks available for each part of a question. Here there were two scenarios to be tackled in 20 minutes. There was no information about marks, but where there is such information you should allocate your time accordingly. Poor time management is a common error which should be avoided. • This question would be difficult to answer without a working knowledge of the legislation. In Scenario 1 there were only two jurisdictions to identify although other jurisdictions post-appeal could be mentioned, while in Scenario 2 there were six jurisdictions. Where possible, provide a case example of the operation of the legislation, such as R v Drummond [2013] SASCFC 135 for s 353A(1) of the Criminal Law Consolidation Act 1935 (SA).

Sentencing questions 6-16 Before tackling the following questions, please check that you are familiar with the following: ✓ ✓

✓ ✓

the basis on which an offender will be sentenced and the prime consideration in securing a successful appeal against sentence; the ranges for particular types of offences and the calculation of sentences when an offender has been convicted on multiple charges; consideration of the offender’s character, age, intellectual capacity and social background in sentencing; and the effect of a guilty plea and the amount of assistance given to

law enforcement authorities. [page 163]

Question 5 Robin Rook broke into series of houses (six in total) on the same night, and stole high value low volume property such as jewellery, laptops, mobile phones, purses and wallets. While removing property from the sixth house, Robin was surprised by the male householder, Jack. A violent struggle ensued which ended when Robin knocked Jack senseless using the jemmy from his burglary tools. While the struggle was taking place, the female householder, Susan, rang the police. As it happened, a police patrol car was close by, and police officers were able to apprehend Robin after he fled the scene. Robin, who was powerfully built, resisted arrest and it required both officers to restrain him, but not before Robin broke the collar bone of one of the police officers with his jemmy. Robin was charged with burglary (five counts), aggravated robbery, and an act intended to do grievous bodily harm or prevent arrest. Robin pleaded guilty to all the charges at the first available opportunity. When Robin came up for sentence, the sentencing judge noted that Robin was 35 years of age, had three prior convictions for burglary and two for assault. For these convictions, the first when he was 17 years of age, Robin had spent a total of 12 years in prison. On what basis will the sentence be calculated? Assume that the sentencing judge took the view that Robin was a violent, serial criminal with no prospects of rehabilitation, and that deterrence and community protection were the primary considerations in sentencing. The sentencing judge, after noting that aggravated robbery carried a maximum sentence of life imprisonment, and describing Robin’s offence of beating Jack senseless and confining him to a wheelchair for the rest of his life as one of the worst type of cases of aggravated robbery, sentenced Robin to 20 years’ imprisonment with eligibility for parole after 17 years’ imprisonment. This sentence was a concurrent sentence taking into consideration the whole ‘transaction’ on the night in question, particularly the further assault on the police officer. Discuss the prospects of an appeal on the basis the sentence was manifestly excessive. Time allowed: 25 mins

Answer Plan (i)

On what basis will the sentence be calculated?

(ii) The prospects of an appeal on the basis the sentence was manifestly excessive. [page 164]

Answer (i) Basis on which sentence calculated 6-17 Determining the appropriate sentence is a subjective balancing act of a number of different purposes served by the imposition of a criminal sentence, such as deterrence and rehabilitation. Among other things, judicial officers are guided by a historical ‘range’ of sentence for a given offence. The starting point is the sentencing principles set out in the relevant statute: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA). Here, Western Australia is used as an example: see s 6 Principles of Sentencing of the Sentencing Act 1995 (WA) below: (1) (2)

(3)

(4)

A sentence imposed on an offender must be commensurate with the seriousness of the offence. The seriousness of an offence must be determined by taking into account — (a) the statutory penalty for the offence; and (b) the circumstances of the commission of the offence, including the vulnerability of any victim of the offence; and (c) any aggravating factors; and (d) any mitigating factors. Subsection (1) does not prevent the reduction of a sentence because of — (a) any mitigating factors; or (b) any rule of law as to the totality of sentences. A court must not impose a sentence of imprisonment on an offender unless it decides that — (a) the seriousness of the offence is such that only imprisonment can be justified; or (b) the protection of the community requires it.

(5) (6)

A court sentencing an offender must take into account any relevant guidelines in a guideline judgment given under section 143 [Guideline judgments by Court of Appeal]. For the purpose of subsection (4), an order under section 58 [Imprisonment until fine is paid] that a person be imprisoned is not a sentence of imprisonment.

