Ross on crime [Seventh edition.] 9780455238838, 0455238839

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Ross on Crime

Thomson Reuters (Professional) Australia Limited 100 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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Ross on Crime

by

MIRKO BAGARIC Original author

DAVID ROSS QC

SEVENTH EDITION

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street Pyrmont NSW First edition .............................................................................. 2002 Second edition ......................................................................... 2004 Third edition ............................................................................. 2007 Fourth edition ........................................................................... 2009 Fifth edition .............................................................................. 2011 Sixth edition ............................................................................. 2013 Seventhth edition ..................................................................... 2016 National Library of Australia Cataloguing-in-Publication entry Ross on Crime / David Ross, Mirko Bagaric. 7th ed. ISBN: 978 0 455 238821 1. Criminal law – Australia – Terminology. 2. Criminal law – Australia – Cases. I. Ross, David. Crime. II. Title. 345.94

© 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, AttorneyGeneral’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Editor: Michelle Smith Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: www.pefc.org

ii

In memory of David John Ross QC 30 June 1943 – 24 December 2009

Table of Contents [References are to paragraph numbers]

A Abandonment ................................................................................................................................ [1.100] Abduction ...................................................................................................................................... [1.300] Aboriginals .................................................................................................................................... [1.500] Abortion ........................................................................................................................................ [1.800] Abuse of process ......................................................................................................................... [1.1000] Accessory .................................................................................................................................... [1.1200] Accident ...................................................................................................................................... [1.1400] Accomplice .................................................................................................................................. [1.1600] Accused ....................................................................................................................................... [1.1800] Acquittal ...................................................................................................................................... [1.2000] Addresses .................................................................................................................................... [1.2200] Adjournment ................................................................................................................................ [1.2400] Admission .................................................................................................................................... [1.2600] Advocacy ..................................................................................................................................... [1.2800] Affray .......................................................................................................................................... [1.3000] Age .............................................................................................................................................. [1.3200] Agent Provocateur ...................................................................................................................... [1.3400] Alibi ............................................................................................................................................. [1.3800] Allocutus ..................................................................................................................................... [1.4000] Alternative ................................................................................................................................... [1.4200] Amendment ................................................................................................................................. [1.4400] Amicus curiae ............................................................................................................................. [1.4600] Amnesty ...................................................................................................................................... [1.4800] Anunga rules ............................................................................................................................... [1.5000] Appeal ......................................................................................................................................... [1.5200] Armed .......................................................................................................................................... [1.5600] Arraignment ................................................................................................................................ [1.5800] Arrest ........................................................................................................................................... [1.6000] Arson ........................................................................................................................................... [1.6200] Assault ......................................................................................................................................... [1.6400] Attempt ........................................................................................................................................ [1.6600] Attorney-General ......................................................................................................................... [1.6800] Audi alteram partem ................................................................................................................... [1.7000] Automatism ................................................................................................................................. [1.7200] Autrefois acquit/convict .............................................................................................................. [1.7400] Averment ..................................................................................................................................... [1.7600] Azzopardi direction ..................................................................................................................... [1.7800]

B Bail ................................................................................................................................................ [2.100] Basha inquiry ................................................................................................................................ [2.400] Battered woman syndrome ........................................................................................................... [2.600] Belief ............................................................................................................................................. [2.800] Bench Book ................................................................................................................................. [2.1000]

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ROSS ON CRIME

Bestiality ...................................................................................................................................... Betterment ................................................................................................................................... Beyond reasonable doubt ............................................................................................................ Bias .............................................................................................................................................. Bigamy ........................................................................................................................................ Birth ............................................................................................................................................. Black Direction ........................................................................................................................... Blackmail and Extortion ............................................................................................................. Blasphemy ................................................................................................................................... Bond ............................................................................................................................................ Breach of the peace .................................................................................................................... Bribery ......................................................................................................................................... Briginshaw v Briginshaw ........................................................................................................... Browne v Dunn ........................................................................................................................... Buggery ....................................................................................................................................... Bunning v Cross ......................................................................................................................... Burglary ....................................................................................................................................... Burns direction ............................................................................................................................ Business records ..........................................................................................................................

[2.1200] [2.1400] [2.1600] [2.1800] [2.2100] [2.2300] [2.2500] [2.2700] [2.2900] [2.3100] [2.3300] [2.3500] [2.3700] [2.3900] [2.4100] [2.4300] [2.4500] [2.4700] [2.4900]

C Cannabis ........................................................................................................................................ [3.100] Case management ......................................................................................................................... [3.300] Case stated .................................................................................................................................... [3.500] Causation ....................................................................................................................................... [3.700] Caution .......................................................................................................................................... [3.900] Certiorari ..................................................................................................................................... [3.1100] Character ..................................................................................................................................... [3.1300] Chart ............................................................................................................................................ [3.1600] Child ............................................................................................................................................ [3.1800] Circumstantial evidence .............................................................................................................. [3.2000] Claim of right .............................................................................................................................. [3.2200] Co-conspirators rule .................................................................................................................... [3.2400] Cognate offence .......................................................................................................................... [3.2600] Coincidence ................................................................................................................................. [3.2800] Committal .................................................................................................................................... [3.3000] Common law ............................................................................................................................... [3.3300] Common purpose ........................................................................................................................ [3.3500] Commonwealth ........................................................................................................................... [3.3700] Compensation .............................................................................................................................. [3.3900] Competence of witness ............................................................................................................... [3.4100] Complaint in sexual cases .......................................................................................................... [3.4300] Complicity ................................................................................................................................... [3.4400] Compounding crime .................................................................................................................... [3.4500] Computers ................................................................................................................................... [3.4700] Concealing birth .......................................................................................................................... [3.4900] Concert ........................................................................................................................................ [3.5100] Confession ................................................................................................................................... [3.5300] Confiscation ................................................................................................................................. [3.5700] Consciousness of guilt ................................................................................................................ [3.5900] Consent ........................................................................................................................................ [3.6100] Consorting ................................................................................................................................... [3.6300] Conspiracy ................................................................................................................................... [3.6500] Constitution ................................................................................................................................. [3.6800] Contempt of court ....................................................................................................................... [3.7000] Conviction ................................................................................................................................... [3.7300] Coroner ........................................................................................................................................ [3.7500] Corporations ................................................................................................................................ [3.7700]

TABLE OF CONTENTS

7

Corroboration .............................................................................................................................. [3.7900] Corruption ................................................................................................................................... [3.8200] Costs ............................................................................................................................................ [3.8400] Counsel ........................................................................................................................................ [3.8600] Counterfeiting .............................................................................................................................. [3.9000] Court ............................................................................................................................................ [3.9200] Credibility .................................................................................................................................... [3.9400] Credit ........................................................................................................................................... [3.9600] Criminal Code ............................................................................................................................. [3.9800] Criminal damage ......................................................................................................................... [3.1000] Criminal defamation ................................................................................................................. [3.10200] Cross-examination ..................................................................................................................... [3.10400] Cross-examination on documents ............................................................................................. [3.10600] Cultivate .................................................................................................................................... [3.10800] Custody ...................................................................................................................................... [3.11000]

D Death ............................................................................................................................................. [4.300] Declaration .................................................................................................................................... [4.500] Defence .......................................................................................................................................... [4.700] Defrauding ..................................................................................................................................... [4.900] Delay ........................................................................................................................................... [4.1100] De minimis non curat lex ........................................................................................................... [4.1300] Demonstration ............................................................................................................................. [4.1500] Demurrer ..................................................................................................................................... [4.1700] Deposition ................................................................................................................................... [4.1900] Dietrich ........................................................................................................................................ [4.2100] Diminished responsibility ........................................................................................................... [4.2300] Director of Public Prosecutions .................................................................................................. [4.2600] Disclosure .................................................................................................................................... [4.2800] Discovery .................................................................................................................................... [4.3000] Discretion .................................................................................................................................... [4.3200] Dishonesty ................................................................................................................................... [4.3400] Disorderly Conduct ..................................................................................................................... [4.3600] Diversion program ...................................................................................................................... [4.3800] DNA ............................................................................................................................................ [4.4000] Dog .............................................................................................................................................. [4.4200] Doli incapax ................................................................................................................................ [4.4400] Double jeopardy .......................................................................................................................... [4.4600] Drive ............................................................................................................................................ [4.4800] Driving causing death or injury ................................................................................................. [4.5000] Drugs ........................................................................................................................................... [4.5300] Duel ............................................................................................................................................. [4.5500] Duplicty ....................................................................................................................................... [4.5700] Duress .......................................................................................................................................... [4.5900] Dying Declaration ....................................................................................................................... [4.6100]

E Edwards Direction ........................................................................................................................ [5.100] Electronic Communication ........................................................................................................... [5.300] Embezzlement ............................................................................................................................... [5.500] Embracery ..................................................................................................................................... [5.700] EMDR ........................................................................................................................................... [5.900] Entrapment .................................................................................................................................. [5.1100] Error ............................................................................................................................................ [5.1300] Escape .......................................................................................................................................... [5.1500] Espionage .................................................................................................................................... [5.1700]

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ROSS ON CRIME

Evidence ...................................................................................................................................... Examination – in – chief ............................................................................................................ Exhibit ......................................................................................................................................... Experiment .................................................................................................................................. Expert evidence ........................................................................................................................... Extradition ...................................................................................................................................

[5.1900] [5.2100] [5.2300] [5.2500] [5.2700] [5.2900]

F False imprisonment ....................................................................................................................... [6.100] Felony-tort rule ............................................................................................................................. [6.300] Female genital mutilation ............................................................................................................. [6.500] Fingerprints ................................................................................................................................... [6.700] Fitness ............................................................................................................................................ [6.900] Fitness to plead ........................................................................................................................... [6.1100] Flight ........................................................................................................................................... [6.1300] Force ............................................................................................................................................ [6.1500] Forgery ........................................................................................................................................ [6.1700] Fortune telling ............................................................................................................................. [6.1900] Fraud ............................................................................................................................................ [6.2100] Fresh evidence ............................................................................................................................ [6.2300] Functus officio ............................................................................................................................. [6.2500]

G General deficiency ........................................................................................................................ [7.100] Going armed .................................................................................................................................. [7.300] Goods in custody .......................................................................................................................... [7.500] Government gazette ...................................................................................................................... [7.700] Graffiti ........................................................................................................................................... [7.900] Grevious bodily harm ................................................................................................................. [7.1100]

H Habeas Corpus .............................................................................................................................. [8.100] Habit .............................................................................................................................................. [8.300] Habitual criminal .......................................................................................................................... [8.500] Handcuffs ...................................................................................................................................... [8.700] Handwriting ................................................................................................................................... [8.900] Harbouring ................................................................................................................................... [8.1100] Hearsay ........................................................................................................................................ [8.1300] Hinder .......................................................................................................................................... [8.1500] HIV .............................................................................................................................................. [8.1700] Hostile witness ............................................................................................................................ [8.1900] Housebreaking ............................................................................................................................. [8.2100] Human rights ............................................................................................................................... [8.2300] Hypnosis ...................................................................................................................................... [8.2500]

I Identification .................................................................................................................................. [9.100] Ignorance ....................................................................................................................................... [9.400] Implement of crime ...................................................................................................................... [9.600] Importation .................................................................................................................................... [9.800] Incest ........................................................................................................................................... [9.1000] Incitement .................................................................................................................................... [9.1200] Indecency .................................................................................................................................... [9.1400] Indemnity .................................................................................................................................... [9.1600]

TABLE OF CONTENTS

Indictment .................................................................................................................................... Infanticide .................................................................................................................................... Informer ....................................................................................................................................... Insanity ........................................................................................................................................ Intent ............................................................................................................................................ Interlocutory appeal .................................................................................................................... International ................................................................................................................................ Interpretation ............................................................................................................................... Interpreter .................................................................................................................................... Intoxication .................................................................................................................................. Issue estoppel ..............................................................................................................................

9

[9.1800] [9.2100] [9.2300] [9.2500] [9.2700] [9.2900] [9.3100] [9.3300] [9.3600] [9.3800] [9.4000]

J Jazz .............................................................................................................................................. [10.100] Joinder ......................................................................................................................................... [10.300] Joint Enterpise ............................................................................................................................. [10.500] Jones v Dunkel ............................................................................................................................ [10.700] Journalist Privilege ...................................................................................................................... [10.800] Judge ............................................................................................................................................ [10.900] Judges’ rules .............................................................................................................................. [10.1300] Judicial notice ........................................................................................................................... [10.1500] Judicial review .......................................................................................................................... [10.1700] Jurisdiction ................................................................................................................................ [10.1900] Jury ............................................................................................................................................ [10.2100] Justice ........................................................................................................................................ [10.2400] Juvenile ...................................................................................................................................... [10.2600]

K Kidnapping .................................................................................................................................. Kilby warning ............................................................................................................................. Klinefelter’s syndrome ................................................................................................................ Knowledge ...................................................................................................................................

[11.100] [11.300] [11.500] [11.700]

L Latent ambiguity ......................................................................................................................... [12.100] Law .............................................................................................................................................. [12.300] Leading question ......................................................................................................................... [12.500] Legal professional privilege ....................................................................................................... [12.700] Liberato direction ........................................................................................................................ [12.900] Liberty ....................................................................................................................................... [12.1100] Lie detector ............................................................................................................................... [12.1300] Lies ............................................................................................................................................ [12.1500] Logic .......................................................................................................................................... [12.1700] Loiter ......................................................................................................................................... [12.1900] Longman warning ..................................................................................................................... [12.2100]

M Mc Kenzie Friend ....................................................................................................................... [13.100] McKinney Direction ................................................................................................................... [13.300] Magistrate .................................................................................................................................... [13.500] Maintenance ................................................................................................................................ [13.700] Malice .......................................................................................................................................... [13.900] Mandamus ................................................................................................................................. [13.1100] Manslaughter ............................................................................................................................. [13.1300]

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ROSS ON CRIME

Man-trap .................................................................................................................................... Marital coercion ........................................................................................................................ Medifraud .................................................................................................................................. Memory ..................................................................................................................................... Mens Rea .................................................................................................................................. Mercy ........................................................................................................................................ Misprison ................................................................................................................................... Mistake ...................................................................................................................................... Money Laundering .................................................................................................................... Morality ..................................................................................................................................... Motive ....................................................................................................................................... Murder ....................................................................................................................................... Murder (Felony) ........................................................................................................................ Murray direction ....................................................................................................................... Mutiny .......................................................................................................................................

[13.1500] [13.1700] [13.1900] [13.2100] [13.2300] [13.2500] [13.2700] [13.2900] [13.3100] [13.3300] [13.3500] [13.3700] [13.3900] [13.4100] [13.4300]

N Names .......................................................................................................................................... [14.100] Natural justice ............................................................................................................................. [14.300] Necessity ..................................................................................................................................... [14.500] Negligence ................................................................................................................................... [14.700] Nemo debet bis vexari ................................................................................................................ [14.900] No case submission ................................................................................................................... [14.1100] Nolle prosequi ........................................................................................................................... [14.1300] No true bill ................................................................................................................................ [14.1500]

O Oath ............................................................................................................................................. [15.100] Obscene ....................................................................................................................................... [15.300] Obstruction .................................................................................................................................. [15.500] Offensive behaviour .................................................................................................................... [15.700] Offensive weapon ........................................................................................................................ [15.900] Onus of proof ............................................................................................................................ [15.1100] Original evidence ...................................................................................................................... [15.1300]

P Papadopoulos direction ............................................................................................................... [16.100] Pardon .......................................................................................................................................... [16.300] Parliament .................................................................................................................................... [16.500] Parole ........................................................................................................................................... [16.700] Particulars .................................................................................................................................... [16.900] Perjury ....................................................................................................................................... [16.1100] Pervert the course of justice ..................................................................................................... [16.1300] Photofit ...................................................................................................................................... [16.1500] Photograph ................................................................................................................................ [16.1700] Piracy ......................................................................................................................................... [16.1900] Plea ............................................................................................................................................ [16.2100] Police ......................................................................................................................................... [16.2300] Pornography (child) .................................................................................................................. [16.2500] Possession .................................................................................................................................. [16.2700] Prasad direction ......................................................................................................................... [16.2900] Precedent ................................................................................................................................... [16.3100] Prejudice .................................................................................................................................... [16.3300] Prerogative writ ......................................................................................................................... [16.3500] Presumptions ............................................................................................................................. [16.3700]

TABLE OF CONTENTS

Pre-trial ...................................................................................................................................... Prima facie case ........................................................................................................................ Prior consistent statement ......................................................................................................... Prior convictions ....................................................................................................................... Prior inconsistent statement ...................................................................................................... Prison ......................................................................................................................................... Privilege .................................................................................................................................... Procendendo .............................................................................................................................. Procedural fairness .................................................................................................................... Procure ...................................................................................................................................... Prohibition ................................................................................................................................. Propensity .................................................................................................................................. Property offences ...................................................................................................................... Prosecution ................................................................................................................................ Prosecutor .................................................................................................................................. Prostitution ................................................................................................................................ Proudman v Dayman ................................................................................................................ Proviso ....................................................................................................................................... Provocation ................................................................................................................................ Public holidays .......................................................................................................................... Public interest immunity ........................................................................................................... Publicity .................................................................................................................................... Public place ...............................................................................................................................

11

[16.3900] [16.4100] [16.4300] [16.4500] [16.4700] [16.4900] [16.5300] [16.5500] [16.5700] [16.5900] [16.6100] [16.6300] [16.6500] [16.6700] [16.6900] [16.7200] [16.7400] [16.7600] [16.7800] [16.8100] [16.8300] [16.8500] [16.8700]

Q Question of law reserved ............................................................................................................ [17.100] Quiddity ....................................................................................................................................... [17.300] Quo warranto .............................................................................................................................. [17.500]

R Rape ............................................................................................................................................. [18.100] Reasonable excuse ...................................................................................................................... [18.400] Reasons ........................................................................................................................................ [18.600] Recalling a witness ..................................................................................................................... [18.800] Recent invention ....................................................................................................................... [18.1000] Recent possession ..................................................................................................................... [18.1200] Recklessness .............................................................................................................................. [18.1400] Record ....................................................................................................................................... [18.1600] Re-enactment ............................................................................................................................. [18.1800] Re-Examination ......................................................................................................................... [18.2000] Relationship ............................................................................................................................... [18.2200] Relevance .................................................................................................................................. [18.2400] Reopening .................................................................................................................................. [18.2600] Rescue ....................................................................................................................................... [18.2800] Res gestae .................................................................................................................................. [18.3000] Res judicata ............................................................................................................................... [18.3200] Retrial ........................................................................................................................................ [18.3400] Riot ............................................................................................................................................ [18.3600] Robbery ..................................................................................................................................... [18.3800] Rout ........................................................................................................................................... [18.4000] Rule of Law .............................................................................................................................. [18.4200] Rules .......................................................................................................................................... [18.4400]

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S Sabotage ...................................................................................................................................... [19.100] Samples and examination ........................................................................................................... [19.300] Scientific instrument ................................................................................................................... [19.500] Search (personal) ........................................................................................................................ [19.700] Search warrant ............................................................................................................................ [19.900] Security ...................................................................................................................................... [19.1100] Self defence ............................................................................................................................... [19.1300] Sentence Indication ................................................................................................................... [19.1600] Sentencing ................................................................................................................................. [19.1800] Separate trials ............................................................................................................................ [19.2400] Separation of Powers doctrine .................................................................................................. [19.2500] Severance .................................................................................................................................. [19.2600] Sexual acts ................................................................................................................................ [19.2800] Sexual offence ........................................................................................................................... [19.3000] Sexual relationship .................................................................................................................... [19.3300] Sham .......................................................................................................................................... [19.3500] Shepherd direction .................................................................................................................... [19.3700] Silence ....................................................................................................................................... [19.3900] Silk ............................................................................................................................................ [19.4200] Similar facts .............................................................................................................................. [19.4400] Slavery and servitude ................................................................................................................ [19.4700] Slip rule ..................................................................................................................................... [19.4900] Social security ........................................................................................................................... [19.5100] Spiking ...................................................................................................................................... [19.5300] Stalking ...................................................................................................................................... [19.5500] Stare decisis .............................................................................................................................. [19.5700] Stay ............................................................................................................................................ [19.5900] Strict liability ............................................................................................................................ [19.6100] Subpoena ................................................................................................................................... [19.6300] Sudden or extraordinary emergency ......................................................................................... [19.6500] Suicide ....................................................................................................................................... [19.6700] Supply ........................................................................................................................................ [19.6900]

T Tape recording ............................................................................................................................ [20.100] Tape recording transcript ............................................................................................................ [20.300] Telephone .................................................................................................................................... [20.500] Tendency ..................................................................................................................................... [20.700] Terrorism ..................................................................................................................................... [20.900] Threat ......................................................................................................................................... [20.1100] Time limit .................................................................................................................................. [20.1300] Torture ....................................................................................................................................... [20.1500] Trafficiking ................................................................................................................................ [20.1700] Transferred Malice .................................................................................................................... [20.1900] Treason ...................................................................................................................................... [20.2100] Trepass ....................................................................................................................................... [20.2300] Trial ........................................................................................................................................... [20.2500] Trivial Offence .......................................................................................................................... [20.2700]

U Uncharged acts ............................................................................................................................ Uniform Evidence Acts .............................................................................................................. Unlawful assembly ...................................................................................................................... Unlawful on premises .................................................................................................................

[21.100] [21.200] [21.300] [21.500]

TABLE OF CONTENTS

13

V Vagus Nerve ................................................................................................................................ [22.100] Venue ........................................................................................................................................... [22.300] Verdict ......................................................................................................................................... [22.500] Vetrovec warning ........................................................................................................................ [22.700] Victim Impact statement ............................................................................................................. [22.900] Video ......................................................................................................................................... [22.1100] Video link .................................................................................................................................. [22.1300] View .......................................................................................................................................... [22.1500] Voir dire .................................................................................................................................... [22.1700]

W Waiver ......................................................................................................................................... [23.100] White collar crime ...................................................................................................................... [23.300] Wilful blindness .......................................................................................................................... [23.500] Witness ........................................................................................................................................ [23.700] Wounding .................................................................................................................................. [23.1000]

X Xenophobia ................................................................................................................................. [24.100]

Y Young person .............................................................................................................................. [25.100]

Z Zoneff direction ........................................................................................................................... [26.100]

Appendices Appendix A – Words and phrases .............................................................................................. Appendix B – Latin .................................................................................................................... Appendix C – Legal Writing ...................................................................................................... Appendix D – Preparation .......................................................................................................... Appendix E – Authorised reports ............................................................................................... Appendix F – Reports and abbreviations .................................................................................. Appendix G – Acronyms and initialisms ...................................................................................

[27.100] [28.100] [29.100] [30.100] [31.100] [32.100] [33.100]

A ABANDONMENT Property which is abandoned cannot be stolen ........................................................................... The nature of the belief ................................................................................................................ Property held not to be abandoned .............................................................................................. Property held to be abandoned ..................................................................................................... Drugs are not abandoned property ............................................................................................... Bona vacantia ................................................................................................................................

[1.100] [1.105] [1.110] [1.115] [1.120] [1.125]

[1.100] Property which is abandoned cannot be stolen In R v White (1912) 7 Cr App R 266 at 268 Alverstone LCJ (CCA) said: If the property had been abandoned, the person charged has a right to have the jury directed that if he took it really believing that it was abandoned, he is not guilty of larceny.

In Minigall v McCammon [1970] SASR 82 at 84 Bray CJ said: [H]e who finds and takes possession of lost goods is not guilty of larceny if at the time of taking he either intends to keep them for the true owner or believes that they have been abandoned or that the owner cannot be found, and it does not matter that he subsequently changes his mind and decides to appropriate them, even after discovering that they have not been abandoned and that the owner can be found: R v Thurborn (1849) 1 Den 387; 169 ER 293; CS Kenny. Outlines of the Criminal Law (19th ed 1966), pp 288-289; WO Russell, Crime (12th ed 1964), pp 1009-1010.

In Eastman v DPP (ACT) (2003) 214 CLR 318; 140 A Crim R 472; 198 ALR 1 at 325, 6, 477, [10] McHugh J said: Larceny by finding depends on whether the “owner” of the property has or has not abandoned possession of it.

[1.105] The nature of the belief In Donoghue v Coombe (1987) 45 SASR 330 at 333 Von Doussa J said: A belief that goods have been abandoned by the owner, and a belief that the owner of goods cannot be found, are beliefs in quite different states of affairs. The two beliefs are frequently grouped together in statements of principle concerning the law of larceny by finding to describe a class of finder who is honest at the time of taking. Frequently the facts of the case render the likelihood of abandonment by the owner so remote that the court, or jury, would not entertain as a reasonable possibility that the accused believed they had been abandoned. R v MacDonald (1983) 8 A Crim R 248 and Feist v Bonython were cases of this kind. The high probability arising from the circumstances surrounding the finding and the taking of the goods is not that the owner has abandoned them but has lost them and will be looking to recover them. In such cases the issue for consideration becomes whether the Crown has disproved as a reasonable possibility that the accused believed at the time of the taking that the owner could not be found. Different considerations apply where the accused asserts a belief that the goods were abandoned. The abandonment of goods will not lightly be inferred. Abandonment occurs where an owner is indifferent to any future asportation of them by others, where the owner leaves them “for anybody to take (them) away”: see Williams v Phillips (1957) 41 Cr App R 5 at 8. It is possible that the circumstances of the finding, and the nature and condition of the goods, is such that a person may

16

ROSS ON CRIME

[1.110]

reasonably believe that they have been abandoned, yet at the same time know, or have the means of ascertaining, the identity of the former owner who has abandoned them.

Other cases R v Small (1987) 86 Cr App R 170 (CA); Keene v Carter (1994) 12 WAR 20 (Ipp J).

[1.110] Property held not to be abandoned This includes: • golf balls on a private golf course: Hibbert v McKiernan [1948] 2 KB 142; 1 All ER 860; (Goddard LJ presiding); • rubbish in dustbins taken by garbage collectors and sold: Williams v Phillips (1957) 41 Cr App R 5 (Goddard LJ presiding); • Pentax camera worth $300 in 1981: R v MacDonald (1983) 8 A Crim R 248 (NSW CCA); • a video in a bag was left in a taxi. The driver mistakenly handed it to a later passenger. On a case stated, the passenger took the items. They were not abandoned: Hayes v Fries (1988) 49 SASR 184; 32 A Crim R 394 (Matheson J). In each of the above cases there was some confessional evidence to negate belief in abandonment.

[1.115] Property held to be abandoned This includes: • a buried corpse: Doodeward v Spence (1908) 9 SR (NSW) 107. However, body specimens held by the Royal College of Surgeons may be the subject of theft: R v Kelly [1998] 2 WLR 384; [1998] 3 All ER 741 (CA). See also R Atherton, “Who owns your body” (2003) 77 ALJ 178-193; ATH Smith, “Stealing the body and its parts” [1976] Crim LR 622.

[1.120] Drugs are not abandoned property Illicit drugs are generally not abandoned property and are capable of being stolen. Opium: R v Waterhouse (1911) 11 SR (NSW) 217 (CCA). Special leave to appeal was refused: Waterhouse v The King (1911) 13 CLR 228. Cannabis: Anic v The Queen (1993) 61 SASR 223; 68 A Crim R 313 (CCA); Vines v The Queen (1993) 11 WAR 517; 70 A Crim R 113 (CCA).

[1.125] Bona vacantia The Latin term bona vacantia is literally vacant goods. They are goods of value whose owner cannot be found. In R v Otto (1996) 90 A Crim R 492 at 506 Pincus J (Qld CA) said:

[1.310]

ABDUCTION

17

If property is in fact shown to be ownerless, in the sense that it is impossible to identify an owner, then it may be that it will vest in the Crown as bona vacantia, a doctrine which does not apply to goods which are lost or purposely abandoned: Halsbury’s Laws of England (4th ed, 1991) Vol 2, par 1811; Halsbury’s Laws of England (4th ed, 1974), Vol 8, par 1503. Some of the texts place other limits an the doctrine that bona vacantia vest in the Crown, but the better view is that “the King is the owner of every thing which has no other owner”: Middleton v Spicer (1783) 1 Bro CC 201; 28 ER 1083); see the discussion in Re Wells [1933] 1 Ch 29 at 43, 43, 44, 49 per Lord Hanworth MR; Lawrence LJ took a similar view.

ABDUCTION The offence .................................................................................................................................... Legislation ..................................................................................................................................... Taking ............................................................................................................................................ Consent .......................................................................................................................................... Failure to return child; no abduction ........................................................................................... Abduction for sexual reasons ....................................................................................................... Indictment ...................................................................................................................................... Attempted abduction ..................................................................................................................... Sentence ........................................................................................................................................

[1.300] [1.305] [1.310] [1.315] [1.320] [1.325] [1.330] [1.335] [1.340]

[1.300] The offence Legislation makes abduction an offence. It is the taking or detaining of a person with the intent of marriage or of having sexual intercourse. There is a separate offence of abducting a child. In R v Pollitt (2007) 97 SASR 332; 171 A Crim R 150 at 352, 169, [107] White J (CCA) referred to Criminal Law Consolidation Act 1935 s 59 and said: It is not necessary to establish that an accused intended that sexual intercourse should occur contemporaneously with the taking away, but the intention to have sexual intercourse at some stage must exist at the time of the taking away.

In Moore v Police (2008) 100 SASR 277; 182 A Crim R 468 (White J) a girl absconded from a care facility and went to the appellant. She had absconded before. The appellant had taken no part in her leaving. Held: no offence.

[1.305] Legislation Qld: Criminal Code s 363A; Tas: Criminal Code ss 186, 189–191; NT: Criminal Code s 202; NSW: Crimes Act 1900 ss 86 and 87; Vic: Crimes Act 1958 ss 55 and 56; SA: Criminal Law Consolidation Act 1935 ss 59 and 80; ACT: Crimes Act 1900 s 37; NZ: Crimes Act 1961 ss 208 and 210; Eng: Sexual Offences Act 1956 s 17; Child Abduction Act 1984; Can: Criminal Code ss 280–283.

[1.310] Taking The taking can be in consequence of some persuasion, inducement or blandishment: R v Henkers (1866) 16 Cox 257; applied R v Mackney (1903) 29 VLR 22 (FC).

18

ROSS ON CRIME

[1.315]

In R v Mejac [1954] Tas SR 26 at 31–32 Crisp J said: Even if it be that the girl had, without any inducement from the prisoner, even unbeknownst to him, formed the inflexible resolve to leave home, and would have done so in any event, nevertheless if being apprised of her purpose, he actively co-operates in its execution, whereby she leaves with him or goes to him pursuant to their mutual arrangement using money or facilities provided by him for the purpose, there would be a taking within the meaning of the Act. The case would in my opinion be a strong one where, although it was the girl’s unaided decision, she lacked both a plan and the means to leave, and the accused in providing them may be said to have created the occasion by making and paying for the necessary travelling arrangements and selecting a date. In such a case it may even be correct to say that the provision of the plan and the means to carry it out could be considered matter of inducement whereby she was persuaded to leave when she did in preference to any other time. The accused is not in my view of the law entitled to take advantage of the girl’s folly or her distress; if not having induced or assisted her to leave he passively receives and harbours her, certainly he commits no offence. Similarly if he merely meets her and goes with her, but if so far from it being a question of any necessary persuasion or inducement on his part he should, yielding to her the forwardness and earnest request, so combine with her so that the leaving may be said to take place pursuant to a joint plan, then he would be guilty of having taken her away.

Followed: Stanton v The Queen [1981] WAR 185; (1981) 3 A Crim R 294 (CCA).

[1.315] Consent The consent of the subject of the abduction is no defence: Stanton v The Queen [1981] WAR 185; (1981) 3 A Crim R 294 (CCA). In R v A [2000] 2 All ER 177; [2000] 1 Cr App R 418 at 182, 424 (CA) it was held that the “act or acts of the appellant must be an effective cause of the child accompanying him”. The reason for this is that a child is not capable of consent by dint of youth. However, belief in the consent of a parent or guardian is a defence (R v Lane [1961] NZLR 989 (CA)) although such defence may not apply in Victoria (R v Kennedy [1981] VR 585; (1980) 3 Crim R 40 (CCA)).

[1.320] Failure to return child; no abduction In R v Tauiliili [1997] 1 NZLR 525 (CA) the accused was convicted. The child was properly taken pursuant to access orders but in breach of those orders, not returned. (Mistreatment was given as the reason for non-return). Appeal allowed. The taking of the child was lawful, and failure to return was not abduction.

[1.325] Abduction for sexual reasons It is an offence to abduct a person for sexual reasons: R v Manwaring [1983] 2 NSWLR 82; (1983) 12 A Crim R 253 (CCA). An attempt to abduct for that purpose is also an offence: R v Pollitt (2007) 97 SASR 332; 171 A Crim R 150 (CCA).

[1.330] Indictment A count alleging a taking and obtaining is duplicitous: R v Manwaring [1983] 2 NSWLR 82; (1983) 12 A Crim R 253 (CCA).

[1.335] Attempted abduction R v Pollitt (2007) 97 SASR 332; 171 A Crim R 150 (CCA).

[1.505]

ABORIGINALS

19

[1.340] Sentence R v A [2000] 2 All ER 177; [2000] 1 Cr App R 418 (CA); R v Waghorn (1985) 16 A Crim R 423 (FCA); R v Hussey (1980) 23 SASR 178 (CCA). See also R v Storey (1978) 140 CLR 364; 22 ALR 47 N Klein, “Extraterritorial abduction: an Australian approach” (1996) 18 Adel LR 103-112.

ABORIGINALS Source of the word Aboriginal ..................................................................................................... Meaning of Aboriginal person ...................................................................................................... Legislation ..................................................................................................................................... Social and economic problems are a cause of crime .................................................................. Aboriginals are subject to the law ............................................................................................... Aboriginal witnesses ..................................................................................................................... Unfamiliarity with legal concepts ................................................................................................ Objections to autopsy ................................................................................................................... Right to fish and hunt ................................................................................................................... Aboriginal trackers ........................................................................................................................ Provocation .................................................................................................................................... Taking traditional punishment into account on sentence ............................................................ Bail for traditional punishment .................................................................................................... Evidence of likelihood of traditional punishment ....................................................................... Duress based on fear of punishment ............................................................................................ Name of deceased ......................................................................................................................... Effect of banishment ..................................................................................................................... Transcultural problems ................................................................................................................. Kriol .............................................................................................................................................. Confession: speech patterns .......................................................................................................... Sentencing ..................................................................................................................................... Aboriginals and substance abuse .................................................................................................. Break enter and steal .................................................................................................................... Domestic violence ......................................................................................................................... Aboriginal children ....................................................................................................................... Community wishes ........................................................................................................................ Crime of violence ......................................................................................................................... Rape ............................................................................................................................................... Sexual offences generally ............................................................................................................. Bestiality ........................................................................................................................................ Drug supply ................................................................................................................................... Articles .......................................................................................................................................... Other references ............................................................................................................................

[1.500] [1.505] [1.510] [1.515] [1.520] [1.525] [1.530] [1.535] [1.540] [1.545] [1.550] [1.555] [1.560] [1.565] [1.570] [1.575] [1.580] [1.585] [1.590] [1.595] [1.600] [1.605] [1.610] [1.615] [1.625] [1.630] [1.635] [1.640] [1.645] [1.650] [1.655] [1.660] [1.665]

[1.500] Source of the word Aboriginal The word “Aboriginal” is derived from the Latin phrase ab origine: from the beginning. The word indigenous also is from the Latin; indigena means native.

[1.505] Meaning of Aboriginal person In Commonwealth v Tasmania (1983) 158 CLR 1; 57 ALJR 450; 46 ALR 625 at 274, 817; Deane J said: By “Australian Aboriginal” I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognized by the Aboriginal community as an Aboriginal.

20

ROSS ON CRIME

[1.510]

In R v Minor (1992) 2 NTLR 183; 79 NTR 1; 105 FLR 180; 59 A Crim R 227 at 185, 3; 182, 229 (CCA) Asche CJ said: [A]s with many other groups in the Australian community, there are, amongst Aboriginals, sophisticated and unsophisticated members, there are some who follow certain customs and some who do not. The tendency to make sweeping statements encompassing the behaviour of all Aboriginal citizens is unreal, patronising and insulting to these citizens. The court is not helped by this sort of approach. But it can be assisted by positive evidence that a particular group of Aboriginals follow particular customs in particular circumstances.

[1.510] Legislation Tas: Aboriginal Lands Act 1995 s 3A(1). NSW: Aboriginal Land Rights Act 1983 s 4(1). Each provides: (1) An Aboriginal person is a person who satisfies all of the following requirements: (a) Aboriginal ancestry; (b) self-identification as an Aboriginal person; (c) communal recognition by members of the Aboriginal community.

Vic: Charter of Human Rights and Responsibilities Act 2006 s 3 provides: “Aboriginal” means a person belonging to the indigenous peoples of Australia, including the indigenous inhabitants of the Torres Strait Islands, and any descendants of those peoples.

ACT: Aboriginal and Torres Strait Islander Elected Body Act 2008 Dictionary says: Aboriginal person or Torres Strait Islander means a person who – (a) is a descendant of an Aboriginal person or Torres Strait Islander; and (b) identifies as an Aboriginal person or Torres Strait Islander; and (c) is accepted as an Aboriginal person or Torres Strait islander by an Aboriginal or Torres Strait Islander community.

[1.515] Social and economic problems are a cause of crime In Clinch v The Queen (1994) 72 A Crim R 301 at 309 (WA CCA) Malcolm CJ said: [F]ailure to address the social and economic problems of our Aboriginal communities by culturally sensitive programmes aimed at developing self-reliance and self-esteem on the part of such communities so as to remove the causes of violence and crime, will continue to produce bitter, angry and alienated individuals who pose a serious threat to the safety, lives and property of others ... There is a compelling need to reduce the potential for crime by investment in appropriate social and economic programmes.

The rate of Aboriginal imprisonment in Australia is the highest in the community. Aboriginal incarceration is 12 times higher than the rest of the community (see, ABS, 4512.0 - Corrective Services, Australia, March Quarter 2015: http://www.abs.gov.au/ ausstats/[email protected]/mf/4512.0). The Royal Commission into Aboriginal Deaths in Custody report in 1991 made 339 recommendations, including recommendation 92 which provides that in respect of Indigenous offenders, a sentence of imprisonment should be a sentence of last resort. On its face, this does not seem to have occurred. Since the recommendation was made, the rate of Indigenous over-representation in prisons has nearly doubled.

[1.520] Aboriginals are subject to the law In Coe v Commonwealth (1979) 53 ALJR 403; 24 ALR 118 Gibbs J (with whom Aickin J agreed) said (at 408;119): “The Aboriginal people are subject to the laws of the Commonwealth and of the States or Territories in which they respectively reside.”

[1.535]

ABORIGINALS

21

In Walker v NSW (1994) 182 CLR 45; 76 A Crim R 173; 126 ALR 321 at 49–50, 323–324, 175–176 Mason J ruled: It is a basic principle that all people should stand equal before the law. A construction which results in different criminal sanctions applying to different persons for the same conduct offends that basic principle. The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters. The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated … Even if it be assumed that the customary criminal law of Aboriginal people survived British settlement, it was extinguished by the passage of criminal statutes of general application. In Mabo [No 2], the court held that there was no inconsistency between native title being held by people of Aboriginal descent and the underlying radical title being vested in the Crown. There is no analogy with the criminal law. English criminal law did not, and Australian criminal law does not, accommodate an alternative body of law operating alongside it. There is nothing in Mabo [No 2] to provide any support at all for the proposition that criminal laws of general application do not apply to Aboriginal people.

[1.525] Aboriginal witnesses Aboriginal witnesses are often unfamiliar with the style of giving evidence alone. English may not be their first or even second language. For these reasons Mildren J argues that a judge keep a tight rein on cross-examination and perhaps forbid leading questions: “Redressing the imbalance against Aboriginals in the criminal justice system” (1997) 21 Crim LJ 7-22. A suburban Aboriginal witness whose first language is English should be treated like any other witness: Stack v Western Australia (2004) 29 WAR 526; 151 A Crim R 112 (CCA).

[1.530] Unfamiliarity with legal concepts An inability to understand legal concepts is not a reason not to be tried: Ngatayi v The Queen (1980) 147 CLR 1; 30 ALR 27.

[1.535] Objections to autopsy According to many Aboriginal laws and customs it is improper to interfere with the body of a deceased person. Relatives object to an autopsy. For that reason some courts have forbidden an autopsy on an Aboriginal deceased: Green v Johnstone [1995] 2 VR 176 (Beach J); Re Unchango; Ex parte Unchango (1997) 95 A Crim R 65 (WA, Walsh J). In Wuridjal v NT Coroner (2001) 11 NTLR 202; 165 FLR 317 (Riley J) there was a real question of whether the deceased Aboriginal girl had met death by her own hand or by the hand of another. Riley J ordered that the autopsy be carried out. But in Re Death of MRG; Ex parte Curtin (1997) 94 A Crim R 88 (WA) Owen J dismissed the objection to autopsy because the Aboriginal mother did not have standing and because the application was made out of time. See also the provisions of the various Coroners Acts. See also Coroner at [3.7500].

22

ROSS ON CRIME

[1.540]

[1.540] Right to fish and hunt In Yanner v Eaton (1999) 201 CLR 351; 107 A Crim R 551; 166 ALR 258 the High Court held that the common law of Australia recognised Aboriginal rights and interests in hunting and fishing. The Queensland Fauna Conservation Act 1974 did not extinguish those rights and interests.

Hunt and keep Section 54 of the Fauna Conservation Act 1974 (Qld) (the Act) provided, so far as relevant, as follows: 54 Offences. (1) (a) A person shall not take, or keep or attempt to take or keep fauna of any kind unless he is the holder of a licence, permit, certificate or other authority granted or issued under this Act. (b) … (2) A person who commits an offence against this section is liable to a penalty of $2000, and in addition to a penalty of twice the royalty payable on each fauna in respect of which the offence is committed.

Plain turkeys (Australian bustards) were fauna protected under the Act. In Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85; 75 ALR 173 the appellant, in accordance with Aboriginal law and tradition and without authority under the Act, killed a plain turkey for food and took a live chick as a pet for his son. The appellant did not know that his actions were prohibited by the Act and acted honestly and without intention to defraud. He was charged with an offence under s 54(1)(a) of the Act and convicted by a magistrate who fined him $100 and imposed other penalties (a royalty of $260 – which was twice the prescribed amount) and costs amounting to $559.50, a total of $919.50. The magistrate and, on appeal, the Full Court of the Supreme Court referred to s 22 of the Criminal Code (Qld) which provided that: Ignorance of the law does not afford an excuse for an act or omission which would otherwise constitute an offence, unless knowledge of the law by the offender is expressly declared to be an element of the offence. But a person is not criminally responsible, as for an offence relating to property, for an act done or omitted to be done by him with respect to any property in the exercise of an honest claim of right and without intention to defraud.

It was held, allowing the appeal per Brennan, Toohey and Gaudron JJ (contra Deane and Dawson JJ) that the appellant had an “honest claim of right” within the meaning of s 22 of the Code for keeping the birds.

Fishing In Mason v Tritton (1994) 34 NSWLR 572 at 584 (CA) Kirby P said: If the exacting nature of the evidential burden established by Mabo (1992) 175 CLR 1; 107 ALR 1 were not immediately apparent to potential claimants before, this case will serve to make clear the point. In order to establish a successful common law claim for native title of the kind asserted here, within the rules established by Mabo (1992) 175 CLR 1; 107 ALR 1, the evidence must be sufficient to demonstrate: (1) that traditional laws and customs extending the “right to fish” were exercised by an Aboriginal community immediately before the Crown claimed sovereignty over the territory…;

[1.555]

ABORIGINALS

23

(2) that the appellant is an indigenous person and is a biological descendant of that original Aboriginal community; (3) that the appellant and the intermediate descendants had, subject to the general propositions outlined above, continued, uninterrupted to observe the relevant traditional laws and customs; and that the appellant’s activity or conduct in fishing for (the fish in question) was an exercise of those traditional laws and customs.

This judgment was followed in Sutton v Derschaw (1995) 82 A Crim R 318 (WA). Heenan J found in that case that the respondent Aboriginal men of Port Hedland had failed to discharge the evidential burden. The dismissal of the charges by the magistrate was set aside. Yet in Stevenson v Yasso [2006] 2 Qd R 150; (2006) 163 A Crim R 1 (CA) Aboriginal people were held not guilty of possession of commercial fishing equipment without authority because it accorded with their tradition. See also Dillon v Davies (1998) 145 FLR 111; 156 ALR 142; 101 A Crim R 533 (Tas). Underwood J upheld convictions for taking abalone because the custom, if any, was too general.

[1.545] Aboriginal trackers In R v Harris (1997) 7 NTLR 1; 94 A Crim R 454 at 4, 457 Bailey J ruled: … judicial notice may be taken of the widely recognised abilities of Aboriginal trackers. In particular it is well known and widely accepted that trackers have rendered very substantial assistance to the authorities and others in locating missing persons by following footprints and other indications of a person’s movements in natural environments.

[1.550] Provocation Courts interpret the words “an ordinary person” in provocation legislation as an ordinary Aboriginal person, when such a person is entitled to raise this defence. See also Provocation at [16.7800].

[1.555] Taking traditional punishment into account on sentence The leading case is R v Minor (1992) 79 NTR 1; 105 FLR 180; 59 A Crim R 227 (CCA). The accused pleaded guilty to two counts of manslaughter. The sentencing judge had taken into account the promise of traditional punishment on release. The prosecution appealed. Mildren J said (at 11–12; 191; 238): The reason why payback punishment, either past or prospective, is a relevant sentencing consideration is because considerations of fairness and justice require a sentencing court to have regard to “all material facts, including those facts which exist only by reason of the offender’s membership of an ethnic or other group. So much is essential to the even administration of criminal justice” (per Brennan J in Neal v The Queen (1982) 149 CLR 305 at 326; 42 ALR 609 at 626; 7 A Crim R 129 at 145).

Other cases Jadurin v The Queen (1982) 44 ALR 424; 7 A Crim R 182 at 429, 187 (FCA); R v Poulson (2001) 122 A Crim R 388 (NT, Thomas J).

24

ROSS ON CRIME

[1.560]

[1.560] Bail for traditional punishment Where traditional punishment occurs, it usually follows a resolution of the differences between the victim’s family and the accused’s family. The punishment is ritually administered by agreement between the families and the accused: R v Jungarai (1981) 9 NTR 30 (Forster CJ); R v Poulson (2001) 122 A Crim R 388 (NT, Thomas J). Forster CJ granted bail to a man accused of murder to resolve family differences and to undergo punishment: R v Jungarai (1981) 9 NTR 30. Other cases R v Barnes (1997) 96 A Crim R 593 (NT, Bailey J); Re Anthony (2004) 179 FLR 354; 142 A Crim R 440 (NT, Martin CJ).

[1.565] Evidence of likelihood of traditional punishment In R v Wilson (1995) 81 A Crim R 270 at 275 (NT) Kearney J said: Mr Ross called three witnesses, who unusually but I think sensibly in the circumstances of a sentencing hearing, gave their evidence together, with the Crown’s consent. When it comes to considering traditional matters of Aboriginal law and custom it’s preferable indeed that the evidence come from a representative group, rather than from a single person. Here there were only three people, who were each sworn but gave their evidence together, through a particularly highly skilled Pitjantjatjara interpreter, Mr Edwards. Mr Edwards lived in the Ernabella area for about 27 years between 1952 and I980. He appeared to be on [sic] the view that these three people were people of some standing in the Imanpa community. So indeed did Constable Powell and I treat these three people as people who could speak with some authority on the matters about which they were speaking.

[1.570] Duress based on fear of punishment In R v Warren (1996) 88 A Crim R 78 (SA CCA) the Aboriginal accused had been convicted of causing grievous bodily harm with intent. One defence was duress. The Aboriginal victim was said to have been a trespasser, and to have acted inappropriately during ceremonies. If he were not punished, the accused themselves would have been for their offence of omission. The Court of Criminal Appeal held that the defence existed. However, as the trial judge (sitting alone) had rejected that the offence was the result of duress, it was held that the appeal should be dismissed.

[1.575] Name of deceased It is offensive to speak the name of a dead Aboriginal person in court proceedings: R v B (1992) 2 NTLR 98; 87 NTR 1; 111 FLR 463 (Mildren J).

[1.580] Effect of banishment An indecent assault of a young Aboriginal girl resulted in banishment by the community. There was an appeal from the magistrate who failed to take banishment into account. O’Leary J said in Atkinson v Walkley (1984) 27 NTR 34 at 37: I think it is clear on the authorities that, in fixing penalty, a court should take into account the fact that the offender, by his actions, has brought on himself the anger of members of his community and that, as a result, he has received, or is likely to receive, punishment of some kind or other at their hands: see Mamarika v R (1982) 42 ALR 94; Jadurin v R (1982) 44 ALR 424. That, of course, as was pointed out in those cases is not to be seen as necessarily giving any sanction to the punishment or retribution imposed.

[1.590]

ABORIGINALS

25

[1.585] Transcultural problems Stolen generation In R v Fuller-Cust (2002) 6 VR 496 (CA) Eames JA analysed Aboriginality and sentencing (at 520–523 [78] – [90]) and sentencing a victim of the stolen generation (at 523–524 [91] – [92]).

Generally Where no relevant law or custom is involved a court may still take into account the background and history of the accused, the extent of adoption of white ways or manners, the degree to which Aboriginal inheritance predominated and any problems of a transcultural nature that he may have experienced: R v Herbert (1983) 23 NTR 22 (O’Leary J).

[1.590] Kriol Kriol is the name given to the language which is an advanced mixture of an Aboriginal language and English. Kriol has the following features: • A distinct orthography; • Pronunciation of English words altered by the Aboriginal language influence; • Grammar with a strong component of the Aboriginal language. It would be a mistake to think of Kriol as a kind of pidgin. For those who are conversant only with English, an interpreter will usually be necessary. Kriol is spoken across the top end of Australia from western Queensland to the Kimberley in Western Australia. Some communities speak only Kriol and English. More traditional communities demand linguistic skills of their members: at least one Aboriginal language, Kriol and English as a last language. For such folk a rudimentary command of English is a linguistic feat. See also WG McGregor, Handbook of Kimberley Languages (Dept of Linguistics, ANU 1988). S Romaine, Pidgin and Creole Languages (Longman, London 1988). Jared Diamond, The Rise and Fall of the Third Chimpanzee (Radius 1991, Random House 1992, London) Chapter 8 “Bridges to Human Language”. Oxford Companion to the English Language (OUP, Oxford, 1992) pp 565-566 “Kriol”. Example of written Kriol is the Mission Statement issued by NT Office of the Director of Public Prosecutions: Wed bla DPPmob DPP-mob bin pudimdan dijlat wed la dijan peipa dumaji olabat wandi dalim eberibodi bla no, hau detmob wandi duwin det wek bla olabat brabli raitwei. Det web bla olabat, jei gada album ya bla dijkain trabul: maiti ib pilijimen im rekin samwan bin meigim brabli nogudwan trabul, laiga ib jei merdrem o kilimbat yu; ib jei stilimbat o demijim enijing blanganta yu. Maiti det pilijimen rekin det ting im lilbit nogudwan, wal olabat pilijimenmob teigim la kot. O maiti det pilijimen rekin det trabul im rili rongwei, wal det DPP-mob gada teigim la kot det nogudwan sambodi.

26

ROSS ON CRIME

[1.595]

Det DPP-mob olabat teigim yu pleis la kot, seimwei laig det Liguleid teigim pleis la det sabodi weya olabat rekin imin duwin rongwan ting. Det DPP-mob gan weistimbat taim en mani en olabat gan libim dijan hiya rul bla olabat wek: • Ola weka onli gada woriyabat faindimbat raitwan wed bla wot bin hepin – nomo laigim yu o heitim yu o yu femli o enibodi. Jei gan toktok la enibodi bla yu bijnij, onli la jeya weka wen jei albumbat yu. • Det DPP-mob wandim stap guwan binji seimwei la yu en la det sambodi weya olabat rekin imin duwim det nogudwan ting. Jei wandi album yu gidim det samwan hu bin duwim det samting rong en faindat la kot raitwei bla banijim bla wot imin du. • Olabat DPP-mob wandi meigim bla yu en en det sambodi en ola widnijmob go la kot gudwei, nomo hambag en nomo bla meigim yu fil sheim. DPP-mob duwim kijkain wek bla album eberibodi la Northern Territory jidan seifwan en gudbinjigeja. DPP-mob bin pudim dan dislat wed la dijan peipa dumaji olabat wandim dalim eberibodi bla no, hau detmob wandi duwim det wek bla olabat brabli raitwei.

[1.595] Confession: speech patterns Speech patterns and the ability to make the confession alleged is evidence that is generally not admissible: Stuart v The Queen (1959) 101 CLR 1. R v Condren (1987) 28 A Crim R 261 at 267–268 (Qld CCA). R v Aubrey (1995) 79 A Crim R 100 at 108–109 (Qld CA).

[1.600] Sentencing Legislation Some legislation allows a sentencer to take community and customary laws into account: NT: Sentencing Act s 104A; SA: Criminal Law (Sentencing) Act 1988 s 9C; Vic: Magistrates’ Court Act 1989 ss 4D–4G; County Court Act 1958 ss 4C–4G.

Generally In R v Clarke (2004) 89 SASR 13 (CCA) the court said in a joint judgment (at 18–19 [22]): It is clear that an Aboriginal offender cannot expect special treatment just because he or she is Aboriginal: Wanganeen v Smith (1977) 73 LSJS 139; R v Fernando (1992) 76 A Crim R 58; R v Smith (2003) 86 SASR 132. However, as those cases acknowledge, aboriginality may be relevant to the sentencing process in a particular case. It is to be expected that in many cases the aboriginality of an offender will be a relevant and important factor in the sentencing process. Many Aboriginal people are marginalised by society and lack opportunities that are more available to others. For many, realisation of legitimate expectations is unlikely. In many cases, there is an inability to fit in with the non-Aboriginal community which contributes to isolation and dissatisfaction. However, those general and other similar observations may not be applied as a matter of course.

In R v Fernando (1992) 76 A Crim R 58 (NSW, Wood J) the following propositions, based on authority, were put forward as applying to the sentencing of Aboriginal offenders (at 62–63):

[1.600]

ABORIGINALS

27

(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group. (B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender. (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects. (F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender. (G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality. (H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.

In R v Morgan (2003) 57 NSWLR 533 (CCA) Wood CJ at CL amplified what he had said in R v Fernando. His Honour said (at 538–539 [20] – [21]: As has been made clear by subsequent decisions, these remarks were not intended as an exhaustive statement of sentencing practice, or as justifying any special leniency in relation to offenders of the class to whom they applied: R v Hickey (unreported, NSWCCA, 27 September 1994); R v Ceissman (2001) 160 FLR 252 and R v Pitt [2001] NSWCCA 156. Rather they were intended to reflect an understanding of some of the factors which can lead a person of this racial background into offending behaviour, and which in appropriate cases, may have a particular relevance for the way in which a sentencing order may suitably be framed. They can have also a particular relevance for persons appearing before the courts who come from remote parts of the country, and who have particularly disadvantaged backgrounds, or when the offence is alcohol-related.

28

ROSS ON CRIME

[1.600]

In Bugmy v The Queen [2013] HCA 37 the majority (comprising French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) adopted a position similar to that in R v Fernando (1992) 76 A Crim R 58. In Bugmy, the appellant was an aboriginal who was raised in a remote country town, where alcohol abuse and violence was endemic. The appellant had a long list of prior convictions, including for violent offences, and the sentence he was appealing was for seriously assaulting a prison officer (for which he was sentenced to imprisonment for four years and three months, which was increased to five years on appeal). In allowing the offender’s appeal, the High Court stated that individuals raised in disadvantaged circumstances may be less culpable because their formative years may be marred by being subjected to negative influences, thereby impairing their capacity to mature and diminishing their moral culpability. Moreover, it noted that this does not dissipate as the offenders grows older or with the accumulation of prior convictions. The Court stated that social deprivation can constitute a basis for mitigation not only for aboriginals, but all people subjected to disadvantaged upbringing. It also noted that for mitigation to occur, the social deprivation would need to be established, not assumed. Moreover, social deprivation and a different cultural upbringing can mitigate if they make prison more burdensome. The majority (comprising French CJ, Hayne, Crennan, Kiefel, Gageler and Keane JJ) Court stated: 36. … there is no warrant, in sentencing an Aboriginal offender in New South Wales, to apply a method of analysis different from that which applies in sentencing a non-Aboriginal offender. Nor is there a warrant to take into account the high rate of incarceration of Aboriginal people when sentencing an Aboriginal offender. Were this a consideration, the sentencing of Aboriginal offenders would cease to involve individualised justice. 37. An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence. In this respect, Simpson J has correctly explained the significance of the statements in Fernando [57]: Properly understood, Fernando is a decision, not about sentencing Aboriginals, but about the recognition, in sentencing decisions, of social disadvantage that frequently (no matter what the ethnicity of the offender) precedes the commission of crime … 43. … the experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending. 44. Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.

The Court’s assertion that in there is no basis to take into account the high rate of Aboriginal incarceration (which is 15 times higher than the rest of the community) when sentencing Aboriginal offenders is flawed. Sentencing remains largely governed by the common law. There are aspects of this that make it more likely that aboriginal offenders will be sentenced to imprisonment. One feature of this is the undue aggravating effect of prior convictions. Aboriginal offenders have on balance more prior convictions than other

[1.600]

ABORIGINALS

29

offenders, and hence the recidivist premium operates unduly harshly against them. Moreover, the obscure nature of the instinctive synthesis provides ample scope for unconscious bias to inform sentencing outcomes. A different sentiment to that in Bugmy was expressed by the court in Munda v Western Australia [2013] HCA 38. In this case the aboriginal offender was originally sentenced to imprisonment for five years and three months for the manslaughter of his de facto spouse. On appeal this was increased to seven years and nine months. The High Court rejected his appeal against this sentence. In doing so, it stated: 52. In R v Fuller-Cust, Eames JA observed that, in the application of the principle stated by Brennan J, regard to an offender’s Aboriginality serves to ensure that a factor relevant to sentencing which arises from the offender’s Aboriginality is not “overlooked by a simplistic assumption that equal treatment of offenders means that differences in their individual circumstances related to their race should be ignored.” Moreover, the personal disadvantages affecting an individual offender may be, because of the circumstances in which they were engendered, so deep and so broad that they serve to shed light on matters such as, for example, an offender’s recidivism. 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 somehow less in need, or deserving, of such protection and vindication as the criminal law can provide. 54. It may be argued that general deterrence has little rational claim upon the sentencing discretion in relation to crimes which are not premeditated. That argument has special force where prolonged and widespread social disadvantage has produced communities so demoralised or alienated that it is unreasonable to expect the conduct of individuals within those communities to be controlled by rational calculation of the consequences of misconduct. In such cases it may be said that heavy sentences are likely to be of little utility in reducing the general incidence of crimes, especially crimes of passion. That having been said, there are three points to be made in response. First, the proper role of the criminal law is not limited to the utilitarian value of general deterrence. The criminal law is more than a mode of social engineering which operates by providing disincentives directed to reducing unacceptably deviant behaviour within the community. To view the criminal law exclusively, or even principally, as a mechanism for the regulation of the risks of deviant behaviour is to fail to recognise the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

The theme of Munda v Western Australia [2013] HCA 38 is linking personal responsibility with human dignity; suggesting that it demeans Aboriginals to treat them as less culpable for their crimes. This is empty phraseology. The concept of dignity is too obscure to guide legal standards and to the extent that it has the ideal has some content, most people would prefer to give up some dignity for less time in prison. Moreover, the outcome of Munda is at odds with the recognition in Bugmy that disadvantage can impact nurturing which diminishes the embedding of behavioural expectations and hence reduces criminal responsibility. The relevance of social deprivation cannot be negated on the basis that the circumstances of the offence or the offender may point to a need to increase sentence for reasons of deterrence of community protection. In such instances, while the sentence may

30

ROSS ON CRIME

[1.605]

need to be increased to achieve these other objectives, logically social disadvantage should still operate to reduce the extent to which the sentence needs to be increased to accommodate these other objectives. These two judgments cannot be reconciled on the basis that only in Bugmy was there evidence of relevant deprivation, given that this is not relied upon by the High Court for contrasting the judgments. The judgments in Munda and Bugmy serve to further mystify the law. They highlight the failings of the instinctive synthesis and the randomness that is a feature of the sentencing calculus. Defence lawyers, prosecutors and sentencing judges are provided with a smorgasboard of competing principles which they grasp to advance their position; without their being any clear guidance regarding which position should prevail. In the end, it will just come down to intuition and the atmospherics of the offence and the offender. The decision in Munda, seems to be more influenced by the courts desire to strongly disapprove of the scourge that is domestic violence, than an attempt to cohere an important aspect of sentencing law. See also, Namarnyilk v The Queen [2013] NTCCA 17. Other cases Newcombe v Police (2004) 144 A Crim R 328 (SA, Gray J); R v Carberry (2000) 143 ACTR 1 (Miles CJ); R v Tjami (2000) 77 SASR 514 (CCA).

[1.605] Aboriginals and substance abuse Alcohol In R v Fernando (1992) 76 A Crim R 58 (NSW, Wood J) Wood J examined the authorities and said (at 62–63): (C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment. (D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment. (E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.

Approved R v Stone (1995) 84 A Crim R 218 at 221–223 (NSW CCA); R v Coleman (2001) 122 A Crim R 230 at 237–239 (SA CCA);

[1.620]

ABORIGINALS

31

R v Scobie (2003) 85 SASR 77 at 106–107 (Gray J).

Petrol sniffing In R v Scobie (2003) 85 SASR 77 (Gray J) his Honour repeated remarks he had made in an earlier case (at 108): Many authors draw similarities between the use of alcohol and the use of petrol. As with alcohol, petrol is a disinhibitor and produces a high. However, there are significant differences. Petrol produces a mind altering state that differs from alcohol. Users experience hallucinations and mild euphoria. Petrol sniffing has been described as leading to a state of excitation, followed by central nervous system depression. There are serious consequences associated with chronic petrol sniffing. It may lead to brain damage … There is no reason in principle to treat recurrent petrol sniffing any differently than sustained alcohol abuse. Although the long-term effects on mental functioning differ, petrol sniffing is in essence another form of substance abuse. When it is reflective of an Aboriginal offender’s social and economic environment it may legitimately be viewed as mitigatory.

[1.610] Break enter and steal For full blood Aborigines living in remote areas, much lower penalties might be justified. A fine and suspended sentence were approved for theft of alcohol worth $257 and unlawful use of motor vehicle: Leech v Peters (1988) 40 A Crim R 350 (SA, Perry J).

[1.615] Domestic violence Women who plead guilty to manslaughter of violent husbands are treated leniently. Bonds were given in the following cases: R v Melrose [2001] NSWSC 847 (31 Aug 2001) (McClennan J); R v Kennedy [2000] NSWSC 109 (1 Mar 2000) (Barr J). See also Battered Woman Syndrome at [2.600]. Men who visit violence on their wives will be given severe penalties: R v Woodley, Boogna & Charles (1994) 76 A Crim R 302 (WA CCA); R v Wurramara (1999) 105 A Crim R 512 (NT CCA). In R v Daniel [1998] 1 Qd R 499; (1997) 94 A Crim R 96 (CA) Fitzgerald P said (at 531; 127): It would be grossly offensive for the legal system to devalue the humanity and dignity of members of Aboriginal communities or to exacerbate any lack of self-esteem felt within those communities by reason of our history and their living conditions … Aboriginal women and children who live in deprived communities or circumstances should not also be deprived of the law’s protection … [T]hey are entitled to equality of treatment in the law’s responses to offences against them, not to some lesser response because of their race and living conditions.

[1.620] Imprisonment and its special impact In Everett v The Queen (1994) 73 A Crim R 550 (WA CCA) Ipp J said (at 566): It is generally accepted, for example, that the court should take into account the impact of incarceration upon tribal Aborigines. A given term of imprisonment is more severe on such persons than the same term on other persons, and sentences have to be adjusted to take account of that. This principle underlies the remarks of Malcolm CJ in Juli (1990) 50 A Crim R 31 at 37 that “account should be taken of the impact of a sentence of imprisonment on an aboriginal person in the light of his social and cultural background”.

32

ROSS ON CRIME

[1.625]

In R v Tjami (2000) 77 SASR 514 (CCA) Nyland J, with whom the others agreed, said (at 521 [24]): The other significant issue which the court was obliged to take into account in this case was the effect that imprisonment would have upon the appellant as a tribal Aborigine. It is well established that imprisonment is generally a very negative experience for Aboriginal persons, far more so than for non-Aboriginals (see the report of the Royal Commission into Aboriginal Deaths in Custody Vol 3, Chapter 25 at 304). This is also clearly stated by Wood J in Fernando at para (G).

[1.625] Aboriginal children In Jabaltjari v Hammersley (1977) 15 ALR 94 (NT) Muirhead J said (at 98): [I]n dealing with Aboriginal children one must not overlook the tremendous social problems they face. They are growing up in an environment of confusion. They see many of their people beset with the problems of alcohol, they sense conflict and dilemma when they find the strict but community-based cultural traditions of their people, their customs and philosophies set in competition with the more tempting short-term inducements of our society. In short the young Aboriginal is a child who requires tremendous care and attention, much thought, much consideration. Seldom is anything solved by putting him in prison. If he becomes an offender he requires much by way of support and perhaps much by way of discipline to set him on the right track.

[1.630] Community wishes Legislation NT: Sentencing Act s 104A. Permits information on Aboriginal customary law and community views.

Cases The following cases preceded the legislation. It is appropriate for the court to take into account the special interests of the community of which the offender is a member, and to take into account the wishes of the community so long as they do not prevail over what might otherwise be a proper sentence: Robertson v Flood (1992) 111 FLR 177 (NT, Mildren J). A defendant must be given the chance to be heard on the relevance and weight of community issues: Joshua v Thomson (1994) 119 FLR 296 (NT, Kearney J).

[1.635] Crime of violence In R v Yougie (1987) 33 A Crim R 301 (Qld CCA) the accused, while drunk, threw a bottle at her errant boyfriend intending only to hit him. It cut him. Derrington J said (at 304): Recognition must be accorded to various factors of considerable importance in cases such as this. Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court’s face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context. These various factors must all be given due weight. It would be as wrong to apply imprisonment, except in special cases as it would be to deny it in each case unless it is special. Apart from the general context, each case must also be considered on its own merits. A sudden and single act of violence which does not necessarily produce injury will obviously be different from

[1.645]

ABORIGINALS

33

one which is clearly intended to injure and which consists of a sustained attack, particularly by a stronger person against a weak one, such as a deliberate striking with what is known to be a broken bottle or a knife.

Other cases R v Shannon (1991) 56 A Crim R 56 (SA CCA), assault police; Robertson v Flood (1992) 111 FLR 177 (NT, Mildren J), assault police; R v Fernando (1992) 76 A Crim R 58 (NSW, Wood J), knife wounding of partner.

[1.640] Rape Plea of guilty, sentenced to four years nine months, minimum of two years: R v Jabaltjari (1989) 64 NTR 1; 46 A Crim R 47 (CCA). Plea of guilty, sentenced to four years, minimum of six months: R v Williams (1992) 109 FLR 1 (NT, Mildren J). Plea of guilty, sentenced to eight years with no recommendation for early parole: R v Daniel [1998] 1 Qd R 499; (1997) 94 A Crim R 96 (CA).

[1.645] Sexual offences generally In Rogers and Murray v The Queen (1989) 44 A Crim R 301 (WA CCA), Malcolm CJ said (at 301): It follows from this that the sentencing principles to be applied in relation to a sexual offence committed by an Aboriginal must be the same as those in any other case. It is apparent, however, that there may well be particular matters which the court must take into account, in applying those principles, which are mitigating factors applicable to the particular offender. These include social, economic and other disadvantages which may be associated with or related to a particular offender’s membership of the Aboriginal race.

In Juli v The Queen (1990) 50 A Crim R 31 (WA CCA) the applicant, a 25-year-old Kimberley Aboriginal, pleaded guilty to charges of sexual assault and aggravated sexual assault committed 14 days apart, upon the same victim. The applicant suffered from a paranoid psychosis due partly to personality factors and exacerbated by alcohol. He had pleaded guilty and expressed remorse for his offences, and had no significant prior record of personal violence. The appeal against sentence was allowed. Malcolm CJ concluded (at 36–37) that: (1) As the applicant’s criminal culpability was markedly reduced by mental illness and alcohol, and as he had shown remorse and had not previously been sentenced to a term of imprisonment, a total effective sentence of 10 years was excessive. (2) The likely impact upon the applicant, a Kimberley Aboriginal, of a sentence of imprisonment, should also have been taken into account as a mitigating factor: Inginiwuni (unreported, Sup Ct, NT, 12 March 1975) applied. (3) While drunkenness is not normally an excuse or mitigating factor, general problems associated with the consumption of alcohol may themselves provide circumstances of mitigation: Rogers and Murray (1989) 44 A Crim R 301, followed. (4) In sentencing, allowance should be made for ethnic, environmental and cultural matters relating to Aborigines.

In Hales v Jamilmira (2003) 13 NTLR 14; 142 NTR 1; 176 FLR 369 (CA) the respondent had sexual intercourse with the victim aged 15 who was his promised wife. On a prosecution appeal against sentence the respondent was sentenced to 12 months imprisonment to be suspended after a month. The charge was unlawful sexual intercourse.

34

ROSS ON CRIME

[1.650]

[1.650] Bestiality A 37-year-old man, drunk, with no prior convictions, had carnal knowledge of an animal in public. The magistrate’s order of 14 days imprisonment was left untouched on appeal: Wood v Chute (1993) 111 FLR 420 (NT, Thomas J).

[1.655] Drug supply For sentences on supplying cannabis to remote Aboriginal communities see Cannabis at [3.135].

[1.660] Articles David Ross QC, “Defending Aboriginal People” (2007) 31 Crim LJ 332–344. J Nicholson, “The Sentencing of Aboriginal Offenders” (1999) 23 Crim LJ 85-89. P Jeffrey, “Escaping the Net: Native Title as a Defence to Breaches of Fishing Laws” (1997) 20 UNSWLJ 352-371. Justice Dean Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Crim LJ 7-22.

[1.665] Other references Anunga rules at [1.5000].

ABORTION Meaning ......................................................................................................................................... Legislation ..................................................................................................................................... Therapeutic abortion ..................................................................................................................... Noxious thing ................................................................................................................................ Intent .............................................................................................................................................. Supplying drugs with intent to procure an abortion .................................................................... Foetus already dead ...................................................................................................................... Possession of abortifacients .......................................................................................................... Similar fact evidence .................................................................................................................... Writing ...........................................................................................................................................

[1.800] [1.805] [1.810] [1.815] [1.820] [1.825] [1.830] [1.835] [1.840] [1.845]

[1.800] Meaning Abortion is the contrived expulsion of the human foetus from the womb before its capacity to survive independently.

[1.805] Legislation The crime Qld: Criminal Code ss 224, 225, 226; Tas: Criminal Code ss 134, 135; NT: Criminal Code ss 208A–208C; NSW: Crimes Act 1900 ss 82, 83, 84 (drugs to procure abortion); Vic: Crimes Act 1958 ss 65, 66; SA: Criminal Law Consolidation Act 1935 ss 81, 82; NZ: Crimes Act 1961 ss 182–187A;

[1.825]

ABORTION

35

Can: Criminal Code s 287.

Lawful termination by medical practitioner In some jurisdictions termination of pregnancy is lawful (or not unlawful) when performed by a medical practitioner: WA: Criminal Code s 199; Health Act 1911 s 334; Vic: Crimes Act 1958 s 34A; Abortion Law Reform Law Act 2008 SA: Criminal Law Consolidation Act 1935 s 82A; Eng: Abortion Act 1967; Can: Criminal Code s 287(4). In the Australian Capital Territory the crime of abortion was abolished by Crimes (Abolition of Offence of Abortion) Act 2002. On 28 January 1935 Iceland became the first country to legalise abortion on medical-social grounds.

[1.810] Therapeutic abortion In R v Davidson [1969] VR 667 at 671 Menhennit J ruled: [F]or therapeutic abortion to be lawful I think that the accused must have honestly believed on reasonable grounds that the act done by him was necessary to preserve the woman from some serious danger. As to this element of danger, it appears to me in principle that it should not be confined to danger to life but should apply equally to danger to physical or mental health provided it is a serious danger not being merely the normal dangers of pregnancy and childbirth.

[1.815] Noxious thing In R v Marlow (1964) 49 Cr App R 49 at 54 Brabin J ruled: If that which was caused to be taken is harmless, there is no offence. If the substance is unknown, but it causes within the proper time a miscarriage to take place, it is some evidence that it is noxious. If the substance, in the quantity taken or by its nature, is an abortifacient, it cannot be suggested, nor is it, that it is anything but a noxious thing.

In R v Douglas [1966] NZLR 45 (CA) it was held that tablets with which the case was concerned must be proved to be capable of causing a miscarriage.

[1.820] Intent In R v Spicer (1955) 39 Cr App R 189 the accused inserted two fingers into a pregnant woman’s vagina. She had asked him to help her. He told her that he had turned the foetus. She miscarried ten days later. Experts said that those actions had no effect. Finnemore J directed the jury (at 190): Whether this act does or does not produce a miscarriage does not matter. Whether it was a method which could or could not produce a miscarriage does not matter. The question is, what did he intend to do when he did the acts.

[1.825] Supplying drugs with intent to procure an abortion The woman must exist. In R v Hyland (1898) 24 VLR 101 (six – member court) the police had written to the accused to trap him. The letter asked for a cure for a woman three months pregnant. There was no such woman. The conviction was quashed.

36

ROSS ON CRIME

[1.830]

[1.830] Foetus already dead The offence may be committed when the foetus is dead. That is because the offence is “miscarriage”: R v Trim [1943] VLR 109 (CCA) especially Martin J at 116.

[1.835] Possession of abortifacients Evidence is admissible of the possession of abortifacients: R v Reddaway [1948] NZLR 1118 (CA).

[1.840] Similar fact evidence In R v Starkie [1922] 2 KB 275; [1921] 16 Cr App R 61 at 279, 69 (CCA) Lord Hewart CJ said: It was conceded that in a case where the prisoner is charged with attempting to procure abortion by the use of instruments, other cases where instruments were used for that purpose could be given in evidence. (R v Bond (1906) 2 KB 389). It was also conceded that in a case where drugs are charged as the means adopted, other cases of the administration of drugs are admissible (R v Palm (1910) 4 Cr App R 253).

Further at 281, 70: In our opinion evidence that the appellant administered drugs to one woman with intent to procure her abortion was admissible in support of a charge of having used an instrument with that intent upon another and vice versa, the point being not to prove thereby that he used the instrument or administered the drug, but to rebut the contention of the defence that he did so innocently.

Other cases R v Ross [1955] St R Qd 48 (CCA) especially at 79; Peacock v The King (1911) 13 CLR 619 at 643 per Griffith CJ; R v Lovegrove [1920] 3 KB 643; (1920) 15 Cr App R 50.

[1.845] Writing Gideon Haigh, The Racket: How Abortion Became Legal In Australia (Melbourne University Press, 2008).

ABUSE OF PROCESS Court’s power .............................................................................................................................. Dual purpose in staying criminal prosecution ........................................................................... Predominant purpose test ............................................................................................................ Categories not closed for circumstances are various ................................................................ Permanent stay ............................................................................................................................ Prosecution case doomed to failure ........................................................................................... Unlawful or illegal police conduct ............................................................................................. Ruling on excluded evidence in a later trial .............................................................................. Delay ........................................................................................................................................... Failure to call a material witness ............................................................................................... No trial representation for indigent accused on serious charge ................................................ Evidence destroyed ..................................................................................................................... Illegal extradition or deportation ................................................................................................ Charges laid after prosecution undertakes not to proceed ........................................................ Magistrate’s power ...................................................................................................................... Delayed charges with no abuse of process ................................................................................

[1.1000] [1.1005] [1.1010] [1.1015] [1.1020] [1.1025] [1.1030] [1.1035] [1.1040] [1.1045] [1.1050] [1.1055] [1.1057] [1.1060] [1.1065] [1.1070]

[1.1000] Court’s power Superior courts possess inherent jurisdiction to take such steps as are necessary to ensure a fair and impartial trial and to prevent an abuse of process in civil and criminal matters.

[1.1015]

ABUSE OF PROCESS

37

In Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635 at 518, 640, 435 Mason CJ, Dawson, Toohey and McHugh JJ said: It is well established that Australian superior courts have inherent jurisdiction to stay proceedings which are an abuse of process … The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, “to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair”: Barton v The Queen (1980) 147 CLR 75 at 95–96.

In a footnote the justices said: Although the term “inherent jurisdiction” has acquired common usage in the present context, the question is strictly one of the power of a court to stay proceedings. That power arises from the need for the court to be able to exercise effectively the jurisdiction which the court has to dispose of the proceedings.

In Police (SA) v Sherlock (2009) 103 SASR 147; 194 A Crim R 30; [2009] SASC 64, at [15], Doyle CJ set out the main categories of abuse of process as follows: Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

[1.1005] Dual purpose in staying criminal prosecution In Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635 at 518–519, 640, 436 Mason CJ, Dawson, Toohey and McHugh JJ said: The jurisdiction to grant a stay of a criminal prosecution has a dual purpose, namely, “to prevent an abuse of process or the prosecution of a criminal proceeding … which will result in a trial which is unfair”. This does not mean that the prosecution of proceedings in such a way as to make them an instrument of oppression which will result in an unfair trial stands outside the concept of abuse of process. That term has been applied on various occasions to describe the situation just mentioned as well as the more traditional case where the prosecution is brought for an improper purpose.

[1.1010] Predominant purpose test In Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635 at 529, 648–649, 444 Mason CJ, Dawson, Toohey and McHugh JJ said that the criterion for abuse of process is whether the improper purpose is the predominant purpose of the moving party. The onus of satisfying the court that there is an abuse of process lies on the party alleging it. The “onus is a heavy one … and the power to grant a permanent stay is one to be exercised only in the most exceptional circumstances”.

[1.1015] Categories not closed for circumstances are various In R v J [2005] 1 AC 562; [2005] WLR 1019; [2005] 1 All ER 1; [2005] 1 Cr App R 19 at 580, 18 (HL) Lord Clyde said: [T]he concept of abuse may defy exhaustive definition.

In R v Carroll (2002) 213 CLR 635; 194 ALR 1; 136 A Crim R 167 at 650–651, 12, 181 Gleeson CJ and Hayne J said: The circumstances that may constitute oppression or an abuse of process are various. The discretionary considerations that may be relevant in dealing with them cannot be rigidly confined.

The categories of abuse of process are not closed, but there are two main aspects to the doctrine: first, whether the conduct complained of involves vexation, oppression and unfairness to the accused and, second, whether tolerance of it will bring the administration of justice into disrepute. This discretionary power may be exercised in exceptional

38

ROSS ON CRIME

[1.1020]

circumstances to order a permanent or temporary stay of proceedings: Ridgeway v The Queen (1995) 184 CLR 19; 78 A Crim R 307; 129 ALR 41 at 74–76 and especially per Gaudron J. In Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417; at 255, 419 Mason CJ said: The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to fixed categories: Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, per Lord Diplock.

And at 256, 420: [T]here are two aspects to abuse of process: first, the aspect of vexation, oppression and unfairness to the other party to the litigation and, secondly, the fact that the matter complained of will bring the administration of justice into disrepute.

[1.1020] Permanent stay In DPP v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180 at 134, 184 (CA) Mason P said: Abuse of process covers a multitude of ills. The power to stay proceedings for abuse of process seeks to further a number of goals, including safeguarding an accused person from oppression and vexation, maintaining fairness in procedure, and precluding the undermining of confidence in courts generally: see Rogers (1994) 181 CLR 251; 74 A Crim R 462 at 255–256, 286–287 (CLR), 463–464, 488–489 (A Crim R); Ridgeway (1995) 184 CLR 19; 78 A Crim R 307 at 60–61, 74–75, 92–93 (CLR), 338–339, 350–352, 366–367 (A Crim R); see also Choo, “Halting Criminal Prosecutions: The Abuse of Process Doctrine Revisited” [1995] Crim LR 864. Stays to prevent or nullify abuse of process may be conditional or permanent. A permanent stay may be based upon the conclusion that the proceedings will necessarily fail (Ridgeway at 41, 43), or involve irremediable prejudice to the accused person that interferes with the conduct of a fair trial (Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 301), or are being conducted for a purpose which in the eye of the law they are not intended to serve: Jago at 47–48, 324–325; Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635; Ridgeway at 46, 60, 75, 327, 338–339, 351–352. Abuse of process is not confined to the obstruction of fairness in procedure: Jago at 58; 332–333; Brown (1989) 17 NSWLR 472; 44 A Crim R 385 at 478–479 (NSWLR) 391–392 (A Crim R); Ridgeway at 75; 351–352.

Approved: Bou-Simon v Attorney-General (2000) 96 FCR 325; 113 A Crim R 320 (FCA) (at 339; 334–335 [39]). See also, R v Jacobi [2012] SASCFC 115, X7 v The Queen [2014] NSWCCA 273.

[1.1025] Prosecution case doomed to failure In Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 Mason CJ, Deane and Dawson JJ said (at 393; 298): Thus, it has been long established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.

In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307 Mason CJ, Deane and Dawson JJ held that where crucial evidence is excluded the result may be a stay. The rationale was explained (at 40–41; 56; 322–323): If … a ruling is made that evidence of the charged offence or of an element of it should be so excluded, it will be apparent that it would be an abuse of process for the Crown to proceed with the trial. The reason why that is so is not that the commission of the charged offence was procured

[1.1030]

ABUSE OF PROCESS

39

by illegal conduct on the part of the police. It is that the proceedings will necessarily fail with the consequence that a continuance of them would be oppressive and vexatious. It is true that there is an appearance of artificiality in the distinction between an exclusion of all evidence and a stay of proceedings. There is, however, a significant distinction in principle between staying criminal proceedings on the ground that the criminal proceedings in themselves constitute an abuse of process and staying further steps in the proceedings on the ground that, due to the effect of evidentiary rulings made in them, they must fail.

In R v Smith [1995] 1 VR 10; (1994) 73 A Crim R 384, Vincent J had granted a permanent stay. The High Court first dealt with a threshold appeal point. In Smith v The Queen (1994) 181 CLR 338; 76 A Crim R 32; 125 ALR 385 the majority said (at 342; 386; 34): Vincent J granted a permanent stay against prosecution for murder or manslaughter against each of the five appellants, having concluded that the proceedings were an abuse of process because they were bound to fail. He said: In the case of each of the accused whose application for a stay has been granted, I consider that the interests of justice require that the stay be made permanent. Each of them has, after a period of five years, been brought before this court on a count of murder, the most serious charge known to the law. That course was adopted after careful consideration and on the basis of a case that in relation to each of them, is fundamentally flawed.

The onus is on the defence. In R v El Azzi (2001) 125 A Crim R 113 (NSW CCA) Howie J, with whom the others agreed, said (at 124 [40]): The applicant had the onus of establishing that the prosecution was doomed to fail and that depended upon the applicant showing, in effect, that there was no evidence to support the charges.

Other cases R v Petroulias (No 1) (2006) 177 A Crim R 153 at 176-179 [71] – [85] (NSW, Johnson J): no stay; R v Jasper (2003) 139 A Crim R 329 (NSW CCA) at 335 [18] – [20]: no stay.

[1.1030] Unlawful or illegal police conduct In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307, police had imported heroin so a delivery could be made to Mr Ridgeway. He was convicted of possessing a prohibited import contrary to the Customs Act 1901 s 233B(1)(c). Entrapment was run as a defence at trial and as a ground of appeal to the Court of Criminal Appeal and the High Court. It failed. (See Entrapment at [5.1100].) However, the High Court said that because police illegally imported the heroin, evidence of the importation should not have been given. On the stay point, the majority said (at 40–41; 55–56; 322): Nonetheless, the appropriate ultimate relief in a case where the commission of the charged offence has been procured by illegal police conduct may well be a permanent stay of further proceedings. Ordinarily, the question whether evidence of an offence or of an element of an offence should be excluded pursuant to the discretion to exclude evidence on entrapment grounds should be raised and determined in the course of a preliminary hearing. If, on such a hearing, a ruling is made that evidence of the charged offence or of an element of it should be so excluded, it will be apparent that it would be an abuse of process for the Crown to proceed with the trial. The reason why that is so is not that the commission of the charged offence was procured by illegal conduct on the part of the police. It is that the proceedings will necessarily fail with the consequence that a continuance of them would be oppressive and vexatious. It is true that there is an appearance of artificiality in the distinction between an exclusion of all evidence and a stay of proceedings, cf R v Vuckov and Romeo (1986) 40 SASR 498 at 518 per Cox, J There is, however, a significant distinction in principle between staying criminal proceedings on the ground that the proceedings in

40

ROSS ON CRIME

[1.1035]

themselves constitute an abuse of process and staying further steps in the proceedings on the ground that, due to the effect of evidentiary rulings made in them, they must fail.

As a result of Ridgeway, Pt 1AB of the Crimes Act 1914 (Cth) was introduced making it easier for evidence of police participating in a controlled operation to be admitted. This was applied in Webster v The Queen [2015] WASCA 20.

[1.1035] Ruling on excluded evidence in a later trial In two cases the judge excluded confessions as involuntary and the trial proceeded to verdict. The prosecution then laid further charges relying on the same confessions: Bryant v Collector of Customs [1984] 1 NZLR 280 (CA). Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417. In Rogers [1995] 1 Cr App R 374 the High Court declared that the course proposed by the prosecution amounted to an abuse of process. In R v Edwards [1998] 2 VR 354; (1997) 94 A Crim R 204 (CA) evidence excluded at the first trial was possession of a pistol and cash. The charge was trafficking in amphetamines. At the second trial the judge ruled them in. Held: no abuse of process because the first ruling involved no determination of fact or law. Rogers [1995] 1 Cr App R 374 was distinguished. Subsequent trials for the same offence does not of itself constitute an abuse of process: R v Donald (1983) 34 SASR 10; 11 A Crim R 47 (CCA). See also Prosecution at [16.6700].

[1.1040] Delay A stay is not the only proper remedy for undue delay. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings include the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and the prejudice suffered by the accused: Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46. The High Court refused to grant a stay. In Walton v Gardiner (1993) 177 CLR 378; 112 ALR 289 the NSW Court of Appeal had stayed disciplinary medical proceedings in 1986: Herron v McGregor (1986) 6 NSWLR 246; 28 A Crim R 79. In 1991 the Department of Health tried again to take the case (about Chelmsford) to the Medical Tribunal. The NSW Court of Appeal again ordered a stay and the Department of Health appealed to the High Court. Mason CJ, Deane and Dawson JJ in dismissing the appeal said (at 392–393; 298–299): The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail, See, eg, Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, at 220-221; General Steel Industries Inc v Commissioner For Railways (NSW) (1964) 112 CLR 125, at 128–130. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them, see, generally, Voth v Manildra Flour Mills

[1.1055]

ABUSE OF PROCESS

41

Pty Ltd (1990) 171 CLR 538; 97 ALR 124. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings. see, eg, Reichel v Magrath (1889) 14 App Cas 665, at 668; Connelly v DPP [1964] AC 1254, [1964] 2 All ER 401; (1964) 48 Cr App R 183, at 1361–1362 (AC). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529, at 536 as “the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people.”

See also, R v F J L [2014] VSCA 57. In Hermanus (a pseudonym) v The Queen [2015] VSCA 2 the court refused to order a permanent stay in relation to a sex offence which occurred forty years ago, stating (at [44]) that: The law contemplates, however, that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage.

See also, Bauer (a Pseudonym) v The Queen [2015] VSCA 55.

No committal or no proper committal Barton v The Queen (1980) 147 CLR 75; 32 ALR 449. R v Ngalkin (1984) 71 FLR 264; 12 A Crim R 29 (NT, O’Leary J). R v Cordell (1984) 10 A Crim R 475 (NSW, Enderby J). Houston v Cranage (1990) WAR 11; 42 A Crim R 446 (Malcolm CJ). R v Drozd (1993) 67 A Crim R 112 (Qld CA).

[1.1045] Failure to call a material witness The effect of such failure is discussed in: Houston v Cranage (1990) WAR 11; 42 A Crim R 446 (Malcolm CJ). Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 per Deane J at 57.

[1.1050] No trial representation for indigent accused on serious charge This is discussed in Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385. See Dietrich at [4.2100]. The practice about this at committal is variable: R v Cordell (1984) 10 A Crim R 475 (NSW, Enderby J); R v Matterson (1993) 2 Tas R 115; 65 A Crim R 264 (Cox J).

[1.1055] Evidence destroyed The matter of destruction of evidence is discussed in: R v Devenish [1969] VR 737 (CCA); Holmden v Bitar (1987) 47 SASR 509; 27 A Crim R 255 (Cox J);

42

ROSS ON CRIME

[1.1057]

R v Reeves (1994) 122 ACTR 1; 121 FLR 393 (Gallop J); R v Edwards (2009) 83 ALJR 717; 255 ALR 399; [2009] HCA 20. Aydin v The Queen (2010) 28 VR 588; [2010] VSCA 190.

[1.1057] Illegal extradition or deportation This is discussed in Moti v The Queen [2011] HCA 50.

[1.1060] Charges laid after prosecution undertakes not to proceed In Williamson v Trainor [1992] 2 Qd R 572; (1991) 56 A Crim R 102 (CCA) the prosecution undertook not to proceed on assault charges. In return the defendant signed an indemnity and did not ask for costs. Fresh assault charges were subsequently laid. By that time the defendant’s witnesses were unavailable. The Court of Criminal Appeal set aside the conviction because the fresh charges were an abuse of process.

[1.1065] Magistrate’s power A magistrate has the power to stay a summary case because of abuse of process. In Neill v County Court of Victoria (2003) 40 MVR 265 (Vic, Redlich J) his Honour, citing great authority for each proposition, said (at 276 [34]): A Victorian magistrate’s implied power to prevent an abuse of the court’s process can no longer be doubted … Similar statutory provisions in relation to local courts in other states have been construed in a like manner as supporting such a power.

[1.1070] Delayed charges with no abuse of process Many delayed charges have proceeded with appeal courts holding that there was no abuse of process. In R v Noyes [2005] 1 Qd R 169 (CA) the accused was convicted of sodomy which had occurred some 35 years before. Held: appeal dismissed. No abuse of process. See also Amnesty at [1.4800]; Indemnity at [9.1600]; Kilby warning at [11.300]; Longman warning at [12.2100] and Stay at [19.5900].

ACCESSORY Legislation ................................................................................................................................... After the fact ............................................................................................................................... Help need not be of a personal nature ....................................................................................... Knowledge .................................................................................................................................. Commission of the principal offence ......................................................................................... Evidence of the principal offence .............................................................................................. Principal not charged .................................................................................................................. Acquittal of principal .................................................................................................................. Accessory after the fact of murder – an alternative .................................................................. Innocent agent ............................................................................................................................. Sentencing ................................................................................................................................... Before the fact ............................................................................................................................

[1.1200] Legislation Cth: Crimes Act 1914 s 6; Qld: Criminal Code ss 10, 544–545;

[1.1200] [1.1205] [1.1210] [1.1215] [1.1220] [1.1225] [1.1230] [1.1235] [1.1240] [1.1245] [1.1250] [1.1255]

[1.1215]

ACCESSORY

43

WA: Criminal Code ss 10, 562; Tas: Criminal Code ss 6, 300; NT: Criminal Code ss 13, 294; NSW: Crimes Act 1900 ss 347–350; Vic: Crimes Act 1958 s 325; ACT: Criminal Code s 717; NZ: Crimes Act 1961 ss 66–71 and 312’ Can: Criminal Code s 23.

[1.1205] After the fact At common law an accessory after the fact is one who, knowing a felony to have been committed by another, receives, relieves, comforts, or assists the felon: 3 Co Inst 138; 1 Hale 618; 4 Bl Com 37; Fost 373; 2 Hawk c 29, s 1; 2 Russ Cr (10th ed) 1867; R v Burridge 3 P Wms 439; 24 ER 1133.

[1.1210] Help need not be of a personal nature In R v Tevendale [1955] VLR 95 (CCA) Sholl J said (at 97): It is now, I should imagine, at least a century too late to contend on behalf of an accused person that the assistance which must be proved cannot be anything other than some assistance to the principal offender in a personal sense as, for example, by concealing his person or furnishing him with a disguise. I should think that, ever since R v Butterfield (1843) 1 Cox C C 39, the law has been otherwise, and that it is sufficient to prove that something was done for the purpose of assisting the principal felon to escape apprehension or punishment.

Examples include: • removing evidence of counterfeiting: R v Levy [1912] 1 KB 158; [1911-13] All ER Rep 222; 7 Cr App R 61; • disposing of stolen goods: R v Phelan [1964] Crim LR 468 (CCA); • changing engine numbers on a stolen car: R v Tevendale [1955] VLR 95 (FC); • concealing homicide by burying the body: R v Williamson [1972] 2 NSWLR 281 (CCA). However, in R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 (CCA) the court said in a joint judgment (at 167; 397): Although an accessory after the fact may in some circumstances be an accomplice, being particeps criminis in another crime does not make the participant an accomplice in the earlier one.

[1.1215] Knowledge In R v Tevendale [1955] VLR 95 (CCA) Herring CJ said (at 96): [I]t is necessary, before a man can be convicted of being an accessory after the fact, that the jury be satisfied that he did know the principal offence had been committed by the principal felon; that if charged with assisting a thief it is necessary that he should know that the theft had been committed.

44

ROSS ON CRIME

[1.1220]

Applied: R v Stone [1981] VR 737. Crockett J ruled (at 740): [W]hat must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts, or acts, that establish the precise felony with respect to which the Crown alleges the accused was an accessory.

In Weatherall v The Queen (1987) 28 A Crim R 70; 75 ALR 635 (FCA) Forster J giving the leading judgment said (at 77; 643): At common law a person can be convicted of being an accessory after the fact only if he assists the perpetrator of a crime having knowledge of all the relevant facts, or acts, with respect to which it may be said by someone with the requisite legal knowledge that they constitute the precise felony with respect to which the Crown alleges that the accused was an accessory: see Stone [1981] VR 737.

[1.1220] Commission of the principal offence The prosecution must prove that the principal offence has been committed: R v Dawson [1961] VR 773 at 774 (CCA); R v Carter & Savage; Ex parte Attorney-General [1990] 2 Qd R 371; 47 A Crim R 55; R v Rowley [1948] 1 All ER 570; 32 Cr App R 147.

[1.1225] Evidence of the principal offence A certificate of conviction of the principal offender is not sufficient: R v Triffett (1992) 1 Tas R 293; 64 A Crim R 145 (Tas, Underwood J); Rompotis v The Queen (1996) 18 WAR 54 (CCA); R v Kirkby (1998) 105 A Crim R 323 (Qld CA); R v Welsh [1999] 2 VR 62; 105 A Crim R 448 (CA): neither is a confession or admission by the principal.

[1.1230] Principal not charged There can be a conviction of accessory after the fact even though the principal is not charged: R v White (1977) 16 SASR 571 at 573 (CCA).

[1.1235] Acquittal of principal Acquittal of the principal will entitle acquittal of the accessory after the fact only if the verdicts are inconsistent: Darby v The Queen (1982) 148 CLR 668; 40 ALR 594; R v Breen (1990) 67 NTR 15; 99 FLR 474; 47 A Crim R 298 (NT, Angel J).

[1.1240] Accessory after the fact of murder – an alternative After acquittal on murder charge, the accused was convicted as accessory after the fact, which was left as an alternative: R v Middap (1992) 63 A Crim R 434 (Vic CCA); R v Gilbert (1994) 72 A Crim R 454 (Vic CCA); R v Winston [1995] 2 Qd R 204; (1995) 76 A Crim R 113 (CA).

[1.1255]

ACCESSORY

45

[1.1245] Innocent agent An innocent agent is one who participates in the act as a helper to the principal actor but without knowledge of the crime.

Generally R v Demirian [1989] VR 97; (1988) 33 A Crim R 441 at 117–121; 461–465 (CCA). Likiardopoulos v The Queen [2012] HCA 37; 86 ALJR 1168.

Drug cases He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449. White v Ridley (1978) 140 CLR 342; 21 ALR 661. R v Kaldor (2004) 150 A Crim R 271 at 279–282 [28] – [40] (NSW CCA). R v Pinkstone (2001) 24 WAR 406; 162 FLR 198; 120 A Crim R 120 at [43] (Roberts-Smith J). R v Mooseek (1991) 56 A Crim R 36 at 39 (Vic CCA).

Signing cheques R v Briggs (1987) 24 A Crim R 98 at 105 (WA CCA).

Rape R v Hewitt [1997] 1 VR 301; (1996) 84 A Crim R 440 at 307–309; 448–450 (CA).

Tax return Grapsas v Unger (1986) 161 CLR 327; 22 A Crim R 84; 67 ALR 1 per Dawson J.

[1.1250] Sentencing In R v White (1977) 16 SASR 571 (CCA) Jacobs J said at 579: If Parliament had intended that the punishment of an accessory after the fact must be in some way related to either the seriousness of the principal offence or the punishment of the principal offender, it might have been expected to say so in language very different.

See also R v Mills (1977) 16 SASR 581 (CCA); R v Hawken (1986) 27 A Crim R 32 (Qld CCA); R v Winston (1994) 74 A Crim R 312 (Qld CA); R v Lister (1996) 86 A Crim R 527 (Qld CA).

[1.1255] Before the fact See Complicity at [3.4400].

46

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[1.1400]

ACCIDENT Definition ..................................................................................................................................... Legislation (in the Code States) ................................................................................................. Interpretation of the Code .......................................................................................................... Accident must be open on the evidence .................................................................................... Direction to the jury ................................................................................................................... Accident and self-defence ..........................................................................................................

[1.1400] [1.1405] [1.1410] [1.1415] [1.1420] [1.1425]

[1.1400] Definition In Povey v Qantas Airways Ltd (2005) 223 CLR 189; 216 ALR 427 McHugh J said (at 214; 443 [71]): The criminal law of Australia is familiar with the notion of an “accident” occurring when a voluntary or intended act has unintended, unexpected or reasonably unforeseeable consequences. Thus, for the purpose of the Criminal Code (Qld), voluntary or intended acts of a person that cause harm to another may constitute an “accident” where the harm was not intended or reasonably foreseeable. In Kaporonovski v R, Gibbs J said that “[i]t must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person”. Consequently, this category of “accident” covers cases of intentional conduct that has consequences that were not intended or reasonably foreseeable, for example, a punch to the victim’s neck that caused a subarachnoid haemorrhage because of the victim’s predisposition to such a haemorrhage. In R v Van Den Bemd, a majority of this court refused the Crown special leave to appeal against a decision that held that a death occurred “by accident” when the “death was such an unlikely consequence of [the accused’s] act an ordinary person could not reasonably have foreseen it”.

In Timbu Kolian v The Queen (1968) 119 CLR 47 Windeyer J said (at 67): In the light of the decision in Vallance’s Case (1961) 108 CLR 56 it can now be said that an event occurs by accident if it was not intended, not foreseen, and unlikely, that is not reasonably to be foreseen as a consequence of a man’s conduct.

In Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545, Brennan, Dawson and Gaudron JJ referred to Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1; 25 Cr App R 72 at 472, 8, 96 and the judgment of Viscount Sankey LJ and said (at 80; 549; 168): His Lordship went on to explain: If the jury are either satisfied with (the accused person’s) explanation or, upon a review of all the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoner is entitled to be acquitted [Emphasis added]. In this passage the common law term “unintentional” means “involuntary” or “unwilled” and those were the terms preferred by Barwick CJ in Ryan v The Queen (1967) 121 CLR 205 at 213. In that case, his Honour said: [B]y whatever adjective or adjectival phrase it is described, the deed which was not the result of the accused’s will to act cannot, in my opinion, be made the source of criminal responsibility in him.

See also Stevens v The Queen (2005) 227 CLR 319; 80 ALJR 91; 222 ALR 40; 156 A Crim R 487.

[1.1405] Legislation (in the Code States) Qld: Criminal Code s 23; Tas: Criminal Code s 13; NT: Criminal Code s 31.

[1.1425]

ACCIDENT

47

[1.1410] Interpretation of the Code In Kaporonovski v The Queen (1973) 133 CLR 209; 1 ALR 296 Gibbs J said (with Stephen J in agreement) (at 231; 310): It must now be regarded as settled that an event occurs by accident within the meaning of the rule if it was a consequence which was not in fact intended or foreseen by the accused and would not reasonably have been foreseen by an ordinary person.

Approved: R v Van Den Bemd (1994) 179 CLR 137; 119 ALR 385; 70 A Crim R 494 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ (at 139; 386; 495). Stevens v The Queen (2005) 227 CLR 319; 80 ALJR 91; 222 ALR 40; 156 A Crim R 487. The “event” is a consequence of a person’s willed act: R v Van Den Bemd [1995] 1 Qd R 401; (1992) 70 A Crim R 489 (CA).

[1.1415] Accident must be open on the evidence For a trial judge to direct a jury on accident such direction must be open on the evidence. If accident does not arise on the evidence, the direction is not called for. Hubert v The Queen (1993) 67 A Crim R 181 (WACCA). R v Skerritt (2001) 119 A Crim R 510 (Qld CA). See also Defences at [4.700].

[1.1420] Direction to the jury In Stevens v The Queen (2005) 227 CLR 319; 80 ALJR 91; 222 ALR 40; 156 A Crim R 487 Callinan J set out a sample direction (at [160]). In R v Taiters; Ex parte Attorney-General [1997] 1 Qd R 333; 87 A Crim R 507 (CA) the court said in a joint judgment (at 338; 512): The Crown is obliged to establish that the accused intended that the event in question should occur or foresaw it as a possible outcome, or that an ordinary person in the position of the accused would reasonably have foreseen the event as a possible outcome.

To the question: 1. Whether when a person is charged with manslaughter it is necessary for the Crown to prove beyond reasonable doubt that an ordinary person in the position of the accused could have foreseen that death was a probable or likely consequence of his or her actions?

The court answered “No”.

[1.1425] Accident and self-defence In R v Ellem (No 2) [1995] 2 Qd R 549; (1994) 75 A Crim R 370 (CA) the accused was convicted of manslaughter by blows in a fight. McPherson JA, in discussing the issues raised in a case of self-defence and accident said (at 556; 378): Here the first question to be decided was whether the appellant’s blows caused Turner’s death, whether directly or indirectly. The second was whether the death of Turner was such an unlikely consequence of those blows that an ordinary person would not have foreseen it. The third question was whether the force of the appellant’s blows was such as to be reasonably necessary to make his defence effectual against any assault being carried out on him by Turner.

48

ROSS ON CRIME

[1.1600]

Other examples include: • Gun accidentally going off: Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1; 25 Cr App R 72 (HL); R v Hughes (1989) 42 A Crim R 270 (Vic CCA); Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545. • Punch to victim who falls, hits his head and dies: R v Van Den Bemd (1994) 179 CLR 137; 119 ALR 385; 70 A Crim R 494.

ACCOMPLICE Definition ..................................................................................................................................... Uniform Evidence Acts .............................................................................................................. Can an accomplice include a co-accused who gives evidence? ............................................... Accomplice called as a witness .................................................................................................. A charged accomplice as a witness ............................................................................................ Should the prosecution call an accomplice witness .................................................................. Where witness is on a different charge ...................................................................................... Indemnity .................................................................................................................................... Judge’s power to exclude a witness’ evidence .......................................................................... Accomplice’s plea of guilty not relevant in chief ..................................................................... Who is not an accomplice .......................................................................................................... Incest ........................................................................................................................................... The unreliability of accomplice evidence .................................................................................. The accomplice warning ............................................................................................................. No warning if no issue ............................................................................................................... The purpose of the accomplice warning .................................................................................... Failure to give accomplice warning as a ground of appeal ...................................................... Accomplice not giving promised evidence ................................................................................ Sentencing ................................................................................................................................... Possible accomplice direction ....................................................................................................

[1.1600] [1.1605] [1.1610] [1.1615] [1.1620] [1.1625] [1.1630] [1.1635] [1.1640] [1.1645] [1.1650] [1.1655] [1.1660] [1.1665] [1.1670] [1.1675] [1.1680] [1.1685] [1.1690] [1.1695]

[1.1600] Definition In R v Ready & Manning [1942] VLR 85 (CCA) Mann CJ said (at 93): The only definition in the books of the word “accomplice” which counsel were able to cite to us was that pronounced by Denman J in R v Cramp [1880] 14 Cox CC 390, who said that a witness would not be an accomplice unless she was privy to the criminal intent of the principal offender.

Affirmed: R v Parsons (2004) 145 A Crim R 519 at 526 [25] (Vic CA). R v Clark (2001) 123 A Crim R 506 at 540 [50] (NSW CCA). R v Thomas (1988) 40 A Crim R 89 at 93 (Vic CCA). In McNee v Kay [1953] VLR 520, Sholl J said he was bound by R v Ready & Manning [1942] VLR 85. He said (at 530): [I]f I were free so to hold, I should consider the true principle to be that that person is an accomplice within the common law rule who is chargeable, in relation to the same events as those founding the charge against the accused, with an offence (whether the same offence or not) of such a character, and who would be if convicted thereof liable to such punishment, as might possibly tempt that person to exaggerate or fabricate evidence as to the guilt of the accused.

The proposition of Sholl J has been accepted: Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1at 599 (CLR), 219 (A Crim R) per Dawson and Gaudron JJ. Khan v The Queen [1971] WAR 44 was also approved. In R v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 (CA) Pincus JA said (at 648; 52):

[1.1615]

ACCOMPLICE

49

[A]ccomplice includes a person directly implicated in the accused’s actions and guilty, not of precisely the same offence as that with which the accused is charged, but of any other offence of which the accused could be found guilty on the indictment: Khan [1971] WAR 44. This is similar to, but not precisely the same as, the exception derived from Sneesby. Sneesby [1951] QSR 26 and Khan, then, would I think include as an accomplice a person who as a participant in the very acts constituting the offence charged is himself guilty of an offence, whether or not being guilty of the precise offence charged against the accused. Additional authority providing at least some support for this view is to be found in McNee v Kay [1953] VLR 520 at 530; R v Rigney (1975) 12 SASR 30 at 37 and Ling v the Queen [1981] Tas R 250 at 279; (1981) 6 A Crim R 429 at 451.

[1.1605] Uniform Evidence Acts Uniform Evidence Acts do not use the word “accomplice”. Section 165 of the Acts provide: s 165(1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence: (d) evidence given in a criminal proceeding by a witness, being a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceeding;

No wonder that a court applying this section has advised that the word “accomplice” not be used. In R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (CCA) Howie J, with whom the other judges agreed on this point, said (at 329; 397; [126]): It may be preferable that a trial judge avoids using the word “accomplice” during his or her warnings to the jury. The use of that word may convey, inadvertently, that the trial judge believes that the witness is an accomplice of the accused and, therefore, that the trial judge has formed the view that the accused is guilty of the charge before the jury.

[1.1610] Can an accomplice include a co-accused who gives evidence? In Victoria, as opposed to England, the law now is that the trial judge should warn the jury not only as to the evidence of an accomplice who gives evidence for the Crown implicating the accused person or persons, but also as to that of an accomplice who, as a co-accused, gives evidence implicating another or other co-accused: R v Anthony [1962] VR 440 at 444 (CCA).

In R v Henning (unreported, NSW CCA, 11 May 1990) the court said: But different principles apply when the supposed accomplice who gives evidence against a co-accused is himself an accused giving evidence in his own case. It would be difficult indeed to seek to apply inflexible rules to such situations. For the interests of justice will almost certainly require different responses in different circumstances. Considerable latitude must be allowed in order to enable trial judges to address the situation in a manner which will adapt to the competing interests in the particular case.

Approved: Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258.

[1.1615] Accomplice called as a witness Generally In R v Pipe (1966) 51 Cr App R 17 Lord Parker CJ said (at 21): Those circumstances are set out correctly in Archbold, in paragraph 1297 of the current edition, where it is said that where it is proposed to call an accomplice at the trial, it is the practice (a) to

50

ROSS ON CRIME

[1.1620]

omit him from the indictment or (b) take his plea of Guilty on arraignment or before calling him either (c) to offer no evidence and permit his acquittal or (d) to enter a nolle prosequi.

In R v Turner (1975) 61 Cr App R 67, Lawton LJ said (at 78): In our judgment Pipe (supra) is limited to the circumstances set out in Archbold. Its ratio decidendi is confined to a case in which an accomplice, who has been charged, but not tried, is required to give evidence of his own offence in order to secure the conviction of another accused. Pipe (supra) on its facts was clearly a right decision. The same result could have been achieved by adjudging that the trial judge should have exercised his discretion to exclude Swan’s evidence on the ground that there was an obvious and powerful inducement for him to ingratiate himself with the prosecution and the court and that the existence of this inducement made it desirable in the interests of justice to exclude it. See Noor Mohamed v The King [1949] AC 182, per Lord du Parcq at p 192 and followed in Harris v Director of Public Prosecutions [1952] A.C. 694 and 36 Cr.App.R. 39 , per Viscount Simon at p. 707 and p. 57. To have reached the decision on this basis would, we think, have been more in line with the earlier authorities. Lord Parker CJ in Pipe (supra) seems, however, to have viewed the admission of Swan’s evidence in the circumstances of that case as more than a wrong exercise of discretion. He described what happened as being “wholly irregular”. It does not follow, in our judgment, that in all cases calling a witness who can benefit from giving evidence is “wholly irregular”. To hold so would be absurd. Examples are provided by the prosecution witness who hopes to get a reward which has been offered “for information leading to a conviction,” or even an order for compensation or whose claim for damages may be helped by a conviction.

[1.1620] A charged accomplice as a witness There is a body of authority to the effect that when a witness is charged, the matter should be wholly disposed of, or the witness given an immunity before giving evidence for the prosecution. The matter is disposed of by conviction, sentence, nolle prosequi or pardon. In R v Booth [1982] 2 NSWLR 847; (1982) 8 A Crim R 81 (CCA) Street CJ said (at 849–850; 84): It is well recognised in practice that accomplices should normally be finally dealt with before being called to give evidence in support of the Crown. It will rarely arise in practice that an accomplice who has not been finally dealt with, or who perhaps may not have received a pardon or otherwise has had his position finalised, will be called to give evidence.

In R v Ambrosi (2004) 144 A Crim R 67 (NSW CCA) Whealy J, with whom the others agreed, said (at 71 [16]) that the above remarks were a rule of practice, not a rule of law. See also R v Grant [1944] 2 All ER 311; 30 Cr App R 99 (Birkett J); R v Sharrock [1948] 1 All ER 145; 32 Cr App R 124; R v Payne [1950] 1 All ER 102; 34 Cr App R 43; 41 MVR 19 at 103, 46; R v Collins [1957] NZLR 1176 (CA); R v J (1992) 59 SASR 145; 64 A Crim R 441 at 153, 448; R v McLean and Funk ex parte Attorney-General [1991] 1 Qd R 231; 47 A Crim R 240 at 258, 265 (CCA); R v O’Brien [2001] 2 NZLR 145 at 153 [21] (CA); R v Condren [2003] 3 NZLR 702 (CA). A person charged with a different offence may be a prosecution witness before sentence: Chan Wai-Keung v The Queen [1995] 1 WLR 251; [1995] 2 All ER 438; [1995] 2 Cr App R 194 (PC).

[1.1645]

ACCOMPLICE

51

[1.1625] Should the prosecution call an accomplice witness In R v O’Brien [2001] 2 NZLR 145 (CA) Tipping J delivering the judgment of the court said (at 153 [21]): Having reviewed the authorities and the submissions of counsel, we consider the following general guidance can be given on how the Crown should exercise its discretion and its responsibilities in this area. The Crown should not call any witness if that witness is known to be intractably hostile or likely to give false evidence. Special caution should always be exercised when deciding whether to call an accomplice or a co-offender. If such a witness is known to be unlikely to give evidence favourable to the Crown’s case, the witness should not be called. Furthermore, it will ordinarily be unwise to call an accomplice or co-offender unless the Crown is confident that the witness will give favourable evidence … Circumstances are of such infinite variety that cases may arise in which a different approach is appropriate but if there is to be a departure from these guidelines it would have to be for good reason. The approach outlined is not in conflict with the Crown’s ordinary duty to call all material witnesses. That has never been an absolute proposition. The Crown should inform the defence of the existence of a witness whom it does not intend to call; and should also inform the defence of the reasons why it does not intend to call the witness.

[1.1630] Where witness is on a different charge The appellant was convicted of murder. A prosecution witness, Mr Yip, who was facing drug trafficking charges gave evidence before being sentenced. Mr Yip was given credit for his evidence by receiving a reduced sentence before the instant trial was finished. Appeal dismissed. There had been no miscarriage of justice: Chan Wai-Keung v The Queen [1995] 1 WLR 251; [1995] 2 All ER 438; [1995] 2 Cr App R 194 (PC).

[1.1635] Indemnity See Indemnity at [9.1600].

[1.1640] Judge’s power to exclude a witness’ evidence As to a judge’s power to exclude evidence of a witness see Rozenes v Beljajev (1995) 1 VR 533; 126 ALR 481 (CCA).

[1.1645] Accomplice’s plea of guilty not relevant in chief Evidence of the plea of guilty of an accomplice witness is not relevant to the prosecution’s case and is not admissible in evidence in chief: R v Windsor [1953] NZLR 83 (CA). R v Gallagher (1986) VR 219; 16 A Crim R 215 at 236–237, 32–33 (CCA). Decisions which seem to state a contrary view will probably not be followed, for example, R v Booth [1982] 2 NSWLR 847; (1982) 8 A Crim R 81 (CCA); R v Checconi (1988) 34 A Crim R 160 at 171–172 (NSW CCA). The defence may wish to cross-examine the accomplice on the plea of guilty. That cross-examination may be designed to show the promise to give evidence for the prosecution and the consequent discount on sentence. In such a case the trial judge should direct the jury that the prosecution can appeal the inadequacy of the accomplice’s sentence if the evidence is not in accordance with the promise: R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (at [42] – [45] (CCA)). The cross-examination of the accomplice might be such as to entitle the prosecutor to re-examine on the plea of guilty: R v Pollitt (1990) 51 A Crim R 227 at 239–240 (Vic CCA).

52

ROSS ON CRIME

[1.1650]

[1.1650] Who is not an accomplice An accomplice is not: • an undercover policeman: R v Tyler [1994] 1 Qd R 675; (1992) 62 A Crim R 241 (CA); • an accessory after the fact: R v Gibb and McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 at 167, 397 (CCA). But in R v Parsons (2004) 145 A Crim R 519 (Vic CA) Buchanan J giving the leading judgment said (at 527 [27]): Although an accessory after the fact is not in the category of accomplices, whose status automatically attracts a warning, an accessory, like an accomplice, may have a motive to give false testimony exculpating himself and inculpating others. Whether that is so will depend upon the facts in each case. If it is so, the jury should be warned of the danger of relying on the accessory’s evidence and instructed to look for corroboration.

[1.1655] Incest In R v Ware (1994) 73 A Crim R 17 (Vic CCA) Coldrey J said (at 33): In the case of incest, for the reasons to which I have already adverted, it would be both artificial and confusing to a jury for a judge to be subject to a mandatory requirement that he give the jury a classic accomplice warning merely because the victim, as a result of her age, may technically be characterised as an accomplice.

[1.1660] The unreliability of accomplice evidence A trial judge should tell a jury why the evidence of an accomplice might be unreliable. In R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (CCA) the trial direction by Wood J was approved. Badgery-Parker J giving the leading judgment said (at 178; 328–329): He went into considerable detail as to the reason why the evidence of an accomplice might be unreliable, and the reason why, in those circumstances, the warning was given. His Honour said: There are no doubt many reasons why the evidence of accomplices may be unreliable and I am sure you can think of many yourselves. You may think it is only natural for an accomplice to want to shift the blame from himself to others, perhaps to downplay his role, perhaps to justify his own conduct. In that process the accomplice may construct an untruthful story, he may play up the part of others, he may even blame innocent people. Experience has shown that once an accomplice gives a version to the police, he may feel locked into that story and be unwilling to tell the truth later. Of course you may think, it is a matter for you, that the risk that an accomplice has told an untrue story may be greater where he has been offered a prospect of receiving some reward or immunity from prosecution either for himself or for someone else. It is a matter of common sense. Freedom from prosecution either of an accomplice or someone else who is associated with him, either here or in some other place in return for giving evidence against an accused person, may – although not necessarily will it do so – constitute an inducement or persuasion to give false evidence.

In R v Stewart (1986) 83 Cr App R 327 (CCA) Mustill LJ said (at 335): [T]he courts have emphasised that (as must be clear and simple language that will without any doubt convey to the jury that it is really dangerous to convict on the evidence of the impugned witness alone: and the danger is, of course, the serious risk that the jury will end by convicting an innocent man (Holland [1983] Crim LR 54)).

In Chidiac v The Queen (1991) 171 CLR 432; 52 A Crim R 119; 65 ALJR 207; 98 ALR 368 Judge Smyth in the NSW District Court had directed the jury in a way not criticised by the High Court. Judge Smyth had said: You as judges of fact have got to decide whether these two self-confessed liars have told the truth or not. What I am bound to tell you is that being accomplices as they are that it is dangerous to

[1.1665]

ACCOMPLICE

53

convict on their evidence unless it is corroborated. Not only are they accomplices, not only are they down and out villains, not only are they drug smugglers themselves but they are self-confessed perjurers and liars. I have never heard two witnesses so readily admit that they have lied on oath. Now, that does not mean to say that they may not be telling the truth, but what I am saying to you is you will look very carefully at what they have said before you would hang a dog on their evidence. Really, it is really appalling and you heard it all as much as I did.

The appeal was dismissed because the corroboration of this flawed accomplice evidence was substantial. In R v Ncanana [1948] 4 SALR 399 (South African Court of Appeal) Schreiner JA giving the leading judgment said (at 405): [A]n accomplice is not merely a witness with a possible motive to tell lies about an innocent accused but is such a witness peculiarly equipped, by reason of his inside knowledge of the crime, to convince the unwary that his lies are the truth.

Approved: R v Clark (2001) 123 A Crim R 506 (NSW CCA) per Heydon JA at 547 [67].

[1.1665] The accomplice warning The judge should warn the jury that it is dangerous to convict on the evidence of an accomplice unless it is corroborated: see Peacock v The King (1911) 13 CLR 619. In R v McLachlan (1998) 2 VR 553; 93 A Crim R 557 (CA) Callaway JA said (at 562 [34]): [T]he need for the warning is not related to the evidence the accomplice actually gives. It is related to the experience of the law that accomplices as a class are frequently unreliable. The unreliability against which the warning is directed is antecedent to the evidence the accomplice gives. If it were otherwise, a convincing story might protect the evidence of the accomplice from the close scrutiny that the warning would otherwise require.

In R v Baskerville [1916] 2 KB 658; [1916–17] All ER 38; 12 Cr App R 81 (CCA) Viscount Reading CJ, giving the judgment of the court, said (at 663; 41): [I]t has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence.

In R v Haddad (1988) 33 A Crim R 400 (NSW CCA) Roden J said (at 411): It must be beyond argument that a direction that it is dangerous to convict on the uncorroborated testimony of an accomplice is insufficient and ineffective if it is not accompanied by an explanation of the concept of corroboration.

Followed: R v Hayler (1988) 39 A Crim R 374 at 379 (NSW CCA). There are many other such cases. They include R v Kalajzich & Orrock (1988) 39 A Crim R 415 (NSW CCA); Druett v The Queen (1994) 123 FLR 249 (NT CCA). In Canada the warning is called a “Vetrovec warning”. Such a warning applies to evidence of an accomplice, evidence of a gaol confession or evidence from a tainted witness. The expression comes from Vetrovec v The Queen [1982] 1 SCR 811; (1982) 136 DLR (3d) 89; 67 CCC (2d) 1. See Vetrovec warning at [22.700].

54

ROSS ON CRIME

[1.1670]

See also CS Fishman, “Defense Witness as “Accomplice”: Should the Trial Judge Give a “Care and Caution” Instruction?” (2005) 96 Journal of Criminal Law and Criminology 1-23.

[1.1670] No warning if no issue Where the evidence of an accomplice is not in issue there is no need for a warning. In Jenkins v The Queen (2004) 79 ALJR 252; 211 ALR 116 the court said in a joint judgment (at 258; 124 [33]): If the evidence of an accomplice is not controverted, there will be no issue to which the accomplice’s evidence relates and which the jury will, or may, resolve in reasoning to a verdict of guilty. In that latter case no accomplice warning will be necessary. It will not be necessary because there is no issue for the jury to decide to which the instruction could relate.

See also R v Royce-Bentley [1974] 1 WLR 535; [1974] 2 All ER 347; (1974) 59 Cr App R 51 (at 538; 349; 53) (CA).

[1.1675] The purpose of the accomplice warning In R v Clark (2001) 123 A Crim R 506 (NSW CCA) Heydon JA with whom the others agreed said (at 541 [52]): The purpose of the common law accomplice rule was to guard against the danger of fabrication. “The danger is, that when a man is fixed, and knows that his own guilt is detected, he purchases impunity by falsely accusing others”: R v Farler (1837) 8 C & P 106 at 108; 173 ER 418 at 419 per Lord Abinger CB. In R v Sneesby [1951] QSR 26 Philp J said (at 28): The reason for the rule … is that an accomplice is a person who would be likely to lie in order to save his own neck, or his own liberty. Lord Macaulay says somewhere that an accomplice giving evidence is like “a cormorant fishing for prey with a rope around his neck”. It is fair to assume that an accomplice may be induced to lie in order to get a pardon, or to get immunity from prosecution, or, perhaps, lesser punishment.

[1.1680] Failure to give accomplice warning as a ground of appeal In our opinion, the practice of the court is to quash a conviction where part of the evidence against the accused has been that of an accomplice and when no proper warning as to the use of that evidence has been given, unless there was, apart from the evidence of the accomplice, substantial evidence implicating the applicant and upon which the jury could properly have convicted the applicant even if they had disregarded the evidence of the accomplice: R v Teitler [1959] VR 321 at 330 (CCA).

According to Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258 the true test is whether the accused suffered a substantial miscarriage of justice. The accomplice warning need not be given if it does not serve the interest of the accused. In R v Gallagher (1986) VR 219; 16 A Crim R 215 (CCA) the court said in a joint judgment (at 238; 234): In refusing to give the warning asked for by the Crown, the learned Judge properly observed that the purpose of the giving of the accomplice warning is to protect the position of an accused person and as this court said in R v Anthony [1962] VR 440 at p 446: “In our opinion no case goes so far as to hold or to require us to hold-and we decline to hold-that in such circumstances there is a positive rule of law that such a warning must be given. The rule requiring a warning as to the evidence of an accomplice is one directed to serve the interests of the accused.” Nothing in the case suggests that the interests of the accused would have been served by the giving of the warning. To insist upon giving the customary warning as to the evidence of an accomplice in

[1.1695]

ACCOMPLICE

55

circumstances where to do so could not serve the interests of the accused or would be positively damaging to those interests would be to elevate the rule of practice above the end which it is designed to produce: cf R v Demirok [1976] VR 244, at pp 255–256.

But in R v He (2001) 122 A Crim R 487 (Vic CA) the court held (at 492 [27]) that where a witness is an accomplice a trial judge is “required, as a matter of law, to give the jury an accomplice warning”.

[1.1685] Accomplice not giving promised evidence Where an accused is sentenced and is given a discount on his promise to give evidence against co-offenders, he is expected to honour that promise. A failure will result in a prosecution appeal against sentence. R v J (1992) 55 SASR 145 (CCA). R v Stanley (1998) 7 Tas R 357 (CCA). R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [28] (Greg James J). Such power for a prosecution appeal has found its way into legislation, ie, Crimes Act 1914 (Cth) s 21E; Crimes Act 1900 (ACT) s 358. DPP (Cth) v Haunga (2002) 4 VR 285 (CA). Where the defence makes an issue of that promise, a trial judge should direct the jury on the prosecution’s power to appeal the sentence of the accomplice witness: R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (at [42] – [45] (CCA)).

[1.1690] Sentencing An accomplice who promises to give evidence for the prosecution must first be dealt with (see at [1.1615]). If an accomplice is sentenced the following matters are to be taken into account according to R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 (Greg James J): • The time already spent in custody (at [26]); • The plea of guilty (at [27]); • The value of the promised assistance (at [28]); • The hardship and risk to the accused and his family (at [28] and [30]).

Articles D Lanham, “Accomplices and Transferred Malice” (1980) 96 LQR 110-125; JC Smith QC, “Criminal Liability of Accessories: Law and Law Reform” (1997) 113 LQR 453-467. See also Complicity at [3.4400]; Concert at [3.5100]; and Corroboration at [3.7900].

[1.1695] Possible accomplice direction An accomplice direction should not be given if it would be against the interest of an accused.1

1 R v Anthony [1962] VR 440 at 446; R v Gallagher (1986) VR 219; 16 A Crim R at 238 (VR).

56

ROSS ON CRIME

[1.1695]

An accomplice warning (referring to the evidence) could contain the following: 1. The experience of the law is that it is really dangerous2 to rely, let alone convict, on the evidence of an accomplice alone.3 The danger is that an innocent man will be convicted.4 As a wise judge said nearly 300 years ago, more mischief had come to “good men … by false accusations of desperate villains, than benefit to the public by the discovering and convicting real offenders”.5 2. An accomplice: 2.1 may construct an untruthful story; 2.2 may downplay his role and shift the blame to others; 2.3 may blame an innocent person.6 3. The reason for that is that once guilt is fixed on an accomplice he might want to purchase an advantage by falsely accusing others.7 4. An accomplice who gives a version to the police may feel locked into that story and be unwilling to tell the truth later.8 5. The risk of an untruthful story is even greater when the accomplice had received what he thinks is some reward for himself or another.9 Freedom from prosecution for the accomplice or for another is a reward. So is a light sentence for a significant offence. Especially so if there is a promise of giving evidence for the prosecution. 6. All these amount to an inducement and a risk of false evidence by an accomplice. 7. An accomplice is not merely a witness with a possible motive to tell lies about an innocent accused. But an accomplice has an inside knowledge of the crime. Because of that the accomplice can convince the unwary that what he says is the truth.10 8. Even if you find that the evidence of the accomplice is supported, you must still heed my warning about the risk of evidence of the accomplice.11 9. Evidence which only shows that the accomplice committed the crime is not evidence which can confirm support or strengthen the evidence of the accomplice.12

2 R v Stewart (1986) 83 Cr App R 327 at 335. 3 Davies v DPP [1954] AC 378; [1954] 1 All ER 507; (1954) 38 Cr App R 11 at [399]. 4 R v Stewart (1986) 83 Cr App R 327 at 335. 5 Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 per McHugh J at 615 quoting Sir Matthew Hale. 6 R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 at 178 (NSWLR). 7 R v Clark (2001) 123 A Crim R 506 at 541 [52]. 8 R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 at 178 (NSWLR). 9 R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 at 178 (NSWLR). 10 R v Clark (2001) 123 A Crim R 506 at 547 [67]. 11 R v Baker (2000) 78 SASR 103; 118 A Crim R 150. 12 Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 at 226 [61].

[1.1810]

ACCUSED

57

ACCUSED The accused ................................................................................................................................. Unrepresented accused ................................................................................................................ Accused to be addressed as Mr (or as the case may be) .......................................................... Issuing of subpoena .................................................................................................................... Can introduce or cross-examine in evidence excluded at the instance of a co-accused ......... Absence from trial ...................................................................................................................... Absence from prosecution appeal .............................................................................................. Contempt ..................................................................................................................................... Presence of accused at trial ........................................................................................................ Position in New South Wales ..................................................................................................... Accused disrupts trial ................................................................................................................. Conduct in court as an admission of guilt ................................................................................. Conduct in court: relevance to sentence ....................................................................................

[1.1800] [1.1805] [1.1810] [1.1815] [1.1820] [1.1825] [1.1830] [1.1835] [1.1840] [1.1845] [1.1850] [1.1855] [1.1860]

[1.1800] “the accused” In R v Goonan (1993) 69 A Crim R 338 (NSW CCA) Hunt CJ at CL said (at 348): The practice of referring to an accused person as “the accused” until found guilty and as “the prisoner” thereafter is one of comparatively recent origin … Reference to the reports of criminal trials as late as the immediate post-war period demonstrates that the accused was invariably referred to throughout the trial as “the prisoner”. That was obviously enough because he was inevitably in custody, and so literally he was “the prisoner”.

[1.1805] Unrepresented accused The duties of the judge/magistrate to advise the accused/defendant are discussed in a number of cases including: MacPherson v The Queen (1981) 147 CLR 512; 37 ALR 81; R v Foster (1982) 6 A Crim R 400 (FCA); R v Gidley (1984) 3 NSWLR 168 (CCA); R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211 (CCA); R v Anastasiou (aka Peters) (1991) 21 NSWLR 394; 52 A Crim R 7 (CCA); Birkeland-Corro v Tudor-Stack (2005) 15 NTLR 208; 191 FLR 204 (at 225–226; 215–216 [58] – [62]) (Martin (BR) CJ). In a setting outside the criminal law, McHugh J said: Lack of legal knowledge is a misfortune, not a privilege: Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 481.

See also Dietrich at [4.2100].

[1.1810] Accused to be addressed as “Mr” (or as the case may be) A person accused of a crime should be extended the courtesy of a prefix title. In R v Williams [2001] 1 Qd R 212 (CA) the court said in a joint judgment (at 218 [18] – [19]): There is in our view no good reason why an accused person should not be addressed in the same way during a trial as any other participant in the trial – in this case as “Mr Williams”. Experience suggests that many judges extend to persons who are on trial the courtesy of the prefix title (Mr,

58

ROSS ON CRIME

[1.1815]

Ms, Mrs or Miss as the case may be) followed by their name. Some judges however continue to refer to accused persons as “prisoner” or “accused” or simply by surname. This may be perceived by some as derogatory. … We do not suggest that there is any mandatory requirement as to the mode of address when dealing with accused persons in the presence of a jury. But it should be understood that practices such as those that have been mentioned may adversely affect the quality of the trial, and the perception whether overall it has been fair. Simple courtesy would suggest that a person who is presumed by the law to be innocent until shown to be otherwise should be given the same courtesy as counsel, witnesses and other participants in the court process.

[1.1815] Issuing of subpoena The issuing of a subpoena by an unrepresented accused is discussed in R v McNair (unreported, Vic CCA, 16 April 1982).

[1.1820] Can introduce or cross-examine in evidence excluded at the instance of a co-accused An accused cannot be shut out from putting a defence: R v Gibb and McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 (CCA); Lui Mei-Lin v The Queen [1989] 1 AC 288; [1989] 1 All ER 359; 88 Cr App R 296 (PC). In Lobban v The Queen [1995] 1 WLR 877; [1995] 2 All ER 602; [1995] 2 Cr App R 573 (PC) the Board advised that a trial judge did not have a discretion to reject relevant evidence on behalf of an accused notwithstanding prejudice to a co-accused. One remedy is for the implicated co-accused to apply for a separate trial. A co-accused had a confession excluded because of unfairness. The accused cross-examined it back in. On appeal by the co-accused it was held that the trial was unfair. There should have been separate trials: R v O’Boyle (1991) 92 Cr App R 202 (CA).

[1.1825] Absence from trial In R v Abrahams (1895) 21 VLR 343 (FC) the trial judge gave permission for the accused, who was ill, to be absent from the court. Counsel remained. The conviction and sentence were deemed valid. In R v Vernell [1953] VLR 590 (CCA) the accused conducted himself violently by struggling with warders and shouting and screaming. The trial judge had him removed and the trial proceeded. It was held that the trial (and conviction) were not invalid. In Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 at 43–44, 138–139 the Full Federal Court approved the trial judge’s removal of a disruptive accused to a nearby room where he could follow the proceedings on video. Where a prisoner escapes during trial, the trial may proceed because such escape can be considered a waiver of his right to be present: R v McHardie & Danielson (1983) 2 NSWLR 733; 10 A Crim R 51 (CCA). Other cases R v Jones (No 2) [1972] 1 WLR 887; [1972] 2 All ER 731; (1972) 56 Cr App R 413; R v Jones (1998) 72 SASR 281; 104 A Crim R 399 (CCA); R v Hayward [2001] QB 862; [2001] 3 WLR 125; [2001] 2 Cr App R 156; R v Jones [2003] 1 AC 1; [2002] 2 All ER 113; 2 Cr App R 128 (HL); Tasmania v Bosworth (2005) 153 A Crim R 278 (Tas, Crawford J); R v Mokbel [2006] VSC 119.

[1.1845]

ACCUSED

59

[1.1830] Absence from prosecution appeal Where a respondent to a prosecution appeal against sentence declines to attend, the appeal can proceed in his absence: R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 (CCA).

[1.1835] Contempt A court has the power to require the presence of the alleged contemnor to attend the hearing to answer the charges: Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; 74 A Crim R 549 (CA).

[1.1840] Presence of accused at trial An accused should be present at trial, but that presence is not always necessary. In R v Jones (1998) 72 SASR 281; 104 A Crim R 399 (CCA), Lander J, with whom the others agreed, said (at 294; 412): [T]he more serious the offence the more likely it is that a court would not proceed in the absence of the accused. That is not to say, however, that even where an accused is charged with a most serious offence a court would not, if the circumstances so dictated, allow the matter to proceed in the absence of the accused. Apart from the seriousness of the offence other matters will need to be considered in exercising the discretion to proceed with the trial. Those other matters will include the nature of the charge, the evidence which is to be adduced in support of the charge and the personal circumstances of the accused including the physical and mental condition of the accused … The seriousness of the offence charged, however, will be a factor in the exercise of the discretion.

and later (at 294-295; 412): In my opinion a court may proceed with a trial in the absence of an accused person. It may do so in circumstances where the accused person has indicated that he or she waives a right to be present. An accused person will waive a right to be present when that person, during the currency of the trial, for example, escapes from custody; or where the accused person unlawfully absents himself or herself in breach of a bail agreement; or where, without any good excuse or explanation, the person absents himself or herself from the proceedings. In any of those cases, if the court is satisfied that the accused has waived his or her right to be present during the trial, and that the trial may proceed without any injustice to that person except the injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial. Any discretion to proceed in the absence of the accused, however, should be exercised sparingly.

Other cases R v Abrahams (1895) 21 VLR 343 (FC); Lawrence v The King [1933] AC 699; [1933] All ER Rep 196 (at 708; 200) (PC); R v Jones (No 2) [1972] 1 WLR 887; [1972] 2 All ER 731; (1972) 56 Cr App R 413 (CA); R v Shaw [1980] 1 WLR 887; [1980] 2 All ER 731; (1980) 56 Cr App R 413. As to counsel’s duty to continue to appear when accused absconds, see Counsel at [3.8680].

[1.1845] Position in New South Wales In Registrar, Court of Appeal v Ritter (1985) 74 A Crim R 551 (NSW CA) Kirby P said (at 557): The starting point in this argument was the general principle requiring the presence of an accused person to hear the evidence against him in every serious criminal case. In Lee Kun [1916] 1 KB

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[1.1850]

337; [1914-15] All ER Rep 603; 11 Cr App R 293, Lord Reading CJ, giving the judgment of the Court of Criminal Appeal, stated (at 341) that: “No trial for felony can be had except in the presence of the accused, unless he creates a disturbance preventing a continuance of the trial”. After referring to Stephen’s Digest of Criminal Procedure (1883) at p 194 and Berry (1897) 104 LT Jo 110, his Lordship continued (at 341): Even in a charge of misdemeanour there must be very exceptional circumstances to justify proceeding with the trial in the absence of the accused. The reason why the accused should be present at the trial is that he may hear the case made against him and have the opportunity, having heard it, of answering it. In this State it has been held that, as a general principle, a criminal trial for an indictable offence must be conducted in the presence of the accused: Cornwell [1972] 2 NSWLR 1 at 3. However, absconding whilst on bail might be held a voluntary waiver of the right to be present during the whole trial: see Jones (No 2) (1972) 56 Cr App R 413. In the event of voluntary waiver, the judge has a discretion to continue the proceedings in the absence of the accused and this is so whether the offence charged is a felony or misdemeanour: see also Howson (1981) 74 Cr App R 172; Roser v Moseley (unreported, Yeldham J, 4 May 1979); McHardie and Danielson [1983] 2 NSWLR 733; (1983) 10 A Crim R 51. Contempt being in its nature criminal, the application of these principles to contempt proceedings, by analogy, would seem appropriate: cf Fraser [1984] 3 NSWLR 212; (1984) 15 A Crim R 58.

[1.1850] Accused disrupts trial Principle In R v McHardie & Danielson (1983) 2 NSWLR 733; 10 A Crim R 51 (CCA) the court said (at 739; 57): It seems clearly established by authorities (as it is by common sense) that if the accused person behaves intentionally to make the continuation of the trial impossible, and if such conduct is found by the trial judge to have that effect, he may be removed from the court.

In Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 (FCA) the accused had disrupted the trial. The trial judge had him removed to another room where he was able to participate in his trial by video link. The Federal Court held the trial judge’s actions to be proper. The court went on to say (at 44–45, 139): The direction given by the trial judge to the jury upon its return to the courtroom to explain the absence of the appellant, that they should ignore the events of the morning and draw no inferences adverse to the appellant, in our view was a proper and sufficient direction.

Legislation Some legislation refers to the removal of a disruptive accused from court. WA: Criminal Procedure Act 2004 s 140.

[1.1855] Conduct in court as an admission of guilt In R v Iliev (1989) 41 A Crim R 383 (NSW CCA) the accused had been convicted of indecent assaults. During the prosecutor’s final address, four jurors heard the accused say “I touch her – I not hurt her”. The judge only heard part of the words. It was held that the trial judge was wrong to direct the jury that they could take what was said into account in determining guilt.

[1.1860] Conduct in court: relevance to sentence In R v Kiss (1993) 69 A Crim R 436 (Vic CCA) the court said in a joint judgment (at 440): [W]hile, on some occasions, the behaviour of a prisoner may be relevant to a judge’s sentencing considerations, an attitude of impassivity would appear a quite insubstantial basis for a court to draw adverse conclusions.

[1.2000]

ACQUITTAL

61

ACQUITTAL Effect of acquittal ........................................................................................................................ [1.2000] Tainted acquittal .......................................................................................................................... [1.2005] Prosecution appeal against acquittal on indictment ................................................................... [1.2010]

[1.2000] Effect of acquittal An acquittal is a finding of innocence. In R v Darby (1982) 148 CLR 668; 40 ALR 594 Murphy J said (at 682, 604): [O]nce a verdict of not guilty is returned, judgment of acquittal is entered and that judgment is decisive of innocence.

Further (at 683, 605): Previously this court has made it clear that an accused is to be taken as entirely innocent of any charge of which he was previously acquitted (see Garrett v The Queen (1978) 139 CLR 437; 18 ALR 237 and R v Storey (1978) 140 CLR 364; 22 ALR 47). [The only justification for this is that acquittal is a judgment of innocence.*] … In Australia there are no degrees of acquittal. As between the State and the accused, either every judgment of acquittal is conclusive of innocence or none is. The doctrine that acquittal does not mean innocence is unacceptable in a free society. *This sentence appears only in the ALR. Murphy J must have excised it when authorising its CLR publication.

See also R v Storey (1978) 140 CLR 364; 22 ALR 47 per Gibbs J at 387. In Canada it is accepted that a verdict of acquittal is equivalent to a finding of innocence. In Grdic v The Queen [1985] 1 SCR 810; 19 DLR (4th) 385; 19 CCC (3d) 289 Lamer J delivering the majority judgment said (at 825; 389–390; 293–294): There are not different kinds of acquittals and, on that point, I share the view that “as a matter of fundamental policy in the administration of the criminal law it must be accepted by the Crown in a subsequent criminal proceeding that an acquittal is the equivalent to a finding of innocence” … To reach behind the acquittal, to qualify it is in effect to introduce the verdict of “not proven”, which … has never been … part of our law.

Applied: R v Arp [1998] 3 SCR 339; 166 DLR (4th) 296; 129 CCC (3d) 321 at 382, 330, 354 (CCC). A verdict of acquittal cannot be challenged in a subsequent trial, except in jurisdictions which have introduced exceptions to the double jeopardy principle (see “Double Jeopardy”). Garrett v The Queen (1978) 139 CLR 437; 18 ALR 237; R v Storey (1978) 140 CLR 364; 22 ALR 47. The House of Lords reached a different conclusion. In R v Z [2000] 2 AC 483; [2000] 3 All ER 385 (HL) earlier rape acquittal evidence was allowed to be led to disprove a claimed belief in consent on the instant rape. The case came in for some serious criticism by the author of Cross on Evidence (Eng) Colin Tapper “Clouded Acquittal” (2001) 117 LQR 1-5. In R v Degnan [2001] 1 NZLR 280 (CA) the court followed R v Z [2000] 2 AC 483; [2000] 3 All ER 385 and approved the leading of evidence on a charge where the accused had been found not guilty. Each charge was a homosexual indecent assault. In Washer v Western Australia (2007) 234 CLR 492; 239 ALR 610; 177 A Crim R 386 the accused was convicted of conspiring to possess methylamphetamine.

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[1.2005]

He had previously been acquitted of conspiring with different persons to sell or supply the same drug. The court analysed the authorities. His appeal failed. The two offences were different. The earlier acquittal was thus not relevant.

[1.2005] Tainted acquittal Legislation in some jurisdictions allows a prosecution appeal where there has been what is called a tainted acquittal: for example where a witness or juror has been bribed, or where there is fresh and compelling evidence. The charge must be serious. A retrial can be ordered. NSW: Crimes (Appeal and Review) Act 2001 ss 99–106. Qld: Criminal Code ss 678–678K. SA: Criminal Law Consolidation Act 1935 ss 332–339. Tas: Criminal Code ss 391–396.

[1.2010] Prosecution appeal against acquittal on indictment Legislation in many jurisdictions allows for a prosecution appeal against an acquittal by direction or on a question of law alone.

Legislation NSW: Crimes (Appeal and Review) Act 2001 s 107; SA: Criminal Law Consolidation Act 1935 s 352(1)(ab); WA: Criminal Appeals Act 2004 ss 24(2) and 33 (previously Criminal Code s 688(2)); Tas: Criminal Code s 401(2); Can: Criminal Code s 676(1)(a).

Cases DPP v Cook (2006) 166 A Crim R 234 (Tas CCA); R v Hutchinson (2003) 144 A Crim R 28 (WA CCA); R v Illingworth (2000) 127 A Crim R 302 (WA CCA); R v Punevski (2001) 122 A Crim R 342 (WA CCA); R v Pawsey [1989] Tas R 189; (1989) 44 A Crim R 282 (CCA). See also Davern v Messel (1984) 155 CLR 21; 53 ALR 1 at 51, 23 per Mason and Brennan JJ. In jurisdictions where the legislation does not clearly allow a prosecution appeal against acquittal, no such appeal is competent: R v Stone (2005) 64 NSWLR 413; 157 A Crim R 41 (CCA). See also Appeal at [1.5200]; Conviction at [3.7300]; and Verdict at [22.500].

[1.2210]

ADDRESSES

63

ADDRESSES Meaning ....................................................................................................................................... Counsel must never express a personal opinion ........................................................................ Counsel should not refer to penalty ........................................................................................... Prosecution opening .................................................................................................................... Ten hints on a prosecution opening address .............................................................................. Defence reply .............................................................................................................................. Defence opening ......................................................................................................................... Order of final addresses .............................................................................................................. Final address ............................................................................................................................... Defence appeal based on prosecutor’s final address ................................................................. Ten hints on a closing address ...................................................................................................

[1.2200] [1.2205] [1.2210] [1.2215] [1.2220] [1.2225] [1.2230] [1.2235] [1.2240] [1.2245] [1.2250]

[1.2200] Meaning An address is an advocate’s talk to the court on the issues and the evidence and a critique of both.

[1.2205] Counsel must never express a personal opinion In any address to a court, particularly in a jury case, counsel must never express a personal opinion. In R v Rugari (2001) 122 A Crim R 1 (NSW CCA) Carruthers AJ with whom the others agreed said (at 12 [60]): It is not appropriate for counsel, whether they be for the defence or for the Crown, to express their own views about the evidence, that is a matter for the tribunal of fact, particularly so where that tribunal is a jury.

In R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 (CA) the judgment finishes with the following words: We observe however that it is not appropriate that Crown Prosecutors use the dignity of their office in order to “tell” a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.

In R v Williams (unreported, Vic CCA, 29 August 1980) the prosecutor did not call a certain witness. In his final address he said: [A]s I understand my obligations, I am obliged only to lead evidence of reliable witnesses. It is my view that O’Geary was not a reliable witness.

In the result the court found that the trial judge had repaired the error and the appeal was dismissed. But Gobbo J, delivering the leading judgment, said at (pp 9–10): In my view it is entirely improper for any Counsel, whether prosecutor or Counsel for the defence, to make a statement to a jury of the kind made here. It amounted to a personal expression of opinion that contained the implication that the prosecutor had satisfied himself that O’Geary was an unreliable witness. It also involved the assertion that that was the reason why O’Geary had not been called. It is not for Counsel to express his own opinion on matters not before the jury. That is not to say that he is precluded from making a comment as to a witness actually called, that having regard to the content of his evidence or his demeanour or like considerations, the jury should treat such a witness as reliable or otherwise. But here the comment was not a comment of this kind but an assertion as to a witness not called.

[1.2210] Counsel should not refer to penalty In Attorney-General (SA) v Brown [1960] AC 432; [1960] 1 All ER 734; 44 Cr App R 100 (PC) Lord Tucker said (at 744–745; 113):

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[1.2215]

The Board were informed that it is common practice for counsel in South Australia in their addresses to juries in murder trials to refer to the consequences of their verdict. If such a practice is permitted, it is incumbent upon the judge to instruct the jury that such matters are not their concern and are completely irrelevant to any issue they have to determine.

In R v Costi (1987) 48 SASR 269 (CCA) King CJ said (at 272): It is improper for counsel to refer in the presence of the jury to the maximum penalty prescribed by law for the offence charged or to make any other reference to penalty. This is a well-established rule of practice and observance of it must be insisted upon. If counsel improperly refers to penalty in the course of an address to the jury, it is the duty of the trial judge to intervene immediately in order to stop counsel and to remind the jury that they are not concerned with penalty. The reference to penalty by counsel called forth a reference to penalty in the summing up which was undesirable but was probably rendered inevitable by what counsel had said.

See also R v Neal (1947) ALR 615 at 616 per Dixon J; R v Maloney [2001] 2 Qd R 678 (CA); R v De’Zilwa (2002) 5 VR 408; 133 A Crim R 501 (at 415; 507 [21]) (CA); R v Solomon (1984) 6 Cr App R (S) 120 at 126.

[1.2215] Prosecution opening Generally The prosecutor will outline the evidence on which the Crown relies and explain the nature of the charge(s). In R v Tangye (1997) 92 A Crim R 545 (NSW CCA), Hunt CJ at CL said (at 556): The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage.

The opening should not contain reference to a fact which the prosecutor is not in a position to prove: Clyne v NSW Bar Association (1960) 104 CLR 186; 34 ALJR 87; Tran v The Queen (2000) 105 FCR 182; 180 ALR 62; 118 A Crim R 218 (FCA). The prosecutor has the responsibility of opening the case with fairness and accuracy and avoiding language likely to excite undue prejudice or emotion: Deriz v The Queen (1999) 109 A Crim R 329 (WA CCA) per Parker J at 338–339. Where a prosecutor opens evidence subsequently ruled inadmissible, that is not of itself ground for a discharge of the jury or a successful appeal. The prosecutor should not refer to options open to the accused. In R v Peterson (1979) 41 FLR 205; 27 ALR 641 (FCA) the court said in a joint judgment (at 212; 648): Before leaving the matter we think we should say that in general it is undesirable for the Crown Prosecutor, in opening to the jury, to describe what may happen during the course of the trial, particularly with reference to the options of the accused. In this trial the Crown Prosecutor plainly sailed much too close to the wind. He did so in the course of an elaborate description of the dramatis personae of the courtroom. Generally this serves little, if any, useful purpose. Generations of competent Crown Prosecutors have been content simply to open the facts to which the Crown witnesses will testify, with perhaps an occasional reference to the law in so far as it may be necessary to explain the relevance of the proposed evidence.

[1.2225]

ADDRESSES

65

No undue emotion In Tran v The Queen (2000) 105 FCR 182; 180 ALR 62; 118 A Crim R 218 (FCA) the court said in a joint judgment (at 203; 82–83; 238 [132]): It is no part of the duty of a prosecutor to address a jury in language which is intemperate, inflammatory, or overzealous in nature. In opening for the Crown it is highly undesirable to use unnecessarily emotive language which on any view can only excite sympathy for the victim or prejudice against the accused in the minds of the jury. In R v DDR [1998] 3 VR 580; 99 A Crim R 327 Tadgell JA observed that is was “no part of the duty of counsel for the Crown to excite passion”. In R v M [1991] 2 Qd R 68 a conviction was quashed on the ground that the prosecutor in his address to the jury had so far exceeded the bounds of proper comment and submission that the effect could not be, and was not, repaired by the judge’s summing up. This conduct on the part of the prosecutor constituted a serious irregularity in the trial. See also R v McCullough (1982) 6 A Crim R 274; R v Bazley (1986) 21 A Crim R 19 at 31; R v Pernich and Maxwell (1991) 55 A Crim R 464 and D v DDR [1998] 3 VR 580; 99 A Crim R 327, above.

In Deriz v The Queen (1999) 109 A Crim R 329 (WA CCA) Parker J giving the leading judgment said (at 339 [66]): There is no impropriety … in a fair and balanced presentation of relevant evidence even though it may evoke prejudice or emotion. Nor is a prosecutor required to try and remove from the presentation of the prosecution case, or to neutralise, those relevant aspects which evoke prejudice or emotion. As the authorities continue to emphasise, it is undue prejudice or emotion which is to be avoided: Lyons (1992) 64 A Crim R 101 at 104.

[1.2220] Ten hints on a prosecution opening address 1. Use ordinary English. 2. Start with a short outline of the whole case. 3. Do not refer to evidence in dispute. Never refer to an accused giving evidence. 4. Describe the offence but never refer to the penalty. 5. Speak simply of the presumption of innocence and the onus of proof. 6. Mention proof beyond reasonable doubt but never define it. 7. Give more detail of the evidence. Identify the main witnesses. If appropriate, introduce photographs, plans, or charts. Do not refer to a defence unless it is obvious. 8. Use a good order, especially logical order. Perhaps a chronology is useful. 9. Describe the functions of judge, jury, prosecutor and defence counsel. 10. Open conservatively lest the evidence fails to support you. Avoid emotion.

[1.2225] Defence reply Some legislation allows a defence reply immediately after the prosecutor’s opening address. The reply should be confined to an outline of the matters in issue. Tas: s 401(2) s 371(ab) (reply). NSW: Criminal Procedure Act 1986 s 159(1) and 159(2) (opening address). Vic: Criminal Procedure Act 2009 s 225 (response). SA: Criminal Law Consolidation Act 1935 s 288A. WA: Criminal Procedure Act 2004 s 143 (the defence can give only one opening. That is, after the prosecutor’s opening OR if there is to be defence evidence, at the close of the prosecutor’s case).

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[1.2230]

NZ: Crimes Act 1961 s 367(1A) (opening statement). In R v MM (2004) 145 A Crim R 148 (NSW CCA) Howie J said (at [139]): It is not an opportunity for defence counsel to embark on a dissertation on the onus and standard of proof, or the function of judge and jury, or to anticipate the directions or warnings to be given by the trial judge, or to urge upon the jury the way they should assess the evidence of a witness to be called in the Crown case.

In R v Karapandzk (2008) 184 A Crim R 320 (SA CCA) the defence counsel’s reply outlined the matters in dispute and then expanded it by referring to the evidence. The court said that the reply should simply outline the matters in dispute. A judge in other jurisdictions can give leave to the defence to reply. The defence counsel cannot use such an opportunity to make a full opening address: R v Hansen (2002) 84 SASR 54; 134 A Crim R 227 (CCA).

[1.2230] Defence opening Legislation in some jurisdictions allows defence counsel to open the evidence to be adduced by the defence. Tas: Criminal Code s 371(d). NSW: Criminal Procedure Act 1986 s 159(3). Vic: Criminal Procedure Act 2009 s 231. SA: Criminal Law Consolidation Act 1935 s 288A(2). NZ: Crimes Act 1961 s 367(1).

[1.2235] Order of final addresses In some jurisdictions the defence final address is always after the prosecution’s final address. WA: Criminal Procedure Act 2004 s 145(2). NT: Criminal Code s 363. NSW: Criminal Procedure Act 1986 s 160. Vic: Criminal Procedure Act 2009 s 235(1)(b). SA: Criminal Law Consolidation Act 1935 s 288B(2). ACT: Crimes Act 1900 s 294. NZ: Crimes Act 1961 s 367(3). In other jurisdictions if the defence adduces evidence other than that of the accused, the prosecution addresses last; that is the defence loses the advantage of final address. Qld: Criminal Code s 619. Tas: Criminal Code s 371(d). As to the defence adducing evidence see: DPP Reference: Re Y (1998) 19 WAR 47; 100 A Crim R 166 (CCA). R v Ferguson (2000) 9 Tas R 402; 117 A Crim R 44 (Blow J). The trial judge has power to alter the order of addresses to prevent injustice.

[1.2240]

ADDRESSES

67

[1.2240] Final address Generally JV Barry KC, “The Ambit of Counsel’s Address” (1942) 15 ALJ 368 (at 371–372): [I]n an endeavour to reach some precision but without attempting an exhaustive description of what subjects may be dealt with, it is submitted that counsel is entitled to present his view of the law, subject to correction by the trial judge; to invite the jury to draw all inferences reasonably open on the evidence; to aid and enforce his argument by illustration or hypothetical instances; to state any fact of which a judge would be entitled to take judicial notice; to read to the jury the observations of a judge in a former case, as to the nature and effect of circumstantial evidence, provided he adopts them as his own and makes them part of his address to the jury (R v Courvoisier (1840) 9 C & P 362, per Tindal CJ and Parke B); to advert to the rules of prudence and caution which forensic experience has shown should be observed so that justice may be done.

Not to undermine the judge’s ruling In final address counsel must not undermine a judge’s ruling. In R v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 (CA) Macrossan CJ said (at 627; 30): Counsel should not suggest or endeavour to hint to a jury that the trial judge’s rulings on law are wrong or that they disagree with them.

Pincus CJ said (at 643; 46): It is indeed manifest that every member of the Bar must absolutely accept the judge’s directions to the jury on the law, from which it follows that there is an obligation not to put to the jury arguments against those directions.

Other cases R v Ahlstrom (unreported, Vic CCA, 15 November 1985), p 16. Nor should counsel undermine directions a judge would later give: Livermore v The Queen (2006) 67 NSWLR 659 (CCA).

Prosecutor’s final address must be temperate and fair In Benedetto v The Queen [2003] 1 WLR 1545; [2003] 2 Cr App R 390 (PC) the Board advised (at [54]): In Randall v The Queen [2002] 1 WLR 2237, 2241G, para 10(1) the Board drew attention to the fact that the duty of prosecuting counsel is not to obtain a conviction at all costs but to act as minister of justice. Reference was made to the description of the prosecutor’s role by Rand J in the Supreme Court of Canada in Boucher v The Queen (1954) 110 Can CC 263, 270 which is so much in point in this case that it is worth repeating again: It cannot be over-emphasised that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. This is not to say that a standard of perfection is expected. In practice this is, no doubt, unattainable. But the defendant has an absolute right to a fair trial, as the Board explained in Randall v The Queen [2002] 1 WLR 2237 at p 2251B–D. If the departure from good practice is so gross, or so persistent or so prejudicial as to be irremediable, an appellate court will have no choice but to hold that the trial was unfair and quash the conviction.

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[1.2240]

In R v Roulston [1976] 2 NZLR 644 (CA) the court said (at 654): [I]t has always been recognised that prosecuting counsel must never strain for a conviction, still less adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. Such conduct is entirely inappropriate and a basic misconception of the function of any barrister who assumes the responsibility of speaking for the community at the trial of an accused person. Naturally enough a proper balance needs to be maintained. The view expressed in Halsbury’s Laws of England, vol 10, 3rd ed, par 761 that prosecuting counsel “should regard themselves as ministers of justice assisting in its administration” ought not to lead to the assumption of a role so emasculated as to merit Lord Devlin’s remarks in Trial by Jury (1966) pp 122–123: [I]n some places the pendulum has swung so far, and the ministry has moved so close to the opposition, that the prosecution’s case is not adequately presented, and counsel, frightened of being accused of an excess of fervour; tend to do little except talk of reasonable doubt and leave the final speech on the facts to the judge. The feel and atmosphere of one trial may make it reasonable and even necessary for tactics to be employed that would seem out of place and disproportionate to the circumstances of another. Nevertheless, it is wrong for Crown counsel to become so much the advocate that he is fighting for a conviction and quite impermissible to embark upon a course of conduct calculated to persuade a jury to a point of view by the introduction of factors of prejudice or emotion. If such as situation should develop and there is a real risk that the conduct complained of may have tipped the balance against the accused then an appellate court will not hesitate to follow the safe course and order a new trial.

Approved: R v Kostaras (No 2) (2003) 86 SASR 541 at [38] (CCA). R v Rugari (2001) 122 A Crim R 1 at 10 [47] (NSW CCA). Sanby v The Queen (1993) 117 FLR 218 at 228 (NT CCA). Vella v The Queen (1990) 2 WAR 537; 47 A Crim R 119 (CCA). McCullough v The Queen [1982] Tas R 43; 6 A Crim R 274 at 57–58; 285–286 (CCA). In R v DDR [1998] 3 VR 580; (1997) 99 A Crim R 327 (CA) the prosecutor’s address was inflammatory. The trial judge did not start to try to dislodge the prejudice until a day and a half later. The appeal was allowed and the proviso not applied. Tadgell JA said (at 581; 328): It may be accepted that the Crown prosecutor’s final address to the jury was unwarrantably fervid. It is no part of the duty of counsel for the Crown to excite passion.

In Lyons v The Queen (1992) 64 A Crim R 101 (Tas CCA) Wright J giving the leading judgment said of a prosecutor’s final address (at 104): Crown counsel is not obliged to pander to the idiosyncratic or hypercritical sensibilities of defence counsel. He is not required to reduce his rhetoric to dull and lifeless factual propositions. He should of course avoid hyperbole and not seek to sway the jury by trickery, prejudice or emotion, but he should not be forced to weigh every word he utters for the potential disapproval it may attract in the Court of Appeal. Our system of criminal justice is adversarial. Crown counsel is an advocate, albeit that his role is special in that he should not fight for a conviction at all costs.

Other cases where a conviction has been set aside because of a prosecutor’s improper final address include: R v Smith (2007) 179 A Crim R 453 (Qld CA); R v Teasdale (2004) 145 A Crim R 345 (NSW CCA); R v Kennedy (2000) 118 A Crim R 34 (NSW CCA); R v MRW (1993) 113 A Crim R 308 (NSW CCA). See also Xenophobia at [24.100].

[1.2245]

ADDRESSES

69

Prosecutor not to speak of something not in evidence In R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 (CA) the judgment finishes with the following words (at 306; 356): We observe however that it is not appropriate that Crown Prosecutors use the dignity of their office in order to “tell” a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.

In R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 (CCA) Wood CJ at CL said (at 37 [30]): It is important that the office of prosecutor not be used to tell the jury that which is not supported by the evidence: R v Callaghan [1994] 2 Qd R 300.

(Note: This paragraph does not appear in the report of the case in 53 NSWLR 480.) In R v Eagles [2004] 2 NZLR 468 (CA) the prosecutor told the jury that the prosecution witness had been coached by the accused. The submission was without evidential foundation. Appeal against conviction allowed. Other cases Ramdhanie v State of Trinidad and Tobago [2006] 1 WLR 796 (PC). R v Listiris (2004) 146 A Crim R 547 at 564 [94] – [95] (NSWCCA). R v Pernich (1991) 55 A Crim R 464 (Qld CCA). R v M [1991] 2 Qd R 68 (CA). R v Bazley (1986) 21 A Crim R 19 (Vic CCA). Marsh v Suleyman [1983] 1 VR 483 at 485 (FC).

[1.2245] Defence appeal based on prosecutor’s final address In Livermore v The Queen (2006) 67 NSWLR 659 (CCA) the court in a joint judgment held that the prosecutor’s address had undermined a warning which the trial judge had to give. The court said (at 667 [31] – [32]): This brief review of the authorities relevant to the disposition of this appeal disclose a number of features of a Crown address that have, either alone or in combination, consistently been held to justify the censure of this court. They are: (i) A submission to the jury based upon material which is not in evidence. (ii) Intemperate or inflammatory comments, tending to arouse prejudice or emotion in the jury. (iii) Comments which belittle or ridicule any part of an accused’s case. (iv) Impugning the credit of a Crown witness, where the witness was not afforded the opportunity of responding to an attack upon credit. (v) Conveying to the jury the Crown Prosecutor’s personal opinions. In distilling these features, it is not suggested that a formulaic approach may be taken in assessing whether or not a Crown address exceeds the proper boundaries. On occasions, it may be that the overall tenor or impression made upon a jury by a Crown address which exhibits few, if any, of these features nonetheless gives rise to the prospect that an accused has not received a fair trial.However, where a number of these features are present in a Crown address, there is a very real risk that a ground of appeal based upon the unfairness occasioned to an accused by such an address will succeed.

70

ROSS ON CRIME

[1.2250]

See also David Ross QC, Advocacy (Cambridge University Press, 2nd ed 2007) Ch 11. Street v R [2013] ACTCA 47 (appeal based on closing address dismissed). Counsel at [3.8700]; Judge at [10.900]; Prosecutor at [16.6900]; Xenophobia at [24.100]; and Appendix D: Preparation at [30.100].

[1.2250] Ten hints on a closing address 1. Isolate the issues from your preparation, from the evidence, and if in doubt by confirming them with the judge. 2. Prepare and use a logical order. 3. Use ordinary English. 4. Speak directly to the jury in a natural voice using your own style. Use timing and volume and a little emotion where necessary. Don’t read from notes. Try to appear sincere. 5. Answer your opponent’s strong points. Do not descend to trifles. Never belittle your opponent personally. 6. Do not even allude to the penalty. 7. Never give your own opinion or refer to matters not in evidence. 8. If you refer to law make sure it is correct. Never undermine a judge’s ruling. 9. Refer to the presumption of innocence and the onus of proof. Never define “beyond reasonable doubt”. 10. Draw commonsense conclusions from the evidence. Use homely examples.

ADJOURNMENT The discretion to adjourn ............................................................................................................ Appeal ......................................................................................................................................... Legislation ................................................................................................................................... Adjournment for the convenience of counsel of choice ........................................................... Adjournment for fresh counsel to be instructed ........................................................................ Adjournment to obtain witnesses ............................................................................................... No unnecessary adjournment ...................................................................................................... Undesirability of interrupting a trial .......................................................................................... Illness of the accused or of a witness ........................................................................................ Evidence in support of an application for adjournment ............................................................ Publicity of offences of similar nature ....................................................................................... As a ground of appeal ................................................................................................................

[1.2400] [1.2405] [1.2410] [1.2415] [1.2420] [1.2425] [1.2430] [1.2435] [1.2440] [1.2450] [1.2455] [1.2460]

[1.2400] The discretion to adjourn The judge in exercising his discretion is not confined to regarding the interests of the accused. He is entitled to regard the interests of justice which may well be a different matter: R v Cox [1960] VR 665 at 667 (CCA). See also R v West [1960] NZLR 555 (CA); Superliquorman Hotels Ltd v Napier City Council [1984] 1 NZLR 58 (CA);

[1.2420]

ADJOURNMENT

71

McInnis v The Queen (1979) 143 CLR 575; 27 ALR 449; Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385; Abdallah v The Queen [2015] NSWCCA 233.

[1.2405] Appeal Onus v Sealey (2004) 149 A Crim R 227 (Vic, Kaye J) was an appeal against a magistrate’s failure to adjourn. His Honour said (at 237 [32]): It is well established that the decision, whether to accede to or to refuse an application for an adjournment, is an exercise of a judicial discretion. Appellate courts rarely interfere with a trial judge’s exercise of that discretion. However, where the result of a refusal of an adjournment might be to prevent a party from presenting his or her case as fully as necessary and within the limits of the law, then an appellate court will interfere with a trial judge’s exercise of his discretion. Such an intervention by an appellate court occurs where it is necessary to prevent an injustice to one or other of the parties caused by the failure of the lower court to grant the adjournment. (authorities cited)

[1.2410] Legislation Qld: Criminal Code s 592; WA: Criminal Procedure Act 2004 ss 38, 75, 89; Tas: Criminal Code s 347; NT: Criminal Code s 334; NSW: Criminal Procedure Act 1986 s 40; Vic: Criminal Procedure Act 2009 ss 20, 331; SA: Supreme Court Act 1935 s 46; Magistrates Court Act 1991 s 17; District Court Act 1991 s 22.

[1.2415] Adjournment for the convenience of counsel of choice A court will rarely adjourn a case for the convenience of counsel of the accused’s choice: R v Williams (2007) 16 VR 168 at 178–181 [58] – [71] (King J).

[1.2420] Adjournment for fresh counsel to be instructed In R v McGill [1967] VR 683 (CCA) the trial judge refused an adjournment for an hour or two to allow counsel freshly briefed to obtain instructions. Finding the refusal unreasonable, the court said (at 685–686): The factors which led us to the conclusion that his Honour’s decision was unreasonable are these: in the first place, the adjournment sought was short; in the second place, there was no reason to think that this adjournment would appreciably embarrass or inconvenience the Crown; in the third place, lack of instructions to or lack of preparation by counsel might and probably would handicap the defence; in the fourth place, the refusal created a situation inconsistent with the requirement that justice should appear to be done. … It is essential to the administration of justice that the standards required to secure a fair trial according to law should be insisted upon. One of these standards is that an accused person must be given full opportunity to present his defence.

In Superliquorman Hotels v Napier City Council [1984] 1 NZLR 58 (CA) counsel was briefed but unable to appear. An adjournment was refused by the trial judge. The appeal was allowed. In McInnis v The Queen (1979) 143 CLR 575; 27 ALR 449 Barwick CJ said (at 579):

72

ROSS ON CRIME

[1.2425]

[A] trial judge must also have in mind the interests of the Crown and of the witnesses, including a prosecutrix in such a case as the present, and of the jurors. In the present case, the case had been specially fixed for trial on the day in question, the jurors had been summoned and the witnesses were present. It is indeed a close balance and a matter of judgment whether in those circumstances the chance that the refusal of legal aid might on appeal or review be reversed outweighed other considerations. I would not be prepared myself to say that the trial judge erred in his exercise of judgment and in his refusal of an adjournment. But in so saying, I would emphasise the need for the most careful weighing of the interests of the accused, of Crown witnesses, jurors and, generally, of the administration of justice, when an adjournment is sought in order to obtain or to endeavour to obtain the services of counsel for the conduct of the defence. (Special leave to appeal refused.)

See also Gould v Reid [1990] 4 WAR 249 (Wallwork J).

[1.2425] Adjournment to obtain witnesses Where an adjournment is sought to obtain witnesses it must be shown that the evidence of the witness is necessary, that there has been no neglect in attempting to obtain the attendance of the witness and that the witness can be present on the adjourned date: R v McNamara [1965] VR 372 at 373 (CCA); R v Callaghan [1966] VR 17 (CCA); R v Jones [1971] VR 72 (CCA); Ex parte Sloane (1983) 8 A Crim R 424 (ACT, Kelly J); Cucu v District Court of NSW (1994) 73 A Crim R 240 (NSW CCA); Director of Public Prosecution (NSW) v Ozakca (2006) 68 NSWLR 325 (Rotham J). In Thornberry v The Queen (1995) 69 ALJR 777 alibi witnesses were sought. There was no adjournment of the trial. The High Court quashed the conviction. In HG v The Queen (1999) 197 CLR 414; 160 ALR 554, Gummow J said (at 450; 581 [126]): [T]he question whether the appellant was deprived of a chance of acquittal is not to be looked at as if the outline given by the materials to which the judge had regard in refusing the adjournment was in the form of evidence sought to be tendered at the trial. The fundamental question is whether, as the Full Court of the Supreme Court of Victoria explained in R v Jones [1971] VR 72 at 76, citing R v McGill [1967] VR 683 at 686, with reference to the proviso to s 568 of the Crimes Act 1958 (Vic), the denial of the adjournment meant that the accused was not given a full opportunity to present his defence, a “basic standard required for a proper administration of justice”.

[1.2430] No unnecessary adjournment Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35 was an appeal from conviction for the murder of Anita Cobby. Mason CJ and Toohey J said (at 99; 38; 365), speaking of the adjournment application because of adverse publicity: It is important that anyone charged with a criminal offence be brought to trial expeditiously. Not only is that in his or her own interest but it is in the interest of witnesses and also, in cases such as the present, in the interest of the family of the victim. It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily: Murphy v The Queen (1989) 167 CLR 94 at 99; 86 ALR 35 at 38; 40 A Crim R 361 at 365.

[1.2435] Undesirability of interrupting a trial As a general rule, once a jury has been impanelled and the hearing has commenced it is undesirable that there should be any prolonged adjournment of a criminal trial: R v Hally [1962] Qd R 214 (CCA) per Gibbs J at 220.

[1.2455]

ADJOURNMENT

73

See also Appeal not to fragment criminal proceedings at [1.5230].

[1.2440] Illness of the accused or of a witness An adjournment may be granted due to the illness or other cause which would prevent the accused from giving the trial proper attention: R v Miles [1955] QWN 29 (Macrossan CJ); Walker v The Queen (1998) 101 A Crim R 152 (WA CCA). If the illness is serious, the jury will be discharged: R v Grimwade (1990) 51 A Crim R 470 (Vic, McDonald J). In Superliquorman Hotels v Napier City Council [1984] 1 NZLR 58 (CA) the hotel was charged with offences against council planning. A defence witness could not attend court because his wife was ill. The District Court refused the adjournment. Appeal allowed.

[1.2445] Lack of representation and unfairness In Walker v The Queen (1998) 101 A Crim R 152 (WA CCA) the accused at trial had psychiatric difficulties, was unrepresented, and was unaware that his trial was on or even that he was coming to court. He was clearly incapable of defending himself. The appeal was allowed. Franklyn J giving the leading judgment said (at 161): [I]f there is good reason for serious doubt that through circumstances beyond his control, (and conceivably in some other circumstances), an unrepresented accused has had no reasonable opportunity to either obtain legal representation or otherwise prepare for trial, an adjournment sufficient for that doubt to be put to rest should be granted. It is clear that the learned trial judge did not consider or adequately consider the question whether the trial was likely to be unfair if the accused were forced to go on.

[1.2450] Evidence in support of an application for adjournment An application for adjournment should be based on evidence. Assertions of counsel are not sufficient. In R v Jones [1971] VR 72 (CCA) Winneke CJ delivering the judgment of the court said (at 78): Many applications for adjournment are made which are plainly without foundation. If these applications are to be made in a bona fide way, then we think it is highly desirable that they should be supported by evidence, either verbal evidence or evidence on affidavit. Unless that course is taken, the learned judges to whom the applications are made are left with assertions being made one way and assertions being made the other way, and there is no real opportunity of having the matter properly tested by evidence properly authenticated and placed before the court.

[1.2455] Publicity of offences of similar nature In R v Thatcher (1985) 37 SASR 597 King CJ said (at 599): In general it would be wrong for courts to postpone trials simply because there has been recent publicity of a general character concerning the administration of justice or concerning crime or concerning crime of the particular type which is charged against the accused person… It is common where there has been recent publicity concerning the particular type of crime involved in the case for the judge to ask the jury panel whether any prospective juror might, as a result of that publicity, be unable to bring a fair and unprejudiced mind to the consideration of the case. Moreover, in such cases the judge might of his own initiative or at the request of counsel give a more than ordinarily strong warning against being affected by publicity and a more than ordinarily strong direction that the jury should have regard only to the evidence given in the case in court.

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ROSS ON CRIME

[1.2460]

See also Publicity at [16.8500].

[1.2460] As a ground of appeal In Bates v McDonald (1985) 2 NSWLR 89; 60 ALR 245; 17 A Crim R 53 (CA) Kirby P said (at 97; 252; 60): Appeal courts will rarely interfere in the exercise of the discretion of a trial judge to grant or refuse an adjournment, unless it could be shown that the judge had not exercised his discretion judicially, or had acted on a wrong principle.

See also Maxwell v Keun [1928] 1 KB 645; [1927] All ER Rep 335 at 653, 338–339. Myers v Myers [1969] WAR 19 (Jackson J); Bloch v Bloch (1981) 55 ALJR 701; 37 ALR 55 (HC); McColl v Lehmann [1987] VR 503; 24 A Crim R 234 (Kaye J); R v Plunkett (1997) 69 SASR 452 (CCA); Walker v The Queen (1998) 101 A Crim R 152 (WA CCA).

ADMISSION Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Formal admissions ...................................................................................................................... Admission of fact should be in writing ..................................................................................... Withdrawal of admission ............................................................................................................ Admission by counsel cannot be a basis for conviction ........................................................... Admission by an accused ...........................................................................................................

[1.2600] [1.2605] [1.2610] [1.2615] [1.2620] [1.2625] [1.2630]

[1.2600] Meaning An admission is a formal acknowledgement by a party that there will be no contest on a matter of fact. Legislation allows the judge or magistrate to accept that concession as sufficient proof. Admission can also mean confession. This part refers only to the former meaning. In ML v The Queen [2011] VSCA 193 the court emphasised that a statement is not an admission unless it is adverse to the maker’s interest and that this was the case at the time the statement was made.

[1.2605] Legislation Uniform Evidence Acts s 184; Qld: Criminal Code s 644; WA: Evidence Act 1906 s 32; Tas: Criminal Code s 361A(a); SA: Evidence Act 1929 s 34; NZ: Evidence Act 2006 s 9; Can: Criminal Code s 655.

[1.2620]

ADMISSION

75

Cases These sections refer to admissions of fact. Admissions of law cannot be made to the detriment of the client: R v Stokes & Difford (1990) 51 A Crim R 25 (NSW CCA) Hunt J said (at 32): Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble (1971) 124 CLR 107 at 133; Galambos (1980) 2 A Crim R 388 at 395, 396–397.

There must be authority to make an admission of fact: In R v Balchin (1974) 9 SASR 64 (CCA) the court said in a joint judgment (at 67): [I]t could well constitute a breach of professional duty to an accused person if his counsel, without specific authority to do so, should make any admission which could be detrimental to the interests of the accused, or which otherwise might have the effect of depriving him of a fair trial.

Yet in R v Hughes (2007) 99 SASR 161 (CCA) the court held that the section did not have to have personal knowledge of the matter of fact that was the subject of the admission. The prosecution can concede a fact in favour of an accused: R v Maes [1975] VR 541 at 550–552 (CCA); R v Forde (1986) 19 A Crim R 1 at 9 (Vic CCA). In NT Criminal Code s 379(2) empowers a prosecution admission.

[1.2610] Formal admissions In a complicated trial a court will encourage formal admissions. In R v Mitchell [1971] VR 46 (CCA) the court said in a joint judgment (at 64): Where such a mass of evidence and length of trial is involved, an intolerable burden is imposed on all concerned and particularly upon the jury. Whilst a community, such as ours, which is regulated by the principles of the common law, cannot concede that any case is too complex or too extensive to be heard and determined in due process of law, there is a real danger that the system will be frustrated and brought into public disrepute, unless those concerned with the conduct of the trial have the courage and a sense of responsibility to take advantage of the means provided for delimiting the issues, such as s 6 of the Evidence (Amendment) Act 1965.

[1.2615] Admission of fact should be in writing In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Lusher J said (at 702; 409): [I]n a criminal trial an admission, and a waiver is in the nature of an admission, can only be made by an accused on the advice of counsel, sensibly and usually in writing, which is difficult to obtain or give in the run of a vigorous cross-examination. Lastly, an accused cannot be required to make an admission or even to consider one.

In Byrne v Godfree (1997) 96 A Crim R 197 (WA) Walsh J ruled (at 202): Admissions in criminal proceedings must be made with particularity and formality.

[1.2620] Withdrawal of admission In R v Shalala (2007) 17 VR 133; 176 A Crim R 183 (CA) the defence in opening said that there would be no contest about DNA evidence. Later evidence cast doubt on that concession but the trial judge would not allow the defence to withdraw it. Appeal against conviction allowed. The court said in a joint judgment (at 138; 189 [22]): In the context of an adversarial and accusatorial proceeding, the making of admissions is understandably a valuable process which avoids unnecessary cost and inconvenience to the community and those affected. These are clearly important objectives but they cannot be attained at the expense of the fair trial of the accused.

76

ROSS ON CRIME

[1.2625]

[1.2625] Admission by counsel cannot be a basis for conviction A court will not convict a person upon admissions made by his counsel, there being no evidence: Rattray v Roach (1890) 16 VLR 165 (FC) per Hood J. An admission need not be made by the accused. The New South Wales procedure for when counsel makes the admission is referred to in Smart v Pepper and Carswell (1987) 26 A Crim R 140 (NSW). Grove J said (at 142–143): In a footnote to paragraph 1148, R Watson and H Purnell, Criminal Law in New South Wales, the editors accurately state: The customary practice is for the admissions to be reduced by writing and handed to the Judge who asks the accused “Do you on the advice of your counsel admit …?” reading aloud to the accused the contents of the document. It is by no means the case that this customary, and no doubt prudent, practice is the exclusive method by which an admission pursuant to s 404 may be taken. One requisite of the section is the advice of counsel. The other specification of the section is that it is the accused who may make the admission. It seems to me that there may be many ways by which a tribunal could be satisfied that an accused was making such an admission on the advice of his counsel. I do not exhaust the possibilities but there is the customary method referred to in the practice text; the accused may articulate the terms of his admission and his counsel inform the court of his advice; the whole of the admission and the circumstance of advice by counsel may be simply reduced to writing and signed by the accused without the judge undertaking the process of oral confirmation or, in my view, counsel may make the admission in the presence of hearing of the accused. In the last-mentioned case the advice of counsel (which includes attorneys – s 4) is implied from his making of the statement and the assent of the accused to the admission from his continued retainer of his advocate. It should be observed that the use of such a procedure inheres a risk of a subsequent claim of misunderstanding or the like and this can easily be avoided by following the customary practice. No claim of that type is here advanced.

Approved: R v Postiglione (1991) 24 NSWLR 584; 57 A Crim R 301 (CCA).

[1.2630] Admission by an accused An admission on a particular issue by an accused does not in principle preclude the prosecution from adducing further evidence on that issue: R v Longford (1970) 17 FLR 37 (ACT, Gibbs J); R v Smith [1981] 1 NSWLR 193; (1980) 2 A Crim R 245 (CCA); R v Raabe [1985] 1 Qd R 115; (1984) 14 A Crim R 381 (CCA). As to the position under Uniform Evidence Acts s 184 see R v Frazer (2002) 128 A Crim R 89 (NSW CCA) per Dowd J (at 96–97 [45] – [46]). The accused must have some knowledge of the admitted fact for it to have probative force. In R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98 Brennan CJ wrote in a footnote (184; 113; 113 [30]): In criminal cases, admissions of a fact of which the confessionalist has no personal knowledge are sometimes treated as having no probative force: see Surujpaul v The Queen [1958] 1 WLR 1050; [1958] 3 All ER 300; Comptroller of Customs v Western Lectric Co Ltd [1966] AC 367 at 371; R v Hart [1979] Qd R 8; but cf R v Brady (1980) 2 A Crim R 42; Anglim & Cooke v Thomas [1974] VR 363 at 372; R v Longford (1970) 17 FLR 37.

It is unclear if the prosecution can adduce evidence in relation to a factual matter upon which the accused has made a formal admission. The better view is that no such evidence can be adduced: Stubley v WA [2011] HCA 7, per Heydon J.

[1.2815]

ADVOCACY

77

See also John Goldring, “Can Exculpatory Statements Be Admissions” (2004) 25 Aust Bar Rev 14–28. Confession at [3.5300].

ADVOCACY A description ............................................................................................................................... Observations of judges ............................................................................................................... The demands of advocacy .......................................................................................................... Ten aspects of advocacy .............................................................................................................

[1.2800] [1.2805] [1.2810] [1.2815]

[1.2800] A description Advocacy is the art of persuading a court to give the desired result.

[1.2805] Observations of judges In Karidis v General Motors Holdens Pty Ltd [1971] SASR 422 (FC) Bray CJ said (at 426): Advocacy involves a continual series of choices and the factors governing the exercise of any particular choice are not known to the court.

In TKWJ v The Queen (2002) 212 CLR 124; 133 A Crim R 574; 193 ALR 7 Gleeson CJ said (at 131, 12, 579 [16]): Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. … It is the responsibility of counsel to make tactical decisions, and assess risks.

In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ said (at 685; 392): Damage control is part of the art of advocacy.

In D’Orta Ekenaika v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 McHugh J said at 38 [104]: Advocacy in the courts is a unique profession. Advocates play an indispensable part in the administration of justice.

[1.2810] The demands of advocacy And first, has he a healthy frame, capable of enduring long-continued exertion of mind and body, the confinement of the study, the excitement of practice, the crowded court by day, the vigil of thought by night? Can he subsist with a sleep of five hours? Can he, without dyspepsia, endure irregular meals – hasty eatings and long fastings? If he is not blessed by Nature with the vigorous constitution that will bear all this, and more, let him not dream of adventuring into the arena of Advocacy: Edward W Cox, The Advocate, London 1852, p 10.

[1.2815] Ten aspects of advocacy 1. Advocacy is winning cases. Granted there are duties and rules on practitioners. But it is winning cases nonetheless. 2. It is the art of persuasion. It consists in persuading a judicial officer or a jury to do what they don’t want to do, what they may have grave misgivings about. The good advocate gives them no alternative.

78

ROSS ON CRIME

[1.3000]

3. Most cases win or lose themselves on their own evidence or on their own points of law. A good advocate will win a difficult case. A poor advocate will lose a case that should be won. 4. Advocacy is neither oratory nor philosophy. A good advocate will be in command of general principles of law, and have some insight into human nature. 5. Advocacy is a learned craft. A good advocate is artistic. 6. A good advocate has a presence and a personality and an interesting voice. 7. There are special physical demands on being an advocate. 8. Preparing a case is relentless work. Read and note. What else is needed? Be old fashioned. Examine the exhibits under a magnifying glass. Develop a scheme of the case. After mastering the case and the law, a good advocate will next work out what to do and then how to do it. Compared with this hard process the performance in court is child’s play. 9. A good advocate follows these rules in court: (a) Maintaining eye contact. Noting the evidence should not be necessary. (b) Being polite to all. Politeness gives forceful advocacy a keen edge. (c) Never expressing a personal opinion. An advocate makes a submission. (d) Never thanking the judicial officer other than for a rare personal favour. The phrase to use is “may it please your Honour”. (e) Maintaining the appearance of an even temper. (f) Never bickering with an opponent. (g) Not being afraid to stay silent. 10. Painstaking preparation means luck will run your way. See also David Ross QC, Advocacy (Cambridge University Press, 2nd ed, 2007).

AFFRAY Definition ..................................................................................................................................... Type of conduct .......................................................................................................................... Legislation ................................................................................................................................... No defence of consent ................................................................................................................ Joinder of accused ...................................................................................................................... Aider and abettor: principal in the second degree .................................................................... Sentencing ................................................................................................................................... Sentence ......................................................................................................................................

[1.3000] [1.3005] [1.3010] [1.3015] [1.3020] [1.3025] [1.3030] [1.3035]

[1.3000] Definition Affray is a continuing offence which has the following elements: 1. A violent disturbance of the peace by one or more persons. 2. In public or private. 3. In such circumstances as a bystander of reasonable firmness of character might reasonably be expected to be terrified.

[1.3010]

AFFRAY

79

In I v DPP [2002] 1 AC 285; [2001] 2 All ER 583; [2001] 2 Cr App R 216 (HL) Lord Hutton, in a judgment with which the other Law Lords agreed, said (at 295; 591; 226 [17]: The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face-to-face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith [1997] 1 Cr App R 14 at 17: It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on. His Lordship later said (at 300; 596; 232 [28]): … a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.