There are three offences to which Robin has pleaded guilty: burglary (five counts), aggravated robbery, and an act intended to do grievous bodily harm or prevent arrest. For ease of analysis, the most serious offence, aggravated robbery, which you are told carries a maximum sentence of life imprisonment, will be used to work through the above principles. The two principles cover the seriousness of the offence which is assessed by the penalty, circumstances, and aggravating/mitigating factors. Clearly, aggravated robbery (aggravated because Robin was [page 165] armed with an offensive or dangerous weapon given his burglary tools were adaptable as weapons) is a very serious offence, and the circumstances of the offence include the vulnerability of Jack surprising an armed intruder in his own home and being beaten senseless. Had Jack died it would have been constructive murder. Aggravating factors include the fact that Robin is an habitual criminal who specialises in burglary and has a history of violence. There would not appear to be any mitigating factors. The sentencing judge would have to take into account any guideline judgments. In Miles v R (1997) 17 WAR 518 at 521–2, the Western Australian Court of Criminal Appeal identified a range of six to nine years for a single offence of armed robbery before a discount for a plea of guilty. In New South Wales there is a guideline judgment promulgated for armed robbery (s 97 of the Crimes Act 1900 (NSW) which carries a maximum sentence of 25 years’ imprisonment): R v Henry [1999] NSWCCA 111. In Henry, Spigelman CJ (at [165]) nominated a general range of four to five years for the full term. Aggravating and mitigating factors that would justify a sentence above or below the range were identified (at [170]):

In addition to factors which may arise in any case eg youth, offender’s criminal record, cooperation with authorities, guilty plea in the absence of a strong case, rehabilitation efforts, offence committed whilst on bail etc, a number of circumstances are particular to the offence of armed robbery. These include: (i) Nature of the weapon (ii) Vulnerability of the victim (iii) Position on a scale of impulsiveness/planning (iv) Intensity of threat, or actual use, of force (v) Number of offenders (vi) Amount taken (vii) Effect on victim(s).

Applying these factors to Robin’s case; he is 35, a hardened criminal, pleaded guilty in the face of a very strong prosecution case, is a poor prospect for rehabilitation, planned his burglaries and used intense force on a vulnerable victim now badly affected by the attack. These factors point to a sentence above the range identified in Henry or Miles, without consideration of the other offences. The issue of Robin’s other offences on the night in question raises the totality principle which has two limbs. The first limb is that the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences: Woods v R (1994) 14 WAR 341. The second limb is that the court should not impose a sentence that destroys any reasonable expectation of a useful life after release: Martino v State of Western Australia [2006] WASCA 78 at [16]. Under concurrent sentencing, the position is that the greater the concurrency between the series of offences, the lower the aggregate sentence. Individual sentencing regimes may express a preference which needs to taken into account. For example, the sentencing regimes in both Queensland and Western Australia express a preference for concurrent [page 166] sentencing: Penalties and Sentences Act 1992 (Qld) s 155; Sentencing Act 1995 (WA) s 88. Using the Criminal Code (WA) as the guideline for the maximum terms of imprisonment for the other offences Robin committed, s 405 Burglary specifies a maximum of 18 years’ imprisonment if the place is ordinarily for human habitation, and s 294 Act Intended to Do Grievous Bodily Harm or Prevent Arrest carries a maximum penalty of

20 years’ imprisonment. Robin had committed five burglaries before entering Jack’s home, and then resisted arrest after fleeing inflicting further violence on one of the police officers. If all the sentences had been calculated cumulatively, Robin would probably die in prison. So the key question is whether the concurrent sentence of 20 years’ imprisonment with eligibility for parole after 17 years accords with the totality principle. Another relevant principle here is the proportionality principle. In Veen v R (No 2) (1988) 164 CLR 465 at 472, the High Court confirmed that a sentence should not be increased beyond what is proportionate to the crime in order merely to extend the period of protection of society from the risk of recidivism on the part of the offender. However, note that in some jurisdictions such as Queensland, Veen has been statutorily overruled under s 3(b) of the Penalties and Sentences Act 1992 (Qld) which provides that in appropriate circumstances ‘protection of the Queensland community is a paramount consideration’. In Ibbs v R (1987) 163 CLR 447 at 451–2, the High Court stated that the maximum penalty is reserved for the worst type of case. The High Court added that when an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case. The sentencing judge categorised Robin’s offending for aggravated robbery as one of the worst types of aggravated robbery. Given Robin is presently 35 years old, he will be 52 years old when he becomes eligible for parole. It is an open question whether this is a crushing sentence. Less arguable is that the total effective sentence does not bear a proper relationship to the overall criminality involved in all the offences given their seriousness. However, there would appear to be no discount for Robin’s early guilty plea to all charges, although the Crown case was a very strong one. Robin’s prior offending is the reason for the judge taking the view that there is no prospect of rehabilitation. The two offences of violence lift deterrence and protection of the community to the fore. Using the ranges for armed robbery above, six to nine years for a single offence of

armed robbery before a discount for a guilty plea will be used as the benchmark. Following Ibbs above, if the heinousness of Robin’s conduct warrants classification of the armed robbery charge as the worst type of case, then the question is whether it was within principle to cumulate all the other offences to arrive at the final figure of 20 years with eligibility [page 167] for parole after 17 years’ imprisonment. This question will be examined in the second part.

(ii) Prospects of appeal on basis sentence manifestly excessive 6-18 At the outset it should be recognised that an appeal against sentence is not as of right. There is a difference between a harsh sentence and one that is manifestly excessive. The term ‘manifestly excessive’ is not defined. Each case is decided on its own merits. An appeal is only likely to be successful if the sentence is outside the range for the offence and the offender. To be successful in appealing against a sentence, the ground of appeal must be an error of fact or law. In Roffey v State of Western Australia [2007] WASCA 246 at [23], McLure JA identified the prime consideration in securing a successful appeal against sentence: An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different than the sentencing judge. It can only intervene if the sentencing judge has made an express or implied material error of fact or law.

A material error of fact can be solely sufficient to sustain an appeal or can lead to a material error of law being made based on erroneous facts. But it is not sufficient that an appellate court might have been more or less lenient than the sentencing judge. An error of fact or law has to be shown that would materially affect the final calculation of the sentencing judge. We are told that that the sentencing judge took the view that Robin

was a violent, serial criminal with no prospects of rehabilitation, and that deterrence and community protection were the primary considerations in sentencing. The sentencing judge also described Robin’s offence of beating Jack senseless and confining him to a wheelchair for the rest of his life as one of the worst type of cases of aggravated robbery. The head sentence of 20 years’ imprisonment was a concurrent sentence taking into consideration the whole ‘transaction’ on the night in question, particularly the further assault on the police officer. On its face, is there any indication of an error of principle? Again, it also needs to be stressed that the individual sentencing regime may impact on the factors the sentencing judge was required to take into account such as in Queensland, where Veen has been statutorily overruled under s 3(b) of the Penalties and Sentences Act 1992 (Qld) which provides that in appropriate circumstances ‘protection of the Queensland community is a paramount consideration’. Sentencing hearings normally deal with the history of the offender in some detail, encompass victim impact statements, and include submissions from both the Crown and the defence on the appropriate sentence. Here the factual matrix is a short summary. All that can be identified are possible fruitful lines of development for an appeal. [page 168] For example, can it be objectively supported that the aggravated robbery was of the worst kind, bearing in mind Robin was surprised by Jack and was engaged in a violent struggle when he hit Jack with the jemmy? Again, is the sentence crushing, taking Robin from 35 years of age to 52 years of age before being eligible for parole? The court should not impose a sentence that destroys any reasonable expectation of a useful life after release: Martino v State of Western Australia [2006] WASCA 78 at [16]. Is there really no prospect of rehabilitation? Finally, there would appear to be no account taken of Robin’s early guilty plea. For example, in R v Houghton [2002] QCA 159 at [31], Fryberg J

suggested that ‘[n]ormally the sentence will be reduced by 10 per cent to 30 per cent for such a plea’. Another critical factor will be the manner in which the sentencing judge calculated the concurrent sentence. There were five counts of burglary (maximum sentence of 18 years’ imprisonment for each count) and one count of doing an act intended to do grievous bodily harm or prevent arrest carrying a maximum penalty of 20 years’ imprisonment. These are all serious offences in themselves, and even allowing for the ‘one transaction’ adjustment, lead to a significant concurrent total. It is open to conclude that it will be difficult to show a material error of fact or law that leads the head sentence of 20 years being manifestly excessive. There might be more room to argue that eligibility for parole at 17 years is too severe, given Robin will pass into middle age during his lengthy sentence and may demonstrate to prison authorities that he has become a model prisoner with excellent prospects of rehabilitation.

Examiner’s Comments 6-19 This is a generic answer which needs to be tailored to the individual sentencing regime. Western Australia was used as an example, but as the sentencing legislation in Australia is broadly similar, all that is required to adapt the answer to a particular jurisdiction is to apply the relevant section of the individual legislation as follows: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA). For example, there may be a relevant sentencing guideline or the legislation may statutorily overrule common law authority. Some questions like the one above are quite short, leaving the student to identify the alternatives without engaging in speculation. There are two questions to be answered. The first involves the basis on which the sentence will be calculated. This requires the student to