A person acting in self defence is not guilty of affray: R v Honeysett (1987) 10 NSWLR 638; 34 A Crim R 277 (CCA). A boxing match is not necessarily an affray: Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 (McInerney J) at 377. As to whether an affray which results in death is murder, see R v Annakin (1988) 17 NSWLR 202; 37 A Crim R 131 (CCA).

[1.3005] Type of conduct In R v Smith [1997] 1 Cr App R 14 (CA) the court examined the nature of the offence. Typically it involves a continuous course of conduct. Lord Bingham CJ delivering the judgment said (at 17): Different considerations may, however, arise where the conduct which is alleged to constitute an affray is not continuous but falls into separate sequences. The character of the conduct relied on in each sequence may in such a case be quite different and so may the effect on persons who are (or might hypothetically be) present at the scene. The possibility then arises that half the jury may be persuaded that the first sequence amounted to an affray and the second did not, and the other half of the jury may be persuaded that the second sequence amounted to an affray and the first did not. The result would then be that there was no unanimous jury verdict in support of the conviction based on either sequence.

Approved: R v Mead [2002] 1 NZLR 594 at 602 [36] – [38] (CA). Colosimo v DPP (NSW) (2005) 64 NSWLR 645; 155 A Crim R 573 (at 659–660; 587–588 [51] – [52]) (Johnson J).

[1.3010] Legislation The common law has largely been repealed and replaced by legislation. Qld: Criminal Code s 72; WA: Criminal Code s 71; Tas: Criminal Code s 80 (affray); NT: Criminal Code s 69 (going armed in public); Summary Offences Act s 47AA (violent disorder); NSW: Crimes Act 1900 s 93C (affray); Vic: Common law;

80

ROSS ON CRIME

[1.3015]

SA: Common law abolished: Criminal Law Consolidation Act 1935 Sch 11 cl 1(20); ACT: Crimes Act 1900 s 391 (fighting in a public place); Eng: Public Order Act 1986 s 3.

[1.3015] No defence of consent In R v Raabe [1985] 1 Qd R 115; (1984) 14 A Crim R 381 (CCA) Connolly J, in examining consent to fight, said (at 118; 383): It is obvious that a person was no more capable at common law of consenting to an affray or a duel than to be injured in a prizefight.

[1.3020] Joinder of accused In Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198; 27 A Crim R 103 (CCA) McHugh JA said (at 213; 117): Cases concerning riot and affray where the occurrences are contemporaneous or the facts closely connected are cases where prima facie it is proper to join separate counts against offenders in the one indictment or summons: cf R v Assim [1966] 2 QB 249 at 261 and Chief Constable of Norfolk v Clayton [1983] 2 AC 473 at 491–492. Ultimately, it is a matter for the trial judge’s discretion whether it is proper in the interests of justice to permit several offenders to be tried together: Assim [1966] 2 QB 249 at 259; and Clayton [1983] 2 AC 473 at 492.

See also Joinder at [10.300].

[1.3025] Aider and abettor: principal in the second degree In R v Allan [1965] 1 QB 130; [1963] 2 All ER 897; (1963) 47 Cr App R 243 (CCA) Edmund Davies J, delivering the judgment of the court, said (at 138; 900–901; 249): [B]efore a jury can properly convict an accused person of being a principal in the second degree to affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect, as the appellants’ counsel rightly expressed it, to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence.

Approved: R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [72] (CCA).

[1.3030] Sentencing In R v McCormack [1981] VR 104; (1980) 2 A Crim R 405 (CCA) the court said, in a joint judgment, (at 108; 409): The level of violence used and the scale of the affray or riot are factors relevant to sentence: Principles of Sentencing (2nd ed), p 110. A riot usually carries with it an inherent danger of injury to persons or property or both. There is a danger that members of a crowd will respond to what has been called, “the psychology of the crowd”: Wright v McQualter (1970) 17 FLR 305 at 318. The danger is great when the mob can be described as a mob threatening violence. With such a mob violence may suddenly erupt to a high level and may quickly be directed in new directions. In our opinion the present or potential danger of injury inherent in a particular riot is a consideration relevant to the sentence of any rioter. Compare Wise v The Queen [1965] Tas SR 169 at 202–203.

[1.3035] Sentence A person sentenced for affray is often sentenced for other offences such as causing injury. This part contains only the sentences for affray. References to times are for imprisonment. R v Tierney (1990) 51 A Crim R 446 (Vic CCA): two years.

[1.3200]

AGE

81

DPP v Johnston (2004) 10 VR 85 (CA): on one count 21 months; on another 18 months with suspension of parts of the sentences. R v Rongonui-Chase (2004) 144 A Crim R 242 (Vic CA): on one count 18 months; on another six months. R v Graham (2004) 62 NSWLR 252 (CCA): two years suspended on entering bond. Bond breached. R v Williams (2004) 148 A Crim R 335 at 328 [9] (NSW CCA): one and a half years. See also Riot at [18.3600]; and Unlawful assembly at [21.300].

AGE Strict proof is necessary ............................................................................................................. Birth certificate ............................................................................................................................ Evidence to connect the witness with the birth certificate ........................................................ Appearance as evidence of age .................................................................................................. Recollection of witness to show age .......................................................................................... Belief as to age ........................................................................................................................... Criminal capacity of a child ....................................................................................................... Possible direction on belief of age in a sexual case .................................................................

[1.3200] [1.3205] [1.3210] [1.3215] [1.3220] [1.3225] [1.3230] [1.3235]

[1.3200] Strict proof is necessary Many offences have as an element the age of a child. Carnal knowledge (or sexual penetration), maintaining a sexual relationship with a young person, and supplying liquor to underage persons are examples. Youth of a victim can be an aggravating factor. So in Dwyer v Bridges; Ex parte Bridges [1951] St R Qd 90; 45 QJPR 105 (FC) if the victim were under 17 years, then the assault on her was aggravated. In all such cases strict proof of age is necessary as in any element. Where a defendant’s age determines when a charge can be laid at all, and if so what court can deal with the charge, the relevant age is that at the time of the commission of the alleged offence. Seears v Oldfield (1985) 36 NTR 65; 75 FLR 265; 18 A Crim R 281 (Muirhead ACJ). Braun v The Queen (1997) 6 NTLR 94; 137 FLR 423; 112 NTR 31; 92 A Crim R 102 (CCA). Shah v Police [2006] NZLR 425 (HC Asher J) was about whether children passengers in a car were of an age that required them to wear seat belts. Asher J held (at 428 [14]): There are four ways in which admissable evidence of age can be adduced: (a) by production of a birth certificate; (b) by the evidence of the persons concerned, either in court or expressed to others as their opinion and hearsay knowledge of their age; (c) by the evidence of others who have known the person as to when the person was born, if they have direct or hearsay knowledge of that, or have knowledge of other indicia of age, such as when they went to school; and (d) by the opinion evidence of persons other than the persons themselves as to age, based on outward features. These can include factors such as size, puberty, hair, skin and many other external indicia that are taken into account in such assessment.

82

ROSS ON CRIME

[1.3205]

None of these alone will necessarily constitute proof beyond reasonable doubt as to age, although with the exception of the birth certificate on its own, they may. It will be a question of fact in each case.

[1.3205] Birth certificate Legislation As to the admissibility of birth certificates: Uniform Evidence Acts ss 69(2)(b) and 156; Qld: Evidence Act 1977 s 74; Births, Deaths and Marriages Act 2003 s 44(7); WA: Births, Deaths and Marriages Registration Act 1998 s 57; Tas: Births, Deaths and Marriages Registration Act 1999 s 46(2); NT: Births, Deaths and Marriages Registration Act 1996 s 44(2); NSW: Births, Deaths and Marriages Registration Act 1995 s 49(2); Vic: Births, Deaths and Marriages Registration Act 1996 s 46(2); SA: Births, Deaths and Marriages Registration Act 1996; Evidence Act 1929 s 65A; ACT: Births, Deaths and Marriages Registration Act 1997 s 65; NZ: Births, Deaths and Marriages Registration Act 1995 s 71.

Cases Where a birth certificate is relied on by the prosecution, some evidence is required to identify the person with the person named in the certificate. The rule against hearsay prevents a witness from giving admissible evidence of the place or date of birth of the witness. In R v Young [1923] SASR 35 (FC) Murray CJ said (at 38): But a statement by the child himself as to his own age is not admissible, because it must necessarily be founded upon hearsay: R v Rishworth (1842) 2 QB 476 at 487.

Poole J said (at 57): A person cannot prove by his own statement the date of his own birth. R v Rishworth (1842) 2 QB 476; R v Day (1841) 9 C & P 722, are sufficient authorities for that proposition. His statement must of necessity be in the nature of hearsay, and on principle cannot be admitted.

[1.3210] Evidence to connect the witness with the birth certificate In R v Rogers (1914) 10 Cr App R 276 the accused had been convicted of carnal knowledge of a girl under the age of 13 years. The complainant gave evidence. The birth certificate was tendered. Reading LCJ said (at 278): No evidence was given identifying the child with whom the offence was alleged to have been committed with the child whose birth was registered in the certificate produced. Some evidence is necessary to connect the girl with the certificate, and that evidence is entirely absent, although it could obviously have been given apart from the mother. On that ground we must give effect to the law which has been laid down in previous cases, notably R v Weaver (1873) LR 2 CCR 85; 12 Cox CC 527, which was considered in R v Bellis (1911) 6 Cr App R 283. It was argued by Mr Lawrance that, if we rule as we have done, it will be impossible to prove the offence in many cases: that is a view which the court does not take. The conviction must, therefore, be quashed.

[1.3220]

AGE

83

See also Carlton and United Breweries v Cassin [1956] VLR 186 (Sholl J). R v Tomes [1917] VLR 78 (FC). In Sweeney v Denness (1954) 56 WALR 52 Dwyer CJ ruled (at 55): If direct testimony is the proof to be adduced, I would be inclined to think that perhaps the mother is not necessarily the best; she would undoubtedly have very close knowledge of the place and time of the event, though perhaps not so good as the midwife or the medical practitioner concerned.

In R v Weaver (1873) LR 2 CCR 85; 12 Cox CC 527 evidence had been properly admitted of the child’s grandmother who was present at the birth. Note that in South Australia, s 65A of the Evidence Act 1929 creates a statutory presumption that the person whose age is to be established is the person named in the birth certificate.

[1.3215] Appearance as evidence of age Evidence of appearance of the person in question is generally used to determine an obvious age or range of ages. In Sweeney v Denness (1954) 56 WALR 52 Dwyer CJ ruled (at 56) that appearance and observation of others: [I]s quite a reasonable conclusion if exact age or day of birth is not required. A normal human being seeing a baby in arms a week or a month old would know that it was not three or four years old; a seeing a child running about whose real age was three or four years would hardly mistake him or her for a child of 12 years or more, and so through life. I doubt whether one could make a mistake between a child of seven years and one of 14, ages which have some importance in criminal law though one might hesitate whether a youth was under 19 or over 20; the question seems to depend much more on the weight to be attached to testimony based on observation rather than on its admissibility.

In Wallworth v Balmer [1966] 1 WLR 16; [1965] 3 All ER 721 (CA) Parker LCJ said (at 19; 723): It seems to me there may be some cases where the facts speak for themselves in the sense that the youth or child is obviously under 18.

Followed: Ovens v Laneyrie (1987) 11 NSWLR 207; 35 A Crim R 129 (Campbell J). See also R v Land [1999] QB 65; [1998] 1 All ER 403 at 71, 408 (CCA).

[1.3220] Recollection of witness to show age Recollection of past events can be used to show age. In Carlton and United Breweries v Cassin [1956] VLR 186 Sholl J ruled (at 193): In the Goods of Peebles (1871) 2 VR (IE & M) 52 … Molesworth J said that one might reach a stage where a man from his recollection of events might be able to say, for example, that he was at least of some particular age. It cannot be disputed that that position may occur; a man who remembers events of 20 years ago, must, of course, be able to say from personal knowledge that he is over 20 years of age. But to say that he is not more than, for example, 26 years of age, and to say it from personal knowledge, a man must at least be able to identify the backward margin of his memory.

84

ROSS ON CRIME

[1.3225]

[1.3225] Belief as to age Legislation Many statutes about sex offenders with underage victims provide: It is a defence to prove that the accused person believed on reasonable grounds that the victim was of or above the age of … years.

Qld: Criminal Code ss 208, 210, 213, 215, 216, 219, 229B; WA: Criminal Code ss 204A, 204B, 321, 322; Tas: Criminal Code ss 124, 125A, 125B, 125C, 125D; Sex Industry Offences Act 2005 s 9; NT: Criminal Code ss 127, 130, 131, 131A; NSW: Summary Offences Act 1988 s 21D; Vic: Crimes Act 1958 ss 45, 48, 70; SA: Criminal Law Consolidation Act 1935 ss 49, 57, 68; ACT: Criminal Code 2002 s 59; Crimes Act 1900 ss 55, 61, 66; NZ: Crimes Act 1961 ss 131, 131A, 131B, 134A, 149A. The Criminal Codes of Queensland (Criminal Codes 229), Western Australia (s 205) and the Northern Territory (s 139) provide that: Except as otherwise expressly stated, it is immaterial, in the case of any of the offences defined in this Chapter committed with respect to a person under a specific age, that the accused person did not know that the person was under that age, or believed that the person was not under that age.

(The NT Criminal Code refers to “child” rather than “person”).

General propositions and cases When an accused has a belief as to age of the victim, such as being older than 15 years at the time of sexual intercourse, the evidential burden of establishing that defence rests upon the accused. Once the evidence raises the defence, the prosecution must prove that the accused held no such belief. These propositions flow from He Kaw The v Teh Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449. See also Sparre v The King (1942) 66 CLR 149; R v Douglas [1985] VR 721 (CCA); DPP v Cole (1994) 100 NTR 1; 119 FLR 86; 77 A Crim R 91 (CCA); Police v Kennedy (1998) 71 SASR 175; 100 A Crim R 377 (Bleby J): apparent age. In England the House of Lords has come to the opposite conclusion. In sexual offences the prosecution must prove the absence of a genuine belief on the part of the accused that the victim was of the proper age. B (a minor) v DPP [2000] 2 AC 428; [2000] 1 All ER 833; R v K [2002] 1 AC 462; [2002] 1 Cr App R 121; [2001] 3 All ER 897. As to selling liquor to a person under the proper age see:

[1.3235]

AGE

85

Sweeney v Denness (1954) 56 WALR 52 (Dwyer CJ); Wallworth v Balmer [1966] 1 WLR 16; [1965] 3 All ER 721 (CA); Ovens v Laneyrie (1987) 11 NSWLR 207; 35 A Crim R 129 (NSW, Campbell J); Woolworths Ltd v Luff (1988) 77 ACTR 1; 88 FLR 224; 33 A Crim R 144 (CA). Belief in age of prostitute: R v Hutchinson (2003) 144 A Crim R 28 (WACCA). Belief in age of person on the internet: R v Shetty [2005] 2 Qd R 540; (2005) 153 A Crim R 556 (CA). See also Belief at [2.800]; Defence at [4.700]; Mistake at [13.2900]; Proudman v Dayman at [16.7400]; and Sexual offence at [19.3000].

[1.3230] Criminal capacity of a child See Doli Incapax at [4.4400].

[1.3235] Possible direction on belief of age in a sexual case 1. The girl has given evidence that she consented to the acts but at the time she was not yet 16. (There seems to be no doubt that at the time she says these events occurred, she was not 16 years old. (But of course that is for you to decide.)) 2. The accused says that the girl consented. He also says that he believed at the time of the act which the prosecution alleges that she was 16 years of age (recite the evidence). 3. Consent by the girl is not an issue. 4. The only issue is whether the accused believed she was 16. 5. The evidence on the subject of his belief is (recite the evidence). 6. I give you this direction of law: If you think it is possible that the accused: Believed the girl was 16 years old;

then The prosecution must prove beyond reasonable doubt these things: The accused did not believe she was 16; Or, if he did, the accused had no reasonable grounds for that belief.

7. The law is that the reasonableness of the accused’s belief bears only on whether it was genuinely held.13 The more reasonable the belief, the more likely that he held that belief. 8. Let me put the law to you in another form. 13 Compare DPP v Morgan [1976] AC 182; [1975] 2 All ER 347; 61 Cr App R 136 (HL); R v Saragozza [1984] VR 187; (1983) 9 A Crim R 185 at 194 (VR) (CCA); McMaster v The Queen (1994) 4 NTLR 92; 117 FLR 200 (CCA); DPP (NT) v WJI (2004) 219 CLR 43; 210 ALR 276.

86

ROSS ON CRIME

[1.3400]

If you think it is possible that the accused believed that she was over 16 and the prosecution cannot disprove that belief beyond reasonable doubt, then you must acquit him of the charge.

AGENT PROVOCATEUR Meaning ....................................................................................................................................... [1.3400] Exclusion of evidence ................................................................................................................. [1.3405] Effect on sentence ....................................................................................................................... [1.3410]

[1.3400] Meaning Agent provocateur is a French term meaning provoking agent. In R v Mealey (1974) 60 Cr App R 59 (CA) Park LCJ, delivering the judgment of the court, said at (61): [T]here is a neat definition contained in the report of the Royal Commission on Police Powers (Cmd. 3297) in 1928 where an agent provocateur is taken to mean “a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds or informs against him in respect of such offence.”

In R v Looseley [2001] 1 WLR 2060; [2001] 4 All ER 897; [2002] 1 Cr App R 360 (HL) Lord Hoffmann adopted the Royal Commission definition (above) then said (at 2075; 910 [49]): This is helpful as far as it goes, but one still has to say what amounts to enticing and what it means to say that the breach of the law would not otherwise have been committed. In other words, the definition assumes but does not define the standards of decency and fair play with which the activity of the agent provocateur is contrasted.

[1.3405] Exclusion of evidence In Hunt v Wark (1985) 40 SASR 489 (FC) King CJ said (at 492-493): Bunning v Cross is authority for the proposition that a judge at a criminal trial has a discretion to exclude admissible evidence on the ground that it has been illegally or improperly obtained. There is no reason why this principle should not operate where the impropriety, or the illegality, arises out of the use of an agent provocateur or methods of entrapment. That is not to say that the use of an agent provocateur or entrapment is of itself improper. Those methods may be, and usually are, perfectly proper and acceptable means of obtaining evidence of criminal conduct. But one cannot exclude the possibility of impropriety being associated with police investigation by those means any more than police investigation by other means.

[1.3410] Effect on sentence In R v Campanella (2004) 90 SASR 1 (CCA) Mullighan J, with whom the others agreed, said (at 9 [66] – [67]): It is well established that a sentence may be significantly reduced in circumstances where the offence would not have been committed but for the activities of the agent provocateur: see also Jurkovic v The Queen (1981) 6 A Crim R 215; R v C (1998) 72 SASR 391. Although the offender in R v Romeo (1987) 45 SASR 212 could not be so described, his sentence was reduced because of “faint hallmarks of entrapment and incitement” (at 224). White J expressed much the same view in R v Lainas (1989) 50 SASR 461 at 464. There was a substantial review of relevant authorities in R v Taouk (1992) 65 A Crim R 387 at 396 by Badgery-Parker J. It may be seen from aspects of this review that it is well established that, in cases of incitement or encouragement by police to commit a crime which would not otherwise have been committed by the offender, the sentence is significantly reduced for that reason alone.

See also Abuse of process at [1.1000]; Entrapment at [5.1100]; and Unlawful or illegal police conduct at [1.1030].

[1.3810]

ALIBI

87

ALIBI Definition ..................................................................................................................................... What is not an alibi .................................................................................................................... Defence must give notice ........................................................................................................... Failure to give notice within the prescribed period .................................................................. Failure to give notice at all ........................................................................................................ Notice must give proper particulars ........................................................................................... Materiality of date and place ...................................................................................................... Prosecution must negative alibi .................................................................................................. Alibi direction ............................................................................................................................. False alibi: judge’s directions ..................................................................................................... Alibi witness not called after notice is given ............................................................................ Prosecution tender of alibi notice .............................................................................................. At trial ......................................................................................................................................... False alibi as a crime ..................................................................................................................

[1.3800] [1.3805] [1.3810] [1.3815] [1.3820] [1.3825] [1.3830] [1.3835] [1.3837] [1.3840] [1.3845] [1.3850] [1.3855] [1.3860]

[1.3800] Definition Alibi comes from the Latin term meaning elsewhere. When an accused person, in order to show that he could not have committed the offence with which he is charged, sets up as his defence that he was elsewhere at the time when the crime is alleged to have taken place, this defence is called an alibi.

[1.3805] What is not an alibi Evidence that the accused was not at the scene is not alibi and no notice is needed. In R v Johnson [1995] 2 Cr App R 1 (CCA) Glidewell LJ giving the judgment of the court said (at 9): [E]vidence, whether from a defendant himself or from any other person, which goes no further than that the defendant was not present at the place where an offence was committed is not “evidence in support of an alibi” within section 11(8) and thus within the remainder of the section. By the clear words of subsection (8), evidence in support of an alibi has to be evidence that the defendant was at some other particular place, or in some other particular area.

[1.3810] Defence must give notice By statute the defence must give notice to the prosecution of intent to adduce evidence of alibi, and from whom.

Legislation Cth: Evidence Act 1995 s 9(2)(c) (Legislation of State or Territory unaffected); Qld: Criminal Code s 590A; Justices Act 1886 s 104(5); WA: Criminal Procedure Act 2004 ss 62, 96, 611C(1)(d); Tas: Criminal Code s 368A; NT: Criminal Code s 331; NSW: Criminal Procedure Act 1986 s 150; Vic: Criminal Procedure Act 2009 ss 51, 190; SA: Criminal Law Consolidation Act 1935 s 285C; Summary Procedure Act 1921 s 105(5); ACT: Crimes Act 1900 s 288;

88

ROSS ON CRIME

[1.3815]

NZ: Crimes Act 1961 s 367A; Eng: Criminal Procedure and Investigations Act 1996 s 5(7).

[1.3815] Failure to give notice within the prescribed period The mere fact that the necessary information was not given within the prescribed period does not by itself as a general rule justify the court in exercising its discretion by refusing permission for the evidence to be called: R v Sullivan [1971] 1 QB 253 at 258; [1970] 2 All ER 681 at 684; 54 Cr App R 389 at 394.

[1.3820] Failure to give notice at all In R v Cooper (1979) 69 Cr App R 229 at 233 the court said that in such a case a judge should take the course of “giving leave for the evidence to be called subject to the service of the notice out of time and … allowing the prosecution such adjournment … to enable them to investigate the alibi and the alibi witnesses”.

[1.3825] Notice must give proper particulars The notice must give proper particulars to be effective: R v Sorby (1986) VR 753; 21 A Crim R 64 at 770–772, 82–84 (CCA). In R v Beljajev (2006) 14 VR 241; 166 A Crim R 557 (Coldrey J) the defence gave a notice of alibi listing prosecution witnesses. His Honour held that the notice was misconceived and of no effect. His Honour said (247; 563 [39]): [T]he proposition that an accused need give notice before cross-examining a designated Crown Witness as to a possible alibi flies in the face of the adversary system.

[1.3830] Materiality of date and place The legislation only applies to evidence as to the whereabouts of the accused when the crime is alleged to have been committed and not some other event in dispute: R v Lewis [1969] 2 QB 1. It only relates to an offence alleged to have been committed at a particular place: R v Hassan [1970] 1 QB 423; [1930] 1 All ER 745; 54 Cr App R 56. If an alibi on that particular date is set up in defence, it is a misdirection for the presiding judge to inform a jury that they may accept the alibi and yet convict. The proper direction to the jury is that they cannot convict unless they reject the alibi as being false or mistaken: R v Dean (1932) 51 NZLR 753 at 763.

Followed: R v Jacobs [1993] 2 Qd R 541 at 549 (CCA). The prosecution must not withdraw and recast the dates after an accused sets up an alibi for the dates of the crime first charged: R v H (1995) 83 A Crim R 402 (SA CCA).

[1.3835] Prosecution must negative alibi When evidence of an alibi is raised, the prosecution must negative the alibi for the accused to be convicted. In Killick v The Queen (1981) 147 CLR 565; 37 ALR 407 Gibbs CJ, Murphy and Aickin JJ said (at 569–570; 409): Although an alibi is not uncommonly referred to as a defence, no onus of proving an alibi rests on the accused; the prosecution must negative an alibi if one is put forward, as it must negative a claim that the accused acted in self-defence or as a result of provocation: see R v Johnson (1961) 46 Cr App R 55; R v Taylor [1968] NZLR 981 at 985–6.

In R v Small (1994) 33 NSWLR 575; 72 A Crim R 462 (CCA) Hunt CJ at CL said (at 595–596; 481):

[1.3850]

ALIBI

89

[B]y raising an alibi, the accused was not undertaking to prove anything, and that the onus remained on the Crown to remove any reasonable doubt which may have been created by the alibi claim. In other words, the Crown had to eliminate any reasonable possibility that the alibi was true.

See also R v J (No 2) [1998] 3 VR 602 at 629–630 (CA).

[1.3837] Alibi direction When an alibi is advanced, the judge should normally give a direction along the lines that they should acquit the accused if they accept the alibi, although there is no exact form of wording that is required: Jubraeel v R [2015] NSWCCA 131.

[1.3840] False alibi: judge’s directions A judge should give careful directions on an alibi which may be rejected. In R v Turnbull [1977] 1 QB 224; [1976] 3 All ER 549; (1976) 63 Cr App R 132 (CA) a five member court said (at 230; 553; 139): Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury is satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward can fabrication provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.

Approved: King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 153; 68 ALR 27 in a joint judgment (at 438; 38; 163–164). R v Juric (2002) 4 VR 411; 129 A Crim R 408 at 436; 432–433 [39] – [40] (CA). See also Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600. Lies at [12.1500]ff.

[1.3845] Alibi witness not called after notice is given A judge may direct the jury that the witness would not have helped the defence: R v Rose (1993) 69 A Crim R 1 (SA CCA). See also R v Rossborough (1985) 81 Cr App R 139.

[1.3850] Prosecution tender of alibi notice In R v Heuston (1996) 90 A Crim R 213 (NSW CCA) Gleeson CJ said (at 217): The action of the Crown Prosecutor in tendering the notices of alibi as part of the Crown case in chief was neither unusual nor irregular: see Rossborough (1985) 81 Cr App R 139; Fields [1991] Crim LR 38. As was observed in argument on this appeal, if the crown were to tender a notice of alibi only in reply, that could prevent an accused person who did not seek to rely upon the alibi, or who gave a different alibi, from giving an explanation of what had occurred. It will be the case that

90

ROSS ON CRIME

[1.3855]

the Crown will not know what course an accused proposes to take in relation to an alibi, and there is usually no way of binding the accused to any particular course before the Crown case is closed. The trial judge was right to conclude that, in the circumstances of this case, the tender of the notices was not unfair to the accused.

But in R v Keane (unreported, Vic CCA, 29 June 1978) Young CJ said (at p 5): During the argument there was some discussion of the right of the Crown to tender a notice of alibi given pursuant to s 399A of the Crimes Act 1958. It may be necessary to examine that question in detail on some occasion but in the present case all that I think it is necessary to say is that the admissibility of such a document must be decided in any case in accordance with general principles. It will not generally be possible to tender it as part of the Crown case but it may be possible to use it to challenge the credit of an accused who gives evidence.

In R v Hines (No 2) [1998] 3 NZLR 261 (CA) Gault J giving the judgment of the court said (at 263): The Canadian cases draw a distinction between evidence of guilt and evidence of consciousness of guilt and recognise evidence of alibi fabrication as going to the latter: R v Babinski (1991) 67 CCC (3d) 187 (Ont: CA), R v Davison (1974) 20 CCC (2d) 424 (Ont: CA), R v Witter (1996) 105 CCC (3d) 44 (Ont: CA), R v Tyson (Court of Appeal, Wellington, CA 202/90, 13 December 1990), R v Carey (1996) 113 CCC (3d) 74. Those cases also draw the distinction between alibi evidence which is not accepted – which is to be set aside as not affirmative evidence of anything on the one hand, and evidence of consciousness of guilt which is no different from any other circumstantial evidence and can support an inference of guilt on the other hand.

Further (at 264): The position is really similar to that which prevails in those rare cases in which the Crown can put forward a lie by an accused which because of its nature and the circumstances may be regarded as adding to the Crown case; see R v Toia [1982] 1 NZLR 555 at p 559. The fabrication of an alibi with its obvious purpose of perverting the course of justice may be seen as providing even stronger support to the Crown case than many other lies which can be classed as consistent more with guilt than innocence.

See also R v Watts (1980) 71 Cr App R 136 at 141 (CCA). Archbold (1998) says (at 4–319): Generally, to make a defendant responsible for his solicitor’s letters they must be shown to have been written in pursuance of specific instructions from the client and not merely in consequence of interviews with, or of general instructions from, him: see R v Downer (1880) 14 Cox 486.

[1.3855] At trial It was once said that: The accused can be cross-examined as to his failure to notify an alibi within the time prescribed and the failure can be the subject of comment.

The cases in which that proposition was put are R v Lattouf and Carr (1980) 2 A Crim R 65 at 73–74 (NSW CCA) and R v Vincec (1990) 50 A Crim R 203 at 208–210 (Vic CCA). They should not be followed. Petty and Maiden v The Queen (1991) 173 CLR 95; 55 A Crim R 322; 102 ALR 129 is now the authority. (See Silence at [19.3900].) Once evidence of an alibi is given and the prosecution is on notice, it cannot re-open its case to rebut the alibi: Killick v The Queen (1981) 147 CLR 565; 37 ALR 407. In R v McLeod [1994] 1 WLR 1500; [1994] 3 All ER 254; [1995] 1 Cr App R 591 (CA) the court held that an accused who gives alibi evidence can be cross-examined about an alibi in an earlier case which the jury rejected.

[1.4010]

ALLOCUTUS

91

[1.3860] False alibi as a crime In DPP v Hurnam [2007] 1 WLR 1582 (PC) a barrister was charged and convicted of conspiracy to do an unlawful act. That act was conspiring with his client to hinder police enquiries into an offence by fabricating an alibi. It happened in Mauritius. The intermediate appeal court quashed the conviction. The prosecution appealed. The Board restored the conviction.

ALLOCUTUS Definition ..................................................................................................................................... Legislation ................................................................................................................................... Purpose ........................................................................................................................................ Practice ........................................................................................................................................

[1.4000] [1.4005] [1.4010] [1.4015]

[1.4000] Definition Allocutus is a Latin word meaning spoken to. The allocutus is the term given to the demand of the court to a prisoner convicted of an indictable offence why the court should not proceed to pass judgment according to law. The history and origins of the term are discussed in R v Rear [1965] 2 QB 290; [1965] 2 All ER 268; 49 Cr App R 192 (CCA).

[1.4005] Legislation Qld: Criminal Code s 648; Tas: Criminal Code s 385; NT: Criminal Code s 387 (arrest of judgment). The allocutus arises from common law, but the Code States have provisions. The allocutus has been abolished in Victoria: Criminal Procedure Act 2009 ss 253A–253B. The lack of statutory recognition of allocutus in New South Wales was commented on in Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1 by Tooohey J at 519; 14; 193.

[1.4010] Purpose The purpose of the allocutus is to enable the accused to move in arrest of judgment: R v Donovan (1928) 21 Cr App R 20 (CCA). R v Gombos [1965] 1 WLR 575; [1965] 1 All ER 229; 49 Cr App R 59 (CCA). R v Rear [1965] 2 QB 290; [1965] 2 All ER 268; 49 Cr App R 192. R v Warlich [1973] 1 NZLR 101 at 103 (CA). In R v Shillingsworth [1985] 1 Qd R 537; (1985) 15 A Crim R 453 (CCA) Williams J said (at 543; 458): The administering of the allocutus constitutes an acceptance by the court of the jury’s verdict of guilty or the accused’s plea of guilty (as the case may be), and thereafter the matter before the court is one of sentence … In other words, the accused person stands before the court to be sentenced once the court has accepted the guilty verdict or plea by administering the allocutus.

92

ROSS ON CRIME

[1.4015]

In R v Collins [1996] 1 Qd R 631; 76 A Crim R 204 (CA) McPherson JA and Lee J said (at 638; 210): Conviction is the act of the court, not of the accused. For this reason, it has been accepted in this State that a conviction occurs only upon some intimation by the court that it accepts the plea as its determination of guilt and, in effect, adopts it as its verdict. This is surely right. In the normal course, that intimation would be evidenced by the administration of the allocutus: see s 648 of the Code, and Shillingsworth [1985] 1 Qd R 537 at 543; 15 A Crim R 453 at 458. But as s 648 itself recognises, a failure to administer the allocutus does not invalidate the judgment. A fortiori its administration is not necessary to perfect the conviction. All that is required for that to occur is some unequivocal and overt expression of acceptance by the court of the plea as its determination of guilt; how that acceptance is manifested is immaterial: Griffıths at 302, 335-336; Jerome and McMahon at 604. Other methods may include an express statement by the court or proceeding to hear submissions on sentence.

Failure to put the allocutus is not fatal.

[1.4015] Practice After the verdict is taken (see Verdict at [22.500]) or the plea of guilty made any prior convictions will be put and admitted or proved. The associate will then ask the prisoner: • full name, age and last address; • if an offence involving a motor car whether he holds a current driver’s licence and to produce it; • the allocutus: You have been found guilty of ( ) count(s) of ( ). Do you know or have you anything to say why this Honourable Court should not pass sentence on you according to law.

If there is no motion to arrest judgment, the speech in mitigation begins (the plea): Western Australia v Majok (2005) 152 A Crim R 25 at 28 [13] (WA, Murray J).

ALTERNATIVE Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Principle ...................................................................................................................................... Duty of prosecutor to raise alternatives ..................................................................................... Duty of judge to leave an alternative ........................................................................................ Trial judge to inform counsel before leaving alternative .......................................................... Particular cases ............................................................................................................................ Lesser or alternative offence substituted by appeal court ......................................................... Judge’s directions to the jury ..................................................................................................... Other references ..........................................................................................................................

[1.4200] [1.4205] [1.4210] [1.4215] [1.4220] [1.4225] [1.4230] [1.4235] [1.4240] [1.4245]

[1.4200] Meaning An alternative is a lesser offence than that charged. The word comes from the Latin alter which means the taking of one of only two possible courses. Those courses are mutually exclusive. When more than two possible courses are open they are not alternatives. The taking of one of these is a choice.

[1.4205] Legislation Qld: Criminal Code ss 576–388A and generally s 573; WA: Criminal Code ss 10A–10I;

[1.4210]

ALTERNATIVE

93

Tas: Criminal Code ss 333–344 and generally s 332(2); NT: Criminal Code ss 315–330; NSW: Crimes Act 1900 s 115A; Criminal Procedure Act 1986 s 162; Vic: Crimes Act 1958s 421(1) and Criminal Procedure Act 2009 ss 239 and 240; SA: Juries Act 1927 s 57; Criminal Law Consolidation Act 1935 ss 19B, 75; ACT: Crimes Act 1900 ss 48A, 49, 70, 82, 123, 146, 296–299; Criminal Code Act 2002 ss 633–635, 728; NZ: Crimes Act 1961 s 330.

[1.4210] Principle In R v Saad (2005) 156 A Crim R 533 (Vic CA) Nettle JA, with whom the other judges agreed, said (at 564 [102]): [W]here the offence charged is grave and the alternative offence trifling it may be better not to distract the jury by forcing them to consider something which is remote from the real point of the case. On the other hand, where the evidence is such that the accused ought at least to be convicted of the alternative offence, but the jury may be hesitant to convict of the offence charged, the alternative should be left.

In Saraswati v The Queen (1991) 172 CLR 1; 54 A Crim R 183; 100 ALR 193 Dawson J said (at 13; 201; 191): At common law an accused might be convicted of a lesser offence than that charged, provided that the definition of the more serious offence necessarily included the definition of the lesser offence and that both offences were of the same degree, that is to say, were either felonies or misdemeanours.

In R v Surrey Justices; Ex parte Witherick [1932] KB 450; [1931] All ER Rep 807 (KBD) Avory J, with whom the other judges agreed, said (at 402; 808): It is an elementary principle that an information must not charge offences in the alternative, since the defendant cannot then know with precision with what he is charged and of what he is convicted and may be prevented on a future occasion from pleading autrefois convict.

Approved: S v The Queen (1989) 168 CLR 266; 45 A Crim R 221; 89 ALR 321 at 284–285 (CLR) per Gaudron and McHugh JJ; R v Sault Ste Marie [1978] 2 SCR 1299 at 1307 (SCC). In Benbolt v The Queen (1993) 60 SASR 7; 67 A Crim R 11 (CCA) King CJ said (at 19; 21): When an accused pleads not guilty to a count in an information, issue is joined not only as to the allegation of the offence charged but as to the alternatives implicit in the charge. The accused is required to come to trial prepared to contest all available alternatives which he does not admit. Generally speaking, the defence to the charge as laid will embrace the alternatives. It is necessary, however, for defence counsel to bear in mind in the conduct of the defence that the accused is in jeopardy of conviction not only of that offence but also of the alternatives.

In R v Rehavi [1999] 2 Qd R 640; (1998) 101 A Crim R 569 (CA) the court said in a joint judgment (at 648; 576): There is a public interest in a fair trial and a jury ought to be permitted to return any verdict available on the evidence if that is consistent with justice to the accused. To shut the jury out from the lesser verdict compromised the verdict given.

In R v Maxwell [1990] 1 WLR 401; [1990] 1 All ER 801; 91 Cr App R 61 (HL) Lord Ackner said (at 408; 807; 68):

94

ROSS ON CRIME

[1.4215]

What is required in any particular case where the judge fails to leave an alternative offence to the jury is that the court, before interfering with the verdict, must be satisfied that the jury may have convicted out of a reluctance to see the defendant get clean away with what, on any view, was disgraceful conduct. If they are so satisfied then the conviction cannot be safe or satisfactory.

Of course the alternative must be open on the evidence: R v Christy (2007) 16 VR 647; 173 A Crim R 373 (CA); R v Le Doan (2001) 3 VR 349; 124 A Crim R 45 (CA).

[1.4215] Duty of prosecutor to raise alternatives In Benbolt v The Queen (1993) 60 SASR 7; 67 A Crim R 11 (CCA) King CJ said (at 19; 21): If the prosecution’s case provides a basis for the alternatives, they ought to be opened to the jury. Often, however, the basis for the alternatives arises out of the way in which the evidence for the prosecution or the defence emerges. Whether that be so or not, failure by the prosecution to open alternatives is not a reason for the defence to ignore them.

In R v Cameron [1983] 2 NSWLR 66; 8 A Crim R 466 (CCA) the court said in a joint judgment (at 71; 470): In the normal case where the Crown seeks an alternative verdict, this is a matter which is opened to the jury and litigated by the parties from the commencement of the Crown case. To raise the question for the first time at the conclusion of the Crown case may in many cases produce an injustice to the accused.

In R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230 (CCA) Hunt J said (at 376; 234): The issue of alternative verdicts should be opened to the jury by the Crown. If the alternative verdict is not referred to then, it must be raised before closing addresses when the judge can rule whether the delay in raising it so late in the piece would be likely to cause injustice to the accused.

[1.4220] Duty of judge to leave an alternative A judge has the duty of letting the jury consider any alternative reasonably raised on the evidence unless it is trifling and remote from the issues. In R v Benbolt (1993) 60 SASR 7; 67 A Crim R 11 (CCA) King CJ said (at 19; 21-22): There are strong considerations of justice and policy in favour of the disposal of all alternatives at the trial and the judge ought not lightly to take a course which would preclude consideration of an alternative to the offence charged. I consider that it is his duty to raise alternatives on his own initiative if there is a reasonable basis for them on the evidence, subject only to overriding considerations of fairness.

In R v Maxwell [1990] 1 WLR 401; [1990] 1 All ER 801; 91 Cr App R 61 (HL) Lord Ackner said (at 408; 807; 68): [T]here are cases where the principal offence is so grave and the alternative relatively so trifling that the judge is entitled not to distract the jury by forcing them to consider something which is remote from the real point of the case.

In R v Elfar (2000) 115 A Crim R 64 (NSW CCA) Sperling J said (at 73 [49]): I baulk at the proposition … that all alternative lesser offences prescribed by law must be left to the jury in every case. That would mean, in relation to some serious offences, that a veritable cascade of lesser offences would have to be left to the jury, irrespective of the Crown’s position. The lengthening of trials and the distraction of juries from the real issues in the case arising from such an exercise are obvious. The futility of the exercise, in many cases at least, is also obvious.

In Simpson v The Queen (2006) 201 FLR 395 (NT CCA) the court held that under the Criminal Code s 330 the judge will only leave an alternative that arises under the Code. In R v Hofschuster (1992) 110 FLR 385; 65 A Crim R 167 (NT) Mildren J severed counts which would have made his directions to the jury on alternatives overly complicated.

[1.4230]

ALTERNATIVE

95

Other cases R v Foster [2008] 2 All ER 597 (CA, Full Bench). Spratt v The Queen (1982) 8 A Crim R 361 (WA CCA). R v Evans and Lewis [1969] VR 858 (CCA).

[1.4225] Trial judge to inform counsel before leaving alternative In Benbolt v The Queen (1993) 60 SASR 7; 67 A Crim R 11 (CCA) King CJ said (at 19; 21): It is advisable for a judge to inform counsel before addresses as to the alternatives which he proposes to leave, particularly if they have not been canvassed in the opening. Whether failure to do so will result in a miscarriage of justice will depend on the circumstances.

In R v Gulliford (2004) 148 A Crim R 558 (NSW CCA) Wood CJ at CL giving the leading judgment said (at 575 [91]): While it is generally inadvisable for a trial judge to raise an alternative count, which has not been suggested by trial counsel, R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230 and R v Cameron [1983] 2 NSWLR 66 at 71; (1983) 8 A Crim R 466 at 470, it is not forbidden. Much will depend upon the timing, whether counsel have had a proper opportunity to deal with it, and whether the defence has been prejudiced, for example in the way that the case was conducted: R v Quinn (1991) 55 A Crim R 435.

In R v Middap (1992) 63 A Crim R 434 (Vic CCA) the trial judge (Hampel J) had raised the possibility of an alternative. By his Honour’s invitation the defence addressed again on that alternative. The appeal was dismissed. The trial judge does not have a duty to raise every alternative lesser offence that is open on the evidence, regardless of the forensic decisions of defence counsel. In James v The Queen (2014) 88 ALJR 427; [2014] HCA 6 at [38] (ALJR) the High Court stated: The trial judge’s duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court’s assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. As earlier noted, not infrequently defence counsel will decide not to sully the defence case (that the only proper verdict is one of outright acquittal) by an invitation to the jury to consider the accused’s guilt of a lesser offence. Such a forensic choice does not prevent counsel from submitting that the alternative verdict should nonetheless be left. Much less does it prevent counsel from making that submission where, as here, he or she is asked about the matter. It remains that the forensic choices of counsel are not determinative. The duty to secure a fair trial rests with the trial judge and on occasions its discharge will require that an alternative verdict is left despite defence counsel’s objection.

[1.4230] Particular cases Attempted murder as an alternative to murder In R v Cengiz [1998] 3 VR 720 (CA) Harper AJA said (at 738): Attempted murder is always available as an alternative verdict to murder provided (of course) that the attempt arises out of the same matrix of facts as were alleged to constitute the murder.

Manslaughter as an alternative to murder R v Apted (1981) 5 A Crim R 141 (Tas CCA); R v Koutsouridis (1982) 7 A Crim R 237 (Vic CCA);

96

ROSS ON CRIME

[1.4235]

R v Wilkinson (1985) 20 A Crim R 230 (Tas CCA); Jemielita v The Queen (1995) 81 A Crim R 409 (WA CCA); R v Barlow (1997) 188 CLR 1; 144 ALR 317; 93 A Crim R 113; Gilbert v The Queen (2000) 201 CLR 414; 170 ALR 88; 109 A Crim R 580; Gillard v The Queen (2003) 219 CLR 1; 202 ALR 202; 139 A Crim R 100; R v Gill (2005) 159 A Crim R 243 (Vic CA); R v Coutts [2006] 1 WLR 2154; [2006] 4 All ER 353; [2006] 1 WLR 2154; [2006] 4 All ER 353 (HL); Nguyen v The Queen (2013) 87 ALJR 853; [2013] HCA 32.

Manslaughter as an alternative to an accessory or secondary party R v Barlow (1997) 188 CLR 1; 144 ALR 317; 93 A Crim R 113; Gilbert v The Queen (2000) 201 CLR 414; 170 ALR 88; 109 A Crim R 580.

Intentionally cause injury as an alternative to serious injury R v Kane (2001) 3 VR 542; 123 A Crim R 385 (CA).

Doing grevious bodily harm as an alternative to GBH with intent R v Rehavi [1999] 2 Qd R 640; (1998) 101 A Crim R 569 (CA).

Robbery as an alternative to armed robbery R v King (2004) 144 A Crim R 405 (NSW CCA).

Stealing as an alternative to breaking, entering and stealing R v Chan (2001) 2 Qd R 662; 114 A Crim R 276 (CA).

Common assault not an alternative to grievous bodily harm R v Salisbury [1976] VR 452 (CCA); R v Caple (1984) 14 A Crim R 106 (Vic CCA); R v Sullivan (1981) 6 A Crim R 259 (NSW CCA); R v Cameron [1983] 2 NSWLR 66 (CCA).

Indecent assault is not an alternative to rape where both are part of the same “event, transaction or episode” R v Whelan [1973] VR 268 (CCA). Saraswati v The Queen (1991) 172 CLR 1; 54 A Crim R 183; 100 ALR 193 at 12, 200–201, 190–191 per Dawson J (in dissent on other matters) with whom Deane J agreed.

Drug possession as an alternative to trafficking R v Doan [2001] 3 VR 349; 124 A Crim R 45 at 355-361, 51-58 [23] – [37] (CA)).

[1.4235] Lesser or alternative offence substituted by appeal court In Spies v The Queen (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448 Gaudron, McHugh, Gummow and Hayne JJ said (at 611; 535; 454 [23]):

[1.4245]

ALTERNATIVE

97

The power … is most likely to be exercisable in situations where the “other offence” is one which is wholly within the ultimate facts of the offence on which the accused has been convicted and which the court sets aside in the appeal. The classic case is a conviction for assault occasioning grievous bodily harm where the court is of the opinion that the prosecution has failed to prove, or there has been a misdirection on, the issue of grievous bodily harm.

And at [24]: Other pairs of offences which readily come to mind as likely candidates for the application of the subsection include murder and manslaughter, rape and carnal knowledge, assault with intent to commit rape and indecent assault, incest and carnal knowledge, robbery under arms and robbery, larceny and receiving, housebreaking and receiving, obtaining a chattel by false pretences and obtaining credit by false pretences, many substantive offences and attempts to commit them, burglary and housebreaking, embezzlement and larceny. However, s 7(2) can be applied in any case where it appears to the court “that the jury must have been satisfied of facts which prove the appellant guilty of that other offence”.

See also Appeal at [1.5200]; Indictment at [9.1800]; Judge at [10.900]; and Verdict at [22.500].

[1.4240] Judge’s directions to the jury In Stanton v The Queen (2003) 77 ALJR 1151; 198 ALR 41 the High Court examined directions on alternative verdicts. In a later Western Australia case the High Court’s reasons were distilled. In Simms v The Queen (2004) 148 A Crim R 433 (WA CCA) Jenkins J, with whom the other judges agreed, said (at 442 [50] – [51]): From the above review of the High Court’s decision in Stanton v The Queen the following principles emerge. 1. It is impermissible for a trial judge to direct members of a jury that they must consider alternative charges in any particular order as jurors are free to organize their deliberations in whatever manner appears to them to be convenient. 2. When determining whether a trial judge’s directions have infringed this prohibition the question is whether the trial judge might reasonably have been understood to convey anything to the contrary, or whether he or she was merely informing them of the sequence in which, at the point of final decision, they were to deal with the possible verdicts available to them. 3. In determining the answer to this question, an individual direction should not be construed on its own but must be considered in light of the issues that have emerged at the trial, the whole of the trial judge’s directions and any questions from the jury. It must also be remembered that Stanton’s case involved a charge of wilful murder in which there is a power for a jury to bring in a “wrong” verdict of manslaughter, even if they take a more serious view of the accused’s conduct. In such a case the law is that a jury must not be deprived of this right by a trial judge directing them that it is not open for them to return such a verdict: Stanton (at [31]) per Gleeson CJ, McHugh and Hayne JJ.

[1.4245] Other references See also Cognate offence at [3.2600].

98

ROSS ON CRIME

[1.4400]

AMENDMENT Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Responsibility for amendment is on the prosecution ................................................................ Prohibited amendment in a summary case ................................................................................ Submissions about amendment .................................................................................................. Consent ........................................................................................................................................ No amendment where injustice may result ................................................................................ Re-arraignment after amendment ............................................................................................... Nature of the amendment ........................................................................................................... Error in description ..................................................................................................................... Amendment by adding a count .................................................................................................. Appeal, notwithstanding defence acquiescence ......................................................................... Amendment of court record .......................................................................................................

[1.4400] [1.4405] [1.4410] [1.4415] [1.4420] [1.4425] [1.4430] [1.4435] [1.4440] [1.4445] [1.4450] [1.4455] [1.4460]

[1.4400] Meaning Amendment means altering the indictment.

[1.4405] Legislation Cth: Judiciary Act 1903 s 68(4); Qld: Criminal Code s 572; Tas: Criminal Code s 326; NT: Criminal Code s 312; NSW: Criminal Procedure Act 1986 ss 20 and 21; Vic: Criminal Procedure Act 2009 s 165; SA: Criminal Law Consolidation Act 1935 s 281; ACT: Crimes Act 1900 ss 265–267; NZ: Crimes Act 1961 s 335. In Maher v The Queen (1987) 163 CLR 221; 72 ALR 351; 25 A Crim R 261 the court said in a joint judgment (at 230; 356; 266): At Common Law an indictment could not be amended.

[1.4410] Responsibility for amendment is on the prosecution In R v Smith [1951] 1 KB 53; [1950] 2 All ER 679; 34 Cr App R 168 (CCA) Humphreys J said (at 55; 682; 183): [T]he responsibility for the correctness of an indictment lies in every case on counsel for the prosecution and not upon the court. No counsel should open a criminal case without having satisfied himself on that point. If in his opinion the indictment needs amendment, the necessary application should be made before the accused are arraigned and not, as in this case, after all the evidence for the prosecution has been called. There may well be amendments which would be properly made at the commencement of a trial which would be oppressive and embarrassing to the accused if made at the close of the case for the prosecution.

In a proper case it is the duty of the court to make the amendment: R v Fraser (1923) 17 Cr App R 182; 93 LJKB 236. In R v Aldridge (1993) 67 A Crim R 371 (NSW CCA) Sheller JA giving the leading judgment said (at 377–378):

[1.4430]

AMENDMENT

99

Where before trial or at any stage of the trial it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice.

[1.4415] Prohibited amendment in a summary case There can be no amendment resulting in a fresh charge after the limitation period has expired: R v T (1985) 38 SASR 428 (CCA); Starling v Ostrowski (2001) 24 WAR 61 (FC); Flanagan v Remick (2001) 127 A Crim R 534; 35 MVR 289 (Vic, Eames J). In Robbins v Horton (1980) 3 NTR 1 Gallop J said (at 5): It is now well established that a court should not permit an amendment of a complaint if the consequences of the amendment would be to allow a new offence to be charged out of time: Tregilgas v Howie [1926] SASR 122 at 126; Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328.

If particulars are supplied outside the period but they do not amount to a different offence there can be no defence objection on the ground that the limitation period has expired: Chaudary v Ducret (1986) 11 FCR 163; 67 ALR 463 (FCA); Freundt v Hayes (1992) 59 A Crim R 430 at 442-443 (SA, Olsson J); Gigante v Hickson (2001) 3 VR 296; 120 A Crim R 483; 33 MVR 51 (CA).

[1.4420] Submissions about amendment In R v West [1948] 1 KB 709; [1948] 1 All ER 718; 32 Cr App R 152 it was held that in a case where no application for leave to amend has been made, before the court exercises its discretion whether to direct an amendment of the indictment or not, it should invite the parties, particularly the defence, to express their views on the matter.

[1.4425] Consent The court must consent to the amendment: R v Errington (1922) 16 Cr App R 148.

[1.4430] No amendment where injustice may result Generally The indictment can be amended at any time provided there is no injustice to an accused: Go v The Queen (1990) 73 NTR 1; 102 FLR 299 (CCA): 6th day of trial. R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390 (CA): after verdict. R v Joyce (2002) 173 FLR 322; 136 A Crim R 465 (NT, Angel J): during defence final address. Held: the accused had suffered no prejudice. The longer the interval between arraignment and amendment the more likely it is that injustice will be caused to the accused: R v Trotter (1982) 7 A Crim R 8 at 16 (Vic CCA).

Legislation Some legislation is to the same effect, that is, no injustice by reason of the amendment. Qld: Criminal Code s 572(3); Tas: Criminal Code s 326(1); NT: Criminal Code s 312(1);

100

ROSS ON CRIME

[1.4435]

Vic: Criminal Procedure Act 2009 s 165(1).

[1.4435] Re-arraignment after amendment In R v Radley (1973) 58 Cr App R 394 (CA) Widgery LCJ said (at 404): It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendments of any real significance are made.

If defence counsel does not seek re-arraignment, waiver could be implied: Go v The Queen (1990) 73 NTR 1; 102 FLR 299 at 5–6, 304–305 (CCA).

[1.4440] Nature of the amendment Formal uncontested matters were the subject of amendment at the end of the prosecution case. Held on appeal, no injustice: R v Street [1960] VR 669 (CCA), followed in R v Clarkson (1987) VR 962; 25 A Crim R 277 at 980–982 (VR), 297–298 (A Crim R) (CCA). In R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390 (CA) an amendment was allowed after verdict. In Ayles v The Queen (2008) 232 CLR 410; 242 ALR 399; 181 A Crim R 257 the accused had been charged with sexual offences and elected to be tried by judge alone. The prosecutor sought an amendment of a date of an offence. The judge made a different order but did not note it on the information. Held by majority, appeal dismissed. Kiefel J, with whom Heydon J agreed, said that her Honour had acted within power. Gleeson CJ held that her Honour acted wrongly but applied the proviso. Gummow and Kirby JJ dissented in a joint judgment. In Kwok v The Queen (2007) 175 A Crim R 278 (NSW CCA) the accused was charged with using his position as a director with the intention of gaining advantage. The indictment alleged two offences between the beginning of April 2000 and the end of June 2002. Quite a deal of wrongdoing was alleged. At the end of its case the prosecution narrowed the dates alleged in the indictment, but all its evidence remained. The court held (at [90] – [99]) that there was no miscarriage of justice in the amendment and in the evidence.

[1.4445] Error in description In R v Smith [1951] 1 KB 53; [1950] 2 All ER 679; 34 Cr App R 168 the indictment alleged obtaining money by false pretences. An amendment was allowed so the indictment read “a valuable security to wit a cheque for that sum of money”. The case and the evidence never altered. It was held that there had been no injustice.

[1.4450] Amendment by adding a count In Maher v The Queen (1987) 163 CLR 221; 72 ALR 351; 25 A Crim R 261 the accused at trial had been arraigned on 19 counts. After the jury was sworn another two counts were added and the accused re-arraigned. (There was also some amendment to the original counts.) Mr Maher was convicted on count one and count 20. The High Court set aside the conviction on count 20. In a joint judgment the court said (at 234; 359; 269): The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. Special leave should be granted to the applicant on that ground.

[1.4600]

AMICUS CURIAE

101

[1.4455] Appeal, notwithstanding defence acquiescence In Go v The Queen (1990) 73 NTR 1; 102 FLR 299 (CCA) Asche CJ said (at 5; 304): Nevertheless, had the procedure caused a miscarriage of justice, counsel’s acquiescence or failure to object would not prevent an appeal court from dealing with it (R v Garner [1964] NSWR 1131; R v Lane [1965] QWN 39), though it might well affect the question as to whether any real prejudice to the accused had resulted: R v Hally [1962] Qd R 214.

See also Bond v The Queen (1992) 62 A Crim R 383 (WA CCA) at 400-405.

[1.4460] Amendment of court record See also Alternative at [1.4200]; Duplicity at [4.5700]; Functus officio at [6.2500]; Indictment at [9.1800]; Latent ambiguity at [12.100]; and Record at [18.1600].

AMICUS CURIAE Definition ..................................................................................................................................... [1.4600] Hearing amicus curiae is a matter of discretion ........................................................................ [1.4605] Criminal cases ............................................................................................................................. [1.4610]

[1.4600] Definition The term comes from the Latin amicus meaning friend; curiae: of the court. The plural is amici curiae. It refers to a bystander, usually counsel, who is given leave to argue a point in court so as to prevent the court from falling into error. Leave is usually given where counsel does not represent a party but rather a person with an interest in some aspect of the litigation. The Hon Mr Justice Murphy faced criminal charges for the second time. (The first conviction had been set aside: R v Murphy (1985) 4 NSWLR 42; 63 ALR 53). Simos QC and Biscoe were given leave to appear on instructions from the President of the Senate. It seemed as if a breach of Parliamentary privilege might occur during the trial. In his ruling in R v Murphy (1986) 5 NSWLR 18; 23 A Crim R 349 Hunt J said (at 23; 352): An amicus curiae, it was pointed out, does not appear on behalf of any client, but only in his own right: Grice v The Queen (1957) 11 DLR (2d) 699 at 702-703. His status is that of a bystander who calls the attention of the court to some decision, whether reported or unreported, or some point of law which would appear to have been or to be in danger of being overlooked: Jowitt’s Dictionary of English Law (2nd ed, 1977), p 98. It was conceded by the accused that the Attorney-General is frequently and quite properly invited by courts to appear as amicus curiae in cases in which an issue of public importance arises and where there is no proper contradictor (as Lord Dunedin described a party who has a true interest to oppose the relief sought: Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448).

An Attorney-General is often given leave to appear on constitutional matters. The law reports are full of such cases. Moreover a party who wants to argue a constitutional point must first advise the attorneys of that intention. See also Constitution at [3.6800].

102

ROSS ON CRIME

[1.4605]

[1.4605] Hearing amicus curiae is a matter of discretion In Levy v Victoria (1997) 189 CLR 579; 146 ALR 248 Brennan CJ said (at 604-605; 259-260): The hearing of an amicus curiae is entirely in the court’s discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the court a submission on law or relevant fact which will assist the court in a way in which the court would not otherwise have been assisted. In Kruger v The Commonwealth (1997) 190 CLR 1; 146 ALR 126, speaking for the court, I said in refusing counsel’s application to appear for a person as amicus curiae: As to his application to be heard as amicus curiae, he fails to show that the parties whose cause he would support are unable or unwilling adequately to protect their own interests or to assist the court in arriving at the correct determination of the case. The court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the court be prejudiced. Where the court has parties before it who are willing and able to provide adequate assistance to the court it is inappropriate to grant the application. It is not possible to identify in advance the situations in which the court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

In Attorney-General (Cth) v Breckler (1999) 197 CLR 83; 163 ALR 576 the Association of Superannuation Funds had been refused leave to appear in a superannuation case. Kirby J said he would have granted leave and gave the last part of his judgment to an examination of principle and practice (at 134–137, 607–610 [102] – [109]). Black, QC and Keon-Cohen were given leave to intervene on behalf of the Tasmanian Wilderness Society in the Tasmanian Dam case: Commonwealth of Australia v State of Tasmania (1983) 158 CLR 1; 46 ALR 625. In Kruger v The Commonwealth (1997) 190 CLR 1; 146 ALR 126 the Aboriginal plaintiffs who had been removed from their families claimed that the laws that permitted such removal were invalid. On the first day of the hearing Masterman QC and Dubler were refused leave to appear as amici curiae on behalf of the International Commission of Jurists. In the prosecution sentence appeal R v GJ (2005) 196 FLR 233 (NT CCA) McDonald QC was refused leave to appear for the Human Rights and Equal Opportunity Commission. Haesler SC appeared for the repondent.

[1.4610] Criminal cases In a criminal case a court is usually pleased to have all the help it can get. In Darter v Diden (2006) 94 SASR 505; 161 A Crim R 369 (Doyle CJ) his Honour (at [40]) expressed his gratitude to Paul Muscat who appeared amicus curiae. Peter Tiffin appeared as amicus curiae when an appellant was unrepresented in Lewis v The Queen (1987) 88 FLR 104; 29 A Crim R 267 (NT CCA). The appeal was allowed. So did Dean Mildren QC (later Mildren J) in Sullivan v R (1987) 47 NTR 31 (CCA). In R v Skaf (2004) 60 NSWLR 86 (CCA) Sexton SC, Solicitor-General, Cogswell SC and Quilter appeared as amici curiae. Peter Hannan made constitutional submissions in R v Harriman (1996) 90 A Crim R 397 (FCA, Nicholson J). In R v L (2002) 135 A Crim R 599 (Qld CA) the court expressed its debt to Andrew Boe.

[1.4810]

AMNESTY

103

See also Articles and Discussion at (1998) 20 Adel LR 175–182; 193–198. G Williams, “The Amicus Curiae and Intervener in the High Court of Australia” (2000) 28 FL Rev 365–402. “McKenzie friend” at [13.100].

AMNESTY Definition ..................................................................................................................................... Practice ........................................................................................................................................ Amnesty is strictly construed ..................................................................................................... Promise not to prosecute ............................................................................................................

[1.4800] [1.4805] [1.4810] [1.4815]

[1.4800] Definition An amnesty means a pardon. More often it is used in the sense of a promise that a person who professes guilt will not be charged.

[1.4805] Practice The usual form is the passing of an Act making certain activities an offence. The commencement of the Act is proclaimed to be some period hence accompanied by an announcement that no prosecution will be launched in the meantime, even if it could be. Examples include brothels which sought registration in Victoria under the Planning Act were promised non-prosecution until the applications were processed; gun owners handing in illegally held firearms are often told they will not be prosecuted. In May and June 2006 England and Wales had a five week knife amnesty. Ninety thousand knives were handed in to police together with cut-throat razors, samurai swords and a bayonet.

[1.4810] Amnesty is strictly construed In Salemi v Mackeller [No 2] (1976) 137 CLR 388; 14 ALR 1 a news release from the Minister for Immigration was to the effect that prohibited immigrants who came forward before April 1976 and who satisfied certain standards would be granted residency. Salemi entered Australia in 1974 on a temporary entry permit which after extensions expired in July 1975 the Minister proposed to deport him. Held that the news releases were not under the hand of the Minister (Barwick CJ and Gibbs J) and in any event the news releases did not apply to the plaintiffs. Demurrer to statement of claim was allowed. An amnesty might result in “legitimate expectation”: Mason J in Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 per Mason J at 582-583; 345. Hunt CJ at CL recited the amnesty argument in a proceeds of crime case DPP (Cth) v Jeffery (1992) 58 A Crim R 310. He then seemed to say that if the crimes were committed there was no other consideration. He said (at 321–322): Next, it was submitted that, in the present case, even though the applicant had failed to furnish taxation returns over a period of 14 years, he had not committed the offence of failing to furnish them; he was guilty only of furnishing them late. He had, moreover, furnished them during an amnesty period when the Commissioner had agreed not to prosecute those in default. I do not see how those circumstances deny that the applicant committed the offence provided by s 8C of the Taxation Administration Act 1953 for each year that he did not comply with his obligation to furnish a return.

104

ROSS ON CRIME

[1.4815]

[1.4815] Promise not to prosecute By the prosecution In R v Georgiadis [1984] VR 1030 (Ormiston J) the accused had been given an undertaking by the prosecution not to prosecute if he gave evidence at trial on drugs charges. He gave evidence on the drugs charges and other matters. He was charged with wounding with intent. Ormiston J gave the undertaking a benevolent construction in favour of the accused. He adjourned the trial in the expectation that the DPP would not prosecute.

By the Australian Tax Office In R v Morris [1993] 2 VR 192; 61 A Crim R 233 (CCA) Mr Morris had understated his income by $270,000. He settled the outstanding tax with the Australian Tax Office. It was treated as voluntary disclosure and the Tax Office promised he would not be prosecuted. The DPP took a different view and prosecuted. The court said (at 198; 238–239): The critical consideration is that taxpayers cannot be permitted to defraud the revenue in the belief that detection can lead to no more than a requirement merely to make financial reparation and to pay a monetary penalty so as to enable the offender to “purchase” immunity from prosecution under the criminal law.

Undertaking In R v Croydon JJ; Ex parte Dean [1993] QB 769; [1993] 3 All ER 129; 98 Cr App R 76 investigating police, with apparent authority, promised not to prosecute Dean if he co-operated. He admitted having helped destroy a car to impede the arrest of murder suspects. The Queen’s Bench Division quashed his committal, the judges approving Chu-Piu Wing v Attorney-General [1984] HKLR 411 (HK CA). Vice-President McMullen said (at 417-418): [T]here is a clear public interest to be observed in holding officials of the State to promises made by them in full understanding of what is entailed by the bargain.

Approved in: Roma v District Court (SA) (1995) 63 SASR 223; 77 A Crim 16 (FC); R v Swingler [1996] 1 VR 257; (1995) 80 A Crim R 471 at 264, 479 (CA). See also Indemnity at [9.1600].

ANUNGA RULES Meaning ....................................................................................................................................... The case ...................................................................................................................................... Recognition of difficulties .......................................................................................................... Purpose ........................................................................................................................................ Application .................................................................................................................................. Prisoner’s friend .......................................................................................................................... Role of prisoner’s friend to be explained to accused ................................................................ Caution ........................................................................................................................................ Commissioner of police orders .................................................................................................. Admissibility of confession: prosecution goes first ...................................................................

[1.5000] [1.5005] [1.5010] [1.5015] [1.5020] [1.5025] [1.5030] [1.5035] [1.5040] [1.5045]

[1.5000] Meaning Anunga rules are about police interrogation of an Aboriginal suspect. The term comes from R v Anunga. (The proper pronunciation of this Pitjantjatjara man’s name is similar to UN-a-nga).

[1.5005]

ANUNGA RULES

105

[1.5005] The case In R v Anunga (1976) 11 ALR 412 Forster J, with the authority of Muirhead and Ward JJ, ruled: (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 utilized whenever necessary to ensure complete and mutual understanding. (2) When an Aboriginal 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. The combinations of persons and 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 and say, “Do you understand that?” or “Do you understand you do not have to answer questions?” Interrogating police officers, having explained the caution in simple terms, should ask the Aboriginal 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 cross-examination should be scrupulously avoided as answers to it have 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. (5) 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 in an endeavour to obtain proof of the commission of the offence from other sources. Failure to do this, among other things, led to the rejection of confessional records of interview in the cases of Nari Wheeler and Frank Jagamala. (6) 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 a 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 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 under arrest. (7) It is particularly important that Aboriginal and other people are not interrogated when they are disabled by illness or drunkenness or tiredness. Admissions so gained will probably be rejected by a court. Interrogation should not continue for an unreasonably long time. (8) Should an Aboriginal seek legal assistance reasonable steps should be taken to obtain such assistance. If an Aboriginal 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 suitable clothing.

106

ROSS ON CRIME

[1.5010]

[1.5010] Recognition of difficulties In Cutter v The Queen (1997) 71 ALJR 638; 143 ALR 498; 94 A Crim R 152 (HC) Kirby J said (at 645; 506-507; 161): Linguistic and cultural difficulties of conducting interviews with Aboriginals are well documented. [D Mildren, “Redressing the Imbalance Against Aboriginals in the Criminal Justice System” (1997) 21 Criminal Law Journal 7.] They have been recognised by the courts. [R v Anunga (1976) 11 ALR 412; Gudabi v The Queen (1984) 1 FCR 187; 52 ALR 133 at 194-195 (FCR); R v Weetra (1993) 93 NTR 8 at 11].

[1.5015] Purpose In Coulthard v Steer (1981) 12 NTR 13 (Muirhead J) his Honour said (at 16): [T]he Anunga Rules … were directed to police officers, not to stifle or impede the police function, but to promote efficiency of investigation. These Rules have not changed the law relating to the admissibility of evidence. The experience of this court is that they have been understood and well applied by the police. The efficiency of investigation has been thereby advanced. The rationale of the Rules will apply to others of different ethnic backgrounds, with language difficulties or other disadvantages.

[1.5020] Application The application of the rules is discussed in R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J) and R v Echo (1997) 6 NTLR 51; 136 FLR 451 (Martin CJ). The rules apply in Queensland and Western Australia. In R v Aubrey (1995) 79 A Crim R 100 (Qld CA) Fitzgerald J said (at 108): In the course of discussing the Police Commissioner’s directives, the trial judge also expressed the opinion that the Anunga Rules (Anunga (1976) 11 ALR 412) were “particularly directed to tribal people withdrawn from the European way of living, and where usual language is English”. That view seems to me too narrow, and I note that the current Operational Procedures Manual, par 6.3.6, directs reference to the Anunga Rules “as a guideline to the interview of Aborigines and Torres Strait Islanders” generally.

In Webb v The Queen (1994) 13 WAR 257; 74 A Crim R 436 (CCA) Malcolm CJ dealt with the admissibility of a confession (at 259; 438): In determining the issues which were before him I consider that the learned Commissioner should have taken into account the guidelines (sometimes referred to as the Anunga rules) contained in the judgment of Forster J in Anunga (1976) 11 ALR 412 at 413-414. In this respect, as Wallace J remarked in Gibson v Brooking [1983] WAR 70 at 75, I agree that the Anunga rules do not have the force of law in Western Australia and are not absolute. They are essentially guidelines indicating what is required by way of fairness when a person of Aboriginal descent is being questioned by police: see Williams per Rowland and Owen JJ (at 273).

Other cases R v Warrell [1993] 1 VR 671 at 681 (CCA); R v Nundhirrabala (1994) 120 FLR 125 (NT, Mildren J); R v Njana (1998) 99 A Crim R 273 (WA, Scott J); Simon v The Queen (2002) 134 A Crim R 414 at 420-421 [34] (WA CCA).

[1.5030]

ANUNGA RULES

107

[1.5025] Prisoner’s friend In R v Butler (No 1) (1991) 102 FLR 341; 57 A Crim R 451 (NT) Kearney J dealt with the qualities of a prisoner’s friend so as to add to the second point made in Anunga. His Honour said (at 344; 453): He should be aware of the respective rights and duties of the police and of the suspect in that interview, so that he can ensure that the suspect is aware of the possible consequences of the answers he gives. He should be seen to be independent of the police and have a temperament such that he is not himself intimidated by the interviewing environment. He should be able to speak the suspect’s principal language. There will usually be practical difficulties in obtaining the services of people with all the desirable attributes. In any event, the choice of the “friend” is for the suspect alone, not the police, though the police may assist in securing the services of a “prisoner’s friend”, if expressly requested to do so by the suspect: see R v Gudabi (1984) 1 FCR 187 at 199-200; 12 A Crim R 70 at 82. The Commissioner’s General Orders Q 2.8, 2.9 and 2.16 provide suitable instructions to interrogating police officers in relation to the “prisoner’s friend”.

In R v Spencer (2000) 113 A Crim R 252 (NT, Thomas J) the accused made it clear that he wanted to speak on his own and was adamant that he did not want assistance. The police had failed to explain properly the role of the prisoner’s friend. But because of the accused’s insistence the interview was held voluntary and ruled as admissible. In Jabarula v Svikart (1984) 11 A Crim R 131 (NT, Muirhead J) the appellant, an Aboriginal man, was summarily convicted of the illegal use of a motor vehicle. The conviction was based solely on admissions made to a police officer. On appeal against conviction it was argued on his behalf that the admissions had been obtained in breach of the guidelines laid down in R v Anunga (1976) 11 ALR 412. His Honour said (at 139): In case there is any doubt I observe that the steps and precautions to be taken in the questioning of unsophisticated Aboriginal suspects and referred to in Anunga (1976) 11 ALR 412 do not only apply to the situation where such an Aboriginal is being interviewed in a CIB “interview room”. They apply to all situations if the police wish a conversation upon interview to be admitted into evidence.

Choice of prisoner’s friend In R v Gudabi (1984) 1 FCR 187; 12 A Crim R 70 (FCA) the court said in a joint judgment (at 199–200; 82): In our view the choice of prisoner’s friend must be left entirely to the person about to be interviewed, once it has been explained to him that the purpose of the friend’s presence is to give support or help. We think it would be useful if the person to be interviewed were told, before making his choice, that he will be free to talk to his friend, and ask advice, in the course of the interview. What we have said about police officers not trying to influence the choice of prisoner’s friend does not mean that an investigating officer should not give such assistance as he is able to an Aboriginal suspect in securing the services of a prisoner’s friend, provided he gives that assistance at the express request of the suspect. The overriding consideration must always be that the prisoner’s friend is a person selected by the Aboriginal suspect in the exercise of a free choice.

This judgment was applied in R v Butler (No 1) (1991) 102 FLR 341; 57 A Crim R 451 at 344, 453 (NT, Kearney J). In Collins v The Queen (1980) 31 ALR 257 (FCA) Brennan J said (at 322): A prisoner’s friend is intended to enhance the suspect’s ability to choose freely whether to speak or be silent.

[1.5030] Role of prisoner’s friend to be explained to accused Principle The role of the prisoner’s friend should be explained both to the accused and to the prisoner’s friend.

108

ROSS ON CRIME

[1.5035]

In “Redressing the imbalance against Aboriginals in the criminal justice system” (1997) 21 Crim LJ 7, Mildren J wrote (at 10): The accused should be told that the function of the friend is to act in an advisory role to the accused and to assist him or her to understand the matters which the police wish to speak about, that preferably the friend should be someone who is able to speak the same language, and someone who is also reasonably fluent in English. The suspect should be told that a prisoner’s friend should be someone that he or she trusts and has confidence in, and will feel supported by. The suspect should also be told that he or she will be afforded the chance to speak privately to the friend before any formal record of interview takes place, that the suspect should choose someone who is aware of the rights of a suspect and the rights and duties of police when interviewing suspects, that the friend should be someone independent of the police, someone not likely to be afraid of the police and someone not involved in the investigation either as a suspect or as a witness.

Cases R v Weetra (1993) 93 NTR 8 at 11 (Mildren J); Dumoo v Garner (1998) 7 NTLR 129; 143 FLR 245 at 143-144 (NTLR), 258–260 (FLR) (Kearney J); R v Njana (1998) 99 A Crim R 273 at 279 (WA, Scott J); R v LLH (2002) 132 A Crim R 498 at 500 (NT Mildren J).

[1.5035] Caution The caution should be administered accordingly to R v Anunga (1976) 11 ALR 412. The Aboriginal suspect should be cautioned each time he or she is interviewed. It is not sufficient for the police to rely on a caution given a month before. R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J). Even a caution given a day before is insufficient: R v Ninnal (1992) 109 FLR 203 (NT, Mildren J).

[1.5040] Commissioner of police orders The standing orders of the Commissioner of Police require interviewing police to comply with R v Anunga (1976) 11 ALR 412. Qld: Queensland Police Service Operational Procedures Manual 2.14. WA: Commissioner’s Orders and Procedures Manual (the COPS manual) AD-1.3. NT: Police Administration Act s 14A: Police General Orders Q2.

[1.5045] Admissibility of confession: prosecution goes first In Fry v Jennings (1983) 25 NTR 19 Muirhead J held (at 26-27) that the prosecution should begin where there is a challenge to voluntariness because the Anunga rules were not complied with. Even when an Aboriginal defendant invokes the discretion, the prosecution should still begin. See also R v Butler (No 1) (1991) 102 FLR 341; 57 A Crim R 451 at 349, 458 (NT, Kearney J).

[1.5205]

APPEAL

109

APPEAL Meaning ....................................................................................................................................... No appeal unless by statute ........................................................................................................ Appeal has four different meanings ........................................................................................... Legislation allowing appeal ........................................................................................................ Armchair appeal .......................................................................................................................... Not to buy time ........................................................................................................................... Appeal not to fragment criminal proceedings ........................................................................... Witnesses and inferences ............................................................................................................ Appeal court must deal with each ground of appeal ................................................................ Court of appeal substituting conviction for another offence ..................................................... Defence appeal against sentence ................................................................................................ Appeal against conviction after a plea of guilty ....................................................................... Appeal against conviction after plea of guilty following adverse ruling ................................. Combination or aggregate of errors ........................................................................................... Verdict unsafe or unsatisfactory ................................................................................................. Recanting of witness ................................................................................................................... Appeal out of time – application for extension of time ............................................................ Direction too favourable to the accused .................................................................................... Further evidence .......................................................................................................................... Presence of accused .................................................................................................................... Death of appellant ....................................................................................................................... When no objection taken by counsel at trial ............................................................................. High Court: point not taken below ............................................................................................ Transcript absent or insufficient ................................................................................................. Affidavit of trial counsel for Court of Appeal ........................................................................... No identifiable sentencing error but sentence wrong ................................................................ Weight given to relevant factor .................................................................................................. Notice of abandonment of appeal .............................................................................................. Prosecution appeal against inadequacy of sentence .................................................................. Prosecution must not blow hot and cold ................................................................................... Prosecution sentence appeal after prosecutor’s errors ............................................................... Manifest excess or inadequacy of sentence ............................................................................... Parties duty on arguing tariff ...................................................................................................... Increasing sentence on defence appeal ...................................................................................... Prosecution sentence appeal: consistent stance ......................................................................... Prosecution appeal against acquittal: order for retrial ............................................................... Analysing directions of the trial judge ...................................................................................... No tinkering ................................................................................................................................ Trial judge’s report ..................................................................................................................... Nature and use of trial judge’s report ........................................................................................ Reopening an appeal ................................................................................................................... Inherent power when the order has passed into record ............................................................ Writings ....................................................................................................................................... Other references .......................................................................................................................... Ten hints on an appeal against conviction to a Court of Appeal .............................................

[1.5200] [1.5205] [1.5210] [1.5215] [1.5220] [1.5225] [1.5230] [1.5235] [1.5240] [1.5245] [1.5250] [1.5255] [1.5260] [1.5265] [1.5270] [1.5275] [1.5280] [1.5285] [1.5290] [1.5295] [1.5300] [1.5305] [1.5310] [1.5315] [1.5320] [1.5325] [1.5330] [1.5335] [1.5340] [1.5345] [1.5350] [1.5355] [1.5360] [1.5365] [1.5370] [1.5375] [1.5380] [1.5385] [1.5390] [1.5395] [1.5400] [1.5405] [1.5410] [1.5415] [1.5420]

[1.5200] Meaning An appeal is an application to a higher court to change the decision of the court below. The application must be authorised by statute.

[1.5205] No appeal unless by statute In Sweeney v Fitzhardinge (1906) 4 CLR 716 Griffith CJ said (at 725): There is no doubt that, as a general rule, an appeal will not lie from a court unless an appeal is given by statute, and usually, when as new court is created and no appeal is given, prima facie, no appeal will lie.

110

ROSS ON CRIME

[1.5210]

In Grierson v The King (1938) 60 CLR 431 Dixon J said (at 436): Appeal is not a common-law remedy, and proceedings at law are only subject to that remedy by statute (Attorney-General v Sillem (1864) 2 H & C 581, at pp 608, 609; 159 ER 242, at p 253).

In Gipp v The Queen (1998) 194 CLR 106; 155 ALR 18; 102 A Crim R 299 Kirby J said (at 145–146; 46; 331; [117]): Appeal is not a facility of the common law. It is a creature of statute: Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220 at 225 per Rich, Dixon, Evatt and McTiernan JJ.

In Byrnes v The Queen (1999) 199 CLR 1; 164 ALR 520 Kirby J said (at 35; 543 [84]): Appeal is not a creature of the common law. It is invariably the creation of statute. To assess, where challenged, the purported exercise by a party of a right to appeal … it is essential to scrutinise the suggested legislative foundation for such right and jurisdiction. If it cannot be demonstrated in the language, or in the implications to be derived from the language, of the relevant statute, the right and jurisdiction asserted do not exist. The common law cannot be invoked to fill total silences in the legislation.

Examples In Smith v The Queen (1994) 181 CLR 338; 76 A Crim R 32; 125 ALR 385 the High Court held that a prosecution appeal from a trial judge who stayed a presentment was not competent. In Bond v The Queen (2000) 201 CLR 213; 169 ALR 607; 111 A Crim R 50 the High Court held that the DPP (Cth) did not at the time have the power to bring appeals. In DPP v Garde-Wilson (2006) 15 VR 640; 168 A Crim R 296 (CA) the court held that a prosecution appeal against sentence for contempt of court was incompetent, for it was not specifically permitted by statute. Other cases Osenkowski v Magistrates Court (2006) 96 SASR 456; 204 FLR 419; 168 A Crim R 152 (FC); R v Marriner [2007] 1 Qd R 32; (2006) 160 A Crim R 63 (CA); R v Stone (2005) 64 NSWLR 413; 157 A Crim R 41 (CCA); R v Long (No 1) (2001) 120 A Crim R 260 (Qld CA); Smith v The Queen [2000] 1 WLR 1644 (PC); Hinton v The Queen (2000) 177 ALR 300; 115 A Crim R 74 (FCA); R v Lowrie [1998] 2 Qd R 579; (1997) 100 A Crim R 1 (CA).

[1.5210] “Appeal” has four different meanings In Eastman v The Queen (2000) 203 CLR 1; 172 ALR 39; McHugh J said (at 40-41; 65 [130]): In a variety of legal contexts, courts still recognise that “appeal” has at least four different meanings. It may mean an appeal in the true sense, an appeal by rehearing on the evidence before the trial court, an appeal by way of rehearing on the evidence before the trial court and such further evidence as the appellate court admits pursuant to a statutory power to do so, and an appeal by way of a hearing de novo. Which of these meanings the term “appeal” has depends on the context of the term, the history of the legislation, the surrounding circumstances, and sometimes an express direction as to what the nature of the appeal is to be.

[1.5215] Legislation allowing appeal A convicted person may appeal against conviction or sentence or both. Legislation allows it. Qld: Criminal Code s 668D;

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WA: Criminal Appeals Act 2004 s 23; Tas: Criminal Code s 401(1); NT: Criminal Code s 410; NSW: Criminal Appeal Act 1912 s 5; Vic: Charter of Human Rights and Responsibilities Act 2006 s 25(4); Criminal Procedure Act 2009 ss 254, 272, 274, 278; SA: Criminal Law Consolidation Act 1935 s 352(1)(a); ACT: Human Rights Act 2004 s 22(4); NZ: New Zealand Bill of Rights Act 1990 s 22(4); Crimes Act 1961 s 383(1); Eng: Criminal Appeal Act 1968 s 1 (conviction), s 10 (sentence); Can: Criminal Code s 675.

[1.5220] Armchair appeal In R v Mahoney (2000) 114 A Crim R 130 (NSW CCA) Dunford J, with whom the other judges agreed, said (at 134 [15]): This is a classic example of what has been descirbed as an “armchair appeal”, where after the trial, counsel not involved in the trial has sat down and gone through the whole of the transcript and summing up looking for error, without reference to the manner in which the trial was conducted: R v Fordham (1997) 98 A Crim R 359 (noted 72 ALJ 284).

Similar views expressed: R v Fuge (2001) 123 A Crim R 310 (NSW CCA) at 319 [40] per Wood CJ at CL; R v Fowler (2003) 151 A Crim R 166 at 175 [38] (NSW CCA).

[1.5225] Not to buy time In Venezia v Marshall (2001) 120 A Crim R 596 (Vic CA) Brooking JA giving the judgment of the court said (at 597 [4]): The appeal procedure is not to be used as a means of buying time.

[1.5230] Appeal not to fragment criminal proceedings In R v Iorlano (1983) 151 CLR 678; 50 ALR 291 the court said in a joint judgment (at 660; 292): However, it seems necessary to repeat that it is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings of admissibility of evidence. The fact that the court has expressed its conclusion on the substantive question at issue in the present case is not intended to encourage applications of this kind. Both applications are dismissed.

In Joosse v ASIC (1998) 73 ALJR 232; 159 ALR 260 (Hayne J) his Honour rejected an interlocutory application and said (at 234; 262 [9]): This court has said repeatedly that the criminal process should not be interrupted by testing interlocutory rulings that may be given in the course of proceedings. (footnotes omitted)

But it depends on the nature and stage of the proceedings, the effect of the disruption and the availability of alternative remedy. In Magistrates Court (Vic) v Murphy (1997) 2 VR 186; 89 A Crim R 403 (CA) Charles JA after dealing with the principles said (at 214; 434):

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The proceedings for contempt against the respondent are at an early stage. They can, for the reasons I have given, readily be heard by another magistrate or dealt with, if it be thought appropriate, under Supreme Court Rule 75.05. If this matter were to proceed before the present magistrate, it would be necessary for those representing the respondent to ensure that by their actions they did not waive the claim that the magistrate was biased: Vakauta v Kelly (1989) 167 CLR 568. In all the circumstances, I think the administration of justice is better served in this case by intervention during the criminal process rather than by requiring the respondent to resort to an appeal or to certiorari after the contempt charge has been determined.

In Oates v Williams (1998) 84 FCR 348; 156 ALR 1; 102 A Crim R 353 the Federal Court said in a joint judgment (at 361; 13-14; 365): [C]ourts have repeatedly indicated that the fragmentation of a criminal trial by way either of leave to appeal or judicial review is highly undesirable and will only be allowed in exceptional circumstances. This point has been made by the High Court in many cases and without citing all of them we refer to: Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505; R v Iorlano (1983) 151 CLR 678; 50 ALR 291; Clyne v Director of Public Prosecutions (Cth) (1984) 154 CLR 640; 55 ALR 9; Yates v Wilson (1989) 168 CLR 338; Vereker v O’Donovan (1988) 6 Leg Rep SL3; Beljajev v Director of Public Prosecutions (1991) 173 CLR 28; Elliott v Seymour (1993) 119 ALR 1; Coco v Shaw (HC of A, Special Leave Application, 26 June 1991, unreported); Re Rozenes; Ex parte Burd (1994) 120 ALR 193; 68 ALJR 372; Parker v Taylor (1994) 68 ALJR 496. On the other hand, there are many instances where a court has reviewed a decision rather than permitting the matter to be left to the trial judge of the criminal proceeding. Again without being exhaustive the cases include Beneficial Finance Corp Ltd v Australian Federal Police (1991) 103 ALR 167; Parker v Churchill (1985) 9 FCR 316; 63 ALR 326; R v Tillett; Ex parte Newton (1969) 14 FLR 101; Lego Australia Pty Ltd v Paraggio (1994) 124 ALR 225; Karina Fisheries Pty Ltd v Mitson (1990) 26 FCR 473; 96 ALR 629; George v Rockett (1990) 170 CLR 104; 93 ALR 483; Freeman v Roberts (1992) 37 FCR 399.

See also, Potter v Tural (2000) 2 VR 612; 121 A Crim R 318; [2000] VSCA 227 at [52]. Moreover, interloctutory appeals are expressly permitted in Victoria: Criminal Procedure Act 2009 (Vic), ss 295-301.

[1.5235] Witnesses and inferences Saunders v Adderley [1999] 1 WLR 884 (PC) was a civil case. Mr Saunders was injured in a car accident and claimed damages. In the course of the judgment the Board advised (at 889): It is well established that an appellate court should not disturb the findings of fact of the trial judge when his findings depend upon his assessment of the credibility of the witnesses, which he has had the advantage of seeing and hearing – an advantage denied to the appellate court. However, when the question is what inferences are to be drawn from specific facts an appellate court is in as good a position to evaluate the evidence as the trial judge – see Dominion Trust Company v New York Life Insurance Co [1919] AC 254; Benmax v Austin Motor Co Ltd [1955] 1 All ER 326; Whitehouse v Jordan [1981] 1 WLR 246, at pp 249, 252, 263 and 269.

[1.5240] Appeal court must deal with each ground of appeal In Jones v The Queen (1989) 166 CLR 409; 84 ALR 193; 39 A Crim R 400 Mason CJ, Brennan, Dawson and Toohey JJ said (at 411; 194; 401): As it is the duty of a court of criminal appeal to exercise its jurisdiction when that jurisdiction is invoked, the court must hear and determine each ground of appeal which is raised and argued unless the ground is plainly untenable or the party raising it succeeds on another ground. That is not to say that the reasons for judgment of a court of criminal appeal must deal extensively with every ground that is raised and argued. The cogency of the argument and the state of current authority affect the content of the reasons which should be assigned by the court for the order it makes. But the court cannot fail to hear and determine tenable grounds raised and argued in support of a verdict of acquittal merely because the court accepts other grounds of appeal which

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result in quashing the conviction and an order for retrial. A court of criminal appeal which confines its judgment in that way fails to exercise fully its jurisdiction and the appeal remains partially undetermined. The order for retrial cannot be supported, for that order is not appropriate if the appellant is entitled to a verdict of acquittal.

Followed: R v Chai (2002) 76 ALJR 628; 128 A Crim R 101; 187 ALR 436 at [3].

[1.5245] Court of appeal substituting conviction for another offence A court of appeal has the power to substitute another offence for the appealed offence.

Legislation Qld: Criminal Code s 688F(2); WA: Criminal Appeals Act 2004 s 30(5)(c); Tas: Criminal Code s 403(2); NT: Criminal Code s 412(1); NSW: Criminal Appeal Act 1912 s 7(2); Vic: Criminal Procedure Act 2009 s 277(1)(c); SA: Criminal Law Consolidation Act 1935 s 354(2).

Standard of proof In Spies v The Queen (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448, Gaudron, McHugh, Gummow and Hayne JJ said (at 621; 543; 462–463 [49]): [A] court of criminal appeal in this country should not apply a different standard from that which the jury would have applied if they had convicted on the charge intended to be substituted. Thus s 7(2) does not operate unless it appears to the Court of Criminal Appeal to the point of certitude that the jury did find certain acts or omissions, and that those acts and omissions as a matter of law, made the accused guilty of the other offence … The function of the Court of Criminal Appeal is not to find facts, but to give legal effect to the findings of fact that the jury have expressly made or which are necessarily involved in the verdict of guilty which they have returned.

Application In Spies v The Queen (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448 Gaudron, McHugh, Gummow and Hayne JJ said (at 612; 535; 454-455 [24]): Other pairs of offences which readily come to mind as likely candidates for the application of the subsection include murder and manslaughter, rape and carnal knowledge, assault with intent to commit rape and indecent assault, incest and carnal knowledge, robbery under arms and robbery, larceny and receiving, housebreaking and receiving, obtaining a chattel by false pretences and obtaining credit by false pretences, many substantive offences and attempts to commit them, burglary and housebreaking, embezzlement and larceny.

The judges referred to cases where each example occurred.

[1.5250] Defence appeal against sentence The defence appeal against sentence almost always points to an error in the exercise of sentencing discretion. That error can also be inferred from an unreasonable or unjust sentence.

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[1.5255]

In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said (at 505): It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

Other cases Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; 175 ALD 315 per Gleeson CJ and Hayne J at 324–325 [3]; R v Shrestha (1991) 173 CLR 48; 100 ALR 757 at 61 (CLR) (parole eligibility); Harris v The Queen (1954) 90 CLR 652 at 655–656; Cranssen v The King (1936) 55 CLR 509 at 520; In Haruma v McCarthy (2008) 183 A Crim R 558 (NT, Southwood J) the magistrate did not properly backdate the sentence. Appeal allowed. A sentence based on a misunderstanding of the statutory maximum does not always result in error: R v Dennis (2000) 114 A Crim R 33 at 37 [14] (Vic CA). See also Fresh evidence at [6.2300].

[1.5255] Appeal against conviction after a plea of guilty In R v Forde [1923] 2 KB 400; [1923] All ER Rep 477; 17 Cr App R 99 (CCA) Avory J said (at 403; 479; 102-103): A plea of Guilty having been recorded, this court can only entertain an appeal against conviction if it appears: (i) That the appellant did not appreciate the nature of the charge, or did not intend to admit that he was guilty of it; or (ii) that upon the admitted facts he could not in law have been convicted of the offence charged.

In DPP (Cth) v Hussein (2003) 8 VR 92; 143 A Crim R 138 (CA) Buchanan JA, with whom the others agreed, referred to Forde [1923] 2 KB 400; [1923] All ER Rep 477; 17 Cr App R 99 then said (at 95; 141 [9]): Those alternatives are not exhaustive, at least in this State, where this court has a duty to intervene if there has been a miscarriage of justice.

In R v Murphy [1965] VR 187 (CCA) Sholl J said (at 190): The question for the court always is whether there has been a miscarriage of justice, and if there has, the court is subject to a mandatory obligation to set aside the conviction. Most of the reported cases can, it is true, be fitted into the principles formulated in R v Forde [1923] 2 KB 400; [1923] All ER Rep 477. But they should not be regarded as exhaustive of all possible cases of miscarriage of justice.

In Meissner v The Queen (1995) 184 CLR 132; 80 A Crim R 308; 130 ALR 547 Dawson J said (at 157; 565; 326-327): 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

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set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud.

Other cases R v Carkeet (2008) 185 A Crim R 147 (Qld CA): another person committed the crime; R v Ahmed (2007) 17 VR 454; 179 A Crim R 154 (CA) at 464–468; 165–169 [44] – [55]; R v Pugh (2005) 158 A Crim R 302 (SA CCA); Director of Public Prosecutions (Cth) v Hussein (2003) 8 VR 92; 143 A Crim R 138 (at 95; 141 [9]) (CA); R v Coffey (2003) 6 VR 543; 143 A Crim R 235 (CA); Nelson v Haynes (2003) 27 WAR 154; 140 A Crim R 458 (CA); R v O (2003) 139 A Crim R 432 (Qld CA); R v El-Kotob (2002) 4 VR 546; 132 A Crim R 199 (CA) at [78] – [82]; R v GJB (2002) 4 VR 355; 129 A Crim R 479 (CA); Lim v Bateman (2001) 165 FLR 268; 125 A Crim R 101 (WA FC); R v Parsons (1998) 2 VR 478; 97 A Crim R 267 (CA) per Winnek A CJ at 482-483; 271-272. Improper pressure by a judge for an accused to plead guilty will result in a miscarriage, unless the accused resists that pressure: R v Barnes (1970) 55 Cr App R 100 at 107 (CA).

[1.5260] Appeal against conviction after plea of guilty following adverse ruling In England it is not unusual for someone charged with an offence to make unsuccessful pre-trial submissions, then to plead guilty and appeal against conviction. In Australia such a practice is severely frowned upon.

Australian cases R v Chiron [1980] 1 NSWLR 218 (CCA). Secretary v The Queen (1996) 5 NTLR 96; 107 NTR 1; 131 FLR 124; 86 A Crim R 119 (CCA). R v Frantzis (1996) 66 SASR 558; 87 A Crim R 295 (CCA). R v Cheng (1999) 73 SASR 502; 107 A Crim R 460 at 507-508, 462-463 (CCA). R v Doyle (2001) 123 A Crim R 151 (NSW CCA). In R v Day (2002) 82 SASR 85; 129 A Crim R 198 (CCA) the court held that evidence was wrongly admitted. Appeal dismissed. Perry J said (at [39]): In R v Frantzis (1996) 66 SASR 558; 87 A Crim R 295, serious doubt was expressed by all three members of the court (Cox, Nyland and Lander JJ) as to the propriety of the procedure adopted in that case, which is relevantly the same as the course followed here.

Gray J, with whom Wicks J agreed, said (at [75]):

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[1.5265]

The procedures of the court should not be used in this way. Other avenues are available, including the use of the case stated or questions reserved procedures, or if found guilty following trial, through the appellate process.

In R v Vasic (2005) 11 VR 380; 155 A Crim R 26 (CA) the judges held 2-1 that an appeal after an adverse ruling may be competent, even though the accused had pleaded guilty.

English cases R v Chalkley [1998] QB 848; [1998] 2 All ER 155; [1998] 2 Cr App R 79 (CA). R v Cort [2004] QB 388; [2004] 4 All ER 137. See also Plea at [16.2100].

[1.5265] Combination or aggregate of errors Notwithstanding that individual grounds of appeal may fail, an aggregate of errors may result in a miscarriage of justice. In that event the conviction will be set aside. In R v Ireland (1970) 126 CLR 321 Barwick CJ said (at 331): Quite clearly, in my opinion, an aggregate of faults, none of which if it were the only fault, would afford a justification for making an order for a new trial, may properly lead to the conclusion that a trial, as a whole, had miscarried so that there should be an order for a new trial.

See also R v Gibb and McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 at 166, 396 (CCA); R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211 at 108, 228 (CCA); R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) per Gleeson CJ at 692; R v C (1991) 59 A Crim R 46 at 48, 64 (Vic CCA); R v Kotzmann [1999] 2 VR 123; (1999) 105 A Crim R 243 at 157, 277 (CA); R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (at 297; 8) (CA); Carr v The Queen (2000) 117 A Crim R 272 at 294-295 (Tas CCA); Flowers v The Queen [2000] 1 WLR 2396 at 2408 (PC); R v Morris [2001] 1 NZLR 1 (CA); R v Buckley (2004) 10 VR 215; 149 A Crim R 122 at [61] (CA).

[1.5270] Verdict unsafe or unsatisfactory Where there is a ground of appeal that the verdict is unsafe or unsatisfactory, the question which a Court of Criminal Appeal must ask itself is set out in M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63 where Mason CJ, Deane and Toohey JJ said (at 493; 328–329; 215–216): Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

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The application of the test was discussed in M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63 where the same judges said (at 494; 329; 216–217): In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the Court of Criminal Appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

See also Jones v The Queen (1997) 191 CLR 439; 98 A Crim R 107; 149 ALR 598; 143 ALR 52 per Gaudron, McHugh and Gummow JJ at 450–451; 606–607; 116–117; SKA v The Queen [2011] HCA 13; R v Fowler [2012] QCA 258; R v Razak [2012] QCA 244; NM v The Queen [2012] NSWCCA 215; SKA v The Queen [2012] NSWCCA 205; Fitzgerald v The Queen [2014] HCA 28; Cook v The Queen [2014] VSCA 220; LB v The Queen [2014] NSWCCA 295; R v Muller [2015] QCA 49. In BCM v The Queen [2013] HCA 48 the High Court, at [31] (citing SKA v The Queen [2011] HCA 13), stated that in determining whether guilty verdict is unreasonable, an appellate court is required to “disclose its assessment of the capacity of the evidence to support the verdict”. This is not satisfied by a mere indication that the jury is entitled to accept prosecution evidence. See also CLC v The Queen [2015] NSWCCA 248; Shamoun v The Queen [2015] NSWCCA 246; R v Andres [2015] QCA 167. Tran v The Queen (2000) 105 FCR 182; 180 ALR 62; 118 A Crim R 218 (FCA) at [84].

[1.5275] Recanting of witness In Davies and Cody v The King (1937) 57 CLR 170 the court said in a joint judgment (at 183): A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined.

See also Fresh evidence at [6.2300].

[1.5280] Appeal out of time – application for extension of time The principles are set out in R v O’Keefe [1979] VR 1; (1978) 23 ALR 246(CCA). The court said in a joint judgment (at 5; 250): An applicant who has been dilatory or who has acted in such a way as to indicate that he does not intend to appeal has small if any claim to the exercise of the discretion of the court in his favour. On the other hand, if the applicant has acted promptly, his case will be considered very differently. Where there has been a long delay the practice of the court has been not to grant the extension sought unless it is clear that the decision is attended with such doubt as to make it probable that the appeal will succeed.

Followed: R v Davis (2003) 6 VR 538 at 539 [5] (CA).

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Other cases Green v The Queen (1989) 95 FLR 301 (NT CCA); Crabbe v The Queen (1990) 101 FLR 133; 49 A Crim R 446 (NT CCA); Gavin v The Queen (1992) 6 WAR 195 at 201-202 (CCA); Hubert v The Queen (1993) 67 A Crim R 181 at 184-185 (WA CCA); Jeffers v The Queen (1993) 67 ALJR 288; 112 ALR 85 (HC); X v The Queen (1993) 69 A Crim R 130 (WA CCA); R v Droullos (1994) 71 A Crim R 82 at 83 (NT CCA); Azaddin v The Queen (1999) 109 A Crim R 474 at 476 (WA CCA); S v The Queen (2002) 132 A Crim R 326 at 331 [29] (WA CCA).

[1.5285] Direction “too favourable to the accused” An appeal court will often dismiss an appeal against conviction and say that the directions were not according to law but were too favourable to the accused. But the directions must be according to law. In BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101 McHugh J said (at 306; 123; 424): Trial judges have not authority to dispense with the directions that the law requires them to give in criminal trials. If the failure to give a direction may be resulted in the conviction of the accused person, the trial has not been conducted according to law and the conviction constitutes a miscarriage of justice. It is no answer that the directions which were given or not given gave the accused a better chance of acquittal than the directions that the law required. A person is entitled to be tried according to law. If the failure to give a required direction may have brought about the accused’s conviction, there is a miscarriage of justice.

[1.5290] Further evidence Generally an appeal court confines itself to considering the evidence at trial and will not receive further evidence. But the affidavit of the applicant was accepted in R v O’Connor (1992) 59 A Crim R 278 (Vic CCA). Affidavits of nearly all the trial participants were accepted in R v Hunter (1999) 105 A Crim R 223 at 229 (NSW CCA) and the appellant and his counsel were cross-examined on them. In R v Gillard and Preston (1999) 76 SASR 76; 154 FLR 311 (CCA) Mr Preston had sought at trial to be given all the telephone intercepts and listening device tapes, not just the ones relied on by the prosecution. The CCA ordered their production for the appeal. In the end the appeal was dismissed: R v Gillard (2000) 78 SASR 279 (CCA). The High Court will not accept further material because it has no jurisdiction to do so: Mickelberg v The Queen (1989) 167 CLR 259; 86 ALR 321; 43 A Crim R 182. See also Fresh evidence at [6.2300].

[1.5295] Presence of accused A convicted person has a right to be present at an appeal: Campbell v The Queen [2006] UKPC 56 (PC, 30 November 2006).

[1.5300] Death of appellant If the appellant dies the appeal abates: Sen v The Queen (1991) 30 FCR 173; 55 A Crim R 349 (FCA).

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R v Kearley (No 2) [1994] 2 AC 414; [1994] 3 All ER 246; (1993) 99 Cr App R 335 (HL). R v Rimon (deceased) (2003) 6 VR 553; 142 A Crim R 226 (CCA). On High Court appeals: Judiciary Act 1903 (Cth) s 77V.

[1.5305] When no objection taken by counsel at trial Generally In HML v The Queen (2008) 235 CLR 334; 245 ALR 204; 183 A Crim R 159 Hayne J, with whom all the other judges agreed, said of the appeal by SB (at [207]): It is only in an exceptional case that this court will give special leave to appeal from a decision of a Court of Criminal Appeal affirming a conviction when the point the applicant seeks to raise was not taken either at trial or in the Court of Criminal Appeal.

In R v Ditrioa & Tucci [1981] VR 247 (CCA) the court said in a joint judgment (at 252): It is impermissible to withhold an argument from presentation at the time when reliance should be placed on it and then in appellate proceedings, if the trial result is adverse, to raise the point for the first time.

In R v Wilson (2005) 62 NSWLR 346 (CCA) Hunt A-JA, with whom the other judges agreed, said (at 353 [24]): One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance of counsel to which he or she is entitled in the increasingly difficult task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge’s attention had been drawn to it, if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the error to the judge’s attention, and if the error has caused no miscarriage of justice, it can hardly be called appropriate to permit an appellant to seek a new trial on the basis of that error in the hope that he may do better with a different jury.

In R v Smart [1983] 1 VR 265 (CCA) the court held in a joint judgment (at 297): Speaking generally, an applicant for leave to appeal against conviction is not allowed to rely in this court on a criticism of the judge’s charge which has not been taken by way of exception at the trial and if we had not determined that the present application should succeed on other grounds, we should have had to give very careful consideration to the question whether, in the light of the course taken at the trial, the applicant should have been allowed to rely upon a number of the grounds of criticism of the charge … Counsel cannot save up his criticisms for the Full Court.

In Stirland v DPP [1944] AC 313; [1944] 2 All ER 13; (1944) 30 Cr App R 40 (HL) Viscount Simon, with whom the other Lords agreed, said (at 328; 19; 56): [T]he court must be careful in allowing an appeal on the ground of reception of inadmissible evidence when no objection has been made at the trial by the prisoner’s counsel. The failure of counsel to object may have a bearing on the question whether the accused was really prejudiced … The object of British law, whether civil or criminal, is to secure, as far as possible, that justice is done according to law, and, if there is a substantial reason for allowing a criminal appeal, the objection that the point now taken was not taken by counsel at trial is not necessarily conclusive.

No objection but appeal allowed In R v Clune (No 2) [1996] 1 VR 1; (1995) 82 A Crim R 247 (CA) Callaway JA giving the judgment of the court said (at 6; 252): No exception was taken at the trial to the parts of his Honour’s charge to which I have referred. That is an obstacle in the applicant’s path. See, for example, Clarke and Johnstone [1986] VR 643 at 661-2; (1986) 21 A Crim R 135 at 154–155. There is however no inflexible rule in Victoria that an exception must be taken at trial, nor is it permissible to formulate general rules fettering the

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[1.5310]

discretion of this court on a criminal appeal to allow a new point to be raised or our duty to rectify a substantial miscarriage of justice. In all the circumstances of the present case the convictions must be quashed.

See also R v FJB [1999] 2 VR 425; (1999) 105 A Crim R 567 (at 431; 574 [29]) (CA); R v Chang (2003) 7 VR 236; 140 A Crim R 573 at [49] (CA).

Proviso In T v The Queen (1997) 191 CLR 417; 149 ALR 693; 99 A Crim R 19 Brennan CJ, Toohey, Gaudron and Gummow JJ spoke of the power of a Court of Appeal to apply the proviso where no point has been taken at trial. They said (at 423–424; 697; 22): There are occasions where a provision such as s 668E(1A) of the Code is properly applied where a point was not taken at the trial because, for example, it was not in issue or there was some forensic advantage to be gained by not raising it. In cases of that kind, the provision is applied because, having regard to the defence case, the accused was not deprived of a chance of acquittal that was fairly open, that being the accepted test for the application of a provision of that kind. Thus, if the appellant was deprived of a chance of that kind, the fact that no complaint was made at trial is irrelevant.

See also Proviso at [16.7600]; R v Omarjee (1995) 79 A Crim R 355 at 371 (Vic CCA); R v Benfield (1997) 2 VR 491; 89 A Crim R 118 at 503-504 (CA); R v Defrutos [1998] 2 VR 589 at 599-600 (CA); A Lawrence, “Failure to Object: The Death of Evidential Rules” (1997) 15 Aust Bar Rev 137. Handlen v The Queen [2011] HCA 51.

[1.5310] High Court: point not taken below The High Court will consider a ground not taken at trial or in an intermediate court of appeal. Special leave to appeal on such a ground will be granted only in exceptional circumstances. Giannarelli v The Queen (1983) 154 CLR 212 per Gibbs CJ at 221. Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 at 14 – 20; 156 – 163 (CLR). Heron v The Queen (2003) 77 ALJR 908; 197 ALR 81; 140 A Crim R 317 per Gleeson CJ at [1]; [6]. Fingleton v The Queen (2005) 227 CLR 166; 153 A Crim R 503; 216 ALR 474; [2005] HCA 34. Smith v The Queen (2001) 206 CLR 650; 125 A Crim R 10; 181 ALR 354; [2001] HCA 50 at [22].

[1.5315] Transcript absent or insufficient In R v Elliott (1909) 2 Cr App R 171 (CCA) Channell J said (at 172): The absence or insufficiency of a shorthand note is not of itself a ground upon which a prisoner can succeed upon appeal, nor the existence of a proper note a condition precedent to a good trial.

[1.5335]

APPEAL

121

Where, however, there is reason to suspect that there is something wrong in connection with the hearing of a case, the absence or insufficiency of a proper shorthand note may be material.

Approved: R v Payne and Spillane [1971] 1 WLR 1797; [1971] 3 All ER 1146; 56 Cr App R 9 (CA). R v Le Caer (1972) 56 Cr App R 727 (CCA).

[1.5320] Affidavit of trial counsel for Court of Appeal The reasons for the course taken by counsel are not generally relevant. But an affidavit of trial counsel was received in R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) and R v Fuge (2001) 123 A Crim R 310 at 314 [20] (NSW CCA). Where trial counsel is said to have acted wrongly, it is ordinarily wise to bring the allegation to that counsel’s attention: R v Brown (2002) 5 VR 463; (1993) 135 A Crim R 582 at 472; 591 [36] (CA). See also R v Miletic [1997] 1 VR 593 at 596-597 (CA); R v Hines (1991) 24 NSWLR 737 (CCA) per Sully J at 743; Plea at [16.2100].

[1.5325] No identifiable sentencing error but sentence wrong An appeal court may find that there is no identifiable error in the sentencing remarks but there must have been an error because the sentence is quite wrong. In R v Okutgen (1982) 8 A Crim R 262 (Vic CCA) Starke J, with whom Crockett and O’Bryan JJ agreed, said (at 265): I am not able to detect a specific error in the learned judge’s reasons for sentence. However, I have come to a clear view that the sentence imposed was of such a character that there must have been some error in the learned judge’s reasoning for him to have arrived at the sentence that he did arrive.

In DPP v VH (2004) 10 VR 234; 149 A Crim R 367 (CA) Callaway JA said (at 238; 372 [12]): The manifest inadequacy of the sentences shows that, notwithstanding the absence of specific error, there must have been error of principle.

[1.5330] Weight given to relevant factor An appeal court should be loath to give different weight to a relevant factor than did the sentencing judge. In R v Bernath [1997] 1 VR 271 (CA) Callaway JA, with whom the other judges agreed, said (at 277): A ground of appeal may complain that a sentencing judge failed to give due weight or, alternatively, gave excessive weight to a relevant factor, but that stands in contrast with a ground that asserts that the judge disregarded such a factor altogether or took an irrelevant factor into consideration. Where the complaint is made in terms of weight, an appellate court must be especially cautious not to substitute its own opinion for that of the judge in the absence of identifiable or manifest sentencing error.

[1.5335] Notice of abandonment of appeal Generally An appellant can withdraw an appeal by filing a notice abandoning it. All jurisdictions contain rules setting out such a power and the form to achieve abandonment: R v Aniba (1995) 83 A Crim R 224 (Qld CA); R v Green [1989] 1 Qd R 408; (1988) 32 A Crim R 417 (CCA).

122

ROSS ON CRIME

[1.5340]

Withdrawal An appeal court will grant leave to withdraw a notice of abandonment of appeal in exceptional cases: R v Piscitelli (1981) VR 50; 6 A Crim R 368 at 55-56, 373-374 (CCA). Bridges v The Queen (1998) 20 WAR 59; 104 A Crim R 322 (CCA). R v Bell (1987) 8 NSWLR 311; 28 A Crim R 417 (CCA).

Exceptional cases are where the appellant has made a mistake Mullally v The Queen (2001) 123 A Crim R 371 (WA CCA). Morey v The Queen (1993) 65 A Crim R 145 (WA CCA). Johnson v The Queen (1992) 57 A Crim R 290 (WA CCA). R v Tabe [1983] 2 Qd R 60; (1983) 6 A Crim R 474 (CCA).

Formalities R v Narula (1986) 21 A Crim R 284 (Vic CCA).

[1.5340] Prosecution appeal against inadequacy of sentence Legislation Qld: Criminal Code s 669A(1); WA: Criminal Appeals Act 2004 s 24(1); Tas: Criminal Code s 401(2)(c); NT: Criminal Code s 414(1)(c); NSW: Criminal Appeal Act 1912 s 5D; Vic: Criminal Procedure Act 2009 s 287; SA: Criminal Law Consolidation Act 1935 s 352(1)(a)(iii); ACT: Director of Public Prosecutions Act 1990 ss 10 and 16A; NZ: Crimes Act 1961 s 383(2).

General principles In DPP (Vic) v Bright (2006) 163 A Crim R 538 (Vic CA) Redlich JA, with whom the other judges agreed, said (at 542–543 [10]): The inadequacy of the sentence must be “clear and egregious”, the sentence being so disproportionate to the seriousness of the crime as to shock the public conscience and “undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes”. When re-sentencing the offender the appellate court must pay careful heed to the factor of double jeopardy, inherent in a Crown appeal, arising from the respondents exposure to sentencing on a second occasion for the same crime. Because of the element of double jeopardy, Crown appeals are regarded as having a “rare and exceptional” character which calls for restraint, even where manifest inadequacy may be present, the court having an overarching discretion not to interfere. Double jeopardy is a factor which must be considered in both the courts determination of whether this court should exercise its discretion to allow the Crown appeal and, where the discretion is exercised, as to the sentence which should be imposed. Any different sentence to be imposed must allow for double jeopardy. [omitting his Honour’s extensive references to authority]

[1.5340]

APPEAL

123

In York v The Queen (2005) 225 CLR 466; 221 ALR 541; 156 A Crim R 249 McHugh J, citing five cases, said (at 477; 549; 259; [33]): Since the conferral on the Crown of rights of appeal against sentences, appellate courts have been much influenced in their approach to such appeals by the principle of double jeopardy.

In R v Davey (1980) 50 FLR 57; 2 A Crim R 254 (FCA) Muirhead J said (at 67; 261): [T]here is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under probation by the judge he has seen considering his case, only to find himself re-arrested to serve a custodial sentence imposed elsewhere, a sentence he will not regard as just. Respect for the law is very much at risk under such circumstances.

Approved: R v Morton (2001) 11 NTLR 97 at 102 [14] (CCA). In Lowndes v The Queen (1999) 195 CLR 665; 163 ALR 483 the court said in a joint judgment (at 671–672; 488 [15]): The principles according to which an appellate court may interfere with such a discretionary judgment by the sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass (1993) 72 A Crim R 561 and R v Clarke [1996] 2 VR 520. Of particular importance in the present case is the principle that a Court of Criminal Appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic: House v The King (1936) 55 CLR 499. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice.

In R v Payne (2004) 89 SASR 49; 146 A Crim R 98 (CCA) the Full Bench said in a joint judgment (at 70; 119 [86]): The principles to be applied to applications by the Director of Public Prosecutions for leave to appeal against a sentence are well known. Leave should only be granted to establish some matter of principle, pursuant to which the Court of Criminal Appeal might give guidance to sentencing judges, or if it is necessary for the court to establish and maintain adequate standards of punishment for a crime, or to correct a sentence which is so disproportionate to the seriousness of the crime as to require intervention so that standards of penalty and public confidence in the administration of justice can be maintained: see Everett v The Queen (1994) 181 CLR 295 at 299-300; Griffıths v The Queen (1977) 137 CLR 293; R v Osenkowski (1982) 30 SASR 212 at 212-213.

In R v Clarke [1996] 2 VR 520; (1996) 85 A Crim R 114 (CA) Charles JA said (at 522, 116): The principles which apply to Crown appeals are well established: Griffıths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310; Malvaso v The Queen (1989) 168 CLR 227 per Deane and McHugh JJ at 234; Everett v The Queen (1994) 181 CLR 295 per Brennan, Deane, Dawson and Gaudron JJ at 299. These principles were recently stated in summary form in the judgment of the Court of Criminal Appeal of New South Wales in R v Allpass (1993) 72 A Crim R 561 at 562-563. See also R v Osenkowski (1982) 30 SASR 212 at 212-213 per King CJ.

The reluctance to grant a prosecution appeal is especially strong where the offender has not been sentenced to jail. In R v Harkin (2011) 109 SASR 334; [2011] SASCFC 24, Gray and Sulan JJ at [21] stated: In a case where an offender has been given a non-custodial or suspended sentence, the appellate court will be particularly reluctant to interfere and impose a sentence of immediate imprisonment. In Hicks, King CJ observed: When a person … has been told that he will not have to go to prison, a great load is lifted from his mind. The consequences of reversing that intimation could be devastating. The relevant rules may be stated in the following propositions:

124

ROSS ON CRIME

[1.5340]

1. An appeal by the Crown should be brought only in “the rare and exceptional case” (Everett (1994) 181 CLR 295 at 299) to establish some point of principle. The reason is that such appeals “represent a departure from traditional standards of what is proper in the administration of criminal justice in that, in a practical sense, it is contrary to deep-rooted notions of fairness and decency which underlie the common law principle against double jeopardy” (Malvaso (1989) 168 CLR 227; 89 ALR 34; 43 A Crim R 451 at 234). 2. Occasions may arise for the bringing of a Crown appeal (a) where a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute error in principle (Everett (1994) 181 CLR 295 at 300); (b) where it is necessary for a Court of Criminal Appeal to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons (Griffıths (1977) 137 CLR 293; 15 ALR 1 at 310); (c) to enable the courts to establish and maintain adequate standards of punishment for crime; (d) to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; (e) to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience (as to the last three, see Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 at 213); (f) to ensure, so far as the subject matter permits, that there will be uniformity in sentencing (Everett (1994) 181 CLR 295 at 306). 3. A Court of Criminal Appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy or it is shown that the sentencing judge fell into material error of law or fact (Allpass (1993) 72 A Crim R 561 at 562-563). Allpass (1993) 72 A Crim R 561 is also authority for the following propositions: 4. When, in response to a Crown appeal, the court decides to resentence an offender, it ordinarily gives recognition to the element of double jeopardy involved (in twice standing for sentence) by imposing a sentence that is somewhat less than the sentence it considers should have been imposed at first instance. 5. An appellate court has an overriding discretion which may lead it to decline to intervene, even if it comes to the conclusion that error has been shown in the original sentencing process. In this connection, the conduct of the Crown at the original sentencing proceedings may be a matter of significance.

Approved: DPP v McMaster (2008) 19 VR 191; 185 A Crim R 247 at [67] CA; Western Australia v Miller (2005) 30 WAR 38; 152 A Crim R 474 at 41–42 [32] (WAR) (CA). Followed: R v Lappas (2003) 152 ACTR 7; 139 A Crim R 77 (at 25; 96 [124]) (CA); In DPP v Whiteside (2000) 1 VR 331; 114 A Crim R 234 (CA) Winneke P said (at 336; 240 [17]): [A]uthorities make it clear that the court’s jurisdiction … to interfere, at the instance of the Director of Public Prosecutions, with a sentencing discretion already exercised against a respondent, should only be used in those rare cases where, inter alia, it is necessary to maintain proper sentencing standards and principles. The court does not interfere with a sentence merely because it thinks that it is less than it would itself have imposed; rather it only intervenes when material error in reasoning is discerned, or such inadequacy as is indicative of error or departure from principle: R v Dodd (1991) 57 A Crim R 349 at 351 per Gleeson CJ, Lee CJ at Cl and Hunt J.

[1.5340]

APPEAL

125

Followed: DPP (Vic) v Raddino (2002) 128 A Crim R 437 at 440 [14] (Vic CA); DPP v Heblos (2000) 117 A Crim R 49 at 55 [30] (Vic CA). In R v Nemer (2003) 87 SASR 168; 143 A Crim R 50 (CCA) Doyle CJ said (at 172; 54 [24]): [T]he court should not grant leave to appeal to the Director merely with a view to correcting a sentence that is too low. But if the sentence is so far below the appropriate standard that to allow the sentence to stand would shake public confidence in the administration of justice, then it may be appropriate to grant leave to appeal even though no general point of principle will be established by the case.

Other cases R v Syrch (2006) 18 NTLR 160; 204 FLR 22; 165 A Crim R 129 (CCA); R v Roche (2005) 188 FLR 336 (WA CCA); DPP (Vic) v Cook (2004) 141 A Crim R 579 (Vic CA); R v Disun (2003) 27 WAR 146 (CCA); R v Agius (2000) 77 SASR 469; 115 A Crim R 387 (CCA) (noted (2001) 25 Crim LJ 228); R v Meers (1998) 101 A Crim R 329 (Tas CCA); R v Stunden [2011] NSWCCA 8; Bui v DPP (Cth) (2012) 244 CLR 638; 218 A Crim R 241; 86 ALJR 208; [2012] HCA 1; R v O’Connor [2012] SASCFC 15; In R v Wall [2002] NSWCCA 42, Wood CJ at CL, with whom the others agreed, said (at [70]): (a) The normal restriction upon appellate review of the exercise of a discretion, as set out in House v The King (1936) 55 CLR 499, applies to Crown appeals against sentence: Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; 175 ALD 315; with the result that this court cannot merely substitute its opinion, as to the appropriate sentence, for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; rather, it may interfere only where error either latent or patent is shown; R v Tait (1979) 46 FLR 386 at 388; and Wong v The Queen (2001) 207 CLR 584 at [58] and [109]. (b) Appeals by the Crown should generally be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234; 43 Crim R 451 at 456, and unless there is a clear error of principle identified, it would be exceptional for the Court to interfere: R v Baker [2000] NSWCCA 85. (c) A Crown appeal against sentence is concerned with establishing matters of principle “for the governance and guidance of courts having the duty of sentencing convicted persons”: per Barwick CJ in Griffıths v The Queen (1977) 137 CLR 293 but this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing, that is, where the sentence is definitely outside the appropriate range for the case in hand: Everett v The Queen (1994) 181 CLR 295 at 299; Dinsdale v The Queen 202 CLR 321; 115 A Crim R 558; 175 ALD 315 (at [61] and [62]), and Wong v The Queen (2001) 159 FLR 328 (at [109]). (d) The court has a lively discretion to refuse to intervene even if error has been shown, and in deciding whether to exercise that discretion, it should have regard to the double jeopardy that a convicted person faces as a result of a Crown appeal: R v Allpass (1993) 72 A Crim R 561, Director of Public Prosecutions (Vic) v Papazisis (1991) 51 A Crim R 242 at 247, and Wong v The Queen (2001) 159 FLR 328 (at [110]).

126

ROSS ON CRIME

[1.5345]

(e) A sentence which is imposed as a consequence of a successful Crown appeal will generally be less than that which should have been imposed by the sentencing court: R v Holder [1983] 3 NSWLR 245 at 256; (1983) 13 A Crim R 375 at 385, and will generally be towards the lower end of the available range of sentence: Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; 175 ALR 315 (at [62]).

Approved: R v AB (2005) 156 A Crim R 577 at 580 [7] (NSW CCA); R v MD (2005) 156 A Crim R 372 at 377-378 [18] (NSW CCA); R v King (2004) 150 A Crim R 409 at 433 [119] (NSW CCA); R v Mas Rivadavia (2004) 61 NSWLR 63; 149 A Crim R 1 (at 67; 11 [64]) (CCA).

Double jeopardy and a corporate offender The principle of double jeopardy on a prosecution appeal against sentence has some application to a corporate offender: DPP (Vic) v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; 155 A Crim R 405 (at 566–567; 415 [41] – [42]) (CA).

[1.5345] Prosecution must not blow hot and cold Generally In DPP v Coleman (2001) 120 A Crim R 415 (Vic CA) Tadgell JA, with whom the others agreed, said (at 421 [18]): [I]t is not open to the Crown to adopt one attitude upon a plea and seek to adopt an opposing attitude upon a Crown appeal. That is not a surprising notion. The Crown ought not to be allowed to blow hot and cold, once in the plea and once upon an appeal; nor should the Crown be allowed to withdraw concessions made upon the plea for the purpose of putting an opposite position upon appeal; nor, indeed, should the Crown be entitled to withdraw concurrences expressed in the course of plea for the purpose of putting a different position on appeal.

In R v Tait (1979) 46 FLR 386; 24 ALR 473 (FCA) Brennan, Deane and Gallop JJ said (at 389–390; 477): Although the existence of error is the common ground which entitles the appellate court to intervene in appeals by the Crown and by a defendant (cf R v Butler [1971] VR 892; R v Liekefett; Ex parte Attorney-General [1973] Qd R 355), there would be few cases where the appellate court would intervene on an appeal against sentence to correct an alleged error by increasing the sentence if the Crown had not done what was reasonably required to assist the sentencing judge to avoid the error, or if the defendant were unduly prejudiced in meeting for the first time on appeal the true case against him.

Suspended sentence In R v Wilton (1981) 28 SASR 362; 4 A Crim R 5 (CCA) King CJ, with whom the others agreed, said (at 368; 10): I endorse with respect what was said in Tait and Bartley as to the duty of prosecuting counsel before the sentencing judge. In particular where a submission is made by counsel for a convicted person that a sentence should be suspended or a possible suspension is mentioned by the judge, and this course is regarded by the prosecution as beyond the proper scope of the judge’s discretion, a submission to that effect should be made. Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.

Approved: Everett v The Queen (1994) 181 CLR 295 at 302.

[1.5355]

APPEAL

127

[1.5350] Prosecution sentence appeal after prosecutor’s errors In R v Amohanga (2005) 155 A Crim R 202 (NSW CCA) Simpson J said (at 225–226 [120]): In R v Kalache (2000) 111 A Crim R 152, Hulme J reviewed a number of authorities concerning error in the sentencing process induced or contributed to by reason of the stance taken by the legal representative of the Crown. Those authorities show that there is no absolute rule that the failure by the Crown properly to discharge its duty and ensure that the sentencing judge is fully and properly informed, either as to the law or the relevant facts, precludes the Crown from subsequently relying upon sentencing error so induced. Criminal sentencing is not adversarial party–party litigation in the same sense as other litigation may be, and there remains always a public interest in the imposition of appropriate sentences for criminal activity. Notwithstanding that, there is an unfairness to offenders, and to a sentencing judge, where the Crown is permitted, on appeal, to establish on the part of the judge error for which the Crown bears all or some of the responsibility.

[1.5355] Manifest excess or inadequacy of sentence General principles The appeal ground that a sentence is manifestly excessive or inadequate does not admit of sustained argument. The error is manifest or it is not. In R v ADJ (2005) 153 A Crim R 324 (Vic CA) Batt JA, with whom the others agreed, said (at 338 [51]): Whether a sentence is manifestly excessive (or manifestly inadequate) is a conclusion which does not admit of much elaboration. For a challenge to a sentence as being manifestly excessive or manifestly inadequate to succeed the sentence must be unreasonable or plainly unjust.

In Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; 175 ALR 315 Gleeson CJ and Hayne J said (at 325–326; 317–318; 561 [6]): Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

In R v Narula (1986) 22 A Crim R 409 (Vic CCA) Vincent J giving the leading judgment said (at 431): It has been said on a number of occasions that the contention that a sentence is manifestly excessive is clearly incapable of argument: see Kenny (unreported, 2 October 1978); Bruce (unreported, 2 June 1978); Monterosso (unreported, 5 September 1978). (Note that this part of the judgment does not appear in the report of the case [1987] VR 661).

In DPP (Vic) v Raddino (2002) 128 A Crim R 437 (Vic CA) Chernov JA with whom the others agreed said (at 444 [30]): This court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.

The structure courts apply to determine manifest excess is set out in Hishmeh v Western Australia [2012] WASCA 183 as follows: [46] To determine if a sentence is manifestly excessive it is necessary to view it in light of the maximum penalty prescribed by law for the offence, the standard of sentencing customarily

128

ROSS ON CRIME

[1.5360]

observed for that type of offence, the level of seriousness of the circumstances of the offending and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342 (Malcolm CJ); McDougall v Western Australia [2009] WASCA 232, [12]-[13] (McLure P, Owen & Wheeler JJA agreeing).

Inadequacy Prosection appeals showing inadequacy are many. Some are: R v Haji–Noor (2007) 21 NTLR 127 (CCA, Full Bench). DPP v Rongonui (2007) 17 VR 571; 179 A Crim R 114 (CA). R v Knott (2007) 169 A Crim R 291 (SA CCA). R v AS (2006) 165 A Crim R 100 (NSW CCA).

[1.5360] Parties duty on arguing tariff Where a party submits that the sentence below is manifestly wrong as departing from the tariff for the offence, it is the duty of that party to put tariff matters to the appeal court: Damaso v The Queen (2002) 168 FLR 103; 130 A Crim R 206 at [48] (NTCCA).

[1.5365] Increasing sentence on defence appeal Legislation in all jurisdictions gives a court the power to increase the sentence of a person who appeals against the severity of the sentence given below. A Court of Appeal should not increase a sentence in this way without giving plenty of notice and allowing the withdrawal of the appeal: Williams v State of Trinidad and Tobago [2005] 1 WLR 1948 (PC). If a judge increases a sentence without warning when sitting on appeal from a magistrate, such a procedure is considered unfair and will be struck down: Parker v DPP (1992) 28 NSWLR 282; 65 A Crim R 209 (CA); Brand v Parson [1994] 1 VR 252; (1993) 68 A Crim R 147 (Coldrey J); Jones v DPP (1994) 76 A Crim R 422 (NSW CA); Fagioli v Ure (1996) 84 A Crim R 504 (Vic, Beach J). There is no unfairness when a judge does give a warning that he may increase the sentence: Muggia v District Court of New South Wales (1995) 79 A Crim R 419 (NSW CA); Lazarescu v County Court of Victoria (1997) 92 A Crim R 336 (Vic, Beach J). A judge took into account six days in custody before appeal bail was granted and otherwise dismissed the appeal. It was held that there was no deliberate increase by six days and thus no unfairness: Ho v DPP (1995) 37 NSWLR 393; 82 A Crim R 80; 22 MVR 523 (CA).

[1.5370] Prosecution sentence appeal: consistent stance In R v Wilton (1981) 28 SASR 362; 4 A Crim R 5 (CCA) King CJ said (at 368): In my opinion, this court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course … Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.

[1.5375]

APPEAL

129

Approved: Malvaso v The Queen (1989) 168 CLR 227; 43 A Crim R 451; 89 ALR 34 at 240 by Deane and McHugh JJ. In R v Vincent; Ex parte Attorney-General [2001] 2 Qd R 327; (2000) 112 A Crim R 433 (CA) the court said (at 329; 435[9]): The unfairness of inconsistent approaches by the Crown at sentence and on appeal is obvious. The restraint exercised by the court in acceding to appeals in such circumstances has been identified on many occasions.

In R v Allpass (1993) 72 A Crim R 561 (NSW CCA) the court said in a joint judgment (at 565): The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: R v Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269; Malvaso v The Queen (1989) 168 CLR 227. The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error.

In Victoria the appeal court seems to have no reservations about allowing a prosecution appeal against sentence when a different stance was taken by the prosecutor before the sentencing judge: R v Morris (1992) 61 A Crim R 233 at 240 (CCA); DPP v Waack (2001) 3 VR 194; 121 A Crim R 134 (CA).

[1.5375] Prosecution appeal against acquittal: order for retrial Legislation NSW: Crimes (Appeal and Review) Act 2001 s 107; WA: Criminal Appeals Act 2004 s 24; SA: Criminal Law Consolidation Act 1935 s 352(1)(ab); Tas: Criminal Code s 401(2), 401(5).

Cases High Court In some cases the High Court will hear and allow a prosecution appeal from a successful defence appeal at State or Territory level: R v Hillier (2007) 228 CLR 618; 233 ALR 634; R v Glennon (1992) 173 CLR 592; 60 A Crim R 18; 106 ALR 177; [1992] HCA 16.

Western Australia R v Udechuki [1982] WAR 21 (CCA); R v Garlett (1987) 31 A Crim R 75 (CCA); R v Hyman and French (1990) 2 WAR 222; 46 A Crim R 217 (FC); R v Williams (1992) 8 WAR 265 at 267 (CCA); R v Lorkin (1995) 15 WAR 499; 82 A Crim R 196 (CCA); R v Hutchinson (2003) 144 A Crim R 28 (CCA).

130

ROSS ON CRIME

[1.5380]

Tasmania R v Sender (1982) 71 FLR 62; 47 ALR 191; 7 A Crim R 344 (Tas CCA); Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1; 66 ALR 385 at 287, 301–302, 314 (CLR), 391, 402–403, 411 (ALR), 6–7, 18–19, 27 (A Crim R); R v Pawsey [1989] Tas R 189; (1989) 44 A Crim R 282 (CCA); R v Sung Bo Kim (1993) 113 FLR 295; 65 A Crim R 278 (CCA); DPP (Tas) v Cook (2006) 166 A Crim R 234 (CCA); DPP v Lynch (2006) 16 Tas R 49; 166 A Crim R 327 (CCA).

Australian Capital Territory A prosecution appeal against an acquitted is incompetent: R v Ardler (2004) 144 A Crim R 552 (ACT CA).

[1.5380] Analysing directions of the trial judge In R v Yates [1970] SASR 302 (CCA) the court said in a joint judgment (at 306): A summing up should not be read as if it were a legal document; it is intended for an audience of laymen, and its object must always be to present, in as assimilable a form as circumstances permit, so much of the law as it is necessary to invoke for the purposes of the case, and such a marshalling and discussion of the facts as will enable the jury to see the central issues and weigh the relevant evidence. It is not a lecture on the law or a philosophical excursus. The ultimate test must always be: What was the final impression left with the jury by the spoken word, bearing in mind the course of the trial, the addresses of counsel, and the circumstances generally?

In Barker v The Queen (1983) 153 CLR 338; 47 ALR 1 Brennan and Deane JJ said (at 368; 25): The learned trial judge’s summing up to the jury cannot, however, properly be read independently of the context of the conduct of the trial. As the English Court of Criminal Appeal (Lord Alverstone LCJ, Darling, Phillimore, Bray and A T Lawrence JJ observed in R v Stoddart (1909) 2 Cr App R 217 at 246: “Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively” (see also R v Vassileva (1911) 6 Cr App R 228 at 231-2; R v Murray [1924] VLR 374 at 383; R v Melville (1956) 73 WN (NSW) 579; R v Deen [1964] Qd R 569 at 572-3); Majok v R [2015] NSWCCA 160.

[1.5385] No tinkering An appeal court should not fiddle with a sentence in a way that would amount to tinkering: R v Cobb (1999) 84 FCR 450 at 453 [19] (FCA); R v Wilson (2000) 116 A Crim R 90 at 97 [21] (Vic CA); Dinsdale v The Queen (2000) 202 CLR 321; 115 A Crim R 558; 175 ALR 315 at 341; 325 [62] per Kirby J. The same principle applies to a prosecution appeal against inadequacy of sentence: R v Roche (2005) 188 FLR 336 at 340 [17] (WACCA).

[1.5390] Trial judge’s report A trial judge may be required to report to the court hearing an appeal.

Legislation Qld: Criminal Code s 671A; WA: Criminal Appeals Act 2004 s 40(h);

[1.5395]

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Tas: Criminal Code s 408(3); NT: Criminal Code s 418; Supreme Court Rules r 86.20; NSW: Criminal Appeal Act 1912 s 11; Vic: Criminal Procedure Act 2009 s 316; Supreme Court (Criminal Procedure) Rules 1998 r 2.27; SA: Supreme Court Criminal Appeal Rules 1996 r 12.

[1.5395] Nature and use of trial judge’s report Conviction In R v Ahmet (1996) 86 A Crim R 316 (Vic CA) Winneke P said (at 323): The report of the primary judge which is contemplated by the rules and s 573 of the Crimes Act is intended to assist the Court of Appeal by giving to it the judge’s “opinion upon the case or upon any point arising in the case”. If the judge does not provide such a report then the court proceeds without any assistance. On some occasions the reports are of value in the disposition of appeals, if only because they provide the opportunity (to which I have referred) to express views upon matters that may not be readily apparent from a perusal of the written record: see, eg Paxton [1983] 1 VR 178, particularly at 187-188. However such reports are not, are not intended to be, and should not be treated as documents in and through which the trial judge is being called upon to defend the course which he or she may have taken. The suggestion that, in some manner, the cause of the applicant can be advanced by the failure of the trial judge to respond to the court’s request or fails, in such report, to deal with a specific ground in a particular way, wholly misconceives the nature of such a report and will, if persisted in, entirely frustrate the purpose of the rule.

Applied: R v Juric (2002) 4 VR 411; 129 A Crim R 408 (at 423; 419 [14]) (CA). See also R v Franks (1999) 105 A Crim R 377 at 387–388 [40] (Vic CA); R v JMV (2001) 124 A Crim R 432 at 434 [6] (Vic CA); When the summing up is in dispute, the trial judge’s report may determine the matter: R v Williams (1995) 84 A Crim R 370 (Qld CA) at 371, 372; The report must not be in the nature of submission or argument: R v Groom [1999] 2 VR 159; 104 A Crim R 375 (CA).

Sentence In R v Sloane (2001) 126 A Crim R 188 (NSW CCA) Wood CJ at CL said (at 189–190 [9] – [13]): The purpose of a report to the Court of Criminal Appeal is not to justify or to explain why a judge has dealt with a matter in a particular way. The proper place for the exposure of reasoning of this kind is in the Reasons for Sentence, and nowhere else. The reasons for that are obvious: (a) the Reasons for Sentence are the published statement of the court, addressed to the community at large, as well as to those immediately involved in the case, as to why an offender was dealt with in a particular way; (b) the provision of an explanation directed to the Court of Criminal Appeal, after a sentence is handed down and an appeal is lodged, risks conveying an impression that the judge, whose decision has been appealed, is seeking to justify or to support it. An important function of a report under s 11 of the Criminal Appeal Act is to inform the Court of Criminal Appeal of any problems which might have emerged during the trial, which either do not appear on the face of the record, or which are imperfectly or ambiguously recorded.

132

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[1.5400]

Another permissible and relevant function of such a report is its use, by a trial judge, to raise any matters of irregularity or otherwise, which may give cause for significant doubt in relation to a guilty verdict, and which again are not apparent upon a bare reading of the record. A third permissible reason for such a report is its provision, in response to a specific request from the Court of Criminal Appeal, in relation to any matter which may be of concern to it. Otherwise, in times where there is in existence an adequate system for court reporting, occasion for the provision of a s 11 report should only arise in exceptional circumstances. Its use in order to justify, or to explain a decision for which reasons should have been provided, is not such a circumstance.

[1.5400] Reopening an appeal Ordinarily an appeal cannot be reopened. Especially when it has passed into record. In Grierson v The King (1938) 60 CLR 431 the High Court held that the New South Wales Court of Criminal Appeal had no jurisdiction to reopen an appeal which it had heard upon the merits and finally determined. The remarks of Jordan CJ (referred to at 432) were approved: When an appeal has once been fully heard and disposed of, that is, in my opinion, an end of the matter so far as appeal is concerned, and the prisoner cannot continue to appeal from time to time thereafter, whenever a new point occurs to him or to his legal advisers or whenever a new fact is alleged to have come to light.

Approved and explained: Elliott v The Queen (2007) 234 CLR 38; 239 ALR 651; 177 A Crim R 564 at [30]. Approved and applied: Burrell v The Queen (2008) 82 ALJR 1221; 248 ALR 428; R v Keogh (2007) 175 A Crim R 153 (SA CCA); R v GAM (No 2) (2004) 9 VR 640; 146 A Crim R 57 (CA); Vella v The Queen (1991) 4 WAR 278; 52 A Crim R 298 (CCA); R v Shannon (1982) 32 SASR 5; 7 A Crim R 457 at 8, 460 (CCA); R v Smith [1968] QWN 50 at 114 (CCA). In R v Reardon (2004) 60 NSWLR 454; 146 A Crim R 475; [2004] NSWCCA 197 (CCA) the court applied Grierson but Hodgson JA said (at [41]) that it was “subject to the slip rule, and the possibility of separate proceedings to set aside orders obtained by fraud”. However, where the appeal court has made some error the appeal can be reopened where the order of the court has not been “perfected” or “passed into record”: R v Billington [1980] VR 625 (CCA); R v Piscitelli (1981) VR 50; 6 A Crim R 368 (CCA); R v Stephens (1990) 48 A Crim R 323 (NSW CCA); R v Allen [1994] 1 Qd R 526 (CCA); R v Lapa [No 2] (1995) 80 A Crim R 398 (NSW CCA); R v McNamara (No 2) (1997) 1 VR 257; 86 A Crim R 339 at 266–268, 349–351 (CA); R v Saxon (1998) 1 VR 503; 92 A Crim R 188 at 505-511 (VR), 190–196 (A Crim R) (CA); R v Postiglione (1997) 98 A Crim R 134 (NSW CCA); R v Moussa (No 2) (2002) 134 A Crim R 296 at 297 [2] (NSW CCA).

[1.5410]

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When is the appeal court order perfected: R v Cross [1973] 1 QB 937; [1973] 2 All ER 920; (1973) 57 Cr App R 600 at 940–941, 922–923, 663–664; R v Billington [1980] VR 625 at 630–631 (CCA); R v Postiglione (1997) 98 A Crim R 134 at 136 (NSW CCA); R v E (2006) 164 A Crim R 208 (NSW CCA). A judgment obtained by fraud can be set aside: Grierson v The King (1938) 60 CLR 431 at 436 per Dixon J. See also, R v Martin [2015] QCA 2.

[1.5405] Inherent power when the order has passed into record Some courts seem to recognise an inherent power to reopen an appeal, and will do so in an appropriate case: R v Grantham [1969] 2 QB 574; 2 All ER 545; 53 Cr App R 369 at 579, 548, 373; R v Daniel [1977] QB 364; [1997] 2 All ER 620; 64 Cr App R 50; R v Blaker (1983) 6 CCC (3d) 385 (Alberta CA); R v Allen [1994] 1 Qd R 526 at 529 (CCA); R v Pettigrew [1997] 1 Qd R 601; (1996) 89 A Crim R 1 (CA). There is a further reference to inherent power in Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397; 145 ALR 408 where Dawson and Gaudron JJ said (at 300; 410; 399): If a final order was made perfecting the decision of the Court of Criminal Appeal on Postiglione’s first application, the assumption of jurisdiction to entertain his second application and the ensuing appeal was contrary to the decision of this court in Grierson. It was held in that case that the Criminal Appeal Act 1912 (NSW) does not confer jurisdiction to reopen an appeal which has been heard on the merits and finally determined. A fortiori, in a case where what is involved is the hearing of a second appeal. Pantorno does not suggest otherwise. The view was expressed in Pantorno that an intermediate court of appeal can entertain an application to remedy a denial of procedural fairness whether or not its order has been perfected. Nothing was said as to the jurisdiction of an appellate court to entertain a second appeal when the first has been heard and determined on the merits and an order perfected. As already indicated, the order which is the subject of this appeal does not properly record the decision of the Court of Criminal Appeal. If perfected, it must be set aside.

It will reopen an appeal to remedy a denial of procedural fairness: Pantorno v The Queen (1989) 166 CLR 466; 84 ALR 390; 38 A Crim R 258; R v Saxon (1998) 1 VR 503; 92 A Crim R 188 (CA). There has been held to be no such inherent power in Victoria: see R v McNamara (No 2) (1997) 1 VR 257; 86 A Crim R 339 (CA).

[1.5410] Writings Heydon J, “Limits to the Powers of Ultimate Appellate Courts” (2006) 122 LQR 399–425. Lord Roger of Earlsferry, “What are Appeal Courts for?” (2004) 10 Otago Law Review 517. A H Baida, “Writing a Better Brief” (2002) 22 Aust Bar Rev 149–180.

134

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[1.5415]

Sir Anthony Mason, “The Regulation of Appeals to the High Court of Australia: The Jurisdiction to Grant Special Leave to Appeal” (1996) 15 Tas LR 1, especially at 16–21. Rosemary Pattenden, English Criminal Appeals 1844–1994 (Clarendon Press, Oxford, 1996). D F Jackson QC, “Appellate Advocacy” (1992) 8 Aust Bar Rev 245–254. Appeal: In law, to put the dice into the box for another throw: Ambrose Bierce, The Devil’s Dictionary Volume VII The Collected Works of Ambrose Bierce (1911 Neale Publishing Co. New York) (first published 1906 as The Cynic’s Word Book).

[1.5415] Other references Interlocutory appeal at [9.2900].

[1.5420] Ten hints on an appeal against conviction to a Court of Appeal 1. Make sure you have all the papers. 2. Find the relevant practice notes and rules. 3. The main bases of appeal are evidence wrongly admitted and jury wrongly directed. 4. First read the judge’s directions to the jury, then any rulings, then any evidence. 5. The most efficient method of reading transcript is to make very careful notes as you read. 6. Immerse yourself in the relevant law and return to it again and again. Try to distil principles. 7. Draft precise grounds of appeal, one ground for each separate error. Unsafe and unsatisfactory should be used only if it fairly arises (for a discussion of the relevant legal principles, see Amato v The Queen [2013] VSCA 346). 8. Draft a written outline of submissions in numbered paragraphs. Expect to speak to it. Severely prune your grounds and submissions. Abandon untenable grounds. Consider appending your notes on the judge’s directions. 9. At the hearing assume that the court has read the grounds, the submissions, the judge’s directions and at least some of the evidence. 10. Argue your best ground first and a good ground last. Kirby J said in “Ten Rules of Appellate Advocacy” (1995) 69 ALJ 964 and repeated in “The Future of Appellate Advocacy” (2006) 27 Aust Bar Rev 141 at 142: 1. Know the court. 2. Know the law. 3. Use the opening. 4. Conceptualise the case. 5. Watch the bench. 6. Substance over elegance. 7. Cite authority with care. 8. Honesty at all times.

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9. Courage under fire. 10. Explain policy and principle.

See also A H Baida, “Writing a Better Brief” (2002) 22 Aust Bar Rev 149–180. D F Jackson QC, “Appellate Advocacy” (1992) 8 Aust Bar Rev 245–254.

ARMED Definition ..................................................................................................................................... Legislation ................................................................................................................................... Knowledge .................................................................................................................................. Weapon must be available for use ............................................................................................. The nature of the arms ............................................................................................................... Intent and use of weapon ........................................................................................................... Sentencing for armed robbery ....................................................................................................

[1.5600] [1.5605] [1.5610] [1.5615] [1.5620] [1.5625] [1.5630]

[1.5600] Definition In Miller v Hrvojevic [1972] VR 305 Lush J said (at 306): To be armed with a weapon means something more than to be in possession of it; the weapon must also be available for immediate use as a weapon. No doubt questions of fact and degree are involved. A man is armed with a pistol if he is wearing it in a holster, though perhaps not if it is in the boot of his car. It is not necessary for it to be in his hand for him to be armed with it. In the present case the knuckle duster was in the defendant’s left-side trouser pocket, where it could easily and rapidly be slipped onto his hand.

In R v Standley (1996) 90 A Crim R 67 (SACCA) Cox J with whom the others agreed said (at 74): The accused was armed with the instrument if it was immediately available to him to be used for offence.

Other cases Dougan v The Queen (2006) 160 A Crim R 135 at 141 [32] (NSW CCA). R v Fraser (1999) 109 A Crim R 460 (SA, Millhouse J). Ashcroft v The Queen (1989) 38 A Crim R 327 (WA CCA).

[1.5605] Legislation Cth: Criminal Code Act 1995 s 132.3; Qld: Criminal Code s 411; WA: Criminal Code ss 392, 393; Tas: Criminal Code s 240; NT: Criminal Code s 211; NSW: Crimes Act 1900 ss 4 and 98; Vic: Crimes Act 1958 ss 31B and 75A; ACT: Crimes Act 1900 s 145; NZ: Crimes Act 1961 ss 202A, 235, 243.

[1.5610] Knowledge A person must be knowingly armed.

136

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[1.5615]

In R v Cugullere [1961] 1 WLR 858; [1961] 2 All ER 343; 45 Cr App R 108 (CA) the accused stole a van which had pick axes in the back of which he was ignorant his conviction for having an offensive weapon in a public place was quashed. Salmon J, giving the judgment of the court, said (at 860; 344; 110-111): This court is clearly of the opinion that the words “has with him in an public place” must mean “knowingly has with him in any public place”. If some innocent person has a cosh slipped into his pocket by an escaping rogue, he would not be guilty of having it with him within the meaning of the section because he would be quite innocent of any knowledge that it had been put into his pocket. In the judgment of this court the section cannot apply in circumstances such as those: R v Cugullere [1961] 1 WLR 858 at 860; 2 All ER 343 at 344; 45 Cr App R 108 at 110–111.

Approved in: Lim Chin Aik v The Queen [1963] AC 160; [1963] 2 WLR 42; [1963] 1 All ER 223 (PC); R v Giordano (1982) 33 SASR 161; 7 A Crim R 403; 47 ALR 401 (CCA) per Legoe J (at 184; 425–426; 425. DPP v Woodward (2006) 164 A Crim R 22 at 28 [22] (Vic, Cavanough J) (quoting R v Kolb (unreported, CCA, Vic, 14 December 1979 at 12)).

[1.5615] Weapon must be available for use In R v Kolb & Adams (unreported, Vic CCA, 14 December 1979) the court said of armed robbery (at pp 12–13): The use of the word “armed” must colour the words “has with him” and they show in our opinion that the possession of the weapon must be for the purpose of the robbery. The words do not require that the accused has a weapon in his hand or even on his person at the time of the robbery. Equally clearly they would not be satisfied if the accused were unable to make any use of the weapon at the time. The use involved may however amount to no more than drawing attention to the existence of the weapon in such a manner as to put the intended victim in fear. The weapon must be available to the accused for use for the purpose of the robbery, that is to say for the purpose of the use of force or the putting a person in fear of being then and there subjected to force. Cf Rowe v Conti [1958] VR 547 at 548–9; Miller v Hrvojevic [1972] VR 305 at 306.

In Dougan v The Queen (2006) 160 A Crim R 135 (NSW CCA) Hoeben J, with whom the others agreed, said (at 141 [32]): The other element of the s 97(2) offence is “while armed with a dangerous weapon”. That element of the offence is generally taken to mean something more than to be in possession of the weapon. The weapon must also be available for immediate use as a weapon. (Miller v Hrvojevic [1972] VR 305; R v Farrar (1983) 52 ACTR 19). Accordingly, robbery when armed with a dangerous weapon may be made out even if the offender does not threaten to use or use the weapon. The victim may submit to the theft by fear as a result of the knowledge that the offender is armed with a dangerous weapon.

In R v Fraser (1999) 109 A Crim R 460 (SA, Millhouse J) the accused used a log splitter to smash a bank window. He climbed through the window but left the log splitter outside. Millhouse J ruled that the log splitter was not “immediately available” to the accused. Hence he was not armed and there was no case to answer on the count of armed robbery. In Western Australia, legislation refers simply to “armed”. In Western Australia v Majok (2005) 152 A Crim R 25 (WA, Murray J) his Honour held (at 32 [36]): [T]he concept of being “armed” does not require that the weapon or thing with which the person was said to be armed was in the actual physical possession of the person. Provided the notion of being armed with a dangerous or offensive weapon or instrument is otherwise satisfied, it is sufficient if the weapon or thing is, at the relevant time, within the power or possession of the offender, available for use to reinforce the demand and the use or threat of violence so as to

[1.5630]

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facilitate the commission of the robbery. In that regard, it matters not whether the weapon or instrument is or is not shown to the victim or actually used to make more effective the capacity of the offender to commit the offence.

[1.5620] The nature of the arms A replica pistol may constitute “arms” or “instrument”: R v Farrar (1983) 52 ALJR 19; 78 FLR 10 (Kelly J); R v Standley (1996) 90 A Crim R 67 (SA CCA). Fingers inside a jacket made to look like a gun do not constitute an imitation firearm: R v Bentham [2005] 1 WLR 1057; [2005] 2 All ER 65; [2005] 2 Cr App R 175 (HL).

[1.5625] Intent and use of weapon In R v Nguyen (1997) 1 VR 551; 87 A Crim R 119 (CA) a soft drink bottle was used to threaten a shop assistant in a robbery. The appeal was dismissed. Charles JA delivering the judgment of the court said (at 555–556; 124): In my opinion the offence of armed robbery is committed within the meaning of these sections if a person commits a robbery and has with him at the time an article which that person then intends or threatens to use for the purpose of causing injury to or incapacitating another person. Where, as in this case, the conduct complained of amounts to threats, the threats must, of course, be real ones; the section could not apply to threats which are known by the victim to be fanciful. I also agree with the judge’s statement in relation to a person who enters a shop carrying a screwdriver in his back pocket, that: Once he decides it is necessary to draw the screwdriver in order to suborn the will of his victim, he becomes at that instant an armed robber.

[1.5630] Sentencing for armed robbery The nature of the weapon Blood-filled syringe In Pratt v The Queen (2000) 112 A Crim R 70 (WA CCA) the court held that the use of a blood-filled syringe ordinarily attracted a sentence of a year’s imprisonment above that which would have been imposed had some other weapon been used. In R v Roy (2001) 119 A Crim R 147 (Vic CA) Winneke P said (at 150) that to increase a sentence because a blood-filled syringe was chosen as a weapon would “run counter to the approach of sentencing according to the instinctive synthesis”. In R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149 (CCA) a five-member court delivered a guideline judgment. Spigelman CJ said (at 381, 181): In addition to factors which may arise in any case, for example, youth, offender’s criminal record, co-operation 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).

138

ROSS ON CRIME

[1.5800]

Long judgments were given on the sentencing effect of drug addiction. In R v Lewfatt (1993) 3 NTLR 29; 111 FLR 264; 66 A Crim R 451 Mildren J imposed a suspended sentence for a silly armed robbery. The prosecution appeal against the sentence was dismissed: R v Lewfatt (1993) 3 NTLR 41; 116 FLR 26; 70 A Crim R 66 (CCA). Other cases Bello v Western Australia [2010] WASCA 181; Crosswell v Tasmania [2012] TASCCA 1; R v Gannon (2012) 113 SASR 1; [2012] SASCFC 56; West Australia v Bropho [2013] WASCA 44; R v Wilson-Winship (2007) 172 A Crim R 505 (NSW CCA); Ersman v The Queen (2007) 171 A Crim R 560 (NSW CCA); DPP v Samarentis (2007) 170 A Crim R 224 (Vic CA); R v AS (2006) 165 A Crim R 100 (NSW CCA); Bain v The Queen (2006) 161 A Crim R 36 (NSW CCA); R v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488 (Qld CCA); Western Australia v Wells [2005] WASCA 23; R v Solomon (2005) 153 A Crim R 32 (NSW CCA); DPP v Newton (2002) 128 A Crim R 185 (SA CCA); R v Place (2002) 81 SASR 395; 189 ALR 431; 128 A Crim R 325 (CCA – five member court); R v Griggs (1999) 95 FCR 490; 167 ALR 673 (FCA). See also Going armed at [7.300]; Offensive weapon at [15.900]; Robbery at [18.3800]; and Sentencing at [19.1800].

ARRAIGNMENT Definition ..................................................................................................................................... Basis ............................................................................................................................................ When accused never pleaded ..................................................................................................... Amending the indictment ........................................................................................................... Where a previous conviction is relevant ....................................................................................

[1.5800] [1.5805] [1.5810] [1.5815] [1.5820]

[1.5800] Definition Arraignment occurs when the accused is placed at the bar (the dock), asked to confirm that he or she is named in the indictment, the indictment is read and the accused is asked to plead. A detailed discussion of the procedure and its effects is in R v Talia [1996] 1 VR 462; (1995) 82 A Crim R 373 at 469–476, 380–387 (CA) and R v TSR (2002) 5 VR 627; 133 A Crim R 54 (CA). If the clerk states the charge incorrectly, that could be the basis for a new trial: Day v The Queen (1995) 81 A Crim R 60 (WA CCA).

[1.5815]

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139

The trial usually begins when the accused is arraigned: R v Symons [1981] VR 297 (CCA); R v Talia [1996] 1 VR 462; (1995) 82 A Crim R 373; DPP v B (1998) 194 CLR 566; 155 ALR 539; 101 A Crim R 420 at [15] – [16]; R v Gee (2003) 212 CLR 230; 139 A Crim R 153; 196 ALR 282 at [17], [44], [205].

[1.5805] Basis In R v Inns (1974) 60 Cr App R 231 (CA) Lawton LJ said (at 235): The whole basis of a plea on arraignment is that in open court an accused freely says what he is going to do.

Approved: Meissner v The Queen (1995) 184 CLR 132; 80 A Crim R 308; 130 ALR 547 at 141, 552, 313 per Brennan, Toohey and McHugh JJ.

[1.5810] When accused never pleaded In R v Williams [1977] 2 WLR 400; [1977] 1 All ER 874; 64 Cr App R 106 the accused had never pleaded at all. It was mistakenly thought that he had entered a plea of not guilty on an earlier occasion. But the indictment was read out to the jury and the jury was informed that the accused had pleaded not guilty and the trial proceeded. On appeal, the court took the view that waiver of the arraignment could be implied where the accused and his counsel were present at the trial, were aware of the charge and proceeded to trial without objection as if the accused had been duly arraigned. The court considered that such a proposition was “consonant with the law of England as well as with good sense for no detriment can enure to a defendant from the application of these principles” (at 406; 879; 112). Approved: Go v The Queen (1990) 73 NTR 1; 102 FLR 299 (CCA) per Asche CJ at 5–6; 304.

[1.5815] Amending the indictment Generally In Ayles v The Queen (2008) 232 CLR 410; 242 ALR 399; 181 A Crim R 257 Kiefel J, with whom the majority agreed, said (at [83]): Re-arraignment is usually required where the amendment is of real significance to an accused, not where the new charge is essentially the same.

By adding a count In Maher v The Queen (1987) 163 CLR 221; 72 ALR 351; 25 A Crim R 261 the accused at trial had been arraigned on 19 counts. After the jury was sworn another two counts were added and the accused re-arraigned. (There was also some amendment to the original counts.) Mr Maher was convicted on count one and count 20. The High Court set aside the conviction on count 20. The court said in a joint judgment (at 234; 359; 269): The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect. Special leave should be granted to the applicant on that ground.

By amending a count In R v Radley (1973) 58 Cr App R 394 (CA) Widgery LCJ, giving the judgement of the court said (at 404):

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[1.5820]

It is perfectly permissible, if an amendment is made of a substantial character after the trial has begun and after arraignment, for the arraignment to be repeated, and we think that it is a highly desirable practice that this should be done wherever amendments of any real significance are made.

If defence counsel does not seek re-arraignment, waiver could be implied: Go v The Queen (1990) 73 NTR 1; 102 FLR 299 at 5–6, 304–305 (CCA).

[1.5820] Where a previous conviction is relevant In R v Meaton (1986) 160 CLR 359; 21 A Crim R 117; 65 ALR 65 Gibbs CJ, Wilson and Dawson JJ said (at 364; 68–69; 120): The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold’s Criminal Evidence & Practice, 42nd ed (1985), pars 4-459 – 4-461. Where the accused is alleged to have been convicted of a previous offence in respect of narcotic goods, in New South Wales the practice governed by ss 394 and 414 of the Crimes Act 1900 (NSW) , as amended, should be adopted. In those States where the matter is not governed by express statutory provision, the practice which is set out in Kingswell v The Queen (1985) 159 CLR, at pp 279–281, should be followed. In other words, the accused should, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence together with any circumstances of aggravation other than the alleged previous conviction. If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged: but in relation to Victoria, see Crimes Act 1958 (Vic), as amended, s 395. In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s 233B, and matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.

See also Trial at [20.2500].

ARREST Definition ..................................................................................................................................... Legislation ................................................................................................................................... Limitation on powers .................................................................................................................. Reasonableness ............................................................................................................................ Reason must be given ................................................................................................................. Power to enter private premises ................................................................................................. Arbitrary arrest is a hallmark of tyranny ................................................................................... Arrest under interstate warrant ................................................................................................... Use of force by police ................................................................................................................ Helping police with their enquiries ............................................................................................ Citizen’s arrest for breach of the peace .....................................................................................

[1.6000] [1.6005] [1.6010] [1.6015] [1.6020] [1.6025] [1.6030] [1.6035] [1.6040] [1.6045] [1.6050]

[1.6000] Definition In R v Lavery (1978) 19 SASR 515 King CJ ruled (at 516–517): A suspect may, voluntarily and without constraint, accede to a police officer’s request to accompany him and, if he does so, there is of course no interference with his liberty. This is so even if he goes reluctantly out of respect for authority or fear that a refusal will be construed as an indication of guilt or some other similar motive. The suspect’s liberty is not under restraint simply because the police officer would or might arrest him if he were to exercise his right to depart or to refuse to accompany the police officer. If, however, the circumstances are such as to convey,

[1.6015]

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notwithstanding the use of words of invitation or request, that the suspect has no real choice, his freedom is under restraint and he cannot be regarded as accompanying the police officer voluntarily. If such a situation comes into existence, and the police officer does not wish to make an arrest, it is incumbent upon him to make it clear by words or actions that the suspect is free to refuse the invitation and is free to depart.

Approved: Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232 per Deane J (at 670; 34; 255); Norton v The Queen (2001) 24 WAR 488; 122 A Crim R 104 (CCA) at [101]; R v C (1997) 93 A Crim R 81 at 96 (NSW CCA) (Hunt CJ at CL). In R v O’Donoghue (1988) 34 A Crim R 397 (NSW CCA) Hunt J said (at 401): An arrest occurs whenever it is made plain by what is said and done by the police officer that the suspect is no longer a free person. Words may be sufficient: Alderson v Booth [1969] 2 QB 216 at 220-221; 53 Cr App R 301 at 303-304; but they are not always necessary — what must be done is what is reasonable in the circumstances: Tims v John Lewis & Co Ltd [1951] 2 KB 459 at 466; Wheatley v Lodge [1971] 1 WLR 29 at 36; [1971] 1 All ER 173 at 178.

[1.6005] Legislation Cth: Crimes Act 1914 ss 3W–3ZD; Qld: Criminal Code ss 546–552; WA: Criminal Investigation Act 2006 ss 127–128; Tas: Criminal Code ss 301–303; NT: Police Administration Act ss 121–127; NSW: Pt 8 of the Law Enforcement Powers and Responsibilities Act 2002; Vic: Crimes Act 1958 ss 457–463B; Charter of Human Rights and Responsibilities Act 2006 s 21; SA: Criminal Law Consolidation Act 1935 s 271; ACT: Crimes Act 1900 s 211ff; Human Rights Act 2004 s 18; NZ: Crimes Act 1961 ss 30–38 and 315ff.

[1.6010] Limitation on powers In R v Grimley (1994) 121 FLR 236 (NT, Kearney J) his Honour said (at 253): It is a basic obligation of a police officer to be fully aware of the limitations on his power to arrest, since the citizen’s right to personal liberty under the law is “the most elementary and important of all common law rights”: see Trobridge v Hardy (1955) 94 CLR 147 at 152 per Fullagar J.

[1.6015] Reasonableness Offence being committed In Perkins v County Court of Victoria (2000) 2 VR 246; 115 A Crim R 528 (CA) Buchanan JA said (at 268; 550–551 [49]): Sections 458(1)(a)(I) and 462 of the Crimes Act 1958 … provide that any person may arrest another person found committing an offence or so behaving that the first person believes on reasonable grounds that the other person is guilty of an offence, where the first person believes on reasonable grounds that the arrest of the other person is necessary to ensure the appearance of the

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[1.6020]

offender before a court of competent jurisdiction or to preserve public order or to prevent the continuation or repetition of the offence or the commission of a further offence or for the safety or welfare of members of the public or of the offender.

Offence believed to have been committed In Kelly v Dann (1992) 8 WAR 225 Ipp J held: (1) a police officer is only entitled to arrest if he has “reason to suspect” under the Police Act 1892 (WA), s 49, or if he has “just cause to suspect” the person of having something stolen or unlawfully obtained under s 43(1); (2) it was insufficient merely for a police officer to entertain a suspicion and for him to genuinely believe it was reasonable. The test was an objective one and went to whether, on the facts upon which a suspicion was formed, it was reasonable; (3) reasonableness of the suspicion could not be determined by reference to facts not taken into account by the police officer at the time the suspicion was held.

[1.6020] Reason must be given The person arrested must be informed of the reason for the arrest. Failure to do so will render the arrest unlawful: Christie v Leachinsky [1947] AC 573; [1947] 1 All ER 567; R v Stafford (1976) 13 SASR 392 (Bray CJ) at 399–400; R v O’Neill (1988) 48 SASR 51 (King CJ) at 57; Hortin v Rowbottom (1993) 61 SASR 313; 68 A Crim R 381 (Mullighan J); Michaels v The Queen (1995) 184 CLR 117; 130 ALR 581; 80 A Crim R 542 per Gaudron J (at 129–130; 589; 550).

[1.6025] Power to enter private premises Arrest In Halliday v Nevill (1984) 155 CLR 1; 13 A Crim R 250; 57 ALR 331 Brennan J said (at 11–12; 337; 255–256): The common law power to arrest on a criminal charge can be exercised as of right on private as well as on public property, in the home of a fugitive offender or in the homes of his friends. No leave or licence is necessary to enter if no force be needed, and in some cases force may be used. Although the common law has long protected the privacy of the home, it has never treated that privacy as inviolate against the exercise of a power to arrest. … Where entry is sought to effect an arrest for a criminal offence, it is a case “when the King is party”. The person effecting the arrest is entitled not only to enter as of right but to break down the outer doors of the offender’s home after making the customary demand: “Open in the name of the King” (per Lord Denning MR in Southam v Smout [1964] 1 QB 308 at 320) … … At common law, a constable is entitled to enter on private property to effect an arrest within the limits of his common law power to arrest without warrant, although he would be a trespasser if he entered or remained on the property for any other purpose.

In Lippl v Haines (1989) 18 NSWLR 620; 47 A Crim R 148 (CCA) Hope AJA with whom the others agreed said (at 635; 162): [A] constable or other person exercising a power of arrest under s 352 has the same powers of entry as he would have had if he were exercising a common law power to arrest. It matters little for this purpose whether the powers are imported by necessary implication into the terms of the

[1.6040]

ARREST

143

statute, or whether the common law power is treated as applying to the statutory power to arrest. In either case the person effecting the arrest has the same powers of entry as those given by the common law, but in my opinion has no greater powers.

There is no common law power to enter a house forcibly in order to see whether an alleged offender were there: Lippl v Haines (1989) 18 NSWLR 620; 47 A Crim R 148 (at 631; 158). And in Police v Dafov (2007) 102 SASR 1; 179 A Crim R 420 (David J) police had entered Mr Dafov’s property to arrest him for earlier driving offences. The magistrate had found no case to answer. His Honour held that the Road Traffıc Act 1961 (SA) did not entitle police to enter property without consent. Prosecution appeal dismissed. The magistrate was correct.

Breach of the peace In Nicholson v Avon [1991] 1 VR 212 Marks J said (at 222): Police officers may enter upon private premises in the performance of their duty to prevent a breach of the peace.

Further (at 223): The common law duties and powers of police to prevent breaches of the peace are not necessarily touched by the relevant provisions of the Crimes Act 1958. These provisions might certainly be said to have abolished all common law powers of arrest. Arrest however is one thing; prevention of a breach or threatened breach of the peace is another. Once it is found that the police were lawfully on the private premises of the plaintiff, they had the powers of arrest conferred by s 458.

[1.6030] Arbitrary arrest is a hallmark of tyranny In Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525; 5 A Crim R 160 (FCA), Deane J began his judgment with the following words (at 126; 525–526; 161): Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny.

[1.6035] Arrest under interstate warrant Under the Service and Execution of Process Act 1992 a person named in a warrant of a State may be apprehended in another State (s 82(1)). For such an interstate arrest, the Service and Execution of Process Act 1992 is a code. In R v Forrest (1988) 35 A Crim R 421 (SA CCA) King CJ said (at 424): The provisions of the Act constitute a code, in my opinion, for the apprehension and management of such persons and leave no room for the intervention of State law.

Followed: R v Bondareff (1999) 74 SASR 353; 109 A Crim R 23 (CCA) per Mullighan J at [68].

[1.6040] Use of force by police Police can use such force as is reasonably necessary to effect an arrest.

Legislation Cth: Crimes Act 1914 s 3ZC; Qld: Criminal Code s 254; WA: Criminal Code s 231;

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[1.6045]

Tas: Criminal Code s 26; NT: Criminal Code s 27(a); NSW: Law Enforcement (Powers and Responsibilities) Act 2002 s 231; Vic: Crimes Act 1958 s 462A; SA: Criminal Law Consolidation Act 1935 s 271; ACT: Crimes Act 1900 s 221; NZ: Crimes Act 1961 s 39. In R v Turner [1962] VR 30 (CCA) the civilian accused had suffered thefts from his car. One night he saw an arm come into his car. He called out. The man ran. The accused said “Stop or I’ll shoot”. He fired towards the fugitive who died from the shot. He was acquitted of murder and convicted of manslaughter. On appeal the court quashed the conviction. The court said (at 39): It is wrong … to say categorically that the use of a lethal weapon to effect an arrest for a misdemeanour can in no circumstances be justified. In our opinion, it was open to the jury to hold that in the particular circumstances of this case the applicant was justified in firing towards (not at) the person whom he was trying to arrest.

Approved: R v Hailemariam (1999) 103 A Crim R 426 at 430 [18] (SA, Mullighan J). See also Elwin v Robinson [2012] WASC 311 See also Dan Meagher, “Excessive Force in Making an Arrest: Does it Make the Arrest Ipso Facto Unlawful” (2004) 28 Crim LJ 237–242.

[1.6045] Helping police with their enquiries In R v Lemsatef [1977] 1 WLR 812; [1977] 2 All ER 835; 64 Cr App R 242 (CA) Lawton LJ giving the judgment of the court said (at 816, 839, 245–246): First, it must be clearly understood that neither customs officers, nor police officers have any right to detain somebody for the purposes of getting them to help with their enquiries. Police officers either arrest for an offence or they do not arrest at all. Customs either detain for an offence or they do not detain at all. The law is clear. Neither arrest nor detention can properly be carried out without the accused person being told the offence for which he is being arrested. There is no such offence as “helping police with their enquiries”. This is a phrase which has crept into use, largely because of the need for the press to be careful about how they report what has happened when somebody has been arrested but not charged. If the idea is getting around amongst either customs and excise officers or police officers that they can arrest or detain people, as the case may be, for this particular purpose, the sooner they disabuse themselves of that idea the better.

[1.6050] Citizen’s arrest for breach of the peace In R (Laporte) v Chief Constable of Gloucestershire [2007] 2 AC 105; [2007] 2 All ER 529 (HL) the court approved Albert v Lavin. Lord Bingham said (at 124; 543 [29]): Every constable, and also every citizen, enjoys the power and and is subject to a duty to seek to prevent, by arrest or other action short of arrest, any breach of the peace occuring in his presence, or any breach of the peace which (having occurred) is likely to be renewed, or any breach of the peace which is about to occur.

[1.6050]

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145

In Coleman v Power (2004) 220 CLR 1; 78 ALJR 1166; 209 ALR 182 Gleeson CJ, citing Albert Lavin, said (at 24; 187 [10]): [A]t common law, in an appropriate case a citizen in whose presence a breach of the peace is about to be committed has a right to use reasonable force to restrain the breach.

In Albert v Lavin [1982] AC 546; [1981] 3 All ER 878; (1981) 74 Cr App R 150 Lord Diplock said (at 565; 880; 152) (HL) (at 565; 880; 152): [E]very citizen in whose presence a breach of the peace is being, or reasonably appears to be about to be, committed has the right to take reasonable steps to make the person who is breaking, or is threatening to break the peace refrain from doing so; and those reasonable steps in appropriate cases will include detaining him against his will. At common law this is not only the right of every citizen, it is also his duty.

See also, Nilsson v McDonald (2009) 19 Tas R 173; [2009] TASSC 66; Reeves v New South Wales [2010] NSWSC 611. Other cases R v Commissioner of Police (Tas); Ex parte North Broken Hill Ltd [1993] 1 Tas R 99; 61 A Crim R 390 (Wright J). In Hulley v Hill (1993) 91 NTR 41; 112 FLR 353; 69 A Crim R 52 Mildren J made an extensive examination of common law principles. Gollan v Nugent (1988) 166 CLR 18 at 32 per Brennan J. In DPP v Whiteside and Dieber [2000] VSC 260, Cummins J imposing sentence said (at [27]): There is a long history of the power of citizen’s arrest: generally, from Norman times and particularly, from the time of Henry II and the Assize of Clarendon (1166). It is an incident of the King’s (or Queen’s) Peace. See R v McKay (1957) VR 560 at 571–574 per T W Smith J … R v Turner (1962) VR 30 at 36–38 per curiam and R v Lerke (1986) 25 DLR (4) 403 at 408–410 per Laycraft CJA delivering the judgment of the Alberta Court of Appeal.

(and in the footnote) See also Police v Hailemariam (1999) 73 SASR 319 at 322–323 per Mullighan J; R v Frugtniet and Frugtniet (1999) 2 VR 927 at 306–314 per curiam (tangentially); and the ever helpful works of the late Professor Glanville Williams “Arrest for felony at common law” (1954) Crim LR 408 and “Arrest for breach of the peace” (1954) Crim LR 578.

In DPP v Whiteside (2000) 1 VR 331; 114 A Crim R 234 the Court of Appeal increased the sentence imposed by Cummins J but did not treat his Honour’s statement on citizen’s arrest.

Legislation Qld: Criminal Code s 260; WA: Criminal Investigation Act 2006 s 25; Tas: Criminal Code s 27(4)–(8); NT: Criminal Code ss 26(1)(a) and 27(c); NSW: Section 100 of the Law Enforcement Powers and Responsibilities Act 2002; Vic: Crimes Act 1958 s 458; SA: Criminal Law Consolidation Act 1935 s 271; ACT: Crimes Act 1900 s 218. In the Northern Territory, a citizen’s only power of arrest is for breach of the peace: Hulley v Hill (1993) 91 NTR 41; 112 FLR 353; 69 A Crim R 52 (Mildren J).

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[1.6200]

As to arrest by store detectives: Brown v GJ Coles & Co Ltd (1985) 59 ALR 455; 17 A Crim R 79 (FCA). A person may be injured or killed during the attempt to arrest that person. The following cases consider the defence: R v Turner [1962] VR 30 (CCA); R v Koutsouridis (1982) 7 A Crim R 237 (Vic CCA); Penn v The Queen (1989) 44 A Crim R 131 (WA CCA). See also Breach of the peace at [2.3300]

ARSON Legislation ................................................................................................................................... Definition ..................................................................................................................................... Intent ............................................................................................................................................ Recklessness ................................................................................................................................ Consent not a defence ................................................................................................................ Property of another ..................................................................................................................... Sentencing ................................................................................................................................... Sentence ......................................................................................................................................

[1.6200] [1.6205] [1.6210] [1.6215] [1.6220] [1.6225] [1.6230] [1.6235]

[1.6200] Legislation Legislation makes arson an offence: Qld: Criminal Code s 461; WA: Criminal Code s 444; Tas: Criminal Code s 268; NT: Criminal Code s 239; NSW: Crimes Act 1900 s 197; Vic: Crimes Act 1958 s 197(6); SA: Criminal Law Consolidation Act 1935 s 85; ACT: Crimes Act 1900 s 117; NZ: Crimes Act 1961 s 267; Eng: Criminal Damage Act 1971; Can: Criminal Code ss 433–436.

[1.6205] Definition Arson is wrongly setting fire to a building to cause damage. At common law, the building was a dwelling. In Gardenal-Williams v The Queen (1989) Tas R 62; 43 A Crim R 29 (five member CCA) Neasey J said (at 75; 35–36): In arson, the “act” is, for example, holding a lighted match so that the flame comes in contact with combustible material, or throwing a lighted brand into such material, or any other such act which can have the effect of setting fire to something. The consequence, of course, is that something is set on fire; in the case of arson, a building, erection or structure attached to the soil, or a stack of timber etc.

[1.6215]

ARSON

147

It is arson to burn down a bark hut on Crown land if it is a dwelling: R v Rowden (1876) 2 VLR (L) 230 (CCA).

[1.6210] Intent For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from the evidence that he neither intended nor foresaw the possibility of the house’s catching fire. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. The cases emphasise that this test of liability is subjective: Kenny’s Outlines of Criminal Law (19th ed, 1966), JWC Turner (ed).

Approved in: Gardenal-Williams v The Queen (1989) Tas R 62; 43 A Crim R 29 (CCA); Pace v H (1994) 12 WAR 35; 73 A Crim R 330 (Scott J). No fire was proved although the floorboards of the house were scorched black in R v Russell (1842) Car & M 541; 174 ER 626. After reference to earlier cases, the matter was not “further pursued” in R v Berghofer (1997) 91 A Crim R 307 (Qld CA).

[1.6215] Recklessness In B v Visser (2000) 9 Tas R 285, Blow J held (at 286 [2]): Under the Criminal Code, s 268, any person who unlawfully sets fire to any building is guilty of a crime, which is called arson. By virtue of the Code, s 267(3), an act causing injury to property cannot constitute the crime of arson “unless it is done wilfully”. The word “wilfully” includes “recklessly”, so that arson may be committed if the accused deliberately does a willed act, aware that setting fire to a particular building is a likely consequence of that act, and if he or she recklessly does that act, regardless of that risk: R v Hodgson [1985] Tas R 75; R v Gardenal-Williams [1989] Tas R 62 … Persons who aid or abet the commission of crimes can be convicted of those crimes by virtue of the Code, s 3(1).

In R v G [2004] 1 AC 1034; [2003] 3 WLR 1060; [2003] 4 All ER 765 (HL) the Lords answered the following point of law: Can a defendant properly be convicted under section 1 of the Criminal Damage Act 1971 on the basis that he was reckless as to whether property was destroyed or damaged when he gave no thought to the risk but, by reason of his age and/or personal characteristics the risk would not have been obvious to him, even if he had thought about it?

The appeal turned on the meaning of “reckless” in the section. The answer was: A person acts recklessly within the meaning of section 1 of the Criminal Damage Act 1971 with respect to – (i) a circumstance when he is aware of a risk that it exists or will exist; (ii) a result when he is aware of a risk that it will occur; and it is, in the circumstances known to him, unreasonable to take the risk.

In R v T [1997] 1 Qd R 623; (1996) 91 A Crim R 152 (CA) Fitzgerald P gave the leading judgment. His Honour said (at 660; 186): [T]he conjunction of likelihood and recklessness in the test of wilfulness stated by the Court of Criminal Appeal in Lockwood is only satisfied if the damage or fire which results from an act is foreseen as more probable than not, and indeed as so probable (or likely) that the act is properly described as reckless in circumstances in which recklessness must be such as to attract criminal responsibility for a serious offence. The requirement of criminal recklessness in connection with the act influences the degree of probability of the resulting damage or fire which must be foreseen.

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ROSS ON CRIME

[1.6220]

[1.6220] Consent not a defence R v Johnston (2006) 208 FLR 35 (ACT, Marshall J) was an arson trial by judge alone. The accused had set fire to his own home. Marshall J held that consent to damage did not apply. His Honour said (at 44–45 [46]): Given the obvious public interest considerations stemming from the natural damage that could flow to firefighters, neighbours and other properties from such action, described in the section as “arson”, I do not consider that s 409 contemplates a situation where a person gives consent to anyone to damage property by fire. I am fortified in this view by the explanatory memorandum which accompanied the bill which led to the enactment of the Criminal Code: An important distinguishing feature of the arson offence is that it is not limited to causing damage to the property “belonging to someone else”. It can also apply to owners who damage or destroy their own buildings or vehicles by fire or explosives.

[1.6225] Property of another Property of another includes a house subject to a mortgage (R v Holden (1998) 103 A Crim R 70 (SA CCA)) or the house of which the accused was the registered proprietor but on which the wife in divorce proceedings had served notice claiming an interest: R v Manser (1999) 72 SASR 588 (Milhouse J).

[1.6230] Sentencing In R v Mazur (2000) 113 A Crim R 67 (Vic CA) Winneke P said (at 74 [27]): [C]ourts imposing sentences for offences of arson will, except in the most exceptional circumstances, regard a sentence of immediate imprisonment as being appropriate.

Followed: DPP v Derby (2007) 171 A Crim R 302 at 307 [21] (Vic CA); DPP v Bright (2006) 163 A Crim R 538 at 544 [15] (Vic CA). Yet in R v James (1981) 27 SASR 348 (CCA) the court speaking of arson said in a joint judgment (at 351): We doubt very much whether any sophisticated formulation of tariff can be devised, or any precise guidelines laid down, for a crime where there can be so many different, aggravating or mitigating circumstances.

And in R v Davies (2006) 164 A Crim R 353 (SA CCA) Perry J, with whom Vanstone J agreed, quoted R v James (1981) 27 SASR 348 and said (at 358 [44]): There is no tariff or fixed penalty range applicable to sentencing for arson.

In Ajax v The Queen (2006) 17 NTLR 80; 161 A Crim R 293 (CCA) Mildren J, with whom the others agreed, said (at 81–82; 298–299 [34]): Arson is potentially an extremely serious offence as it carries a maximum penalty of imprisonment for life. The current level of sentences are, in my view, too lenient and need to be increased significantly. The offence of arson, of course, is an offence which can be committed in a wide variety of circumstances. The extent to which a sentencing court needs to impose a deterrent sentence will often be determined by factors, such as the value of the property destroyed, whether the property was occupied at the time particularly at night by persons who are asleep, the level of risk to other persons in neighbouring properties as well as to police and fire fighters involved in checking the premises for occupants and in fighting the fire, whether the offender was intoxicated at the time, whether the owner of the property will suffer any consequential loss over and above the destruction of the property itself (for example in the case of business premises by the loss of profits due to disruption to the business), whether or not anyone was in fact injured or killed as a result of the fire and if so the number of victims and the extent of those injuries. Matters going to mitigation will often include cooperation with the authorities, pleas of guilty, lack of prior

[1.6400]

ASSAULT

149

convictions and in the case of Aboriginal persons in particular, may include the fact that the defendant has been brought up in an impoverished section of society which has become dysfunctional through the affects of alcohol or other drug misuse. These of course are not intended to be a complete list of all of the aggravating or mitigating factors which the sentencer will be required to consider.

[1.6235] Sentence Channon v The Queen (1978) 33 FLR 433; 20 ALR 1 (FCA): psychiatric difficulties – two years imprisonment. R v Aufai (1995) 80 A Crim R 255 (Qld CA): probation for young offenders burning a factory. In Attorney-General (WA) v Catts (1996) 85 A Crim R 171 (WA CCA) the respondent and another fire-bombed the French consulate for political reasons. The accomplice had been sentenced to three years imprisonment. The respondent’s imprisonment period was increased from one year to two. Hamilton v The Queen [2001] FCA 44 (6 February 2001): four years imprisonment. R v Dolley (2003) 138 A Crim R 346 (Qld CA): 12 years imprisonment for $6 m damage. R v Chambers (2005) 152 A Crim R 164 (Vic, CA): 10 years imprisonment, non-parole period of six and a half years for arson causing two deaths. Borderline personality disorder. Other cases R v Johnson (2007) 173 A Crim R 94 (Qld CA). DPP v Derby (2007) 171 A Crim R 302 (Vic CA). R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98.

ASSAULT Definition ..................................................................................................................................... [1.6400] Legislation on assault ................................................................................................................. [1.6405] Consent ........................................................................................................................................ [1.6410] Battery ......................................................................................................................................... [1.6415] Intended victim unaware of act .................................................................................................. [1.6420] Words .......................................................................................................................................... [1.6425] Types of assault .......................................................................................................................... [1.6430] Occasioning (actual) bodily harm .............................................................................................. [1.6435] Assault police in execution of duty ........................................................................................... [1.6440] Assault in sport ........................................................................................................................... [1.6445] Assault in surgery .................................................................................................................... [1.6445A] Sentencing policy ........................................................................................................................ [1.6450] Circumstances of aggravation: Northern Territory .................................................................... [1.6455] Sentence ...................................................................................................................................... [1.6460]

[1.6400] Definition In Edwards v Police (SA) (1998) 71 SASR 493 (Debelle J) his Honour held (at 495): 1. The actus reus of an assault where there is no actual physical contact is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact. 2. The mens rea of such an assault is the defendant’s intention to produce that expectation in the victim’s mind.

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[1.6405]

3. There is the alternative possibility of a reckless assault, where the defendant whilst not desiring to cause such fear, realises that his conduct may do so and persists with it.

Followed: Fisher v Police (SA) (2004) 154 A Crim R 511 at 516 [21] (SA, White J). Other cases R v Gabriel (2004) 182 FLR 102 (ACT, Higgins J). R v Savage [1992] 1 AC 699; [1991] 4 All ER 698; (1991) 94 Cr App R 193 at 704, 711, 204 (HL). R v Venna [1976] QB 421; [1975] 3 All ER 788; (1975) 61 Cr App R 310. Rosza v Samuels [1969] SASR 205 at 207 (Hogarth J). R v McNamara [1954] VLR 137 at 138 (CCA).

[1.6405] Legislation on assault Legislation on assault is as follows: Qld: Criminal Code ss 245 (defined) and 335 (penalty); WA: Criminal Code ss 222 (defined) and 313 (penalty); Tas: Police Offences Act 1935 s 35 (penalty only); NT: Criminal Code ss 187 (defined) and 188 (penalty); NSW: Crimes Act 1900 s 61; Vic: Crimes Act 1958 s 31 (defined); SA: Criminal Law Consolidation Act 1935 ss 20 (defined) and 39 (penalty); ACT: Crimes Act 1900 ss 26; 26A and 277; NZ: Summary Offences Act 1981 ss 2(a) and 9; Crimes Act 1961 s 196 (penalty only). In Davis v Bennett (2003) 175 FLR 78 (NT CA) assault was construed as requiring only the application of force. Injury or discomfort are not in the elements of the offence. All jurisdictions allow assault to be heard summarily.