look at the individual sentencing regime for their jurisdiction to examine any particular requirements that the sentencing judge is required to take into consideration. There are three generic issues in the factual matrix: (1) the [page 169] prompt guilty plea; (2) the series of offences; and (3) Robin’s prior offending. The second question goes to the basis of an appeal, which must be founded on a material error of fact or law. The sentencing judge categorised Robin’s aggravated robbery offence as of the worst kind, which raises the proportionality principle. The first part of the question called for an analysis of the basis on which the sentence will be calculated. The starting point is the sentencing principles set out in the legislation of the particular legislation. It is then necessary to identify the relevant principles based on the factual matrix you have been given. Clearly, the seriousness of the offences and their circumstances are particularly significant here. The fact that Robin has pleaded guilty at the first opportunity should not be overlooked, nor that this is a ‘one transaction’ scenario. Robin’s age and previous criminal record are significant for the issues of rehabilitation and community protection. Remember that in a hypothetical problem while some facts set the scene, the majority provide clues as to the issues that need to be covered. The second part of the question calls for a discussion of the prospects of a successful appeal against sentence based on the sparse summary of the sentencing judge’s reasons. Here the starting point is that there must be a material error of fact or law for an appeal against sentence to be successful. In seeking such a possible error, certain important issues should present themselves such as the sentencing judge’s description of the aggravated robbery as of the worst kind, which in turn flags case law. Other issues include whether the sentence is crushing, any discount for the early guilty plea and the final sentence being a concurrent one.

Keep in Mind You should take care to: • Identify the key issues with which you have to deal that are fairly raised on the facts. A good answer will always cover all the key issues. • There is a fine line between dealing with legitimate alternatives and engaging in speculation. Thus, in reviewing the sentencing judge’s assessment it is quite appropriate on a sparse factual matrix to raise an alternative assessment on, for example, the prospects of rehabilitation or whether Robin’s offending was of the worst kind. The latter would be addressed objectively with suitable cases. • In a real sentencing appeal, the defence will have been poring over the reasons given by the sentencing judge in a judgment of many pages seeking a possible source of error. In a hypothetical it is sufficient to identify the most fruitful lines of development backed by authority or statute. [page 170]

Question 6 Scenario 1 Romano, who was 19 years of age, spoke poor English and suffered from an intellectual disability. Romano was tried before a judge and jury for the crime of raping Simone. The case hinged on the question of consent and whether Romano understood that Simone was not consenting. Romano gave evidence on his own behalf, and expressed his deep remorse that he had misunderstood Simone’s responses as he claimed he never would have continued otherwise. After deliberating for several days, the jury returned a guilty verdict. Romano has no previous convictions, and at the sentencing hearing members of his community spoke of his good character, particularly the manner in which he had supported his mother and younger siblings since their arrival in Australia three years previously. Discuss the issues raised in sentencing Romano. Scenario 2 Albert, who was 28 years of age, lived in a rural Aboriginal community where

the use of alcohol was widespread and domestic violence prevalent. Albert had a long history of criminal offending, commencing when he was a juvenile, particularly for assault. Albert lived with his de facto partner, Martha, with whom he had three children who are all presently under the age of 10 years old. Albert had been convicted of assaulting Martha on two previous occasions, was still on parole for the most recent of those offences and there was a Domestic Violence Order against Albert at the time he killed Martha in a drunken rage in their home in front of their oldest child. The Crown has accepted Albert’s plea of guilty to manslaughter. Discuss the issues raised in sentencing Albert. Scenario 3 Ben, Paul, Ron and Jim are members of a criminal gang who specialise in breaking into residential premises at night. All four members were convicted of burglary two years ago and have just been released on parole. All of the gang, except Jim, are keen to continue their criminal activities. Jim would like to get out of the gang but is scared of what the others might do to him. Astute police, aware that Jim is very much a follower in the gang, interview Jim to warn him of the dangers of continuing to associate with the gang. Jim just listens but takes a card with the policemen’s contact details. Shortly afterwards, the gang plans their next burglary spree. Jim is the getaway driver. During the last of the burglaries, while the others are inside, Jim phones his police contact and tells him where all the loot will be stored. When the others return and drive to the lock-up garage, all four of the members of the gang are arrested by waiting police. Discuss the issues raised in sentencing Jim. Time allowed: 30 mins

[page 171]

Answer Plan (i)

Scenario 1. • Discuss the issues raised in sentencing Romano. (ii) Scenario 2. • Discuss the issues raised in sentencing Albert. (iii) Scenario 3. • Discuss the issues raised in sentencing Jim.