[1.6410] Consent For an act to be an assault there must be want of consent. An assault with consent is no assault at all: R v Bonora (1994) 35 NSWLR 74 (CCA). In R v Minor (1992) 2 NTLR 183; 79 NTR 1; 105 FLR 180; 59 A Crim R 227 (CCA) Mildren J said (at 195; 13; 192; 239): An assault is not unlawful if authorised by the “victim” unless the person committing the assault intends to kill or to cause grievous harm: Criminal Code s 26(3).

Consent to a fight is not necessarily consent to the use of force causing any kind of bodily harm: Attorney-General’s Reference (No 6 of 1980) [1981] QB 715; [1981] 2 All ER 1057; R v Raabe [1985] 1 Qd R 115; (1984) 14 A Crim R 381 (CCA); Lergesner v Carroll [1991] 1 Qd R 206; (1990) 49 A Crim R 51 (CCA); Kirkpatrick v Tully [1991] 2 Qd R 291 (CCA);

[1.6415]

ASSAULT

151

In Sorgenfrie v The Queen (1981) 51 FLR 147; 3 A Crim R 404 (FCA FC) Smithers J said (at 179; 429): Accordingly in my view the Crown cannot show that the jury would have been satisfied beyond reasonable doubt that in relation to the first phase of the incident the appellant did not act in self-defence or that Van Veen did not consent to fight. It would seem also that the same considerations apply to the second phase of the incident. But as to the third phase the situation is different.

Consent to sado-masochistic acts causing actual bodily harm and wounding is contrary to public policy. Such consent does not vitiate an assault occasioning actual bodily harm: R v Brown [1994] 1 AC 212; [1993] 2 All ER 75; (1993) 97 Cr App R 44 (HL). But a husband who lovingly branded his initials on his wife’s buttock at her request committed no offence: R v Wilson [1996] 3 WLR 125; [1996] 2 Cr App R 241 (CA). As to sport, in R v Coney (1882) QBD 534 Stephen J said (at 549): In a case where life and limb are exposed to no serious injury in the common course of things I think that consent is a defence to a charge of assault even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football and the like; but in all cases the question whether consent does or does not take from the application of force to another, its illegal character is a question of degree depending upon circumstances.

Other cases Parish v DPP (2007) 17 VR 412; 179 A Crim R 304 at [115] (Robson J); R v Lee [2006] 3 NZLR 42 (CA); R v Vollmer [1996] 1 VR 95 at 162–164 (CCA); Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 (McInerney J).

[1.6415] Battery Battery means the intentional application of unlawful force to another whether directly or indirectly. Battery is usually an assault given effect. In Darby v DPP (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314 (NSW CA) Giles JA said (at 328 [71]): In the criminal law there is an equivalent distinction between the common law offences of common assault and battery, see for example R v Mansfield Justices; Ex parte Sharkey [1985] QB 613 at 627 per Lord Lane CJ. An assault is an act by which a person intentionally or perhaps recklessly causes another person to apprehend the immediate infliction of unlawful force upon him; a battery is the actual infliction of unlawful force. There can be an assault without a battery, and there can be a battery without an assault (as in Gambriell v Caperelli (1974) 54 DLR (3d) 661, where the defendant struck the plaintiff from behind without warning).

In Boughey v The Queen (1986) 161 CLR 10; 20 A Crim R 156; 65 ALR 609 Mason, Wilson and Deane JJ said (at 25; 619): There is strong authority for the proposition that the application of force to another, “be it never so small”, will constitute common law battery if it is “actually done to the Person of a Man, in an angry, or revengeful, or rude, or insolent Manner, as by Spitting in his Face, or any Way touching him in Anger, or violently jostling him out of the Way”: Hawkins A Treatise of the Pleas of the Crown (1716), ch LXII, s 2, p 134. It has never, however, been the common law that actual hostility or hostile intent towards the person against whom force is intentionally applied is a necessary general ingredient of an unlawful battery.

Generally assault only is charged even if a battery is proved. The reason may be that the victim did not apprehend the force actually applied in which case this would strictly be a battery without an assault.

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Bray CJ described the practice of charging assault only in McPherson v Brown (1975) 12 SASR 184 (at 195): It is true, of course, that it is very common nowadays to allege assault only and to prove a battery as well and for the accused to be punished for the battery on conviction for assault. But this is because in the current speech even of lawyers the word “assault” is habitually used as if it included “battery”.

In Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439; [1968] 3 All ER 442; 52 Cr App R 700 James J said (at 442; 445; 703): Although “assault” is an independent crime and is to be treated as such, for practical purposes today “assault” is generally synonymous with the term “battery” and is a term used to mean the actual intended use of unlawful force to another person without his consent.

See also R v Lynsey [1995] 3 All ER 654; [1995] 2 Cr App R 667 (CA).

[1.6420] Intended victim unaware of act In Pemble v The Queen (1971) 124 CLR 107 Owen J said (at 141): But on the appellant’s statement and from the fact that the bullet entered the girl’s head behind her right ear, it may well have been that when he was approaching her she was turned away from him and was unaware of his approach. If so the appellant would not, in my opinion, have been engaged in an assault upon the girl when the rifle discharged.

See also, R v McNamara [1954] VLR 137.

[1.6425] Words Words alone Words alone will not constitute an assault unless the other person apprehends immediate and unlawful violence. In R v Gabriel (2004) 182 FLR 102 (ACT, Higgins CJ) his Honour examined authority and found on the facts that there was no assault. See also, R v Secretary (1996) 5 NTLR 96; 86 A Crim R 119; 131 FLR 124; 107 NTR 1.

Telephone call There had once been significant debate about whether a threat on the telephone is sufficiently immediate to cause the victim to apprehend violence. The House of Lords has said that even silent calls can constitute an assault: R v Ireland [1998] AC 147; [1997] 4 All ER 225; [1998] 1 Cr App R 177 (HL).

Words diffusing assault What might have been an assault can be rendered nugatory by words. In Tuberville v Savage (1669) 1 Mod Rep 3; 2 Keb 545; 86 ER 684 Mr Tuberville laid his hand on his sword saying “if it were not assize time I would not take such language”. There was no assault “the declaration … was that he would not assault him the judges being in town”. This case has been extensively cited.

[1.6430] Types of assault Firearm Cases about pointing a loaded firearm at the victim include Kwaku Mensah v The King [1946] AC 83 at 91 and Pemble v The Queen (1971) 124 CLR 107 at 122–123, 133, 141.

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R v Everingham (1949) 66 WN (NSW) 122 was about pointing a toy firearm, intending that the victim to believe it was real.

Spitting In Neal v The Queen (1982) 149 CLR 305; 42 ALR 609; 7 A Crim R 129 spitting was said to be capable of being an assault. In Doolan v Edgington (1999) 110 A Crim R 19 (NT, Martin CJ) and in Burgoyne v Dixon (2004) 150 A Crim R 1 (NT, Thomas J) spitting at a policeman was held to be an assault. See also Long v Spivey [2004] QCA 118 (23 April 2004). In R v King (2008) 179 A Crim R 600 (Qld CA) the applicant, while drunk, spat blood and phlegm onto a police officer’s face. The appeal was only against sentence.

Looking through a window In Smith v Chief Superintendent, Woking Police Station (1983) 76 Cr App R 234 the defendant looked through a window of a woman’s flat at night intending to frighten her and succeeding.

[1.6435] Occasioning (actual) bodily harm Legislation Qld: Criminal Code s 339; WA: Criminal Code s 317; NT: Criminal Code ss 186 and 188(2)(a); NSW: Crimes Act 1900 s 59; Vic: Crimes Act 1958 s 18 (causing injury intentionally or recklessly); SA: Criminal Law Consolidation Act 1935 s 40; ACT: Crimes Act 1900 s 24. In R v Donovan [1934] 2 KB 498; All ER 207; 25 Cr App R 1 (at 509; 212; 13) Swift J, delivering the judgment of the Court of Criminal Appeal, said: “bodily harm” has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the prosecutor. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient and trifling.

Approved in R v Brown [1994] 1 AC 212; [1993] 2 All ER 75; 97 Cr App R 44 (HL). R v Morrison; Ex parte West [1998] 2 Qd R 79; (1996) 89 A Crim R 21 (CA) was a criminal injuries compensation case. Macrossan CJ said (at 81; 23): There are strong reasons for thinking that the phrase “bodily harm” should receive a wide interpretation and not be restricted to “harm to the skin, flesh and bones of the victim”, a narrow meaning which the English Court of Appeal rejected in R v Chan-Fook [1994] 1 WLR 689 at 695; [1994] 2 All ER 552 at 558; (1993) 99 Cr App R 147 at 151–152. In that case it was suggested that a person’s body “includes all parts of his body, including his organs, his nervous system and his brain”, so that “bodily injury” may “include injury to any of those parts of his body responsible for his mental and other faculties”, with the consequence that “bodily harm” is capable of including psychiatric injury although not mere emotions such as fear or distress.

Note that R v Chan-Fook [1994] 1 WLR 689; [1994] 2 All ER 552; (1993) 99 Cr App R 147 concerned the interpretation of “actual bodily harm”. In the code jurisdictions bodily harm is defined:

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• Qld s 1; WA s 1: “bodily harm means any bodily injury which interferes with health or comfort”; Pain alone without identifiable bodily injury is not “bodily harm”: R v Scatchard (1987) 27 A Crim R 136 (WA CCA). In Wayne v Boldiston (1992) 85 NTR 8; 108 FLR 252; 62 A Crim R 1, (Mildren J) the victim received 18 stitches to a wound, suffered pain and dizziness for a week during which time her ability to chew, move her eyes and speak normally was impaired. Mildren J said (at 14; 258; 7–8): In the end result, I consider that the question of whether the injury amounts to “bodily harm” is one of degree, which can only be decided by reference to the facts in each case. In determining this question, it is necessary to focus on the injury and its immediate consequences. The fact that the victim has been left with only a cosmetic disability is irrelevant if the immediate consequences of the injury interfered temporarily with her health. It is relevant also to consider the nature of any treatment received and whether any part of the body was unable to perform its function fully, either as a result of pain or otherwise and there may well be other relevant matters.

In England neuroses being anxiety and depressive disorders were held to be actual bodily harm caused by telephone calls which were held to be assaults: R v Ireland [1998] AC 147; [1997] 4 All ER 225; [1998] 1 Cr App R 177 (HL). In McIntyre v The Queen (2009) 198 A Crim R 549; [2009] NSWCCA 305 at [45], it was stated that “if a victim has been psychologically injured in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would likely amount to actual bodily harm”.

[1.6440] Assault police in execution of duty Legislation Cth: Criminal Code Act 1995 s 149; Qld: Police Powers and Responsibilities Act 2000 s 444(1); WA: Criminal Code s 172 (obstruct); Tas: Criminal Code s 114(1); NT: Criminal Code s 189A; NSW: Crimes Act 1900 s 60; Vic: Crimes Act 1958 s 31(1)(b)(i); ACT: Criminal Code 2002 s 361(1) (obstructs, hinders, intimidates).

General Once the prosecution proves that the policeman was acting in the course of duty it is necessary only to prove assault and its intent. It is not necessary to prove intent about the other elements, namely that the victim was a policeman in acting in the course of his duty. The defences still exist of mistake and honest and reasonable belief as to all elements: R v Reynhoudt (1962) 107 CLR 381. Examples of such defences include: • Police detained someone not to arrest but only to question: Kenlin v Gardiner [1967] 2 QB 510; [1966] 3 All ER 931. • Police making an unjustified search: Linley v Rutter [1981] QB 128; [1980] 3 WLR 660; 72 Cr App R 1; Brazil v Chief Constable of Surrey [1983] 1 WLR 1155; [1983] 3 All ER 537; 77 Cr App R 237; Perkins v Police [1988] 1 NZLR 257.

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• Police entering premises for mere inquiry and refusing to leave: Davis v Lisle [1936] 2 KB 434; [1936] 2 All ER 213. Note that police do not trespass if they enter private property to arrest: Halliday v Nevill (1984) 155 CLR 1; 13 A Crim R 250; 57 ALR 331. For an instance of an honest and reasonable belief that, for example, the victim was acting wrongly see Proudman v Dayman at [16.7400].

Sentence Burgoyne v Dixon (2004) 150 A Crim R 1 (NT, Thomas J); Casey v Haywood (1997) 137 FLR 411 (NT, Kearney J); Warrell v Kay (1995) 83 A Crim R 493 (WA, Owen J); Freeman v Binnekamp (1987) 44 SASR 114 (Von Doussa J). See also Police at [16.2300].

[1.6445] Assault in sport Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 (McInerney J) (boxing). R v Barnes [2005] 1 WLR 910; [2005] 2 All ER 113 (CA) (football). Other cases McAvaney v Quigley (1992) 58 A Crim R 457 (SA, Legoe J) (assault behind the play: sentence). Abbott v The Queen (1995) 16 WAR 313; 81 A Crim R 55 (CCA).

[1.6445A] Assault in surgery Consent is a defence to assault. In Reeves v The Queen [2013] HCA 57 the High Court held that in order for consent to operate as a defence it is adequate that the patient consents to the surgery having being informed in broad terms of its natures; there is no need for the doctor to explain all possible consequences of the operation and the options and other alternative procedures.

[1.6450] Sentencing policy In Yardley v Betts (1979) 22 SASR 108; 1 A Crim R 329 (CCA) King CJ said (at 113; 334): Assaults vary very greatly in seriousness. Some result in injury to the victim and some do not. Some are committed under provocation in the heat of the moment and others are wanton and premeditated attempts to impose the offender’s will on the victim by force. Some are mere man to man altercations and others are terrifying and cowardly examples of mass violence. Many other variations could be mentioned. The offenders vary from the normally law abiding person who is caught up in a situation of stress which erupts into violence, to the habitual bully and thug. In some cases a term of imprisonment may enhance rather than diminish the prospects of the offender avoiding crime in the future. In other cases, a term of imprisonment may turn a usefully employed person into a frustrated unemployed person, may deprive the offender of the best and most stabilising influences in his life by disrupting a good family situation, and may increase a propensity to crime by placing him in the company of criminals. The need for deterrent punishment will vary according to the circumstances of the offence. A consideration of these factors leads to the conclusion that cases of assault require individual assessment and treatment. In my opinion there can he no presumption one way or the other as to

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whether imprisonment is the appropriate way of dealing with any particular case. A judicial policy which were to embody such a presumption in respect of assaults generally, or assaults which could be characterised as “serious”, or assaults where “some injury is caused to the victim”, would not, in my view, be justified. It is worth pointing out that the degree of injury suffered by the victim is not in every case a satisfactory measure of the gravity of the offence or the culpability of the offender.

Examples of differing sentences include: • a dispute between neighbours resulted in a fine: Wood v McDonald (1988) 46 SASR 570; 35 A Crim R 296 (von Doussa J); • in a game of football assault behind the play resulted in a fine: McAvaney v Quigley (1992) 58 A Crim R 457 (SA Legoe J); • assault of police led to probation: Warrell v Kay (1995) 83 A Crim R 493 (WA Owen J); • a non-custodial sentence was given in Dadleh v Police (1996) 66 SASR 352 (Perry J).

[1.6455] Circumstances of aggravation: Northern Territory The Northern Territory Criminal Code s 188(2) provides for greater sentence where the assault is with circumstances of aggravation. In O’Brien v Fraser (1990) 99 FLR 251 (NT) Asche CJ said (at 260): It follows that the duty of a court where a person is accused of an assault with circumstances of aggravation is, first, to find whether the assault is proved; and if, and only if, that is proved, to determine whether any, and if so which, of the circumstances of aggravation are proved beyond reasonable doubt.

It is not necessary for the prosecution to prove that the accused intended or foresaw the circumstances of aggravation (eg harm): R v Mardday (1998) 7 NTLR 192; 121 NTR 1; 144 FLR 317; 100 A Crim R 317 (CCA).

[1.6460] Sentence Coffee cup thrown from car: R v Tootoo (2000) 115 A Crim R 90 (Qld CA).

ATTEMPT Definition ..................................................................................................................................... Legislation ................................................................................................................................... Mere intention is not an attempt ................................................................................................ Last act theory is not a condition precedent .............................................................................. The proximity test ....................................................................................................................... Attempt and impossibility .......................................................................................................... When attempt may not be open .................................................................................................

[1.6600] [1.6605] [1.6610] [1.6615] [1.6620] [1.6625] [1.6630]

[1.6600] Definition In New South Wales, South Australia and the Australian Capital Territory an attempt is said to be an offence. The offence of attempt is not defined. Elsewhere it is. In the Northern Territory it was held that the Criminal Code s 4 (the predecessor to s 43BF) reflected on the common law: R v Prior (1992) 91 NTR 53; 112 FLR 388; 65 A Crim R 1 at 658–659, 7(Mildren J); R v Susak (1999) 105 A Crim R 592 at 595 (Riley J).

Common law (NSW, SA and ACT) In R v Donnelly [1970] NZLR 980 (CA) Turner J said (at 990–991):

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He who sets out to commit a crime may in the event fall short of the complete commission of that crime for any one of a number of reasons. First, he may, of course, simply change his mind before committing any act sufficiently overt to amount to an attempt. Second, he may change his mind but too late to deny that he had got so far as an attempt. Third, he may be prevented by some outside agency from doing some act necessary to complete commission of the crime – as when a police officer interrupts him while he is endeavouring to force the window open, but before he has broken into the premises. Fourth, he may suffer no such outside interference, but may fail to complete the commission of the crime through ineptitude, inefficiency or insufficient means. The jemmy which he has brought with him may not be strong enough to force the window open. Fifth, he may find that what he is proposing to do is after all impossible – not because of insufficiency of means, but because it is for some reason physically not possible, whatever means be adopted. He who walks into a room intending to steal, say a specific diamond ring, and finds that the ring is no longer there but has been removed by the owner to the bank, is thus prevented from committing the crime which he intended, and which, but for the supervening physical impossibility imposed by events he would have committed. Sixth, he may without interruption efficiently do every act which he set out to do, but may be saved from criminal liability by the fact that what he has done, contrary to his own belief at the time, does not after all amount in law to a crime.

Approved: Haughton v Smith [1975] AC 476; [1973] 3 All ER 1109; 58 Cr App R 198 per Hailsham LC (at 493; 1115; 208–209); R v Kristo (1989) 39 A Crim R 86 at 95–97 (SA CCA); R v Barbouttis (1995) 37 NSWLR 256; 82 A Crim R 432 at 270–271, 445–446 (CCA). An example included the attempt to procure an act of gross indecency by trying to persuade boys to masturbate in the accused’s presence or to engage in intimate sexual behaviour: R v Ayles (1993) 66 A Crim R 302 (SA CCA).

[1.6605] Legislation Cth: Criminal Code Act 1995 s 11.1; Qld: Criminal Code s 4; WA: Criminal Code ss 4 and 552; Tas: Criminal Code s 2; NT: Criminal Code s 43BF; NSW: Crimes Act 1900 s 344A; Vic: Crimes Act 1958 s 321N; SA: Criminal Law Consolidation Act 1935 s 270A; ACT: Criminal Code 2002 s 44; NZ: Crimes Act 1961 ss 17D(2), 72, 311 and 337–338; Eng: Criminal Attempts Act 1981; Can: Criminal Code s 24.

[1.6610] Mere intention is not an attempt In R v Eagleton (1854) Dears CC 515; 169 ER 826 Parke B said (at 538; 835): The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are.

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[1.6615]

Applied: R v Borinelli [1962] SASR 214 at 218 (CCA). Similarly preparation will not be considered an crime. In Hope v Brown [1954] 1 WLR 250; over-priced tickets which he put in a drawer dismissed the charge of attempt. The informant

attempt if not sufficiently proximate to the 1 All ER 330 (CCA) a butcher prepared intending to mark the meat. The justices appealed. The appeal was dismissed.

[1.6615] “Last act” theory is not a condition precedent In O’Connor v Killian (1984) 38 SASR 327; 15 A Crim R 353 Prior J said (at 355): I think the prosecution had proved a sufficiently proximate act by the appellant as to warrant conviction … The last act theory referred to by Baron Parke in Eagleton (1854) Dears CC 515; 169 ER 826 is not a condition precedent to conviction, even though that was proved in that case. The prosecution had to prove something more than mere preparation. It did that through the admissions made by the appellant herself: cf Lord Edmund Davies in DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909; 65 Cr App R 192 at 84–87 (AC).

[1.6620] The proximity test In Davey v Lee [1968] 1 QB 366; [1967] 2 All ER 423; 51 Cr App R 303 (QBD) Lord Parker CJ adopted a test from Archbold (at 371; 425; 306): It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not merely remotely connected with the commission of it, and the doing of which cannot reasonably be regarded as having any other purpose than the commission of the specific crime.

Applied: Comer v Bloomfield (1970) 55 Cr App R 305 at 308–309 (CA Cr D). Approved: R v Susak (1999) 105 A Crim R 592 at 595 (NT, Riley J). In DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909; (1977) 65 Cr App R 192 (HL) Lord Diplock said (at 68; 917; 208): The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence, such as, in the instant case, the taking out of the insurance policies, are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so.

See also, Steer v The Queen [2014] NSWCCA 338. In Weggers v Western Australia [2014] WASCA 57, the Court held that statutory language for an attempt (s 4, Criminal Code (WA) requiring acts to be peformed that are more than prepatory to the offence), does not necessarily embody any of the common law tests for when an attempted offence has occurred.

[1.6625] Attempt and impossibility In R v Collingridge (1976) 16 SASR 117 (CCA) Zelling J said (at 140–141): [A]n accused person cannot be convicted of an attempt if it is impossible as a matter of law to convict him of the completed offence. It is, however, possible to convict him of an attempt where the impossibility is a factual and not a legal one. There is one exception to this rule, and that is where the act which has not been done so that the offence remains uncompleted is itself an

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essential element in the completed offence, then the accused is not guilty: see the judgment of Gibbs J in R v Bull (1974) 131 CLR 203 at 254–255 and a note on “Attempts to Commit a Crime in Circumstances where the Commission of the Crime is Impossible” (1976) 50 ALJ 328 and 329.

Followed: R v Lee (1990) 1 WAR 411; 47 A Crim R 187; R v English (1993) 10 WAR 355; 68 A Crim R 96 (CCA) per Scott J (at 371; 111). In R v Brady (2005) 92 SASR 135; 155 A Crim R 230 (CCA) two prisoners had tried to escape but their technique was ineffective and would not have worked. On an appeal against conviction the court examined many authorities. Appeal dismissed. Duggan J, with whom the others agreed, said (at [26]): It is not the point that adequate means were not available to the appellants. The relevant consideration is that an escape was possible if the necessary equipment had been available, but that the attempt failed because the makeshift implements in the cell were inadequate. This was not a situation in which the appellants were attempting to do something which was not possible whatever the means adopted.

[1.6630] When attempt may not be open A charge of an alternative of attempt to commit the following offences may not be open in law: 1. Attempt to commit an offence whose element is negligence or recklessness such as involuntary manslaughter; 2. Attempt to aid, abet, counsel or procure; 3. Attempt to commit a crime if there is omission such as concealment, misprision or compounding; 4. Attempt to commit an inchoate crime whose own element is attempt, such as attempt to conspire; 5. Attempt to commit a summary offence. In R v Déry [2006] 2 SCR 669 (SCC) held there is no offence of attempted conspiracy, in Canada at least. In R v Bristol Magistrates’ Court; Ex parte E [1998] 1 WLR 390; [1998] 3 All ER 798 Simon Brown LJ said (at 391; 799): An attempt to commit a summary offence is not in itself an offence.

See also E Meehan and J Currie, The Law of Criminal Attempt (Carswell, London, 2nd ed, 2000).

ATTORNEY-GENERAL The origin of the office ............................................................................................................... Present function .......................................................................................................................... The Attorney-General and the court .......................................................................................... Attorney-General’s approval of proceedings ............................................................................. Attorney-General’s reference ...................................................................................................... The purpose of the procedure .................................................................................................... Not a judicial roving commission .............................................................................................. General propositions ................................................................................................................... Question must not be too wide ..................................................................................................

[1.6800] [1.6805] [1.6810] [1.6815] [1.6820] [1.6825] [1.6830] [1.6835] [1.6840]

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[1.6800] The origin of the office LJ King QC, “The Attorney-General, Politics and the Judiciary” (2000) ALJ 444 said (at 444): The sovereign could not appear in person in his own courts to plead in any case which might affect his interests. It was necessary for him to appear by an attorney who would plead his case. In the middle of the 13th century there appears the first written record of the appointment as King’s Attorney of one Lawrence del Brok who held office for 14 years and afterwards was made a judge. The functions of the King’s Attorney gradually became wider and assumed a more public character … The Attorney-General’s role in the prosecution of crime derives from the royal prosecutorial function.

[1.6805] Present function The Attorney-General is the first law officer. The Attorney-General is not only the legal representative of the state in the courts but is also the guardian and protector of the public interests. The result is that when injury is done to the public in general but to no individual in particular, the only one supposed to set the law in motion is the Attorney-General. The Attorney-General is now not only a member of parliament but also a minister and in the cabinet. In Bateman’s Bay Local Aboriginal Land Council v Aboriginal Community Benefit Fund (1998) 194 CLR 247 Gaudron, Gummow and Kirby JJ said (at 262–263 [38]): At the present day, it may be “somewhat visionary” for citizens in this country to suppose that they may rely upon the grant of the Attorney-General’s fiat for protection against ultra vires action of statutory bodies for the administration of which a ministerial colleague is responsible.

[1.6810] The Attorney-General and the court A court will not examine why an Attorney-General will act: Barton v The Queen (1980) 147 CLR 75; 32 ALR 449. Nor will a court examine why an Attorney-General will not act: Gouriet v Union of Post Offıce Workers [1978] AC 435; [1977] 3 All ER 70 (HL). Once a matter is before a court the fact that the Attorney-General has instituted proceedings places him or her in no better position than any other suitor or advocate. The matter (and the advocates) are subject to control by the court. R v Prosser (1848) 11 Beav 306; 18 LJ Ch 35; 50 ER 834 (Lord Langdale MR); Barton v The Queen (1980) 147 CLR 75; 32 ALR 449 at 101; 363 per Gibbs and Mason JJ.

[1.6815] Attorney-General’s approval of proceedings Some proceedings of criminal nature are to be brought by the Attorney-General. Contempt of court is one of them. Other proceedings cannot be brought without approval of the Attorney-General. They are to be found in the statutes. Some of them are as follows: Espionage and Official Secrets: Cth: Crimes Act 1914 s 85(1). Conspiracy: Qld: Criminal Code ss 131(6); 132(3); Vic: Crimes Act 1958 s 321(4) (approval of DPP).

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Judicial corruption: Qld: Criminal Code s 120(4); WA: Criminal Code s 121; Tas: Criminal Code s 90(2); NT: Criminal Code s 93(3). As to the consent required of the Attorney-General before charges can be brought, see Director of Public Prosecutions at [4.2600].

[1.6820] Attorney-General’s reference Where a person is acquitted of a criminal offence, the Attorney-General may refer to the Court of (Criminal) Appeal a point of law arising at the trial. In some jurisdictions the reference is made by the Director of Public Prosecutions.

Legislation Qld: Criminal Code s 669A; WA: Criminal Appeals Act 2004 s 47; Tas: Criminal Code s 388AA; NT: Criminal Code s 414(2); Justices Act s 162A; NSW: Criminal Appeal Act 1912 s 5A(2); Vic: Criminal Procedure Act 2009 s 308; SA: Criminal Law Consolidation Act 1935 s 330; ACT: Federal Court of Australia Act 1976 s 30A; Eng: Criminal Justice Act 1972 s 36. “Any question of law arising at the trial” is the usual provision.

[1.6825] The purpose of the procedure In Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 57 A Crim R 256; 104 ALR 89 Mason CJ, Deane, Dawson, Gaudron and McHugh JJ said of the Queensland provision (at 305; 98; 265): The statutory procedure, which has its counterparts in other Australian jurisdictions, is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy. It is a procedure which was designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal, a rule which precluded a review of the trial judge’s ruling at the instance of the Crown in the case of an acquittal. The fundamental point, as it seems to us, is that s 669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial.

[1.6830] Not a judicial roving commission In Attorney-General’s Reference (No 3 of 1994) [1998] AC 245; [1997] 3 WLR 421; [1997] 3 All ER 936; [1996 1 Cr App R 351 (HL) Lord Mustill said (at 265; 438; 952): The courts have always firmly resisted attempts to obtain the answers to academic questions, however useful this might appear to be. Normally, where an appeal is brought in the context of an issue between parties, the identification of questions which the court should answer can be

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[1.6835]

performed by considering whether a particular answer to the question of law might affect the outcome of the dispute. The peculiarity of a reference under the Act of 1972 is that it is not a step in a dispute, so that in one sense the questions referred are invariably academic. This peculiarity might, unless limits are observed, enable the Attorney-General, for the best of motives, to use an acquittal in a point of law to set in train a judicial roving commission on a particular branch of the law, with the aim of providing clear, practical and systematic solutions for problems of current interest. This is not the function of the court, and the words emphasised in section 36(1) were in my view designed to keep Attorney-General’s references within proper bounds.

Approved: DPP (Cth) Reference No 1 of 1996 [1998] 3 VR 217 (CA) at 226 per Winneke P; DPP Reference No 1 of 1996 [1998] 3 VR 352 (CA) at 356 per Callaway JA; DPP Reference No 1 of 1999 (1999) 8 NTLR 148; 149 FLR 465; 105 A Crim R 489; 128 NTR 1 (Martin CJ).

[1.6835] General propositions In DPP (Vic) Reference No 2 of 1996 (1997) 141 FLR 414; 96 A Crim R 519; [1998] 3 VR 241 (Vic CA) Brooking J gave the leading judgment. Citing authority for each proposition, he said (at 250; 423–424; 529): Provisions like s 450A of the Crimes Act 1958 [now repealed and replaced by s 308 of the Criminal Procedure Act 2009] do not enable the Director to set in train a roving judicial commission on a particular branch of the law. They enable the court to correct an error of law made at the trial. This requires that there be a question of law that has been decided. Sometimes it is said that sections allowing the reference of a point of law which has arisen in the case do not permit the reference of hypothetical cases. But to say this is not to assert a limit upon the scope of the section not to be found in its express terms: “hypothetical cases” are simply cases which do not fall within the section, in that the point of law, or supposed point of law, did not arise in them.

[1.6840] Question must not be too wide In DPP (SA) v B (1998) 194 CLR 566; 101 A Crim R 420; 155 ALR 539 the High Court was asked to decide whether in South Australia the trial judge had power to refuse to accept a nolle prosequi entered by the Director of Public Prosecutions so as to prevent a trial from starting, and if so, what were the limitations on the exercise of that power. That is what Mohr J had done, and the Director of Public Prosecutions stated a case. Gaudron, Gummow and Hayne JJ examined the form of the reference and found it too wide. They said: [14] These are reasons enough to suggest that questions reserved for consideration by the Full Court should not have been answered.

They found that the rejection of the nolle prosequi occurred before the trial began. They said: [24] In our view, the questions reserved did not arise at the trial of the respondent. It follows that there was no power to reserve them for the consideration of a Full Court. [25] It also follows that this court should not, and indeed cannot, accept the invitation proffered by the appellant to express its opinion upon the issues which it was sought to agitate by the case stated. To do so would be to deliver an advisory opinion and that, of course, is beyond the power of this court whether in its appellate or its original jurisdiction.

See also D Bennett QC, “The Roles and Functions of the Attorney-General of the Commonwealth” (2002) 23 Aust Bar Rev 61–74. Director of Public Prosecutions at [4.2600].

[1.7015]

AUDI ALTERAM PARTEM

163

AUDI ALTERAM PARTEM Definition ..................................................................................................................................... Rule ............................................................................................................................................. Examples of right to be heard .................................................................................................... Examples of where only one side is heard ................................................................................

[1.7000] [1.7005] [1.7010] [1.7015]

[1.7000] Definition The Latin maxim audi alteram partem means “hear the other side”. It comes from St Augustine, De Duabus Animabus XIV.2.

[1.7005] Rule It is a rule of natural justice that a person is entitled to know the case against him. The next part of the rule is that no one shall be condemned unheard. In Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 Mason J said (at 582; 345): Generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it … The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

In Perkins v County Court of Victoria (2000) 2 VR 246; 115 A Crim R 528 (CA) Buchanan JA said (at 271; 554 [58]): In one way or another the rules of natural justice are concerned with the requirement that decisions affecting the rights of citizens shall be reached only after a fair hearing. That will occur if the tribunal observes the rule audi alteram partem and its members are not interested in the subject matter of the hearing: nemo debet esse judex in propria sua causa.

[1.7010] Examples of right to be heard Newspaper, when a suppression order is applied for: John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131; 59 A Crim R 68 at 151–153, 86–88 (CA). A person threatened with deportation: Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321; Haoucher v Minister of State for Immigration and Ethnic Affairs (1990) 169 CLR 648; 93 ALR 51. A family or person whose interest might be affected by a decision of a coroner: Annetts v McCann (1990) 170 CLR 596; 97 ALR 177. Before a Governor imposes or continues an indeterminate sentence of imprisonment: Pollentine v Attorney-General [1992] 2 Qd R 412; 77 A Crim R 51 (Thomas J). Before parole is revoked: R v Parole Board Chairman; Ex parte Patterson (1986) 43 NTR 13; 32 A Crim R 266 (FC). On taking forensic samples: Lednar v Magistrates’ Court (2000) 117 A Crim R 396 esp 419 [209] (Vic, Gillard J).

[1.7015] Examples of where only one side is heard Ordinarily one side only is heard in the following cases. Issue of a search warrant by magistrate or justice of the peace: R v Albu (1995) 65 SASR 439; 84 A Crim R 11 (CCA) per Cox J (at 451; 23).

164

ROSS ON CRIME

[1.7200]

See also Bias at [2.1800]; Natural justice at [14.300]; and Procedural fairness at [16.5700].

AUTOMATISM Legislation ................................................................................................................................... Definition ..................................................................................................................................... Sane and insane automatism ...................................................................................................... Evidential onus on accused for automatism to be raised .......................................................... How automatism interacts with insanity .................................................................................... Automatism caused by drunkenness .......................................................................................... Expert evidence ........................................................................................................................... Term non-insane automatism is disparaged ...............................................................................

[1.7200] [1.7205] [1.7210] [1.7215] [1.7220] [1.7225] [1.7230] [1.7235]

[1.7200] Legislation Cth: Criminal Code Act 1995 s 4.2; Qld: Criminal Code s 23; WA: Criminal Code s 23; Tas: Criminal Code s 13; NT: Criminal Code s 31; ACT: Criminal Code 2002 s 15.

[1.7205] Definition In R v King (2004) 155 ACTR 55 Gray J held (at 69 [42]): Automatism is not a medical term.It is derived from the concept in law that a person’s action can be said to be involuntary when his will does not govern the movement of his limbs. It is a term applied to a person performing acts in a state of unconsciousness: Hill v Baxter [1958] 1 QB 277; [1958] 1 All ER 193 per Lord Goddard CJ.

In R v Radford (1985) 42 SASR 266; 20 A Crim R 388 King CJ said (at 272; 394): It is a basic principle of the criminal law that a person “is not guilty of a crime if the deed which would constitute it was not done in exercise of his will to act”; Ryan v R (1967) 121 CLR 205 at 216, per Barwick CJ If the actions which would otherwise amount to a crime are performed automatically and are not subject to the control and direction of the will, no crime is committed. The general onus which rests upon the prosecution in a criminal case extends, of course, to establishing that the acts said to constitute the crime were performed in consequence of the exercise of the will. The law recognises a presumption of mental capacity which is sufficient to establish that an accused person acted pursuant to an exercise of his will unless the presumption is displaced by evidence which leaves the jury in doubt as to whether or not the actions were voluntary. The presumption does not affect the legal burden of proof which remains on the prosecution; it supplies, however, the place of evidence as to voluntariness unless displaced by actual evidence raising a reasonable doubt as to voluntariness: Bratty v Attorney-General for Northern Ireland [1963] AC 386, per Viscount Kilmuir LC at 407 and Lord Denning at 413.

Further (at 276; 398): If a person was not morally responsible or the action which is the subject of the charge because that action was an unwilled automatic act, he should not suffer conviction or punishment. If he is not mentally ill and there is therefore no reason to suppose that the act will be repeated, detention for the protection of others is pointless and an embarrassment to the mental health authorities.

Approved: R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545.

[1.7215]

AUTOMATISM

165

Automatism was also defined in R v Cottle [1958] NZLR 999 by Gresson P (at 1007): Automatism, which strictly means action without conscious volition, has been adopted in criminal law as a term to denote conduct of which the doer is not conscious – in short doing something without knowledge of it, and without memory afterwards of having done it – a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.

In Bratty v Attorney-General for Northern Ireland [1963] AC 386; [1961] 3 All ER 523; 46 Cr App R 1 (HL) Lord Denning said (at 409; 532; 16): No act is punishable if it is done involuntarily: and an involuntary act in this context – some people nowadays prefer to speak of it as “automatism” – means an act which is done by the muscles without any control by the mind, such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing, such as an act done whilst suffering from concussion or whilst sleep-walking.

[1.7210] Sane and insane automatism In R v Radford (1985) 42 SASR 266; 20 A Crim R 388 (CCA) King CJ said (at 276; 397–398): The significant distinction is between the reaction of an unsound mind to its own delusions or to external stimuli on the one hand [the insane automatism] and the reaction of a sound mind to external stimuli, including stress producing factors, on the other hand [the sane automatism].

See also R v Stone [1999] 2 SCR 290; (1999) 173 DLR (4th) 66; 134 CCC (3d) 353 (SCC); R v Yesler [2007] 1 NZLR 240 (HC, Lang J).

[1.7215] Evidential onus on accused for automatism to be raised In R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545 Mason CJ, Brennan and McHugh JJ said (at 43; 553; 252): The accused bears no ultimate onus of proving that his act was not willed, but he bears the evidential onus of rebutting the inference that his act was willed, and there is no occasion for the jury to consider the possibility of an unwilled act unless that evidential onus is discharged.

In R v Youssef (1990) 50 A Crim R 1 (NSW CCA) Hunt J said (at 4): If the accused is able to point to or to produce evidence from which it could be inferred that there is at least a reasonable possibility that his act was involuntary as a result of a state of automatism, the Crown in effect bears the onus of removing the reasonable doubt thereby raised, by establishing that the act was voluntary.

In DPP v Olcer (2003) 143 A Crim R 337 (Vic, Nathan J) his Honour examined authorities, then said (at 342 [28]): In a case where non-insane automatism is raised as a contention it must be supported by credible evidence which raises a reasonable possibility that the alleged criminal act of the accused was performed automatistically, if the automatistic act was induced by a medical or pharmacological condition then the evidence supporting that proposition must come from an expert in the relevant field.

Other cases R v Stone [1999] 2 SCR 290; (1999) 173 DLR (4th) 66; 134 CCC (3d) 353 (SCC).

166

ROSS ON CRIME

[1.7220]

[1.7220] How automatism interacts with insanity In R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545 Mason CJ, Brennan and McHugh JJ said (at 56; 563; 262): When an accused raises automatism and assigns some malfunction of the mind as its cause, he raises a defence of unsoundness of mind or insanity unless the malfunction of his mind 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. A malfunction of the mind other than a malfunction which satisfies those exempting qualifications amounts to a disease of the mind, or a mental disease or natural mental infirmity. As an accused bears no ultimate onus of proving that his act was not willed, in theory an accused may raise the issue of non-insane automatism on the evidence and claim to be acquitted outright unless the prosecution disproves the issue. But in practice an accused does not raise non-insane automatism by raising automatism based merely on mental malfunction. Prima facie, mental malfunction is the consequence of mental infirmity and, until it be proved that a particular instance of mental malfunction satisfies the exempting qualifications, mental malfunction must be treated as a consequence of mental infirmity.

[1.7225] Automatism caused by drunkenness In R v Keogh [1964] VR 400 Monahan J was delivering sentence. His Honour said (at 401): [A] state of automatism, even that which has been brought about by drunkenness, precludes the forming of the guilty intent which is the fundamental concept in criminal wrong-doing. Of course, the fact as to whether such a state of automatism existed is in each case to be determined by the jury.

A similar judgment was made when automatism was caused by a combination of drugs and alcohol: R v Haywood [1971] VR 755 (Crockett J).

[1.7230] Expert evidence In Cameron v The Queen (1990) 2 WAR 1; 47 A Crim R 397 (CCA) Malcolm CJ said (at 12–12; 407): It is now quite widely accepted that, at common law, medical evidence tending to show that there was a malfunctioning of the mind due to the consumption of alcohol or drugs, separately or in combination, so that a state of automatism was produced is admissible.

[1.7235] Term “non-insane automatism” is disparaged In R v Milloy [1993] 1 Qd R 298; (1991) 54 A Crim R 340 (CCA) Thomas J said (at 299; 341): I confess an aversion to the use of the term “non-insane automatism”. It is a barbarism the continuation of which is hardly justified by its historical origin. It is particularly abominable when used (as it frequently is) in a sentence that refers to its being negatived, or worse still, not negatived. Literally thousands of jurors, students, legal practitioners, judges and others will avoid unnecessary headaches if the use of the term is generally discontinued. There is no particular difficulty in the term “sane automatism”.

In R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545 Deane and Dawson JJ used the term “sane automatism” (at 63; 567–568; 268). In Canada the term is “non-mental disorder automatism”: R v Graveline [2006] 1 SCR 609; 266 DLR (4th) 42; 207 CCC (3rd) 481 (SCC).

[1.7415]

AUTREFOIS ACQUIT/CONVICT

167

AUTREFOIS ACQUIT/CONVICT Origin .......................................................................................................................................... Legislation ................................................................................................................................... Policy ........................................................................................................................................... Definition ..................................................................................................................................... Doctrinal difference between the two ........................................................................................ Previous trial and verdict ............................................................................................................ Same set of facts ......................................................................................................................... Burden of proof .......................................................................................................................... Plea of guilty to lesser charge rejected ...................................................................................... Who tries the issue ..................................................................................................................... Rule against double pleading ..................................................................................................... Other references ..........................................................................................................................

[1.7400] [1.7405] [1.7410] [1.7415] [1.7420] [1.7425] [1.7430] [1.7435] [1.7440] [1.7445] [1.7450] [1.7455]

[1.7400] Origin Autrefois comes from the French meaning formerly, at an earlier time. Autrefois acquit/convict is a special plea in bar to a criminal prosecution. The defendant/accused alleges he has already been tried for the same offence before a court of competent jurisdiction and acquitted/convicted. This form of plea is an illustration of the rule against double jeopardy. In Victoria, the pleas have been renamed “previous acquittal” and “previous conviction”.

[1.7405] Legislation Qld: Criminal Code ss 17, 598(2)(c) and 598(2)(d); WA: Criminal Procedure Act 2004 s 126(1)(a); Tas: Criminal Code ss 11, 355(1)(b)(iii) and 355(1)(b)(iv); NT: Criminal Code ss 18–20, 342(2)(c); NSW: Criminal Procedure Act 1986 s 156; Vic: Criminal Procedure Act 2009 s 220; SA: Criminal Law Consolidation Act 1935 s 285; ACT: Crimes Act 1900 s 283.

[1.7410] Policy In R v Carroll (2002) 213 CLR 635; 194 ALR 1; 136 A Crim R 167 McHugh J said (at 672; 30; 199 [128]): It is a fundamental rule of the criminal law “that no man is to be brought into jeopardy of his life, more than once, for the same offence”. If the prosecution attempts to do so, the accused may plead that he has already been convicted (autrefois convict) or acquitted (autrefois acquit) of the same matter. The rule is an aspect or application of the principle of double jeopardy whose “main rationale … is that it prevents the unwarranted harassment of the accused by multiple prosecutions”. Policy considerations that go to the heart of the administration of justice and the retention of public confidence in the justice system reinforce this rationale. Judicial determinations need to be final, binding and conclusive if the determinations of courts are to retain public confidence. Consequently, the decisions of the courts, unless set aside or quashed, must be accepted as incontrovertibly correct.

[1.7415] Definition In R v Storey (1978) 140 CLR 364; 22 ALR 47 at 396, 70 Mason J regarded autrefois acquit as a manifestation of res judicata. See also Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417.

168

ROSS ON CRIME

[1.7420]

In Connelly v DPP [1964] AC 1254; [1964] 2 All ER 401; 48 Cr App R 183 (HL) Lord Morris said (at 1305–1306; 412; 212–213): In my view both principle and authority establish: (1) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (2) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (3) that the same rule applies if the crime in respect of which he is being charged is in effect the same or is substantially the same as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted; (4) that one test as to whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction upon the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty; (5) that this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge; thus if there is an assault and a prosecution and conviction in respect of it, there is no bar to a charge of murder if the assaulted person later dies; (6) that on a plea of autrefois acquit or autrefois convict a man is not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions as to the identity of persons, dates and facts as are necessary to enable him to show that he is being charged with an offence which is either the same or is substantially the same as one in respect of which he has been acquitted or convicted or as one in respect of which he could have been convicted; (7) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that it is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings; (8) that apart from circumstances under which there may be a plea of autrefois acquit, a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies; (9) that, apart from cases where indictments are preferred and where pleas in bar may therefore be entered, the fundamental principle applies that a man is not to be prosecuted twice for the same crime.

[1.7420] Doctrinal difference between the two In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684 Gummow J said (at 626–627; 696–697; 385 [59] – [61]): A starting point for a doctrinal consideration of the pleas is the statement in Spencer Bower, Turner and Handley, The Doctrine of Res Judicata (3rd ed, 1996, Butterworths, London, para 309): There is a crucial distinction between pleas of autrefois acquit and autrefois convict though the two are often associated. Autrefois acquit is the species of estoppel by which the Crown is precluded from reasserting the guilt of the accused when that question has previously been determined against it. Autrefois convict, on the other hand, is akin to merger. It is the application to criminal proceedings of the maxim transit in rem judicatam. The learned editor also points out, with respect to autrefois convict, that “[I]t is the conviction, and not the harassment, which constitutes the bar” (para 429).

[1.7430]

AUTREFOIS ACQUIT/CONVICT

169

In Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417 at 276 (CLR), Deane and Gaudron JJ, after observing that the two pleas were often seen as different sides of the same coin, continued: To some extent they are: to the extent that they prevent the prosecution of crimes for which an accused has either been acquitted or convicted, they prevent inconsistent decisions and serve to maintain the principle embodied in the maxim res judicata pro veritate accipitur.

The emphasis is upon the significance attached to the court record. Hence the statement by Lord Goddard in Flatman v Light [1946] KB 414; [1946] 2 All ER 368 at 419 (KB) that the pleas should be asserted formally because they form part of the record of the court. Mandamus would issue out of the King’s Bench at the instance of a prisoner wishing to make such a plea, so as to provide the prisoner with a copy of the earlier record. In Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417 at 276–277, Deane and Gaudron JJ went on: Beyond that, however, they reflect quite different considerations. Autrefois convict is the application in criminal proceedings of the doctrine of merger which gives rise to res judicata or cause of action estoppel in civil proceedings; autrefois acquit operates within its confines to prevent the prosecution from asserting to the contrary of what has previously been judicially determined in favour of an accused.

[1.7425] Previous trial and verdict There must have been a trial and verdict in the previous hearing for the principle to apply. Having a charge struck out under one section of an act then lending the same evidence under another does not raise the principle: Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 162 A Crim R 409; 228 ALR 1. A failure to lead evidence is not sufficient: R v Calcedo [1986] VR 499; (1985) 18 A Crim R 200 (CCA) but for a gloss see Callahan v Broomham (1996) 68 IR 66 (NSW IR Ct). The position is different in England: R v G (Autrefois Acquit) [2001] 1 WLR 1727 (CA).

[1.7430] Same set of facts The charges must be the same or similar and from substantially the same facts.

Principle In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684 McHugh, Hayne and Callinan JJ said (at 616; 688; 376 [18]): It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for “substantially the same” offence, or for an offence the “gist” or “gravamen” of which is the same as the subject of the earlier prosecution or, as was said in Wemyss v Hopkins, for the “same matter”. It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts.

Examples In R v Peters (1995) 83 A Crim R 142 (NSW CCA) the accused had previously been acquitted of conspiracy to supply heroin. The evidence was based on poor quality tape recordings of the accuseds’ conversations. They gave sworn evidence and said they had been talking about disposal of stolen cigarettes and cannabis. After acquittal they were charged ex officio with conspiracy to commit the latter two offences. Stay was refused.

170

ROSS ON CRIME

[1.7435]

A conviction for possession of heroin was a bar to a charge of supplying the same heroin: R v Dodd (1991) 56 A Crim R 451 (NSW CCA). In Peacock v Downie (1993) 75 A Crim R 99 (NSW Land and Environment Court, Talbot J) the defendants slaughtered sheep contrary to planning rules. They were convicted and then charged with polluting waters in the same slaughtering. Held: no plea in bar because the offences were different and the evidence on the second charge could not have justified a conviction on the first. Other cases Prindiville v Hoffman (2005) 157 A Crim R 412 (WA, Jenkins J). R v Beedie [1998] QB 356; [1997] 3 WLR 758; [1997] 2 Cr App R 167 (CA). Connelly v Director of Public Prosecutions [1964] AC 1244; [1964] 2 All ER 401; (1964) 48 Cr App R 183 (HL).

[1.7435] Burden of proof The burden of proof is on the accused. In R v Stone (2005) 64 NSWLR 413; 157 A Crim R 41 (CCA) the accused had been charged with drug offences. He finally pleaded guilty to a summary charge of supply. Before he was sentenced, the DPP laid an ex officio indictment alleging the same supply. In the District Court, the judge held that autrefois convict had been made out. The prosecution appealed. After a long analysis of authorities, Hunt AJA said (at 429; 58 [57]): [T]he word conviction in the context of autrefois convict requires both conviction (in the sense of a finding of guilt) and sentence (in the sense of the final disposal of the case) to be established by the accused. The definitions are those of Lord Reid in S (an infant) v Recorder of Manchester [1971] AC 481 (at 489). In the absence of sentence, the plea in bar must fail.

(But the court also held that no prosecution appeal lies from the judge’s ruling. Appeal dismissed.)

[1.7440] Plea of guilty to lesser charge rejected An accused may plead guilty to a lesser charge but the prosecution wants to proceed on the more serious. The plea of guilty is not autrefois convict: R v Broadbent [1964] VR 733 at 736 (CCA); DPP v Collins (2004) 10 VR 1; 149 A Crim R 213 (at 11; 223 [25]) (CA). See also Plea at [16.2100]. R v Gamble [1947] VLR 491 (Duffy J). R v Hofschuster [No 2] (1993) 116 FLR 222; 70 A Crim R 260 (NT, Thomas J). Double jeopardy at [4.4600]; Nemo debet bis vexari at [14.900]; and Pardon at [16.300].

[1.7445] Who tries the issue Ordinarily, a jury will be empanelled to try the issue of autrefois acquit or autrefois convict unless legislation provides otherwise. In R v Gamble; Ex parte Cleary [1947] VLR 491 (Gavan Duffy J) his Honour, dealing with autrefois acquit, said (at 493): On principle, the truth of any such plea must be tried by a jury and the authorities are the same way.

[1.7450]

AUTREFOIS ACQUIT/CONVICT

171

But legislation provides otherwise in New South Wales.There, Criminal Procedure Act 1986 s 156(2) provides: The issue of autrefois convict or autrefois acquit is to be determined by the court without the presence of a jury.

Likewise in New Zealand: Crimes Act 1961 s 357(3).

[1.7450] Rule against double pleading There is a rule against double pleading. Double pleading means a plea of not guilty and without that plea’s withdrawal, a special plea. In this topic, the special or second plea is autrefois acquit (or convict) to the same charge. If there has been such a double plea, the defence should apply to withdraw one of the pleas, usually the plea of not guilty. In R v Banks [1911] 2 KB 1095 Alverstone CJ, delivering the judgment of five justices, said (at 1101): [A]ccording to well established rules of criminal pleading, a defendant, having pleaded not guilty to an indictment, is not entitled while that plea is standing, to have a plea of autrefois acquit put on the record.

Approved: R v Kent-Newbold (1939) 62 CLR 398. In R v Stone (2005) 64 NSWLR 413; 157 A Crim R 41 (CCA) Mr Stone was charged with possession and supply of the same methylamphetamine. The magistrate hearing the supply charge on committal refused to commit, probably wrongly. Mr Stone then pleaded guilty to the summary possession charge. A conviction was recorded. The prosecution then laid an ex officio indictment on the supply charge. It seemed likely that there had been an earlier plea of not guilty. In the District Court, Mr Stone pleaded autrefois convict. The judge accepted the plea. The prosecution appealed. Hunt AJA, delivering the leading judgment, said (at 419; 47–48 [20]): The judge in the present case would therefore have been in error in permitting the respondent to enter the plea in bar if the plea of not guilty still remained standing on the record. Whether that was the case is unclear. When the indictment was re-presented during the trial and the respondent entered only the plea in bar and did not repeat his plea of not guilty (see [14]), it may well be that the effect of the procedure adopted was to remove the earlier plea of not guilty from the record. The double pleading point was not taken at the trial; if it had been taken, the matter could easily have been resolved. The same situation arose in R v Kent-Newbold. In that case, Latham CJ expressed the view (at 406-407, 409-410) that, if the point had been taken at the trial, an application to withdraw the plea of not guilty to enable the plea in bar to be considered on its merits would have been successful provided that the plea was a good one. Such a course would ordinarily be followed by any judge where the point is taken at the trial.

Exceptions The rule has been abolished in some jurisdictions. NT: Criminal Code s 342(3) provides: Two or more pleas may be pleaded together except that the plea of guilty cannot be pleaded with any other plea to the same charge.

Vic: Criminal Procedure Act 2009 s 218 provides: On arraignment, an accused may enter a special plea in addition to pleading not guilty.

Eng: Criminal Law Act 1967 s 6(1)(a) provides: (6) Trial of offences. — (1) Where a person is arraigned on an indictment —

172

ROSS ON CRIME

[1.7455]

(a) he shall in all cases be entitled to make a plea of not guilty in addition to any demurrer or special plea.

Other cases Connelly v DPP [1964] AC 1244; [1964] 2 All ER 401; (1964) 48 Cr App R 183 (HL); R v Beedie [1998] QB 356; [1997] 3 WLR 758; [1997] 2 Cr App R 167; In R v Andrews [2009] 2 All ER 898; [2009] 1 Cr App R 26 (CA) the court set aside acquittals and ordered a retrial. The offences had differences. Yet, because of the judgment, there could be no plea of autrefois.

[1.7455] Other references Arraignment at [1.5800]; Demurrer at [4.1700]; Double jeopardy at [4.4600]; Duplicity at [4.5700]; Nemo debet bis vexari at [14.900]; Plea at [16.2100].

AVERMENT Definition ..................................................................................................................................... Prosecutor .................................................................................................................................... Restriction on use ....................................................................................................................... Drafting an averment .................................................................................................................. Effect of an averment ................................................................................................................. Caution in the use of an averment ............................................................................................. Conflict between averment and evidence .................................................................................. Amendment ................................................................................................................................. No averment of guilt ..................................................................................................................

[1.7600] [1.7605] [1.7610] [1.7615] [1.7620] [1.7625] [1.7630] [1.7635] [1.7640]

[1.7600] Definition Averment can mean these things: • A positive statement of facts permitted by legislation. • An offer by the accused to justify his plea. • The technical name for pleading allegations, for example, in the indictment.

[1.7605] “Prosecutor” Most legislation which allows an averment refers to its being made by a prosecutor. The informant laying the information is the prosecutor: Condon v Kalaf [1946] VLR 410 (Herring CJ).

[1.7610] Restriction on use For Commonwealth, Northern Territory and Australian Capital Territory offences averments are restricted. Cth Criminal Code Act 1995 s 13.6 provides: A law that allows the prosecution to make an averment is taken not to allow the prosecution: (a) to aver any fault element of an offence; or (b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

Identical words are used in ACT Criminal Code 2002 s 61. NT Criminal Code s 43BX:

[1.7640]

AVERMENT

173

A law that allows the prosecution to make an averment does not allow the prosecution to aver any fault element of an offence.

[1.7615] Drafting an averment In Gallagher v Cendak [1988] VR 731 Vincent J said (at 739): With great respect to each of the learned Judges whose views have been set out above, in my opinion they are entirely correct in requiring that averments be drawn with care and precision and that the courts should remain sensitive to the possibility of injustice arising from their use.

[1.7620] Effect of an averment In R v Hush; Ex parte Devanny (1932) 48 CLR 487 Dixon J said (at 507–508): It is to be noted that this provision … does not place upon the accused the onus of disproving the facts upon which his guilt depends, but, while leaving the prosecution the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus.

[1.7625] Caution in the use of an averment After reference to authority Vincent J said in Gallagher v Cendak [1988] VR 731 (at 739): It must not be forgotten that although they are ascribed the status of prima facie evidence, averments are none the less mere allegations. Their employment can create a risk that a conviction may be recorded against an individual where there is actually no evidence adduced against the alleged offender other than the making of such an allegation.

In Charlton v Rogers; Ex parte Charlton (1985) 82 FLR 40; 20 A Crim R 238 (Qld FC) Derrington J said (at 41; 243): The use of averments in this way is a powerful weapon which is given to the prosecution and accordingly must be exercised with due precision. This does not mean that it will be defeated by excessive or artificial scrutiny, but on substantive points a proper standard of accuracy is essential, in default of which the averment will fail.

[1.7630] Conflict between averment and evidence In Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 77 ALJR 1629; 201 ALR 1 Hayne J giving the leading judgment said (at 208; 36–37 [144]): No matter what standard of proof is adopted, the averment provisions may, in certain circumstances, confront a judge with the difficulty of resolving a competition between the requirement of the averment provisions that, as a matter of law, certain facts may, but need not, be taken to have been established to the requisite standard, and evidence tendered in contradiction of that conclusion. No matter what the standard of proof, the judge can resolve that competition in favour of the party making the averment only if persuaded of the existence or occurrence of the fact averred. The averment provisions, therefore, neither suggest nor require departure from the tentative answer expressed earlier in these reasons that if conviction is sought, proof beyond reasonable doubt of the elements of the relevant offence is necessary.

[1.7635] Amendment Averments may be amended in the same way as the information: Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133; 66 WN 52 (FC).

[1.7640] No averment of guilt While there cannot be an averment of guilt, most legislation draws no difference between averments on ultimate facts in issue and other facts or evidence: Chief Executive Offıcer of Customs v El Hajje (2005) 224 CLR 159; 218 ALR 457 (at 174, 467 [38]).

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[1.7800]

Other cases Brady v Thornton (1947) 75 CLR 140; Jambajimba v Svikart (1984) 71 FLR 287 (NT, Muirhead J); Holmden v Bitar (1987) 47 SASR 509; 27 A Crim R 255 (Cox J); Kerney v Lewis (2005) 191 FLR 54; 155 A Crim R 95; 43 MVR 442 (ACT, Gray J).

AZZOPARDI DIRECTION Origin .......................................................................................................................................... [1.7800] Applications ................................................................................................................................ [1.7805] OGD warning: reasons for silence unknown ............................................................................. [1.7810]

[1.7800] Origin The Azzopardi direction is that which a judge should give a jury when an accused does not give evidence. In Azzopardi v The Queen (2001) 205 CLR 50; 179 ALR 349; 119 A Crim R 8; Gaudron, Gummow, Kirby and Hayne JJ said (at 70; 362; 22 [51]): [I]f an accused does not give evidence at trial it will almost always be desirable for the judge to warn the jury that the accused’s silence in court 1. is not evidence against the accused, 2. does not constitute an admission by the accused, 3. may not be used to fill gaps in the evidence tendered by the prosecution, and 4. may not be used as a make-weight in assessing whether the prosecution has proved its case beyond reasonable doubt. [numbering added]

[1.7805] Applications In R v Surrey [2005] 2 Qd R 81; (2005) 151 A Crim R 547 (CA) Jerrard JA said (at 97; 560 [36]): I respectfully observe that it would reduce the number of matters about which complaint could be made on appeal, and in any event would be better, if trial judges avoided giving unnecessary “micro-Weissensteiner” directions, and gave full Azzopardi directions where appropriate, but omitting the “make-weight” observation. It would also probably be safer for trial judges not to refer to the prosecution evidence as being such as “to call for an explanation”, although this expression is suggested in the current Bench Book direction and impliedly required by the joint judgment in Azzopardi (at [67]). Using the term “call for an explanation” has the capacity to reverse the onus of proof. (The appeal was dismissed.)

See also R v DAH (2004) 150 A Crim R 14 at 34–35 [83] – [86] (Qld CA); Burke v The Queen [2013] VSCA 351. In R v Macris (2004) 147 A Crim R 99 (NSW CCA) the trial judge failed to give the Azzopardi direction points three and four. Appeal upheld. Yet in R v Wilson (2005) 62 NSWLR 346 (CCA) Hunt AJA said (at 353 [25]): It has never been suggested that, where it becomes “desirable” in the particular case to give only the first two ingredients of the Azzopardi direction, the failure to give a ritual incantation of the whole direction is an error giving rise to a miscarriage of justice. In my view, the joint judgment in the Azzopardi case should not be interpreted as leading to such a consequence.

[1.7810]

AZZOPARDI DIRECTION

175

See also, Klink v The Queen [2014] VSCA 325.

[1.7810] OGD warning: reasons for silence unknown In R v Wilson (2005) 62 NSWLR 346 (CCA) Hunt AJA said (at 350 [13]): The relevant passage in the summing up does not include the warning, said to have been “ordinarily necessary” in R v OGD (1997) 45 NSWLR 744 at 751, that there may be reasons unknown to the jury why an accused person remains silent, even if otherwise in a position to contradict or explain evidence. The phrase “ordinarily necessary” was said by this court in R v Bargwann (Court of Criminal Appeal, 15 June 1998, unreported) to mean that it is only in extraordinary circumstances that such a warning should not be given.

See also Silence at [19.3900].

B BAIL Definition ....................................................................................................................................... [2.100] No common law right to bail ....................................................................................................... [2.105] Legislation ..................................................................................................................................... [2.110] Absconding on bail ....................................................................................................................... [2.115] An approach of a court ................................................................................................................. [2.120] Successive applications ................................................................................................................. [2.125] Bail considerations ........................................................................................................................ [2.130] Bail pending appeal after conviction by magistrate .................................................................... [2.135] Bail after committal ...................................................................................................................... [2.140] Bail after conviction and before sentence .................................................................................... [2.145] Bail pending appeal after conviction at trial ............................................................................... [2.150] Bail after conviction at trial and unsuccessful appeal, pending special leave application to the High Court ..................................................................................................................................... [2.155] Contempt ....................................................................................................................................... [2.160] Delay ............................................................................................................................................. [2.165] Terrorism ....................................................................................................................................... [2.175] Murder ........................................................................................................................................... [2.180] On arraignment bail is in the discretion of the judge ................................................................. [2.185] Justices appeal: bail in the discretion of the judge ..................................................................... [2.190] Surety ............................................................................................................................................ [2.195] Court review of bail ...................................................................................................................... [2.200] Offence committed while on bail ................................................................................................. [2.205] Surety ............................................................................................................................................ [2.210]

[2.100] Definition The term bail comes from the French bailler: to take charge of, guard, control; and thence to hand over, deliver. An accused is granted bail on release from the custody of officers of the law and into the custody of persons known as sureties. The sureties undertake to produce the accused at a specified time and place to answer the charge against him or her. If they fail they are liable to forfeit the sum specified when bail is granted. The accused and sureties enter a recognisance (an obligation or bond) that the accused will appear. The amount of money lodged as security bail must not be the money of the accused. Such an act is a corruption of the bail process, Re B [1981] 2 NSWLR 372, and may amount to an offence: R v Freeman (1985) 3 NSWLR 303; 17 A Crim R 272 (CCA).

[2.105] No common law right to bail In Chau v DPP (1995) 37 NSWLR 639; 132 ALR 430; 82 A Crim R 339 (CA) Gleeson CJ said (at 646; 436; 345): There is no common law right in a person who has been arrested and charged with a serious crime to be at liberty or on bail pending the resolution of the charge. (The principles applied by courts in

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[2.110]

making discretionary decisions as to bail are reviewed, for example, in R v Watson (1947) 64 WN (NSW) 100 and R v Light [1954] VLR 152.) In any event if there were such a right, it could be modified by statute.

[2.110] Legislation Qld: Bail Act 1980; WA: Bail Act 1982; Tas: Bail Act 1994; NT: Bail Act; NSW: Bail Act 2013; Vic: Bail Act 1977; SA: Bail Act 1985; ACT: Bail Act 1992; NZ: Crimes Act 1961 ss 318–320C.

[2.115] Absconding on bail When an accused absconds and fails to answer his bail there are three main consequences: 1. the surety is forfeited: Re King and Scott (1930) 50 NZLR 162 (CA); R v Baker [1971] VR 717 (Gowans J); 2. on apprehension the accused is unlikely to be bailed again: Lambley v The Queen (1989) 40 A Crim R 430; 3. the absconding or flight can be used in evidence at the trial of the accused. See Flight at [6.1300].

[2.120] An approach of a court In DPP v Serratore (1995) 38 NSWLR 137; 81 A Crim R 363; 132 ALR 461 (CA), Kirby P said (at 142–143; 466; 369): Bail is a particular feature of the systems of law which derive their origins from the common law of England. It was not a feature usual to other legal systems, such as those of civil law countries, although in recent times the influence of the privilege to seek bail has come to be felt in the municipal systems of non-common law States and in the international statements of basic civil rights. The International Covenant on Civil and Political Rights (ICCPR), Art 9, for example, provides: 9.1 Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. … (3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. (Emphasis added).

[2.150]

BAIL

179

Australia is a party to the International Covenant. In the event of uncertainty of the common law or ambiguity of legislation, an Australian court may have regard to the provisions of the International Covenant to help resolve the uncertainty or ambiguity: see Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 at 42 (CLR); Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 288–289, 315.

[2.125] Successive applications In Scrivener v DPP (2001) 125 A Crim R 279 (Qld CA) McPherson JA, with whom the others agreed, said (at 282 [11]): An appeal to this court is not the only avenue open to someone whose application for bail has been refused. An alternative is to renew the application to another judge of the court. The right of the applicant to go from one judge to another was recognised by the Full Court in R v Malone [1903] St R Qd 140, 141, and again in R v Hughes [1983] 1 Qd R 92, 93, as well as by other authorities in this State. See also Eshugbayi Eleko v Offıcer Administering the Government of Nigeria [1928] AC 459. At least that is so before the accused is given in charge to the jury.

[2.130] Bail considerations Considerations for granting bail include: • a presumption in favour of bail save in specified cases; • need to prepare a defence: R v Gay [1969] SASR 467; • seriousness of offence: R v Young (1966) 83 WN (Pt 1) (NSW) 391; • likely severity of punishment: R v Lythgoe [1950] St R Qd 5 (Mansfield SPJ); • likelihood of answering bail; • likelihood of re-offending; • potential for interference with witnesses.

[2.135] Bail pending appeal after conviction by magistrate Cases on bail pending appeal after conviction by a magistrate include: R v Taylor (1995) 80 A Crim R 371 (NSW Sully J); Petreskei v Cargill (1987) 18 FCR 68; 79 ALR 235; 31 A Crim R 277 (FCA); Re Barnett [1987] VR 387; (1986) 24 A Crim R 177 (Hampel J); Re Lycouressis [1983] 2 VR 219 (Murphy J); R v Blackler [1981] VR 672 (Starke ACJ).

[2.140] Bail after committal YSA v DPP (2002) 133 A Crim R 368 (Vic CA).

[2.145] Bail after conviction and before sentence DPP (Cth) v Germakian (2006) 166 A Crim R 201 (NSW CA).

[2.150] Bail pending appeal after conviction at trial General Exceptional circumstances are to be shown for bail to be granted after conviction pending an appeal. Some legislation says that.

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[2.155]

Legislation WA: Bail Act 1982 Sch 1, Pt C, cll 4 and 5; NT: Bail Act s 23A; NSW: Bail Act 2013 s 62; ACT: Bail Act 1992 s 9E.

Cases Tilley v The Queen (2008) 83 ALJR 233; 251 ALR 367 (Hayne J) (refused); Tieleman v The Queen (2004) 149 A Crim R 303 (WA, FC) (refused); Walser v The Queen (1994) 73 A Crim R 154 (WA, White J) (granted); R v Wilson (1994) 34 NSWLR 1; 73 A Crim R 532 (CA) (refused); Bernt v The Queen (1994) 70 A Crim R 1 (WA, Scott J) (granted); R v Eaves (1987) 35 A Crim R 364 (NSW, Finlay J) (refused); R v Hilton (1986) 7 NSWLR 745; 27 A Crim R 59 (CCA) (granted); Re Clarkson [1986] VR 583 (FC) (refused); Ex parte Maher [1986] 1 Qd R 303; (1985) 19 A Crim R 177 (FC) (refused); R v Giordano (1982) 31 SASR 241; 6 A Crim R 397 (FC) (refused); Chamberlain v The Queen (1982) 69 FLR 445; 6 A Crim R 385 (FCA) (granted); R v Manning [1936] VLR 84 (Gavan Duffy J) (refused); KWLD v The State of Western Australia [No 2] [2013] WASCA 129 (refused). HD v The Queen [2015] ACTCA 49 (bail refused). Those exceptional circumstances include: • A ground of appeal which has an extraordinarily high prospect of success: R v Wilson (1994) 34 NSWLR 1; 73 A Crim R 532 (CA) (refused). In Marotta v The Queen (1999) 73 ALJR 265; 160 ALR 525 Callinan J granted bail. • That the custodial sentence will have been substantially served: Bernt v The Queen (1994) 70 A Crim R 1 (WA, Scott J); R v Greenham (1998) 103 A Crim R 185 (NSW, Sperling J); Re Zoudi (2006) 14 VR 580; 168 A Crim R 444 (CA, 5 member court). Habeas corpus does not apply: Eaves v James (1988) 33 A Crim R 369 (NSW CA).

Writing J Willis, “Bail pending appeal after conviction and sentence on indictment” (2005) 29 Crim LJ 296–314.

[2.155] Bail after conviction at trial and unsuccessful appeal, pending special leave application to the High Court Exceptional circumstances are to be shown: Hayes v The Queen (1974) 48 ALJR 455; Chamberlain v The Queen [No 1] (1983) 153 CLR 514; 46 ALR 608 (Brennan J);

[2.190]

BAIL

181

Frugtniet v The Queen (1996) 71 ALJR 311 (Gaudron J). The fact that a custodial sentence would have been all but served by the hearing of the application is an exceptional circumstance. Bail was granted in Peters v The Queen (1996) 71 ALJR 309 (Dawson J) and in Marotta v The Queen (1999) 73 ALJR 265; 160 ALR 525 (Callinan J).

[2.160] Contempt Where an order of imprisonment has been made against a contemnor, bail is inappropriate: Young v Registrar, Court of Appeal [No 2] (1993) 71 A Crim R 121 (NSW CA).

[2.165] Delay Exceptional delay of the trial date argues towards granting bail: Tregurtha v The Queen (2002) 136 A Crim R 443 (WA, Barker J); Mokbel v DPP (No 3) (2002) 133 A Crim R 141 (Vic, Kellam J). The normal delay between arrest and committal, and committal and trial were said not to be exceptional circumstances in R v Thinh Tang (1995) 83 A Crim R 593 (Vic, Beach J).

[2.175] Terrorism Haddara v DPP (2006) 159 A Crim R 489 (Vic, Osborn J): bail refused. Vinayagamoorthy v DPP (2007) 212 FLR 326 (Vic, Bongiorno J): bail granted. Raad v DPP (2007) 175 A Crim R 240 (Vic, Bongiorno J): bail refused.

[2.180] Murder In cases of murder exceptional circumstances must be shown before granting bail: Dodd v The Queen (2002) 135 A Crim R 545 (WA, McKechnie J); R v Schmidt (2002) 133 A Crim R 194 (SA, Gray J); R v Halas (2001) 81 SASR 1; 122 A Crim R 503 (Gray J). Bail granted: Farquar v Fleet (1989) 50 SASR 490; 41 A Crim R 40 (Legoe J); R v Jemielita (1995) 12 WAR 362; 78 A Crim R 91 (FC); DPP v Eaves (1987) 35 A Crim R 364 (NSW, Finlay J); DPP v Pakis (1981) 3 A Crim R 132 (NSW, O’Brien CJ of Cr D).

[2.185] On arraignment bail is in the discretion of the judge Lord Steyn when delivering the leading judgment in R v Central Criminal Court; Ex parte Guney [1996] AC 616; 2 All ER 705; 2 Cr App R 352 (HL) said: When a defendant who has not previously surrendered to custody is so arraigned he thereby surrenders to the custody of the court. From that moment the defendant’s further detention lies solely within the discretion and power of the judge. Unless the judge grants bail the defendant will remain in custody pending and during his trial. This is a readily comprehensible system which causes no problems for the administration of justice.

[2.190] Justices appeal: bail in the discretion of the judge In R v Peehi (1997) 41 NSWLR 476; 92 A Crim R 539 (CA) the appellant had appealed to the District Court from the sentence given by the local court. During the judge’s reasons

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[2.195]

Mr Peehi absconded. For that he was convicted by a jury of escape. Appeal dismissed. Once the appeal began the appellant was in the custody of the District Court.

[2.195] Surety The court can have no regard to the character or antecedents of the proposed surety. In R v Barrett (1985) 16 A Crim R 123 O’Loughlin J said (at 125): In Badger (1843) 4 QB 468, 114 ER 975, Lord Denman CJ made it quite clear that the Court was not entitled to enter into: An investigation as to the character or opinions of such bail, provided (the Court) is satisfied of their sufficiency to answer for the appearance of the party in the amount reasonably required for that purpose. Although Badger’s case can not now be considered the law in the United Kingdom (by virtue of the introduction of the Bail Act in 1976), it must nevertheless, in my opinion, be regarded as the law in South Australia.

[2.200] Court review of bail Legislation Qld: Bail Act 1980 s 8; WA: Bail Act 1982 ss 54 and 55; Tas: Bail Act 1994 s 24; NT: Bail Act ss 34–36; NSW: Bail Act 1978 ss 63–67; Vic: Bail Act 1977 s 18A; SA: Bail Act 1985 s 15A; ACT: Bail Act 1992 ss 41–46; NZ: Crimes Act 1961 ss 379B and 397.

Cases YSA v DPP(Vic) (2002) 133 A Crim R 368 (Vic CA); Fernandez v DPP (Vic) (2002) 5 VR 374; 132 A Crim R 270 (CA, Full Bench); R v Melbourne (2002) 132 A Crim R 318 (SA, Bleby J); Scrivener v DPP (2001) 125 A Crim R 279 (Qld CA); Farquar v Fleet (1989) 50 SASR 490; 41 A Crim R 40 (Legoe J); See also Beljajev v DPP (unreported, Vic FC, 8 August 1991); R v Tang (1995) 83 A Crim R 593 (Vic SC, Beach J); R v Bey (1996) 86 A Crim R 304 (Vic SC, Beach J); R v Radev (1999) 108 A Crim R 121 (Vic SC, Beach J); Re Asmar [2005] VSC 487; R v Naidu [2011] VSC 170.

[2.400]

BASHA INQUIRY

183

N Gobbo, “Drugs, Bail and Exceptional Circumstances” December 1998 Law Inst J (Vic) 61.

[2.205] Offence committed while on bail An offence committed while on bail (or parole) calls for significant punishment.

Bail R v Richards [1981] 2 NSWLR 264 (CCA); Pop v The Queen (2000) 116 A Crim R 398 (WA CCA); R v Wilde; Ex parte Attorney-General (Qld) (2002) 135 A Crim R 538 at 540 [15] (Qld CA).

Parole R v Readman (1990) 47 A Crim R 181 (NSW CCA); R v Moffıtt (1990) 20 NSWLR 114; 49 A Crim R 20 (CCA); R v Schofield (2003) 138 A Crim R 19 (NSW CCA).

[2.210] Surety A bail surety is a person who guarantees that the accused will attend court. A promise of money is usually part of the guarantee. In Mokbel v DPP (2006) 14 VR 405; 170 A Crim R 179 (Gillard J) Antonios Mokbel had absconded during a drug trial. His sister-in-law, Renate Mokbel, had been his surety and guaranteed $1m. She failed in her application to have the bail conditions altered.

BASHA INQUIRY Meaning ......................................................................................................................................... Not appropriate where trial would be unfair ............................................................................... Where witness has not given evidence on a certain topic .......................................................... Effect of legislation curtailing committal witnesses ....................................................................

[2.400] [2.405] [2.410] [2.415]

[2.400] Meaning The expression is directed to the power of a judge to allow the defence a dry run cross-examination in the absence of the jury when a witness was not called at committal. In R v Basha (1989) 39 A Crim R 337 Hunt J said (at 339): I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will in the end be for the trial court, not the Crown, to decide.

Followed: R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 at 180–181, 190–191 (Hunt CJ at CL); DPP v Bayly (1994) 63 SASR 97; 75 A Crim R 549; 126 ALR 290 at 119–122, 571–573 (Olsson J); DPP v Bayly (No 2) (1994) 75 A Crim R 575 at 578 (SA, Olsson J);

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[2.405]

DPP v Denysenko [1998] 1 VR 312; (1997) 91 A Crim R 313 at 316–317, 317–318 (CA). Strictly speaking, such cross-examination is not a voir dire: see R v Sandford (1994) 37 NSWLR 172; 72 A Crim R 160 (CCA).

[2.405] Not appropriate where trial would be unfair A Basha inquiry is not appropriate where the accused “would suffer unacceptable disadvantage or prejudice if now tried on the indictment, in the sense that there is a serious risk that her right not to be tried unfairly would be infringed; see Barron v Attorney-General”: R v Hiroti (1997) 95 A Crim R 72; 140 FLR 366 at 84, 377 (NT, Kearney J). The indictment was stayed until further committal.

[2.410] Where witness has not given evidence on a certain topic In R v Kennedy (1997) 94 A Crim R 341 (NSW, Hunt CJ at CL) the accused was charged with sexual offences against a girl, then 13 years old. She had not spoken about dates or places. His Honour ruled (at 351): There is available a procedure, now known as a Basha inquiry, by which the applicant would be able to cross-examine the complainant in order to investigate, in advance of her evidence at the trial, whether she can say more than the police have so far been able to extract from her as to when and where these offences are alleged to have occurred. Provided that the investigation is strictly limited to those two issues, the procedure would be both permissible and useful.

[2.415] Effect of legislation curtailing committal witnesses The result of legislation curtailing committal witnesses may result in a stay of the trial or a Basha inquiry. In DPP v Tanswell (1998) 103 A Crim R 205 (NSW CA) Sheller JA giving the leading judgment said (at 211): There was nothing in the legislation to suggest that the legislature intended to allow the defendant to override the informant’s discretion by forcing the informant to tender more witnesses than the informant in the proper exercise of that discretion, decided would be tendered. The right of the informant to decide what witnesses would be tendered in the informant’s case was well entrenched. A stay of the proceedings might result if the discretion was not properly exercised and the prosecutor’s failure to call a witness in the committal proceedings created a prejudice which was not otherwise cured by the Crown: R v Basha (1989) 39 A Crim R 337 at 341.

BATTERED WOMAN SYNDROME Definition ....................................................................................................................................... Avoiding stereotypes ..................................................................................................................... Expert evidence is to be admitted ................................................................................................ Self defence ................................................................................................................................... Provocation .................................................................................................................................... Duress ............................................................................................................................................ Property offences .......................................................................................................................... Sentence ........................................................................................................................................

[2.600] [2.605] [2.610] [2.615] [2.620] [2.625] [2.630] [2.635]

[2.600] Definition Battered woman syndrome is not a fomal defence. In R v Runjanjic (1991) 56 SASR 114; 53 A Crim R 362 (CCA) the accused were under the dominion of a man named Hill. He required them to detain a third woman, Patricia Hunter. After he had beaten Hunter, Hill later died. The accused were convicted of false imprisonment and causing grievous bodily harm. The trial judge had disallowed expert evidence of the syndrome.

[2.605]

BATTERED WOMAN SYNDROME

185

King CJ said (at 118; 366): I gather from the literature that the idea of the battered woman syndrome was pioneered by Dr Lenore Walker in a publication entitled The Battered Woman (1979). She is the author of The Battered Woman Syndrome (1984). It now appears to be a recognised facet of clinical psychology in the United States and Canada. It emerges from the literature that methodical studies by trained psychologists of situations of domestic violence have revealed typical patterns of behaviour on the part of the male batterer and the female victim, and typical responses on the part of the female victim. It has been revealed, so it appears, that women who have suffered habitual domestic violence are typically affected psychologically to the extent that their reactions and responses differ from those which might be expected by persons who lack the advantage of an acquaintance with the result of those studies. Repeated acts of violence, alternating very often with phases of kindness and loving behaviour, commonly leave the battered woman in a psychological condition described as “learned helplessness”. She cannot predict or control the occurrence of acute outbreaks of violence and often clings to the hope that the kind and loving phases will become the norm. This is often reinforced by financial dependence, children and feelings of guilt. The battered woman rarely seeks outside help because of fear of further violence. It is not uncommon for such women to experience feelings for their mate which they describe as love. There is often an all pervasive feeling that it is impossible to escape the dominance and violence of the mate. There is a sense of constant fear with a perceived inability to escape the situation.

In R v Chhay (1994) 72 A Crim R 1 (NSW CCA) Gleeson CJ said (at 11): To quote a recent article commenting on the decision in Ahluwalia [1992] 4 All ER 889; 96 Cr App R 133 (D Nicholson and R Sanghvi, “Battered Women and Provocation” (1993) Crim LR 728 at 730): According to research and many cases themselves, battered women tend not to react with instant violence to taunts or violence as men tend to do. For one thing, they learn that this is likely to lead to a bigger beating. Instead, they typically respond by suffering a “slow-burn” of fear, despair and anger which eventually erupts into the killing of their batterer, usually when he is asleep, drunk or otherwise indisposed.

[2.605] Avoiding stereotypes In Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 Kirby J said (at [158]): Avoiding stereotypes: Care needs to be taken in the use of language and in conceptualising the problem presented by evidence tendered to exculpate an accused of a serious crime on the ground of a pre-existing battering or abusive relationship. As evidence of the neutrality of the law it should avoid, as far as possible, categories expressed in sex specific or otherwise discriminatory terms. Such categories tend to reinforce stereotypes. They divert application from the fundamental problem which evokes a legal response to what is assumed to be the typical case.

And later (at [161]): As a construct, BWS may misrepresent many women’s experiences of violence. It is based largely on the experiences of Caucasian women of a particular social background. Their “passive” responses may be different from those of women with different economic or ethnic backgrounds. This was recognised by the Supreme Court of Canada in R v Malott (1998) 155 DLR (4th) 513 at 528. It is possible that those women who are unable to fit themselves within the stereotype of a victimised, passive, helpless, dependent, battered woman will not have their claims to self-defence fairly decided. For instance, women of colour, women who are professionals, or women who might have fought back against their abusers on previous occasions, should not be penalised for failing to accord with the stereotypical image of the archetypal battered woman.

186

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[2.610]

[2.610] Expert evidence is to be admitted In Lavalee v The Queen [1990] 1 SCR 852; 55 CCC (3d) 97 the Supreme Court of Canada said (at 871–872; 112): Expert evidence on the psychological effect of battering on wives and common law partners must it seems to me be both relevant and necessary in the context of the present case. How can the mental state of the appellant be appreciated without it? The average member of the public (or of the jury) can be forgiven for asking: Why would a woman put up with this kind of treatment? Why should she continue to live with such a man? How could she love a partner who beat her to the point of requiring hospitalisation? We would expect the woman to pack her bags and go. Where is her self respect? Why does she not cut loose and make a new life for herself? Such is the reaction of the average person confronted with the so-called “battered wife syndrome”. We need help to understand it and help is available from trained professionals.

In Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 Gaudron and Gummow JJ said: [56] [E]xpert evidence of heightened arousal or awareness of danger may be directly relevant to self-defence, particularly to the question whether the battered woman believed that she was at risk of death or serious bodily harm and that her actions were necessary to avoid that risk. And, of course, the history of the particular relationship may bear on the reasonableness of that belief. [57] Given that the ordinary person is likely to approach the evidence of a battered woman without knowledge of her heightened perception of danger, the impact of fear on her thinking, her fear of telling others of her predicament and her belief that she can’t escape from the relationship, it must now be accepted that the battered wife syndrome is a proper matter for expert evidence. Such evidence has been received in South Australia, New South Wales, England and the United States of America. And in R v Lavallee [1990] 1 SCR 852; 55 CCC (3d) 97 the Supreme Court of Canada accepted that the battered wife syndrome was a proper matter for expert evidence. [58] As with expert evidence generally, a trial judge should direct the jury that it should decide whether it accepts evidence given with respect to the battered wife syndrome. As was pointed out in R v Lavellee [1990] 1 SCR 852; 55 CCC (3d) 97, however, the issue is not simply whether the accused is a battered woman. Rather, the issue is usually whether she acted in self-defence and, if not, whether she acted under provocation. They are issues which arise in the factual context of the particular case. If it is not otherwise obvious as to how the evidence of battered wife syndrome may be used, it should be related to those issues in the factual context in which they occur.

Kirby J said (at [167]): [E]xpert testimony about the general dynamics of abusive relationships is admissible if relevant to the issues in the trial and proved by a qualified expert. The greatest relevance of such evidence will usually concern the process of “traumatic bonding” which may occur in abusive relationships. This phenomenon has been observed in the circumstances to which evidence of BWS may relate. But it has also been described as between battered children and their parents, hostages and their captors and prisoners in a concentration camp and their guards.

Other cases R v J (1994) 75 A Crim R 522 (Vic CCA); R v Singleton (1994) 72 A Crim R 117 (NSW, Irvine J); R v Malott [1998] 1 SCR 123; 155 DLR (4th) 513; 21 CCC (3d) 456 (SCC).

Issues are self defence, provocation and duress In R v Runjanjic (1991) 56 SASR 114; 53 A Crim R 362 (CCA) King CJ said (at 122; 370): I can see no distinction in principle between the admission of expert evidence of the battered woman syndrome on the issues of self defence and provocation and on the issue of duress.

See also Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 (HC) per Gaudron and Gummow JJ (at [58]).

[2.635]

BATTERED WOMAN SYNDROME

187

[2.615] Self defence Self defence was an issue in: • R v Lavalee [1990] 1 SCR 852; 55 CCC (3d) 97 (SCC) where the accused shot dead her retreating male partner who had assaulted and threatened her; • R v Chhay (1994) 72 A Crim R 1 (NSW CCA) in which the trial judge had directed the jury on self defence and provocation. The accused was convicted of murder. The appeal was allowed because the direction on provocation had been wrong. Note however that the Court of Appeal did not say that self defence should not have been left to the jury; • Secretary v The Queen (1996) 5 NTLR 96; 107 NTR 1; 131 FLR 124; 86 A Crim R 119 (CCA) in which the accused shot dead her sleeping husband. The Court of Criminal Appeal found the trial judge was wrong not to have left self defence to the jury; (On retrial she was acquitted of all charges.) • R v Graveline [2006] 1 SCR 609; 266 DLR (4th) 42; 207 CCC (3rd) 481 (SCC). The judge directed the jury on self defence though such a proposition was weak. Automatism was the proper defence. The accused was properly acquitted.

[2.620] Provocation Provocation was used as a defence in: R v Ahluwalia [1992] 4 All ER 889; 96 Cr App R 133 (CA). R v Chhay (1994) 72 A Crim R 1 (NSW CCA). R v Thornton (No 2) [1996] 2 All ER 1023; [1996] 2 All ER 1023; [1996] 2 Cr App R 108 (CA). See also Provocation at [16.7800].

[2.625] Duress Duress (and compulsion under the Criminal Code s 20) was held to be a defence in Rice v McDonald (2000) 113 A Crim R 75 (Tas, Slicer J). See also Duress at [4.5900].

[2.630] Property offences In R v Lorenz (1998) 146 FLR 369 (ACT) Crispin J held that the battered woman syndrome was no defence to thefts from a supermarket. In Rice v McDonald (2000) 113 A Crim R 75 (Tas) Slicer J held that the syndrome was a defence to stealing and making a false report to police.

[2.635] Sentence R v Casotti (1994) 74 A Crim R 294 (Vic CCA); R v MacKenzie [2002] 1 Qd R 410; (2000) 113 A Crim R 534 (CA);

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[2.800]

R v Olsen (2002) 130 A Crim R 438 at 442–443 [23] (NT CCA). See also R v Hickey (1992) 16 Crim LJ 271; R v Wang [1990] 2 NZLR 529 (CA); Sheehy and Tolmie, “Defending the Battered Woman on Trial” (1992) 16 Crim LJ 369–394. “Editorial” (1996) 20 Crim LJ 185–188. E McDonald, “Battered Woman Syndrome: Evidence of Abuse can become Abusive” [1997] NZLJ 436. Stubbs and Tolmie, “Battered Woman Syndrome: Australia” in Stubbs: Women, Male Violence and the Law: Institute of Criminology Monograph Series No 6, Sydney 1994. Stubbs and Tolmie, “Falling Short of the Challenge? A Comparative Assessment of the Australian Use of Expert Evidence on the Battered Woman Syndrome” (1999) 23 MULR 709.

BELIEF Belief different from fact .............................................................................................................. Driving without a licence ............................................................................................................. Evidential onus on accused in statutory offences ........................................................................ Honest and reasonable mistake or belief ..................................................................................... Speeding ........................................................................................................................................

[2.800] [2.805] [2.810] [2.815] [2.820]

[2.800] Belief different from fact Where an accused believed he was smuggling currency but in fact the contraband was drugs, his mistake could not result in the necessary guilty mind for any importation: R v Taafe [1984] AC 539; [1984] 1 All ER 747; 78 Cr App R 301 (HL). However, where the accused believed he was importing drugs but what arrived was a form of snuff, he is guilty of attempt: R v Shivpuri [1987] AC 1; [1986] 2 All ER 334; 83 Cr App R 178 (HL).

[2.805] Driving without a licence The defendant’s licence was suspended, but he had not received notification of that fact. He had a defence: Ottobrino v Espinoza (1995) 14 WAR 373; 83 A Crim R 435; 22 MVR 511 (SC). Likewise where the police said the defendant would only be fined: Egerton v Taylor (1996) 90 A Crim R 186 (WA, Walsh J).

[2.810] Evidential onus on accused in statutory offences In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Dawson J held (at 592–593; 499; 253–254): But the position is different with statutory offences containing no mental element to be proved as an ingredient of the offence. There, if the offence is not one of absolute liability, honest and reasonable mistake survives by implication as a basis of exculpation. It is, therefore, understandable why it continues to be referred to as a defence: it must normally be raised by the accused upon evidence adduced by him. It is also understandable in the current context of statutory interpretation (whatever may have been the explanation in a wider, historical setting) why the mistake to be exculpatory must be not only honest but also based upon reasonable grounds. For it

[2.1000]

BENCH BOOK

189

is one thing to attribute to the legislature an intention to retain, as part of an offence, a mental element which does not have to be proved by the prosecution but may be negated by proof of a mistaken belief held upon reasonable grounds. It is another thing to say that the legislature intended a mistaken belief, however unreasonable, to have the same effect. I readily admit that there is an element of rationalization in this explanation, but I think that it puts the emphasis in the right place … There is, however, no justification since Woolmington v Director of Public Prosecutions [1934] AC 462 for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

[2.815] Honest and reasonable mistake or belief The defence of honest and reasonable mistake or belief arises from Proudman v Dayman (1941) 67 CLR 536. See also R v Kumar [2005] 1 WLR 1352; [2005] 1 Cr App R 566 (CCA); R v Clarke (2008) 100 SASR 363; 183 A Crim R 581; [2008] SASC 100.

[2.820] Speeding A motorist was charged with exceeding the speed limit of 60 km per hour on a stretch of road. In defence he gave evidence to show that he honestly and reasonably believed that the speed limit on the relevant stretch of road was 110 km per hour. The magistrate accepted his defence and dismissed the information. Held, allowing the appeal, a defence of honest and reasonable belief in a state of facts is not open to a charge of exceeding the speed limit. The offence of exceeding the speed limit is one of strict responsibility: Kearon v Grant [1991] 1 VR 321; (1990) 11 MVR 377 (CA). See also Ignorance at [9.400]; Knowledge at [11.700]; Necessity at [14.500]; Sudden or extraordinary emergency at [19.6500] which can provide defences to a speeding charge; and Proudman v Dayman at [16.7400].

BENCH BOOK Meaning ....................................................................................................................................... [2.1000] Online .......................................................................................................................................... [2.1005] Not a formula .............................................................................................................................. [2.1010]

[2.1000] Meaning A bench book is a written guide to a judge on how to direct a jury. It will also contain principles on imposing a sentence. It will be helpful to a judge (and magistrate) sitting alone. The writers do their best to keep it up to date on changes in legislation and decisions of superior courts.

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[2.1005]

The name derives from the expectation that a judge will keep the book on the bench in court.

[2.1005] Online Some bench books are online: Qld: http://www.courts.qld.gov.au/information-for-lawyers/benchbooks-and-ucpr-bulletin/ supreme-and-district-courts-benchbook; NSW: http://www.judcom.nsw.gov.au/bench-books; Vic: hhttp://www.judicialcollege.vic.edu.au/publications/victorian-criminal-charge-book; Eng: http://www.judiciary.gov.uk/NR/rdonlyres/BE25EBB6-AAD2-4ACD-811528D3BF613164/0/benchbook_criminal_2010.pdf.

[2.1010] Not a formula The contents of a bench book do not provide a formula. A judge will tailor the contents of the book to the issues in the case. In Tully v The Queen (2006) 230 CLR 234; 81 ALJR 391; 231 ALR 712; 167 A Crim R 192 Hayne J said (at 261; 734; 216 [93]): Because the criminal law has become as complex as it now is, “bench books” of standard forms of instructions to the jury are readily available for the assistance of trial judges. Properly used, such books are invaluable. But there is a risk that the prescription of common forms of instruction, which must necessarily be framed without reference to specific facts, and thus in abstract terms, will be used without relating them to the issues that the jury has to decide. The proper use of standard forms of jury instructions requires the judge first to identify what are the real issues in the case, then to identify the relevant instructions that are to be given to the jury and then, and most importantly, to instruct the jury by relating the standard form of instruction to the real issues in the case. The bare recitation to a jury of the relevant sections of a bench book of standard instructions, unrelated to the real issues in the case, does not fulfil the trial judge’s task.

BESTIALITY Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Aiding and abetting .................................................................................................................... Sentence ......................................................................................................................................

[2.1200] [2.1205] [2.1210] [2.1215]

[2.1200] Meaning Bestiality is the offence of sexual intercourse with an animal.

[2.1205] Legislation Qld: Criminal Code s 211; WA: Criminal Code s 181; Tas: Criminal Code s 122; NT: Criminal Code s 138; NSW: Crimes Act 1900 ss 79 and 104; Vic: Crimes Act 1958 s 59; Interpretation of Legislation Act 1984 s 38 definition of “infamous”;

[2.1400]

BETTERMENT

191

SA: Criminal Law Consolidation Act 1935 s 69; NZ: Crimes Act 1961 ss 143 and 144; Eng: Sexual Offences Act 1956 s 12(1); Can: Criminal Code s 160.

[2.1210] Aiding and abetting In R v Bourne (1952) 36 Cr App R 125 Lord Goddard CJ said (at 128): The case against the appellant was that he was a principal in the second degree to the crime of buggery which was committed by his wife, because if a woman has connection with a dog, or allows a dog to have connection with her, that is the full offence of buggery.

The wife ran the defence of duress and was acquitted. The aider and abettor was convicted in R v Packer [1932] VLR 225 (CCA) but the principal actor, a boy of 13 who buggered a bitch, was not charged because of his youth.

[2.1215] Sentence In R v Tutchell [1979] VR 248 (CCA) the sentence for buggery of a dog was 18 months imprisonment and buggery of a wallaby six months imprisonment. In Wood v Chute (1993) 111 FLR 420 (NT, Thomas J) the sentence of 14 days imprisonment by a magistrate was left undisturbed. Other cases Note that Mr Tutchell was later convicted of rape (of woman): R v Tutchell (2006) 168 A Crim R 25 (Vic CA). The court at (37 [70]) referred to his bestiality and other sexual deviations. In Buckley v The Queen (2006) 80 ALJR 605; 164 A Crim R 312; 224 ALR 416 the High Court in a joint judgment noted (at [16] – [18]) the evidence of the respondent’s bestiality. He too was sentenced for violent attacks on women. See also Buggery at [2.4100].

BETTERMENT Definition ..................................................................................................................................... Fraud ............................................................................................................................................ Heroin trafficking ........................................................................................................................ To be admissible, betterment must have weight ....................................................................... Legislation ................................................................................................................................... Other references ..........................................................................................................................

[2.1400] [2.1405] [2.1410] [2.1415] [2.1420] [2.1425]

[2.1400] Definition Betterment means greatly improved financial position. The prosecution relies on betterment to show that the money came from the crime charged. In R v Burns [1975] VR 241 (CCA) which involved the armed robbery of a payroll of $289,000 the court said in a joint judgment (at 251): In our view, it was evidence proper to be used by the jury in deciding whether or not the applicant did confess to the police that he had participated in the armed robbery and received $20,000 out of it. In making up their minds whether he made such a confession, and whether it was true, it was,

192

ROSS ON CRIME

[2.1405]

we think, cogent evidence that before the robbery the accused was significantly in debt and short of money and that relatively shortly after the robbery most of his debts were discharged and he had a significant amount of ready money.

And later: Further, the whole of the financial background of the applicant both before and after the robbery was part of the total circumstances to be taken into account by the jury in determining whether he had confessed to the crime, and was in fact guilty of the crime.

An appeal to the High Court was dismissed: Burns v The Queen (1975) 132 CLR 258; 49 ALJR 248; 6 ALR 95.

[2.1405] Fraud In R v O’Driscoll (2003) 57 NSWLR 416; 141 A Crim R 368; 200 ALR 383 (NSW CCA), a fraud case, Spigelman CJ said (at 384 [79]): In my opinion, evidence of unexplained wealth was admissible in the Crown case in chief.

[2.1410] Heroin trafficking In R v Sorby [1986] VR 753; 21 A Crim R 64 at 764 (VR), 75–76 (A Crim R) (CCA) the prosecution led evidence that the accused’s betterment came from heroin sales. The Court of Criminal Appeal made no adverse comment. R v Komljenovic (1994) 76 A Crim R 521 at 549–550 (Vic CCA) was a similar case.

[2.1415] To be admissible, betterment must have weight In R v Clune (No 2) [1996] 1 VR 1; (1995) 82 A Crim R 247 at 5–6, 252 (CA) the betterment evidence was found to be “insubstantial” and the convictions were quashed.

[2.1420] Legislation Legislation in all jurisdictions allows for confiscation. But in some jurisdictions, statute defines unexplained wealth on which a court may make a declaration. These follow: WA: Criminal Property Confiscation Act 2000; NT: Criminal Property Forfeiture Act.

[2.1425] Other references See also Confiscation at [3.5700].

BEYOND REASONABLE DOUBT Beyond reasonable doubt means to be certain .......................................................................... Expression not to be defined or explained to a jury ................................................................. Beyond reasonable doubt test not required to establish jurisdiction ........................................ Uniform Evidence Acts .............................................................................................................. Only the elements need to be proved beyond reasonable doubt .............................................. Examples of explanations of beyond reasonable doubt ............................................................ Giving the jury a dictionary .......................................................................................................

[2.1600] [2.1605] [2.1610] [2.1615] [2.1620] [2.1625] [2.1630]

[2.1610]

BEYOND REASONABLE DOUBT

193

[2.1600] Beyond reasonable doubt means to be certain In Keeley v Brooking (1979) 143 CLR 162; 25 ALR 45 Barwick CJ said (at 169; 48): Adherence to the well understood standard of proof in the trial of criminal offences is quite adequate to protect the individual charged summarily with contempt of court. To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.

[2.1605] Expression not to be defined or explained to a jury In Krasniqi v The Queen (1993) 61 SASR 366; 69 A Crim R 383 (CCA) Bollen J, with whom the other judges agreed, reviewed the authorities and said (at 373; 390): It is the analysis of doubt which is forbidden.

In Green v The Queen (1971) 126 CLR 28 the High Court allowed an appeal from an ACT rape conviction. The trial judge had misdirected the jury by saying that reasonable doubt was to be confined to “rational doubt” or a “doubt founded upon reason”. The court said in a joint judgment (at 30–31): Sir Owen Dixon in Dawson v R (1961) 106 CLR 1 at 18 said of a summing up in a criminal trial upon the onus of proof that in his view: [I]t is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions. His Honour referred in this connexion to Thomas v R (1960) 102 CLR 584. In Brown v The King (1913) 17 CLR 570 at 584 Barton ACJ in reference to the traditional formula said: I fully recognize that 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 … as a well understood expression. McTiernan J, in Thomas v R (1960) 102 CLR 584 at 587, observed “But there is danger in venturing upon a novel elucidation of this principle of the criminal law” ie of proof beyond reasonable doubt. Kitto J in the same case said at 595: Whether a doubt is reasonable is for the jury to say; and the danger that invests an attempt to explain what “reasonable” means is that the attempt not only may prove unhelpful but may obscure the vital point that the accused must be given the benefit of any doubt which the jury considers reasonable. Further, Windeyer J pointed out, at 604–605: Attempts by paraphrase and embellishment to explain to juries what is meant by satisfaction beyond reasonable doubt are not always helpful. And explanation is not always necessary…It is said that it [“the time-honoured expression”] “was invented by the common law judges for the very reason that it was capable of being understood and applied by men in the jury box” … The expression proof beyond a doubt conveys a meaning without lawyers’ elaborations. Those quotations are but some of many admonitions to judges presiding over criminal trials to adhere to and not to attempt needless explanations of the classical statement of the nature of the onus of proof resting on the Crown.

[2.1610] Beyond reasonable doubt test not required to establish jurisdiction In Thompson v The Queen (1989) 169 CLR 1; 86 ALR 1; 41 A Crim R 134 Mason CJ and Dawson J said (at 12; 8; 141):

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ROSS ON CRIME

[2.1615]

The fundamental principle of our criminal law is that the accused’s guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of a criminal offence in order to eliminate or minimise the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally: Brown v R (1913) 17 CLR 570 at 584–5. The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence.

[2.1615] Uniform Evidence Acts Uniform Evidence Acts s 141 provide: 141 Criminal proceedings: standard of proof (1) In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt. (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

Both subsections of s 141 refer to “criminal proceeding”. The term is defined in Uniform Evidence Acts Dictionary Part 1. criminal proceeding means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953.

[2.1620] Only the elements need to be proved beyond reasonable doubt In R v Dickson [1983] 1 VR 227 (CCA) the court said in a joint judgment (at 235): In a criminal trial it is only the elements (ingredients or ultimate facts) of the crime which must be established by the evidence beyond reasonable doubt: Thomas v R [1972] NZLR 34, at pp 37–9; R v Van Beelen (1973), 4 SASR 353, at 371–5; R v Power (unreported, Full Court, 8 November 1976), per Young CJ, Newton J concurring: R v Beble [1979] Qd R 278, at 289–90. Evidentiary facts do not have to be proved beyond reasonable doubt but it is common to direct juries that they must be clearly proved before they are treated as established: R v Van Beelen (1973), 4 SASR 353, at 374–80.

[2.1625] Examples of explanations of “beyond reasonable doubt” Wrong Equating beyond reasonable doubt with the standard applied by a cricket umpire: Condo v The Queen (1992) 62 A Crim R 11 (WA CCA). “the phrase is not beyond a skerrick of a doubt; beyond any theoretical possibility of a doubt”: Chedzey v The Queen (1987) 30 A Crim R 451 (WA CCA). “guilt of the accused established to a point of moral certainty”: R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 (CCA). “The mere possibility of innocence should not prevent you from finding the accused guilty”: R v Wanganeen (1988) 50 SASR 433; 38 A Crim R 187 (CCA).

[2.1630]

BEYOND REASONABLE DOUBT

195

Reasonable doubt is a “rational doubt” or a “doubt founded upon reason”: Green v The Queen (1971) 126 CLR 28. If the doubt were “a fanciful doubt you will still convict because that is not a reasonable doubt, it is a doubt beyond reason”: R v Wilson (1986) 42 SASR 203; 22 A Crim R 130 (CCA). On “fanciful doubt” See also R v Dam (1986) 43 SASR 422; 23 A Crim R 38 (CCA). “A doubt is something which you’ll feel and know if you have one. As responsible citizens you’ll know in your own heart and mind what is reasonable, so if you have a doubt, but not a fanciful or far fetched doubt, but a doubt about the guilt of the accused and you can honestly say to yourself that you consider the doubt is a reasonable one in all the circumstances, then you’ll acquit. Now a reasonable doubt is something which you must examine”: Graham v The Queen (2000) 116 A Crim R 108 (Tas CCA). You should not acquit “simply because there is some bare possibility that some innocent complexion can be placed upon the evidence, which is consistent with his guilt”: Barr v The Queen (2004) 14 NTLR 164 (CCA). In R v Cavkic (2005) 12 VR 136; 155 A Crim R 275 (CA) the jury had asked if beyond reasonable doubt meant “beyond 70% or 80% sure”. The trial judge did not, but should have, told the jury that proof was not a matter of percentages. Appeals against conviction allowed. “feeling sure” or “really sure”: R v Punj (2002) 132 A Crim R 595 (Qld CA). R v Fouyaxis (2007) 99 SASR 233 (CCA): an explanation.

Undesirable but not wrong “I am not saying…that you should give the accused person the benefit of every fanciful supposition or possibility that can be conjured up”: Krasniqi v The Queen (1993) 61 SASR 366; 69 A Crim R 383 (CCA). “All I can say is that it’s not proof to the point of absolute certainty. It’s simply what the words say: beyond reasonable doubt”: Goncalves v The Queen (1997) 99 A Crim R 193 (WA CCA).

Correct After directing on proof beyond reasonable doubt, “If you think there is a reasonable possibility that the accused is not guilty, then he’s entitled to be found not guilty”: R v Standley (1996) 90 A Crim R 67 (SA CCA). In Boonudnoon v The Queen (2002) 172 FLR 111; 135 A Crim R 271 (WA CCA) the trial judge had answered a jury question by saying that beyond reasonable doubt were plain English words which meant what they said. And then “if you have a reasonable doubt, not a fanciful doubt, not a stupid doubt, a reasonable doubt.” Held: no error, appeal dismissed.

[2.1630] Giving the jury a dictionary In R v Chatzidimitriou (2000) 1 VR 493; 112 A Crim R 95 (CA) the trial judge provided the jury with a dictionary at their request. No complaint was made of his spoken direction. The appeal was dismissed. Phillips JA said that giving the dictionary was undesirable but not wrong (at [13]). Callaway JA would have allowed the appeal.

196

ROSS ON CRIME

[2.1800]

BIAS Test for bias in a judicial officer ................................................................................................ Actual knowledge of fair-minded people ................................................................................... Actual bias need not be proved .................................................................................................. Actual bias can be proved .......................................................................................................... Seeming to prejudge the case ..................................................................................................... Tentative views do not indicate prejudgment ............................................................................ By expression of opinion in a previous case ............................................................................. Bias may appear only in a judge’s or magistrate’s reasons ...................................................... Bias from later remarks .............................................................................................................. Even in a jury case ..................................................................................................................... Must a judge disclose any interest ............................................................................................. Out of court dealings with someone with an interest ............................................................... When must a judge disqualify him/herself ................................................................................ Application to disqualify for bias is not contempt .................................................................... Cases where a judge is not disqualified ..................................................................................... Waiver ......................................................................................................................................... When judge is sitting alone and having ruled out prejudicial evidence .................................. With knowledge of outstanding charges against an accused .................................................... Voir dire ruling ............................................................................................................................ Stay ruling ................................................................................................................................... Judge or magistrate wrongly disqualifies him or herself .......................................................... Appeal ......................................................................................................................................... Former judge employed by solicitor .......................................................................................... Bias of a juror or jury ................................................................................................................ Bias of a witness ......................................................................................................................... A court with perceived bias is not to hear the case further ......................................................

[2.1800] [2.1805] [2.1810] [2.1815] [2.1820] [2.1825] [2.1830] [2.1835] [2.1840] [2.1845] [2.1850] [2.1855] [2.1860] [2.1865] [2.1870] [2.1875] [2.1880] [2.1885] [2.1890] [2.1895] [2.1900] [2.1905] [2.1910] [2.1915] [2.1920] [2.1925]

[2.1800] Test for bias in a judicial officer The authorities were collected by Mason CJ and McHugh J in Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258 who said (at 47; 44; 260): When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of “fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256, at p 259, per Lord Hewart CJ; Re JRL; Ex parte CJL (1986) 161 CLR 342 at pp 351–352.

See also Winningham v The Queen (1995) 69 ALJR 775; Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655 (at 492; 658 [11]); NADH v MIMIA (2004) 214 ALR 264 at 268 [14] (FCA). R v T, WA [2014] SASCFC 3. Potier v The Queen [2015] NSWCCA 130. Perish v The Queen [2015] NSWCCA 237.

[2.1805] Actual knowledge of fair-minded people In Livesey v NSW Bar Association (1983) 151 CLR 288; 57 ALJR 420; 47 ALR 45 the court said in a joint judgment (at 299; 52):

[2.1815]

BIAS

197

The reasonable observer is to be presumed to approach the matter on the basis that ordinarily a judge will so act as to ensure both the appearance and the substance of fairness and impartiality. But the reasonable observer is not presumed to reject the possibility of prejudgment or bias; nor is the reasonable observer presumed to have any personal knowledge of the character or ability of the members of the relevant court.

In Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70; 93 ALR 435 the court said (at 87; 447–448): In assessing what the hypothetical reaction of a fair-minded observer would be, we must attribute to him or her knowledge of the actual circumstances of the case.

[2.1810] Actual bias need not be proved In R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551 Barwick CJ, Gibbs, Stephen and Mason JJ said (at 258; 561): In stating that there was actual bias in this sense, the wife has gone further than she needs to go, and, as some would say, further than it was right for her to go. It is clear that to disqualify a judge from sitting it is not necessary that it should be shown that he was in fact biased.

In R v Maurice; Ex parte Attorney-General (NT) (1987) 17 FCR 422; 73 ALR 123 (FCA) the court followed the above extract and went on to say (at 443; 145): In de Smith’s Judicial Review of Administrative Action, 4th ed, p 261, it is said that courts are not concerned with the question whether an adjudicator was in fact biased. The current editor goes on to say that the reason for this attitude is presumably that it would be unseemly for a court to purport to pry into the state of mind of any judicial officer. However, it is said that there is probably no rule of law which absolutely precludes a court from holding that an adjudicator was in fact biased. The matter is left in that way.

[2.1815] Actual bias can be proved In Gilfillan v County Court of Victoria (2001) 123 A Crim R 433 (Vic, Nathan J) a magistrate had convicted Mr Gilfillan for refusing a breath test. He appealed to the County Court. The judge who heard the appeal acted so grossly that his Honour held that there was actual bias. Appeal allowed. Not remitted for rehearing. Note that s 476(1)(f) of the Migration Act 1958 (Cth) enables a decision to be set aside for actual bias. Such a finding was made in Sun v Minister of Immigration and Ethnic Affairs (1997) 81 FCR 71; 151 ALR 505 (FCA). Burchett J said (at 127; 556): A notable feature of the tribunal’s reasons is the repeated drawing of extremely adverse conclusions against the appellant on what, upon examination, turn out to be the flimsiest grounds.

And later (at 133–134; 562): [T]he court should not lightly make a finding of actual bias. But the ground of bias has been made available by parliament as a protection for individuals, and it would be no protection if the court shrank from giving effect to it in a proper case. When the accumulated matters I have discussed are taken into account, this must be seen as a proper case … Errors occur, but to err so many times and in such ways, and each time against the appellant, argues overwhelmingly for the conclusion that the tribunal member proceeded to consider the case from a preconceived opinion and a fixed position so adverse to him that he could not obtain a fair hearing. In my opinion, that situation fell within the provision of s 476(1)(f): the decision was affected by actual bias.

See also Singh v Minister for Immigration and Multicultural Affairs [No 2] (1999) 59 ALD 436 (FCA, von Doussa J); Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; 178 ALR 421.

198

ROSS ON CRIME

[2.1820]

[2.1820] Seeming to prejudge the case It is of fundamental importance that the public should have confidence in the administration of justice. If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision. To repeat the words of Lord Denning MR which have already been cited, “Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”: R v Watson; Ex parte Armstrong (1976) 136 CLR 248; 9 ALR 551 at 263 (CLR), 564 (ALR). In Antoun v The Queen (2006) 80 ALJR 497; 224 ALR 51; 159 A Crim R 513 at the end of the prosecution case the defence announced an intention to make a no case submission. The trial judge said, before the submission, “that application will be refused”. The High Court unanimously allowed the appeal because of prejudgment. For other examples of apparent prejudgment see: Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 per Dawson J at 19–21; 630–632; 195–197. Vakauta v Kelly (1989) 167 CLR 568; 87 ALR 633 (personal injuries case). Klewer v Dutch (2000) 99 FCR 217 (Hill J): magistrate had made a number of previous findings adverse to the credit of the applicant. Appeal allowed. A judge may appear biased against the prosecution: Rozenes v Judge Kelly [1996] 1 VR 320 (CA). R v Curragh Inc [1997] 1 SCR 537; 144 DLR (4th) 614; 133 CCC (3d) 461 (SCC).

[2.1825] Tentative views do not indicate prejudgment In Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655 five of the justices said in a joint judgment (at 493; 658–659 [13]): Judges, at trial or appellate level, who, in exchanges with counsel express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking of the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

See also Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 557.

[2.1830] By expression of opinion in a previous case A judge is not permitted to use knowledge of a party or a witness gained from a previous case: Livesey v NSW Bar Association (1983) 151 CLR 288; 57 ALJR 420; 47 ALR 45 at 294 (CLR); Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 at 19–21 (CLR), 631–632 (ALR), 195–197 (A Crim R); Willis v Magistrates Court of Victoria (1996) 89 A Crim R 273 (Vic, Smith J). In Jambajimba v Dredge (1985) 33 NTR 19; 81 FLR 180 Muirhead ACJ said (at 21; 182): To reject a defendant’s testimony in one case, because he or she has been found unworthy of credit on a previous occasion, would be entirely wrong. That would illustrate bias.

[2.1855]

BIAS

199

A magistrate who makes adverse findings against a defendant runs the risk of apprehended bias in a later hearing against the same defendant: Brown v Police (1999) 74 SASR 402 (Mullighan J).

[2.1835] Bias may appear only in a judge’s or magistrate’s reasons Even though a hearing is proper, the reasons for decision alone can show perceived bias. In Brittain v Plochoros (1997) 6 NTLR 136, a magistrate had said: Mr Brittain struck me as a person whose evidence was to be received with a grain of salt. He struck me as the archetypal car salesman; in other words, a person not to be trusted.

Mildren J allowed the appeal. He said (at 140): I accept that observations made by a judge or magistrate in the course of delivering judgment, whether orally or in writing, may be of such a kind as to demonstrate a reasonable apprehension of bias even though there was nothing other than those comments which could be pointed to.

[2.1840] Bias from later remarks Lord McCluskey was a judge in Scotland. He was one of three judges who decided a human rights case in January 2000. A week later he told Scotland on Sunday that the Human Rights Convention would provide “a field day for crackpots, a pain in the neck for judges and legislators, and a goldmine for lawyers”. It is no surprise that Lord McCluskey was held to be disqualified from sitting on a human rights case: Hoekstra v HM Advocate (No 2) [2000] JC 391 at 395–397 (High Court of Judiciary). See also Hoekstra v HM Advocate [2001] 1 AC 216 (HL).

[2.1845] Even in a jury case In Balic v DPP (No 2) (1994) 75 A Crim R 515 (NSWCA) Court J had revoked bail without any prosecution application to do so. Before that he was heard in chambers to tell Barker J “I’m about to spring bail on my two accused.” It was held that there was an apprehension of prejudgment. Cole JA, giving the leading judgment, said (at 520): Here any decision as to guilt or innocence at the trial will not be made by the presiding judge. It will be made by the jury. Nonetheless questions of discretionary admissibility of evidence might arise, and in subtle and sometimes imperceptible ways a judge may influence the attitude of a jury. It is of critical importance that the public and the accused have confidence in the absolute and perceived impartiality of the trial judge.

[2.1850] Must a judge disclose any interest In Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168; 150 FLR 336 (CA) the court was invited to set down rules for a judge to disclose what may be an interest in the case. (The judge had money in Westpac and his wife had shares.) The court declined. Appeal dismissed.

[2.1855] Out of court dealings with someone with an interest In R v Magistrates Court At Lilydale; Ex parte Ciccione [1973] VR 122 a magistrate travelled to a view in a car containing counsel and witness for one side. McInerney J found a failure to comply with the rules of natural justice. He refused to set aside the order however because the other party had not objected at the time. In Re JRL; Ex parte CJL (1986) 161 CLR 342; 66 ALR 239 a counsellor spoke to the Family Court judge about the case prior to the parties being called in. The judge refused to disqualify herself. The High Court granted prohibition and approved R v Magistrates Court At Lilydale; Ex parte Ciccione [1973] VR 122. Mason J said (at 350; 244):

200

ROSS ON CRIME

[2.1860]

A central element in the system of justice administered by our courts is that it should be fair and this means that it must be open, impartial and even-handed. It is for this reason that one of the cardinal principles of the law is that a judge tries the case before him on the evidence and arguments presented before him in open court by the parties or their legal representatives and by reference to those matters alone, unless Parliament otherwise provides. It would be inconsistent with basic notions of fairness that a judge should take into account, or even receive, secret or private representations on behalf of a party or from a stranger with reference to a case which he has to decide.

In City of St Kilda v Evindon Pty Ltd [1990] VR 771 (FC) the day prior to a hearing before the Administrative Appeals Tribunal, Hooper QC rang the Deputy President to advise that a member of the tribunal who was appointed to sit knew his clients. The tribunal was assembled without that member. The court quashed the decision for that out of court communication. In Ronayne v Ellis (1993) 69 A Crim R 193 (SA, Debelle J) one magistrate spoke to the sentencing magistrate seemingly to cause an increase in sentence. His Honour held that it showed perceived bias. Private discussions with a person involved in the case may show perceived bias. In Hogan v Chief of Army (1999) 108 A Crim R 372 (Defence Force Discipline Appeal Tribunal comprising three Supreme Court judges) the appellant had been convicted of many offences. The magistrate had communicated privately with the prosecutor and not revealed it. Held: perceived bias. In Tatam v Barker (1998) 8 NTLR 56 (Mildren J) a magistrate discussed extradition procedures in the case with a police officer in his chambers. Held: perceived bias. In R v Curragh Inc [1997] 1 SCR 537; 144 DLR (4th) 614; 133 CCC (3d) 461 (SCC) a judge rang the Director of Public Prosecutions complaining about the prosecutor. It was held that it gave rise to reasonable apprehension of bias. But when a judicial officer and the barrister in the case (Meagher QC) had a long-standing friendship, their social meeting during the case was held not to give rise to perceived bias: Emanuele v Emanuel Investments Pty Ltd (1997) 139 FLR 36 (SA FC).

[2.1860] When must a judge disqualify him/herself In Livesey v NSW Bar Association (1983) 151 CLR 288; 57 ALJR 420; 47 ALR 45 the court said (at 294; 49): If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court.

Gibbs CJ refused prohibition against a Family Court judge. He said in R v Simpson; Ex parte Morrison (1984) 154 CLR 101; 52 ALR 648 (at 104; 650): It is quite clear that when there is a suggestion of bias, the court should not proceed either if there is actual bias or if there is a reasonable suspicion of bias. That is not to say, however, that the court must desist from hearing proceedings when somebody wrongly and irrationally suspects bias.

A good example of where a magistrate should have disqualified himself is R v Cavit; Ex parte Rosenfield (1985) 33 NTR 29; 73 FLR 385 (Nader J). Mr Cavit had been appointed from the Department of Law to the magistracy. At the time of the hearing he had not resigned his former position. Nader J said (at 35; 390):

[2.1875]

BIAS

201

The suspicion of bias stems from the fact that his connection with that role has not been severed. It is because of his continuing attachment to his office of Crown prosecutor that reasonable fair persons will suspect bias: and rightly so.

Another good example comes from Mrs Helen Bienstein’s Family Court case. Guest J had her locked up for contempt. On her release he found against her. The Full Court of the Family Court held that Guest J had the power to have her taken into custody but he had failed to give her the chance to be heard on contempt. Further there was apprehended bias in his continuing to hear the Family Court case. See Bienstein v Bienstein (2003) 195 ALR 225 at [16] (HC). A magistrate who has heard other cases against a person and found the person without credit should not hear a later case involving the same person: Brown v Police (1999) 74 SASR 402 (Mullighan J); Klewer v Dutch (2000) 99 FCR 217 (Hill J). In Locobail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451; [2000] 2 WLR 870; [2000] 1 All ER 65 (CA) the court set forth principles and guidelines for disqualification of a judge.

[2.1865] Application to disqualify for bias is not contempt An application that a judicial officer disqualify himself for bias is not contempt: Bainton v Rajski (1992) 29 NSWLR 539 (CCA) and Murphy v Magistrates Court at Prahran (1995) 80 A Crim R 92 at 104 (Vic, Beach J).

[2.1870] Cases where a judge is not disqualified A judge is not disqualified from presiding over a trial after earlier authorising the installation of a listening device: R v George (1987) 9 NSWLR 527; 29 A Crim R 380 (CCA). A judge acquired bank shares after reserving in the bank’s litigation. The outcome would not have affected the share price or dividend. No bias was found: Clenae Pty Ltd v Australian and New Zealand Banking Group Ltd [1999] 2 VR 573 (CA). The High Court dismissed the appeal: Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644. A judicial officer’s practice as counsel has not been held to be good ground for disqualification: Gascor v Elliott [1997] 1 VR 332 (CA). That is so even though a former client is a party: Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 100 ALR 634; R v Nicholas (2000) 1 VR 356; 111 A Crim R 490 (CA). In McCreed v The Queen (2003) 27 WAR 554; 141 A Crim R 417 (CCA) the judge had prosecuted the accused 11.5 years before the trial. Held: often a prosecutor who becomes a judge should not preside over the trial of a person he had prosecuted. But here the lapse of time meant no perceived bias or suspicion of pre-judgment. Public statements of the Chief Justice of the Family Court do not disqualify a single judge of that court: Re Colina; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545.

[2.1875] Waiver In Smits v Roach (2006) 227 CLR 423; 228 ALR 262 there was an action over retainer agreements with solicitors. The brother of the trial judge was a partner for one of the firms involved. Held: trial counsel would have known of the relationship. Thus the clients were deemed to know. There was some evidence of that disclosure. No objection was made to disqualify the judge. Held: waiver applies to prevent an allegation of apprehended bias.

202

ROSS ON CRIME

[2.1880]

[2.1880] When judge is sitting alone and having ruled out prejudicial evidence In Amoe v DPP (Nauru) (1991) 66 ALJR 29; 103 ALR 595; 57 A Crim R 244 at 253, the High Court said (at 34–35; 604; 253): In Victoria v Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 CLR 25 at 102; 41 ALR 71 at 124, Mason J pointed out: Obviously judges are more capable than jurors of putting aside prejudicial matter, including public prejudice. Objectivity and independence are the qualities which judges are expected to bring to judicial determination. Consequently, a judge trying a criminal case without a jury is not required to disqualify him or herself after concluding that the prejudicial effect of a question or its answer outweighs its probative value and rejecting the question … This does not mean, of course, that a conviction by a judge sitting without a jury can never be set aside on the ground that prejudicial questions or answers were put before the judge. From time to time, cases occur where the nature of the prejudicial material and its relationship with the issues which have to be decided is such that the appearance of impartiality is necessarily destroyed by a judge deciding the case after hearing or reading such material. In such a case, the prudent judge will disqualify him or herself from further hearing the matter, irrespective of the degree of confidence that the judge has in his or her ability to determine the case uninfluenced by the prejudicial material. If the judge fails to do so, it will fall to the appellate court to set aside any resulting conviction.

See also, R v Moar [2013] SASCFC 119.

[2.1885] With knowledge of outstanding charges against an accused In R v Liverpool JJ; Ex parte Topping [1983] 1 WLR 119; 1 All ER 490; 76 Cr App R 170 the magistrates had other charges against Mr Topping on the court computer. When a bias application was made, the court clerk said that such information was not prejudicial. Certiorari and declarations were granted.

[2.1890] Voir dire ruling In Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262 (CA) Samuels JA said (at 49–50; 266): It could not be suggested that a ruling on the voir dire made contrary to the arguments of one party could constitute proper grounds for disqualification.

In R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 (CCA) the court said in a joint judgment (at 472–473, 466): We do not accept the submission … that a judge would be obliged to disqualify himself from continuing with a criminal trial because, in deciding the admissibility of evidence after a voir dire examination in which the accused gave evidence, he had expressed views critical of the accused’s credit and because it was likely that he may have to determine later in the case another issue involving the credit of the accused on either a further voir dire examination or when imposing sentence. Such a proposition makes nonsense of the judicial system.

Approved: R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA).

[2.1895] Stay ruling A judge who hears and determines a stay application is not thereby disqualified from presiding over the trial: R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 at 461 (SASR), 488–489 (A Crim R) (CCA) per King CJ.

[2.1915]

BIAS

203

[2.1900] Judge or magistrate wrongly disqualifies him or herself Generally speaking a higher court has no power to order a judge or magistrate to hear the case after self-disqualification: Mann v Northern Territory News (1988) 88 FLR 194; 53 NTR 15 (CA); Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262 (CA). It may be different where the case has already begun and has not finished. The High Court ordered continuation or resumption of the case in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 100 ALR 634. See also R v Dainer; Ex parte Cooke (1986) 84 FLR 305 (ACT, Miles J).

[2.1905] Appeal Judicial review in the nature of mandamus might be preferable to an appeal against wrong self-disqualification because appeal might not be permitted by the rules of court: R v Rogerson (1990) 45 A Crim R 253 (NSW CCA); Mann v Northern Territory News (1988) 88 FLR 194; 53 NTR 15 (CA); Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 100 ALR 634.

[2.1910] Former judge employed by solicitor Where a former judge is employed by a solicitor the firm may be restrained from acting in a case where the judge made a finding of fact: T v L (2000) 27 Fam LR 40; 160 FLR 63 (Chisholm J). See also Counsel at [3.8700].

[2.1915] Bias of a juror or jury The same considerations apply for the discharge of a jury or a juror for bias as for a judge or magistrate: Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258. In Cant v The Queen (2002) 12 NTLR 133 (CCA) Mr Cant had been found guilty of drug importation. During the trial the judge was given the following note by a juror: I believe I should inform you of certain discussions amongst jurors concerning Craig Cant’s criminal history. Last week a juror commented that he is facing two other charges in addition to the current charge before the court. A heated exchange followed where several jurors stressed that this is no concern to us and our decision should be based upon the facts presented as evidence. While I am unable to comment upon the extent to which those discussions may have influenced jurors if at all, I believe the matter should be brought to your attention.

The appeal against conviction was allowed. In R v Czajkowski (2002) 137 A Crim R 111 (NSW CCA) the appeal against conviction was allowed because of bias of the jury. It was a drug case. The foreperson sent the judge a note after the final addresses of counsel. The note read: Dear Judge: Some of the jurors are slighty bias against drugs and have already made there minds up on day one.

204

ROSS ON CRIME

[2.1920]

In R v Goodall (2007) 15 VR 673; 169 A Crim R 440 (CA) a man was charged with maintaining a sexual relationship with a lad under 16 years. One juror became distressed because he had been the victim of a similar offence. The trial judge discharged that juror despite his telling the judge he could continue. Held: appeal against conviction dismissed. Distress does not mean bias. The juror should not have been discharged. The other jurors were not contaminated. In R v Abdroikov [2007] 1 WLR 2679; [2008] 1 All ER 315 (HL) there were three appeals against conviction. In two trials serving police officers were on the jury. In the last case one juror was a solicitor employed by the Crown Prosecution Service. Held: Perfect fairness in a jury trial was unattainable. But there was perceived bias in a case where the victim was a police officer and credit of the police was in issue. And bias in the case where the prosecution solicitor was a juror. Two appeals allowed.

[2.1920] Bias of a witness Evidence may be led that a witness is biased. In R v Umanski [1961] VR 242 (CCA) the court said (at 244): The well-settled rule at common law that independent evidence is inadmissible to contradict answers given by a witness in cross-examination as to credit is subject to the equally well-settled qualification that such evidence in contradiction is admissible if it would tend to show that the witness was biased or partial in relation to the parties or the cause. Such independent evidence though relating to matters far removed from the subject-matter of the prosecution was considered to be material evidence – not something merely collateral.

Approved and applied: R v De Angelis (1979) 20 SASR 288 at 295 (CCA); R v Harrington [1998] 3 VR 531 at 539 (CA); R v LSS [2000] 1 Qd R 546; (1998) 103 A Crim R 101 (at 553–554; 108–109 [28]) (CA). See also Smith v The Queen (1993) 9 WAR 99 (CCA); Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 per McHugh J (at 21; 31; 229 [48]); Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 per McHugh J (at 1030; 378 [35]); Phillips J, “Impeachment for Bias of Evidence by Witnesses as to Collateral Matters” (1988) 62 ALJ 288–291. Credit at [3.9600].

[2.1925] A court with perceived bias is not to hear the case further Where an appeal court has found perceived bias in a lower court, a different court is to hear the remitted case. R v Balic (No 2) (1994) 75 A Crim R 515 at 520–521 (NSW CA); Noble v DPP (2000) 118 A Crim R 305 at 311 [33] – [35] (NSW, Smart AJ).

[2.2115]

BIGAMY

205

BIGAMY Definition ..................................................................................................................................... Legislation ................................................................................................................................... Absence for seven years ............................................................................................................. Competence of spouse ................................................................................................................ Corroboration required ................................................................................................................ Defence ........................................................................................................................................ Jurisdiction .................................................................................................................................. Proof of marriage, first and second ............................................................................................ Common law divorce .................................................................................................................. Penalty and sentence ...................................................................................................................

[2.2100] [2.2105] [2.2110] [2.2115] [2.2120] [2.2125] [2.2130] [2.2135] [2.2140] [2.2145]

[2.2100] Definition Bigamy is a statutory offence. The statutes are in similar form, for example in Victoria: Whosoever being married goes through the form or ceremony of marriage with any other person during the life of her or his husband or wife, shall be guilty of an indictable offence.

[2.2105] Legislation Cth: Marriage Act 1961 s 94; Criminal Code Act 1995 s 339; Qld: Criminal Code s 360; NSW: Crimes Act 1900 s 92; Vic: Crimes Act 1958 s 64; SA: Criminal Law Consolidation Act 1935 s 78; ACT: No separate legislation. NZ: Crimes Act 1961 s 205. Eng: Offences Against the Person Act 1861 s 57. Can: Criminal Code s 290. Note:Section 94 of the Marriage Act 1961 (Cth) creates a Commonwealth offence of bigamy and s 94(8) of that Act expressly excludes the operation of State legislation. Note the reference to strict liability in s 94(1A).

[2.2110] Absence for seven years The prosecution must prove that notwithstanding absence of a spouse for seven years, the accused knew the spouse was alive, and remarried notwithstanding: R v Broughton [1953] VLR 572 (FC). See also R v Taylor [1950] 2 KB 368 [1950]; 2 All ER 170; 34 Cr App R 138. In the Estate of Howard (1996) 30 NSWLR 409 (Cohen J). A Tennyson, Enoch Arden (1864).

[2.2115] Competence of spouse A spouse is competent to give evidence. See the various Evidence Acts.

206

ROSS ON CRIME

[2.2120]

[2.2120] Corroboration required Some legislation requires that there be corroboration: Cth: Marriage Act 1961 s 94(7); NSW: Crimes Act 1900 s 419.

[2.2125] Defence An honest and reasonable belief that the former marriage is invalid is a defence: Thomas v The King (1937) 59 CLR 279, followed and applied in R v Gould [1968] 2 QB 65; [1968] 1 All ER 849; (1968) 52 Cr App R 152 (CA). The burden lies on the accused to establish such defence on the balance of probabilities, or so it was held in 1957: R v Bonnor [1957] VR 227 (FC).

[2.2130] Jurisdiction The bigamous marriage must be within the jurisdiction. See also Jurisdiction at [10.1900].

[2.2135] Proof of marriage, first and second The marriage must be strictly proved. Admissions by the accused are not sufficient: R v Hanson (1891) 24 SASR 104; R v Flaherty (1847) 2 Car & Kiv 782; 175 ER 328 (Pollock CB); R v Umanski [1961] VR 242 (CCA) at 246–248. The production of the certificate of marriage is prima facie evidence of marriage: R v Scarborough [1959] VR 179 (Gavan Duffy J).

[2.2140] Common law divorce In James v Minister for Immigration and Multicultural Affairs (2002) 118 FCR 493 (FCA) Finkelstein J said (at 503 [41]): According to the common law (which followed canon law) a marriage could be dissolved either by death or divorce. There were two kinds of divorce, one total and the other partial. A divorce a vinculo matrimonii was one which terminated the marriage relation. It was available in the case of incapacity such as would render the marriage contract void. The types of incapacity included: being already married; being under age; in the case of a minor, not having the consent of his or her parents or guardians; lack of mental capacity. A divorce a mensa et thoro was one which suspended the marriage relation and modified the duties and obligations between husband and wife. A divorce a mensa et thoro operated as a decree for the perpetual separation of the parties, affecting their personal rights and legal capacities in the same way as a decree of divorce a vinculo matrimonii, except that neither party could marry during the life of the other.

[2.2145] Penalty and sentence Penalty Two mothers-in-law. Sentence R v Murphy [1947] QWN 4 (CCA);

[2.2320]

BIRTH

207

R v Burnett (1993) 70 A Crim R 469 at 470 (Vic CCA); R v Smith (James) (1993) 15 Cr App R (S) 407 (CA); R v Seed and Starke [2007] EWCA Crim 254 (13 February 2007) (CA).

BIRTH Meaning ....................................................................................................................................... Date of birth as a defence .......................................................................................................... Date of birth relevant to prosecution proof ............................................................................... Tender of certified copy of birth certificate ............................................................................... Concealing birth ..........................................................................................................................

[2.2300] [2.2305] [2.2310] [2.2315] [2.2320]

[2.2300] Meaning In the Code States a child becomes a human being when fully born alive. Qld: Criminal Code s 292; WA: Criminal Code s 269; Tas: Criminal Code s 153(4); NT: Criminal Code s 1C. In Victoria the offences of child destruction and other offences apply when a child is “capable of being born alive”: Crimes Act 1958 (Vic) s 10. At common law the test is the same. In the infanticide case of R v Hutty [1953] VLR 338, Barry J charged the jury (at 339): A baby is fully and completely born when it is completely delivered from the body of its mother and it has a separate and independent existence in the sense that it does not derive its power of living from its mother. It is not material that the child may still be attached to its mother by the umbilical cord; that does not prevent it from having a separate existence. But it is required, before the child can be the victim of murder or of manslaughter or of infanticide, that the child should have an existence separate from and independent of its mother, and that occurs when the child is fully extruded from the mother’s body and is living by virtue of the functioning of its own organs.

[2.2305] Date of birth as a defence In R v Douglas [1985] VR 721 (CCA) O’Bryan J said (at 724): Because matters peculiarly within the knowledge of the defendant must be proved to avoid the penalty imposed by the (Crimes Act s 48(4)) subs 1, the criminal law reverses the burden of proof. Take, for example, a defence based upon the fact that the accused was not more than two years older than the victim. The date and place of birth of the defendant is peculiarly within the knowledge of the defendant, particularly were the defendant born outside the State of Victoria.

[2.2310] Date of birth relevant to prosecution proof See Age at [1.3200].

[2.2315] Tender of certified copy of birth certificate A certified copy of the birth certificate may be tendered provided there is evidence to link the name with the person in question. The legislation and cases are set out in Birth certificate at [1.3205].

[2.2320] Concealing birth See Concealing birth at [3.4900].

208

ROSS ON CRIME

[2.2500]

BLACK DIRECTION Definition ..................................................................................................................................... Majority verdict .......................................................................................................................... Additions and contractions ......................................................................................................... Appeal .........................................................................................................................................

[2.2500] [2.2505] [2.2510] [2.2515]

[2.2500] Definition When a jury finds difficulty reaching a verdict, the trial judge should give a direction in accordance with Black v The Queen (1993) 179 CLR 44; 118 ALR 209; 69 A Crim R 248 (at 51–52; 214; 253): Members of the jury, I have been told that you have not been able to reach a verdict so far. I have the power to discharge you from giving a verdict but I should only do so if I am satisfied that there is no likelihood of genuine agreement being reached after further deliberation. Judges are usually reluctant to discharge a jury because experience has shown that juries can often agree if given more time to consider and discuss the issues. But if, after calmly considering the evidence and listening to the opinions of other jurors, you cannot honestly agree with the conclusions of other jurors, you must give effect to your own view of the evidence. 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. Calm and objective discussion of the evidence often leads to a better understanding of the differences of opinion which you may have and may convince you that your original opinion was wrong. That is not, of course, to suggest that you can, consistently with your oath or affirmation as a juror, join in a verdict if you do not honestly and genuinely think that it is the correct one. Experience has shown that often juries are able to agree in the end, if they are given more time to consider and discuss the evidence. For that reason, judges usually request juries to re-examine the matters on which they are in disagreement and to make a further attempt to reach a verdict before they may be discharged. So, in the light of what I have already said, I ask you to retire again and see whether you can reach a verdict.

[2.2505] Majority verdict In R v Muto [1996] 1 VR 336; (1995) 83 A Crim R 67 (CA) the court said (at 343; 74–75): At the beginning of my charge I told you that circumstances might arise in which I could take a majority verdict. In the circumstances of this trial that means a majority of 11 out of 12 [or as the case may be]. It is still preferable that you endeavour to reach a unanimous verdict of guilty or not guilty and, when you resume your deliberations, you should endeavour to do that unless you know that it is hopeless. If you cannot all agree, the verdict of 11 of you [or as the case may be] may be taken as the verdict of you all.

[2.2510] Additions and contractions Additions In R v Tangye (1997) 92 A Crim R 545 (NSW CCA) Hunt CJ at CL with whom the other judges agreed, said (at 551): [I]t clearly would not infringe that principle if the trial judge added to the Black direction in the appropriate case a reminder that, although the verdict must be unanimous, the particular paths which lead each individual juror to that unanimous verdict need not itself be the same for all jurors.

Contractions In Timberry v The Queen (2007) 180 A Crim R 232 (NSW CCA) the trial judge had simply urged the jurors to keep on trying and that another trial of four weeks would be just terrible.

[2.2705]

BLACKMAIL AND EXTORTION

209

Smart AJ, with whom the other judges agreed, recited the directions and upheld this ground of appeal against conviction (at 251–253 [113]–[123]).

[2.2515] Appeal The test on appeal is whether a reasonable juror would be subject to undue pressure. In Peers v The Queen (1999) 154 FLR 270; 108 A Crim R 573 (WACCA) Owen J, delivering the judgment of the court, said (at 273; 576 [12]): [T]he question whether a direction offends this fundamental principle and therefore is capable of placing undue pressure on minority jurors can be determined only by an examination of the effect the particular words used may have on a reasonable juror when read in the context of the whole direction given by the trial judge. The court must examine the phrases objected to in their full context.

The trial judge had said: [I]f you cannot honestly agree with the conclusions of the other jurors – every juror must remain true to his or her own oath; but at the same time, you appreciate, if you are unable to bring in a verdict in relation to this charge, it’s a matter that continues to be pending and could necessitate another jury having to sit and consider it.

The appeal was dismissed. • In providing a direction to a jury which is having difficulty reaching a verdict, the judge should not refer to the consequences of the jury not being able to reach a decision (in terms of the cost and inconvenience of a new trial) as it places too much pressure on the jury to reach a decision: Isika v The Queen [2015] NSWCCA 304 (4 December 2015). See also Papadopoulos direction at [16.100].

BLACKMAIL AND EXTORTION Definition of blackmail ............................................................................................................... Definition of extortion ................................................................................................................ Legislation ................................................................................................................................... The offence .................................................................................................................................. Menace ........................................................................................................................................ Victim of normal stability and courage ..................................................................................... Victim not of normal stability .................................................................................................... Sentence ...................................................................................................................................... Demand ....................................................................................................................................... Demand oral or in writing .......................................................................................................... The indictment ............................................................................................................................ Summary hearing ........................................................................................................................

[2.2700] [2.2705] [2.2710] [2.2715] [2.2720] [2.2725] [2.2730] [2.2735] [2.2740] [2.2745] [2.2750] [2.2755]

[2.2700] Definition of blackmail Originally, blackmail was rent payable in cattle, labour or produce as distinguished from rent payable in corn. Subsequently it meant the toll levied by freebooters along the Scottish border. Blackmail is now the short description of demanding money or property with menaces or threats.

[2.2705] Definition of extortion Extortion is the crime committed by a public official who uses his office to take wrongfully from any person any money or valuable.

210

ROSS ON CRIME

[2.2710]

[2.2710] Legislation Cth: Criminal Code Act 1995 ss 138, 139; Qld: Criminal Code s 415; WA: Criminal Code ss 396, 397; Tas: Criminal Code ss 216, 241; NT: Criminal Code s 228; NSW: Crimes Act 1900 ss 99–103; Vic: Crimes Act 1958 s 87; SA: Criminal Law Consolidation Act 1935 s 172; ACT: Criminal Code 2002 ss 340–342; NZ: Crimes Act 1961 s 237; Eng: Theft Act 1968 s 21; Can: Criminal Code s 346.

[2.2715] The offence In Austin v The Queen (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355 the whole court said (at 675; 356; 358): It is the behaviour of the offender in making a demand with menaces or threats which is the gist of the offence and not actions or events over which the offender may have no control…. Thus it is appropriate to regard the offence of demanding money with menaces or threats as complete when the demand has been made in circumstances apt to achieve its communication to the person to whom it is directed and with the necessary intent. It is inappropriate to regard actual communication as a necessary part of the offence.

An example of the offence can be found in R v Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335 (CA). Jessen had given information leading to the arrest of Hoffman on drug charges. Jessen was to be a witness at committal. He asked Hoffman’s advisers for $250,000 for which he would supply a list of questions. If asked those questions his answers would result in Hoffman’s discharge. It was held that this was extortion because of the implied threat “$250,000 or I will withhold information that would allow you to be acquitted”. R v Pollock [1967] 2 QB 195; [1966] 2 All ER 97; 50 Cr App R 149 was a threat to accuse of sodomy.

[2.2720] “Menace” Lord Wright in Thorne v Motor Trade Association [1937] AC 797; 3 All ER 157; 26 Cr App R 51 (HL) said (at 817; 167; 67): I think the word “menace” is to be liberally construed and not as limited to threats of violence but as including threats of any action detrimental to or unpleasant to the person addressed. It may also include a warning that in certain events such action is intended.

In DPP v Kuo (1999) 49 NSWLR 226 Simpson J held (at 228[6]): Section 105, although hardly felicitously expressed, does not define “menaces”, but is intended to broaden the scope of the conduct encompassed by the word, so as to include harm done by words as well as by physical force, and harm done by the words of persons other than the person accused. The section does not however, exclude harm to or threatened theft of property.

[2.2745]

BLACKMAIL AND EXTORTION

211

[2.2725] Victim of normal stability and courage In R v Clear [1968] 1 QB 670; [1968] 1 All ER 74; 52 Cr App R 58 the court said (at 679; 80; 69): Words or conduct which would not intimidate or influence anyone to respond to the demand would not be menaces and might negative any intent to steal, but threats and conduct of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive so as to accede unwillingly to the demand would be sufficient for a jury’s consideration.

[2.2730] Victim not of normal stability In R v Garwood [1987] 1 WLR 319; [1987] 1 All ER 1032; 85 Cr App R 85 the court said (at 322; 1034; 88): The second situation is where the threats in fact affected the mind of the victim, although they would not have affected the mind of a person of normal stability. In that case, in our judgment, the existence of menaces is proved providing that the accused man was aware of the likely effect of his actions on the victim.

[2.2735] Sentence Blackmail R v LPY (2002) 135 A Crim R 237 (NSW CCA); DPP v Grabovac [1998] 1 VR 664; (1997) 92 A Crim R 258 (CA). R v Allen (1994) 77 A Crim R 99 (Vic CCA).

Extortion Payne v The Queen (2002) 131 A Crim R 432 (WA CCA); R v Humphries (1997) 98 A Crim R 233 (NSW CCA); R v Stevenson (1996) 90 A Crim R 259 (Qld CA); R v Jessen [1997] 2 Qd R 213; (1996) 89 A Crim R 335 (CA); R v McHardie (1983) 2 NSWLR 733; 10 A Crim R 51 (CCA).

[2.2740] “Demand” In Austin v The Queen (1989) 166 CLR 669; 85 ALR 353; 40 A Crim R 355 the whole court said (at 674; 355–356; 357–358): Whilst it is clear that there can be more than one view of the meaning of the words “demands … of any person”, it is, we think, in accordance with the ordinary usage of language to regard a demand as having been made at a point short of its actual communication to the person to whom it is directed. To do so is neither to conceive of the demand in an abstract form nor to use the word proleptically. Of course, a requirement, however peremptory, cannot amount to a demand unless it is made with the intention that it should be conveyed or communicated to the person to whom it is directed and in circumstances which are apt to achieve that end. A message put to sea in a bottle or a request shouted to the four winds cannot, except in the most extraordinary circumstances, amount to a demand of any person. On the other hand, a demand advertised in a newspaper may, even in the absence of actual communication, amount to a demand made of a person if the advertisement is an apt means of bringing the demand to the attention of that person.

[2.2745] Demand oral or in writing The legislation draws a distinction between oral demands and written demands. Sections should be read with this difference in mind.

212

ROSS ON CRIME

[2.2750]

[2.2750] The indictment The indictment must identify the person who is alleged to be the subject of the threat or of the demand: R v Stevenson (1996) 90 A Crim R 259 (Qld CA).

[2.2755] Summary hearing A court of summary jurisdiction may not have the power to hear and determine such a charge: Chamberlain v Throw (1986) 42 SASR 301 (Bollen J). See also Bribery at [2.3500]; and Corruption at [3.8200].

BLASPHEMY Blasphemy is a common law offence in England ..................................................................... Australia ...................................................................................................................................... Some legislation .......................................................................................................................... Death sentence ............................................................................................................................

[2.2900] [2.2905] [2.2910] [2.2915]

[2.2900] Blasphemy is a common law offence in England R v Lennon [1979] AC 617; [1979] 1 All ER 898; 68 Cr App R 381 (HL). To establish the offence of blasphemous libel it is sufficient if it is proved that the publication was intentional (or in the case of a bookseller, negligent under the Libel Act 1843) and that the matter published was blasphemous. A subjective intention on the part of the accused person to blaspheme is not required. R v Chief Metropolitan Stipendiary Magistrate, Ex parte Choudhury [1991] 1 QB 429; [1991] 1 All ER 306; 91 Cr App R 393. This was a private prosecution against Salman Rushdie for allegedly blaspheming Allah and others in his book Satanic Verses. It was held that the common law of blasphemy was confined to protecting only the Christian religion and the court would not extend the law of blasphemy to cover other religions. It would be virtually impossible by judicial decision to set sufficiently clear limits to the offence if it were to be extended.

[2.2905] Australia In Pell v Council of Trustees of National Gallery [1998] 2 VR 391; (1997) 96 A Crim R 575 Harper J refused an injunction to prevent the exhibition of a picture “Piss Christ”. His Honour said (at 391; 578–579): Not only has Victoria never recognised an established church, but now s 116 of the Australian Constitution forbids the Commonwealth making any law for establishing any religion. It may be, as the defendant submits, that the offence of publication of a blasphemous libel has lapsed through desuetude. It does appear that only one prosecution has been instituted in Victoria this century, and that was withdrawn before trial: P Coleman, Obscenity, Blasphemy, Sedition: 100 Years of Censorship in Australia, 2nd ed, (1974), pp 72–73. Nevertheless, if Lord Scarman is right, there may be a place in a pluralist society for retaining the offence – although if Lord Scarman is right, its rebirth as a law protecting much more than the Christian faith would be a necessary part of the new order. Not only may there be a place in a multicultural society for the offence of blasphemous libel of any recognised faith, but the ancient misdemeanour of that name may have survived transportation to the colonies. Certainly, there is a body of judicial opinion to the effect that it has: see, for example, Ogle v Strickland (1987) 13 FCR 306 at 317 per Lockhart J. Moreover, by inserting s 469AA into the Crimes Act 1958 the Parliament of Victoria recognised the existence, or at least the possibility of the existence, of the offence.

[2.3105]

BOND

213

[2.2910] Some legislation Cth: Post and Telegraph Act 1901–1973 s 43 blasphemous letters may be destroyed, as can telegrams (s 96); Broadcasting and Television Act 1942–1973 s 118. Tas: Criminal Code s 119: the offence; NSW: Crimes Act 1900 s 574: prosecution of the offence; Vic: Crimes Act 1958 s 469AA: seizure and destruction; ACT: Crimes Act 1900 s 440: prosecution of the offence; NZ: Crimes Act 1961 s 123: blasphemous libel.

[2.2915] Death sentence On 8 January 1697 Thomas Aikenhead was hanged for the crime of blasphemy. He was the last person to be executed in Britian for that crime.

Further reading R Webster, A Brief History of Blasphemy (The Orwell Press, London, 1990). LW Levy, Blasphemy: Verbal Offence Against the Sacred, From Moses to Salman Rushdie (Knopf, 1993). C Unsworth, “Blasphemy, Cultural Divergence and Legal Relativism” (1995) 58 MLR 658. G Robertson, The Justice Game (Chatto & Windus, London, 1998) pp 135, 156–157, 159–161.

BOND The term ...................................................................................................................................... Abolition of a common law bond .............................................................................................. Binding over on a written complaint ......................................................................................... Griffiths bond ..............................................................................................................................

[2.3100] [2.3105] [2.3110] [2.3115]

[2.3100] The term The term “bond” has separate meanings: • power of a court to adjourn sentence on a promise of good behaviour; • the binding over of a person on written complaint; • the “Griffiths” bond.

[2.3105] Abolition of a common law bond Courts once had the power of common law to adjourn a case on the accused entering a bond (with or without sureties) to keep the peace and be of good behaviour. On the return of the bond, successfully kept, the case would be dismissed. Legislation has abolished common law bonds. WA: Sentencing Act 1995 s 12; Tas: Sentencing Act 1997 s 101; NT: Sentencing Act s 124;

214

ROSS ON CRIME

[2.3110]

NSW: Crimes (Sentencing Procedure) Act 1999 s 101; Vic: Sentencing Act 1991 s 71; SA: Criminal Law (Sentencing) Act 1988 s 36; ACT: Crimes (Sentencing) Act 2005 s 13 (good behavior order).

[2.3110] Binding over on a written complaint Two jurisdictions give the court a power to bind a person over after a written complaint has been filed. NT: Justices Act s 99; Vic: Magistrates’ Court Act 1989 s 126A. Edwards v Raabe (2000) 117 A Crim R 191 (Vic, Smith J). A disturbance in the face of the court justifies a binding over to keep the peace without formal complaint: R v Clerkenwell Metropolitan Stipendiary Magistrate; Ex parte Hooper [1998] 1 WLR 800; [1998] 4 All ER 193 (QBD). It is a breach of the rules of procedural fairness not to allow a person to make representations on the binding over amount: R v Clerkenwell Metropolitan Stipendiary Magistrate; Ex parte Hooper [1998] 1 WLR 800; [1998] 4 All ER 193 (QBD); R v Central Criminal Court; Ex parte Boulding [1984] QB 813; [1984] 1 All ER 766; R v Working Justices; Ex parte Gossage [1973] QB 448; [1973] 2 All ER 621.

[2.3115] Griffiths bond The term comes from Griffıths v The Queen (1977) 137 CLR 293; 15 ALR 1. The accused had pleaded guilty to various offences. The District Court judge accepted his plea but did not enter a conviction. The judge remanded the accused for sentence in 12 months on condition that he enter a good behaviour bond. The High Court held that the judge had acted properly. Barwick CJ (at 302) suggested a procedure for a judge who was considering the statutory bonding power, which was as follows: 1. After jury verdict (or plea) of guilty direct that the verdict be recorded until further order. 2. The prisoner is remanded to a date certain. 3. On the return date the judge will make the appropriate order under the sentencing provisions. The Griffiths bond has been used in any number of cases since then. Statutes have recognised the Griffiths bond: Cth: Crimes Act 1914 ss 19B–20AC; Qld: Penalties and Sentences Act 1992 s 19; WA: Sentencing Act 1995 ss 16 and 17; Tas: Sentencing Act 1997 ss 7(f), 7(g), 7(h) and 58–62; NT: Sentencing Act ss 11 and 32;

[2.3500]

BREACH OF THE PEACE

215

NSW: Crimes (Sentencing Procedure) Act 1999 s 10; Vic: Sentencing Act 1991 ss 75 and 83A; SA: Criminal Law (Sentencing) Act 1988 ss 36–44; ACT: Crimes (Sentencing) Act 2005 ss 27 and 114–133; NZ: Sentencing Act 2002 ss 106 and 110.

BREACH OF THE PEACE Meaning ....................................................................................................................................... [2.3300] Citizen’s arrest for breach of the peace ..................................................................................... [2.3305]

[2.3300] Meaning In R v Howell [1982] QB 416; [1981] 3 All ER 383; (1981) 73 A Crim R 31 (CA) Watkins LJ, giving the judgment of the court, said (at 427; 389; 37): [T]here is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assult, an affray, a riot, unlawful assembly, or other disturbance.

Approved: DPP v Orum [1989] 1 WLR 88; (1988) 88 Cr App R 261 (QBD); R (Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105; [2007] 2 All ER 529 (HL) at [27] per Lord Bingham; [60] per Lord Roger; at [111] per Lord Brown. Followed: Innes v Weate [1984] Tas R 14; (1984) 12 A Crim R 45 at 22, 52 (Cosgrove J); Panos v Hayes (1987) 44 SASR 148 at 151 (Legoe J). Other cases Prideaux v DPP (1987) 163 CLR 483: 28 A Crim R 43. Forbutt v Blake (No 2) (1981) 51 FLR 465; 2 A Crim R 28 (ACT, Connor ACJ).

[2.3305] Citizen’s arrest for breach of the peace See Citizen’s arrest for breach of the peace [1.6050].

BRIBERY Definitions ................................................................................................................................... May show consciousness of guilt on another charge ................................................................ The nature of bribery .................................................................................................................. Conspiracy ................................................................................................................................... Bribery of police and public officials ........................................................................................ Bribery at elections ..................................................................................................................... Sentence ......................................................................................................................................

[2.3500] [2.3505] [2.3510] [2.3515] [2.3520] [2.3525] [2.3530]

[2.3500] Definitions Payment The common law offence of bribery is defined in R v Allen (1992) 62 A Crim R 251 (NSW CCA) (at 255):

216

ROSS ON CRIME

[2.3505]

The most commonly quoted description of the common law offence of bribery is that taken from Russell on Crime (12th ed, 1964), Vol 1, p 381, which defines the offence as the receiving or offering of an undue reward by or to any person in a public office, in order to influence that person’s behaviour in that office, and to incline that person to act contrary to accepted rules of honesty and integrity. That definition was cited with approval in R v Herscu (1991) 55 A Crim R 1: see also Herscu v The Queen (1991) 173 CLR 276; 56 A Crim R 270. In Sacks [1943] AD 413 at 423, the position in South Africa was stated succinctly as follows: Under our common law, therefore, the crime of bribery includes the making of a gift to an official in order to influence him to do something in conflict with his duty. That definition was cited with approval in Patel [1944] AD 511 at 521. That putting a public official on a payroll in order to influence his behaviour at some future time, and to incline him to act corruptly can constitute bribery appears clearly from the judgment of Isaacs J and Rich J in Boston (1923) 33 CLR 386 at 404.

and later: In its application to circumstances such as the present, the gravamen of the offence of bribery is the making or offering of a payment with an intent to incline a person in public office to disregard his duty. The occasion for the disregard of duty need not have arisen at the time of the offence, and it need never arise. Nor is it necessary that the particular kind of contemplated breach of duty be specified at the time of the payment or inducement. Of course, the absence of any such specification may be of powerful evidentiary significance on the issue as to whether there exists a corrupt intent.

Receipt In R v Mills (1978) 68 Cr App R 154 (CA) Geoffrey Lane LJ, giving the judgment of the court, said (at 158–159): [I]n our judgment it is enough that the recipient takes the gift knowing that it is intended as a bribe. By accepting it as a bribe and intending to keep it he enters into a bargain, despite the fact that he may make to himself a mental reservation to the effect that he is not going to carry out his side of the bargain. The bargain remains a corrupt bargain, even though he may not be intending to carry out his intended corrupt act. Such a private determination avails him no more than would a private determination that a similar payment in respect of past favours was received by him because of some innocent matters other than a past favour.

See also Dau v Emanuele (1995) 60 FCR 270; 84 A Crim R 197 (FCA); R v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537 (CCA).

[2.3505] May show consciousness of guilt on another charge In R v Renzella (1997) 2 VR 88; 88 A Crim R 65 (CCA) the court said (at 90–91; 68–69): We preface this part of our judgment by setting out, in summary form, the principal points to be borne in mind: 1. Similar issues can arise in relation to conduct other than lies, such as flight or laying a false trail or bribery or attempted bribery of prosecution witnesses.

[2.3510] The nature of bribery In R v Pangallo (1991) 56 A Crim R 441 (NSW CCA) Lee CJ at CL said (at 443): In my view, the crime of bribery is always to be regarded as one which strikes at the very heart of the justice system and it must be severely punished whenever it is detected.

[2.3515] Conspiracy “The substantive offence of bribery should ordinarily be charged instead of conspiracy that a member of the police force should act corruptly”: R v Ralph (1988) 37 A Crim R 202 (NSW CCA) at 211 per Enderby J.

[2.3530]

BRIBERY

217

[2.3520] Bribery of police and public officials Legislation Cth: Criminal Code Act 1995 ss 140–142; Qld: Criminal Code s 87; Police Service Administration Act 1990 s 10.20; WA: Criminal Code s 82; Police Act 1892 s 15; Tas: Criminal Code s 83(b); Police Service Act 2003 s 77; NT: Police Administration Act s 157; Criminal Code ss 59 and 88; NSW: Common law; Police Act 1990 s 200; Vic: Common law (see Crimes Act 1958 s 320); Police Regulation Act 1958 ss 95 and 97; SA: Criminal Law Consolidation Act 1935 ss 150 and 249; Summary Offences Act 1953 s 61; ACT: Criminal Code 2002 ss 352–359; Electoral Act 1992 ss 267 and 285; Coroners Act 1997 s 86; NZ: Crimes Act 1961 ss 99–105E. The prosecution must prove that the intended recipient of the bribe held public office: R v McCann [1998] 2 Qd R 56; (1997) 95 A Crim R 308 (CA) and that the offer is brought to his notice: R v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537. As to intent, see Williams v The Queen (1979) 45 FLR 367; 23 ALR 369 (FCA).

[2.3525] Bribery at elections The Commonwealth Electoral Act 1918 s 362 allows a Court of Disputed Returns to set aside an election of a candidate obtained by bribery (defined s 326) or other wrongful acts. Sue v Hill (1999) 199 CLR 462; 163 ALR 648.

[2.3530] Sentence R v Duong (1999) 109 A Crim R 60 (NSW CCA): attempting to bribe police officer – five years imprisonment with a minimum of three years. R v Sener [1998] 3 VR 749 (CA): attempted bribery of two policemen – 18 months imprisonment with a minimum of nine months. R v Allen (1992) 62 A Crim R 251 (NSW CCA): senior police officer aged 70 at the time of sentence for bribing a junior officer – 18 months minimum imprisonment with an additional term of six months. R v Nath (1994) 74 A Crim R 115 (SA CCA): a purchasing officer accepting bribes – four years imprisonment with a minimum two years eight months. See also Blackmail and Extortion at [2.2700]; Corruption at [3.8200]; and Lies at [12.1500].

218

ROSS ON CRIME

[2.3700]

BRIGINSHAW V BRIGINSHAW Summary ..................................................................................................................................... The case ...................................................................................................................................... Uniform Evidence Acts .............................................................................................................. Inability to control sexual instincts ............................................................................................ Insanity ........................................................................................................................................ Customs and excise prosecutions ............................................................................................... Lawyer’s admission to practise ..................................................................................................

[2.3700] [2.3705] [2.3710] [2.3715] [2.3720] [2.3725] [2.3730]

[2.3700] Summary The civil case of Briginshaw v Briginshaw applies in criminal law. A serious allegation that is not an element of the offence still has to be properly proved. The tribunal of fact must use special caution. The more serious the allegation, the more important the proof.

[2.3705] The case Briginshaw v Briginshaw (1938) 60 CLR 336 was a divorce case. A husband alleged his wife’s adultery. Notwithstanding that there was some evidence to support the adultery, the primary judge found it not sufficient and dismissed the husband’s petition. The High Court supported the decision and dismissed the husband’s appeal. The judgment of Dixon J is often quoted. His Honour said (at 361–362): The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes ... Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony or indirect inferences.

G v H (1994) 181 CLR 387 was a paternity case. The High Court held that the Briginshaw principle did not apply. Deane, Dawson and Gaudron JJ said (at 399): Not every case involves issues of importance in the Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in the case of Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when the case was decided.

In Cassell v The Queen (2000) 201 CLR 189; 169 ALR 439; 110 A Crim R 317 the appellant had been convicted of giving false or misleading evidence to the Independent Commission Against Corruption. At the appeal below, which was a hearing de novo, Mr Cassell’s counsel said he would insist on strict proof. The High Court (Kirby J dissenting) footnoted Briginshaw and said (at [18]): [W]ith reference to the requirement of “strict proof”, it is trite that whatever force this may have as a forensic flourish, there is not some standard of persuasion which is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based upon a preponderance of probability.

[2.3710] Uniform Evidence Acts The Briginshaw principle applies to the admissibility of evidence under Uniform Evidence Acts.

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In R v Petroulias (No 8) (2007) 175 A Crim R 417 (NSW, Johnson J) his Honour held (at 422–423 [17]): Section 142(2) Evidence Act 1995 appears to import the Briginshaw principle in requiring a court, when considering whether it is satisfied on the balance of probabilities on a ruling concerning admissibility of evidence, to take into account the gravity of the matters alleged in relation to the question. It has been observed that s 140 Evidence Act 1995, including the reference to “the gravity of the matter alleged” in s 140(2)(c) Evidence Act 1995, is reflective of the law, including the Briginshaw principle, and provides for no new principle: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61]; Palmer v Dorman [2005] NSWCA 361 at [40]– [47].

[2.3715] Inability to control sexual instincts Some legislation allows a court to impose an indeterminate sentence on a person incapable of controlling sexual instincts.

Legislation Qld: Criminal Law Amendment Act 1945 s 18; Dangerous Prisoners (Sexual Offenders) Act 2003; WA: Dangerous Sexual Offenders Act 2006; NT: Sentencing Act ss 65–78; Criminal Code s 414(b); SA: Criminal Law Consolidation Act 1935 s 26.

Cases In R v England (2004) 87 SASR 411; 143 A Crim R 435 (Bleby J) his Honour said (at [56]): [T]he court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction.

Approved: R v Williams (2006) 96 SASR 226; 168 A Crim R 209 at [9] (Sulan J). Other cases DPP (WA) v Mangolamara (2007) 169 A Crim R 379 (WA, Hasluck J). Attorney-General (Qld) v Francis [2007] 1 Qd R 396 (CA). Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50.

[2.3720] Insanity Legislation allows a person acquitted on the ground of insanity to be kept in custody. A court will review such detention. In R v Percy (1998) 104 A Crim R 29 (Vic, Eames J) his Honour examined the risk of “serious endangerment” to the community were the convicted person to be released. His Honour held (at 39) that the Briginshaw principle applied. Custody confirmed.

[2.3725] Customs and excise prosecutions Customs and excise prosecutions to recover duties are civil and not criminal. Yet they must be proved beyond reasonable doubt:

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Customs Chief Executive Offıcer v Labrador Liquor and Wholesale Pty Ltd (2001) 162 FLR 230; 188 ALR 493; 123 A Crim R 338 (Qld CA). Thus the Briginshaw principle need not be applied.

[2.3730] Lawyer’s admission to practise The standard of proof of a lawyer’s admission to practise is the civil standard. Where there is an objection to admission, the gravity of the facts to be proved calls for the Briginshaw test.

Cases Re OG (2007) 18 VR 164 at 198 [99] (In Banc). New South Wales Bar Association v Livesy [1982] 2 NSWLR 231 at 238. Ex parte Attorney General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 246.

BROWNE V DUNN A challenge .................................................................................................................................. The case itself ............................................................................................................................. The so-called rule ....................................................................................................................... The rule is designed to achieve procedural fairness ................................................................. The rule applies in the magistrates’ court ................................................................................. Consequences of failure to observe the rule depend on the circumstances of the case .......... Evidence inherently improbable ................................................................................................. The rule is not absolute .............................................................................................................. Prosecutor recalling witness to enable defence compliance ..................................................... Mode of compliance ................................................................................................................... Form of questions ....................................................................................................................... Prosecution must make it plain to a defence witness if the evidence is not accepted ............ Refusing to allow the contradicting evidence is too extreme ................................................... Rule applies to trials but not to committals .............................................................................. Rule applies when one accused gives evidence against another .............................................. Trial judge’s comment to the jury ............................................................................................. Judge not to imply that the rule is inflexible ............................................................................ Recall of a witness ......................................................................................................................

[2.3900] [2.3905] [2.3910] [2.3915] [2.3920] [2.3925] [2.3930] [2.3935] [2.3940] [2.3945] [2.3950] [2.3955] [2.3960] [2.3965] [2.3970] [2.3975] [2.3980] [2.3985]

[2.3900] A challenge Browne v Dunn (1893) 6 R 67 haunts cross-examiners.

[2.3905] The case itself Browne v Dunn (1893) 6 R 67 was an action for damages for libel. The defendant was a solicitor. He was given instructions by a number of people to have the plaintiff bound over to prevent a breach of the peace. The plaintiff said that there had been no such instructions. At the libel hearing those who said they instructed the defendant gave evidence. The cross-examination did not challenge the evidence that they had instructed the defendant to act for them in the way he did. Lord Herschell said (at 70–71): My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice, but is essential to fair play and fair dealing with witnesses … Of course I do not deny for a moment that there are cases in which [notice of intention to impeach credibility] has so distinctly and unmistakably been given, and the

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point on which he is impeached, and is to be impeached, is so manifest that it is not necessary to waste time in putting questions to him upon it. All that I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not had any opportunity of giving an explanation by reason of there having been no suggestion whatever in the course of the case that his story has not been accepted.

[2.3910] The so-called rule In Bulstrode v Trimble [1970] VR 840, Newton J said (at 846): A typical formulation is that set out in Cross on Evidence, 3rd ed, pp 211, 212, which is in the following terms: In the cross-examination of a witness “any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief” (italics are mine).

Newton J went on to say that the rule had two aspects: • it is based on general principles of fairness (at 847); • it affects the weight or cogency of the evidence (at 848). In R v Howes (2000) 2 VR 141; 116 A Crim R 249 (CA) Winneke P, with whom the other judges agreed on Browne v Dunn (1893) 6 R 67, said (at 148; 256 [18]): [C]ounsels duty of fairness extends only to putting to the opposing witness such aspects of his own clients case as are significant and material to the resolution of the issues in dispute.

In R v Rajakaruna (No 2) (2006) 15 VR 592; 168 A Crim R 1 (CA) Redlich JA gave the leading judgment. His Honour said (at 606; 17 [48]): A party is obliged to give appropriate notice to the other party and its witnesses, usually by cross-examination of such witnesses, of any imputation that the first party intends to make against the other party or their witnesses concerning their conduct relevant to the case or a parties’ or a witness’s credit.

In Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1; (1983) 44 ALR 607 Hunt J said (at 22–23; 630): There are many reasons why it should be made clear, prior to final addresses and by way of cross-examination or otherwise, not only that the evidence of the witness is to be challenged but also how it is to be challenged. First, it gives the witness the opportunity to deny the challenge on oath, to show his mettle under attack (so to speak) although this may often be of little value. Secondly, and far more significantly, it gives the party calling the witness the opportunity to call corroborative evidence which in the absence of such a challenge is unlikely to have been called. Thirdly, it gives the witness the opportunity both to explain or to qualify his own evidence in the light of the contradiction of which warning has been given and also, if he can, to explain or to qualify the other evidence upon which the challenge is to be based.

“A rule of professional practice” is a better expression. In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) a prosecution witness was not cross-examined on matters about which the accused later gave evidence. The accused was cross-examined on the “rule”. The judge summed up strongly on the subject. Defence counsel was inexperienced and perhaps overawed by the occasion. On appeal Gleeson CJ said (at 686; 393): It is accepted as a rule of professional practice in this State that there is a general requirement, subject to various qualifications, that a cross-examiner put to an opponent’s witness the matters in respect of which, or by reason of which, it is intended to contradict the witness’s evidence. (The rule is discussed, for example, by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (Cth) [1983] 1 NSWLR 1 at 16.) The very subject matter of the rule, however, indicates a need for a degree of caution in its formulation; caution which is to be found in the speeches in

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Browne v Dunn (1893) 6 R 67 itself. Cross-examination is an art, and the means that may be legitimately employed to cut down the effect of the evidence of a witness or to put a witness or a party upon fair notice of a point are multifarious.

[2.3915] The rule is designed to achieve procedural fairness In MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436 Gleeson CJ and Heydon J said (at 333; 440–441) [18]): The principle of fair conduct on the part of an advocate, stated in Browne v Dunn (1893) 6 R 67, is an important aspect of the adversarial system of justice … However, for reasons explained, for example, in R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 and R v Manunta (1989) 54 SASR 17, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial. Fairness ordinarily requires that if a challenge is to be made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.

In Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 (FCA) the court said in a joint judgment (at 102; 192): The rule is one designed to achieve procedural fairness. It is therefore in its content and application neither fixed nor inflexible. This was recognised by Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 where his Honour said (at 236–237): Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’ evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination. Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. So too in R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 Gleeson CJ, after referring to the judgments in Browne v Dunn (1893) 6 R 67, said (at 688): It is plain that their Lordships, while recognising and affirming a rule of practice in the terms in which they expressed themselves, also recognised the need for flexibility in its application. That need arises from the very nature of the subject matter which it concerns. The central purpose of the rule is to secure fairness in the conduct of adversary proceedings. That consideration provides the best guide, both to the practical requirements of the rule in a given case, and to the consequences which may properly flow from its non-observance, including the remedies that are available to deal with a problem so created. The Chief Justice later in his reasons cites with approval the observations of Mahoney JA above. While recognising that a criminal trial, having regard to the serious consequences to an accused of a conviction, cannot be conducted in the same way as a civil trial, and that the trial judge in a criminal trial has a paramount duty to ensure that the accused is fairly treated, nonetheless procedural fairness is to be accorded to the Crown as representing the public interest in the conduct of the proceedings and the rule in Browne v Dunn (1893) 6 R 67 is to be applied in the Crown’s favour as appropriate to ensure that the administration of justice is not impeded: R v Hines (1991) 24 NSWLR 737; R v Howson (1981) 74 Cr App R 172 at 179; R v McHardie and Danielson [1983] 2 NSWLR 733 at 745; R v Peter Schneidas (No 2) (1981) 4 A Crim R 101 at 110; R v Body (CCA (NSW), 24 August 1994, unreported) at 9.

The rule also applies in Uniform Evidence Law jurisdictions: see, Jardein Pty Ltd v Stathakis [2007] FCAFC 148; R v Morrow (2009) 26 VR 526; 213 A Crim R 530; [2009] VSCA 291; Lysle v The Queen [2012] NSWCCA 20.

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[2.3920] The rule applies in the magistrates’ court In Garrett v Nicholson (1999) 21 WAR 226 (FC) Pidgeon J, delivering the leading judgment, said (at 247): 1. The rule in Browne v Dunn (1893) 6 R 67 applies in Courts of Petty Sessions to the extent of requiring counsel to put to prosecution witnesses the substance of evidence that is proposed to lead from either the defendant or his or her witnesses on a material issue and which is different from the evidence-in-chief of the person being cross-examined. 2. There is no requirement to cross-examine on matters of which the defendant or witnesses proposed to be called has no knowledge or on matters not relevant to the facts to be proved. 3. The proposition that evidence on a particular matter is accepted in its entirety where no questions are asked has very limited application in a Court of Petty Sessions. It would not apply in respect of evidence seeking to prove an element of the offence. The plea of not guilty itself gives notice that the evidence to prove the element is in contest. This would extend to where the prosecution is seeking to prove a fact that is an indispensable intermediate step towards the inference of guilt. It does not apply to matters coming within 2 above. 4. When the defence is seeking to negate inferences it would normally be necessary to put to a prosecution witness propositions of an unusual or unexpected nature in circumstances where it can be expected that the witness may give an explanation and where it would not be expected that the witness would refer to the matter in evidence-in-chief.

[2.3925] Consequences of failure to observe the rule depend on the circumstances of the case In R v Costi (1987) 48 SASR 269 (CCA) King CJ said (at 271): The rule is no more than a rule of practice and the consequences of failure to comply with it must depend upon the circumstances. Failure to comply with it cannot compel a jury to any particular conclusion on an issue of fact. Questions of fact remain within the province of the jury irrespective of compliance with any rule of practice. Still less can a failure to comply with a rule of practice compel the jury to find an element of the crime proved. Failure to comply with a rule of practice does not relieve the prosecution of its onus to prove every ingredient of the charge. But failure to comply with the rule may have a marked effect upon the view which the court and jury take of the evidence and the facts. How marked the effect is, will, of course, depend upon the circumstances. A trial judge is entitled, if he sees fit to do so, to direct a jury in strong terms as to the effect which failure to comply with the rule should have upon their view of the facts and the evidence, but he is not entitled, by reason of noncompliance with the rule, to withdraw an issue of fact from the jury nor to treat an ingredient of the charge as proved.

In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ said (at 689–690; 396–397): The consequences of a failure to observe the rule in Browne v Dunn (1893) 6 R 67 will vary depending upon the circumstances of the case, but they will usually be related to the central object of the rule, which is to secure fairness. In an unreported judgment of Mahoney JA in Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219, his Honour said (at 236–237): This kind of problem may arise at different times in the litigation. It may arise during the trial. Thus, where a party fails to cross-examine a witness at all or on a particular matter, it may be prudent for the trial judge at the time to draw the attention of counsel in an appropriate way to the effect this may have on the later conduct of the trial. It may be that the question arises at a later stage in the trial when counsel seeks to call evidence contradicting the witness or discrediting his evidence, or seeks to address upon the basis that the witness’s evidence is untrue. The trial judge may then have to determine what course should be followed. Sometimes the interests of justice may be served by having the witness recalled for cross-examination.

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Sometimes the circumstances may be such that the only way in which justice can be achieved is by directing that, for example, it is not open to counsel, in address, to make such suggestion. What is to be done will depend, as I have said, upon the circumstances of the case. In other cases, the problem may arise only on appeal. This, in my opinion, is what happened in Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362.

[2.3930] Evidence inherently improbable In Levinge v Director of Custodial Services (1987) 9 NSWLR 546; 27 A Crim R 163 (CA) McHugh JA said (at 560; 176): The rule in Browne v Dunn (1893) 6 R 67 at 76–77 prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination. However, one exception to the rule in Browne v Dunn (1893) 6 R 67 is the case where the evidence is inherently improbable: cf Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 371.

[2.3935] The rule is not absolute In Stern v National Australia Bank (2000) 171 ALR 192 (FCA) the court said in a joint judgment (at 203 [42]): The rule that in cross-examination it is necessary to put to an opponent’s witness the nature of the case proposed to be relied upon in contradiction of his or her evidence, referred to as the rule in Browne v Dunn (1893) 6 R 67, is, as the submissions suggest, essentially a rule of fairness. The rule is not, however, an absolute one. So it will not ordinarily be necessary to put to a party matters which are clearly at issue in the proceedings: see Thomas v van den Yssel (1976) 14 SASR 205 at 207; Phipson on Evidence (14th ed, 1990) at [12] – [13] and cf Flower & Hart (a firm) v White Industries (Qld) Pty Ltd (1999) 87 FCR 134; 163 ALR 744 at 148–149 (FCR).

[2.3940] Prosecutor recalling witness to enable defence compliance The prosecutor should recall a witness to enable the defence to comply with the rule. In MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436 Gummow, Kirby and Callinan JJ said (at 339; 448–449 [40]): Reliance on the rule in Browne v Dunn (1893) 6 R 67 can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

[2.3945] Mode of compliance “It need not be done in minute detail, but it is the duty of counsel to make it plain to the witness, albeit he may be a co-defendant, that his evidence is not accepted and in what respects it is not accepted”: R v Fenlon (1980) 71 Cr App R 307 per Lord Lane CJ at 313. In R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA) the court said in a joint judgment (at 291; 2): The cases however do not clearly mark out how far counsel must go in putting the client’s case in order to escape valid criticism if the evidence eventually goes beyond what has been foreshadowed. We do not think it possible to suggest a universal formula or principle that will tell counsel the amount of detail that may need to be put from case to case.

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Compliance with the rule does not mean that the accused will give evidence: R v S [1995] 1 Qd R 558 (CA).

[2.3950] Form of questions The witness should be asked questions of fact. It is wrong to break this rule by asking “I put it to you …” or “I suggest to you …”. Nor should the defence advocate say “My client will say …” or “My instructions are …”. There are three reasons why these forms are wrong. First, they are not questions but invitations to argument. Second, they are not used in ordinary English. Third, they are contrary to law. In R v Baldwin [1925] All ER Rep 402; (1925) 18 Cr App R 175 (CCA) Lord Hewatt CJ said (at 404–405; 178–179): One so often hears questions put to witnesses by counsel which are really in the nature of an invitation to an argument. One hears, for instance, such questions as this: “I suggest to you that …” or “Is your evidence to be taken as suggesting that …?” If the witness were a prudent person, he would say, with the highest degree of politeness: “What you suggest is no business of mine. I am not here to make any suggestion at all. I am here only to answer relevant questions. What are the conclusions to be drawn from my answers is not for me, and as for suggestions, I venture to leave those to others.” An answer of that kind requires, no doubt, some sense and self-restraint and experience, and the mischief of it is that, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequence to which such questions might lead, might easily come to the conclusion – as might be true – that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and that counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact.

Approved: Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309; 135 ALR 517; [2007] HCA 30 per Heydon J at 603–604 [131].

[2.3955] Prosecution must make it plain to a defence witness if the evidence is not accepted “In our opinion, if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted. Here no questions were asked in cross-examination”: R v Hart (1932) 23 Cr App R 202 at 205 (CCA). This proposition was followed in: Transport Ministry v Garry [1973] 1 NZLR 120 at 122 (Haslam J); McMinn v Daire (1982) 5 A Crim R 307 at 312–313 (SA, Legoe J); Mylonas v The Queen [1987] WAR 261; [1985] 20 A Crim R 214 at 274–275, 228 (CCA); R v Morrison (2002) 136 A Crim R 222 at 233–234 [43] – [47] (SA CCA).

[2.3960] Refusing to allow the contradicting evidence is too extreme Refusing to allow the contradicting evidence because of breach of the rule was the remedy employed in R v Schneidas (No 2) (1981) 2 NSWLR 713; 4 A Crim R 101 (CCA). It seems a severe redress particularly as it was a murder trial and the accused was unrepresented. McGarvie J refused to follow Schneidas. In R v Allen [1989] VR 736 he ruled (at 738): Accordingly, I take the view that unless there is some principle of law which entitles me to exercise a discretion to exclude this evidence, it is admissible even though it is called in breach of

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the principle of Browne v Dunn (1893) 6 R 67. I have the gravest reservations as to whether a trial judge ever has power to exclude on the basis of fairness, evidence which is admissible and is sought to be called by the defence. As I mentioned earlier, usually this problem does not occur because counsel are bound by the rules and ethics which govern counsel and comply with the rule in Browne v Dunn (1893) 6 R 67.

[2.3965] Rule applies to trials but not to committals In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ said (at 689; 396): However, whilst the rule does apply in this State in criminal as well as civil proceedings, its practical content needs to be related to the circumstances of the particular case, and one important circumstance may be that what is involved is a criminal trial. The precise significance of that may vary from case to case. Having regard to one observation made by the learned trial judge in the present case there is one particular aspect to the application of the rule to criminal proceedings to which special attention should be drawn. The learned trial judge commented upon the fact that a particular matter was not put in cross-examination during the committal proceedings. Such a comment is normally inappropriate. It has never been the rule in committal proceedings in this State that there is a duty to cross-examine Crown witnesses whether in detail or at all. Indeed, it would be most regrettable, and would lead to undue lengthening of committal proceedings, for any such rule to be adopted.

[2.3970] Rule applies when one accused gives evidence against another In R v Fenlon (1980) 71 Cr App R 307 (CCA) Lord Lane CJ said (at 313): There seems to be no reason why there should be any different rule relating to defendants between themselves from that applying to the prosecution vis-a-vis the defendant or the defence vis-a-vis the prosecution. It is the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the witness in cross-examination that he challenges his veracity and to give the witness an opportunity of replying.

[2.3975] Trial judge’s comment to the jury In R v Manunta (1989) 54 SASR 17 (CCA) King CJ said (at 23): I have been concerned about the prominence which the learned judge gave to these matters in the course of the summing up. It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned. Jurors are not familiar with the course of trial or preparation for trial and such considerations may not enter spontaneously into their minds.

In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ agreed. His honour went on to say (at 691–692; 398): I would respectfully adopt those views. I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a

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barrister is merely some kind of “mouthpiece” for the client, conducting the case in close conformity with the client’s directions. For reasons that have already been explained, this is far from the truth.

In R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA) the court said in a joint judgment (at 291; 3): [I]t is now generally recognised in criminal trials that in summing up on this issue, the judge should simply point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the court has similarly been deprived of receiving it. There will be exceptional cases where it is necessary to go further, for example where there seems to be a tenable case of recent invention. There may for example be a strong perception that the cross-examiner has deliberately preserved a case from damage by preventing it from being tested, and this has enabled the client to lie by and present the case that belatedly seems opportune. The giving of additional directions in such cases is however fraught with difficulty.

In R v Abdallah (2001) 127 A Crim R 46 (NSW CCA) Sheller JA with whom the others agreed cited and (above) then said (at 52 [24]): The point made in Birks (1990) 19 NSWLR 677; 48 A Crim R 385 and Manunta (1989) 54 SASR 17 is that in such a situation, it is necessary for the trial judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.

Other cases R v Liristis (2004) 146 A Crim R 547 at 557–563 [59] – [89] (NSW CCA). R v GED (2003) 141 A Crim R 135 at 138–139 [15] – [18] (NSW CCA). Lysle v The Queen [2012] NSWCCA 20.

[2.3980] Judge not to imply that the rule is inflexible In R v McLachlan (1998) 2 VR 553; 93 A Crim R 557 (CA) Callaway JA, giving the leading judgment, said (at 569 [50]): If a Browne v Dunn (1893) 6 R 67 direction was to be given at all, the jury should have been told that there may have been a good reason for counsel’s not observing the rule, which came across as an inflexible principle breach of which necessarily connoted unfairness.

See also R v Burns (1999) 107 A Crim R 330 (Qld CA). Beattie v Ball [1999] 3 VR 1 (CA). R v Nicholas (2000) 1 VR 356; 111 A Crim R 490 (at 397–402; 532–537 [128] – [146]) (CA). Richard Mahoney, “Putting the Case Against the Duty to Put the Case” [2004] NZ Law Review 313–344.

[2.3985] Recall of a witness Principle In MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436 Gummow, Kirby and Callinan JJ said (at 339; 448–449 [40]): Reliance on the rule in Browne v Dunn (1893) 6 R 67 can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a

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[2.4100]

failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulties so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

Legislation Uniform Evidence Acts s 46 mirrors this part of the rule. Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

BUGGERY Meaning ....................................................................................................................................... [2.4100] Legislation ................................................................................................................................... [2.4105]

[2.4100] Meaning Buggery is sexual penetration of the anus. It used to be called the “infamous crime”. Other legislation refers to it simply as buggery with animals either as an active or passive participant.