Answer

(i) Scenario 1 6-20 The sentencing issues raised for Romano relate to his youth (19 years old), his otherwise good character and his intellectual disability. Also, given the case turned on the question of consent, Romano’s poor command of English and his intellectual disability will be factors that will weigh on the sentencing judge’s mind given his remorse in the witness box. Rape or sexual intercourse without consent (depending on the jurisdiction) carries a maximum penalty of life imprisonment. The Australian Bureau of Statistics Survey of Prisoners in Australia in 2012 (4517.0) shows that the median average sentence length for sexual assault is seven years or 84 months. The Victorian Sentencing Advisory Council’s study of sentencing trends for rape in Victoria’s higher courts between 2007 and 2012 showed that on average the sentence for rape was between four years and 11 months and five years and six months’ imprisonment. The most common sentence (given in 28 cases) was four years with a non-parole period of two years. These figures have been extracted to give a median range on which to base Romano’s sentence. The relevant sentencing legislation to answer this question is as follows: Crimes Act 1914 (Cth); Crimes (Sentencing) Act 2005 (ACT); Crimes (Sentencing Procedure) Act 1999 (NSW); Sentencing Act 1995 (NT); Penalties and Sentencing Act 1992 (Qld); Criminal Law (Sentencing) Act 1988 (SA); Sentencing Act 1997 (Tas); Sentencing Act 1991 (Vic); Sentencing Act 1995 (WA). New South Wales will be used as an example of applying the relevant legislation for the purpose of answering this question, and s 21A(3)(e), (f), (i) and (j) of the Crimes (Sentencing Procedure) Act 1999 (NSW) sets out the relevant mitigating factors in sentencing for present purposes: (e) the offender does not have any record (or any significant record) of previous convictions, (f) the offender was a person of good character, … (i) the remorse shown by the offender for the offence, … (j) the offender was not fully aware of the consequences of his or her actions because

of the offender’s age or any disability.

[page 172] The first relevant factor is Romano’s age. ‘Youth remains a material consideration; for the rehabilitation of youthful, even violent, offenders, especially those without prior, relevant convictions, also serves to protect the community’: R v Lovell [1999] 2 Qd R 79 at 83 per Byrne J. The emphasis here is on the greater chance of rehabilitation of a youthful offender. The second relevant factor is Romano’s intellectual disability, which is unspecified. In order for intellectual disability to be a material mitigating sentencing factor, there needs to be a nexus or causal link between the disability and the commission of the offence: R v Maddeford (2001) 120 A Crim R 497 at 502: The existence of a mental disorder is always a relevant factor in the sentencing process, but its impact upon that process and the various issues that arise in sentencing will vary considerably according to the circumstances of the individual case. An assessment of the severity of the disorder is required. A sentencing court must determine the impact of the disorder upon both the offender’s thought processes and capacity of the offender to appreciate the gravity and the significance of the criminal conduct.

If there is such a causal link, then this may be taken into account to reduce the weight given to general deterrence. Clearly, if a person suffers from impaired mental functioning, then the moral culpability may be lower: R v Verdins [2007] VSCA 102. The third relevant mitigating factor is Romano’s good character. In Ryan v R (2001) 206 CLR 267 at 275 [25], McHugh J explained how character is taken into account as a mitigating factor: [I]f the offender is of otherwise good character, it is necessary to determine the weight that must be given to that mitigating factor. If an offender is of otherwise good character, then the sentencing judge is bound to take that into account in the sentence that he or she imposes. The weight that must be given to the prisoner’s otherwise good character will vary according to all of the circumstances [original emphasis].

The weight given to good character in turn depends on the nature of the offence committed: R v Smith (1982) 7 A Crim R 437 at 442 (Starke J), comparing armed robbery with falling into temptation

(obtaining a financial advantage by deception). Here, rape is a very serious offence and the weight given to Romano’s previous good character may be slight. Remorse is also a factor under s 23A(3)(i) above, provided it is accompanied by evidence of Romano’s acceptance of responsibility for his actions and him acknowledging the injury he has caused Simone. Thus, Romano has four potential mitigating factors working in his favour provided the evidence is supportive. Hence, working on the most common sentence given in Victoria above of four years with a nonparole period of two years, Romano could reasonably expect a significantly lower sentence, possibly even as low as 18 months suspended after nine months. [page 173]

(ii) Scenario 2 6-21 Albert is in the reverse situation to Romano as the factual matrix points to a list of aggravating factors. Again using the Crimes (Sentencing Procedure) Act 1999 (NSW), the relevant aggravating factors subsections in s 23A(2) are listed below: (b) … (d)

the offence involved the actual or threatened use of violence, the offender has a record of previous convictions (particularly if the offender is being sentenced for a serious personal violence offence and has a record of previous convictions for serious personal violence offences)

… (ea) (eb) (f) (g) … (ib)

the offence was committed in the presence of a child under 18 years of age, the offence was committed in the home of the victim or any other person, the offence involved gratuitous cruelty, the injury, emotional harm, loss or damage caused by the offence was substantial the offence involved a grave risk of death to another person or persons, (j) the offence was committed while the offender was on conditional liberty in relation to an offence or alleged offence.

In addition, s 23A(5AA) deals with a special rule for self-induced intoxication:

In determining the appropriate sentence for an offence, the self-induced intoxication of the offender at the time the offence was committed is not to be taken into account as a mitigating factor.

Thus, on its face, Albert is looking at a sentence above the average range for manslaughter. However, will the fact that Albert lived in a rural Aboriginal community where the use of alcohol was widespread and domestic violence was prevalent constitute a mitigating factor in sentencing? The most recent High Court authority on this point is Munda v Western Australia (2013) 249 CLR 600 at [53] where the High Court confirmed the principle in Neal v R (1982) 149 CLR 305: Mitigating factors must be given appropriate weight, but they must not be allowed ‘to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence’. It would be contrary to the principle stated by Brennan J in Neal to accept that Aboriginal offending is to be viewed systemically as less serious than offending by persons of other ethnicities. To accept that Aboriginal offenders are in general less responsible for their actions than other persons would be to deny Aboriginal people their full measure of human dignity. It would be quite inconsistent with the statement of principle in Neal to act upon a kind of racial stereotyping which diminishes the dignity of individual offenders by consigning them, by reason of their race and place of residence, to a category of persons who are less capable than others of decent behaviour. Further, it would be wrong to accept that a victim of violence by an Aboriginal offender is

[page 174] somehow less in need, or deserving, of such protection and vindication as the criminal law can provide.

In Munda, a case very similar to Albert’s situation, the High Court upheld the Western Australian Court of Appeal’s decision to impose a head sentence of seven years and nine months’ imprisonment. Given the list of the pertinent aggravating factors in s 23A(2) above for Albert and the authority of Munda, there is little reason to suppose that Albert could expect a sentence any lower than seven years and nine months’ imprisonment.

(iii) Scenario 3 6-22 Jim has assisted the police in capturing the gang red-handed with all the stolen property. Again using s 23(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW) is relevant:

A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

Section 23(2) lists a series of matters that the court must consider in determining whether to impose a lesser penalty, which are mainly related to the significance and usefulness of the offender’s assistance to the authorities and whether the offender or the offender’s family will suffer as a result of the assistance given. The operational sentencing implications of assistance to law enforcement authorities and the degree of assistance involved was discussed in TLM v State of Western Australia [2009] WASCA 106. In TLM, reference is made (at [17]) to a number of case authorities which have held that substantial sentence discounts, which may be as high as two-thirds deducted from the head sentence, can be given to offenders who co-operate with law enforcement authorities. The highest discounts are given where valuable assistance is combined with genuine remorse or contrition. However, irrespective of remorse, there is a clear public interest that crime should be detected and successfully prosecuted. Clearly, the assistance given by Jim to the law enforcement authorities was both significant and timely, and there is a definite possibility he may suffer harsher custodial conditions as a result. Thus, on the authority of TLM above, Jim may expect a two-thirds deduction from his head sentence.

Examiner’s Comments 6-23 There are three different sentencing scenarios to cover, with each having a different focus based on the characteristics of the offender. In Scenario 1, the focus is on Romano’s youth, poor English (in the context of the case), intellectual disability, and otherwise good character. [page 175]

In Scenario 2, the focus is on Albert’s Aboriginal social background and his long exposure to alcohol, along with his prior offending against the victim. In Scenario 3, the focus is on Jim’s assistance to law enforcement authorities to secure the capture of the gang. The question for discussion is the extent to which each offender’s individual characteristics impact on the sentencing outcome. Any answer has to be tailored to the relevant jurisdiction. Here, New South Wales legislation was used: Crimes (Sentencing Procedure) Act 1999 (NSW). You should combine the identification of the relevant sections of the legislation needed to answer the particular scenario with case law on point, preferably High Court or Court of Appeal authority. It is also helpful to have a working knowledge of the range of sentences handed down for particular offences in your own jurisdiction, especially if guideline sentences have been sought by the Crown and pronounced by the Court of Appeal. Each character, Romano, Albert and Jim, presented with different aspects of sentencing surrounding them, predominantly dealing with mitigating and aggravating factors. Be sure to stay on point for each scenario, and remember to draw a conclusion.

Keep in Mind You should take care to: • Manage your time carefully. Here you have three scenarios to be answered in 30 minutes. So ensure you allocate only 10 minutes per scenario. • Try not to repeat yourself between scenarios. Under exam time pressure, it is quite legitimate to refer the examiner back to a previous answer where, for example, you may have discussed the implications of aggravating and mitigating factors on the sentencing outcome.

Index References are to paragraphs A Accused fairly, right to be tried …. 5-10 no jury order, application for …. 5-20 represented at trial, statutory right to be …. 5-10 Appeal conviction against …. 6-5 options in relation to …. 6-7 “proviso”, applying the …. 6-7 Court of …. 6-1 fact, material error of …. 6-18 grounds of, availability of murder, conviction for demonstration or parade …. 5-3 length of time before majority verdict may be returned …. 5-6 prosecutor’s closing address …. 5-4 involuntariness ground of …. 6-10 leave, requires …. 6-4