[2.4105] Legislation NSW: Crimes Act 1900 s 104. Vic: Crimes Act 1958 s 59. SA: Criminal Law Consolidation Act 1935 s 69. See also Bestiality at [2.1200].

BUNNING V CROSS The essence of the case .............................................................................................................. [2.4300] The case itself ............................................................................................................................. [2.4305] Bunning v Cross principles apply to confessions ...................................................................... [2.4310]

[2.4305]

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[2.4300] The essence of the case Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 bears on the admissibility of evidence obtained by police acting improperly or illegally. A judicial officer has a discretion to exclude such evidence. The judicial officer weighs the desirability of admitting otherwise reliable evidence against the public policy that those who enforce the law should respect it. Where the police impropriety is a regular practice, the evidence will usually be excluded. Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 has now been applied to exclude confessions.

[2.4305] The case itself Mr Bunning was driving fast and erratically in Perth. A patrolman stopped him. When the driver got out he staggered. No preliminary breath test was given. He was given a breathalyser test which read 0.190%. The magistrate rejected the evidence of the reading as unfair. The Full Court of Western Australia remitted the case to the magistrate requiring him not to exercise a discretion to reject the evidence. The driver went to the High Court. In Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 Stephen and Aickin JJ said (at 74–75): What Ireland (1970) 126 CLR 321 involves is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy, thereby seeking to resolve the apparent conflict between the desirable goal of bringing to conviction the wrongdoer and the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law. This being the aim of the discretionary process called for by Ireland (1970) 126 CLR 321 it follows that it by no means takes as its central point the question of unfairness to the accused. It is, on the contrary, concerned with broader questions of high public policy, unfairness to the accused being only one factor which, if present, will play its part in the whole process of consideration.

When speaking further on the discretionary process, here more limited than the general discretion which applies in all criminal cases their Honours said (at 75): It applies only when the evidence is the product of unfair or unlawful conduct on the part of the authorities (or, as Dixon CJ put it in Wendo’s Case (1963) 109 CLR 559, unlawful or improper conduct). Moreover it does not entrench upon the quite special rules which apply to the case of confessional evidence. Its principal area of operation will be in relation to what might loosely be called “real evidence”, such as articles found by search, recordings of conversations, the result of breathalyzer tests, fingerprint evidence and so on … There is no initial presumption that the State by its law enforcement agencies, will in the use of such measures of crime detection observe some given code of good sportsmanship or of chivalry. It is not fair play that is called in question in such cases but rather society’s right to insist that those who enforce the law themselves respect it, so that a citizen’s precious right to immunity from arbitrary and unlawful intrusion into the daily affairs of private life may remain unimpaired. A discretion exercisable according to the principles in Ireland’s Case (1970) 126 CLR 321 serves this end whereas one concerned with fairness may often have little relevance to the question.

Three considerations apply to the public policy question. • The unlawfulness must be deliberate: [I]t may be quite appropriate to treat isolated and merely accidental non-compliance with statutory safeguards as leading to inadmissibility of the resultant evidence when of their very nature they involve no overt defiance of the will of the legislature or calculated disregard of the common law and when the reception of the evidence thus provided does not demean the court as a tribunal whose concern is in upholding the law. (at 78)

• Cogency of the evidence is not a consideration: To treat cogency of evidence as a factor favouring admission, where the illegality in obtaining it has been either deliberate or reckless, may serve to foster the quite erroneous view that if such evidence be but damning enough that will of itself suffice to atone for

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[2.4310]

the illegality involved in procuring it. For this reason cogency should, generally, be allowed to play no part in the exercise of discretion where the illegality involved in procuring it is intentional or reckless. To this there will no doubt be exceptions: for example where the evidence is both vital to conviction and is of a perishable or evanescent nature, so that if there be any delay in securing it, it will have ceased to exist. (at 78)

• Ease of acting properly: A third consideration may in some cases arise, namely the ease with which the law might have been complied with in procuring the evidence in question. A deliberate “cutting of corners” would tend against the admissibility of evidence illegally obtained. (at 78)

[2.4310] Bunning v Cross principles apply to confessions The Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 principles apply to exclusion of confessions. In R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98, Toohey, Gaudron and Gummow JJ said (in footnote (120) at 191; 118; 119 [59]): Strictly speaking, the case was concerned with the admission of a breathalyser test on a charge of driving under the influence of alcohol. But in Cleland v The Queen (1982) 151 CLR 1 it was made clear that the principles in Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 extended to confessional statements.

Applied to exclude a confession. Dumoo v Garner (1998) 7 NTLR 129; 143 FLR 245 (Kearney J). See also, s 137 of the Uniform Evidence Acts which is similar to Bunning v Cross discretion. It has been held that in exercising this discretion, the reliability of the evidence is not relevant: R v Mundine (2008) 182 A Crim R 302; KMJ v Tasmania [2011] TASCCA 7.

BURGLARY The offence .................................................................................................................................. Legislation ................................................................................................................................... Trespasser .................................................................................................................................... Place of residence ....................................................................................................................... Absence of consent of owner or occupier not an element ........................................................ Aggravated burglary ................................................................................................................... Legislation ................................................................................................................................... Sentence ......................................................................................................................................

[2.4500] [2.4505] [2.4510] [2.4515] [2.4520] [2.4525] [2.4530] [2.4535]

[2.4500] The offence Burglary is the entry of or remaining in a building (or in some jurisdictions, part of building) as a trespasser with the intention of committing an offence. The offence is defined by statute. At common law it was the breaking and entering a dwelling house by night. The same acts by day were housebreaking.

[2.4505] Legislation Cth: Criminal Code Act 1995 s 132.4. Qld: Criminal Code s 419(1). WA: Criminal Code s 401. Tas: Criminal Code s 244. NT: Criminal Code s 213. (Unlawful entry of buildings).

[2.4520]

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NSW: Crimes Act 1900 s 109. (Enter dwelling-house with intent). Vic: Crimes Act 1958 s 76. SA: Criminal Law Consolidation Act 1935 s 168. ACT: Criminal Code 2002 s 311. NZ: Crimes Act 1961 s 231. Eng: Theft Act 1968 s 9. Can: Criminal Code ss 348–350.

[2.4510] Trespasser A person is deemed a trespasser if given permission to enter but steals when inside, and had intended to steal on that entry: Barker v The Queen (1983) 153 CLR 338; 47 ALR 1. The intent to steal must exist at the time of entry of the building: Galea v The Queen (1989) 1 WAR 450; 46 A Crim R 158 or part of the building (R v Walkington [1979] 1 WLR 1169; Singh v The Queen [2013] VSCA 300). In R v Collins [1973] 1 QB 100; [1972] 2 All ER 1105; (1972) 56 Cr App R 554 the accused was convicted of burglary with intent to rape. He climbed a ladder and saw the victim naked and asleep. He climbed down, took off all his clothes except his socks (he was English) and went up the ladder again. The girl saw the naked silhouette and beckoned him in, mistaking him for her boyfriend. Intercourse took place in her bed. She then realised he was not her boyfriend. The conviction was quashed. The prosecution must prove that an accused knew he was not welcome or was recklessly determined to enter whether he was welcome or not. Other cases R v Spero (2006) 13 VR 225; 161 A Crim R 13 (CA). R v Taylor (2004) 10 VR 199; 149 A Crim R 399 (CA). R v Jones [1976] 1 WLR 672; [1976] 3 All ER 54; 63 Cr App R 47. See also Claim of right at [3.2200]; and Housebreaking at [8.2100].

[2.4515] Place of residence The SA legislation refers to “place of residence”. In R v Jackson (2005) 93 SASR 373 (CCA) the court said that the term was not legal or technical and included an unoccupied rental flat.

[2.4520] Absence of consent of owner or occupier not an element In R v Dugan [1984] 2 NSWLR 554 (CCA) Street CJ giving the leading judgment said (at 562): Its ingredients, as the section states, for presently relevant purposes, are first entering a building, and secondly, with intent to commit a felony in the building. … The actus reus is the act of entry. The mens rea is the intent to commit the robbery in the building. The coincidence in point of time of these two ingredients is what is encompassed within the Act.

In R v Rigney [1996] 1 Qd R 551; (1995) 86 A Crim R 9 (CA) it was held that the offence did not have the absence of consent as a necessary element. The occupier’s consent or lack of it did not affect the criminality of what was intended.

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[2.4525]

Thus in R v Jackson (2005) 93 SASR 373 (CCA) it was held that entry of an unoccupied flat was burglary. Such a flat was a place of residence under the Criminal Law Consolidation Act 1935 (SA) s 17.

[2.4525] Aggravated burglary The offence is defined by statute. It generally involves the offence of burglary while carrying an offensive weapon. The legislation sets out the circumstances of aggravation.

[2.4530] Legislation Cth: Criminal Code Act 1995 s 132.5. Qld: Criminal Code s 419(3). WA: Criminal Code ss 400 and 401. Tas: Criminal Code s 245. NT: Criminal Code ss 213–215. NSW: Crimes Act 1900 s 112. Vic: Crimes Act 1958 s 77. SA: Criminal Law Consolidation Act 1935 s 168ff. ACT: Criminal Code 2002 s 312. NZ: Crimes Act 1961 s 232. See also R v Crockett (2001) 124 A Crim R 312 (Vic CA). R v Pope (2000) 112 A Crim R 588 (Vic CA).

Sentencing In R v Ponfield (1999) 48 NSWLR 327 (CCA) Grove J giving the leading judgment said (at 337–338 [48]): A court should regard the seriousness of offence contrary to s 112(1) of the Crimes Act as enhanced and reflect that enhanced seriousness in the quantum of sentence if any of the following factors are present. Necessarily, if more than one such factor is present there is a cumulative effect upon seriousness and the need for appropriate reflection. (i) The offence is committed whilst the offender is at conditional liberty on bail or on parole. (ii) The offence is the result of professional planning, organisation and execution. (iii) The offender has a prior record particularly for like offences. (iv) The offence is committed at premises of the elderly, the sick or the disabled. (v) The offence is accompanied by vandalism and by any other significant damage to property. (vi) The multiplicity of offence (reflected either in the charges or matters taken into account on a Form 1 pursuant to s 21 of the CP Act). In sentencing on multiple counts regard must be had to the criminality involved in each: Pearce v The Queen (1998) 194 CLR 610. (vii) The offence is committed in a series of repeat incursions into the same premises. (viii) The value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value.

[2.4535]

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(ix) The offence was committed at a time when, absent specific knowledge on the part of the offender (a defined circumstance of aggravation – Crimes Act, s 105A(1)(f)), it was likely that the premises would be occupied, particularly at night. (x) That actual trauma was suffered by the victim (other than as a result of corporal violence, infliction of actual bodily harm or deprivation of liberty – defined circumstances of aggravation: Crimes Act, s 105A(1)(c), (d) and (e)). (xi) That force was used or threatened (other than by means of an offensive weapon or instrument – a defined circumstance of aggravation Crimes Act, s 105A(1)(a)).

In R v Garvey (2003) 142 A Crim R 194 (NSW CCA) Adam J giving the leading judgment said of the above factors (at 196–197 [5]): Factor (v) must be considered with caution. As Grove J pointed out it is not proper, when imposing a sentence, to take into account as a circumstance of aggravation a matter which would have warranted a conviction for a more serious offence (see R v De Simoni (1981) 147 CLR 383; 5 A Crim R 329).

In R v McInerney [2003] 1 All ER 1089; [2003] 1 Cr App R 627 (CA) Lord Woolf CJ delivered the judgment. He said (taking this summary from the headnote): (1) For a low level domestic burglary committed by a first-time domestic burglar (and for some second-time domestic burglars) where there is no damage to property and no property (or only property of very low value) is stolen, the starting point should be a community sentence (see [32], [34], below). (2) For a domestic burglary in which a custodial sentence of up to 18 months would otherwise have been the starting point, the initial approach of the courts should be to impose a community sentence subject to conditions that ensure an effective punishment which offers action on the part of the Probation Service to tackle the offender’s criminal behaviour and, when appropriate, will tackle the offender’s underlying problems such as drug addiction. The court should resort to a custodial sentence if, and only if, it is satisfied that the offender has demonstrated by his or her behaviour that community punishment is not practicable. Where a custodial sentence is necessary, it should be no longer than necessary. In the case of repeat offenders and aggravated offences, long sentences will still be necessary (see [44], [48], below). (3) In the case of a standard domestic burglary which additionally displays any one of the high-level aggravating features (ie the use or threat of force against the victim, injury to the victim, an especially traumatic effect on the victim in excess of the trauma generally associated with a standard burglary, professional planning, vandalism of the premises in excess of the damage generally associated with a standard burglary, the offence was racially aggravated and a vulnerable victim had been deliberately targeted), the starting point should be a custodial sentence of (i) 18 months if the offence has been committed by a first-time domestic burglar, (ii) 36 months if committed by a second-time domestic burglar and (iii) 54 months if committed by an offender with two or more previous convictions for domestic burglary. The presence of more than one high-level aggravating feature may bring the sentence for an offence at that level significantly above the starting points (see [32], [34], below).

[2.4535] Sentence Aggravated burglary Hogarth v The Queen [2012] VSCA 302. Adams v The Queen [2011] VSCA 77. DPP v Rongonui (2007) 17 VR 571; 179 A Crim R 114 (Vic CA). R v Sahari (2007) 17 VR 269; 177 A Crim R 1 (CA). DPP v Samarentis (2007) 170 A Crim R 224 (Vic CA). Western Australia v Miller (2005) 30 WAR 38; 152 A Crim R 474 (CA).

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[2.4700]

R v Wilson (2000) 116 A Crim R 90 (Vic CA). R v Pope (2000) 112 A Crim R 588 at 596–598 [25] (Vic CA). R v Ward (1999) 109 A Crim R 159 (WA CCA). R v Singh (1999) 106 A Crim R 321 (Vic CA). Wroblewski v The Queen (1999) 105 A Crim R 129 (WA CCA).

Burglary Morrison v The Queen (2009) 197 A Crim R 103; [2009] NSWCCA 211. R v Castles (2005) 152 A Crim R 277 (NSW CCA). R v Doherty (2001) 121 A Crim R 212 (Vic CA). Heferen v The Queen (1999) 106 A Crim R 89 (WA CCA). R v Ponfield (1999) 48 NSWLR 327 (CCA). Police (SA) v Abdulla (1999) 74 SASR 337; 106 A Crim R 466 (Perry J). Capper v The Queen (1993) 69 A Crim R 64 (WA CCA). Verschuren v The Queen (1996) 17 WAR 467; 91 A Crim R 1 (CCA). R v Rumble (1996) 87 A Crim R 550 (FCA). R v Young (1996) 85 A Crim R 104 (Vic CA).

Guidelines in England R v Saw [2009] 2 All ER 1138 (CA). R v McInerney [2003] 1 All ER 1089; [2003] 1 Cr App R 627 (CA).

BURNS DIRECTION Origin .......................................................................................................................................... [2.4700] Application .................................................................................................................................. [2.4705] Position in England ..................................................................................................................... [2.4710]

[2.4700] Origin A Burns direction is what a judge should tell a jury about a confession. The expression comes from Burns v The Queen (1975) 132 CLR 258; 49 ALJR 248; 6 ALR 95, where Barwick CJ, Gibbs and Mason JJ said (at 261): It is clear and elementary law that once a confessional statement has been admitted into evidence its weight and probative value are matters for the jury. It is for the jury to determine whether the alleged confession was made and whether it was true in whole or in part. Unless the jury are satisfied that so much of a confession as tends to show the guilt of the accused was true they cannot treat it as a proof of guilt. However, a confessional statement may be the only one piece of the evidence against the accused and the jury are entitled to consider all the relevant evidence together in deciding upon their verdict. The nature of the direction necessary to be given properly to instruct the jury as to the use of evidence of an alleged confession must depend on all the circumstances of the case. “There is no rule of law or of practice which requires the Judge to caution the jury against action on such evidence or which prescribes any measure of the comment which it is his duty to make upon it.” (Ross v The King (1922) 30 CLR 246, at p 255.) In some cases it may be clear or undisputed that a confession was made and the crucial question may be whether it has any probative value: for example, it may be suggested that the confession

[2.4910]

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had no weight because it was extracted by force or given under a mistake or because the accused when making it was ill in body or disturbed in mind. In a case such as the present, where the accused person alleges that the confession which he is said to have made is a complete concoction, a reasonable jury, once satisfied that the confession was made, might readily be satisfied also that it was true. In such a case the absence of a specific warning to the jury that they should not act upon the confession unless they were satisfied of its truth might be of less significance than in a case where it was not in issue that the statement was made, but it was claimed that it was untrue.

[2.4705] Application Such a direction was held to have been called for in R v Buckley (2004) 10 VR 215; 149 A Crim R 122 (CA) where Nettle JA, with whom the other judges agreed, said (at 224; 132 [30]): As can be seen, the judge did not in those directions expressly caution the jury that they needed to be satisfied that the words which the applicant was alleged to have used were intended as an admission that he had committed the acts alleged against KD. Given that the alleged admission was a major plank in the Crown case and that there was room for different views about the exact effect of what the applicant was alleged to have said, I consider that is was necessary for the judge to give the jury a clear Burns direction.

Yet in R v DD (2007) 181 A Crim R 1 (Vic CA) the court held (at 45–46 [178]–[183]) that a Burns direction was not necessary because the accused’s seeming acknowledgement of an allegation was not a major plank in the prosecution case.

[2.4710] Position in England For the position in England see R v Mushtaq [2005] 1 WLR 1513; [2005] 3 All ER 885; [2005] 2 Cr App R 485 (HL).

BUSINESS RECORDS Generally ..................................................................................................................................... Legislation ................................................................................................................................... Cases ............................................................................................................................................ Uniform Evidence Act s 155 ......................................................................................................

[2.4900] [2.4905] [2.4910] [2.4915]

[2.4900] Generally By statute, business records may be tendered in evidence as an exception to the rule against hearsay.

[2.4905] Legislation The legislation has stark differences. Uniform Evidence Acts s 69. Qld: Evidence Act 1977 ss 83–91. WA: Evidence Act 1906 ss 89–95. SA: Evidence Act 1929 ss 46–51. NZ: Evidence Act 2006 s 19.

[2.4910] Cases Admissible: Hodgson v Amcor Ltd (No 6) [2011] VSC 294: solicitor’s file.

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[2.4915]

An Phan Tran v Nominal Defendant (2011) 58 MVR 462; [2011] NSWCA 220: diagram made by police officer. Wheatley v Commissioner of Police [2006] 1 WLR 1683 at 1691–1693 [12] – [15] (PC): banker’s books include microfilm of copy cheques. Nye v New South Wales (2002) 134 A Crim R 245 (NSW, O’Keefe J): Royal Commission transcript was a business record. Durovic v The Queen (1994) 4 Tas R 113; 71 A Crim R 33 (CCA): casino gambling records admissible. R v Ernst [1984] VR 593 (McGarvie J): business records outside jurisdiction admissible. R v Smart [1983] 1 VR 265; (1982) 6 A Crim R 192 (CCA) at 292–293; 199–200): bank manager’s diary notes. Not admissible: Lithgow City Council v Jackson (2011) 244 CLR 352; 85 ALJR 1130; [2011] HCA 36: statement by an ambulance officer that a person sustained injuries from a ‘Fall from 1.5 metres onto concrete’. R v Heinze (2005) 153 A Crim R 380 (Vic CA) per Nettle JA at 395–399 [60] – [70]: banker’s letter. R v Perrier (No 1) (1991) 1 VR 697; 50 VR 122; 50 A Crim R 122 (CCA): unproved unacknowledged letter not admissible. R v Crayden [1978] 1 WLR 604; [1978] 2 All ER 700; 67 Cr App R 1 (CA): hospital medical records not admissible. Barescape Pty Ltd v Bacchus Holdings Pty Ltd (No 6) [2012] NSWSC 257: records generated by a commercial business software package are business records. See also Hearsay at [8.1300].

[2.4915] Uniform Evidence Act s 155 In Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; 203 ALR 33 (French J) his Honour said (at 206; 48 [53]): Section 155 authorises the production of “evidence of a Commonwealth record”. It does not in terms render evidence of such a record proof of the truth of its contents.

C CANNABIS Cannabis sativa L .......................................................................................................................... Legislation ..................................................................................................................................... Judicial notice ............................................................................................................................... Meaning of plant ........................................................................................................................... Identification of the plant ............................................................................................................. Cannabis resin ............................................................................................................................... Sentencing – production ............................................................................................................... Sentence ........................................................................................................................................

[3.100] [3.105] [3.110] [3.115] [3.120] [3.125] [3.130] [3.135]

[3.100] Cannabis sativa L Genus cannabis; species sativa. L is for Linnaeus (Carl Von Linné, 1707–1778, a Swedish botanist who began a system of plant classification). Cannabis sativa L plants are usually quite tall (1.5–6 m) and are loosely branched. The seeds (akenes) are smooth, usually lacking the marbled pattern of the outer coat and are firmly attached to the stalk. They often exceed 5 mm in length. Hashish is the resin of the plant. Unlicensed cultivation or possession has within the last century been made an offence.

[3.105] Legislation Some legislation provides non-criminal disposition of possession of small amounts of cannabis. WA: Cannabis Control Act 2003; Vic: Drugs, Poisons and Controlled Substances Act 1981 s 76 (adjourned bond); SA: Controlled Substances Act 1984 s 45A; ACT: Drugs of Dependence Act 1989 s 171A.

[3.110] Judicial notice In Horman v Bingham [1972] VR 29 Newton J took judicial notice of the position of cannabis seeds. His Honour said (at 34): [I]t is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference, and is not disputed in the course of the proceedings before the court.

However, judicial notice will not be taken of normal yield and value: R v McCourt (1993) 69 A Crim R 151 (SA CCA) at 156–158. A court can take judicial notice that “grass” is a term frequently given to cannabis or Indian hemp: Ringstaad v Butler [1978] 1 NSWLR 754 at 757 (Cantor J).

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[3.115]

[3.115] Meaning of plant In R v Francis-Wright (2005) 153 A Crim R 299 (Vic CA) Williams AJA, with whom the others agreed, said (at 312 [42]): [T]he meaning of the word “plant” under the relevant provisions of the Act included a cutting which had struck or established roots. It could then be regarded as an entity separate from the plant from which it had been cut and differentiated from a “part” of that plant. The meaning also included a dead “plant”. The judge erred in failing to so direct the jury.

[3.120] Identification of the plant Proof of identity of the plant or drug can be made by an expert: Yager v The Queen [1977] WAR 17; 11 ALR 646 (CCA). It can also be made by the admission of an accused with experience of the drug: Anglim v Thomas [1974] VR 363 (Harris J); R v Brady (1980) 2 A Crim R 42 (NSW CCA); Reardon v Baker (1987) 25 A Crim R 203 (Vic, Phillips J).

[3.125] Cannabis resin Section 41(1) of the Customs Act 1901 (Cth) (now repealed) defines cannabis resin as follows: “Cannabis resin” means a substance that consists wholly or substantially of resin (whether crude, purified or in any other form) obtained from a cannabis plant or cannabis plants.

In R v Harris (No 4) [1990] VR 324 Ormiston J ruled (at 327): “Crude” in the definition should be construed as referring to the form of cannabis resin obtained upon its being first extracted from the cannabis plant, by whatever method employed.

He also said (at 328): The words “wholly or substantially” connote that the substance must primarily, essentially, or in the main consist of some form of cannabis resin, whether crude, purified, or in any other form. If it is so diluted that it cannot properly be characterised as cannabis resin, then it will fall outside the definition.

[3.130] Sentencing – production In R v Applewaite (1996) 90 A Crim R 167 (Qld CA) McPherson JA and Thomas J said (at 169): The most commonly encountered types of cannabis production are backyard production, bush-camp production, and farm-assisted plantations. Sentencing patterns show that save in the case of repeat offenders a moderate approach is generally made in relation to backyard production, particularly when the production is for the own use of the grower. The bush-camp cases tend to attract a more serious response, depending particularly on the size of the operation and the persistence of the operators, as well as the sophistication of the project and the end object of the operation. The farm plantation cases are commonly more ambitious than those so far mentioned, and depending factors such as size and object of the operation, tend to merit the higher penalties … Starting at the lower end of the scale there are some production offences which are considered to be appropriately dealt with by the imposition of a fine or a community based order, and where it is appropriate that no conviction be recorded.

Further (at 170): At the other end of the scale are offenders who engage in large-scale production on a plantation or plantations in the course of professionally organised crime. In cases where such offenders are convicted of production, sentences of eight years imprisonment, sometimes with a parole recommendation, are not uncommon.

[3.135]

CANNABIS

239

Between these extremes, the main factors which influence the level of sentence seem to be the following: 1. The size of the plantation, the sophistication of the project and its potential for profit. 2. Whether the production is for commercial gain or own use. 3. The planning involved, the professionalism, and the degree of criminality or wickedness which is discernible. 4. Whether the offender is a principal, or (scaling downwards) a profit-sharer, paid worker, or mere peripheral helper. 5. The period over which the offender has been engaged in the criminal enterprise. 6. Whether the offender has prior convictions, especially of a similar nature. Obviously a prior conviction for production or supply is far more relevant than one of possession. 7. Special factors common to most sentencing procedures, such as assistance to the police, early plea, young offender etc.

[3.135] Sentence Tariff for cultivation and dealing: R v Terewi [1999] 3 NZLR 62 (CA).

Supply and possession in a remote community First offender In Joran v Wilson (2006) 199 FLR 193 (NT, Angel J) his Honour said (at 200 [34]): There is no sentencing principle that first offenders who supply cannabis to or within Aboriginal communities must expect immediate imprisonment regardless of the circumstances. A sentence of imprisonment is only imposed when all other sentencing options have been eliminated, and when imposed, consideration has been given as to whether it should be suspended or not.

On appeal from the magistrate, the appellant was re-sentenced to 12 months for possession and 18 months for supply, both suspended on entry into good behaviour bond: Smith v Luker (1992) 111 FLR 99 (NT, Angel J).

Multiple offender In Daniels v The Queen (2007) 20 NTLR 147; 173 A Crim R 482 (CCA) the appellant sold a large quantity of cannabis in a remote community. He previously had a similar conviction and was on bail for another like offence.The sentence on appeal was reduced because of the totality principle: five years nine months with non-parole period of three years and six months.

Traffıcking R v Sibic (2006) 168 A Crim R 305 (Vic CA): eight years imprisonment, minimum five years and four years for each offender.

Trafficking and possession in gaol R v Post (1995) 84 A Crim R 64 (Qld CA): four years further imprisonment.

Supply Hewitt v The Queen (2007) 180 A Crim R 306 (NSW CCA): two years three months with non-parole period of one year three months.

240

ROSS ON CRIME

[3.300]

Possession of a traffickable quantity Duthie v Smith (1992) 107 FLR 458 (NT, Mildren J). Magistrate gave a bond. Prosecution appeal dismissed.

Possession for sale R v Rowan (2003) 85 SASR 364; 141 A Crim R 338 (CCA). See also Cultivate at [3.10800]; and Possession at [16.2700].

CASE MANAGEMENT Generally ....................................................................................................................................... Its nature ........................................................................................................................................ Procedure ....................................................................................................................................... Not to supplant justice .................................................................................................................. Legislation ..................................................................................................................................... Costs order .................................................................................................................................... Collateral evidence rule ................................................................................................................

[3.300] [3.305] [3.310] [3.315] [3.320] [3.325] [3.330]

[3.300] Generally Case management is a term describing a judge’s intervention usually before trial. The reasons are these: difficult cases do not fall into the too hard basket; cases can be streamlined by finding out early how an accused will plead; and making sure that there is a proper exchange of information. See also Discovery at [4.3000]; Disclosure at [4.2800]; and Pre-trial at [16.3900].

[3.305] Its nature In Rona v District Court (SA) (1995) 66 SASR 223; 77 A Crim R 16 (FC) King CJ said (at 227; 19–20): Case management rules are now essential equipment for courts exercising criminal jurisdiction, just as they are for courts exercising civil jurisdiction … The case management rules are designed to ensure, inter alia, that the cases for the prosecution and the defence are prepared, that all necessary amendments are made, that necessary notices are given and that statements of any additional prosecution witnesses are supplied to the defence, in good time before trial so that the trial will proceed on the day fixed and the time allocated for the trial will not be wasted. It is essential to the proper management of cases that both the DPP and the accused comply with the directions which are given, carry our undertakings made and adhere to assurances given, at the status conferences held in accordance with those Rules. Only in that way can a trial be accorded which is fair to both parties without waste of the limited public resources committed to the court system. The court must therefore insist on the parties including the DPP acting in that way. Only thus can the court “protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike” and prevent the “erosion of public confidence by reason of concern that the courts processes may lend themselves to oppression and injustice”: Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; 61 A Crim R 431 (at 520).

[3.320]

CASE MANAGEMENT

241

In Verschuren v The Queen (1996) 17 WAR 467; 91 A Crim R 1 (CCA) Pidgeon J said (at 475; 8): Experiences of other States and in other countries showed that the delay in cases being heard was caused, and would be likely to be caused, by the absence of a proper case management listing system and delay of this type led to lists becoming out of control. The fast track system was an important element in case management. A corner stone of the case management system adopted was to identify a plea of guilty at the earliest stage. Also to ensure that such cases, in the system, were not being treated as trials when there was no intention to go to trial.

[3.310] Procedure In W v The Queen (2001) 115 FCR 41; 189 ALR 633; 124 A Crim R 545 (FCA) Miles J said (at 54; 643; 555 [28]): Principle suggests and experience confirms that the more effective way is to allocate, at an early stage, after committal, a date for trial, by which it is reasonably expected that the parties will be ready, and then to manage the case by pre-trial procedures in order to ensure that the parties are ready for hearing by the allocated date. If by or on the allocated date it is considered by the court that justice would not be served by proceeding on that date, the date may be vacated, or the hearing may commence and proceed to a stage where it is adjourned, again depending on the circumstances. These seem to me to be elementary principles in the administration of justice. Far from denying justice they facilitate access to justice for all.

[3.315] Not to supplant justice In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 71 ALJR 294; 141 ALR 353 Dawson, Gaudron and McHugh JJ said (at 154; 357): Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

Applied: R v Shalala (2007) 17 VR 133; 176 A Crim R 183 (CA) in a joint judgment (at 139–140; 190 [29]). But in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; 83 ALJR 951; 258 ALR 14; [2009] HCA 27, the majority of the High Court said: Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this court’s earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the court and other litigants. Such statements should not be applied in the future.

[3.320] Legislation Courts often invoke inherent or implied powers to manage cases. Yet some jurisdictions have legislation or rules. Qld: Supreme Court of Queensland Act 1991 s 118D(2)(a); WA: Criminal Procedure Act 2004 s 137; Tas: Criminal (Case Management) Rules 2001; NT: Supreme Court Rules O 48; Local Court Rules Pt 32; Vic: Supreme Court (Criminal Procedure) Rules 1998 esp r 4; SA: Magistrates Court Rules 1992 s 20 (committals);

242

ROSS ON CRIME

[3.325]

Eng: Criminal Procedure and Investigations Act 1996 s 29; Criminal Procedure Rules 2005 r 3.

[3.325] Costs order Failure to comply with the rules or with an order will usually call for an adjournment rather than an order for costs: Police v Turbitt (2005) 92 SASR 480 (Gray J).

[3.330] Collateral evidence rule In Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 McHugh J said (at 223; 16 [56]): The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witnesss denials concerning matters of credibility should be regarded as generally admissible if the witnesss credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force.

CASE STATED Definition ....................................................................................................................................... Legislation ..................................................................................................................................... Time for stating case .................................................................................................................... Contents of case stated ................................................................................................................. Nature of proceedings are civil .................................................................................................... General propositions ..................................................................................................................... Court hearing the case stated will not go outside its contents ................................................... Drafting the case stated ................................................................................................................ Judge refusing to state a case ....................................................................................................... Magistrate ......................................................................................................................................

[3.500] [3.505] [3.510] [3.515] [3.520] [3.525] [3.530] [3.535] [3.540] [3.545]

[3.500] Definition A case stated is a statement of the relevant facts and questions of law for the opinion or judgment of a superior court. In R v Rowe (2001) 50 NSWLR 510; 118 A Crim R 421 (CCA) Fitzgerald JA said (at 513; 423 [9]): A case stated is often a limited and unsatisfactory procedure.

[3.505] Legislation Cth: Judiciary Act 1903 s 72; Qld: Criminal Code s 668B; Tas: Criminal Code ss 387 and 388; NT: Justices Act ss 162 and 162A; Criminal Code s 408; NSW: Criminal Appeal Act 1912 ss 5A(1), 5B, 5BA; Vic: Criminal Procedure Act 2009 ss 302–308; SA: Criminal Law Consolidation Act 1935 ss 350–351B; ACT: Magistrates Court Act 1930 s 267; NZ: Crimes Act 1961 ss 380–382.

[3.515]

CASE STATED

243

[3.510] Time for stating case Before a case can be stated there must be some hearing or determination: Lim v Hales (2004) 180 FLR 428 (NT, Bailey J). Cth: Judiciary Act 1903 s 72. A case may be stated at any time after such hearing or determination. At the latest the case is to be stated after verdict: R v Bright [1980] Qd R 490; (1980) 31 ALR 496; Rogers v The Queen (1995) 64 SASR 280; 125 FLR 96; 130 ALR 635; 81 A Crim R 246 (CCA). NT: Criminal Code s 408. A case cannot be stated until after conviction: R v Hofschuster (1994) 94 NTR 45 (Thomas J).

[3.515] Contents of case stated The stated case must set out the facts which have been found and the questions of law reserved. That is, the circumstances in which the questions arise must be set out. The magistrate’s notes should not be attached. The principles regulating the stating and determination of a case stated should not be in doubt, for they have been several times set out emphatically by courts of high authority, although every judge knows how difficult it is to comply with all the requirements. But what is absolutely essential, and should be reasonably practicable in every case, is that the case stated must contain at least a statement of all the ultimate facts which in the opinion of the judge dictated his ultimate conclusion: Industrial Equity v Commissioner of Corporate Affairs [1990] VR 780 at 782 (FC).

In DPP Reference (No 1 of 1999) (2000) 10 NTLR 1; 134 NTR 1; 156 FLR 310 (CA) the court in a joint judgment referred to the Justices Act and said (at 15; 11; 319–320 [51] – [52]): We also think that it is only in exceptional circumstances that it should be necessary for a copy of the magistrate’s reasons for decision to be incorporated into a case stated. The Act requires the question reserved to be accompanied by “a statement of the circumstances out of which the question arose”. In our view, what is required by the provision is a concise statement of: (a) the facts found by the magistrate; (b) the grounds on which the order was made dismissing the complaint or information; and (c) the grounds on which the proceeding is questioned. A case stated should not include any statements by way of advocacy on the part of the magistrate whose decision is questioned, nor on the part of the director who seeks to challenge it.

The case stated must set out the facts found which give rise to the question of law. If there is no reference to the found facts the court will refuse to answer the case stated. R v Assange [1997] 2 VR 247; (1996) 88 A Crim R 185 (CA); Wallin v Curtain (1998) 100 A Crim R 506; 27 MVR 356 (Vic CA). The facts must be relevant to the point of law. If not the court will refuse to answer the case stated. Furze v Nixon (2000) 2 VR 503; 113 A Crim R 556; 32 MVR 547 (CA). See also Pioch v Lauder (1976) 27 FLR 79; 13 ALR 266 (NT, Forster J); Freeman v Harris [1980] VR 267 (FC); R v Chan (1992) 28 NSWLR 421; 63 A Crim R 242 (CCA).

244

ROSS ON CRIME

[3.520]

[3.520] Nature of proceedings are civil In Clarkson v Wright (1998) 43 NSWLR 740; 102 A Crim R 382 (CA) it was held (at 745; 385) that in New South Wales at least a case stated is a civil proceeding: It matters not that they relate to a criminal proceeding.

[3.525] General propositions In DPP Reference No 1 of 1999 (2000) 10 NTLR 1; 156 FLR 310; 134 NTR 1 (CA) the court said in a joint judgment (at [11]) that a case stated: (a) “… is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy”: per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ in Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 57 A Crim R 256; 104 ALR 89, at 305 (CLR), 98 (ALR); (b) does not enable a “judicial roving commission”: per Lord Mustill in Attorney-General’s Reference (No 3 of 1994) [1998] AC 245 at 265; and approved: Director of Public Prosecutions (Cth) Reference No 1 of 1996 [1998] 3 VR 217 at 226 per Winneke P; Director of Public Prosecutions Reference No 1 of 1996 [1998] 3 VR 352 at 356 per Callaway JA; (c) does not permit the court to entertain hypothetical or academic questions: Bruce v Commonwealth Trade Marks Label Association (1907) 4 CLR 1569 at 1571; Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265-267; (d) does not permit the court to deliver advisory opinions: per Gaudron, Gummow and Hayne JJ in DPP v B (1998) 155 ALR 539; 72 ALJR 1175 at [25]; (e) provides jurisdiction for the Supreme Court to determine only questions of law: in refusing to answer a reference by the Attorney-General (Qld) under s 669A of the Criminal Code (Queensland), Sheperdson J observed in R v Douglas, Ex parte Attorney-General [1991] 1 Qd R 386 at 389: I would add, however, that while I recognise that this court is obliged to answer questions on points of law properly brought before it under s 669A, the court cannot be required to answer questions which are not pure points of law, but are rather questions of mixed law and fact.

[3.530] Court hearing the case stated will not go outside its contents In R v Madden (1995) 85 A Crim R 367 (NSW CCA) Hunt CJ at CL said (at 370–371): This court may not have regard to matters outside the stated case. If an appellant wants to rely upon express or implicit findings made by the judge, it is his obligation to ensure that those findings are expressed by the judge in the stated case. Sometimes, reasons for judgment given by the judge are attached to the stated case for this purpose. It would not, however, be correct to attach a transcript of the evidence. This court is concerned usually with the facts found by the judge, not with the evidence as a whole. If there is a challenge to the evidentiary basis for any of those findings, the relevant parts of the evidence should be set out in the stated case. A judgment given by the judge prior to stating a case for the opinion of this court does not always identify every matter upon which the judge relied in making such findings. That is why the relevant parts of the evidence should be set out in the stated case if it is necessary to consider the evidentiary basis for any findings of fact.

Approved: R v Rowe (2001) 50 NSWLR 510; 118 A Crim R 421 (CCA); Gilmour v DPP (1995) 125 FLR 114; 134 ALR 631 at 115 (FLR), 635 (NSW CCA).

[3.545]

CASE STATED

245

See also R v Porter (2004) 141 A Crim R 593 (NSW CCA); Question of Law Reserved (No 1 of 2000) (2000) 77 SASR 344; 113 A Crim R 272 (SA CCA) per Debelle J (at 280 [20]); R v Assange [1997] 2 VR 247; (1996) 88 A Crim R 185 (CA); R v Secretary (1996) 5 NTLR 96; 86 A Crim R 119; 131 FLR 124; 107 NTR 1 (CCA); Humphryis v Spence [1920] VLR 407 (Cussen J). In O’Brien and Crellin v Brogan (1991) 76 NTR 11; 105 FLR 472; 56 A Crim R 180 (Mildren J) both counsel went outside the stated case by referring to transcript (at 13; 474; 182). In the result Mildren J said (at 19; 479–480; 188): [I]t is necessary to amend the special case stated … to more precisely answer the questions of law which have arisen.

A further example is provided by Comptroller-General of Customs v D’aquino Bros Pty Ltd (1996) 130 FLR 383; 135 ALR 649; 85 A Crim R 517 (NSW CCA).

[3.535] Drafting the case stated The general practice is that the stated case is drafted by the prospective appellant for signature by the judge. That practice was acknowledged in New South Wales in R v Madden (1995) 85 A Crim R 367 (NSW CCA) by a footnote to the judgment of Hunt CJ at CL at 371.

[3.540] Judge refusing to state a case Where a judge refuses to state a case, the Supreme Court may order the judge to do so: Freeman v Harris [1980] VR 267 at 268 (FC). See also DPP v Gee (1999) 100 A Crim R 1 (SA FC) and on later appeal R v Gee (2003) 212 CLR 230; 139 A Crim R 153; 196 ALR 282. Another choice is to seek prerogative relief: Environment Protection Authority v Land and Environment Court (NSW) (2004) 144 A Crim R 198 (NSW CA). See also Prerogative writ at [16.3500].

[3.545] Magistrate In the Northern Territory a court comprising a magistrate can state a case arising from a summary matter. However, a magistrate hearing a committal cannot state a case: Ebatarinja v Pryce (1997) 137 FLR 281 (NT, Mildren J). See also Question of law reserved at [17.100].

246

ROSS ON CRIME

[3.700]

CAUSATION Definition ....................................................................................................................................... Causation is a matter of inference ............................................................................................... Direction to a jury ........................................................................................................................ Operating and substantial cause ................................................................................................... Danger of the but for test ............................................................................................................. Causa causans ............................................................................................................................... Later medical difficulties .............................................................................................................. Drugs ............................................................................................................................................. Pre-existing physical weakness of victim .................................................................................... Novus actus interveniens .............................................................................................................. What is not novus actus interveniens .......................................................................................... Death or injury of victim trying to escape .................................................................................. Establishing which act caused death ............................................................................................ Sufficiency of the evidence .......................................................................................................... Year and a day rule ....................................................................................................................... Judge’s direction ........................................................................................................................... Sentencing .....................................................................................................................................

[3.700] [3.705] [3.710] [3.715] [3.720] [3.725] [3.730] [3.735] [3.740] [3.745] [3.750] [3.755] [3.760] [3.765] [3.770] [3.775] [3.780]

[3.700] Definition Causation in criminal law is the link between the conduct of the accused and its consequence. The term is generally applied to crimes of violence. In other words, did the act or omission of the accused cause the injury or death of the victim. Causation is a question of fact. In Leyland Shipping Co Ltd v Norwich Union Fire Insurance Society Ltd [1918] AC 350; [1918-19] All ER Rep 443 (HL) Lord Shaw said (at 369; 453): The chain of causation is a handy expression, but the figure is inadequate. Causation is not a chain, but a net. At each point influences, forces, events, precedent and simultaneous, meet; and the radiation from each point extends infinitely. At the point where these various influences meet it is for the judgment as upon a matter of fact to declare which of the causes thus joined at the point of effect was the proximate and which was the remote cause. What does “proximate” here mean? To treat proximate cause as if it was the cause which is proximate in time is, as I have said, out of the question. The cause which is truly proximate is that which is proximate in efficiency. That efficiency may have been preserved although other causes may meantime have sprung up which have yet not destroyed it, or truly impaired it, and it may culminate in a result of which it still remains the real efficient cause to which the event can be ascribed.

[3.705] Causation is a matter of inference In Jones v Great Western Railway Co [1930] 144 LT 194; [1930] All ER Ext 830 (HL) Lord Macmillan, in dissent on other matters, said (at 202; 842): The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical certainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual observation there is necessarily a hiatus in the direct evidence, but this may be legitimately bridged by an inference from the facts actually observed and proved.

[3.710] Direction to a jury In Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157 (CCA) Burt CJ said (at 290; 161): It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

[3.715]

CAUSATION

247

Approved: Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669. Otherwise complications are inevitable if a jury were to be directed on theories of causation. In a civil negligence case the question of how the workman met his death was addressed in the following way by Du Parq LJ in Gibby v East Grinstead Gas and Water Co (1944) 170 LT 250; [1944] 1 All ER 358 (at 253; 363): In happier days this case would have been tried by a jury … it may be believed with some confidence that the jury would have been spared any subtle or complicated direction. Unless the trial had taken place in a university city and it had happened that the jury was composed mainly of philosophers and logicians, I doubt if a discussion of theories of causation would have either assisted or interested them.

See also, R v PL (2009) 199 A Crim R 199; [2009] NSWCCA 256.

[3.715] Operating and substantial cause In R v Smith [1959] 2 QB 35; [1959] 2 All ER 193; 43 Cr App R 121 (Courts Martial Appeal Court) the accused had stabbed the victim in a barrack room brawl. Both were soldiers. The victim had a punctured lung and haemorrhage. On the way to the medicos the victim was dropped twice. On arrival the treatment, “was thoroughly bad and might well have affected his chances of recovery” (at 42; 198; 130). Lord Parker CJ said at (42–43; 198; 131): [I]f at the time of death the original wound is still an operating cause and a substantial cause, then the death can properly be said to be the result of the wound, albeit that some other cause of death is also operating. Only if it can be said that the original wounding is merely the setting in which another cause operates can it be said that the death does not result from the wound. Putting it in another way, only if the second cause is so overwhelming as to make the original wound merely part of the history can it be said that the death does not flow from the wound.

In Krakouer v Western Australia (2006) 161 A Crim R 347 (WA CA) a co-accused had hit the victim under the chin with a mallet. That would cause death. The applicant hit the victim on the back of the head causing multiple skull fractures. The applicant was convicted of murder. His appeal failed. Steytler P analysed considerable authority. He said (at 359 [39]): In the end, it seems to me that, on the present state of authority, it is enough to satisfy the requirement of causation for the purpose of attributing criminal responsibility if the act of the accused makes a significant contribution to the death of the victim, whether by accelerating the victim’s death or otherwise, and that it is for the jury to decide whether or not the connection is sufficiently substantial.

In R v Jordan (1956) 40 Cr App R 152 (CCA) an American airman stabbed a man in a café. After conviction for murder further medical evidence became available. The intestine had been penetrated in two places but had mainly healed. Treatment was by tetramycin to which the victim was intolerant and by intravenous introduction of abnormal quantities of liquid. Death was by pneumonia. It was held that there was an “interruption to the chain of causation”. The appeal was allowed and the conviction quashed. In R v Russell [1933] VLR 59 (FC) the accused stood by while his wife drowned herself and their two children. He was acquitted of murder and convicted of manslaughter by criminal negligence. McArthur J, in the minority by submitting that the appeal should fail, was the only judge to speak of causation. His Honour said (at 82): [I]t is sufficient if the negligence complained of is a direct cause of the death or injury; it is not necessary that it should be the, that is the sole, direct cause. Whether or not a suggested cause is too remote, so that it cannot be said to be a direct cause, is a question of law.

248

ROSS ON CRIME

[3.720]

In R v Blaue [1975] 1 WLR 1411; [1975] 3 All ER 446; 61 Cr App R 271 a woman was stabbed. A blood transfusion would have saved her. She refused the transfusion which was against her Jehovah’s Witness beliefs. She died. The accused was convicted of manslaughter because of diminished responsibility. The appeal was dismissed. Lawton LJ said (at 274): It does not lie in the mouth of the assailant to say that his victim’s religious beliefs which inhibited him from accepting certain kinds of treatment was unreasonable. The question for decision is what caused her death. The answer is the stab wound. The fact that the victim refused to stop this end coming about did not break the causal connection between the act and death.

Earlier, when dealing with the reasonableness of the victim’s refusal of a blood transfusion, his Honour said: At once the question arises – reasonable by whose standards? Those of Jehovah’s Witnesses? Humanists? Roman Catholics? Protestants of Anglo-Saxon descent? The man on the Clapham omnibus? But he might well be an admirer of Eleazar who suffered death rather than eat the flesh of swine (2 Maccabees, Ch. 6, v. 18–31) or of Sir Thomas More who, unlike nearly all his contemporaries, was unwilling to accept Henry VIII as Head of the Church in England. Those brought up in the Hebraic and Christian traditions would probably be reluctant to accept that these martyrs caused their own deaths.

See also, R v Edwards [2008] SASC 303. In Reynolds v Regina [2015] NSWCCA 29, at [55], the court held that it in a homicide case “the proper test for causation in a case such as the present was whether the accused’s conduct was a substantial or significant cause of death” [at 40]) and that it was “doubtful as to whether there is any marked distinction between the words ‘significant’ and ‘substantia’” [at 55]).

[3.720] Danger of the “but for” test The “but for” test is that “but for” the attack the victim would not have died. In Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669 McHugh J was alone in finding the trial judge’s directions to the jury defective. He would have applied the proviso. His Honour said (at 440; 714; 99): In criminal cases, the common law has also refused to apply the “but for” test as the sole test of causation. Nevertheless, the “but for” test is a useful tool in criminal law for determining whether a causal link existed between an accused’s act or omission and the relevant injury or damage. But before a person will be held criminally liable for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility, ie legal responsibility, to that person.

In Arulthilakan v The Queen (2003) 78 ALJR 257; 203 ALR 259 the observation of McHugh J in Royall was approved. Five judges went on to say (at 265; 268 [35]): One of the dangers of a “but for” test of causation is that, in some cases, it is capable of indicating that a negligible causal relationship will suffice.

[3.725] Causa causans Causa causans is a Latin phrase meaning the immediate cause, of death for example. In Inkson v The Queen (1996) 6 Tas R 1; 88 A Crim R 334 (CCA) Crawford J, in describing the legal implication of a death referred to (at 34; 351): a real or effective cause, a causa causans. The term is to be distinguished from causa sine qua non. That term means some preceding link but for which the causa causans could not occur.

[3.730] Later medical difficulties In R v Evans and Gardiner (No 2) [1976] VR 523 (CCA) the two accused stabbed a man in the stomach. All were prisoners. The victim had a successful bowel resection and resumed

[3.740]

CAUSATION

249

normal life. He died just over 11 months later from a stricture in the small bowel, not an uncommon complication of the earlier operation. The accused were convicted of manslaughter. The appeal was dismissed. The court said (at 534): The failure of the medical practitioners to diagnose correctly the victim’s condition, however inept or unskilful, was not the cause of death. It was the blockage of the bowel which caused death and the real question for the jury was whether that blockage was due to the stabbing. There was plenty of medical evidence to support such a finding, if the jury chose to accept it.

In R v Bingapore (1975) 11 SASR 469 (CCA) the accused assaulted the victim causing head injuries. Against medical advice the victim discharged himself from hospital after treatment. Six hours later he was brought back. He died the next day from brain damage. The accused was convicted of murder. In Blee v Kerr (1986) 4 MVR 371 (WA, Pigeon J) a motorcyclist was injured in collision with Mr Kerr’s car. The hospital did not pick up a rupture to the aorta from which he later died. The magistrate dismissed a charge of dangerous driving causing death. The prosecution appeal was allowed. In R v Cook (1970) 2 A Crim R 151 (Qld CCA) there was a manslaughter conviction. The spinal cord was partly severed with some paralysis inevitable. The different treatments had their advantages and risks. One course was decided on. The victim suddenly died from a clot of the pulmonary artery which was a remote risk of the treatment. The appeal was dismissed. Turning off the life support system does not break the chain of causation: R v Malcherek and Steel [1981] 1 WLR 690; [1981] 2 All ER 422; 73 Cr App R 173; R v Kinash [1982] Qd R 648; 5 A Crim R 240 (CCA); R v Ellem (No 2) [1995] 2 Qd R 549; (1994) 75 A Crim R 370 (CA). Pregnant woman stabbed. Child born but later dies. The issue arose in: R v Martin (1995) 13 WAR 472; 85 A Crim R 587 (Owen J); Attorney-General’s Reference (No 3 of 1994) [1998] AC 245; [1997] 3 WLR 421; [1997] 3 All ER 936; [1996] 1 Cr App R 351 (HL).

[3.735] Drugs In R v Cato [1976] 1 WLR 110; [1976] 1 All ER 260; 62 Cr App R 41 (CCA) the accused and victim injected each other with heroin. The victim died. The defendant was convicted of manslaughter. An appeal was dismissed. In R v Dalby [1982] 1 WLR 425; [1982] 1 All ER 916; (1982) 74 Cr App R 348 (CA) the accused had supplied a controlled drug to an addict, who later injected and died. The defendant was convicted of manslaughter. An appeal was allowed and the conviction quashed. Waller LJ said (at 428–429; 919; 351): The difficulty in the present case is that the act of supplying a controlled drug was not an act which caused direct harm. It was an act which made it possible, or even likely, that harm would occur subsequently, particularly if the drug was supplied to somebody who was on drugs. In all the reported cases, the physical act has been one which inevitably would subject the other person to the risk of some harm from the act itself. In this case, the supply of drugs would itself have caused no harm unless the deceased had subsequently used the drugs in a form and quantity which was dangerous.

[3.740] Pre-existing physical weakness of victim In Mamote-Kulang v The Queen (1964) 111 CLR 62 Windeyer J said (at 79):

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[3.745]

It does not avail an accused charged with manslaughter in such a case to say that death was unexpected and that it was only because the person struck was in ill-health or had some unsuspected weakness that the blow proved fatal. That does not make homicide excusable. A killing is not the less a crime because the victim was frail and easily killed.

Followed: R v Moffatt (2000) 112 A Crim R 201 at 212 [65] (NSW CCA).

Enlarged thymus gland R v Hayward (1908) 21 Cox CC 692 (charge of Ridley J) was a manslaughter conviction. The husband had quarrelled violently with his wife, who had an enlarged thymus gland. He chased her from the house and kicked her arm when she fell. Medical evidence was that a person with such a condition could be frightened to death.

Weak heart R v Watson [1989] 1 WLR 684; [1989] 2 All ER 865; 89 Cr App R 211 involved the burglary of house whose occupant had a weak heart. The burglars ought to have known of his frailty because of the length of time they were in the house. But before the heart attack, the police arrived and the council men boarded up the broken window. A doctor said that effect of the stress from the burglary would have subsided after 20 minutes and the heart attack was either spontaneous or caused by later events. An appeal against the manslaughter conviction was allowed. R v Dixon and Smith (1992) 28 NSWLR 215; 62 A Crim R 465 (CCA) was a manslaughter conviction. Smith had admitted hitting the victim who died of a heart attack. Wood J, delivering the leading judgment, said (at A Crim R 470): His admitted act clearly constituted an unlawful and dangerous act, and it was one which the jury were well entitled to infer was the precipitating factor in the cardiac arrest which brought about death.

Appeal was allowed on other grounds. (Note: this extract does not appear in the report of the case at 28 NSWLR 215.)

[3.745] Novus actus interveniens The Latin phrase means “a new act intervening” and refers to the intervention of a human activity between the accused’s act and the ultimate consequence to the victim. Such an activity is said to break the chain of causation. In R v Pagett (1983) 76 Cr App R 279 (CA) Goff LJ said (at 288): [T]he intervention of a third person may be regarded as the sole cause of the victim’s death, thereby relieving the accused of criminal responsibility. Such intervention, if it has such an effect, has often been described by lawyers as a novus actus interveniens. We are aware that this time-honoured Latin term has been the subject of criticism. We are also aware that attempts have been made to translate it into English; though no simple translation has proved satisfactory, really because the Latin term has become a term of art which conveys to lawyers the crucial feature that there has not merely been an intervening act of another person, but that that act was so independent of the act of the accused that it should be regarded in law as the cause of the victim’s death, to the exclusion of the act of the accused.

Other cases R v Jordan (1956) 40 Cr App R 152 (CA); R v Dalby [1982] 1 WLR 425; [1982] 1 All ER 916; (1982) 74 Cr App R 348 (CA).

[3.760]

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251

[3.750] What is not novus actus interveniens In R v Pagett (1983) 76 Cr App R 279 the accused fired at police and used his pregnant girlfriend as a shield to prevent arrest. A police shot killed her. The accused was convicted of manslaughter. Appeal was dismissed. In Gillett v The Queen (2006) 166 A Crim R 419; 46 MVR 429 (NSW CCA) the appellant had an epileptic fit while driving. The driving caused death. Held: appeal dismissed. The appellant had seizures earlier. Novus actus interveniens ground of appeal rejected.

[3.755] Death or injury of victim trying to escape Cases about the death or injury of a victim trying to escape a violent accused are collected and reviewed in Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669, particularly in the judgment of McHugh J. For an admiralty aspect where seamen jumped overboard to escape further assaults and the life rafts were defective, see Yulianto v Glory Cape (1995) 127 FLR 394;134 ALR 92 at 399–401, 96–98 (WA, Murray J).

[3.760] Establishing which act caused death The following cases illustrate the point. In each case the accused fired two shots at the victim. Death resulted, but the question was from which shot, for each shot would have been fatal. In R v Graham [1984] VR 649 the first shot was fired when the deceased was on the bank of the Murray River in Victoria. On the second shot the deceased may have been in New South Wales. In R v Hughes (unreported, Vic CCA, 20 March 1990) the victim broke into the accused’s room and threatened him. The accused shot the victim in the abdomen. At that time self defence and provocation were available. The victim was then dragged back to his own room and shot through the head at which time self defence was not available but accident was. The defence called evidence that the victim may have been dead when the second shot was fired. The murder conviction was quashed and a new trial ordered. An earlier trial had been the subject of appeal: R v Hughes (1989) 42 A Crim R 270. On the fourth trial on this charge before Smith J in July 1990 the accused was acquitted of murder and convicted of manslaughter. Note that the death can be from more than one cause. In R v Butcher [1986] VR 43; 16 A Crim R 1 (CCA) the court said in a joint judgment (at 55): The attempt to isolate the cause of death and to identify it as the entry of the knife into the body of the deceased, or the rushing forward of the deceased cannot be sustained. A single cause of death is not always able to be isolated. As a matter of law there need not be a sole cause of death, and in the instant case the presentation of the knife towards the stomach of the deceased, whilst standing three to four feet away, as well as the assumed forward movement of the deceased, may be seen to combine so that both can be postulated as legal causes of the death of the deceased.

In R v Stein (2007) 18 VR 376; 179 A Crim R 360 (CA) the applicant engaged in sado-masochistic acts with the deceased. The deceased was tied up and gagged. The gag was a substantial cause of death. The appeal against conviction for manslaughter by unlawful and dangerous acts was dismissed. Toohey and Gaudron JJ although in dissent on other matters said in Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669 (at 423; 710; 86): Nevertheless the jury must be told that they need to reach a conclusion as to what caused the deceased’s death. That does not mean that the jury must be able to isolate a single cause of death; there may be more than one such cause: R v Butcher [1986] VR 43 at 55-6; R v McKinnon [1980] 2 NZLR 31 at 36.

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ROSS ON CRIME

[3.765]

In R v Hallett [1969] SASR 141 (CCA) the accused had knocked the victim unconscious on a beach. The tide came in and drowned the victim. In a joint judgment the court said (at 149): The only question, it seems to us, which can be raised in this connection is whether the action of the sea on the deceased can be regarded as breaking the chain of causation. We do not think it can. In the exposure cases the ordinary operation of natural causes has never been regarded as preventing the death from being caused by the accused.

A similar issue arose in Phillips v The Queen (No 2) [1971] Tas SR 360 (CCA).

[3.765] Sufficiency of the evidence In R v Puckeridge (1999) 74 ALJR 373; 168 ALR 4 the High Court said in a joint judgment (at [7]): [T]he issue is whether, on the prosecution evidence, the jury was entitled to be satisfied beyond reasonable doubt that it was the act of the respondent that caused the death of Mrs Thomas: May v O’Sullivan (1955) 92 CLR 654 at 658 per Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ; Plomp v The Queen (1963) 110 CLR 234 at 242 per Dixon CJ, 247 per Menzies J (with whom Kitto, Taylor and Windeyer JJ agreed).

In R v Carter (2003) 141 A Crim R 142 (Qld CA) the appellant had been convicted of murder by heroin injection. The pathologist said that because of other drugs the heroin could be a significant cause of death but not a substantial cause. Held: causation was not a philosophical question. The jury applied their common sense. Appeal dismissed.

[3.770] Year and a day rule At one time a person who injured another could not be charged with murder or manslaughter if the victim did not die within a year and a day. It derived from a distrust of medical science. That is, it could not be proved that the injury caused the death. R v Evans and Gardiner (No 2) [1976] VR 523 (CCA); R v Inner West London Coroner; Ex parte De Luca [1988] 3 WLR 286; [1988] 3 All ER 414 (CA); In Australia the rule has been abolished at least in homicides. In the Code States the year and a day sections have been repealed. (In the Northern Territory this occurs by implication). In the common law jurisdictions the rule has been abolished by statute. Qld: Criminal Code s 299 repealed by Act 48 of 1992 s 207; WA: Criminal Code s 276 repealed by Act 37 of 1991 s 6; Tas: Criminal Code s 155 repealed by Act 9 of 1993; NT: Criminal Code s 157 (by implication); NSW: Crimes Act 1900 s 17A; Vic: Crimes Act s 9AA; SA: Criminal Law Consolidation Act 1935 s 18; ACT: Crimes Act 1900 s 11; Eng: Law Reform (Year and a Day Rule) Act 1996. The rule still exists in New Zealand. NZ: Crimes Act 1961 s 162.

[3.905]

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253

[3.775] Judge’s direction The judge’s direction to the jury must be simple and easy to understand. It must be tailored to the facts of the case. In the civil negligence case of Grant v Sun Shipping Co Ltd [1948] AC 549; [1948] 2 All ER 238 (HL) Lord du Parcq said (at 564; 246): A jury would not have profited by a direction couched in the language of logicians, and expounding theories of causation, with or without the aid of Latin maxims.

[3.780] Sentencing Outcome unforeseen In R v Agius (2000) 77 SASR 469; 115 A Crim R 387 (CCA) Olsson J said (at [29]): There is an undeniable weight of authority to the effect that, where, as here, the commission of an offence produces an outcome which is totally unforeseen and was unforeseeable by a reasonable person, then, at common law, such outcome is not relevant for sentencing purposes, other than as general historical background and as evidencing the infliction of some degree of harm to the victim. It should otherwise not be accorded undue weight in the sentencing process (authorities referred to).

Members of the public chased the respondent after she had robbed an old lady. The girl who caught the respondent suffered a serious heart attack. The prosecution appealed the suspended sentence. Appeal dismissed. See also KJ Arenson, “Causation in the Criminal Law: A Search for Doctrinal Consistency” (1996) 20 Crim LJ 189-214; S Yeo, “Blamable Causation” (2000) 24 Crim LJ 144-163; M Plaxton, “On Scarlet Fever and Falling Trees: Blamable Causation and Mens Rea” (2001) 25 Crim LJ 59-63.

CAUTION Definition ....................................................................................................................................... Legislation on caution .................................................................................................................. Suspect .......................................................................................................................................... Duty to give caution ..................................................................................................................... When caution must be given ........................................................................................................ Effect of failure to give caution ................................................................................................... Absence of caution triggers the discretion to exclude ................................................................ Failure to understand the caution ................................................................................................. Duty when cautioning Aborigines ................................................................................................ England .......................................................................................................................................... Miranda warning: United States ................................................................................................... Other references ............................................................................................................................

[3.900] Definition A caution is a warning by police to a suspect usually in the following terms: You are not obliged to say anything, but anything you say may be given in evidence.

[3.905] Legislation on caution Legislation requires an interviewing officer to administer a caution. Uniform Evidence Acts s 139; Cth: Crimes Act 1914 s 23F;

[3.900] [3.905] [3.910] [3.915] [3.920] [3.925] [3.930] [3.935] [3.940] [3.945] [3.950] [3.955]

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[3.910]

WA: Criminal Investigation Act 2006 s 138(2)(b); Qld: Police Powers and Responsibilities Act 2000 s 431; Police Powers and Responsibilities Regulation 2000 Sch 10 reg 37; Tas: Criminal Law (Detention and Interrogation) Act 1995 s 4(5); Evidence Act 2001 s 139; NT: Police Administration Act s 140(a); NSW: Law Enforcement (Powers and Responsibilities) Act 2002 s 122; Young Offenders Act 1997 s 29; Vic: Crimes Act 1958 s 464A(3); SA: Summary Offences Act 1953 s 79A(3); Eng: Police and Criminal Evidence Act 1984 (PACE Act) and Codes of Practice 10 and 11.

[3.910] Suspect Some legislation requires that before the caution provisions operate, the person must be a suspect. Lai v The Queen (2003) 13 NTLR 139; 180 FLR 190; 143 A Crim R 111 (CCA) at [20] – [22].

[3.915] Duty to give caution In R v Currie (1913) 29 WN (NSW) 201 Cullen CJ said: There is no doubt that the course of proceedings in this country has not been quite consistent with the pronouncements by English judges, but I am perfectly clear about this, that where it is not a mere conversation which, although the man may be under suspicion, is directed towards the ascertainment of facts, and giving him an opportunity of helping the police to clear himself, or possibly find out the guilty person, but where the police have information on which they were justified in arresting, and have decided to arrest, it is very wrong, without a caution, to put questions to a suspected person, and then give them in evidence against him at the trial. I do not say it by way of censure on the police, but it is not consistent with our ideas of the conduct of criminal trials that that kind of pressure should be put upon a man whose arrest has been determined on, at all events without giving him a caution that he is not under any obligation to give an answer, and that any answer he may give may be used in evidence against him. That is the common and proper course to adopt, and with that safeguard a judge, under our practice, at any rate, would only consider whether there was not some other reason for excluding the evidence. In this particular case there was no caution given, the man’s arrest was decided on, and I will exclude that evidence.

Applied: R v Williams (1976) 14 SASR 1 at 4–5 (Wells J); R v Dolan (1992) 58 SASR 501 at 504 (CCA). A caution must be given at the commencement of the accusatory stage of investigation: R v Murphy (1996) 66 SASR 406 (CCA).

[3.920] When caution must be given In R v Bueti and Morrissey (1997) 70 SASR 370 (CCA) at 378, Doyle CJ, with whom the other members of the court agreed, held that fairness required that a caution be administered even though the person to be questioned was not regarded as a suspect but his possible involvement in the crime remained under consideration.

[3.930]

CAUTION

255

Followed: R v Bondareff (1999) 74 SASR 353; 109 A Crim R 23 (CCA) per Mullighan J (at 369; 39). A caution must be given at the commencement of the accusatory stage of investigation: R v Murphy (1996) 66 SASR 406 (CCA).

[3.925] Effect of failure to give caution The failure to give a caution will usually cause a judge to reject the confession. It might not be rejected if the person is not in custody. Cases before the passing of legislation may have given the judges a freer rein. Confession rejected: R v Laracy (2007) 180 A Crim R 19 at 33–35 [80] – [94] (Vic, Osborn J); R v Waters (2002) 129 A Crim R 115 (ACT, Gray J); R v Hunt [1992] Crim LR 582 (CA); Dumoo v Garner (1998) 7 NTLR 129; 143 FLR 245 (Kearney J); R v Ninnal (1992) 109 FLR 203 (NT, Mildren J); R v Macleod (1991) Tas R 144; 61 A Crim R 465 at 164–167, 478–481 (Slicer J); R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J). Confession admitted: R v Trotter (1992) 60 A Crim R 1 at 14 (SA, Perry J); R v Azar (1991) 56 A Crim R 414 (NSW CCA). Other Cases Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; 174 A Crim R 540; 239 ALR 204; R v Dolan (1992) 58 SASR 501 at 504–506, 512 (CCA); Petty v The Queen (1991) 173 CLR 95; 102 ALR 129; 55 A Crim R 322 at 122, 148, 341 per Dawson J; R v Williams (1976) 14 SASR 1 at 4–6 (Wells J); R v Currie (1913) 29 WN (NSW) 201 (Cullen CJ).

[3.930] Absence of caution triggers the discretion to exclude In R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98 (HC) an undercover policeman taped conversations with the accused. The Queensland Court of Appeal allowed the appeal. The prosecution appealed to the High Court. Toohey, Gaudron and Gummow JJ said (at 202–203; 128; 129): [A]s the Australian authorities stand, the absence of a caution triggers the exercise of a discretion to exclude what was said but does not require exclusion. That is clear from the decision of this in Stapleton v R (1952) 86 CLR 358 at 375–6. And in R v Azar (1991) 56 A Crim R 414 at 420 after referring to Stapleton (1952) 86 CLR 358, Gleeson CJ said: There are numerous statements in the law reports to the effect that a confessional statement to a police officer is not inadmissible merely because no caution has been administered. It is hardly likely that those statements were intended to apply only in the case of an accused person who knows of his right to silence even without a caution. In the circumstances of this case, the admissions were elicited by an undercover police officer, in clear breach of Swaffield’s right to choose whether or not to speak. The Court of Appeal was right in its conclusion and this appeal should be dismissed.

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[3.935]

In Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; 174 A Crim R 540; 239 ALR 204 Gleeson CJ and Heydon J, citing authority and Evidence Act 1995 (NSW), said (at [63]): At common law, the onus of demonstrating that it would be unfair to accused persons to use the evidence lay on them. The onus lies in the same place under s 90.

[3.935] Failure to understand the caution A failure to understand the caution triggers the discrection to exclude: R v Li [1993] 2 VR 80 (Coldrey J); R v Nguyen (1995) 78 A Crim R 582 (Vic Coldrey J).

[3.940] Duty when cautioning Aborigines The caution must be given and the accused must repeat it: R v Anunga (1976) 11 ALR 412 (NT, Forster J). In R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J) his Honour ruled (at 153; 29; 147): Although the accused may have been somewhat more sophisticated than many full-blooded Aboriginal people it was not appropriate for the sergeant to purport to rely upon the caution given a month before in relation to another matter as being an adequate caution for the purposes of this matter. There was no attempt made to secure the accused’s understanding of the caution and that he was free to choose whether he would speak with Sergeant Smith about this matter or not. Further, in the exercise of discretion, I would rule the confessions then made inadmissible because of the failure of the police to have a friend of the accused present during that interrogation.

See also Anunga rules at [1.5000].

[3.945] England The special position in England where “serious fraud” is alleged is discussed in Smith v Director of Serious Fraud Offıce [1993] AC 1; [1992] 3 All ER 456 (HL).

[3.950] Miranda warning: United States The expression Miranda warning comes from the 5–4 decision of Miranda v Arizona 384 US 436 (1966). In essence, the majority said the following: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says may be used against him in a court of law. He must be clearly informed that he has the right to consult with an attorney and to have the attorney with him during the interrogation. If he is indigent, an attorney will be appointed to represent him. If the individual indicates in any manner at any time prior to or during questioning that he wishes to remain silent, the interrogation must cease. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.

Referred to: Kelly v The Queen (2004) 218 CLR 216; 205 ALR 274 at [21] per Gleeson CJ, Hayne and Heydon JJ; Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; 174 A Crim R 540; 239 ALR 204 at [211] per Kirby J;

[3.1110]

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R v Singh [2007] 3 SCR 405 (SCC) at [89]–[94]; DPP v Bayly (No 3) (1996) 89 A Crim R 542 at 544 (SA, Olsson J).

[3.955] Other references See also Anunga rules at [1.5000]; Confession at [3.5300]; Custody at [3.11000]; and Judges’ Rules at [10.1300].

CERTIORARI Definition ..................................................................................................................................... Function ....................................................................................................................................... Scope ........................................................................................................................................... Jurisdictional error ...................................................................................................................... The error must be fundamental .................................................................................................. Court of Record .......................................................................................................................... What is the record ....................................................................................................................... Certiorari does not lie to a court exercising co-ordinate jurisdiction ....................................... Privative sections ........................................................................................................................ Certiorari and committal ............................................................................................................. Discretion .................................................................................................................................... Delay ........................................................................................................................................... Alternative remedy available ...................................................................................................... Declaration instead of certiorari ................................................................................................. Sentence ....................................................................................................................................... Sentence exceeds the maximum ................................................................................................. Costs ............................................................................................................................................ Forms of application ...................................................................................................................

[3.1100] [3.1105] [3.1110] [3.1115] [3.1120] [3.1125] [3.1130] [3.1135] [3.1140] [3.1145] [3.1150] [3.1155] [3.1160] [3.1165] [3.1170] [3.1175] [3.1180] [3.1185]

[3.1100] Definition Certiorari is the passive of late legal Latin certiorare meaning to inform, from certior the comparative of certus: certain. A translation might be “to be more fully informed of”. Originally, certiorari was a prerogative writ directed to an inferior court of record for that record to be brought up for rectification. The writ is still the remedy in the High Court, in Western Australia and in Tasmania. Elsewhere the remedy sought is an order in the nature of certiorari.

[3.1105] Function In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 580; 21; 264): The function of certiorari is to quash the legal effect or legal consequences of the decision or order under review.

Affirmed: Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 159; 134 ALR 469 at 474, 490.

[3.1110] Scope In Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359 the court said in a joint judgment (at 175–176; 599–600; 363): Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate

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[3.1115]

procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing, of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

[3.1115] Jurisdictional error Again in Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359 the court said (at 177; 600; 364): An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

In Director-General of Attorney-General’s Department v District Court of NSW (1993) 32 NSWLR 409 Mahoney JA said (at 411): The claimant seeks an order that the order made by the District Court be quashed. This court has from time to time considered the basis upon which relief of this nature may now be granted. Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368; Adler v District Court (NSW) (1990) 19 NSWLR 317. Certiorari may go not merely where there is an excess of jurisdiction but also where the decision is affected by an error of law appearing on the face of the record. The judgment of the tribunal has, for this purpose, been held to be part of the record: G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503. It should, in my respectful opinion, be accepted that it is not every error of law involved in a decision of this kind which allows the grant of certiorari. Thus, as I have elsewhere suggested: see Commissioner for Motor Transport v Kirkpatrick (1988) 13 NSWLR 368; Minter v Police Tribunal of New South Wales (Court of Appeal, 21 May 1992, unreported); an error of law in respect of a collateral or purely peripheral matter or an error in the course of admitting or rejecting evidence is ordinarily not a basis for such relief. The error of law must, in my opinion, be one which is (to put the matter broadly) more central to the jurisdiction and orders involved.

See also Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 (CA).

[3.1120] The error must be fundamental In Pavic v Magistrates Court (Vic) (2003) 140 A Crim R 113 (Vic, Nettle J) a magistrate had refused to hear the plaintiff when making a forensic procedure order. Nettle J granted certiorari. His Honour said (at 123 [47]): Other things being equal, certiorari will go to quash a decision which affects a subject’s liberty, rights, interests or legitimate expectations if the decision is the result of a denial of the subject’s right to be heard: Craig v South Australia (1995) 184 CLR 163 at 174. That is because the right to be heard is so fundamental to our legal system that it is presumed:

[3.1135]

CERTIORARI

259

… that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement: O’Reilly v Mackman [1983] 2 AC 237 at 276.

In Flynn v DPP [1998] 1 VR 322 McDonald J said (at 340): For this court to grant relief to quash an order of an inferior court, in the nature of certiorari if an error of law is demonstrated to exist on the face of the record, including the reasons for decision of the judicial officer, it is my opinion that what must be demonstrated is that the error is so fundamental to the decision of the court as to strike at the very roots of its order and to invalidate it. Other errors of law on the face of the record of an inferior court, including the reasons for decision, would not entitle this court in the exercise of its supervisory jurisdiction to grant relief in the nature of certiorari to quash the order of that court.

[3.1125] Court of Record Some legislation creates a Court of Record Qld: District Courtof Queensland Act 1967 s 6; WA: District Court of Western Australia Act 1969 s 8; Tas: No intermediate court between Magistrates Court and Supreme Court; NT: No intermediate court between Magistrates Court and Supreme Court; NSW: District Court Act 1973; Vic: County Court Act 1958 s 35; SA: District Court Act 1991 s 55; ACT: No intermediate court between Magistrates Court and Supreme Court.

[3.1130] What is the record In Hockey v Yelland (1984) 157 CLR 124; 56 ALR 215 Wilson J said (at 143; 228): Ordinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication.

In Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359 the court adopted Wilson J’s remarks above, and went on to say (at 182–183; 605; 368–369): Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record.

See also Kriticos v NSW [1996] AILR 4,516 (5-085) (NSW CA).

[3.1135] Certiorari does not lie to a court exercising co-ordinate jurisdiction In Skinner v County Court Judge of Northallerton [1898] 2 QB 680 by statute a county court judge exercised the same bankruptcy jurisdiction as the High Court. Smith LJ held that certiorari did not lie. He said (at 684): In my judgment, the result of these sections is that the position of a county court judge sitting in Bankruptcy exercising bankruptcy jurisdiction, and acting within that jurisdiction, is a position similar to that of a judge of the High Court exercising his jurisdiction, and that so long as a county

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court judge is exercising bankruptcy jurisdiction the remedy by which to question an order made by such a judge, when exercising such jurisdiction, if such order requires alteration or amendment, is by application to the judge himself sitting in Bankruptcy, and then possibly by appeal, and not by certiorari to bring up the order into the Queen’s Bench Division.

On appeal the House of Lords agreed: [1899] AC 439 at 441. The same principle applies in crime: Re Ackland; Ex parte Love [1989] 1 WAR 562 (Brinsden J); Ex parte Connell (1993) 10 WAR 414 (White J); Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; 86 A Crim R 100 (FC).

[3.1140] Privative sections Some legislation prevents certiorari. See Privitive clause at [16.5100]. Qld: Justices Act 1886 s 153: No conviction shall be quashed for want of form or be removed by certiorari order (within the meaning of the Judicial Review Act 1991) or otherwise into the Supreme Court, and no warrant of commitment on a conviction shall be held void by reason of any formal defect therein, provided it is therein alleged that the party has been duly convicted and there is a good and valid conviction to sustain it.

NSW: District Court Act 1973 s 142J(1)(c)(iii) provides: [N]o proceedings, whether for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of any decision or proceeding of the court relating to, or on the face of the proceedings appearing to relate to, any matter within its residual jurisdiction, and

s 176 No proceedings in nature of certiorari: No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.

[3.1145] Certiorari and committal In R v Matterson; Ex parte Moles (1994) 4 Tas R 87; 77 A Crim R 360 Underwood J found that in Tasmania a committal was amenable to certiorari. He said (at 97; 393): The foregoing survey of cases on the issue of whether committal proceedings are amenable to certiorari appears to lead to this result: (1) In New South Wales, such proceedings are not controllable by prerogative writ because they are a ministerial or executive function. However, it may be noted that the issue has not directly fallen for determination since 1976 and since that time, the proposition that certiorari is not available to control committal proceedings has been the subject of judicial criticism deserving of the greatest respect. (2) Certiorari is available to control committal proceedings in Queensland, South Australia and Western Australia but in the last-mentioned State this question does not appear to have yet been the subject of close judicial scrutiny. (3) Certiorari is not available in Victoria in which State the authorities appear to have proceeded on the pre-1971 New South Wales basis viz, committal proceedings are not an executive function.

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That survey contained the following main cases.

New South Wales Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 at 146 (Jordan CJ); Ex parte Coffey; Re Evans [1971] 1 NSWLR 434 (FC); Connor v Sankey [1976] 2 NSWLR 570 (FC).

Queensland R v Schwarten; Ex parte Wildschut [1965] Qd R 276 (FC). See also Re Gibson (1991) 57 A Crim R 322 at 328 (Qld FC).

South Australia Clayton v Ralphs (1987) 45 SASR 347; 26 A Crim R 43 (FC).

Victoria Brygel v Stewart-Thornton [1992] 2 VR 387; (1992) 67 A Crim R 243 at 390, 246 (JD Phillips J); Tural v Potter (2000) 110 A Crim R 475 (Vic, Eames J).

Northern Territory In Haymon v Deland (1992) 111 FLR 62 Martin CJ held that certiorari could only apply when a magistrate hearing a summary case involving a difficult question of law wrongly committed for trial. Certiorari would lie to have that question resolved. In R v Deland; Ex parte Willie (1996) 6 NTLR 72; 135 FLR 231; 89 A Crim R 577 Kearney J granted certiorari to quash a wrong conviction for traffic offences.

Western Australia Re Robins; Ex parte West Australian Newspapers Ltd (1999) 20 WAR 511 (FC).

[3.1150] Discretion In DPP v Cooke (2007) 168 A Crim R 379 (NSW CA) the District Court judge was held to have made sentencing errors. The Court of Appeal allowed certiorari. Howie JA, with whom the others agreed, said (at 383–384 [13]): Before this court would intervene in what was largely a discretionary judgment made by the judge, the Director must show that there has been an error of law appearing on the face of the record of the court. The record for this purpose includes the reasons expressed by the judge for his determination: see s 69(4) of the Supreme Court Act. It is not enough that this court would have exercised the jurisdiction differently or that errors of fact or reasoning appear in the judgment of the court below.

In Binskin v Watson (1990) 48 A Crim R 33 (NSW CA) Kirby P said (at 37): But relief should be refused on discretionary grounds. However, relief in the nature of certiorari is discretionary. The first opponent resisted the grant of such relief on discretionary grounds. He referred, first, to the availability of an alternative

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[3.1155]

procedure by way of cases stated to the Court of Criminal Appeal. That relief may be had under s 5B of the Criminal Appeal Act 1912 (NSW). I would not regard this alternative procedure as necessarily excluding the beneficial intervention of this court in a clear case of legal error: cf Cook Ex parte Twigg (1980) 147 CLR 15 at 29; Baker and Wilkie; Ex parte Johnston (1980) 55 ALJR 191 at 192. A much more substantial reason for refusing relief is that it was the prosecutor himself who led Judge Herron to the opinion that there was a margin of tolerance in the law (as distinct from a prosecutorial discretion). The remarks of this court on the absence of any such discretion may have the beneficial result of sweeping away any mythology that may have gathered around the Ordinance which is not sustained by an examination of its actual terms. Thirdly, having regard to the conduct of the prosecution in the District Court, I do not consider that it would now be just to reverse the effective acquittal of the first opponent on the basis of an admitted error for which the claimant is in part (by her representatives) responsible. Accordingly, although error has been shown on the face of the record on the first ground argued, it is not such as in my judgment warrants the issue of an order to the District Court for the purpose of quashing the order that ensued: see Herron; Ex parte Leeds City District Council (1976) 1 QB 540 at 574–575; cf Re His Honour Judge Morley QC (1989) 41 A Crim R 459 at 464. Although this conclusion leaves standing uncorrected an order which, on its face, is based on an erroneous statement of law, it is an order of acquittal. And it is one produced directly by the way the proceedings were conducted before Judge Herron.

In R v Judge of District Courts at Brisbane; Ex parte Attorney-General (Qld) (1990) 48 A Crim R 139 (Qld FC) the trial judge had allowed the accused to challenge all women for cause because it was against his religious belief to be tried by them. Certiorari was granted. The discretion is discussed at length including whether there is a discretion to grant or refuse certiorari to the Attorney-General when there was a fundamental defect in the trial. See also R v Ministry for Sea Fisheries; Ex parte NAB [1991] Tas R 70 (FC).

[3.1155] Delay In Edwards and Nosworthy v The Queen (1997) 90 A Crim R 571 (WA, Heenan J) the applicants sought certiorari over their life sentences. The applications were nearly 12 years after the sentences were imposed. Heenan J dismissed the applications. His Honour said (at 572): Delay on the part of an applicant for certiorari is a substantive ground for the refusal of relief: Re Smith and WA Development Corp; Ex parte Rundle (1991) 5 WAR 295.

[3.1160] Alternative remedy available In Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 (CA) Kirby P began a long analysis as follows (at 508): It has long been a principle in the provision of relief by way of the prerogative writs that the relief will commonly be withheld if there is another “equally effective and convenient remedy”. This much was said by Lord Widgery CJ in the case of certiorari in R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 at 728. It was also said by Wilson J and Dawson J (in respect of a claim for prerogative relief against the Family Court of Australia before appeal to the Full Court was exhausted) in R v Ross Jones; Ex parte Green (1984) 156 CLR 185 at 214. The mere existence of an alternative statutory remedy is not necessarily fatal to the provision of the prerogative relief. Thus, certiorari or mandamus would be afforded to an applicant where the statutory remedy was considered “nowhere near so convenient, beneficial and effectual”: see R v Paddington Valuation Offıcer; Ex parte Peachey Property Corporation Ltd [1966] 1 QB 380 at 400.

In Hall v King (1993) 31 NSWLR 654 (CA) the court said (at 659):

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Similar views have been expressed in the United Kingdom. Thus, in Re Preston [1985] AC 835 at 852, Lord Scarman said: [A] remedy by way of judicial review is not to be made available where an alternative remedy exists. This is a proposition of great importance. Judicial review is a collateral challenge: it is not an appeal. Where Parliament has provided by statute appeal procedures … it will only be very rarely that the courts will allow the collateral process of judicial review to be used to attack an appealable decision. In the same case Lord Templeman said (at 862): Judicial review should not be granted where an alternative remedy is available… Judicial review process should not be allowed to supplant the normal statutory appeal procedure. This court has also held that the existence of a right of appeal even to another court or tribunal and the exercise of that right are discretionary grounds for refusing prerogative relief see Commissioner of Police v Gordon [1981] 1 NSWLR 675 at 690 and Ackroyd v Whitehouse (Director of National Parks & Wildlife Service) (1985) 2 NSWLR 239 at 247–248. Where the same court has both appellate and supervisory jurisdiction in respect of the same order and the grounds for challenging that order, if established, would support the grant of either prerogative or appellate relief the court must decide which form of relief will be granted. If the order were set aside on the appeal there would be nothing left for the court to prohibit or quash and vice versa. The case would be one where the party aggrieved had alternative and inconsistent remedies. Accordingly, proceedings in the nature of prohibition and certiorari directed to the Licensing Court in circumstances where appellate relief is or was also available are necessarily discretionary. In our opinion, therefore, a judge hearing an appeal under s 146 of the Liquor Act who is faced with claims for prerogative relief has a discretion to refuse that relief, even where jurisdictional error is alleged. Ordinarily, a second summons claiming prerogative relief should be struck out as an abuse of process.

See also Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 (FC).

[3.1165] Declaration instead of certiorari In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 581; 21–22; 265): It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this court without remedy. The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs. Moreover, had the appellants had advance notice of the Commission’s intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition … Prima facie, at least, these matters suggest that the appellants are entitled to declaratory relief … It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter.”

In Rozenes v Beljajev (1995) 1 VR 533; 126 ALR 481 (FC) the plaintiff prosecution sought certiorari to quash a trial judge’s ruling in a drug case. The court decided (at 572; 520–521) that they might have been precluded from granting certiorari because of the privative clause. The court made declarations instead.

[3.1170] Sentence In Reischauer v Knoblanche (1987) 10 NSWLR 40; 31 A Crim R 241 the claimant had received a sentence from a magistrate. He appealed. At the appeal the judge allowed him to withdraw the appeal but dated the sentence from the withdrawal, thus doubling the sentence. In the Court of Appeal, Kirby P said (at 46–47; 246):

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The Attorney-General then urged that, notwithstanding the error which had occurred (which he did not seek to defend) this court could not make an order in the nature of certiorari because of the terms of s 146 of the Act. That section, which is specific to proceedings of this kind provides: No conviction or order of a Justice…or adjudication upon appeal of the District Court in its criminal and special jurisdiction, shall be removed by any order into the Supreme Court. However, it has been held that, notwithstanding these provisions, certiorari will lie to quash a conviction or order made in manifest want of jurisdiction: see Ex parte Blackwell; Re Hateley (1965) 83 WN (Pt 1) (NSW) 109 and cf Richards v Smyth (unreported, Court of Appeal, 24 December 1985); Bowin Designs Pty Ltd v Sanders (unreported, Court of Appeal, 19 May 1987). Quite apart from the question whether what occurred amounted to an “adjudication upon appeal”, it was conceded by the Attorney-General (rightly I believe) that if what Judge Knoblanche did was in excess of his jurisdiction (as distinct from a wrongful or erroneous decision of that jurisdiction) this court could provide relief of the kind sought. For the reasons which I have stated, I consider that the course which his Honour adopted was not simply a contentious or disputable use of the jurisdiction he had to increase sentence as s 125 allowed on the determination of an appeal. Rather, it is to be classified as an act in excess of jurisdiction. For it could never be a permissible exercise of his jurisdiction, in considering the matter of an application to withdraw an appeal, to dispose of that application by allowing it but at the same time (without a hearing on the merits) increasing the sentence.

Coldrey J granted judicial review in the nature of certiorari when a County Court judge hearing a Magistrates Court appeal increased the sentence without warning: Brand v Parson [1994] 1 VR 252; (1993) 68 A Crim R 147. The New South Wales Court of Appeal did the same in Jones v DPP (1994) 76 A Crim R 422. In DPP v Cooke (2007) 168 A Crim R 379 (NSW CCA) the sentencing judge sentenced for the offences without dealing with the breach of bond caused by those offences. Certiorari granted.

[3.1175] Sentence exceeds the maximum Certiorari lies to quash a sentence which exceeds the maximum: R v Hannan; Ex parte Abbott (1986) 41 NTR 37; 83 FLR 177; 29 A Crim R 178 (Kearney J).

[3.1180] Costs When a judge did not consider the statutory tests nor give adequate reasons for a refusal of a certificate under Costs in Criminal Cases Act 1967 (NSW), certiorari lies: Ramskogler v DPP (1995) 82 A Crim R 128 (NSW CA).

[3.1185] Forms of application High Court Form of order nisi It is ordered that the respondents DO SHOW CAUSE WHY A WRIT OF CERTIORARI should not be issued out of this Court directed to the repondents removing into this Court to be quashed the decision made by them on the … day of … 20 … in the said matter and the order made by them on the … day of … 20 … in the said matter on the grounds that: 1. (insert grounds) 2. A copy of this order nisi and all affidavits and exhibits be served upon the first respondents within seven days of the date hereof, by leaving copies with the Registrar of the … in … and that copies of such documents be served on the second respondents by …

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IT IS DIRECTED THAT: 1. Notice be given to the second respondents requiring them to show cause in … on … the … day of … 20… at … am why the order nisi herein should not be remitted to the (Industrial Relations Court of Australia) or, alternatively, calling on the said respondents to sign a consent pursuant to Order 44 Rule 23 of the Rules of the High Court that the order nisi be remitted to the Industrial Relations Court of Australia for determination. IT IS CERTIFIED THAT: 1. This was a proper matter for the attendance of Counsel in chambers. DEPUTY REGISTRAR

State Courts (except Western Australia and Tasmania) Order sought in the nature of certiorari The plaintiff seeks 1. An order in the nature of certiorari (a) Bringing up the order made by the (second named) defendant made on the … day of … 20 …; (b) quashing that order of the second named defendant; and (c) remitting the matter to the … court to be dealt with according to law.

CHARACTER The word ..................................................................................................................................... Evidence of good character ........................................................................................................ General principles on good character ........................................................................................ Defence to raise good character ................................................................................................. Use of good character ................................................................................................................. Not relevant in all cases ............................................................................................................. Credibility of the accused ........................................................................................................... Good character evidence must be deliberately introduced ........................................................ Defence counsel’s decision on leading character evidence ...................................................... Bad character of accused accidentally admitted ........................................................................ Generally the prosecution cannot lead bad character evidence ................................................ When character is in issue .......................................................................................................... Bad character of accused: principles of admission ................................................................... (Bad) character of accused introduced by prosecution ............................................................. Cross-examination of accused on character ............................................................................... Judge allowed evidence of accused’s bad character ................................................................. Accused introduces his own bad character ................................................................................ Bad character introduced by an accused cannot be confined to defence use only .................. Prosecution rebutting accused’s good character ........................................................................ Judge should warn the defence .................................................................................................. Leave of judge ............................................................................................................................ Granting of leave ........................................................................................................................ Co-accused’s cross-examination to show accused is of bad character ..................................... Bad character of victim .............................................................................................................. Bad character of co-accused ....................................................................................................... Bad character of a witness ......................................................................................................... Judge’s direction on accused’s good character ..........................................................................

[3.1300] [3.1305] [3.1310] [3.1315] [3.1320] [3.1325] [3.1330] [3.1335] [3.1340] [3.1345] [3.1350] [3.1355] [3.1360] [3.1365] [3.1370] [3.1375] [3.1380] [3.1385] [3.1390] [3.1395] [3.1400] [3.1405] [3.1410] [3.1415] [3.1420] [3.1425] [3.1430]

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[3.1300]

[3.1300] The word The word character derives from a Greek word meaning “an instrument for marking or engraving”. It assumes predictability because character does not change, wrongly according to Kirby J in Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465 at 41–42 [106] – [107].

[3.1305] Evidence of good character In PGM v The Queen (2006) 164 A Crim R 426 (NSW CCA) Barr J, with whom the other judges agreed, said (at 434 [35]): The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v The Queen (1997) 76 FCR 279. See also R v Bartle (2003) 181 FLR 1. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106.

Evidence of character (both good and bad) must be confined to the general reputation. A witness can speak thus, “I have known him for a number of years and have heard nothing against him”, and thereby give his personal experience of the accused’s character: R v Rowton (1865) Le & Ca (Leigh & Cave’s Crown Cases) 520; 169 ER 1497; [1861-73] All ER Rep 549 (Crown Cases Reserved: 12 member court).

[3.1310] General principles on good character In Teeluck v State of Trinidad and Tobago [2005] 1 WLR 2421; [2005] 2 Cr App R 378 (PC) their Lordships advised (at 2430–2431; 387–388 [33]): (i) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit the circumstances of the case: Thompson v The Queen [1998] AC 811, following R v Aziz [1996] AC 41 and R v Vye [1993] 1 WLR 471. (ii) The direction should be given as a matter of course, not of discretion. It will have some value and will therefore be capable of having some effect in every case in which it is appropriate for such a direction to be given: R v Fulcher [1995] 2 Cr App R 251, 260. If it is omitted in such a case it will rarely be possible for an appellate court to say that the giving of a good character direction could not have affected the outcome of the trial: R v Kamar The Times, 14 May 1999. (iii) The standard direction should contain two limbs, the credibility direction, that a person of good character is more likely to be truthful than one of bad character, and the propensity direction, that he is less likely to commit a crime, especially one of the nature with which he is charged. (iv) Where credibility is in issue, a good character direction is always relevant: Berry v The Queen [1992] 2 AC 364, 381; Barrow v The State [1998] AC 846, 850; Sealey v The State (2002) 61 WIR 491, para 34. (v) The defendant’s good character must be distinctly raised, by direct evidence from him or given on his behalf or by eliciting it in cross-examination of prosecution witnesses: Barrow v The State [1998] AC 846, 852, following Thompson v The Queen [1998] AC 811, 844. It is a necessary part of counsel’s duty to his client to ensure that a good character direction is obtained where the defendant is entitled to it and likely to benefit from it. The duty of raising the issue is to be discharged by the defence, not by the judge, and if it is not raised by the defence the judge is under no duty to raise it himself: Thompson v The Queen [1998] AC 811.

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Followed: Singh v The State [2006] 1 WLR 146; [2005] 4 All ER 781 at [27] (PC). Other cases Fung v The Queen (2007) 174 A Crim R 169 at 181–182 [57] – [59] (NSW CCA). In De Silva v The Queen [2013] VSCA 339 a defence appeal against conviction was permitted on the basis that the accused’s good character was not led at trial.

[3.1315] Defence to raise good character In Gilbert v The Queen [2006] 1 WLR 2108 (PC) the Board advised (at 2114 [21]): It is still the general rule that it is up to defending counsel and the defendant to ensure that the judge is aware that the defendant is relying on his good character. If this rule is not adhered to, there is a danger that an unscrupulous defendant will be able to manufacture a ground of appeal based upon the failure of the judge to give the proper character direction. The fact that a defendant has no previous convictions recorded against him, does not mean that he inevitably is of good character. This is why it is good practice for the judge, where there is any doubt as to the position, to raise the matter with counsel.

The duty of the defence to raise good character of an accused (point (v)) was repeated in Ramdhanie v State of Trinidad and Tobago [2006] 1 WLR 796 at 802 [14] (PC).

[3.1320] Use of good character The defence can adduce good character evidence to suggest that it is unlikely that the accused committed the crime charged. In Attwood v The Queen (1960) 102 CLR 353 the court said in a joint judgment (at 359): The expression “good character” has of course a known significance in relation to evidence upon criminal trials; for it denotes a description of evidence in disproof of guilt which an accused person may adduce. He may adduce evidence of the favourable character he bears as a fact or matter making it unlikely that he committed the crime charged. The limitations upon the description of evidence admissible under this head are the subject of the much discussed decision of Reg v Rowton. Probably the limitations are not observed in practice but that is not the aspect of the case that concerns us here. What does concern us is that the reasons of the judges show clearly enough that evidence of good character is regarded as really bearing on the probability or improbability of guilt. As Cockburn CJ said: “The fact that a man has an unblemished reputation leads to the presumption that he is incapable of committing the crime for which he is being tried” (at 530; 1502; 552).

[3.1325] Not relevant in all cases In TKWJ v The Queen (2002) 212 CLR 124; 133 A Crim R 574; 193 ALR 7 counsel for the accused had made the forensic decision not to call evidence of good character. The High Court held that decision was legitimate. The failure to lead such evidence did not result in a miscarriage of justice. Notwithstanding some evidence of good character, doubtful relevance does not require a judge to give a full direction. A good example is Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465 where the accused admitted stabbing a neighbour to death but claimed diminished responsibility.

[3.1330] Credibility of the accused In R v Murphy (1985) 4 NSWLR 42; 63 ALR 53 (NSW CA and CCA – five member court) the court said in a joint judgment (at 54):

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This line of authority shows that, whilst the primary significance of evidence of good character is upon the unlikelihood of guilt, there is a corollary to the effect that evidence of good character can be used with reference to credibility of the accused in his denial of the charge, and hence the unlikelihood of his guilt. The omission to give a specific direction on the credibility aspect may or may not be regarded as resulting in a miscarriage, according to the particular circumstances of the case in hand.

(This was the successful appeal by Murphy J against conviction.) Followed in R v Zecevic (Vic) [1986] VR 797; (1986) 21 A Crim R 225 at 810, 236 (CCA). (The High Court reversed the decision in Zecevic v DPP (1987) 162 CLR 645; 25 A Crim R 163; 71 ALR 641 but not on this point, which was not the subject of appeal.) Other cases R v Trimboli (1979) 21 SASR 577; 1 A Crim R 73 (CCA) per King CJ at 578; 74; M v The Queen (1998) 104 A Crim R 154 (WA CCA).

[3.1335] Good character evidence must be deliberately introduced The introduction in court of evidence of good character must be deliberate: R v Stantchev (1995) 81 A Crim R 200 at 207 (Vic CCA). In Gabriel v The Queen (1997) 76 FCR 279 (FCA) the prosecution had wrongly introduced bad character evidence. The defence led good character evidence in an attempt to alleviate the prejudice. Appeal against conviction allowed. It can even be raised in out of court statements for example to police, when no further evidence on character is given in court: R v Stalder (1981) 2 NSWLR 9 (CCA); R v Vye [1993] 1 WLR 471; [1993] 3 All ER 241; (1993) 97 Cr App R 134; R v Teasdale [1993] 4 All ER 290; 99 Cr App R 80; Huges (a Pseudonym) v The Queen [2013] VSCA 338; R v Aziz [1996] 1 AC 168; [1995] 3 All ER 149; [1995] 2 Cr App R 478 (HL); Barrow v The State [1998] 2 WLR 957 (PC). Nevertheless the judge has a residual discretion on whether to direct the jury on the use of good character of this nature, or at all: Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465. It depends on the circumstances of the case.

[3.1340] Defence counsel’s decision on leading character evidence Defence counsel has a duty to ask and the prosecutor to provide details of prior convictions and bad character of an accused who is considering putting the accused’s own character in issue. In R v Hamilton (1993) 68 A Crim R 298 (NSW CCA) Hunt CJ at CL said (at 300): [C]ounsel for an accused … bears a very heavy burden when advising the client in relation to the decision which the client must make as to whether good character should be raised. That advice can only be given properly when it is based on a full knowledge of what may be elicited or led by the Crown should character be raised by the accused. It is not sufficient for counsel merely to rely upon a belief based only on information provided by the accused … [I]t is imperative that the information that the client gives be checked from a source which is reliable before any forensic step is taken to raise character … [T]he information which should be sought is not only the details of the client’s criminal record; counsel should also ask whether there is anything else known to the

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Crown which it would seek to elicit in the event that character were raised. The Crown Prosecutor is expected to supply that information on request. By doing so, the Crown is not thereby prevented from subsequently raising other matters where it could not reasonably have been expected to have known about them at the time of the request for such information – subject, of course, to the usual discretion of the trial judge to exclude those other matters where their admission would lead to unfairness. Where the Crown Prosecutor does not have that information immediately available, he or she is expected to seek that information from the police.

Further (at 301): In the absence of such an undertaking and where inquiries are still continuing, it is imperative that, before taking any forensic step to raise character, counsel for the accused should raise his or her predicament with the trial judge in the absence of the jury. The judge will no doubt be in a stronger position to remove any obstacles in the way of such information being supplied, wherever those obstacles may lie; alternatively, the judge may stand the witness down and proceed with another pending the arrival of that information. What the reaction of the judge will be to the request for an indulgence should ordinarily depend on considerations such as the timeliness of the original request for this information, the stage at which the trial has reached and the prejudice which the accused will suffer if an indulgence is not granted.

Approved: R v Oliverio (1993) 61 SASR 354; 70 A Crim R 5; 18 MVR 157 (CCA); R v Robinson (2000) 111 A Crim R 388 at 392–393 [35] – [43] (NSW CCA); R v Brownlow (2003) 86 SASR 114; 142 A Crim R 201 at [46] (CCA). It is no part of the judge’s function to raise good character of the accused when the defence does not do so: Thompson v The Queen [1998] AC 811 (PC). Before the accused gives evidence the judge should rule on whether the accused could be cross-examined on character: R v Underwood [1998] 1 SCR 77; 155 DLR (4th) 13; 121 CCC (3d) 117 (SCC); R v Robinson (2000) 111 A Crim R 388 at 393 [42] (NSW CCA). A failure to lead good evidence is not always an appealable error: Hajar v The Queen [2015] VSCA 233; Smith v The Queen [2015] VSCA 256.

[3.1345] Bad character of accused accidentally admitted The bad character of the accused was accidentally admitted in R v Knape [1965] VR 469 (CCA). The accused, who represented himself, called a witness in his defence. “How long have you known me?” “About 1960. I met him at Bendigo Training Prison” was the unresponsive answer. The appeal was upheld. The court said (at 473): However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstances of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge should exercise his discretion in favour of the accused.

In Arthurton v The Queen [2005] 1 WLR 949 (PC) the defence asked questions of the good character of the accused.

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The judge: Did you check his antecedent history? Witness: I checked with Sergeant Alleyne. I know he was arrested and charged for a similar offence.

The judge declined to discharge the jury. The board advised that the appeal be allowed. R v McLachlan [2000] VSC 215 (Vic, 24 May 2000, unreported) was a murder retrial. It emerged that an internet site referred to the conviction of the accused and recited the facts wrongly. Hampel J discharged the jury. In R v K (2003) 59 NSWLR 431; 144 A Crim R 468 (CCA) jurors had made internet searches about the accused. Appeal against murder conviction allowed. Authorities were examined and McLachlan (above) approved.

[3.1350] Generally the prosecution cannot lead bad character evidence The prosecution must not lead evidence of bad character when the accused does not give evidence and character is not in issue. In R v Butterwasser [1948] 1 KB 4; [1947] 2 All ER 415; 32 Cr App R 81 Lord Goddard delivering the judgment of the Court of Criminal Appeal said (at 6; 416; 85): [T]here is no authority for the proposition – and it is certainly contrary to what all the present members of the court have understood during the whole of the time they have been in the profession – that, where the prisoner does not put his character in issue, but has merely attacked the witnesses for the prosecution, evidence can be called by the prosecution to prove that he is a man of bad character.

Approved: R v de Vere [1982] QB 75; [1981] 3 All ER 473; 73 Cr App R 352 at 80, 476, 355; R v Kino and Mete [1997] 3 NZLR 24 at 28–29 (CA).

[3.1355] When character is in issue In PGM v The Queen (2006) 164 A Crim R 426 (NSW CCA) the court examined the Evidence Act 1995(NSW) ss 110 and 112. Barr J, with whom the others agreed, said (at 434 [35]): The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v The Queen (1997) 76 FCR 279. See also R v Bartle (2003) 181 FLR 1. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106.

In R v Thomas [2006] VSCA 167 (23 August 2006) Neave JA, with whom the others agreed, examined authorities and said (at [30]): The points made above can be summarised as follows. (a) The test for determining whether the good character of the accused has been put in issue, is not whether a reasonable jury would think that this is the case, but whether the judge is of the opinion that it does so; (b) Counsels purpose in leading the evidence is relevant, but is not determinative; (c) The policy basis for allowing admission of evidence of bad character, where the accused has put his or her character in issue, is to ensure fairness to the prosecution by permitting that evidence to be rebutted; (d) At common law the fact that the accused has attacked the character of a prosecution witness does not, without more, expose him or her to admission of evidence of bad character; and

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(e) Where the threshold requirement for the admission of evidence of bad character is satisfied, the court has a discretion to exclude it.

[3.1360] Bad character of accused: principles of admission Evidence of bad character of an accused can be given in the following circumstances: 1. By the prosecution: (a) Where the acts in question are bound up with an implication that the accused is of bad character, eg an offence in gaol, an escape etc. (b) As part of its proofs the prosecution leads evidence of: (i) similar facts; (ii) uncharged acts; (iii) relationship; (iv) other evidence eg a gaol confession. 2. In the running of the trial: (a) the accused introduces evidence of good character which the prosecution rebuts (eg R v Perrier (No 1) (1991) 1 VR 697; 50 VR 122; 50 A Crim R 122 (CCA); Evidence Act 1958(Vic) ss 109–112); (b) the accused, usually in cross-examination of witnesses, asserts an innocence of other acts which the prosecution rebuts (eg Harriman v The Queen (1989) 167 CLR 590; 43 A Crim R 221; 88 ALR 161); (c) the accused introduces his own bad character for some special forensic reason (eg R v Vaitos (1981) 4 A Crim R 238 at 285–286 (Vic CCA); R v Schneidas (No 2) (1981) 2 NSWLR 713; 4 A Crim R 101 at 114 (NSW CCA)); (d) the defence casts imputations on the character of a prosecution witness, the accused gives evidence and the trial judge gives the prosecution leave to cross-examine on bad character; (e) a co-accused introduces evidence of an accused’s bad character. See also R v Weir [2006] 1 WLR 1885; [2006] 2 All ER 570; [2006] 1 Cr App R 303 (CA).

Article David Ross QC, “One Accused’s Evidence of Another’s Disposition” (2006) 12 Deakin Law Review 177.

[3.1365] (Bad) character of accused introduced by prosecution Many statutes permit the prosecution to lead evidence of bad character of the accused who gives evidence where an imputation has been made on the character of a prosecution witness.

Legislation WA: Evidence Act 1906 s 8(1)(e)(ii); SA: Evidence Act 1929 s 18(2)(d)(ii); Uniform Evidence Acts s 104(4)(b) (credibility);

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Eng: Criminal Evidence Act 1898 s 1(f).

Cases In Phillips v The Queen (1985) 159 CLR 45; 62 ALR 479 the court said (at 49–50; 481–482): But it has long been established that not every assertion by an accused person which reflects injuriously upon the prosecutor or witnesses for the prosecution will have the effect of bringing into play the discretion of the trial judge to allow cross-examination of him with respect to other offences or to his bad character. A mere denial, even an emphatic denial, of the existence of facts alleged against him will not be sufficient, notwithstanding that imputations on the character of the prosecutor or of a prosecution witness may necessarily be implied nor will a defence of consent to a charge of rape involve an imputation on the character of the complainant within the meaning of the section.

The evidence must be intended to put character in issue. In R v Fuller (1994) 34 NSWLR 233; 74 A Crim R 415 (CCA) Hunt CJ at CL said (at 238; 420): In my opinion, therefore, character is raised by the accused’s own evidence for the purposes of s 413B only where the evidence is given with the intention of establishing good character – in the sense of asserting that, by reason of his character, he is unlikely to have comitted the crime charged: Attwood v The Queen (1960) 102 CLR 353 (at 359); R v Stalder (1981) 2 NSWLR 9 (at 16).

[3.1370] Cross-examination of accused on character A trial judge has a discretion to allow the prosecutor to cross-examine an accused on character or credit. In R v Anderson [2000] 1 NZLR 667 (CA) the court following its own and English decisions said (at 676 [39]): [E]ven where the statutory foundation is established, the trial Judge has a discretion to refuse to permit cross-examination of the accused as to previous convictions. That discretion is part of the trial judge’s general power to exclude evidence which would be unfair.

In R v McLeod [1994] 1 WLR 1500; [1994] 3 All ER 254; [1995] 1 Cr App R 591 (CA) the court listed some propositions (at 1512–1513; 267; 604–605): (1) The primary purpose of the cross-examination as to previous convictions and bad character of the accused is to show that he is not worthy of belief. It is not, and should not be, to show that he has a disposition to commit the type of offence with which he is charged … (2) It is undesirable that there should be prolonged or extensive cross-examination in relation to previous offences. This is because it will divert the jury from the principal issues in the case, which is the guilt of the accused on the instant offence, and not the details of earlier ones. Unless the earlier ones are admissible as similar fact evidence, prosecuting counsel should not seek to probe or emphasise similarities between the underlying facts of previous offences and the instant offence. (3) Similarities of defences which have been rejected by juries on previous occasions, for example false alibis or the defence that the incriminating substance has been planted and whether or not the accused pleaded guilty or was disbelieved having given evidence on oath, may be a legitimate matter for questions. These matters do not show a disposition to commit the offence in question; but they are clearly relevant to credibility. (4) Underlying facts that show particularly bad character over and above the bare facts of the case are not necessarily to be excluded. But the judge should be careful to balance the gravity of the attack on the prosecution with the degree of prejudice to the defendant

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which will result from the disclosure of the facts in question. Details of sexual offences against children are likely to be regarded by the jury as particularly prejudicial to an accused and may well be the reason why in R v Watts [1983] 3 All ER 101, the court thought the questions impermissible. (5) If objection is to be taken to a particular line of cross-examination about the underlying facts of a previous offence, it should be taken as soon as it is apparent to defence counsel that it is in danger of going too far. There is little point in taking it subsequently, since it will not normally be a ground for discharging the jury. (6) While it is the duty of the judge to keep cross-examination within proper bounds, if no objection is taken at the time it will be difficult thereafter to contend that the judge has wrongly exercised his discretion. In any event, this court will not interfere with the exercise of the judge’s discretion save on well-established principles. (7) In every case where the accused has been cross-examined as to his character and previous offences, the judge must in the summing up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering.

[3.1375] Judge allowed evidence of accused’s bad character Examples of imputations against a prosecution witness where the judge allowed evidence of the accused’s bad character include the rape case of Phillips v The Queen (1985) 159 CLR 45; 62 ALR 479 in which the prosecutrix was alleged by the defence to be a dope smoker. In Amoe v DPP (Nauru) (1991) 66 ALJR 29; 103 ALR 595; 57 A Crim R 244 (HC) it was alleged by the defence that the witness invented his evidence. Note: There is a way around this. If you must, suggest the witness is biased (R v Umanski [1961] VR 242) or unreliable from some disability. See also Bias at [2.1800].

[3.1380] Accused introduces his own bad character In rather unusual circumstances an accused will introduce evidence of his own bad character. See also David Ross QC, “Accused Introduces His Own Bad Character” (2003) 8 Deakin L Rev 291–303; R v White (2003) 7 VR 442 (CA).

[3.1385] Bad character introduced by an accused cannot be confined to defence use only In B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 an accused was charged with sexual offences against his daughter between December 1985 and December 1988. He denied the charges. At trial the accused put into evidence that he had previously committed acts of indecency upon the same daughter, and that he had pleaded guilty to those acts in December 1984. He was thereafter away from the family home until she invited him back. The prior indecency was introduced to show that he had returned home repentant and fallen victim to false allegations by a rebellious daughter to force him from the house. Mason CJ and Brennan and Deane JJ opined that once the evidence was admitted it tended to establish guilt and provide corroboration of the daughter’s evidence. Deane J said (at 611):

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It is simply not open to an accused in a criminal trial to lead evidence on the basis that the jury can use it for the purposes for which the accused leads it but cannot use it as evidence, and as corroboration of prosecution evidence, of his guilt. Nor can an accused make the use of evidence as corroboration of other prosecution evidence impermissible as a matter of law by moulding his own case in a way which admits the truth of the evidence but seeks to gain advantage from it.

(Strangely, the decision of the Federal Court from which this appeal was brought is reported as R v K (1992) 34 FCR 227; 59 A Crim R 113.)

[3.1390] Prosecution rebutting accused’s good character Generally An accused person can deliberately raise good character by cross-examination of a prosecution witness or by leading evidence. Such an issue can only be raised by the defence. If the prosecution has evidence to the contrary, a prosecutor must seek the judge’s leave to introduce that evidence in rebuttal. In PGM v The Queen (2006) 164 A Crim R 426 (NSW CCA) Barr J, with whom the others agreed, said (at 434 [35]): The raising of good character requires a conscious decision on the part of the accused. It has been held that such evidence must be intentionally and deliberately adduced for the purpose of raising character before the Crown may be granted leave to cross-examine: Gabriel v The Queen (1997) 76 FCR 279. See also R v Bartle [2003] 181 FLR 1. So good character is not raised, for example, where a witness volunteers the evidence: R v Redd [1923] 1 KB 104 at 106.

Legislation Uniform Evidence Acts ss 110 and 112; Qld: Evidence Act 1977 s 15; WA: Evidence Act 1906 s 8(d)(ii); SA: Evidence Act 1929 s 18(d)(ii); NZ: Crimes Act 1961 s 341(2).

[3.1395] Judge should warn the defence The prosecutor and judge should warn the defence of a likely application to introduce the bad character of the accused. See R v Gok [1959] 2 QB 340; 2 All ER 97; 43 Cr App R 138 (CA). Devlin J, delivering the judgment of the court, said (at 349; 101; 147): In cases of this sort where there is no hard and fast rule, some warning to the defence that it is going too far is of great importance; and it has always been the practice for prosecuting counsel to indicate in advance that he is going to claim his rights … or for the judge to give the defence a caution.

In R v Anderson [2000] 1 NZLR 667 (CA) such a warning was described as “good practice” (at 678).

[3.1400] Leave of judge Leave of the trial judge must first be sought and obtained before cross-examination of an accused on his character or prior convictions: Phillips v The Queen (1985) 159 CLR 45; 62 ALR 479.

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This arises where an accused has given evidence of his own good character or the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or of a witness for the prosecution. In jurisdictions where Uniform Evidence Acts apply, a judge considering the granting of leave to cross-examine the accused on character must take account of s 192: Stanoevski v The Queen (2001) 202 CLR 115; 177 ALR 285; 118 A Crim R 247. In Matusevich v The Queen (1977) 137 CLR 633; 15 ALR 117 a prisoner was moved to a cell with Messrs Matusevich and Thompson, and later was found killed by blows from an axe. At the trial of Mr Matusevich for murder, evidence was given that Mr Thompson was insane. Mr Matusevich gave evidence that he had not committed crimes of violence. The prosecutor, without seeking leave, cross-examined to show that he had previously escaped and had committed house-breakings which were offences of a violent nature. The appeal was allowed. Aickin J gave the leading judgment. His Honour said (at 655): It is sufficient to say that if such cross-examination is permissible at all, it should not be allowed in the absence of prior permission from the trial judge and that cases where it may prove to be proper to grant such permission are likely to be extremely rare.

In R v Sarek [1982] VR 971 (CCA) the accused was charged with heroin trafficking. He gave evidence at trial saying in chief that he had been in trouble with the police three or four times, but never over drugs. Without leave, the prosecutor cross-examined to show all his convictions and sentences. The solicitor appearing for the accused declined the judge’s invitation to apply for a discharge of the jury. One ground of appeal was improper cross-examination. (Another was incompetence of the representation.) McInerney J delivered the leading judgment. He referred to Matusevich and said (at 980): It is clear from the decision of the High Court in that case that the cross-examination by the Crown prosecutor, without having first obtained leave of the trial judge so to do, was not a mere irregularity: it involved the admission of inadmissible evidence. By cross-examining on those prior convictions without having obtained the leave of the learned trial judge to do so counsel for the prosecution deprived counsel for the accused of the opportunity of submitting to the learned trial judge that such cross-examination should not be permitted and deprived the trial judge of an opportunity of exercising his discretion as to whether or not he should permit that cross-examination.

The appeal was allowed. In the Northern Territory where the Evidence Act did not require the judge’s leave before such cross-examination, the leave was still required: R v Darby (1993) 3 NTLR 74; 113 FLR 66 (Martin CJ). The same position obtains in South Australia: R v Brownlow (2003) 86 SASR 114; 142 A Crim R 201 at [37] – [44] (CCA). In R v Kino and Mete [1997] 3 NZLR 24 (CA) Eichelbaum CJ delivering the judgment of the court said (at 9): Leave to cross-examine an accused about bad character should be sought in all instances, however obvious the case may appear to the prosecution: Phipson on Evidence (13th ed 1982) at 237.

In each of the above cases, a co-accused giving evidence was wrongly cross-examined about the bad character of the accused who did not give evidence. Appeals allowed.

[3.1405] Granting of leave In Matusevich v The Queen (1977) 137 CLR 633; 15 ALR 117 Aickin J said (at 655; 133): [C]ases where it may prove proper to grant such permission are likely to be extremely rare.

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In R v Crawford [1965] VR 586 (CCA) Smith J said (at 591): The mere fact that some pieces of evidence are elicited or some questions asked, by counsel for the accused which have some tendency to show the accused in a good light or to suggest good conduct on his part, does not create a prima facie case for the exercise of the discretion to allow cross-examination of the accused under the sub-section. Such cross-examination is to be allowed only when the circumstances are such as to provide a compelling need to allow it in the interests of justice. As I read the cases, their assertion of the necessity for the circumstances to be of an exceptional nature is put in the broadest way. It goes beyond the situation in which the matters founding the application for leave to cross-examine are relevant to the issues in the case. Whether those matters be relevant to the issues or not, the discretion to allow the cross-examination should be exercised only in exceptional circumstances.

Applied: R v McCaul & Palmer [1983] 2 VR 419; (1983) 9 A Crim R 70 at 426, 78–79 (CCA).

[3.1410] Co-accused’s cross-examination to show accused is of bad character When an accused has given evidence against a co-accused, leave of the judge must be obtained before there can be cross-examination of the accused to show he is of bad character: R v Stantchev (1995) 81 A Crim R 200 at 204–207 (Vic CCA). In England there is no discretion: Murdoch v Taylor [1965] AC 474; [1965] 1 All ER 406; 49 Cr App R 119 (HL); Lui Mei-Lin v The Queen [1989] 1 AC 288; [1989] 1 All ER 359; 88 Cr App R 296 (PC). In Australia it seems there is. The appropriate submissions, for example for separate trials, must be put to the trial judge if it is sought by one accused to give evidence but avoid the risk of his bad character being put by a co-accused. This point arose in R v Ditroia & Tucci [1981] VR 247 (CCA). Mr Ditroia had priors but wanted to give evidence. The court said (at 252): Ditroia was aware before his trial of the matters which form the foundation for this argument. His counsel either knew, or should have known, of such matters. It is impermissible to withhold an argument from presentation at the time when reliance should be placed on it and then in appellate proceedings, if the trial result is adverse, to raise the point for the first time.

[3.1415] Bad character of victim Bad character of victim is admissible if relevant (see Relevance at [18.2400]). In R v Anderson (2000) 1 VR 1; 111 A Crim R 19 (CA) Winneke P giving the leading judgment said (at 12; 30 [30]): [I]t would be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial (see Re Knowles [1984] VR 751).

In R v Ellem (No 1) [1995] 2 Qd R 542 Lee J ruled (at 544): Quite clearly evidence of this kind and in particular evidence of the deceased’s prior relevant conduct and disposition towards the accused is admissible if it shows the accused’s state of mind at the time of the incident in question and if it explains in context his conduct in acting as he did. It may clearly be relevant to the defence of self-defence where the belief of the accused person on reasonable grounds that he could not otherwise preserve himself from death or grievous bodily harm, unless he acted as he did, is an essential feature of the defence.

In Re Knowles [1984] VR 751 (CCA) the accused had killed the woman victim after what he said was an unexplained unprovoked knife attack on him by her. Not called at trial were two men, previously close to her, who would have recognised this same characteristic in the victim. His appeal against his murder conviction failed and it did not refer to the two

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witnesses. The petition of mercy succeeded. It was held that the accused did not have to know of this violent propensity of the victim before the evidence was called. It was relevant because it tended to support self defence. In R v Masters [1987] 2 Qd R 272; (1986) 24 A Crim R 65 (CCA) the accused was convicted of murder. He had gone to the victim to find out whether the victim had raped Mr Masters’ wife by having intercourse with her when she was drunk. The accused picked up a piece of wood on the way because he had been told the victim was a violent man, and believed it. He argued that he had acted in self defence when the victim picked up a tomahawk. The trial judge excluded the evidence of what the victim had been told and the evidence of the persons who told him of the victim’s violence. It was held that the evidence was wrongly excluded. The appeal was allowed. The test of admissibility is relevance. In R v PP (2002) 135 A Crim R 575 (Vic, Nettle J) the accused was charged with murder. His Honour ruled in the convictions for violence of the victim as relevant to self defence and provocation. The non-violent convictions were excluded. See also R v Cakovski (2004) 149 A Crim R 21 (NSW CCA); R v Mogg (2000) 112 A Crim R 417 (Qld CA) per Thomas JA at 432 [79].

[3.1420] Bad character of co-accused The bad character of a co-accused is admissible if relevant. In R v Mussone [2007] 1 WLR 2467 (CA) the court held a trial judge has no power to prevent an accused from leading evidence of the bad character of a co-accused on the ground of unfairness to the co-accused. In R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 (CCA) Mr McKenzie alleged duress by Mr Gibb. The charge was murder. The trial judge curtailed the evidence showing Mr Gibb’s violence, and his reputation for violence. The appeal was allowed: see 168–171; 398–402. The decision in Gibb & McKenzie followed R v Lowery and King (No 3) [1972] VR 939. The court said (at 168–169; 399): In support of the contention that the learned judge’s ruling was erroneous, counsel relied first upon the statement by this court in R v Lowery & King (No 3) [1972] VR 939, at pp 944–5 where the court said: It is, however, established by the highest authorities that in criminal cases the Crown is precluded from leading evidence that does no more than show that the accused has a disposition or propensity or is the sort of person likely to commit the crime charged … A little later the court said: It is, we think, one thing to say that such evidence is excluded when tendered by the Crown in proof of guilt, but quite another to say that it is excluded when tendered by an accused in disproof of his own guilt. We see no reason of policy or fairness which justifies or requires the exclusion of evidence relevant to prove the innocence of an accused person. These passages were expressly approved by the Privy Council: see Lowery v R [1974] AC 85, at 102. The passage last quoted is followed by: That evidence may, of course, show disposition or propensity of a co-accused to commit the crime charged, but this is also the case where such evidence is admissible when adduced by the prosecution as relevant to prove some such issue as intent, or identity, or to rebut accident or mistake.

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In R v Mathers (1988) 38 A Crim R 423 (Vic CCA) a car was speeding and an occupant of it killed. The driver Mr Kavanagh said he was being chased by a car driven by Mr Mathers who had earlier threatened him. Both the drivers were charged. On behalf of Mr Kavanagh evidence was led of Mr Mathers’ bad character and previous convictions. Mr Kavanagh was acquitted. Mr Mathers was convicted and appealed. The appeal was dismissed. The evidence was properly led. The solution might have been for Mr Mathers to apply for a separate trial, but he had not done so.

[3.1425] Bad character of a witness In R v Hanrahan (1964) 87 WN (NSW) 458; [1967] 2 NSWLR 717 (CCA) Manning J said (at 460; 718): I think it undoubted … that it is permissible with a view to impeaching a witness’ credit to bring forward evidence of the general reputation for untruthfulness of a witness although not of particular facts, from which the inference of untruthfulness well might be drawn.

In R v Richardson [1969] 1 QB 299; [1968] 2 All ER 761; (1968) 52 Cr App R 317 (CCA) the court said (at 304–305; 764–765; 323): It was considered in detail by Lord Goddard CJ in R v Gunewadene [1951] 2 KB 600, which in this respect was unaffected by and indeed approved of in Toohey v Metropolitan Police Commissioner [1965] AC 595. The legal position may be thus summarised: 1. A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony. 2. The witness called to impeach the credibility of another witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving an opinion based merely on general reputation. 3. But, whether his opinion as to the impugned witness’s credibility be based simply upon the latter’s general reputation for veracity or upon personal knowledge, the witness cannot be permitted to indicate during his examination-in-chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them.

Approved: Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 per McHugh J at [35]; Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 per McHugh, Gummow and Hayne JJ at 455 [46]; Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 per McHugh J at 21 [48]; Bell v The Queen (1985) 7 FCR 555; 63 ALR 433 (FCA) per Wilcox and Miles JJ at 563; 440–441; Note that the common law probably has been abrogated by Uniform Evidence Acts ss 102 and 103. See also Graham v The Queen (1998) 195 CLR 606; 157 ALR 404; 102 A Crim R 438.

[3.1430] Judge’s direction on accused’s good character In Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465 the High Court held by a majority of three to two that a judge is not obliged to direct the jury on how evidence of the accused’s good character may be used. McHugh, Gummow and Hayne JJ said further that

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there was no issue at the trial on whether the accused had told the truth out of court, so the jury would not have been aided by a direction. The good character of a witness for the Crown is not to be contrasted with the good character of the accused. In R v Trimboli (1979) 21 SASR 577; 1 A Crim R 73 (CCA), King CJ said (at 578; 74): 1. It is desirable in all cases in which there is evidence as to the accused’s good character that a direction be given as to the use to which that evidence should be put. 2. No particular form of words is necessary, but the direction should convey to the jury that they should bear in mind the accused’s previous good character when considering whether they are prepared to draw from the evidence the conclusion of the accused’s guilt. They should bear it in mind as a factor affecting the likelihood of the accused committing the crime charged. The judge may add, if he thinks it appropriate in the particular case, that the jury should consider the accused’s previous good character in assessing the credibility of any explanations given by him and, when he has given evidence, his credibility as a witness. 3. The judge is, of course, at liberty to remind the jury that people do commit crimes for the first time and that evidence of previous good character cannot prevail against evidence of guilt which they find to be convincing notwithstanding the accused’s previous character. This last consideration may apply with particular force to certain types of crime and the judge is, of course, free to point that out to the jury if he sees fit.

In R v Warastra (1991) 54 A Crim R 351 (Vic CCA) the court said (at 356): In this State, for many years, good character evidence has almost without exception been followed by an appropriate direction as to the use which the jury might properly make of that evidence. Since Zecevic [1986] VR 797; 21 A Crim R 225, the usual directions have expanded. In our opinion, generally speaking, such a direction should be given. It would be only in a rare case, where the accused gives evidence on oath, and his credibility is of crucial importance, that an omission to give such a direction could be justified.

(The reference to R v Zecevic [1986] VR 797; (1986) 21 A Crim R 225 (CCA) means that a direction on good character includes that character goes to credibility. See above Credibility of the accused.) Applied: R v Martin (1996) 65 SASR 590; 86 A Crim R 198 (CCA). See also Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49 at 341, 345 (CLR); R v Lapuse [1964] VR 43 at 45–46 (CCA).

CHART To explain the evidence in a complicated case ......................................................................... Chart of defence submissions ..................................................................................................... Exhibit ......................................................................................................................................... Chart showing complicated commercial transactions ................................................................ Legislation ...................................................................................................................................

[3.1600] [3.1605] [3.1610] [3.1615] [3.1620]

[3.1600] To explain the evidence in a complicated case In Butera v DPP (Vic) (1987) 164 CLR 180; 30 A Crim R 417; 76 ALR 45 Mason CJ, Brennan and Deane JJ said (at 190; 51; 423): The general rule that witnesses must give their evidence orally is not without exception. In Smith v The Queen (1970) 121 CLR 572, a chart had been prepared by a witness to explain complicated

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business transactions. The chart was admitted in evidence, though what it showed could have been described – albeit laboriously – in oral evidence. This Court agreed with the view expressed by the Court of Criminal Appeal (sub nom Reg v Mitchell [1971] VR 46, at pp 59–60 that the chart was rightly admitted: The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts. The practice of requiring witnesses to give their evidence orally should not be waived lightly, especially if there be a risk that writing will give undue weight to that evidence to the disadvantage of an accused person. But the practice is not immutable. If a witness writes out a proof of his evidence and swears to its truth or if a written transcript of part of the witness’ oral evidence is produced, and if the task of the jury can be facilitated by admitting the document in evidence, there is no absolute bar against doing so. For example, a written document may prove more convenient than oral evidence as a foundation for cross-examination upon its contents or it may be a valuable aide-memoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room. A further relevant consideration is the risk that documentary evidence may impair public understanding of the proceedings.

See also R v Tripodina & Morabito (1988) 35 A Crim R 183 (NSW CCA).

[3.1605] Chart of defence submissions Such a chart was not to be put to the jury when the case was not exceptional: R v Savvas (1989) 45 A Crim R 38 (NSW, Hunt J).

[3.1610] Exhibit A chart being a summary of the documentary evidence may be an exhibit: R v Collins (1986) 44 SASR 214; 32 A Crim R 31 (CCA). A chart showing the summary of relevant telephone calls was tendered in R v Le (2003) 138 A Crim R 1 at 4 [8] (SA CCA) and in R v Burns and Collins (2001) 123 A Crim R 226 at 230 [18] (SA CCA).

[3.1615] Chart showing complicated commercial transactions Charts to show complicated commercial transactions have been admitted in a number of cases. Almost invariably a diagram is used to show the movement of cheques and other moneys. In R v Mitchell [1971] VR 46 (CCA) Winneke CJ, delivering the judgment of the court, said (at 59–60): The chart was nothing but a convenient record of a series of highly complicated cheque transactions which had been proved by other evidence, and was likely to be of considerable assistance to the jury. Had they all been accountants, doubtless after considerable time they could have prepared such a chart for themselves. The use of such charts and other time-saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts.

Approved: Smith v The Queen (1970) 121 CLR 572 at 577; Butera v DPP (Vic) (1987) 164 CLR 180; 30 A Crim R 417; 76 ALR 45 at 190.

[3.1805]

CHILD

281

Followed: R v Tripodina & Morabito (1988) 35 A Crim R 183 at 196 (NSW CCA). Charts were used for the same purpose in: DPP (Cth) v Carter [1998] 1 VR 601; (1997) 91 A Crim R 222 at 611, 233 (CA); R v Chen (1993) 66 A Crim R 154 at 157 (Vic CCA); R v Burns and Collins (2001) 123 A Crim R 226 at 238 [44] (SA CCA).

[3.1620] Legislation Some legislation provides for the admission of a chart into evidence to show complicated evidence simply: Uniform Evidence Acts s 29(4); WA: Evidence Act 1906 ss 27A, 27B; NZ: Evidence Act 2006 s 133.

CHILD Witness ........................................................................................................................................ Understanding of oath ................................................................................................................ Judge alone decides competence ................................................................................................ Evidence not on oath .................................................................................................................. Recorded interview as evidence ................................................................................................. Expert evidence ........................................................................................................................... Interview of child ........................................................................................................................ Accommodation syndrome .........................................................................................................

[3.1800] [3.1805] [3.1810] [3.1815] [3.1820] [3.1825] [3.1830] [3.1835]

[3.1800] Witness A judge is not to exclude a child’s evidence by reason of age alone. There is no precise age after which a child can give evidence. [T]here is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court: R v Brasier (1779) 1 Leach 199 at 200; 168 ER 202 at 203.

A five-year-old girl’s evidence should have been received unless the child was incapable of giving intelligible testimony: In DPP v M [1997] 2 All ER 749 (QBD) Phillips LJ, giving the leading judgment, said (at 753): Care must always be taken where a question is raised as to whether a young child is capable of giving intelligible testimony. But where the child is so capable, the court does not enjoy some wider discretion to refuse to permit the child’s evidence to be given, subject of course to rules of evidence, such as s 78 of the Police and Criminal Evidence Act 1984, which apply to all witnesses. A child will be capable of giving intelligible testimony if he or she is able to understand questions and to answer them in a manner which is coherent and comprehensible.

[3.1805] Understanding of oath A child’s understanding of the divine sanction before being sworn was discussed in R v Hayes [1977] 1 WLR 234; [1977] 2 All ER 288; 64 Cr App R 194 (CA) Bridge LJ, giving the judgment of the court, said (at 236–237; 291; 196):

282

ROSS ON CRIME

[3.1810]

It is unrealistic not to recognise that, in the present state of society, amongst the adult population the divine sanction of an oath is probably not generally recognised. The important consideration, we think, when a judge has to decide whether a child should properly be sworn, is whether the child has a sufficient appreciation of the solemnity of the occasion, and the added responsibility to tell the truth, which is involved in taking an oath, over and above the duty to tell the truth which is an ordinary duty of normal social conduct. Against the background of those general considerations of principle, we think it right also to approach the matter on the footing that this is very much a matter within the discretion of the trial judge and we think that this Court, although having jurisdiction to interfere if clearly satisfied that the trial judge’s discretion was wrongly exercised, should hesitate long before doing so. The judge sees and hears the boy or girl, which means very much more than the bare written word, and it may easily be that the judge comes to the conclusion that the way in which he has initially been phrasing his questions has been such that the child to whom the questions are directed has not sufficiently understood them, and he may then attempt to phrase his questions in a different way.

The doubts in Australian States about the application of Hayes are reviewed by Zeeman J in R v Mansell (1993) 68 A Crim R 572 (Tas). That case was subsequently reviewed in Attorney-General’s Reference (No 2 of 1993) (1994) 4 Tas R 26; 73 A Crim R 567 (CCA). In R v Simmons (1997) 68 SASR 81; 93 A Crim R 32 (CCA) Perry J, giving the leading judgment, said (at 89; 40): The presence or absence of a religious belief or belief in God, while not irrelevant, would, in my view, not necessarily have to be demonstrated in order to justify the administration of an oath to a child of seven or older.

A child witness must know the difference between the truth and a lie: R v Cooper (2007) 175 A Crim R 94; 214 FLR 92 (ACT, Higgins CJ); R v T [1998] 2 NZLR 257 (CA); Attorney-General’s Ref (No 2 of 1993) (1994) 4 Tas R 26; 73 A Crim R 567 (CCA); R v Schlaefer (1992) 57 SASR 423; 12 A Crim R 345 (CCA) (noted 16 Crim LJ 433); R v Vincent (1990) 50 A Crim R 25 (NSW CCA). The understanding of the oath does not depend on age alone: Nichols v Police (2005) 91 SASR 232 (Gray J).

[3.1810] Judge alone decides competence The competence of the child is for the judge alone to decide. Counsel does not play any part. In RA v The Queen (2007) 175 A Crim R 221 (NSW CCA) the court looked at Uniform Evidence Acts ss 12 and 142. McClennan CJ and CL, with whom the others agreed, said (at 224 [11]): A person is presumed to be competent unless the contrary is proved. Any question of competence may be raised by the defence and an inquiry contemplated by subs (7) may be undertaken. Neither the defence nor the prosecution carries an onus. It is for the court to determine whether it is satisfied that there is proof that a person is incompetent. That question must be determined on the balance of probabilities s 142(1).

In R v Caine (1993) 68 A Crim R 233 (Vic CCA) the court said (at 238): The determination of a child’s competency involves a question as to the admissibility of that child’s evidence. The facts found and decision to be reached must therefore plainly be matters for the judge alone. The determination of such matters must undoubtedly require the judge to ask questions of the child. In doing so by convention and common sense (if not by law) he is not to be bound by ordinary rules of evidence. The discharge of this duty can in no way involve the jury. Nor can it involve counsel in the sense that he has no right to question the child: Lyons (1899) 15 VLR 15.

[3.1825]

CHILD

283

As was pointed out in Caine, the trial judge has to apply the correct test in determining whether the oath should be administered to a child. A wrong test, and an appeal against conviction may succeed. See also R v T [1998] 2 NZLR 257 (CA).

[3.1815] Evidence not on oath Evidence not on oath can be given by a child. Some legislation specifies an age. Uniform Evidence Acts s 13 (no age given); Qld: Evidence Act 1977 s 9; WA: Evidence Act 1906 s 106C (12 years); SA: Evidence Act 1929 s 12 (7 years); NZ: Evidence Act 2006 s 77 (under 12 years).

[3.1820] Recorded interview as evidence Legislation allows the video recording of a child in conversation with the police. The video is the evidence-in-chief at least. Qld: Evidence Act 1977 ss 21AC, 21AD, 93A; WA: Evidence Act 1906 ss 106HA–106HD; Tas: Evidence (Children and Special Witnesses) Act 2001 ss 3 and 5; NSW: Evidence (Children) Act 1997 s 11; Vic: Criminal Procedure Act 2009ss 366–376. In WA the recorded evidence is called VRI from visually recorded interview: Evidence Act 1906 s 106HA(3). In Victoria the recorded evidence is called a VATE tape: R v Davies (2005) 153 A Crim R 217 at 224 [25] – [26]. The term comes from the Chief Commissioner’s Instructions. It is an acronym of “Video and Audio Taped Evidence”. Ordinarily that video should not be an exhibit: R v H [1999] 2 Qd R 283; (1998) 104 A Crim R 335 (CA); R v Lewis (2002) 137 A Crim R 85 (Vic CA); R v BAH (2002) 5 VR 517; 135 A Crim R 150 R v Davies (2005) 153 A Crim R 217 at 224 [25] – [28] (Vic CA).

[3.1825] Expert evidence On the same day as deciding DPP v M [1998] QB 913; [1998] 2 WLR 604; [1997] 2 All ER 749, the same two judges considered judgment in G v DPP [1998] QB 919; [1998] 2 WLR 609; [1997] 2 All ER 755 (QBD). Where the guidelines for interview of a child had not been followed expert evidence was admissible. However, opinion evidence could not be given on whether a particular child was reliable or truthful. The two children in this case were aged six and eight. Their evidence-in-chief consisted of video interviews. But in R v JH [2006] 1 Cr App 195 (CCA) the court allowed the fresh evidence of Professor Conway who said that the complainant suffered from childhood amnesia. Appeal allowed. See also s 108C of the Uniform Evidence Acts.

284

ROSS ON CRIME

[3.1830]

[3.1830] Interview of child Principle In M v J [1989] Tas R 212; (1989) 44 A Crim R 373 (Tas) Neasey J held (at 220; 381): The presence of a police officer asking investigatory questions of a child in the absence of a parent or other responsible adult is always likely to be intimidatory and unsettling to the child.

Approved: R v LLH (2002) 132 A Crim R 498 at 505 (NT, Mildren J). The contamination of the evidence of a five-year-old child witness by poor interviewing resulted in a conviction being quashed and an entry of acquittal in R v Warren (1994) 72 A Crim R 74 (NSW CCA). In R v D (2003) 141 A Crim R 471 (Qld CA) the child’s mother had spoken to the six years eight months complainant. That had the potential to infect a poor interview. Conviction quashed, retrial ordered. In G v DPP [1998] QB 919; [1998] 2 WLR 609; [1997] 2 All ER 755 (QBD) Phillips LJ said (at 926; 615; 759): The Report of the Inquiry into Child Abuse in Cleveland (1988) (Cm 412) (“the Cleveland Report”), conducted by Dame Elizabeth Butler-Sloss, demonstrated the need for meticulous care and for expertise in interviewing young children. Dame Elizabeth laid down guidelines for this exercise in her report, and these have been followed by the Home Office and Department of Health Memorandum of Good Practice (1992) for those preparing video recorded interviews for criminal proceedings. Where the guidelines and the memorandum have not been followed, evidence of young children can be dangerously suspect. This is a legitimate area for expert evidence, although this will be of much greater value to a jury with no knowledge of this topic than to a magistrate or judge who may have great experience of it.

Legislation Cth: Crimes Act 1914 s 23WB.

[3.1835] Accommodation syndrome Accommodation syndrome is said to explain why especially a child victim of a crime, particularly a sexual crime, delays in making a complaint. Further owing to a feeling of helplessness and powerlessness, disclosure is in small amounts and inconsistent. Such evidence is usually sought to be led through an expert. Appeal courts have struck down convictions which have resulted after the prosecution has led accommodation syndrome evidence, or evidence of that sort. Generally the evidence has been held inadmissible because it is not beyond a juror’s unaided understanding: R v C (1993) 60 SASR 467; 70 A Crim R 378 (CCA) where New Zealand, American and Canadian authority was considered: R v J (1994) 75 A Crim R 522 (Vic CCA); R v F (1995) 83 A Crim R 502 (NSW CCA). Evidence of accommodation syndrome was led by the defence at trial apparently without objection from the prosecution in the case which on appeal became Attorney-General’s Reference (No 1 of 1992) (1993) 1 Tas R 349; 67 A Crim R 415 (CCA). See also Age at [1.3200]; Confession (Confession by a child) at [3.5405]; Doli incapax at [4.4400]; Juvenile at [10.2600]; and Young person at [25.100].

[3.2010]

CIRCUMSTANTIAL EVIDENCE

285

CIRCUMSTANTIAL EVIDENCE Definition ..................................................................................................................................... Links in a chain or strands in a cable ........................................................................................ Inference to establish an element ............................................................................................... Fine dividing line between conjecture and inference ................................................................ Consider all the evidence ........................................................................................................... No other circumstances to weaken or destroy the inference .................................................... All other reasonable hypotheses must be excluded ................................................................... Reasonableness of hypothesis consistent with innocence ......................................................... Admissibility ............................................................................................................................... No case submission .................................................................................................................... The Peacock Direction ................................................................................................................

[3.2000] [3.2005] [3.2010] [3.2015] [3.2020] [3.2025] [3.2030] [3.2035] [3.2040] [3.2045] [3.2050]

[3.2000] Definition In Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181; 97 ALR 161 Dawson J said (at 579; 164; 184): Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved.

Almost a month earlier in Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 Deane, Dawson, Gaudron and McHugh JJ said (at 211; 541; 159): Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded. See Hodge’s Case (1838) 2 Lewin 227; 168 ER 1136; Peacock v The King (1911) 13 CLR 619 at 634, 651–652, 661; Martin v Osborne (1936) 55 CLR 367 at 375, 381; Thomas v The Queen (1960) 102 CLR 584 at 605–606; Plomp v The Queen (1963) 110 CLR 234 at 252; Barca v The Queen (1975) 133 CLR 82 at 104, 109.

[3.2005] “Links in a chain” or “strands in a cable” The metaphor comes from Wigmore on Evidence. In Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181; 97 ALR 161 Dawson J said (at 579; 164; 184): On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where – to use the metaphor referred to by Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412–414 – the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning.

In R v Kotzmann [1999] 2 VR 123; (1999) 105 A Crim R 243 (CA) Callaway JA said (at 129; 248 [18]): The advantage of the distinction between an accumulation of detail (“strands in a cable”) and reasoning where each step depends on a previous step (“indispensable links in a chain”) is the advantage of determinancy. It is always possible, as a matter of logic, to say whether an inference is of one character or another. Two disadvantages are that it is relatively easy to make a mistake in deciding the character of the inference and that human beings come to perfectly sensible conclusions every day without analysing their processes of reasoning.

[3.2010] Inference to establish an element An element may be established by inference.

286

ROSS ON CRIME

[3.2015]

In Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181; 97 ALR 161 Dawson J said (at 579–580; 165; 185): As I have said, the prosecution bears the burden of proving all the elements of the crime beyond reasonable doubt. That means that the essential ingredients of each element must be so proved. It does not mean that every fact – every piece of evidence – relied upon to prove an element by inference must itself be proved beyond reasonable doubt. Intent, for example, is, save for statutory exceptions, an element of every crime. It is something which, apart from admissions, must be proved by inference. But the jury may quite properly draw the necessary inference having regard to the whole of the evidence, whether or not each individual piece of evidence relied upon is proved beyond reasonable doubt, provided they reach their conclusion upon the criminal standard of proof. Indeed, the probative force of a mass of evidence may be cumulative, making it pointless to consider the degree of probability of each item of evidence separately.

Application: Horrell v The Queen (1997) 6 NTLR 125; 138 FLR 222 (CA).

[3.2015] Fine dividing line between conjecture and inference In Jones v Great Western Railway Co [1930] 144 LT 194; [1930] All ER Rep Ext 830 (HL) Lord Macmillan, in dissent on the application of the inference said (at 202; 842): The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof.

[3.2020] Consider all the evidence In R v Hillier (2007) 228 CLR 618; 233 ALR 634 Gummow, Hayne and Crennan JJ said (at 637; 646 [46]): It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. (Authorities omitted).

[3.2025] No other circumstances to weaken or destroy the inference In Teper v The Queen [1952] AC 480 (PC) Lord Normand said (at 489): It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.

Note: This part of the Board’s advice does not appear in the report of the case [1952] 2 All ER 447.

[3.2030] All other reasonable hypotheses must be excluded Luxton v Vines (1952) 85 CLR 352 was a civil case for damages for personal injury. An unidentified car struck the plaintiff. On the question of proving negligence Dixon, Fullagar and Kitto JJ said (at 358): The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged.

[3.2045]

CIRCUMSTANTIAL EVIDENCE

287

Followed: Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225 at 536 (CLR), 237 (ALR) per Gibbs CJ and Mason J. Other cases Burke v The Queen (1997) 96 A Crim R 334 (WA CCA); R v Moran [1999] 2 VR 87; (1998) 104 A Crim R 47 at [25] – [27] (CA); R v Kotzmann [1999] 2 VR 123; (1999) 105 A Crim R 243 (at 128; 247 [15]) (CA); R v McIntyre (2000) 111 A Crim R 211 at [30] – [34] (NSW CCA); R v Smith (1993) 117 A Crim R 298 (Vic, Coldrey J); R v Chapman [No 2] (2002) 83 SASR 286 (CCA); Berlyn v Brouskos (2002) 134 A Crim R 111 at 119 [32] (Vic, Nettle J); Mansell v The State of WA [No 6] WASCA 120.

[3.2035] Reasonableness of hypothesis consistent with innocence In East v Repatriation Commission (1987) 16 FCR 517; 74 ALR 518 (FCA) the court said in a joint judgment (at 532; 533): [T]o be reasonable, a hypothesis must possess some degree of acceptability or credibility – it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous.

Approved: Bushell v Repatriation Commission (1992) 175 CLR 408 at 414 per Mason CJ, Deane and McHugh JJ. In Burke v The Queen (1997) 96 A Crim R 334 (WACCA) Walsh J approved other remarks of Malcolm CJ. Walsh J repeated them (at 353): [A] “reasonable” hypothesis is not only one that is logically possible but also reasonable, not fanciful, whimsical or chimerical.

[3.2040] Admissibility Pfennig v The Queen (1995) 182 CLR 461; 77 A Crim R 149; 127 ALR 99 concerned the admissibility of propensity or similar fact evidence. The majority characterised such evidence as a special class of circumstantial evidence but with “a prejudicial capacity of a high order” (at 483; 114; 165). They went on: [T]he trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused. Here “rational” must be taken to mean “reasonable” and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case. Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle.

[3.2045] No case submission A no case submission may be made in a case based on circumstantial evidence. In Case Stated By DPP (No 2) (1993) 70 A Crim R 323 (SA CCA) King CJ said (at 327):

288

ROSS ON CRIME

[3.2050]

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses.

See also D Hamer, “The Continuing Saga of the Chamberlain Direction: Untangling the Cables and Chains of Criminal Proof” (1997) 23 Mon LR 43.

[3.2050] The “Peacock Direction” The expression comes from Peacock v The King (1911) 13 CLR 619 where Griffith CJ said (at 634): The rule is sometimes stated that the circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

In Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181; 97 ALR 161 Deane J, giving the leading judgment, said (at 578; 163–164; 183–184): The learned trial judge gave the customary direction that, where the jury relied upon circumstantial evidence, guilt should not only be a rational inference but should be the only rational inference that could be drawn from the circumstances: see Hodge’s case (1838) 2 Lewin 227; 168 ER 1136; Peacock v The King (1911) 13 CLR 619; Plomp v The Queen (1963) 110 CLR 234. Whilst a direction of that kind is customarily given in cases turning upon circumstantial evidence, it is no more than an amplification of the rule that the prosecution must prove its case beyond reasonable doubt. In many, if not most, cases involving subtantial circumstantial evidence, it will be a helpful direction. In other cases, particularly where the amount of circumstantial evidence involved is slight, a direction in those terms may be confusing rather than helpful. Sometimes such a direction may be necessary to enable the jury to go about their task properly. But there is no invariable rule of practice, let alone rule of law, that the direction should be given in every case involving circumstantial evidence. It will be for the trial judge in the first instance to determine whether it should be given. As Barwick CJ, speaking for the court, observed in Grant v The Queen (1975) 11 ALR 503 at 504: Where the circumstances of the case seem to require that some such direction be given, the summing up regarded as a whole may prove to be, and generally may be likely to be, inadequate. On the other hand, having regard to the circumstances of the case and the nature of the summing up, the failure to give the special direction may not in a particular case result in an inadequacy of the summing up as a whole. It may none the less be concluded from the terms of the summing up that the jury were fully instructed. Similarly, in McGreevy v DPP (1973) 57 Cr App R 424, the House of Lords refused to lay down a rule that any special direction should be given in relation to the use of circumstantial evidence. I mention those cases, not to criticise the direction given by the trial judge, but to remark that in none of them was it suggested that, where the prosecution relies on circumstantial evidence, an inference of guilt can properly be drawn only from facts which have been proved beyond reasonable doubt. Nor was it suggested that the jury should be given a direction to that effect.

In R v Gillard (2000) 78 SASR 279 (CCA) it was held that the circumstances of the case did not warrant a Peacock direction. See also Shepherd direction at [19.3700].

[3.2215]

CLAIM OF RIGHT

289

CLAIM OF RIGHT Definition ..................................................................................................................................... Legislation ................................................................................................................................... Basis ............................................................................................................................................ Claim for another ........................................................................................................................ Claim must be for a legal right .................................................................................................. Claim of right negatives dishonesty ........................................................................................... Belief ........................................................................................................................................... Onus of proof .............................................................................................................................. Summary of law ..........................................................................................................................

[3.2200] [3.2205] [3.2210] [3.2215] [3.2220] [3.2225] [3.2230] [3.2235] [3.2240]

[3.2200] Definition A claim of right is based on the belief of a legal entitlement. The belief need not be reasonable. The reasonableness of the belief bears only on the question of whether it was held.

[3.2205] Legislation Cth: Criminal Code Act 1995 s 9.5; Qld: Criminal Code s 22(2); WA: Criminal Code s 22; NT: Criminal Code ss 30(2) and 43AZ; ACT: Criminal Code 2002 s 38; NZ: Crimes Act 1961 s 2(1); Summary Offences Act 1981 s 2(1).

[3.2210] Basis In Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343 Gleeson CJ, Gummow and Hayne JJ said (at 243–244; 343; 354–355 [41] – [43]): [S]everal points should be made. The first concerns what is meant when it is said that the accused raises a claim of right. As to that, Dawson J said in Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85; 75 ALR 173 at 592–593 (CLR): It is not ignorance of the criminal law which founds a claim of right, but ignorance of the civil law, because a claim of right is not a claim to freedom to act in a particular manner – to the absence of prohibition. It is a claim to an entitlement in or with respect to property which goes to establish the absence of mens rea. A claim of that sort is necessarily a claim to a private right arising under civil law: see Cooper v Phibbs (1867) LR 2 HL 149. Second, the claim must be made honestly, leading to the proposition expressed by Callaway JA in R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; 86 A Crim R 412 that, although an honest claim “may be both unreasonable and unfounded”, if it is of that quality then the claim “is less likely to be believed or, more correctly, to engender a reasonable doubt”. Third, particular considerations arise where, fraud being inconsistent with a claim of right made in good faith to do the act complained of, that act has, as a necessary element of criminal liability, the quality of dishonesty according to ordinary notions.

[3.2215] Claim for another A claim of right is open to an accused who asserts it for another: R v Williams (1836) 7 C & P 354; 173 ER 158. Coleridge J charged the jury that they should return a verdict of not guilty if they found the accused had got two bags of malt from the victim to satisfy a just debt to his employer.

290

ROSS ON CRIME

[3.2220]

Approved: R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 (CCA). The means used to recover possession can be shady: R v Skivington [1968] 1 QB 166; [1967] 1 All ER 483; 51 Cr App R 167 (armed robbery).

[3.2220] Claim must be for a legal right A moral right is insufficient: Harris v Harrison [1963] Crim LR 497; R v Salvo [1980] VR 401 (CCA) (Murphy J at 408, Fullagar J at 435). Where a claim of right is for a debt, the debt must be presently due and payable. In R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 King CJ said (at 85; 33): It would seem then that an intent to do no more than procure the payment of a debt which is presently due and payable to the accused, or which the accused believes to be presently due and payable, by the alleged victim is not an intent to defraud and is not converted into an intent to defraud by the employment of dishonest means or the means which are forbidden by the statute. That proposition, however, should not be understood in a wider sense than intended. It can apply only to a belief that the debt is presently due and payable. An intent to procure by dishonest means the payment of a debt at a date which is earlier than the due date to the detriment of the debtor would be an intent to defraud.

There must be no belief that there is a defence to the claim. King CJ went on: Moreover I think that the proposition must be confined to a state of mind which excludes any belief that there is a genuine dispute about or reasonably available defence to the accused’s claim.

[3.2225] Claim of right negatives dishonesty A claim of right applies to negative an element in any offence of dishonesty. Belief of honest action rebuts one of the prosecution’s proofs: R v Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 (CCA); R v Salvo [1980] VR 401 (CCA); R v Bonollo [1981] VR 633; (1980) 2 A Crim R 431 (CCA); R v Brow [1981] VR 783 at 785, 788 (CCA). In Noble v Police (1994) 70 A Crim R 560 (SA) Matheson J held (at 568): It is clear law that dishonesty about the means is not conclusive of dishonesty about the end.

R v Nugent (1865) 1 QSCR 135 (CCR) – recovery of brandy from police; R v Lopatta (1983) 35 SASR 101; 10 A Crim R 447 (CCA) – warehouse breaking; R v Skivington [1968] 1 QB 166; [1967] 1 All ER 483; 51 Cr App R 167, R v Langham (1984) 36 SASR 48; 12 A Crim R 391 (CCA) – armed robbery; R v Jeffrey (2002) 136 A Crim R 7 (Qld CA) – robbery; R v Williams [1988] 1 Qd R 289; (1986) 21 A Crim R 460 (CCA) – larceny; burglary; R v Bowman (No 2) (1987) 49 NTR 48; 87 FLR 472; R v Pollard [1962] QWN 13 – seizure of truck until debt paid; Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85; 75 ALR 173 – keeping a protected turkey chick (This case will repay reading);

[3.2230]

CLAIM OF RIGHT

291

Margarula v Rose (1999) 149 FLR 444 (NT, Riley J); Molina v Zaknich (2001) 24 WAR 562; 125 A Crim R 401 (FC) – being on another’s premises. Claim of right negates trespass; R v Bedford (2007) 98 SASR 514; 172 A Crim R 492 (CCA) – attempted robbery to recover money paid for poor quality heroin. Williams v The Queen (2006) 160 A Crim R 151 (NSW CCA): claim of right does not excuse kidnapping a debtor to force payment. In Roberts v Western Australia (2005) 29 WAR 445; 152 A Crim R 346 (CA) Templeman J, with whom the other judges agreed on this point, said (at 450; 351 [27]): [I]t is difficult – if not impossible – for the defence of honest claim of right to be raised against a charge of forgery.

See Harwood v Western Australia [2016] WASCA 8 at [18]: [T]he claim of right must be as to entitlement “in or with respect to property” … The claim need only be honest. It does not have to be reasonable, nor does it have to be one recognised in law.

[3.2230] Belief A person needs only to show that he held the belief, not that it was reasonable. The unreasonableness of the belief bears only on whether it was genuinely held, thereby being less likely to engender a reasonable doubt. In R v Lawrence [1997] 1 VR 459; (1996) 138 ALR 487; 86 A Crim R 412 (CA) Callaway JA said (at 466–467; 494; 420): Fraud and dishonesty may be regarded as interchangeable terms in relation to an offence of misappropriating property: see R v Glenister [1980] 2 NSWLR 597 at 604–607. The common law concept of dishonesty, at least in a criminal context, is subjective. If a person has a belief inconsistent with dishonesty, he cannot be convicted of an offence of which that is an element even if his belief is unreasonable. The reasonableness of the belief goes only to its plausibility: “a man may be a stupid, unreasonable, or wrong-headed man, without being a dishonest one”. See R v Nundah (1916) 16 SR (NSW) 482 at 489. That case illustrates the cognate proposition that a genuine belief that one has a lawful claim is a defence in relation to property offences at common law and under statutes to which the common law applies. Such a bona fide claim of right may be both unreasonable and unfounded, although, if it is, it as less likely to be believed or, more correctly, to engender a reasonable doubt: see, for example, R v Lopatta (1983) 35 SASR 101 at 107–108 and 119–122. These propositions are distinct from the defence of honest and reasonable mistake discussed in such cases as He Kaw Teh v The Queen (1985) 157 CLR 523; 60 ALR 449.

In Margarula v Rose (1999) 149 FLR 444 (NT) Riley J held (at 461): The defence of honest claim of right having been raised it is for the prosecution to show beyond reasonable doubt that the appellant was not exercising an honest claim of right. For the defence to apply the belief of the appellant must be genuinely held. It need have no foundation in law or fact and it need not be reasonable. However reasonableness is a factor which is part of the objective circumstances which may be considered in determining the issue of genuine belief: R v Lopatta (1983) 35 SASR 101 at 107; R v Langham (1984) 36 SASR 48 at 51–53; R v Bowman (No 2) (1987) 87 FLR 472 at 477.

See also Jamieson v McKenna (2002) 136 A Crim R 82 (WA CA). Claim of right has been rejected where the subsequent acts of the accused demonstrate that the belief was not held: Astor v Hayes (1988) 38 A Crim R 219 (SA, Perry J);

292

ROSS ON CRIME

[3.2235]

R v Lenard (1992) 57 SASR 164; 58 A Crim R 123 (CCA).

[3.2235] Onus of proof Glanville Williams wrote in Criminal Law: The General Part, 2nd ed (1961), §117: The evidential burden of a claim of right is on the accused, but the persuasive burden is on the prosecution to rebut it.

Approved: Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343 (at [39]). In Margarula v Rose (1999) 149 FLR 444 (NT) Riley J held (at 461): The defence of honest claim of right having been raised it is for the prosecution to show beyond reasonable doubt that the appellant was not exercising an honest claim of right.

[3.2240] Summary of law In R v Fuge (2001) 123 A Crim R 310 (NSW CCA) Wood CJ at CL with whom the other judges agreed said (at 314–315 [24]): A review of the authorities shows that: (a) the claim of right must be one that involves a belief as to the right to property or money in the hands of another: R v Langham (1984) 36 SASR 48; 12 A Crim R 391; (b) the claim must be genuinely, ie honestly held, it not being to the point whether it was well founded in fact or law or not: Nundah (1916) 16 SR (NSW) 482; Bernhard [1938] 2 KB 264; Lopatta (1983) 35 SASR 101; 10 A Crim R 447 at 107, 452–453; Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85; 75 ALR 173; and Langham at 52–53; 394–396; (c) while the belief does not have to be reasonable (Nundah (1916) 16 SR (NSW) 482 at 485–490; Langham at 49; and Kastratovic (1985) 42 SASR 59; 19 A Crim R 28), a colourable pretence is insufficient: Dillon (1878) 1 SCR NS (NSW) 159 and Wade (1869) 11 Cox CC 549; (d) the belief must be one of a legal entitlement to the property and not simply a moral entitlement: Bernhard [1938] 2 KB 264 and Harris v Harrison (1963) Crim LR 497; (e) the existence of such a claim, when genuinely held, may constitute an answer to a crime in which the means used to take the property involved an assault, or the use of arms; the relevant issue being whether the accused had a genuine belief in a legal right to employ the means in question to recover it: Love (1989) 17 NSWLR 608; 44 A Crim R 416 at 615–616, 423–424; Salvo [1980] VR 401; (1979) 5 A Crim R 1; Langham at 58; 400; Kastratovic (1985) 42 SASR 59; 19 A Crim R 28 at 33–34; 66; Barker v The Queen (1983) 153 CLR 338; 47 ALR 1; R v Williams [1988] 1 Qd R 289; (1986) 21 A Crim R 460; and see also Boden (1844) 1 C & K 395; 174 ER 863; (f) the claim of right is not confined to the specific property or banknotes which were once held by the claimant, but can also extend to cases where what is taken is their equivalent in value, of which Langham and Lopatta (1983) 35 SASR 101; 10 A Crim R 447 provide examples; although that may be qualified when, for example, the property is taken ostensibly under a claim of right to hold them by way of safekeeping, or as security for a loan, yet the actual intention was to sell them: Lenard (1992) 57 SASR 164; 58 A Crim R 123;

[3.2405]

CO-CONSPIRATORS RULE

293

(g) the claim or right must, however, extend to the entirety of the property or money taken. Such a claim does not provide any answer where the property or money taken intentionally goes beyond that to which the bona fide claim attaches: Astor v Hayes (1988) 38 A Crim R 219 at 222; (h) in the case of an offender charged as an accessory, what is relevant is the existence of a bona fide claim in the principal offender or offenders, since there can be no accessorial liability unless there has in fact been a foundational offence: Gregory (1867) LR 1 CCR 77 at 79. See Lun (1932) 32 SR (NSW) 363; Richards (1974) QB 776; (1973) 58 Cr App R 60 and Howe (1987) AC 417; (1987) 85 Cr App R 32, and unless the person charged as an accessory, knowing of the essential facts which made what was done a crime, intentionally aided, abetted, counselled or procured those acts: Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641; Stokes and Difford (1990) 51 A Crim R 25 and Buckett (1995) 79 A Crim R 302; (i) it is for the Crown to negative a claim of right where it is sufficiently raised on the evidence, to the satisfaction of the jury: Lopatta at 108; 453–454, Astor v Hayes, Lenard and Williams at 302–303; 475.

CO-CONSPIRATORS RULE The rule ....................................................................................................................................... Not mere narrative ...................................................................................................................... When the principal object of the conspiracy has taken place .................................................. In furtherance of the conspiracy ................................................................................................ Reasonable evidence of participation ......................................................................................... Use of the evidence .................................................................................................................... Judge alone decides .................................................................................................................... The discretion to exclude ........................................................................................................... The rule applies to substantive offences ....................................................................................

[3.2400] [3.2405] [3.2410] [3.2415] [3.2420] [3.2425] [3.2430] [3.2435] [3.2440]

[3.2400] The rule In Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 the court said in a joint judgment (at 94–95; 164; 178): [W]hen two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the other: Tripodi v The Queen (1961) 104 CLR 1 at 7. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation … The principle lying behind the rule is one of agency.

In Canada it is known as the Carter rule after the decision of the Supreme Court in R v Carter [1982] 1 SCR 938. The Carter rule is that the statements of co-conspirators will be admissible against the accused only if the trier of fact is satisfied beyond reasonable doubt that a conspiracy existed and if independent evidence, directly admissible against the accused, establishes on a balance of probabilities that the accused was a member of the conspiracy. In New Zealand the main case is R v Tauhore [1996] 2 NZLR 641 (CA).

[3.2405] Not mere narrative A narrative after the conspiracy is over is not admissible against the other conspirators under the co-conspirators rule. In Mirza Akbur v King-Emperor [1940] 3 All ER 585 (PC) the Board advised (at 591):

294

ROSS ON CRIME

[3.2410]

Things said, done or written while the conspiracy was on foot are relevant as evidence of the common intention, once reasonable ground has been shown to believe in its existence. It would be a very different matter, however, to hold that any narrative, statement or confession made to a third party made after the common intention or conspiracy was no longer operating and had ceased to exist is admissible against the other party. There is then no common intention of the conspirators to which the statement can have reference.

In Tripodi v The Queen (1961) 104 CLR 1, Dixon CJ, Fullagar and Windeyer JJ said (at 7): From the nature of the case it can seldom happen that anything said by one which is no more than a narrative statement or account of some event that has already taken place, that is to say, some statement which would be receivable in evidence against the man who made it as an admission and not otherwise, can become admissible under this principle against his companions in the common enterprise.

In Conway v The Queen (2000) 98 FCR 204; 172 ALR 185 (FCA) the court said in a joint judgment (at 268; 244 [255]): It is true that in order for the acts and declarations of a co-conspirator to be admissible against a co-accused under the “co-conspirator” rule those acts and declarations must have been “in furtherance of” the conspiracy or common purpose. It is also true that the requirement of “furtherance” involves the notion that the conspiracy or common purpose is extant. A mere narrative statement of some past event (even an overt act uttered by a co-conspirator during the course of the conspiracy) cannot be regarded as being relevantly “in furtherance of” the conspiracy: see P Gillies, The Law of Criminal Conspiracy (2nd ed, 1990), pp 192–195.

Thus the confession of one conspirator will not be evidence against the others. In R v Walsh [1999] 2 VR 62; (1998) 105 A Crim R 448 (CA) Brooking JA, giving the leading judgment, said (at 82; 469): A confession by one co-conspirator is not admissible against another, except in the unlikely event that it can be said to be made in furtherance of the common purpose: Tripodi v The Queen (1961) 104 CLR 1 at 7; R v Windsor [1953] NZLR 83 at 93 … and R v Masters (1992) 26 NSWLR 450 at 461–463.

[3.2410] When the principal object of the conspiracy has taken place In R v Su (1997) 1 VR 1; 129 FLR 120 (CA) one accused had warned others that the drug importation had struck difficulties due to the arrest of some of their number. The court said (at 43; 162): It is well established that evidence of the acts and declarations of one conspirator is admissible against another even where that occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design – Gillies, The Law of Criminal Conspiracy (2nd ed, 1990), p 193. An example is R v Merritt (1881) 7 VLR (L) 39 where a statement made to police by a conspirator, after the conspiracy had come to an end was ruled admissible against other conspirators if it was made for the purpose of protecting the booty of the crime. In our opinion it can be no different where the act or declaration is one intended to warn another that the plan has gone awry. Such a warning will bear upon the likely future conduct of the conspirators, be it of the speaker or the recipient. It is axiomatic in the present case that the availability of the drug for distribution, or its seizure by police, would dictate the future actions of the conspirators.

In R v Vrany (1979) 46 CCC (2d) 14 (Ont CA) the court said in a joint judgment (at 26): [T]hose who conspire to commit crime do not do so with any nice or careful delineation of the offence intended and a single conspiracy may encompass a number of closely linked crimes which may be essential to the success of the conspiracy and form part of the common design. This fact may then lead to the admission into evidence of acts and declarations of the one conspirator against another which occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design.

[3.2420]

CO-CONSPIRATORS RULE

295

Approved: Conway v The Queen (2000) 98 FCR 204; 172 ALR 185 at 245 [257] (FCA).

[3.2415] In furtherance of the conspiracy The phrase comes from Tripodi v The Queen (1961) 104 CLR 1 at 7. See also the joint judgment in Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 at 94 (CLR), 164 (ALR), 178 (A Crim R). In R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 (CCA) the court said in a joint judgment (at 461; 454–455): The expression itself – “made in furtherance of the conspiracy” suggests to us that a distinction should also be drawn between those acts or statements which form the conspiracy itself (that is, the acts or statements by which the agreement was made) and those which are done or made subsequently in furtherance of, or in carrying out, that conspiracy once the agreement had been made. The reference in Tripodi (1961) 104 CLR 1 to “arrangements” was (we believe) intended to be to arrangements made in order to carry out the conspiracy, not to the formation of the conspiracy itself. Such a distinction is not one which will always be easy to make. It is certainly rare that there is direct evidence of the acts or statements which themselves form the conspiracy.

In R v Qiu [2008] 1 NZLR 1 (SC) Anderson J said (at 10 [24]): The co-conspirators rule of evidence The juristic rationale for the admission of what would otherwise be hearsay is that statements made by one member of a joint criminal enterprise in furtherance of the common criminal purpose are attributed to all members on the basis that there is implied authority in each to speak on behalf of the others. Logically, the existence of the enterprise, and the complicity of anyone whose statement in furtherance of the common intention is sought to be admitted, must be proved before the attribution can be made. But proving it or the purpose of admission must be distinguished from proving it for the purpose of establishing guilt. So the question arises as to the quality of the evidence for admission.

See also Conspiracy at [3.6500]: Joint enterprise at [10.500].

[3.2420] Reasonable evidence of participation According to Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 it is the duty and function of the trial judge to decide if there is reasonable evidence of participation of an accused in the conspiracy before acts and declarations of others can be used against that accused. The court said in a joint judgment (at 100; 168; 182): Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words “reasonable evidence” have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between “reasonable evidence” and “a prima facie case”, which in this context we very much doubt, then the words “reasonable evidence” are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed.

R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 (CCA) was a conspiracy case, but two of the accused had joined late. The court said in a joint judgment (at 465–468; 459):

296

ROSS ON CRIME

[3.2425]

In our opinion, it will not always be necessary for the trial judge to rule formally upon the existence of “reasonable evidence”, just as it is not always necessary for a formal ruling to be made that there is a case to answer. Often, it will be obvious to everyone that such evidence has been established. Even in such a case, however, it would usually be prudent for the trial judge to discuss with counsel, before they address the jury, just how the jury will be directed in relation to the evidence of acts or statements of co-conspirators. When it is necessary for the trial judge to give a formal ruling upon the existence of “reasonable evidence”, he or she will have to be satisfied first that there is a prima facie case against the particular accused that he participated in the conspiracy, based upon evidence which is independent of the acts or statements of co-conspirators. That decision should be reached in the same way as is the decision that an accused has a case to answer. If there is such a prima facie case, the trial judge should nevertheless then exercise a discretion as to whether the application of the “co-conspirator” rule should be rejected because, by making the evidence of those acts or statements admissible against that accused, its application will operate unfairly against him.

[3.2425] Use of the evidence In R v Minuzzo & Williams [1984] VR 417; (1983) 10 A Crim R 190 (CCA) the accused were convicted of conspiracy to defraud T & G Mutual Life Society. A good deal of evidence was not contested and on appeal there was no question of evidence being improperly received. The grounds alleged wrong direction by the trial judge on the use of the evidence. Young CJ said (at 431, 205): An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b) evidence of the acts and declarations of co-accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co-conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co-extensive or mutually exclusive. Evidence in category (b) may be used in order to establish the conspiracy: see R v Associated Northern Collieries (the Coal Vend Case) (1911) 14 CLR 387 and Tripodi v The Queen (1961) 104 CLR 1. Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused’s connection with the conspiracy has been given.

[3.2430] Judge alone decides Note that in Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 at 102–103 (CLR), 170–171 (ALR), 184–185 (A Crim R) the above passage in Minuzzo was approved. The High Court however said that the question of reasonable evidence of conspiracy was to be answered by the judge, not the jury. In R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA) the trial judge wrongly left the decision of reasonable evidence for the jury. King CJ (at 469; 497) held that the appellant suffered no detriment. Mohr J agreed. Olsson J was in serious dissent.

[3.2435] The discretion to exclude The trial judge retains a discretion to exclude evidence which would operate unfairly against an accused. In Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 the court said in a joint judgment (at 100; 168; 182):

[3.2440]

CO-CONSPIRATORS RULE

297

The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term “reasonable evidence” is desirable.

In R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 (CCA) the court said in a joint judgment (at 466; 459–460): That discretion should be exercised in the same way as the usual discretion to exclude confessional and other evidence where its use against the accused would result in an unfair trial for the accused: Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 5–6, 18, 33 (CLR); that is – unfair because its reliability has been affected: McDermott v The King (1948) 76 CLR 501 at 513; R v Lee (1950) 82 CLR 133 at 150–151; Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 9, 19, 33 (CLR); or unfair because the evidence otherwise has little weight but is gravely prejudicial to the accused, as is excluded in identification cases: Alexander v The Queen (1981) 145 CLR 395 at 402–403, 411, 417–418, 433. There are obviously other categories of evidence which, if admitted against an accused, will result in an unfair trial for him. The discretion should not ordinarily be exercised to reject the application of the “co-conspirator” rule simply because there may be some shortcomings in the evidence of the acts or statements of the co-conspirators, or because the accused against whom the rule is to be applied has not had the opportunity to cross-examine them or because the evidence of those acts and statements is uncorroborated. Those are all matters which would usually be made the subject of appropriate directions to the jury: Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 at 104–105. In accordance with authority, the onus in relation to the exercise of that discretion lies upon the accused, not upon the Crown: R v Lee (1950) 82 CLR 133 at 152–153; Wendo v The Queen (1963) 109 CLR 559 at 565; MacPherson v The Queen (1981) 147 CLR 512 at 518–520; Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 19 (CLR).

See also Discretion at [4.3200].

[3.2440] The rule applies to substantive offences When two or more people commit a crime together there may be some prior agreement. That agreement is “preconcert”. In Tripodi v The Queen (1961) 104 CLR 1 Dixon CJ, Fullagar and Windyer JJ were dealing with a conviction for larceny of motor cars. They held that evidence had been rightly admitted against Mr Tripodi of an agreement to alter the cars made before Mr Tripodi joined the scheme, or at any rate in his absence. Their Honours said (at 7–8): Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts. It is customary at criminal trials simply to treat the presence or absence of the prisoner as decisive of the admissibility of things said and it is a pity to rob that empirical but practical and convenient test of any of its usefulness. But often enough in an ordinary case where there is no confederation or preconcert, directions, instructions and the like although spoken in the absence of the prisoner may, according to the circumstance of the case, be admissible as res gestae or relevant facts. It is easy to understand therefore that preconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design.

R v Tauhore [1996] 2 NZLR 641 (CA) was an appeal against a conviction for robbery and other related charges. The trial judge had admitted in evidence a conversation between the co-offenders in the appellants’ absence in which the appellants’ role in the robbery was described. The appeal was dismissed. The court quoted Tripodi (1961) 104 CLR 1 and went on (at 643): We can find no valid reason for distinguishing the case of two or more accused acting together in furtherance of a common design, and being charged with the particular offence, from the case where the charge is one of conspiracy. It is the fact of common design which is critical. The statements made by one in furtherance of that design are thereby admissible against the other or

298

ROSS ON CRIME

[3.2600]

others. The rule cannot logically be confined to cases where the offence charged is one of conspiracy. We note that the same view was reached by Smellie J in R v Shelford [1993] 2 NZLR 742 at 745, where he referred to R v Buckton [1985] 2 NZLR 257 (CA) and Tripodi (1961) 104 CLR 1 and to text writers in Australia, England and New Zealand.

See also Joint enterprise at [10.500]; Trafficking (Evidence of acts or admissions of other parties) at [20.1740].

COGNATE OFFENCE Meaning ....................................................................................................................................... Examples ..................................................................................................................................... Other cases .................................................................................................................................. Other references ..........................................................................................................................

[3.2600] [3.2605] [3.2610] [3.2615]

[3.2600] Meaning The word “cognate” means of the same family. It derives from the Latin adjective cognatus: sprung from the same stock, kindred. Thus a cognate offence is one closely related to the charged offence. It is generally a lesser offence. The charged offence and the cognate offence almost always come from the same legislation. The cognate offence may be an alternative. In Mitchell v Myers (1955) 57 WALR 49 (Dwyer CJ) his Honour said (at 52): [A] cognate offence which is established by evidence...is one similar in some way to that charged or which would be a constituent of the actual complaint which has been laid.

Approved: Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114; (1984) 10 A Crim R 409 (FC); Go v The Queen (1990) 73 NTR 1; 102 FLR 299 (CCA); Kennett v Holt [1974] VR 644 at 648 (Pape J); Higgins v O’Dea [1962] WAR 140 (FC).

[3.2605] Examples Cognate All the above cases approve a lower court’s designation of a cognate offence, a dismissal of the charged offence and a conviction on the cognate offence.

Not cognate Flanagan v Remick (2001) 127 A Crim R 534; 35 MVR 289 at [45] (Vic, Eames J).

[3.2610] Other cases Mbuzi v Torcetti (2008) 50 MVR 451 at [26] (Qld CA); Ciorra v Cole (2004) 150 A Crim R 189; 42 MVR 547 at 45 (Vic, Redlich J); R v Parsons (1998) 2 VR 478; 97 A Crim R 267 at 483 (VR); (1997) 97 A Crim R 267 at 272 (CA); Dorrington v G (a child) (1992) 16 MVR 453 (WA, Wallwork J).

[3.2805]

COINCIDENCE

299

[3.2615] Other references See also Alternative at [1.4200].

COINCIDENCE Origin of the term ....................................................................................................................... The coincidence rule ................................................................................................................... Significant probative value: s 98(1)(b) ...................................................................................... Substantially and relevantly similar: s 98(2)(a) ......................................................................... Notice: s 98(1)(a) ........................................................................................................................ Application .................................................................................................................................. Relationship evidence and res gestae ......................................................................................... Other references ..........................................................................................................................

[3.2800] [3.2805] [3.2810] [3.2815] [3.2820] [3.2825] [3.2823] [3.2830]

[3.2800] Origin of the term The term “coincidence” comes from the Uniform Evidence Acts s 98. The section carried the heading: The coincidence rule. In R v Ellis (2003) 58 NSWLR 700; 144 A Crim R 1 (CCA, Full Bench) Spigelman CJ, with whom the other judges agreed, spoke of the changes brought about by the Uniform Evidence Acts. His Honour said (at 716; 17 [74] – [75]): Parliaments intended to lay down a set of principles to cover the relevant field to the exclusion of the common law principles previously applicable. What is referred to as “coincidence evidence” was previously referred to as “similar fact evidence”...The use of different terminology with precise and comprehensive definitions, manifests an intention to state principles comprehensively and afresh.

[3.2805] The coincidence rule Section Uniform Evidence Acts 98 provides: 98 The coincidence rule (1) Evidence that 2 or more related events occurred is not admissible to prove that, because of the improbability of the events occurring coincidentally, a person did a particular act or had a particular state of mind if: (a) the party adducing the evidence has not given reasonable notice in writing to each other party of the party’s intention to adduce the evidence; or (b) the court thinks that the evidence would not, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) For the purposes of subsection (1), 2 or more events are taken to be related events if and only if: (a) they are substantially and relevantly similar; and (b) the circumstances in which they occurred are substantially similar. (3) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note: Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule.

300

ROSS ON CRIME

[3.2810]

The coincidence rule and tendency rule constitute what at common law is termed similar fact evidence.

[3.2810] Significant probative value: s 98(1)(b) The term is discussed under Tendency (“Significant”) at [20.715]. Further, probative value was discussed (not under Uniform Evidence Acts) in Phillips v The Queen (2006) 225 CLR 303; 158 A Crim R 431; 224 ALR 216. There were five separate complainants alleging sexual assault. There was no special quality about the assaults. The court said in a joint judgment (at 318; 228; 443–444 [47]): Whether or not similar fact evidence could ever be used in relation to consent in sexual cases, it could not be done validly in this case. It is impossible to see how, on the question of whether one complainant consented, the other complainants’ evidence that they did not consent has any probative value. It does not itself prove any disposition on the part of the accused: it proves only what mental state each of the other complainants had on a particular occasion affecting them, and that can say nothing about the mental state of the first complainant on a particular occasion affecting her.

[3.2815] Substantially and relevantly similar: s 98(2)(a) In R v Zhang (2005) 158 A Crim R 504 (NSW CCA) Simpson J, with whom Buddin J agreed, said (at 537 [140]): In the case of coincidence evidence, an anterior step is required by subs (2) of s 98. It is necessary to determine whether the two or more events the subject of the tendered evidence are substantially and relevantly similar and whether the circumstances in which they (are alleged to have) occurred are substantially similar. Since admission of the proposed evidence depends upon the existence of relevant similarities, it is obvious that this assessment is to be made by the judge and not left to the tribunal of fact.

In R v Watkins (2005) 153 A Crim R 434 (NSW CCA) Barr J, with whom the other judges agreed, said (at 442 [41]): A consideration of whether events are substantially and relevantly similar requires an examination not only of the ways in which they are alike but of the ways in which they are unalike, at least where differences are pointed to by counsel, as they were here.

In Samadi v The Queen (2008) 192 A Crim R 251; [2008] NSWCCA 330 it was noted: [57] In R v Zhang [2005] NSWCCA 437; 158 A Crim R 504 Simpson J observed, at [141], that a determination under s 98 “is essentially evaluative and predictive” and requires an assessment upon which “reasonable minds may differ”: see also R v Fletcher (2005) NSWCCA 338; 156 A Crim R 308 at [32] - [35].

[3.2820] Notice: s 98(1)(a) Section 98(1)(a) of the Uniform Evidence Acts says that the evidence is not admissible if the party adducing the evidence has not given reasonable notice in writing. In R v Zhang (2005) 158 A Crim R 504 (NSW CCA) Simpson J, with whom Buddin J agreed, said (at 535 [131]): A properly drafted s 98 Notice involves the identification of four matters. These are: • the two or more related “events” the subject of the proposed evidence; • the person whose conduct or state of mind is the subject of the proposed evidence; • whether the evidence is to be tendered to prove that a person did a particular act, and, if so, what that “act” is;

[3.2830]

COMMITTAL

301

• whether the evidence is to be tendered to establish that the person had a particular state of mind, and, if so, what that “state of mind” is.

[3.2823] Relationship evidence and res gestae The coincidence rule does not apply to the admission of what at common law is called relationship evidence or res gestae. This type of evidence continues to be governed by the common law: see, Roach v The Queen (2011) 242 CLR 610; 210 A Crim R 300; [2011] HCA 12; Samadi v The Queen (2008) 192 A Crim R 251; [2008] NSWCCA 330; LJW v The Queen [2010] NSWCCA 114.

[3.2825] Application Not coincidence In R v Milenkovic (2005) 158 A Crim R 4 (NSW CCA) the prosecution appealed a trial judge’s ruling to exclude coincidence evidence. The case was this. The accused was charged with armed robbery with others in which a stolen car and a getaway car were used. The accused’s DNA was found on a wrench in one car. The claimed coincidence evidence connected the accused with later armed robberies of much the same sort. His Honour had excluded the evidence because stolen cars and getaway cars were the stock in trade of armed robberies. The court dismissed the prosecution’s appeal.

[3.2830] Other references See also Propensity at [16.6300]; Similar facts at [19.4400]; and Tendency at [20.700].

COMMITTAL Meaning and purpose .................................................................................................................. Legislation ................................................................................................................................... Function ....................................................................................................................................... Dietrich principle does not apply ............................................................................................... Prosecution to serve statements .................................................................................................. Particulars .................................................................................................................................... Defence notice ............................................................................................................................ Evidence-in-chief ........................................................................................................................ Prosecution to lead all evidence ................................................................................................. Cross-examination ....................................................................................................................... The rule in Browne v Dunn does not apply to committals ...................................................... Sexual offences ........................................................................................................................... Prosecution .................................................................................................................................. Duty to act judicially .................................................................................................................. Duty to weigh the evidence ........................................................................................................ Not required to plead .................................................................................................................. Duty to decide whether a person be sent for trial ..................................................................... Judicial review of committal; no case; abuse of process .......................................................... No committal .............................................................................................................................. Error in committal ...................................................................................................................... Remedies ..................................................................................................................................... Judicial review ............................................................................................................................ Formalities ................................................................................................................................... Committal on Commonwealth charges ...................................................................................... Admissibility at trial of committal questions ............................................................................ Committal to be separate from summary charge ....................................................................... Deaf mute .................................................................................................................................... Ten hints on defending at committal .........................................................................................

[3.3000] [3.3005] [3.3010] [3.3015] [3.3020] [3.3025] [3.3030] [3.3035] [3.3040] [3.3045] [3.3050] [3.3055] [3.3060] [3.3065] [3.3070] [3.3075] [3.3080] [3.3085] [3.3090] [3.3095] [3.3100] [3.3105] [3.3110] [3.3115] [3.3120] [3.3125] [3.3130] [3.3135]

302

ROSS ON CRIME

[3.3000]

[3.3000] Meaning and purpose When a person is charged with a serious indictable offence, the first court to hear the case is the magistrate’s court. After hearing the evidence a magistrate may decide to commit the person for trial. Hence the term committal. In Morriss v The Queen (1993) 115 FLR 287; 68 A Crim R 556 (NT, Kearney J) his Honour said (300–301; 570): The purpose of the proceedings is to prevent excesses by way of indiscriminate prosecutions, to protect the applicant against unjustified exposure to trial. The magistrate is not concerned to predict the outcome of that trial, but to determine the sufficiency of evidence, as he must, involves some weighing of it.

In Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 Dawson J said (at 15; 627; 192): The importance of the committal in the criminal process should not, however, be underrated. It enables the person charged to hear the evidence against him and to cross-examine the prosecution witnesses. It enables him to put forward his defence if he wishes to do so. It serves to marshal the evidence in deposition form.

[3.3005] Legislation Legislation regulates the committal procedure. Qld: Justices Act 1886 ss 104–108 (examination of witnesses); WA: Criminal Procedure Act 2004 s 41ff; Tas: Justices Act 1959 ss 56A–63 (examination and committal); NT: Justices Act ss 100A–119 (committal); NSW: Criminal Procedure Act 1986 ss 47–96 (committal); Vic: Criminal Procedure Act 2009 Pt 4 (committal); SA: Summary Procedure Act 1921 ss 103–107 (preliminary examination); ACT: Magistrates Court Act 1930 ss 90–92 (preliminary examination); NZ: Summary Proceedings Act 1957 ss 154–185E (preliminary hearing).