merits of …. 6-5 outcomes, differing defences, owing to inconsistency between …. 2-19 jurisdiction, depending on …. 2-18 post-appeal process …. 6-13 right, as of …. 6-4 rules governing the appeals process …. 6-1 second …. 6-13 special leave to …. 6-10–6-11 sentencing, against …. 6-1–6-2, 6-4, 6-5 Arrest arrested persons, rights of …. 2-11 entering premises to see Private premises force, reasonable …. 1-15 lawfulness of …. 1-15, 1-19 power to see Police unlawful …. 1-3 warrant, with …. 1-3, 1-12 warrantless …. 1-12–1-15 warrantless search to see Search B Bail after conviction before appeal, and …. 3-26 pending appeal …. 3-14 decision …. 3-3–3-4 grounds for refusing …. 3-5 underlying considerations of …. 3-6

forms and conditions of …. 3-7 bail conditions …. 3-10, 3-28 breath-testing …. 3-29 conduct, relating to …. 3-13 financial …. 3-11 more onerous than necessary …. 3-30 violation of …. 3-31 bail undertaking …. 3-8 cash bail …. 3-8 surety …. 3-12 judicial officers, granted by …. 3-3 legislation relating to …. 3-3 murder charge, and …. 3-25 perjury charge, and …. 3-20 refusal of …. 3-20 risk, unacceptable defendant would commit an offence …. 3-24 defendant would fail to appear and surrender into custody …. 321–3-23 C Charge armed robbery …. 5-8 charging decision …. 3-2, 3-16 two-tier test …. 3-2 first tier, sufficient evidence …. 3-17 second tier, public interest …. 3-18 criminal nolle prosequi, definition …. 5-24

grievous bodily harm …. 4-24–4-25 murder advice on bail related to …. 3-25 joining of charges …. 4-15 joining of unrelated charges to …. 4-16 unanimous verdict of a jury …. 5-7 perjury, advice on bail related to see Perjury Confession confessional evidence admissibility of …. 2-4, 2-12 exclusion of …. 2-13, 6-10 involuntary …. 2-4, 6-10 induced …. 2-12–2-13 voluntary …. 2-4 Criminal negligence law of, summing up on …. 5-13 D Defence automatism, sane …. 5-30 insanity, of …. 5-30 late …. 2-16 “Prasad direction”, request …. 5-25, 5-29 pre-trial and at trial defences, inconsistency in …. 2-19–2-20 self-defence, evidential burden of …. 5-21 Detention interviewing and investigative purposes, for …. 1-4 lawfulness of …. 1-19 Domestic violence

government concern to end …. 3-18 police entry and search of premises, and …. 1-8 public concern, and …. 3-18 witnesses and …. 3-17 Double jeopardy see Offence E Entry and search see also Police; Private premises; Search lawful …. 1-7 emergency, requirements in the case of …. 1-8 violence, requirements in the case of …. 1-8 preservation of life or property, for common law principle …. 1-8 Evidence cogency of …. 6-5, 6-7 confessional see Confession evidential burden, definition …. 5-21 self-defence …. 5-21 failure to give, comment on defendant’s …. 2-6 trial judge’s direction to the jury, nature of …. 2-7, 2-9, 2-15 illegally or improperly obtained …. 2-3 inadmissibility of …. 1-3, 1-4 police interrogation, obtained during …. 2-1 judicial discretion to exclude Christie discretion …. 2-1 public policy discretion …. 2-1–2-4 unfairness discretion …. 2-1, 2-4 jurors assessors of …. 5-11 Prasad direction see Jury I

Indictment amendment of …. 4-7 committal hearing after …. 4-2–4-3 without …. 4-9 ex officio …. 5-24 formalities of …. 4-4–4-6 indictable offence …. 4-1–4-2 prosecution of …. 4-3 trial for …. 4-10 pleas …. 4-10 joinder of counts …. 4-8 Indigenous people questioning, statutory provisions for see Police interrogations sentencing of aboriginal offender …. 6-21 Interpreter absence of …. 2-14 right to an see Police interrogations Interrogation see Police interrogations J Judge “beyond reasonable doubt”, definition of …. 5-12 demonstration or parade, order of …. 5-3 self-representation, allowing accused …. 5-10 Jury exhibits, allowing to retire with …. 5-26, 5-29 photographs …. 5-27 recorded interview and transcript …. 5-28

internet searches by jurors …. 5-11 judicial instruction to …. 5-1 juror cause, challenge for …. 5-17 impartiality of …. 5-17 minority, attack on …. 5-18–5-19 misconduct, reporting …. 5-19 peremptory challenge …. 5-17 majority verdict see Verdict return of …. 5-5 no jury order …. 5-20 Prasad direction …. 5-25, 5-29 role of …. 5-1 unanimous verdict see Verdict M Majority verdict see Verdict O Offence charging decision see Charge double jeopardy …. 4-11–4-12, 4-14, 4-22 applicability of rules …. 4-24–4-25 exemptions to rules, statutory …. 4-28, 6-14 violation of the rules …. 4-27 indictable see Indictment person charged with, after …. 3-3 Onus of proof discharging …. 2-5 non-insane automatism, for …. 5-30