[3.3010] Function In R v Murphy (1985) 158 CLR 596; 16 A Crim R 203; 61 ALR 139 the court said in a joint judgment (at 616; 148–149; 211): The hearing of committal proceedings in respect of indictable offences by an inferior court is a function which is sui generis. Traditionally, committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights. At the same time they have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially and because they affect the interests of the person charged … Even though they are properly to be regarded as non-judicial in character, committal proceedings themselves traditionally constitute the first step in the curial process, possibly culminating in the presentation of the indictment and trial by jury. They have the closest, if not an essential, connection with an actual exercise of judicial power.

[Note: The Justices Act 1902 (NSW) is repealed. Committal proceedings are now under Criminal Procedure Act 1986.]

[3.3015] Dietrich principle does not apply A person charged with an indictable offence may be unrepresented at committal. The Dietrich principle does not apply to committals.

[3.3045]

COMMITTAL

303

See also Dietrich (The principle applies only to trials) at [4.2130].

[3.3020] Prosecution to serve statements Legislation provides that the prosecution serve statements on the defendant. NT: Justices Act ss 105A and 105B (may serve); NSW: Criminal Procedure Act 1986 s 183 (must serve brief of evidence). See also Goldsmith v Newman (1992) 59 SASR 404; 65 A Crim R 563 (FC).

[3.3025] Particulars The prosecution ought to provide particulars, and if they are not provided the Supreme Court may order them: Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 (CA); Stanton v Abernathy (No 2) (1991) 53 A Crim R 241 (NSW CA).

[3.3030] Defence notice Some legislation provides that the defence must give the prosecution notice of intent to cross-examine a witness. The notice must include reasons. Vic: Criminal Procedure Act 2009 s 119.

[3.3035] Evidence-in-chief Evidence-in-chief is ordinarily given by a witness self-identifying, then saying that the statement (or recording) is true. The legislation varies on whether evidence may or must be given this way. NT: Justices Act s 105B (“may”); SA: Summary Procedure Act 1921 s 106(1)(a) (“such procedure applies”). But once the prosecution admit the statement into evidence, they cannot be withdrawn: Fuller v Field (1995) 66 SASR 1; 84 A Crim R 157 (CA).

[3.3040] Prosecution to lead all evidence Subject to laws to the contrary, the prosecution must lead all its evidence at the committal: R v Harry; Ex parte Eastway (1985) 39 SASR 203; 20 A Crim R 63 (FC); State Drug Crime Commission (NSW) v Chapman (1987) 33 A Crim R 376 (NSW, Allen J). In R v Ngalkin (1984) 71 FLR 264; 12 A Crim R 29 (NT, O’Leary J) the prosecution had called only one eyewitness and committed and proposed to call another four at trial. O’Leary J stayed the trial.

[3.3045] Cross-examination The defence is entitled to cross-examine the prosecution witness. Many defence counsel will use cross-examination to establish facts on which to base a defence at trial. But there is no duty on the defence to cross-examine at the committal: R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) per Gleeson CJ at 689; 396.

304

ROSS ON CRIME

[3.3050]

Where a magistrate refuses to allow the defence to cross-examine a prosecution witness at committal, prerogative relief may not be available to correct that refusal: Potter v Tural (2000) 2 VR 612; 121 A Crim R 318; [2000] VSCA 227 (CA). Other cases Extensive review of the authorities in R v Morriss (1993) 115 FLR 287; 68 A Crim R 556 (NT, Kearney J) and DPP (Cth) v Bayly (1994) 63 SASR 97; 75 A Crim R 549; 126 ALR 290 (Olsson J).

[3.3050] The rule in Browne v Dunn does not apply to committals In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ examined the rule in Browne v Dunn (1893) 6 R 67. His Honour said (at 689; 396): It has never been the rule in committal proceedings in this State that there is a duty to cross-examine Crown witnesses whether in detail or at all. Indeed, it would be most regrettable, and would lead to undue lengthening of committal proceedings, for any such rule to be adopted.

Other cases Basha Inquiry at [2.400]; and Browne v Dunn at [2.3900].

[3.3055] Sexual offences Child complainants In some jurisdictions, interviews of child complainants are recorded on videotape. There is no cross-examination of the child at committal. If the magistrate commits, crossexamination, itself on tape, takes place a short time later. The whole of the tapes are played at trial as the complete evidence of the complainant.

Legislation NT: Justices Act ss 105B; Evidence Act s 21E; Vic: Criminal Procedure Act 2009 ss 369–372.

Cases Gately v The Queen (2007) 232 CLR 208; 179 A Crim R 77; R v Manager (2006) 18 NTLR 206; 204 FLR 64 (CCA). Other cases Farmer v Lockley (2003) 12 Tas R 244; 148 A Crim R 1 (CA).

Browne v Dunn If the defence cross-examination on video is to be played at trial, the rule in Browne v Dunn should be complied within the same way as it would be at trial.

[3.3060] Prosecution Subject to laws to the contrary, the prosecution must lead all its evidence at the committal: R v Harry; Ex parte Eastway (1985) 39 SASR 203; 20 A Crim R 63 (FC); State Drug Crime Commission (NSW) v Chapman (1987) 33 A Crim R 376 (NSW, Allen J). The prosecution ought to provide particulars, and if they are not provided the Supreme Court may order them:

[3.3080]

COMMITTAL

305

Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 (CA); Stanton v Abernathy (No 2) (1991) 53 A Crim R 241 (NSW CA). The prosecution has no power to withdraw statements: Fuller v Field (1995) 66 SASR 1; 84 A Crim R 157 (CA).

[3.3065] Duty to act judicially A magistrate hearing a committal must act judicially. In R v Murphy (1985) 158 CLR 596; 16 A Crim R 203; 61 ALR 139 the court said (at 616; 148; 211): Traditionally committal proceedings have been regarded as non-judicial on the ground that they do not result in a binding determination of rights. At the same time they have a distinctive judicial character because they are curial proceedings in which the magistrate or justices constituting the court is or are bound to act judicially.

Dawson J said for the court in Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 (at 15; 627; 192): Moreover, whilst not required to make a judicial decision, the magistrate was no doubt bound to act judicially in arriving at a result, that is to say, he was bound to act justly and fairly.

See also Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 at 667, 671 (NSWLR), 26, 30 (A Crim R) (CA). R v Matterson; Ex parte Moles (1994) 4 Tas R 87; 77 A Crim R 360 at 97, 393 (Underwood J).

[3.3070] Duty to weigh the evidence The magistrate has a duty to weigh the evidence. In Carlin v Thawat Chidnkunthod (1985) 4 NSWLR 182; 20 A Crim R 332 O’Brien CJ of Cr D held (at 197; 346): [T]he magistrate must give attention to the weight and acceptability of the evidence in relation to the character of the evidence itself and the credibility of the witnesses who gave it. But he is to do so from the point of view of a reasonable jury … presented with the evidence, and neither more nor less than the evidence, he has heard.

Approved: Saffron v DPP (1989) 16 NSWLR 397; 43 A Crim R 1 (CA).

[3.3075] Not required to plead Most legislation requires a magistrate to tell a defendant that there is no requirement to plead. Where the legislation is mandatory and not complied with, a court will set the committal aside: Western Australia v Landers (2000) 22 WAR 278; 112 A Crim R 75 (FC). This was an unsuccessful prosecution appeal from Re Boothman; Ex parte Landers (1999) 108 A Crim R 329 (WA, Templeman J).

[3.3080] Duty to decide whether a person be sent for trial Principle The magistrate has a duty to decide whether a person be sent for trial. In Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 Dawson J said (at 15; 627; 192): [N]otwithstanding that it is not binding, the decision of a magistrate that a person should or should not stand trial has in practice considerable force so that the preliminary hearing operates effectively to filter out those prosecutions which, because there is insufficient evidence, should not be pursued.

306

ROSS ON CRIME

[3.3085]

In Thorp v Abbotto (1992) 34 FCR 366; 106 ALR 239; 59 A Crim R 208 (FCA) Lockhart J said (at 372; 245; 214–215): The task of a committing magistrate is essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could. It is not the task of a magistrate conducting a committal proceeding to assume the role of the jury at a criminal trial. At the conclusion of the evidence adduced on a criminal trial for both the prosecution and the defence a number of inferences may be open to the jury consistent with guilt or innocence. Some may be stronger than others; each is essentially a matter for the jury to consider in the course of its deliberations when assessing whether the defendant is guilty or not guilty of the offence with which he has been charged. If a magistrate was obliged to discharge a defendant whenever a hypothesis was reasonably open on the evidence consistent with his innocence, albeit that another hypothesis was consistent with his guilt, it is difficult to imagine a case where there ever would be a committal for trial of a defendant as there are very few sets of facts or circumstances which cannot admit at least in theory of a possible explanation consistent with innocence. An inference from the facts consistent with guilt may be strong or weak in the eyes of the magistrate and so may an inference consistent with innocence. The conclusion by the magistrate that there are two competing inferences open, one consistent with guilt and the other with innocence, cannot necessarily require that the accused be discharged.

Legislation The tests in the legislation are as follows: The evidence is sufficient to put the defendant on trial for any indictable offence:

Qld: Justices Act 1886 s 108; Tas: Justices Act 1959 ss 61 and 62; NT: Justices Act s 112; NZ: Summary Proceedings Act 1957 s 168; NSW: Criminal Procedure Act 1986 s 66(1): “there is reasonable prospect that a reasonable jury, properly instructed, would convict the accused of an indictable offence”; Vic: Criminal Procedure Act 2009 s 141(4): “of sufficient weight to support a conviction on any indictable offence”; SA: Summary Procedure Act 1921 s 107: “sufficient to put the defendant on trial for an offence”; ACT: Magistrates Court Act 1930 s 92: “capable of satisfying a jury beyond reasonable doubt”. In WA Criminal Procedure Act 2004 s 44 provides that the accused be committed for trial.

[3.3085] Judicial review of committal; no case; abuse of process In R v Bedwellty JJ; Ex parte Williams [1997] AC 225; [1996] 3 All ER 737; 2 Cr App R 594 (HL) Lord Cooke said (at 237; 746–747; 605): [I]t would be both illogical and unsatisfactory to hold that the law of judicial review should distinguish in principle between a committal based solely on inadmissible evidence and a committal based solely on evidence not reasonably capable of supporting it. In each case there is in truth no evidence to support the committal and the committal is therefore open to quashing on judicial review. None the less there is a practical distinction. If justices have been of the opinion on admissible evidence that there is sufficient to put the accused on trial, I suggest that normally on a judicial review application a court will rightly be slow to interfere at that stage. The question will more appropriately be dealt with on a no case submission at the close of the prosecution evidence, when the worth of that evidence can be better assessed by a judge who has heard it, or even on a pre-trial application grounded on abuse of process. In practice, successful judicial review proceedings are likely to be rare in both classes of case, and especially rare in the second class.

[3.3095]

COMMITTAL

307

[3.3090] No committal A trial without committal may be an abuse of process: Barton v The Queen (1980) 147 CLR 75; 32 ALR 449; Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 at 15 (CLR), 627 (ALR), 192 (A Crim R). Where there has been no committal, or no proper committal, a judge can stay the trial: R v Ngalkin (1984) 71 FLR 264; 12 A Crim R 29 (NT, O’Leary J); R v Cordell (1984) 10 A Crim R 475 (NSW, Enderby J); Houston v Crannage (1990) WAR 11; 42 A Crim R 446 (Malcolm CJ); R v Drozd (1993) 67 A Crim R 112 (Qld CA); Williams v DPP (Vic) (2004) 151 A Crim R 42 (Vic, Gillard J). See also Abuse of process at [1.1000]; Basha Inquiry at [2.400]; and Stay at [19.5900].

[3.3095] Error in committal A trial judge can send a case back for further or full committal. Such an order is the exercise of the inherent power of a superior court to secure a fair trial. Examples of such orders follow. Central prosecution witnesses were not called at committal and notices of additional witness given: R v Ngalkin (1984) 71 FLR 264; 12 A Crim R 29 (NT, O’Leary J); R v Drozd (1993) 67 A Crim R 112 (Qld CCA); Houston v Crannage (1990) WAR 11; 42 A Crim R 446 (Malcolm CJ). The accused believed he was represented at committal but wasn’t: R v Cordell (1984) 10 A Crim R 475 (NSW, Enderby J). In R v Faagutu (2000) 112 A Crim R 28 (NT, Thomas J) the trial was stayed because important witnesses had not been cross-examined at committal. A committal will ordinarily not be stayed when there is no representation: R v Helfenbaum (1993) 65 A Crim R 264 (Tas, Cox J); Clarke v DPP (1998) 147 FLR 165 (ACT, Miles CJ). Material breaches of formality at committal may result in a trial conviction being set aside: R v Adamiczka (1993) 33 NSWLR 68; 71 A Crim R 291 (CCA). In R v Boungaru (1993) 133 FLR 211 (NT, Martin CJ), the accused had been charged with murder but the committal had proceeded on the basis of the proper charge being manslaughter. The magistrate committed on manslaughter. The prosecution filed a murder indictment. Martin CJ stayed the trial as unfair (until further committal). In Morriss v The Queen (1993) 115 FLR 287; 68 A Crim R 556 (NT) Kearney J refused to remit for a fresh committal. The loss of a chance to cross-examine witnesses is only one factor in a balancing process. An applicant must show that a temporary stay and fresh committal are the only means by which unfairness at trial can be avoided. If there is no obvious error, a judge will not intervene: Henderson v Magistrates’ Court (2004) 151 A Crim R 366 (Vic, Habersberger J); Tez v Longley (2004) 142 A Crim R 122

308

ROSS ON CRIME

[3.3100]

(NSW, Shaw J); Potier v DPP (2001) 123 A Crim R 176 (NSW, O’Keefe J); Potter v Tural (2000) 2 VR 612; 121 A Crim R 318; [2000] VSCA 227 (CA). Other cases R v Bartalesi (1997) 41 NSWLR 641; 93 A Crim R 274 (CCA); DPP (Cth) v Bayly (1994) 63 SASR 97; 75 A Crim R 549; 126 ALR 290 (Olsson J); Loubatie v DPP (1994) 77 A Crim R 28 (NSW CCA); R v Hansen (1993) 89 NTR 1; 114 FLR 68 (Mildren J); R v Siugzdinis (1984) 32 NTR 1; 81 FLR 360; 15 A Crim R 136 (Muirhead J).

[3.3100] Remedies Remedy can be granted by trial judge if the committal is defective. In Fuller v Field (1995) 78 A Crim R 211 (SA) Debelle J held (at 216): In short, as a general rule, if defects occur in the course of the preliminary hearing, the remedy lies in an appropriate application to the trial judge: Harry; Ex parte Eastway (1985) 39 SASR 203 at 212; 20 A Crim R 63 at 72; Walden (1986) 41 SASR 421 at 427; 23 A Crim R 242 at 247; Goldsmith v Newman at 412; 571. In an appropriate case an application can be made to the trial judge for an order staying that trial on the ground of abuse of process: Clayton v Ralphs at 362-369; 57-65; Grassby (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618. For these reasons, this Court has confirmed on more than one occasion that in principle the administration of criminal law should be left to the criminal courts and has expressed its concern that applications for judicial review can only lead to a multiplicity of process and result in delay in the administration of criminal justice: Clayton v Ralphs at 365; 60 - 61; Goldsmith v Newman at 412; 571.

[3.3105] Judicial review A magistrate conducting a preliminary hearing is amenable to judicial review in the nature of certiorari: Re Robins; Ex West Australian Newspapers Ltd (1999) 20 WAR 511 (FC); R v Matterson; Ex parte Moles (1994) 4 Tas R 87; 77 A Crim R 360 (Underwood J). But in Sedrak v Carney [1999] 3 VR 95 Chernov JA held (at 96): A writ of certiorari would only run where the magistrate had made a jurisdictional error, had failed to observe some applicable requirement of natural fairness, or where fraud or error on the face of the record had been shown.

and (at 98): The law in Victoria is that the court will amost never interfere by way of certiorari with the decision of a magistrate to commit or not commit a person for trial. This has been held to be so in a number of cases.

The applicant refused to rest: Sedrak v Carney (1999) 108 A Crim R 311 (FCA, Kenny J); (2000) 62 ALD 693 (FCA, Sundberg J); (2001) 65 ALD 91 (FCA, FC). The case alleged perjury in acrimonious Family Court proceedings.

[3.3110] Formalities The Justices Act (NT) must be strictly complied with: R v Mungaribi (1988) 55 NTR 12; 92 FLR 264 (Martin J); Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385 (at [25]); Hiroti v The Queen (1997) 140 FLR 366; 95 A Crim R 72 (NT, Kearney J).

[3.3130]

COMMITTAL

309

[3.3115] Committal on Commonwealth charges On Commonwealth charges there is no common law or constitutional right to a committal process of a particular type: DPP v Bayly (1994) 63 SASR 97; 75 A Crim R 549; 126 ALR 290 (Olsson J).

[3.3120] Admissibility at trial of committal questions The starting point is the joint judgment of Mason CJ, Deane, Toohey and McHugh JJ in the murder appeal of Petty and Maiden v The Queen (1991) 173 CLR 95; 55 A Crim R 322; 102 ALR 129 at 102, 132–133, 325: It should be stressed that nothing in what is written above should be understood as suggesting that evidence of a failure to raise some defence or matter of explanation at committal proceedings is ordinarily admissible at the trial as a basis for drawing some adverse inference against the accused. Evidence of a failure, on the committal hearing, to ask a question, make a submission, or advert to a claimed defence is not, of itself, so admissible. The right to remain silent applies to the conduct of a committal proceeding and silence maintained provides no basis for any inference against an accused.

However the appeal was dismissed by a majority of five to two. Part of the reason was this. Mr Maiden told the police that Mr Petty killed. A witness named Mr Crawley said Mr Maiden told him the same thing. At committal Mr Maiden’s solicitor suggested to Mr Crawley that there was no conversation. At trial counsel suggested that there was a conversation in which Mr Maiden told Mr Crawley that the death was an accident. Hunt J allowed Mr Crawley to be re-examined on the question the defence asked at committal. The same judges said (at 102; 325): What makes the present case different is the fact that Maiden’s conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings.

[3.3125] Committal to be separate from summary charge A committal for an indictable offence must be separate from the hearing of a summary offence. They are not to be heard together: McGrath v Higgins (1976) 13 SASR 365 (Bray CJ); Glynn v Smith (1984) 70 FLR 427; 11 A Crim R 229 (NT, Muirhead J); Hosler v Maughan (1989) 40 A Crim R 281 (NSW, Callaway AJ). See also Neasey v Strickland (1995) 5 Tas R 228 (Zeeman J).

[3.3130] Deaf mute A deaf mute who has no means of communication cannot be the subject of committal or trial: Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385. For a simple offence the defendant is to be discharged: Pioch v Lauder (1976) 27 FLR 79; 13 ALR 266 (NT, Forster J).

310

ROSS ON CRIME

[3.3135]

See also David Ross QC, “Committals and Their Defence” (2008) 30 Aust Bar Rev 267–281.

[3.3135] Ten hints on defending at committal 1. Analyse the charges and alternatives and isolate the elements. 2. Find the evidence direct and circumstantial which bear on each element. 3. Isolate any defences. 4. Obtain further evidence usually by notice or subpoena. 5. Comply with procedural rules on giving notice to the court and to the prosecution. 6. Cross-examine to pin a witness down and to obtain further evidence. 7. Use simple English. 8. Keep questions short. Only one issue for each question. 9. Consider the tactics of Browne v Dunn on a video cross-examination for use at trial. 10. At the end of the committal, make submissions on evidence, on the charges and on the test to be applied.

COMMON LAW Origin .......................................................................................................................................... Not in Aladdin’s cave ................................................................................................................. Foundation: common sense and experience .............................................................................. Australia has a unified common law .......................................................................................... The High Court declares the common law of Australia ........................................................... Source of Australian common law ............................................................................................. Changes to the common law ...................................................................................................... Common law offences ................................................................................................................ Abolition of common law offences ............................................................................................ Sentence for common law offences: generally .......................................................................... Fine for common law offence .................................................................................................... Magna Carta ................................................................................................................................ Writings .......................................................................................................................................

[3.3300] [3.3305] [3.3310] [3.3315] [3.3320] [3.3325] [3.3330] [3.3335] [3.3340] [3.3345] [3.3350] [3.3355] [3.3360]

[3.3300] Origin Gleeson CJ said: The common law of Australia was based upon the common law of England. We inherited it at the time of European settlement. The word “common” was a reference to the rules that applied to all citizens, the laws all people had in common, as distinct from special rules and customs that applied to particular classes, such as members of the clergy, or in particular places. The rules of the common law are judge-made. They were developed and refined by English, and, later, Australian courts, originally at a time when parliaments were less active in the area of law-making than they are today.

Gleeson CJ, The Rule of Law and the Constitution [Boyer Lecture 2000] (ABC Books, Sydney, 2000) p 6.

[3.3305] Not in Aladdin’s cave Lord Reid said: There was a time when it was thought almost indecent to suggest that judges make law – they only declare it. Those with a taste for fairy tales seem to have thought that in some Aladdin’s cave there

[3.3320]

COMMON LAW

311

is hidden the Common Law in all its splendour and that on a judge’s appointment there descends on him knowledge of the magic words Open Sesame. Bad decisions are given when the judge has muddled the password and the wrong door opens. But we do not believe in fairy tales any more.

Lord Reid “The Judge as Law Maker” (1972) 12 J Soc Pub T L 22 (Lord Reid sat in the House of Lords 1948–1975).

[3.3310] Foundation: common sense and experience In DPP v Majewski [1977] AC 443; [1976] 2 All ER 142; 62 Cr App R 262 (HL) Lord Salmon said (at 482; 156; 276): [T]he common law … is founded on common sense and experience rather than strict logic.

Approved: R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 per Gibbs J at 92; 469.

[3.3315] Australia has a unified common law In Kable v DPP (NSW) (1996) 189 CLR 51; 138 ALR 577 McHugh J said (at 112; 619): Unlike the United States of America where there is a common law of each State, Australia has a unified common law which applies in each State but is not itself the creature of any State. Perhaps the validity of that proposition is not as readily apparent to a State judge bound by the authority of his or her own Full Court or Court of Appeal as it is to a judge of a federal court who must apply the common law.

His Honour added (at 113; 620): [T]hat there is a common law of Australia as opposed to a common law of individual States is clear.

Kable was approved in Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207, per Gaudron, Gummow and Hayne JJ (at 505; 18; 217 [43]).

[3.3320] The High Court declares the common law of Australia Barwick CJ said in R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 (at 70; 453–454; 351): It would be easy simply to accept the declarations of common law which have heretofore been made by any of the courts of the United Kingdom, particularly if they are of long standing. The Court will, of course, have regard to these declarations and, in particular, will pay the highest respect to the decisions of the House of Lords. But it seems to me quite inadequate in the performance of its high obligation for the Court merely to accept without its own close, critical and independent examination those declarations of the common law which heretofore have been made. Whilst the common law itself may be said to be the same wherever it is operative, it may be differently declared in one juristic unit as compared with another: see Australian Consolidated Press Ltd v Uren (l969) 117 CLR 221; [1969] 1 AC 590. The Court must, in my opinion, decide for itself upon principle what is the common law. It must make its declaration of principle in the sense of the common law as it understands it to be and to have been.

In Mabo v Queensland [No 2] (1992) 175 CLR 1; 107 ALR 1 Brennan J said (at 29; 18): In discharging its duty to declare the common law of Australia, this Court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency. Australian law is not only the historical successor of, but is an organic development from, the law of England. Although our law is the prisoner of its history, it is not now bound by decisions of courts in the hierarchy of an Empire then concerned with the development of its colonies. It is not immaterial to the resolution of the present problem that, since the Australia Act 1986 (Cth) came into operation, the law of this country is entirely free of Imperial control. The law which governs

312

ROSS ON CRIME

[3.3325]

Australia is Australian law. The Privy Council itself held that the common law of this country might legitimately develop independently of English precedent. Increasingly since 1968, the common law of Australia has been substantially in the hands of this Court. Here rests the ultimate responsibility of declaring the law of the nation.

There is no identifiable special common law of the Commonwealth: R v Kidman (1915) 20 CLR 425 at 445 (Isaacs J); Jackson v Gamble [1983] 1 VR 552 at 559 (Young CJ).

[3.3325] Source of Australian common law In Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207, Gaudron, Gummow and Hayne JJ said (at 505; 18–19; 217 [44]): The common law has its source in the reasons for decisions of the courts which are reasons arrived at according to well recognised and long established judicial methods. It is a body of law created and defined by the courts. Whatever may once have been the case in England the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.

Their Honours went on to say (at 507; 20; 219 [50]): This Court is the final appellate court for the nation. When an appeal is dealt with in this Court, and its reasons are published, those reasons will form part of the common law of Australia and will bind all courts in the country.

[3.3330] Changes to the common law In Breen v Williams (1996) 186 CLR 71; 138 ALR 259 Gaudron and McHugh JJ said (at 115; 290–291): In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are the province of the legislature. From time to time it is necessary for the common law courts to re-formulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the “new” rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.

[3.3335] Common law offences In R v Morris [1951] 1 KB 394; [1950] 2 All ER 965; 34 Cr App R 210 Lord Goddard said (at 395; 966; 212): [A]t common law there were comparatively few felonies, murder, rape, arson, burglary, larceny and the offence of mayhem being the principal ones, nor were there a great number of common law misdemeanours. The judges always claimed to have the right of defining certain acts as misdemeanours, although they have never attempted to do so in the case of felonies.

Present common law offences include blasphemy, conspiracy to defraud, contempt, false imprisonment, and (in New South Wales and Victoria) kidnapping. Misfeasance in public office may still be a common law offence: Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; 88 A Crim R 417 (CCA). An act outraging public decency is a common law offence. In R v Hamilton [2008] 2 WLR 107; [2008] 1 All ER 1103 (CA) a barrister had taken video footage up the skirts of women and a girl shopping in supermarkets. Held: it was an act outraging public decency. The court set out the elements of the offence.

[3.3345]

COMMON LAW

313

In R v Rimmington [2006] 1 AC 459; [2006] 3 WLR 982; sub nom R v Goldstein [2006] 2 All ER 257 (HL) their Lordships dealt with the common law offence of causing a public nuisance. They found it exists. But Lord Bingham of Cornhill gave this warning (at 482; 1002; 278 [33]): If the ambit of a common law offence is to be enlarged, it “must be done step by step on a case by case basis and not with one large leap”: R v Clark (Mark) [2003] 2 Cr App 363, para 13.

In R v Jones [2006] 2 WLR 772; [2006] 2 All ER 741; [2006] 2 Cr App R 136 (HL) Lord Bingham said (at 788; 757; 154 [28]): [T]here now exists no power in the courts to create new criminal offences, as decided by a unanimous House in Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435. While old common law offences survive until abolished or superseded by statute, new ones are not created. Statute is now the sole source of new criminal offences.

Misconduct in public office is a common law offence: Attorney-General’s Reference (No 3 of 2003) [2005] QB 73; [2005] 4 All ER 303 (CCA).

[3.3340] Abolition of common law offences In R v Patton [1998] 1 VR 7; (1996) 88 A Crim R 365 (CA) the court said in a joint judgment (at 21; 380): In normal circumstances, it is to be presumed that if Parliament had intended to abolish an existing common law offence it would make its intentions clear.

The common law offence of assault was held to be extant in Victoria. Common law offences long since abolished include being a common scold, being a common nightwalker, eavesdropping, keeping a common bawdy house, being a common barrator, and maintenance and champerty. Other cases Question of Law Reserved (No 2 of 1996) (1996) 67 SASR 63; 88 A Crim R 417 (CCA); R v Enslow (2003) 12 Tas R 200 (Underwood J).

[3.3345] Sentence for common law offences: generally In R v Morris [1951] 1 KB 394; [1950] 2 All ER 965; 34 Cr App R 210 (CCA) Lord Goddard said (at 395–396): The penalty prescribed by law for any felony except petty larceny and mayhem was death until the reign of George 4. For common-law misdemeanours the penalties of imprisonment or fine were always available, in addition to such penalties as whipping and the pillory. The pillory was abolished in the first half of the nineteenth century. It is abundantly clear – it can be seen by anybody who cares to go into the history of the matter – that the duration of the imprisonment or the amount of the fine were always at the discretion of the court. Magna Carta, 1215, contained a clause (c 20) providing that penalties should not be excessive (see Stubbs, Charters, p 299); and by the Bill of Rights, 1688, it was provided that excessive fines should not be imposed, nor cruel or unusual punishments inflicted.

Further (at 398): [I]t is still the law … that for common law misdemeanours, that is to say, any offences for which a statute has not prescribed any particular period of imprisonment, the law is, and always has been, that the court can pass a sentence of imprisonment and impose a fine at its discretion, provided that it does not impose an inordinate sentence.

[Note that his Lordship reworked this history for the authorised report. The original version is [1950] 2 All ER 965 at 966–967 and 34 Cr App R 210 at 212–213.]

314

ROSS ON CRIME

[3.3350]

Approved: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 per Windeyer J at 497; Wood v Galea (1995) 79 A Crim R 567 at 573 (NSW, Hunt CJ at CL). In Verrier v DPP [1967] 2 AC 195; [1966] 3 All ER 568; (1966) 50 A Cr App R 315 (HL) Lord Pearson, with whom the others agreed, said (at 219–220; 572; 322): I have no doubt that, whatever the historical origin may have been, the courts have for hundreds of years had power at common law to sentence to imprisonment for misdemeanours, and the length of the imprisonment has been at large and in the discretion of the court.

See also Treasury v Harris [1957] 2 QB 516; [1957] 2 All ER 455; 41 Cr App R 146 (QBD) at 523; 457; 149. R v Selleck (2000) 78 SASR 194; 116 A Crim R 470; 33 MVR 62 (CCA).

[3.3350] Fine for common law offence In Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483 (a contempt case) Windeyer J said (at 497): The power to fine in such cases thus arises from the ancient rule of the common law that all crime is punishable by imprisonment or by fine. Until modern times a fine was rarely imposed for treason or felony, but a fine was always a common penalty for misdemeanour. A court having power to fine or imprison for a crime may do either at its discretion; and unless limited by statute, the amount of a fine is in the court’s discretion, provided it is not so inordinately heavy as to conflict with the Bill of Rights.

In R v Smith (1991) 25 NSWLR 1; 56 A Crim R 148 (CA) Kirby P made a thorough examination of world authority. He concluded (at 17–18; 163–164): Where there is no maximum fixed by statute, the following principles would appear to apply to assist in determining whether a fine imposed is excessive: 1. A court will be reluctant to say that the amount is excessive, given the large mandate allowed by the law to the sentencing judge. 2. Nevertheless, although unconfined by a statutory maximum, a sentence is never wholly uncontrolled. Both by the common law and by the Bill of Rights it is controlled (relevantly) by a prohibition on fines that are “excessive” for the purpose for which they are imposed. 3. In judging an allegation that a fine is “excessive”, the court will take into account the nature and enormity of the offence; the ability of the accused to pay; the suggested impossibility of compliance and the purpose served for the administration of justice by the imposition of the fine. 4. To invoke the limitation on the imposition of “excessive fines” it is necessary that the moral sense should be shocked by the level of the fine. It must be clearly and manifestly inappropriate. In cases of contempt, large fines are not unusual given the importance which punishment for criminal contempt plays in upholding the authority of the court and furthering the administration of justice. 5. Nevertheless, courts should avoid the imposition of futile fines, including in the case of punishment for contempt. A fine which is so great that it cannot possibly be paid by the offender will be “excessive” in the sense referred to in the common law and the Bill of Rights.

[3.3355] Magna Carta A great number of Australian cases refer to Magna Carta. Examples are: R v Cheung (1999) 154 FLR 259 (NSW CCA);

[3.3500]

COMMON PURPOSE

315

Jackamarra v Krakouer (1998) 195 CLR 516 at 542 per Kirby J; Subritzky v Circosta (1996) 127 ACTR 1; 135 FLR 243; 91 A Crim R 27 (Higgins J); Prisoners A-XX Inclusive v New South Wales (1995) 38 NSWLR 622; 79 A Crim R 377 (CA); Adler v District Court (NSW) (1990) 19 NSWLR 317; 48 A Crim R 420 (CA); Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 301; 87 ALR 577; [1989] HCA 46; R v Walker [1989] 2 Qd R 79; (1988) 38 A Crim R 150 (CCA); Herron v McGregor (1986) 6 NSWLR 246; 28 A Crim R 79 (CA) per McHugh JA at 252; 84.

[3.3360] Writings Gleeson CJ, “Australia’s Contribution to the Common Law” (2008) 82 ALJ 247–259. Sir Anthony Mason, The Common Law in Final Courts of Appeal Outside Britain (2004) 78 ALJ 188–193. Irvine of Lairg, “The Spirit of Magna Carta Continues to Resonate in Modern Law” (2003) 119 LQR 227–245.

COMMON PURPOSE Meaning ....................................................................................................................................... Understanding need not be spoken or written ........................................................................... Scope ........................................................................................................................................... Legislation ................................................................................................................................... Extended common purpose ........................................................................................................ Judge’s directions on extended common purpose .....................................................................

[3.3500] [3.3505] [3.3510] [3.3515] [3.3520] [3.3525]

[3.3500] Meaning In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court said in a joint judgment (at 113–114; 29–30; 232): The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime.

Other cases R v Keenan (2009) 236 CLR 397; 83 ALJR 243; 252 ALR 198; R v Rahman [2009] 1 AC 129; [2008] 4 All ER 351; [2009] 1 Cr App R 1 (HL).

316

ROSS ON CRIME

[3.3505]

[3.3505] Understanding need not be spoken or written In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court said in a joint judgment (at 114; 30; 232): Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances.

Other Cases Hui Chi-Ming v The Queen [1992] 1 AC 34; [1991] 3 All ER 897; (1991) 94 Cr App R 236 (PC); R v Powell [1999] 1 AC 1; [1997] 4 All ER 545; [1998] 1 Cr App R 261 (HL); R v Jackson [1993] 4 SCR 573.

[3.3510] Scope In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court, in a joint judgment, referred to Johns v The Queen (1980) 143 CLR 108; 28 ALR 155 and said (at 117; 31; 235): In Johns this Court was concerned with the common purpose of a joint criminal enterprise. In particular, it was concerned with whether the scope of the common purpose extended to possible as well as probable incidents of the venture. The scope of the common purpose is no different from the scope of the understanding or arrangement which constitutes the joint enterprise; they are merely different ways of referring to the same thing.

See also Gillard v The Queen (2003) 219 CLR 1; 202 ALR 202; 139 A Crim R 100.

[3.3515] Legislation Some legislation refers to common purpose: Qld: Criminal Codes 8; WA: Criminal Codes 8; Tas: Criminal Codes 4; NT: Criminal Codes 43BG; ACT: Criminal Codes 45; Can: Criminal Codes 21.

[3.3520] Extended common purpose In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court said in a joint judgment (at 114; 30; 233): [E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.

[3.3705]

COMMONWEALTH

317

In R v Taufahema (2007) 228 CLR 232; 81 ALJR 800; 168 A Crim R 95; 234 ALR 1 Glesson CJ and Callinan J described the above paragraph as setting out extended common purpose (at [7]). In Clayton v The Queen (2006) 81 ALJR 439; 231 ALR 500; 168 A Crim R 174 on whether the doctrine of extended common purpose should be reconsidered, Kirby J said yes. The rest of the court said no.

[3.3525] Judge’s directions on extended common purpose The trial judge should direct the jury that an accused must foresee the criminal act of the principal before the prosecution can prove extended criminal purpose. In R v Bosworth (2007) 97 SASR 502; 170 A Crim R 110 (CCA) the trial judge did not give the proper direction. Appeal allowed. In R v Hartwick (2005) 14 VR 125; 159 A Crim R 1 (CA) the judge gave the proper directions. Appeal dismissed. See also Concert at [3.5100]; and Joint enterprise at [10.500].

COMMONWEALTH Offences ....................................................................................................................................... Inconsistency between Commonwealth and State Acts ............................................................ Commonwealth land ................................................................................................................... Commonwealth Criminal Code ..................................................................................................

[3.3700] [3.3705] [3.3710] [3.3715]

[3.3700] Offences Offences against the Commonwealth are generally triable only under Commonwealth law.

[3.3705] Inconsistency between Commonwealth and State Acts Constitution 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. Where there is an offence against property belonging to the Commonwealth or a public authority of the Commonwealth the charge should be laid under the Commonwealth Act unless: • the State Act is identical to the Commonwealth Act. There is to be no inconsistency between the two; • no Commonwealth Act fits the offence; • the Commonwealth Act does not cover the field. A difference in penalty is an inconsistency: Hume v Palmer (1926) 38 CLR 441; Ex parte McLean (1930) 43 CLR 472; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338. Commonwealth law is to be applied where there is an inconsistency. Examples of this include:

318

ROSS ON CRIME

[3.3710]

Hume v Palmer (1926) 38 CLR 441: failing to give way at sea; Ex parte McLean (1930) 43 CLR 472: neglecting to fulfil a contract under Commonwealth Constitution; R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338: damage to Commonwealth property; R v MacPherson [1996] 1 Qd R 656; (1995) 77 A Crim R 404 (CA): escape after sentence on Commonwealth charge. Dickson v The Queen (2010) 241 CLR 491; 205 A Crim R 94; [2010] HCA 30: conspiracy proivision Pt 11.5 of the Criminal Code (Cth). Buckman v The Queen [2013] NSWCCA 258: no inconsistency between s 25 of the Drug Misuse and Traffıcking Act 1985 (NSW) and Pt 9.1 of the Criminal Code Act 1995 (Cth). Gedeon v The Queen [2013] NSWCCA 257: no inconsistency between s 25 of the Drug Misuse and Traffıcking Act 1985 (NSW) and s 233B of the Customs Act 1901 (Cth).

[3.3710] Commonwealth land Commonwealth Places (Application of Laws) Act 1970 4.(1) The provisions of the laws of a State as in force at a time (whether before or after the commencement of this Act) apply, or shall be deemed to have applied, in accordance with their tenor, at that time in and in relation to each place in that State that is or was a Commonwealth place at that time. (2) This section does not: (a) extend to the provisions of a law of a State to the extent that, if that law applied, or had applied, in or in relation to a Commonwealth place, it would be, or have been, invalid or inoperative in its application in or in relation to that Commonwealth place otherwise than by reason of the operation of section 52 of the Constitution in relation to Commonwealth places; or

The effect of this section would be that if, in the case of R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 Mr Blacklock had damaged the property of another (not the Commonwealth) on Commonwealth land, he could have been charged under State law (at 346 per Mason J). Driving without a licence at Adelaide Airport was said to be subject to State law: Tucs v Algie (1985) 38 SASR 490; 19 A Crim R 401 (FC). See also Pryce v King (1985) 37 NTR 19 (Muirhead ACJ). In Svikart v Stewart (1994) 181 CLR 548 it was held that the Northern Territory Traffıc Act applied to driving with more than .08% in the RAAF Base Darwin. In R v Porter (2001) 53 NSWLR 354; 165 FLR 301; 126 A Crim R 83 (CCA) the appellant had been arrested by State police at Sydney airport after a flight from WA. He was carrying $150,000 cash. He was charged with goods in custody. The magistrate convicted him. The appeal judge made rulings and stated a case. Held: the State police can search and arrest in a Commonwealth place. The State DPP could properly respond to the appeal. Collection of drugs from the airport: R v Pinkstone (2001) 24 WAR 406; 162 FLR 198; 120 A Crim R 120 (Roberts-Smith J); Pinkstone v The Queen (2003) 140 A Crim R 83 (WA CCA); Pinkstone v The Queen (2004) 219 CLR 444; 206 ALR 84 at 457–459; 92–94 [33] – [41] per McHugh and Gummow JJ. See also R v Porter (2001) 53 NSWLR 354; 165 FLR 301; 126 A Crim R 83 (CCA);

[3.3910]

COMPENSATION

319

R v Holmes (1988) 93 FLR 404; 38 A Crim R 245 (SA CCA).

[3.3715] Commonwealth Criminal Code See also Criminal Code at [3.9800].

COMPENSATION Meaning ....................................................................................................................................... General principles ....................................................................................................................... Legislation ................................................................................................................................... Cases ............................................................................................................................................

[3.3900] [3.3905] [3.3910] [3.3915]

[3.3900] Meaning A victim may suffer injury or loss. By legislation a court can order that a convicted person pay money to the victim for that injury or loss. This is compensation. The legislation gives effect to the civil remedy which a victim possesses, and replaces it. Compensation is quite different from confiscation.

[3.3905] General principles The loss must be connected with the criminal act. In R v Ferrari [1997] 2 Qd R 492 (CA) the claim for loss was made against the passenger in a stolen car. The driver had earlier stolen the car and altered it. Held: The passenger was not connected with the loss. In Australian Associated Motor Insurers v Galvin (2005) 15 Tas R 104; 156 A Crim R 300 (Slicer J) his Honour held that compensation ordinarily did not include the costs of prosecution. But in this false claim case, some costs were held to be part of the compensation. An award of compensation against an offender is not a form of punishment: DPP v Energy Brix Australia Corp Pty Ltd (2006) 14 VR 345; 162 A Crim R 363 (CA) at 252; 371 [30]. Yet in R v Ross (2007) 17 VR 80 (CA) the court (at 83 [18]) accepted that a sentencing judge can look at the offender’s financial circumstances to see whether the compensation order would adversely affect rehabilitation.

[3.3910] Legislation The legislation varies substantially in each jurisdiction. Qld: Penalties and Sentences Act 1992 s 35; Criminal Offence Victims Act 1995 ss 19–31; WA: Sentencing Act 1995 ss 116–119A; Tas: Sentencing Act 1997 s 68; NT: Sentencing Act s 88; Crimes (Victims Assistance) Act 1966; NSW: Victims Support and Rehabilitation Act 1996;. Vic: Sentencing Act 1991 s 85B; Victims of Crime Assistance Act 1966; SA: Criminal Law (Sentencing) Act 1988 s 53; Victims of Crime Act 2001 s 12; ACT: Crimes (Sentencing) Act 2005 ss 19 to 20; Victims of Crime (Financial Assistance) Act 1983; NZ: Sentencing Act 2002 ss 32–36 (reparation);

320

ROSS ON CRIME

[3.3915]

Eng: Powers of Criminal Courts (Sentencing) Act 2000 ss 130 to 134; Can: Criminal Code ss 718(e) and 738–741.

[3.3915] Cases Qld Hohn v King [2004] 2 Qd R 508; (2004) 146 A Crim R 515 (CA); Owen v Minister for Justice (2003) 142 A Crim R 219 (Qld, McMurdo J).

WA Fitzpatrick v The Queen (2004) 146 A Crim R 332 (WA CCA); Western Australia v JJS (a child) (2004) 145 A Crim R 403 (WA CCA).

Tas Australian Associated Motor Insurers v Galvin (2005) 15 Tas R 104; 156 A Crim R 300 (Slicer J).

NT Northern Territory v CR (2007) 20 NTLR 13 (Martin (BR) CJ) ; Northern Territory v Dean (2005) 156 A Crim R 403 (NT, Thomas J); Hillcoat v Northern Territory (2001) 166 FLR 315; 127 A Crim R 65 (NT, Riley J).

NSW Connor v The Queen (2005) 158 A Crim R 389 (NSW CCA); Victims Compensation Fund Corp v GM (2004) 60 NSWLR 310; 148 A Crim R 301 (CA); R v Van Hoang (2002) 128 A Crim R 244 (NSW CCA).

Vic R v Ross (2007) 17 VR 80 (CA); Kaplan v Lee-Archer (2007) 15 VR 405 (CA); DPP v Energy Brix Australia Corp Pty Ltd (2006) 14 VR 345; 162 A Crim R 363 (CA); Irvine v Victims of Crime Assistance Tribunal (2002) 135 A Crim R 10 (VCAT, Levine DP).

SA Mile v Police (2007) 97 SASR 549 (Sulan J); Brooks v Police (2000) 76 SASR 279 (Bleby J); Vougamalis v Nixon (1991) 56 SASR 574 (Olsson J).

ACT Australian Capital Territory v Pinter (2002) 121 FCR 509; 134 A Crim R 1 (FCA, Full Bench).

[3.4105]

COMPETENCE OF WITNESS

321

See also Confiscation [3.5700].

COMPETENCE OF WITNESS Proof ............................................................................................................................................ Child ............................................................................................................................................ Crime and interest ....................................................................................................................... Intellectual disability ................................................................................................................... Accused ....................................................................................................................................... Competence of spouse and family for prosecution ................................................................... Voir dire ......................................................................................................................................

[3.4100] [3.4105] [3.4110] [3.4115] [3.4120] [3.4125] [3.4130]

[3.4100] Proof Where competence is in issue the party calling the witness has the onus of proving competence. In R v Yacoob (1981) 72 Cr App R 313 the trial judge had to decide whether the witness was married to the accused. At that time the legislation would have disqualified her from giving evidence. Watkins LJ giving the judgment of the court said (at 316–317): The beginning of a trial is obviously the appropriate time for the issue of the competence and compellability of a prosecution witness to be raised and determined. Whether the issue can be properly considered in the absence of oral evidence from at least the witness whose competence is challenged depends upon the circumstances affecting that person.

Further (at 317): As to the burden of proof in this context, it is for the prosecution, once the issue of the competence of one of its witnesses is raised, to prove that that person is competent to testify. See Cross on Evidence (5th ed), p 75, where it is stated: “Decisions as to which party bears the burden of establishing a fact constituting a condition precedent to the admissibility of an item of evidence belong to the law of evidence. However, there is very little authority on the subject, no doubt because, as a matter of common sense, the conditions of admissibility have to be established by those alleging that they exist”. The burden will be discharged if the trial judge is satisfied beyond a reasonable doubt upon admissible and sufficient evidence of competence.

In R v T (1998) 71 SASR 265; 102 A Crim R 222 (CCA) Doyle CJ said (at 271, 228): It is generally accepted that questions as to the competence of a witness to give evidence are for the judge to determine. Such an issue should be determined by the judge on the voir dire: see Demirok v The Queen (1977) 137 CLR 20; 14 ALR 199 at 30–31 (CLR) per Gibbs J, per Stephen J (at 32) and per Aickin J (at 39); Archbold, Criminal Pleading Evidence and Practice (1997) pars 8–37. Commonsense suggests that a question as to the competence of a witness should be raised, and determined by the judge, before the witness is sworn or begins to give evidence: see Archbold 8–37 and 8–38; KD Stephens, Voire Dire Law (1997), pp 131–132; cf R v Yacoob (1981) 72 Cr App R 313 at 316–317. The only authority on point that I have found suggests that if the issue of the competence of a prosecution witness is raised, it is for the prosecution to prove that the witness is competent, and to do so beyond reasonable doubt upon admissible and sufficient evidence: see R v Yacoob (1981) 72 Cr App R 313.

[3.4105] Child In R v Brasier (1779) 1 Leach 199; 168 ER 202 the court said (at 200; 203): There is no precise or fixed rule as to the time within which infants are excluded from giving evidence; but their admissibility depends upon the sense and reason they entertain of the danger and impiety of falsehood, which is to be collected from their answers to questions propounded to them by the Court.

322

ROSS ON CRIME

[3.4110]

See also Child at [3.1800]. R v WAU [2013] QCA 265.

[3.4110] Crime and interest A witness is not incompetent by crime or interest. Uniform Evidence Acts s 12; Qld: Evidence Act 1977 s 6; WA: Evidence Act 1906 s 6; SA: Evidence Act 1929 s 15; NZ: Evidence Act 2006 s 71; Can: Canada Evidence Act s 3.

[3.4115] Intellectual disability In Lau v The Queen (1991) 6 WAR 30; 58 A Crim R 390 (CCA) the principal prosecution witness had Down’s Syndrome. The trial judge allowed her to give evidence unsworn, but he did not make proper inquiries contemplated by the Evidence Act 1906 (WA). The appeal was allowed. See also Hoogwerf v The Queen (1992) 63 A Crim R 302 (WA CCA).

[3.4120] Accused An accused is a competent witness in the accused’s own case. Where the prosecution seeks to call an accused against a co-accused, the accused must first be dealt with: • by nolle prosequi; • by indemnity; • by pleading guilty and being sentenced. See also Accomplice at [1.1600]; and Indemnity at [9.1600]

[3.4125] Competence of spouse and family for prosecution Legislation By legislation the spouse of an accused is competent to give prosecution evidence: Uniform Evidence Acts s 18; Qld: Evidence Act 1977 s 8(2) and 8(3); WA: Evidence Act 1906 s 9; SA: Evidence Act 1929 s 21; NZ: Evidence Act 2006 s 71 (competent and compellable).

[3.4300]

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323

Objection A spouse (or family member) can object to giving prosecution evidence against an accused: R v Wright (2004) 155 ACTR 50; 186 FLR 76; 149 A Crim R 298 (Higgins CJ); R v YL (2004) 187 FLR 84 (ACT Crispin J); Callanan v B [2005] 1 Qd R 348; (2004) 151 A Crim R 287 (CA). A de facto spouse cannot take that objection: S v Boulton (2006) 151 FCR 364; 232 ALR 92; 162 A Crim R 489 (FCA). Nevertheless a wife can choose to give evidence against a husband: R v Sorby (1986) VR 753; 21 A Crim R 64 at 772, 84 (CCA). See also Demirok v The Queen (1977) 137 CLR 20; 14 ALR 199. Witness (Spouse and relative) at [23.795].

[3.4130] Voir dire It is for the judge alone to determine competence. That is done on voir dire: Demirok v The Queen (1977) 137 CLR 20; 14 ALR 199 per Gibbs J (at 31; 208) and Stephen J (at 32; 209). Applied: R v Harding [1989] 2 Qd R 373; (1989) 42 A Crim R 169 (CCA); Lau v The Queen (1991) 6 WAR 30; 58 A Crim R 390 (CCA); The voir dire takes place before the witness is sworn or begins to give evidence: R v T (1998) 71 SASR 265; 102 A Crim R 222 (CCA) at 271; 228 per Doyle CJ. See also Voir dire at [22.1700]; and Witness at [23.700].

COMPLAINT IN SEXUAL CASES Evidence of recent complaint ..................................................................................................... It must be a complaint ................................................................................................................ Complaint goes to credit ............................................................................................................ Complaint goes only to consistency, not to the facts ................................................................ Complaint is not corroboration .................................................................................................. Complaint inconsistent with evidence ........................................................................................ Judge must point to difference between complaint and corroboration ..................................... Complaint or its failure is not legal theory ............................................................................... Forbidden comment .................................................................................................................... Delay in complaint ...................................................................................................................... Legislation ................................................................................................................................... Failure to make a complaint ....................................................................................................... First reasonable opportunity ....................................................................................................... False accusation .......................................................................................................................... Gap in the evidence .................................................................................................................... Need for a clear direction to the jury ........................................................................................ Possible direction on recent complaint ......................................................................................

[3.4300] [3.4305] [3.4310] [3.4315] [3.4320] [3.4325] [3.4330] [3.4335] [3.4340] [3.4345] [3.4350] [3.4355] [3.4360] [3.4365] [3.4370] [3.4375] [3.4380]

[3.4300] Evidence of recent complaint Evidence of recent complaint is admissible to show consistency of conduct of the complainant. It is not admissible to show absence of consent. In R v Lillyman [1896] 2 QB 167 (CCR), Hawkins J said (at 170):

324

ROSS ON CRIME

[3.4305]

It is necessary, in the first place, to have a clear understanding as to the principles upon which evidence of such a complaint, not on oath, nor made in the presence of the prisoner, nor forming part of the res gestae, can be admitted. It clearly is not admissible as evidence of the facts complained of: those facts must therefore be established, if at all, upon oath by the prosecutrix or other credible witness, and, strictly speaking, evidence of them ought to be given before evidence of the complaint is admitted. The complaint can only be used as evidence of the consistency of the conduct of the prosecutrix with the story told by her in the witness-box, and as being inconsistent with her consent to that of which she complains.

Applied: Kilby v The Queen (1973) 129 CLR 460; 1 ALR 283 Barwick CJ at 467–468. See also Menzies J at 474. In R v Knigge (2003) 6 VR 181 (CA) Winneke P said (at 189–190 [14]): It has long been the law that evidence of a complaint made at the earliest reasonable opportunity by the alleged victim of a sexual assault is admissible, not as proof that the crime alleged was committed, but as evidence buttressing the credit of the complainant by demonstrating consistency in her conduct and consistency of the evidence given in court. Kilby v R (1973) 129 CLR 460; 1 ALR 283 at 472 per Barwick CJ; at 473–4 per Menzies J; Ugle v R (1989) 167 CLR 647 at 649; R v Freeman [1980] VR 1 at 6–8; Suresh v R (1998) 153 ALR 145; 72 ALJR 769.

In R v Munday (2003) 7 VR 423; 143 A Crim R 318 (CA) Ormiston JA said (at 433; 328 [24]): [T]he basis for admission of true recent complaint evidence must rest on a premise to the effect that people offended against will ordinarily make some prompt complaint.

In R v GG (2004) 151 A Crim R 92 (Vic CA) Eames JA with whom the others agreed examined “recent”. His Honour said there was no set rule as to when delay was too long and then examined the authorities (at 103 [46]).

[3.4305] It must be a complaint In R v Knigge (2003) 6 VR 181 (CA) the complainant had a general discourse with her teacher in the sick bay. The conversation hardly touched on the topic of the offences. Winneke P (at 190 [15]) with whom the others agreed said that “the statements … scarcely resemble a complaint of a grievance harboured by the complainant that she had been sexually abused”. A six-year-old child will not have the same duties of complaint as an adult. See the analysis in R v HRA (2008) 183 A Crim R 91 (Vic CA) at 110–119 [57]–[91] per Kellam JA.

[3.4310] Complaint goes to credit In Ugle v The Queen (1989) 167 CLR 647; 88 ALR 513; 43 A Crim R 446 the court allowed the appeal where evidence of recent complaint was given by a friend of the complainant, but the complainant herself did not give evidence. The court said (at 649; 514; 447): [E]vidence of complaint goes merely to the credit of the complainant and it follows that such evidence is not admissible unless there is evidence from the complainant. See Kilby v The Queen (1973) 129 CLR 460; 1 ALR 283, at 474, per Menzies J. See also Sparks v The Queen [1964] AC 964, at 979; Whitehorn v The Queen (1983) 152 CLR 657, at 661, per Murphy J and per Deane J (at 666–667).

See also R v J [1998] 1 NZLR 20 (CA).

[3.4315] Complaint goes only to consistency, not to the facts In Suresh v The Queen (1996) 16 WAR 23 (CCA) it was held that complaint evidence is only admissible as evidence of consistency of behaviour, not as evidence of the facts

[3.4330]

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325

complained of and is admitted as a matter going only to the credit of the complainant. It will not be inadmissible merely because it does not precisely charge the offence alleged to have been committed. The High Court appeal (1998) 72 ALJR 769; 153 ALR 145 leaves this untouched.

[3.4320] Complaint is not corroboration A complaint is not corroboration. In R v Elsworthy (1996) 39 NSWLR 450 (CCA) the court held not only that complaint is not corroboration but that in the appropriate case the trial judge should give the jury that direction.

[3.4325] Complaint inconsistent with evidence A complaint which is wholly inconsistent with the complainant’s evidence is not admissible for it does not support or enhance the credibility of the complainant. In R v Braye-Jones [1966] Qd R 295 (CCA) Lucas J with whom the others agreed said (at 297): Clearly enough, evidence of statements made by the prosecutrix which did not bear any resemblance at all to her sworn evidence would not be admissible, for such evidence would be irrelevant. In my opinion, however, the matter is one of degree, and if the substance of the complaint can be identified as relating to the story told by the prosecutrix in evidence and if it is such that a jury can reasonably regard it as constituting a complaint of a matter of a sexual nature, then I think that inconsistency as to detail is a matter for the jury to consider in their assessment of the credibility of the prosecutrix.

In R v Freeman [1980] VR 1 (CCA) the court said in a joint judgment (at 5): Almost inevitably, any attempt to formulate a rule which will cover all cases is bound to fail. What may prove or tend to prove consistency in one case may not do so in another … The ultimate question must always be does the “complaint”, in the circumstances in which it was uttered, tend to buttress the prosecutrix’s credit as a witness.

Other cases R v S [2004] 1 WLR 2940; 3 All ER 689; 2 Cr App R 646 (CCA); R v Lazos (1992) 78 A Crim R 388 at 394–396 (Vic CCA). R v Usher (2014) 119 SASR 22; [2014] SASCFC 32.

[3.4330] Judge must point to difference between complaint and corroboration In R v Stoupas [1998] 3 VR 645; (1997) 94 A Crim R 525 (Vic CA) Winneke P said (at 652–653; 532–533): In cases where complaint evidence has been confirmed by witnesses independent of the complainant, there is always a risk that a jury will mistake it for evidence which is “independent of the complainant”. The trial judge should, in my view, always be alert to that risk and ensure, by appropriate directions, that the jury does not misunderstand the nature of complaint evidence or misuse it. As Hunt CJ (at Common Law) said in Doyle (unreported, Court of Criminal Appeal, NSW, 13 April 1993), p 6: [E]vidence of complaint, given or confirmed as it usually is by someone other than the complainant, is very easily mistaken by the lay person as being evidence which is independent of that of the complainant and, thus, supportive or confirmatory of her evidence that the crime

326

ROSS ON CRIME

[3.4335]

was committed and committed by the appellant … (the trial judge) is … in error if the reasonable possibility of that mistake is not excluded … either by express direction or by necessary implication. (It is clear that, in this passage, as in the direction of the trial judge in this case, Hunt CJ was using the words “supportive or confirmatory” as meaning evidence independent in its source from the victim. In this sense it is used in preference to the word “corroborative” (see Miletic [1997] 1 VR 593 at 605).) Hunt CJ continued: In my view, the direction that the complaint is not corroborative of what the complainant has said had happened should be given at some stage in every case where it is not otherwise clear that there is no evidence of corroboration, because of the obvious possibility of mistake that a complaint does amount to corroboration. For my own part, I fully agree with these comments … The surest means of avoiding the confusion is for clear directions to be given as to the true function of complaint evidence and the use to which it can be put. “The clearer the directions bearing on the evidence of complaint, the less the risk. The more opaque the directions, the greater the risk” (per Sperling J, E (1996) 39 NSWLR 450 at 460). For the reasons stated, it is my view that the directions given in this case were “opaque” and created the risk that the jury would have formed the view that they could use the evidence of complaint as evidence probative of guilt.

[3.4335] Complaint or its failure is not legal theory The effect of complaint or its failure are commonsense propositions. They are not legal theory and it is wrong for a judge to say they are: R v Matthews (1999) 1 VR 534; 102 A Crim R 269 (CA).

[3.4340] Forbidden comment When the accused can give no motive for a false complaint, it is not proper for a prosecutor or judge to say “Why would the complainant lie?”: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16. That is especially so when only the complainant and the accused give evidence: R v Costin [1998] 3 VR 659 (CA). See also Cross-Examination (Prosecutors forbidden questions) at [3.10435].

[3.4345] Delay in complaint Cases Whether a complaint is recent is often a matter of degree. Recency depends on opportunity and other factors including the age and experience of the complainant. Sometimes a complaint is so far outside the bounds of recency that it should not be admitted: R v Knigge (2003) 6 VR 181 (CA); Bellamore v Tasmania (2006) 207 FLR 20 (Tas CCA). Where a complaint is comparatively late, a judge may have to direct a jury about that lateness. In R v Davies (1985) 3 NSWLR 276 (CCA) Hunt J said (at 278): In my opinion, the trial judge in a sexual assault case should as a general rule, in addition to giving the directions required by s 405B, continue to direct the jury that the absence of a complaint or the delay in making one may be taken into account by it in evaluating the evidence of the complainant and in determining whether to believe her.

Approved: R v Miletic [1997] 1 VR 593 at 603 (CA) in which the court said in a joint judgment (at 606):

[3.4355]

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327

[T]he nature and quality of the complainant’s evidence called for careful scrutiny. The episodes of rape of which she complained emanated from a longstanding cohabitation which was otherwise based on consensual sexual relations; no complaint had been made about this episodic non-consensual sex until after the relationship had terminated in bitterness; the delay in making the complaint produced the result that, when it was made, its product was general rather than specific. The generality of the complaints, when made, served to underscore their staleness. They were certainly not “fresh”, as the learned judge categorised them, and their non-specific nature increased the applicant’s difficulty in answering them. The last point is the most significant, for its full significance would be more apparent to lawyers than to a lay jury. (Appeal allowed.)

Other cases KJR v The Queen (2007) 173 A Crim R 226 (NSW CCA); DPW v The Queen (2006) 164 A Crim R 583 (NSW CCA); DRE v The Queen (2006) 164 A Crim R 400 (NSW CCA). A direction is necessary where there is delay in complaint about uncharged acts: R v RWB (2003) 87 SASR 256 (CCA). See also Kilby warning at [11.300]; Longman warning at [12.2100]; and Uncharged acts at [21.100].

[3.4350] Legislation Some legislation suggests that a judge should ordinarily direct a jury not to assume falsity in complaint because of delay and that there might have been good reason for the delay: Qld: Criminal Law (Sexual Offences) Act 1978 s 4A(4); WA: Evidence Act 1906 s 36BD; Tas: Criminal Code s 371A; NT: Sexual Offences (Evidence and Procedure) Act s 4(5); NSW: Criminal Procedure Act 1986 s 294; Vic: Crimes Act 1958 s 61; ACT: Evidence (Miscellaneous Provisions) Act 1991 s 71; NZ: Evidence Act 2006 s 127. Some legislation gives effect to the common law on the effect of complaint: SA: Evidence Act 1929 s 34CA; See R v Mill [2002] SASC 290 (30 August 2002) (Duggan J). Some legislation allows evidence of complaint by a child as evidence of facts in issue: See R v Joyce (2005) 15 NTLR 134; 153 A Crim R 241 (Riley J); R v Wojtowicz (2005) 194 FLR 186; 156 A Crim R 237; 148 NTR 24 (Martin (BR) CJ).

[3.4355] Failure to make a complaint In R v Lillyman [1896] 2 QB 167 the court said (at 171): [I]f she concealed the injury for any considerable time after she had opportunity to complain; if the place, where the fact was alleged to be committed, was where it was possible she might have been heard, and she made no outcry; these and the like circumstances carry a strong, but not conclusive, presumption that her testimony is false or feigned.

328

ROSS ON CRIME

[3.4360]

In Kilby v The Queen (1973) 129 CLR 460; 1 ALR 283, Barwick CJ explained uses of the word “presumption” in Lillyman. He said (at 469, 289–290): In R v Lillyman [1896] 2 QB 167 reference was made to the passage in Hawkins’ Pleas of the Crown where it is said “It is a strong, but not a conclusive, presumption against a woman that she made no complaint in a reasonable time after the fact”. But just as the fact of a proximate complaint tends to support credibility of the complainant so its absence may be a considerable factor where a tribunal of fact is deciding on the credibility of the complainant. The word “presumption”, in this connexion, is not, of course, a reference to a presumption of law but is no more, in my opinion, than a statement that a tribunal of fact might well consider that a woman who made no complaint was not to be believed when she gave an account of events to which she gave no consent. This use of the word “presumption” has assisted to give rise to misconception as to the basis of admissibility of a proximate complaint and as to the effect of the absence of such a complaint.

Reservations about the inference to be drawn from failure to make a complaint were expressed in M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63 by Gaudron J at 513–515 and McHugh J at 528–529, the minority.

[3.4360] First reasonable opportunity In R v Valentine [1996] 2 Cr App R 213 (CA) the court said (at 223): The authorities establish that a complaint can be recent and admissible, although it may not have been made at the first opportunity which presented itself. What is the first reasonable opportunity will depend on the circumstances including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so.

Approved: Jonkers v Police (1996) 67 SASR 401; 91 A Crim R 104 at 407; 109 (Matheson J). See also Kilby warning at [11.300].

[3.4365] False accusation In R v Henry (1968) 53 Cr App R 150 (CA) Salmon LJ, giving the judgment of the court, said (at 153): [H]uman experience has shown that in these courts girls and women do sometimes tell an entirely false story which is very easy to fabricate, but extremely difficult to refute. Such stories are fabricated for all sorts of reasons, which I need not now enumerate, and sometimes for no reason at all.

Approved: R v Gilbert [2002] 2 AC 531; [2002] 2 WLR 1498 (PC) at 537; 1503 [8]; Kelleher v The Queen (1974) 131 CLR 534; 4 ALR 450. Reported cases show false complaints. In W v The Queen (2006) 162 A Crim R 264 at 279 [53] (Tas CCA) a woman’s (second) husband was convicted of raping her. She had earlier made a false accusation of rape against her first husband. In Cannon v Tahche (2002) 5 VR 317 at 320 [4] (CA) a woman made a false allegation of rape against her cousin and injured her own genitalia in an attempt to prove it. Kevin Neil Ibbs was convicted of rape of his wife’s best friend. His defence was consent; both women had arranged it. His appeal against the sentence succeeded: Ibbs v The Queen

[3.4375]

COMPLAINT IN SEXUAL CASES

329

(1987) 163 CLR 447; 27 A Crim R 465; 74 ALR 1. It later emerged that both women had lied. They were convicted of perjury and Mr Ibbs had a judgment of acquittal entered: Ibbs v The Queen (2001) 122 A Crim R 377 (WA CCA). In DPP v Whiteside (2000) 1 VR 331; 114 A Crim R 234 at 333 [6] (CA) a woman made a false complaint to the respondents that she had been sexually assaulted by two men. In Victorian Lawyers RPA Ltd v X (2001) 3 VR 601 (Harper J) a woman law graduate sought admission to practise. She had earlier made many false reports of sexual assaults against herself and others. His Honour detailed the reports (at 605–606 [16] – [24]). His Honour refused admission to practise. In R v Pearce (1999) 3 VR 287; 108 A Crim R 580 (CA) there were many false complaints (at [12]). Admissibilty: Generally, evidence of other false allegations is admissible. It is an exception to the finality rule on credit of a witness. W v The Queen (2006) 162 A Crim R 264 (Tas CCA); R v Lawrence [2002] 2 Qd R 400; (2001) 124 A Crim R 83 (CA); R v Nagrecha [1997] 2 Cr App R 401 (CA); R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466. See also Credit at [3.9600]; Rape at [18.100]; and Sexual offence at [19.3000].

[3.4370] Gap in the evidence No complainant In Ugle v The Queen (1989) 167 CLR 647; 88 ALR 513; 43 A Crim R 446 the court allowed the appeal where evidence of recent complaint was given by a friend of the complainant, but the complainant herself did not give evidence.

Person complained to does not give evidence In White v The Queen [1999] 1 AC 210; [1999] 1 Cr App R 153; [1998] 3 WLR 992 (PC) the complainant gave evidence that she complained to others. Those others did not give evidence. The Board advised that the evidence was not admissible. If that evidence had to come out the trial judge had to give a careful direction that it was not corroboration, nor could it be taken into account in assessing the credibility of the complainant. The contrary conclusion was reached in R v J [No 2] [1998] 3 VR 602 at 614–620 (CA) and R v GAE (2000) 1 VR 198; 109 A Crim R 419 at 228–229 [93] – [96] (CA).

[3.4375] Need for a clear direction to the jury In Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538; 98 A Crim R 107; 143 ALR 52 the High Court said in a joint judgment (at 539; 54): Unless the trial judge made clear to the jury the limited use they might make of the evidence of the complainant of her complaints and the evidence of those to whom she complained, there was every likelihood the jury might treat that evidence as confirmatory proof of the facts which the Crown alleged. The distinction may not be an easy one for a jury to grasp but this does not detract from the need for the distinction to be carefully explained. Unless explained, the evidence might well have played an important part in the jury’s assessment of credibility.

330

ROSS ON CRIME

[3.4380]

[3.4380] Possible direction on recent complaint Where a person is charged with a sexual offence, evidence can be given that the victim made a complaint soon after. It must be a complaint of a sexual nature which is expressed and not general discourse.1 If the complaint is too late to be recent, it is not admissible.2 If the complaint is recent, the complainant must give that evidence.3 The person to whom the complaint is made may not need to give evidence.4 The reasons behind the legal basis for the evidence should not be referred to.5 Assuming the evidence to be admissible, the following is a possible direction. 1. You have heard evidence that the victim complained of the act which is the subject of this charge (recite the evidence). 2. Evidence of complaint tends to show consistency. 3. Evidence of complaint does not support or back up evidence that the act took place.6 It is, as I said, introduced by the prosecution to show consistency. 4. The fact that a complaint was made does not by reason of that fact alone show that the act occurred. 5. A person may delay in making a complaint. There may be good reason for that delay. 6. The delay in making a complaint does not mean that the act did not occur. 7. It is up to you to decide whether the delay in making the complaint is consistent or inconsistent with whether the act occurred.7 8. The difficulty about delay in complaint is that the accused who denies the act is less able to show that the act could not have occurred. 9. Because of the delay the accused may be deprived of a cast iron alibi to show that the act could not have occurred.8 10. To sum up. Complaint may show consistency of conduct. That is for you to decide. Delay may be reasonable but may show inconsistency of conduct. Again, it is up to you. Delay may have seriously compromised the defence but that is something we will never know.

1 R v Saragozza [1984] VR 187; (1983) 9 A Crim R 185 at 198–199; R v Knigge (2003) 6 VR 181 at 190 [15]. 2 R v Knigge (2003) 6 VR 181 at 192 [19]. 3 Ugle v The Queen (1989) 167 CLR 647; 88 ALR 513; 43 A Crim R 446. 4 R v J (No 2) [1998] 3 VR 602 at 614–620; R v GAE (2000) 1 VR 198; 109 A Crim R 419 at 228–229 [93] – [96]. The Privy Council came to a contrary conclusion in White v The Queen [1999] 1 AC 210; [1999] 1 Cr App R 153; [1998] 3 WLR 992. 5 R v Knigge (2003) 6 VR 181 at 193 [21]; R v Munday (2003) 7 VR 423; 143 A Crim R 318 at [19] – [20]. 6 That is, it is not corroboration. 7 R v RH McL [1999] 1 VR 746 at 773. 8 Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538; 98 A Crim R 107; 143 ALR 52 at 455 (CLR); R v PY (1999) 105 A Crim R 505 at 509.

[3.4400]

COMPLICITY

331

COMPLICITY Shared criminal responsibility .................................................................................................... Differs from conspiracy and accessory ...................................................................................... Definitions ................................................................................................................................... Overlap of the terms ................................................................................................................... Presence ....................................................................................................................................... Effect of aid and abet ................................................................................................................. Elements of aiding and abetting ................................................................................................. Presence alone is insufficient ...................................................................................................... Withdrawal or countermand is a defence .................................................................................. Elements of counselling .............................................................................................................. Continuing act of counselling and procuring ............................................................................ Charging two or more persons ................................................................................................... Principal needed .......................................................................................................................... Principal’s knowledge of aiding and abetting ........................................................................... Where a principal could not be convicted or is acquitted ........................................................ Counsel and procure: offence must be committed .................................................................... Principal offence not complete ................................................................................................... Insanity ........................................................................................................................................ Aiding and abetting a summary offence .................................................................................... Aiding and abetting a strict liability offence ............................................................................. Sentencing ................................................................................................................................... Extended common purpose ........................................................................................................ Judge’s directions on extended common purpose .....................................................................

[3.4400] [3.4405] [3.4410] [3.4415] [3.4420] [3.4425] [3.4430] [3.4435] [3.4440] [3.4445] [3.4450] [3.4455] [3.4460] [3.4465] [3.4470] [3.4475] [3.4480] [3.4485] [3.4490] [3.4495] [3.4496] [3.4497] [3.4498]

[3.4400] Shared criminal responsibility The law as to who can be prosecuted for the acts of another, or for the acts of a group, is described by a set of traditionally recognised terms: accessory, aid and abet, counsel and procure, acting in concert, common purpose, extended common purpose and joint criminal enterprise are examples. These terms deal with prosecuting a secondary party for the acts of the primary actor; they all require that a criminal act has been committed. By contrast, conspiracy refers to agreeing to commit an offence, and incitement to encouraging, requesting or commanding the commission of an offence. Conspiracy and incitement do not necessarily require that a substantive offence be committed. For example, particular conduct might be described (and charged) as inciting an offence, but if the person incited goes ahead and commits the offence, the same conduct could then be charged as counselling or procuring that offence. See Conspiracy at [3.6500] and Incitement at [9.1200]. The differences between the terms listed above relate to the questions of presence and agreement. The following simplified table is an attempt to rationalise the categories, but it is important to understand that these distinctions are not necessarily agreed upon by all authorities, and that each term is to be understood by its own elements rather than by reference to dividing lines between the categories. For the meaning of presence, see below.

332

ROSS ON CRIME

[3.4405]

Presence required

Presence not necessary

Agreement required

Acting in concert (including extended common purpose)

Joint criminal enterprise (apparently not including extended common purpose: see Likiardoupoulos at [62])

Agreement not necessary

Aiding or abetting

Counselling or procuring

Confusion in terminology In Likiardopoulos v The Queen [2010] VSCA 344 the Victorian Court of Appeal said: [T]he nomenclature used to describe ways in which more than one person may be liable as a principal offender for a criminal venture has presented a recurring problem.

So, in McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26, 113–114 the High Court said: The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission. But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

Generally the prosecution will allege alternative bases of liability: for example, in Clayton and Hartwick v The Queen (2006) 81 ALJR 439; 231 ALR 500; 168 A Crm R 174 the case was brought on three alternative bases: joint enterprise, extended common purpose, and aiding and abetting. With the exception of extended common purpose it is doubtful whether offenders are very often convicted as acting in concert or participants in a joint enterprise who would not be liable as aiders, abettors, procurers or counsellors. This was apparently recognised by the authors of the Commonwealth Criminal Code, which does not refer to acting in concert, joint criminal enterprise or common purpose. The only bases on which criminal liability is extended to secondary parties under the Code are aiding, abetting, procuring or counselling.

[3.4405] Differs from conspiracy and accessory Despite the overlap, the categories of complicity are alternatives. Each has its own elements which must be proved to establish criminal responsibility. In Truong v The Queen (2004) 223 CLR 122; 205 ALR 72 Hayne J said (at 185–186; 117 [190] – [191]): Where two offenders agree to commit an offence, and that offence is later committed, it is possible to describe the criminality of their conduct both as the offence of conspiracy and the substantive

[3.4410]

COMPLICITY

333

offence committed. And where two offenders act in concert in pursuit of a common criminal design each may be found guilty of the offence that has been committed even if it is shown that each participated in its commission in some different way. And again, persons may be guilty of an offence as an accessory before the fact or as a principal in the second degree who, being present at the scene of a crime, aids or abets its commission. The establishment of each of these different forms of criminal responsibility will require proof of the particular elements which go to establish that responsibility. The elements of a charge of conspiracy differ from the elements to be established in proving joint criminal enterprise. The elements of each of those offences differ from what must be established to make out a case that an accused person was an accessory before the fact or a principal in the second degree.

Other terms: Accessory before the fact and Principal in the second degree In Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 Mason J said (at 493; 177; 655): In felony at common law the terms “aid” and “abet” are generally used to refer to the conduct of a principal in the second degree, or one who is present at the commission of the offence by the principal offender, while the terms “counsel” or “procure” are generally used in relation to the conduct of an occasion before the fact, or one who is absent at the time of the commission of the offence … In substance however there appears to be no distinction between a principal in the second degree and an accessory before the fact beyond the question of presence.

Accessory before the fact therefore seems to be synonymous with someone who “counsels or procures”. A “principal in the second degree” is present at the commission of the offence and “aids or abets”. However, in R v Wong (2005) 202 FLR 1; 2005 VSC 96 (Vic, Kellam J) his Honour examined authority and said (at 17 [58]): The distinction once made between an aider and abettor who was present at the scene of the crime, and counsellors or procurers on the other hand who were not, is in my view no longer valid.

[3.4410] Definitions Aid: “the ordinary meaning of aid is to give help support or assistance to”: R v Giorgi and Romeo (1982) 31 SASR 299; 7 A Crim R 305 (CCA). Abet: “A common dictionary meaning of abetting is ‘encouraging’ or ‘countenancing’; and this is to be remembered when the words ‘aiding or abetting’ alone are used”: R v Russell [1933] VLR 59 (CCA) per Cussen ACJ at 67. “‘Abet’ means to incite, instigate or encourage”: R v Giorgi and Romeo (1982) 31 SASR 299; 7 A Crim R 305 (CCA). Counsel: The Macquarie Dictionary defines “counsel” as advise; urge the doing or adoption of; recommend (a plan). In R v Calhaem [1985] QB 808; [1985] 2 All ER 266; [1985] 81 Cr App R 131 at 813, 269, 135 (CA) “counsel” means advise or solicit. In R v Hamilton [2005] 2 SCR 432; 255 DLR (4th) 283; 198 CCC (3d) 1 (SCC) the majority defined “counselling” (at 444; 292–293; 11 [29]): [T]he deliberate encouragement or active inducement of the commission of a criminal offence.

In R v Baker (1909) 28 NZLR 536 Cooper J held that the word “counsel” is probably equivalent to “instigates”. Procure: “To procure means to produce by endeavour … a thing by setting out to see that it happens and taking the appropriate steps to produce that happening”: Attorney-General’s Reference No 1 of 1975 [1975] QB 773; [1975] 2 All ER 684; 61 Cr App R 118 at 779, 686, 121 (CA).

334

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[3.4415]

Approved: Truong v The Queen (2004) 223 CLR 122; 205 ALR 72 at 142; 80 [30] per Gleeson CJ, McHugh and Heydon JJ. The word procure is not a term of art and its meaning is to be derived from its usage on a particular occasion: R v Broadfoot (1976) 3 All ER 753; 64 Cr App R 71 at 74; R v F [2004] 1 Qd R 162; (2003) 140 A Crim R 447 at [42] (CA). See also McDermott v The Queen (1987) 45 SASR 335 (CCA). In R v Georgiou (2002) 131 A Crim R 150 (Qld CA) the court said in a joint judgment (at 166 [79]): The words “counselled” and “procured” are ordinary English terms having their usual meaning. Where their meaning is clear, no further explanation is necessary in a direction to the jury. Their ordinary meaning does not encompass simply knowing about the intention to commit an offence.

[3.4415] Overlap of the terms In Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 Mason J said (at 493, 177–178, 655): While it may be that in the circumstances of a particular case one term will be more closely descriptive of the consent of a secondary party than another, it is important that this not be allowed to obscure the substantial overlap of the terms at common law and the general concept they embody.

[3.4420] Presence Presence does not necessarily mean immediate physical presence. In Likiardopoulos, the Victorian Court of Appeal said: Sixth, implicit in the applicant’s submission was a narrow conception of presence. But it is a mistake to think, in the King and Lowery context, that “presence” has a narrow meaning. The example which Smith J gave the jury – of three persons who would be guilty of housebreaking despite two of them not entering the house, one being physically further distant from the house than the other, shows the elasticity of the concept. The same is true of the bank robbery example often given to juries. Note also that Professor Sir John Smith , in Reshaping the Criminal Law: Essays in Honour of Glanville Williams,9 said this about the historical distinction between aiders and abettors and principals, resting on presence or absence from the commission of the crime: Presence was interpreted very broadly. A person who was many miles away could be regarded as “constructively” present if he was assisting at the time of the commission of the offence; so that the test, in substance, was one of time rather than place.10 So, in the present case, if presence had been required, it could not be said, in our opinion, that the applicant was necessarily not present only because at some stage he was not in the room of the house where the victim was then being beaten, as distinct from being in the house. Perhaps, depending on the circumstances, the same might be said of a time when he had left the house.

[3.4425] Effect of aid and abet In R v Lowery & King (No 2) [1972] VR 560, Smith J gave the following directions to the jury (at 561–562): 9 Smith J, “Aid, abet or procure”, P R Glazebrook (Ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams, Stevens & Sons, London, 1978. 10 Smith J, “Aid, abet or procure”, P R Glazebrook (Ed), Reshaping the Criminal Law: Essays in Honour of Glanville Williams, Stevens & Sons, London, 1978 p 126.

[3.4435]

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Even if there is no prior understanding or arrangement that the crime shall be committed a person is guilty in law of a crime committed by the hand of another – another whom the law calls the principal in the first degree – if the person is present when the crime is committed and aids and abets the commission of it. In such circumstances he is called the principal in the second degree and is equally guilty of the crime with the principal in the first degree. Aiding and abetting in this connection means doing one or other of three things while aware that the crime is being committed: first, intentionally helping the principal in the first degree to commit the crime, or, secondly, intentionally encouraging him by words or by your presence and behaviour to commit it, or, thirdly, intentionally conveying to him by words or by your presence and behaviour that you are assenting to and concurring in his commission of the crime. A person present at the scene of the crime and so aiding and abetting a person to commit a crime is in law a principal in the second degree and is guilty in law of the crime committed by the hand of the principal in the first degree.

[3.4430] Elements of aiding and abetting Generally In Holloway v Gilport Pty Ltd (1995) 79 A Crim R 76, Hunt CJ at CL said (at 89): In Giorgianni (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 at 487–488, 494, 500, 504–505, 506–507 (CLR) at 172–173, 178, 183, 186–187, 187–188 (A Crim R), it was held by the High Court that, in order to establish that one person is an accessory to the commission of an offence by another person by aiding and abetting him, the prosecution must establish: (1) the commission of that offence by the principal offender, and (2) that the accused was present at the time when the offence was committed, and (3) that (subject to an exception which is immaterial here) the accused knew all the essential facts or circumstances which must be established by the prosecution in order to show that the offence was committed by the principal offender (whether or not the accused knew that they amounted to an offence), and (4) that, with that knowledge, he intentionally assisted or encouraged the principal offender to commit that offence. The accessory’s intention to assist or encourage the principal offender must be based upon that knowledge. See also Stokes and Difford (1990) 51 A Crim R 25 at 37–38.

Criminal Code Act 1995 (Cth) In Re Pong Su (2005) 159 A Crim R 300 (Vic, Kellam J) his Honour ruled on the effect of the Criminal Code Act 1995 (Cth). His Honour concluded (at 313 [49]): [T]he effect of the Code is that in order to prove that the accused persons aided, abetted, counselled or procured the commission of an offence the prosecution must prove: • That the conduct of each or any of the accused persons in fact aided, abetted, counselled or procured the commission of the offence which was committed by the other person (s 11.2(2)(a)). • That the offence which was so aided, et cetera, was committed by the other person. • That the accused person intended that his conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed (s 11.2(3)(a)). In this case the type of offence is the offence of importing prohibited imports to which s 233B(1)(b) of the Customs Act 1901 applies.

[3.4435] Presence alone is insufficient In R v Lam (2008) 185 A Crim R 453 (Vic CA) the court said in a joint judgment (at 478 [92]): [I]t is crystal clear that simply being present at the scene of a crime being committed by another is insufficient to render an individual also guilty. Further, it is not enough that the person alleged to be aiding and abetting is present by reason of curiosity, a high level of interest or even of a strong approval of the principal’s conduct.

336

ROSS ON CRIME

[3.4435]

In R v Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344; (1971) 55 Cr App R 445 (C-MAC) Megaw LJ, giving the judgment of the court, said (at 1406; 347; 450): It is not enough, then, that the presence of the accused person has, in fact, given encouragement. It must be proved that he intended to give encouragement; that he wilfully encouraged.

In R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 (CCA) Cox J said (at 12; 162): The relevant legal principles have been stated in a number of cases (R v Coney (1882) 8 QBD 534; R v Allan [1966] AC 1; (1963) 47 Cr App R 243; R v Clarkson [1971] 1 WLR 1402; 3 All ER 344; 55 Cr App R 445; R v Jones and Mirrless (1977) 65 Cr App R 250) … In addition to establishing on evidence admissible against the accused charged as an abettor that the crime charged or its alternative was committed by the principal offender and that the conduct of the accessory in fact encouraged the commission of that crime, the Crown must prove that the accomplice intended that crime to be committed by the principal offender and furthermore must prove wilful encouragement or, in other words, must prove that the accomplice intended his conduct to have the effect of encouraging the principal offender. Mere presence, even if it has the effect of encouraging the principal offender to commit the crime and is accompanied on the part of the accomplice by an intention to render assistance if required, is not sufficient: Jones and Mirrless (1977) 65 Cr App R 250 at 252.

Other cases BG v Western Australia (2005) 152 A Crim R 207 at 221 [68] (WA CCA); Randall v The Queen (2004) 146 A Crim R 197 at 214 [40] (Tas CCA). All of the above were rape cases. As to other offences of violence: In R v Beck [1990] 1 Qd R 30; (1989) 43 A Crim R 135 (CCA) the appellant had been convicted of murder as an accessory. Her appeal was dismissed. Macrossan CJ said (at 37; 142–143): Proof of guilt of the crime of aiding will not ordinarily be established by mere presence if no tell-tale acts are performed by the alleged aider but the intention behind and the effect of the presence of the additional person at the scene may be established by other evidence from which it is possible to say that a case of intentional encouragement or support of the principal offender is made out.

In R v Johnson; Ex parte Attorney-General [2007] QCA 76 (16 March 2007) Holmes JA quoted the above proposition from Beck, then said (at [48]): That passage emphasises three things: (1) that proof of mere presence at the scene of the offence will not suffice; (2) that the prosecution must establish that the intention behind the presence is to encourage; and (3) that the prosecution must establish that the effect of the presence is to encourage.

In R v Adam (1999) 106 A Crim R 510 (NSW CCA) the court said in a joint judgment (at 524): Mere presence as a bystander would be insufficient to incur criminal liability. Counsel referred to R v Clarkson [1971] 1 WLR 1402; [1971] 3 All ER 344; 55 Cr App R 445 and R v Doorey and Gage [1970] 3 NSWR 351. The principle that a person who is present at the commission of a crime is not liable as an accessory, unless he intentionally assists or encourages the principal offender to commit the crime, has been recognised in later decisions of this court (see for example R v Stokes and Difford (1990) 51 A Crim R 25).

See also R v Camilleri (2001) 119 A Crim R 106 (Vic CA) at 135 [88]. In R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 (CCA) Wood CJ at CL said (at 487, 47 [77] – [78]): [I]n Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641, the court made it clear that the principal in the second degree must actually know that the crime is being

[3.4450]

COMPLICITY

337

committed or will be committed. To that extent, the non-accidental presence of the appellant and his acquiescence in or assent to what occurred would not be enough, unless it was also made clear that the Crown had to establish that such assent or acquiescence amounted to that degree of encouragement or assistance as would constitute him a principal in the second degree.

[3.4440] Withdrawal or countermand is a defence In White v Ridley (1978) 140 CLR 342; 21 ALR 661 Gibbs CJ said (at 351; 669): The countermand must have been manifested by words or conduct sufficiently clear to bring it home to the mind of the agent that the accused no longer desires the agent to do what he was previously asked to do; a vague, ambiguous or perfunctory countermand would not be enough. And the accused must have done or said whatever was reasonably possible to counteract the effect of his earlier request. The countermand will not have been timely if it was given when it was too late to stop the train of events which was started by his request. … the mere fact that one or more parties to it feels qualms or wish that they had not got themselves involved or wish that it were possible to stop the criminal act or acts agreed upon, will not amount to a calling off of the understanding or agreement once it has been made. In order to call it off so far as concerns himself, a party must communicate his withdrawal to the other parties, or at all events take some positive step, such as informing the police: R v Jensen and Ward [1980] VR 194 at 201 (CCA).

In R v Menniti [1985] 1 Qd R 520; (1984) 13 A Crim R 417 (CCA) it was held that countermand or withdrawal constitute defences. See also R v Wilton (1993) 64 A Crim R 359 (Tas, Zeeman J); R v Pink [2001] 2 NZLR 860 (Hammond J). Article Lanham D, “Accomplices and Withdrawal” (1981) 97 LQR 575–592.

[3.4445] Elements of counselling In R v Hamilton [2005] 2 SCR 432; 255 DLR (4th) 283; 198 CCC (3d) 1 (SCC) Fish J giving the judgment of the majority said (at 444; 292–293; 11 [29]): In short, the actus reus for counselling is the deliberate encouragement or active inducement of the commission of a criminal offence. And the mens rea consists in nothing less than an accompanying intent or conscious disregard of the substantial and unjustified risk inherent in the counselling: that is, it must be shown that the accused either intended that the offence counselled be committed, or knowingly counselled the commission of the offence while aware of the unjustified risk that the offence counselled was in fact likely to be committed as a result of the accused’s conduct.

Where one confederate counselled another to commit an offence and an offence is committed different from that which is counselled, the counsellor is liable provided the facts constituting the offence are a probable consequence of carrying out the counsel: Stuart v The Queen (1974) 134 CLR 426; 4 ALR 545. See also Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641; R v Calhaem [1985] QB 808; [1985] 2 All ER 266; [1985] 81 Cr App R 131.

[3.4450] Continuing act of counselling and procuring Counselling and procuring can be a continuing act: R v Robert Millar (Contractors) Ltd [1970] QB 54; [1970] 1 All ER 577; 54 Cr App R 158 at 73, 581, 167 (CA).

338

ROSS ON CRIME

[3.4455]

See also Rajalingam Sivaprahasam v The Queen [1972] WAR 137; (1971) 20 FLR 393 at 140, 397 (CA).

[3.4455] Charging two or more persons It is open to the prosecution to charge two or more persons with the commission of an offence where it is not able to show which was the principal in the first degree, and which was the principal in the second degree. In R v Lowery & King (No 2) [1972] VR 560 Smith J said (at 562): [T]he Crown here is entitled to urge on you that even if for some reason you were not satisfied that there was an actual understanding or arrangement between the two accused that the girl should be killed, nevertheless, you should at least be satisfied by the evidence admissible against each of the accused that the girl must have been intentionally killed by the conscious, voluntary act of one of them, no matter which, aided and abetted by the other.

See also Matusevich v The Queen (1977) 137 CLR 633; 15 ALR 117 (HC); R v Jensen and Ward [1980] VR 194 (CCA); R v Conlon (1982) 30 SASR 176 (Cox J).

[3.4460] Principal needed A person cannot be convicted of aiding and abetting unless the offence is proved to have been committed by some other person: Walsh v Sainsbury (1925) 36 CLR 464 (HC); R v Paterson [1976] 2 NZLR 394 (CA); R v Whitehouse [1977] QB 868; [1977] 3 All ER 737; 65 Cr App R 33. But if the offence can be proved to have been committed by one of two or more persons, with the other aiding and abetting, each can be convicted: R v Lowery & King (No 2) [1972] VR 560.

[3.4465] Principal’s knowledge of aiding and abetting In R v Lam (2005) 159 A Crim R 448 (Vic, Redlich J) his Honour made a long and careful study of the need for the prosecution to prove a principal’s awareness of the acts of aiding and abetting. His Honour ruled (at 472 [76] – [77]): The primary offender need not be aware of acts of assistance performed by the principal in the second degree with the requisite knowledge and intention. Acts of encouragement must be viewed differently. For the words or conduct of an accused person to have the capacity to encourage the perpetrator of the crime, the words must be spoken and the conduct take place in the presence of the primary offender. The prosecution must establish that the secondary participant conveyed or communicated to the principal offender his encouragement by words or by his presence and behaviour that the offence should be committed. The prosecution need not establish that the principal in the first degree was aware of the words or acts of encouragement so long as they were communicated or conveyed with the necessary intention by the secondary participant and in circumstances where the principal offender could be aware of them. The prosecution is not required to establish that the acts said to constitute aiding and abetting in fact assisted or encouraged the principal in the first degree. The suggestion in some of the authorities to which I have referred that it must be established that the principal in the first degree was in fact assisted or encouraged do not in my respectful opinion accord with principle or those authorities which I regard as persuasive and plainly correct.

[3.4475]

COMPLICITY

339

[3.4470] Where a principal could not be convicted or is acquitted A person may be convicted of aiding, abetting, counselling or procuring even though the principal could not be convicted. One such example is the supply of drugs because of deeming provisions. In Maroney v The Queen (2003) 216 CLR 31; 139 A Crim R 568; 202 ALR 405 all the judges except Kirby J said (at 35–36, 408 [11]): The effect of statutory deeming provisions is often to arrive at results quite different from those which the ordinary meanings of words would produce. One of those results is that a person can be convicted of aiding, abetting, counselling or procuring the commission of a statutory offence even though the statute creating the offence deals only with the liability of the principal offender, and even if the offence is of such a nature that the person convicted of aiding, abetting, counselling or procuring, could not have committed the offence as a principal offender: Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 at 491–2 (CLR), 654–5 (ALR) per Mason J.

The mere fact that the principal is not charged or is acquitted does not mean that the principal in the second degree should also be acquitted. That circumstance can occur where the criminal act is performed but the principal is forced into it by the aider and abetter, or where the principal cannot form the necessary intent because of mental infirmity. R v Bourne (1952) 36 Cr App R 125 (CA); R v Cogan & Leak [1975] 3 WLR 316; [1975] 2 All ER 1059 (CA); Schultz v Pettitt (1980) 25 SASR 427 at 438 (Cox J); R v Hewitt [1997] 1 VR 301; (1996) 84 A Crim R 440 (CA). In such cases it will take special circumstances for the principal in the second degree to be convicted: Morris v Tolman [1923] 1 KB 166; [1922] All ER Rep 182; (1922) 27 Cox CC 345 (KBD); R v Harrison [1941] NZLR 354 (CA); Surujpaul v The Queen [1958] 1 WLR 1050; [1958] 3 All ER 300; (1958) 42 Cr App R 266 (PC); R v Daniels & Kalatzis [1972] Qd R 323 (CCA); R v Quick and Paddison [1973] QB 910; [1973] 3 All ER 347; (1973) 57 Cr App R 722 at 923, 356–357 736 (CA); R v Giorgianni (1981) 7 A Crim R 204 (NSW CCA).

[3.4475] Counsel and procure: offence must be committed Subject to the law of conspiracy and incitement, it is not an offence to counsel the commission of an offence which is not actually committed: R v Bowern (1915) 34 NZLR 696 (CA); R v See Lun & Welsh (1932) 32 S R (NSW) 363 (CCA); Walsh v Sainsbury (1925) 36 CLR 464; Cain v Doyle (1946) 72 CLR 409. See also Conspiracy at [3.6500]; and Incitement at [9.1200].

340

ROSS ON CRIME

[3.4480]

[3.4480] Principal offence not complete A person can be guilty of aiding and abetting notwithstanding the principal offence amounts only to an attempt: R v Dunnington [1984] QB 472; [1984] 1 All ER 676; (1983) 78 Cr App R 171 (CA).

[3.4485] Insanity An insane aider and abettor is entitled to an acquittal: R v Aarons [1985] VR 974 (Booking J). But a person can be convicted of aiding and abetting an insane principal.

[3.4490] Aiding and abetting a summary offence Legislation In Queensland and Western Australia the Criminal Code applies. Tas: Justices Act 1959 s 73; NT: Justices Act s 53; NSW: Criminal Procedure Act 1986 Sch 1 Table 1 Pts 1 and 12; Vic: Crimes Act 1958 s 324; Magistrates’ Court Act 1989 s 52; SA: Criminal Law Consolidation Act 1935 s 267.

[3.4495] Aiding and abetting a strict liability offence See also Strict liability at [19.6100]; Accomplice at [1.1600]; Common purpose at [3.3500]; Concert at [3.5100]; and Corroboration at [3.7900].

[3.4496] Sentencing Accessory before the fact In R v KCF (2006) 167 A Crim R 475 (Vic CA) Nettle JA gave the judgment. His Honour referred to authority and said (at 478 [10]): The law is that an accessory before the fact may well be regarded as more blameworthy and so receive a heavier sentence than a principal in the first degree.

[3.4497] Extended common purpose In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court said in a joint judgment (at 114; 30; 233): [E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose. Initially the test of what fell within the scope of the common purpose was determined objectively so that liability was imposed for other crimes committed as a consequence of the commission of the crime which was the primary object of the criminal venture, whether or not those other crimes were contemplated by the parties to that venture. However, in accordance with the emphasis which the law now places upon the actual state of mind of an accused person, the test has become a subjective one and the scope of the common purpose is to be determined by what was contemplated by the parties sharing that purpose.

In R v Taufahema (2007) 228 CLR 232; 81 ALJR 800; 168 A Crim R 95; 234 ALR 1 Glesson CJ and Callinan J described the above paragraph as setting out extended common purpose (at [7]).

[3.4505]

COMPOUNDING CRIME

341

In Clayton v The Queen (2006) 81 ALJR 439; 231 ALR 500; 168 A Crim R 174 on whether the doctrine of extended common purpose should be reconsidered, Kirby J said yes. The rest of the court said no. The Supreme Court of the United Kingdom in R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 agreed with the approach taken by Kirby J.

[3.4498] Judge’s directions on extended common purpose The trial judge should direct the jury that an accused must foresee the criminal act of the principal before the prosecution can prove extended common purpose. In R v Bosworth (2007) 97 SASR 502; 170 A Crim R 110 (CCA) the trial judge did not give the proper direction. Appeal allowed. In R v Hartwick (2005) 14 VR 125; 159 A Crim R 1 (CA) the judge gave the proper directions. Appeal dismissed.

COMPOUNDING CRIME The offence .................................................................................................................................. [3.4500] Legislation ................................................................................................................................... [3.4505]

[3.4500] The offence In R v Enslow (2003) 12 Tas R 200 Underwood J ruled (at 202–203 [6]): [T]he enactment of s 102 considerably expanded the common law offence of compounding a felony. The section provides not only for the case of obtaining a benefit in return for not prosecuting, but also for a case of soliciting, receiving or obtaining, a benefit. The agreement aspect of the common law offence of compounding a felony is also broadened to include not only an agreement not to prosecute, but also an “understanding” not to prosecute. The common law offence is further extended to include an agreement or understanding to discontinue or delay prosecuting as well as to abstain from prosecuting. These provisions widen the common law offence which only embraced an agreement not to prosecute. In addition, the section includes the common law offence of misdemeanour of misprison of a felony, but only in the event of misprison in return for soliciting or receiving or obtaining a benefit. However, the concept of prosecution remained unaffected by the enactment of s 102.

and later (at 203 [9]): [T]he reference to abstaining from a prosecution in the Code, s 102, means the abstaining from the prosecution of a criminal proceeding in a court of law. That was the position at common law. The legislators broadened the concept of the common law offence, but retained the use of the word “prosecution”. I see no warrant for construing the section otherwise.

In Kerridge v Simmonds (1906) 4 CLR 253 the High Court held that withdrawing a private summons for criminal defamation when the parties settle is not wrong for it is not an offence of a public nature. There is a general rule that an agreement to stifle a prosecution is contrary to public policy and void. The rule did not apply in this case.

[3.4505] Legislation Cth: Crimes Act 1914 s 44; Qld: Criminal Code s 133; WA: Criminal Code s 136; Tas: Criminal Code s 102; NT: Criminal Code s 104;

342

ROSS ON CRIME

[3.4700]

Can: Criminal Code 1985 s 141. There is no misprision of felony in the Codes. Misprision should be distinguished from compounding. Compounding a crime is an offence but one of its elements is obtaining etc a benefit. Withdrawing a private summons for criminal defamation when the parties settle is not wrong for it is not an offence of a public nature. There is a general rule that an agreement to stifle a prosecution is contrary to public policy and void. The rule did not apply in this case: Kerridge v Simmonds (1906) 4 CLR 253. See also Misprision at [13.2700].

COMPUTERS Unlawful access and damage ..................................................................................................... Using internet to procure unlawful sex ...................................................................................... Internet used by jurors ................................................................................................................ Computers as business records ...................................................................................................

[3.4700] [3.4705] [3.4710] [3.4715]

[3.4700] Unlawful access and damage Legislation makes an offence of unlawful access and damage.

Legislation Cth: Criminal Code Act 1995 ss 476–478; Crimes Act 1914 ss 3C(1); 3L–3N; Qld: Criminal Code s 408D; WA: Criminal Code s 440A; Tas: Criminal Code ss 257A–257F; NT: Criminal Code ss 222; 276–276F; NSW: Crimes Act 1900 ss 308–308I; Vic: Crimes Act 1958 ss 247A–247I; SA: Criminal Law Consolidation Act 1935 ss 86B–86I; ACT: Criminal Code 2002 ss 412–421; NZ: Crimes Act 1961 ss 248–254.

[3.4705] Using internet to procure unlawful sex Some legislation creates offences of exposing a child to indecent matter or procuring a child to engage in a sexual act.

Legislation Cth: Criminal Code Act 1995 ss 474.25–474.27; Qld: Criminal Code s 218A; WA: Criminal Code s 204B; Tas: Criminal Code s 125D.

[3.4900]

CONCEALING BIRTH

343

See also SA: Criminal Law Consolidation Act 1935 s 63B. The offence R v Shetty [2005] 2 Qd R 540; (2005) 153 A Crim R 556 (CA). Sentence Teckton v The Queen (2008) 186 A Crim R 133 (NSW CCA); R v Burdon; Ex parte Attorney-General (Qld) (2005) 153 A Crim R 104 (Qld CA).

[3.4710] Internet used by jurors Jurors should not use the internet on a case they are deciding. In R v Karakaya [2005] 2 Cr App R 77 (CA) the appellant was convicted of rape. After verdict the bailiff found two documents in the jury room, both of them articles about rape. Parts of them were quite inaccurate. The trial judge told counsel of them. The Court of Appeal set the conviction aside. R v McLachlan [2000] VSC 215 was a murder retrial. It emerged that an internet site referred to the conviction of the accused and recited the facts wrongly. Hampel J discharged the jury. After conviction when it is apparent that such a search was made, the conviction will be set aside: R v K (2003) 59 NSWLR 431; 144 A Crim R 468 (CCA).

[3.4715] Computers as business records The legislation on business records and computers differs in each jurisdiction. In Markinova v The Queen (1996) 16 WAR 354; 131 FLR 52; 93 A Crim R 149 (CCA) an accomplice on drug offences kept computer diaries of drug importation and distribution. The CCA held that the computer diaries were properly admitted as an exception to the rule against hearsay.

CONCEALING BIRTH Offence ........................................................................................................................................ Origins ......................................................................................................................................... Legislation ................................................................................................................................... Concealment must be of a dead body ........................................................................................ Child ............................................................................................................................................ Act of concealment is necessary ................................................................................................ Concealment ................................................................................................................................ Non-concealment ........................................................................................................................ Sentencing ...................................................................................................................................

[3.4900] [3.4905] [3.4910] [3.4915] [3.4920] [3.4925] [3.4930] [3.4935] [3.4940]

[3.4900] Offence The offence is the attempt to conceal the body of a dead child. In R v C (1998) 98 A Crim R 531 (NT) Martin CJ said (at 532): [I]t is the endeavouring to secretly dispose of the dead body of the child, which is the principal element of the offence.

Further (at 533): [T]he crime is not regarded by Parliament as being serious.

344

ROSS ON CRIME

[3.4905]

[3.4905] Origins The offence derives from Eng 9 Geo 4, C 31, s 14 and 24 and 25 Vict C 100, s 60.

[3.4910] Legislation Qld: Criminal Code s 314; WA: Criminal Code s 291; Tas: Criminal Code s 166; NT: Criminal Code s 163; NSW: Crimes Act 1900 s 85; Vic: Crimes Act 1958 s 67; SA: Criminal Law Consolidation Act 1935 s 83; ACT: Crimes Act 1900 s 47; NZ: Crimes Act 1961 s 181. In the Code jurisdictions concealing birth is an alternative to homicide. See Queensland s 577; Western Australia s 595; Tasmania ss 333, 334; Northern Territory s 317.

[3.4915] Concealment must be of a dead body In R v May (1867) 10 Cox CC 448 (CCA – five member court) a woman had given birth in a field. The baby was probably born alive. She did not return and the child was found dead. The conviction was set aside. The court said (at 449–450): [A]s the statute relates only to the disposal of the dead body of a child, this indictment cannot be sustained.

[3.4920] Child The child of which the woman was delivered must have reached a sufficient term to be capable of being born alive. In R v Hewitt and Smith (1866) 4 F & F 1101; 176 ER 923–924 the child had not reached seven months from conception. Smith J ruled that he would direct the jury “whether the offspring had so far matured as to become a child, or was only a foetus or the informed subject of a premature miscarriage”. She was acquitted. In New South Wales s 85(2) of the Crimes Act 1900 (NSW) recognises that no offence can be committed where the pregnancy has not exceeded 28 weeks: 85.(1) Whosoever by any disposition of the dead body of a child, whether the child died before or after or during its birth, wilfully conceals or attempts to conceal the birth of the child, shall be liable to imprisonment for two years. (2) It shall be sufficient defence to any charge under this section if the accused person shall satisfy the court or jury that the dead body in respect of which the disposition took place had issued from the body of its mother before the expiration of the twenty-eighth week of pregnancy.

[3.4925] Act of concealment is necessary In R v Turner (1839) 8 C & P 755; 173 ER 704 at 756 (C & P) Patterson J directed the jury: [T]he prisoner … to come within this enactment, must have endeavoured to conceal the birth, by secret burying or otherwise disposing of the dead body, and I think it is essential to the commission of this offence that she must have done some act of disposal of the body after the child was dead.

[3.5100]

CONCERT

345

See also R v Derham (1843) 1 Cox CC 55 (Colridge J); R v Narden (1873) 12 SCR (NSW) 160 (CCA); R v Mappin (1904) 6 WALR 161 (CCA) at 163–164.

[3.4930] Concealment R v Hughes (1850) 4 Cox CC 447 concerned returning to the place where the child which was born alive but was now dead and concealing the body. Lord Campbell CJ ruled (at 448): [H]ere cannot be any reasonable doubt that the prisoner returned to the outhouse after the child was dead, and although she did not remove it, by replacing of the clothes or other things by which the body was concealed from view, would I think, be an endeavour to conceal by a secret disposal of the dead body within the statute.

[3.4935] Non-concealment Putting the body in a place where it will be found is not concealment: R v George (1868) 11 Cox CC 41 (Bovill CJ).

[3.4940] Sentencing The cases are rare. In England RD Mackay, “The Consequences of Killing Very Young Children” [1993] Crim LR 21 reports that the four cases which arose were largely not proceeded with by the prosecution. The reason for this was said to be (at 26): [T]here was insufficient evidence of a live birth.

In R v C (1998) 98 A Crim R 531 (NT) Martin CJ said (at 533): [A] charge of this nature is rarely brought. I suspect that may be because in many cases the concealment of the dead body is associated with some more serious criminal conduct, and may be because in many cases the act of concealment may not have been accompanied by the necessary mental element such as to constitute the offence. In the circumstances of this case I do not consider that either personal or general deterrence are elements that should weigh heavily with the court in fixing an appropriate penalty, nor do I think that retribution looms large. It is, as your counsel suggests, in reality a victimless crime.

Further (at 534): I think it is appropriate to proceed without recording a conviction and I order that you be released upon your giving security in your own recognisance in the sum of $1,000 that you will appear before the court if called upon to do so within a period of three years, that you be of good behaviour for that period and that you undertake to be subject to the directions and supervision of the Director of Correctional Services, or a person appointed by him, as to psychological counselling and advice.

See also R Kaplan, “Denied Pregnancy” (1996) 30 Australian and New Zealand Journal of Psychiatry 861.

CONCERT Definition ..................................................................................................................................... [3.5100] Acting in concert ........................................................................................................................ [3.5105] Presence ....................................................................................................................................... [3.5110]

[3.5100] Definition In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 the court said in a joint judgment (at 113; 29–30; 232):

346

ROSS ON CRIME

[3.5105]

The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.

In Chan Wing-Siu v The Queen [1985] AC 168; [1984] 3 All ER 877; (1984) 80 Cr App R 117 (PC) Sir Robin Cooke, giving the advice of the Board, said (at 175; 880; 121): [A] person acting in concert with the primary offender may become a party to the crime, whether or not present at the time of its commission, by activities variously described as aiding, abetting, counselling, inciting or procuring it. In the typical case in that class, the same or the same type of offence is actually intended by all the parties acting in concert.

[3.5105] Acting in concert In Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 McHugh J who was the only judge in the majority who dealt with this point said (at 350; 195–196 [93]): Where the parties are acting as the result of an arrangement or understanding, there is nothing contrary to the objects of the criminal law in making the parties liable for each other’s acts and the case for doing so is even stronger when they are at the scene together. If any of those acting in concert but not being the actual perpetrator has the relevant mens rea, it does not seem wrong in principle or as a matter of policy to hold that person liable as a principal in the first degree. Once the parties have agreed to do the acts which constitute the actus reus of the offence and are present acting in concert when the acts are committed, the criminal liability of each should depend upon the existence or non-existence of mens rea or upon their having a lawful justification for the acts, not upon the criminal liability of the actual perpetrator. So even if the actual perpetrator of the acts is acquitted, there is no reason in principle why others acting in concert cannot be convicted of the principal offence. They are responsible for the acts (because they have agreed to them being done) and they have the mens rea which is necessary to complete the commission of the crime.

(See also Gaudron and Gummow JJ at [27].) In R v Tangye (1997) 92 A Crim R 545 (NSW CCA) Hunt CJ at CL said (at 556–557): The Crown needs to rely upon a straightforward joint criminal enterprise only where – as in the present case – it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said. So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting

[3.5110]

CONCERT

347

or encouraging another participant in the joint criminal enterprise to commit that crime. The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

Approved: Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 at [73] per McHugh J. In R v Lowery and King (No 2) [1972] VR 560 the victim was tied up and strangled. Each accused said he was present and part of the planning but that the other did the act. Smith J directed the jury on acting in concert (at 561): For people to be acting in concert in the commission of a crime their assent to the understanding or arrangement between them need not be expressed by them in words their actions may be sufficient to convey the message between them that their minds are at one as to what they shall do. The understanding or arrangement need not be of long standing; it may be reached only just before the doing of the act or acts constituting the crime. Remember, however, that before a person can be found guilty of a crime under this doctrine he must have been present when it was committed and the crime committed must not go beyond the scope of the understanding or arrangement. On the other hand, it is to be remembered that under this doctrine, although the understanding or arrangement must not have been called off before the commission of the crime, the mere facts that while it is being committed one of the persons acting in concert feels qualms or wishes he had not got himself involved or wishes that it were possible to stop the proceedings and still get off Scot free, will not amount to a calling off of the undertaking or arrangement. This doctrine of acting in concert applies to the crime of murder as to other crimes and the first way, the primary way, in which the Crown puts its case against each of these two accused persons is that the evidence admissible against each of them shows beyond all reasonable doubt that the girl was murdered by the acts of one or the other or both of them while they were both present acting in concert to kill her.

[3.5110] Presence It is not necessary that a person be present at the scene of the crime to be acting in pursuit of a common purpose with others who are present: Johns v The Queen (1980) 143 CLR 108; 28 ALR 155. In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 two brothers went to a park with a man named Matthew Davis. They intended to bash someone. One of the two victims was so badly injured that he rolled off the cliff onto a ledge, then from the ledge to his death on rocks. To complete the quotation which introduced this section, the court said in a joint judgment (at 113–114; 29–30; 232–233): The doctrine of common purpose applies where a venture is undertaken by more than one person acting in concert in pursuit of a common criminal design. Such a venture may be described as a joint criminal enterprise. Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime. The liability which attaches to the traditional classifications of accessory before the fact and principal in the second degree may be enough to establish the guilt of a secondary party: in the case of an accessory before the fact where that party counsels or procures the commission of the crime and in the case of a principal in the second degree where that party, being present at the scene, aids or abets its commission (See Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641). But the complicity of a secondary party may also be established by reason of a common purpose shared with the principal offender or with that offender and others. Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The

348

ROSS ON CRIME

[3.5110]

understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission (cf R v Lowery and King. (No 2) [1972] VR 560 at 560 per Smith J).

(at 113–114; 29–30; 232–233). See also Common purpose at [3.3500]; and Joint enterprise at [10.500].

CONFESSION Definition ..................................................................................................................................... Mixed confession ........................................................................................................................ Equivocal or ambiguous confessions ......................................................................................... Prosecution to tender all or nothing ........................................................................................... Is the person interviewed suspected of an offence .................................................................... Caution ........................................................................................................................................ Entitlement to a lawyer .............................................................................................................. Defence tender of confession ..................................................................................................... Uniform Evidence Acts .............................................................................................................. Confession of another ................................................................................................................. Evidential effect .......................................................................................................................... Gaol or cell confession ............................................................................................................... Voluntariness ............................................................................................................................... Uniform Evidence Acts: s 84 exclusion .................................................................................... Overseas confession .................................................................................................................... Tape recording of confession ..................................................................................................... Secretly recorded conversations ................................................................................................. Illegal interviews followed by legal interview .......................................................................... Disputed confessions .................................................................................................................. Confession obtained by violence or force ................................................................................. Confession while the accused is in custody .............................................................................. Confession by a child ................................................................................................................. Mental state of the person confessing ........................................................................................ Physical state ............................................................................................................................... Drunkenness ................................................................................................................................ Hysteria ....................................................................................................................................... Confession through an interpreter .............................................................................................. Expert evidence about a confession ........................................................................................... Inducement .................................................................................................................................. Police duties ................................................................................................................................ Police do not have to accept first answer .................................................................................. Wrongful acts by police ............................................................................................................. Lengthy or unlawful detention in custody ................................................................................. Cross-examination and scepticism ............................................................................................. Not wanting to answer further questions ................................................................................... Putting the statement of the victim to the accused ................................................................... Confrontation between accused and witness ............................................................................. Misrepresentation ........................................................................................................................ Improper questions in interview ................................................................................................. Legal advice sought before answering ....................................................................................... Threat to charge another if no confession ................................................................................. Judge’s discretion to exclude confession ................................................................................... Voir dire to determine voluntariness .......................................................................................... Function of judge and jury on voluntariness ............................................................................. Jury to determine whether confession was made and was true ................................................ Facts revealed or facts already known .......................................................................................

[3.5300] [3.5305] [3.5310] [3.5315] [3.5320] [3.5325] [3.5330] [3.5335] [3.5340] [3.5345] [3.5350] [3.5355] [3.5360] [3.5365] [3.5370] [3.5375] [3.5380] [3.5385] [3.5390] [3.5395] [3.5400] [3.5405] [3.5410] [3.5415] [3.5420] [3.5425] [3.5430] [3.5435] [3.5440] [3.5445] [3.5450] [3.5455] [3.5460] [3.5465] [3.5470] [3.5475] [3.5480] [3.5485] [3.5490] [3.5495] [3.5500] [3.5505] [3.5510] [3.5515] [3.5520] [3.5525]

[3.5305]

CONFESSION

Principles of questioning ............................................................................................................ Editing the record of interview .................................................................................................. Function of counsel and trial judge in editing .......................................................................... No cross-examination on excluded confession .......................................................................... Joint trial: confession of co-accused is hearsay ........................................................................

349

[3.5530] [3.5535] [3.5540] [3.5545] [3.5550]

[3.5300] Definition In Attorney-General (NSW) v Martin (1909) 9 CLR 713 O’Connor J said (at 732): There are many definitions of what will amount to a confession for the purposes of the rule I am considering. They all agree in this, that it must be either a direct admission of guilt, or of some fact or facts which may tend to prove the prisoner’s guilt at the trial. The statement in question is certainly not a direct admission of guilt, nor does it admit any fact or facts which may tend to prove the prisoner’s guilt at the trial.

Dixon J said in McKay v The King (1935) 54 CLR 1 at 9: The very term confession illustrates the difficulty of laying down general propositions. For its meaning extends from the most solemn, spontaneous, express and detailed acknowledgments of the facts constituting a crime to casual admissions of some only of the specific facts involving guilt.

In Anandagoda v The Queen [1962] 1 WLR 817 (PC) the Board advised (at 823–824): The test whether a statement is a confession is an objective one, whether to the mind of a reasonable person reading the statement at the time and in the circumstance in which it was made it can be said to amount to a statement that the accused committed the offence or which suggested the inference that he committed the offence. The statement must be looked at as a whole and it must be considered on its own terms without reference to extrinsic facts. In this connection their Lordships consider that the view expressed by Gratiaen J in Seyadu v King (1951) 53 NLR 251, 253 “The test of whether an ‘admission’ amounts to a confession within the meaning of section 17(2) must be decided ‘by reference only to its own intrinsic terms’” is correct. It is not permissible in judging whether the statement is a confession to look at other facts which may not be known at the time or which may emerge in evidence at the trial. But equally it is irrelevant to consider whether the accused intended to make a confession. If the facts in the statement added together suggest the inference that the accused is guilty of the offence then it is nonetheless a confession even although the accused at the same time protests his innocence.

Under the Uniform Evidence Acts an admission encompasses a confession, and includes both inculpatory and exculpatory statements adverse to the accused’s interests: R v Horton (1998) 45 NSWLR 426; 104 A Crim R 306 (CCA). In R v GH (2000) 105 FCR 419 (FCA) the court held that an exculpatory statement is not an admission.

[3.5305] “Mixed” confession Where a confession contains admissions as well as an exculpatory explanation, that confession is admissible in its entirety.

Prosecution duty to tender In R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13 Gleeson CJ, Gummow, Kirby and Hayne JJ said (at 309–310; 428; 160 [31]): To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen [1969] 1 QB 299; [1968] 2 All ER 761; 52 Cr App R 317 and Apostilides (1984) 154 CLR 563; 15 A Crim R 88 the prosecutor’s obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so.

350

ROSS ON CRIME

[3.5310]

Direction to the jury In Mule v The Queen (2005) 79 ALJR 1573; 221 ALR 85; 156 A Crim R 203 the court in a joint judgment approved most of the direction referred to by Thomas J in R v Cox [1986] 2 Qd R 55; 24 A Crim R 434 at 65, 443 (CCA). The court approved the following (at [23]): With respect, it seems to me to be undesirable that juries be given general a priori directions as to what sorts of evidence are likely to be true, or as to the weight which should be accorded to different parts of the one statement. The matter of weight is for them, and the weight of each part of the statement should be determined in the light of the whole of the evidence. There is, of course, no reason why the trial judge should not point out that such statements have not been made on oath and (where appropriate) that they have not been tested by cross-examination. He may … make any appropriate comments about particular parts of the evidence. The weight which may fairly be accorded to a self-serving statement varies so much from case to case that it is unwise to lay down any general disparaging directions concerning such statements, although of course, critical comments may be made in appropriate cases.

[3.5310] Equivocal or ambiguous confessions In R v Dolan [1962] Qd R 449 (CCA), when reading the statement of another, the accused said: He has dubbed us all in.

The remark was held to be so equivocal as to not amount to a confession. In R v Smith [1981] 5 Crim LJ 161 (NSW CCA) an unlicensed pistol was found at the accused’s house and he was convicted of its possession. The trial issue was knowledge. The accused had told police: This has fucked everything. I wish I could shoot myself with the fucking thing now.

The appeal was allowed, the conviction quashed with no retrial. Roden J said: It is essential, if that evidence is to be regarded as capable of supporting a conviction, that it be unequivocal and that it be inconsistent with innocence.

[3.5315] Prosecution to tender all or nothing In R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13 Gleeson CJ, Gummow, Kirby and Hayne JJ said (at 309–310; 428; 160 [31]): To the extent that an otherwise incriminating statement contained exculpatory material, the prosecution, if it wished to rely on it at all, was bound to take the good with the bad and put it all before the jury. And consistent with what is said in Richardson v The Queen [1969] 1 QB 299; [1968] 2 All ER 761; 52 Cr App R 317 and Apostilides (1984) 154 CLR 563; 15 A Crim R 88 the prosecutor’s obligation to put the case fairly would, on its face, require the prosecutor to put the interview in evidence unless there were some positive reason for not doing so.

R v Cassell (1998) 45 NSWLR 325 (CCA) was a case stated. Mr Cassell was charged with giving false or misleading evidence to the Independent Commission Against Corruption. Smart J said (at 338): The correct procedure is for the accused, upon the tender by the Crown of alleged admissions, to tell the judge, if it be the case, of other parts of his evidence which should be tendered to give the whole picture so far as the admissions go. The judge then rules in accordance with the principles in Jack v Smail. If the judge is of the opinion that other parts of Cassell’s evidence ought reasonably to be tendered by the Crown so as to give the whole picture as to the admissions and to enable the admissions to be taken as a whole and the Crown does not wish to tender these additional parts the Crown tender without those additional parts should be rejected.

[3.5320] Is the person interviewed suspected of an offence The need for suspicion turns on the legislation in the different jurisdictions. That is dealt with below.

[3.5330]

CONFESSION

351

Cases In R v Heaney [1992] 2 VR 531; (1992) 61 A Crim R 241 (CCA) the Court said in a joint judgment (at 548; 258): The section is not concerned with a state of mind founded upon speculation or “mere idle wondering” (Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303) but is concerned with a state of mind arrived at upon consideration of known facts out of which an apprehension that a person might possibly have committed an offence is created.

In R v Raso (1993) 115 FLR 319; 68 A Crim R 495 (Vic CCA) Ormiston J examined legislation and authority. His Honour concluded (at 350; 527): [T]he word “suspect” requires a degree of conviction extending beyond speculation as to whether an offence has been committed and requiring that it be based upon some factual foundation.

Both of these cases were approved in Lai v The Queen (2003) 13 NTLR 139; 180 FLR 190; 143 A Crim R 111 at [22] (CCA).

[3.5325] Caution Police must caution a suspect before interview. See Caution at [3.900].

[3.5330] Entitlement to a lawyer Some legislation provides that interviewing police must advise a suspect of the entitlement to speak to a lawyer before the questioning starts.

Legislation Cth: Crimes Act 1914 s 23G; Qld: Police Powers and Responsibilities Act 2000 ss 418(1)(b) and 419(1)(b); WA: Criminal Investigation Act 2006 s 138(2)(c); Tas: Criminal Law (Detention and Interrogation) Act 1995 s 6; NSW: Law Enforcement (Powers and Responsibilities) Act 2002 s 22(1); Vic: Crimes Act 1958 s 464C; SA: Summary Offences Act 1953 s 79A(1)(b)(i). See also NT: Police Administration Act s 14A: Police General Orders Q1.28 and Q2.

Cases In Carr v Western Australia (2007) 232 CLR 138; 176 A Crim R 555; 239 ALR 415 Gummow, Heydon and Crennan JJ said (at [39]): [T]here is no principle of the common law that persons suspected by police officers of having committed a crime must be advised that they are entitled to communicate with a legal practitioner before being interrogated, or that in default evidence of any confession is automatically inadmissible. If there were such a principle, it would not have been necessary for those jurisdictions which have done so to have enacted legislation imposing a duty so to advise.

Suspect not told of entitlement to a lawyer: R v Thomas (2006) 14 VR 475; 163 A Crim R 567 at 600–602 [104] – [115] (Vic CA): conviction set aside;

352

ROSS ON CRIME

[3.5335]

Tasmania v Challender (2007) 16 Tas R 339 (Blow J): confession ruled inadmissible.

[3.5335] Defence tender of confession Where the prosecution does not tender a confession, it is usually impossible for the defence to do so. Nor, if the point is taken can the confession be cross examined in. The reason being that when the prosecution tenders a confession it does so under an exception to the hearsay rule. The defence cannot tender a confession because it is hearsay and self-serving. The authorities are examined in R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 (CA). Properly stated, a confession is inadmissible at the instance of the accused unless admissible by other rules of evidence: R v Byster (2001) 80 SASR 373; 126 A Crim R 449 at [24] (CCA). Typically the prosecution may refuse to tender an accused’s account which contains only denials. Not only is the defence not allowed to tender the denials, it is not allowed to cross-examine on them: Flowers v The Queen (2005) 189 FLR 423; 153 A Crim R 110 (NT CCA). An exception is where one confession is admissible at the instance of the defence to show or explain the reaction of the accused in another confession tendered by the prosecution: Middleton v The Queen (1998) 19 WAR 179; 100 A Crim R 244 (CCA). In R v Kochnieff (1987) 33 A Crim R 1 (Qld CCA) Connolly J, with whom the other members of the court agreed, said (at 4): In my view it cannot be doubted that the accused is not entitled to tender his own prior self serving statements.

In R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 (CA) the remark of Connolly J in R v Kochnieff (1987) 33 A Crim R 1 at 4 was approved. The court went on to say (at 303, 354): There may be exceptional cases where the interests of justice require some special qualification of a strict application of the hearsay rule (eg R v Daylight (1989) 41 A Crim R 354; cf Walton v The Queen (1989) 166 CLR 283 at 293), but it is highly desirable that the limits upon admissibility of evidence remain identifiable.

In New Zealand it has been held that a mixed confession is admissible: R v Tozer [2002] 1 NZLR 193 (CA).

[3.5340] Uniform Evidence Acts Under Uniform Evidence Acts an exculpatory statement is not an “admisssion”: R v GH (2000) 105 FCR 419 (FCA). In R v Rymer (2005) 156 A Crim R 84 (NSW CCA) Grove J, with whom the others agreed, summed up the position under the Uniform Evidence Acts. His Honour said (at 95–96 [64]): In summary: (a) the exculpatory statements were not admissible pursuant to the exception to the hearsay rule created by s 66 and it was irrelevant to require the appellant to establish that he was going to be called to give evidence for the purposes of bringing that provision into play; (b) the exculpatory statements were admissible as an exception to the hearsay rule by reason of the dual purposes of the evidence seeking to demonstrate the asserted fact (that the appellant did not commit the sexual assaults alleged) and credibility deriving from his proclamation by plea that he was not guilty. By reason of the dual purposes (s 60) the evidence would not be excluded by the credibility rule (s 103);

[3.5345]

CONFESSION

353

(c) subject to the exercise by the presiding judge of power, in particular but not limited to, that vested by s 137 to reject evidence, the evidence ought to have been tendered by the Crown. That view does not exclude the possible situation that it might be rejected pursuant to objection by an accused. For example, the content of questions asked in an interview may be considered so prejudicial that an accused would not seek to put before the jury even self serving responses to such questions.

[3.5345] Confession of another In Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370 Dawson, Toohey and Gummow JJ said (at 22; 101; 385): What is said out of court and not in the presence of the co-accused is not evidence in the trial of the other accused. This is undoubtedly correct as a general proposition. Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interest. As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party. (See, for instance, Re Van Beelen (1974) 9 SASR 163; R v Szach (1980) 23 SASR 504; Wade v Gilroy (1986) 83 FLR 14; Greatorex (1994) 74 A Crim R 496). No Australian court, at least in any reported decision, appears to have taken the approach adopted by the Court of Appeal in England in R v Beckford ([1991] Criminal Law Review 833) that if the consequences of inadmissibility are that the jury does not hear an alternative version of the events giving rise to the charge, the conviction of an accused may be unsafe and unsatisfactory and accordingly set aside. It should be noted that in Beckford the co-accused did not give evidence and the prosecution was unable to give evidence of the confession because the trial judge held that it was not given voluntarily. (In Rogers [1995] 1 Cr App R 374 at 381 a differently constituted Court of Appeal refused to apply Beckford on the ground that the decision “turns upon its own special facts”).

In Baker v The Queen (2012) 245 CLR 632; 86 ALJR 906; [2012] HCA 27 the High Court revisited the issue of the admissibility of admissions made by third parties in criminal cases. As noted above, in Bannon v The Queen the High Court decided that such evidence was not admissible. The court unanimously reached the same result in this case. The appellant also submitted that a narrower exception should apply in relation to the admissibility of third party confessions, in that they should be admitted where they are made by co-accused. This submission was also rejected. An aspect of this case is the brevity with which the Court dealt with arguments.The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell) stated, at [56], that: The consequence of upholding the broad contention would be to effect a significant alteration to the common law of evidence in those States which to date have chosen not to adopt the uniform Evidence Act or to modify the hearsay rule along the lines of the English legislation or otherwise. In circumstances in which the application of the hearsay rule in the appellant’s trial did not occasion a miscarriage of justice (because the relevant statement by the co-accussed did not provide unambiguous support for the accused’s position), the invitation to effect that change should be rejected.

Thus a prosecutor cannot cross-examine an accused on any statement other than his own. Any cross-examination on another’s document must not identify the document by making no reference to the source: R v McKenzie [2004] 1 NZLR 181 (CA). But where police had failed to investigate matters raised in the confession of another, such failure can be used to show partiality. The confession is admissible for that purpose: R v Greatorex (1994) 74 A Crim R 496 (NSW CCA).

354

ROSS ON CRIME

[3.5350]

In England the excluded evidence of confession by an accused can be introduced by a co-accused: R v Myers [1998] AC 124; [1997] 4 All ER 314 (HL). And in a joint trial if the jury are satisfied of the truth of A’s confession, there are circumstances when they can use it against B: R v Hayter [2005] 1 WLR 605; [2005] 2 All ER 209 (HL). In Persad v State of Trinidad and Tobago [2007] 1 WLR 2379 (PC) the Board expressed reservations about Hayter. On the facts, they found that a co-accused’s statement to the police was wrongly admitted against the appellant and advised that the appeal (on the relevant count) be allowed. See also Hearsay at [8.1300].

[3.5350] Evidential effect There is no presumption that a confession is true. In Burns v The Queen (1975) 132 CLR 258; 49 ALJR 248; 6 ALR 95 Barwick CJ, Gibbs and Mason JJ said (at 262; 98): It would be a grave misdirection to tell a jury that there is a presumption that a confession made by an accused person is true. The jury, in deciding whether, in the light of all the circumstances of the case, they are satisfied of the truth of the whole or part of a confession, must approach that question without the aid of any presumption except that of innocence.

In R v Green (2002) 4 VR 471; 128 A Crim R 513 (CA) the accused gave evidence. He said that the account he had given police was not accurate. The court held that the judge’s directions were wrong. Charles JA giving the leading judgment referred to Burns v The Queen and other cases. His Honour said (at 481; 524 [31]): It is repeatedly emphasised in these authorities that the need for the jury to be directed that before they can rely on confessional statements they must be satisfied as to the truth and accuracy of those statements beyond reasonable doubt comes from the danger that the jury may not recognise that although these statements were made by the accused, it does not follow that they must be truthful; and that it is more important to give the direction where the accused does not dispute making the statements but says they were not true.

[3.5355] Gaol or cell confession Cases Evidence that the accused confessed to a fellow prisoner is tainted. In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 McHugh J said (at 614; 45; 231): [E]vidence from prison informers is potentially unreliable. The evidence of a prison informer may in fact be true. But, with the exception of some remand prisoners, the source is always tainted. All accounts of traditional prisons agree that beneath the veneer of law and order imposed by the rules of prison discipline lies a brutal world of fear and sudden, and often irrational, violence where conventional standards of conduct and values such as truth and respect for the rights of others have little relevance. It is not surprising, therefore, that, exposed to such an environment, some prisoners will become so indifferent to the rights and feelings of others that they will not hesitate to make false accusations of criminal conduct against other persons if acceptance of the accusations will advance their own interests. Many years of experience in hearing prisoners give evidence for and against accused persons has alerted the judiciary to the unreliability of the evidence of serving prisoners. But it is by no means certain that every juror fully appreciates that unreliability which arises not so much because the prisoner has been convicted of serious crime but because the character of that person has been altered for the worse by exposure to the values and culture of prison society.

Judges have excluded such evidence: R v Chimirri (2002) 136 A Crim R 381 (Vic, Osborn J); R v KS and Said (2003) 6 VR 264 (Coldrey J). If the evidence is admitted the jury must be given a stern warning about its dangers: Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1; R v Clough (1992) 28

[3.5365]

CONFESSION

355

NSWLR 396; 64 A Crim R 451 (CCA); R v Bevan [1993] 2 SCR 599; 104 DLR (4th) 180; 82 CCC (3d) 310 (SCC); Benedetto v The Queen [2003] 1 WLR 1545; [2003] 2 Cr App R 390 at [32]–[35] (PC); Robinson v The Queen (2006) 162 A Crim R 88 (NSW CCA).

Legislation Uniform Evidence Acts s 165(1)(e) provides that the evidence of a prison informer may be unreliable. The remainder of Uniform Evidence Acts s 165 provides that a judge should warn the jury of the unreliability. A party should request the warning. The judge will decide whether a warning is necessary. There is no particular form of words to be used in the warning.

[3.5360] Voluntariness For a confession to be admissible it must be voluntary. Gibbs CJ and Wilson J said in MacPherson v The Queen (1981) 147 CLR 512; 37 ALR 81 (at 522; 88): The condition of the admissibility of a confession is that it was voluntarily made, and the judge must be satisfied on the balance of probabilities that this condition was fulfilled before he admits the evidence. If the accused asserts that inducements were offered or pressure exerted but denies that he made a confession, and the judge, without considering the question of voluntariness, admits police evidence that a confession was made, the obvious possibility exists that the jury will accept the police evidence and find that the confession was made, and if that occurs they will have before them evidence that has not been found to be admissible, and an important rule which exists to protect accused persons, and to maintain proper standards of police investigation, will have been subverted.

In McDermott v The King (1948) 76 CLR 501 the accused was convicted in New South Wales for a murder 10 years before. A service station owner had been battered by a detachable pump handle on a petrol bowser. The assailant removed the body which was never found. McDermott made some admissions to police. Dixon J said (at 511): At common law a confessional statement made out of court by an accused person may not be admitted in evidence against him upon his trial for the crime to which it relates unless it is shown to have been voluntarily made. This means substantially that it has been made in the exercise of his free choice. If he speaks because he is overborne, his confessional statement cannot be received in evidence and it does not matter by what means he has been overborne. If his statement is the result of duress, intimidation, persistent importunity, or sustained or undue insistence or pressure, it cannot be voluntary. But it is also a definite rule of the common law that a confessional statement cannot be voluntary if it is preceded by an inducement held out by a person in authority and the inducement has not been removed before the statement is made.

His Honour also said (at 512): It is perhaps doubtful whether, particularly in this country, a sufficiently wide operation has been given to the basal principle that to be admissible a confession must be voluntary, a principle the application of which is flexible and is not limited by any category of inducements that may prevail over a man’s will.

In Ibrahim v The King [1914] AC 599 (PC) Lord Sumner, giving the advice of the Board, said (at 609): It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.

See also, R v Griffıths [2013] QCA 120; R v Playford [2013] QCA 109.

[3.5365] Uniform Evidence Acts: s 84 exclusion The Uniform Evidence Acts s 84 provide for the exclusion of admissions that are not voluntary.

356

ROSS ON CRIME

[3.5370]

84 Exclusion of admissions influenced by violence and certain other conduct (1) Evidence of an admission is not admissible unless the court is satisfied that the admission, and the making of the admission, were not influenced by: (a) violent, oppressive, inhuman or degrading conduct, whether towards the person who made the admission or towards another person; or (b) a threat of conduct of that kind. (2) Subsection (1) only applies if the party against whom evidence of the admission is adduced has raised in the proceeding an issue about whether the admission or its making were so influenced.

Cases Habib v Nationwide News Pty Ltd (2010) 76 NSWLR 299; [2010] NSWCA 34: for a discussion of the meaning of oppressive conduct; R v GH (2000) 105 FCR 419 (FCA): an exculpatory statement is not an admission; Em v The Queen (2007) 232 CLR 67; 239 ALJR 204; 174 A Crim R 540; 239 ALR 204 at [51] contains references to the ALRC report.

[3.5370] Overseas confession Rules of the court hearing the case apply to overseas confessions. In R v Thomas (2006) 14 VR 475; 163 A Crim R 567 (CA) the accused had been interviewed in Pakistan by the Australian Federal Police. Earlier interviews were made by security agents of other countries. Appeal allowed. The confession was tainted by lack of free choice to speak or be silent (at 498; 592 [69] and following); lack of access to a lawyer (at 507; 601 [109]). In R v O’Boyle (1991) 92 Cr App R 202 the English appellant had spoken in the USA to Drug Enforcement Agency Officers. He was neither cautioned nor told of his rights and assured that he was speaking in confidence. He made in effect a confession to drug dealing. The trial judge excluded it. In fact a co-accused introduced the excluded confession. Appeal allowed. In R v McMillan (1984) 13 A Crim R 234 (Vic CCA) Mr McMillan had been apprehended at Brussels airport. He had given a false name and produced false documents. He was told he could be detained unless air tickets were not stolen. He gave an account about drug dealing. Held: the trial judge had rightly admitted the evidence of the Brussels police, for the statement was voluntary.

[3.5375] Tape recording of confession Legislation Uniform Evidence Acts s 86. Cth: Crimes Act 1914 s 23V; Qld: Police Powers and Responsibilities Act 2000 ss 263-266; WA: Criminal Investigation Act 2006 s 118; Tas: Criminal Law (Detention and Interrogation) Act 1995 s 8; Evidence Act 2001 ss 85A and 86; NT: Police Administration Act s 142;

[3.5375]

CONFESSION

357

NSW: Criminal Procedure Act 1986 s 281; Vic: Crimes Act 1958 s 464H (see also Meade v The Queen [2015] VSCA 171); SA: Summary Offences Act 1953 s 74D; ACT: Crimes Act 1900 s 187(3) provides that the Crimes Act 1914 (Cth) applies.

Cases In these jurisdictions a confession to a person in authority is not admissible unless on tape, audio or video as well. In Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 a co-appellant, Mr Coates, was claimed by police to have made admissions while the video was turned off. He was not asked about those admissions when the video was turned on again. The appeal against the murder conviction was allowed by McHugh, Gummow, Kirby and Callinan JJ (Gleeson CJ, Hayne and Heydon JJ dissenting). Applied: R v Murcott (2005) 31 WAR 198; 156 A Crim R 163 (Owen J). However, where a suspect refuses to have the interview tape recorded yet allowed it to be written verbatim, the interview was held admissible by Nash DCJ in R v Dos Santos (1995) 80 A Crim R 350 (NSW). Nash DCJ was ruling on s 23V of the Crimes Act 1914 (Cth). In New South Wales the recording is called ERISP, the acronym from Electronic Recorded Interview with Suspected Person. The description comes from Criminal Procedure Act 1986(NSW) s 281. In the Northern Territory the lawyers call the recording EROI (pronounced EE-roy). The expression comes from the acronym of Electronic Record of Interview: Police Administration Act 1978 (NT) s 142. Other Cases R v Rowe (2001) 50 NSWLR 510; 118 A Crim R 421 (CCA); Kelly v The Queen (1994) 12 WAR 405 (CCA) (WA); R v Maratabanga (1993) 3 NTLR 77; 114 FLR 117 (NT, Mildren J); Grimley v The Queen (1995) 121 FLR 282 (NT CCA); R v Charlie (1995) 121 FLR 306 (NT, Mildren J); Pollard v The Queen (1992) 176 CLR 177; 110 ALR 385; 64 A Crim R 393; R v Hazim (1993) 69 A Crim R 371 at 378–382 (Vic CCA); R v Heaney [1992] 2 VR 531; (1992) 61 A Crim R 241 (CCA); Viet Hop Vu v Randoe (1996) 84 A Crim R 473 (Vic, Hedigan J). Question of Law Reserved (No 3 of 1997) (1998) 70 SASR 555; 100 A Crim R 464 (CCA);

Taped confession to colleague acting undercover for police R v O’Neill [1996] 2 Qd R 326; (1995) 81 A Crim R 458 (CA); R v Truong (1996) 86 A Crim R 188 (ACT, Miles CJ); R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98 (HC); R v Carter (2000) 1 VR 175 (CA).

358

ROSS ON CRIME

[3.5380]

Taped confession to police pretending to be criminals Tofilau v The Queen (2007) 231 CLR 396; 174 A Crim R 183; 81 ALJR 1688; 238 ALR 650; R v Tofilau (No 2) (2006) 13 VR 28; 160 A Crim R 549 (CA).

Taped confession to a psychotherapist R v Lowe [1997] 2 VR 465 at 483–486 (CA).

[3.5380] Secretly recorded conversations The High Court has held that conversations secretly recorded by police were admissible. In Em v The Queen (2007) 232 CLR 67; 81 ALJR 1896; 174 A Crim R 540; 239 ALR 204 the accused had refused to speak to the police if they recorded what was said. Later, the police obtained warrants to allow them to wear covert listening device transmitters and recorders. They spoke with the accused in a park where he made damaging admissions. At trial, Shaw J ruled out these admissions. The prosecution appealed under Criminal Appeal Act 1912 (NSW) s 5F. The NSW CCA ruled the admissions back in. On the second trial (before a different judge) the accused was convicted. Held: (Kirby J dissenting) the recordings were properly admitted and had not been unfair to the accused. Uniform Evidence Act s 90 analysed. In Carr v Western Australia (2007) 232 CLR 138; 176 A Crim R 555; 239 ALR 415 the accused was arrested over an armed robbery. Police questioned him but he made no admissions. He had legal advice. Police took him to the lockup and chatted with him. The accused did not know that cameras and microphones recorded everything. The recordings were admitted at trial. Held: appeal dismissed. Consent of the accused was not relevant.

[3.5385] Illegal interviews followed by legal interview All such interviews should be excluded: Pascoe v Little (1978) 24 ACTR 21 at 23 (Connor J); Smith v The Queen (1996) 16 WAR 205; 86 A Crim R 398 (CCA).

[3.5390] Disputed confessions In R v Thompson [1893] 2 QB 12; [1891–4] All ER Rep 376 (CCR) Cave J delivering the judgment of the Court for the Consideration of Crown Cases Reserved (a five member court) said (at 18; 380): I always suspect these confessions, which are supposed to be the offspring of penitence and remorse, and which, nevertheless, are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner’s guilt is otherwise clear and satisfactory; but when it is not clear and satisfactory the prisoner is not infrequently alleged to have been seized with the desire, born of penitence and remorse, to supplement it with a confession and this desire itself again vanishes as soon as he appears in a court of justice.

Applied: Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 12, 627 (CLR) (Murphy J); R v Connors (1990) 20 NSWLR 438; 48 A Crim R 260 (NSW CCA); R v Savvas (1991) 55 A Crim R 241 at 279 (NSW CCA) (Kirby P in dissent).

[3.5400]

CONFESSION

359

There must be some evidence that the confession if written has been adopted in some way even by initialling any errors on the record of interview: Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236; Duke v The Queen (1989) 180 CLR 508. Where the confession is disputed and uncorroborated the trial judge must warn the jury in accordance with McKinney v The Queen (1991) 171 CLR 468; 52 A Crim R 240; 98 ALR 577. See also McKinney direction at [13.300].

[3.5395] Confession obtained by violence or force Such a confession is not voluntary. In Cornelius v The King (1936) 55 CLR 235 Dixon, Evatt and McTiernan JJ said (at 246): But a promise of advantage and a threat of harm are not the only matters which may deprive a statement of its voluntary character. For instance, a confession which is extracted by violence or force, or some other form of actual coercion is clearly involuntary, and, therefore, cannot be received in evidence.

The violence, force, threats or inducement need not be by a person in authority. In R v Attard and Mifsud (1969) 91 WN (NSW) 824 Walsh JA said (at 831): But the rule against the admission of involuntary statements is not confined to statements made as the result of threats or inducements by a person in authority. There are decisions in which the rule has been stated in a way that suggests that the rule relates only to statements so induced and that a statement induced by a threat or promise by a person in authority is the only case of non-voluntary statement. However, it is established by decisions of the High Court that this is a misconception and that statements which are regarded as non-voluntary because so induced are but typical cases of the application of a general rule that a confessional statement, which is not shown to be voluntary, is excluded from evidence, whatever may be the reason or the circumstances which caused the trial judge not to be satisfied that it was voluntary. I refer without repeating them here, to the expositions of the rule given in Cornelius v The King (1936) 55 CLR 235 at 245 and 246; McDermott v The King (1948) 76 CLR 501 at 511, 512 and 516 and R v Lee (1950) 82 CLR 133 at 144, 146, 149 and 150.

This was approved in R v Geesing (1985) 38 SASR 226; 16 A Crim R 90 (CCA) in which the appellant had been convicted of murder of a ten-year-old girl. Her body was never found. The main prosecution evidence was of fellow prisoners. They approached him menacingly. One said “You knocked that little kid, didn’t you?” The appellant (wrongly) said “Yes”. He was then knocked to the ground. The appeal was allowed and the conviction quashed, with no retrial.

[3.5400] Confession while the accused is in custody In Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 Dawson J said (at 35; 645–646): The fact that any confessional statement was made, if at all, whilst the accused was in custody, even unlawful custody, did not of itself require the conclusion that the trial judge should have exercised his discretion to exclude evidence of it: Ibrahim v The King [1914] AC 599, R v Lee (1950) 82 CLR 133, Wendo v The Queen (1963) 109 CLR 509; Reg v Banner [1970] VR 240; R v Amad [1962] VR 545. It is not, however, difficult to see that little is ordinarily required to persuade a trial judge that a confession obtained whilst an accused person is in custody, particularly unlawful custody, is not shown to be voluntary or is such that it would be unfair to the accused to admit it in evidence against him.

360

ROSS ON CRIME

[3.5405]

In Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1; 66 ALR 385 Gibbs CJ said (at 285; 390; 5–6): The critical question is whether the arrested person was detained any longer than was reasonably necessary to enable him to be brought before a justice. If he is detained for the purpose of enabling him to be brought before a justice, the fact that he is questioned, whether about the offence for which he was arrested, or about other offences, will not necessarily mean that there has been a failure to bring him before a justice as quickly as was reasonably practicable. On the other hand, if he is detained, not for that purpose, but solely for the purpose of questioning him, the detention will be unlawful.

In Michaels v The Queen (1995) 184 CLR 117; 130 ALR 581; 80 A Crim R 542 Brennan, Deane, Toohey and McHugh JJ said (at 124; 585; 586): On one aspect the law is quite clear. It is unlawful for a police officer to delay taking an arrested person before a justice in order to question the person or to make further inquiries relating to the offence for which the person has been arrested, or to some other offence.

[3.5405] Confession by a child A judge or magistrate will strictly construe such Acts or Rules concerning the interview of a child. Non-compliance will generally mean exclusion: Dixon v McCarthy [1975] 1 NSWLR 617 at 639–640 (Yeldham J); Walker v Marklew (1976) 14 SASR 463 (FC); Pascoe v Little (1978) 24 ACTR 21 at 23 (Connor J); Collins v The Queen (1980) 31 ALR 257 (FCA); Frijaf v The Queen [1982] WAR 128 at 131 (CCA) (Wickham J); R v S & J (1983) 32 SASR 174; 8 A Crim R 88 (CCA); T v Waye (1983) 35 SASR 247 at 254–255; 11 A Crim R 422 at 428–429 (CCA); R v Crawford [1985] 2 Qd R 22 (CCA) (Carter J at 30); Peters v The Queen (1987) 23 A Crim R 451 (WA CCA); M v J (1989) 44 A Crim R 373 (Tas, Neasey J); R v H (1996) 85 A Crim R 481 (NSW, Hidden J); R v Coe [1997] 2 Qd R 465 (CA); DPP v Toomalatai (2006) 13 VR 319 sub nom DPP v T (2006) 163 A Crim R 192 (Bell J).

[3.5410] Mental state of the person confessing Gleeson CJ summarised the propositions in R v Parker (1990) 19 NSWLR 177; 47 A Crim R 281 (CCA) (at 183; 286–287): 1. The fact that an accused person who has allegedly confessed to committing a crime, was at the time of the alleged confession, suffering from some form of unsoundness of mind or psychiatric disorder may, depending upon the circumstances, be of importance in considering the evidentiary value of the confession, and may in some circumstances deprive it of all evidentiary value: Jackson v R (1962) 108 CLR 591. It does not, however, necessarily make evidence of the confession inadmissible: Sinclair v R (1946) 73 CLR 316 and R v Starecki [1960] VR 141. 2. Even if such evidence is admissible, a consideration of the quality of the evidence may, in a given case, result in a conclusion that a verdict founded upon it is unsafe and unsatisfactory: Morris v R (1987) 163 CLR 454.

[3.5420]

CONFESSION

361

3. The intellectual capacity of the accused, or the existence of some disease or disorder of the mind, may go to the issue of whether the confession was voluntarily and may, in that respect bear upon the admissibility of the evidence. It may be relevant to the question of whether the confession was made in the exercise of free choice, or of an understanding of his right to choose between speaking and remaining silent … The circumstances in which such a fact may be relevant to an issue as to the voluntariness of a confession are multifarious: cf R v Lee (1950) 82 CLR 133 and Van Der Meer v R (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232. 4. Further even if the confessional evidence is admissible, the intellectual or mental state of the accused may, in a number of possible ways, go to the exercise of a trial judge’s discretion to reject the evidence … it may for example touch upon the propriety of the means by which the confessional statement was obtained, the reliability of the statement itself, and the fairness involved in permitting the statement to be used against the accused. 5. A person’s vocabulary and standard of comprehension may also be relevant in determining an issue as to whether such a person in fact made the statement or intended the admissions attributed to him: Murphy v R (1989) 167 CLR 94. 6. If a Crown case is based upon the whole or in part upon the confession of a person suffering from some mental disability which may affect the reliability of the confession then a trial judge in his summing up should use appropriate means to bring to the attention of the jury the possible danger of basing a conviction on such evidence unless it is confirmed by other evidence: Bromley v R (1986) 161 CLR 315.

See also R v Hurihanganui [2004] 2 NZLR 1 (CA).

[3.5415] Physical state Fainting and exhaustion In R v Burnett [1944] VLR 115 the accused fainted twice from exhaustion after arrest and before confession. O’Bryan J ruled out the confession as non-voluntary.

[3.5420] Drunkenness In Sinclair v The King (1946) 73 CLR 316 Dixon J said (at 336): A confession made by a defendant more or less under the influence of intoxicating liquor is not inadmissibile as evidence unless the degree of intoxication is so great as to deprive him of the understanding of what he was confessing.

Wells J speaking for the court in R v Ostojic (1978) 18 SASR 188 (CCA) at 197 said that drunkenness had many different effects. After giving examples his Honour said (at 197): To try to formulate a rule fit to govern all such cases would put the law in danger of being shaped by the special subject matter and remove it from the protection of principle.

In R v Garth (1994) 73 A Crim R 215 (SA CCA) a video interview was held properly admitted. The accused was an alcoholic and intoxicated but the video showed he appreciated his position, agreed to answer questions, understood what was asked and gave rational answers. Other cases Jackson v The Queen (1962) 108 CLR 591 at 598; R v LR [2006] 1 Qd R 435; (2005) 156 A Crim R 354 (CA); R v Smith (1992) 58 SASR 491.

362

ROSS ON CRIME

[3.5425]

See also Intoxication at [9.3800].

[3.5425] Hysteria Hysteria of an accused does not of itself make the confession involuntary: R v Lee (1950) 82 CLR 133; R v Isequilla (1975) 1 WLR 716; [1975] 1 All ER 77; 60 Cr App R 52.

[3.5430] Confession through an interpreter Principle Where an interpreter is used to translate questions and answers, the interpreter must give evidence of the truth and accuracy of the translation together with the police officer who asked the questions: Gaio v The Queen (1960) 104 CLR 419. Where the interpreter does not give evidence the confession is not admissible: R v Ah Wong (1957) SR (NSW) 582; 74 WN 347 (CCA); R v Attard (1958) 43 Cr App R 90. It used to be said that no rule of law or practice existed to say that whenever a person with an imperfect knowledge of English was interrogated without the presence of an interpreter any resulting confession was inadmissible. Such a proposition came from R v Czerwinski [1954] VLR 483 (CCA). This is no longer the case. In R v Lars (1994) 73 A Crim R 91 (NSW CCA) one of the accused, Ms Da Silva was Brazilian. She was interviewed with a Mr Campbell as interpreter. He had been in Brazil for three years but had left ten years before the interview. His knowledge of the Portuguese language was good but rather basic. After careful examination the court allowed Ms Da Silva’s appeal and entered a verdict of acquittal (at 115–121). In R v Li [1993] 2 VR 80 Coldrey J ruled out a confession made by an accused who, because of poor education and lack of knowledge of English, felt compelled to participate in the interview process. In such circumstances the interview was not voluntary. See also R v Nguyen (1995) 78 A Crim R 582 (Coldrey J).

Legislation Some legislation requires a necessary interpreter during police questioning. Cth: Crimes Act 1914 ss 23N and 23YDA; Qld: Police Powers and Responsibilities Act 2000 s 260(2); Tas: Criminal Law (Detention and Interrogation) Act 1995 s 5; NT: Police Administration Act s 138(j); NSW: Crimes Act 1900 s 356S; Vic: Crimes Act 1958 s 464D; SA: Summary Offences Act 1953 s 83A; ACT: Human Rights Act 2004 s 22(2)(h).

[3.5435]

CONFESSION

363

See also. Anunga rules at [1.5000]; and Interpreter at [9.3600].

[3.5435] Expert evidence about a confession This is now rarely an issue. In days gone by, trial courts were often taken up with debate about whether an accused could have made the confession attributed to him or her by the police. A good example on refused leave to appeal is Stuart v The Queen (1959) 101 CLR 1. Now that most jurisdictions require a confession to be audio-taped as a precondition of admissibility, the question of whether an accused did confess generally does not arise. Untaped confessions are still admissible if not made by a person as a suspect to a person in authority. Hence casual conversations with police and all conversations with non-police such as friends and colleagues were held admissible in R v Alexander [1994] 2 VR 249 (CCA). The main recent authority is the appeal on the Anita Cobby murder: Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35. A psychologist had been stopped at trial from giving evidence that expressions in the confession could not have been used by the accused. The psychologist’s expertise was not questioned by the prosecution. He would have said that due to poor upbringing and lack of education certain expressions and concepts were foreign to the accused. It was held that the evidence had been wrongly excluded and the appeal was allowed. The reception of certain evidence often depends on whether the accused is “normal”. The acts and words of normal people can be assessed by a jury unaided by an expert. Only the non-normal accused is potentially the subject of opinion evidence. The question of normality is generally decided by the expert. The High Court pointed out the unsatisfactory nature of the arguments in Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35 Mason CJ and Toohey J said (at 111; 47–48; 374): In Reg v Turner [1975] QB 834, at 841, Lawton LJ expressed the basis upon which expert evidence is received in terms about which there can be no quarrel: An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. Later, Lawton LJ added some remarks which may not be so unquestionable: Jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from any mental illness are likely to react to the stresses and strains of life. There are difficulties with such a statement. To begin with, it assumes that “ordinary” or “normal” has some clearly understood meaning and, as a corollary, that the distinction between normal and abnormal is well recognized. Further, it assumes that the commonsense of jurors is an adequate guide to the conduct of people who are “normal” even though they may suffer from some relevant disability. And it assumes that the expertise of psychiatrists (or, in the present case, psychologists) extends only to those who are “abnormal”. None of these assumptions will stand close scrutiny.

Expert opinion not admitted because the accused was “normal” R v O’Callaghan [1976] VR 441 (Gowans J).

Expert opinion should have been admitted because accused not “normal” R v Barry [1984] 1 Qd R 74; (1983) 10 A Crim R 143 (CCA). Speech patterns of accused and Aborigines generally was held not the subject of expert evidence in R v Condren (1987) 28 A Crim R 261 (Qld CCA).

364

ROSS ON CRIME

[3.5440]

[3.5440] Inducement A confession may be involuntary if produced by inducement.

Did it taint the confession In R v Dixon (1992) 28 NSWLR 215; 62 A Crim R 465 (NSW CCA) Wood J with whom the others agreed said (at 226; 480): The authorities are relatively settled that in determining whether the inducement tainted the confession, regard is to be had not to whether a reasonable person could have been affected by the inducement, but whether the mind of the accused was affected by it.

Some forms of inducement The inducement may take any form but it must come or be adopted by a person in authority. Examples of inducements making the confession non voluntary: “Tell the truth or I’ll send for the police”: R v Sutherland [1959] Crim LR 440 (CCA). “If you don’t tell me you may get yourself into trouble and it will be the worse for you”: R v Coley (1868) 10 Cox CC 536 (Mellor J). “It would be better for you to tell the truth”: R v Beere [1965] Qd R 370 (Gibbs J). “I think it would be better if you made a statement and told me exactly what happened”: R v Richards [1967] 1 WLR 653; [1967] 1 All ER 829; 51 Cr App R 266 (CA). “If I make a statement will I be given bail?” “Yes”: R v Zaveckas [1970] 1 WLR 516; 1 All ER 413; 54 Cr App R 202 (CA), R v Bosman (1989) 40 A Crim R 205 (SA CCA). “Put your cards on the table. Tell them the lot … if you did not hit him they cannot hang you”: R v Cleary (1963) 48 Cr App R 116 (CA) (By the accused’s father to the accused in police presence). “You are telling lies – and you have guilt written all over your face”: R v K (1984) 14 A Crim R 226 (NSW, Wood J). “What will happen if I tell you the truth?” “Well nothing happens to people who tell the truth”: Pascoe v Little (1978) 24 ACTR 21 (Connor J). (Miss Pascoe was aged 14.) Other offences will be taken into account: R v Bosman (1989) 40 A Crim R 205 (SA CCA).

Onus after inducement In R v Dixon (1992) 28 NSWLR 215; 62 A Crim R 465 (NSW CCA) Wood J with whom the others agreed said (at 226; 480): [I]t remains open to the Crown to carry the onus of voluntariness by positive proof that the inducement did not procure the confession, or by proof that its effect had been dissipated or removed by the time of the confession: R v Bosman (1988) 50 SASR 365; 40 A Crim R 205 at 368–399 (SASR), 208 and 212 (A Crim R); R v Scofield (1988) 37 A Crim R 197 at 200; Sparks (at 989); Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35; R v Milnes (1983) 33 SASR 211.

Jury directions A judge may admit a confession into evidence because an inducement may not have affected voluntariness. The jury must still be given a direction. In R v Blades; Ex parte Attorney-General (2001) 124 A Crim R 415 (Qld CA) the court said in a joint judgment (at 416 [6]): Circumstances such as the existence of a threat or inducement may bear upon the question whether a confessional statement is true and reliable, and therefore require consideration by the jury.

[3.5450]

CONFESSION

365

Commonly in the course of a summing-up juries are advised of factors which might bear upon the reliability of the confession, and matters such as fear or hope of reward are mentioned when appropriate.

[3.5445] Police duties Elias CJ issued Practice Note – Police Questioning [2007] 3 NZLR 297–298. His Honour’s note turned on the application of the Evidence Act 2006 (NZ) s 30(6) and the New Zealand Bill of Rights Act 1990 (NZ) s 23. But it should apply in most jurisdictions. His Honour said: (1) A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer. (2) Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is: (a) that the person has the right to refrain from making any statement and to remain silent; (b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme; (c) that anything said by the person will be recorded and may be given in evidence. (3) Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination. (4) Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained. (5) Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audiotape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

[3.5450] Police do not have to accept first answer In R v Clarke (1997) 97 A Crim R 414 (NSW CCA) Hunt CJ at CL said (at 419): [A] police officer is under a duty to ascertain the facts which bear upon the commission of a crime, whether from the suspect or not, and the officer is not bound to accept the first answer given; questioning is not to be regarded as unfair merely because it is persistent. It is a question of degree as to whether persistence has crossed the line so as to render it unfair to use the answers in evidence.

Approved: R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 at [54] (NSW CCA).

366

ROSS ON CRIME

[3.5455]

See also R v Smith [1964] VR 95 at 97 (Gowans J); R v O’Neill (1988) 48 SASR 51 (CCA) per King CJ at 56.

[3.5455] Wrongful acts by police Wrongful acts by police may cause a confession to be held to be non-voluntary or excluded in the exercise of discretion. In Lam Chi-Ming v The Queen [1991] 2 AC 212; [1991] 3 All ER 172; (1991) 93 Cr App R 358 (PC) the Board advised (at 220; 178; 363): [T]he rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.

Approved: A v Home Department (No 2) [2006] 2 AC 221; [2005] 3 WLR 1249; [2006] 1 All ER 575 (HL) per Lord Bingham at [17]. The purpose of questioning and on which offence must be made clear. In R v Kirk [2000] 1 WLR 567; [1999] 4 All ER 698 (CA), in giving the judgment of the court, Kennedy LJ said (at 572; 703): [W]here the police, having made an arrest, propose to question a suspect or to question him further in relation to an offence which is more serious than the offence in respect of which the arrest was made, they must, before questioning or questioning further, either charge the suspect with the more serious offence … or at least ensure that he is aware of the true nature of the investigation.

See also R v Lancaster [1998] 4 VR 550; (1998) 100 A Crim R 589 (CA). Police (Incompetence) at [16.2305].

[3.5460] Lengthy or unlawful detention in custody Dawson J said in Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 (at 35; 645–646): [L]ittle is ordinarily required to persuade a trial judge that a confession obtained whilst an accused person is in custody, particularly unlawful custody, is not shown to be voluntary or is such that it would be unfair to the accused to admit it in evidence against him.

See also Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1; 66 ALR 385. The issue of when an accused does not wish to be questioned, or further questioned was raised in R v Ireland (1970) 126 CLR 321. Barwick CJ said (at 333): In Reg v Evans [1962] SASR 303 … the Supreme Court of South Australia in conformity with its earlier decisions in Lenthall v Curran [1933] SASR 248 and Bailey v The Queen [1968] SASR 301 decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation.

[3.5465]

CONFESSION

367

The issue of persistent or lengthy questioning was discussed in: R v Cumes (1990) 102 FLR 113 (NT, Nader J); R v Jones [1970] 1 NSWR 190; 91 WN (NSW) 777 (Isaacs J). Some legislation refers to detention before questioning: Qld: Police Powers and Responsibilities Act 2000 ss 234–244; Tas: Criminal Law (Detention and Interrogation) Act 1995 s 4; NT: Police Administration Act s 137(2); Vic: Crimes Act 1958 s 464A(4). See also R v Dalley (2002) 132 A Crim R 169 (NSW CCA).

[3.5465] Cross-examination and scepticism In R v Amad [1962] VR 545 Smith J ruled (at 548): Even if the questioner is concerned only to find out the truth and has no preconceptions and no desires as to where it will be found to lie, and even if he refrains from putting any words at all into the accused’s mouth, he is nevertheless cross-examining in the sense relevant to the matters here in question when he proceeds, as in this present case, to submit the person in custody to a searching questioning in which disbelief is repeatedly expressed in his denials of complicity, his account of his movements is challenged and checked, he is confronted with evidence of its falsity, he is accused explicitly of lying, and his refusal of further information is met with a statement that there are questions which the interrogator must ask him. A person in custody is, by that fact, ordinarily under great stress, and for that reason the law for his protection holds it to be improper to subject him, even after caution, to any form of cross-examination the tendency of which is in fact to extort admissions or to overcome his mental resistance to making admissions. There is no exception from this principle in favour of an interrogator whose desire is solely to find out the truth and not to obtain evidence for use against the accused. It is what the interrogator does and not his state of mind that is decisive.

Smith J went on: One of the dangers inseparable from such improper interrogations is that the accused, unless he is a person of wisdom and firm character, will be likely to try to escape from the pressures and anxieties of his position by resort to false denials and inventions; these in due time are proved to be untrue, and the resulting impairment of his credit is likely to cause the jury to reject truthful evidence given by him in his own defence.

In R v Bankowski (1971) 18 FLR 179 (ACT) Smithers J said (at 182): It is quite improper to cross-examine an accused person in custody. If the statements of the accused are flung back in his teeth with expressions of disbelief that is an improper form of cross-examination: see Williams J in Smith v The Queen (1957) 97 CLR 100 at 130. If his statements are refuted by an intimation that some witness had stated to the contrary, this is an improper form of cross-examination. Whether or not it be regarded as cross-examination the statement to the accused that such and such witnesses say this or that against the accused in a material particular is an independent impropriety: see Smith v The Queen (at 129) per Williams J; see also R v Brown (1931) 23 Cr App R 56. If it is done to induce a confession, as it obviously was in this case, it amounts to pressure on the part of a person in authority and is calculated to deprive any supervening confession of the quality of voluntariness.

In R v Pritchard [1991] 1 VR 84 (CCA) Crockett, McGarvie and Beach JJ dismissed the appeal, but in a joint judgment said (at 93): The harm to him was that by the form of his questions the police officer was able to convey to the viewer of the tape the undisguised ridicule and derision he entertained about the answers of the

368

ROSS ON CRIME

[3.5470]

applicant given in an endeavour to extricate himself from what obviously were real difficulties. The police would not at the trial have been permitted to express their incredulity or total disbelief in the applicant’s answers. Why should they be allowed to do so by the form of questions chosen to be put to the applicant which can be, as they were, so vividly reproduced before the jury at trial? Cross-examination as such, though forbidden by the Chief Commissioner’s Standing Orders, may often not lead to the exclusion of the answers it produces. But cross-examining questions that carry scornful overtones of disbelief are altogether another matter.

[3.5470] Not wanting to answer further questions A suspect who is being interrogated may say that he does not want to answer, or to answer any further questions. If the interrogator persists in asking further questions, any later admissions are apt to be excluded. In R v Evans [1962] SASR 303 (CCA) the court said in a joint judgment (at 306): In view of what has happened in the present case, it is apparent that there are police officers who are under some misapprehension as to their duty, and we think that the time has come for this Court to say, quite bluntly, that it is not permissible for a police officer to persist in interrogating a person in custody beyond the point at which they intimate the desire to say nothing or no more.

In R v Ireland (1970) 126 CLR 321 Barwick CJ referred to the decisions in R v Evans and earlier cases to the same effect. He said (at 333): In R v Evans the Supreme Court of South Australia in conformity with its earlier decisions decided that it was improper for police investigating the commission of a crime to persist in questioning a suspect after an indication that he did not wish to answer any more questions. In those cases, police questioning had so persisted but no statement or admission by the suspect had resulted. None the less the Court condemned the further questioning and excluded evidence of it in the exercise of what is now a clearly established judicial discretion to exclude evidence otherwise admissible because of the unlawfulness or unfairness of the manner of its discovery or creation. In these cases a rule of practice for the conduct of police officers was laid down. I agree with them in so far as the do so. … The breach of the rule will afford a ground for considering the exercise of a judicial discretion to exclude such evidence.

Applied: R v Harris (1995) 64 SASR 85 at 93–96 (CCA). See also R v Flaherty (2002) 86 SASR 300; 133 A Crim R 42 at [33] (Besanko J). Under the Uniform Evidence Acts improprieties in questioning will not necessarily cause an admission to be excluded unless the truth of the admission is adversely affected: R v Clarke (1997) 97 A Crim R 414 at 419 (NSW CCA).

[3.5475] Putting the statement of the victim to the accused In R v C (1991) 59 A Crim R 46 (Vic CCA) the accused had been convicted of visiting various sexual indignities on his daughter. Teague J said (at 60–61): The record of interview contained no admissions by the applicant, but did contain certain potentially prejudicial material. A significant portion of the interview, even after the further editing, was taken up with the putting to the applicant of extracts from a lengthy statement that the prosecutrix had made to the police. Although the matters put were consistently denied, the effect of the putting of the questions in that way was potentially doubly prejudicial.

[3.5480]

CONFESSION

369

Not only would it have served to reinforce the evidence of the prosecutrix, but it would also have necessarily resulted in some potentially prejudicial but inadmissible material being introduced through the questions.

Deane J said in Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232 (at 672; 36; 258): The questioning by police of a suspect held in custody should not take the form of assertions that others have made allegations against him. As Isaacs J pointed out in R v Grills (1910) 11 CLR 400 at 422: “It is an elementary rule of law, going to the very foundation of justice, that no man shall be adjudged to be guilty of a crime upon evidence of another person’s previous assertion. It matters not whether the assertion was made in the absence or the presence of the accused, as a mere assertion it cannot be regarded as any proof of the culpability of the accused or any confirmation of his accusers”.

The use of the question “Do you recall?” is discussed in R v Wills (1985) 39 SASR 35; 16 A Crim R 247 (CCA) in which King CJ said (at 37; 248–249): An interrogation consisting of questions beginning, “Do you recall?” is objectionable except in the special case of a legitimate inquiry into the suspect’s memory as to certain events. The form of the questions in the interview with this appellant had the practical effect of denying him the opportunity of outright denial of the allegations. This rendered the interrogation quite unfair. The unfairness was accentuated by the question, “Is there any reason why you can’t recall any of these events which I put to you?” with its assumption of the truth of the allegations which had been put to the appellant.

White J said (at 42; 253): The fair and proper form of questioning was to put the allegations of the prosecutrix to him and invite his comment thereon. In this way he would have been invited to face up squarely to each allegation and given a fair opportunity of making his answer by way of denial, affirmation or qualification. However, the persistent interrogation in the form of questions (there were twenty-three questions in all) which stated the girl’s allegations as if they reflected events which actually happened and introduced or followed each allegation, so represented, by the rider “Do you recall?” had a number of prejudicial consequences. It assumed, or gave apparent validity to, the girl’s allegations, it denied to the accused each time a fair opportunity to make his reply without departing from the form of the question and it tended to deflect the attention of the accused away from the substance of each allegation and towards the subject-matter of his own memory or recall. It is unfair to keep asking a suspect or an accused person whether he can recall an event when the real question is whether or not that event actually occurred. A negative response to the question as posed does not involve as a matter of logic a denial of the substance of the allegation.

[3.5480] Confrontation between accused and witness Police are not to arrange a confrontation between the accused and a witness. Any confession after such an event is liable to be excluded: R v Rowe (1954) NTJ 250 (Kriewaldt J). In Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232 (HC) Wilson, Dawson and Toohey JJ said (at 665; 25; 246): There followed a rather bizarre procedure in which, in the presence of Sergeant Dickson, another police officer and Storhannus, first M and then W recounted what had happened to them. Storhannus was invited to ask questions of each, though warned that he did not have to comment on anything said by them. Not surprisingly, he did comment from time to time. This was a procedure which should not have been followed, having about it the air of a trial before anyone had been charged.

See also R v Corke (1989) 41 A Crim R 292 (Qld CCA). Police (Incompetence) at [16.2305].

370

ROSS ON CRIME

[3.5485]

[3.5485] Misrepresentation The facts must not be misrepresented to the accused. A confession after that misrepresentation will be rejected: R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J); Hawkins v The Queen (1994) 181 CLR 440; 124 ALR 366; R v Mason [1988] 1 WLR 139; [1987] 3 All ER 481; (1987) 86 Cr App R 349. The test is how the representation of the facts was understood, not intended: R v Simmons (1995) 79 A Crim R 31 (NSW CCA). Such misrepresentation is contrary to the Uniform Evidence Acts s 138(2)(b).

[3.5490] Improper questions in interview Improper questions in an interview make the confession liable to be excluded. Examples are: “Do you recall…?”: R v Wills (1985) 39 SASR 35; 16 A Crim R 247 (CCA). “Why would the complainant lie?” or “Why would the complainant make this allegation?”: Graham v The Queen (1998) 195 CLR 606; 157 ALR 404; 102 A Crim R 438 (HC). However, see R v Arundell [1999] 2 VR 228; (1998) 104 A Crim R 78 at 251–252 (VR), 103–104 (A Crim R) (CA); and R v O’Neill (2003) 7 VR 408 at 412–415 [20] – [27] (CA) where the police asked such a question, the evidence was admitted but the appeal against conviction on this ground was dismissed. In R v SAP; Ex parte Attorney-General (Qld) [2006] 1 Qd R 367; (2005) 155 A Crim R 291 (CA) police had asked an accused in an incest charge whether the complainant had a motive to lie. The court held that the trial judge had wrongly excluded the evidence where the accused had made a positive reply.

[3.5495] Legal advice sought before answering In R v Stafford (1976) 13 SASR 392 (CCA) Bray CJ said (at 398–399): [T]he police should not persist in questioning a man who has signified his unwillingness to answer them and a fortiori when he has asked to see a solicitor before answering. If they do so the evidence should be rejected … The law confers the right of silence on suspected persons except in so far as any statute takes it away. That right must be respected by the police and enforced by the courts.

In Driscoll v The Queen (1977) 137 CLR 517; 15 ALR 47 Gibbs J said (at 540; 66): If the police did prevent the applicant from seeing his solicitor … their conduct was not only reprehensible but, as I have said, was a matter to be considered by the jury in deciding whether the answers recorded in the records of interview were in fact given … However … a failure to allow the solicitor to be present … would [not] in itself render evidence of the interrogation inadmissible, although it might be a ground for the judge to reject the confession in the exercise of his discretion if he regarded it as unfair to allow it to be used.

In Tan Seng Kiah v The Queen (2001) 10 NTLR 128; 160 FLR 26; 120 A Crim R 365 (CCA) the appellant had been convicted of drug importation. After his arrest he had sought consular and legal assistance. Neither was obtained. He was interviewed some two days later. The court held that notwithstanding that the confession was voluntary and the answers reliable, the interview should have been excluded as unfair. Both consular and legal advice had been available. Despite requests, no solicitor was obtained in the following cases:

[3.5510]

CONFESSION

371

R v Clark (1986) 23 A Crim R 303 (SA, Johnston J); R v Wilson (1986) 47 SASR 287; 32 A Crim R 286 (SA, White J); R v Su (2003) 7 VR 13; 142 A Crim R 338 (Coldrey J). In each case the confession was excluded. In R v Watkins (1989) 50 SASR 467; 42 A Crim R 255 (SA) O’Loughlin J ruled out a confession made after police had unjustifiably excluded the boy’s solicitor. Most jurisdictions now have legislation requiring police to give the suspect the opportunity of legal advice. Cth: Crimes Act 1914 s 23G; Qld: Police Powers and Responsibilities Act 2000 ss 249(1)(b) and 250; WA: Criminal Investigation (Identifying People) Act 2002 s 19(2); Tas: Criminal Law (Detention and Interrogation) Act 1995 s 6; NT: Police Administration Act s 138(j); Vic: Crimes Act 1958 s 464C; SA: Summary Offences Act 1953 s 79A(b)(i). See also Markovina v The Queen (1996) 16 WAR 354; 131 FLR 52; 93 A Crim R 149 (CCA) per Malcolm CJ (at 378; 77–78; 174–175); R v Su and Goerlitz (2003) 7 VR 13; 142 A Crim R 338 (Coldrey J).

[3.5500] Threat to charge another if no confession In R v Hurst [1958] VR 396 (CCA) the police had said that if there were no confession, the accused’s wife would be charged. It was held that the threat could have induced an untrue confession. The appeal was allowed. In Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 (HC) the accused was told that the accused’s brother would be “picked up” if he did not confess. It was held that the confession ought to have been excluded.

[3.5505] Judge’s discretion to exclude confession See also Discretion at [4.3200].

[3.5510] Voir dire to determine voluntariness Gibbs CJ and Wilson J said in MacPherson v The Queen (1981) 147 CLR 512; 37 ALR 81 (at 522; 88): [W]e are unable to see any distinction for present purposes between a case in which an accused who denies having made any confession alleges that he was subjected to inducements or pressure, and one in which the accused who also denies the making of a confession alleges that he was treated unfairly or improperly. In our opinion a voir dire should be held in both cases.

There should be only one voir dire where the voluntary aspect and the discretion are in issue. In Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said (at 557; 10–11; 121):

372

ROSS ON CRIME

[3.5515]

Ordinarily, in a case where there is a dispute about the voluntariness of an alleged confessional statement and about whether evidence of it should be excluded on discretionary grounds, it will be appropriate and convenient to hold a single voir dire hearing at the end of which the questions of voluntariness and exclusion on discretionary grounds are dealt with in that order. When that approach is adopted, it will be necessary to determine the question of exclusion on discretionary grounds only if the issue of voluntariness is resolved in favour of the Crown. Circumstances may, however, arise in which the preferable course is to consider first the question whether evidence of the alleged confessional statement should be excluded on discretionary grounds. If for example, the parties are agreed that the resolution of the question of voluntariness will involve a lengthy voir dire hearing to determine disputed facts, it is open to a trial judge to deal immediately with a submission on behalf of the accused that, even on the assumption that the question of voluntariness would ultimately be resolved in favour of the Crown, the facts which are not in dispute are such that the relevant evidence should be excluded on discretionary grounds.

A voir dire should be held even when the defence does not ask for it. In R v Deathe [1962] VR 650 (CCA) Sholl J said (at 652): [E]ven when an application is not made on behalf of an accused person to have the question of the voluntary character of his statement determined on the voir dire, the presiding judge is still under the duty of deciding for himself whether on the whole of the evidence he is satisfied that the statement is of a voluntary character, and if he proceeds to leave for the jury questions of voluntariness, he is doing something which he ought to have done himself.

In MacPherson v The Queen (1981) 147 CLR 512; 37 ALR 81 Gibbs CJ and Wilson J said (at 523; 89): Particularly if the accused is unrepresented, once it appears that there is a real question as to the voluntariness of a confession tendered by the Crown, the judge must satisfy himself that the confession was voluntary, and if, as will usually be the case, this can only he done by holding a voir dire, he must proceed to hold a voir dire even if none is asked for: cf Reg v Deathe [1962] VR 650, at p 652; and Reg v Little (1976) 14 SASR 556, at pp 570–571. We are not to be taken as suggesting that the trial judge must hold a voir dire on every occasion when a confession is tendered, or that he is bound to accede to an application made for a voir dire when there is nothing to suggest that a real question of voluntariness, unfairness or impropriety arises, for it does not advance the cause of justice to allow a voir dire which is used merely as a fishing expedition, or a means of testing in advance the evidence of the Crown witnesses. And the trial judge has a discretion to keep the examination and cross-examination of witnesses on a voir dire within reasonable bounds. Nevertheless, the duty of the judge is to ensure that the confession is not admitted until the fact that it was voluntary has been established.

[3.5515] Function of judge and jury on voluntariness In R v Blades; Ex parte Attorney-General (2001) 124 A Crim R 415 (Qld CA) the court quoted High Court and other authorities and said in a joint judgment (at 416 [5]): [W]ell established authority including Basto, and MacPherson … is sufficient to quote … Once the admissibility of a statement is challenged on the ground that it is not voluntary, it is for the judge to determine whether the prosecution has satisfied him that it was voluntarily made. [His Honour] put before the jury the two questions which they must consider concerning the statements, namely first whether the accused said what was ascribed to him and second, if so, whether it could be relied upon as a true recital of what had happened. Of course once the evidence of the confession is admitted the jury are not concerned with the question whether it was voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value. On this latter point the following statement should also be noted: Voluntariness could and should have been taken into consideration by the jury as a matter affecting the reliability of the confession.

[3.5530]

CONFESSION

373

[3.5520] Jury to determine whether confession was made and was true Gibbs CJ and Wilson J said in MacPherson v The Queen (1981) 147 CLR 512; 37 ALR 81 (at 522; 88): [O]nce the evidence of the confession is admitted the jury are not concerned with the question whether it was voluntary; they have to consider only whether it was made and whether it was true, although they are entitled to consider the circumstances surrounding the making of the statement in deciding upon its weight and value: Basto v The Queen (1954) 91 CLR 628; Chan Wei Keung v The Queen [1967] 2 AC 160; Ragho Prasad v The Queen [1981] 1 WLR 469; 1 All ER 319; 72 Cr App R 218.

[3.5525] Facts revealed or facts already known In Burns v The Queen (1975) 132 CLR 258; 49 ALJR 248; 6 ALR 95 Barwick CJ, Gibbs and Mason JJ said (at 264; 100): Where an accused by his confession admits facts not then known to his interrogators which are subsequently found to be true, this circumstance affords strong evidence that the confession was in fact made. Where, however, the accused by his confession admits only facts already known to his interrogators the probative value of the truth of what is admitted on the issue whether the confession was in fact made is less cogent and it should, in general, be excluded from the jury’s consideration of that issue in fairness to the accused because its prejudicial effect in the minds of the jury may well outweigh any probative value it has.

[3.5530] Principles of questioning In R v Plevac (1995) 84 A Crim R 570 (NSW CCA) the court said in a joint judgment (at 579–581): Many of the arguments which arise, as to the admissibility of evidence of questions asked by police officers in the course of an interview with a suspect (who later becomes the accused) and the answers given, become confused, particularly because of a failure to distinguish between, on the one hand, the right of the police to put questions to a suspect who is willing to be questioned and on the other hand, the admissibility of evidence of what was said on such occasion; by lack of precision in the formulation of propositions relating to an accused person’s so-called right of silence; and a failure clearly to distinguish between evidence which is relevant and therefore admissible, and evidence which, although admissible because of its relevance, ought be excluded in the exercise of the court’s discretion. The following propositions are thought to be an accurate but not exhaustive statement of relevant principles: 1. Police may, in the course of investigation, interrogate a suspect who is willing to answer their questions, and that interrogation may include putting to the suspect the facts as the police know, or believe, or suspect them to be, in order to ascertain what, if anything, the suspect will say about them: Grills (1910) 11 CLR 400; O’Neill (1988) 48 SASR 51 at 56. 2. Such questioning must be fair and must not amount to “intimidation, persistent importunity or sustained or undue insistence or pressure”: McDermott (1948) 76 CLR 501 at 511; Lee (1950) 82 CLR 133 at 144; Van der Meer (1988) 35 A Crim R 232 at 258–259, but questioning is not to be regarded as unfair merely because it is persistent: Taylor (unreported, Court of Criminal Appeal, NSW, 18 April 1995). 3. Police should not persist with such an interrogation after the suspect has indicated that he or she does not wish to answer further questions: Ireland (1970) 126 CLR 321 at 331–332; although merely because a suspect says he does not wish to answer, or will not answer, any further questions does not render inadmissible answers to further questions which the suspect does answer provided the questions are fair and proper and the answers are otherwise admissible. 4. The answers given by the suspect are admissible in evidence (and hence, so are the questions) if they are relevant; but not otherwise: Grills at 413, 419; Taylor at p 9.

374

ROSS ON CRIME

[3.5535]

5. An answer (and the question to which it is given) is relevant if it is an admission, or is capable of being regarded as an admission, of guilt or of a fact relevant to the proof of guilt: Astill (unreported, Court of Criminal Appeal, NSW, 17 July 1992) at pp 8–13. 6. If an answer is not unequivocally an admission but is capable of being regarded as such, it is a question for the jury whether it is such. Subject to the exercise of the judge’s discretion, the question and answer are admissible but it is necessary that the jury be clearly and fully directed that it is a question for them as to whether the answer does or does not amount to a relevant admission: Astill at pp 11–15. 7. An answer which is not capable of being regarded as an admission is on the face of it irrelevant and therefore inadmissible: Grills at 413; Taylor at p 9. 8. However, answers of that sort may yet be admissible if they form part of an interrogation in the course of which some answers do amount to admissions or are capable of being so regarded, where the question and answers which do not themselves contain admissions are relevant to set the other questions and answers in context, and/or to show that there was no impropriety on the part of the police in the conduct of their interrogation: Taylor at pp 9–10; Barca (1975) 133 CLR 82 at 107; Grills at 418–419; Towers (unreported, Court of Criminal Appeal, NSW, 7 June 1993) at pp 10–11. 9. In such circumstances, the trial judge must always carefully consider whether questions and answers which are not capable of amounting to relevant admissions should be excluded because they are prejudicial: Grills at 419–420; Ireland at 332; Taylor; Astill. 10. Where the questions and answers under consideration, although having in themselves no probative value but forming part of an interview and prima facie admissible as part of the context of that interview, do no more than already been established by other evidence or which clearly will be established by other evidence intended to be led by the Crown, their prejudicial effect will be minimal and would not ordinarily justify their exclusion: Taylor at 10. 11. Where, however, a question is asked, which contains a hearsay assertion of matter which the Crown is not in a position to prove, or which is inadmissible in evidence, and where the answer is not capable of amounting to an admission of the matter asserted by the questioner, there may be, depending on the nature of the matter stated and its relevance to the issues in the trial, very great prejudice, which may lead to the exclusion of the evidence, even if that means (because, in the context, the inadmissible material is inextricably interwoven with the admissible) that the Crown is deprived of some probative and admissible evidence: Ireland at 332; Grills at 419; but cf Harriman at pp 603–604; 231.

[3.5535] Editing the record of interview A record of interview will be edited to exclude irrelevant or prejudicial matters or matters excluded in the judge’s discretion. An example is where an interview is about a number of different offences and not all are charged, or there is severance. In Kilby v The Queen (1973) 129 CLR 460; 1 ALR 283 Barwick CJ said (at 473; 292): Of course, if the document contains inadmissible or irrelevant matter, that matter should not be admitted, but should be excised from the document and not placed before the jury… No doubt counsel for an accused and the trial judge will both scan such a record of interview with scrupulous care to ensure that only so much of it is admitted as is relevant and admissible to the extent I have indicated.

In R v Plevac (1995) 84 A Crim R 570 (NSW CCA) the court said in a joint judgment (at 578): Where evidence is to be given of admissions allegedly made by an accused person, whether such evidence is to be given orally, or by the production of a signed record of interview or a video/audio recording of an interview, it is a common and well accepted practice that the evidence may be

[3.5550]

CONFESSION

375

edited, to exclude therefrom inadmissible material, or material which in the view of the trial judge ought, as a matter of discretion be excluded. The practice is, as we have said, well accepted and common, but it is something which should be done with considerable care.

The judgment went on: The exercise of the discretion to exclude prejudicial material should not be allowed to result in a situation where the Crown is deprived of the right to rely on material which is not inadmissible or prejudicial, nor to result in a situation where what remains is, by reason of the excision of contextual material, ambiguous.

Other Cases R v Weaver and Weaver [1968] 1 QB 353; [1967] 1 All ER 277; (1966) 51 Cr App R 77 (CA). R v Knight and Thompson (1946) 31 Cr App R 52 (CA).

[3.5540] Function of counsel and trial judge in editing In R v Plevac (1995) 84 A Crim R 570 (NSW CCA) the court said in a joint judgment (at 578–579): It is, of course, the responsibility of counsel for the Crown and the accused to agree upon a method of editing which, while preserving the accused’s right to the exclusion of prejudicial or inadmissible material, does not unfairly deprive the Crown of evidence to which it is entitled. Although the trial judge has an overall responsibility to see that the trial is conducted fairly to both parties, he or she cannot be expected to advert to matters of this kind, unless they are brought to his or her attention by counsel, in which event, of course, the judge may have to rule on the manner in which the evidence should be edited. It may happen in a particular case, that the proper exercise of the judge’s discretion will lead to the admission of evidence which is admissible but prejudicial notwithstanding its prejudicial tendency, for the very reason that it cannot be excised without depriving the Crown of powerfully probative evidence, the meaning of which would be lost by excision of related material. In such a case, of course, the judge would need to be extremely careful in directing the jury as to the proper use of such evidence: see Harriman (1989) 167 CLR 590; 43 A Crim R 221; 88 ALR 161, per Dawson J at 603–604; 231.

[3.5545] No cross-examination on excluded confession In R v Ram [2007] 3 NZLR 322 (CA) the prosecutor had cross-examined the accused on a confession which had been excluded. Appeal allowed. In R v Alexander and McKenzie (2002) 6 VR 53 (CA) the prosecutor had cross-examined the accused Alexander on a confession in an earlier and irrelevant trial. The court held that this was improper (at 75–76 [45] – [46]). Appeal allowed.

[3.5550] Joint trial: confession of co-accused is hearsay An out of court statement by one accused is evidence for or against that accused. It is not evidence for or against another accused because it is hearsay. Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370; R v Lowrie [2000] 2 Qd R 529; (1999) 106 A Crim R 565 (CA); M Hirst, “Confessions as Proof of Innocence” [1998] Cambridge LJ 146–165. See also JM Laing, “The Mentally Disordered Suspect at the Police Station” [1995] Crim LR 371–381; DS Mortimer, “Tape-recording of Confessions in Victoria: the Troubled Interpretation of s 464H” (1995) 69 ALJ 540;

376

ROSS ON CRIME

[3.5700]

J Goldring, “Can Exculpatory Statements Be Admissions” (2004) 25 Aust Bar Rev 14–28. See also Aboriginals (Meaning of Aboriginal person) at [1.505]; Anunga rules at [1.5000]; Bunning v Cross at [2.4300]; Caution at [3.900]; and Hearsay at [8.1300].

CONFISCATION Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Draconian and complex Act ....................................................................................................... Civil or criminal .......................................................................................................................... Hardship ...................................................................................................................................... Value of property confiscated – proportion to offence .............................................................. Connection between the property and the offence .................................................................... Who owns the property .............................................................................................................. Proceeds of Crime Act 1987 (Cth) ............................................................................................ Criminal Proceeds Confiscation Act 2002 (Qld) ....................................................................... Crimes (Confiscation of Profits) Act 1988 (WA) ...................................................................... Criminal Assets Recovery Act 1990 (NSW) ............................................................................. Confiscation Act 1997 (Vic) ....................................................................................................... Criminal Assets Confiscation Act 2005 (SA) ............................................................................ Proceeds of Crime Act 1991 (ACT) .......................................................................................... Release of assets to pay for defence .......................................................................................... Property connected with a crime not relevant to sentence ....................................................... Relevance of compensation to sentence .................................................................................... Ex parte application ....................................................................................................................

[3.5700] [3.5705] [3.5710] [3.5715] [3.5720] [3.5725] [3.5730] [3.5735] [3.5740] [3.5745] [3.5750] [3.5755] [3.5760] [3.5765] [3.5770] [3.5775] [3.5780] [3.5785] [3.5790]

[3.5700] Meaning Confiscation is the forfeiture of property or money involved in offences. Drug charges are the main subjects of confiscation. The principal items confiscated for these crimes are the drugs themselves, the proceeds of the importation or production or sale, and the realty where drugs are produced. The power to confiscate comes from legislation.

[3.5705] Legislation Cth: Proceeds of Crime Act 1987; Proceeds of Crime Act 2002; Qld: Criminal Proceeds Confiscation Act 2002; WA: Criminal Property Confiscation Act 2000; Tas: Crime (Confiscation of Profits) Act 1993; NT: Criminal Property Forfeiture Act 2002; NSW: Confiscation of Proceeds of Crime Act 1989; Criminal Assets Recovery Act 1990; Vic: Confiscation Act 1997; SA: Criminal Assets Confiscation Act 2005; ACT: Confiscation of Criminal Assets Act 2003; NZ: Proceeds of Crime Act 1991; Eng: Proceeds of Crime Act 2002; Can: Criminal Code ss 462.3 and 462.37.

[3.5725]

CONFISCATION

377

[3.5710] Draconian and complex Act In Mansfield v DPP (WA) (2006) 226 CLR 486; 228 ALR 214; 165 A Crim R 369 the court examined the WA legislation. The justices (except for Heydon J in dissent) said (at 503; 226; 383 [50]): The Act … is draconian in its operation and complex in various of its provisions.

[3.5715] Civil or criminal In DPP v Deeks (1994) 34 NSWLR 523; 74 A Crim R 85 confiscation was held to be criminal in that there can be no costs for a successful applicant. In R v Tsolacos (1995) 81 A Crim R 434 (Vic CA) the court said (at 438): Thus the Act provides a curious mixture of civil and criminal procedure. It regards the making of a confiscation order as penal in its consequence (in the sense that it is part of the retribution which is to be exacted from the offender to the State); but provides that it is to be determined by proceedings of a civil character. This is no doubt a recognition by the legislature of the difficulties which would be encountered in recording ill-gotten gains from criminal enterprises is a criminal standard was to be applied.

[3.5720] Hardship All Acts provide that hardship can afford relief against confiscation. In R v Lake (1989) 44 A Crim R 63 (NSW CCA) Kirby P said (at 66–67): In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore that can give rise to the relief under s 5(1)(b)(ii). The provision for relief on that ground must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant.

Approved: DPP v Gyurcsik (2007) 178 A Crim R 153 at 158 [17] (Vic, Kellam J); R v Galek (1993) 70 A Crim R 252 at 257 (NSW CCA); Tarzia v The Queen (1991) 5 WAR 222; 52 A Crim R 102 at 227, 107 (CCA); Taylor v Attorney-General (SA) (1991) 55 SASR 462; 53 A Crim R 166 at 473–474; 53 (SASR), 177 (A Crim R) (CCA) (per Debelle J); Re George [1992] 2 Qd R 351; (1991) 57 A Crim R 356 at 371, 376–377 (Lee J); Fowkes v DPP [1997] 2 VR 506; (1996) 88 A Crim R 166 at 520–521, 180–181 (CA). In DPP v Tregenza (2002) 84 SASR 346; 136 A Crim R 398 Gray J found that the magistrate had allowed the property to be restrained without possibility of confiscation. Although the magistrate had fettered his discretion, the DPP affidavit was deficient. DPP’s appeal dismissed. Other cases R v Wealand (2002) 136 A Crim R 159 (NSW CCA); R v Winand (1994) 73 A Crim R 497 (Vic CCA); R v Anderson (1992) 61 A Crim R 382 (Qld, Williams J).

[3.5725] Value of property confiscated – proportion to offence The value of the property confiscated must not exceed a fair punishment for the offence.

378

ROSS ON CRIME

[3.5730]

In R v Winand (1994) 73 A Crim R 497 (Vic CCA) the court said in a joint judgment at (501): It is clear that what also must be borne in mind is the question of proportionality, that is to say, would forfeiture of the property be sufficiently proportionate to the nature and gravity of the offence having regard to the sentence also passed on the offender.

In Rintel v The Queen (1991) 52 A Crim R 209 (WA CCA) Malcolm CJ said (at 213): Because forfeiture is an additional punishment to be imposed at discretion there must, however, be some proportionality between the totality of the final outcome in the event of forfeiture, and the gravity of the offence.

Other cases DPP v Gyurcsik (2007) 178 A Crim R 153 at 158 [20] (Vic, Kellam J); Bowman v The Queen (1995) 14 WAR 466 (CCA); Frisnia v The Queen (1988) 32 A Crim R 103 at 108 (WA CCA).

[3.5730] Connection between the property and the offence In R v Sultana (1994) 74 A Crim R 27 (NSW CCA) Gleeson CJ said (at 31): As Cox J observed in R v Polain (1989) 52 SASR 526 at 532, a statutory reference to a connection between one thing and another poses questions of proximity and degree. It has been held that the connection required by the statutory provisions here in question need not be substantial or direct: R v Hadad (1989) 16 NSWLR 476; 42 A Crim R 304, R v Milienou (1990) 46 A Crim R 211.

See also DPP (NSW) v King (2000) 49 NSWLR 727; 114 A Crim R 14 (O’Keefe J). Property reasonably suspected of having been stolen may be confiscated as the “proceeds of crime”: Rinaldi v Watts (2003) 138 A Crim R 456 (Vic, Kellam J). In Western Australia, the concept of ‘crime-used’ property is defined very broadly: White v DPP (WA) (2011) 243 CLR 478; 85. ALJR 685; 211 A Crim R 451. In Henderson v Queensland [2014] HCA 52 the Court took a narrow interpretation of the circumstances in which property which was restrained pursuant to the Criminal Proceeds Confiscation Act 2002 (Qld) could be excluded from forfeiture.

[3.5735] Who owns the property Generally In DPP (Cth) v Hart (No 3) (2007) 172 A Crim R 57 (Qld CA) Philippides J said (at 66 [44]): If a restraining order were not to extend to all interests in the property specified in the order, it could be rendered nugatory by the simple expedient of disposing of or otherwise dealing with the equitable interests in the property.

Property shared by accused and non-accused In DPP v Le (2007) 232 CLR 562; 240 ALR 204; 178 A Crim R 162 Mr Le was charged with drug offences in June 2003. At the time he owned an apartment. Two months later he conveyed the apartment to the joint names of himself and his wife Mrs Le. The consideration was “natural love and affection”. After the transfer but before Mr Le’s conviction, the DPP sought confiscation of the apartment. The primary judge refused. The appeal court approved the primary judge: DPP v Le (2007) 15 VR 352; 169 A Crim R 177 (CA). The High Court made some orders against the apartment, allowing the appeal in part.

[3.5765]

CONFISCATION

379

One of two accused has the property In R v Rintel (1991) 52 A Crim R 209 (WA CCA) Pidgeon J said (at 226): The maximum fine provided under the section is a factor to be taken into account, but would not of itself prevent a forfeiture order in appropriate circumstances. Also the fact that the owner of property might, in the end, suffer a greater penalty than his co-defendants would not of itself prevent the order being made and it would be no more than a factor to be taken into account.

This was a prosecution appeal. The court allowed the appeal over the respondent’s vehicle but dismissed the appeal over the house and land.

[3.5740] Proceeds of Crime Act 1987 (Cth) The Proceeds of Crime Act 1987 (Cth) is not unconstitutional: Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257; 132 ALR 307; 83 A Crim R 208 (CA). See also Proceeds of Crime Act 2002 (Cth).

[3.5745] Criminal Proceeds Confiscation Act 2002 (Qld) “Illegally acquired property”: s 23. In Queensland v Brooks (2006) 180 A Crim R 1 (Qld CA) Keane JA, with whom the other judges agreed, said (at 12 [53]): While the “proceeds of illegal activity” may include a benefit rather than property, “illegally acquired property” must be “property” rather than “another benefit”.

[3.5750] Crimes (Confiscation of Profits) Act 1988 (WA) Belief by police officer s 20: An affidavit by a police officer as to relevant belief can contain hearsay: R v Connell (1990) 3 WAR 516 at 523–524; McKechnie v Connell [No 2] (1993) 9 WAR 162; 67 A Crim R 491. Both cases are rulings of Nicholson J.

[3.5755] Criminal Assets Recovery Act 1990 (NSW) Reasonable grounds for suspicion; reasonable grounds for belief: Hadjigeorgiou v New South Wales Crime Commission (2007) 174 A Crim R 124 (NSW CA).

[3.5760] Confiscation Act 1997 (Vic) The rules of natural justice entitle an appellant to be heard, not withstanding ex parte provisions: Navarolli v DPP (2005) 159 A Crim R 347 (Vic CA).

[3.5765] Criminal Assets Confiscation Act 2005 (SA) In R v Ford (2008) 100 SASR 94; 181 A Crim R 398 (CCA) the applicant for leave to appeal had sold methylamphetamine from her house. There was a forfeiture order against the house. The court analysed Criminal Assets Confiscation Act 2005 s 224 and Criminal Law (Sentencing) Act 1988 s 10(k)(a). The court held that the combined effect of the legislation was that the sentencing judge must have regard to the fortfeiture order when passing sentence. Application for leave to appeal against conviction dismissed. Under the earlier Act of 1996, the court examined the desirability of a restraining order. In DPP v Alexander (2003) 86 SASR 577; 142 A Crim R 68 (FC) the court held that in exercising a discretion to make a restraining order the court was entitled to have regard to

380

ROSS ON CRIME

[3.5770]

the potential consequences of forfeiture. A court will decline to make an order if there is no reason to apprehend that the property will be disposed of before the proceedings are complete and there is another satisfactory way of preventing disposal.

[3.5770] Proceeds of Crime Act 1991 (ACT) Once the statutory conditions for making the order have been fulfilled, there is no discretion to decline to invoke the order: DPP (ACT) v Hiep (1998) 86 FCR 33; 156 ALR 110; 101 A Crim R 543 (FCA).

[3.5775] Release of assets to pay for defence Construction of the Act In Mansfield v DPP (WA) (2006) 226 CLR 486; 228 ALR 214; 165 A Crim R 369 the court (other than Heydon J in dissent) examined WA legislation and the entitlement to legal representation. The court held that the Act did not prevent a proper allowance for the defence (at [48] – [54]). In DPP (Cth) v Saxon (1992) 28 NSWLR 263; 63 A Crim R 202 (CCA) Kirby P said (at 274; 212): [H]e should not be deprived of the use of his property for the proper defence of those proceedings unless the Act obliges such a course. If there is an ambiguity in the Act, it should be construed in such a way as to be compatible with the fundamental rights which are guaranteed by the common law, including as that law is illuminated by international principles of human rights.

Principle In Director Public Prosecutions v Vella (1993) 61 SASR 379; 70 A Crim R 241 (FC) King CJ said (at 381; 243): The fundamental principle … is that a person accused of crime is entitled to employ, out of his own resources, the legal representation of his choice.

Followed: Director Public Prosecutions (SA) v Duggan (1996) 66 SASR 538; 86 A Crim R 457 at 543 (SASR), 461 (A Crim R) (FC). Other cases NSW Crime Commission v Fleming (1991) 24 NSWLR 116; 54 A Crim R 401 (CA); Burnett v DPP (2007) 21 NTLR 39; 180 A Crim R 41 (CA).

[3.5780] Property connected with a crime not relevant to sentence Confiscation of property connected with a crime is not relevant to penalty: In R v McLeod (2007) 16 VR 682; 174 A Crim R 546 (CA) Redlich JA, delivering the judgment of the court, said (at 687; 533 [21]): A clear distinction is here drawn between forfeiture of the proceeds of crime which must be disregarded and other forfeiture of property.

Other cases R v Kalache (2000) 111 A Crim R 152 (NSW CCA) per Sully J (at 175–176 [77]); Lewis v The Queen (2000) 111 A Crim R 1 (WA CCA); R v Powell (1999) 108 A Crim R 448 (Qld CA).

[3.5905]

CONSCIOUSNESS OF GUILT

381

[3.5785] Relevance of compensation to sentence Payment to a victim can be a mitigating factor on sentence. In Brooks v Police (2000) 112 A Crim R 450 (SA, Bleby J) his Honour said (at 456–457 [43]): [W]here compensation has been paid, it is not the payment of compensation itself which is a relevant matter in determining the sentence. Otherwise there might be one penalty for the defendant who has means and another for the defendant who plainly cannot pay compensation. Lower sentences are not to be bought by those who can afford them. What is relevant is the degree to which the defendant has shown contrition for the offence by taking the action to make reparation (s 10(f) of the Sentencing Act 1995). Thus, a mere promise to make restitution will carry little weight: Rowe (1982) 7 A Crim R 39, but actual restitution could well be powerful evidence of contrition, which could become an important consideration in the sentencing: SA Police v John (1995) 79 A Crim R 510 at 512 per King CJ; Kovacevic (2000) 111 A Crim R 131 at 148–149 [81] – [82] per Doyle CJ, Mullighan, Bleby and Martin JJ. It can be a decisive factor in the exercise of a discretion to suspend a custodial sentence: Robertson (1984) 115 LSJS 51.

Other cases R v Tilev [1998] 2 VR 149 (CA) per Batt JA at 155; R v Whitnall (1993) 42 FCR 512; 120 ALR 449; 68 A Crim R 119 (FCA) per Higgins J at 517–518; 455; 125; Wignall v The Queen (1992) 61 A Crim R 54 at 56 (WA CCA); R v Allen (1989) 41 A Crim R 51 at 57–58 (Vic CCA).

[3.5790] Ex parte application Most legislation allows the prosecution to make an ex parte application for confiscation or forfeiture. This means that the prosecution gives no notice to the defence. An example under the Commonwealth legislation is DPP (Cth) v Corby (2007) 170 A Crim R 282 (Qld CA).

CONSCIOUSNESS OF GUILT Process of logical thought .......................................................................................................... Highly ambiguous evidence ....................................................................................................... Matters capable of showing consciousness of guilt .................................................................. Matters not capable of showing consciousness of guilt ............................................................

[3.5900] [3.5905] [3.5910] [3.5915]

[3.5900] Process of logical thought In R v Perera [1982] VR 901; (1982) 6 A Crim R 225 (CCA) Murray J said (at 910; 235): [T]he expression “consciousness of guilt” is one, probably formulated by lawyers, which amounts to no more than a convenient way of expressing a process of logical thought by no means unique to lawyers. It is in my opinion a mistake to regard it as an abstruse or technical concept. It means no more than the fact that it is logical and natural for any person to ask himself, if he concludes that another person is telling an untruth, whether that person has a motive for doing so. Circumstances will vary in countless ways and the telling of an untruth may not lead to any particular inference that can be safely drawn. But the words or conduct of a person may be such that an inference may arise from them.

Followed: R v Nguyen (2001) 118 A Crim R 479 at 504 [62] (Vic CA).

[3.5905] Highly ambiguous evidence In R v White [1998] 2 SCR 72; 161 DLR (4th) 590; 125 CCC (3d) 385 the judgment of the court was delivered by Major J who said (at 86; 603; 398 [22]):

382

ROSS ON CRIME

[3.5910]

It has been recognized, however, that when evidence of post-offence conduct is introduced to support an inference of consciousness of guilt, it is highly ambiguous and susceptible to jury error. As this Court observed in Arcangioli, the danger exists that a jury may fail to take account of alternative explanations for the accused’s behaviour, and may mistakenly leap from such evidence to a conclusion of guilt. In particular, a jury might impute a guilty conscience to an accused who has fled or lied for an entirely innocent reason, such as panic, embarrassment or fear of false accusation.

In R v Nguyen (2001) 118 A Crim R 479 (Vic CA) Winneke P (at 489–490 [20]) approved the above passage in R v White (2003) 7 VR 442 and went on to say: The probative strength of post-offence conduct … will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require … a careful direction from the trial judge … Properly directed, the jury should … have been told that conduct such as that relied upon by the Crown could stem from reasons other than realisation by the accused of his guilt of the crime charged, what those other reasons might be, and that, if they accepted that a reason of that kind was the explanation for the conduct, they should not use the evidence as probative of guilt. (authorities omitted)

Approved: Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 per Kirby J at 237; 353–354 [94].

[3.5910] Matters capable of showing consciousness of guilt Some of the many matters capable of showing consciousness of guilt are the following: 1. Lies: see Edwards direction at [5.100], Lies at [12.1300], Zoneff direction at [26.100]. 2. Flight: see Flight at [6.1300]. 3. Concealment of the weapon: R v Nguyen (2001) 118 A Crim R 479 (Vic CA). 4. Bribery or attempted bribery: eg R v Baker (2000) 78 SASR 103; 118 A Crim R 150 (CCA); Fox v The Queen (1982) 7 A Crim R 28 (Tas CCA). 5. R v Chang (2003) 7 VR 236; 140 A Crim R 573 (CA) (at 253; 589–590 [43]): The conduct of the applicant after the death of the deceased included, apart from lies, careful preparation for flight, a very detailed scheme to lay false trail, with the intention also of misleading the victim’s family to believe she had decamped, taking with her a substantial amount of her father’s money, and the making of preparations to dig a grave for the body. The purchase of hydrochloric acid and lime which were found beside the open grave can only have been intended to ensure that the body, and thus the evidence of the injury to the head, was destroyed. All of this taken together, in my view, amounted to a continuing course of activity which the jury would have been entitled to regard as evidencing in the strongest possible terms the applicant’s consciousness of his guilt of murder.

See also Corroboration at [3.7900]; Edwards direction at [5.100]; Flight at [6.1300]; Lie Detector at [12.1500]; and Zoneff direction at [26.100].

[3.5915] Matters not capable of showing consciousness of guilt Rejection of an accused’s evidence is not capable of showing consciousness of guilt. In Edmonds v Edmonds [1935] VLR 177 (FC) Lowe J said (at 186):

[3.6100]

CONSENT

383

By no torturing of the statement “I did not do the act” can you extract the evidence “I did do the act”.

This was a divorce case at a time when fault had to be shown. Lowe J’s remark has been referred to in any number of criminal cases with complete approval. R v Perera [1982] VR 901; (1982) 6 A Crim R 225 (CCA) per Young CJ at 904; 229; R v Evans (1985) 38 SASR 344; 16 A Crim R 281 (CCA) per King CJ at 350; 286; Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 per Deane, Dawson and Gaudron JJ at 208. Other cases R v Coutts (1998) 126 CCC (3d) 545 at 550–552 [13] – [18] (Ont CA); R v Levy (1991) 62 CCC (3d) 97 at 101–103 (Ont CA); R v Sandhu (1989) 50 CCC (3d) 492 at 499–501 (Ont CA). See also Alibi at [1.3800]; and Corroboration at [3.7900].

CONSENT Principle ...................................................................................................................................... [3.6100] Applications ................................................................................................................................ [3.6105] Writing ......................................................................................................................................... [3.6110]

[3.6100] Principle In Secretary, Department of Health and Community Services v JWB and SMB (Marion’s case) (1992) 175 CLR 218; 109 ALR 385 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 233; 391–392): The corollary of these provisions, which embody the notion that, prima facie, any physical contact or threat of it is unlawful, is a right in each person to bodily integrity. That is to say, the right in an individual to choose what occurs with respect to his or her own person. In his Commentaries (17th ed, 1830), vol 3, p 120, Blackstone wrote: [T]he law cannot draw the line between different degrees of violence and therefore totally prohibits the first and lowest stage of it; every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner. Consent ordinarily has the effect of transforming what would otherwise be unlawful into accepted, and therefore acceptable, contact. Consensual contact does not, ordinarily, amount to assault. However, there are exceptions to the requirement for, and the neutralising effect of, consent and therefore qualifications to the very broadly stated principle of bodily inviolability. In some instances consent is insufficient to make application of force to another person lawful … For example, a person in the Northern Territory cannot render a killing lawful by consenting to be killed and at common law a comparable qualification exists with respect to assault in some circumstances. Re A-G Reference (No 6 of 1980) [1981] QB 715; (1981) 73 Cr App R 63 held that those entering into a consensual fight were guilty of assault if they intended to inflict bodily harm. The rationale for this exception appears to rest in the idea that some harm involves public, not just personal, interest. Moreover, the absence of consent is irrelevant in a lawful arrest or in circumstances which amount to self-defence. A further exception of this kind is reflected in Collins v Wilcock [1984] 1 WLR 1172; [1984] 3 All ER 374 at 1177 (WLR), 378 (All ER) where it was said that in respect of physical contact arising from the exigencies of everyday life – jostling in the street, social contact at parties and the like – there is an implied consent “by all who move in society and so expose themselves to the risk of bodily contact”; or that such encounters fall “within a general exception embracing all physical contact which is generally acceptable in the ordinary conduct of daily life”.

384

ROSS ON CRIME

[3.6105]

Followed: Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 at 192 and 200–201 (NSWLR), 341 and 349 (A Crim R) (CA); Davis v Bennett (2003) 175 FLR 78 at 81 [17] – [19] (NT CA).

[3.6105] Applications Abduction (Consent) see [1.315]. Affray (No defence of consent) see [1.3015] (no application). Assault (Consent) see [1.6410]. Burglary (Absence of consent of owner or occupier not an element) see [2.4520] (no application). Fraud (Consentof victim obtained by fraud) see [6.2115]. Housebreaking (Consent or claim of right) see [8.2120] (no application). Indecency (Mental element in indecent assault) see [9.1435]. Kidnapping (Legislation) see [11.105] (no application). Mistake (Consent) see [13.2950]. Property offences (Larceny) see [16.6510]. Property offences (Theft) see [16.6520]. Sexual offences Rape see [18.100] – [18.260]. Sexual acts (Sexual act by person in authority) see [19.2825].

[3.6110] Writing David Ross QC, “Consent in Criminal Law” (2009) 32 Aust Bar Rev 62–76.

CONSORTING The offence .................................................................................................................................. Legislation ................................................................................................................................... Consorts ....................................................................................................................................... Habitually .................................................................................................................................... Knowledge .................................................................................................................................. Intent ............................................................................................................................................ Gives a good account ................................................................................................................. Sentence ......................................................................................................................................

[3.6300] [3.6305] [3.6310] [3.6315] [3.6320] [3.6325] [3.6330] [3.6335]

[3.6300] The offence Consorting is the offence of habitually associating with “convicted persons” or others of ill note.

[3.6305] Legislation WA: Criminal Code ss 557J (by drug traffickers) and 557K (child sex offenders); Tas: Police Offences Act 1935 s 6; NT: Summary Offences Act s 55A (after notice by Commissioner of Police) and s 56(1)(i);

[3.6330]

CONSORTING

385

NSW: Crimes Act 1900, s 93X; Vic: Summary Offences Act 1966 s 49F; SA: Summary Offences Act 1953 s 13; NZ: Summary Offences Act 1981 s 6.

[3.6310] Consorts Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65 examined the Victorian legislation. Mason J said (at 383; 70): In its context “consorts” means “associates” or “keeps company” and it denotes some seeking or acceptance of the association on the part of the defendant (Brown v Bryan [1963] Tas SR 1 at 2). … Nor does the word “consorts” necessarily imply that the association is one which has or needs to have a particular purpose. What is proscribed is habitual association with persons of the three classes, they being undesirable or discreditable persons. Mere association with those persons, which is not habitual, for a criminal or unlawful purpose is not proscribed.

And later (at 385; 71): [I]t seems reasonably clear that to constitute the offence, habitually consorting with more than one person, with a plurality of persons, is required. Association with a reputed thief would not be enough.

[3.6315] Habitually The adverb “habitually” which modifies the verb “consorts” in the legislation is not defined by the statute or explained in the cases. The word does not appear separately in the Macquarie Dictionary. The Oxford English Dictionary defines “habitually”: In the way of habit or settled practice; constantly, usually, customarily.

In Weiler v Weiler (1918) 25 CLR 109 the court said of the word “habitually” (at 112): It is opposed to casual or occasional.

See also Jolly v Salvitti [1974] VR 484 (Anderson J).

[3.6320] Knowledge See Knowledge at [11.700].

[3.6325] Intent Obviously enough, association with others imports an intent to do so. See also Intent at [9.2700].

[3.6330] Gives a good account Some legislation provides in effect that if the prosecution make out a prima facie case, the person charged must give a good account to the satisfaction of the court. In Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65 Mason J said (at 384; 71): To be acceptable the justification must at least assign a reason for the consorting which goes beyond the desire of the defendant to associate with persons of the designated classes. Thus it may be a good account for the defendant to say that he associated with the persons in question because

386

ROSS ON CRIME

[3.6335]

they were his close relatives, for filial or family reasons, or because his occupation required him so to do and the association was not for any unlawful purpose. But to say no more than that the association was innocent or not unlawful is not to give a good account.

In Tajjour v New South Wales; Hawthorne v New South Wales; Forster v New South Wales [2014] HCA 35 the High Court held that the consorting offence in NSW was valid even though it limited the implied freedom of communication about political matters in the Commonwealth Constitution. This is because the offence is reasonably appropriate and adapted to serve the legitimate objective of crime prevention. Moreover, the Court held that there is no free-standing freedom of association in the Constitution.

[3.6335] Sentence Jan v Fingleton (1983) 32 SASR 379; 9 A Crim R 293 (FC): four months imprisonment; Johanson v Dixon (1979) 143 CLR 376; 25 ALR 65: 12 months imprisonment.

CONSPIRACY Definition ..................................................................................................................................... Legislation ................................................................................................................................... Conspiracy at common law ........................................................................................................ Parts played by different conspirators ........................................................................................ Intent ............................................................................................................................................ Mere recklessness does not establish intent .............................................................................. No offence of attempted conspiracy .......................................................................................... Rolled-up conspiracy charge ...................................................................................................... Conspiracy and substantive charges not to be joined ............................................................... Prosecutor’s darling .................................................................................................................... The indictment ............................................................................................................................ References to others not before the court .................................................................................. Particulars .................................................................................................................................... Overt acts .................................................................................................................................... Evidence pointing to one or more conspiracies ........................................................................ Jurisdiction .................................................................................................................................. Separate trials .............................................................................................................................. Excluded evidence introduced against another accused ............................................................ Duress .......................................................................................................................................... Reasonable evidence of conspiracy ............................................................................................ Declaration in furtherance is not hearsay .................................................................................. Answers to police are not declarations in furtherance .............................................................. Admissibility of evidence against an accused ........................................................................... Conspiracy to commit the impossible ........................................................................................ Conspiracy to defraud: elements ................................................................................................ The husband and wife exception ................................................................................................ Judge’s direction to the jury ....................................................................................................... Sentencing ...................................................................................................................................

[3.6500] [3.6505] [3.6510] [3.6515] [3.6520] [3.6525] [3.6530] [3.6535] [3.6540] [3.6545] [3.6550] [3.6555] [3.6560] [3.6565] [3.6570] [3.6575] [3.6580] [3.6585] [3.6590] [3.6595] [3.6600] [3.6605] [3.6610] [3.6615] [3.6620] [3.6625] [3.6630] [3.6635]

[3.6500] Definition In Woss v Jacobsen (1985) 11 FCR 243; 60 ALR 313 (FCA) Toohey J said (at 250; 319–320): Although a conspiracy is complete as a crime when an agreement is made, it continues in existence so long as there are two or more parties intending to carry out its design. The court of a State has jurisdiction to try such an offence if the evidence shows that the conspiracy, whenever or wherever formed, was still in existence when the accused were in the State in which the court has jurisdiction: DPPv Doot [1973] AC 807. Although the essence of conspiracy is the unlawful agreement made by the conspirators, conspiracy as a crime is committed wherever and whenever it is shown that the agreement exists between the conspirators. It is a crime of duration, a continuing offence: R v GFS and W [1974] 1 NSWLR 31.

[3.6505]

CONSPIRACY

387

In Truong v The Queen (2004) 223 CLR 122; 205 ALR 72 Gleeson CJ, McHugh and Heydon JJ said (at 143; 82 [35]): Although a crime of conspiracy has been committed, and in that sense is complete, once an agreement to commit a crime has been made, conspiracy is a continuing offence. It is an error to think that the crime comes to an end once the agreement has come into existence.

In DPP v Doot [1973] AC 807; [1973] 1 All ER 940; (1973) 57 Cr App R 600 (HL) Lord Pearson said (at 827; 951; 619): The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be.

In R v Rogerson (1992) 174 CLR 268; 60 A Crim R 429; 107 ALR 225 Brennan and Toohey JJ said (at 280–281): What makes a conspiracy unlawful is the unlawfulness of its intended object or the unlawfulness of the means intended to effect its object, as Willes J, delivering the opinion of the judges in Mulcahy v The Queen (1868) LR 3 HL 306 at 317, said: A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means. So long as such a design rests in intention only, it is not indictable. When two agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or for the use of criminal means. As the “very plot” is the actus reus of the offence, the offence is complete before any further unlawful act is done or any further lawful act is done to carry the unlawful object into effect. When Willes J spoke of an “unlawful act”, he was speaking of an act which has not occurred when the conspiracy is formed. He must have meant an act which, if done in circumstances contemplated by the conspirators, would be unlawful. Although acts done in pursuance of an apparent agreement often furnish the evidentiary foundation for inferring that a criminal conspiracy was formed, those acts are not themselves elements of the offence. In that sense, it is immaterial whether an act done in pursuance of a criminal conspiracy is, in the event, unlawful, provided the act was intended to be done in circumstances which, had they eventuated, would have made the act unlawful.

[3.6505] Legislation Cth: Criminal Code Act 1995 s 11.5; see: R v LK (2010) 241 CLR 177; 84 ALJR 395; 202 A Crim R 522; [2010] HCA 17 and Ansari v The Queen; Ansari v The Queen [2010] HCA 18; Qld: Criminal Code ss 541–543; WA: Criminal Code ss 10F; 558, 560; Tas: Criminal Code ss 297 and 298; NT: Criminal Code ss 43BJ; 282–286; 288–289; 291–293; NSW: Crimes Act 1900 s 393 (Common law); Vic: Crimes Act 1958 ss 321–321F; SA: Common law and Criminal Law Consolidation Act 1935 s 133(2); ACT: Criminal Code 2002 s 49; Crimes Act 1900 s 279; NZ: Crimes Act 1961 ss 175 and 310; Can: Criminal Code 1985 s 465(1)(c).

388

ROSS ON CRIME

[3.6510]

[3.6510] Conspiracy at common law … the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means (1 Hawk c 72, s 8). The common law now rarely applies in Australia and does not apply in England (Criminal Law Act 1977 ss 1–5). However, conspiracy to defraud survives as a common law offence: Vereker v Rodda (1987) 18 FCR 83; 79 ALR 49; 26 A Crim R 25 (Cth) (Jackson J); R v Horsington [1983] 2 NSWLR 72; (1983) 14 A Crim R 118 (NSW CCA); R v Eade (1984) 14 A Crim R 186 (SA CCA); R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA).

[3.6515] Parts played by different conspirators In R v Griffıths [1966] 1 QB 589; [1965] 2 All ER 448; 49 Cr App R 279 (CCA) Paull J said (at 597; 453; 290): [I]n law all must join in the one agreement, each with the others, in order to constitute one conspiracy. They may join in at various times, each attaching himself to that agreement; any one of them may not know all the other parties, but only that there are other parties; any one of them may not know the full extent of the scheme to which he attaches himself; but what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act which he agrees to do.

Thus the acts and declarations of original conspirators are admissible against a conspirator who joins later. In R v Orton [1922] VLR 469 Cussen J charged the jury (at 474): You can only implicate those who the evidence convinces you were or must have been parties to the formation of the original plan, or afterwards approved of that plan and concurred in it, since a person who comes in during the course of any plan, knowing it to have been formed, and afterwards lends himself to the plan, though he comes in at a later stage, may be found to have adopted everything previously designed by another or agreed upon between others, and then may be a conspirator with the other or others.

See also R v Gouroff (1979) 1 A Crim 367 (Vic CCA).

[3.6520] Intent In R v Anderson [1986] AC 27; [1985] 2 All ER 962; 81 Cr App R 253 (HL), Lord Bridge said (at 37–39; 964–966; 257–259): But, beyond the mere fact of agreement, the necessary mens rea of the crime is, in my opinion, established if, and only if, it is shown that the accused, when he entered into the agreement, intended to play some part in the agreed course of conduct in furtherance of the criminal purpose which the agreed course of conduct was intended to achieve. Nothing less will suffice; nothing more is required.

In R v Freeman (1985) 3 NSWLR 303; 17 A Crim R 272 (CCA) Miss Freeman was an employee solicitor, convicted of conspiracy to pervert the course of justice by obtaining bail for a man using his own money. She had given evidence at trial that she was acting under instructions of her employer solicitor and denying any wrongful intent. She asserted that she believed she was acting lawfully. The trial judge had directed the jury that intent was not an element. Street CJ delivering the leading judgment said (allowing the appeal) (at 310; 279):

[3.6535]

CONSPIRACY

389

There is in my view, an onus on the Crown in a charge such as the present to establish the guilty intention on the part of the persons charged. That involves the Crown proving the intention to agree and the accompaniment of that intention by a guilty mind, that is to say an intention to pervert or wrongfully interfere with the course of justice. Failure to prove such an intention and guilty mind will, in my view, amount to failure to substantiate the charge.

Referred to with approval were R v Thomson (1965) 50 Cr App R 1 at 3–4 (Lawton LJ) and Kamara v Director Public Prosecutions [1974] AC 104; [1973] 2 All ER 1242; 57 Cr App R 880 at 119–120, 1251–1252, 895–896 (HL): (1) It is common ground that the actus reus in a conspiracy is the agreement to execute the illegal conduct, and not the execution of it. The crime is complete when the agreement is made. This proposition, first decided in 1611 in the Poulterers’ Case, is too familiar to require further authority. (2) In spite of this, mens rea is an essential ingredient in the crime of conspiracy. This mens rea consists in the intention to execute the illegal elements in the conduct contemplated by the agreement, in the knowledge of those facts which render the conduct illegal (cf Churchill v Walton [1967] 2 AC 224; 1 All ER 497; 51 Cr App R 212. (3) It seems fairly clear that while a mistake of law is not a good defence, a sincere belief in a state of facts which if true would render the illegal conduct legal would be a good answer to any charge of conspiracy.

See also R v Gemmell [1985] 2 NZLR 74 (CA).

[3.6525] Mere recklessness does not establish intent In R v Moran and Mokbel [1999] 2 VR 87; (1998) 104 A Crim R 47 (CA) Kenny JA delivering the leading judgment said (at 95; 55–56): For the purpose of the law relating to conspiracy, mere “recklessness” is not sufficient to establish an intent to carry out an unlawful act said to be the subject of an alleged conspiracy: see Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 at 506 (CLR) per Wilson, Deane and Dawson JJ and Peters v The Queen (1998) 192 CLR 493; 96 A Crim R 250; 151 ALR 51 at 520–521 [66] per McHugh J with whom Gummow J agreed. Accordingly, it is not sufficient for this purpose to establish that Moran realised that the probable consequence of his conduct would be the illicit manufacture of methylamphetamine by Mokbel. Nor is it enough that Moran expected that, upon Moran’s supplying Mokbel with pseudoephedrine, Mokbel would manufacture methylamphetamine; and this much is recognised in such cases as R v Trudgeon (1988) 39 A Crim R 252 at 254–256 per Gleeson CJ, 262–265 per Lee CJ at CL; R v Marinovich (1990) 46 A Crim R 282 at 309–310 and Krakouer v The Queen (1998) 194 CLR 202 [30] – [31] per Gaudron, Gummow, Kirby and Hayne JJ.

A person cannot be found guilty of conspiracy under the Commonwealth Code unless he or she knows – and is not simply reckless as to – the facts that make the proposed act or acts unlawful: R v LK (2010) 84 ALJR 395; 266 ALR 399; [2010] HCA 17.

[3.6530] No offence of attempted conspiracy There is no offence of attempted conspiracy according to the Supreme Court of Canada: R v Déry [2006] 2 SCR 669.

[3.6535] “Rolled-up” conspiracy charge The expression seems to come from R v Griffıths [1966] 1 QB 589; [1965] 2 All ER 448; 49 Cr App R 279 (CCA) in which Paul J said (at 593; at 449; 282):

390

ROSS ON CRIME

[3.6540]

It was a case where the first count was a count of conspiracy against all the accused and the other twenty-four counts were substantive counts, said to be selected as examples of overt acts done by various members of the conspiracy and also as proving that all the accused did take part in a conspiracy.

His Honour later said (at 594, 450, 283–284): The practice of adding what may be called a rolled-up conspiracy charge to a number of counts of substantive offences has become common. We express the very strong hope that this practice will now cease and that the courts will never again have to struggle with this type of case, where it becomes almost impossible to explain to a jury that evidence inadmissible against the accused on the substantive count may be admissible against him on the conspiracy count once he is shown to be a conspirator.

[3.6540] Conspiracy and substantive charges not to be joined Conspiracy is not to be charged where a substantive charge is appropriate: R v Griffıths [1966] 1 QB 589; [1965] 2 All ER 448; 49 Cr App R 279; R v Hoar (1981) 148 CLR 32; 37 ALR 357 at 38, 361; R v Moore (1988) 1 Qd R 252; 25 A Crim R 302 (CCA); R v Davidovic (1990) 51 A Crim R 197 at 206 (FCA); R v Pollitt [1991] 1 VR 299; (1990) 47 A Crim R 176 (Beach J); R v Humphries [1982] 1 NZLR 353 (CA). In these circumstances the conspiracy charge may be stayed. Neither should conspiracy and attempt be joined. In Krakouer v The Queen (1998) 194 CLR 202; 155 ALR 586; 102 A Crim R 490 Gaudron, Gummow, Kirby and Hayne JJ said (at 216; 595; 499 at [34]): [I]t may be undesirable, for the reasons that apply where a substantive charge is available, to charge a conspiracy to commit a crime and an attempt to commit the same crime in the same indictment if both offences arise out of the one set of facts.

Yet in Tasmania v Green (2007) 16 Tas R 318; 175 A Crim R 511 (Underwood CJ) his Honour ruled that a conspiracy and the substantive charge could be heard together.

[3.6545] Prosecutor’s darling In R v Saik [2007] 1 AC 18; [2006] 4 All ER 866; [2006] 2 Cr App R 368 (HL) Lord Brown said (at 62; 899; 404 [123]): To avoid the need for each substantive offence to be charged separately, thereby absurdly overloading the indictment, the Crown instead charge conspiracy which allows them to roll together into a single charge the events of a continuing course of conduct. There are other advantages too for prosecutors who rely on a conspiracy charge. Small wonder, therefore, that is often called the “prosecutor’s darling”.

[3.6550] The indictment In Kiely v The Queen [1974] WAR 180 (CCA) it was held that although the indictment was sufficient in law, the act alleged to have been the agreed means by which the purpose was to be effected should have been pleaded in the indictment.

[3.6555] References to others not before the court Such persons should be named. If their names are not known they can be described as “persons unknown”. If during the evidence the identity of an unknown person emerges, then the indictment should be amended accordingly.

[3.6560]

CONSPIRACY

391

R v Harrison (1995) 79 A Crim R 149 (NSW CCA).

[3.6560] Particulars In R v Mok (1987) 27 A Crim R 438 (NSW CCA) Hunt J said (at 441): An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (1937) 59 CLR 467 at 489, 495, 501–502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280–281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged.

His Honour later said (at 441–442): In a conspiracy case, each accused is entitled to precise particulars of the persons with whom it is going to be alleged that he conspired and as to the specific scope of the conspiracy alleged. Even where particulars are not sought, it is nevertheless incumbent upon the Crown Prosecutor to give those particulars in the course of his opening address – at the latest. He is not entitled simply to open the overt acts of which particulars which have been given, leaving it to the end of the evidence to select from that evidence the conspiracy which seems to be the strongest. The trial judge and the accused are left in an impossible position if the precise nature of the Crown case is not made clear from the beginning of the trial. The present case is a very good example of the sorry consequences of the Crown’s failure to give proper particulars.

Approved: R v Theophanous (2003) 141 A Crim R 216 at 249–250 [78] (Vic CA); R v Cox (2006) 165 A Crim R 345 at 350 [14] (2) (Vic, Kaye J). In R v Saffron (No 1) (1988) 17 NSWLR 395; 36 A Crim R 262 (NSW CCA) Hunt AJA said (at 447–448; 311–312): Certainly, an accused’s entitlement to particulars in a criminal case is the same as a defendant’s entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him: Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270; [1969] 1 NSWR 231 at 281 (WN (Pt 1) (NSW)), 240-241 (NSWR).

His Honour later said: Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have the specific transaction upon which the Crown relies and to be apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller (at 489, 495, 501–502). Only in that way can the trial judge rule upon the relevance of the evidence led by the Crown (Johnson v Miller at 497–498. So far as a conspiracy charge is concerned, the accused is entitled to particulars of the persons with whom it is alleged that he conspired and as to the specific scope of the conspiracy alleged, in addition to particulars of the overt acts upon which the Crown relics: R v Mok (1987) 27 A Crim R 438 at 441–442.

Approved: R v Whittington (2006) 149 NTR 1; 197 FLR 103; 160 A Crim R 105 (CCA) per Mildren J (at 9; 111; 113 [36]) with whom Riley J agreed. See also Particulars at [16.900].

392

ROSS ON CRIME

[3.6565]

[3.6565] Overt acts In R v Partridge (1930) 30 SR NSW 410 Ferguson J said (at 412–413): It is not enough to say that the overt acts are disclosed by the depositions taken in the Court below. In the present case it is impossible find amongst the mass of evidence presented before the Police Court, suggestions, more or less definite, that one or other of the defendants has been guilty of individual and unrelated acts of wrongdoing, that some of them may have been associated in acts calculated to defraud the company, others in acts calculated to benefit the company at the expense of persons doing business with it. Then they are all charged here with the one conspiracy, with one object, and are expected to look to the depositions to find the case they are to be prepared to meet. It is not right that persons charged with a crime should be put in that position. They should be told clearly and unequivocally what are the acts, whether of themselves or others, upon which the charge against them is based. If this is done, there are clearly defined issues before the Court and jury, and the question of the admissibility of evidence, always a matter of some difficulty in cases of this kind, resolves itself in respect of each item of evidence tendered into two questions: (1) Does it tend to prove one of the specified overt acts?; (2) Is that overt act yet sufficiently connected with the alleged conspiracy? To justify its admission, the evidence must answer both those tests. Where there has been no such defining of the issues before the case comes into Court, the task is not to be evaded, it is only postponed. Eventually the jury must be told what are the specific questions of fact to which they are to direct their attention in determining the case, but in the meantime the work of scrutinising the depositions with a view to discovering what those questions are, the repeated arguments upon admissibility of evidence, the weeding out of irrelevancies, all add enormously to the length and cost of the proceeding, and so confuse the issue as to create a serious risk of a failure of justice.

Approved: R v Weaver (1931) 45 CLR 321 at 333: Depositions are not particulars. In R v Theophanous (2003) 141 A Crim R 216 (Vic CA) the appeal against the conspiracy conviction was allowed. The evidence was confused. The court said in a joint judgment (at 258 [100]): [N]o date was mentioned in the particulars, nor do we consider that the issue of the time of the formation of the conspiracy was adequately identified or explained either in the addresses of counsel or the judge’s charge to the jury. One important consequence of this defect was that no proper attempt was ever made by his Honour to instruct the jury concerning the possible overt acts associated with the conspiracy and the manner in which the evidence of their commission could be properly employed.

[3.6570] Evidence pointing to one or more conspiracies In Gerakiteys v The Queen (1985) 153 CLR 317; 51 ALR 417; 12 A Crim R 54 Brennan J said (at 327–328; 425–426; 62–63): If two conspirators agree to effect several unlawful objects and a third person agrees with them to effect some only of those objects, there are two conspiracies not one: the original conspirators are parties to both conspiracies, the third person is a party only to the conspiracy with the more limited objects. That was the unanimous opinion of the judges who were summoned to advise the House of Lords in O’Connell v The Queen (1994) 76 A Crim R 140. Lord Chief Justice Tindal stated the judges’ opinion that where the jury had found some accused guilty of conspiracy to effect all the objects stated in the charge and some to effect part only of those objects the findings were insupportable in law. His Lordship said that: [T]he reason and ground for such opinion is this: That as each count of the indictment charges one conspiracy or unlawful agreement, and no more than one, against all the defendants in such count, so the jury could find only one conspiracy or unlawful agreement on each separate count; for though it was competent to the jury to find one conspiracy on each count, and to have included in that finding all or any number of the defendants, yet it was not competent for them to find some of the defendants guilty of a conspiracy to effect one or more of the objects stated,

[3.6570]

CONSPIRACY

393

and others of the defendants guilty of a conspiracy to effect others of the objects stated; because that is, in truth, finding several conspiracies, on a count which charges only one. The case of R v Hempstead (1818) Russ & Ry 344, CCR; 168 ER 837 is strong in support of this principle, when applied to the case of larceny. The indictment contains one charge: the jury cannot find more than one. That is not to say that a person who performs one only of several overt acts of a conspiracy cannot be a party to the conspiracy: the question is whether he has agreed that effect be given to all the objects or purposes of the conspiracy (so that his overt act gives only partial effect to those objects or purposes), or whether his agreement is limited to part only of those objects or purposes. In the latter case it may be that his overt act gives effect fully to the agreed objects or purpose. In Reg v Griffıths [1966] 1 QB 589 Paull J, speaking for the Court of Criminal Appeal, gave an illustration of the principle: [T]he Post Office clerk who agrees to alter a date stamp in a case where a bookmaker has been swindled must know that the alteration is to be used for a fraudulent purpose. He therefore joins a scheme to defraud that bookmaker, of whom he may not have heard, but he cannot be indicted, merely because he has agreed to alter that stamp, on a charge of a conspiracy to alter date stamps and cheat bookmakers all over the country. We venture to say that far too often this principle is forgotten and accused persons are joined in a charge of conspiracy without any real evidence from which a jury may infer that their minds went beyond committing with one or more other persons the one or more specific acts alleged against them in the substantive counts, or went beyond a conspiracy to do a particular act or acts.

The conspiracy to commit a particular offence must rely on evidence pointing to that offence. If it points only to other offences such evidence is insufficient: R v McCaul [1983] 2 VR 419 at 423–424 (CCA). It may emerge that other conspiracies are proved as well. Provided the conspiracy charge is proved, the fact of there being other conspiracies is not relevant. In R v Sorby (1986) VR 753; 21 A Crim R 64 (CCA) the court said in a joint judgment (at 792–793; 105–106): The argument that a conspiracy count is duplex and therefore bad in law because, as the trial progresses, the evidence is consistent with the existence of more than one conspiracy, was considered and rejected in R v Greenfield [1973] 1 WLR 1151 esp at 1155–6; [1973] 3 All ER 1050 at 1053–4. The Court of Appeal there emphasized that duplicity in a count is a matter of form. A count which is not bad for duplicity when the trial starts does not become bad in law because evidence is led which is consistent with one or more of the defendants being a member of a conspiracy other than the one charged. Brennan J, in Gerakiteys v R (1983) 153 CLR 317, at p 329, treated that decision as authority for the view that a trial upon an indictment charging a single count of conspiracy does not miscarry when evidence is led which shows that an accused is or may be a member of another conspiracy … Proof, however, that one or more of the alleged co-conspirators in any one count is or are a member of a conspiracy or conspiracies other than the one charged is not necessarily inconsistent with membership of the conspiracy charged; and if the evidence is sufficient to support the conspiracy as charged it does not matter that the other conspiracies might incidentally be proved as well.

However, in R v Partridge (1930) 30 SR (NSW) 410 Ferguson J said (at 413): It is not competent for the prosecution to invite the jury to wander through the wilderness of evidence in the expectation that if they do not find one conspiracy proved they may possibly find another.

A charge of conspiracy to commit more than one offence is not duplex if there is only one conspiracy: R v Saffron (No 1) (1988) 17 NSWLR 395; 36 A Crim R 262 at 421 ff, 284(CCA); Mylonas v The Queen [1987] WAR 261; (1985) 20 A Crim R 214 (CCA).

394

ROSS ON CRIME

[3.6575]

[3.6575] Jurisdiction In R v Manning [1999] QB 980; [1998] 4 All ER 876; [1998] 2 Cr App R 461 (CA) Buxton LJ, giving the judgment of the court, said (at 989; 883; 469): Charges of conspiracy have always been regarded as governed by different rules of jurisdiction from charges of substantive offences.

After an extensive review of authorities his Honour said (at 1002; 895; 482): Further, we cannot agree that there is no difference in respect of jurisdiction between conspiracy and offences such as obtaining by deception. As we have sought to demonstrate, the line of authority in respect of each category has developed quite differently, and in no previous case has it been suggested that the law as to jurisdiction in cases of conspiracy can override or offset the existing authorities on obtaining by deception or procuring the execution of a valuable security. Second, we cannot agree that the state of the authorities is such that this court is free to choose between the last act or “gist of the offence” rule and a “comity” rule.

Where part of the conspiracy is within a State’s borders, or that is where performance is intended, a court of that State has jurisdiction: R v Nessel (1980) 5 A Crim R 374 at 384 (Qld CCA); R v Skewes (1981) 7 A Crim R 276 at 280–281, 286–290 (Vic CCA); R v Sanders [1984] 1 NZLR 636 (CA); Liangisiriprasert v US Govt [1991] 1 AC 225; [1990] 1 All ER 866; 92 Cr App R 76 (PC); Fan v The Queen (1991) 24 NSWLR 60; 103 ALR 485; 56 A Crim R 189 (CCA); Gummmer v Commissioner of Police [1995] 1 Qd R 346; (1994) 71 A Crim R 140 (CA); Western Australia v Marchesi (2005) 30 WAR 359; 154 A Crim R 234 (CA). A conspiracy formed in one State to commit a crime in another is not justiciable in the first State. In Board of Trade v Owen [1957] AC 602; [1957] 1 All ER 411; 41 Cr App R 11 (HL), Lord Tucker (with whom the others agreed) said (at 634; 422; 54): [A] conspiracy to commit a crime abroad is not indictable in this country unless the contemplated crime is one for which an indictment would lie here.

Applied: Re Hamilton-Byrne [1995] 1 VR 129 (CA) – conspiracy in Victoria to defraud New Zealand by having children registered as having been born therel R v Catanzariti (1995) 65 SASR 201; 81 A Crim R 584 (Matheson J) – conspiracy in South Australia to grow cannabis in Katherine, Northern Territory; R v Isaac (1996) 87 A Crim R 513 (NSW CCA) – conspiracy in New South Wales to commit robbery in ACT. However, in R v Winfield (1995) 65 SASR 121; 83 A Crim R 301 Lander J ruled (at 153; 331): In my opinion, where a conspiracy has been entered into outside South Australia, a court will assume jurisdiction if that conspiracy is either to terminate within the State, or alternatively the object of the conspiracy would lead to a breach of the Queen’s peace, or alternatively, as it may be put, interfere with the peace, welfare and good government of this State.

However, conspiracy to commit a Commonwealth offence may be different. In R v Isaac (1996) 87 A Crim R 513 Hunt CJ at CL held (at 525):

[3.6585]

CONSPIRACY

395

I should make it clear that this decision is not intended to affect an indictment charging a common law conspiracy formed in one State or Territory to commit a Commonwealth offence in another State or Territory.

His Honour might have had in mind s 70 of the Judiciary Act 1903 (Cth): 70. When an offence against the laws of the Commonwealth is begun in one State or part of the Commonwealth and completed in another, the offender may be dealt with tried and punished in either State or part in the same manner as if the offence had been actually and wholly committed therein.

See also Jurisdiction at [10.1900].

[3.6580] Separate trials In R v Novac (1976) 65 Cr App R 107 there were four accused. The trial lasted 47 days. Thirty-eight counts including five separate conspiracies were reduced to 19 counts one of which was conspiracy. Lord Bridge said (at 118): We cannot conclude this judgment without pointing out that, in our opinion, most of the difficulties which have bedevilled this trial, and which have led in the end to the quashing of all convictions except on the conspiracy and related counts, arose directly out of the overloading of the indictment. How much worse the difficulties would have been if the case had proceeded to trial on the original indictment containing 38 counts, does not bear contemplation. But even in its reduced form the indictment of 19 counts against four defendants resulted, as is now plain, in a trial of quite unnecessary length and complexity. If the specific offence counts against Novac, Raywood, and Andrew-Cohen and all the counts against Archer had been tried separately, the main trial of the conspiracy and related counts would have been reasonably manageable and the four separate trials would have been short and straightforward. Quite apart from the question whether the prosecution could find legal justification for joining all these counts in one indictment and resisting severance, the wider and more important question has to be asked whether in such a case the interests of justice were likely to be better served by one very long trial, or by one moderately long and four short separate trials.

It is clear enough that one conspirator may be tried alone. In R v Darby (1982) 148 CLR 668; 40 ALR 594 the majority said (at 678; 601): In the light of these considerations, in our opinion there is much to be said for the recent decision of the Supreme Court of Canada in Guimond v The Queen (1979) 44 CCC (2d) 481 requiring separate trials in cases where the evidence admissible against one accused is significantly different from the evidence admissible against the other. We would encourage the adoption of such a practice. In cases where there is no material distinction in the evidence admissible against both alleged conspirators, the trial judge’s advice to the jury that they will either convict or acquit both accused will continue to be appropriate not because of any technical rule but because of the circumstances of the case (cf Lord Simon of Glaisdale in DPP v Shannon [1975] AC 717 at p 768.

See also R v Domican and Thurgar (1989) 43 A Crim R 24 (NSW, Hunt J); R v Brown [1990] VR 820 (Hampel J); R v Collie, Kranz & Lovegrove (1991) 56 SASR 302; 55 A Crim R 139 (CCA); R v Smith (No 2) (1995) 64 SASR 1; 80 A Crim R 491 (CCA).

[3.6585] Excluded evidence introduced against another accused The prosecution is not disadvantaged by separate trials. In R v O’Boyle (1991) 92 Cr App R 202 the court said (at 206–207):

396

ROSS ON CRIME

[3.6590]

We sympathise with the trial judge, faced as he was with the Privy Council decision on the one hand and the heavy weight authorities supporting the advisability of holding a joint trial on the other. We are also conscious of the necessity to maintain intact so far as possible the discretion of the judge in this and in other cases (see Salmon LJ in Flack (1969) 53 Cr App R 166, 171, [1969] 2 All ER 784, 788 ). However, we have come to the conclusion that this was a wholly exceptional, if not unique, case and that the judge gave insufficient weight to the fact that separate trials would do little, if any, harm to codefendant or prosecution, whilst a joint trial would almost guarantee that the appellant would be convicted whatever direction was eventually given to the jury as to how they should approach the difficulty. It was, in our judgment, a wrong exercise of his discretion. Although no one could have foreseen what would happen, the judge’s ruling did give rise indirectly to further difficulties. The appellant was in this situation. If he decided not to give evidence, there would be nothing to set against the evidence which Medin had already given. If the appellant decided to go into the witness box, he would be cross-examined on a confession which had been ruled inadmissible, and then further evidence would be given on it by the DEA officers, since the appellant did not admit the confession. The introduction of this evidence at that stage of the trial would understandably have great effect upon the jury.

[3.6590] Duress Behn v The King (1936) 38 WALR 94 (CCA) turned on the point whether one accused can be convicted and two co-accused acquitted. The co-accused had been acquitted because jury verdict was “Not guilty as they acted under duress”. Clearly the co-accused had conspired with the accused but the defence of duress operated as an excuse. In R v Smith (No 2) (1995) 64 SASR 1; 80 A Crim R 491 (CCA) the court seemed to accept that duress was a defence to conspiracy. It found that duress was not open on the evidence (at 34–35; 523–524). Duress will not be available to a principal in the first degree to murder. Hence, from R v Smith (No 2) (1995) 64 SASR 1; 80 A Crim R 491 duress will not be a defence to an accused who participated in the act of killing the victim.

[3.6595] Reasonable evidence of conspiracy In Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 the court said in a joint judgment (at 100; 168; 182): In our view, the test adopted in Tripodi v The Queen (1961) 104 CLR 1 is the appropriate one. Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant. The words “reasonable evidence” have provided a standard which has been applied without difficulty in this country for some years, at least in cases where preconcert has been the basis upon which evidence has been led in cases other than conspiracy, and there is no reason to suppose that if it has provided an appropriate test in those cases, it will not do so where conspiracy is charged. If there is any difference between “reasonable evidence” and “a prima facie case”, which in this context we very much doubt, then the words “reasonable evidence” are to be preferred providing, as they do, a test of admissibility for which no more precise expression is needed. The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the term “reasonable evidence” is desirable.

[3.6600] Declaration in furtherance is not hearsay The declaration made by one conspirator will be admissible against the others in the way referred to in Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175.

[3.6610]

CONSPIRACY

397

See also Skaramuca v Craft (2005) 192 FLR 459; 154 A Crim R 254 at [91] – [98] (ACT, Higgins CJ). R v Mapara [2005] 1 SCR 358; 251 DLR (4th) 385; 195 CCC (3d) 225 (SCC).

[3.6605] Answers to police are not declarations in furtherance In Fonseka v The Queen (2003) 140 A Crim R 395 (WA CCA) Wheeler J with whom the others agreed said (at 399 [21): An explanation to authorities of what the purpose had been cannot in my view be admissible as itself an utterance or act in furtherance of the common purpose.

In R v Pektas [1989] VR 239 (CCA) Gray J said (at 255): The failure of the learned trial judge to adequately identify what evidence was directly admissible against each accused was made more significant by his failure to instruct the jury that the answers made by one accused to police questions were not admissible against other accused. This standard direction should be given in all trials of joint offenders where the accused have made statements to the police. It is often given at the time the police evidence is led, as well as in the judge’s charge. The direction goes some way to counterbalance one of the obviously prejudicial aspects of a joint trial where one accused implicates another in answers given to police.

The position is different where the answers relate to the furtherance of the conspiracy. In R v Su (1997) 1 VR 1; 129 FLR 120 (CA) there was a phone call from overseas to say “that everybody had been caught in Melbourne”. The court said (at 43; 162): It is well established that evidence of the acts and declarations of one conspirator is admissible against another even where that occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design – Gillies, The Law of Criminal Conspiracy, 2nd ed p 193. An example is R v Merritt (1881) 7 VLR (L) 39 where a statement made to police by a conspirator, after the conspiracy had come to an end was ruled admissible against other conspirators if it was made for the purpose of protecting the booty of the crime. In our opinion it can be no different where the act or declaration is one intended to warn another that the plan has gone awry. Such a warning will bear upon the likely future conduct of the conspirators, be it of the speaker or the recipient. It is axiomatic in the present case that the availability of the drug for distribution, or its seizure by police, would dictate the future actions of the conspirators.

In R v Welsh [1999] 2 VR 62; 105 A Crim R 448 (CA) Brooking JA, giving the leading judgment, said (at 82; 469): A confession by one co-conspirator is not admissible against another, except in the unlikely event that it can be said to be in furtherance of the common purpose: Tripodi v The Queen (1961) 104 CLR 1 at 7; R v Windsor [1953] NZLR 83 at 90 … and R v Masters (1992) 26 NSWLR 450 at 461–463.

See also Co-conspirators rule at [3.2400].

[3.6610] Admissibility of evidence against an accused In R v Minuzzo & Williams [1984] VR 417; (1983) 10 A Crim R 190 (CCA) Young CJ said (at 431; 205): An accused person is entitled to have his case considered upon the evidence admissible against him. In a conspiracy case such as the present there are three classes of evidence to be considered, namely (a) evidence of the acts and declarations of the accused whose case is being considered, (b)

398

ROSS ON CRIME

[3.6610]

evidence of the acts and declarations of co-accused from which the conclusion that there was a combination might be drawn, and (c) acts and declarations of co-conspirators done or made in pursuance of the combination. Most evidence which falls within category (b) will also fall within category (c). Those two categories are not intended to be either co-extensive or mutually exclusive. Evidence in category (b) may be used in order to establish the conspiracy … Evidence in category (c), which is sometimes described as evidence in furtherance of the conspiracy, may only be used against an accused whose case is being considered once there is some evidence that that accused is connected with the conspiracy. But it is not necessary that the jury should be satisfied of the guilt of the accused before they can use evidence of category (c). Satisfaction of guilt of course requires satisfaction beyond reasonable doubt. But evidence falling into category (c) can be used against an accused once prima facie proof of the accused’s connection with the conspiracy has been given … The prima facie evidence which is here referred to is evidence described as directly admissible against the accused connecting him with the conspiracy alleged. By evidence directly admissible against the accused is meant in this context evidence other than the acts and declarations of the alleged co-conspirators not in the presence of the accused. Whether there is sufficient evidence directly admissible against an accused connecting him with the conspiracy to make evidence in category (c) available to be used against him is a question for the jury.

This passage was approved by the High Court in Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 (at 103–104; 185; 171): The preferable view is that the trial judge alone should determine the sufficiency of the independent evidence. The question is initially one of the admissibility of evidence of acts and declarations occurring outside the presence of an individual accused and for that reason a question for the trial judge. If he determines that the evidence of the acts and declarations of others is admissible to prove the participation of the accused, it is anomalous that the jury should, in effect, be required to determine the same question for themselves. To require them to do so necessitates a direction which is of unacceptable complexity. It may be observed that the matters which we have discussed have little to do with the order in which the evidence may be led. It will often be difficult, if not impossible, to segregate the evidence so as to enable a ruling to be given in advance. In most cases, evidence of the acts and declarations of alleged co-conspirators will be admissible in the form of separate acts to prove the fact of combination. In those circumstances, the trial judge may postpone until all the evidence is in, his ruling whether the proof of the combination sufficiently implicates an individual accused to allow the acts and declarations of the others in his absence to be used against him as proof of his participation. If the trial judge concludes that there is insufficient independent evidence of participation of the individual for this purpose, then it will be necessary for him to instruct the jury upon the limited purpose for which the evidence of the acts and declarations of the others may be used. It may in some cases be desirable for the trial judge to give a preliminary ruling upon the depositions, but it is only when the whole of the evidence is in that a final ruling can be given. It is conceivable that there will be cases, although they are difficult to envisage, where evidence of the acts and declarations of one alleged conspirator in the absence of another is admissible only to prove the participation of that other and in those cases it may be necessary to require the prosecution to take the preliminary step of laying the ground for the admission of the evidence before admitting it at all.

In R v Pektas [1989] VR 239; (1988) 37 A Crim R 229 (CCA) Vincent J said (at 270; 246–247): Before the evidence may be employed for this purpose, however, three prerequisites must be satisfied. First, there must be evidence which is capable of supporting a finding by the jury of the existence of a “combination of the type alleged”. Secondly, there must be evidence capable of supporting a finding by the jury that the acts and declarations upon which it is intended to rely were performed or uttered in furtherance of the common purpose by a participant in the conspiracy in which it is claimed that the accused participated. The third prerequisite involves the concept of “reasonable evidence” … independent of the acts and declarations of alleged co-conspirators, which at minimum is capable of supporting a finding that the accused was a participant in the unlawful enterprise, that is, it is required that a prima facie case be made out independently of those acts and declarations.

[3.6620]

CONSPIRACY

399

In R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (CCA) Badgery-Parker J, delivering the judgment with which the other members of the Court agreed, said (at 187; 337–338): Some of the concerns expressed by Murphy J and Gray J respectively in R v Pektas [1989] VR 239; (1988) 37 A Crim R 229 seem to me, with respect, to be far fetched or perhaps, and I say this with the utmost respect, to be based on a failure really to appreciate what Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 was about. The judge does not make a finding as to the sufficiency of the “reasonable independent evidence” which in any way binds the jury. Indeed, as it seems to me, he would not in a properly framed summing up make any reference at all to the issue that he has had to decide and to the manner in which he has decided it. It appears to me abundantly clear that the judge, having reached a conclusion (and I come in a moment to the way in which this should be done) that there is reasonable independent evidence of the accused’s participation, and having told the jury that the issue is whether the Crown has proved beyond reasonable doubt that the accused was a participant in the conspiracy charged, should simply direct the jury’s attention to the evidence available to them in considering that matter, which evidence would consist, upon the hypothesis now made, of the evidence admitted directly as evidence of the acts and declarations of the accused himself (which may itself be direct evidence or circumstantial evidence), together with such part of the evidence of the acts and declarations of co-conspirators as expressly or impliedly asserts the participation of the accused in the conspiracy. He would also, of course, draw to the jury’s attention as evidence going to show the existence of the conspiracy as distinct from the accused’s participation therein, the evidence of the acts and declarations of the co-conspirators which, as explained in Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175, permit an inference to be drawn of the existence of a conspiracy with no infringement of the hearsay rule. If on the other hand the trial judge came to the conclusion that there was not reasonable independent evidence of the accused’s participation, he would direct the jury that while they might refer to the evidence of the acts and declarations of the co-conspirators in the absence of the accused as forming part of the network of facts from which in accordance with ordinary principles of circumstantial evidence they might draw an inference of the existence of a conspiracy, they must put out of their mind such part of the evidence as might assert or impliedly assert the accused’s participation when they came to consider whether the Crown had proved beyond reasonable doubt the accused’s participation. It may of course well be the case that if, in the view of the trial judge, that evidence was not available because there was not otherwise reasonable independent evidence of the accused’s participation, he would in any event direct the acquittal of the accused.

No judge has said that Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 applies here. Doney stands for the proposition that if there is evidence (even if tenuous or inherently weak or vague) which is capable of supporting a verdict of guilty, the matter must be left to the jury (see at 214–215).

[3.6615] Conspiracy to commit the impossible England: DPP v Nock [1978] AC 979; [1978] 2 All ER 654; 67 Cr App R 116 (HL); Anderton v Ryan [1985] AC 567; [1985] 2 All ER 355; 81 Cr App R 166 (HL). Australia: R v Kingswell [1984] 3 NSWLR 273; (1984) 14 A Crim R 211 (CCA); R v Barbouttis (1995) 37 NSWLR 256; 82 A Crim R 432 (CCA); R v Kapeliotis (1995) 122 FLR 461; 82 A Crim R 300 (NSW CCA); R v El Azzi (2001) 125 A Crim R 113 (NSW CCA).

[3.6620] Conspiracy to defraud: elements In Peters v The Queen (1998) 192 CLR 493; 96 A Crim R 250; 151 ALR 51 Toohey and Gaudron JJ said (at 509–510, 60–61, 260):

400

ROSS ON CRIME

[3.6625]

[T]he offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means. Ordinarily, the means will be dishonest if they assert as true something that is false and which is known to be false or not believed to be true or if they are means which the conspirators know they have no right to use or do not believe that they have any right to use the means in question. And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperiling existing legal rights or interests of others. That, too, is dishonest by ordinary standards. If those matters are properly explained to a jury, further direction that the accused must have acted dishonestly is superfluous. Conversely, if those matters are not properly explained, a direction that the jury must be satisfied that the conspirators were dishonest is unlikely to cure the defect.

As to knowledge, Toohey and Gaudron JJ said (at 509; 60; 259–260): It is necessary to note one practical matter with respect to the knowledge that must be proved before there can be a conviction for conspiracy to defraud. As a matter of ordinary experience, it will generally be inferred from an agreement to use dishonest means to deprive another of his or her property or to imperil his or her rights or interests that the parties to that agreement knew they had no right to that property or to prejudice those rights or interests. And as with the defence of honest claim of legal right, it will be taken that there is no issue in that regard unless the absence of knowledge or, which is the same thing, belief as to legal right is specifically raised and there is some evidence to that effect.

The means used is not an element: R v Walsh (2002) 131 A Crim R 299 (Vic CA). Phillips and Buchanan JJA said (at 317 [57]): The agreement to make any particular representation is not regarded as an essential element of the crime, but merely a path to arriving at the objective of the conspirators, namely, obtaining an advantage by fraud.

[3.6625] The husband and wife exception At common law husband and wife cannot conspire together. In R v Byast [1999] 2 Qd R 384; (1997) 96 A Crim 61 (CA) the court said in a joint judgment (at 385; 62): It is true that a husband and wife cannot at common law be found guilty of conspiracy together, because they are considered as the one person, possessed of the one will. See Mawji v The Queen [1957] AC 126, where the Privy Council affirmed the principle stated in Archbold’s Criminal Pleading, Evidence and Practice (33rd ed, 1954), p 22: “A husband and wife … are esteemed but one person in law, and are presumed to have but one will”. Lord Somervell, speaking for their Lordships, described the “rule” – that is, “that the accused being husband and wife could not be guilty of conspiracy” as “an example of the fiction that husband and wife are regarded for certain purposes … as in law one person”. His Lordship pointed out that some of the consequences of that fiction have been removed by statute, although not this one. See also R v Kowbel [1954] 4 DLR 337, where the Supreme Court of Canada took the same view. For the purposes of that exceptional position, husband and wife should be taken to mean husband and wife constituted as such by a lawfully solemnised union. See s 41 of the Marriage Act 1961 (Cth).

[3.6630] Judge’s direction to the jury In R v Theophanous (2003) 141 A Crim R 216 (Vic CA) the conspiracy conviction was set aside. The court said in a joint judgment (at 262 [108] – [110]): [T]he case presented no particularly complex issues of law or fact. However, the manner in which the charge was formulated called for the provision of instructions to the jury that carefully related the evidence to the principles of law which they might reasonably need to consider in the context of particulars of the conspiracy asserted. Unfortunately, his Honour’s charge was deficient in this and other important respects. His decision that it was not necessary to summarize the evidence for the jury, was appropriately described by senior counsel for the respondent before us, as “surprising”, in the circumstances.

[3.6810]

CONSTITUTION

401

[H]is Honour provided very little assistance to the jury in relation to the manner in which they were required to approach the various overt acts which were claimed by the prosecution to support the inference that an agreement had been reached.

[3.6635] Sentencing In R v Kane [1975] VR 658 (CCA) Gowans J, with whom the others agreed, said (at 661): [A]ny considerations which advert to the content and duration and reality of the conspiracy are proper to be taken into account.

Approved: Savvas v The Queen (1995) 183 CLR 1; 129 ALR 319; 78 A Crim R 538 at 6, 322, 541. See also Judge at [10.900] and following. P Gillies, The Law of Criminal Conspiracy (2nd ed, Federation Press, Sydney, 1990).

CONSTITUTION Notice .......................................................................................................................................... Detail required in the notice ....................................................................................................... Sections and related cases .......................................................................................................... Federal Acts must be within power ........................................................................................... Bail on Federal offences .............................................................................................................

[3.6800] [3.6805] [3.6810] [3.6815] [3.6820]

[3.6800] Notice Where a constitutional matter is to arise, notice is to be given to the Attorneys-General. Judiciary Act 1903 (Cth): 78B.(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the AttorneysGeneral, of the question of intervention in the proceedings or removal of the cause to the High Court.

In R v Dellapatrona (1992) 28 NSWLR 628; 110 ALR 323; 64 A Crim R 18 (CCA) Kirby P said (at 656; 340; 36): Section 78B of the Judiciary Act 1903 is in unusually imperative terms. It is designed to provide a facility to the law officers to intervene in proceedings where a question arises under the Constitution or involves its interpretation. Such questions typically arise in cases of suggested inconsistency between Federal and State laws under s 109 of the Constitution: see, eg State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 557.

[3.6805] Detail required in the notice The notice requires sufficient detail to enable the Attorneys-General to determine whether the matter requires intervention or even removal to the High Court: State Bank v Commonwealth Bank (1986) 4 NSWLR 549; 66 ALR 129 (CA).

[3.6810] Sections and related cases 51. The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to–

402

ROSS ON CRIME

[3.6810]

(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;

Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194 (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth...

In R v Frawley (2005) 190 FLR 158; 152 A Crim R 336 (NSW CCA) Spigelman CJ said (at 166; 344 [31]): I have no doubt that insider trading in shares of a corporation is within the corporations power in s 51(xx) of the Constitution. 80. The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

In Pinkstone v The Queen (2004) 219 CLR 444; 206 ALR 84 McHugh and Gummow JJ said (at 459; 93–94 [39]): Section 80 directs attention both to the procedure utilised at trial in order to determine the guilt of the accused and to the geographic location of the trial in which that determination takes place.

Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R 65; 62 ALR 161 – not contravened by Customs Act 1901 (Cth) s 233B(1)(c) or s 235(2). Cheatle v The Queen (1993) 177 CLR 541; 116 ALR 1; 66 A Crim R 484 – trial on Commonwealth crime must be by jury and verdict must be unanimous. Cheng v The Queen (2000) 203 CLR 248; 175 ALR 338; 115 A Crim R 224 – Kingswell not doubted by the majority. R v Hughes (2001) 24 WAR 536; 164 FLR 403 (CCA) – cross-vesting. R v Wilkie (2005) 64 NSWLR 125; 157 A Crim R 498; 194 FLR 20 (CCA) – videolink of witness outside the state is proper. 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Sir John Latham said that when he died s 92 would be found written on his heart ((1952) 26 ALJ 2). This section, together with s 109 is the most litigated. See for example: APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403. 99. The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

R v Scouller [1997] 1 Qd R 415; (1995) 119 FLR 310; 76 A Crim R 487 (CCA) – State differences in interception of telecommunications does not entitle a stay of proceedings. 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

R v MacPherson [1996] 1 Qd R 656; (1995) 77 A Crim R 404 (CA) – on charges of defrauding the Commissioner of Tax the appellant could not have been convicted under s 441(b) of the Criminal Code (Qld) because it was inconsistent with the Taxation Administration Act 1953 (Cth). The appeal was allowed. See also, Dickson v The Queen (2010) 241 CLR 491; 205 A Crim R 94; [2010] HCA 30. Carbone v SA Police (1995) 126 FLR 1; 82 A Crim R 1 (SA, Legoe J) – s 67 of the Summary Offences Act 1953 (SA) is not inconsistent with a constitutional implied right of privacy. A search was not improper for that reason.

[3.6820]

CONTEMPT OF COURT

403

Other cases Re Macks; Ex parte Saint (2000) 204 CLR 158; 176 ALR 545. Chapman v Luminis Pty Ltd (2000) FCR 229 (von Doussa J): 117. A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Re Loubie [1986] 1 Qd R 272; (1985) 62 ALR 139; 19 A Crim R 112 (Dowsett J) – a presumption in s 16(3)(b) of the Bail Act 1980 (Qld) that bail should not be granted to a resident of another State was invalid as contrary to s 117 of the Constitution.

[3.6815] Federal Acts must be within power An Act of the Commonwealth Parliament must relate to a power given by the constitution: Nationwide News Pty Ltd v Wills (1992) 177 CLR 1. In Rogers v The Queen (1995) 64 SASR 280; 125 FLR 96; 130 ALR 635; 81 A Crim R 246 (CCA) one of the appeal points was whether the Financial Transaction Reports Act 1988 (Cth) was ultra vires the constitution. Mr Rogers was convicted on seven counts of opening and operating an account with a cash dealer in a false name. The court held that the Act was not ultra vires.

[3.6820] Bail on Federal offences Most Bail Acts when dealing with, for example, drug importation put the onus on an applicant to show why bail should not be refused. Such a provision is not constitutionally offensive: Ngoc Tri Chau v DPP (Cth) (1995) 37 NSWLR 639; 132 ALR 430; 82 A Crim R 339 (CA). No separation of powers argument is open.

Book Gleeson CJ, The Rule of Law and the Constitution (Boyer Lectures 2000, ABC Books, Sydney, 2000).

CONTEMPT OF COURT Definition ..................................................................................................................................... Contempt is a public offence ...................................................................................................... Legislation ................................................................................................................................... Inherent power of superior courts of record .............................................................................. Particulars .................................................................................................................................... Appearance .................................................................................................................................. Standard of proof ........................................................................................................................ Ex parte committal ...................................................................................................................... Coroners Court ............................................................................................................................ Contempt by counsel .................................................................................................................. Publicly revealing disclosed documents .................................................................................... False affidavit .............................................................................................................................. Police seizing counsel’s brief ..................................................................................................... Contempt in the face of the court .............................................................................................. Cursing in court .......................................................................................................................... Bias .............................................................................................................................................. Acts within the court but not seen by the judge ....................................................................... Acts out of court ......................................................................................................................... Scandalising the court ................................................................................................................. Dealing summarily with alleged contempt ................................................................................

[3.7000] [3.7005] [3.7010] [3.7015] [3.7020] [3.7025] [3.7030] [3.7035] [3.7040] [3.7045] [3.7050] [3.7055] [3.7060] [3.7065] [3.7070] [3.7075] [3.7080] [3.7085] [3.7090] [3.7095]

404

ROSS ON CRIME

Bail .............................................................................................................................................. Appeal: Queen is respondent ...................................................................................................... Sentencing ................................................................................................................................... Sentence .......................................................................................................................................

[3.7000]

[3.7100] [3.7105] [3.7110] [3.7115]

[3.7000] Definition In Lane v Registrar of Supreme Court of NSW (1981) 148 CLR 245 the court said in a joint judgment (at 257): The expression “contempt of court” is often popularly misunderstood. In a case such as the present, the offence consists not in affronting the dignity of the court, but in interfering with the due administration of the law: see Attorney-General v Leveller Magazine [1979] AC 440, at p 459. As Cussen J said in In Re Dunn; In Re Aspinall [1906] VLR 493, at p 497, the essence of the offence is “action or inaction amounting to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice, using that term in a broad sense”.

See also Lewis v Judge Ogden (1984) 153 CLR 682; 53 ALR 53 at 688 (CLR), at 57 (ALR).

[3.7005] Contempt is a public offence Callaway JA said in Magistrates’ Court (Vic) v Murphy (1997) 2 VR 186; 89 A Crim R 403 (CA) (at 216; 436): A bona fide charge of contempt in the face of the court is accordingly a matter in which the public have an interest. It is not a private quarrel that can be settled. Unless it is withdrawn, it must usually be resolved by a finding of guilty or not guilty or by the acceptance of such an apology as vindicates the authority of the court.

[3.7010] Legislation Supreme courts have an inherent power to punish for contempt. Courts created by statute are given contempt powers, which may also be implied (see Jurisdiction at [10.1900]). Any number of Acts other than the ones listed below provide contempt powers. Those others generally deal with proceedings before statutory tribunals. Cth: Judiciary Act 1903 s 24; Federal Court of Australia Act 1976 s 31; Federal Magistrates Act 1999 s 17; Qld: Criminal Code Act 1899 s 8; District Court of Queensland Act 1967 s 129; Magistrates Court Act 1921 s 15; Coroners Act 2003 s 42; WA: Criminal Code Compilation Act 1913 s 7; District Court of Western Australia Act 1969 s 63; Magistrates Court Act 2004 s 15; Evidence Act 1906 s 130; Tas: Criminal Code s 10; Magistrates Court Act 1987 s 17A; Justices Act 1959 s 25; Coroners Act 1995 s 66; NT: Criminal Code Act s 8; Local Court Act ss 33, 34; Justices Act s 46; Coroners Act s 46; NSW: Criminal Procedure Act 1986 Sch 3 Pt 1; District Court Act 1973 s 199; Local Courts Act 1982 s 27A; Coroners Act 1980 s 43; Vic: County Court Act 1958 s 54; Magistrates’ Court Act 1989 s 133, 134; SA: District Court Act 1991 s 47; Magistrates Court Act 1991 s 45; Coroners Act 2003 s 36; ACT: Magistrates Court Act 1930 s 255; Coroners Act 1997 s 88;

[3.7035]

CONTEMPT OF COURT

405

NZ: Crimes Act 1961 s 401.

[3.7015] Inherent power of superior courts of record Mason QC said in “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449 at 452: The power to punish for contempt of court is part of the inherent jurisdiction of superior courts of record. This power is exercisable summarily and is not confined to the parties or issues in specific litigation. Clearly, the power extends to any conduct calculated to interfere with the due administration of justice. R v Metal Trades Employees’ Association: Ex parte Amalgamated Engineering Union (1951) 82 CLR 208, at 242, 254; Attorney-General v Leveller Magazine Ltd [1979] AC 440; Registrar of the Supreme Court, Equity Division v McPherson [1980] 1 NSWLR 688.

[3.7020] Particulars Particulars must always be given: Lloyd v Biggin [1962] VR 593 (Smith J); Lewis v Judge Ogden (1984) 153 CLR 682; 53 ALR 53 at 693, 61; Macgroarty v Clauson (1989) 167 CLR 251; 86 ALR 513 at 255–256, 516.

[3.7025] Appearance A court has the power to require the alleged contemnor to attend the hearing of the contempt charge: Attorney-General (NSW) v Hayden (1994) 34 NSWLR 638; 74 A Crim R 549 (CA). The warrant to arrest must be in the correct form: Marriner v Smorgon (1989) 167 CLR 368; 93 ALR 78.

[3.7030] Standard of proof The standard of proof is always beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; 83 A Crim R 472; 131 ALR 401. Applied: In the marriage of Tate (2002) 29 Fam LR 129 (FC); Forestview Nominees Pty Ltd v Perron Investments Pty Ltd (1999) 93 FCR 117; 162 ALR 482 (FC). In Keeley v Brooking (1979) 143 CLR 162; 25 ALR 45 Barwick CJ said (at 169; 48): Adherence to the well understood standard of proof in the trial of criminal offences is quite adequate to protect the individual charged summarily with contempt of court. To be satisfied beyond all reasonable doubt is, for the purposes of the law, to be certain.

[3.7035] Ex parte committal Ex parte committals are only made in an extraordinary case. In Doyle v The Commonwealth (1985) 156 CLR 510; 60 ALR 575 the court said (at 518–519; 573): In any case, the fact that a breach appears to be flagrant and contumacious should never by itself justify a court in making an ex parte order for committal. When the court proceeds ex parte the person against whom the order is made obviously has no opportunity of putting forward his or her

406

ROSS ON CRIME

[3.7040]

side of the case and when all the evidence is before the court the alleged contempt may prove to be much less serious than it at first appeared: cf John v Rees [1970] Ch 345, at p 402. Only in an extraordinary case would it be right for a court to proceed ex parte in committal proceedings in exercise of the power conferred by a rule such as O 52, r 3 or, if no such rule exists, under an inherent power. Indeed, even in the absence of any express rule in terms such as those of O 52, r 3, a judge in any jurisdiction should ensure, before he proceeds ex parte to make an order for committal, that there is a particularly urgent need to proceed in that way in order to avoid irreparable or serious mischief. There was no justification for proceeding ex parte in the present case.

All the evidence must be in the presence of the alleged contemnor. To avoid any such difficulties or suggestion of bias, it is preferable that the contempt proceedings be heard by someone other than the judge before whom the contempt is made: Kift v The Queen [1993] 1 VR 703 (CCA) where an employer was said to have tried to prevent an employee from doing jury service. Held that the contempt hearing against the employer should have taken place in his presence.

[3.7040] Coroners Court The coroners court has power to punish for contempt: R v The Coroner at Melbourne; Ex parte Ericksen [1981] VR 205 (Anderson J); R v West Yorkshire Coroner; Ex parte Smith [1985] QB 1056; [1985] 2 All ER 100; Clancy v West [1996] 2 VR 647 (CA). See also Coroner at [3.7500].

[3.7045] Contempt by counsel Contempt charges against counsel for what is said in court have often failed for one reason or another. In Lloyd v Biggin [1962] VR 593 (Smith J) no proper particulars were given by the magistrate, Biggin during a committal at Kaniva. Lloyd became Lloyd QC. Peter O’Brien was put into custody by magistrate Richard Wallace because he did not answer Mr Wallace’s question in the wanted way. There was no finding of contempt. The Court of Appeal declared that Mr Wallace acted without justification or power: O’Brien v Northern Territory (No 2) (2003) 12 NTLR 218; 173 FLR 455; 138 A Crim R 61 (CA). In Tippett v Murphy (1982) 16 NTR 13; 62 FLR 183 the magistrate had found that Jon Tippett (later Tippett QC) had committed a contempt. Muirhead ACJ allowed the appeal and set aside the finding. His Honour said (at 18; 189): In the case of Ex parte Bellanto; Re Prior (1962) 63 SR (NSW) 190 at 201, the Full Court of New South Wales had this to say about the issue of contempt by a barrister: “If in the course of a case a person whether layman or barrister persists in a line of conduct or use of language in spite of the ruling of the presiding judge, he may well be guilty of contempt of court, the offence being disregard of the ruling and setting the court at defiance. But the use of summary procedures to suppress methods of advocacy which are merely offensive, eg to an opposing barrister, or as a measure of reprisal by a judge after a brush with counsel, is to use it for a purpose for which it was never intended.” For words or actions to constitute contempt in the face of the court they must be such as to interfere or tend to interfere with the course of justice: Parashuram Deteram Shamdasani v King Emperor [1945] AC 264. Their Lordships, dealing again with contempt proceedings against a barrister, stated (at 270) and with respect there is much wisdom here:

[3.7045]

CONTEMPT OF COURT

407

It is a power which a court must of necessity possess; its usefulness depends on the wisdom and restraint with which it is exercised, and to use it to suppress methods of advocacy which are merely offensive is to use it for a purpose for which it was never intended. The Bar can surely maintain its dignity and prestige without having to invoke this jurisdiction.

In Lewis v Judge Ogden (1984) 153 CLR 682; 53 ALR 53, in his final address in a criminal case, AR Lewis had said: You normally think of a judge as being a sort of umpire, ladies and gentlemen, and you expect an umpire to be unbiased. You would be pretty annoyed if, in the middle of a grand final, one of the umpires suddenly started coming out in a Collingwood jumper and started giving decisions one way. That would not be what we think a fair thing in an Australian sport. It may surprise you to find out that his Honour’s role in the trial is quite different. That his Honour does not have to be unbiased at all except on questions of law. On questions of fact, his Honour is quite entitled to form views and very obviously has done so in this trial … I speak of that, ladies and gentlemen, because as I say, his Honour has given some fairly definite views in this case.

The court said (at 693; 60–61): The appellant’s conduct was extremely discourteous, perhaps offensive, and deserving of rebuke by his Honour, but in our view it could not be said to constitute contempt. In conclusion three comments should be made. The first is to recall that the contempt power is exercised to vindicate the integrity of the court and of its proceedings; it is rarely, if ever, exercised to vindicate the personal dignity of a judge (Ex parte Fernandez (1861) 30 LJCP 321, at p 332); Reg v Castro; Skipworth’s Case (1873) LR 9 QB 219, at p 232; Bellanto, Ex parte; Re Prior [1963] 63 SR (NSW) 190, at pp 200, 202. The second is that the summary power of punishing for contempt should be used sparingly and only in serious cases (Shamdasani [1945] AC, at p 270; Izuora v The Queen [1953] AC 327, at p 336). The final comment is that the charge of contempt should specify the nature of the contempt, ie that it consists of a wilful insult to the judge, and identify the alleged insult. In the result we would allow the appeal.

In Macgroarty v Clauson (1989) 167 CLR 251; 86 ALR 513 Neil Macgroarty of the Queensland Bar had been in a criminal case before Judge Loewenthal. During cross-examination the following had occurred: His Honour: … You have been cross-examining for a long time now. Mr Macgroarty: On an important matter, Your Honour. His Honour: You have been going round and round and not getting down to the issues. Mr Macgroarty: With respect, Your Honour, that is your opinion. His Honour: I have made my ruling. Mr Macgroarty: Your Honour, in making the ruling … His Honour: Will you keep quiet while I am speaking? Mr Macgroarty: NO, I won’t. His Honour: Mr Bailiff, remove Mr Macgroarty from the Courtroom. Take the jury out first.

Soon after the judge fined Mr Macgroarty $100 for contempt. The appeal was allowed because no particulars were given. (Clauson by the way was the Queensland Minister for Justice and the Attorney-General.) In Murphy v Magistrates’ Court at Prahran (1995) 80 A Crim R 92 (Vic, Beach J) Brendan Murphy (later Murphy QC) was charged with contempt by a magistrate. Further particulars were sought. Particulars were given but were very brief. The magistrate refused to disqualify himself and allowed only a short time for their consideration. Beach J prohibited the further hearing until further order. At the return of the originating motion, Beach J ordered prohibition.

408

ROSS ON CRIME

[3.7050]

A finding of contempt was made by Beach J against David Perkins of the Victorian Bar but his Honour declined to proceed to conviction by using his common law discretion. The appeal on this ground failed: Re Perkins; Mesto v Galpin [1998] 4 VR 505; 100 A Crim R 324 (CA). At a later time Mr Perkins was fined for contempt by the Victorian Civil and Administrative Tribunal. His appeal failed: R v Perkins [2002] VSCA 132.

[3.7050] Publicly revealing disclosed documents It may be contempt to reveal to the public documents disclosed by the other side. Home Offıce v Harman [1983] 1 AC 280; [1982] 1 All ER 532 (HL) was a civil case in which Hariet Harman, a solicitor, acted for a prisoner who claimed he had been improperly treated. The other side disclosed a number of documents on treatment of prison inmates. She gave a journalist access to the documents. Held: contempt. In Hearne v Street (2008) 235 CLR 125; 248 ALR 609 residents began a nuisance action against an amusement park. The park people used the residents’ unread affidavit and witness statements in an effort to get legislation barring the nuisance action. Held: contempt. There is an implied undertaking to use such documents only for the legal proceedings.

[3.7055] False affidavit In Martin v Trustum (No 3) (2003) 12 Tas R 131 (Slicer J) a party to litigation relied on the party’s own affidavit which falsely alleged judicial corruption. Slicer J found contempt by the party. Counsel would be in contempt for relying on affidavit known to be false. In Swinburne v David Syme & Co [1909] VLR 550 (FC) Madden CJ said (at 571): During the course of the argument I cited the case of Linwood v Andrews and Moore [1888] 58 LT NS 612. It is shown there that if a barrister becomes aware that an affidavit tendered to the Court is false, not only is it his duty to declare that fact to the Court, but if he does not do it he is guilty of a flagrant contempt of Court, for which he can be sent to gaol.

[3.7060] Police seizing counsel’s brief Contempt occurs by police searching and seizing counsel’s brief during a proceedings: R v MacDonald and Schilling [1994] 1 VR 414; (1993) 70 A Crim 478 (Hampel J).

[3.7065] Contempt in the face of the court Disruption of proceedings Demonstrators Wilkinson v S [2003] 1 WLR 1254; [2003] 2 All ER 184 (CA); Morris v Crown Offıce [1970] 2 QB 114; [1970] 1 All ER 1079 (CA).

Accused Rich v Attorney-General (Vic) (1999) 103 A Crim R 261 (Vic CA); R v Aquarius (1974) 59 Cr App R 165; [1974] Crim LR 609 (CA) (the accused).

Wilful insult to the judge by an accused Dow v Attorney-General [1980] Qd R 58; (1979) 2 A Crim R 176 (FC); Eastman v Nicholl (1992) 108 FLR 52 (ACT, Gallop J).

[3.7070]

CONTEMPT OF COURT

409

Witness refusing to answer questions or clearly giving false evidence Coward v Stapleton (1953) 90 CLR 573; Keeley v Brooking (1979) 143 CLR 162; 25 ALR 45; Hancock v Lynch [1988] VR 173 (Kaye J); McGoldrick v Citicorp Finance Pty Ltd [1990] VR 503 (FC); Wood v Galea (1995) 79 A Crim R 567 (NSW, Hunt CJ at CL); Registrar, Court of Appeal v Craven (1995) 120 FLR 464; 80 A Crim R 272 (NSW CCA); Principal Registrar, Supreme Court (NSW) v Jando (2001) 53 NSWLR 527; 125 A Crim R 473 (Studdert J); R v Garde-Wilson (2005) 158 A Crim R 20 (Vic, Harper J); Registrar of Supreme Court v Tran (2006) 166 A Crim R 393 (NSW, Buddin J). See also R v Parry (1997) 92 A Crim R 295 (WA CA).

Witness refusing to be sworn A competent and compellable witness refused to be sworn. It was held to be contempt because procedures exist to protect a witness from self-incrimination: R v Razzak (2006) 166 A Crim R 132 (NSW, Johnson J); Re Garland (1997) 95 A Crim R 264 (Qld, White J); R v K(B) [1995] 4 SCR 186; 129 DLR (4th) 500; 102 CCC (3d) 18 (SCC); Re Jones (1992) 58 A Crim R 471 (Vic, Hedigan J); Smith v The Queen (1991) 25 NSWLR 1; 56 A Crim R 148 (CA).

[3.7070] Cursing in court In R v K(B) [1995] 4 SCR 186; 129 DLR (4th) 500; 102 CCC (3d) 18 (SCC) a witness refused to give evidence. The following exchange took place. CLERK: Mr. K., do you want to step into the witness box, please. B.K.: Okay. CLERK: You have to stand up to be sworn. B.K.: Oh, fuck. CLERK: Please take the Bible in your right hand. Please state your full name for the court. B.K.: B.C.K. CLERK: Spell your last name. B.K.: K. CLERK: Do you swear that the evidence you shall give touching the matters in question shall be the truth, the whole truth, and nothing but the truth so help you God? B.K.: Fuck it, man, I ain’t testifying. COURT: I’m sorry, I didn’t hear you. B.K.: I ain’t testifying, man. Fucking charge me. Whatever you fucking want, man. I ain’t testifying.

410

ROSS ON CRIME

[3.7075]

According to the presiding judge, in his report to the Saskatchewan Court of Appeal, the appellant then threw the Bible on the floor immediately in front of the witness box, sat down in the box, sat back, crossed his arms and put his foot up on the railing of the witness box. Following this behaviour, the judge stated: COURT: I find you guilty of contempt in the face of this court. B.K.: Up yours, you dick. COURT: And I sentence you to a period of incaceration of six months consecutive to any ... B.K.: Fuck you, you goof. COURT: ... time is now being served. B.K.: Goof. COURT: Get him out of here. B.K.: Fucking goof.

In Rich v Attorney-General (Vic) (1999) 103 A Crim R 261 (at 264–266 [7]) (Vic CA) the accused had not wanted the trial to proceed. The curses to the judge are laced through the application.

Outburst following sentence In the Victorian Supreme Court, Nelson J was delivering a sentence in the later 1960s. His Honour: The sentence of the court is that you be imprisoned for 5 years ... Prisoner: You old #&?I*. His Honou :... and six months.

See also R v Logan [1974] Crim LR 609 (CCA).

[3.7075] Bias Normally an allegation of a judge’s bias will not be a contempt: Bainton v Rajski (1992) 29 NSWLR 539 (CCA) unless it is made disrespectfully or only for procedural advantage: Magistrates’ Court (Vic) v Murphy [1997] 2 VR 186; 89 A Crim R 403 (CA) at 209.

[3.7080] Acts within the court but not seen by the judge Planning to put laughing gas in the court ventilating system is not a contempt. It is not a contempt to do acts preparatory to a contempt: Balogh v St Albans Crown Court [1975] QB 73; [1974] 3 WLR 314; [1974] 3 All ER 283. Service of process within the court precinct will rarely be a contempt: R v Jones; Ex parte McVittie [1931] 1 KB 664; [1931] All ER Rep 615 (KBD); Re Tole; Ex parte Tole (1933) 50 WN (NSW) 216 (Long Innes J).

[3.7085] Acts out of court Dealings with a witness In R v McLachlan (1998) 2 VR 55; 93 A Crim R 557 Byrne J found that a policeman had committed contempt by telling an intending defence witness that she might be charged with perjury. His Honour said (at 68–69; 587): It is legitimate to seek by the application of reasoned argument, and not improper pressure, to persuade a witness believed to be false of the errors in proposed evidence. But the application of

[3.7085]

CONTEMPT OF COURT

411

improper pressure is an unlawful interference with the process of justice, and an act performed with the intent of so doing is performed with the intent which will support the charge of contempt of court.

In R v Loveday Ex parte Attorney-General [1982] WAR 65; (1981) 5 A Crim R 197 (CCA) it was no contempt to dismiss an employee for failing to ask the sheriff to be excused. Punishing a person for the evidence he gave is a contempt. In Connolly v Dale [1996] QB 120; [1996] 1 All ER 224 (QBD) the police had improper dealings with an identification witness. Held: Contempt.

Publication of prior convictions before trial Hinch v Attorney-General (1987) 164 CLR 15; 28 A Crim R 155; 74 ALR 353; R v Herald and Weekly Times (2007) 19 VR 248 (Smith J): no contempt.

Publication of evidence which has been excluded R v Day [1985] VR 261 (Gobbo J).

Publication of details of the case before trial, or during it R v David Syme & Co Ltd [1982] VR 173 (Marks J); R v Sun Newspapers; Ex parte Attorney-General [1993] 1 Qd R 682; (1992) 58 A Crim R 281 (Byrne J); John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 119 FLR 1; 80 A Crim R 414 (CA); Attorney-General v Independent Televisions News [1995] 2 All ER 370 (QBD); R v West Australian Newspapers Ltd; Ex parte DPP (WA) (1996) 16 WAR 518 (FC); Attorney-General (NSW) v X (2000) 49 NSWLR 653 (CA); DPP v Francis (2006) 95 SASR 302; 162 A Crim R 134 (Bleby J).

Breach of court order La Trobe University v Robinson and Pola [1972] VR 883 (McInerney J); Flamingo Park Pty Ltd v Dolly Dolly Creation Pty Ltd (1983) 5 FCR 169; 59 ALR 247 (Wilcox J); Tehia v Rogerson (1992) 111 FLR 1 (NT, Angel J); Langer v Australian Electoral Commission [No 2] (1996) 59 FCR 463 (FCA); Microsoft Corp v Marks (1995) 33 IPR 15 (FCA) (Tamberlin J).

Breach of undertaking to court Lade & Co Pty Ltd v Black [2006] 2 Qd R 531 (CA); Department of Fair Trading v Yang (2002) 132 A Crim R 438 (NSW, Buddin J).

Contempt seemingly authorised by statute Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564; 85 A Crim R 410; 133 ALR 303 (FCA).

412

ROSS ON CRIME

[3.7090]

[3.7090] Scandalising the court In Gallagher v Durack (1983) 152 CLR 238; 45 ALR 53 Mr Gallagher had said that when unionists walked off the job, that had caused the court to change its mind. He was imprisoned for three months for contempt. The High Court refused special leave. The majority said (at 243; 55): The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this Court in Bell v Stewart (1920) 28 CLR 419 and R v Fletcher; Ex parte Kisch (1935) 52 CLR 248 before R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 was decided, and the judgment of Rich J in the last mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong-headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of justice which, if continued, are likely to impair their authority”: per Dixon J in R v Dunbabin; Ex parte Williams (1935) 53 CLR, at p 447. The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the Court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”: R v Fletcher; Ex parte Kisch, per Evatt J (1935) 52 CLR, at p 257.

[3.7095] Dealing summarily with alleged contempt In Re Colina; Ex parte Torney (1999) 200 CLR 386; 166 ALR 545 Gleeson CJ and Gummow J said (at 390–391; 548 [4] – [5]): One of the most commonly debated aspects of the law on the subject has been the practice of dealing summarily with alleged offenders. The reason for the practice was explained by Dixon J in R v Dunbabin; Ex parte Williams (1935) 53 CLR 434 at 447: It is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon courts of justice, which, if continued, are likely to impair their authority. Nevertheless, it is accepted that a procedure whereby a court deals, in a summary way, with a challenge to its own integrity and authority, should be exercised sparingly, and only when necessity demands: Maslen v Offıcial Receiver (1947) 74 CLR 602 at 610–611.

In R v Huggins [2007] 2 Cr App R 108 (CA) Moses LJ, giving the judgment of the court, said (at 110 [18]): In the heat of the moment there may be a perception in the judge of the need for speedy action and condign punishment, but the importance of the time for reflection is that it presents an opportunity to consider whether a less stringent course may be taken. Indeed, that time for reflection may itself avoid the need for any further action at all.

In R v K(B) [1995] 4 SCR 186; 129 DLR (4th) 500; 102 CCC (3d) 18 (SCC) a witness had refused to give evidence and in doing so had cursed the judge. Lamer CJC, speaking for the majority, said of the judge (at 197–198; 508; 26 [15]): There is no doubt in my mind that he was amply justified in initiating the summary contempt procedures. I, however, find no justification for foregoing the usual steps, required by natural justice, of putting the witness on notice that he or she must show cause why they would not be found in contempt of court, followed by an adjournment which need be no longer than that required to offer the witness an opportunity to be advised by counsel and, if he or she chooses, to

[3.7300]

CONVICTION

413

be represented by counsel. In addition, upon a finding of contempt there should be an opportunity to have representations made as to what would be an appropriate sentence. This was not done and there was no need to forego all of these steps.

[3.7100] Bail Where an order of imprisonment has been made against a contemnor, bail is inappropriate: Young v Registrar, Court of Appeal (No 2) (1993) 71 A Crim R 121 (NSW CA).

[3.7105] Appeal: Queen is respondent In Re Perkins; Mesto v Galpin [1998] 4 VR 505; (1998) 100 A Crim R 324 (CA) Brooking JA with whom the others agreed said (at 510; 330): It is not appropriate, desirable or necessary to name the judge as respondent to an appeal against an order made in contempt proceedings dealt with summarily: the proper respondent is the Queen, since Her Majesty has the ultimate responsibility for the protection of the courts, the due administration of justice and the enforcement of the criminal law: Fraser v The Queen [1984] 3 NSWLR 212 at 218–219.

That proposition must have been overlooked by the High Court in Lewis v Judge Ogden (1984) 153 CLR 682; 53 ALR 53.

[3.7110] Sentencing In Australasian Meat Industry Employees’ Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98 Gibbs CJ, Mason, Wilson and Deane JJ said (at 115): Contempt of court is a distinctive offence attracting remedies which are sui generis (Morris v Crown Offıce [1970] 2 QB 114 at 129). It is required of the chosen remedy that it be effective, no more but no less. For, if it is not effective, serious and lasting damage to the fabric of the law may result.

[3.7115] Sentence Zappia v Registrar of the Supreme Court (2004) 90 SASR 193; 150 A Crim R 232 (CCA); DAI v DAA (2005) 155 A Crim R 1; 33 Fam LR 1 (Fam CA); Rich v Attorney-General (Vic) (1999) 103 A Crim R 261; DPP (Cth) v Haunga (2001) 127 A Crim R 358. See also J L Caldwell, “Is Scandalising the Court a Scandal?” [1994] NZLR 442. N Lowe and B Suffrin, The Law of Contempt (3rd ed, Butterworths, Sydney).

CONVICTION Definition ..................................................................................................................................... Jury verdict of guilty but judge does not record a conviction .................................................. Previous conviction ..................................................................................................................... Serious sexual offender ............................................................................................................... Proof of previous conviction ...................................................................................................... Spent conviction .......................................................................................................................... Offence proved: no conviction ................................................................................................... Other references ..........................................................................................................................

[3.7300] [3.7305] [3.7310] [3.7315] [3.7320] [3.7325] [3.7330] [3.7335]

[3.7300] Definition In Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1 Dawson and McHugh JJ said (at 508–509; 5–6; 184–185):

414

ROSS ON CRIME

[3.7300]

The older authorities have been collected in a number of cases and no point is to be served by rehearsing them here. (See R v Tonks [1963] VR 121, Cobiac v Liddy (1969) 119 CLR 257 at 271–273; Griffıths v The Queen (1977) 137 CLR 293; 15 ALR 1; Richards v R [1993] AC 217). In R v Tonks [1963] VR 121 the Victorian Full Court said ([1963] VR 121 at 127–128): The review of the authorities which we have made satisfies us that a plea of guilty does not if its own force constitute a conviction. In our opinion it amounts to no more than a solemn confession of the ingredients of the crime alleged. A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused. It may be that even a determination of guilt will not in all cases amount to a “conviction”, for the latter term may be used in a particular context as meaning not merely conviction by verdict where no judgment is given, but conviction by judgment. (See Burgess v Boetefeur (1844) 7 Man & G 481; 135 ER 193, and Hale’s Pleas of the Crown, vol 1 p 686); but there must at least be a determination of guilt before there can be a conviction. There can accordingly be no conviction on a count to which an accused pleads guilty until by some act on the part of the court it has indicated a determination of the question of guilty. And if there can be no conviction till then, neither can there be a successful plea of autrefois convict. That passage was regarded as correctly stating the law by Gibbs J in the Supreme Court of Queensland in R v Jerome and McMahon where he said ([1964] Qd R 595 at 604): In the present case the court has done nothing upon the plea of guilty to indicate a determination of the question of guilt. The court might do that by imposing a punishment; by discharging a prisoner on his own recognisances; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused persons. And that view was implicitly (explicitly in the case of Aickin J) ((1977) 137 CLR 293; 15 ALR 1 at 335 (CLR)) adopted by a majority of this court in Griffıths v R (1977) 137 CLR 293; 15 ALR 1. Thus, whilst a plea of guilty is a confession of guilt, it does not of itself amount to a conviction. A conviction does not occur until there is an acceptance of the plea amounting to a determination of guilt by the court. The determination of guilt forms part of the judgment of the court but it can occur otherwise than by the formal entry of the plea upon the record of the court. Of course, the formal entry of the plea upon the record may afford the clearest evidence of a determination of the court, but a determination may otherwise occur when the court acts so as to indicate unequivocally its acceptance of the plea.

In Customs v Labrador Liquor Wholesale Pty Ltd (2003) 216 CLR 161; 77 ALJR 1629; 201 ALR 1 Hayne J, with whom the other justices agreed on this point, said (at 206 [137]): As Dawson and McHugh JJ said in Maxwell v The Queen, “[t]he question of what amounts to a conviction admits of no single, comprehensive answer.” The word has long been recognised as being used in various ways. In particular, there may well be a question whether conviction depends upon verdict or plea, or upon the sentence of the court.

Ordinarily, a bond is not a conviction for appeal purposes: R v Abedsamad [1987] VR 881; (1987) 24 A Crim R 189 (CCA). Other cases R v Stone (2005) 64 NSWLR 413; 157 A Crim R 41 (CCA); Keys v West (2006) 65 NSWLR 668 (Hall J); Keys v West (2004) 185 FLR 437 (NSW, Shaw J); Vreeker v Police (2004) 144 A Crim R 544 at 550–551 [25] – [26] (SA, Gray J); Perejmibida v Skelcher (2002) 127 A Crim R 549 at 553 [26] – [27] (WA, Roberts-Smith J; Tudman v Flower (1994) 73 A Crim R 321 (Vic, Hansen J);

[3.7315]

CONVICTION

415

Slattery v Davis (1993) 65 A Crim R 116 (NT, Kearney J).

[3.7305] Jury verdict of guilty but judge does not record a conviction In R v Celep [1998] 4 VR 811; (1998) 100 A Crim R 310 (CA) a jury returned a verdict of guilty. The judge exercised his discretion under s 75 of the Sentencing Act 1991 (Vic) not to record a conviction. The Court of Appeal permitted an appeal against conviction. On the unsafe and unsatisfactory ground a verdict of acquittal was entered.

[3.7310] Previous conviction When a law imposes a special penalty for subsequent conviction a person may only be dealt with as a second offender if the conviction for the first offence is recorded before the occurrence of the act constituting the second offence. Lord Coke 2 Inst 468 said: Et si tertio deliquerit et super hoc convicti fuerint. Convicti fuerint is here taken for adjudicati fuerint. Though this branch saith et super hoc convicti fuer, and may seem to refer to the third offence, yet cannot he be convicted of the third before he be convicted of the second, nor of the second before he be convicted of the first; and the second offence must be committed after the first conviction, and the third after the second conviction, and severall judgments thereupon given: for so it is to be understood in other Acts of Parliament where there be degrees of punishment inflicted for the first, second, and third offence, etc, there must be severall convictions, that is to say, judgments given upon legall proceeding for every severall offence, for it appeareth to be no offence untill judgment by proceeding of law be given against him.

Applied: Reid v Rowbottom (2005) 15 NTLR 1; 152 A Crim R 132 at [39] (CCA); R v Nowak (2000) 113 A Crim R 18 (SA CCA); Samuels v Mackenzie (1979) 23 SASR 595 (Mitchell J); Ryszawa v Samuels [1969] SASR 158 at 159–160 (Hogarth J); O’Hara v Harrington [1962] Tas SR 165 at 169 (Burbury CJ); Davidson v Plum [1960] VR 321 at 326 (Pape J); Farrington v Thomson [1959] VR 286 at 288 (Smith J); Knox v Bible [1907] VLR 485 at 494 (Cussen J); Christie v Britnell (1895) 21 VLR 71 at 73 (Madden CJ).

As to subsequent offence in driving cases: Police v Whitehouse (2005) 92 SASR 81 (FC); Burns v Melia (2005) 152 A Crim R 492 (WA, Simmonds J); DPP v Norman (2003) 39 MVR 480 (Vic, Kellam J);

[3.7315] Serious sexual offender Under s 3 of the Sentencing Act 1991 (Vic) a person can have the sentence made cumulative even if the three convictions arise from counts on the same presentment: R v Higham [1996] 1 VR 280 (CA); R v Connell [1996] 1 VR 436; (1995) 83 A Crim R 249 (CA);

416

ROSS ON CRIME

[3.7320]

R v Carr [1996] 1 VR 585; (1995) 84 A Crim R 409 (CA); R v L (1997) 91 A Crim R 270 (Vic CA); R v Dowlan (1997) 92 A Crim R 305 (Vic CA).

[3.7320] Proof of previous conviction Legislation Uniform Evidence Acts s 157; Qld: Criminal Code ss 630, 635; Evidence Act 1977 s 53; WA: Evidence Act 1906 s 47; SA: Evidence Act 1929 ss 42–43A.

Cases When a convicted person does not admit a previous conviction upon which the prosecution seeks to rely, such previous conviction must be proved: R v Marijancevic (1991) 54 A Crim R 431 at 447–451 (Vic CCA); R v Postiglione (1991) 24 NSWLR 584; 57 A Crim R 301 (CCA).

[3.7325] Spent conviction Legislation in some jurisdictions limits the effect of previous convictions for minor offences. After a good behaviour period, the conviction is said to be spent by not forming part of a person’s criminal history. There are, of course, exceptions.

Legislation Cth: Crimes Act 1914 s 85ZV; Qld: Criminal Law (Rehabilitation of Offenders) Act 1986; WA: Spent Convictions Act 1988; Sentencing Act 1995 s 39(2); Tas: Annulled Convictions Act 2003; NT: Criminal Records (Spent Convictions) Act; NSW: Criminal Records Act 1991; ACT: Spent Convictions Act 2000; NZ: Criminal Records (Clean Slate) Act 2004; Eng: Rehabilitation of Offenders Act 1974.

Cases Western Australian legislation enables a court to make a spent convictions order. Orders made: Riggall v Western Australia (2008) 182 A Crim R 517 (WA CA); Tambyrajah v Gablonski (2004) 147 A Crim R 18 (WA, Le Miere J): possession of amphetamines; Lynch v Heidrich (2002) 130 A Crim R 393 (WA, Pullin J): councillors failing to declare an interest.

[3.7330]

CONVICTION

417

Orders refused: Brewer v Bayens (2002) 133 A Crim R 378 (WA FC); Voges v King (2001) 122 A Crim R 435 (WA, Miller J).

Admissibility of a spent conviction In R v Nye (1982) 75 Cr App R 247 (CA) the court examined whether a person with a spent conviction could put good character in issue. The court decided that it depended on the nature of the spent conviction and how long ago it was. Talbot J, giving the judgment of the court said (at 250–251): It may well be that the past spent conviction, as was instanced in argument, happened when the defendant being tried was a juvenile, for instance for stealing apples, a conviction of many years before. In those circumstances quite plainly a trial judge would rule that such a person ought to be permitted to present himself as a man of good character. At the other end of the scale, if a defendant is a man who has been convicted, shall we say, of some offence of violence, and his conviction has only just been spent, and the offence for which he is then standing trial involves some violence, then it would be plain, we would think, that a trial judge would rule that it would not be right for such a person to present himself as a man of good character. The essence of this matter is that the jury must not be misled and no lie must be told to them about this matter. The exercise of discretion of the trial judge in the cases which will fall in between the two extremes to which I have referred must be carried out having regard to the 1974 Act and to the practice direction. It should be exercised, so far as it can be, favourably towards the accused person.

[3.7330] Offence proved: no conviction By statute, a court has power to find an offence proved but not record a conviction. Cth: Crimes Act 1914 s 19B; Qld: Penalties and Sentences Act 1992 s 12; WA: Sentencing Act 1995 s 46; Tas: Sentencing Act 1997 s 9; NT: Sentencing Act s 8; NSW: Crimes (Sentencing Procedure) Act 1999 s 10; Vic: Sentencing Act 1991 ss 8, 75 and 76; SA: Criminal Law (Sentencing) Act 1988 s 15(a) (trifling offence); ACT: Crimes (Sentencing) Act 2005 ss 17 and 18; NZ: Sentencing Act 2002 ss 11 and 106. In R v Ingrassia (1997) 41 NSWLR 447; 91 A Crim R 383 (CCA) Gleeson CJ said (at 449; 385): [I]t empowers a court which considers that a charge has been proved, in certain circumstances, to take certain steps “without proceeding to conviction”. The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, “a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice”.

In R v SAT (2006) 170 A Crim R 156 (Qld CA) the 17–year-old appellant pleaded guilty to indecent dealing with a long time girl friend of 15 years old. Wrote an apology. Attended counselling. Delay in complaint. Recording of conviction set aside. In R v Cay; Ex parte Attorney-General (Qld) (2005) 158 A Crim R 488 (Qld CA) the respondents had pleaded guilty to armed robbery to a poor armed robbery of a service station. The sentencing judge did not record a conviction. The prosecution appeal failed.

418

ROSS ON CRIME

[3.7335]

In Shillabeer v Hussain (2005) 192 FLR 132; 220 ALR 239 (SA, Gray J), Mr Hussain had been charged with escaping from a detention centre. The magistrate discharged him without conviction. The prosecution appealed, and lost. A court can decline to record a conviction in a strict liability offence: Thorneloe v Filipowski (2001) 52 NSWLR 60; 123 A Crim R 92 at [151] – [153] (CCA). A person can appeal even though no conviction has been recorded: R v Celep [1998] 4 VR 811; (1998) 100 A Crim R 310 (CA).

[3.7335] Other references See also Plea at [16.2100]; and Trivial offence at [20.2700].

CORONER Powers and history ...................................................................................................................... Legislation ................................................................................................................................... Practice ........................................................................................................................................ Police must provide information ................................................................................................ Appeal ......................................................................................................................................... Contempt ..................................................................................................................................... Autopsy .......................................................................................................................................

[3.7500] [3.7505] [3.7510] [3.7515] [3.7520] [3.7525] [3.7530]

[3.7500] Powers and history The coroner inquires into unusual deaths by holding an inquest. A coroner is appointed pursuant to statute and has powers from the same source. The history and powers of the coroner are discussed in: Director of National Parks v Barritt (1990) 72 NTR 1; 102 FLR 392 (Kearney J); R v Attorney-General (NI); Ex parte Devine [1992] 1 WLR 262; [1992] 1 All ER 609 (HL); Keown v Khan [1999] 1 VR 69; (1998) 101 A Crim R 503 (CA); Khan v West (2002) 131 A Crim R 111 (Vic, Osborn J); Domaszewicz v State Coroner (2004) 151 A Crim R 72 (Vic, Ashley J). See also Atkinson v Morrow [2006] 1 Qd R 397 (CA). Most Coroners Courts are, by statute, courts of record.

[3.7505] Legislation Qld: Coroners Act 2003; WA: Coroners Act 1996; Tas: Coroners Act 1995; NT: Coroners Act; NSW: Coroners Act 1980; Vic: Coroners Act 2008; SA: Coroners Act 2003;

[3.7525]

CORONER

419

ACT: Coroners Act 1997; NZ: Coroners Act 2006; Eng: Coroners Act 1988.

[3.7510] Practice A person should not be called as a witness at an inquest if the answers to questions would incriminate the witness in a serious crime: R v The Coroner; Ex parte Alexander [1982] VR 731 (Gray J); Correll v Attorney-General (NSW) (2007) 180 A Crim R 212 (NSW, Bell J). In R v The Coroner; Ex parte Alexander [1982] VR 731 Gray J said (at 738): [T]here has been a long standing practice in the Coroner’s Court not to call a witness who is likely to be implicated in a serious crime. This practice seems to be in general accord with the views expressed by Stawell CJ in R v Coldwell (1883) 2 W & W (L) 209 (FC) at 210. It is, in my opinion, a wise practice.

The coroner must accord procedural fairness: Annetts v McCann (1990) 170 CLR 596; 97 ALR 177; Musumeci v Attorney General (NSW) (2003) 57 NSWLR 193; 140 A Crim R 376 (CA). The waiver of the right to procedural fairness can be inferred from delay but only if all the facts and circumstances are known to the party: R v Somes; Ex parte Woods (1998) 143 FLR 342 (ACT, Crispin J). The coroner has power to fix the venue for the inquest: Aplin v McIntyre (2002) 134 A Crim R 222 (Qld, Cullinane J).

[3.7515] Police must provide information Police are under a continuing obligation to give all information to the coroner: Jordan v Lord Chancellor [2007] 2 AC 226; [2007] 2 WLR 754 (HL) at [44] per Lord Bingham, with whom the other Lords agreed.

[3.7520] Appeal The finding of the coroner may be subject to appeal or prerogative writ: Director of National Parks v Barritt (1990) 72 NTR 1; 102 FLR 392 (Kearney J); Anderson v Blashki [1993] 2 VR 89 (Gobbo J); R v Matterson; Ex parte Moles (1994) 4 Tas R 87; 77 A Crim R 360 (Underwood J); Secretary to Dept of Health v Gurvich [1995] 2 VR 69 (Southwell J); Keown v Khan [1999] 1 VR 69; (1998) 101 A Crim R 503 (CA). The Supreme Court has a general supervisory role and must itself accord procedural fairness: Boyce v Munro [1998] VR 773; (1997) 98 A Crim R 221 (CA). But a coroner’s findings fairly open on the evidence will not be disturbed by a Supreme Court: Perre v Chivell (2000) 77 SASR 282; 113 A Crim R 576 (Nyland J); Plover v McIndoe (2000) 2 VR 385; 117 A Crim R 211 (Balmford J). In Saraf v Johns (2008) 101 SASR 87 (Debelle J) his Honour held that an appeal is not a rehearing. The coroner wrongly took into account events after the deceased’s death. His Honour set aside the coroner’s recommendations.

[3.7525] Contempt A coroner’s court has power to punish for contempt: R v The Coroner at Melbourne; Ex parte Ericksen [1981] VR 205 (Anderson J);

420

ROSS ON CRIME

[3.7530]

R v West Yorkshire Coroner; Ex parte Smith (No 2) [1985] QB 1096; [1985] 1 All ER 100; Clancy v West [1996] 2 VR 647 (CA). See also The provisions of the various Coroners Acts. Accused (Contempt) at [1.1835].

[3.7530] Autopsy The coroner can order an autopsy to inquire into the circumstances of death, not just the cause: Pope v State Coroner (1998) 70 SASR 387 (Olsson J). Courts have forbidden an autopsy on an Aboriginal deceased: Green v Johnstone [1995] 2 VR 176 (Beach J); Re Death of Unchango, S (Jnr); Ex parte Unchango, S (Snr) (1997) 95 A Crim R 65 (WA, Walsh J). In Wuridjal v NT Coroner (2001) 11 NTLR 202; 165 FLR 317 (Riley J) there was a real question of whether the deceased Aboriginal girl had met death by her own hand or by the hand of another. Riley J ordered that the autopsy be carried out. But in Re Death of MRG; Ex parte Curtin (1997) 94 A Crim R 88 (WA) Owen J dismissed the objection to autopsy because the Aboriginal mother did not have standing and because the application was made out of time. See also the provisions of the various Coroners Acts. See also P Vines, “Objections to post-mortem examinations: multiculturalism, psychology and legal decision-making” (2000) 7 JLM 422-433. P Matthews, Jervis on Coroners (Sweet & Maxwell, London, 2002).

CORPORATIONS The nature of a corporation ........................................................................................................ Crimes by corporations ............................................................................................................... On corporate dissolution, criminalcharges may abate ............................................................... Corporation crimes by statute .................................................................................................... Piercing the corporate veil .......................................................................................................... Corporation and director ............................................................................................................. Forbidden management ...............................................................................................................

[3.7700] [3.7705] [3.7710] [3.7715] [3.7720] [3.7725] [3.7730]

[3.7700] The nature of a corporation In Tesco Supermarkets Ltd v Nattrass [1972] AC 153; [1971] 2 All ER 127 (HL) the Lords set aside a conviction for a checkout selling cleaning powder at a higher price than advertised. Lord Reid said (at 170; 131–132): I must start by considering the nature of the personality which by a 
fiction the law attributes to a corporation. A living person has a mind
 which can have knowledge or intention or be negligent and he has hands
 to carry out his intentions. A corporation has none of these: it must act 
through living persons, though not always one or the same person. Then
 the person who acts is not speaking or acting for the company. He is 
acting as the company and his mind which directs his acts is the mind of
 the company. There is no question of the company being vicariously 
liable. He is not acting as a servant, representative, agent or delegate. He 
is an embodiment of the company or, one could say, he hears and speaks 
through the persona of the company, within his appropriate sphere, and his 
mind is the mind of the company. If it is a guilty mind then that guilt is
 the guilt of the company. It must be a question of law whether, once the
 facts have been ascertained, a person in

[3.7705]

CORPORATIONS

421

doing particular things is to be
 regarded as the company or merely as the company’s servant or agent. In
 that case any liability of the company can only be a statutory or vicarious
 liability.

Approved: Hamilton v Whitehead (1988) 166 CLR 121; 82 ALR 626 at 129; 629–630 per Mason CJ, Wilson and Toohey JJ; Houghton v Arms (2006) 225 CLR 553; 231 ALR 534 at [44] (and footnote): joint judgment; A corporation has been interpreted as being a “person”: Willers v The Queen (1995) 125 FLR 221; 81 A Crim R 219 (WA CCA); Sydney Catchment Authority v Bailey (2006) 164 A Crim R 263 (NSW Land and Environment Court, Biscoe J).

[3.7705] Crimes by corporations Generally A corporation cannot commit a crime that is purely personal. Yet courts have held that a corporation can be guilty of a crime in which mens rea would seem to be an element. Put another way, the mens rea of a director can be transposed to the corporation. Yet mistake of fact may not be a defence: Timms v Darling Downs Co-operative Bacon Association Ltd (1988) 38 A Crim R 430 (Qld FC). In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 Brennan J said (at 512; 415): Liability of a corporation to criminal conviction and to the imposition of a criminal penalty is well established.

And later (at 514; 416–417): A corporation has no hands save those of its officers and agents; it has no mind save the mind of those who guide its activities. It cannot be subjected to the corporal penalties to which a natural person who offends against the criminal law can be subjected. Yet it can be held criminally liable. The weight of authority shows that, with some exceptions (fn: A corporation is incapable of committing some offences, eg, perjury or bigamy, at least as a principal offender: R v ICR Haulage Ltd [1944] KB at p 554), a corporation may be criminally liable where the proscribed act done or the proscribed omission made by a corporation’s officer or agent can be treated as having been done or made by the corporation with the mental state possessed by the person or persons who did or authorized the doing of the act or permitted the making of the omission whether or not the officers or agents of the corporation are also liable.

Applied: Re DPP Reference No 1 of 2000 (2001) 11 NTLR 111; 163 FLR 378; 126 A Crim R 77 (Martin CJ).

Conspiracy to defraud In Canadian Dredge & Dock Co Ltd v The Queen [1985] 1 SCR 662; 19 DLR (4th) 314; 19 CCC (3d) 1 (SCC) a number of corporations had colluded in their bids to dredge waters. They were convicted of conspiracy to defraud. Appeals dismissed. R v ICR Haulage Ltd [1944] KB 551; [1944] 1 All ER 691; (1944) 30 Cr App R 31. R v McDonnell [1966] 1 QB 233; [1966] 1 All ER 193; (1965) 50 Cr App R 5.

Incitement In Invicta Plastics v Clare [1976] RTR 251 (QB) the appellant advertised Radartec. It was an unlicensed device to detect police radar. This was an incitement to readers.

422

ROSS ON CRIME

[3.7710]

Attempt In Trade Practices Commission v Tubemakers of Australia Ltd (No 2) (1983) 76 FLR 455; 47 ALR 719 (FCA, Toohey J) his Honour held that the corporation attempted to breach the Trade Practices Act 1974 (now the Competition and Consumer Act 2010).

Manslaughter R v P & O European Ferries (Dover) Ltd (1991) 93 Cr App R 72. R v HM Coroner for East Kent; Ex parte Spooner (1987) 88 Cr App R 10. R v Murray Wright Ltd [1970] NZLR 476: acquittal.

[3.7710] On corporate dissolution, criminalcharges may abate In WorkCover Authority (NSW) v Energy Australia (formerly Sydney Electricity) (1998) 103 A Crim R 213 (Industrial Relations Commission, NSW, Hungerford J) his Honour said (228–229): It may be undoubted, in my view, that the ordinary rule is that on the dissolution of a defendant statutory corporation to a criminal charge the charge abates and effectively lapses. That must be so, it seems to me, because there would be no continuing legal person in existence against which the proceedings could be maintained. However, where the legislature has created a successor statutory corporation then whether any criminal liability of the former body be assumed by the new body will depend upon the terms of the statute effecting the dissolution of the one and the creation of the other. And so it must be in the present case. In other words, if the legislature by express enactment provides that the original and the successor bodies are one and the same legal person then it would follow that an undetermined criminal charge against the former would continue against the latter unaffected by the fact that the former was indeed dissolved. It may even follow that proceedings in respect of a criminal charge for an offence committed by the former body could be instituted against the new body even after the former had been dissolved, provided, of course, that any statutory limitation period did not otherwise operate as a bar. Again, the reason would be that the new body was created with the same legal personality as the former body.

[3.7715] Corporation crimes by statute The crimes of a corporation created by statute are too numerous to list. The most frequent are those committed under the Occupational Health and Safety Acts. Under this legislation, there will be a stiff fine for negligence that results in injury to an employed workman. Powercoal Pty Ltd v Industrial Relations Commission (NSW) (2005) 64 NSWLR 406; 156 A Crim R 269 (CA). DPP v Amcor Packaging Australia Pty Ltd (2005) 11 VR 557; 155 A Crim R 405 (CA).

[3.7720] Piercing the corporate veil Since Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 and Saloman v Saloman & Co Ltd [1897] AC 22 (HL) a company had been considered as a separate entity to the shareholders, directors and employees. But where the company is used as a façade for impropriety, a wrongdoer can be charged directly. Courts say that to charge in that way is to pierce the corporate veil. Legislation can pierce the corporate veil too. In Jennings v Crown Prosecution Service [2008] 1 AC 1046; [2008] UKHL 29 a restraint order had been made against Mr Jennings. At the time, Mr Jennings and others were facing trial (and later convicted) on conspiracy to defraud. They used their private company to do the cheating. The Committee said in a joint judgment (at [16]): In the ordinary way acts done in the name of and on behalf of a limited company are treated in law as the acts of the company, not of the individuals who do them. That is the veil which

[3.7730]

CORPORATIONS

423

incorporation confers. But here the acts done by the appellant and his associate Mr Phillips in the name of the company have led to the conviction of one and a plea of guilty by the other. Thus the veil of incorporation has been not so much pierced as rudely torn away.

In Loo v DPP (2005) 192 FLR 271; 154 A Crim R 299 (Vic CA) the prosecution had obtained a grant of a declaration on property to satisfy a pecuniary penalty. Mr Loo had incorporated a company of which he was the sole director, shareholder and secretary. The grant had been made under Confiscation Act 1997 (Vic). The court held that the State Act was not consistent with Corporations Act 2001 (Cth). The court allowed the appeal. Callaway JA said (at [50]): It is true that, in s 9 of the Confiscation Act, Parliament has disclosed an intention to pierce the corporate veil in relation to property subject to the effective control of a defendant, but much clearer language would have to be used to subordinate the claims of the unsecured creditors of a company in liquidation to a pecuniary penalty order not made against the company.

Other cases DPP v Larsson (1989) 40 A Crim R 313 at 322–324 (NSW, Smart J): veil not pierced; Pioneer Concrete Services Ltd v Yelnah Pty Ltd (1986) 5 NSWLR 254 at 264–268 (Young J): description of piercing the corporate veil; R v Ditford (1987) 28 A Crim R392 (NSW, ruling of Finlay J); R v Grubb [1915] 2 KB 683; (1915) 11 Cr App R 153.

[3.7725] Corporation and director Mr Pannowitz was the director of Steepleton Pty Ltd. Both were convicted of dumping waste in a prohibited area. There was a further order that the finding of the court be published. The publication order was not properly complied with. Steepleton was wound up. For non-publication Mr Pannowitz was convicted of contempt. The contempt case contains the history of the waste charges: Environment Protection Authority v Pannowitz (2006) 164 A Crim R 325 (Land and Environment Court of NSW, Lloyd J). Other cases may not be so simple. In R v Maharaj (1995) 85 A Crim R 374 (NSW CCA) the victim paid a deposit of $50,000 to a company controlled by Mr Maharaj. It was to secure a loan from overseas sources. If the loan could not be obtained, the deposit would be refunded. There was no loan and no refund. Mr Maharaj was convicted of fraudulent omission to account. The Court of Criminal Appeal set the conviction aside. Although Mr Maharaj could properly have been convicted, the trial judge had not explained to the jury the difference between the personal liability of Mr Maharaj and the obligation of the company. In Hopfner v Flavel (1990) 48 A Crim R 149 (SA, Mullighan J) the director and secretary of a company committed the offence of failing to produce the corporation’s books and records.

[3.7730] Forbidden management A person may be forbidden to take part in the management of a corporation. It derives from legislation.

Legislation Cth:Corporations Act 2001 (various provisions). [This Act is applied by legislation in many jurisdictions].

Cases Pollard v DPP (Cth) (1992) 28 NSWLR 659; 63 A Crim R 383 (Abadee J) (under earlier legislation).

424

ROSS ON CRIME

[3.7900]

CORROBORATION Definition ..................................................................................................................................... The evidence must be credible ................................................................................................... The nature of corroborative evidence ........................................................................................ Intractable neutrality ................................................................................................................... Function of trial judge ................................................................................................................ Errors by trial judge .................................................................................................................... Who must be corroborated ......................................................................................................... Legislation ................................................................................................................................... Uniform Evidence Acts .............................................................................................................. Accessory after the fact .............................................................................................................. Corroboration of accomplice or co-conspirator ......................................................................... What may be corroboration ........................................................................................................ What evidence is not corroborative ........................................................................................... Judge’s warning to the jury ........................................................................................................ The word corroboration should not be used .............................................................................. The essence of the warning ........................................................................................................ Credibility and corroboration ..................................................................................................... Joint trial where one accused gives evidence ............................................................................ Corroboration warning in a joint trial ........................................................................................ Ten aspects of corroboration ......................................................................................................

[3.7900] [3.7905] [3.7910] [3.7915] [3.7920] [3.7925] [3.7930] [3.7935] [3.7940] [3.7945] [3.7950] [3.7955] [3.7960] [3.7965] [3.7970] [3.7975] [3.7980] [3.7985] [3.7990] [3.7995]

[3.7900] Definition In Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 the court said in a joint judgment (at 211–212; 541; 159–160): The essence of corroborative evidence is that it “confirms” “supports” or “strengthens” other evidence in the sense that it “renders [that] other evidence more probable”: Reg v Kilbourne, per Lord Simon of Glaisdale. It must do that by connecting or tending to connect the accused with the crime charged in the sense that, where corroboration of the evidence of an accomplice is involved, it “shows or tends to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused”: R v Baskerville (17). It is well settled that corroboration may be in the form of circumstantial evidence: Baskerville (17): see also Reg v Tripodi (18);Reg v May (19), per Gibbs J;Reg v Lindsay (20), per Zelling and Wells JJ; Medicraft v The Queen (21). Circumstantial evidence is evidence which proves or tends to prove a fact or set of facts from which the fact to be proved may be inferred. Circumstantial evidence can prove a fact beyond reasonable doubt only if all other reasonable hypotheses are excluded: see Hodge’s Case (22); Peacock v The King (23); Martin v Osborne (24); Thomas v The Queen (25); Plomp v The Queen (26); Barca v The Queen (27). But, if some lesser standard will suffice, the existence of other reasonable hypotheses is simply a matter to be taken into account in determining whether the fact in issue should be inferred from the facts proved: see Peacock (28), (where Griffith CJ noted the different considerations applicable to circumstantial evidence in civil and criminal cases. It is not necessary that corroborative evidence, standing alone, should establish any proposition beyond reasonable doubt. In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see Baskerville; Reg v Hester (29).

In Sumner v The Queen (2010) 29 VR 398; 205 A Crim R 325; [2010] VSCA 221 the Victorian Court of Appeal made the following obaervations regading the nature of corroboration: [40] The essential quality of corroborative evidence was discussed in R v Kuster in these terms: Whether evidence amounts to corroboration is governed by the fundamental principle that it must be evidence - independent of the witness to be corroborated - which tends to confirm the evidence of that witness that the crime was committed and that the accused committed the

[3.7905]

CORROBORATION

425

crime. This principle has from time to time been misconceived as requiring the corroboration evidence itself to be probative of the fact that the accused committed the crime. Vincent JA in R v Taylor noted that there has been a ‘remarkable persistence of the misconception’ that evidence relied upon as corroboration “must itself be probative of guilt”. The present argument rests upon this very fallacy. In Doney v R (“Doney”), the corroborative evidence did not itself directly link the accused to the crime charged. The High Court rejected a submission that the evidence could not be corroborative because it did not implicate the accused in the offence charged. The joint judgment adopted the classic statement from R v Baskerville (‘Baskerville’) that corroborative evidence must [tend] to show that the story of the accomplice that the accused committed the crime is true, not merely that the crime has been committed, but that it was committed by the accused. The highlighted words are not always included when Baskerville is cited, which may explain why the essence of corroboration is sometimes misunderstood. The passage from the judgment of Callaway JA in R v McLachlan, upon which the applicant placed heavy reliance, does refer to the relevant part of the judgment in Doney, which was in these terms: The essence of corroborative evidence is the presence of some confirmation, support or strengthening of other evidence such that that other evidence is rendered more probable. ... … In the case of an accomplice’s evidence, it is sufficient if it strengthens that evidence by confirming or tending to confirm the accused’s involvement in the events as related by the accomplice: see Baskerville; Reg v Hester. This Court has repeatedly rejected the notion that corroborating evidence must itself prove that the crime was committed and that the accused was involved in its commission. Thus, in R v Rayner, Winneke P observed: In truth, the essence of corroboration is that it is evidence coming from a source independent of the person to be corroborated which renders that person’s evidence in a material particular more probable, in the sense that it tends to show not only that the crime charged was committed but that the accused was involved in its commission: R v Baskerville’s [1916] 2 KB 658; [1916–17] All ER Rep 38; 12 Cr App R 81 at 667 (KB) per Lord Reading CJ; R v Kendrick [1997] 2 VR 699 at 708. Similar observations were made in R v Taylor. In R v Trong Duy Ngo, the Court said: The locus classicus of what amounts to corroborative material is the decision in Baskerville. The decision in that case is not authority for the proposition that potentially corroborative material must itself prove the crime was committed and that the accused was involved in its commission. In none of these cases did the corroborative evidence, viewed in isolation from the evidence to be corroborated, prove the commission of the offence or that the accused was implicated in it. In BRS v R, Brennan CJ observed that: ‘[I]t is sufficient to constitute corroboration that the evidence should strengthen the evidence to be corroborated as to a fact on which proof of guilt depends. The essential quality of corroborative evidence is that it must independently “confirm”, “support” or “strengthen” the evidence to be corroborated, by rendering that “other evidence more probable”. It does so by providing support, from a separate and more trustworthy source, for the truth and reliability of the evidence to be corroborated. Hence there is no distinction for the purposes of corroboration between evidence which itself tends to implicate the accused in the commission of the offence charged and evidence which is capable of supporting the evidence of the witness to be corroborated. Evidence may be corroborative even though it may itself be regarded either as consistent with innocence or as equivocal. It is for the jury to determine whether it is corroborative.

[3.7905] The evidence must be credible In DPP v Hester [1973] AC 296; [1972] 3 All ER 1056; 57 Cr App R 212 (HL) Lord Morris said (at 315; 1065; 229):

426

ROSS ON CRIME

[3.7910]

The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence.

[3.7910] The nature of corroborative evidence In R v Martin (2003) 142 A Crim R 153 (Vic CA) one of the appeal grounds was about the corroboration of an accomplice. Vincent JA, with whom the others agreed, said (at 162 [37]): Corroborative evidence may be circumstantial or direct. Its real force is not derived from such considerations, although, when dealing with circumstantial evidence care must be taken to ensure that the evidence is capable of providing relevant support, but also from the fact that it comes from a source independent of the witness concerned. The value of the evidence is increased because there is support for its truth and reliability from a separate and more trustworthy source. Accordingly, whether or not the evidence claimed to support that of the accomplice is direct or circumstantial, the judge must approach it in the same fashion. The evidence is either capable of providing corroboration or support, or it is not.

[3.7915] Intractable neutrality In R v Kerim [1988] 1 Qd R 426; (1987) 28 A Crim R 439 (CCA) the trial judge wrongly identified as corroborative evidence which Macrossan J described as “intractably neutral” (at 447; 461). Approved: R v Kendrick [1997] 2 VR 699 at 709 (CA). In BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101 Gaudron J, citing R v Kerim and other authority, said (at 297; 116; 416–417): Evidence is not corroborative if, as is sometimes said, it is “intractably neutral”.

R v Gill (2003) 142 A Crim R 22 (Vic, Redlich J) his Honour ruled (at 26 [13]): Evidence is not capable of constituting corroboration if indeed the evidence is intractably neutral, in the sense that it is incapable of being perceived as supporting the evidence of the accomplice in a relevant way. The difference between evidence which is incapable of supporting a particular hypothesis and evidence which is capable of supporting competing hypotheses is critical. In the latter circumstance, it will be for the tribunal of fact to consider which hypothesis such evidence supports.

[3.7920] Function of trial judge The trial judge must identify for the jury what evidence is capable of amounting to corroboration. It is for the jury to decide whether such evidence is corroborative: Eade v The King (1924) 34 CLR 154 at 159. In Popovic v Derks [1961] VR 413, Sholl J ruled (at 420): What is capable of amounting to corroboration is a question of law. Whether in a particular case it is to be accepted as such is a question of fact for the tribunal of fact. This was very clearly stated by the Court of Appeal in Mash v Darley, [1914] 3 KB 1226, cited in Thomas v Jones, supra, and by Scrutton, LJ in the passage from the latter case which I have already read. In that case, at p 39, the Lord Justice also said: “The question, therefore, is not what opinion we should have come to if we had heard that evidence. That is quite immaterial. The question is, was there any evidence on which the justices could reasonably come to the conclusion that there was corroboration? If there was such evidence, they are the persons to say whether they are satisfied, and the fact that we should not have been satisfied is immaterial, because we are not the persons to be satisfied: it is the justices with their local knowledge who are to be satisfied.”

[3.7930]

CORROBORATION

427

In Eade v R (1924) 34 CLR 154 at p 159, Isaacs and Rich JJ, in a joint judgment stated a series of propositions with relation to the question of a false denial in a criminal case which involved the unsworn evidence of a girl of five. If I may say so, I think that the third and fourth of the propositions there stated would be rendered a little clearer if one were to insert words indicating that where the learned judges are speaking of evidence being “corroborative”, they are to be taken as meaning to refer to evidence “capable of being regarded as corroborative”.

Applied: R v H (1990) 49 A Crim R 396 at 404 (NSW CCA). See also Chidiac v The Queen (1991) 171 CLR 43252 A Crim R 119; 65 ALJR 207; 98 ALR 368 at 441 (CLR).

[3.7925] Errors by trial judge It is an error for a judge to leave it to the jury to take into account any evidence they may consider as amounting to corroboration: R v Mercer (1993) 67 A Crim R 91 at 98 (NSW CCA); R v Francis [1993] 2 Qd R 300 (CA); R v Small (1994) 33 NSWLR 575; 72 A Crim R 462 (CCA). It is also an error for the judge to identify evidence as corroborative when it is not: R v Thomas (1959) 43 Cr App R 210 at 214; R v Kehagias [1985] VR 107 at 113 (CCA); R v Rosemeyer [1985] VR 945 at 949, 968–969 (CCA); Markovina v The Queen (1996) 16 WAR 354; 131 FLR 52; 93 A Crim R 149 (CCA). In a joint trial it is wrong to identify as corroborative evidence which is of equal weight against all accused: R v Bryce [1994] 1 Qd R 77 (CA). Approved: R v Pisano [1997] 2 VR 342 (CA). A judge is not required to point to every corroborative matter: R v Sorby (1986) VR 753; 21 A Crim R 64 at 781–782 (VR), 93–94 (A Crim R) (CCA).

[3.7930] Who must be corroborated For discussion of this issue see B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 per Dawson and Gaudron JJ at 615–616. 1. Accomplices (see Accomplice at [1.1600]). 2. A young child who gives sworn or unsworn evidence: R v Schlaefer (1984) 37 SASR 207; 12 A Crim R 345; B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 at 616. 3. A prison informer: Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1. See Prison(Directions on evidence of a prisoner) at [16.4925]. 4. In sexual cases (not because of a common law rule but where a Longman Warning is called for) see Longman warning at [12.2100]. 5. When a witness has a mental disability: Bromley v The Queen (1986) 161 CLR 315; 22 A Crim R 216; 67 ALR 12.

428

ROSS ON CRIME

[3.7935]

6. Where a confession is made by a person of unsound mind: Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 especially by Brennan J; or the confession is disputed: McKinney v The Queen (1991) 171 CLR 468; 52 A Crim R 240; 98 ALR 577. 7. A witness who is inherently unreliable: DPP v Faure [1993] 2 VR 497; (1993) 67 A Crim R 172 (CCA); R v Carabott (2002) 83 SASR 293; 132 A Crim R 355 (CCA). 8. A transaction with a person now dead: Morrissey v Clements (1885) 11 VLR 13 (FC). 9. The categories are not closed: DPP v Kilbourne [1973] AC 729; [1973] 1 All ER 440; 57 Cr App R 381 (HL) per Lord Hailsham (at 740; 447; 393–394); B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 per Dawson and Gaudron JJ (at 616; 444; 238).

[3.7935] Legislation Various statutes (apart from Uniform Evidence Acts ss 164 and 165) deal with corroboration. Qld: Criminal Code ss 52 (sedition), 125 (perjury); WA: Evidence Act 1906 ss 35, 50, 106D; Tas: Criminal Code s 96; SA: Evidence Act 1929 ss 12A and 34D; NZ: Evidence Act 2006 s 121; Can: Criminal Code ss 133, 274, 292, 658(2), 659. In sexual cases corroboration is said not to apply to the evidence of a complainant. Qld: Criminal Code s 632; NSW: Criminal Procedure Act 1986 s 294AA; Evidence Act 1995 s 165A; SA: Evidence Act 1929 s 34L(5); The interpretation of the provisions of Uniform Evidence Acts ss 164 and 165 can take account of the common law but only with care: Papakosmas v The Queen (1999) 196 CLR 297; R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (CCA) at [2] – [15]]; Derbas v The Queen [2012] NSWCCA 14. A trial judge can still warn a jury about the dangers of uncorroborated evidence: Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 at 223 [53]. A warning must be given when it is “necessary to avoid the perceptible risk of miscarriage of justice”: Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 86.

[3.7940] Uniform Evidence Acts Uniform Evidence Acts ss 164 and 165 apply. In Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 Gaudron A-CJ, McHugh, Hayne and Callinan JJ said (at 224; 343 [55]): Neither s 164 nor s 165 of the Evidence Act 1995 forbids a judge warning the jury that it would be dangerous to convict on uncorroborated evidence. Such a warning would constitute a misdirection

[3.7950]

CORROBORATION

429

only if the facts of the case could not admit of such a conclusion and, given that it is a warning which favours an accused, the giving of such a warning is unlikely to occasion appellate intervention.

In R v Chen (2002) 130 A Crim R 300 (NSW CCA) the court said in a joint judgment (at 324 [58]): Chen was plainly an accomplice. Though s 164(3) of the Evidence Act 1995 abolished the universal common law duty to give an accomplice warning, the power and the duty to do so in appropriate circumstances survives: see also s 165(5). It became, therefore, incumbent upon the learned presiding judge to give the jury a clear direction to the effect that it would be dangerous to convict the appellant, and his other co-accused, upon the uncorroborated evidence of that accomplice. This, as it seems to us, his Honour plainly and correctly did.

Approved: R v Livingstone (2004) 150 A Crim R 117 at 132 [72] (NSW CCA); R v Kanaan (2005) 157 A Crim R 238 at 275 [117] (NSW CCA). In R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (CCA) Howie J, with whom the others agreed on this point, said (at 320; 389 [94]): The combined effect of ss 164 and 165 is to provide the trial judge with the flexibility to give a warning appropriate to the case in light of the issues raised and the factors which might affect the reliability of the evidence.

In R v Saengsai-Or (2004) 61 NSWLR 135; 185 FLR 336; 147 A Crim R 172 (CCA) two prosecution witnesses were likely to have taken part in the crime charged. The defence did not ask for a warning under s 165. Bell J, with whom the other judges agreed, held that the trial judge did not err in not giving the warning. Yet one witness was generally unreliable and the judge failed to give any general warning. Appeal against conviction allowed. In RRS v R [2013] NSWCCA 94, ast [83], it was noted that s 165 is not an exhaustive code regarding the circumstances in which a warming is required. The circumstances in which evidence may be unreliable extend beyond the types of evidence set in s 165.

[3.7945] Accessory after the fact Corroboration will not normally be required for an accessory after the fact: Ling v The Queen [1981] Tas R 250; (1981) 6 A Crim R 429 at 279; 451 (CCA); Gibb & McKenzie v The Queen [1983] 2 VR 155; (1982) 7 A Crim R 385 at167; 397 (CCA); R v Carranceja (1989) 42 A Crim R 402 at 417 (Vic CCA); R v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 (CCA); Khan v The Queen [1971] WAR 44 (CCA). All applying R v Ready & Manning [1942] VLR 85 at 93 (FC). In England corroboration is required: Davies v DPP [1954] AC 378; [1954] 1 All ER 507; (1954) 38 Cr App R 11 (HL).

[3.7950] Corroboration of accomplice or co-conspirator In Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 Gaudron ACJ, McHugh, Hayne and Callinan JJ said (at 226, 344 [61]): It is at least open to serious doubt whether, on the trial of an accused, evidence which does no more than corroborate the involvement of a co-conspirator, may be used as corroborative evidence

430

ROSS ON CRIME

[3.7955]

against the accused. The relevant inquiry must be whether the evidence in question tends to confirm or support the evidence which implicates the accused, not just whether the evidence is relevant to the issues at trial.

[3.7955] What may be corroboration What amounts to corroboration will depend on the circumstances of the case. For a detailed analysis see R v Rayner [1998] 4 VR 818 (CA) per Brooking JA (at 851–853). Some of the more common forms of corroboration are the following: 1. Confession. For limitations see R v Goonan (1993) 69 A Crim R 338 at 344–346 (NSW CCA); 2. Lies (see Lies at [12.1300] and R v Parker (1983) 8 A Crim R 324 at 327 (Vic CCA)); 3. A chain of circumstances: R v Nanette [1982] VR 81; (1981) 3 A Crim R 268 (CCA); R v Radford (1993) 66 A Crim R 210 (CCA) at 239; R v Kalajzich (1989) 39 A Crim R 415 (NSW CCA). 4. Flight see Flight at [6.1300]; 5. Possession of incriminating material: Eade v The King (1924) 34 CLR 154 at 158 (pies); R v Parker (1983) 8 A Crim R 324 (Vic CCA) (heroin); See also Implement of crime at [9.600]. 6. Prior acts with the same girl: R v K (1992) 34 FCR 227; 59 A Crim R 113 and on appeal under the title of B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225. 7. Bribery or attempted bribery: R v Baker (2000) 78 SASR 103; 118 A Crim R 150 (CCA); Fox v The Queen (1982) 7 A Crim R 28 (Tas CCA). 8. Concealment of the weapon: R v Nguyen (2001) 118 A Crim R 479 (Vic CA). 9. Distressed condition of the complainant in a sexual assault case. See Rape at [18.100]. Evidence is not excluded as corroboration simply because it is consistent with both the case for the prosecution and the case for the accused: R v Stratford and McDonald [1985] 1 Qd R 361 at 366 (CCA); R v McK [1986] 1 Qd R 476 at 480 (CCA); R v Kalajzich (1989) 39 A Crim R 415 at 430–432 (NSW CCA); R v Goonan (1993) 69 A Crim R 338 at 345 (NSW CCA). Whether evidence is capable of being corroborative depends on the issues at trial: R v Kerim [1988] 1 Qd R 426; (1987) 28 A Crim R 439 at 441 (CCA);

[3.7970]

CORROBORATION

431

R v Kalajzich (1989) 39 A Crim R 415 at 432–433 (NSW CCA); R v Goonan (1993) 69 A Crim R 338 at 346 (NSW CCA). Evidence is capable of being corroborative notwithstanding it gives rise to more than one inference: R v Lindsay (1977) 18 SASR 103 (CCA); R v Stephenson (1978) 18 SASR 381 (CCA); R v Berrill [1982] Qd R 508; (1982) 5 A Crim R 431 (CCA).

[3.7960] What evidence is not corroborative Evidence which is intractably neutral: BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101 per Gaudron J (at 297; 116; 416–417) and the cases to which she referred); Hugo v The Queen (2000) 113 A Crim R 484 at 522 [120] (WA CCA). To use the description of Ormiston J in R v Rosemeyer [1985] VR 945 (CCA) (at 969): [C]ertain categories of evidence may never corroborate other evidence within the same category.

One accomplice cannot corroborate another: R v Khan [1971] WAR 44; R v Medcraft [1982] WAR 33; (1981) 5 A Crim R 186 (CCA); Chidiac v The Queen (1991) 171 CLR 432; 52 A Crim R 119; 65 ALJR 207; 98 ALR 368; Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1. Elated emotional state of an accused is not normally corroboration: R v Thompson [1983] 1 Qd R 224; (1982) 7 A Crim R 468 (CCA). Questions by counsel are not evidence and cannot be corroborative: R v Lawler (1989) 52 SASR 424; 46 A Crim R 238 at 426, 239 (CCA per King CJ).

[3.7965] Judge’s warning to the jury In Kelleher v The Queen (1974) 131 CLR 534; 4 ALR 450 a sexual case, Gibbs J said (at 553; 467–468): [T]he trial judge should, as a matter of practice, warn the jury that it is dangerous to convict on the uncorroborated testimony of the person (whether male or female) on whom the offence was committed, although the members of the jury may act upon that testimony if, after scrutinising it with great care, and paying heed to the warning, they are satisfied of its truth and accuracy. I have set out the general nature of the warning required, but of course there is no set form of words that must be used.

[3.7970] The word “corroboration” should not be used The word “corroborate” should not be used. Nor “corroboration”. In R v Cummins (2004) 10 VR 15; 147 A Crim R 585 (CA) Ormiston JA, with whom the others agreed, said (at 27; 597 [35]): For reasons stated a number of times in the past which I shall not enumerate, I believe it is preferable not to use the words “corroboration” or “corroborative”, unless that is technically

432

ROSS ON CRIME

[3.7975]

required, for they are terms of art, not readily appreciated by lay jurors, and the essence of the issue in each case is whether there is material which might confirm in some relevant respect what the impugned witness has been saying in evidence.

In R v Kerim [1988] 1 Qd R 426; (1987) 28 A Crim R 439 (CCA) McPherson J said (at 462–463; 478): Perhaps I may be permitted to add the following further comment. In Kilbourne [1973] AC 729 at 741, Lord Hailsham said: The word “corroboration” is not a technical term of art, but a dictionary word bearing its ordinary meaning; since it is slightly unusual in common speech the actual word need not be used, and in fact it may be better not to use it. Where it is used it needs to be explained. I think that some of the difficulties that arise in this branch of the law can be avoided if, instead of directing the jury that particular evidence is capable of corroborating the complainant’s testimony, the judge instructs the jury that such evidence is capable of being considered by them as independent evidence tending to confirm that testimony in a material particular, specifying the material particular in question, whether it be penetration, non-consent, or identity. It is, as this case shows, the use of the word “corroborate”, that is fraught with risk of misdirection; and that risk can be eliminated, or at least greatly reduced, if use of that word, and its derivatives like “corroborative”, are avoided in the course of summing up.

Expressions such as “tend to show” or “tend to support” are preferable: R v Baskerville [1916] 2 KB 658; [1916–1917] All ER 38; 12 Cr App R 81 (CCA); R v Nanette [1982] VR 81; (1981) 3 A Crim R 268 per McInerney J at 86; 279 (CCA).

[3.7975] The essence of the warning In R v Button [1992] 1 Qd R 552; (1991) 54 A Crim R 1 (CCA) Ryan J said (at 555–556; 5): It will always be a matter for the jury whether they find that the testimony of an accomplice is corroborated. If they do not, an accused may nevertheless be convicted on the uncorroborated testimony of an accomplice or accomplices. In that case, the jury must be warned of the danger of relying upon the sole evidence of an accomplice. In R v Spencer [1987] 1 AC 128 at 140, Lord Ackner said: The warning to be sufficient must explain why it is dangerous so to act, since otherwise the warning will lack significance. The jury are, of course, told that while as a general rule it is dangerous so to act, they are at liberty to do so if they feel sure that the uncorroborated witness is telling the truth. Where, however, there is evidence before the jury which they can properly consider to be corroborative evidence the position becomes less clear. The trial judge has the added obligation of identifying such material, and explaining to the jury that it is for them to decide whether to treat such evidence as corroboration. In my opinion, it is necessary, in a case where the Crown relies on the testimony of an accomplice, for the judge to explain why it is dangerous to act on the uncorroborated testimony of an accomplice, since they may not find that the evidence is corroborated.

[3.7980] Credibility and corroboration There is not a two-stage approach whereby a jury determines whether a witness is credible before examining corroboration. In R v Turner (1975) 61 Cr App R 67 (CCA) James LJ stated (at 84): The credibility of the witnesses whose evidence requires corroboration is judged not on his evidence alone but on all the evidence in the case. In some cases that, which adds credence to the evidence of the witness also serves to corroborate his evidence. In other cases evidence capable of providing corroboration is more clearly distinguishable from evidence which only goes to credibility. Some cases may call for a more emphatic or more elaborate direction than others.

[3.7995]

CORROBORATION

433

Approved: Attorney-General (HK) v Wong [1987] 1 AC 501 at 511; 2 All ER 488 at 494; 85 Cr App R 167 at 174 (PC). Similar sentiments are expressed in R v Radford (1993) 66 A Crim R 210 (CCA), or rather the corollary is expressed (at 238): To suggest that once corroboration is found the jury might then treat the evidence of an accomplice in the same way as they would treat the evidence of any other witness would be a misdirection; an accomplice remains a person with a potential motive to lie and he is not an independent witness free of interest in the outcome of the case.

Care must be taken not to confuse credit with corroboration. In R v Haddad (1988) 33 A Crim R 400 (NSW CCA) Roden J said (at 410): What was required thereafter, was an explanation of what may constitute corroboration. Something might have been expected along the lines of a traditional Baskerville [1916] 2 KB 658; [1916-1917] All ER 38; 12 Cr App R 81 direction, referring to material confirming what the accomplice/witness has said, and tending to prove that the offence was committed and that the particular accused then under consideration was party to it. What came, however, is what appears in the remaining emphasised passages. Their effect appears to be that any material confirming any of the evidence of the accomplice, and thus tending to enhance his credit, is corroboration. There is no reference to the necessity that it tend to support the accomplice/witness in his contention that the offence was committed and that the particular accused was party to it.

[3.7985] Joint trial where one accused gives evidence When one accused gives evidence at a joint trial the direction depends on the circumstances of each case. The matter was widely discussed in Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258. At trial Ms Hay gave evidence. Mr Webb did not. Each of the judgments of Brennan, Deane and Toohey JJ dealt with this issue to the following effect: When an accused gives evidence implicating another accused, the question whether an accomplice warning should be given and, if so, in what terms, cannot be answered without reference to the unique circumstances of the case. If in such a case the judge considers it necessary or appropriate to give a warning to protect the co-accused, it must be done in a way which makes clear that the warning relates only to the use of the evidence as against the co-accused and does not lead the jury to believe that the warning attaches to the accused’s evidence in his own case.

[3.7990] Corroboration warning in a joint trial In R v Haddad (1988) 33 A Crim R 400 (NSW CCA) Roden J said (at 411): There being several accused in this trial, the necessity for a proper explanation of the concept of corroboration was of increased importance. In the case of each of the accused, evidence, or other material, could only operate as corroboration of the testimony of the accomplice, if it tended to confirm that that particular accused had been party to the offence. What was capable of being corroboration as against one, might not be capable of being corroboration against another. That is not a simple concept for juries; it is certainly not one which they could be expected to appreciate intuitively.

[3.7995] Ten aspects of corroboration 1. Corroboration is evidence which confirms, strengthens or supports other evidence. 2. A potentially unreliable witness needs corroboration. 3. Unreliable evidence which is not corroborated may cause a miscarriage of justice.

434

ROSS ON CRIME

[3.8000]

4. Witnesses generally needing corroboration are prison informers, persons of bad character, accomplices and sometimes accessories. 5. Witnesses with a purpose of their own to serve also need corroboration. 6. The categories of witnesses needing corroboration are not closed. 7. Some legislation has removed the need for corroboration of complainants in sexual cases and for others. 8. The corroboration must show that the crime was committed and connect the accused with it. It must not be intractably neutral. Suspect witnesses should not support each other. 9. Corroborative evidence may be direct or circumstantial. 10. The judge must direct the jury on why a potentially unreliable witness needs support. The judge must refer to the dangers of accepting the evidence of such a witness with or without such support.

[3.8000] Other references See also Accessory (Legislation) at [1.1200]; Accomplice (Definition) at [1.1600]; Confession (Definition) at [3.5300]; Flight at [6.1300]; Implement of crime at [9.600]; Indemnity at [9.1600]; Lie detector at [12.1500]; Murray direction at [13.4100]; and Witness at [23.700] – [23.800].

CORRUPTION Legislation ................................................................................................................................... Definition ..................................................................................................................................... Corruptly ..................................................................................................................................... Corruption offence ......................................................................................................................

[3.8200] [3.8205] [3.8210] [3.8215]

[3.8200] Legislation Cth: Crimes Act 1914 s 37; Qld: Criminal Code ss 120–123; Corruption and Crime Commission Act 2003; WA: Criminal Code ss 83, 88, 97, 121–123; Tas: Criminal Code ss 83, 86, 90, 91 and 98; NT: Criminal Code ss 77, 83, 93–95; NSW: Crimes Act 1900 ss 249B, 249D, 249E; Vic: Crimes Act 1958 s 176; SA: Criminal Law Consolidation Act 1935 s 249; ACT: Criminal Code 2002 s 707; NZ: Crimes Act 1961 ss 100–105.

[3.8205] Definition Chew v The Queen (1992) 173 CLR 626; 107 ALR 171; 60 A Crim R 82 was commented on in Willers v The Queen (1995) 125 FLR 221; 81 A Crim R 219 (WA CCA) by Malcolm CJ (at 227; 225):

[3.8400]

COSTS

435

It follows from Chew that, in order for a public officer to “act corruptly”, it is not necessary that he or she act in such a way in the performance of his or her duty which was likely to or tended to corrupt, another. It is the exercise of authority for an improper purpose, such as a purpose activated by malice, that constitutes the corrupt action and takes the acting outside of the scope of the officer’s authority. This does not necessarily involve doing anything which was likely to or tended to corrupt, another. The submission that so long as the officer acted within the scope of his authority, he could not be said to be acting corruptly, even though he gained a benefit for himself or caused a detriment to another must be rejected. The abuse of the lawful authority to achieve an improper purpose is the very thing which takes the relevant act or conduct outside the scope of the lawful authority. It also follows that it is not necessary for the Crown to prove that a benefit was in fact obtained or a detriment was in fact caused to another: cf Chew, above.

[3.8210] “Corruptly” In R v Dillon & Riach [1982] VR 434 Brooking J ruled (at 436): In my view, an agent does act corruptly if he receives a benefit in the belief that the giver intends that it shall influence him to show favour in relation to the principal’s affairs. If he accepts a benefit which be believes is being given to him because the donor hopes for an act of favouritism in return, even though he does not intend to perform that act, he is, by the mere act of receiving the benefit with his belief as to the intention with which it is given, knowingly encouraging the donor in an act of bribery or attempted bribery, knowingly profiting from his position of agent by reason of his supposed ability and willingness, in return for some reward, to show favouritism in his principal’s affairs and knowingly putting himself in a position of temptation as regards the impartial discharge of his duties in consequence of the acceptance of a benefit.

Approved: R v Swift (1999) 105 A Crim R 279 at 283 [16] (Qld CA); R v Gallagher (1986) VR 219; 16 A Crim R 215 at 227–231, 222–227; (CCA); R v Jamieson [1980] VR 879; (1987) 34 A Crim R 308 at 883, 312 (CCA).

[3.8215] “Corruption offence” In DPP (Cth) v Pirone (1997) 68 SASR 106; 139 FLR 68; 143 ALR 369 (FC) the appellant had pleaded guilty to imposing on the Commonwealth. The appellant was responsible for the petty cash in the Australian Federal Police and had made false claims and reimbursed himself for them. For the purposes of forfeiture of superannuation under the Australian Federal Police Act the court held that he had committed a “corruption offence”. See also Blackmail and extortion at [2.2700]; and Bribery at [2.3500].

COSTS Summary offences ....................................................................................................................... Committal .................................................................................................................................... Indictable offences ...................................................................................................................... Prosecution appeal to Court of Criminal Appeal on point of law ............................................ Prosecution appeal to the High Court ........................................................................................ Court may note undertaking or agreement ................................................................................ Successful appeal: no retrial ....................................................................................................... Defence costs .............................................................................................................................. Calderbank offer .......................................................................................................................... Costs in a failed private prosecution ..........................................................................................

[3.8400] Summary offences In summary cases orders for costs can be made for or against the prosecution.

[3.8400] [3.8405] [3.8410] [3.8415] [3.8420] [3.8425] [3.8430] [3.8435] [3.8440] [3.8445]

436

ROSS ON CRIME

[3.8405]

Legislation Qld: Justices Act 1886 ss 158 and 158A; WA: Offıcial Prosecutions (Accused’s Costs) Act 1973 s 5; Criminal Procedure Act 2004 s 67; Tas: Justices Act 1959 s 77A; NT: Justices Act ss 77–79; NSW: Criminal Procedure Act 1986 ss 211–218; Vic: Criminal Procedure Act 2009 s 401; SA: Summary Procedure Act 1921 s 189; ACT: Magistrates Court Act 1930 s 244; NZ: Costs in Criminal Cases Act 1967.

Cases In Mastrangelo v Reynolds (2001) 25 WAR 133; 127 A Crim R 469 (FC) a defendant pleaded guilty before a magistrate on a charge of dangerous driving causing grievous harm. He was sentenced. He appealed. The judge reduced the sentence and awarded costs to the “successful defendant”. The prosecution appealed to the Full Court. Held: The judge should not have awarded costs for the defendant was not “successful”. But because this appeal was of importance he was given his costs of appeal. It would not have amounted to much. Mr Mastrangelo appeared in person. Other cases Curnow v Police (2008) 100 SASR 290; 182 A Crim R 558 (Debelle J); Latoudis v Casey (1990) 170 CLR 534; 97 ALR 45; 50 A Crim R 287; Klahn v Talbot (1995) 83 A Crim R 535 (WA FC).

[3.8405] Committal Legislation determines the entitlement to costs of a defendant who is discharged at committal. The jurisdictions where such costs may be awarded are: Vic: Criminal Procedure Act 2009 s 401; SA: Summary Procedure Act 1921 s 189; R v S (1997) 94 A Crim R 445 (SA CCA); ACT: Magistrates Court Act 1930 ss 97 and 244; R v Scott (1992) 109 ACTR 20; 106 FLR 462; 59 A Crim R 362 (Higgins J). There is no power to award committal costs in WA: Mancini v Ward (1997) 93 A Crim R 456 (WA, Scott J). Nor in NSW: DPP v Howard (2005) 64 NSWLR 139 (Hoeben J).

[3.8410] Indictable offences In indictable cases after trial or plea, no order for costs can be made for or against the prosecution. In R v Wright, Danci and Currie (1994) 77 A Crim R 67 (Vic FC) Brooking J said (at 68): It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the

[3.8420]

COSTS

437

Crown neither pays nor receives costs: see, for example, Jackson [1962] WAR 130 at 131 per Virtue J; Kimmons; Ex parte A-G [1980] Qd R 524 at 524-525 per Douglas J; J (No 2) (1983) 80 FLR 106 at 109 per Gallop J; Latoudis v Casey (1990) 170 CLR 534 at 538; 50 A Crim R 287 at 288 per Mason CJ and at 567; 310 per McHugh J; and compare Goia (1988) 19 FCR 212 at 213-216; 35 A Crim R 473 at 474-477 per Forster nd Pincus JJ. But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs.

Approved: R v S (1997) 94 A Crim R 445 at 446 (SA CCA). In R v Fisher (2003) 56 NSWLR 625; 138 A Crim R 318 (CCA) the trial had aborted twice and the accused and his family were totally without funds. The court stayed the further trial until the prosecution paid the reasonable funds. The court made no reference to any power to award costs. But a court is given the power to award costs under costs in the Costs in Criminal Cases Act 1967 (NSW) s 2. However in R v Scott (1992) 109 ACTR 20; 106 FLR 462; 59 A Crim R 362 Higgins J ordered the prosecution to pay the costs of committal and preparation for trial where the case was inherently weak and the prosecution presented no indictment. In Beatson v R [2015] NSWCCA 17 , the court ordered costs against the Crown pursuant to the Costs in Criminal Cases Act 1967 (NSW), s 2, where the court concluded that it was not reasonable for proceedings to have been instituted. Other cases ABC v DPP (2007) 175 A Crim R 35 (Qld, White J); R v Mosely (1992) 28 NSWLR 735; 65 A Crim R 452 (CCA).

[3.8415] Prosecution appeal to Court of Criminal Appeal on point of law The prosecution may be ordered to pay the respondent’s costs where the prosecution appeal to the Court of Criminal Appeal is on a question of law: R v Bibaoui [1997] 2 VR 600; (1996) 139 ALR 746; 87 A Crim R 527 at 608, 754, 536 (CA). In R v JS (2007) 175 A Crim R 108 (NSW CCA, Full Bench) the prosecution appealed against a directed acquittal and lost. The respondent then sought costs. The Full Bench dismissed the costs application: R v JS (No 2) (2007) 179 A Crim R 10 (NSW CCA), holding that its power was not at large and the respondent had failed to point to an express or implied statutory power. (The court did not order costs on the failed costs application).

[3.8420] Prosecution appeal to the High Court In Yanner v Eaton [No 2] (1999) 74 ALJR 376; 168 ALR 1 the court said in a joint judgment (at [4]): [I]f there is discretion to make such an order, that discretion would ordinarily be exercised in favour of a successful defendant.

And later (at [5]): [T]he appellant having succeeded in this court and having been entitled to succeed in the Court of Appeal, the costs in this court and in the Court of Appeal should follow the event. The facts that the case may be seen as important, or as raising issues having effects beyond the immediate parties, lead to no different conclusion.

When the prosecution applies for special leave to appeal to the High Court (eg, from a successful appeal by an accused to the CCA) a condition of the leave to appeal is usually an undertaking to pay the respondent’s costs in any event. Those costs will include the special leave application itself.

438

ROSS ON CRIME

[3.8425]

In Martin v Osborne (1936) 55 CLR 367 Dixon J said (at 378): Pursuant to his undertaking given on obtaining special leave to appeal, the appellant must pay the respondent’s costs of the appeal to this court.

Otherwise, costs will be awarded against the prosecution where appropriate: R v Watt (1988) 165 CLR 474; 82 ALR 221; 35 A Crim R 371 per Wilson, Dawson, Toohey and Gaudron JJ (at 482; 227; 376). In special circumstances, costs can be awarded against an intervener: O’Toole v Charles David Pty Ltd (1991) 171 CLR 232; 99 ALR 415 in a joint judgment (at 310–311; 416).

[3.8425] Court may note undertaking or agreement In R v Mosely (1992) 28 NSWLR 735; 65 A Crim R 452 Gleeson CJ said (at 740; 456): [A] court may note an agreement between parties, or accept an undertaking.

[3.8430] Successful appeal: no retrial In Victoria under the (then) Appeal Costs Act 1964 s 18(1) a person was entitled to costs where there had been conviction and successful appeal and the DPP had then entered a nolle prosequi: Murphy v Obst [1996] 2 VR 613; (1996) 86 A Crim R 51 (CA). The current legislation is Appeal Costs Act 1998 s 14.

[3.8435] Defence costs Some legislation allows the defence to claim costs.

Legislation Qld: Appeal Costs Fund Act 1973; WA: Offıcial Prosecutions (Accused’s Costs) Act 1973; Tas: Appeal Costs Fund Act 1968; Criminal Code s 414; NSW: Costs in Criminal Cases Act 1967; Criminal Procedure Act 1986 s 116 (committal) and s 213 (trial); Vic: Appeal Costs Act 1998; Criminal Procedure Act 2009 s 401; SA: Appeal Costs Fund Act 1979; ACT: Magistrates Court Act 1930 s 97 and 244.

Cases A certificate under the Costs in Criminal Cases Act 1967 (NSW) can be granted only for State offences. There is no power to grant a certificate when the charge is laid under Commonwealth law: Solomons v District Court (NSW) (2002) 211 CLR 119; 192 ALR 217; 134 A Crim R 352. Further, that Act applies only to trials. A discharge at committal does not entitle the defence to costs: DPP v Howard (2005) 64 NSWLR 139 (Hoeben J). In Chahal v DPP (2008) 185 A Crim R 580 (NSW CA) held: no error on the face of the record, thus no certiorari and no costs to an acquitted accused. Under the Victorian Acts, costs can only be awarded for State offences: DPP (Cth) v Hunter and Milner (2003) 7 VR 119 (CA). A defendant who is charged with more than one offence and is found not guilty of one, is entitled to the costs of the offence on which there was the not guilty finding: Saleeba v Beck (1991) 54 A Crim R 114 (SA, Olsson J).

[3.8440]

COSTS

439

In Western Australia a successful appellant from a magistrate’s sentence will not be entitled to costs: Mastrangelo v Reynolds (2001) 25 WAR 133; 127 A Crim R 469 (FC).

[3.8440] Calderbank offer Generally Criminal cases often involve costs between parties. An example is where a person convicted of a crime by a magistrate appeals successfully to the District Court. The judge makes an order for costs of the appeal and of the magistrates court hearing with liberty to apply. There is a dispute about the amount. One party say the defendant/appellant makes an offer in writing which is rejected. If the judge’s costs order is more than the offer, the defendant/appellant obtains the costs of the application to fix costs. The term Calderbank offer comes from Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586; [1975] 3 All ER 333 (CA). That was an English divorce case. The term has been applied extensively since then: De Sales v Ingrilli (No 2) (2002) 212 CLR 338 at 409; Smallacombe v Lockyer Investment Co Pty Ltd (1993) 42 FCR 97; 114 ALR 568 (FCA, Spender J); Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 at 440–441 [17] – [20] (CA). In common law jurisdictions the letter is headed “without prejudice save as to costs”. Under the Uniform Evidence Acts s 131(2)(h) the letter and conversations are admissible on the costs application: Jones v Bradley (No 2) [2003] NSWCA 258 (16 September 2003); Nobrega v The Trustee of the Roman Catholic Church [1999] NSWCA 133 (21 May 1999).

Possible letter Government solicitor

Dear .......... , Without prejudice save as to costs

(name of Appellant) You recall that on the hearing of the above appeal, his Honour allowed the appeal and set aside the magistrate’s conviction. His Honour further ordered that within three months the Respondent pay counsels fees for the magistrates court and for this appeal. His Honour reserved liberty to apply. We have already sent you the detailed accounts including counsels fees (of $...). You have not replied. We have had the matter listed for hearing on (date). Our counsel is prepared to accept ($8...) in full settlement of his claim for fees and expenses. If your client does not agree to pay what counsel is prepared to accept (inclusive of GST) by 2.00 pm today, we will tender this letter to his Honour on the issue of costs from that time on including the hearing.

440

ROSS ON CRIME

[3.8445]

We refer to the principles set out in Calderbank v Calderbank [1976] Fam 93; [1975] 3 WLR 586; [1975] 3 All ER 333. See also De Sales v Ingrilli (No 2) (2002) 212 CLR 338 at 409 and the cases referred to in footnote (294). Yours sincerely,

[3.8445] Costs in a failed private prosecution Jim Byrnes brought private criminal defamation proceedings against the writer of a newspaper and the newspaper itself. The proceedings were struck out and costs awarded against Mr Byrnes: Byrnes v Barry (2003) 151 ACTR 1 (Higgins CJ). The appeal failed: Byrnes v Barry (2004) 150 A Crim R 471 (ACT CA).

COUNSEL Qualities ...................................................................................................................................... Duty to accept a brief ................................................................................................................. Must keep up with the law ......................................................................................................... Duty to comport with dignity and courtesy ............................................................................... Not to be learned tricksters ........................................................................................................ Prosecutor and defence counsel not to be lovers ...................................................................... Court etiquette ............................................................................................................................. Robes ........................................................................................................................................... Written instructions on change of plea ...................................................................................... Should the accused stay silent in court ...................................................................................... Duty on plea in mitigation ......................................................................................................... Telling the judge a sentencing figure of imprisonment ............................................................. Returning a brief ......................................................................................................................... Not to be counsel and witness ................................................................................................... What a judge should do when counsel withdraws from a case ................................................ Instructions withdrawn ................................................................................................................ Accused absconds ....................................................................................................................... More than one client ................................................................................................................... Acting against a former client .................................................................................................... Counsel should not appear as a party in his own case ............................................................. Duty on plea of guilty ................................................................................................................ Submissions on sentence – fine appropriate .............................................................................. Counsel must take adequate instructions ................................................................................... Counsel not to express an opinion in court ............................................................................... Counsel must not bicker ............................................................................................................. Personal remarks about other counsel are out of place ............................................................ Making admissions of fact ......................................................................................................... Admissions of law cannot be made ........................................................................................... Where the defence disclaims an issue ....................................................................................... Objections .................................................................................................................................... Judge’s directions to jury ........................................................................................................... Duty of defence and prosecution in taking exceptions ............................................................. Not asking for redirection suggests no miscarriage of justice .................................................. Counsel must not protract the case unduly ................................................................................ Duty to note magistrate’s reasons .............................................................................................. Not to run a bad point ................................................................................................................ Temperance in language ............................................................................................................. Interference by court ................................................................................................................... Lack of objectivity ...................................................................................................................... Negligence or incompetence ...................................................................................................... Misconduct in court .................................................................................................................... Earlier improprieties ................................................................................................................... At committal ............................................................................................................................... On trial: Questions as evidence ..................................................................................................

[3.8600] [3.8605] [3.8610] [3.8615] [3.8620] [3.8625] [3.8630] [3.8635] [3.8640] [3.8645] [3.8650] [3.8655] [3.8660] [3.8665] [3.8670] [3.8675] [3.8680] [3.8685] [3.8690] [3.8695] [3.8700] [3.8705] [3.8710] [3.8715] [3.8720] [3.8725] [3.8730] [3.8735] [3.8740] [3.8745] [3.8750] [3.8755] [3.8760] [3.8765] [3.8770] [3.8775] [3.8780] [3.8785] [3.8790] [3.8795] [3.8800] [3.8805] [3.8810] [3.8815]

[3.8605]

COUNSEL

Seeking to have a complaint withdrawn .................................................................................... Counsel will not be liable in negligence for what occurs in court .......................................... (Final) Address ............................................................................................................................ Submissions on the evidence ...................................................................................................... Function and duty in applying for redirection ........................................................................... Crimes by counsel ...................................................................................................................... Shabbily-dressed but with beauty of expression ....................................................................... A Parthian shot ............................................................................................................................

441

[3.8820] [3.8825] [3.8830] [3.8835] [3.8840] [3.8845] [3.8850] [3.8855]

[3.8600] Qualities Dixon CJ said at his swearing in as Chief Justice of the High Court (at (1952) 85 CLR xi): The activities at the Bar are greater than those on the Bench, and the responsibilities are no less. The Bar has traditionally been, over the centuries, one of the four original learned professions. It occupied that position in tradition because it formed part of the use and the service of the Crown in the administration of justice. But because it is the duty of the barrister to stand between the subject and the Crown, and between the rich and the poor, the powerful and the weak, it is necessary that, while the Bar occupies an essential part in the administration of justice, the barrister should be completely independent and work entirely as an individual, drawing on his own resources of learning, ability and intelligence, and owing allegiance to none.

In Lewis v Judge Ogden (1984) 153 CLR 682; 53 ALR 53 the court said in a joint judgment (at 689; 57): It has been recognised on many occasions and by judges of great distinction that the responsibility of counsel in representing his client may require him to plead his client’s case fearlessly and with vigour and determination.

In Walsh v Johnson (1925) 37 CLR 36 Isaacs J said (at 72): I am reminded of Lord Selborne’s observation in Green v Lord Penzance (1881) 6 App Cas 657 at p 663, that the zeal and ingenuity of counsel are never misplaced when exerted for the defence of personal liberty.

In Re Davis (1947) 75 CLR 409 Dixon J said (at 420): The duties and privileges of advocacy are such that, for their proper exercise and effective performance, counsel must command the personal confidence, not only of lay and professional clients, but of other members of the Bar and of judges.

In Giannarelli v Wraith (1988) 165 CLR 543; 35 A Crim R 1; 81 ALR 417 Mason CJ said (at 556; 421; 4): Counsel must not mislead the court, cast unjustifiable aspersions on any party or witness or withhold documents and authorities which detract from his client’s case. And, if he notes an irregularity in the conduct of a criminal trial, he must take the point so that it can be remedied, instead of keeping the point up his sleeve and using it as a ground for appeal.

[3.8605] Duty to accept a brief Generally In Rondel v Worsley [1969] 1 AC 191; [1967] 3 WLR 1666; [1967] 3 All ER 993 (HL) Lord Reid said (at 227; 1673–1674; 998): It has long been recognised that no counsel is entitled to refuse to act in a sphere in which he practises, and on being tendered a proper fee, for any person however unpopular or even offensive he or his opinions may be, and it is essential that that duty must continue: justice cannot be done and certainly cannot be seen to be done otherwise. If counsel is bound to act for such a person, no reasonable man could think the less of any counsel because of his association with such a client, but, if counsel could pick and choose, his reputation might suffer if he chose to act for such a client, and the client might have great difficulty in obtaining proper legal assistance.

442

ROSS ON CRIME

[3.8610]

Every counsel, has a duty to his client fearlessly to raise every issue, advance every argument, and ask every question, however distasteful, which he thinks will help his client’s case.

The cab-rank rule The metaphor cab-rank refers to counsel being like a taxi which must accept anyone prepared to pay the fare. Counsel who is free has a duty to accept any brief offered at a reasonable fee in the field in which counsel ordinarily practices. R v Ulcay [2008] 1 All ER 547 at [39] – [41] (CA). D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 at [17], [27], [142], [377]. Giannarelli v Wraith (1988) 165 CLR 543; 35 A Crim R 1; 81 ALR 417 per Brennan J at 580. Harley v McDonald [1999] 3 NZLR 545 at 567 [62] (CA). Arthur JS Hall & Co v Simons [2002] 1 AC 615; [2000] 3 WLR 543; [2000] 3 All ER 673 (HL) per Lord Hoffmann (at 686; 558; 687–688). Geveran v Skjevesland [2003] 1 WLR 912; [2003] 1 All ER 1 (CA) at 916; 5–6 [10] – [11].

[3.8610] Must keep up with the law In Copeland v Smith [2000] 1 WLR 1371; [2000] 1 All ER 457 (CA) Brooke LJ said (at 1375; 462): [I]t is quite essential for advocates who hold themselves out as competent to practise in a particular field to bring and keep themselves up to date with recent authority in their field. By “recent authority” I am not necessarily referring to authority which is only to be found in specialist reports, but authority which has been reported in the general law reports.