onus of disproof …. 5-21 party bearing …. 2-2 prosecution, rests on …. 2-5, 2-7 reversal of …. 5-4 voluntariness, for …. 2-5 P Perjury charge advice on bail related to …. 3-20 conviction of …. 3-17 trial for …. 4-27 Plea guilty …. 4-10, 6-2, 6-17–6-19 acceptance of …. 4-19 when accused has not committed offence …. 4-10, 4-18 withdrawal of …. 4-20–4-21 special …. 4-25 Police arrest, power to …. 1-1 force used, level of …. 1-3 warrant, with and without …. 1-3 enter and search, power to …. 1-1 arrest, prior to …. 1-2 consent of an occupier …. 1-14 warrant, authorised by see Warrant interrogations see Police interrogations investigative powers …. 1-1 lawful exercise of …. 1-5

reasonable belief see Reasonable belief reasonable suspicion see Reasonable suspicion Police interrogations admission or confession, electronic recording of …. 2-3 conduct of …. 2-1 indigenous people Anunga Rules …. 2-1, 2-11 breaches in procedure for questioning …. 2-13 interpreter, right to an …. 2-11 waiver …. 2-11 lawyer, right to communicate with …. 2-11 questioning, provisions for …. 2-1, 2-10–2-11 interpreter, right to an …. 2-1, 2-11 lawyer, right to communicate with …. 2-1, 2-3 procedural breaches …. 2-3, 2-10 silence, right to see Silence support person, right to communicate with …. 2-1, 2-3 suspects, safeguards to protect the rights of …. 2-2 Prasad direction see Jury Private premises enter and search, power to see Police entering premises to arrest a person common law requirement …. 114 exigent circumstances …. 1-14 lawfulness of remaining in …. 1-10 Proceedings commencement of …. 3-1 waiting period before …. 3-3

Proof evidential burden of …. 5-1 legal burden of …. 5-1 onus of see Onus of proof standard of …. 5-1 “beyond reasonable doubt”, definition of …. 5-12 Prosecutor closing address …. 5-4 criminal trial, roles in …. 5-1 duty to act fairly …. 5-4 no jury order, application for …. 5-20 R Reasonable belief circumstances supporting …. 1-9 domestic violence, and …. 1-8 meaning of …. 1-9 requirement …. 1-5 Reasonable suspicion circumstances supporting …. 1-9 domestic violence, and …. 1-8 meaning of …. 1-9 requirement …. 1-5 warrantless arrest, and …. 1-15 S Search enter and power to see Police execution of …. 1-14

warrantless arrest, to …. 1-13 lawfulness of …. 1-12 Self-representation granting of …. 5-10 Sentencing aggravating factors …. 6-21 appeals in relation to …. 6-1 calculation …. 6-5, 6-17–6-19 discounts …. 6-22 excessive, manifestly …. 6-1, 6-8, 6-18 harsh …. 6-18 inadequate, manifestly …. 6-1, 6-4, 6-8 maximum …. 6-2, 6-5, 6-17–6-18, 6-20 mitigating factors assistance to law enforcement authorities …. 6-22 good character …. 6-20 intellectual disability …. 6-20 youth …. 6-20 options in relation to …. 6-2, 6-8 principles …. 6-2 ranges …. 6-2, 6-5 statutes …. 6-2 totality principle …. 6-17 Silence right to …. 2-1, 2-14 inference of guilt at trial, drawing …. 2-1, 2-7, 2-16, 2-18 pre-trial …. 2-1, 2-15–2-17 trial, at …. 2-1, 2-6, 2-9, 2-15

T Trial fair, right of accused to …. 5-1 judge alone, by …. 5-20 jury, by …. 5-1 mode of community standards …. 5-20 new, order …. 6-1, 6-5 participants, key …. 5-1 pre-trial nolle prosequi, application for …. 5-24 procedures …. 5-24, 5-29 publicity …. 5-20 retrial …. 4-28, 5-6 applications for …. 6-14 summing up …. 5-1 criminal negligence, law of …. 5-13 unfair interpreter, absence of …. 2-14 V Verdict alternative, substitution of …. 6-1, 6-5 majority different jurisdictions …. 5-7–5-8 unanimous …. 5-7, 5-18 undisturbed …. 6-1 W

Warrant arrest, and see Arrest entry and search authorised by …. 1-2 lawfulness of execution of …. 1-18 validity of …. 1-17 without, executed …. 1-2 general …. 1-2 conditions, subject to …. 1-2 telephone, via …. 1-20 text message, via …. 1-20 warrantless arrest see Arrest warrantless search see Search