[3.8615] Duty to comport with dignity and courtesy In R v Lars (1994) 73 A Crim R 91 (NSW CCA) the court said (at 130–131): Counsel however have, no less than does a judge, an obligation to comport themselves with dignity and courtesy. They have, and should when occasion demands be never afraid to exercise, the right to object and firmly to press an objection in the event of perceived unfairness or unjudicial behaviour. They have nevertheless an obligation to contribute to the seemly progress of the trial, and the right to object strongly and forcefully is never to be understood as conferring or embracing a right to be rude or offensive. The remedy against judicial conduct which threatens the fairness of a trial is found in the appeal process. Unseemly, offensive or insulting remarks from counsel to the bench have no place in our courts. This is not out of any sense of delicacy in respect of the feelings of judges. Judges are by their nature, or should be, of strong mind and impervious to insult or abuse, at least publicly, however unwarranted criticism may inflict private hurt. Our concern in emphasising the obligation of counsel to behave in a seemly fashion is a concern for the dignity of the trial process, which dignity is an important aspect of the adversarial process by which in our community justice is sought to be achieved. A trial which degenerates into a slanging match does nothing to inspire confidence generally in the justice system and puts at risk the achievement of justice in the instant case.

In Re Prior; Ex parte Bellanto (1962) 63 SR (NSW) 190 (FC) the court said in a joint judgment (at 204): The code of honour of the Bar is at once its most cherished possession and the most valued safeguard of the public. In the discharge of his office the advocate has a duty to his client, a duty to his opponent, a duty to the court, a duty to the State, and a duty to himself. To maintain a perfect poise amidst these various and sometimes conflicting claims is no easy feat. Transgression of the honourable obligations which these duties impose upon the advocate is not like making a mere

[3.8630]

COUNSEL

443

mistake in business. It involves infringement of his moral duty. It is a matter of conscience. And his offence cannot be hid, for all his work is done in the presence of his brethren and the public. His conduct is always exposed to the searching if salutary scrutiny of many critics.

[3.8620] Not to be learned tricksters In Swinburne v David Syme & Co [1909] VLR 550 (FC) Madden CJ said (at 570–571): The members of the Bar will always be competitors, but I do not doubt that in future the Bar will be as punctilious as ever it has been in matters of this kind. The reason that the Bar exists as a Bar, and that they stand as they do stand, a privileged class, with certain rights and obligations, is that are believed to be, and expected to be, honourable men, and if instead of being honourable men anxious for honest, clean justice in the Court, they should cease to be that, and become merely learned tricksters, the Bar would not be in existence for very long. They would be of no benefit or service to the public, but their learning would be dangerous, and their tricks would be a never-failing source of trouble to the community.

[3.8625] Prosecutor and defence counsel not to be lovers In R v Szabo (2001) 2 Qd R 214; 112 A Crim R 215 (CA) the appellant had been convicted and sentenced. He found out that his counsel and the prosecutor had an on-off sexual affair. His grounds of appeal included incompetent advice not to give evidence and a tainting of his conviction by his counsel’s non-disclosure of the affair. Appeal allowed. Conviction quashed.

[3.8630] Court etiquette PW Young J wrote of “Court Etiquette” (2002) 76 ALJ 303–308. His Honour made the following points:

Courtesy to an opponent Rule 1: Always inform your opponent in due time if you are going to be late. Rule 2: Do not sledge. Rule 3: There is no duty to help fools. Rule 4: Respect the procedure. Rule 5: Do not mention more than two matters at a time. Rule 6: Respect seniority. Rule 7: Be courteous in correspondence.

Courtesy to the court administration and witnesses Rule 8: Estimate time accurately. Rule 9: Always advise the court as soon as a case is settled. Rule 10: Lists of authorities are to be provided in due time.

Conduct in court Rule 11: Put your name on the list. Rule 12: Observe the Advocacy Rules strictly. Rule 13: Observe the etiquette of the bar table.

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ROSS ON CRIME

[3.8630]

Rule 14: The bar table is not to be left unoccupied whilst the judge is still sitting. Rule 15: Do not leave the court whilst a judge is delivering an oral judgment. Rule 16: Speak from the bar table. Rule 17: Call persons producing documents early. Rule 18: Endeavour to minimise the time witnesses wait around. Rule 19: Do not abuse the witness. Rule 20: Observe the mechanical evidence rules. Rule 21: Do not confer with witnesses under cross-examination without consent of the opponent. Rule 22: Silence must be kept whilst a witness is being sworn. Rule 23: Respect subpoenaed documents. Rule 24: When tendering subpoenaed documents announce to whom they should be returned by the court. Rule 25: Generally speaking, do not ask for advice. Rule 26: Respect the court reporter. Rule 27: Speak for the transcript. Rule 28: Do not speak while someone else is speaking. Rule 29: Do not talk loudly inside the courtroom. Rule 30: Avoid approaching witnesses in the witness box to ask questions. Rule 31: No mobile phones in court. Rule 32: See your opponent early. Rule 33: Write out the orders. Rule 34: Do not talk about the case or the judge in a lift. Rule 35: Do not read your newspaper in court.

Courtesy to the judge Rule 36: Be on time. Rule 37: Do not patronise the judge. Rule 38: Do not disparage the judge. Rule 39: Help the judge. Rule 40: Give the judge something to hang his or her hat on. Rule 41: Keep your distance from the judge. Rule 42: Do not communicate with the judge out of court. Rule 43: Always stand when addressing the judge. Rule 44: Be gracious in defeat.

Generally The above can be summarised as follows:

[3.8635]

COUNSEL

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• Always be considerate of other people involved in the case on both sides of the bar table. • Be on time. • Be properly prepared for the case. • Know the rules of procedure for each court and observe them. • Do not use the court processes for collateral purposes. In “Court Decorum” (1997) 71 LIJ No 6, p 18 Judge Gordon Lewis made the following points (not in order): • No talk or movement when the oath is being administered. • Bow to the judge. • Any asides to be whispered. A note is better. • Maintain a respectful posture. • No private tape recording without leave. • Address judges as “Your Honour”, magistrates as “Your Worship”. • No chewing. • Stand when speaking or when the judge is speaking to you. If your opponent makes an objection, sit. • Humour, yes; jokes, no. • No provocative documents within sight of a jury. • Dress properly. • Mobile phones to be switched off. In Magistrates’ Court (Vic) v Murphy [1997] 2 VR 186; 89 A Crim 403 (CA) Callaway JA said (at 216; 435–436) of contempt in the face of the court that it serves: [T]o protect the administration of justice, on which depend the rights and freedoms of all the Queen’s subjects and others living under the Queen’s peace. The concept is not an esoteric notion understood only by lawyers. It was expressed in admirably simple language almost 50 years ago by Alan Paton. In Cry, The Beloved Country, (1951) he wrote at pp 136-137: You may not smoke in this Court, you may not whisper or speak or laugh. You must dress decently, and if you are a man, you may not wear your hat unless such is your religion. This is in honour of the Judge and in honour of the King whose officer he is; and in honour of the Law behind the Judge, and in honour of the People behind the Law. When the Judge enters you will stand, and you will not sit till he is seated. When the Judge leaves you will stand, and you will not move till he has left you. This is in honour of the Judge, and of the things behind the Judge … Even if there were one there greater than the Judge he would stand, for behind the Judge are things greater than any man.

[3.8635] Robes Sir Gregory Gowans, The Victorian Bar (The Law Book Co Ltd, Sydney, 1979) said (at pp 78–79): Counsel’s robes are the badge of an honourable office and should be worn as such. They consist of a black waistcoat or bar jacket, white bands, a gown, and a wig. The following statement for the guidance of the profession in England has received the concurrence of the Lord Chief Justice of England:

446

ROSS ON CRIME

[3.8640]

The dress of barristers appearing in court should be unobtrusive and compatible with the wearing of robes. Suits and dresses should be of a dark colour. Dresses or blouses should be long sleeved and high to the neck. Men should wear waistcoats. Shirts and blouses should be predominantly white or of other unemphatic appearance. Collars should be white and shoes black. Wigs should as far as possible cover the hair, which should be drawn back from the face and forehead and if long enough should be put up. No conspicuous jewellery or ornaments should be worn. Informal or sporting attire is not proper dress for counsel appearing in court or before a judge in chambers.

The gown: Utter barristers wear a stiff or bombazine gown and the puckered material between the shoulders of the gown is all that is left of the purse into which, in early days, the successful litigant dropped his …. pecuniary tribute … for services rendered. (Notes and Queries, 11 March 1893 p 124).

See also Windeyer, “Of Robes and Gowns and Other Things” (1974) 48 ALJ 394–403. The wearing of robes may be a protection against the Skuse factor: Skuse v Commonwealth (1985) 73 FLR 441 (NT, Nader J) and on appeal (1985) 62 ALR 108 (FCA).

[3.8640] Written instructions on change of plea In R v Allison (2003) 138 A Crim R 378 (Qld CA) Jerrard JA giving the leading judgment said (at 385 [26]): [E]xperience shows that some people charged with serious offences (and particularly offences of incest or indecently dealing with children) wish both to maintain to their lawyers that they are actually innocent, and also to plead guilty. In those circumstances it is imperative that these lawyers ensure that no plea be taken until (written) instructions have been obtained in which the person charged describes a wish or willingness to plead guilty, and an understanding that by so doing, he or she will be admitting guilt. If those instructions are obtained and adhered to a lawyer may properly appear on the plea.

[3.8645] Should the accused stay silent in court See Silence (Counsel’s practice on accused’s silence in court) at [19.3995].

[3.8650] Duty on plea in mitigation In R v Anzac (1987) 50 NTR 6; 88 FLR 465; 31 A Crim R 310 (CCA) the court said in a joint judgment (at 15; 474; 320): What is required of defence counsel, pursuant to his duty to obtain for his client the least punitive measure properly available, must also be borne in mind. In his plea in mitigation, defence counsel must identify the relevant sentencing factors, including those which may weigh in the prisoner’s favour, advance argument, tender any appropriate relevant evidence and identify and canvass all the sentencing alternatives which are reasonably open.

In R v Bernath [1997] 1 VR 271 (CA) Callaway JA with whom the others agreed said (at 276): Counsel is rightly permitted on a plea to speak on his or her instructions, but there is no inflexible rule that the judge is bound to accept every assertion not formally put in issue by the Crown.

See also R Fox and A Frieberg, Sentencing, State and Federal Law in Victoria (2nd ed, 1999, Oxford University Press, South Melbourne).

[3.8670]

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[3.8655] Telling the judge a sentencing figure is inappropriate In R v MacNeil-Brown (2008) 20 VR 677; 188 A Crim R 403; [2008] VSCA 190 the Victorian Court of Appeal (by majority – Maxwell P, Vincent and Redlich JA) held that it is appropriate for a prosecutor to make submissions at sentencing regarding that sentencing range that applied to the case. The High Court overturned this approach in Barbaro v The Queen (2014) 88 ALJR 372; [2014] HCA 2. The Court held that the prosecution is not permitted to make submissions to a sentencing judge regarding the appropriate sentence nor even an appropriate range.

[3.8660] Returning a brief Counsel must not return or hand on a brief without a substantial reason: R v Sutton JJ; Ex parte DPP [1992] 2 All ER 129; 95 Cr App R 180 (QBD). Where counsel cannot appear the brief must be returned to allow adequate time for other representation: R v Shaw [1992] 1 NZLR 652 at 654 (CA).

[3.8665] Not to be counsel and witness In R v Secretary of State for India; Ex parte Ezekiel [1941] 2 KB 169; [1941] 2 All ER 546 (KBD) Humphreys J said (at 175; 556): A barrister may be briefed as a counsel in a case or he may be a witness in a case. He should not act as both counsel and witness in the same case.

In Chapman v Rogers [1984] 1 Qd R 542 (FC) Campbell CJ said (at 544): The evidence given by the solicitor was material to the defence case. “Counsel or solicitors who are appearing as advocates in a case should not also act in the same case as witnesses, but if they tender evidence their evidence is not inadmissible”: Halsbury’s Laws of England (4th ed), Vol 17, para 233. See also the remarks of Humphreys J in R v Secretary of State for India; Ex parte Ezekiel [1941] 2 KB 169; 2 All ER 546 at 175 (KB), 556; Stones v Byron (1846) 4 Dow & Low 393 per Patteson J at 395.

See also Grey v City of Marion (2006) 159 A Crim R 357 at 363 [29] (SA, Debelle J). Begg v Attorney-General [2006] 2 NZLR 129 (Miller J). Lyons v The Queen (1992) 64 A Crim R 101 at 103–104 (Tas CCA). D A Ipp, “Lawyer’s Duties to the Court” (1998) 114 LQR 63 at 92–93. NZ: Evidence Act 2006 s 72(2).

[3.8670] What a judge should do when counsel withdraws from a case In Dunkley v The Queen [1995] 1 AC 419; [1995] 1 All ER 279 (PC) the Board advised (at 428; 286): [W]here counsel appearing for a defendant on a capital charge seeks leave to withdraw during the course of the trial the trial judge should do all he can to persuade him to remain. If the proposed withdrawal arises out of an altercation with the trial judge he should consider whether it would be appropriate to adjourn the trial for a cooling-off period. The trial judge should only permit withdrawal if he is satisfied that the defendant will not suffer significant prejudice thereby. If notwithstanding his efforts counsel withdraws the judge must consider whether, and if so for how long, the trial should be adjourned to enable the defendant to try and obtain alternative representation.

448

ROSS ON CRIME

[3.8675]

Approved and applied: Mitchell v The Queen [1999] 1 WLR 1679 (PC). Other cases R v Gilfillan (2003) 139 A Crim R 460 (NSW CCA); Bernard v Trinidad and Tobago [2007] 2 Cr App R 284 (PC).

[3.8675] Instructions withdrawn When a person accused of a crime sacks his counsel (and instructing solicitor) there is little a judge can do other than provide time for reconsideration: R v IAS (2004) 89 SASR 159; 146 A Crim R 416 (CCA). See also Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 (FCA); R v Osborne (2002) 133 A Crim R 519 (Vic CA). In R v Greer (1992) 62 A Crim R 442 (NSW CCA) successive defence counsel announced before the jury that instructions had been withdrawn. Carruthers J said (at 461): Indeed, if the jury had not been made aware of the circumstances in which the appellant came to be unrepresented, they may have assumed, to the prejudice of the appellant, that he was unrepresented because his case was so lacking in merit that he was denied legal aid. In my view, it was both proper and appropriate that counsel inform the Court in the presence of the jury that their instructions had been withdrawn. I would reject this ground of appeal.

Counsel must then withdraw. Kirby P said (at 452): His Honour did not require Mr Hanley to remain and make an application to withdraw again. He was excused. In fact, he had no right to remain. Once their services are dispensed with counsel must withdraw: see D Pannick, Advocates (1992), p 19f; see also Re A Graham Greenlee 658 P 2d 1 (1983) (SC Wash).

In R v Gilfillan (2003) 139 A Crim R 460 (NSW CCA) the accused was charged with serious sexual offences on a former partner. Halfway through the trial the prosecution served notices of additional witnesses. The accused found that the solicitor had acted for one of them in a previous criminal case. He sacked his solicitor, whereupon his counsel withdrew. The court held that the sacking was proper. Smart AJ, with whom the others agreed, said that the trial judge should have adjourned the case. His Honour said (at 473 [84]): I am not persuaded that it was unreasonable for the applicant to terminate Mr. Crozier’s instructions. Waiver of privilege did not overcome the problems which had arisen. Indeed, in the circumstances of the present case that was not the real point. The applicant was entitled to be represented by a solicitor who had no conflicting allegiances and nothing in mind but the protection and advancement of the applicant’s interests. The applicant had and was entitled to have little confidence in what had been advanced. The fact that potential witnesses were prepared to waived privilege so readily would have tended to increase his lack of confidence as to the full protection in of interests.

[3.8680] Accused absconds If an accused absconds during the trial, the judge will usually order the case to proceed. Whether defence counsel stays in the case is a personal decision. In R v Shaw [1980] 1 WLR 1526; [1980] 2 All ER 433; 70 Cr App R 313 (CCA) Kilner Brown J, giving the judgment of the court, said (at 1529; 435; 316): [T]he sudden disappearance of the accused, for whatever reason, gives rise to very real problems concerning the professional duty of both solicitor and counsel. Each case will differ and the decision will in the end usually be a personal one.

[3.8695]

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[3.8685] More than one client Conflict of interest In Mills v The Queen [1995] 1 WLR 511; [1995] 3 All ER 865 (PC) the Board advised (at 523; 877): It is axiomatic that counsel engaged on behalf of more than one defendant in a criminal case must consider whether there is a conflict of interest between them which might inhibit his proper and effective defence of one of them. Counsel must consider the matter in the light of the prosecution case and the instructions he receives from the defendants. If there is, or might be, a conflict of interest, he must promptly advise separate representation. Any doubt must be resolved in favour of separate representation. Those duties of counsel arise as soon as he is engaged. It is, however, a continuous duty. If at any time before the trial a conflict arises, counsel must advise separate representation of the defendants. If contrary to all expectations such a position arises at trial, counsel may be obliged to seek a discharge of the jury in order to enable separate representation at a new trial. These propositions flow from the right of an accused to have his defence properly and effectively placed before the jury. It is an integral part of his constitutional right to a fair trial. But their Lordships add one qualification. The province of the law is practical affairs. The question is whether there is, or might be, a real risk of a conflict of interest inhibiting counsel in the discharge of his duties on behalf of one or more defendants. In a practical world wholly theoretical or fanciful risks can be disregarded.

In R v Clarke (1996) 91 A Crim R 46 (SA CCA) Cox J said that the Mills principle applied to a solicitor acting for more than one accused. He said (at 72): All this was said of the barrister in a criminal trial in Jamaica but the policy and practical considerations will apply to a solicitor in South Australia as well. He may act for multiple defendants in a case such as the present but he takes a risk in doing so. The degree of risk will depend on the circumstances. He will have to be constantly alert to it and be ready to act promptly and appropriately in the event of any conflict arising.

See also Barron v Ward Keller Pty Ltd (2006) 17 NTLR 195 (Southwood J).

[3.8690] Acting against a former client Counsel should be careful not to act against a former client in a criminal matter. Yet in one case at least that appearance seemed justified. Ismail-Zai v Western Australia (2007) 34 WAR 379 (CA) the prosecutor was Mr Gary Huggins. He was a private practitioner briefed by the Director of Public Prosecutions. The appellant was charged and convicted of aggravated robbery with violence. The case was heard in the District Court. Mr Huggins had previously represented the appellant in two magistrate’s court cases some years before. Steytler P gave the leading judgment. His Honour examined principle and authority. He concluded that the earlier matters were unrelated. The fact that Mr Huggins had cross-examined his former client counted for nothing. Appeal dismissed. In R v Gilfillan (2003) 139 A Crim R 460 (NSW CCA) the accused sacked his solicitor on finding that he had acted for a proposed prosecution witness. The court held that it was not unreasonable to give the solicitor the sack. In Grimwade v Meagher [1995] 1 VR 446 (Mandie J) his Honour restained counsel from acting because of the risk of lack of objectivity. See also Legal Professional Privilege (Solicitor restrained from acting for another) at [12.765].

[3.8695] Counsel should not appear as a party in his own case In Stones v Byron (1846) 4 Dow and L 393 at 395 Patteson J said:

450

ROSS ON CRIME

[3.8700]

Here the attorney for the plaintiff makes a speech and conducts the case as his advocate, and examines the witnesses, and addresses the jury in reply to the defendant’s counsel, and afterwards calls himself as a witness. I must say that I do not think that such a course of proceeding is proper, or consistent with the due administration of justice. It seems to me, therefore, that his evidence ought not to have been received, and, having been received, that there ought to be a new trial.

The report of the case contains a footnote as follows: The learned counsel stated that the only instance in which he had been able to find that such a proceeding had been permitted, was in the trial of Sir Thomas More, in the time of Henry the Eighth, when the then Solicitor General, who was conducting the prosecution against that eminent man, “to his eternal disgrace,” to use the words of Lord Campbell, in relating the fact in his Lives of Chancellors, vol 1, p 574, “and to the eternal disgrace of the Court who permitted such an outrage on decency, left the bar and presented himself as a witness for the Crown”.

See also Ferry v Bonnin (1889) 23 SALR 66 (Boucaut J).

[3.8700] Duty on plea of guilty In Putti v Simpson (1975) 6 ALR 47 (NT) Muirhead J said (at 50–51): But it is absolutely vital that counsel remember their function and obligations, not the least of which is to ensure they are adequately instructed before appearing for clients – especially when the liberty of those clients may be in jeopardy – and that the clients are properly advised. These matters are basic. Half baked instructions which may come from unreliable sources are, as a rule, just not good enough. The practice of appearing armed only with hurriedly gained instructions, especially where language or cultural differences jeopardize understanding, may result in substantial injustice to individuals. In the present case the appellant was represented by counsel who, in my view, was not in a position to make a single submission of relevance. He hinted at his difficulties and suggested, rather than requested, an adjournment. If counsel requires an adjournment for a given purpose surely it is his responsibility to make a firm application in unambiguous terms. If the grounds have merit such an application will seldom be refused. If counsel cannot understand his client’s instructions he should not proceed until he does. If counsel wishes the court to obtain a pre-sentence report, he should be in a position, especially in remoter areas, to suggest a source to which the court should direct its request. I also hope and assume that those persons to whom legal aid is offered fully understand that they are not obliged to accept representation directly available through the legal aid agency and that, like any other Australian, they have the opportunity at least to seek advice from solicitors or other counsel of their choice. If these matters are not borne in mind, legal aid schemes will prove of dubious value to individuals. Counsel, especially in busy courts of summary jurisdiction, cannot expect the courts to exercise a role entirely protective of their clients, and the sooner the court’s responsibilities to the community in general are understood the better. In short, leaving aside the situation of juveniles, it is the responsibility of solicitors and counsel, not of the court, to ensure that all necessary submissions and evidence in mitigation of penalty are placed before the court. As in most areas of the law this requires thorough preparation.

[3.8705] Submissions on sentence – fine appropriate In Lloyd v The Queen (1991) 53 A Crim R 198 (WA CCA) Seaman J said (at 211): If an applicant contends that a fine is the appropriate disposition, it is necessary for his counsel to inform the court fully of his client’s capacity to pay an appropriate fine: R v Wright (1990) 2 WAR 171.

In R v Cheshire (1994) 76 A Crim R 261 (Vic CCA) the court said in a joint judgment (at 269–270): Counsel was well aware of the real possibility that a fine would be imposed. Realistically, if imposed, it was likely to be substantial. If it were considered that the amount of it would cause

[3.8720]

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financial embarrassment by creating a substantial or unacceptable financial burden it was for counsel to alert the judge to such a circumstance. Plainly, we think, it is for the offender to put material before the court relating to financial circumstances: see Higgins (1988) 10 Cr App R (S) 144. If he fails to do so he can hardly expect then to be entitled to a reassessment of his penalty, by an appellate court.

[3.8710] Counsel must take adequate instructions Disregarding a client’s instructions to lead alibi evidence may cause a miscarriage of justice: R v McLoughlin [1985] 1 NZLR 106 (CA); R v Swan (1987) 27 A Crim R 289 (Qd CCA); R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085; 85 Cr App R 294. In R v Swan (1987) 27 A Crim R 289 (Qld CCA) Carter J said in dissent (at 312): The use of the term “instructions” in relation to counsel can be misleading. In no sense is he subservient either to the client or to the solicitor who has briefed him nor is he a subordinate. In the conduct of his client’s cause in court he is vested with a discretion, he is entirely independent and may act in accordance with his own judgment in the conduct of the cause for his client. In Rondel v Worsley [1969] 1 AC 191 at 241, Lord Morris of Borth-y-Gest cited a passage from the Right Honourable John Inglis in Batchelor v Pattison and Mackersy (1876) 3 R (Ct of Sess) 914 which includes the following: His [counsel’s] legal right is to conduct the case without any regard to the wishes of his client so long as his mandate is unrecalled, and what he does bona fide according to his own judgment will bind his client, and will not expose him to any action for what he has done even if the client’s interests are thereby prejudiced. From what appears to be the most recent case on the subject, Irwin [1987] 1 WLR 902, it is clear that the fundamental principle remains.

[3.8715] Counsel not to express an opinion in court Counsel must not express a personal opinion in court. See also Addresses at [1.2200].

[3.8720] Counsel must not bicker In Beevis v Dawson [1957] 1 QB 195; [1956] 3 All ER 837 (CA), a libel case, Singleton LJ said (at 201; 839): Continuous bickering becomes a burden for everyone in court – for judge and for jury – and it is almost impossible for justice to be done if that goes on. It is not surprising if, in such circumstances, a judge gets tired or if the jury get tired; sometimes it leads to confusion. That may well have happened in this case. I hope it will be a long time before this kind of thing happens again.

In Hufer v Kinross Milk Transport Pty Ltd (unreported, Vic, 30 April 1970) Newton J said, after the verdict: It is true that tempers may understandably fray at times in witness actions. It is also true that robust advocacy is not to be discouraged. But in my view the present case was conducted in a bickering atmosphere from start to finish, and there was much unnecessary rudeness between counsel which is not robust advocacy. Bickering in Court between counsel is always to be condemned. It tends greatly to distract the jury and the Judge from the issues which have to be decided, as was pointed out by the Court of Appeal

452

ROSS ON CRIME

[3.8725]

in Beevis v Dawson [1957] 1 QB 195. If I may, I commend that decision to counsel engaged in this case, and particularly the remarks of Singleton LJ at p 201. Bickering between counsel also significantly detracts from the dignity of the Court. I certainly do not suggest that counsel were at any time directly or deliberately discourteous to myself. But bickering between counsel is itself a discourtesy to the Court. In the course of the present case I gave some consideration to whether I should discharge the jury in the course of the trial if bickering between counsel reached a degree which might prejudice a fair trial. If I had followed that course I should have ordered each side to bear its own costs of the abortive trial, and I should also have ordered that no date be fixed for a re-trial for a period of at least six months. See Taylor v Edwards (1967) 85 Weekly Notes (Part 1) NSW 386, [1967] 1 NSW R 689. There are also other methods of dealing with counsel who bicker, which it is unnecessary to specify. I make these remarks for the purpose of making clear that the bickering between counsel in this trial has by no means escaped my attention, and that I strongly disapprove of it. I also make these remarks for the purpose of discouraging such behaviour in the future. I think that the members of the jury may well have obtained a very unfavourable picture and, as I firmly believe, a false picture, of how counsel and indeed Queen’s Counsel – are accustomed to conduct litigation in this Court. It was for this reason that I asked the members of the jury to remain in Court for the purpose of hearing these remarks.

Approved: R v Keech (unreported, Vic CCA, 5 October 1989).

[3.8725] Personal remarks about other counsel are out of place In Hugo v The Queen (2000) 113 A Crim R 484 (WA CCA) Sheller AJ, delivering the leading judgment, said (at 510 [79]): The ad hominem personal remarks found in these quotations and elsewhere during the taking of evidence and during the addresses are entirely out of place in a trial. They demean the trial process and, if they are intended to influence the jury in the decision-making process, they are improper. They illustrate an attitude by those conducting the trial more concerned with point scoring than ensuring that the applicants had a fair trial and that the trial judge had all the assistance to which he was entitled.

[3.8730] Making admissions of fact In R v Balchin (1974) 9 SASR 64 (CCA) the court said in a joint judgment (at 67): [I]t could well constitute a breach of professional duty to an accused person if his counsel without specific authority to do so, should make any admission which could be detrimental to the interests of the accused, or which otherwise might have the effect of depriving him of a fair trial.

In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 Lusher J said (at 702; 409): [I]n a criminal trial an admission, and a waiver is in the nature of an admission, can only be made by an accused on the advice of counsel, sensibly and usually in writing, which is difficult to obtain or give in the run of a vigorous cross-examination. Lastly, an accused cannot be required to make an admission or even to consider one.

See also Admission at [4.5300].

[3.8735] Admissions of law cannot be made There is no such thing as counsel making an admission of law. The law cannot be made or develop in that way. Making sure that the law is correct is the responsibility of judges. In Pemble v The Queen (1971) 124 CLR 107 Menzies J said (at 133):

[3.8750]

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Even less can counsel concede a matter of law to the disadvantage of the accused. The law is always for the judge as counsel for the defence rightly told the jury.

In R v Stokes and Difford (1990) 51 A Crim R 25 (NSW CCA) Hunt J said (at 32): Counsel cannot concede a matter of law to the disadvantage of the accused: Pemble (1971) 124 CLR 107 at 133; Galambos (1980) 2 A Crim R 388 at 395, 396-397.

In Gerhardy v Brown (1985) 159 CLR 70; 57 ALR 472 Brennan J said (at 141–142; 526): The validity and scope of a law cannot be made to depend on the course of private litigation. The legislative will is not surrendered into the hands of the litigants.

Roberts v Bass (2002) 212 CLR 1 was a defamation case. One point concerned concessions by the parties on the application of the Constitution. Kirby J said (at 54 [143]): Subject to law, parties can agree between themselves as they like. But if they invoke the courts of this country they cannot expect the courts to go along unquestioningly with their erroneous understandings of the law.

[3.8740] Where the defence disclaims an issue It will sometimes happen that the defence will disclaim an issue open on the evidence. That disclaimer does not relieve the judge of the duty to direct the jury on that issue. R v Galambos (1980) 2 A Crim R 388 (NSW CCA) at 397 (intoxication). R v Koutsouridis (1982) 7 A Crim R 237 (Vic CCA); R v Thorpe [1999] 1 VR 326; 102 A Crim R 278 (CA) (provocation). See also Judge at [10.900].

[3.8745] Objections Objection to evidence must be made as soon as practicable after the reason for objection emerges. In R v Rogers (1983) 9 A Crim R 209 (Qld FC) Thomas J said (at 213–214): Sometimes the ground for attack will not emerge until well after the objectionable evidence has been received. It will suffice if objection is then taken. Normally it will be convenient to defer full argument on the question until all evidence capable of affecting that particular ruling is in. The above remarks do not apply to objections to the receivability of evidence, which includes objections to evidence said to have been illegally obtained and which the court is therefore asked to exclude from consideration.

[3.8750] Judge’s directions to jury Counsel must help the judge. In R v Gulliford (2004) 148 A Crim R 558 (NSW CCA) Wood CJ at CL said (at 593 [182]): Trial counsel, both those representing the prosecution and the defence, have a positive obligation to assist trial judges in the task of summing up a case to a jury. Unless they attend carefully to the summing up, and correct any factual or legal errors which emerge, they have failed in their task.

Counsel must ask for re-directions on a judge’s defective charge to a jury. In R v Smart [1983] 1 VR 265 (CCA) the court said in a joint judgment (at 297): Counsel would have been well advised to accept the Judge’s invitation to voice criticisms of the charge as it went along. If exceptions had been taken during the charge, counsel should not have been in a position at the end of it to say that it could not be corrected. But further than that the

454

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[3.8755]

course taken resulted in criticisms of the charge being argued on appeal which had not been ventilated at the trial. Speaking generally, an applicant for leave to appeal against conviction is not allowed to rely in this Court on a criticism of the judge’s charge which has not been taken by way of exception at the trial and if we had not determined that the present application should succeed on other grounds, we should have had to give very careful consideration to the question whether, in the light of the course taken at the trial, the applicant should have been allowed to rely upon a number of the grounds of criticism of the charge. Although it may be true to say that it would be useless to debate criticisms of the charge if it is said that no redirection could redress the errors alleged, such a submission does not relieve counsel of the responsibility of indicating, albeit briefly, what criticisms he makes, nor the trial judge yeof the responsibility of deciding whether some redirection of the jury is necessary or desirable in the light of counsel’s criticisms. It is for the judge and not for counsel to decide whether the jury should be redirected but it is for counsel to submit to the judge any criticisms that he has of the charge that is given. Counsel cannot save up his criticisms for the Full Court.

[3.8755] Duty of defence and prosecution in taking exceptions In R v Caine (1990) 48 A Crim R 464 (Vic CCA) the court said in a joint judgment (at 475): The duties of counsel in a criminal trial during and after the charge are responsible and important. Counsel for the defence are under a duty to their client to ensure that by taking exceptions to deficiencies in the charge they ensure as far as they can that their client’s case is put to the jury in a way which is as favourable to the client’s interest as the rules of law including the common law right to a fair trial, require. We consider that counsel for the prosecution has a duty to take exceptions with a view to correcting errors in the charge including errors which make a conviction more likely but depart from the law. It is not in the public interest that any citizen receive other than a fair trial according to law. It is not in the public interest that a trial be followed by use of the resources of the judicial system in the expensive necessity of an appeal and a new trial.

[3.8760] Not asking for redirection suggests no miscarriage of justice In Chamberlain v The Queen (1983) 72 FLR 1; 46 ALR 493 (FCA) Bowen CJ and Forster J said (at 12; 501): The failure of counsel at the trial to seek a redirection, some amendment or addition to the summing up and his failure to object to the admissibility of evidence, cannot lead inevitably to the dismissal of an appeal based on alleged imperfections in the summing up or the wrongful admission of evidence. It is nevertheless a relevant factor to be considered. If experienced senior counsel at the trial is not moved to seek redirection or to object to the admissibility of evidence, his failure to do so carries a strong suggestion that in the atmosphere of the trial at which he was present, no miscarriage of justice occurred or was likely to occur because of matters later complained of.

If the accused was deprived of a chance of acquittal the fact that no complaint was made at trial is irrelevant: KBT v The Queen (1997) 191 CLR 417; 99 A Crim R 18; 149 ALR 693 at 423, 697, 22. Other cases R v TSR (2002) 5 VR 627; 133 A Crim R 54 at 645; 72 [56] (CA); R v P (2001) 53 NSWLR 664 (CA).

[3.8765] Counsel must not protract the case unduly In Richardson v The Queen (1974) 131 CLR 116; 3 ALR 115 the court said in a joint judgment (at 121; 121): The trial took no less than eleven days. Its length was out of all proportion to the nature and difficulty of the issues which should properly have arisen for determination. It needs to be stated

[3.8780]

COUNSEL

455

clearly and explicitly that counsel have a responsibility to the court not to use public time in the pursuit of submissions which are really unarguable.

In R v Wilson & Grimwade (1995) 1 VR 163; 73 A Crim R 190 (CCA) the court said (at 180; 209): Let it be understood henceforth, without qualification, that part of the responsibility of all counsel in any trial, criminal or civil, is to co-operate with the court and each other so far as is necessary to ensure that the system of justice is not betrayed: if the present adversary system of litigation is to survive, it demands no less. The system, and the community it is designed to serve, cannot easily support the prodigal conduct which was responsible for exacting 22 months’ devotion to this re-trial, a disproportionate part of which was due to the conduct of counsel for Wilson. This is not to deny that counsel are entitled and obliged to deploy such skill and discretion as the proper protection of their clients’ interests demands. Whether the cost of legal representation be privately or publicly borne, counsel are to understand that they are exercising a privilege as well as fulfilling a duty in appearing in a court of law; and neither privilege nor duty will survive the system of justice of which the court is part. We derive no satisfaction from making these observations save, by doing so, to give public notice of the peril to which, by this re-trial, the system of justice was put.

In R v Higgins (1994) 71 A Crim R 429 (Vic CCA) Brooking J said: While fully discharging the duty owed to the client, counsel for an accused person must exercise, in the interests of justice as a whole, a proper discretion so as not to prolong cases unnecessarily, whether by the taking of manifestly untenable points, by unnecessarily lengthy cross-examination or submissions, or in any other way.

In DPP v Sarosi (2000) 110 A Crim R 376 (Vic, Harper J), a one day case was run for 27 days. See Harper J’s scathing comments at 378.

[3.8770] Duty to note magistrate’s reasons In Kunakool v Boys (1987) 14 FCR 489; 77 ALR 435; 26 A Crim R 1 (FCA, French J), his Honour said (at 495; 442; 7): No copy of the reasons for the decision of Mr Simpson SM were available. They were evidently delivered orally and were neither tape recorded nor typed. This fact lends emphasis to the duty owed by counsel to client to take as complete a note of oral reasons for decision as is possible. In that way error, if error there is, may be more readily identified.

[3.8775] Not to run a bad point In Ashmore v Corp of Lloyd’s [1992] 1 WLR 446; [1992] 2 All ER 486 (HL), Lord Templeman said (at 453; 493): It is the duty of counsel to assist the judge by simplification and concentration and not to advance a multitude of ingenious arguments in the hope that out of ten bad points the judge will be capable of fashioning a winner.

This was a civil case, but this proposition was approved in R v Higgins (1994) 71 A Crim R 429 at 442 (Vic CCA). In Venezia v Marshall (2001) 120 A Crim R 596 (Vic CA) Brooking JA delivering the judgment of the court said (at 597[4]): Lawyers are not to be discouraged from raising points that can, on any fair view, be described as arguable. But they owe a duty to the court not to raise and argue manifestly hopeless points.

[3.8780] Temperance in language Counsel must be temperate in language, otherwise a miscarriage of justice may occur: R v Hay and Lindsay [1968] Qd R 459 (CCA);

456

ROSS ON CRIME

[3.8785]

R v Roulston [1976] 2 NZLR 644 (CA); McCullough v The Queen [1982] Tas R 43; 6 A Crim R 274 (CCA); Strange v Hybinett [1988] VR 418; (1987) 5 MVR 389 (FC); Vella v The Queen (1990) 2 WAR 537; 47 A Crim R 119 (CCA); Duncan v The Queen (1991) 5 WAR 249; 56 A Crim R 460 (CCA); Lyons v The Queen (1992) 64 A Crim R 101 (Tas CCA) at 103–104; R v McIntyre (2000) 111 A Crim R 211 (NSW CCA).

[3.8785] Interference by court In an exceptional case the court may interfere to protect an accused man from his own counsel and from the result of bad management or misconduct of his case at the trial: R v Sarek [1982] VR 97l (CCA) at 982 per McInerney J; Re Knowles [1984] VR 751 at 767ff (FC).

[3.8790] Lack of objectivity Counsel can be restrained from acting where a lack of objectivity is demonstrated: Grimwade v Meagher [1995] 1 VR 446 (Mandie J). In R v MG (2007) 69 NSWLR 20 (CCA) the accused had been convicted and had successfully appealed. The prosecutor made a number of public statements about the case. The court ordered a stay of the retrial until another prosecutor was appointed. The same principle applies to solicitors. In T v L (2000) 27 Fam LR 40; 160 FLR 63 (Chisholm J) a father wanted to set aside an order restraining him from bringing proceedings about his children without leave of the court. The “special counsel” for the child representative solicitors was a former Family Court judge Eric Rainsford Baker. In 1993 Baker J had made adverse findings against the husband. The present solicitors were a small family firm. Chisholm J examined the law on perceived bias. He restrained the solicitors from further representation of the children.

[3.8795] Negligence or incompetence Basis for discharge of jury In R v Punnett [2006] 1 NZLR 133 (HC, Laurenson J) his Honour discharged the jury in a joint trial because of the incompetence of one of the defence counsel.

Negligence or incompetence of counsel as a ground of appeal In Nudd v The Queen (2006) 80 ALJR 614; 225 ALR 161; 162 A Crim R 301 Gummow and Hayne JJ said (at 623; 170; 312 [25]): [A]n appeal against conviction must ultimately focus upon the trial and conviction of the accused person not the professional standards of the accused’s counsel. Was what happened, or did not happen, at trial a miscarriage of justice?

and later (at 623; 171; 313 [27]): [T]he inquiry about miscarriage must be an objective inquiry, not an examination of what trial counsel for an accused did or did not know or think about. The critical question is what did or did not happen at trial, not why that came about.

In TKWJ v The Queen (2002) 212 CLR 124; 133 A Crim R 574; 193 ALR 7 McHugh J said (at 149-150; 27; 595 [79]):

[3.8795]

COUNSEL

457

Accordingly, “it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence”: R v Birks (1990) 19 NSWLR 677 at 685. The appellant must show that the failing or error of counsel was a material irregularity and that there is a significant possibility that it affected the outcome of the trial.

In R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA) Gleeson CJ said (at 685; 392): The relevant principles may be summarised as follows: 1. A Court of Criminal Appeal has a power and a duty to intervene in the case of a miscarriage of justice, but what amounts to a miscarriage of justice is something that has to be considered in the light of the way in which the system of criminal justice operates. 2. As a general rule an accused person is bound by the way the trial is conducted by counsel, regardless of whether that was in accordance with the wishes of the client, and it is not a ground for setting aside a conviction that decisions made by counsel were made without, or contrary to, instructions, or involve errors of judgment or even negligence. 3. However, there may arise cases where something has occurred in the running of a trial, perhaps as the result of “flagrant incompetence” of counsel, or perhaps from some other cause, which will be recognised as involving, or causing, a miscarriage of justice. It is impossible, and undesirable, to attempt to define such cases with precision. When they arise they will attract appellate intervention.

In Bernard v State of Trinidad and Tobago [2007] 2 Cr App R 284 (PC) counsel of three months experience defended a complex murder case. The Board advised that the appeal be allowed on this ground and others. Other cases Re Knowles [1984] VR 751 (FC); R v Scott (1996) 131 FLR 137; 137 ALR 347 at 151ff, 361ff (SA CCA); R v Al (1990) 49 A Crim R 258 (Vic CCA): accused’s failure to give evidence; R v Clinton [1993] 1 WLR 1181; [1993] 2 All ER 998; (1993) 97 Cr App R 320: flagrantly incompetent advocacy in not calling the client; R v Lars (1994) 73 A Crim R 91 at 129–142 (NSW CCA); Sankar vTrinidad and Tobago [1995] 1 WLR 194; [1995] 1 All ER 236 (PC); R v Miletic [1997] 1 VR 593 (CA): inviting the prosecution to tender the record of interview; R v Paddon [1999] 2 Qd R 387 (CA): counsel’s conduct must be “flagrantly incompetent”; R v Hunter (1999) 105 A Crim R 223 (NSW CCA): no single test exists of general application; R v McIntyre (2000) 111 A Crim R 211 (NSW CCA): appalling conduct caused miscarriage; R v PS (2001) 123 A Crim R 165 (NSW CCA): flagrant incompetence; R v Carter [2003] 2 Qd R 402; (2002) 134 A Crim R 499 (Qld CA): flagrant incompetence; Boodram v DPP [2002] 1 Cr App R 12 at [39] – [40] (PC); R v Allison (2003) 138 A Crim R 378 (Qld CA); Tucker v Police (2004) 89 SASR 135; 146 A Crim R 441 at [33]ff (White J); Seymour v The Queen (2006) 162 A Crim R 576 (NSW CCA);

458

ROSS ON CRIME

[3.8800]

Macartney v The Queen (2006) 31 WAR 416 (CA); R v Sungsuwan [2006] 1 NZLR 730 (SC). Chime v The Queen [2014] NSWCCA 304. Colley v Western Australia [2015] WASCA 79. R v Sawyers [2015] QCA 255.

Tactical decisions by counsel not amounting to miscarriage of justice will not give rise to a ground of appeal In TKWJ v The Queen (2002) 212 CLR 124; 133 A Crim R 574; 193 ALR 7 Gleeson CJ said (at 130–131; 12; 579 [16]): For a trial to be fair, it is not necessary that every tactical decision of counsel be carefully considered, or wise. And it is not the role of a Court of Criminal Appeal to investigate such decisions in order to decide whether they were made after the fullest possible examination of all material considerations. Many decisions as to the conduct of a trial are made almost instinctively, and on the basis of experience and impression rather than analysis of every possible alternative. That does not make them wrong or imprudent, or expose them to judicial scrutiny. Even if they are later regretted, that does not make the client a victim of unfairness. It is the responsibility of counsel to make tactical decisions, and assess risks.

See also R v Pointon [1985] 1 NZLR 109 (CA); R v Ensor [1989] 1 WLR 497; [1989] 2 All ER 586; 89 Cr App R 139; Cameron v The Queen (1990) 2 WAR 1; 47 A Crim R 397 (CCA); R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 (CCA); Miladinovic v The Queen (1993) 47 FCR 190; 124 ALR 698 (FCA); R v GDP [2000] 1 SCR 520; 184 DLR (4th) 577; 143 CCC (3d) 289 (SCC); Ali v The Queen (2005) 79 ALJR 662; 214 ALR 1.

[3.8800] Misconduct in court Examples of a fine for misconduct in court are: Re Prior; Ex parte Bellanto (1962) 63 SR (NSW) 190 (FC); R v Schumiatcher (1967) 64 DLR (2d) 24 (Saskatchewan QB, Davis J). Patrick Costello was found to have been guilty of professional misconduct but no action was taken: Prothonotary of the Supreme Court v Costello [1984] 3 NSWLR 201 (FC). Peter Clyne however was struck off: Clyne v NSW Bar Association (1960) 104 CLR 186; 34 ALJR 87.

[3.8805] Earlier improprieties A qualified person will be refused admission if earlier improprieties show an unfitness for practice: Victorian Lawyers RPA Ltd v X (2001) 3 VR 601 (Harper J). An admitted person will be struck off for improprieties not disclosed before admission: Re Davis (1947) 75 CLR 409; Barristers’ Board v Darveniza (2000) 112 A Crim R 438 (Qld CA); Prothonotary, Supreme Court (NSW) v Darveniza (2001) 121 A Crim R 542 (NSW CA).

[3.8815]

COUNSEL

459

[3.8810] At committal Where counsel at committal puts to a witness what is said to be the true facts, and those facts are different from those put at trial, the prosecution has been permitted to lead evidence of counsel’s questions. The purpose of the evidence is to show change of instructions where that is relevant. R v Sadaraka [1981] 2 NSWLR 459; (1981) 4 A Crim R 221 (CCA); R v Wright (1990) 49 A Crim R 462 (NSW CCA) at 466-467; Petty and Maiden v The Queen (1991) 173 CLR 95; 55 A Crim R 322; 102 ALR 129. Note that the rule in Browne v Dunn (1893) 6 R 67 (see Browne v Dunn at [2.3900]) does not apply at a committal.

[3.8815] On trial: Questions as evidence Questions of counsel may be used as evidence of instructions. In R v Delgado-Guerra [2002] 2 Qd R 384; (2001) 120 A Crim R 434 (Qld CA) Thomas JA, with whom the other judges agreed, said (at 393–394; 443 [36]): The conduct of trial counsel on behalf of a client is conduct which a jury in that trial is entitled to take into account, even to the extent of inferring that certain instructions have been given leading to particular questions being asked. Whilst care must be exercised when drawing such inferences, and whilst further evidence may show that such an inference ought not to be drawn, as for example if there is reason to think that there may have been a misunderstanding or a absence of instructions, there is no logical reason why a barrister’s statement on behalf of an accused and made in the presence of the accused may not be used in that or any other criminal trial.

But the admissibility of questions in earlier proceedings must be relevant to the instant case. In R v Ali (No 2) (2005) 13 VR 257; 158 A Crim R 469 (CA) counsel at the first trial had suggested to three witnesses present at an assault that they had attacked the victim. They each denied it. At the second trial the same allegation was put directly to only one witness. Charles JA said (at [21]): [T]here is little doubt that in certain circumstances the way in which a party conducts its case, particularly by putting questions in cross-examination, may lead to implicit admissions on behalf of that party which may be taken into account at a trial.

Held: appeal allowed. The questions at the first trial had no probative value and were inadmissible. Other cases R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA); R v Robinson [1977] Qd SR 387 (CCA); R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 (CCA). Statements by counsel in earlier proceedings may bind the client: TPC v TNT (1983) 56 ALR 647 at 662–664 (FCA, Franki J). A cautionary tale of what not to do is Tuckiar v The King (1934) 52 CLR 335;[1934] HCA 49. The accused was convicted of the murder of a policeman. He was alleged to have confessed to other Aborigines. One confession alleged that policeman McColl had intercourse with the accused’s wife who speared him for that. During the trial counsel for the accused interviewed his client at the suggestion of the Judge to ascertain whether the accused agreed with evidence given by a witness for the Crown of

460

ROSS ON CRIME

[3.8820]

a confession alleged to have been made by the accused to the witness. After interviewing the accused, his counsel in open court said that he was in the worst predicament that he had encountered in all his legal career. The court castigated counsel (at 346): Why he should have conceived himself to have been in so great a predicament, it is not easy for those experienced in advocacy to understand. He had a plain duty, both to his client and to the court, to press such rational considerations as the evidence fairly gave rise to in favour of complete acquittal or conviction of manslaughter only.

Later (at 346–347): Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted. The subsequent action of the prisoner’s counsel in openly disclosing the privileged communication of his client and acknowledging the correctness of the more serious testimony against him is wholly indefensible. It was his paramount duty to respect the privilege attaching to the communication made to him as counsel, a duty the obligation of which was by no means weakened by the character of his, client, or the moment at which he chose to make the disclosure. No doubt he was actuated by a desire to remove any imputation on Constable McColl. But he was not entitled to divulge what he had learnt from the prisoner as his counsel. Our system of administering justice necessarily imposes upon those who practice advocacy duties which have no analogies, and the system cannot dispense with their strict observance.

The appeal was allowed and a verdict of acquittal entered. See also T Egan, Justice All Their Own (MUP 1996). Silence (Counsel’s practice on accused’s silence in court) at [19.3995].

[3.8820] Seeking to have a complaint withdrawn In Attorney-General (NT) v Legal Practitioner (1981) 10 NTR 7 (FC) the court said that it is not improper for a legal practitioner acting for an accused person to approach the person who has initiated the complaint to make representations on his instructions and ascertain whether that person wishes to persist in the prosecution of the complaint. Nor is it improper for the original complainant in a criminal matter to tell the police that as far as he is concerned any charge may be dropped. Nor is it improper for a solicitor to ask the complainant if he is prepared to tell the police of that attitude. (See especially p 22.)

[3.8825] Counsel will not be liable in negligence for what occurs in court In Australia counsel is not presently liable in negligence for what occurs in court: D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92; Giannarelli v Wraith (1988) 165 CLR 543; 35 A Crim R 1; 81 ALR 417; Yates Property Corp v Boland (1998) 83 FCR 84; 157 ALR 30 (FCA). There is no such immunity in New Zealand: Lai v Chamberlain [2007] 2 NZLR 7 (SC). Or in England: Arthur JS Hall & Co v Simons [2002] 1 AC 615; [2000] 3 WLR 543; [2000] 3 All ER 673 (HL). Or Canada: De Marco v Ungaro (1979) 95 DLR (3d) 385 (Krever J).

[3.8855]

COUNSEL

461

[3.8830] (Final) Address See also Addresses at [1.2200].

[3.8835] Submissions on the evidence In Druett v The Queen (1994) 123 FLR 249 (NT CCA) Priestley J said (at 307): [I]t is legitimate for an argument to be put to the jury, in final address, that the evidence before them is susceptible of a reasonable explanation other than that the accused committed the crime. This argument may be put whether or not the jury could conclude that the reasonable explanation was in fact the explanation. It is not necessary that the accused establish the explanation; what is necessary is that the explanation is, as a matter of reason, consistent with a version of the facts which it is open to the jury to find, upon the whole of the evidence: see Barca v The Queen (1975) 133 CLR 82 especially at 105.

[3.8840] Function and duty in applying for redirection In R v Zischke [1983] 1 Qd R 240 (CCA) the court said in a joint judgment (at 242–243): The function of a trial judge in making, and of counsel in responding to, an invitation for redirections is not to provide an opportunity for a general denigration of the integrity or the independence of the judge or his conduct of trial. Its precise purpose is to ensure, so far as is reasonably practicable, that particular errors of law or misstatements of evidence which have, or may be thought to have, occurred in the course of the summing-up can be considered and corrected forthwith (cf R v Campbell [1993] St R Qd 133, 137-138), so that possible miscarriages of justice, with consequent appeals and retrials, may in the interests both of the accused and the prosecution be intercepted. That purpose will be frustrated if submissions are not confined to specific defects in the summing-up. Even where a general complaint may be justified by what is believed to have been the persistent partiality of the trial judge, it will not often be capable of correction as part of the process of redirection. Judicial misconduct of that description can be redressed only by an appeal to this court.

[3.8845] Crimes by counsel Two counsel at least have been sent to prison for committing crimes arising from their acting for clients. Both were barristers of prominence. In DPP v Hurnam [2007] 1 WLR 1582 (PC) the respondent was a barrister in Mauritius. He was convicted of hindering police by helping a client to fabricate an alibi. Six months imprisonment. Bruce Anthony Hyman was a London barrister. He was acting for a mother in a child access case and sent a forged email to the father. He pleaded guilty to attempting to pervert the course of justice. On 19 September 2007 he was sentenced to 12 months imprisonment. He was released after serving two months.

[3.8850] Shabbily-dressed but with beauty of expression “The third class are gentlemanly but very shabbily-dressed men, who look as if they were thinking of something besides themselves. They are of all ages, and statures, and complexions: of feature of all degrees of ugliness in form and in beauty of expression. You cannot mistake them: there is a family likeness running through all of them. They are Barristers”: Edward W Cox, The Advocate, London, 1852, p 218.

[3.8855] A Parthian shot Q: Who said, in the High Court, “Indeed, the proceedings appear to me as no more than a lawyer’s jaunt at the public expense” and of whom was it said?

462

ROSS ON CRIME

[3.9000]

A: The words are from Menzies J in R v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 342. He seems to have been referring to FG Brennan QC (as he then was).

Writings J H Munkman, The Technique of Advocacy (Stevens & Sons Ltd, London 1951); A Dean, A Multitude of Counsellors (FW Cheshire, Melbourne, 1968); J Bennett, History of the New South Wales Bar (Law Book Co, Sydney, 1969); R Du Cann, The Art of the Advocate (Penguin Books, 1993); MD Kirby, “Ten Rules of Appellate Advocacy” (1995) 69 ALJ 964-976; David Ross QC, Advocacy (Cambridge University Press, 2005); David Ross QC, “Lawyers’ Misbehaviour in Court and out” (2006) 30 Crim LJ 170-180; M Blake, A Ashworth, “Some Ethical Issues in Prosecuting and Defending Criminal Cases” [1998] Crim LR 16-34; D A Ipp, “Lawyers’ Duties to the Court” (1998) 114 LQR 63-107; G Samuels, “No More Cabs on the Rank?” (1998) 3 Newc LR 1-12; D Mildren, “A Short History of the Bar in the Northern Territory” (2001) 21 Aust Bar Rev 81-104; Charles JA, “Immunity of the Advocate” (2003) 23 Aust Bar Rev 220-238.

COUNTERFEITING Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Possession .................................................................................................................................... Reasonable excuse ...................................................................................................................... Conspiracy to counterfeit ............................................................................................................ Sentence ...................................................................................................................................... Counterfeit currency ...................................................................................................................

[3.9000] [3.9005] [3.9010] [3.9015] [3.9020] [3.9025] [3.9030]

[3.9000] Meaning From Crimes (Currency) Act 1981 (Cth) s 3 “counterfeit” means any article not being genuine that resembles or is apparently intended to resemble or pass for genuine. In Pulinggam v The Queen (2006) 200 FLR 70; 162 A Crim R 78 (NSW CCA) the court held that credit cards were not counterfeit. James J, with whom the others agreed, interpreted the Commonwealth Acts and said (at 77; 86 [55]): The definition of “counterfeit” in the Macquarie Dictionary which might be relevant is the first definition given, namely “made to imitate and to pass for something else; not genuine”. The definition of “counterfeit” given in Butterworths Australian Criminal Law Dictionary at page 51 is “an imitation that is passed as the original item”.

[3.9005] Legislation Many Acts refer to counterfeiting. These are the main ones: Cth: Crimes (Currency) Act 1981 (currency and securities); Excise Act 1901 s 1171 (forging tobacco labels); WA: Casino Control Act 1984 s 31 (counterfeiting tokens);

[3.9030]

COUNTERFEITING

463

Tas: Criminal Code s 277 (part of definition of forge); NSW: Casino Control Act 1992 s 192 (counterfeiting chips); Vic: Evidence (Miscellaneous Provisions) Act 1958 s 142; Casino Control Act 1991 s 153B; SA: Optometrists Act 1920 s 35 (counterfeiting registration); ACT: Casino Control Act 1988 s 78; NZ: Crimes Act 1961 ss 261 and 266; Eng: Forgery and Counterfeiting Act 1981.

[3.9010] Possession See also Implement of crime at [9.600]. See also R v Maltman [1995] 1 Cr App R 239.

[3.9015] Reasonable excuse Reasonable excuse for preparation of counterfeit money or securities under Crimes (Currency) Act 1981 (Cth) s 11 puts the evidential onus on a defendant: Criminal Code Act 1995 (Cth) s 13.3(3).

[3.9020] Conspiracy to counterfeit A person can be charged with conspiracy to make and to use false documents. In R v Frugtniet (1999) 2 VR 297; 107 A Crim R 161 (CA) the conspiracy was to produce and negotiate counterfeit travellers cheques.

[3.9025] Sentence Bellas v The Queen (2006) 151 NTR 77; 160 A Crim R 287 (CCA); R v Institoris (2002) 129 A Crim R 458 (NSW CCA); R v Kokkinos (1998) 4 VR 574; 145 FLR 474; 101 A Crim R 227 (CA); R v O’Keefe (1993) 67 A Crim R 381 (Vic CCA); R v Dodge (1988) 34 A Crim R 325 (NSW CCA). R v Howard (1985) 82 Cr App R 262 (CA).

[3.9030] Counterfeit currency Making the forgery: R v Rohde (1985) 17 A Crim R 166 (Vic CCA); Possession only: R v O’Keefe (1993) 67 A Crim R 381 (Vic CCA). See also Forgery at [6.1700].

464

ROSS ON CRIME

[3.9200]

COURT Courtroom is a place of conflicts ............................................................................................... Court must be open to the public .............................................................................................. Proceedings in camera ................................................................................................................ Witness ........................................................................................................................................ Communications with the judge ................................................................................................. Security ........................................................................................................................................ Court’s power to supervise conduct of legal practitioners ........................................................ Writings .......................................................................................................................................

[3.9200] [3.9205] [3.9210] [3.9215] [3.9220] [3.9225] [3.9230] [3.9235]

[3.9200] Courtroom is a place of conflicts In Prothonotary of the Supreme Court v Costello [1984] 3 NSWLR 201 (FC) Priestley JA said (at 209): The courtroom is a place where conflicts of many kinds are intended to take place and, at the end of the process, to be decided. In the progress of the case towards decision it is part of rather than interference with the proper administration of justice that opposing views are expressed. It is inevitable that expressions of view sometimes become very forceful and, when met with opposition causes heat between the people putting the differing views forward. Heat leads to sharp words and sometimes rude exchanges. These things are regrettable and usually regretted by the participants. In the overwhelming number of cases it never occurs to anyone that these incidents constitute interference with the proper administration of justice. They are part of it.

Approved: Magistrates’ Court (Vic) v Murphy [1997] 2 VR 186; 89 A Crim R 403 (CA) per Charles JA at 204; 442.

[3.9205] Court must be open to the public Scott v Scott [1913] AC 417 at 441 was about a charge of contempt against a wife for distributing notes of her divorce case which had been held in camera. The finding of contempt was quashed because the case should have been heard in open court. In another matrimonial case, Russell v Russell (1976) 134 CLR 495 Gibbs J said (at 520): It is the ordinary rule of the Supreme Court, as of the other courts of the nation, that their proceedings shall be conducted “publicly and in open view” (Scott v Scott [1913] AC 417, at p 441). This rule has the virtue that the proceedings of every court are fully exposed to public and professional scrutiny and criticism, without which abuses may flourish undetected. Further, the public administration of justice tends to maintain confidence in the integrity and independence of the courts. The fact that courts of law are held openly and not in secret is an essential aspect of their character. It distinguishes their activities from those of administrative officials, for “publicity is the authentic hall-mark of judicial as distinct from administrative procedure” (McPherson v McPherson [1936] AC 177, at p 200).

In Teakle v Western Australia (2007) 33 WAR 188; 168 A Crim R 483 (CA) Buss JA said (at 205; 499 [62]): It is a fundamental feature of the Australian judicial system that proceedings be conducted by a court which is, and is seen to be, independent and impartial, and that those proceedings should, with strictly limited exceptions, be conducted in public: see Ebner v Offıcial Trustee in Bankruptcy (2000) 205 CLR 337 at [3]; R v Tait (1979) 46 FLR 386 at 402; Russell v Russell (1976) 134 CLR 495 at 520.

A judge must not see a witness alone in chambers: R v Dunne (1929) 21 Cr App R 176; Lau v The Queen (1991) 6 WAR 30; 58 A Crim R 390 (CCA). Committals are to be heard in public: Moularis v Nankervis [1985] VR 369 especially at 377 (Ormiston J).

[3.9225]

COURT

465

[3.9210] Proceedings in camera Proceedings in camera can be permitted when a public hearing will lead to injustice. In R v Chief Registrar of Friendly Societies; Ex parte New Cross Society [1984] QB 227; [1984] 2 All ER 27 (CA) Sir John Donaldson MR said (at 235; 31): It is only if, in wholly exceptional circumstances, the presence of the public or public knowledge of the proceedings is likely to defeat that paramount object that the courts are justified in proceeding in camera. These circumstances are incapable of definition. Each application for privacy must be considered on its merits, but the applicant must satisfy the court that nothing short of total privacy will enable justice to be done. It is not sufficient that a public hearing will create embarrassment for some or all of these concerned. It must be shown that a public hearing is likely to lead, directly or indirectly, to a denial of justice.

Followed: Lednar v Magistrates’ Court (2000) 117 A Crim R 396 (Vic, Gillard J) (at 437–438 [392]). In a terrorism case the court can use inherent powers to confine the hearing: R v Lodhi (2006) 65 NSWLR 573; 199 FLR 288 (CCA). See also Re Crook [1992] 2 All ER 687; 93 Cr App R 17.

[3.9215] Witness The prosecution sometimes wants to conceal the identity of a witness. The following cases address that issue: R v Savvas (1989) 43 A Crim R 331 (NSW, Hunt J); R v Judge of District Courts; Ex parte McNamara (1990) 48 A Crim R 328 (Qld FC); Q v Seymour (1993) 69 A Crim R 514 (FCA, Foster J).

A witness giving evidence under a pseudonym John Fairfax Group v Local Court (NSW) (1991) 26 NSWLR 131; 59 A Crim R 68 (CA); Jarvie v Magistrates’ Court (Vic) [1995] 1 VR 84 (FC).

An accused giving evidence under a pseudonym Re Mr C (1993) 67 A Crim R 562 (NSW CCA).

[3.9220] Communications with the judge All communications with the judge should be in open court. See also Judge at [10.900].

[3.9225] Security A trial judge has absolute authority on security matters within the courtroom affecting jurors, witnesses, counsel and solicitors. He has no obligation to inform the parties of any special security measures: R v Smith [1982] 2 NSWLR 608 (at 616–617) (CCA). On appeal, refusing special leave in Smith v The Queen (1985) 159 CLR 532; 71 ALR 631, Gibbs CJ said (at 534; 631):

466

ROSS ON CRIME

[3.9230]

When it is necessary for a trial judge to take special precautions for the security of the jury (a situation which one would expect to be exceptional) the judge should take special care to ensure that the precautions are no more obvious than is necessary, and that all possible steps are taken to avoid or mitigate the prejudicial effect which such precautions may have on the mind of the jury. It may in some cases be desirable for the judge to advise the accused of the nature of the precautions or to warn the jury that they should not be influenced by the fact that the precautions were taken. But whether that will be so must depend on the circumstances of the case.

In R v Farr (1994) 74 A Crim R 405 (Qld CA) six prisoners serving lengthy sentences were charged with murdering another prison inmate. The trial judge gave directions that at the trial the accused would be seated in a specially constructed transparent perspex dock; each would be handcuffed to a body-belt; and members of the jury would be identified at the proceedings by numbers only. The applicant, supported by others, sought a declaration that compliance with the judge’s directions would deny them a fair trial and argued the restraints were excessive. McPherson J with whom Davies JA and Williams J agreed, said (at 408): We ought therefore not to be minutely critical of measures adopted to reduce the danger. Prima facie the decisive say over the precautions to be taken must be left with the person who carries the responsibility and bears the risk. It is not for us to be unduly courageous about risks that do not threaten us personally.

Application dismissed. See also NT: Court Security Act 1998; Vic: Court Security Act 1980.

[3.9230] Court’s power to supervise conduct of legal practitioners In Myers v Elman [1940] AC 282; [1939] 4 All ER 484 (HL) Lord Wright said (at 319; 508–509): The underlying principle is that the court has a right and a duty to supervise the conduct of its solicitors, and visit with penalties any conduct of a solicitor which is of such a nature as to tend to defeat justice in the very cause in which he is engaged professionally, as was said by Abinger CB in Stephens v Hill (1842) 10 M & W 28; 152 ER 368. The matter complained of need not be criminal. It need not involve peculation or dishonesty. A mere mistake or error of judgment is not generally sufficient, but a gross neglect or inaccuracy in a matter which it is a solicitor’s duty to ascertain with accuracy may suffice. Thus, a solicitor may be held bound in certain events to satisfy himself that he has a retainer to act, or as to the accuracy of an affidavit which his client swears. It is impossible to enumerate the various contingencies which may call into operation the exercise of this jurisdiction. It need not involve personal obliquity. The term professional misconduct has often been used to describe the ground on which the court acts. It would perhaps be more accurate to describe it as conduct which involves a failure on the part of a solicitor to fulfil his duty to the court and to realise his duty to aid in promoting in his own sphere the cause of justice. This summary procedure may often be invoked to save the expense of an action.

Followed: Broughton v Broughton [1955] SASR 241 at 247–248 (Abbott J) (a divorce case); R v Clark (1996) 91 A Crim R 46 (SA CCA) at 77–78 per Lander J; Re Ansett Australia Holdings Ltd [1998] 1 Qd R 116; (1997) 94 A Crim R 7 at 120, 11 (Mackenzie J); Queensland Law Society Inc v Smith [2001] 1 Qd R 649; (2000) 111 A Crim R 120 at [4] (CA).

[3.9410]

CREDIBILITY

467

[3.9235] Writings E Campbell, “What are Courts of Law?” (1998) 17 U Tas LR 19-47.

CREDIBILITY Meaning ....................................................................................................................................... Common law ............................................................................................................................... Uniform Evidence Acts .............................................................................................................. Credibility evidence (s 101A) .................................................................................................... Credibility rule: s 102 ................................................................................................................. Exception: cross-examination of a witness: s 103 .................................................................... Further protection: cross-examination of accused: s 104 .......................................................... Unsworn statement: s 105: not relevant .................................................................................... Exception: rebutting denials by other evidence: s 106 ............................................................. Section 107 is repealed ............................................................................................................... Exception: re-establishing credibility: s 108 ..............................................................................

[3.9400] [3.9405] [3.9410] [3.9415] [3.9420] [3.9425] [3.9430] [3.9435] [3.9440] [3.9445] [3.9450]

[3.9400] Meaning Credibility means believability. In a witness it means the quality of deserving to have the evidence believed.

[3.9405] Common law At common law, the credibility of a witness generally depends on the following factors: 1. knowledge of the facts on which the witness gives evidence; 2. impartiality; 3. integrity; 4. truthfulness. A witness will often fall short of one or more of the above. In these circumstances a trial judge should warn the jury about the credibility of the witness. Examples of classes of witnesses who will often lack credibility are an accomplice; a prison informer; a witness serving an ulterior purpose, such as a tainted witness; a witness with a mental disability; two witnesses who have put their heads together. The categories are not closed. The prosecutor who calls such a witness will usually try to call further evidence in corroboration of the evidence of the witness. The cases are full of decisions of judges on credibility. The following are only a few. Generally, one witness cannot give evidence of the credibility of another witness: R v Thorne (1977) 66 Cr App R 6 at 15 (CCA). But if credibility is close to the issues, such other evidence may be admitted: R v FTG (2007) 15 VR 685; 172 A Crim R 340 (CA). One witness is able to give evidence of the dishonest reputation possessed by another witness: R v Richardson [1969] 1 QB 299; [1968] 2 All ER 761; (1968) 52 Cr App R 317, approved Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 at 21 [48] per McHugh J. A failure of defence counsel to comply with Browne v Dunn does not adversely affect the accused’s credibility: Oldfield v The Queen (2006) 163 A Crim R 242 (NSW CCA).

[3.9410] Uniform Evidence Acts Uniform Evidence Acts ss 102–108 deal specifically with credibility. The Acts of some jurisdictions vary.

468

ROSS ON CRIME

[3.9415]

All Acts define “credibility” in Dictionary Definitions Part 1. credibility of a person who has made a representation that has been admitted in evidence means the credibility of the representation, and includes the person’s ability to observe or remember facts and events about which the person made the representation. credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. credibility rule means section 102.

[3.9415] Credibility evidence (s 101A) Section 101A, which has not been passed in Tasmania, provides: Credibility evidence 101A Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that– (a) is relevant only because it affects the assessment of the credibility of the witness or person; or (b) is relevant– (i) because it affects the assessment of the credibility of the witness or person; and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6. Notes: 1. Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted. 2. Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

[3.9420] Credibility rule: s 102 Section 102 is the credibility rule. That section simply provides: 102 The credibility rule Evidence that is relevant only to a witness’s credibility is not admissible. [There are notes beneath the section about other relevant sections.]

In Adam v The Queen (2001) 207 CLR 96; 183 ALR 625; 123 A Crim R 280 Gleeson CJ, Kirby, McHugh and Hayne JJ said (at [35]): The criterion of operation of s 102 is the relevance of the evidence, not any question of its admissibility...Thus attention must be directed to how evidence in question is relevant. Is it relevant only to a witness’s credibility?

In Leung v The Queen (2003) 144 A Crim R 441 (NSW CCA) O’Keefe J, with whom the other judges agreed, said (at 448–449 [24] – [30]) that if the evidence affected credibility but was relevant in some other way, there was no contravention of section 102.

[3.9425] Exception: cross-examination of a witness: s 103 103 Exception: cross-examination as to credibility (1) The credibility rule does not apply to evidence adduced in cross-examination of a witness if the evidence has substantial probative value.

[3.9430]

CREDIBILITY

469

(2) Without limiting the matters to which the court may have regard in deciding whether the evidence has substantial probative value, it is to have regard to: (a) whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and (b) the period that has elapsed since the acts or events to which the evidence relates were done or occurred.

Substantial probative value Dictionary Definitions Part 1 defines probative value: probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Sackville J, with whom the other judges agreed, said (at 71 [86]): The statutory concept of “substantial probative value” is, however, given an extended meaning by s 103(2). In determining whether the evidence has substantial probative value, the court is to have regard, inter alia, to whether the evidence tends to prove that the witness knowingly or recklessly gave false evidence when under an obligation to tell the truth.

Approved: W v The Queen (2006) 162 A Crim R 264 (Tas CCA) at 289 [91] per Evans J. In R v V (1998) 100 A Crim R 488 (NSW CCA) a complainant alleged sexual assaults against her step-father. In cross-examination she said that B was present at one of the assaults. It seemed that B would have said that there was no such sexual event. The judge refused the defence application to call B citing ss 102 and 103. The CCA said that B should have been called. Smart J, with whom the other judges agreed, said (at 495): The B evidence was strongly linked to the credit of the complainant on the issue of the relationship between the appellant and the complainant as well as to her credit generally. The evidence of B, if admitted may have led to a different result.

Appeal allowed. Verdict of acquittal entered. [On the above ground, and others.] For an an example of questioning that violated s 103, see Lysle v The Queen [2012] NSWCCA 20.

[3.9430] Further protection: cross-examination of accused: s 104 Section104 sets out at length restrictions on cross-examination of an accused. The essence of the section is this. Section 104(1): The section applies to a criminal case. Section 104(2): No cross-examination on credibility without leave. Section 104(3): No leave required when a prosecutor’s cross-examination is about bias or a motive to be untruthful; inability to recall and prior inconsistent statement. Section 104(4): Leave must not be given to a prosecutor to cross-examine only on credibility unless the defendant has put good character in issue or the defence has attacked the truth and character of a prosecution witness. Section 104(5): The prosecution evidence in s 104(4) does not apply to the charges or their investigation. Section 104(6): Most of the above matters apply to a joint trial.

470

ROSS ON CRIME

[3.9440]

Leave: In Stanoevski v The Queen (2001) 202 CLR 115; 177 ALR 285; 118 A Crim R 247 Gaudron, Kirby and Callinan JJ pointed out (at [41]) that leave to cross-examine about character without taking account of ss 192 and 112 (discretion). See also, R v El-Azzi [2004] NSWCCA 455.

[3.9440] Exception: rebutting denials by other evidence: s 106 Section 106 provides: 106 Exception: rebutting denials by other evidence (1) The credibility rule does not apply to evidence that is relevant to a witness’s credibility and that is adduced otherwise than from the witness if: (a) in cross-examination of the witness: (i) the substance of the evidence was put to the witness; and (ii) the witness denied, or did not admit or agree to, the substance of the evidence; and (b) the court gives leave to adduce the evidence. (2) Leave under paragraph (1)(b) is not required if the evidence tends to prove that the witness: (a) is biased or has a motive for being untruthful; or (b) has been convicted of an offence, including an offence against the law of a foreign country; or (c) has made a prior inconsistent statement; or (d) is, or was, unable to be aware of matters to which his or her evidence relates; or (e) has knowingly or recklessly made a false representation while under an obligation, imposed by or under an Australian law or a law of a foreign country, to tell the truth;

In Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51 Sackville J, with whom the other judges agreed, said (at 72 [87] – [88]): Section 106 provides that the credibility rule does not apply to certain kinds of rebuttal evidence. In particular, it does not apply to rebuttal evidence that tends to prove that a witness has knowingly or recklessly given false evidence when under an obligation to tell the truth: s 106. Section 108 creates additional exceptions to the credibility rule. These include evidence adduced in re-examination and evidence given, with the leave of the court, of prior consistent statements: s 108(3). This legislative scheme broadly reflects the recommendation of the Commission in its reports on Evidence: Interim Report, vol 1, pars [817] – [820]; Final Report, pars [179] – [181], Draft Bill, cll 94, 96, 99, 101.

See also R v PLV (2001) 51 NSWLR 736; 123 A Crim R 194; [2001] NSWCCA 282; R v Rivkin (2004) 59 NSWLR 284; 184 FLR 365; [2004] NSWCCA 7.

[3.9445] Section 107 is repealed [3.9450] Exception: re-establishing credibility: s 108 Section 108 provides: 108 Exception: re-establishing credibility (1) The credibility rule does not apply to evidence adduced in re-examination of a witness.

[3.9605]

CREDIT

471

(2) The credibility rule does not apply to evidence that explains or contradicts evidence adduced as referred to in section 105, if the court gives leaves to adduce that evidence. (3) The credibility rule does not apply to evidence of a prior consistent statement of a witness if: (a) evidence of a prior inconsistent statement of the witness has been admitted; or (b) it is or will be suggested (either expressly or by implication) that evidence given by the witness has been fabricated or re-constructed (whether deliberately or otherwise) or is the result of a suggestion; and the court gives leave to adduce the evidence of the prior consistent statement.

In Pavitt v The Queen (2007) 169 A Crim R 452 (NSW CCA) McColl JA and Latham J said (at 493 [105]): The terms of s 108(3) are clear. There is not warrant for reading into the provision a requirement that fabrication be explicitly raised or strongly inferred before the credibility rule is waived.

In R v Brownlee (1999) 105 A Crim R 214 (NSW CA) the matters under s 108(3)(b) were hearsay and thus inadmissible. Appeal allowed.

CREDIT Definition ..................................................................................................................................... Difference between credit and issue .......................................................................................... Examination-in-chief ................................................................................................................... Lie detector ................................................................................................................................. Effect of weakened credibility .................................................................................................... Virginity in sexual cases ............................................................................................................. Cross-examination on credit ....................................................................................................... Prior convictions ......................................................................................................................... Bias .............................................................................................................................................. Cross-examination on gross improprieties ................................................................................. General rule – answers to mere credit questions are final ........................................................ Flexible standard rather than fixed rule ..................................................................................... Fact in issue ................................................................................................................................ Exceptions to the rule on credit questions ................................................................................. Re-examination ........................................................................................................................... Expert evidence ........................................................................................................................... Request for evidence on credit of a witness ..............................................................................

[3.9600] [3.9605] [3.9610] [3.9615] [3.9620] [3.9625] [3.9630] [3.9635] [3.9640] [3.9645] [3.9650] [3.9655] [3.9660] [3.9665] [3.9670] [3.9675] [3.9680]

[3.9600] Definition In a forensic setting, credit refers to the veracity and trustworthiness of the evidence of a witness. The credit of a witness might be affected by collateral matters, that is to say matters which are separate from the issues in the case. It is to those matters that this section is addressed. Sometimes the phrase “mere credit” is used.

[3.9605] Difference between credit and issue In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16, McHugh J reviewed the difference between credit and issue. What McHugh J said (at 21–23; 31–33; 229–230) was summed up in R v V (1998) 100 A Crim R 488 (NSW CCA) (at 494): McHugh J undertook a review of the common law principles underlying the restrictions on leading evidence as to credit and the distinction between credit and facts-in-issue. He made these points … (a) If the evidence on the issue in question is regarded as going solely to the credit of the complainant, the finality rule applies; answers given in cross-examination regarding collateral facts such as credit must be regarded as final. (There are exceptions to this

472

ROSS ON CRIME

[3.9610]

rule.) The “bolster rule” would also apply; evidence is not admissible if it merely bolsters the credibility of a party or a witness. (b) The line between evidence relevant to credit and evidence relevant to a fact in issue is often indistinct and unhelpful. The credit of a witness may be of such crucial importance that it is decisive of the facts in issue, particularly where the witness is a participant in the very facts in issue or is the only eyewitness to them. (c) The rationale between the credit and the facts in issue distinction is “based primarily upon the need to confine the trial process and secondly upon notions of fairness to the witness”. (d) Accordingly, the evidentiary rules based on the distinction between issues of credit and facts in issue should not be regarded as hard and fast rules of law but “as a well established guide to the exercise of judicial regulation of the litigation process”. If evidence going to credibility has real probative value with respect to the facts in issue it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts in issue. McHugh J said (at 24; 33; 231-232): The rigid distinction between credit and facts in issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts in issue. McHugh J’s comments were neither adopted nor rejected by any of the other justices and he was in the minority on one of the points. I have found the discussion very helpful and persuasive.

[3.9610] Examination-in-chief Evidence showing the credit, credibility or good character of a witness cannot be led in evidence in chief. It is sometimes called the “bolster rule”. In Bamfield v Massey (1808) 1 Camp 460; 170 ER 1021, a civil action for seduction of the plaintiff’s daughter, Lord Ellenborough said (at 461): Witnesses cannot be examined by the plaintiff to the character of the daughter, except in answer to evidence on the other side.

Lawton LJ giving judgment of the Court of Appeal in R v Turner [1975] QB 834; [1975] 2 WLR 56; [1975] 1 All ER 70; 60 Cr App R 80 said (at 842; 75; 84): [I]n general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up.

In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 McHugh J said (at 21; 31; 229 [49]): (T)he “bolster rule” … stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or cross-examination of another witness or in re-examination of the party or witness attacked.

See also R v Béland [1987] 1 SCR 398; (1987) 43 DLR (4th) 641; 36 CCC (3d) 481 at 404–408, 646–649, 486–489 (SCC).

[3.9615] Lie detector The fact of submission to a lie detector would be an attempt to bolster the credit of the witness and is not admissible.

[3.9630]

CREDIT

473

See also Lie detector at [12.1300].

[3.9620] Effect of weakened credibility In Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 77 ALJR 1165; 198 ALR 59 McHugh and Gummow JJ said (at 1175; 70 [49]): In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.

[3.9625] Virginity in sexual cases In sexual cases there is debate about whether evidence of virginity of the complainant is a matter of mere credit or is an issue. It would clearly be an issue if the defence were alleging that the prosecutrix is a virgin at the time of trial, or at least when the complaint of sexual intercourse was made: M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63. When the complainant says in evidence in chief that she was a virgin when the charged events occurred, she may be cross-examined about her prior sexual activities: R v Allingham [1991] 1 Qd R 429; (1989) 42 A Crim R 175 (CCA). Courts have adopted the words of Cross on Evidence: Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue.

Approved: R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466; R v C [1995] 2 NZLR 330 at 335–336 (CA); R v Lawrence [2002] 2 Qd R 400; (2001) 124 A Crim R 83 at [13] (CA). See also Relevance at [18.2400]; and Sexual offence at [19.3000].

[3.9630] Cross-examination on credit In R v Brown [1998] AC 367; [1998] 1 Cr App R 66; [1997] 3 All ER 769 (HL) Lord Hope said (at 380; 76; 778): No witness enters the witness box with a certificate which guarantees his credibility. Every witness can expect to be cross-examined upon the veracity or reliability of his evidence.

Bar Rules Austalian Bar Association model rules provide: 38. A barrister must not make a suggestion in cross-examination on credit unless the barrister believes on reasonable grounds that acceptance of the suggestion would diminish the witness’s credibility.

A judge should not constrain cross-examination on credit In R v Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 (CCA) Hunt J said (at 742; 286):

474

ROSS ON CRIME

[3.9635]

[I]n a case where the credit of a witness is very much in issue, it is in my view an unwise approach … to exclude matters which are relevant to credit unless they are clearly of no material weight whatsoever upon that issue. That decision to reject the evidence should always be taken with great caution and as an exception to the rule rather than as the rule itself.

In Wakeley v The Queen (1990) 64 ALJR 321; 93 ALR 79 (HC) the court said in a joint judgment (at 325; 86): The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness.

Both cases were followed in R v Maslen (1995) 79 A Crim R 199 at 204 (NSW CCA). In R v Ditrioa & Tucci [1981] VR 247 (CCA) the court said in a joint judgment (at 252): It is a different matter if the questions are put only as to bad character. Of course the cross-examiner would then be bound by the answer given – save for the provisions of s 33 of the Evidence Act 1958. Otherwise the ambit of the court’s power to interfere with cross-examination as to credit is to be found in s 37 of that Act.

[3.9635] Prior convictions Prior convictions may be relevant to credit. In R v Hanson [2005] 1 WLR 3169; [2005] 2 Cr App R 299 (CA) the court said in a joint judgment (at 3174; 304–305 [13]): Previous convictions, whether for offences of dishonesty or otherwise, are therefore only likely to be capable of showing a propensity to be untruthful where … truthfulness is an issue and … either there was a plea of not guilty and the defendant gave an account, on arrest, in interview, or in evidence, which the jury must have disbelieved, or the way in which the offence was committed shows a propensity for untruthfulness, for example, by the making of false representations.

In R v S [2007] 1 WLR 63 (CA) the court (at 67–68 [12]) followed R v Hanson [2005] 1 WLR 3169; [2005] 2 Cr App R 299. In R v S [2007] 1 WLR 63 a man had been masturbated by a prostitute. She then screamed, demanded more money and tried to take a chain of his. When he refused she said she would charge him with rape. In fact he was charged with indecent assault. She had earlier pleaded guilty to dishonesty offences. The trial judge refused to allow the defence to cross-examine her on those convictions. Appeal allowed.

[3.9640] Bias In Smith v The Queen (1993) 9 WAR 99 (CCA) it was held that evidence should have been admitted to show that the complainant gave her evidence from a corrupt or other motive. Such evidence would contradict her answers in cross-examination. Appeal allowed. See also R v Umanski [1961] VR 242 at 244 (CCA); R v De Angelis (1979) 20 SASR 288 at 295 (CCA); R v LSS (2000) 1 Qd R 546; (1998) 103 A Crim R 101 (at 553–554; 108–109 [28]) (CA); Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 per McHugh J (at 21; 31; 229 [48]);

[3.9650]

CREDIT

475

Phillips J, “Impeachment for Bias of Evidence by Witnesses as to Collateral Matters” (1988) 62 ALJ 288–291. Bias at [2.1800].

[3.9645] Cross-examination on gross improprieties It is permissible to suggest to a police witness that he has committed gross improprieties even if the accused does not lead supportive evidence: R v Mahoney-Smith [1967] 2 NSWR 154; (1967) 87 WN (Pt 1) NSW 249 at 161, 255 (O’Brien J in chambers). To be cross-examined on credit requires some admissible evidence against the party. In R v Brotherton (1992) 29 NSWLR 95; 65 A Crim R 301 (CCA) Hunt CJ at CL said (at 104; 310): A witness may, of course, be cross-examined in relation to other conduct by him which was improper, for the purpose of attacking his credit as a witness. But such an attack upon his credit is admissible only when he has given evidence of some fact which is admissible against the party cross-examining him (whether given in chief or in cross-examination): Hobbs v Tinling [1929] 2 KB 1 at 18-20, 39; Judd v Sun Newspapers Ltd (1930) 30 SR (NSW) 294 at 301, 315. If no evidence be given by a witness, there is nothing to which an attack upon his credit is relevant.

[3.9650] General rule – answers to mere credit questions are final One’s own witness In R v Welden (1977) 16 SASR 421 (CCA) Bray CJ said (at 427): A party who calls a witness cannot, with irrelevant exceptions, call other evidence to show that the witness is a person unworthy of credit, but he can call other evidence to show that he has made a mistake.

Approved: R v Andrews (1992) 60 A Crim R 137 at 149 (SA CCA); Goncalves v The Queen (1997) 99 A Crim R 193 at 216 (WA CCA). Followed: Graham v Police (2001) 122 A Crim R 152 at 164 [41] (SA, Gray J).

An opposition witness: the finality rule In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 McHugh J said (at 21; 31; 229 [48]): [The finality] rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final. If that rule applied, neither the appellant nor any other witness could give evidence of facts that would rebut the complainant’s denial that she had fabricated the complaint. However, there are exceptions to the finality rule. Probably the best known is that, if a witness denies in cross-examination that he or she has been convicted of an offence, the opposite party may tender evidence of the conviction. Similarly, where the credibility of the witness is affected by a mental or medical condition, evidence as to that condition may be tendered. Another exception is where the veracity of a witness has been attacked in cross-examination. In that case, evidence may be led concerning the witness’s general reputation for veracity. Conversely, where a suggestion of bias on the part of a party or witness is denied by that party or witness in cross-examination, evidence may be led to establish the bias.

In Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 McHugh J repeated what he had said in Palmer. To the exceptions to the finality rule he added evidence that a witness has been corrupted (at 1030; 378 [34]) or had made a prior consistent statement (at 1030; 379 [36]).

476

ROSS ON CRIME

[3.9655]

In R v Harmer (1985) 28 A Crim R 35 (Vic CCA) the court said in a joint judgment (at 41): While it is true that the applicant was not entitled to call evidence going merely to the credit of a Crown witness, it is equally well established that an accused, as the applicant was, is entitled to call in support of his defence in disproof of the Crown case any evidence which is relevant to an issue and this might include evidence touching the disposition, character or violent propensity of some other person: Gibb [1983] 2 VR 155; (1982) 7 A Crim R 385; Lowery and King (No 3) [1972] VR 939 at 944-945; Lowery [1974] AC 85 at 102; Knight v Jones; ex parte Jones [1981] Qd R 98; Letsoko [1964] 4 SAR 768 and Gosschalk v Rossouw [1966] 2 SAR 476.

Approved: R v Polley (1997) 68 SASR 227; 93 A Crim R 325 (CCA). In practice the finality rule seems to be more relaxed than in earlier times. The relaxation of the rule is especially evident in word against word sexual cases. R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466. In R v Nagrecha [1997] 2 Cr App R 401 (CA) the complainant denied making a sex complaint against her employer, similar to the one she had made against the accused. The appeal was allowed. The employer should have been allowed to give evidence. The court said (at 406): If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue.

The employer should have given evidence because it (at 410): [W]ent not merely to credit, but to the heart of the case, in that it bore on the crucial issue as to whether or not there had been any assault. As to that matter only, the complainant and the appellant were able to give evidence.

R v Lawrence [2002] 2 Qd R 400; (2001) 124 A Crim R 83 (CA) was a gaol sex case. It was an allegation that the accused prisoner raped the complainant prisoner anally. The complainant was cross-examined extensively about his credit. He denied threatening another prisoner with a false sex complaint. The defence was stopped from calling that other prisoner. The Court of Appeal examined the finality rule extensively. It held that the defence should have been allowed to call that evidence. Appeal allowed.

[3.9655] Flexible standard rather than fixed rule In Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 McHugh J said (at 1031; 379 [39]): Despite the longevity of the finality rule, it has increasingly come to be regarded more as a flexible standard than a fixed rule of law: Palmer v R (1998) 193 CLR 1 at 22 [52]. Starke J recognised this in Piddington v Bennett and Wood Pty Ltd [1965] AC 595 at 607 when he said that the finality rule was “a rule of convenience, and not of principle”. Similarly, in Natta v Canham (1991) 32 FCR 282 at 298.

In Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 McHugh J said (at 223; 16 [56]): The collateral evidence rule should therefore be seen as a case management rule that is not confined by categories. Because that is so, evidence disproving a witness’s denials concerning matters of credibility should be regarded as generally admissible if the witness’s credit is inextricably involved with a fact in issue. Consistently with the case management rationale of the finality rule, however, a judge may still reject rebutting evidence where, although inextricably connected with a fact in issue, the time, convenience or expense of admitting the evidence would be unduly disproportionate to its probative force. In such cases, the interests of justice do not require relaxation of the general rule that answers given to collateral matters such as credit are final.

[3.9665]

CREDIT

477

[3.9660] Fact in issue The finality rule does not apply where the evidence in question is on a fact in issue. In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 McHugh J said (at 24; 33; 231–232 [55] – [56]): If evidence going to credibility has real probative value with respect to the facts-in-issue, however, it ought not to be excluded unless the time, convenience and cost of litigating the issue that it raises is disproportionate to the light that it throws on the facts-in-issue. The rigid distinction between credit and facts-in-issue and the rules predicated on that distinction should therefore be minimised by the adoption of a more flexible view as to when matters going to the credibility of a witness should be admitted as evidence probative of the facts-in-issue. Evidence concerning the credibility of a witness is as relevant to proof of an issue as are the facts deposed to by that witness. There is no distinction, so far as relevance is concerned, between the credibility of the witness and the facts to which he or she deposes. The credibility of evidence is locked to the credibility of its deponent. The truth of that proposition is in reality recognised by the rule that a witness can be cross-examined as to matters of credit. Because that is so, it is irrational to draw a rigid distinction between matters of credit and matters going to the facts-in-issue.

See also Relevance at [18.2400].

[3.9665] Exceptions to the rule on credit questions 1. If there has been a prior inconsistent statement See also Prior inconsistent statement at [16.4700]; and Cross-examination on documents at [3.10600].

2. The witness has prior convictions Legislation Uniform Evidence Acts s 106(b); Qld: Evidence Act 1977 s 16; WA: Evidence Act 1906 s 23 (any indictable offence); SA: Evidence Act 1929 s 26; NZ: Evidence Act 2006. In Bugg v Day (1949) 79 CLR 442 Dixon J said (at 467): Scanty as is the material obtained to form a conclusion I think the better view is that at common law a conviction of a witness for an offence could not be used for the purpose of discrediting him if the offence was not of such a nature as to tend to weaken confidence in the credit of the witness, that is to say in his character or trustworthiness as a witness of truth. Traffic offences cannot often fulfil this condition.

Followed: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 per McHugh J at 21 [48]; Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 per McHugh J at 1030; 378 [35].

478

ROSS ON CRIME

[3.9665]

See also R v Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 (CCA); R v Brooks (1999) 103 A Crim R 234 at 251 [98] (Vic CA); R v Millar [2000] 1 Qd R 437; (1998) 103 A Crim R 526 (CA).

3. Bias R v Umanski [1961] VR 242 at 244 (CCA). See also Bias at [2.1800].

4. Cheating or obstructing the judicial process The purpose of ordering a proposed witness from court is to ensure independence of evidence. Such a witness who contrives to find out what has been said in court lacks independence, and that may be proved. (The old expression for passing the information to such a witness was “running the rabbit”.) In R v Mendy (1976) 64 Cr App R 4 Shaw LJ said of the accused’s husband (at 6): [I]t seems strange, if it be the case, that the Court and jury have to be kept in ignorance of behaviour by a witness such as that in the present case. The suggestion which lay behind the evidence in question was that Mr Mendy was prepared to lend himself to a scheme designed to defeat the purpose of keeping prospective witnesses out of Court; that he allowed the messenger to give him details of what Detective Constable Price had been saying in the witness-box about the assault which the appellant was alleged to have committed. If the evidence of the Court officer and Constable Thatcher was to be believed, the jury could be in little doubt that the witness’s object in receiving such instruction must have been to enable him the more convincingly to describe how he and not the appellant had caused the injuries to the policeman. The witness was prepared to cheat in order to deceive the jury and help the defendant. The jury were entitled to be apprised of that fact. The evidence was properly admitted and the appeal must, therefore, be dismissed.

5. Going to improper lengths to secure a conviction R v Mendy (1976) 64 Cr App R 4 is referred to with approval by Anderson J in Bond v The Queen (1992) 62 A Crim R 383 (WA CCA) at 439–440. His Honour was dealing with the prospective evidence of a witness named Healy. The evidence has a bearing beyond Connell’s general credibility. The purport of it is that Connell was positively prepared to go to improper lengths to see Bond convicted. Therefore, if Connell had denied making the statement to Healy, Healy certainly could have been called to give evidence that the statement had been made. This would be so not only in virtue of the doctrine relating to the admissibility of prior inconsistent statements, but upon the broader ground that to keep from the jury evidence of a stated intention by Connell to give false evidence in relation to the fee would be so unfair to Bond as to require the general rule as to finality of answers to questions put on collateral issues to be departed from. The case would be analogous to those cases in which evidence in rebuttal of a denial of prejudice is allowed: Phillips (1936) 26 Cr App R 17; Mendy (1976) 64 Cr App R 4; Busby (1982) 75 Cr App R 79; and see also Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482.

See also The judgments of Nicholson J at 388 and Murray J at 431–432 to the same effect. This exception applies to allow evidence when police have been prepared to go to improper lengths to secure a conviction:

[3.9665]

CREDIT

479

R v Busby (1982) 75 Cr App R 79 approved; R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466 (CA).

6. Reputation for untruth A witness may be called to say that another witness has a reputation for untruth. In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 McHugh J said (at 21; 31; 229 [48]): (The finality) rule stipulates that answers given by a party or witness in cross-examination regarding collateral facts such as credit must be regarded as final … However, there are exceptions to the finality rule … Another exception is where the veracity of a witness has been attacked in cross-examination. In that case, evidence may be led concerning the witness’s general reputation for veracity: R v Watson (1817) 2 Stark 116 [171 ER 591]; R v Richardson [1969] 1 QB 299; [1968] 2 All ER 761; (1968) 52 Cr App R 317.

In R v Richardson [1969] 1 QB 299; [1968] 2 All ER 761; (1968) 52 Cr App R 317, Edmund-Davies LJ said (at 304–305; 764–765; 323–324): The legal position may be thus summarised: 1. A witness may be asked whether he has knowledge of the impugned witness’s general reputation for veracity and whether (from such knowledge) he would believe the impugned witness’s sworn testimony. 2. The witness called to impeach the credibility of another witness may also express his individual opinion (based upon his personal knowledge) as to whether the latter is to be believed upon his oath and is not confined to giving an opinion based merely on general reputation. 3. But, whether his opinion as to the impugned witness’s credibility be based simply upon the latter’s general reputation for veracity or upon personal knowledge, the witness cannot be permitted to indicate during his examination-in-chief the particular facts, circumstances or incidents which formed the basis of his opinion, although he may be cross-examined as to them. This method of attacking a witness’s veracity, though ancient, is used with exceeding rarity.

Approved: Bell v The Queen (1985) 7 FCR 555; 63 ALR 433 at 563, 441; Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 per McHugh, Gummow and Hayne JJ at 455 [46]. Of course, evidence can be sought in cross-examination of the reputation of another witness for untruth: R v Hanrahan (1964) 87 WN (NSW) 458; [1967] 2 NSWLR 717 (CCA). Uniform Evidence Acts ss 102 and 106 do not in terms permit such evidence. For discussion on the ACT position see Bell v The Queen (1985) 7 FCR 555; 63 ALR 433 (FCA).

7. False sexual allegations on other occasions Evidence may with leave be led in a contested sexual case that the witness made false sexual allegations on other occasions. The evidence is not limited to other complaints about the accused. R v FTG (2007) 15 VR 685; 172 A Crim R 340 (CA) at [63] – [77];

480

ROSS ON CRIME

[3.9670]

R v Lawrence [2002] 2 Qd R 400; (2001) 124 A Crim R 83 (CA) at [10] – [14]; R v Nagrecha [1997] 2 Cr App R 401 (CCA); R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466 (CA). See also R v Pearce (1999) 3 VR 287; 108 A Crim R 580 at 290 [12] (CA). No leave can be given in New South Wales: Criminal Procedure Act 1986 s 293.

[3.9670] Re-examination Where credit has been the subject of cross-examination, re-examination of the witness can be such to restore credit. In Wojcic v Incorporated Nominal Defendant [1969] VR 323 (FC) the court said (at 326): A party, however, is entitled, in re-examination, to elicit from his witness facts which explain away or qualify facts which have been elicited from the witness in cross-examination, and which are in themselves prejudicial to the party’s case or the witness’s credit, or from which prejudicial inferences could be drawn: see The Queen’s Case (1820) 2 Brod & Bing 284 at 297: Prince v Samo (1838) 7 Ad & El 627 at 632: R v St George (1840) 9 C & P 483 at 488; Wills on Evidence, 3rd ed p 337; Wigmore on Evidence, 3rd ed, s 1896.

The credit of one witness can be restored through another. In R v J (1994) 75 A Crim R 522 (Vic CCA) Brooking J gave the judgment with whom the others agreed. His Honour referred to Wojcic and to R v Phair [1986] 1 Qd R 136 and went on to say (at 534): In both these cases the rehabilitating evidence was, or might have been, led from the witness whose credit was impeached; but there is no reason in principle why such evidence may not be elicited from a third person. Nor is there any reason in principle why that evidence from a third person should not be expert evidence. In C (1993) 60 SASR 467; 70 A Crim R 378 the Full Court of South Australia accepted that, where the credibility of a witness is attacked, evidence is admissible for the purpose of rehabilitating the credibility of that witness, and that there is no reason why the rehabilitating evidence should not be expert evidence if the subject matter is a fit subject of expert opinion: see per King CJ (at 473; 383).

See also R v Clune (No 1) [1975] VR 723 at 734 (CCA); R v Szach (1980) 23 SASR 504; 2 A Crim R 321 (CCA) per King CJ (at 519–520; 328–329); R v Singleton [1986] 2 Qd R 535; (1986) 24 A Crim R 82 (CCA) per de Jersey J (at 546–547; 93). See also Re-examination at [18.2000].

[3.9675] Expert evidence Opinion evidence of an expert can be used to rehabilitate the credit of a witness. In sexual cases such opinion evidence has been held admissible. In R v C (1993) 60 SASR 467; 70 A Crim R 378 (CCA) King CJ said (at 473; 383): It is a clear rule, however, that where the credibility of a witness is attacked, evidence is admissible for the purpose of rehabilitating the credibility of that witness. There is no reason why the rehabilitating evidence should not be expert evidence if the subject matter is a fit subject of expert opinion.

[3.9800]

CRIMINAL CODE

481

Approved: R v J (1994) 75 A Crim R 522 at 534 (Vic CCA).

[3.9680] Request for evidence on credit of a witness The following draft letter from the defence has proved useful in discovering matters which go to the credit of a prosecution witness. In summary matters the letter should be directed to the (Chief) Commissioner of Police and to the police informant. In indictable matters it should be directed to the DPP. We act for … Further to R v K (1991) 161 LSJS 135 (SACCA) per King CJ at 140 (approved R v Lewis-Hamilton [1998] 1 VR 630 at 634-635) and Grey v The Queen (2001) 75 ALJR 1708 would you be kind enough to provide information which reflects materially upon the credit of prosecution witnesses. We expect that this will include, but will not necessarily be restricted to, any criminal history of any witness proposed to be called by the prosecution. Yours sincerely,

CRIMINAL CODE Construction ................................................................................................................................ Ambiguity .................................................................................................................................... Common law ............................................................................................................................... Common law and equity principles not to be introduced ......................................................... Penal statute ................................................................................................................................ Words and phrases ...................................................................................................................... History .........................................................................................................................................

[3.9800] [3.9805] [3.9810] [3.9815] [3.9820] [3.9825] [3.9830]

[3.9800] Construction In Bank of England v Vagliano Brothers [1891] AC 107; [1891–1894] All ER Rep 93 the House of Lords dealt with the Bills of Exchange Act 1882. Lord Herschell said (at 145; 113): I think the proper course is, in the first instance, to examine the language of the statute and to ask what is its natural meaning uninfluenced by any considerations derived from the previous state of the law, and not start with inquiring how the law previously stood, and then, assuming that it was probably intended to leave it unaltered, to see if the words of the enactment will bear an interpretation in conformity with this view. If a statute intended to embody in a code a particular branch of the law is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it the law should be ascertained by interpreting the language used, instead of, as before, by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am, of course, far from asserting that resort may never be had to the previous state of the law for the purpose of aiding in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would be perfectly legitimate.

In R v Barlow (1997) 188 CLR 1; 144 ALR 317; 93 A Crim R 113 Kirby J said (at 31–33; 339–341; 136–136): Construction of a code Before considering the conflicting authorities on the meaning to be given to this and like provisions in other codes and legislation, it is useful to recall some of the rules which have been established for the construction of provisions of a code:

482

ROSS ON CRIME

[3.9800]

1. A code is enacted by an Act of Parliament. Like any other enactment, the imputed will of Parliament must be derived from the language of the enactment, understood in its context and, so far as possible, in order to give effect to its apparent purposes. Courts must give the language of a code, like any legislation, its natural meaning (Jervis [1993] 1 Qd R 643 at 670-671, per de Jersey J). If that meaning is clear and unambiguous, it must be given effect. The court will only look externally to other sources where the meaning is doubtful either because of the inherent ambiguity of the language used or because the words used have previously acquired a technical or special meaning (Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 22; Stuart v The Queen (1974) 134 CLR 426 at 437). 2. As a species of legislation, a code, such as the Code in question, is subject to a paramount rule. Its meaning is to be ascertained (Boughey v The Queen (1986) 161 CLR 10 at 30, per Brennan J. [It must be remembered that the Code was not a mere re-statement of the criminal law as it stood in 1899 Many parts of the Code were novel, introducing fundamental changes to the pre-existing criminal law. See R v Martyr [1962] Qd R 398 at 413)]: by interpreting its language without reference to the pre-existing law, although reference may be made to that law where the Code contains provisions of doubtful import or uses language which has acquired a technical meaning (Robinson v Canadian Pacific Railway Co [1892] AC 481 at 487). It is erroneous to approach the Code with the presumption that it was intended to do no more than restate the existing law (Brennan v The King (1936) 55 CLR 253 at 263) but when the Code employs words and phrases that are conventionally used to express a general common law principle, it is permissible to interpret the statutory language in the light of decisions expounding the common law (Mamote-Kulang v The Queen (1964) 111 CLR 62 at 76) including decisions subsequent to the Code’s enactment (Murray v The Queen [1962] Tas SR 170 at 172-173, 192; R v Rau [1972] Tas SR 59 at 71-72). Thus the first loyalty is to the code (Jervis [1993] 1 Qd R 643 at 647). But in the stated circumstances, regard may be had to the pre-existing common law and to parallel developments in non-code jurisdictions. 3. At least in matters of basic principle, where there is ambiguity and where alternative constructions of a code appear arguable, this Court has said that it will ordinarily favour the meaning which achieves consistency in the interpretation of like language in the codes of other Australian jurisdictions (cf Vallance v The Queen (1961) 108 CLR 56 at 75-76; Parker v The Queen (1997) 186 CLR 494 at 517-519). It will also tend to favour the interpretation which achieves consistency as between such jurisdictions and the expression of general principle in the common law obtaining elsewhere (Zecevic v Director of Public Prosecutions (Vic) (1987) 162 CLR 645 at 665). This principle of interpretation goes beyond the utilisation of decisions to afford practical illustrations of particular problems and the approaches adopted in resolving them (Jervis [1993] 1 Qd R 643 at 647). It represents a contribution by the Court, where that course is sustained by the language of the code in question, to the achievement of a desirable uniformity in basic principles of the criminal law throughout Australia. Variations in local opinion may result in divergencies in matters of detail in the criminal law. But in matters of general principle, it is highly desirable that unnecessary discrepancies be avoided or, at least, reduced. 4. In giving meaning to a particular phrase or word in a code, it is important to read it in the context of the code taken as a whole (cf Jervis [1993] 1 Qd R 643 at 652). This is especially so in a case such as the present because the word “offence”, which is in question in s 8 of the Code, is inherently ambiguous (Jervis [1993] 1 Qd R 643 at 652). It is given a particular definition in s 2 of the Code. For example, the word appears, undefined, in s 80 of the Constitution (Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R; 62 ALR 161 at 292-293). 5. If the interpretation be available, it is clearly desirable in principle that it should be open to a jury to return a verdict which reflects the measure of the criminality of the accused as established by the evidence (Gilson v The Queen (1991) 172 CLR 353 at 365; Jervis

[3.9810]

CRIMINAL CODE

483

[1993] 1 Qd R 643 at 665; Hind and Harwood (1995) 80 A Crim R 105 at 135, per Fitzgerald P). Although the law abounds in fictions and although legislation (including the Code) can sometimes require results which, in particular circumstances, may seem unjust or unreasonable, where there is a choice, a court will ordinarily construe penal legislation to permit a reflection of the relative involvement of the accused in the crime (Jervis [1993] 1 Qd R 643 at 667, per Shepherdson J). This approach avoids presenting the law in a bad light (Jervis [1993] 1 Qd R 643 at 667). That will occur if the result of a statutory fiction is that an accused person, with minor and distinguishable involvement in a crime, is unjustly assimilated to the principal or escapes altogether because the jury cooled not tolerate the prospect of that result.

[3.9805] Ambiguity An ambiguity in the Code will justify resort to the common law: Stuart v The Queen (1974) 134 CLR 426; 4 ALR 545 at 437, 555. The ambiguity must appear from the provisions of the Code itself. It is not permissible to resort to the antecedent common law in order to create an ambiguity. In Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 57 A Crim R 256; 104 ALR 89 the majority said (at 309; 101): The primary difficulty with the applicant’s argument is that it is not legitimate to look to the antecedent common law for the purpose of interpreting the Code unless it appears that the relevant provision in the Code is ambiguous (Stuart v The Queen (1974) 134 CLR 426 at 437). That ambiguity must appear from the provisions of the statute; in other words, it is not permissible to resort to the antecedent common law in order to create an ambiguity. Nor, for that matter, is it permissible to resort to extrinsic materials, such as the draft Code and Sir Samuel Griffith’s explanation of the draft Code, which are referred to in the dissenting judgment of Cooper J in the Court of Criminal Appeal, in order to create such an ambiguity.

In Charlie v The Queen (1999) 199 CLR 387; 162 ALR 463 (HC) Callinan J giving the leading judgment said (at 410; 479[69]): Whilst it must be accepted that each Code falls to be construed according to its own language, in case of ambiguity, it is appropriate that this court lean in favour of a construction generally consistent with that of other Codes and with the general principles applied in the common law jurisdictions in this country.

If there be no ambiguity, there is no resort to the common law: Tasmania v Green (2007) 16 Tas R 318; 175 A Crim R 511 (Underwood CJ).

[3.9810] Common law The common law can only be used as an aid to interpreting a code in confined circumstances. In Roberts v Western Australia (2007) 34 WAR 1 (CA) Roberts-Smith JA said (at 23 [95]): Resort to the common law is appropriate only where the language of the Code is ambiguous (R v Lockwood; Ex parte Attorney-General [1981] Qd R 209) or has a technical or special meaning acquired at common law (R v Johnson [1964] Qd R 1) or there is a lacuna which it is necessary for the common law to fill (Callaghan v The Queen (1952) 87 CLR 115; R v Scarth [1945] St R Qd 38.

In R v Winston [1995] 2 Qd R 204; (1995) 76 A Crim R 113 (CA) the court said in a joint judgment (at 208; 117): It is accepted that the proper approach to the construction of the Code is to refer to the preceding common law authorities only to the extent that the words of the Code are ambiguous but not in any general way to modify its otherwise clear meaning: Mellifont v Attorney-General (Q) (1991) 173 CLR 289 at 309 and Stuart v The Queen (1974) 134 CLR 426 at 437 (where the earlier case of Brennan v The King (1936) 55 CLR 253 at 263 is referred to).

484

ROSS ON CRIME

[3.9815]

In R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545 Toohey J said (at 65–66; 569; 269–270): If what is meant is no more than the extent to which common law decisions may throw light upon the language of the Code, there is little controversy. Clearly, it is permissible to look to such decisions to throw light on the terminology of the Code, to explain expressions such as “exercise of [the] will”, “accident”, “mental disease” and “natural mental infirmity”. If what is meant is the scope for operation in the area of criminal responsibility of common law doctrines, different considerations arise. The Code is a code and its operation is intended to be complete.

See also Charlie v The Queen (1999) 199 CLR 387; 162 ALR 463.

[3.9815] Common law and equity principles not to be introduced In Parker v The Queen (1997) 186 CLR 494; 143 ALR 293 the court said (at 516; 308): It must also be said that the Court of Criminal Appeal erred in its consequent introduction of equitable principles to resolve questions which turned on the operation of the Code. That is not to say that guidance as to the meaning of particular words and phrases in the Code may not be gained by reference to the common law (which, in this context, would include equity) if the importation of those meanings is not excluded by the Code (Boughey v The Queen (1986) 161 CLR 10 at 30-31, per Brennan J). But that is done in order to throw light on the meaning of a particular word or phrase; it does not involve the introduction of some principle of the common law or equity in order to determine the operation of the Code.

[3.9820] Penal statute In R v Thompson (1996) 90 A Crim R 416 (Qld CA) the court said in a joint judgment (at 419): The code is a penal statute, and required to be construed accordingly; the authorities give no support to a proposition that a statutory provision creating an offence should be given a construction which it would not otherwise bear so as to facilitate the task of the prosecution.

In Vallance v The Queen (1961) 108 CLR 56 Windeyer J said (at 76): [W]e cannot interpret its general provisions concerning such basic principles as if they were written on a tabula rasa, with all that used to be there removed and forgotten. Rather is … the Code written on a palimpsest with the old writing still discernible behind.

[3.9825] Words and phrases A court will look at the common law to explain words and phrases that are not defined in the criminal code. The following are examples: Attempt: R v Prior (1992) 91 NTR 53; 112 FLR 388; 65 A Crim R 1 (Mildren J); Breach of the peace: Cintana v Burgoyne (2003) 13 NTLR 130; 176 FLR 420; 143 A Crim R 296 at [12]-[13] (Mildren J); Indecency: R v Drago (1992) 8 WAR 488; 63 A Crim R 59 (CCA); Intent to defraud: Bolitho v Western Australia (2007) 171 A Crim R 108 (WA CA); Manslaughter by negligence: Callaghan v The Queen (1952) 87 CLR 115; Pacino v The Queen (1998) 105 A Crim R 309 at 316 (WA CCA); Provocation: Stingel v The Queen (1990) 171 CLR 312; 97 ALR 1; 50 A Crim R 186 at 320, 6, 189–190; Riot: Boxer v The Queen (1995) 14 WAR 505; 81 A Crim R 299 (CCA);

[3.10000]

CRIMINAL DAMAGE

485

Unlawful carnal knowledge: Christophers v The Queen (2000) 23 WAR 106; 116 A Crim R 280; sub nom RFC v The Queen (2000) 116 A Crim R 280 (CA) at [61]; Violence: R v McCrossen [1991] Tas R 1 (Green CJ); R v Breeze (1999) 106 A Crim R 441 (Qld CA) at 445–446.

[3.9830] History The Queensland Code was drafted by Sir Samuel Walker Griffith (1845–1920), Chief Justice of Queensland (1893–1903) and subsequently the first Chief Justice of the High Court (1903–1919). He based his code on the Italian Penal Code 1888 and the New York Penal Code. Queensland passed its criminal code in 1899. It came into force 1 January 1901. Western Australia adopted the Griffith Code in 1902. Tasmania took the code drafted by Sir James Fitzjames Stephen (1829–1894). The code was passed in 1924. The Northern Territory Code came from a redraft of the Queensland Code, primarily by Sturgess QC of the Queensland Bar. It was passed in 1983 and came into force in 1984. It was recast in 2006 with great influence from the ACT. The Commonwealth Criminal Code Act 1995 was the work of the Model Criminal Code Officers Committee (MCCOC). The Australian Capital Territory Criminal Code 2002 is largely transcribed from the domestic provisions of the Commonwealth Criminal Code Act 1995. It also contains sections taken from the Australian Capital Territory Crimes Act. See also M R Goode, “Codification of the Australian Criminal Law” (1992) 16 Crim LJ 5–19; M R Goode, “Constructing Criminal Law Reform and the Model Criminal Code” (2002) 26 Crim LJ 15–174. Rt Hon Sir Harry Gibbs, “Queensland Criminal Code: From Italy to Zanzibar” (2003) 77 ALJ 232–239. In R v Chong and Toh (1989) 40 A Crim R 22 (FCA) there is an extensive examination of various criminal codes.

CRIMINAL DAMAGE The offence ................................................................................................................................ Legislation ................................................................................................................................. Ownership of property .............................................................................................................. Intent .......................................................................................................................................... Intent is subjective .................................................................................................................... The nature of the damage ......................................................................................................... Evidence .................................................................................................................................... Sentence .................................................................................................................................... Other references ........................................................................................................................

[3.10000] [3.10005] [3.10010] [3.10015] [3.10020] [3.10025] [3.10030] [3.10035] [3.10040]

[3.10000] The offence It is a criminal offence to destroy or damage property. There must be intent and no lawful excuse. The offence is created by legislation.

486

ROSS ON CRIME

[3.10005]

[3.10005] Legislation Qld: Criminal Code s 469; WA: Criminal Code s 443; Tas: Criminal Code s 267ff; NT: Criminal Code s 238ff; NSW: Crimes Act 1900 ss 194ff; Vic: Crimes Act 1958 s 196ff; SA: Criminal Law Consolidation Act 1935 s 84ff; ACT: Crimes Act 1900 s 115ff; NZ: Crimes Act 1961 s 269; Eng: Criminal Damage Act 1971.

[3.10010] Ownership of property A person can be convicted of damaging the person’s own property. In DPP’s Reference No 1 of 1998 [1989] VR 857; (1989) 40 A Crim R 461 (CA) the respondent arranged for a workmate to get rid of the respondent’s own car for insurance reasons. Held: the offence was made out. In R v Johnston (2006) 208 FLR 35 (ACT, Marshall J) the accused had set fire to his own house. His Honour convicted the accused of arson.

[3.10015] Intent In Pace v H (1994) 12 WAR 35; 73 A Crim R 330 (Scott J) a burglar had set fire to a meat wrapping in a refrigerator for no particular reason. He then closed the refrigerator door expecting the fire to go out. It did not. The house was engulfed and destroyed. The magistrate dismissed the wilful damage charge laid under s 443 of the Criminal Code (WA). On appeal by the prosecution, Scott J said (at 39; 334): It is clear that the intention behind the section was that the respondent in a situation such as this, would not be guilty of destroying or damaging the building unless he either intended to cause that result, or believed that it was more likely than not that such a result would be achieved. If that is the test then it is clear that his Worship, in reaching the conclusions that the respondent would only be guilty of wilful damage to the contents of the refrigerator and not the building, was correct in so concluding.

[3.10020] Intent is subjective Intent to damage property is subjective: Tziavrangos v Hayes (1991) 55 SASR 416; 53 A Crim R 220 (White J); Durward v Harding (1993) 61 SASR 283 (Perry J).

[3.10025] The nature of the damage In R v Zischke [1983] 1 Qd R 240 (CCA) the court in a joint judgment reviewed many of the old authorities at 245–246. Their conclusion was (at 246): What emerges from a review of the decisions is that “damage” may be held to have been done even though the injury to the article of property is not permanent but is remediable, if only by the

[3.10205]

CRIMINAL DEFAMATION

487

expenditure of money. Probably the formula that most nearly embraces all the attempts at definition is that a thing is damaged if it is rendered imperfect or inoperative: see “A” (a juvenile) v The Queen [1978] Crim L Rev 689. This would incidentally also serve to accommodate the decision in Samuels v Stubbs (1972) 4 SASR 200, where a conviction of damaging a policeman’s cap was sustained by proof that the respondent had kicked it three times and then jumped on it, thus producing what was described as a “temporary functional derangement” of the article in question.

In Hammond v The Queen [2013] NSWCCA 93 it was held that spitting on a stainless steel seat in police dock did not constitute the offences of criminal damage pursuant to Crimes Act 1900, s 195(1)(a).

[3.10030] Evidence There must not be evidence of more than one act of criminal damage for any one count: R v Suckling (1998) 104 A Crim R 59 (Vic CCA).

[3.10035] Sentence Watson v Police (2001) 118 A Crim R 114 (SA, Gray J): the value of the damage affects the appropriate sentence. Verschuren v The Queen (1996) 17 WAR 467; 91 A Crim R 1 (CCA): burning a stolen utility, 12 months imprisonment concurrent with offences on theft.

[3.10040] Other references Arson at [1.6200]; Duplicity at [4.5700]; Indictment at [9.1800]; andLatent ambiguity at [12.100].

CRIMINAL DEFAMATION The offence ................................................................................................................................ Legislation ................................................................................................................................. Injunction .................................................................................................................................. Other cases ................................................................................................................................ Private prosecutions ..................................................................................................................

[3.10200] [3.10205] [3.10210] [3.10215] [3.10220]

[3.10200] The offence Legislation creates the offence of criminal defamation. It is an offence to publish matter defamatory of a living person that is false without regard to whether it is true or false. The intent is to cause serious harm to the person or without any regard to whether there is serious harm. The legislation also contains defences. There are further defences under the Defamation Act 2005 which the parliment of every Australian jurisdiction has now passed. Victoria is the only jurisdiction that retains the offence at common law.

[3.10205] Legislation Legislation creates the offence and the defences. Qld: Criminal Code s 365; WA: Criminal Code s 345; Tas: Criminal Code ss 196–197; NT: Criminal Code ss 203–208;

488

ROSS ON CRIME

[3.10210]

NSW: Crimes Act 1900 s 529; Vic: Common law. Crimes Act 1958 s 320 (sentence); Wrongs Act 1958 ss 3–13; SA: Criminal Law Consolidation Act 1935 s 257; ACT: Crimes Act 1900 s 439; Eng: Libel Act 1843 ss 4 and 5 (criminal libel); Can: Criminal Code ss 297–317 (defamatory libel).

[3.10210] Injunction A person likely to suffer defamation can seek an injunction to stop publication: Australian Broadcasting Corporation v O’Neill (2006) 80 ALJR 1672; 229 ALR 457.

[3.10215] Other cases R v Lucas [1998] 1 SCR 439; 157 DLR (4th) 423; 123 CCC (3d) 97 (SCC). The legislation is not contrary to the Canadian Charter of Rights and Freedoms. The prosecution must prove intent. Gleaves v Deakin [1980] AC 477; [1979] 2 All ER 497; (1979) 69 Cr App R 469 (HL): a tendency to provoke a breach of the peace is not an element of the offence of criminal libel. R v Malatesta (1912) 7 Cr App R 273 (CA). Duffy v Baehnk [1993] SASC 3828 (4 March 1993, unreported) (Cox J).

[3.10220] Private prosecutions In Kerridge v Simmonds (1906) 4 CLR 253 the High Court held that it was not wrong to withdraw a private prosecution for criminal defamation. It was not a public offence. Failed private prosecutions include: Byrnes v Barry (2003) 151 ACTR 1 (Higgins CJ). And on appeal: Byrnes v Barry (2004) 150 A Crim R 471 (ACT CA); Williams v Spautz (1992) 174 CLR 509; 107 ALR 635; 61 A Crim R 431.

CROSS-EXAMINATION Meaning ..................................................................................................................................... The purposes ............................................................................................................................. Court’s power to limit cross-examination ................................................................................ Politeness ................................................................................................................................... Leading questions ..................................................................................................................... Cross-examination of the accused by the prosecutor .............................................................. Form of questions by defence .................................................................................................. Prosecutor’s forbidden questions .............................................................................................. The risks .................................................................................................................................... Ten hints on cross-examination ................................................................................................

[3.10400] Meaning Cross-examination is the questioning of an opponent’s witness.

[3.10405] The purposes A cross-examination has two purposes: 1. to elicit helpful evidence;

[3.10400] [3.10405] [3.10410] [3.10415] [3.10420] [3.10425] [3.10430] [3.10435] [3.10440] [3.10445]

[3.10405]

CROSS-EXAMINATION

489

2. to cast doubt on unhelpful evidence by showing that the witness is inaccurate or not creditworthy. In R v Lyttle [2004] 1 SCR 193; 235 DLR (4th) 244; 180 CCC (3d) 476 Major and Fish JJ, speaking for the whole court, began their joint judgment in the following way (at 196; 248; 480 [1]): Cross-examination may often be futile and sometimes prove fatal, but it remains nonetheless a faithful friend in the pursuit of justice and an indispensable ally in the search for truth. At times, there will be no other way to expose falsehood, to rectify error, to correct distortion or to elicit vital information that would otherwise remain forever concealed.

In R v NRC [1999] 3 VR 537 (CA) Winneke P said (at 551 [33]): Although there may be some who would take leave to question the broad statement made in Wigmore on Evidence, Vol 5, Chadbourn rev., (1974), para 1367, that cross-examination “is beyond any doubt the greatest legal engine ever invented for the discovery of the truth”, it is none the less a potent weapon for probing the credibility and reliability of an accuser’s version of events.

In Mechanical Inventions v Austin [1935] AC 346; [1935] All ER Rep 22 (HL) Lord Sankey (at 359; 27) approved what Lord Hanworth MR had said below: Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.

In Stack v Western Australia (2004) 29 WAR 526; 151 A Crim R 112 (WA CCA) Steytler J reviewed many of the authorities on the purpose, the right and the court’s power to limit cross-examination (at 545–550; 130–135 [75] – [105]). The purpose and limits of cross-examination are set out by Heydon J in Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309; 235 ALR 517; [2007] HCA 30 as follows: The powers of a cross-examiner 118. There were many respects in which the cross-examination of the appellant was in breach of ethical duties flowing from the position of the cross-examiner as counsel for the prosecution, and in breach of other ethical duties. For present purposes, what is important is that those breaches were also breaches of rules established by the law of evidence. While breaches of these evidentiary rules do not often result in appeals being allowed, while there are relatively few reported cases about them, and while writers have given less attention to them than to more fashionable or interesting subjects, there is no doubt that they exist and no doubt that they are well settled. 119. They are rules which necessarily developed over time once it came to be established that oral evidence should be elicited, not by means of witnesses delivering statements, and not through questioning by the court, but by means of answers given to a succession of particular questions put, usually by an advocate, and often in leading form. A cross-examiner is entitled to ask quite confined questions, and to insist, at the peril of matters being taken further in a re-examination which is outside the cross-examiner’s control, not only that there be an answer fully responding to each question, but also that there be no more than an answer. By these means a cross-examiner is entitled to seek to cut down the effect of answers given in chief, to elicit additional evidence favourable to the cross-examiner’s client, and to attack the credit of the witness, while ensuring that the hand of the party calling the witness is not mended by the witness thrusting on the cross-examiner in non-responsive answers evidence which that witness may have failed to give in chief. To this end a cross-examiner is given considerable power to limit the witness’s answers and to control the witness in many other ways. 120. “Cross-examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed upon the witness”. [55] Hence the powers given to cross-examiners are given on conditions, and among the relevant conditions are those which underlie the rules of evidence contravened in this case.

490

ROSS ON CRIME

[3.10405]

Offensive questioning 121. The most striking characteristic of the cross-examination in this case was its wild, uncontrolled and offensive character. 122. A prosecutor must “conduct himself with restraint and with due regard to the rights and dignity of accused persons. A cross-examination must naturally be as full and effective as possible, but it is unbecoming in a legal representative - especially in a prosecutor - to subject a witness, and particularly an accused person who is a witness, to a harassing and badgering cross-examination”. [56] One reason why there is a rule prohibiting this type of questioning was put thus by Wigmore [57]: An intimidating manner in putting questions may so coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to such demeanor and utterance that the impression produced by his statements does not do justice to his real testimonial value. Another was advanced by Lord Langdale MR when he deprecated “the confusion occasioned by cross-examination, as it is too often conducted”, for it tended to “give rise to important errors and omissions” [58]. Yet another was suggested by an American judge: “a mind rudely assailed, naturally shuts itself against its assailant, and reluctantly communicates the truths that it possesses”. [59] 123. In this case the questioning was conducted “without restraint and without the courtesy and consideration which a witness is entitled to expect in a Court of law”, and, as a result, it was “indefensible” [60]. The cross-examination was improper because it was “calculated to humiliate, belittle and break the witness” [61]. Its tone “was often sarcastic, personally abusive and derisive” [62]. It resorted to remarks “in the nature of a taunt” [63]. It amounted to “bullying, intimidation, personal vilification or insult”, none of which is permissible [64]. 124. The cross-examination not only offended these common law rules. Many of the questions were annoying, harassing, intimidating, offensive or oppressive, contrary to s 21 of the Evidence Act 1977 (Q)[65]. Comments 125. The cross-examination also contravened the rules of evidence in that many things said by the cross-examiner were not questions at all. To adopt the language of the Ontario Court of Appeal, counsel for the prosecution infringed the rules of evidence when he “regularly injected his personal views and editorial comments into the questions he was asking” [66]. One vice of comments made in the course of questioning is that although they may be potentially damaging in the jury’s eyes, they are not questions, and thus the witness has no opportunity of dealing with the sting in the comments. Another vice is that the jury may regard counsel as a person of special knowledge and status and therefore pay particular regard to the comments - particularly where it is counsel for the prosecution who chooses “to throw the weight of his office” into the case [67]. The time for comments, at least legitimate ones - for disparaging comments based on evidence or the lack of it can be legitimate - is the time of final address [68]. “Statements of counsel’s personal opinion have no place in a cross-examination”. [69] The role of prosecution counsel in the administration of justice should not be “personalized” [70]. Their own beliefs should not be “injected” into the case [71]. Thus in R v Hardy [72] junior counsel (the future Gibbs J) for one of the accused asked a witness who had attended certain allegedly seditious meetings: “Then you were never at any of those meetings but in the character of a spy?” The future Lord Ellenborough CJ, appearing for the prosecution, objected to this line of questioning. Eyre LCJ said to defence counsel: [Y]our questions ought not to be accompanied with those sort of comments: they are the proper subjects of observation when the defence is made. The business of a cross-examination is to ask to all sorts of acts, to probe a witness as closely as you can; but it is not the object of a cross-examination, to introduce that kind of periphrasis as you have just done. After junior counsel for the accused sent for leading counsel (the future Lord Erskine LC), and the point was debated further, Eyre LCJ upheld the objection [73]: I think it is so clear that the questions that are put are not to be loaded with all of the observations that arise upon all the previous parts of the case, they tend so to distract the

[3.10405]

CROSS-EXAMINATION

491

attention of every body, they load us in point of time so much, and that that is not the time for observation upon the character and situation of a witness is so apparent, that as a rule of evidence it ought never to be departed from ... 126. Comments are particularly objectionable when they are sarcastic or insulting. They are even more objectionable when they are statements indicating the personal belief of prosecution counsel in the credibility or guilt of the accused: that is not something to be said in address, and a fortiori is not something to be said during questioning. Compound questions 127. Partly by reason of the interspersing of both comments and questions between the accused’s answers, and partly by reason of other defects in the form of the questions, some “questions” asked during this cross-examination were not single questions, but were compound questions. “A compound question simultaneously poses more than one inquiry and calls for more than one answer. Such a question presents two problems. First, the question may be ambiguous because of its multiple facets and complexity. Second, any answer may be confusing because of uncertainty as to which part of the compound question the witness intended to address.” [74] But compound questions have additional vices. It is unfair to force a witness into the position of having to choose which questions in a compound question to answer and in which order. Cross-examiners are entitled, if they can, to frame questions so as to seek a particular answer - either “Yes” or “No”. Even though the answers desired by the cross-examiner to a compound question may be all affirmative or all negative, the witness may wish to answer to some affirmatively and some negatively. To place witnesses in the position of having to reformulate a compound question and answer its component parts bit by bit is unfair to them in the sense that it prevents them from doing justice to themselves. Some ″questions″ asked in this case contained at least four questions within them. Cutting off answers before they were completed 128. On occasion during his cross-examination the accused’s answers were cut off either by a comment or by some further question even though it was clear that there was more which the accused wished to say. “Evidence should ordinarily be given without interruption by counsel.”. [75] The cutting off of an answer by a further question, though always to be avoided as far as possible, can happen innocently when a questioner is pursuing a witness vigorously and the witness pauses in such a fashion as to suggest that the answer is complete; it can happen legitimately if a witness’s answer is non-responsive. But very few of the interruptions here can be explained away on these bases. They were usually interruptions of responsive answers, often by offensive observations. The rule against the cutting off of a witness’s answer follows from the encouragement which the law gives to short, precise and single questions. It is not fair to ask a question which is disparaging of or otherwise damaging to a witness and to cut off an answer which the cross-examiner does not like. The right of a cross-examiner to control a witness does not entail a power to prevent the witness from giving any evidence other than that which favours the cross-examiner’s client. Questions resting on controversial assumptions 129. The cross-examiner on occasion alleged that the accused was inventing evidence when in fact the proposition supposedly invented corresponded with evidence given by the complainant in the prosecution case. The cross-examiner also put implicitly unfounded assertions that the accused was being evasive. And the cross-examiner, in putting a question about the accused’s dishonesty, wrapped up in it an assumption that there had been an earlier and different piece of dishonesty. 130. A question put in chief which assumes a fact in controversy is leading and objectionable, “because it affords the willing witness a suggestion of a fact which he might otherwise not have stated to the same effect”. [76] While leading questions in the cross-examination of non-favourable witnesses are not intrinsically objectionable, “[w]itnesses should not be cross-examined on the assumption that they have testified to facts regarding which they have given no testimony. Such questions have a tendency to irritate, confuse and mislead the witness, the parties and their counsel, the jury and the presiding judge, and they embarrass the administration of justice”. [77] This is because a leading question put in cross-examination which assumes a fact in controversy, or assumes that the witness has in chief or earlier in cross-examination given particular evidence which has not been given, “may by implication put into the mouth of an unwilling witness, a statement which he never intended to make, and thus incorrectly attribute to him testimony which

492

ROSS ON CRIME

[3.10405]

is not his”. [78] A further vice in this type of questioning is: “An affirmative and a negative answer may be almost equally damaging, and a perfectly honest witness may give a bad impression because he cannot answer directly, but has to enter on an explanation.” [79] Questions of this character are misleading and confusing, within the meaning of both the statutory and common law rules. Argumentative questions 131. Another vice in the questioning in this case stemmed from the fact that some of the questions and observations of counsel for the prosecution did not seek to elicit factual information, but rather provided merely an invitation to argument [80]. Examples include: “That doesn’t tell us much, does it?”, “Look, I’m giving you every opportunity?”, “I’ll shift to another topic whenever you’re prepared to finish it”″, and “We want honesty at all times, of course”. In form these remarks seemed apt to trigger a debate about how much the accused’s hearers had been told, whether he was being given every opportunity, whether he had finished a topic, and whether he was being honest. The vice in a particular type of argumentative cross-examination was described thus by the English Court of Appeal: [81] One so often hears questions put to witnesses by counsel which are really of the nature of an invitation to an argument. You have, for instance, such questions as this: “I suggest to you that …” or “Is your evidence to be taken as suggesting that …?” If the witness were a prudent person he would say, with the highest degree of politeness: “What you suggest is no business of mine. I am not here to make any suggestions at all. I am here only to answer relevant questions. What the conclusions to be drawn from my answers are is not for me, and as for suggestions, I venture to leave those to others.” An answer of that kind, no doubt, requires a good deal of sense and self-restraint and experience, and the mischief of it is, if made, it might very well prejudice the witness with the jury, because the jury, not being aware of the consequences to which such questions might lead, might easily come to the conclusion (and it might be true) that the witness had something to conceal. It is right to remember in all such cases that the witness in the box is an amateur and the counsel who is asking questions is, as a rule, a professional conductor of argument, and it is not right that the wits of the one should be pitted against the wits of the other in the field of suggestion and controversy. What is wanted from the witness is answers to questions of fact. Like several other of the rules discussed above, the rule against argumentative questioning rests on the need not to mislead or confuse witnesses. The effect of the rules on the value of testimony 132. It is not unique in the law of evidence to find that the more closely the rules for admissibility are complied with, the greater the utility of the testimony from the point of view of the party eliciting it. It is certainly the case in this field. The rules permit a steady, methodical destruction of the case advanced by the party calling the witness, and compliance with them prevents undue sympathy for the witness developing. It is perfectly possible to conduct a rigorous, testing, thorough, aggressive and determined cross-examination while preserving the most scrupulous courtesy and calmness. From the point of view of cross-examiners, it is much more efficient to comply with the rules than not to do so. Role of the judge 133. It was open to counsel for the accused to object to the questions criticised above, but there was no objection. He could well have judged that it was prudent not to do so. However, the permissibility of questioning of the type criticised in this case does not depend solely on whether there are objections from counsel representing the party calling the witness. “The failure of counsel to object does not … give Crown counsel carte blanche …” [82]. Trial judges have a responsibility independently of objections to prevent this type of questioning being employed [83]. “If counsel begin to misbehave [the trial judge] must at once exert his authority to require the observance of accepted standards of conduct.” [84] Here the trial judge occasionally intervened to control the witness’s answers, but never to control counsel’s questions. Miscarriage of justice 134. While the breaches of exclusionary rules discussed above were capable of placing the accused in an unfair position, taken as a whole the breaches generated neither unfairness nor a

[3.10410]

CROSS-EXAMINATION

493

miscarriage of justice. That is so partly because, despite interruptions, the accused was able to get his version of events across. It is so partly because at least the questions (as distinct from the comments) were not irrelevant and hence did not influence the jury towards an illogical approach to the issues. It is so partly because the uncontrolled ineptness of the questioning was such as to attract sympathy to the accused. Evidently designed to disparage and humiliate the accused, the questioning is likely to have rehabilitated him in the jury’s eyes as he struggled with success towards advancing an account of the events to which the questioning related. The very egregiousness of the conduct generated safeguards against the dangers inherent in it. “[T]he adoption of an unfair conduct in cross-examination has often an effect repugnant to the interests which it professes to promote.” [85] Here the overly aggressive and unfair approach of the cross-examiner was one which was likely to have generated sympathy in the jury for the accused. Even if it did not, the accused showed himself capable of pointing out the defects of the cross-examination in a dignified way, and overcoming them. 135. The disapproval of the conduct of this trial to be found in all the judgments of this Court may discourage and prevent its repetition. But it is not the function of the Court to seek to discourage and prevent repetition by allowing an appeal unless there has been a miscarriage of justice. Despite that fact, dismissal of the appeal is not to be taken as complaisance in the conduct examined.

[3.10410] Court’s power to limit cross-examination A judge can limit cross-examination to prevent abuse of the right to cross-examine due to irrelevance: R v Kranz (1991) 53 A Crim R 331 (Qld CCA) at 339–341; R v Higgins (1994) 71 A Crim R 429 at 442 (Vic CCA). However, a judge should allow counsel some leeway. In Wakeley v The Queen (1990) 64 ALJR 321; 93 ALR 79 the High Court said in a joint judgment (at 324; 86): The limits of cross-examination are not susceptible of precise definition, for a connection between a fact elicited by cross-examination and a fact in issue may appear, if at all, only after other pieces of evidence are forthcoming. Nor is there any general test of relevance which a trial judge is able to apply in deciding, at the start of a cross-examination, whether a particular question should be allowed. Some of the most effective cross-examinations have begun by securing a witness’ assent to a proposition of seeming irrelevance. Although it is important in the interests of the administration of justice that cross-examination be contained within reasonable limits, a judge should allow counsel some leeway in cross-examination in order that counsel may perform the duty, where counsel’s instructions warrant it, of testing the evidence given by an opposing witness.

Further: It is the duty of counsel to ensure that the discretion to cross-examine is not misused. That duty is the more onerous because counsel’s discretion cannot be fully supervised by the presiding judge. Of course, there may come a stage when it is clear that the discretion is not being properly exercised. It is at that stage that the judge should intervene to prevent both an undue strain being imposed on the witness and an undue prolongation of the expensive procedure of hearing and determining a case. But until that stage is reached – and it is for the judge to ensure that the stage is not passed – the court is, to an extent, in the hands of cross-examining counsel.

In R v Maslen (1995) 79 A Crim R 199 (NSW CCA) Hunt CJ at CL said (at 204): The purpose of cross-examination as to credit is to show that a witness ought not to believed on his oath, and the test of the admissibility of cross-examination for that purpose is whether it tends logically and rationally to weaken confidence in his veracity or in his trustworthiness as a witness of truth: Hawes (1994) 35 NSWLR 294 at 301.

Further: Subject to the usual parameters, trial judges should be careful not to limit cross-examination upon credit where the credit of the witness is seriously in issue: Wakeley (1990) 64 ALJR 321 at 325; Aldridge (1990) 20 NSWLR 737; 51 A Crim R 281 at 742 (NSWLR), 285-286 (A Crim R).

494

ROSS ON CRIME

[3.10415]

[3.10415] Politeness A cross-examination can be polite without losing its force. In R v Thompson [2006] 2 NZLR 577 (CA) the court said (at 588 [68]): Aggressive cross-examination will become improper when it is calculated to humiliate, belittle and break the witness (Peter Brauti, “Improper Cross-Examination” (1998) 40 Criminal Law Quarterly 69, p 95).

In Mechanical & General Inventions Co Ltd v Austin [1935] AC 346; [1935] All ER Rep 22 (HL), Lord Sankey (at 359; 27) approved what Lord Hanworth MR had said below: [T]he cross-examination in the present case … at times … failed to display that measure of courtesy to the witness which is by no means inconsistent with a skilful, yet powerful, cross-examination.

[3.10420] Leading questions There is no absolute right to put leading questions. In Mooney v James [1949] VLR 22 Barry J said (at 28): Usually it will be the duty of the Judge to prevent counsel for the party who calls the witness from putting questions that suggest the desired answers, and to permit counsel for the opposing party to put such questions. But in his discretion, which must be exercised upon judicial grounds, the Judge, if he thinks the interests of justice require it, may permit questions which suggest the desired answers to be put in examination in chief, and may forbid them in cross-examination.

Approved: R v Higgins (1994) 71 A Crim R 429 at 442 (Vic CCA); R v Coventry (1997) 7 Tas R 199; 98 A Crim R 46 at 202, 48 (Slicer J). See also R v Thynne [1977] VR 98 (CCA) which referred to a course adopted in R v Neal, Regos and Morgan [1947] ALR 616, where Dixon J, without declaring a witness to be hostile, granted limited leave to cross examine.

[3.10425] Cross-examination of the accused by the prosecutor Generally In R v Chin (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147 Dawson J said (at 686; 13; 158): If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case: see Reg v Kane (1977) 65 Cr App R 270. There are, of course, considerations which arise in the disallowance for this reason of questions put during cross-examination which do not arise upon an application by the prosecution to reopen its case. Cross-examination, including the cross-examination of an accused person by the prosecution, may extend to all matters in issue, whether or not they were the subject of evidence in chief by the witness. Thus, apart from any unfairness which may arise from a failure to observe the general requirement that the prosecution should, during the conduct of its case, lead all the available evidence upon which it wishes to rely, there is no reason why it should not lead in cross-examination evidence which relates solely to its own case.

[3.10435]

CROSS-EXAMINATION

495

And later (at 686–687; 13–14; 158–159): And it must always be remembered in this context that there may be matters peculiarly within the knowledge of an accused which the prosecution, although it is not able itself to call the accused as a witness, cannot be precluded from establishing in cross-examination if the accused goes into the witness box even though they be matters which support the prosecution case.

No reference to excluded document In R v Alexander and McKenzie (2002) 6 VR 53 (CA) the prosecutor at trial had cross-examined Mr Alexander on a confession in an earlier case which the present trial judge had excluded. On appeal, the court upheld this ground. Winneke P said in conclusion (at 76 [46]): The questions which were asked were selective and were being drawn from answers made to questions which had, of course, nothing to do with the matters in issue. In my view the procedure adopted was both impermissible and unfair. Again I would uphold these grounds.

In R v Ram [2007] 3 NZLR 322 (CA) the prosecutor cross-examined the accused on an excluded confession. Appeal allowed.

No reference to the statement or confession of another A prosecutor cannot cross-examine an accused on any statement other than his own. Any cross-examination on another’s document must not identify the document by making no reference to the source: R v McKenzie [2004] 1 NZLR 181 (CA); R v Windlass (1988) 89 Cr App R 258. See also Browne v Dunn at [2.3900]; Character at [3.1300]; and Confession (Confession of another) at [3.5345].

[3.10430] Form of questions by defence The witness should be asked questions of fact. It is wrong to break this rule by asking “I put it to you …” or “I suggest to you …”. Nor should the defence advocate say “My client will say …” or “My instructions are …”. See also Browne v Dunn at [2.3900].

[3.10435] Prosecutor’s forbidden questions A prosecutor must not ask an accused whether a complainant has any motive to lie: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 (HC). Nor should a prosecutor ask the accused if any witness is lying whose evidence is opposed to that of the accused. In R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA) the court said in a joint judgment (at 296–297; 8): The fair trial of the appellant was further compromised by the asking by the Crown prosecutor of a number of inappropriate questions. These included: “If you are correct then Miss Purkiss can’t be correct can she?” “Neither can her sister Tanya Purkiss?” “So either he (your barrister) is incompetent or you’re telling a lie?” “All these other witnesses are telling lies? and” “Well the doctor says that. So is the doctor telling the truth?”

496

ROSS ON CRIME

[3.10440]

There were also some comments interspersed with lengthy questions such as: That’s why its very hard to accept your story … The resort by counsel to questions which invite a witness to answer by reference to comment on the truthfulness of other witnesses is to be deprecated. On a level of professional practice, it is regarded as “not a proper question” (W HarrisonLegal Profession in Queensland (2nd ed), p 83). The error however goes beyond one of professional practice; such questions are actually inadmissible (North Australian Territory Co v Goldsbrough, Mort & Co [1893] 2 Ch D 381 at 383 per Lord Esher MR). The literal object of such a question is to obtain an opinion whether someone else is a liar, and that of course is not an issue in the case or a matter for any other witness to express an opinion, it is a matter for the judge or jury. It is also unfair, because it forces the honest witness into a recrimination and seeks to rely upon the natural reluctance of a person to defame another. It is also a form of bullying, using unfair means to persuade a person to retract his or her evidence. Such questions are inadmissible and we agree with Professor Harrison’s view that they are improper. Regrettably the practice of asking such questions is by no means uncommon. It should cease.

Other cases R v Bajic (2005) 12 VR 155; 154 A Crim R 196 (CA) per Eames JA (at 169–171; 210–212 [73] – [82] with whom the other judges agreed. R v Buckley (2004) 10 VR 215; 149 A Crim R 122 (CA) per Nettle JA (at 125–126; 218 [9]) with whom the other judges agreed. R v Rich (1998) 102 A Crim R 165 at 168–169 (NSW CCA).

[3.10440] The risks “In addressing a Jury, you may sometimes talk without having anything to say, and no harm will come of it. But, in cross-examination, every question that does not advance your case injures it. If you have not a definite object to attain, dismiss the witness without a word. There are no harmless questions here; the most apparently unimportant may bring destruction or victory. If the summit of the orator’s art has been rightly defined to consist in knowing when to sit down, that of an Advocate may be described as knowing when to keep his seat”: Edward W Cox, The Advocate (London, 1852) p 433.

[3.10445] Ten hints on cross-examination 1. Use simple English. 2. Keep questions short. One issue only in each question. 3. Be polite. Don’t argue with the witness, less still with the bench or with your opponent. 4. Keep control over the witness. Leading questions are permitted but use non-leading questions where possible such as where you are sure of the answer, or where the answer does not matter. Never ask a question beginning “how”, “when”, “where”, “why”, “who” unless you are sure of the answer. 5. Watch the witness and listen to the answers. Tailor the rest of your crossexamination accordingly. 6. Where an inference your way is clearly open, don’t ask the witness to agree with it. The witness may disagree giving good reasons. The question is unnecessary and is one too many. 7. Comply with the rule in Browne v Dunn (1893) 6 R 67. Never say “I put it to you” or “I suggest to you” or “My client will say”. Ask questions which call for answers of fact.

[3.10600]

CROSS-EXAMINATION ON DOCUMENTS

497

8. Learn by heart the rules of cross-examination on documents. Until then you can safely use a document as if it were inadmissible by asking five questions: • look at this document (handing it to the witness); • don’t tell us what it is; • read it yourself; • hand it back; • do you still stick to the evidence you gave on … 9. If it suits your purpose: • draw out every damaging detail; • turn one lie into a tissue of lies; • cut off the chance of escape, then put the contradictions one by one; • set one witness against another. 10. Finish on a good answer or a series of them. See also JH Munkman, The Technique of Advocacy (Stevens & Sons Ltd, London, 1951) Chs 5 and 6; R Du Cann, The Art of the Advocate (Penguin Books, 1994) Chs 6, 7 and 8; David Ross QC, Advocacy (Cambridge University Press, 2nd ed 2007) Chs 5, 6, 7 and 8; David Ross QC, “Techniques and duties in cross-examination” (2005) 27 Aust Bar Rev 84-104; Browne v Dunn at [2.3900]; Character at [3.1300]; and Credit at [3.9600].

CROSS-EXAMINATION ON DOCUMENTS Refreshing memory in chief ..................................................................................................... Defence call for documents ...................................................................................................... Purpose of a call for documents .............................................................................................. Essence ...................................................................................................................................... Evidential effect of documents tendered after call .................................................................. Uniform Evidence Acts ............................................................................................................ Wrong tender ............................................................................................................................. Discretion to exclude ................................................................................................................

[3.10600] [3.10605] [3.10610] [3.10615] [3.10620] [3.10625] [3.10630] [3.10635]

[3.10600] Refreshing memory in chief In Senat v Senat [1965] P 172; [1965] 2 WLR 981; [1965] 2 All ER 505 (PDA) Sir Jocelyn Simon said (at 177; 985; 512): Where a document is used to refresh a witness’s memory, cross-examining counsel may inspect that document in order to check it, without making it evidence. Moreover he may cross-examine upon it without making it evidence provided that his cross-examination does not go further than the parts which are used for refreshing the memory of the witness: Gregory v Tavernor (1833) 6 Car & P 280. But if a party calls for and inspects a document held by the other party, he is bound to put it in evidence if he is required to do so: Wharam v Routledge (1805) 5 Esp 235.

498

ROSS ON CRIME

[3.10605]

Applied: R v Harrison [1966] VR 72 at 76 (CCA); R v McGregor [1984] 1 Qd R 256; (1984) 11 A Crim R 148 (CCA); R v Moore (1995) 77 A Crim R 577 at 582 (NSW CCA); De Bono v Neilsen (1996) 88 A Crim R 46 at 53 (Vic, Coldrey J); J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd (2001) 10 Tas R 26 (at 31 [10]) (Slicer J).

[3.10605] Defence call for documents In court the defence can call for a document from the prosecution without fear of the prosecution requiring its tender in the following circumstances. 1. Where the document has been used to refresh the memory of the witness: (a) the cross-examiner is entitled to see the document: Owens v Edwards (1983) 77 Cr App R 191 at 194. In R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 (CCA), Zeeman J said (at 30; 176): The law has recognised that the testing of the evidence of a witness who has refreshed his or her memory from a document ought to be facilitated by entitling the cross-examiner to call for the production of the document. As Burbury CJ and Neasey J said in Mather v Morgan [1971] Tas SR 192 at 206 in support of that rule: “in the interests of justice cross-examining counsel should be able to check the source of the witness’s memory stimulus, and test the reliability of the witness’s oral testimony by reference to it”.

(b) the witness can be cross-examined on that part of the document used to refresh memory: R v Pachonic [1973] 2 NSWLR 86. Lee J ruled (at 87–88): There is authority which I think should be followed that it is proper in many circumstances for a prosecution witness to refresh his memory, out of court, from a document made contemporaneously with or soon after the events about which he is giving evidence: R v Richardson [1971] 2 QB 484. It is clear that, if a document is in court and is called for then it must be produced, and if no question of privilege arises, the party calling for it may inspect it: Ex parte Dustings; Re Jackson (1967) 87 WN (Pt 1) (NSW) 98 at 104 per Walsh JA; Mather v Morgan [1971] Tas SR 192 [I]t does seem to me that, notwithstanding the lack of authority on the point there is no basis which can be urged as to why there should be a distinction between the practice which applies when the witness refreshes his memory in the witness box as compared with the case where he does it outside court before coming into court.

In Owen v Edwards (1983) 77 Cr App R 191 McNeill J, giving the judgment with which Nolan J agreed, said (at 194): The whole tenor of authority appears to indicate that the defence is entitled to see such documents, including notebooks and statements, from which memory has been refreshed subject, of course, only to the well-established rules that a witness can be cross-examined having refreshed his memory upon the material in his notebook from which he has refreshed his memory without the notebook being made evidence in the case, whereas if he is cross-examined beyond those

[3.10615]

CROSS-EXAMINATION ON DOCUMENTS

499

limits into other matters, the cross-examiner takes the risk of the material being evidence and the document being exhibited and therefore available for use by the fact finding tribunal.

2. Where the document ought to have been given to the defence before it was called for: R v Weatherstone (1968) 12 FLR 14 (ACT, Smithers J).

[3.10610] Purpose of a call for documents In R v Moore (1995) 77 A Crim R 577 (NSW CCA) Hunt CJ at CL (with whom the others agreed) said (at 583): The function of such a call for a document is to obtain possession of the document in order to put it in evidence or, if not produced, to provide a foundation for the admissibility of secondary evidence. (I do not intend here to exhaust the possibilities.) If it is not intended to put the document into evidence, it is unnecessary to make such a call. Section 12 of the Evidence Act 1898 (NSW) permits a party who seeks the production of a document by any person who is in court (including a legal representative) to obtain an order that it be produced as if on subpoena. The document must be produced to the court, and the judge may then grant that party access to the document (subject to the usual considerations in relation to documents produced on subpoena). That is all that the solicitor for the appellant needed to have done in this case. If he had done so, the present problem would not have occurred. That problem has arisen only because the solicitor unnecessarily made a “formal” call for the production of that document. In the days when most civil litigation in the Supreme Court on the common law side was conducted with juries, it was regarded by many as a measure of the skill of counsel for the plaintiff that he or she could force the defendant into evidence by requiring the tender of documents used in cross-examination, and thereby lose to the plaintiff the benefit of the last address to the jury. The battle was one of tactics, and those of us at the Common Law Bar at the time enjoyed the battle. It is not, however, a battle which I would expect to see waged by a Crown Prosecutor in a criminal trial, when the consequence of success is not to obtain the last address to the jury but the admission into evidence of material which will usually be of unnecessary prejudice to the accused.

[3.10615] Essence 1. The basic rule of the common law is that a witness cannot be asked any question about the contents of a document unless it is first shown to the witness and put in evidence by the cross-examiner as part of his case: Queen’s Case (1820) Brod & Bing 284; 22 RR 662; 129 ER 976. 2. The harshness of Queen’s Case was eased by the Uniform Evidence Acts s 43; Evidence Act 1977 (Qld) s 19; Evidence Act 1906 (WA) s 21; Evidence Act (NT) s 20; Evidence Act 1929 (SA) s 29; Evidence Act 1971 (ACT) s 62; Evidence Act 2006 ((NZ)) s 96. 3. A witness may be cross-examined about a previous written statement or evidence without the document being shown to the witness. There is no obligation to tender: see Evidence Acts (above). 4. The document or evidence must be, by the legislation, “relative to the subject matter”. “Relative” means relevant: R v Musolino (2003) 86 SASR 37; 139 A Crim R 488 at 51; 201 [110]. Otherwise the finality rule applies: Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 at [37] – [56] per McHugh J. 5. Bias or corruption can be the subject of cross-examination on a document: Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 at [87] per McHugh J. 6. The Evidence Acts do not make an inadmissible document admissible: R v Musolino (2003) 86 SASR 37; 139 A Crim R 488 at 50; 201 [108].

500

ROSS ON CRIME

[3.10615]

7. The document must be in court or be capable of being produced: R v Anderson (1929) 21 Cr App R 178. 8. By the Evidence Acts, or by inherent or implied power, a trial judge has the discretion to require the production of a document and its tender: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 (FC) at 509 per Jordan CJ; Wood v Desmond (1958) 78 WN 65 at 67; Hrysikos v Mansfield (2002) 5 VR 485; 135 A Crim R 179; 37 MVR 408 (CA). 9. If R v Jack (1894) 15 LR (NSW) 196 be the law, a witness cannot be handed a document and asked whether the witness still sticks to earlier evidence unless the cross-examiner is prepared to undertake to put the document in evidence. Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 (FC) at 509. R v Fraser (1995) 65 SASR 260; 85 A Crim R 385 at 265–269; 390–391 per Doyle CJ. J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd (2001) 10 Tas R 26 at 33 [15] (Slicer J). 10. A witness can be cross-examined about an inadmissible document eg of which the witness was not the author, but only asked if the witness still sticks to the evidence. R v Orton [1922] VLR 469 at 470 (Cussen J). R v Bedington [1970] Qd R 353 at 359–360. Alister v The Queen (1984) 154 CLR 404; 50 ALR 41 at 442–443 (CLR) per Wilson and Dawson JJ. In this even the document must not be identified, and if the witness is not the author, the nature of the document or its contents must not be referred to: R v Sehan Yousry (1914) 11 Cr App R 13 at 18; R v Orton [1922] VLR 469 and Alister v The Queen (1984) 154 CLR 404; 50 ALR 41; R v Trotter (1982) 7 A Crim R 8 at 22 (Vic CCA). 11. If the contents of a document, though not made by the witness, are within the personal knowledge of the witness, the witness can be asked to admit the contents of the document: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 (FC) at 509; R v Cooper (1985) 82 Cr App R 74 at 78–79. But though such questions may be asked, the witness need not answer unless the document is produced: R v Banks (1916) 12 Cr App R 74 at 75–76. 12. Unless the witness is a party, the document can only be used “for the purpose of testing the witness’s present evidence”: Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 (FC). 13. If the attention of a witness is taken to the inconsistent part and the witness refuses to acknowledge the inconsistency, the document can be tendered: Evidence Acts.

[3.10620]

CROSS-EXAMINATION ON DOCUMENTS

501

14. If a witness acknowledges the inconsistency, the document is not admissible: R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13 at 317 [57] per McHugh J. 15. If a witness refreshes memory from part of a document, counsel can cross-examine on that part without fear. If the cross-examination is on other parts, the cross-examiner may be required to tender the document: Senat v Senat [1965] P 172; [1965] 2 WLR 981; [1965] 2 All ER 505; R v Harrison [1966] VR 72 at 75–76; Hrysikos v Mansfield (2002) 5 VR 485; 135 A Crim R 179; 37 MVR 408 at 505 (VR), 199 (A Crim R), [75] . 16. Opposing counsel can require the tender of the document during cross-examination: Hatziparadissis v GFC Manufacturing Co [1978] VR 181 at 183 (Harris J); R v Trotter (1982) 7 A Crim R 8 at 19 (Vic CCA). And possibly at any time before the end of the case: R v Vella (2006) 14 VR 592; 167 A Crim R 66 (CA); R v Foggo; Ex parte Attorney-General (Qld) [1989] 2 Qd R 49; Alexander v Manley (2004) 29 WAR 194; R v McGregor [1984] 1 Qd R 256; (1984) 11 A Crim R 148 (CCA); at 265, 152–153 J Boag & Son Brewing Ltd v Bridon Investments Pty Ltd (2001) 10 Tas R 26 at 33 [15] (Slicer J). 17. Cross-examination by counsel on parts of a privileged document which counsel has in possession may waive privilege of the whole document: Burnell v British Transport Commission [1956] 1 QB 187; [1955] 3 All ER 822 at 190 (QB) per Denning LJ. But such a waiver depends on the circumstances: Attorney-General (NT) v Maurice (1986) 161 CLR 475 at 497–498 per Dawson J. Taken from David Ross QC, “Techniques and duties in cross-examination” (2005) 27 Aust Bar Rev 84 at 94-96 [12]. See also MG McHugh QC, “Cross-examination on documents” (1985) 1 Aust Bar Rev 51-68; DK Malcolm QC, “Cross-examination on documents” (1986) 2 Aust Bar Rev 267-278; C Arnold, “Use of documents in courts” (1991) 7 Aust Bar Rev 170-182; David Ross QC, Advocacy (Cambridge University Press, 2nd ed 2007) Ch 8.

[3.10620] Evidential effect of documents tendered after call Common law A document called for and inspected must be tendered if the producing party requires it. The document may be otherwise inadmissible. Walker v Walker (1937) 57 CLR 630 was a maintenance case. One of the issues was the husband’s income. The wife gave evidence of the salary and said she “got that information

502

ROSS ON CRIME

[3.10625]

by letter”. The defence called for the letter. A person who had inquired into the husband’s financial affairs had written it to the wife’s father. It was tendered over objection. Dixon J said (at 636): [T]he party calling for a document and inspecting it must, if require, put it as part of his case; it is evidence tendered by him. When it is in evidence as part of the proof adduced by him, its probative value must be dealt with as a matter of fact. If the matters which are contained in the document are completely irrelevant to the issues then, of course, they must be thrown out of consideration. But if it contains statements of fact in relation to relevant matters, then it becomes a medium of proof to which such weight may be attached as circumstances warrant. Whether in the end it tells in favour of the party who insisted it should be put in or in favour of the party calling for it will, of course, depend on the facts of the case, but the purpose of the rule is to enable the party producing the document to have it put in evidence so that he may rely upon it.

Senat v Senat [1965] P 172; [1965] 2 WLR 981; [1965] 2 All ER 505 (PDA, Sir Jocelyn Simon) was a divorce case on the ground of the husband’s adultery. One woman said that the place of intercourse was written in her address book. The husband’s counsel called for it and then was required to tender it. (It was held nevertheless that the address book was not corroboration since the witness could not corroborate herself.) In B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 Brennan J, citing Walker v Walker (1937) 57 CLR 630, said (at 607; 437; 231): Indeed, a party may be required to tender evidence which he does not wish to tender for any purpose and, once tendered, it becomes a medium of proof of matters to which it is relevant.

[3.10625] Uniform Evidence Acts The principle in Walker v Walker (1937) 57 CLR 630 does not apply in jurisdictions under Uniform Evidence Acts s 35 .

[3.10630] Wrong tender In a criminal case a document wrongly tendered because it was not called for will cause a resultant conviction to be set aside: R v Trotter (1982) 7 A Crim R 8 at 23 (Vic CCA).

[3.10635] Discretion to exclude The trial judge has an overriding discretion to exclude. In R v Moore (1995) 77 A Crim R 577 (NSW CCA) Hunt CJ at CL said (at 584): The usual consequence of the production of a document in answer to a formal call, where the party calling for the document then inspects it, is that such party is bound to tender the document if required to do so by the party producing it. There is nevertheless suggested to be a general discretion available to the judge – whether the trial be civil or criminal – as to whether the party calling for the document in those circumstances should be held to that obligation. Whether or not that is so in civil cases, such a discretion is certainly available to the judge in a criminal trial, upon the basis that the probative value of the evidence provided by the document is outweighed by its prejudicial effect.

See also R v Britton [1987] 1 WLR 539; [1987] 2 All ER 412; 85 Cr App R 14 at 543–544, 416, 19. Discretion at [4.3200]; and Re-examination at [18.2000].

[3.10805]

CULTIVATE

503

CULTIVATE Legislation ................................................................................................................................. Definition by courts .................................................................................................................. Cultivating in more than one place: single court .................................................................... Evidence .................................................................................................................................... Cultivation and trafficking ........................................................................................................ Intent .......................................................................................................................................... Evidence of possession of items .............................................................................................. Hydroponic system ................................................................................................................... Directions on intent .................................................................................................................. Sentencing ................................................................................................................................. Sentence ....................................................................................................................................

[3.10800] [3.10805] [3.10810] [3.10815] [3.10820] [3.10825] [3.10830] [3.10835] [3.10840] [3.10845] [3.10850]

[3.10800] Legislation Some legislation defines cultivation: Qld: Drugs Misuse Act 1986 s 4: not separately defined; WA: Misuse of Drugs Act 1981 s 3(1); Tas: Misuse of Drugs Act 2001 s 3; NT: Misuse of Drugs Act s 3; NSW: Drug Misuse and Traffıcking Act 1985 s 3; Vic: Drugs, Poisons and Controlled Substances Act 1981 s 70(1); SA: Controlled Substances Act 1984 s 4: not separately defined; ACT: Drugs of Dependence Act 1989 s 162; NZ: Misuse of Drugs Act 1975 s 2(1): “includes sow or plant”. The legislation which does contain a definition describes cultivate as including sow, plant, grow, tend, nurture or harvest. Variations are only slight. Cultivation of prohibited plants is an offence under each of these Acts.

[3.10805] Definition by courts Cultivation encompasses the whole process. In R v Stratford and McDonald [1985] 1 Qd R 361 (CCA) Macrossan J (with whom Ryan J agreed) said (at 369): The concept of cultivation involves taking seeds or plants for the purpose of fostering growth or further growth from them, most frequently with a view to harvesting the plants. When the plants are taken into care in this sense, I would not consider that relevant acts of cultivation cease when the harvest is over. In my opinion, it would be an unduly narrow view to suggest that a farmer’s activity of cultivation ceases with his last act of tilling, fertilising, irrigating etc occurring before he commences to gather his crop. He holds himself ready to tend his crop and supply their needs as they become manifest. He remains engaged in cultivation until he takes his crop.

Individual acts are also cultivation. In R v Giorgi and Romeo (1982) 31 SASR 299; 7 A Crim R 305 (CCA) King CJ said (at 303; 308–309): The prohibition in para (b) includes, in my opinion, all activities associated with production from the soil, including preparing the soil, sowing, fertilising, tending and caring for the plants, and

504

ROSS ON CRIME

[3.10810]

finally harvesting the crop. The harvesting aspect of cultivation would include, not only the actual removal of the plant or portion thereof from the soil, but also the ancillary activities of laying out, stacking, removal to nearby sheds and placing in those sheds.

Cultivation includes watering a plant to promote its growth: R v Kirkwood [1982] Qd R 158 (CCA). It also includes watering of germinated or un-germinated seeds to keep a cannabis plant alive until it is planted with the intention of producing full grown plants: Eager v Smith (1988) 38 A Crim R 272 (NSW, Carruthers J). Reaping: R v Giorgi and Romeo (1982) 31 SASR 299; 7 A Crim R 305 (CCA). Storage: In R v Ruiz-Avila (2003) 142 A Crim R 459 (NSW CCA) Newman AJ with whom the other judges agreed said (at 464 [23]): There may be circumstances in which the storage of a crop might be seen as the last stage of the harvesting process … Whether storage of a crop is part of the harvesting process is a question of fact, to be determined in the light of the circumstances of each case. To assert that storage is embraced by the term “harvest” as a matter of law is erroneous.

[3.10810] Cultivating in more than one place: single court In R v Whalen (2003) 56 NSWLR 454 at 469 [59] (CCA) the court approved the laying of a single count for cultivation in different places. The court used the supply cases of R v Hamzy (2001) 53 NSWLR 726; 127 A Crim R 70 and R v Locchi as their reason.

[3.10815] Evidence Possession of seeds may be evidence from which cultivation can be inferred. In R v Taouk (1982) 2 NSWLR 974; 8 A Crim R 349 (CCA), it was. But in R v Orchard (1993) 70 A Crim R 289 (NSW CCA), the evidence was admissible and relevant but conviction held (by majority) to be unsafe and unsatisfactory.

[3.10820] Cultivation and trafficking In R v Bandiera [1999] 3VR 103 (CA) Winneke P said of the Drugs, Poisons and Controlled Substances Act 1981 (Vic) (at [11]): Section 72 specifically makes it an offence to “cultivate” narcotic plants but it is clear that cultivation of a crop of cannabis will sustain a charge of “trafficking” where the evidence establishes that the crop is “in possession for sale”: R v Kardogeros [1991] 1 VR 269 at 272; R v Stavropoulos (1990) 50 A Crim R 315 at 317; R v Clarke and Johnstone [1986] VR 643.

[3.10825] Intent Where there is a charge of cultivation of prohibited plants not less than a commercial quantity, the prosecution must prove the intent to cultivate not less than a commercial quantity. R v W (1993) 32 NSWLR 348 (CCA). See also R v Sweeney [1982] 2 NZLR 229 (CA) – “cultivate”. R v Sargent [1994] 1 Qd R 655; (1993) 69 A Crim R 105 (CA) – conclusive evidence of possession unless he shows no knowledge or reason for suspicion.

[3.10845]

CULTIVATE

505

[3.10830] Evidence of possession of items Possession of some items has been held relevant to prove cultivation. For example, in R v Taouk and Henna (1982) 8 A Crim R 349 (NSW CCA), evidence of possession of cannabis seeds was admitted on a charge of cultivation. Likewise, in R v Orchard (1993) 70 A Crim R 289 (NSW CCA) where the cannabis seeds were found in the accused’s house, even though it was a four hour drive from the place of cultivation. In R v Hofer (1991) 55 A Crim R 225 (Vic CCA) a book on how to do it was found where cultivation accorded with the book’s instructions. See also Implement of crime at [9.600].

[3.10835] Hydroponic system In R v Galek (1993) 70 A Crim R 252 (NSW CCA) Allen J said (at 253): An advanced hydroponic self-watering system was used. There were the usual floodlight arrangements, those floodlights drawing so much electricity that, to prevent attention, it was necessary to steal the electricity by bypassing the meter. There was nothing new about this sort of operation. It was the standard modus operandi for the hydroponic growing of cannabis commercially, the only distinctive feature of this case being that the site chosen in which to conduct that commercial venture was an abandoned church.

In R v Pavlovski [1998] VSCA 70 (Vic CA) Charles JA said: The search uncovered an elaborate hydroponic arrangement facilitating the cultivation throughout the house of some 47 mature or semi-mature plants, 17 young plants and 84 cuttings. The windows of the house were covered in black plastic. Classical music was being played to the plants in every room and they were showing their appreciation of Mozart by growing profusely.

[3.10840] Directions on intent In R v Page (2008) 183 A Crim R 66 (Vic CA) the court examined the adequacy of the trial judge’s directions on drawing inferences about the accused’s intent. Appeal against conviction dismissed.

[3.10845] Sentencing Cultivate cannabis In R v Tabone (2006) 167 A Crim R 18(Vic CA) Nettle JA, with whom the others agreed, said (at 24 [21]): The course of authority is plain. In cases of commercial cultivating and trafficking in prohibited substances, an immediate custodial sentence will be imposed unless exceptional circumstances can be shown.

In Marchesano v The Queen (1992) 61 A Crim R 372 (WA CCA) Malcolm CJ said (at 373) of sentences of imprisonment of five to seven years: While no hard and fast rule can be laid down, the operations which have commonly attracted such sentences have been farming-type operations in which 20,000 or more plants have cultivated … The number of plants alone is an insufficient guide. Similarly, the value of the plants alone is an insufficient guide.

In Atholwood v The Queen (1999) 109 A Crim R 465 (WA CCA) Wallwork J said (at 473): In R v Kennedy (unreported, WA CCA, No 207 of 1997, 3 April 1998) Malcolm CJ said (at p 14 of his reasons):

506

ROSS ON CRIME

[3.10850]

In R v Stol (1989) 44 A Crim R 137 at 144, Brinsden J highlighted the difficulty of comparison of facts of facts of different cases, particularly in the context of assessing “the size of the enterprise as to whether it is small or large, backyard or commercial”. In Marchesano v The Queen (1992) 61 A Crim R 372 at 373 per Malcolm CJ it was made clear, in the context of a review of the authorities and the sentences commonly imposed, that “no hard and fast rule can be laid down”.

Other cases Bowman v The Queen (1993) 69 A Crim R 530 (WA CCA); noted 18 Crim LJ 363–365; Jankovic v The Queen (1996) 81 A Crim R 14 (WA CCA); R v Applewaite (1996) 90 A Crim R 167 (Qld CA); R v Galway (1998) 103 A Crim R 35 (NSW CCA); Poole v The Queen (1999) 106 A Crim R 459 (WA CCA).

[3.10850] Sentence Own use In Maynard v O’Brien (1991) 78 NTR 16; 105 FLR 58; 57 A Crim R 1 (Angel J) 18 seedlings for own use was deemed a traffickable quantity and the accused was given a $500 fine and bond.

Medium size commercial enterprise In Marchesano v The Queen (1992) 61 A Crim R 372 (WA CCA) Malcolm CJ said at 375: In my view, having regard to the need for consistency referred to in Lowe v R (1984) 154 CLR 606; 12 A Crim R 408 the pattern of sentences commonly imposed would suggest that a sentence of five years would be the maximum for a medium-sized commercial operation. In other words, it would be a starting point which would be subject to discount on account of mitigating factors.

In Braham v The Queen (1994) 116 FLR 38; 73 A Crim R 353 (NT CCA) the cultivation was large but amateurish. Original sentence three and a half years minimum 21 months. Sentence appeal dismissed.

Forfeiture of land – hardship R v Anderson (1992) 61 A Crim R 382 (Qld, Williams J). See also Alcorn, Zahra & Arden, Drug Laws in the Code States (Federation Press, 1993). See also Cannabis at [3.100]; Drugs at [4.5300]; Supply at [19.6900]; and Trafficking at [20.1700].

CUSTODY Definition ................................................................................................................................... [3.11000] Custody for interrogation is wrong .......................................................................................... [3.11005]

[3.11000] Definition In Smith v The Queen (1957) 97 CLR 100 Williams J said (at 129): The term “in custody” in the Judges’ Rules is not a term of art. It is not confined to a person who has been arrested after a charge has been preferred against him. Any person who is taken to a

[3.11005]

CUSTODY

507

police station under such circumstances that he believes that he must stay there is in the custody of the police. He may go only in response to an invitation from the police that he should do so and the police may have no power to detain him. But if the police act so as to make him think that they can detain him he is in their custody.

In R v Amad [1962] VR 545 Smith J ruled (at 546–547): [A] person is to be regarded as in custody not only after formal arrest, but also where he is in, say, a police vehicle, or on police premises, and the police by their words and conduct have given him reasonable grounds for believing, and caused him to believe, that he would not be allowed to go should he try to do so. See, Smith v The Queen (1957) 97 CLR 100, at p 129.

In Norton v The Queen (2001) 24 WAR 488; 122 A Crim R 104 (CCA) Roberts-Smith J giving the leading judgment said (at 515; 129 [121]): A person will be relevantly arrested or in custody if police, by words or conduct, have caused him to believe that he would not be allowed to leave and that belief is reasonable in the circumstances. It does not matter that the police do not intend to convey that impression: see R v Amad [1962] VR 545 at 546-547; R v O’Donoghue (1988) 34 A Crim R 397 at 401.

In Eatts v Dawson (1990) 21 FCR 166; 93 ALR 497 (FCA) Morling and Gummow JJ said (at 179; 510): An Aboriginal person who is given by the police to understand firmly that he will be restrained from leaving his house at his own will may, one should have thought, properly be said to be in police custody. Much will depend upon the circumstances viewed as a whole. Elements in the lexical meanings of “custody” include the notion of dominance and control of the liberty of the person, and the state of being guarded and watched to prevent escape. To confine the meaning of “custody” to “that state which follows arrest or similar official act” … is, in our opinion, to pay too close a regard to legal forms rather than the substantive character or quality of police activity.

Earlier (at 173; 504) their Honours referred to dictionary meanings: Reference was made before the Royal Commissioner to the Oxford English Dictionary and to the first two meanings it gives to the word “custody”. They are: “1. safe-keeping, protection, defence; charge, care, guardianship … 2. the keeping of the officers of justice (for some presumed offence against the law); confinement, imprisonment, durance.” We should add that in the Macquarie Dictionary, custody is defined as follows: “1. keeping; guardianship; care: in the custody of her father. 2. the keeping or charge of officers of the law: the car was held in the custody of the police. 3. imprisonment: he was taken into custody.” Further, in Webster’s New International Dictionary, 2nd ed, the three meanings given for “custody” are: “1. a keeping or guarding; care, watch, inspection, for keeping, preservation or security. 2. judicial or penal safe-keeping; control of a thing or person with such actual or constructive possession as fulfils the purpose of the law or duty requiring it; specif, as to persons, imprisonment, durance; as to things, charge. 3. state of being guarded and watched to prevent escape.”

[3.11005] Custody for interrogation is wrong In Van Der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232 Mason CJ said (at 661; 19; 240): [I]t is a fundamental principle of the common law that a person cannot be taken into custody or kept in custody for the purpose of interrogation: Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 166 ALR 385 at 291-299, 305 (CLR), 404 (ALR).

See also Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 at 555, 8–9 , 118–119. Arrest at [1.6000]; and Confession at [3.5300].

D DEATH Definition ....................................................................................................................................... Medical tests for brain death ........................................................................................................ Aboriginal deceased ...................................................................................................................... Abolition of death penalty ............................................................................................................ Sentence of death .......................................................................................................................... Misconduct with a corpse ............................................................................................................. Acceleration of death .................................................................................................................... Date of death .................................................................................................................................

[4.300] [4.305] [4.310] [4.315] [4.320] [4.325] [4.330] [4.335]

[4.300] Definition Death is defined in s 41 of the Human Tissue Act 1982 (Vic) as: For the purposes of the law of Victoria, a person has died when there has occurred: (a) irreversible cessation of circulation of blood in the body of the person; or (b) irreversible cessation of all function of the brain of the person.

Most jurisdictions have parallel legislation: Tas: Human Tissue Act 1985 s 27A; NT: Human Tissue Transplant Act s 23; NSW: Human Tissue Act 1983 s 33; SA: Death (Definition) Act 1983 s 2; ACT: Transplantation and Anatomy Act 1978 s 45; Criminal Code 2002: Dictionary definition; In Queensland s 45 of the Transplantation and Anatomy Act 1979 has the same definition of death but only for the purposes of that Act. In Western Australia the Human Tissue and Transplant Act 1982 provides for transplants from the dead. There is no definition of death.

[4.305] Medical tests for brain death Medical tests for brain death exclude: • seizures either general or focal; • abnormal postures; • presence of “dolling”. If the above have been excluded, examination is made for the following. 1. No dolling ie no movement of the eyes when the head is moved. 2. No pupillary response to light, 100 watts within one metre (check that patient does not suffer from eye damage or have a glass eye).

510

ROSS ON CRIME

[4.310]

3. No corneal reflex with a blink (tested by tapping the eye). 4. No grimacing when cranial nerves are stimulated painfully. 5. No cough or gag reflex. 6. No response to caloric stimulus with 50 cc of ice cold saline. 7. Total apnoea when the patient is disconnected from the ventilator for at least ten minutes. Note: Tests 4, 5 and 6 are medically inflicted torture to see if there is any reaction. Number 4 is tested by forcing pointed instruments into the face and head. Number 5 involves pushing something down the throat to see if the patient gags. Number 6 is ice cold water in the ears, agony to a normal functioning person. Apnoea in Number 7 means the cessation of breathing.

[4.310] Aboriginal deceased It is offensive to speak the name of a dead Aboriginal person in court proceedings: R v B (1992) 2 NTLR 98; 87 NTR 1; 111 FLR 463 (Mildren J).

[4.315] Abolition of death penalty Legislation has abolished the death penalty. Cth: Death Penalty Abolition Act 1973; Qld: Criminal Code Amendment Act 1922 s 2; WA: Acts Amendment (Abolition of Capital Punishment) Act 1984; Tas: Criminal Code Act 1968 s 5; NT: Capital punishment was never in the Criminal Code; NSW: Crimes Amendment Act 1955 s 5; Vic: Crimes (Capital Offences) Act 1975; SA: Statutes Amendment (Capital Punishment Abolition) Act 1976; NZ: Abolition of the Death Penalty Act 1989. In England the death penalty was abolished for murder: Murder (Abolition of Death Penalty) Act 1965. It continued to be the punishment for treason: Treason Act 1790 s 1, and for piracy: Piracy Act 1837 s 2. The Crime and Disorder Act 1998 s 36 abolished the death penalty for treason and piracy. The last person executed in Australia was Ronald Joseph Ryan, hanged at Victoria’s Pentridge Prison on 3 February 1967. The last woman executed was Jean Lee, again at Pentridge, on 19 February 1951. In New Zealand the last hanging was of Walter James Bolton on 17 February 1957. The only woman hanged was Minnie Dean for infanticide in 1895. The last woman executed in England was Ruth Ellis hanged at Holloway Prison on 13 July 1955. The last executions in England were Peter Anthony Allen and Gwynne Owen Evans both hanged on 13 August 1964. Mr Allen was hanged at Walton Gaol, Liverpool and Mr Evans at Strangeways, Manchester.

[4.330]

DEATH

511

Between 1900 and 1964, 763 persons were hanged in England. In Canada the last hangings were of Ronald Turpin and Arthur Lucas, both executed at Don Jail, Toronto on 11 December 1962. The penalty of death still exists. At common law the penalty for murder was death: Jones v Attorney-General of the Bahamas [1995] 1 WLR 891; [1995] 4 All ER 1 (PC).

[4.320] Sentence of death The form of death sentence last in use in England: The sentence of the court upon you is, that you be taken from this place to a lawful prison, and thence to a place of execution, and that you there suffer death by hanging; and that your body be afterwards buried within the precincts of the prison in which you shall have been confined before your execution. And may the Lord have mercy on your soul.

It was a decided improvement on being hanged drawn and quartered. According to Gentleman’s Magazine, Pt I (1803) Ellenborough LCJ (1750-1818) used to tell the condemned: You are drawn on hurdles to the place of execution, where you are to be hanged, but not till you are dead; for, while still living, your body is to be taken down, your bowels torn out and burnt before your face; your head is then cut off, and your body is divided into four quarters.

[4.325] Misconduct with a corpse Legislation creates the offence of misconduct with a corpse: Qld: Criminal Code s 236; WA: Criminal Code s 214; NT: Criminal Code s 140; NSW: Crimes Act 1900 s 81C; Vic: Crimes Act 1958 s 38B(5); ACT: Crimes Act 1900 s 48; NZ: Crimes Act 1961 s 150; Eng: Sexual Offences Act 2003 s 70.

[4.330] Acceleration of death Legislation deems the acceleration of death to be a killing: Qld: Criminal Code 1922 s 296; WA: Criminal Code s 273. Each section provides: A person who does any act or makes any omission which hastens the death of another person who, when the act is done or the omission is made, is labouring under some disorder or disease arising from another cause, is deemed to have killed that other person.

See also R v Carter (2003) 141 A Crim R 142 at 148 [23] (Qld CA); Andrew McGee, “Double Effect in the Criminal Code 1899 (Qld): A Critical Appraisal” (2004) 4(1) QUTLJJ 46.

512

ROSS ON CRIME

[4.335]

[4.335] Date of death See also Causation (Year and a day rule) at [3.770].

DECLARATION Definition ....................................................................................................................................... Extent of remedy .......................................................................................................................... Exceptional cases .......................................................................................................................... Form of application ......................................................................................................................

[4.500] [4.505] [4.510] [4.515]

[4.500] Definition A declaration is the judgment of a superior court on law or rights.

[4.505] Extent of remedy In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 581–582 (CLR), 22 (ALR)): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise”. (Forster v Jododex Austr Pty Ltd (1972) 127 CLR 421, at 437, per Gibbs J). However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (see In re Judiciary and Navigation Acts (1921) 29 CLR 257). The person seeking relief must have “a real interest” (Forster (1972) 127 CLR, at p 437, per Gibbs J; Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438, at p 448, per Lord Dunedin) and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that [have] not occurred and might never happen” (University of NSW v Moorhouse (1975) 133 CLR 1 at p 10, per Gibbs J) or if “the Court’s declaration will produce no foreseeable consequences for the parties” (Gardner v Dairy Industry Authority (NSW) (1977) 32 ALJR 180 at p 188, per Mason J; see also p 189, per Aickin J; 18 ALR 55, at pp 69, 71 respectively).

An account of Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 is in Rozenes v Beljajev (1995) 1 VR 533; 126 ALR 481 (FC) in which the court said (at 569–570; 518): In Sankey (1978) 142 CLR 1 the High Court had to consider whether it was appropriate for declaratory relief to go in the course of committal proceedings on private informations in relation to a claim that certain Crown documents were privileged from production pursuant to the informant’s subpoena. The court confirmed the wide power to grant declaratory relief (see per Gibbs ACJ at 25-6, Stephen J at 79-80, Mason J at 81-83 and Aickin J at 103 agreeing with Stephen J) including relief in respect of committal proceedings. The difficult question was whether in the circumstances declaratory relief might go in relation to a matter of evidence. Gibbs ACJ put the question thus at 25: The question whether the power to grant declaratory relief extends to enable the court to declare that particular evidence is admissible or inadmissible, or that the evidence led by an informant is sufficient to make out a prima facie case, is a much more difficult one, because it is not so clear, in such cases, that the plaintiff has any “right”, even within the widest sense of that word, in respect of which he can seek relief. Grave doubts on this point were expressed by Hutley JA (with whom Moffitt P agreed) in Acs v Anderson [1975] 1 NSWLR 212 at pp 215-217, but I need not consider whether there would be power to grant declaratory relief in all such cases. The question in Acs [1975] 1 NSWLR 212 arose in the course of a committal and concerned the power of a liquidator to waive legal professional privilege concerning conversations of a former solicitor of the company. The magistrate having ruled against waiver, a declaration was sought that

[4.515]

DECLARATION

513

the liquidator had power to waive the privilege. The case was decided on the basis that, even if there be power to grant a declaration on such a point in the course of a committal proceeding, the declaration should be refused, as the importance or significance of the evidence was unclear: (see per Hutley JA at 216 and Mahoney JA at 219). In Sankey (1978) 142 CLR 1 Gibbs ACJ continued as follows at 25: In my opinion it would be within power to grant a declaration of the kind sought by Mr Sankey in the present case. It seems to me that when an informant has properly required the production on subpoena of an admissible document, and the Commonwealth has objected to the production of the document on the ground that the public interest requires that it should not be disclosed, it is possible to regard the Commonwealth as asserting, against the informant as well as against the court, a “right” to withhold production of the document, and that in those circumstances the court has power to grant declaratory relief if the objection is held to be untenable.

[4.510] Exceptional cases The court will limit its intervention to exceptional cases. In Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198; 27 A Crim R 103 (CA), Kirby P said (at 200): The jurisdiction of the Court to make a declaration of the law applicable to the indictment against the claimant was not disputed by the Attorney-General. However, the courts’ disinclination to do so in criminal cases, particularly in circumstances where proceedings are in charge of a judge who at this very moment is beginning the trial, has been frequently stated. Courts such as this will limit their intervention to special cases. They will intervene only in the “most exceptional” circumstances: see Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 25, or for “some special reason” (ibid, Mason J at 82); see also Bacon v Rose [1972] 2 NSWLR 793 at 797; Bourke v Hamilton [1977] 1 NSWLR 470 at 479; Barton v The Queen (1980) 147 CLR 75 at 104 and Lamb v Moss (1983) 49 ALR 533 at 545.

Samuels JA (at 204) and McHugh JA (at 206) joined those sentiments. In R (Rusbridger) v Attorney-General [2004] 1 AC 357; [2003] 3 WLR 232; [2003] 3 All ER 784 (HL) the Guardian newspaper sought a declaration that it would not commit treason by advocating a republic to replace the monarchy. Declaration refused. Case not exceptional enough. See also Biggs v DPP (1997) 17 WAR 534; 95 A Crim R 349 (FC); Coleman v DPP (2002) 5 VR 393; 132 A Crim R 255 (CA); Tez v Longley (2004) 142 A Crim R 122 (NSW, Shaw J).

[4.515] Form of application A form of application for declaration can be seen in Ebatarinja v Deland (1997) 92 A Crim R 370 (NT, Mildren J) (at 373): 3. A Declaration that no criminal proceedings for offences alleged to have occurred on the 21st day of February 1995 be taken against the plaintiff without the provision of an adequate interpreter. 4. A Declaration that no criminal proceedings for offences alleged to have occurred on the 2lst day of February 1995 be taken against the Plaintiff until he can be communicated with adequately. 5. Such other Declaration as this Honourable Court may deem fit.

514

ROSS ON CRIME

[4.700]

DEFENCE How a defence is raised ............................................................................................................... Proof on balance of probabilities ................................................................................................. Defence fairly supported by evidence but not fanciful ............................................................... Duty of defence counsel ............................................................................................................... Defence to be negated .................................................................................................................. Prosecution not to rebut fancy defences ...................................................................................... Onus of proof ................................................................................................................................ Defence duty to disclose ..............................................................................................................

[4.700] [4.705] [4.710] [4.715] [4.720] [4.725] [4.730] [4.735]

[4.700] How a defence is raised In R v Taylor [1967] 2 NSWLR 278; 85 WN (Pt 1) NSW 392 (CCA) Moffitt J said (at 294; 399): [T]he “defence” must be raised by the accused in the sense that he must be able to point to evidence in either the Crown case or his own case from which it is open to the jury, by inference and not speculation, at least to infer that in fact he honestly believed the woman consented, but that once there is material to so raise the matter, the ultimate onus rests on the Crown, so that the principles applicable as to when a direction should be given and the directions which should be given as to onus of proof are the same principles as are applicable in respect of other so-called “defences”, such as self-defence, the defence of automatism and provocation under the common law.

Approved: Verdon v The Queen (1987) 30 A Crim R 388 (WA CCA) where Burt CJ said (at 391): [T]he statement of the law formulated by Moffitt J in R v Taylor [1967] 2 NSWLR 278; 85 WN (Pt 1) NSW 392 … is the law of the Code.

[4.705] Proof on balance of probabilities Generally In Sodeman v The King (1936) 55 CLR 192 Dixon J said (at 216): Where by statute or otherwise the burden of disproving facts or of proving a particular issue is thrown upon a party charged with a criminal offence, he is not required to satisfy the tribunal beyond reasonable doubt. It is sufficient if he satisfies them in the same manner and to the same extent as is required in the proof of a civil issue.

Application R v Wilson (No 2) (2007) 169 A Crim R 553 at 567 [69] (SA CCA); R v Tween [1965] VR 687 (FC) per Pape J at 701.

[4.710] Defence fairly supported by evidence but not fanciful In R v Tikos (No 1) [1963] VR 285 (CCA) Sholl J said (at 289): [T]he trial judge is not bound to leave merely fanciful theories, which nothing in the evidence fairly supports, just in case counsel may later argue on an appeal that they ought to have been put. But anything which may conceivably be thought by a reasonable jury to be a serious possibility should be dealt with by the jury.

Followed: R v Bozikis [1981] VR 587; (1980) 5 A Crim R 58 at 596, 76 (CCA). In R v Payne [1970] Qd R 260 (CCA) the court said in a joint judgment (at 264):

[4.720]

DEFENCE

515

It is of course true that a judge is bound to direct the jury as to a defence which is supported by the evidence but is not advanced by the accused; … But this does not mean that a judge must search his mind for fanciful interpretations of the evidence in order to put them to the jury as possible defences, particularly if he is not asked to do so by counsel for the accused.

Approved: R v Skerritt (2001) 119 A Crim R 510 at 516 [25] (CA). In R v Lovett [1972] VR 413 (CCA) Little J, giving the judgment of the court, said that a trial judge is (at 419): [O]bliged to see that an issue of fact which is capable of providing a defence to the charge is put before the jury for their determination: vide Mancini v DPP [1942] AC 1 at pp 7-8; [1941] 3 All ER 272 ; R v Lovesey [1970] 1 QB 352 at 356; [1969] 2 All ER 1077.

In Viro v The Queen (1978) 141 CLR 88; 18 ALR 275 Gibbs J said (at 118): A judge, if any doubt as to whether there is sufficient material to raise such an issue should leave the issue to the jury.

See also R v Howe (1958) 100 CLR 448 at 459; Viro v The Queen (1978) 141 CLR 88; 18 ALR 275 at 117 (CLR); R v Lane [1983] 2 VR 449 at 456 (CCA); Zecevic v DPP (1987) 162 CLR 645; 25 A Crim R 163; 71 ALR 641 at 662–663, 665 (CLR); R v Gillman (1994) 62 SASR 460 (CCA); R v Hawes (1994) 35 NSWLR 294 (CCA).

[4.715] Duty of defence counsel In R v Youssef (1990) 50 A Crim R 1 (NSW CCA) Hunt J, with whom the others agreed, said (at 3): In every case, the accused bears an evidentiary onus to point to or to produce evidence … from which it could be inferred that – as I would prefer to put it – there is at least a reasonable possibility that, for example, the act of the accused was accidental, or that it was provoked or done in self-defence: cf Purkess v Crittenden (1965) 114 CLR 164 at 168, 171.

Followed: DPP v Olcer (2003) 143 A Crim R 337 at 341 [22] (Vic, Nathan J). Both of the above were automatism cases.

[4.720] Defence to be negated The prosecution must negative a so-called defence if such defence is raised in the evidence. In R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 (CCA), Hunt J delivering the leading judgment said (at 541; 435): [I]n all cases in which a so-called “defence” is raised by an accused (such as duress, self-defence or provocation), the issue is whether the Crown has eliminated any reasonable possibility that the accused acted under duress or in self-defence or under provocation, as the case may be.

Approved in the following duress cases: R v Lanciana (1996) 84 A Crim R 268 at 271 (Vic CA);

516

ROSS ON CRIME

[4.725]

R v Zaharias (2001) 122 A Crim R 586 at 598 [69] (Vic CA).

[4.725] Prosecution not to rebut fancy defences The warning that the prosecution cannot rebut the remote defence comes from Thompson v The King [1918] AC 221; [1918–1919] All ER Rep 521; (1917) 13 Cr App R 61 (HL). Lord Sumner said (at 232; 526; 78): The prosecution cannot credit the defence with fancy defences in order to rebut them at the outset with some damning piece of prejudice.

Approved: Killick v The Queen (1981) 147 CLR 565; 37 ALR 407 per Gibbs CJ, Murphy and Aickin JJ at 571; Perry v The Queen (1982) 150 CLR 580 per Gibbs CJ at 588. But the prosecution can lead evidence to rebut an anticipated defence. R v J (1996) 88 A Crim R 399 (Vic CA) per Southwell AJA at 406. That rebuttal evidence might show a criminal propensity. In Makin v AG (NSW) [1894] AC 57 (PC) Lord Hershell said (at 68): [T]he mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused.

[4.730] Onus of proof Most defences must be disproved by the prosecution once they are raised by the evidence. Two exceptions are insanity and diminished responsibility. The defence must prove these exceptions on the balance of probabilities. Uniform Evidence Acts s 141(2) gives legislative effect to this standard of proof. 141 Criminal proceedings: standard of proof (2) In a criminal proceeding, the court is to find the case of a defendant proved if it is satisfied that the case has been proved on the balance of probabilities.

The term “criminal proceeding” is defined in Dictionary Part 1. criminal proceeding means a prosecution for an offence and includes: (a) a proceeding for the committal of a person for trial or sentence for an offence; and (b) a proceeding relating to bail; but does not include a prosecution for an offence that is a prescribed taxation offence within the meaning of Part III of the Taxation Administration Act 1953.

[4.735] Defence duty to disclose Some legislation requires the defence to disclose some of its evidence to the prosecution. That duty is in addition to giving notice of alibi. See also Alibi at [1.3800]; and Disclosure at [4.2800].

[4.915]

DEFRAUDING

517

DEFRAUDING Offences ......................................................................................................................................... Legislation ..................................................................................................................................... Definitions ..................................................................................................................................... Examples ....................................................................................................................................... Other references ............................................................................................................................

[4.900] [4.905] [4.910] [4.915] [4.920]

[4.900] Offences Various statutes make defrauding an offence.

[4.905] Legislation Cth: Criminal Code Act 1995 ss 133.1 – 135.5; Bankruptcy Act 1966 s 6, 263; Corporations Law s 596; Qld: Criminal Code s 643; WA: Criminal Code s 409; Tas: Criminal Code ss 250–252, 255–257; Evidence Act 1910 s 106; NT: Criminal Code ss 227 (deception), 284 (conspiracy to defraud); Vic: Property Law Act 1958 ss 172–173; SA: Criminal Law Consolidation Act 1935 s 195; ACT: Criminal Code 2002 ss 325–336; Crimes Act 1900 s 114D.

[4.910] Definitions In Welham v DPP [1961] AC 103; [1960] 1 All ER 805; 44 Cr App R 124 (HL) Lord Radcliffe said (at 123; 808; 141): It requires a person as its object: that is, defrauding involves doing something to someone. Although in the nature of things it is almost invariably associated with the obtaining of an advantage for the person who commits the fraud, it is the effect upon the person who is the object of the fraud that ultimately determines its meaning.

Followed: Scott v Metropolitan Police Commissioner [1975] AC 819; [1974] 3 All ER 1032; 60 Cr App R 124 (HL). In Spies v The Queen (2000) 201 CLR 603; 173 ALR 529; 113 A Crim R 448, Gaudron, McHugh, Gummow and Hayne JJ said (at 630; 550; 470 [78]): The decision in Scott [1975] AC 819; [1974] 3 All ER 1032; 60 Cr App R 124 must mean that a person may also be defrauded without being deceived. It necessarily follows that, in an offence alleging “defrauding”, deceit is not a necessary element of that offence.

The statute will determine whether dishonesty is an element of the offence: Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343.

[4.915] Examples In R v Iannelli (2003) 175 FLR 96; 56 NSWLR 247; 139 A Crim R 1 (CCA) the appellant was convicted of defrauding the Commonwealth by failing to pay tax instalment deductions on companies she controlled. Held: (analyzing authorities) the evidence did not show offences. Appeal allowed. Acquittal entered.

518

ROSS ON CRIME

[4.920]

[4.920] Other references See also Dishonesty at [4.3400]; Property offences at [16.6500]; and White collar crime at [23.300].

DELAY Justice delayed is justice denied ................................................................................................. Legislation ................................................................................................................................... Delay caused by court processes ................................................................................................ Stay: general principles ............................................................................................................... Application of stay principles ..................................................................................................... Where a stay is refused a jury warning may be necessary ....................................................... Difficulty in testing prosecution witnesses on credibility .......................................................... Possible alibi lost by delay ......................................................................................................... Judge’s warning to the jury: propositions .................................................................................. Prosecution evidence needs close and careful scrutiny ............................................................. Delay in giving judgment ........................................................................................................... Time does not run against the King ........................................................................................... Delay warning in legislation ....................................................................................................... No retrial after substantial delay ................................................................................................ Effect on sentencing .................................................................................................................... Other references ..........................................................................................................................

[4.1100] [4.1105] [4.1110] [4.1115] [4.1120] [4.1125] [4.1130] [4.1135] [4.1140] [4.1145] [4.1150] [4.1155] [4.1160] [4.1165] [4.1170] [4.1175]

[4.1100] Justice delayed is justice denied In R v Lawrence [1982] AC 510; [1981] 1 All ER 974; 73 Cr App R 1 (HL) Lord Hailsham said (at 517; 975; 3): My Lords, it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side.

The delay in this motor accident case was 11 months. In R v Dupas (2006) 14 VR 228; 170 A Crim R 172 (Coldrey J) the alleged murder was nine years before trial. His Honour, the trial judge, allowed a direct presentment without committal. A Basha inquiry would suffice. His Honour said (at 233; 177 [32]): The catchcry “justice delayed is justice denied” is not limited to a defence perspective.

In R v Johannsen and Chambers (1996) 87 A Crim R 126 (Qld CCA) the accused were charged in 1994 with a murder 20 years before. Much of the police brief was lost including early exculpatory statements of a now-important prosecution witness, the records of interview, police running sheets and notebooks and numerous related records of interview. The trial judge refused a permanent stay. The appeal was allowed and a permanent stay was granted.

[4.1105] Legislation Some legislation provides that a person charged with a criminal offence is entitled to be tried without unreasonable delay. Vic: Charter of Human Rights and Responsibilities Act 2006 s 25(2)(c); ACT: Human Rights Act 2004 s 22(2)(c);

[4.1115]

DELAY

519

NZ: New Zealand Bill of Rights Act 1990 s 23(2). See also Abuse of process at [1.1000]; and Stay at [19.5900].

[4.1110] Delay caused by court processes In Guerra v Baptiste [1996] 1 AC 397; [1996] 1 Cr App R 533; [1995] 4 All ER 533 (PC) the appellant had been sentenced to death in Trinidad and Tobago. Appeal processes had taken considerable time. Lord Goff said (at 413; 542; 592): It follows that the mere fact that the appellant takes advantage of the appellate procedures open to him will not of itself debar him from claiming that the delay involved has contributed to the breach of his constitutional rights. But if the delay has occurred as a result of exploiting the available procedures in a manner which can be described as frivolous or an abuse of the court’s process, the delay incurred cannot be attributed to the appellate process and is to be disregarded.

See also Flowers v The Queen [2000] 1 WLR 2396 (PC).

[4.1115] Stay: general principles In Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 Mason CJ said (at 33–34; 583–584): The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare.

There are numerous reasons that delay in bringing a prosecution can prejudice an accused. Most importantly it diminishes the opportunity for the accused to mount what is normally the strongest defence in our system of law: alibi. Accused faced with the prospect of being required to trace their whereabouts years, and often decades earlier, are often confronted with insurmountable problems in establishing and proving their location at a particular point in time. More generally, the frailty of the human memory and the reduced ability to obtain relevant documentary and other exculpatory evidence means that the likelihood of a court being able to accurately determine the circumstances surrounding an alleged event diminishes with the passage of time. A particular problem is the inability to cross-examine in detail prosecution witnesses: Carver v Attorney General (NSW) (1987) 29 A Crim R 24. Delay necessarily increases the chance of an inaccurate result. McHugh JA in Aboud v Attorney General (NSW) (1987) 10 NSWLR 671; 31 A Crim R 127 stressed that a speedy trial is also desirable in order to miminise the length of pre-trial incarceration; reduce the anxiety of the accused and minimise the damage to accused’s reputation and economic interests. Thus, there are sound reasons for the existence of the right to be tried without unreasonable delay - substantive justice requires trials to occur as quickly as possible after the event. Yet, this right too is given lip service by the courts, so much so that it is the aspect of the right to a fair trial which is most regularly disregarded by the legal system. In Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46, Brennan J, at 49, noted that there are sound justifications for granting a stay on the basis of unreasonable delay:

520

ROSS ON CRIME

[4.1120]

When serious delay is attributable to the prosecution and an accused has been prejudiced thereby, the courts are tempted to offer the remedy of a permanent stay.

Despite this, His Honour, at 49, significantly limited the circumstances where a stay could be granted. A stay is only appropriate where the accused can show that: The lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.

The right to be tried without unreasonable delay has only be exercised in little more than a handful of cases, casting into doubt the substabtive commitment to the principle. A Productivity Commission report in early 2010 revealed that only one Australian jurisdiction (Western Australia) met the generous national benchmark of finalising cases within two years: Productivity Commission, “Report on Government Services 2010” (2010): http://www.pc.gov.au/__data/assets/pdf_file/0004/93928/24-chapter7.pdf. In Victoria and New South Wales the delay between charging an accused and the trial is more than two years in approximately 10 per cent of cases.

[4.1120] Application of stay principles The cases where a stay was ordered are: R v Littler (2001) 120 A Crim R 512 (NSW CCA); Salmat Document Management Solutions Pty Ltd v The Queen (2006) 199 FLR 46; [2006] WASC 65; R v Smith (2000) 117 A Crim R 1; [2000] QCA 443; R v Davis (1995) 57 FCR 512; 81 A Crim R 156 (FCA); R v Johanssen (1996) 87 A Crim R 126 (Qld CA); Ross v Tran (1996) 87 A Crim R 144 (Vic, Nathan J); R v Aitchison (1996) 90 A Crim R 448 (ACT, Higgins J); Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; [1999] SASC 154; R v Reeves (1994) 122 ACTR 1; 121 FLR 393. Examples of cases where there was held to be not to be overwhelming prejudice include: Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60; Breedon v The Queen (1995) 124 FLR 328 (NT, Angel J); Austin v The Queen (1995) 14 WAR 484; 84 A Crim R 374 (Owen J); Aitchison v DPP (1996) 135 FLR 217; 90 A Crim R 448 (ACT, Higgins J); R v Gray (1997) 70 SASR 62 (Bollen AJ). R v F J L [2014] VSCA 57 Delay due to absconding: R v Shore (1992) 66 A Crim R 37 (NSW CCA).

[4.1125] Where a stay is refused a jury warning may be necessary In DPP v Tokai [1996] AC 856; [1996] 3 WLR 149 (PC) the Board advised (at 867; 157): If the trial judge does not grant a stay, it will be his duty in directing the jury to bring to their attention all matters arising out of the delay which tell in favour of the accused. If he fails to do

[4.1140]

DELAY

521

that satisfactorily the appeal process is available to put right any injustice which may have resulted from the failure, as in R v Dutton [1994] Crim LR 910.

In Charles v The State [2000] 1 WLR 384 (PC) the Board advised (at 390–391): If the trial is allowed to proceed after a long delay it is important that the defendant should be given such assistance as is reasonably within the power of the court and the prosecution to deal with difficulties caused by the delay and that the jury should be given sufficiently firm and clear direction as to such difficulties caused by the delay.

The High Court has said that a judge must give any warning “necessary to avoid a perceptible risk of miscarriage arising from the circumstances of the case”: Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 86, 167 per Brennan, Dawson and Toohey JJ. They were dealing with delay. The judge must give a warning and not just a comment: Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369. R v Liddy (2002) 81 SASR 22 (CCA) was a sexual offence case. The accused was a magistrate who had visited sexual indignities on a number of boys. There was substantial delay in complaint. Mullighan J, with whom the others agreed on this point, examined the details of the trial judges warning to the jury. His Honour held that the directions were proper (at 76–83 [198] – [211]).

[4.1130] Difficulty in testing prosecution witnesses on credibility In R v PY (1999) 105 A Crim R 505 (NT CCA) the court said in a joint judgment (at 509): In many cases where the prosecution case is principally that of the word of one witness against the word of the accused, the accused will often be able to do little more than deny the charges, and test the credibility of the Crown’s principal witness on what may appear to be peripheral issues. In cases involving long delay, the ability of the accused to test the Crown’s principal witness on credibility issues is likely to be affected by the inability of the accused to recall events or conversations, or to gather evidence, including documentary evidence which may be of assistance to his defence. The full significance of such delay is not likely to be appreciated by jurors without instruction by the trial judge.

[4.1135] Possible alibi lost by delay In Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538;; 98 A Crim R 107 143 ALR 52 Gaudron, McHugh and Gummow JJ said (at 455; 610; 120): The possibility of finding a witness or witnesses with a clear recollection of the relevant days inevitably became more remote as the delay in making the complaint became greater … As a result, the appellant may have been deprived of a cast iron alibi that would have brought about his acquittal.

In R v PY (1999) 105 A Crim R 505 (NT CCA) the court said in a joint judgment (at 509): Due to the delay, the complainant may be unable to specify with accuracy the date and time of the alleged crime, and this may prevent the accused from establishing an alibi.

[4.1140] Judge’s warning to the jury: propositions In R v Johnston (1998) 45 NSWLR 362 (CCA), Spigelman CJ, delivering the leading judgment set out the following seven propositions (at 375): A review of those authorities suggest the following propositions relevant to the determination of this case: (i) Whenever it appears to a trial judge that delay whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair.

522

ROSS ON CRIME

[4.1145]

(ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of the evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing-up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (vi) Where the summing-up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate. (vii) In some cases a warning which uses terminology such as “dangerous” or “unsafe” to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).

[4.1145] Prosecution evidence needs close and careful scrutiny In R v Van Dyk [2000] NSW CCA 67 (17 March 2000) the court said (at [86]): It is not necessary to traverse all the authorities. They have been collected and discussed by Spigelman CJ in R v Johnston (1998) 45 NSWLR 362. In the present case what was required from the judge was a direction that the delay in complaint of 12 or 13 years occasioned acute difficulties for the appellant in the conduct of his defence … The appellant was deprived of the opportunity because of the lapse of such a long period of being able to support his evidence with adequate details and witnesses. The jury should have been warned that they must bear in mind that the appellant would experience great difficulty in defending himself and may not be able to adequately defend himself by reason of the delay and that accordingly they must examine and scrutinise C’s evidence closely and carefully. Often in court cases one story is good until another is able to be told.

See also Longman warning at [12.2100].

[4.1150] Delay in giving judgment In SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346; 139 ALR 595 (FCA) Beaumont and Einfeld JJ said (at 368; 613): A decision excessively delayed is a bad decision.

In Monie v Commonwealth of Australia (2005) 63 NSWLR 729 (CA) the judge had taken 18 months to deliver judgment after many false starts. Appeal allowed. Hunt AJA giving the leading judgment said (at 741–742 [43]): In a series of cases, stemming largely from a decision of the English Court of Appeal in Goose v Wilson Sandford & Co (1998) 142 SJLB 92, the Australian Courts have dealt with the consequences of a judge’s delay in giving judgment. In particular, there has been one decision of the Court of Criminal Appeal (Regina v Maxwell, unreported, 23 December 1998), one of this

[4.1150]

DELAY

523

Court (Hadid v Redpath [2002] NSWCA 16), and one of the Full Court of the Federal Court (Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568) which have developed the approach to be taken on appeal. That approach may be stated as follows: (1) Appellate courts usually give deference to findings of fact made by a trial judge on the basis that the judge has had the advantage, not open to the appellate court, of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. (2) That advantage will ordinarily prove decisive on appeal unless it can be shown that the trial judge either failed to use that advantage or misused it. Statements made by the trial judge of a general assertive character – such as that the witness’s demeanour when giving the particular evidence cast doubt on the truth of that evidence – can usually be accepted as encompassing a sufficient consideration of the evidence. (3) Moreover, the appellate court is entitled in such cases to assume that the mere failure of the trial judge to refer to evidence relevant to a particular finding does not mean that such evidence has been overlooked or that some other form of error has occurred. (4) However, incontrovertible facts of the case or uncontested testimony may nevertheless demonstrate error in the findings of the trial judge notwithstanding that they are stated to be based on credibility findings. (5) But the trial judge’s advantage does weaken with time. Where there is a significant delay between seeing and hearing the witnesses and the delivery of judgment, the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual finding made. If, for example, the judge is able to explain in the judgment given that contemporaneous notes had been made of the impressions formed of the evidence given by the relevant witnesses, confidence in the decision given would no doubt be maintained despite the delay. (6) If, after such delay, the trial judge has not given specific and satisfactory reasons in relation to accepting or rejecting evidence which is of importance in the appeal, and where there does not exist any indication in the transcript or the evidence which clearly explains the judge’s finding, the appellate court is obliged to give careful scrutiny and consideration to those findings. Where there has been significant delay, there can be no assumptions that statements of a general assertive character made by the judge are based on a sufficient consideration of the evidence, or that evidence relevant to a particular finding not considered in the judgment has not been overlooked by the judge in making that finding where that evidence, if accepted, could have supported a different finding. (7) The consequences of significant delay in delivering judgment are not limited to the judge’s failure to use the advantage given to a trial judge of having seen and heard the witnesses give evidence and of observing their demeanour when they do so. With the emphasis placed for some years now on the need for cases to be resolved expeditiously – not only for the benefit of the parties to that particular case but also for the benefit of the parties in other cases waiting to be heard – the judge who has delayed, for whatever reason, giving judgment in the particular case will inevitably be subjected to considerable pressure to complete and deliver the judgment. (8) That pressure will come in large part from the conscientious judge him or herself because of a recognition that the case needs to be resolved expeditiously. In many cases, the pressure will come from the Chief Judge who has administrative responsibility for the Division to which the judge is assigned, whether or not a complaint has been made concerning that case. In some cases, it will come from one or other or both of the parties to the case itself. In a few cases, it will come from the media, through either a party’s complaint or the public interest in the case itself. All of this pressure has an insidious effect on the judge, in that it may well lead to a subconscious effect on the judge’s decision-making process – not necessarily one of bias but rather on the speed with which, in the end, the decision has to be reached and on the degree of attention which the judge is able to give to the often difficult issues to be decided within that time. A decision which is rushed because of the pressure placed on the judge to apply him or herself to

524

ROSS ON CRIME

[4.1155]

writing the judgment speedily after a significant delay may well cause the judge to overlook matters which should have been given more careful and unrushed consideration. (9) And, finally, the long delay may give rise to a reasonable apprehension by the losing party that the judge delayed giving judgment because he or she had been unable to grapple adequately with the issues and, in the end, had become attracted to the decision which was the easiest to make. The possibility that such an apprehension may be held by the losing party requires the judge to deal with that party’s arguments in such a way as to demonstrate that those arguments have been understood and that their rejection has been based on a clear and rational process of reasoning.

In Goose v Wilson Sandford & Co ((1998) 142 SJLB 92, Eng CA, 13 February 1998) the trial judge handed down his judgment 20 months from the end of this civil case. The court said at [112]: A judge’s tardiness in completing his judicial task after a trial is over denies justice to the winning party during the period of the delay. It also undermines the loser’s confidence in the correctness of the decision when it is eventually delivered. Litigation causes quite enough stress, as it is, for people to have to endure while a trial is going on. Compelling them to await judgment for an indefinitely extended period after the trial is over will only serve to prolong their anxiety, and may well increase it. Conduct like this weakens public confidence in the whole judicial process. Left unchecked it would be ultimately subversive of the rule of law. Delays on this scale cannot and will not be tolerated. A situation like this must never occur again.

The decisions of Monie and Goose were cited with approval in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 80 ALJR 367; 223 ALR 171 at [166] per Callinan and Heydon JJ. Other cases R v Teskey [2007] 2 SCR 267; (2007) 280 DLR (4th) 486; 220 CCC (3d) 1 (SCC). R v Maxwell (1998) 217 ALR 452 (NSW CCA). See also Reasons at [18.600]; and Reasons (No delay) at [18.620].

[4.1155] Time does not run against the King The Latin maxim nullum tempus occurrit regi means time does not run against the King. The fact that a crime may take a long time to discover does not of itself prevent prosecution: Clayton v Ralphs (1987) 45 SASR 347; 26 A Crim R 43 at 385, 80(FC) per Legoe J; Herron v McGregor (1986) 6 NSWLR 246 at 253; 28 A Crim R 79 at 85) (CA) per McHugh JA; Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 at 41, 589, 319–320 per Brennan J. Nevertheless, there are time limits within which many offences must be laid. It is not open to the prosecution to charge an offence not properly open when the limit for the correct offence has expired: Saraswati v The Queen (1991) 172 CLR 1; 54 A Crim R 183; 100 ALR 193.

[4.1160] Delay warning in legislation Some legislation refers to a warning to be given to a jury on the effect of delay. Cth: Evidence Act 1995 s 165B; NSW: Evidence Act 1995 s 165B;

[4.1170]

DELAY

525

Vic: Evidence Act 2008 s 165B. Each s 165B is headed “Delay in prosecution”. Sections 165B(2) of the Acts have only a slight difference. The subsections provide: If the court, on application [by the defendant] (Cth & Vic) [by a party] (NSW), is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.

Section165B(4) provides that no particular form of words need be used and then says: [T]he judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

Section165B(5) provides: The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

New South Wales alone defines significant forensic disadvantage. There, s section165B(7) provides: For the purposes of this section, the factors that may be regarded as establishing a “significant forensic disadvantage” include, but are not limited to, the following: (a) the fact that any potential witnesses have died or are not able to be located, (b) the fact that any potential evidence has been lost or is otherwise unavailable.

[4.1165] No retrial after substantial delay A retrial will not be ordered after substantial delay. See also Retrial at [18.3400].

[4.1170] Effect on sentencing Circumstances outside the offender’s control In R v Todd [1982] 2 NSWLR 517 (CCA) Street CJ said (at 519–520): [W]here there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach – passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence: at times this can require what might otherwise be a quite undue degree of leniency being extended to the prisoner.

In R v Robertson (2007) 177 A Crim R 121 (NSW CCA) Rothman J, with whom the other judges agreed, said (at 125 [24]): A delay in investigation and prosecution of an offence may, when lengthy, lead to a degree of leniency being extended: R v Todd [1982] 2 NSWLR 517 at 519. Delay is, a factor to the extent that it affects fairness because, for example, of changed circumstances, additional suspense or anxiety, significant periods on conditional liberty, inexplicable delay by the prosecuting authority,

526

ROSS ON CRIME

[4.1170]

and the like: see R v Khamas (1999) 108 A Crim R 499; Mill v The Queen (1988) 166 CLR 59; 36 A Crim R 468; R v Blanco (1999) 106 A Crim R 303.

In R v Miceli [1998] 4 VR 588; (1997) 139 FLR 309; 94 A Crim R 327 (CA) Tadgell J said (at 591; 312; 330): Most particularly is the matter of delay between the commission of offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganising his life. That is what happened here.

In R v M W H [2001] VSCA 196 (1 November 2001) Callaway JA said (at [18]): [T]he prisoner’s age at the time of sentencing may mean that he is less likely to re-offend. His health or life expectancy may make service of a sentence of imprisonment more onerous than usual. There may be considerations of fairness, especially where the delay is attributable to the prosecution or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light. There may be practical considerations that require a marked degree of leniency to be extended. The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation. The person standing for sentence may have been rehabilitated in one or more ways. He may have given up a form of substance abuse that contributed to the offending. He may have reordered his life. He may have changed morally so that, quite apart from being older, he would not be likely to re-offend. He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment. So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed. (citations omitted)

In R v Merrett [2007] VSCA 1; (2007) 14 VR 392, Maxwell P summarised how delay is relevant in mitigation: [35] The relevance of delay lies rather in the effect which the lapse of time - however caused - has on the accused. Delay constitutes “a powerful mitigatory factor”. In particular, it focuses attention on issues of rehabilitation and fairness. As the Court of Criminal Appeal of Western Australia said in 1983 in Duncan v The Queen: Where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail so as to possibly destroy the results of that rehabilitation. The very fact of the long delay in bringing the matter to court which led the applicant to have this matter hanging over his head for nearly four years is rightly prayed in aid on his behalf. [36] As Vincent AJA pointed out in R v Schwabegger, a legitimate sense of unfairness can develop when the criminal justice process proceeds in what can be perceived as too leisurely a fashion. His Honour cited the well-known passage from R v Todd where Street CJ explained what fairness required in these circumstances: Moreover, where there has been a lengthy postponement, whether due to an interstate sentence or otherwise, fairness to the prisoner requires weight to be given to the progress of his rehabilitation during the term of his earlier sentence, to the circumstance that he has been left in a state of uncertain suspense as to what will happen to him when in due course he comes up for sentence on the subsequent occasion, and to the fact that sentencing for a stale crime, long after the committing of the offences, calls for a considerable measure of understanding and flexibility of approach - passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner. These principles as to the relevance of delay were restated and applied by Chernov JA in R v Cockerell, and were applied again, recently, by this Court in The Queen v Tiburcy.

Other cases are to the same effect: R v Merrett, Piggott and Ferrari (2007) 14 VR 392 at 400 [35] – [36] (CA);

[4.1170]

DELAY

527

R v Tiburcy (2006) 166 A Crim R 291 at 292–293 [3] (Vic CA); R v Cockerell (2001) 126 A Crim R 444 at 447 [10] (Vic CA); R v Blanco (1999) 106 A Crim R 303 at 306 [16] – [17] (NSW CCA); R v Taafe (1998) 102 A Crim R 472; 28 MVR 188 at 486 (A Crim R) (Vic CA). Other cases R v Liang and Li (1995) 124 FLR 350; 82 A Crim R 39 (Vic CA) per Winneke P (at 356; 45); R v Taafe (1998) 102 A Crim R 472; 28 MVR 188 (Vic CA) per Charles JA (at 201–202; 486–487); R v PGW (2002) 134 A Crim R 593 (Qld CA); R v Wong (2002) 137 A Crim R 120 (NSW CCA); R v P (2003) 87 SASR 287 (CCA).

Caused by the offender Little or no leniency is given on sentence when the offender causes the delay. Absconding: In R v Shore (1992) 66 A Crim R 37 (NSW CCA) Badgery-Parker J giving the leading judgment said (at 47): [T]here is a clear distinction on the one hand between cases such as Todd [1982] 2 NSWLR 517 where delay occurs because of circumstances entirely outside the offender’s control … and on the other hand, cases such as the present where the only cause of delay was the applicant’s flight to avoid the consequences of his … criminality. To allow leniency because of delay alone would be … to place a premium on absconding and would be entirely contrary to the public interest. The proper course is that adopted by the sentencing judge in Kukunoski and approved in this Court, which allows the sentencing judge to recognise the unhappy condition of an accused person living as a fugitive with always the fear that his crime might be brought against him but not to encourage absconding by affording any additional leniency in relation to it.

Concealing the truth: In R v Whyte (2004) 7 VR 397 (CA) Winneke P with whom the other judges agreed said (at 405 [26]): [O]ffenders should not be given credit for preventing justice from taking its course by concealing the truth from investigating authorities. Of course persons accused of crime are entitled to maintain their silence, but if they profit as a consequence, it is intolerable to think that the profit is to be compounded by a reduction in the ultimate sentence.

Other cases Braham v The Queen (1994) 116 FLR 38; 73 A Crim R 353 (NT CCA) per Angel J (at 50; 365).

Sentencing practice at date of offence Generally The offender should be sentenced on the penalty and practice at the time of the offence.

Legislation Where a statute increases the penalty, the increase applies only to offences committed after the increase. Where the penalty is reduced, the reduction applies to all penalties. Cth: Crimes Act 1914 s 4F;

528

ROSS ON CRIME

[4.1170]

Qld: Penalties and Sentences Act 1992 s 180; Acts Interpretation Act 1954 s 20C(3); WA: Sentencing Act 1995 s 10; Tas: Sentencing Act 1997 s 99; NT: Sentencing Act s 121; NSW: Crimes (Sentencing Procedure) Act 1999 s 19; Vic: Sentencing Act 1991 s 114; Charter of Human Rights and Responsibilities Act 2006 s 27(2) and 27(3); SA: Common Law; ACT: Legislation Act 2001 s 84A; Human Rights Act 2004 s 25(2); NZ: Crimes Act 1961 s 10A; Interpretation Act 1999 s 7; Sentencing Act 2002 s 6.

Cases In Green v The Queen (2006) 19 NTLR 1 Martin (BR) CJ, with whom the other judges agreed, examined many authorities and said (at 23 [45]): [S]peaking generally, when changing sentencing standards have resulted in penalties increasing between the commission of the crime and the imposition of sentence, and in circumstances where the delay is not reasonably attributable to the conduct of the offender, a sentencing court should, as far as is reasonably practicable, apply the sentencing standards applicable at the time of the commission of the offence.

In R v Howcher (2004) 146 A Crim R 371 (NSW CCA) Hulme J, with whom Grove J agreed, said (at 376–377 [28]): In MJR (2002) 54 NSWLR 368; 130 A Crim R 481 this Court held that where there has been a delay in sentencing, a court should, when imposing sentence, seek to reflect the sentencing practice as at the date of commission of the offence, at least where there has been subsequently a change in that practice to the disadvantage of an offender. It is of a course a condition precedent to the application of any sentencing practice such as that for which the applicant contends that a practice or particular range of sentences said to have been current at the time of the applicant’s offence be identified – see R v MJR (2002) 54 NSWLR 368; 130 A Crim R 481 (at [104], [107]).

In Radenkovic v The Queen (1990) 170 CLR 623; 97 ALR 198; 51 A Crim R 451 Mason CJ and McHugh J said (at 632; 204; 456–457): In the context of an appeal against sentence, when a Court of Criminal Appeal is called upon to re-sentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood.

In Stalio v The Queen [2012] VSCA 120 the Victorian Court of Appeal also stated the principle of equal justice means that regard should be had to sentencing practices at the date of the offending. See also, GPR v The Queen [2007] NTCCA 12. Other cases Featherstone v The Queen (2008) 183 A Crim R 540 (NSW CCA); R v MJR (2002) 54 NSWLR 368; 130 A Crim R 481 (CCA).

[4.1310]

DE MINIMIS NON CURAT LEX

529

[4.1175] Other references See also Complaint in sexual cases at [3.4300]; Kilby warning at [11.300]; Longman warning at [12.2100]; and Stay at [19.5900].

DE MINIMIS NON CURAT LEX Meaning ....................................................................................................................................... [4.1300] Little application in criminal law ............................................................................................... [4.1305] Maxim applied or implied .......................................................................................................... [4.1310]

[4.1300] Meaning The Latin sentence de minimis non curat lex means the law is not concerned with trifles. It has little application to proof of an offence in the criminal law. In Pearce v Paskov [1968] WAR 66 (Virtue J) his Honour (at 73) described the maxim as “a novel principle of immunity”. (The judgment as to its main point has not been followed, but there has been no adverse reference to his Honour’s assessment of the application de minimis.)

[4.1305] Little application in criminal law In R v Khajehnoori (2005) 156 A Crim R 197 (ACT, Gyles J) the accused was found in possession of methamphetamine. The capsule containing the drug was similar in size to a cufflink and was slightly over 13% of the capsule. His Honour held (at 199; [4] – [6]) that the defence of de minimis did not apply. In R v Parry (1997) 92 A Crim R 295 (WA FC) Mr Parry was a journalist. He refused to answer questions about his sources to a Royal Commissioner, as did others. Malcolm CJ, with whom the other judges agreed, said (at 298): [T]his is not a case for the application of the principle de minimis non curat lex, or the law is not concerned with trifles.

In McPherson v Racing Penalties Appeal Tribunal (WA) (1995) 79 A Crim R 256 (WA FC) the applicant had been convicted and penalised for his racehorse having a prohibited drug. The ground alleging wrong conviction was dismissed. Rowland J, with whom the other judges agreed, said (at 260) that the “so-called principle de minimis non curat lex can have no application in this case”. The penalty was remitted to the Tribunal because, contrary to law, no proper reasons for the penalty had been given.

[4.1310] Maxim applied or implied In Williams v The Queen (1978) 140 CLR 591; 22 ALR 195 some tiny bits of cannabis were found in the pocket of a sports coat. The bits were so small that they could not be isolated from the ordinary fluff and could only bee seen by scientific test. The High Court set the conviction aside. Murphy J (at 602) characterised the reason for the setting aside as de minimis non curat lex. R v Bourke (1993) 67 A Crim R 518 (Qld CA) was a similar case. The applicant thought he had bought heroin but when he tasted it he believed he had been ripped off. It was sugar, he said. In fact the sugar contained a minute trace of heroin. Williams v The Queen followed. Appeal against conviction allowed. Acquittal entered. In Welham v DPP [1961] AC 103; [1960] 1 All ER 805; (1960) 44 Cr App R 124 (HL) the Lords held that a man had been properly convicted of intent to defraud. But Lord Radcliffe

530

ROSS ON CRIME

[4.1500]

postulated (at 128; 810; 146) that if there were no real intent to prejudice or injure in what was in effect a light-hearted false document, then the principle of “lex non curat de minimis” would apply.

DEMONSTRATION Meaning ....................................................................................................................................... Demonstration must be accurate ................................................................................................ Demonstration must be relevant and not prejudicial ................................................................. Discretion to refuse demonstration ............................................................................................ Demonstration may not be admissible .......................................................................................

[4.1500] [4.1505] [4.1510] [4.1515] [4.1520]

[4.1500] Meaning A demonstration is the physical replaying of a relevant event. It usually takes place in court in the presence of a jury.

[4.1505] Demonstration must be accurate In Van Den Hoek v The Queen (1986) 161 CLR 158; 69 ALR 1; 23 A Crim R 98 the majority said (at 163; 4–5; 101–102): The complaint was also made that the applicant was required to demonstrate the angle at which the knife entered the body of Mr Van Den Hoek by holding a ruler against the back of the court usher, who was standing while the demonstration occurred, whereas on the applicant’s evidence Mr Van Den Hoek was not standing when he was stabbed. That fact was however obvious to the jury, and it was within the discretion of the trial judge to allow the demonstration to be held. If any similar demonstration is sought at a new trial, the trial judge then will no doubt consider the possible danger that it might mislead the jury. For these reasons we would grant the application for special leave to appeal; we would allow the appeal, set aside the conviction and order a new trial on a charge of murder.

See also R v Fernandes (1996) 133 FLR 477 at 482–484 (SA CCA).

[4.1510] Demonstration must be relevant and not prejudicial In Evans v The Queen (2007) 82 ALJR 250; 179 A Crim R 232 security cameras photographed a robber wearing overalls, sunglasses and a balaclava. No one claimed that the robber could be identified. At trial, the accused gave evidence. In cross-examination, the prosecutor required the accused to dress in that outfit and walk before the jury. The appeal had been dismissed in the lower appeal court: Evans v The Queen (2006) 164 A Crim R 489 (NSW CCA). The High Court allowed the appeal 3–2. Gummow and Hayne JJ said that the evidence was not relevant and therefore inadmissible. Their Honours said in a joint judgment (at 258; 242 [27] – [28]): Deciding who had worn the disguise was not assisted by having the appellant put on the items he was asked to put on. It follows that dressing the appellant in the balaclava and overalls (and producing a pair of sunglasses for him to wear) proffered no relevant evidence for consideration of the jury. It should not have been done.

Kirby J held that the demonstration was too prejudicial. His Honour, giving authorities, said (at 270–271; 259 [109]): There have been cases where the witnesses have been requested to engage in in-court demonstrations by revealing a particular part of the body, otherwise clothed; providing a sample of handwriting; wearing a hat or where they have otherwise been tested on some idiosyncratic spoken or written reproduction of particular words. However, never in my experience has conduct in

[4.1520]

DEMONSTRATION

531

which the accused person has been asked to engage come close to the serious prejudice to which the appellant was subjected by the questioning by the prosecutor and the demonstration that she led him to perform in his trial.

[4.1515] Discretion to refuse demonstration In R v Duncan [1944] 1 KB 713; [1944] 2 All ER 220; 30 Cr App R 70 the appellants had been convicted of conspiracy to pretend that spirits of deceased could communicate with participants at a séance, contrary to s 4 of the Witchcraft Act 1735. Victoria Duncan wanted to demonstrate that she was not a fraud and that she could do what she claimed. The Recorder refused. The Court of Appeal said (at 715; 221; 74–75): To mention only one matter: if in the course of the demonstration ectoplasm was to be alleged to emanate from the medium, would the jury be allowed to handle it, or to do anything to verify the appearance? Or would the jury have to be content with what they could see in a dim light such as was provided on the occasions in question? A host of similar difficulty can be seen both from the point of view of the prosecution and of the defence. It seems clear to us that no such demonstration, even if the circumstance in which it should take place could be agreed, and whatever it purported to show, could be conclusive on the only issue which the jury had to try, and indeed might well confuse the jury, or operate to the great disadvantage of the appellants. We think the Recorder exercised his discretion wisely in this case, and we may add that he was fortified in what he did by the answer of the jury to the question he asked them as to whether they wished to see such a demonstration.

See also, DPP v Farquharson (No 2) (Ruling No 4) [2010] VSC 210, at [58]; NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 106.

[4.1520] Demonstration may not be admissible In R v Quinn [1962] 2 QB 245; [1961] 3 All ER 88; (1962) 45 Cr App R 279 the appellants owned a London club where a strip-tease was performed. They were convicted of keeping a disorderly house. At trial they sought unsuccessfully to tender a film of the act. The Court of Criminal Appeal said (at 257; 93; 288–289): It is, of course, true that demonstrations are frequently given by witnesses in the witness box to show what was done at the material time. For example, the way in which a blow was struck is often demonstrated, but such demonstrations usually take place in the witness box, take place in the presence of the jury, and are intended to illustrate one act. In our view, such demonstrations are altogether different in character from a reconstruction of an entire scene, a reconstruction which has been brought into existence in private for the purpose of constituting evidence at a trial. It is obvious that to allow such a reconstruction would be introducing a method of proof which would be most unsatisfactory for the reason that it would be almost impossible to analyse motion by motion those slight differences which may in the totality result in a scene of quite a different character than that performed on the night in question. Indeed, in this case, it was admitted that some of the movements in the film (for instance, that of a snake used in one scene) could not be said with any certainty to be the same movements as were made at the material time. In our judgment, this objection goes not only to weight, as was argued, but to admissibility: it is not the best evidence.

In the Uniform Evidence jurisdictions, demonstrations are governed by s 54 of the Uniform Evidence Act.

532

ROSS ON CRIME

[4.1700]

DEMURRER Definition ..................................................................................................................................... Legislation ................................................................................................................................... Demurrer should be in writing ................................................................................................... Other remedies ............................................................................................................................

[4.1700] [4.1705] [4.1710] [4.1715]

[4.1700] Definition A demurrer implicitly accepts the allegations contained in the indictment but challenges whether those allegations constitute a criminal offence. In R v Boston (1923) 33 CLR 386 Isaacs and Rich JJ said (at 396): [T]he demurrer admits … that all the statements in the count are true; and it maintains that, even admitting their truth, they are not sufficient in law to make the accused guilty of a crime and, therefore, he is not bound to answer them. Such a demurrer has no concern with mere matters of form or manner of expression or even of duplicity (see R v Lockett (1914) 2 KB 720). It challenges the substantial matters alleged as not constituting any crime at all.

In R v Inner London Quarter Sessions; Ex parte Metropolitan Police Commissioner [1970] 2 QB 80; 2 WLR 95; 54 Cr App R 49 (QBD) Cantley J, giving the judgment with which the others agreed, said (at 83; 98; 53): Demurrer is an objection to the form or substance of the indictment, apparent on the face of the indictment, and is not to be decided by examination of the depositions.

In R v Carroll (2002) 213 CLR 635; 136 A Crim R 167; 194 ALR 1 Gaudron and Gummow JJ said (at 660; 20; 189 [84]): In Australia, “double jeopardy” is not an independent doctrine of avoidance, which, for example, would found a demurrer to a count or a stay application.

Other cases Bond v The Queen (1992) 62 A Crim R 383 at 396–397 (WA CCA); R v Glynn (1994) 33 NSWLR 139; 71 A Crim R 537 (CCA); R v Rechichi (1999) 106 A Crim R 246 (WA, Scott J); R v Cheng (1999) 73 SASR 502; 107 A Crim R 460 (CCA); R v Vasic (2005) 11 VR 380; 155 A Crim R 26 (CA) at 387; 34 [22] per Nettle JA; A demurrer may be made where the court has no jurisdiction to try the offence: R v Isaac (1996) 87 A Crim R 513 (NSW CCA).

[4.1705] Legislation Qld: Criminal Code ss 598, 605; WA: Criminal Procedure Act 2004 s 126(1)(a); Tas: Criminal Code s 354; NT: Criminal Code ss 342, 349; NSW: Criminal Procedure Act 1986 s 18; Vic: Criminal Procedure Act 2009 s 199(1)(c); SA: Criminal Law Consolidation Act 1935 s 281(1); ACT: Crimes Act 1900 s 262;

[4.1900]

DEPOSITION

533

NZ: Crimes Act s 342(1): no demurrer; Eng: Criminal Law Act 1967 s 6(1)(a).

[4.1710] Demurrer should be in writing Archbold’s Criminal Pleading, Evidence and Practice (33rd ed, Sweet & Maxwell, London) says (at p 148): A demurrer in the High Court must be written or printed on paper and filed at the Crown Office, and a copy delivered to the opposite party, and, if settled by counsel, must be signed by him. A demurrer in other courts must also be written or printed on durable paper or parchment and filed in the office of the appropriate court … DEMURRER TO AN INDICTMENT The Queen v AB (1999) 198 CLR 111; 165 ALR 298 Central Criminal Court AB says that the indictment is not sufficient in law and that he is not bound by law to answer it.

[4.1715] Other remedies Another remedy is a motion to quash the indictment. That application is likely to be based on one or more of the following grounds of complaint about the indictment: • it discloses no offence known to law (demurrer); • it was made without necessary consent or authorisation; • it is vague or bad for uncertainty; • joinder of accounts or of accused is improper; • it is bad for duplicity.

DEPOSITION Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Admissibility of deposition of absent witness ........................................................................... Proof ............................................................................................................................................ Statement properly admitted ....................................................................................................... Chance to cross-examine ............................................................................................................ Warning to jury ........................................................................................................................... Right of accused person to depositions .....................................................................................

[4.1900] [4.1905] [4.1910] [4.1915] [4.1920] [4.1925] [4.1930] [4.1935]

[4.1900] Meaning A party in a case may want to use an earlier statement or evidence under oath (or affirmation) by a witness. That earlier statement or evidence is a deposition. A deposition is not the transcript of a previous trial. In R v Li (2003) 140 A Crim R 288 (NSW CCA) Dunford J, with whom the others agreed, examined the legislation and the cases and then said (at 295 [37]): I am not satisfied that the transcript of evidence in an earlier trial constitutes a “deposition” … and consider the English cases should not be followed in this State.

534

ROSS ON CRIME

[4.1905]

[4.1905] Legislation Legislation provides for the admission into evidence of the deposition of a witness who for a good reason is unavailable to give evidence in person: Uniform Evidence Acts s 65. Cth: Navigation Act 1912 s 400; Qld: Justices Act 1886 s 111; Evidence and Discovery Act 1867 s 67 (defence witness) Evidence Act 1977 s 93 (business record of dead or absent witness); NSW: Criminal Procedure Act 1986 ss 284–289; SA: Evidence Act 1929 s 34K; Criminal Law Consolidation Act 1935 s 286; NZ: Summary Proceedings Act 1957 s 174(5); Eng: Criminal Justice Act 2003 s 116.

[4.1910] Admissibility of deposition of absent witness These sections permit the deposition of a witness which was taken at committal to be read or otherwise admitted at trial if the witness is absent, sick or dead. The procedure is only available if the witness cannot give evidence at all at trial. According to R v Brotherton (1992) 29 NSWLR 95; 65 A Crim R 301 (CCA) the witness must be dead, ill or out of the State. A stress-related illness is not sufficient illness. If the defence does not want the deposition admitted, objection must be taken: R v Massie [1999] 1 VR 542; (1998) 103 A Crim R 551 at 550–551, 560–561 [28] – [29] (CA).

[4.1915] Proof The absence must be proved: R v Mendham and Foster (1993) 71 A Crim R 382 (NSW CCA). In Coates v The Queen (1957) 96 CLR 353 the court said (at 357) that a telegram was insufficient and inadmissible to prove the absence of the witness, although an affidavit may suffice.

[4.1920] Statement properly admitted The statement must have been properly admitted at committal: R v Adamiczka (1993) 33 NSWLR 68; 71 A Crim R 291 (CCA). That rule prevails to prevent a sentencing judge taking account of a statement not properly admitted: R v Casotti (1994) 74 A Crim R 294 (Vic CCA).

[4.1925] Chance to cross-examine The accused must have had a chance to cross-examine the witness at committal: R v Collins [1986] VR 37 (Hampel J). This provision does not obtain in Western Australia: Galea v The Queen (1989) 1 WAR 450; 46 A Crim R 158 (CCA); Birch v The Queen (1994) 12 WAR 292; 74 A Crim R 585 (CCA).

[4.1930] Warning to jury Where the deposition is tendered the judge should warn the jury about the absence of the witness.

[4.1935]

DEPOSITION

535

In R v Horan [1951] VLR 249 (FC) Lowe ACJ said (at 251): When the learned Chairman’s charge is looked at, we find that he nowhere points out to the jury that, the deposition being the principal if not the only evidence against the applicant, it was necessary for the jury to bear in mind that they had not seen the witness to judge of her credibility, and that there had been no opportunity to cross-examine her. In such a case, we think that a warning was in the highest degree desirable and that the jury should have been warned to scrutinise the evidence in the deposition with great care before acting upon it.

In Henriques v The Queen [1991] 1 WLR 242; 93 Cr App R 237 (PC) the Board advised (at 247; 242): When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence.

Horan and Henriques both followed: R v Mendham and Foster (1993) 71 A Crim R 382 at 388 (NSW CCA); R v Le (2002) 130 A Crim R 256 at 267-268 [33] (NSW CCA). In Grant v The Queen [2007] 1 AC 1; [2006] 2 WLR 835 (PC) Lord Bingham of Cornhill, giving the advice of the Board, said (at 15; 847 [21] (4)): [T]he judge should point out the potential risk of relying on a statement by a person whom the jury have not been able to assess and who has not been tested by cross-examination, and should invite the jury to scrutinise the evidence with particular care. It is proper, but not perhaps very helpful, to direct the jury to give the statement such weight as they think fit: presented with an apparently plausible statement, undented by cross-examination, by an author, whose reliability and honesty the jury have no extraneous reason to doubt, the jury may well be inclined to give it greater weight than the oral evidence they have heard. It is desirable to direct the jury to consider the statement in the context of all the other evidence, but again the direction should not stop there. If there are discrepancies between the statement and the oral evidence of other witnesses, the judge (and not only defence counsel) should direct the jury’s attention specifically to them. It does not of course follow that the omission of some of these directions will necessarily render a trial unfair, but because the judge’s directions are a valuable safeguard of the defendant’s interests, it may.

Other cases Cioban v the Queen (2003) 139 A Crim R 265 at 275–276 [53] – [57] (NSW CCA); Williams v The Queen (2000) 119 A Crim R 490 at 506 [66] (FCA); Nalberski v The Queen (1989) 44 A Crim R 434 (WA CCA).

[4.1935] Right of accused person to depositions An accused on trial has the right to inspect the depositions. No fee is payable. See the relevant legislation: Qld: Criminal Code s 705; WA: Criminal Code s 745; Tas: Criminal Code s 328; NT: Criminal Code s 438; NSW: Criminal Procedure Act 1986 s 35; Vic: Criminal Procedure Act 2009 s 185;

536

ROSS ON CRIME

[4.2100]

SA: Criminal Law Consolidation Act 1935 s 286; ACT: Crimes Act 1900 s 286.

DIETRICH The principle ............................................................................................................................... [4.2100] Definition of indigent .................................................................................................................. [4.2105] Determining indigence ................................................................................................................ [4.2110] The test of whether the accused caused his own indigence ...................................................... [4.2115] Representation ............................................................................................................................. [4.2120] Ordering a stay is within power ................................................................................................. [4.2125] The principle applies only to trials ............................................................................................ [4.2130] Expensive committal proceedings .............................................................................................. [4.2135] Power to order representation .................................................................................................... [4.2140] Last note ...................................................................................................................................... [4.2145]

[4.2100] The principle An accused has no right to counsel, but a trial may be stayed as unfair if an accused is unrepresented. In Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385 Mason CJ and McHugh J said (at 311; 396; 187–188): [I]t should be accepted that Australian law does not recognize that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not, receive a fair trial.

Their Honours later said (at 311; 396; 188): The decision whether to grant an adjournment or a stay is to be made in the exercise of the trial judge’s discretion, by asking whether the trial is likely to be unfair if the accused is forced on unrepresented. For our part, the desirability of an accused charged with a serious offence being represented is so great that we consider that the trial should proceed without representation for the accused in exceptional cases only. In all other cases of serious crimes, the remedy of an adjournment should be granted in order that representation can be obtained.

Deane J said (at 337; 208): [A]s a general proposition and in the absence of exceptional circumstances, a trial of an indigent person accused of serious crime will be unfair if, by reason of lack of means and the unavailability of other assistance, he is denied legal representation.

The right not to be tried unfairly is based on the common law not the constitution: Frujniet v Victoria (1997) 71 ALJR 320; 148 ALR 320 at 325 (Kirby J). In R v Fuller (1997) 69 SASR 251; 95 A Crim R 554 (CCA) Olsson J said (at 257; 559–560): The logical commencement point is the reasoning of the majority in Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176. As I understand the judgments in that case they confirm the following propositions: (1) the common law of Australia does not confer upon a person accused of a serious offence the right to be provided with counsel at public expense; (2) it does, however, recognise the right of an accused to a fair trial and the concomitant power of a court to stay criminal proceedings in circumstances which deny that right; (3) it is not feasible, or desirable, to attempt to construct an exhaustive list of the attributes of a fair trial. However, leaving aside, for the moment, the issue of legal representation, basic minimum rights of an accused include:

[4.2110]

DIETRICH

537

• the right to have adequate time and facilities for the preparation of a defence; • the right to the free assistance of an interpreter when required; (4) subject to the caveats expressed in the Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176 formulation, a trial will not, relevantly, be fair if an accused does not have representation by counsel; (5) that situation arises “save in the exceptional case of the skilled litigant”, because the unrepresented litigant 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 access and present his or her case in the same manner as counsel for the Crown. The hallowed response that, in cases where the accused is unrepresented, the judge becomes counsel for him or her, extending a “helping hand” to guide the accused throughout the trial so as to ensure that any defence is effectively presented to the jury, is inadequate for the same reason that self-representation is generally inadequate: a trial judge and a defence counsel have such different functions that any attempt by the judge to fulfil the role of the latter is bound to cause problems. As Gaudron J stressed in Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176, a trial is not necessarily unfair because it is less than perfect, but it is unfair if it involves a risk of the accused being improperly convicted. This is, as it appears to me, the bottom line consideration in assessing any situation in its discrete factual context.

Approved: R v Pirimona (1998) 7 Tas R 407; 100 A Crim R 137 (Slicer J) (at 420–421; 147–148).

[4.2105] Definition of indigent In R v Marchi (1996) 67 SASR 368; 91 A Crim R 112 (Perry J) his Honour ruled that indigent does not mean that the accused must be penurious in the sense of living in poverty. Rather, the test of indigence is satisfied if the accused lacks the means to engage appropriate legal representation to conduct a defence. Where the value of an accused’s assets falls far short of what is reasonably necessary to conduct a defence the accused is properly classified as indigent. But waiting to sell assets at the best market price is an indigence of an accused’s own doing: R v Burns (2000) 109 A Crim R 292 (SA, Olsson J).

[4.2110] Determining indigence Where an accused seeks a stay of proceedings and one of the issues involved in that application is an allegation of indigence by the accused, the prosecution is entitled to cross-examine the accused to test the allegation of indigence. This applies even where the financial position of the accused is relevant to his defence. The parties to the stay application are the Crown, represented by the Director of Public Prosecutions, and the accused. The Attorney-General is not a party to the proceedings and has no right to participate in it for the investigative exercise of determining whether or not to grant financial aid should the stay application succeed: Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; 86 A Crim R 100 (FC). The accused has the burden of proving indigence: R v BK (2000) 110 A Crim R 298 (NSW CCA). In R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA) King CJ, giving a summary of Dietrich, said (at 457; 485): [A]n accused person, charged with a serious offence, seeking an adjournment or stay ... must prove on the balance of probabilities that he is indigent, that he has been unable to obtain legal representation and that that inability is not due to fault on his part.

538

ROSS ON CRIME

[4.2115]

[4.2115] The test of whether the accused caused his own indigence In R v Kennedy (1997) 94 A Crim R 341 (NSW CCA) Hunt CJ at CL said (at 46): What all of the cases say, as did Craig (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359, is that what must be looked at is the reasonableness of the conduct of an accused in all of the circumstances. Although the reasonableness of that conduct must be judged objectively, what must nevertheless he looked at for that purpose is the conduct of a person in the position of the particular accused person. It is easy to say in the present case, after the event, that it was an unwise decision on the part of the applicant to spend the whole of his savings and to go into debt in order to fight the committal proceedings rather than to save the money for a trial. That decision could not be said to have been an unreasonable one in the circumstances of this case, notwithstanding that it has no doubt led to his present indigence, and I do not accept that it should in the circumstances, deny his entitlement to a stay.

See also R v Rich (1997) 68 SASR 390; 93 A Crim R 483 (CCA). The R v Chaouk [2013] VSCA 99 (where a temporary stay was ordered because Legal Aid agreed to fund a barrister but not also a solicitor).

[4.2120] Representation In R v Chaouk [2013] VSCA 99 it was held that the decision by Legal Aid Victoria to fund a barrister only and not a solicitor meant that the accused could not receive a fair trial, and a temporary stay was granted. As a result of this decision, Legal Aid changed its funding guideline to include representation by both a solicitor and barrister. In R v Frawley (1993) 69 A Crim R 208 (NSW CCA) the accused sacked one counsel, and of the next made demands that could not be met causing the second counsel to withdraw. The accused was then unrepresented. The Dietrich ground of appeal failed as the accused refused representation. In R v Kerbatieh (2005) 155 A Crim R 367 (Vic CA) the accused claimed that counsel would not follow his instructions. In the end he sacked four trial counsel and the trial proceeded with him unrepresented. Appeal dismissed. In R v Batiste (1994) 35 NSWLR 437; 77 A Crim R 266 (CCA) the accused refused to divulge why solicitors had withdrawn from the case. The ground of appeal based on Dietrich failed. In Wong v The Queen (2001) 159 FLR 328 (WA CCA) the accused contributed to his lack of representation. Appeal dismissed. In R v Promizio (2004) 142 A Crim R 592 (NSW CCA) the accused had been granted legal aid twice but when he refused to give instructions it was cancelled. Appeal dismissed. A judge should not assess the relative competence of representation. In Attorney-General (NSW) v Milat (1995) 37 NSWLR 370; 80 A Crim R 530 (CCA) the court said (at 379; 535): It is not required by the decision in Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176, and would be inconsistent with it, for trial judges, in dealing with stay applications, to embark upon a detailed exercise of assessing the relative degrees of competence and experience of lawyers potentially available to act for an accused person. Of course, lawyers vary in ability; accused persons obtain better representation from some lawyers than from others, just as trial judges obtain better assistance from some lawyers than from others. But the principle in Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176 turns upon whether legal representation is unavailable to an indigent accused. It would be a serious criticism of a qualified lawyer, regularly practising in the criminal area, to say that representation by such a person was the equivalent of being relevantly unrepresented.

[4.2135]

DIETRICH

539

Nor should the judge reckon the fees unless they are so inadequate as to enable the conclusion that the accused is unrepresented (at 379; 536). Similar sentiments were expressed by Winneke P in Victoria Legal Aid v Beljajev [1999] 3 VR 764 (CA) (at 777 [37]).

[4.2125] Ordering a stay is within power Where a trial judge stays criminal proceedings because an indigent accused lacks legal representation, the stay is not ordinarily the subject of certiorari by the prosecution: Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359.

[4.2130] The principle applies only to trials The Dietrich principle applies only to criminal trials. In NSW v Canellis (1994) 181 CLR 309; 124 ALR 513; 74 A Crim R 533 Mason CJ, Dawson, Toohey and McHugh JJ said (at 328; 522; 541–542): As the majority judgments made clear, that principle is based on, and derives from, the accused’s right to a fair trial. There is no suggestion in the majority judgments that a court could exercise a similar jurisdiction in civil proceedings or in committal proceedings; nor do they suggest that such a jurisdiction could be exercised in favour of an indigent person charged with a criminal offence which is other than serious. Furthermore, and this is of decisive importance in the present case, the principle in Dietrich (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176 is concerned with the right to a fair trial of a party to criminal proceedings; the principle has nothing at all to say about the protection of the interests of a witness, let alone the protection of the interests of a witness at an inquiry.

A person may be convicted by a magistrate and appeal unrepresented to a judge sitting alone. Where the person is unrepresented the judge must ensure a fair hearing: Tomasevic v Travaglini (2007) 17 VR 100 (Bell J). The principle does not apply to committals: R v Matterson (1993) 2 Tas R 115; 65 A Crim R 264 (Cox J); Fuller v Field (1994) 62 SASR 112; 72 A Crim R 592 (FC). Nor does the principle apply to summary hearings: Highway v Tudor-Stack (2006) 18 NTLR 58; 163 A Crim R 178 (CA) at [32]; Donnachy v Riegert (2004) 144 A Crim R 260 at 270 [55] (WA, Roberts-Smith J); Weinel v Fedcheshen (1995) 65 SASR 156 (Perry J). Other cases Robinson v The Queen (2006) 162 A Crim R 88 at 95 [17] (NSW CCA); Clarke v DPP (Cth) (1999) 150 FLR 180 (ACT, Higgins J).

[4.2135] Expensive committal proceedings Money spent on committal may mean no legal aid for a trial. In R v Kay (1998) 100 A Crim R 367 (NSW CCA) Smart J said (at 375): This court has noted that defendants are spending substantial sums of money on committal proceedings and have no money left to pay for or contribute to legal representation for their trial. Legal Aid is sought for the trial and the accused wishes to make no contribution or a minimal contribution or is unable to make a useful contribution. This practice cannot be allowed to continue. Henceforth, solicitors should advise defendants for whom they appear that, if appreciable funds and their borrowing capacities are substantially exhausted on committal proceedings, they may be refused legal aid for their trial and they may not obtain a stay of proceedings. This could result in them being unrepresented at their trial. Defendants should be advised that they should give priority to conserving their funds and being represented at the trial. The advice should not be perfunctory.

540

ROSS ON CRIME

[4.2140]

Care should be taken to confine the committal proceedings to the important issues and avoid them becoming protracted.

[4.2140] Power to order representation Some legislation gives a court the power to order legal representation at trial: Vic: Criminal Procedure Act 2009 s 197; SA: Criminal Law (Legal Representation) Act 2001; R v Williams (1997) 98 A Crim R 387 (Vic, McDonald J); R v Kavanagh (1997) 98 A Crim R 496 (Vic, McDonald J). As to particular counsel, in Victoria Legal Aid v Beljajev [1999] 3 VR 764 (CA) Winneke P said (at 777 [37]): Once the court has ordered that VLA should provide assistance and has set the general parameters of such assistance, that is as far as it can and should legitimately go. It is open to the court to recommend, even strongly recommend if it thinks it desirable to do so, that VLA should seek to provide assistance through a particular counsel or solicitor who is familiar with the litigation. But, in my view, it can go no further. If it were permitted to do so the court would be putting itself in the unseemly position of an arbiter between VLA on the one hand, and lawyers for the accused on the other.

In R v Williams (2007) 16 VR 168 at 178–180 [58] – [70] (King J) her Honour held that a judge should not adjourn a trial so an accused could get counsel of choice. No appeal lies from a trial judge’s decision to grant legal aid or refuse it: Victoria Legal Aid v Lewis (1998) 98 A Crim R 551 (Vic CA); R v Rich [1998] 4 VR 44; (1997) 98 A Crim R 61 (CA). The failure to order representation may be a ground of appeal against conviction: R v Phung [1999] 3 VR 313; (1999) 108 A Crim R 506 (CA). R v Hoang (2007) 16 VR 369; 173 A Crim R 64 (CA). Rich v Attorney-General (Vic) (1999) 103 A Crim R 261 (Vic CA). See also McKenzie Friend at [13.100].

[4.2145] Last note Olaf Dietrich is now Hugo Alistair Rich: R v Rich (2008) 184 A Crim R 161 (Vic, Lasry J); Rich v Van Groningen (1997) 95 A Crim R 272 (Vic, Gillard J); R v Rich [1998] 4 VR 44; (1997) 98 A Crim R 61 (CA); R v Rich [2009] VSC 515.

[4.2310]

DIMINISHED RESPONSIBILITY

541

DIMINISHED RESPONSIBILITY The principle ............................................................................................................................... Legislation ................................................................................................................................... Abnormality of mind .................................................................................................................. Definition of substantially .......................................................................................................... Onus of proof .............................................................................................................................. Felony murder ............................................................................................................................. Medical/psychiatric evidence ...................................................................................................... Failure to give evidence ............................................................................................................. Unchallenged medical evidence ................................................................................................. Medical evidence in dispute ....................................................................................................... Disease or injury ......................................................................................................................... Statements of principle: intoxication .......................................................................................... Intoxication: some applications .................................................................................................. Possible directions on intoxication (England) ........................................................................... Insanity and diminished responsibility ....................................................................................... Issue to be left to jury ................................................................................................................ Elements direction ...................................................................................................................... Onus of proof .............................................................................................................................. Directing a verdict ...................................................................................................................... Fresh evidence on appeal ........................................................................................................... Sentence ...................................................................................................................................... Writing .........................................................................................................................................

[4.2300] [4.2305] [4.2310] [4.2315] [4.2320] [4.2325] [4.2330] [4.2335] [4.2340] [4.2345] [4.2350] [4.2355] [4.2360] [4.2365] [4.2370] [4.2375] [4.2380] [4.2385] [4.2390] [4.2395] [4.2400] [4.2405]

[4.2300] The principle A person on trial for murder shown by the defence to have such abnormality of mind (from arrested or retarded development or inherent causes or induced by disease or injury) as substantially to impair his mental responsibility for acts or omissions is liable to be convicted of manslaughter only. The defence is available only in Queensland, Northern Territory, New South Wales and the Australian Capital Territory. Cases on the borders of those jurisdictions may result in a challenge to the forum so as to be tried in a place which allows the defence (for example Ward v The Queen (1980) 142 CLR 308; 29 ALR 175 per Murphy J at 340; 199). The sections are based on s 2 of the English Homicide Act 1957, which took it from the law of Scotland: see Lord Advocate v Braithwaite 1945 SC (J) 55.

[4.2305] Legislation Qld: Criminal Code s 304A; Mental Health Act 2000 s 267; NT: Criminal Code s 159; NSW: Crimes Act 1900 s 23A (substantial impairment by abnormality of mind); ACT: Crimes Act 1900 s 14; Eng: Homicide Act 1957 s 2.

[4.2310] “Abnormality of mind” In R v Byrne [1960] 2 QB 396; [1960] 3 All ER 1; 44 Cr App R 246 (CA) Lord Parker said (at 403; 4; 252): “Abnormality of mind” … means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal. It appears to us to be wide enough to cover the mind’s activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgment whether an act is right or wrong, but also the ability to exercise will-power to control physical acts in accordance with that rational judgment.

542

ROSS ON CRIME

[4.2315]

Approved: McDermott v Director of Mental Health; Ex parte Attorney-General (2007) 175 A Crim R 461 (Qld CA); R v Chayna (1993) 66 A Crim R 178 at 190-191 (NSW CCA); R v Tumanako (1992) 64 A Crim R 149 at 159 (NSW CCA); Rose v The Queen [1961] AC 496; [1961] 1 All ER 496; 45 Cr App R 102 (PC); “[D]isabling passions of an ephemeral kind are not to count”: R v Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122 at 996, 126 (CCA) per Glass JA.

[4.2315] Definition of “substantially” In R v Lloyd [1967] 1 QB 175; [1966] 1 All ER 107; 50 Cr App R 61 the following direction of the trial judge was approved: Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence: was the mental responsibility impaired, and if so, was it substantially impaired?

The judgment was approved in: R v Biess [1967] Qd R 470 (CCA); Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342 at 366 (Qld CCA); R v Ignjatic (1993) 68 A Crim R 333 at 346 (NSW CCA); R v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536 at 431, 537 (Hunt CJ at CL). In R v Ryan (1995) 90 A Crim R 191 (NSW CCA) Hunt CJ at CL said (at 195–196): The “crucial” question in the defence of diminished responsibility is, however, whether the impairment of the accused’s mental responsibility for his act was substantial. Some impairment is not sufficient if the abnormality of mind did not really make any great difference, even though it may have made it harder for the accused to control himself, the impairment is not substantial. To be substantial, the impairment may be less than total, but it must be more than trivial or minimal. As the question involves matters of degree, it is essentially one to be determined by the jury. And, as the question is not merely a medical one of whether there was an impairment but also whether that impairment can “properly” be called substantial, this is a matter upon which juries may quite legitimately differ from the medical experts. It is often put to juries that an impairment is substantial if it is such as warrants the reduction of the crime from murder to manslaughter. Whether that impairment to the accused’s mental responsibility for his actions may properly be called substantial (in the sense of being such as to warrant the reduction of the crime from murder to manslaughter) is not a matter within the expertise of the medical profession. That is a task for the tribunal of fact, which must approach that task in a broad commonsense way. It involves a value judgment by the jury representing the community, not a finding of medical fact or opinion.

R v Ryan (1995) 90 A Crim R 191 was approved in R v Majdalawi (2000) 113 A Crim R 241 (NSW CCA).

[4.2320] Onus of proof The defence has the onus of proof on the balance of probabilities. In R v Dunbar [1958] 1 QB 1; [1957] 2 All ER 737; 41 Cr App R 182 (CA) the court held that a judge must direct the jury that: (a) the burden on the defence of establishing the defence is on the balance of probabilities;

[4.2330]

DIMINISHED RESPONSIBILITY

543

(b) the burden is discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish. In this event the proper verdict is manslaughter; (c) the burden of proving the defence is not nearly so heavy as that which the prosecution bears of proving the offence, which is proof beyond reasonable doubt; (d) if the offence is proved and the defence not proved the proper verdict is murder.

[4.2325] Felony murder Diminished responsibility is available where the prosecution relies on felony murder: R v Thompson (1988) 36 A Crim R 223 (NSW CCA).

[4.2330] Medical/psychiatric evidence Diminished responsibility is usually supported by medical evidence. However there is no requirement that such evidence be directly on the point that abnormality of mind at the time of the offence resulted in substantial impairment of responsibility: R v Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122 at 966, 125 (CCA). In R v Tumanako (1992) 64 A Crim R 149 (NSW CCA) Badgery-Parker J gave the leading judgment. He said (at 160): In Byrne [1960] 2 QB 396; 44 Cr App R 206 and Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122, there is helpful discussion of the role of medical evidence in the establishment of the defence. There is no legal requirement that the plea be supported by medical evidence. It is clearly open to a jury, upon evidence merely of the way in which an accused person behaved at relevant times, to draw an inference that at the time of the homicide he suffered from an abnormality of the mind; and if that and the necessary second element, the etiology of the condition, are established by evidence, there is no need, as was pointed out by Glass JA in Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122, for evidence bearing directly upon the question whether mental responsibility was substantially impaired. Nevertheless, on both the first and the third element, medical evidence is plainly admissible. Because the existence of the first and the third elements are matters for determination by the jury being matters of degree not capable of scientific measurement, and the jury is entitled to approach them in a broad commonsense way and not necessarily in accordance with the medical evidence, on neither issue is the jury bound to accept the medical evidence if there is other material before it which in the judgment of the jury, conflicts with it and outweighs it. The second element of the defence is of a different order. The etiology of the abnormality of mind is a matter which must be determined upon expert evidence: Byrne at 403; 252-253; Purdy at 966; 126. That is not to say, as Glass JA pointed out in Purdy [1982] 2 NSWLR 964; (1982) 7 A Crim R 122, that the expert evidence will fail in its purpose “merely because the psychiatrist cannot be persuaded to adopt the statutory terminology”. His Honour illustrated what he meant (at 966; 125-126): For example an opinion from an expert that the accused suffered from a disorder or a disturbance of the mind may be so expressed as to be capable of proving a disease within the meaning of the section although he is distinctly averse to using the term: cf Porter (1933) 55 CLR 182. Similarly, the judge could rule that evidence that the accused exhibited symptoms of severe mental disorientation as a result of trauma was capable of proving his mental abnormality although abnormality was not the subject of an express animadversion. There may be no legal requirement that medical evidence be adduced by an accused person, but as the English Court of Appeal pointed out in Dix (1982) 74 Cr App R 306 at 311, the need to establish that the accused person’s abnormality of mind arose from one of the specified causes makes the calling of medical evidence a practical necessity.

Other cases R v Trotter (1993) 35 NSWLR 428; 68 A Crim R 536 (NSW, Hunt CJ at CL);

544

ROSS ON CRIME

[4.2335]

R v Ryan (1995) 90 A Crim R 191 at 195–196 (NSW CCA); R v Majdalawi (2000) 113 A Crim R 241 (NSW CCA).

[4.2335] Failure to give evidence Although an accused may fail to give evidence of the facts on which medical evidence is based, the defence may still be available. In R v Bathurst [1968] 2 QB 99; [1968] 1 All ER 1175; 52 Cr App R 251 (CA) Parker LCJ referred to his earlier judgment in R v Ahmed Din [1962] 1 WLR 680; [1962] 2 All ER 123; 46 Cr App R 269 and said (at 106; 1177–1178; 255): That case sets out what undoubtedly is the true position, namely that while questions of diminished responsibility are largely matters of medical opinion, nevertheless, where there is any issue on the matter, it is for the defence to lay a foundation of fact upon which the experts can give their opinion. Having said that, however, this Court is quite clear that the court in Ahmed Din [1962] 1 WLR 680; 2 All ER 123; 46 Cr App R 269 never had in mind the idea that the defendant himself would have to be called. Their comment in that case is directed to the fact that the wife was not called to say that there were no reasonable grounds for his belief that she had been unfaithful, thus supporting the defence that he was suffering from a delusion, nor was the daughter called from whom some of the information was obtained, but the court never had in mind the idea that the defendant himself would be called, and indeed it is quite obvious, when one looks at that case, that it would be perfectly ridiculous to suppose that he should be called; if he did, he would have to go into the box and say: “I was suffering from a delusion,” which was the one thing which he could not possibly prove. Having said that, this Court feels strongly that while it may be there are cases in which a defendant ought to go into the witness-box, albeit his plea is one of diminished responsibility, yet the cases when comment on his failure to do so can properly be made must be very rare.

Other Cases Ramsay v Watson (1961) 108 CLR 642 at 647–649; R v Schafferius [1977] Qd R 213 (CCA). In Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 Mason CJ said (at 288; 62–63; 278): [A] person’s statements or declarations are an accepted means of proving his intentions in circumstances where it is material to prove what those intentions were. As Mellish LJ remarked in Sugden v Lord St Leonards (1876) 1 PD 154 at 251: “[W]herever it is material to prove the state of a person’s mind, or what was passing in it, and what were his intentions, there you may prove what he said”.

R v Pangallo (1989) 51 SASR 254; 44 A Crim R 462 was an insanity trial before Prior J alone. After referring to the above passage in Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 his Honour ruled (at 271; 479): The accused’s statements to the psychiatrists about his state of mind constitute original evidence. Such statements may be acted upon without the accused affirming them in evidence. The psychiatrists and the court can use what he said as a step in assessing the accused’s mental state on the days of the shootings.

In R v Perry (1990) 49 A Crim R 243 (NSW CCA), the accused was convicted of murder. His defence was diminished responsibility in the form of paranoid delusion that the victim was harassing him and had homosexually assaulted him. Experts gave evidence of the accused’s delusion but Gleeson CJ pointed out (at 249–250): If a person asserts, as does the appellant, that he or she was a victim of an assault on a specified occasion, there are a number of possibilities to be considered. Assuming that what is being said is not self-evidently false then one possibility to be considered is that the belief is well-founded, and

[4.2345]

DIMINISHED RESPONSIBILITY

545

that the person was in truth assaulted as is claimed. Another possibility is that the person is simply mistaken. A third possibility is that the person is lying. A fourth possibility is that the person is the victim of a delusion. There may be other possibilities as well. It is not necessary in this case to decide whether there may be circumstances in which, in the absence of objective evidence, it would be permissible for a psychiatrist to express as an expert opinion the conclusion that a person’s belief in a particular state of affairs was delusional. Science may make it possible to conclude from physical signs and symptoms that, for example, a person is hallucinating. … The present is a case where the belief entertained is not self-evidently irrational or mistaken, and, on the evidence, so far as this Court knows, and so far as the psychiatrists know, might be correct. In such a case it is not open to a party to tender, in the form of psychiatric opinion, a conclusion as to whether or not the assault occurred, followed by further conclusions to the effect that what the appellant is saying about his belief is not the result of a mistake or dishonesty on his part, but is the consequence of a paranoid delusion.

[4.2340] Unchallenged medical evidence Where there is unchallenged medical evidence so as to discharge an accused’s obligation of proof and there was a conviction for murder, an appeal court will set the conviction aside. In R v Dick [1966] Qd R 301 (CCA) Gibbs J said (at 305–306): However, in spite of differences in detail, all medical witnesses were in full agreement in their conclusions, namely, that the accused was suffering from an abnormality of mind, that this arose from epilepsy, and that it was at least probable that at the time of the killing it substantially impaired the capacity of the accused to control his actions. The jury may reject unanimous medical evidence that an accused person was of diminished responsibility if there is other evidence to support their verdict (see, for example, R v Ahmed Din [1962] 1 WLR 680; 2 All ER 123). Here, however, the evidence showed that the actions of the accused before, at, and after the time of the shooting were quite irrational, and the evidence as to his words and conduct does not conflict with medical evidence … In those circumstances, it seems to me that the case comes within the words used by the Court of Criminal Appeal in R v Matheson [1958] 1 WLR 474 at 479: “If, then, there is unchallenged evidence that there is abnormality of mind and consequent substantial impairment of mental responsibility, and no fact or circumstances appear that can displace or throw doubt on that evidence, it seems to the court that we are bound to say that a verdict of murder is unsupported by the evidence.”

This was approved in Taylor v The Queen (1978) 45 FLR 343; 22 ALR 599 where Connor and Franki JJ went on to say (at 364; 618): This passage is a clear illustration of the inability of the jury to reject unanimous medical evidence unless there is other evidence which can displace or throw doubt on that evidence.

Other cases R v Chester [1982] Qd R 252; (1981) 5 A Crim R 296 (CCA); R v Hall (1988) 36 A Crim R 368 (NSW CCA) (automatism); Walton v The Queen [1978] AC 788; [1978] 1 All ER 542; (1977) 66 Cr App R 25 (PC): medical evidence insufficient and in some conflict with the facts. The Board advised that the appeal be dismissed.

[4.2345] Medical evidence in dispute R v Nielsen [1990] 2 Qd R 578; (1990) 47 A Crim R 269 (CCA) was an appeal against a conviction for murder. The expert evidence on diminished responsibility seemed not to accord with the other evidence. The appeal was dismissed. In R v Chayna (1993) 66 A Crim R 178 (NSW CCA) the accused had been convicted of murder. Seven psychiatrists gave evidence. Leaving aside Dr Skinner, the psychiatrist called

546

ROSS ON CRIME

[4.2350]

by the prosecution who found depression but no abnormality, the psychiatric evidence was divided between insanity and diminished responsibility. The appeal was on the ground that the judge misdirected the jury on Dr Skinner’s evidence. The appeal was allowed and a verdict of manslaughter entered. See also R v Shearsmith [1967] Qd R 576 (CCA).

[4.2350] Disease or injury The effect of anabolic steroids on the brain resulting in heightened aggression may be a disease but is not an injury. Injury is physical damage. A disease due to voluntary steroid use does not give rise to the defence of diminished responsibility: R v De Souza (1997) 41 NSWLR 656; 95 A Crim R 1 (CCA).

[4.2355] Statements of principle: intoxication In R v De Souza (1997) 41 NSWLR 656; 95 A Crim R 1 (CCA) Powell JA, giving the judgment of the court, said (at 675–676; 20): [A]uthorities do establish, or at least provide support for, the following statements of principle: Although: (1) in a case in which the accused is charged with an offence of only “basic intent”, evidence of intoxication – even voluntary – is relevant in determining whether an act of the accused is voluntary: Ryan v R (1967) 121 CLR 205; R v O’Connor (1980) 146 CLR 64; (2) in a case in which the accused is charged with an offence requiring a specific intent, evidence that, at the time of the commission of the offence alleged, the accused was in an intoxicated state – even though due to the voluntary consumption of alcohol or drugs – can bear upon the question whether the Crown has established that, at the relevant time, the accused had that specific intent: see R v Jones [1982] Qd R 252 (at 44), per Street CJ: see also Viro v R (1978) 141 CLR 88; Cutter v R (1997) 71 ALJR 638; 143 ALR 498; (3) mental impairment due to disease or injury in the form of brain damage arising out of past alcohol or drug usage may be sufficient to constitute an “abnormality of mind” for the purposes of s 23A of the Act: R v Jones; R v Chester [1982] Qd R 252; R v Tandy (at 51), per Watkins LJ; (4) in a case in which the subject person’s alcoholism has reached a stage where, although the brain has not been damaged to such an extent, the subject person is no longer able to resist the temptation to drink – the taking of alcohol thus being, in effect, involuntary – that itself may constitute an “abnormality of mind” which might found a defence of diminished responsibility: R v Fenton (1975) 61 Cr App R 261 (at 263), per Widgery LCJ; R v Tandy (at 51), per Watkins LJ, as a general rule; (5) semble the state of intoxication due to the taking of alcohol or drugs is not to be regarded as an abnormality of the mind for the purpose of s 23A of the Act: R v Di Duca (1959) 43 Cr App R 167 (at 173-174), per Parker LCJ; R v Fenton (1975) 61 Cr App R 261 (at 263), per Widgery LCJ; R v Miers (at 141), per W B Campbell CJ; R v Jones [1982] Qd R 252 (at 44), per Street CJ; R v Whitworth [1989] 1 Qd R 437 at 445-446, per Thomas J; R v Nielsen [1990] 1 Qd R 578; (1990) 47 A Crim R 269; (6) a condition involving disinhibition and/or behaviour which has been modified as the result of a state of intoxication due to the taking of alcohol or drugs is not to be regarded as a condition “arising from … inherent causes”: R v Fenton (1975) 61 Cr App R 261 (at 263), per Widgery LCJ; R v Gittens (at 703), per Lane LCJ; R v Miers (at 141), per W B Campbell CJ; (7) semble, although the effect upon the brain of alcohol and at least some narcotic drugs seems generally to be described as “a toxic effect” (R v Di Duca (1959) 43 Cr App R 167 (at 173), per Parker LCJ; see also R v Miers (at 140)), in the absence of organic brain

[4.2365]

DIMINISHED RESPONSIBILITY

547

damage a condition involving disinhibition and/or behaviour which has been modified as the result of a state or intoxication due to the taking of alcohol or drugs is not to be regarded as a condition “induced by disease or injury” (R v Sanderson (at 336), per Roch LJ): that phrase is to be regarded as referring to abnormalities of the mind due to organic or physical injury or disease to the body including the brain, “functional mental illness” as a permissible cause of abnormality of the mind being included by the words “arising from … any inherent causes”: R v Sanderson (at 336).

[4.2360] Intoxication: some applications In R v Wood [2009] 1 WLR 496; [2008] 3 All ER 898; [2008] 2 Cr App R 34 (CCA) the accused was convicted of murder. He suffered from alcohol dependency syndrome. Psychiatric evidence was given. The court held that it gave rise to diminished responsibility and therefore manslaughter. R v Di Duca (1959) 43 Cr App R 167 (CA) was an appeal against a murder conviction. The defence argued diminished responsibility on the ground that the accused had an “injury”, namely the toxic effects of alcohol. In dismissing the appeal the court said (at 173): Whether the transient effect of drink, even if it does produce such a toxic effect on the brain, can amount to an injury within the section is, we think, very doubtful, but it is unnecessary to come to a final conclusion on the matter in the present case, for assuming that it can amount to an injury, the first question is whether there was any evidence of abnormality of mind. In our judgment, there was none.

In R v Fenton (1975) 61 Cr App R 261 (CA) Lord Widgery said (at 263–264): We recognise that cases may arise hereafter where the accused proves such a craving for drink or drugs as to produce in itself an abnormality of mind; but that is not proved in this case. The appellant did not give evidence and we do not see how self-induced intoxication can of itself produce an abnormality of mind due to inherent causes. Accordingly the judge was not guilty of a misdirection when he told the jury to ignore the effect of the alcohol.

In R v Jones (1982) 22 A Crim R 42 (NSW CCA) the accused had been convicted of murder. He had slight brain damage, hypoglycaemia and liver damage but not such as would even in combination amount to an irresponsibility under the section. He killed when drunk. Street CJ said (at 44): His Honour took the view, for reasons that he expounded upon in compelling form, that a temporary alcohol induced state of irresponsibility did not fall within s 23A(1) and I agree with his Honour’s conclusions in that regard. His Honour quoted in support of his decision a line of cases commencing with Di Duca (1959) 43 Cr App R 167; Clarke and King (1962) Crim LR 836 and Fenton (1975) 61 Cr App R 261. Those authorities amply bear out the conclusion that his Honour reached and they establish that a temporary state of current intoxication does not fall within the concept of diminished responsibility as defined by the statute, although it can, of course, bear upon the presence or absence of proof by the Crown of the requisite intention.

Other cases R v Ryan (1995) 90 A Crim R 191 (NSW CCA); R v Neilsen [1990] 2 Qd R 578; (1990) 47 A Crim R 269 (CCA); R v Turnbull (1977) 65 Cr App R 242.

[4.2365] Possible directions on intoxication (England) In R v Dietschmann [2003] 1 AC 1209; [2003] 2 WLR 613; [2003] 1 All ER 897 (HL) Lord Hutton with whom the other law lords agreed said (at [41]): [W]ithout attempting to lay down a precise form of words as the judge’s directions are bound to depend to some extent on the facts of the case before him, I consider that the jury should be directed along the following lines:

548

ROSS ON CRIME

[4.2370]

Assuming that the defence have established that the defendant was suffering from mental abnormality as described in s 2, the important question is: did that abnormality substantially impair his mental responsibility for his acts in doing the killing? You know that before he carried out the killing the defendant had had a lot to drink. Drink cannot be taken into account as something which contributed to his mental abnormality and to any impairment of mental responsibility arising from that abnormality. But you may take the view that both the defendant’s mental abnormality and drink played a part in impairing his mental responsibility for the killing and that he might not have killed if he had not taken drink. If you take that view, then the question for you to decide is this: has the defendant satisfied you that, despite the drink, his mental abnormality substantially impaired his mental responsibility for his fatal acts, or has he failed to satisfy you of that? If he has satisfied you of that, you will find him not guilty of murder but you may find him guilty of manslaughter. If he has not satisfied you of that, the defence of diminished responsibility is not available to him.

Lord Hutton then seemed to approve (at [42]) the draft suggested by Professor Sir John Smith as follows: You may think that all of these factors (including his drunkenness) played a part in causing D to act as he did. The only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses. If you are satisfied on the balance of probabilities that this abnormality existed and played such a part in his actions as, in your opinion, substantially to diminish his mental responsibility for those acts, you will find him not guilty of murder.

[4.2370] Insanity and diminished responsibility At issue is the right of the prosecution: • to argue insanity where the defence is diminished responsibility; • to argue diminished responsibility where the defence is insanity. In England it has been held that the prosecution should not argue insanity where the defence is diminished responsibility because an insanity verdict provided no right of appeal: R v Price [1963] 2 QB 1; [1962] 3 All ER 957; 47 Cr App R 21 (CA). That position does not obtain in the jurisdictions where diminished responsibility is available, that is where there is no right of appeal. This applies in: Qld: Criminal Code 1922 s 668.

[4.2375] Issue to be left to jury The issue should be left to the jury on the version of the evidence most favourable to the accused: R v Biess [1967] Qd R 470 (CCA). In an appropriate case the judge must direct the jury on the issue even though the defence does not raise or rely on the matter: R v Corry [1966] QWN 40.

[4.2380] Elements direction A judge must be careful to relate the evidence to the elements of the defence. See the long discussion by Badgery-Parker J in R v Tumanako (1992) 64 A Crim R 149 (NSW CCA) especially at 158–174. It is not sufficient simply to read the section to the jury: R v Terry [1961] 2 QB 314; [1961] 2 All ER 569; 45 Cr App R 180, or even to provide the jury with a copy of the section: R v Lock (2001) 121 A Crim R 219 at 226 [38] (Qld CA).

[4.2385] Onus of proof See [4.2320].

[4.2405]

DIRECTOR OF PUBLIC PROSECUTIONS

549

[4.2390] Directing a verdict In Morgan v Attorney-General (Qld) (1986) 24 A Crim R 342 McPherson J, with whom Kelly SPJ concurred, said after reviewing authorities (at 350): In my view none of the foregoing decisions establishes that a judge may direct a jury to find a general verdict of guilty except in circumstances where the facts constituting the elements of the offence are all either admitted, or “accepted”, or “not disputed”. That, in my view is tantamount to saying that there must be no challenge to the existence of those facts, or the proper inference to be drawn from them, before the judge can be entitled to direct a verdict of guilty. If, as seems logically to follow, the same principle will apply to cases in which the onus of proof rests upon the accused, then there may be circumstances in which a judge is entitled to direct a jury to return a verdict of not guilty; but, as was recognised in Vickers (1975) 61 Cr App R 48 at 51, cases in which a verdict may be directed, whether in favour of the prosecution or the defence where it carries the onus of proof, are certainly exceptional.

Morgan’s case was re-echoed with more authority in Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157. The court said (at 214–215): It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

[4.2395] Fresh evidence on appeal Fresh evidence of a physical and medical basis can be led on appeal: R v Barnett (1994) 71 A Crim R 515 (NSW CCA). See also Fresh evidence at [6.2300].

[4.2400] Sentence R v Potter; Ex parte Attorney-General (2008) 183 A Crim R 497 (Qld CA).

[4.2405] Writing RD Mackay, “The Abnormality of Mind Factor in Diminished Responsibility” [1999] Crim LR 117–125. John Dawson, “Diminished responsibility: The difference it makes” (2003) 11 Journal of Law and Medicine 103.

DIRECTOR OF PUBLIC PROSECUTIONS Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Purpose ........................................................................................................................................ Director of Public Prosecutions and review .............................................................................. Not ordinarily a party in appeals ............................................................................................... Consent required before charge .................................................................................................. Form of consent .......................................................................................................................... Refusal to give undertaking not to prosecute is not justiciable ................................................ Decision to prosecute or to continue a prosecution .................................................................. Prosecution of ethnic minorities ................................................................................................. Prosecution appeal when judge excludes evidence ...................................................................

[4.2600] [4.2605] [4.2610] [4.2615] [4.2620] [4.2625] [4.2630] [4.2635] [4.2640] [4.2645] [4.2650]

550

ROSS ON CRIME

[4.2600]

[4.2600] Meaning The Director of Public Prosecutions (DPP) and the DPP’s office are set up by statute. The functions are in the legislation but the primary purpose is to prosecute criminal cases.

[4.2605] Legislation Cth: Director of Public Prosecutions Act 1983; Qld: Director of Public Prosecutions Act 1984; WA: Director of Public Prosecutions Act 1991; Tas: Director of Public Prosecutions Act 1973; NT: Director of Public Prosecutions Act 1990; NSW: Director of Public Prosecutions Act 1986; Vic: Public Prosecutions Act 1994; SA: Director of Public Prosecutions Act 1991; ACT: Director of Public Prosecutions Act 1990; Eng: Prosecution of Offences Act 1985.

[4.2610] Purpose The establishment of a Director of Public Prosecutions is designed and intended to enhance the independence and manifest integrity of criminal process: Price v Ferris (1994) 34 NSWLR 704; 74 A Crim R 127 at 707–708, 130–131 (CA).

[4.2615] Director of Public Prosecutions and review In Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1 Gaudron and Gummow JJ said (at 534; 26; 205–206): It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence, and which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

In Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; 101 A Crim R 420; 155 ALR 539 Gaudron, Gummow and Hayne JJ, before quoting the above paragraph said, (at 579; 546 [21]): The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court’s processes (which are the province of the courts) is of fundamental importance.

In Langtree v Trenerry (1999) 9 NTLR 46; 152 FLR 117 Riley J said (at 55; 122 [27]): The fact that the decision to prosecute and the decision to continue with a prosecution are made by the Director of Public Prosecutions rather than the Attorney-General does not alter the position. This follows from the observations of Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1. See also Von Einem v Griffın (1998) 72 SASR 110 at 133.

[4.2630]

DIRECTOR OF PUBLIC PROSECUTIONS

551

[4.2620] Not ordinarily a party in appeals The Director of Public Prosecutions is not ordinarily a party to appeals, at least in Victoria. In R v Corless (1997) 93 A Crim R 594 (CA) Callaway JA said (at 599): [T]he Director is not a party and should not be named as such in an ordinary application for leave to appeal against conviction or sentence.

[4.2625] Consent required before charge The consent or approval of the Director of Public Prosecutions (or Attorney-General) is required before some charges can proceed. Examples are: Conspiracy (Criminal Code (Qld) ss 131(6), 132(3), 430(2), 541(2), 543(2); Crimes Act 1958 (Vic) s 32(4)); Judicial corruption (Criminal Code (Qld) s 120(4); Criminal Code (WA) s 121; Criminal Code (Tas) s 90; Criminal Code (NT) s 93(3)). The consent is a condition precedent to the charge for the provisions are mandatory. McDonnell v Smith (1918) 24 CLR 409; R v Evans [1964] VR 717 (FC); Stone v Law Society (1992) 108 FLR 332 (NT Martin J); R v Mihans (2000) 9 Tas R 229 (Slicer J).

[4.2630] Form of consent In R v Cain [1976] QB 496; [1975] 2 All ER 900; 61 Cr App R 186 (CA) the Attorney-General’s consent was as follows: THE EXPLOSIVE SUBSTANCES ACT, 1883 Re: ROBERT DAVID CAIN IN PURSUANCE of my powers under the above-named Act, I HEREBY CONSENT to the prosecution of ROBERT DAVID CAIN of 103 York Street, Heywood, Lancashire, for an offence or offences contrary to the provisions of the said Act. DATED this nineteenth day of July 1974 [signed] Sam Silkin Her Majesty’s Attorney-General.

Of that consent Widgery CJ said (at 502–503; 904; 190): [T]he purpose of requiring the Attorney-General’s consent to prosecutions under the Act of 1883 is to protect potential defendants from oppressive prosecutions under an Act whose language is necessarily vague and general. Hence it is not necessary that the Attorney-General should have considered and approved every detail of the charge as it ultimately appears in the indictment. His duty is to consider the general circumstances of the case, and to decide whether any, and, if he thinks fit, which, of the provisions of the Act can properly be pursued against the defendant who has been charged before the magistrate with one such offence. If the Attorney-General considers that the prosecutor should be at liberty to pursue any charge under the Act which is justified by the evidence, there is no constitutional objection to his giving consent in the wide terms adopted in the present case. Furthermore, when consent is given in any terms it should be presumed that the Attorney-General has made the necessary and proper inquiries before giving that consent.

Prosecutions under the Competition and Consumer Act 2010 (Cth) shall not be instituted without the minister’s written consent: s 163(4). In Traveland Pty Ltd v Doherty (1982) 63 FLR 41;6 A Crim R 181; 41 ALR 563; (FCA) Bowen CJ, Deane and Toohey JJ said (at 48;186–187 569; ):

552

ROSS ON CRIME

[4.2635]

The conclusion that an effective consent pursuant to s 163(4) may be worded in general terms does not, however, mean that the Minister is precluded from confining his consent more narrowly than he is required to do. If the consent is, in terms, limited to the institution of proceedings for one particular offence, it will not operate as a consent to proceedings for a different offence. If the consent particularizes conduct in respect of which a prosecution may be instituted, it will not operate as a consent to the institution of a prosecution in respect of quite different conduct. Where there is variance between any description or particulars of the offence contained in the consent and the description or particulars contained in the information and summons, a question will arise whether it can properly be said that, in the light of the variance, the proceedings which have been instituted are proceedings to the institution of which the Minister has consented.

See also DPP v Thompson (1991) 58 A Crim R 81 at 85 (NSW CCA). Attorney-General at [1.6800].

[4.2635] Refusal to give undertaking not to prosecute is not justiciable A refusal by the DPP to give an undertaking not to prosecute is not ordinarily justiciable. In R (Pretty) v DPP [2002] 1 AC 800; [2002] 1 All ER 1 (HL) Lord Steyn said (at 838; 31 [67]): If the Director refuses consent, the only remedy is judicial review. On the other hand, if he grants consent a defendant can raise any complaint in the criminal trial or on appeal. Since satellite litigation should be avoided in such cases, I would stand by the rule in R v DPP, Ex parte Kebiline, R v DPP, Ex parte Rechachi [2000] 2 AC 326, that absent dishonesty, mala fides or an exceptional circumstance, judicial review is not available in such cases.

Earlier, His Lordship said (at [66]): I would accept as sound the policy of the Director never to announce in advance, whether he will or will not bring criminal proceedings. Certainly, it is beyond his power to indicate, before the commission of a particular crime, that he will or will not prosecute if it is committed.

[4.2640] Decision to prosecute or to continue a prosecution All Australian Directors of Public Prosecutions have agreed upon a common set of principles to be used in determining the question as to whether or not a prosecution should be commenced or, if commenced, should be permitted to proceed. These principles are constantly reviewed at regular meetings of the Conference of Australian Directors of Public Prosecutions and are amended from time to time. Although in some jurisdictions these criteria are expressed in different language, they do not differ in substance. As at 30 June 1993, they were as hereunder.

The criteria governing the decision to prosecute 1. Sir Hartley Shawcross, QC, then Attorney-General, stated to the House of Commons on 29 January 1951: It has never been the rule in this country–I hope it never will be–that suspected criminal offences must automatically be the subject of prosecution. Indeed the very first Regulations under which the Director of Public Prosecutions worked provided that he should prosecute “whenever it appears that the offence or the circumstances of its commission is or are of such a nature that a prosecution in respect thereof is required in the public interest.” That is still the dominant consideration. (HC Debates, Vol. 483, col 681, 29 January 1951).

This statement is equally applicable to the position in Australia. The resources available for prosecution action are finite and should not be wasted pursuing inappropriate cases, a corollary of which is that the available resources are employed to pursue with some vigour those cases worthy of prosecution.

[4.2640]

DIRECTOR OF PUBLIC PROSECUTIONS

553

2. The decision whether or not to prosecute is the most important step in the prosecution process. In every case great care must be taken in the interests of the victim, the suspected offender and the community at large to ensure that the right decision is made. A wrong decision to prosecute or, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the Criminal Justice System. 3. The initial consideration in the exercise of this discretion is whether the evidence is sufficient to justify the institution or continuation of a prosecution. A prosecution should not be instituted or continued unless there is admissible, substantial and reliable evidence that a criminal offence known to the law has been committed by the alleged offender. (The term “alleged offender” includes a defendant or an accused person.) 4. When deciding whether the evidence is sufficient to justify the institution or continuation of a prosecution the existence of a bare prima facie case is not enough. Once it is established that there is a prima facie case it is then necessary to give consideration to the prospects of conviction. A prosecution should not proceed if there is no reasonable prospect of a conviction being secured. In indictable matters this test presupposes that the jury will act in an impartial manner in accordance with its instructions. 5. The decision whether there is a reasonable prospect of conviction requires an evaluation of how strong the case is likely to be when presented in court. It must take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the arbiter of fact, and the admissibility of any alleged confession or other evidence. The prosecutor should also have regard to any lines of defence which are plainly open to, or have been indicated by, the alleged offender and any other factors which in the view of the prosecutor could affect the likelihood or otherwise of a conviction. This assessment may be a difficult one to make, and of course, there can never be an assurance that a prosecution will succeed. Indeed, it is inevitable that some will fail. However, application of this test dispassionately after due deliberation by a person experienced in weighing the available evidence, is the best way of seeking to avoid the risk of prosecuting an innocent person and the useless expenditure of public funds. 6. When evaluating the evidence regard should be given to the following matters: (a) Are there grounds for believing the evidence may be excluded bearing in mind the principles of admissibility at common law and under statute? For example, prosecutors will wish to satisfy themselves that confessional evidence has been properly obtained. The possibility that any evidence might be excluded should be taken into account and, if it is crucial to the case, may substantially affect the decision whether or not to institute or proceed with a prosecution. (b) If the case depends in part on admissions by the alleged offender, are there any grounds for believing that they are of doubtful reliability having regard to the age, intelligence and apparent understanding of the alleged offender? (c) Does it appear that a witness is exaggerating, or that his or her memory is faulty, or that the witness is either hostile or friendly to the defendant, or may be otherwise unreliable? (d) Has a witness a motive for telling less than the whole truth?

554

ROSS ON CRIME

[4.2640]

(e) Are there matters which might properly be put to a witness by the defence to attack his or her credibility? (f) What sort of impression is the witness likely to make? How is the witness likely to stand up to cross-examination? Does the witness suffer from any physical or mental disability which is likely to affect his or her credibility? (g) If there is conflict between eye witnesses, does it go beyond what one would expect and hence materially weaken the case? (h) If there is a lack of conflict between eye witnesses, is there anything which causes suspicion that a false story may have been concocted? (i) Are all the necessary witnesses available and competent to give evidence, including any who may be abroad? Is any witness likely to obtain an exemption from giving evidence pursuant to s 400 of the Crimes Act 1958? (j) Where child witnesses are involved, are they likely to be able to give sworn evidence or, if not, is there corroboration in some material particular by some other evidence implicating the alleged offender? (k) If identity is likely to be an issue, how cogent and reliable is the evidence of those who purport to identify the alleged offender? (l) Where two or more alleged offenders are charged together, is there a realistic prospect of the proceedings being served? If so, is the admissible evidence sufficient to prove the case against each alleged offender should separate trials be ordered? 7. Having satisfied himself or herself that the evidence is sufficient to justify the institution or continuation of a prosecution, the prosecutor must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. It is not the rule that all offences brought to the attention of the authorities must be prosecuted. 8. The factors which can properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case. While many public interest factors militate against a decision to proceed with a prosecution, there are public interest factors which operate in favour of proceeding with a prosecution (for example, the seriousness of the offence, the need for deterrence). In this regard, generally speaking the more serious the offence, the less likely it will be that the public interest will not require that a prosecution be pursued. 9. Factors which may arise for consideration either alone or in combination in determining whether the public interest requires a prosecution include: (a) the seriousness or, conversely, the triviality of the alleged offence or that it is of a “technical” nature only; (b) any mitigating or aggravating circumstances; (c) the youth, age, intelligence, physical health, mental health or special infirmity of the alleged offender; (d) the alleged offender’s antecedents and background; (e) the staleness of the alleged offence; (f) the degree of culpability of the alleged offender in connection with the offence;

[4.2640]

DIRECTOR OF PUBLIC PROSECUTIONS

555

(g) the obsolescence or obscurity of the law; (h) whether the prosecution would be perceived as counterproductive, for example, by bringing the law into disrepute; (i) the availability and efficacy of any alternatives to prosecution; (j) the prevalence of the alleged offence and the need for deterrence, both personal and general; (k) whether the consequences of any resulting conviction would be unduly harsh and oppressive; (l) whether the alleged offence is of considerable public concern; (m) any entitlement of the State, the victim or other person or body to criminal compensation, reparation or forfeiture if prosecution action is taken; (n) the attitude of the victim of the alleged offence to a prosecution; (o) the likely length and expense of a trial; (p) whether the alleged offender is willing to co-operate in the investigation or prosecution of others, or the extent to which the alleged offender has done so; (q) the likely outcome in the event of a finding of guilt having regard to the sentencing options available to the court; (r) whether the alleged offence is triable only on indictment; and (s) the necessity to maintain public confidence in such basic institutions as the Parliament and the courts. The applicability of and weight to be given to these and other factors will depend on the particular circumstances of each case. 10. As a matter of practical reality the proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. Although there may be mitigating factors present in a particular case, often the proper decision will be to proceed with a prosecution and for those factors to be put to the court in mitigation at sentence. Nevertheless, where the offence is not serious as plainly to require prosecution the prosecutor should also apply his or her mind to whether the public interest requires a prosecution to be pursued. 11. Special considerations apply to the prosecution of juveniles. Prosecution of a juvenile should always be regarded as a severe step, and generally speaking a much stronger case can be made for methods of disposal which fall short of prosecution unless the seriousness of the offence or the circumstances of the juvenile concerned dictate otherwise. In this regard, ordinarily the public interest will not require the prosecution of a juvenile who is a first offender in circumstances where the offence is not serious. 12. In deciding whether or not the public interest warrants the prosecution of a juvenile, regard should be had to such of the factors set out in paragraph 8 as appear to be relevant, but particularly to: (a) the seriousness of the offence; (b) the age and apparent maturity and mental capacity of the juvenile;

556

ROSS ON CRIME

[4.2645]

(c) the available alternatives to prosecution, such as a caution, and their efficacy; (d) the sentencing options available to the relevant Children’s Court if the matter were to be prosecuted; (e) the juvenile’s family circumstances, particularly whether the parents of the juvenile appear able and prepared to exercise effective discipline and control over the juvenile; (f) the juvenile’s antecedents, including the circumstances of any previous caution the juvenile may have been given, and whether they are such as to indicate that a less formal disposal of the present matter would be inappropriate; (g) whether a prosecution would be likely to be harmful to the juvenile or be inappropriate, having regard to such matters as the personality of the juvenile and his or her family circumstances. 13. A decision whether or not to prosecute must clearly not be influenced by: (a) the race, religion, sex, national origin or political associations, activities or beliefs of the alleged offender or any other person involved; (b) personal feelings concerning the offender or the victim; (c) possible political advantage or disadvantage to the Government or any political group or party; or (d) the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.

[4.2645] Prosecution of ethnic minorities In B v DPP [1999] 3 WLR 116; [1998] 4 All ER 265 (QBD) Brooke LJ said (at 129; 277): All too often the indifference of Parliament to the need to spell out the mens rea requirements for serious criminal offences is mitigated by the exercise of generous helpings of prosecutorial discretion. Recent research into the reasons for the apparent overrepresentation of ethnic minorities in the docks of our criminal courts, however, has pointed fairly vividly to the potential risks of unfair discrimination if too much discretion is given to police and prosecutors when they decide who to charge and who not to charge when the facts reveal that an offence has been committed to which the law recognises no defence.

See also J McKechnie QC, “Directors of Public Prosecutions: Independent and Accountable” (1996) 15 Aust Bar Rev 122-136.

[4.2650] Prosecution appeal when judge excludes evidence A trial judge has various powers to exclude evidence. When evidence has been excluded the prosecution has sought judicial review in Victoria and appealed in New South Wales . Both proceedings succeeded. Rozenes v Beljajev (1995) 1 VR 533; 126 ALR 481 (FC). R v Bozatsis (1997) 97 A Crim R 296 (NSW CCA).

[4.2810]

DISCLOSURE

557

DISCLOSURE Meaning ....................................................................................................................................... The nature of the prosecution duty to disclose ......................................................................... Duty of the prosecutor ................................................................................................................ Court’s questions about prosecution disclosure ......................................................................... Prosecution duty to provide statement of witness not proposed to be called .......................... Prosecution has no duty to disclose matters affecting the credibility of defence witnesses .... Effect of non-disclosure by prosecution .................................................................................... It does not matter who in the prosecution side failed to disclose ............................................ Prior convictions and credit matters .......................................................................................... Judge’s power to order disclosure .............................................................................................. Magistrate’s power ...................................................................................................................... Defence duty to disclose ............................................................................................................

[4.2800] [4.2805] [4.2810] [4.2815] [4.2820] [4.2825] [4.2830] [4.2835] [4.2840] [4.2845] [4.2850] [4.2855]

[4.2800] Meaning Disclosure means the duty of one party to reveal to the other party the details of evidence in its hands. The duty always applies to the prosecution. It applies to the defence only by legislation.

[4.2805] The nature of the prosecution duty to disclose The duty to disclose is a duty owed to the court, not to the accused. In Cannon v Tahche (2002) 5 VR 317 (CA) the court said in a joint judgment (at 340 [57]): The prosecutor’s “duty of disclosure” has been the subject of much debate in appellate courts over the years. But, as it seems to us, authority suggests that, whatever the nature and extent of the “duty”, it is a duty owed to the court and not a duty, enforceable at law at the instance of the accused. This, we think, is made apparent when the so-called “duty” is described (correctly in our view) as a discretionary responsibility exercisable according to the circumstances as the prosecutor perceives them to be. The responsibility is, thus, dependent for its content upon what the prosecutor perceives, in the light of the facts known to him or her, that fairness in the trial process requires.

See also Hughes v Western Australia (2015) 299 FLR 197; [2015] WASCA 164; PAH v Western Australia [2015] WASCA 159.

[4.2810] Duty of the prosecutor There is a duty on the prosecution to disclose prior to trial all evidence that is relevant to the case. In R v Farquharson (2009) 26 VR 410; [2009] VSCA 307, at [213], it was held: The Crown has a duty to disclose material which can be seen on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue whose existence is not apparent from the evidence the prosecution proposes to use; (c) to hold out a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (a) or (b).

This rule was adopted from R v Spiteri (2004) 61 NSWLR 369; [2004] NSWCCA 321. See also R v Reardon (2004) 60 NSWLR 454; 146 A Crim R 475; [2004] NSWCCA 197 which cited the decision in R v Ward [1993] 2 All ER 577 where it was held that if the prosecution wished to claim public interest immunity, it is obliged to give notice to the defence of the asserted right so that it can be challenged if necessary by the defence. In Mallard v The Queen (2005) 224 CLR 125; 157 A Crim R 121; 222 ALR 236; [2005] HCA 68, at [17], the plurality of the High Court (Gummow, Hayne, Callinan and

558

ROSS ON CRIME

[4.2815]

Heydon JJ) stated “… that the prosecution must at common law also disclose all relevant evidence to an accused and that a failure to do so may, in some circumstances, require the quashing of a verdict of guilty”. The rule applies in relation to material in the possession of the prosecution and material which it should obtain: the prosecutorial “obligation to disclose includes, in an appropriate case, an obligation to make enquiries”: AJ v The Queen [2010] VSCA 331 at [22].

[4.2815] Court’s questions about prosecution disclosure In R v H [2004] 2 AC 134; [2004] 1 All ER 1269; [2004] 2 Cr App R 179 (HL) Lord Bingham delivered the opinion of the committee. His Lordship said (at 155–156; 1284–1285; 195 [36]): When any issue of derogation from the golden rule of full disclosure comes before it, the court must address a series of questions. (1) What is the material which the prosecution seek to withhold? This must be considered by the court in detail. (2) Is the material such as may weaken the prosecution case or strengthen that of defence? If No, disclosure should not be ordered. If Yes, full disclosure should (subject to (3), (4) and (5) below) be ordered. (3) Is there a real risk of serious prejudice to an important public interest (and, if so, what) if full disclosure of the material is ordered? If No, full disclosure should be ordered. (4) If the answer to (2) and (3) is Yes, can the defendant’s interest be protected without disclosure or disclosure be ordered to an extent or in a way which will give adequate protection to the public interest in question and also afford adequate protection to the interests of the defence? This question requires the court to consider, with specific reference to the material which the prosecution seek to withhold and the facts of the case and the defence as disclosed, whether the prosecution should formally admit what the defence seek to establish or whether disclosure short of full disclosure may be ordered. This may be done in appropriate cases by the preparation of summaries or extracts of evidence, or the provision of documents in an edited or anonymised form, provided the documents supplied are in each instance approved by the judge. In appropriate cases the appointment of special counsel may be a necessary step to ensure that the contentions of the prosecution are tested and the interests of the defendant protected (see para 22 above). In cases of exceptional difficulty the court may require the appointment of special counsel to ensure a correct answer to questions (2) and (3) as well as (4). (5) Do the measures proposed in answer to (4) represent the minimum derogation necessary to protect the public interest in question? If No, the court should order such greater disclosure as will represent the minimum derogation from the golden rule of full disclosure. (6) If limited disclosure is ordered pursuant to (4) or (5), may the effect be to render the trial process, viewed as a whole, unfair to the defendant? If Yes, then fuller disclosure should be ordered even if the leads or may lead the prosecution to discontinue the proceedings so as to avoid having to make disclosure. (7) If the answer to (6) when first given is No, does that remain the correct answer as the trial unfolds, evidence is adduced and the defence advances? It is important that the answer to (6) should not be treated as a final, once-and-for-all, answer but as a provisional answer which the court must keep under review.

[4.2820] Prosecution duty to provide statement of witness not proposed to be called In R v Mills [1998] AC 382; [1997] 3 All ER 780; [1998] 1 Cr App R 43 (HL) the point of law posed by the Court of Appeal was:

[4.2840]

DISCLOSURE

559

Where prosecuting counsel has reasonably decided that the maker of the statement is not a witness of truth and will seek to depart from, or contrive an explanation for, that statement if the witness is called, is the prosecution’s duty limited to furnishing the name and address of the witness only, or must counsel provide copies of the statement to the defence.

Lord Hutton concluded (at 406; 799; 65): [T]he answer to it should be that it is the duty of prosecuting counsel to provide a copy of the statement of the witness to the defence and that the duty is not limited to furnishing only the name and address of the witness.

[4.2825] Prosecution has no duty to disclose matters affecting the credibility of defence witnesses In R v Brown [1998] AC 367; [1998] 1 Cr App R 66; [1997] 3 All ER 769 (HL) Lord Hope of Craighead said (at 380; 76; 778): The common law rules which I have described are designed to ensure the disclosure of material in the hands of the prosecutor which may assist the defence case. But, once that duty has been satisfied, the investigation and preparation of the defence case is a matter for the defence. That includes the tracing, interviewing and assessment of possible defence witnesses. And material which may assist the defence case can be distinguished from material which may undermine it or may expose its weaknesses ... . To insist on such disclosure would, sooner or later, undermine the process of trial itself. It would protect from challenge those who were disposed to give false evidence in support of a defence which had been fabricated. That would be to tip the scales too far. Justice would not have been done.

[4.2830] Effect of non-disclosure by prosecution In Easterday v The Queen (2003) 143 A Crim R 154 (WACCA) Steytler J examined many authorities then said (at 190 [203]): [T]he possibility may also be open that the unfairness following from a non-disclosure has so pervaded and affected the trial that it has ceased to be a fair trial according to law. In such a case the verdict of guilty would be “intrinsically flawed”.

In R v Ward [1993] 1 WLR 619; [1993] 2 All ER 577; (1993) 96 Cr App R 1 (CCA) Glidewell LJ giving the judgment of the court said (at 642; 599; 22): Non-disclosure is a potent source of injustice and even with the benefit of hindsight, it will often be difficult to say whether or not an undisclosed item of evidence might have shifted the balance or opened up a new line of defence.

[4.2835] It does not matter who in the prosecution side failed to disclose In R v Lucas [1973] VR 693 (CCA) Smith ACJ said (at 696): For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him.

Approved: Subramaniam v The Queen (2004) 79 ALJR 116; 211 ALR 1 in a judgment of the whole court (at 127–128; 16 [54]).

[4.2840] Prior convictions and credit matters The prosecutor must disclose to the defence the prior convictions of a witness, and information which may reflect materially on credibility.

560

ROSS ON CRIME

[4.2845]

In R v K (1991) 161 LSJS 135 (SA CCA) King CJ said (at 140): There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware. R v Paraskeva (1982) 76 Cr App R 162. This obligation must, in principle, extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.

This was cited with approval by in AJ v The Queen [2010] VSCA 331 at [21]. Applied: R v Lewis-Hamilton [1998] 1 VR 630; (1997) 92 A Crim R 532 at 634–635, 536–537(CA). In R v Garofalo [1999] 2 VR 625 (CA) Ormiston JA said (at 637): [T]he rule may be stated that, at the least, in trials on presentment or indictment, the prosecution should inform the defence of any convictions of every proposed witness whose credibility may be in issue, if proof of any such conviction may reasonably be seen as capable of affecting the witness’s credibility. It is irrelevant that counsel or instructing solicitor or any other person directly engaged in the prosecution of the particular charge is unaware of any relevant conviction, for it is for the prosecution to make the necessary enquiries on computer or otherwise, although it could not be suggested that their obligations go further.

[4.2845] Judge’s power to order disclosure In R v Brown [1998] AC 367; [1998] 1 Cr App R 66; [1997] 3 All ER 769 (HL) Lord Hope of Craighead said (at 380; 76; 778): If fairness demands disclosure, then a way of ensuring that disclosure will be made must be found.

In Carter v Hayes (1994) 61 SASR 451; 72 A Crim R 387 (FC) King CJ said (at 456; 392): Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial (Clarkson v DPP [1990] VR 745 at 755), and is an aspect of the prosecution’s duty to ensure that the “Crown case is presented with fairness to the accused”: Richardson (1974) 131 CLR 116 at 119; Apostilides (1984) 154 CLR 563; 15 A Crim R 88. Moreover the court has power to order the production to the defence of material in the prosecution’s possession or power if the interests of justice so require: Clarke (1930) 22 Cr App R 58; Mahadeo [1936] 2 All ER 813; Hatt (1958) 43 Cr App R 29; Xinaris (1955) Crim LR 437; Charlton [1972] VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.

See also Freedom of Information Acts. Each jurisdiction except the Northern Territory has such legislation: Cth: Freedom of Information Act 1982; Qld: Freedom of Information Act 1992; WA: Freedom of Information Act 1992; Tas: Freedom of Information Act 1991; NSW: Freedom of Information Act 1989;

[4.3000]

DISCOVERY

561

Vic: Freedom of Information Act 1982; SA: Freedom of Information Act 1991; ACT: Freedom of Information Act 1989; NZ: Offıcial Information Act 1982 Commissioner of Police v Ombudsman [1988] 1 NZLR 385 (CA).

[4.2850] Magistrate’s power Summary case A magistrate has power to order disclosure: Gaffee v Johnson (1996) 90 A Crim R 157 at 165 (Vic, Smith J); Rice v Chute (1995) 119 FLR 181 at 185 (NT, Gray AJ).

Commital Again, a magistrate has power to order disclosure. In DPP v Webb (2001) 52 NSWLR 341; 164 FLR 394 (CA) the prosecution at committal relied largely on telephone intercepts. The magistrate hearing a committal told the prosecution to disclose the warrants and certificates in support. The prosecution objected saying that they did not rely on them. They appealed to a single judge and lost. Then to the Court of Appeal and lost again.

[4.2855] Defence duty to disclose Some legislation requires the defence to disclose some of its evidence to the prosecution. That duty is in addition to giving notice of alibi (see Alibi at [1.3800]).

Legislation Qld: Criminal Code s 590B; WA: Criminal Procedure Act 2004 ss 62, 96; NSW: Criminal Procedure Act 1986 Div 3; Vic: Criminal Procedure Act 2009 s 189(1); Eng: Criminal Justice Act 2003 ss 33–36; R v Monroe (2003) 56 NSWLR 652 (O’Keefe J). See also Discovery at [4.3000]; Expert evidence (Defence notice) at [5.2790] and Subpoena at [19.6300].

DISCOVERY Duty of prosecution to provide statements ................................................................................ Defence has no right to discovery ............................................................................................. Difference between discovery and subpoena ............................................................................. Judge’s power to order disclosure .............................................................................................. Civil action ..................................................................................................................................

[4.3000] [4.3005] [4.3010] [4.3015] [4.3020]

[4.3000] Duty of prosecution to provide statements Mahadeo v The Queen [1936] 2 All ER 813 (PC) was an appeal from Fiji against a murder conviction. The only witness to the death was Sukraj, who later helped conceal the body.

562

ROSS ON CRIME

[4.3005]

Before trial the defence wrote to the Attorney-General asking for all statements of the accused, and by Sukraj other than those produced as exhibits at the committal. The Board advised (at 816–817): This letter was taken exception to by the Attorney-General as containing insinuations that the prosecution had suppressed documents. In point of fact the Attorney-General was not aware that there were two statements, namely, those by Sukraj, which had not been produced. The Chief Justice characterised the letter as being highly improper. In the result the statements of Sukraj were not produced but they were available on the hearing of this appeal before their Lordships. The refusal of these documents is the subject of the first comment which their Lordships feel bound to make upon the conduct of this trial. There is no question but that they ought to have been produced, and their Lordships can find no impropriety in the letter asking for their production. It is true that upon cross-examination without the statements Sukraj admitted that he had at first put forward a story of suicide. But it is obvious that counsel defending the appellant was entitled to the benefit of whatever points he could make out of a comparison of the two documents in extenso with the oral evidence given and an examination of the circumstances under which the statements of the witnesses changed their purport.

In R v Charlton [1972] VR 758 (CCA) the accused was convicted of murder. Before trial the defence had written to the Crown asking for statements of any witnesses to be called. The trial judge refused to make an order. Mullaly, the prosecutor, assured Stabey, QC and the judge that there was no inconsistency between statement and evidence of any witness. On appeal, it was held that there was no right to the statements. Mahadeo was distinguished as turning on its own facts.

[4.3005] Defence has no right to discovery In Clarkson v DPP [1990] VR 745 (FC) Murphy J, with whom Crockett and Nathan JJ agreed, said (at 759): Chubb J held in R v Hamiguchi [1908] QSR 224 that the rules for discovery do not apply to criminal trials. In criminal trials we have a practice and procedure which stems from the application of considerations which do not apply to civil actions. The fairness which is expected to be shown by the Crown prosecutor to an accused is not part of the adversarial ethic in civil suits. So, whilst it would, generally speaking, be quite unfair for a prosecutor not voluntarily to produce to the accused material relevant to the trial and going to exculpate him, there is no rule which enables the accused to seek at the outset indiscriminately to see the relevant papers within the possession or control or power of the prosecution.

In Sobh v Police Force of Victoria [1994] 1 VR 41; (1993) 65 A Crim R 466 (FC) Brooking J said (at 47–48; 473): That there is no right in an accused person to obtain discovery of all documents relevant to the charge remains undoubtedly correct: R v Charlton [1972] VR 758; Clarkson v Director of Public Prosecutions [1990] VR 745, at p 759. But it cannot now be denied that the court in its criminal jurisdiction has inherent power to order the prosecutor to produce to the defence for inspection documents or things in the possession of the prosecutor where the interests of justice require it. The interests of justice are not confined to those of the accused. In determining whether the interests of justice require production, the judge may in a given case properly consider matters like delay and expense where numerous documents, not of any real importance, are in question. Again, production will not be ordered where a claim to privilege is upheld, as where the privilege against disclosing the identity of an informer is successfully relied on. And in a given case the danger of misuse by the unscrupulous which troubled Wigmore might lead to a refusal to order production.

See also R v Botmeh [2002] 1 WLR 531.

[4.3010] Difference between discovery and subpoena In Carter v Hayes (1994) 61 SASR 451; 72 A Crim R 387 (FC) King CJ said (at 454; 390):

[4.3200]

DISCRETION

563

Discovery is the process by which a party obtains disclosure and production for inspection of documents relevant to the case. It demands a judgment by the party who must make discovery as to whether documents are relevant. The party who is required to make discovery must disclose all relevant documents whether or not they possess evidentiary value, and that party is required to make the judgment as to relevance. A subpoena, on the other hand, demands production for the purpose of the case of documents which are identified either specifically or at least generically.

[4.3015] Judge’s power to order disclosure See also Disclosure at [4.2800].

[4.3020] Civil action An accused can obtain discovery by civil action. If an accused person has no right of discovery against the prosecution in a criminal case, a party in a civil case can discover against another party. John Elliott was a prominent businessman and Liberal party office-holder. He was examined by the National Crime Authority but he apprehended criminal proceedings over his business dealings. Civil proceedings were issued on 30 April 1993 against Seymour, an investigator for the National Crime Authority. The second defendant was Sherman, Chairperson of the National Crime Authority. Other defendants were the National Crime Authority and the Director of Public Prosecutions (Vic). The relief sought was a permanent injunction to restrain the defendants from laying charges. Most importantly, discovery was had. Applications for interim injunctions failed: Elliott v Seymour (1993) 119 ALR 1; 71 A Crim R 209 (FCA, Foster J; 119 ALR 46; 71 A Crim R 245 (FCA); 68 ALJR 173; 119 ALR 1 (HC, Gaudron J)).

DISCRETION Meanings ..................................................................................................................................... Discretion to exclude evidence .................................................................................................. Uniform Evidence Acts .............................................................................................................. Disregard of rights ...................................................................................................................... Unfair and unlawful police conduct ........................................................................................... Unreliable witness ....................................................................................................................... Christie discretion – prejudicial effect outweighs probative value ........................................... Appeal on ground that discretion miscarried ............................................................................. Discretion is the law of tyrants ..................................................................................................

[4.3200] [4.3205] [4.3210] [4.3215] [4.3220] [4.3225] [4.3230] [4.3235] [4.3240]

[4.3200] Meanings In Sharp v Wakefield [1891] AC 173; [1886-1890] All ER Rep 651 (HL) Lord Halsbury said (at 179; 653): [D]iscretion means, when it is said that something is to be done within the discretion of the authorities, that that something is to be done according to the rules of reason and justice, not to private opinion: Rooke’s Case, 5 Co Rep 99b at p 100a; 77 ER 209; according to law, and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular, and it must be exercised within the limit to which an honest man, competent to the discharge of his office, ought to confine himself: Wilson v Rastall (1792) 4 Term R 753; 100 ER 1283.

In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; 174 ALR 585 Gleeson CJ, Gaudron and Hayne JJ said (at 204–205; 591–592 [19]): “Discretion” is a notion that “signifies a number of different legal concepts”. In general terms, it refers to a decision-making process in which “no one [consideration] and no combination of [considerations] is necessarily determinative of the result”. Rather, the decision-maker is allowed

564

ROSS ON CRIME

[4.3205]

some latitude as to the choice of the decision to be made. The latitude may be considerable as, for example, where the relevant considerations are confined only by the subject matter and object of the legislation which confers the discretion. On the other hand, it may be quite narrow where, for example, the decision-maker is required to make a particular decision if he or she forms a particular opinion or value judgment. (footnotes omitted)

[4.3205] Discretion to exclude evidence In R v Merritt (1985) 19 A Crim R 360 (NSW CCA) Hunt J said (at 377-380): The first area of discretion arises where the prejudicial effect of that evidence outweighs its probative value: Noor Mohamed [1949] AC 182 at 192; Driscoll (1977) 137 CLR 517; 15 ALR 47 at 541; and see generally Gidley (1984) 3 NSWLR 168 at 172-173 … The second area of discretion arises where it would be unfair to use the confession in evidence against the accused: McDermott (1948) 76 CLR 501 at 506-507, 513; Lee (1950) 82 CLR 133 at 150-151; MacPherson (1981) 147 CLR 512 at 519-520. The issue is not whether the accused was treated unfairly; it is whether the reception of the evidence of the confession would be unfair to him (Cleland (1982) 151 CLR 1 at 18, 33) that is, unfair in the sense that its use would result in an unfair trial for the accused; Cleland (1982) 151 CLR 1 at 31, 34; unfair because the reliability of the confession has been affected by the propriety of the means used to procure it; McDermott (1948) 76 CLR 501 at 513; Lee (1950) 82 CLR 133 at 150-151; Cleland (1982) 151 CLR 1 at 9,19, 33. I cited earlier the authorities which demonstrate that the onus of establishing such unfairness or impropriety lies on the accused. The third area of discretion arises where, usually quite apart from any question of fairness to the accused, that evidence was unlawfully or improperly obtained; Ireland (1970) 126 CLR 321 at 334-335; Bunning v Cross (1978) 141 CLR 54 at 74-75; Dugan (1984) 2 NSWLR 554 at 558-559. Its principal area of operation is other than in relation to confessions, although it does apply to them, and its purpose is to insist that those whose duty it is to enforce the law themselves respect the law in doing so; Bunning v Cross (1978) 141 CLR 54 at 75; Cleland (1982) 151 CLR 1 at 8-9 (cf 32-33). Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price: Ireland (1970) 126 CLR 321 at 335.

Applied: R v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 at 551-552, 406 (CCA). In R v Heaney [1998] 4 VR 636; (1998) 100 A Crim R 450 (Vic) Coldrey J excluded a secretly taped conversation between the accused and an accomplice. The accomplice had lied to the accused. Coldrey J reviewed the authorities. He ruled (at 644; 458–459): Putting aside the issue of voluntariness, the current approach of the majority of the High Court to the exclusory discretion seems to be as follows. The fairness discretion encompasses considerations of the effect of the conduct of law enforcement officers upon the reliability of the impugned material. The term “law enforcement officers” may be regarded as including persons acting as their agents. The unfairness discretion will also come into play where some impropriety by law enforcement officers or their agent has eroded the procedural rights of the accused, occasioning some forensic disadvantage. Those procedural rights include the right to choose whether or not to speak to the police. Importantly, the method of eliciting an admission or confession will clearly be relevant in determining whether it would be unfair to an accused to admit it into evidence. The discretion to exclude evidence on the grounds of public policy may be enlivened where no unfairness to an accused is occasioned, but nonetheless, the method by which the confessional evidence has been elicited is unacceptable in light of prevailing community standards. This broad discretion will involve a balancing exercise.

[4.3210] Uniform Evidence Acts Uniform Evidence Acts contain at least two references to discretion, ss 90 and 138.

[4.3220]

DISCRETION

565

90 Discretion to exclude admissions In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence.

Cases R v GH (2000) 105 FCR 419 (FCA): an exculpatory statement is not an admission. Em v The Queen (2007) 232 CLR 67; 239 ALJR 204; 174 A Crim R 540; 239 ALR 204 at [51] contains references to the ALRC report. Section 138 gives the court the discretion to exclude evidence improperly or illegally obtained evidence; R v Dalley (2002) 132 A Crim R 169 (NSW CCA); R v Rondo (2001) 126 A Crim R 562 (NSW CCA); R v Cornwell (2003) 57 NSWLR 82 (Howie J); R v Sibraa [2012] NSWCCA 19. Gedeon v The Queen [2013] NSWCCA 257. In DPP v Marijancevic [2011] VSCA 355 it was held that a trial judge properly excluded evidence which had been obtained as a result of warrants that had not been sworn by police. In reaching this decision the Court of Appeal noted that s 138 is a discretion which on appeal attracts the principles in House v The King (1936) 55 CLR 499 and that the relevant variables that apply in the case of s 138 are similar to those at common law. See also, DW v The Queen [2014] NSWCCA 28.

[4.3215] Disregard of rights In Parker v Comptroller-General of Customs (2007) 243 ALR 574 (NSW CA) Basten JA, with whom the other judges agreed, said (at [65]): What can be said without equivocation is that obtaining evidence in deliberate, wilful or even reckless disregard of an individual’s civil rights is likely to be a strong factor against the exercise of the discretion to admit the evidence.

[4.3220] Unfair and unlawful police conduct In R v Ireland (1970) 126 CLR 321 Barwick CJ said (at 334–335): Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from common law or from statute. But it may be that acts in breach of statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things so ascertained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. 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

566

ROSS ON CRIME

[4.3225]

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.

In Ireland it was a photograph of the accused’s injured hand which may have connected him with the crime. The police told him that the photograph had to be taken. If a confession has been procured by unlawful police conduct the trial judge can consider whether the evidence should be excluded. There are two discretions. In Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 (HC) the accused was arrested when there was nothing to connect him with the crime, arson of a school. He said police told him if he did not confess he would be bashed and his brother arrested. The police conceded the arrest was for questioning. Mason CJ, Deane, Dawson, Toohey and Gaudron JJ said (at 554; 6–7; 117–118): It is now settled that, in a case where a voluntary confessional statement has been procured by unlawful police conduct, a trial judge should, if appropriate objection is taken on behalf of the accused, consider whether evidence of the statement should be excluded in the exercise of either of two independent discretions. The first of those discretions exists as part of a cohesive body of principles and rules on the special subject of evidence of confessional statements. It is the discretion to exclude evidence on the ground that its reception would be unfair to the accused, a discretion which is not confined to unlawfully obtained evidence. The second of those discretions is a particular instance of a discretion which exists in relation to unlawfully obtained evidence generally, whether confessional or “real”. It is the discretion to exclude evidence of such a confessional statement on public policy grounds. The considerations relevant to the exercise of each discretion have been identified in a number of past cases in the Court. To no small extent, they overlap. The focus of the two discretions is, however, different. In particular, when the question of unfairness to the accused is under consideration, the focus will tend to be on the effect of the unlawful conduct on the particular accused whereas, when the question of the requirements of public policy is under consideration, the focus will be on “large matters of public policy” and the relevance and importance of fairness and unfairness to the particular accused will depend upon the circumstances of the particular case. In a case where both discretions are relied upon to support an application for the exclusion of a voluntary incriminating statement obtained by unlawful police conduct, it will commonly be convenient for the court to address first the question whether the evidence should be excluded on the ground that its reception and use in evidence would be unfair to the accused. It is so in the present case.

See also Bunning v Cross at [2.4300]; and Police at [16.2300]. Uniform Evidence Acts contains a discretion similar to the Christie discretion, in s 137. This section places the onus on the accused: R v DG; DG v R [2010] VSCA 173. In exercising the discretion, the reliability of the evidence is not relevant – the evidence should be taken at its highest - in New South Wales and Tasmania (R v Mundine [2008] NSWCCA 55; K M J v Tasmania [2011] TASCCA 7). Previously, the reliability of the evidence was relevant to the exercise of the discretion in Victoria (Dupas v The Queen (2012) 218 A Crim R 507; [2012] VSCA 328), however, the High Court in In IMM v The Queen [2016] HCA 14 held that in applying the discretion pursuant to s 137 that the reliability or credibility of the evidence was not relevant.

[4.3225] Unreliable witness Whether a judge has a discretion to exclude the evidence of a witness which he thinks is unreliable has had different results in different states. Indemnified witnesses, accomplices, are dealt with in such cases: R v Falzon [1990] 2 Qd R 438 (de Jersey J); R v Mclean & Funk [1991] 1 Qd R 231; (1990) 47 A Crim R 240 (CCA);

[4.3230]

DISCRETION

567

R v Von Einem (No 2) (1991) 52 A Crim R 402 (SA, Duggan J); R v D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71 (Qld CCA); R v Peirce [1992] 1 VR 273 (Vincent J); R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (CCA); R v Stead [1994] 1 Qd R 665; (1992) 62 A Crim R 40 (CCA); Rozenes v Beljajev (1995) 1 VR 533; 126 ALR 481 (CA).

[4.3230] Christie discretion – prejudicial effect outweighs probative value The expression comes from R v Christie [1914] AC 545; [1914] All ER Rep 63; (1914) 10 Cr App R 141 (HL). Albert Christie was convicted of indecent assault on a small boy. The boy’s mother and a policeman give evidence that her son had identified the accused and recounted the offence. Mr Christie said “I am innocent”. The boy himself did not give evidence of his identification. The appeal was successful. The prosecution went to the House of Lords and failed. The secondary identification evidence should not have been admitted because: The law is so much on its guard against the accused being prejudiced by evidence which, though admissible, would probably have a prejudicial influence on the minds of the jury, which would be out of proportion to its true evidential value … (Lord Moulton at 559, 69, 160).

Other judges made similar remarks. Christie has been followed in Australia. In Driscoll v The Queen (1977) 137 CLR 517; 15 ALR 47 Gibbs J said (at 541): It has long been established that the judge presiding at a criminal trial has a discretion to exclude evidence if the strict rules of admissibility would operate unfairly against the accused. The exercise of this discretion is particularly called for if the evidence has little or no weight, but may be gravely prejudicial to the accused: see, eg, R v Christie [1914] AC 545; All ER Rep 63; 10 Cr App R 141 at 560.

Other cases too numerous to mention refer to the “Christie discretion”. It is, however, only part of a judge’s discretion to exclude. In R v Sang [1980] AC 402; [1979] 2 All ER 1222; (1979) 69 Cr App R 282 (HL) Lord Scarman said (at 454; 1245; 305): At first, the judge would be expected to use his influence (R v Christie [1914] AC 545) to dissuade the prosecution from doing what the statute or the common law allowed: but by the time Kuruma v The Queen [1955] AC 197 was decided influence had become power. Lord Goddard CJ was able to say, in that case, at p 204: No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused. R v Christie [1914] AC 545 is, therefore, only a staging-post in the development of the law. The modern discretion is a general one to be exercised where fairness to the accused requires its exercise.

In R v Sandford (1994) 72 A Crim R 160 (NSW CCA) Hunt CJ at CL said (at 178): Despite an apparently unshakeable misconception to the contrary on the part of some members of the legal profession, the mere fact that evidence tendered by the Crown is of little weight by itself does not require its rejection under this head of judicial discretion. Nor will evidence be excluded where the only prejudice which it causes is that it establishes (or tends to establish, or assists in establishing) the guilt of the accused. The Christie discretion to exclude evidence is usually directed to evidence which, although not itself probative (or only slightly probative) of guilt, is

568

ROSS ON CRIME

[4.3235]

also probative of some other matter which may wrongly be regarded by the jury as probative (or strongly probative) of guilt – for example, propensity: Scott and Barnes [1989] AC 1242 at 1256-1257; (1989) 89 Cr App R 153 at 159-160; Masters (1992) 26 NSWLR 450 at 479; 59 A Crim R 445 at 472-473.

(Note that this part of the judgment is not in the report of the case at (1994) 33 NSWLR 172.) In R v Lobban (2000) 77 SASR 24; 112 A Crim R 357 (CCA) Martin J, delivering the leading judgment, said (at 49–50; 383 [86]): I favour the view that it is more appropriate to recognise the Christie [1914] AC 545; All ER Rep 63; 10 Cr App R 141 direction as an example of the application of the general unfairness discretion. In this way the exercise of the discretion is not fettered by the strictness that tends to accompany categories and all relevant factors, including the probative value in comparison with the prejudicial value, can be taken into account by the court. The majority in Swaffıeld and Pavic identified the purpose of guarding against a miscarriage of justice as the purpose of the Christie [1914] AC 545; All ER Rep 63; 10 Cr App R 141-type discretion. The general unfairness discretion as I have described it achieves this purpose.

In Police v Dunstall (2015) 89 ALJR 677; 322 ALR 440; [2015] HCA 26, the High Court took a narrow view of the Christie discretion and the more general unfairness discretion, holding that it was not applicable to a legislative scheme for the prosecution of intoxicated drivers because the unfairness that was alleged (the difficulty in challenging the accuracy of a breath analysis reading) was a direct and intended operation of the relevant statute. The Christie discretion is reflected in s 137 of the Uniform Evidence Acts. For discussion of this section, see IMM v The Queen [2016] HCA 14.

[4.3235] Appeal on ground that discretion miscarried In Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Kitto J said (at 627): [T]rue principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v The King (1936) 55 CLR 499 at 504, 505.

In Stanoevski v The Queen (2001) 202 CLR 115; 177 ALR 285; 118 A Crim R 247 the accused had put her good character in issue. The trial judge allowed the prosecutor to cross-examine the accused on a peripheral matter of credit. The judge did not consider the matters bearing on the discretion contained in the Evidence Act 1995 (NSW) s 192. The appeal was allowed.

[4.3240] Discretion is the law of tyrants Lord Camden CJ said in Doe d Hindson v Kersey (1765): The Discretion of a Judge is the Law of Tyrants; it is always unknown; it is different in different Men; it is casual, and depends on Constitution, Temper, and Passion. In the best it is often-times Caprice, in the worst it is every Vice, Folly, and Passion to which human Nature is liable.

The quote and citation are in R.E. Megarry, Miscellany at Law (Stevens & Sons Ltd, London, 1955) p 219.

[4.3420]

DISHONESTY

569

See also S Edelman, “Judicial Discretion in Australia” (2000) 19 Aust Bar Rev 285-300.

DISHONESTY Offences ....................................................................................................................................... Legislation ................................................................................................................................... Definition ..................................................................................................................................... Fraudulently equals dishonestly ................................................................................................. Judge’s direction .........................................................................................................................

[4.3400] [4.3405] [4.3410] [4.3415] [4.3420]

[4.3400] Offences Various statutes make acting dishonestly as part of an offence. These are largely property offences.

[4.3405] Legislation Cth: Criminal Code Act 1995 s 134.1(1); Qld: Criminal Code s 408C; Tas: Criminal Code ss 226, 228–230, 233; Police Offences Act 1993 ss 38A, 43D; Vic: Crimes Act 1958 ss 72–73, 81–83, 88; SA: Criminal Law Consolidation Act 1935 ss 131, 134, 139, 140–143; ACT: Criminal Code 2002 ss 325–336.

[4.3410] Definition In R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (CCA) Fullagar J said (at 432; 23): In my opinion “dishonestly”, in this statute, is used in that sense of “with disposition to defraud” which means “with disposition to withhold from a person what is his right” and in the special context thus imports into the offence the element that the actor must obtain “the property” without any belief that he himself has any legal right to deprive the other of it.

In R v Love (1989) 17 NSWLR 608; 44 A Crim R 416 at 615-616, 423, the court followed R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (CCA) and the judgment of Fullagar J: [W]hen a claim of legal right of the kind now in question is raised, the issue is whether there was a belief in a legal right to obtain the property, not whether there was a belief in a legal right to practise the deception. Fullagar J said (at 440; 32): A claim of right … does not require a belief in the accused in the right to obtain the property by the deception or by the particular deception employed. It is the obtaining that the Crown must prove was done dishonestly, not the practising of the deception.

[4.3415] Fraudulently equals dishonestly In R v Glenister [1980] 2 NSWLR 597; (1980) 3 A Crim R 210 (CCA) the court said in a joint judgment (at 604; 215): We are satisfied that the course of judicial decision in the hundred years or so since these new statutory offences were created has assigned to the term “fraudulently” a meaning interchangeable with “dishonestly”.

[4.3420] Judge’s direction In Peters v The Queen (1998) 192 CLR 493; 96 A Crim R 250; 151 ALR 51 Toohey and Gaudron JJ said (at 504; 56–57; 256 [18]):

570

ROSS ON CRIME

[4.3600]

[T]he proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest. Necessarily, the test to be applied in deciding whether the act done is properly characterised as dishonest will differ depending on whether the question is whether it was dishonest according to ordinary notions or dishonest in some special sense. If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people. However, if “dishonest” is used in some special sense in legislation creating an offence, it will ordinarily be necessary for the jury to be told what is or, perhaps, more usually, what is not meant by that word. Certainly, it will be necessary for the jury to be instructed as to that special meaning if there is an issue whether the act in question is properly characterised as dishonest.

Applied: Kwok v The Queen (2007) 175 A Crim R 278 at 295 [82] (NSW CCA). In Macleod v The Queen (2003) 214 CLR 230; 197 ALR 333; 140 A Crim R 343 McHugh J said (at 256; 353; 365 [100]): [I]n accordance with Peters (1998) 192 CLR 493; 151 ALR 51; 96 A Crim R 250, the trial judge in a case like the present must: (a) identify the knowledge, belief or intent which is said to render the relevant conduct dishonest; and (b) instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest; and (c) direct the jury that, in determining whether the conduct of the accused was dishonest, the standard is that of ordinary, decent people.

See also Defrauding at [4.900].

DISORDERLY CONDUCT Meaning ....................................................................................................................................... [4.3600] Legislation ................................................................................................................................... [4.3605] Examples ..................................................................................................................................... [4.3610]

[4.3600] Meaning In Barrington v Austin [1939] SASR 130 (Napier J) his Honour, interpreting the words in the legislation, said (at 132): [T]hese words “disorderly behaviour”, refer to any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place.

In Watson v Trenerry (1998) 122 NTR 1; 145 FLR 159; 100 A Crim R 408 (CA) the court approved Barrington v Austin. Angel J said (at 5; 163; 411): I am of the view ... that “disorderly behaviour” is not a legal conception fixed by judicial decision, but rather is an ordinary and rudimentary expression (like “reasonable doubt”) which eludes a priori definition. It can be illustrated but not defined; it is to be applied to the circumstances of each case by the finder of fact.

In Coleman v Power (2004) 220 CLR 1; 78 ALJR 1166; 209 ALR 182 Gleeson CJ said at 25 [12] (CLR): Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech.

[4.3810]

DIVERSION PROGRAM

571

[4.3605] Legislation Legislation refers to disorderly conduct or disorderly behaviour. Cth: Electoral Act 1918 s 347 (behaviour); Qld: Summary Offences Act 2005 s 6 (behaviour); WA: Criminal Code s 74A(2) (conduct); Tas: Public Offences Act 1935 s 13(1)(c) (conduct); NT: Summary of Offences Act 1978 s 47(a) (behaviour); SA: Summary Offences Act 1953 s 7(1)(a). Other legislation makes it an offence for a refreshment house or licensed premises to allow a patron to act in a disorderly way.

[4.3610] Examples Disorderly Heanes v Herangi (2007) 175 A Crim R 175 (WA, Johnson J): in a public place telling police “Get fucked. Fuck off”.

Not disorderly Watson v Trenerry (1998) 122 NTR 1; 145 FLR 159; 100 A Crim R 408 (CA): burning a flag during a peaceful march. E (a Child) v Staats (1994) 13 WAR 1; 76 A Crim R 343 (White J): a 15-year-old told police in a police station “You can get fucked. Fuck you”.

DIVERSION PROGRAM Nature of diversion program ...................................................................................................... Origin .......................................................................................................................................... Legislation ................................................................................................................................... Cases ............................................................................................................................................

[4.3800] [4.3805] [4.3810] [4.3815]

[4.3800] Nature of diversion program Diversion gives an offender the chance to avoid a criminal conviction by undertaking conditions. It is a form of restorative justice designed to benefit the offender, the victim and the community. Such an offender will usually be young and not to have offended before.

[4.3805] Origin The diversion program began in New Zealand in 1988. It was designed to deal with Maori issues, and was run by New Zealand police: Children, Young Persons and Their Families Act 1989.

[4.3810] Legislation Australian legislation is various. In common are the factors that: • the offence is triable summarily; • the defendant admits the facts; • the evidence is sufficient for conviction;

572

ROSS ON CRIME

[4.3815]

• a diversion is appropriate. Some of the legislation provides for the police cautioning the person before proceeding, and for conferences with various interested parties. Qld: Drug Rehabilitation (Court Division) Act 2000; Juvenile Justice Act 1992 esp ss 14–21; WA: Young Offenders Act 1994 s 22Aff; Tas: Youth Justice Act 1997 ss 8–12 (caution); ss 13–19 (conferences); NT: Youth Justice Act ss 37–44 (by police); s 64 (by court); NSW: Young Offenders Act 1997 ss 13–17 (warning); ss 18–33 (caution); s 34ff (conferences); Pre-Trial Diversion of Offenders Act 1985; Vic: Criminal Procedure Act 2009 s 59 (Koori Court); SA: Young Offenders Act 1993 ss 6–8 (caution); ss 9–12 (conferences); ACT: Crimes (Restorative Justice) Act 2004.

[4.3815] Cases Miller v Burgoyne (2004) 150 A Crim R 7 (NT, Olsson AJ). PBRM v Police (2002) 129 A Crim R 576 (SA, Gray J).

DNA The principle ............................................................................................................................... Features and failings ................................................................................................................... The role of Lifecodes Corporation ............................................................................................. The laboratory protocol for DNA profiling ............................................................................... The statistical stage (the ninth step) .......................................................................................... Extraction and amplification ....................................................................................................... R v Pantoja .................................................................................................................................. No hearsay by expert .................................................................................................................. Expert doubtful on sample ......................................................................................................... Statistical probability .................................................................................................................. Guidelines of admissibility ......................................................................................................... Effect of proof beyond reasonable doubt ................................................................................... Destruction of samples ............................................................................................................... Legislation ................................................................................................................................... The prosecutor’s fallacy .............................................................................................................

[4.4000] [4.4005] [4.4010] [4.4015] [4.4020] [4.4025] [4.4030] [4.4035] [4.4040] [4.4045] [4.4050] [4.4055] [4.4060] [4.4065] [4.4070]

[4.4000] The principle Drs Francis Crick and James Watson won the 1962 Nobel Prize for the influence of DNA on genetics: James D Watson The Double Helix (Weidenfeld & Nicholson, London 1968, Penguin Books, 1970). In R v Green (unreported, NSW CCA, 26 March 1993) Cripps JA said: DNA is short for Deoxyribonucleic Acid. The DNA molecule is present in almost every cell in the body. There are none in red blood cells. The molecule stores genetic information inherited from both parents and accounts, inter alia, for the differences between individuals. When unwound the molecule has the appearance of a double helix. Each strand is connected by “bases” (adenine, guanine, cytosine and thymine). Although DNA is concerned with genetic functions, a part of the strand has no known functions. That part is referred to as “junk” DNA. Every human being has a unique set of DNA with the exception of identical twins who have the same. The variations making

[4.4010]

DNA

573

the molecule unique in any one individual are most pronounced in the “junk” part of the strand. Laboratory profiling involves the unwinding of the molecular strand and the examination of the “junk” part.

Followed: R v Pantoja (1996) 88 A Crim R 554 (NSW CCA). Other cases R v Doheny [1997] 1 Cr App R 369 at 371–372 (CA); R v Berry (2007) 17 VR 153; 176 A Crim R 195 (CA); R v Karger [2001] SASC 64 (29 March 2001) (Mullighan J).

[4.4005] Features and failings 1. DNA is a probability, not a fingerprint. 2. It is not possible to tell how long DNA was on an item. 3. Where there is more than one DNA trace on an item it is impossible to know the order in which they came to be there. 4. Items can easily be contaminated in the laboratory. 5. Once isolated in the laboratory DNA is easily transferable to other items. 6. There is no requirement that DNA evidence should be corroborated: Forbes v The Queen (2009) 167 ACTR 1; 232 FLR 229; [2009] ACTCA 10. 7. All Australian jurisdictions have legislative provisions enabling investigative officials to take body samples from suspects or people convicted of serious offences. These samples can be often used for DNA testing: see Laws of Australia at [11.1.1560]. 8. The starting point relating to the admissibility of DNA evidence is that it is a form of circumstantial evidence and there are no special rules which distinguish it from other forms of circumstantial evidence. See also Kirsten Edwards, “Ten things about DNA contamination that lawyers should know” (2005) 29 Crim LJ 71-93. Urbas G, “The High Court and the Admissibility of DNA Evidence: Aytugrul v The Queen [2012] HCA 15” (2012) 11(1) Canberra Law Review 89. Riley v Western Australia (2005) 30 WAR 525 (CA).

[4.4010] The role of Lifecodes Corporation In R v Lucas (1992) 2 VR 109; 55 A Crim R 361 Hampel J ruled (at 110; 362–363): DNA testing, then known as “fingerprinting”, was developed in about 1984 by a Dr Alec Jeffries at the University of Leicester, UK. A modified version, now designated “DNA profiling” was developed by a US company, Lifecodes Corporation (Lifecodes) and used by Dr Roberts in this case. Lifecodes through an Australian sub-licensee provides SFSL with the technology to conduct the tests, including probes and other reagents used in the testing procedure. SFSL also relies on population data from Lifecodes in order to determine how common a given profile is in the general population. This information is said to be based on samples of the USA Caucasian, African and Hispanic populations.

574

ROSS ON CRIME

[4.4015]

In R v Pantoja (1996) 88 A Crim R 554 (NSW CCA) Abadee J said (at 568): In relation to the subject of database, Dr Kessly was questioned about the Lifecodes company which manufactures DNA testing kits. When asked why they supply databases of different ethnic groupings, rather than just using any database, he said “You’d have to ask them I think”.

[4.4015] The laboratory protocol for DNA profiling There are eight steps to DNA profiling. The description of Hampel J in R v Lucas (1992) 2 VR 109; 55 A Crim R 361, then that of Cripps JA in R v Green (unreported, NSW CCA, 26 March 1993) will be used. Any differences are the result of the different evidence in each case. Hampel J:

Cripps JA:

1. The samples of biological material are collected.

1. The strand is isolated and purified.

2. The DNA is extracted from the sample by various purification techniques.

2. It is treated by an enzyme which cuts the strand in the area of junk DNA.

3. Its quantity and quality is determined by running the sample on a yield gel. If there is sufficient intact DNA available for testing the fourth step takes place.

3. This involves electrophoresis, a process which results in columns (or lanes) of fragments of the strand positioned according to size.

4. The DNA is digested by a restriction enzyme. The enzyme cuts the DNA at specific sites. The result is a reproducible series of smaller fragments.

4. The fragments are then transferred to a membrane in single strands and washed in solution.

5. This set of fragments is placed in a slot or well in a gel and subjected to an electric current. DNA is negatively charged in solution. The fragments therefore migrate through the gel. The speed at which they migrate is determined by their size or length, the smaller moving more quickly. This process is known as electrophoresis.

5. There is further washing of the membrane in a chemical solution containing molecules of synthetic radioactive DNA (“probes”) which become an exact replica of the “junk” DNA originally taken from the body cell.

[4.4015]

DNA

Hampel J:

575

Cripps JA:

6. A pattern of fragments is obtained and is permanently fixed to a nylon membrane in a procedure called Southern transfer.

6. The dried membrane is then placed in contact with an X-ray film and kept in the dark for such time as the case warrants. A small black line or “band” appears on the X-ray film. When the film is developed it shows a series of “bands” in lanes corresponding to the position where radioactivity has bound to its mate on the membrane. The film is called an autoradiograph or “autorad”.

7. A radioactive probe is applied. A probe is a small piece of DNA designed to bind to specific sites of variable DNA in a way analogous to a key fitting into a lock. The membrane is incubated with the probe for at least 16 hours.

7. - 8. These steps can, for convenience be described as the method whereby the samples are matched. The position of the “bands” on the “autorad” are examined and if the fragment sizes are shown to be within the standard deviation for the test there is said to be a “match”.

8. The membrane is placed against an X-ray film which develops a series of dark bands likened to a supermarket bar code. This is the eighth and final step that produces the autoradiograph or “autorad”.

Hampel J discussed the “matching” (at 111; 363–364): Once the profiles are obtained, they are compared by two scientists independently to see if a “match” can be “called” between the known and unknown sample bands. The position of the bands and their size or length are first visually compared to size markers run on the same gel. Size markers are a series of 42 fragments of known lengths run as a standard so that the size of sample fragments may be determined. The bands are then sized by computer. Dr Roberts gave evidence that SFSL policy was to “call a match” if the bands were within 1.8 per cent of each other. If the bands matched visually but were more than 1.8 per cent apart in size the result is said to be inconclusive. Lifecodes’ published research has determined the standard deviation in respect of the testing procedure as 0.6 per cent. The term “standard deviation” refers to the variation that can be expected when a measurement is repeated on samples that ought to show the same result, for example, samples from the same source. It is a measure of experimental error. Lifecodes has deemed three standard deviations, or 1.8 per cent to be the appropriate experimental error. This figure is the source of some scientific controversy and was challenged by the defence. In cross-examination, Dr. Roberts agreed that in the “real world” of the forensic laboratory where different sorts of samples are compared, the real standard deviation is greater than 0.6 per cent, hence the experimental error is greater than 1.8 per cent. He maintained however that 1.8 per cent was an appropriate figure when performing repeated tests on the same sample of, for example dried blood. Dr Roberts also pointed out that the figure of 1.8 per cent was consistent with a

576

ROSS ON CRIME

[4.4020]

conservative approach to possible matches leaning in favour of the suspect. This figure has the opposite effect at the population analysis level, which I will discuss later.

See also R v Pantoja (1996) 88 A Crim R 554 (NSW CCA) esp at 557–558.

[4.4020] The statistical stage (the ninth step) Abadee J described this step in R v Pantoja (1996) 88 A Crim R 554 (NSW CCA) (at 578): It involves the utilisation of population genetics to estimate the probability that a person picked randomly from the population would have a DNA profile identical to the DNA profile generated from the forensic sample. The frequency with which a particular DNA pattern will occur in a given population is predicted by determining the frequency with which that pattern occurs in database samples. Some commentators suggest that it is the probability favouring a random match that provides the telling and convincing evidence in the DNA testing exercise.

There are assumptions however. In R v Lucas (1992) 2 VR 109; 55 A Crim R 361, as to the prosecution’s laboratory expert, Hampel J said (at 114; 366–367): Dr Roberts agreed that there were several assumptions underlying his final conclusions. He assumed the data obtained by Lifecodes was both correctly recorded and was a random sample of that population. He assumed that US and Australian population data was relevantly similar. The population at large is assumed to exist in what is known as Hardy-Weinberg equilibrium. This is a state in which alleles, or forms of a gene at a particular locus, are randomly distributed through the population. Random mating occurs. Alleles on different chromosomes are assumed to be inherited entirely independently. Dr Roberts’ evidence is that it is well established that alleles on different chromosomes are not linked unless the action of a gene on one chromosome affects a gene on another. This is not the case with alleles probed for in DNA testing as they do not code for the production of a protein. The final assumption is that 1.8 per cent is the correct experimental error. It is axiomatic that the same figure be used in the calculation of “bin sizes”. The bin size is the size of the population “slice” that is looked at to estimate the allele frequencies in the population. The larger this figure is, the more common the relevant band will appear in the population at large. I do not consider either Dr Roberts or Dr Atchison to be expert statisticians or population geneticists. That being so, I cannot have regard to their opinion in the area of the calculation of probabilities in a population.

The defence called Dr Sudbury, a statistician. Hampel J said (at 115; 367): Dr Sudbury believed that the role of the DNA evidence is to change the view previously held as to the relative likelihood of the blood smear belonging to the victim. He could not say that DNA evidence can be used in absolute terms to assign a probability, for example “more likely than not” to some event having occurred, in this case, the blood smear being from the son of the Pinakos’. Dr Sudbury was cross-examined extensively by Mr Flatman but no evidence was called in rebuttal of Dr. Sudbury’s views.

In R v Humphrey (1999) 72 SASR 558; 103 A Crim R 434 (Bleby J) his Honour, presiding over a murder case, ruled (at [32]): [T]he frequency evidence is not rendered inadmissible by virtue of any alleged weakness in the validity of the databases used, either as to the selection of the particular database or as to whether it is sufficiently representative of the population group from which it comes. Any alleged weaknesses in such matters are properly to be considered by the jury, with appropriate directions from the trial judge, in order to assist them to give whatever weight they consider appropriate to the evidence.

[4.4025] Extraction and amplification In R v Hytch (2000) 114 A Crim R 573 (Qld CA) Mackenzie J said (at 587 [73] –[77]): Ms Hatfield had worked in the technical section and was aware of the procedures which should be followed. With respect to the extraction process she described how water was placed in the tube

[4.4030]

DNA

577

containing the sample to separate cellular material from the substrate upon which it had been found. The cells would then be broken open so that the nucleus, which contains the DNA, was freed. Then the nucleus would be broken open to release the DNA into the solution. The DNA would be separated from the other material by centrifuging. With respect to amplification, she described how the double helix of the DNA is separated over a period of about three and a half hours or perhaps more by heating to about 95 degrees, then cooling to about 55 degrees. Fluorescent labelled chemical primers specific to the loci being tested bind to the DNA strands and by repetitive heating and cooling the strands of DNA originally in the sample are reproduced exponentially. Next the amplified sample is run through a gel which results in loci being separated according to size with the smaller moving through the gel more quickly than the larger. Progress through the gel is recorded by a scanner which operates by recording the passage of the fluorescence over it. The result is printed on a graph with peaks which relate to loci which have been amplified. The graph is interpreted by two scientists working independently and “blind” and the two allele genotypes for each site are determined. Reading the graph depends on the expertise of the scientists making the reading. Where a scientific or technical instrument has not achieved the status of one which the court takes judicial notice of its accuracy, nature, function, use and trustworthiness, evidence will be required as to its operation to provide a basis for the conclusion that it produces a reliable result. The evidence of Ms Hatfield as to the operation of the scanner in relation to the material in the gel bears on the issue of how the result is produced. Where a graph has been produced by that machine and there is evidence supporting the accuracy of the graph produced there is no reason why interpretation of the graph produced may not be made by any person with requisite expertise.

[4.4030] R v Pantoja R v Pantoja (1996) 88 A Crim R 554 (NSW CCA) arose from a jury’s disagreement on a charge of rape of the sister of the accused’s wife and conviction for murder of the accused’s wife. The rape was by a person unknown, an Australian speaker. The appellant was a Quechua Indian whose extended family came from Peru to Sydney. Swabs and clothing samples were taken from the first victim. It was common ground that a week after the wife’s death the appellant and the wife’s sister commenced a sexual relationship. The prosecution said that DNA tests showed the appellant could be the rapist. The motive for murder was to have an affair. The appeal was allowed. The court examined the relevance of the statistical evidence. Hunt CJ at CL said (at 561): In my view, until a general acceptance is accorded to the size of the DNA databases used by the various Government laboratories and commercial testing organisations as has for a long time been accorded to the databases derived from blood substance testing such as Mr Goetz carried out, the Crown should lead such evidence where objection is taken – as it was here – to the admissibility of the statistics.

And (at 563): In those circumstances, if the size of the databases used had otherwise been shown to be statistically valid, I would agree with the trial judge that the Crown was entitled to use the databases derived from the general population. It is simply not practicable to devise a database which took all the circumstances peculiar to this case into account.

And later: However, I am not satisfied by the evidence that the databases used in relation to the DNA testing were of sufficient statistical validity as to warrant the admission of the evidence derived from them. They should have been rejected.

Abadee J spoke of the statistical (second) stage of the match (at 575):

578

ROSS ON CRIME

[4.4035]

Because it is said that unlike finger printing a DNA profiling match is not “unique”, the second stage involves the statistical evaluation of the match which depends upon the number of bands which match and the frequency in the relevant population of such band matching: see Deen’s case. As stated in relation to the ninth step (in Green unreported, NSW CCA, 26 March 1993)) that step concerns the statistical probability that the results although “matched” might not be from the same person.

[4.4035] No hearsay by expert A witness cannot give opinion evidence based on hearsay. This proposition applies in a DNA case as in other cases. In R v Sing (2002) 54 NSWLR 31 (CCA) the prosecution called two expert witnesses who supervised others to carry out the DNA tests. The testers were not called. The two experts gave evidence of analysis and probability over defence objection. Appeal against conviction allowed.

[4.4040] Expert doubtful on sample An expert must be able to explain the basis of opinion. In R v Juric (2002) 4 VR 411; 129 A Crim R 408 (CA) the court rejected a DNA test whose anomalies could not be explained by the prosecution expert. The court said (at 427; 423 [20]): [T]here are cases where the simplicity with which the opinion is expressed cannot be permitted to obscure the difficulties which have been encountered in the testing process. As in this case, those difficulties will include the poverty of the sample, its mixture with the bodily fluids of others, the age of the sample, the effect of the re-amplification process or the reliability of results and whether – because of or in spite of the encountering of these difficulties – any statistical probability can be pronounced as to the likelihood of other members of the community producing the same “match”. At one end of the possible spectra are cases where the sample is so pure and unadulterated that clear typings can be obtained at a large number of DNA sites giving rise to statistical improbabilities running into the millions or even billions. At the other are cases where it is evident that the sample is so adulterated and so old, and the testing process of amplification so powerful, that the typings produced are affected by complications which preclude the proffering of an opinion as to statistical probabilities.

In R v Joyce (2002) 173 FLR 322; 136 A Crim R 465 (NT) Angel J excluded DNA evidence because it was open to competing inferences, one inculpatory and the other exculpatory. There was no scientific basis for preference. His Honour followed R v Juric (2002) 4 VR 411; 129 A Crim R 408.

[4.4045] Statistical probability The size and makeup of the databases bears on statistical probability: R v Milat (1996) 87 A Crim R 446 (NSW, Hunt CJ at CL). However, even if the judge is satisfied of the validity of the database that question can be challenged before the jury: R v Humphrey (1999) 72 SASR 558; 103 A Crim R 434 at 565 (SASR) (Bleby J). For other detailed analyses see R v Mitchell (1997) 130 ACTR 48; 142 FLR 112; 98 A Crim R 32 (Higgins J); Gibson v The Queen (2001) 120 A Crim R 543 (Tas CCA); R v Keir (2002) 127 A Crim R 198 (NSW CCA). In R v Noll [1999] 3 VR 704 (CA) the expert had been unable to explain the statistical theory yet the evidence was held to have been properly admitted.

Evidence excluded R v Tran (1990) 50 A Crim R 233 (NSW McInerney J); R v Lucas (1992) 2 VR 109; 55 A Crim R 361 (Hampel J).

[4.4050]

DNA

579

Evidence admitted R v Sopher (1992) 74 A Crim R 21 (Qld Byrne J); R v Jarrett (1994) 62 SASR 443; 73 A Crim R 160 (Mullighan J).

On appeal In R v Gordon [1995] 1 Cr App R 290 (CA) DNA evidence was admitted at trial. On appeal the court heard further evidence and found the conviction unsafe. A new trial was ordered. R v Berry (2007) 17 VR 153; 176 A Crim R 195 (CA): conviction appeal dismissed. R v Hanratty [2002] 3 All ER 534 (CA): conviction appeal dismissed. Gibson v The Queen (2001) 120 A Crim R 543 (Tas CCA). R v Pantoja (1996) 88 A Crim R 554 (NSW CCA). Article D J Balding and P Donnelly, “The Prosecutor’s Fallacy and DNA Evidence” [1994] Crim LR 711.

[4.4050] Guidelines of admissibility In Latcha v The Queen (1998) 8 NTLR 122; 127 NTR 1; 104 A Crim R 390 (CCA) the court provided the following guidelines of admissibility (at 130–131; 8–9; 396–397): (1) Whenever DNA evidence and statistical evidence based thereon is to be adduced, the Crown should serve on the defence prior to the committal hearing a statement or statements from the expert or experts the Crown intends to call, which provides details of the DNA testing carried out, the nature of the matching DNA characteristics between the DNA in the crime sample and the DNA obtained from the defendant, and details as to how the calculations of the likelihood ratios have been carried out which are sufficient for the defence to scrutinise the basis of the calculations. (2) Provided that the expert has the necessary data, it may then be appropriate for it to be indicated how many people with the matching characteristics are likely to be found in Australia, or in a more limited relevant sub-group, for instance, the sexually active males in the Darwin area, depending on the circumstances of the case. (3) If the Crown intends to supplement or change the DNA evidence or the statistical evidence based thereon, after the committal hearing, it should serve such additional statements as are necessary to comply with guideline (1) in sufficient time prior to the trial for the defence to be able to meet that evidence. (4) The forensic section of the Northern Territory Police Department should make available to a defence expert, if requested, the databases on which the calculations have been based (but not information which identifies particular individuals included in the databases). Any failure to do so in time for the defence expert to be available to assist the defence at the trial may lead to the exclusion of any statistical evidence at the trial. (5) Wherever possible, sufficient of the crime scene sample should be kept by the forensic section of the Northern Territory Police Department for re-testing, and made available to the defence for that purpose, upon request. (6) It is not necessary for the Crown to lead evidence from an expert in population genetics or from another scientific expert as to the statistical validity of the databases kept by the forensic section of the Northern Territory Police Department where the defence notifies the Crown that this is not in issue, or where objection is not taken at the trial. (7) A scientist other than a population geneticist or an expert in a statistical discipline may have sufficient qualifications derived from professional experience and personal familiarity with the data on the relevant database and published population statistics to

580

ROSS ON CRIME

[4.4055]

be permitted to give evidence of the likelihood ratios in the relevant population. If the Crown proposes to adduce evidence of this kind from such a scientist, the Crown should serve on the defence in accordance with guidelines (1) or (2) a statement of the scientist’s qualifications and experience. (8) Disputes as to the admissibility at trial of DNA and statistical evidence, including the qualifications of witnesses, should be determined wherever possible by utilising the procedure provided for in s 26L of the Evidence Act. (9) Experts called to give statistical evidence should be led by the Crown as to any assumptions made in their calculations which, even though widely accepted, are not supported by empirical research, including: (a) Hardy-Weinberg equilibrium; (b) where the offender is of a racial group or sub-group for which there is no valid database and a general database has been used which does not take that fact into account, that fact. (10) Experts should not give evidence as to the likelihood that it was the defendant’s DNA found at the crime scene or use terminology suggesting that he or she is expressing such an opinion. For further guidance see Doheny and Adams v R (1997) 1 Cr App R 369; R v Pantoja (1996) 88 A Crim R 554; R v Luigi Vivona (unreported, CCA (Vic), 12 September 1994); R v Green (unreported, CCA NSW, 26 March 1993).

[4.4055] Effect of proof beyond reasonable doubt In R v Fletcher [1998] 2 Qd R 437 Lee J was presiding over a charge of rape and murder. The accused submitted that the jury must be satisfied beyond reasonable doubt that there was a matching of the DNA profiles of the semen extracted from the vagina of the deceased and from the blood of the accused. The prosecution conceded that without the DNA evidence its case would fail. Lee J proposed the following jury direction (at 441): The DNA matching, if proved beyond reasonable doubt, does not prove that the accused is the offender. The evidence only fails to prove that he is not the offender. The only inference which can be drawn from a match proved beyond reasonable doubt, together with the evidence of the occurrence in the community, assuming you accept the percentage occurrences, which is not here challenged, is that it was possible that he was the person who had sexual intercourse with the deceased, such that the matter then could not be proved beyond reasonable doubt on its own, so that, if there is only DNA evidence and nothing else which you accept, you cannot convict the accused. If you accept that there has been a match and no mismatch shown on any one locus which would exclude the accused, you can use the probability of this match, in accordance with the random occurrence in the community, as another item of circumstantial evidence, along with all of the other evidence in the case which you accept, in deciding whether or not, at the end of your deliberations, you are satisfied beyond reasonable doubt of the guilt of the accused. You consider carefully all of the evidence in conjunction and not individually.

[4.4060] Destruction of samples Legislation often requires the destruction of the samples from which the DNA is derived. Where the samples are not destroyed and are later relied upon to found a conviction, a court will set that conviction aside. Attorney-General’s Reference (No 3 of 1999) [2000] 3 WLR 1164; [2000] 4 All ER 360; [2000] 2 Cr App R 416 (CA); and on appeal Re Attorney General’s Reference (No.3 of 1999) [2001] 2 AC 91; [2001] 2 WLR 56; [2001] 1 All ER 577; [2001] 1 Cr App R 475 (HL).

[4.4070]

DNA

581

See also Samples and examination at [19.300].

[4.4065] Legislation Legislation allows the setting up of DNA systems: Cth: Crimes Act 1914 s 23WAff; Qld: Police Powers and Responsibilities Act 2000 s 491–494; WA: Criminal Investigation (Identifying People) Act 2002 s 77ff; Tas: Forensic Procedures Act 2000 s 52–56; NT: Police Administration Act s 147C(3); NSW: Crimes (Forensic Procedures) Act 2000 s 90–94; Vic: Crimes Act 1958 ss 464 and 464ZGGff; SA: Criminal Law (Forensic Procedures) Act 1998 s 46A–46E; ACT: Crimes (Forensic Procedures) Act 2000 s 94–98; NZ: Criminal Investigations (Bodily Samples) Act 1995 s 25–28. Some legislation allows for the admission of an analyst’s certificate: Qld: Evidence Act 1977 s 95A; WA: Evidence Act 1906 s 50B.

[4.4070] The prosecutor’s fallacy The expression comes from Balding and Donnelly, “The Prosecutor’s Fallacy and DNA Evidence” [1994] Crim L R 711. See also R v Doheny and Adams [1997] 1 Cr App R 369 at 372–374. The fallacy can be shown in this way. Assume that the DNA profile of the male accused is matched by 10 men in Australia. Assume that there are about 10 million males in Australia. The fallacy is in the argument: 1. Only one in a million has the crime stain DNA. 2. The accused has a DNA profile matching the crime stain. 3. Therefore, the probability that the accused left the crime stain is a million to one. In fact, the chance of the crime stain belonging to the accused is 1 in 10. Further, the next man tested might have the same DNA profile. The prosecutor’s fallacy was also referred to in R v GK (2001) 53 NSWLR 317; 125 A Crim R 315 (CCA) at [47] – [55]; R v JCG (2001) 127 A Crim R 493 at 508 [79]ff (NSW CCA); R v Keir (2002) 127 A Crim R 198 at 202 [22] (NSW CCA); Pringle v The Queen [2003] UKPC 9 (27 January 2003) (PC). Aytugrul v The Queen [2012] HCA 15 involved an appeal based on the manner in which DNA evidence against an accused (charged with murder) was presented by the prosecution. The Court unanimously held that there was no error when evidence of DNA results was tendered as an ‘exclusion percentage’ accompanied by ‘an equivalent frequency ratio’ and explanation of the concepts and their relationship between the two. The DNA evidence consisted of a hair located on the thumbnail of the deceased. The results of the analysis showed that the hair could have come from the appellant and that one person

582

ROSS ON CRIME

[4.4200]

in 1,600 people would have the DNA profile that was found in the hair. This form of presentencing the data is termed the ‘the frequency ratio’. Mathematically this meant that 99.9 per cent of the population would not have DNA that matched the hair. This form of presentencing the data is called the ‘the exclusion percentage’. It was submitted that the trial judge made an error in admitting the DNA evidence to expressed in terms of the exclusion terms because this evidence should have been excluded under either the s 137 or 135 discretion in the Evidence Act 1995 (NSW) due to prejudicial effect of such evidence. This argument was rejected on the basis that the exclusion percentage and the frequency ratio are simply different ways of making the same mathematical representation.

Articles A Ligertwood, “Avoiding Bayes in DNA Cases” (2003) 77 ALJ 317-326. M Goode, “Some Observations on Evidence of DNA Frequency” (2002) 23 Adelaide Law Review 45-77.

DOG Sniffer dog ................................................................................................................................... Tracker dog ................................................................................................................................. Killer dog .................................................................................................................................... Cruelty to a dog .......................................................................................................................... Shooting a dog ............................................................................................................................ Sex with a dog ............................................................................................................................ Not an offensive weapon ............................................................................................................ Propensity for mischief ...............................................................................................................

[4.4200] [4.4205] [4.4210] [4.4215] [4.4220] [4.4225] [4.4230] [4.4235]

[4.4200] Sniffer dog Generally Sniffer dogs are used to unearth drugs and other illicit goods: De Courtenay v The Queen (1984) 15 A Crim R 263 at 269 (WA CCA); Salihos v The Queen (1987) 78 ALR 509; 27 A Crim R 319 at 511, 321 (WA CCA); R v Smith (1990) 50 A Crim R 476 at 477 (SA CCA). In Question of Law Reserved (No 3 of 1998) (1998) 71 SASR 223; 101 A Crim R 395 (FC) it was held that a dog sniffing around luggage is not a search. The dog’s positive reaction justified a search of luggage by police. In Darby v DPP (NSW) (2004) 61 NSWLR 558; 150 A Crim R 314 (NSW CA) Rocky sniffed Mr Darby’s pocket and bunted and ferreted around his trousers. Police found methylamphetamine and cannabis there. Held: Rocky had not carried out a search. In R v Kang-Brown [2008] 1 SCR 546 (SCC) the majority held that a sniffer dog was constrained by the Canadian Charter of Rights and Freedoms.

Legislation Qld: Police Powers and Responsibilities Act 2000 ss 34–39; NSW: Police Powers (Drug Detection Trial) Act 2003 s 11; NZ: Police Act 1958 ss 44A–44E.

[4.4205]

DOG

583

Article P Gibson, “Sniffer dog snuffed out by magistrate” (2002) 40 Law Society Journal (NSW) 62.

[4.4205] Tracker dog Admissibility of evidence In Haas v The Queen (1962) 35 DLR (2d) 172 (Ct of App British Columbia – five judges) it was held that once the qualifications of a tracking dog to follow a scent and that of his trainer to handle the dog have been established (in this case it was admitted at trial that both the dog and its handler were as good as they could be) evidence of tracking the accused by scent from the scene of a crime by such a dog is admissible. The only question concerns the weight to be given to such evidence. In Lindsay v The Queen [1970] NZLR 1002 (CA) Turner J said (at 1005): [O]nce the dog-handler had properly qualified himself and his dog (and this should be done with scrupulous thoroughness before the evidence can be thought acceptable), his evidence as to what the dog did in following a scent is material and relevant evidence, much more likely to lead to a true than to an erroneous conclusion, though, as we have said, some limitations and safeguards should be prescribed. We are of opinion that the Chief Justice rightly admitted it in the present case. The weight of the evidence should always be carefully examined by the trial judge in his direction to the jury.

That case was followed in R v McCartney [1976] 1 NZLR 472 (CA) in which McCarthy P said (at 478): Although we appreciate that Lindsay [1970] NZLR 1002 acknowledges that the extent to which a judge must deal with the weight of the tracker dog evidence in each particular case must vary according to the extent that the reliability of the dog’s tracking ability, is supported by other evidence, nevertheless we cannot interpret the judgment otherwise than as laying down a rule that in every case where such evidence is relied on by the Crown the judge must at least draw the attention of the jury to (a) the nature of the conclusion to which they are asked to come on the tracker dog evidence and (b) the risks of arriving at that conclusion “from evidentiary material which has yet to pass the acid test of cross-examination”.

All the above cases were cited with approval in R v Santos (1987) 22 SASR 556; 26 A Crim R 432 (CCA) per King CJ (at 562–563; 439). In Sever v The Queen (2007) 179 A Crim R 110 (NSW CCA) the accused had been convicted of arson. The appeal succeeded. But it failed on a second ground about a tracker dog, Ellie. Ellie had hunted out accelerants to the fire. The police had taken samples on Ellie’s indication. Grove J, with whom the other judges agreed, said (at 113 [15]): The evidence concerning Ellie was merely part of a chain of events which led to the selection of locations at which samples were taken. It was appropriate in the interests of continuity for the Crown to call that evidence but as the evidence of probative value was the result of analysis of the sample taken, it could not have mattered whether the samples were taken randomly or as a result of being pointed to them by the dog.

Potential unreliability In R v Benecke (1999) 106 A Crim R 282 (NSW CCA) the court said the tracker dog evidence should not have been admitted at trial. Barr J giving the judgment of the court said (at 284): The potential for unfair prejudice was great. The evidence of the behaviour of tracker dogs has been regarded as potentially unreliable. (See Trupedo [1920] SALR 58; Barnes (unreported, Court of Criminal Appeal, NSW 1 December 1998)Pieterson and Holloway [1995] 1 WLR 293; [1995] 2 Cr App R 11; Sykes [1997] Crim LR 752.)

584

ROSS ON CRIME

[4.4210]

The danger has been recognised that juries may place too much weight on the untested and untestable ability of a dog to track a scent.

In R v Stewart (2001) 52 NSWLR 301; 124 A Crim R 371 (CCA) Howie J said (at 322–323; 387 [103]): An example of the operation of s 165 to evidence of the kind where the jury might be misled as to its reliability is Barnes (unreported, Court of Criminal Appeal, NSW, 1 December 1998). This Court considered that a warning under s 165 should have been given in respect of the evidence of the behaviour of a tracker dog. This was because of the risk that the jury might place too much weight on the untested and untestable ability of a dog to track scent. Therefore, the jurors were to be warned that they should bear in mind that the dog was not cross-examined and that they should be careful to avoid overestimating the reliability of the operation of the dog’s senses so as to avoid arriving too readily at the conclusion contended for by the Crown from the evidence of what the dog did. See also R v Benecke (1999) 106 A Crim R 282.

Other cases Santos v The Queen (1987) 61 ALJR 668; 75 ALR 161; 29 A Crim R 122 at 673, 170, 131; R v Pieterson and Holloway [1995] 1 WLR 293; [1995] 2 Cr App R 11 (CA); R v Montgomery [1966] NI 120 (CCA); R v Saccu (unreported, Vic CCA, 13 February 1980). Articles FH Newark, “What the Dog Said” (1996) 82 LQR 311; AH Hudson, “Bloodhound Testimony Again” [1967] Crim LR 110; G McCormack, “The Admissibility of Tracker Dog Evidence” [1985] Crim LR 202.

[4.4210] Killer dog In Pacino v The Queen (1998) 105 A Crim R 309 (WA CCA) the applicant’s four dogs killed an 85-year-old woman. Held that the trial judge should have directed the jury that the applicant had an honest and reasonable but mistaken belief that the dogs were not dangerous.

[4.4215] Cruelty to a dog In West v Harries (1991) 58 A Crim R 86 (SA, Olsson J) the appellant had left his pet German Shepherd in a vehicle on a hot day while he went shopping. Convicted and fined.

[4.4220] Shooting a dog Shooting a dog does not show a propensity to kill a person 23 years later: R v Cakovski (2004) 149 A Crim R 21 at [24] and [55] (NSW CCA). Shooting a dog to protect property: R v Scullin (1994) 76 A Crim R 15 (Qld CA).

[4.4225] Sex with a dog In R v Bourne (1952) 36 Cr App R 125 Lord Goddard CJ said (at 128): The case against the appellant was that he was a principal in the second degree to the crime of buggery which was committed by his wife, because if a woman has connection with a dog, or allows a dog to have connection with her that is the full offence of buggery.

[4.4405]

DOLI INCAPAX

585

See also Bestiality at [2.1200]; and Buggery at [2.4100].

[4.4230] Not an offensive weapon A dog is not an offensive weapon: Tomlins v Brennan (2006) 18 NTLR 80 (CA).

[4.4235] Propensity for mischief A dog owner should know if the animal has a propensity for mischief such as an inclination to bite: Simpson v Bannerman (1932) 47 CLR 378.

DOLI INCAPAX Definition ..................................................................................................................................... Legislation ................................................................................................................................... Rationale for the presumption .................................................................................................... Rebutting the presumption .......................................................................................................... 10–14 abandoned in England ..................................................................................................... Articles ........................................................................................................................................ Other references ..........................................................................................................................

[4.4400] [4.4405] [4.4410] [4.4415] [4.4420] [4.4425] [4.4430]

[4.4400] Definition The Latin words doli incapax mean incapable of crime.

Cases C v DPP [1996] AC 1; [1995] 2 All ER 43; [1995] 2 Cr App R 166 (HL); R v CDR [1996] 1 Qd R 183; (1995) 78 A Crim R 572 (CA). RP v R [2015] NSWCCA 215. At common law, knowledge of wrongfulness by a child under the age of 14 years is required to be proved beyond a reasonable doubt: O’Toole v Arnold (1982) 16 NTR 8 (Muirhead J); R v ALH (2003) 6 VR 276 at 298 [87] (CA).

[4.4405] Legislation By statute, a child under the age of 10 is presumed to be incapable of crime. Cth: Criminal Code Act 1995 s 7.1; Qld: Criminal Code s 29; WA: Criminal Code s 29; Tas: Criminal Code s 18; NT: Criminal Code s 38; NSW: Children (Criminal Proceedings) Act 1987 s 5; Vic: Children, Youth and Families Act 2005 s 344; SA: Young Offenders Act 1993 s 5; ACT: Criminal Code 2002 s 25; NZ: Crimes Act 1961 s 22; Eng: Children and Young Persons Act 1933 s 50.

586

ROSS ON CRIME

[4.4410]

[4.4410] Rationale for the presumption In R v Packer [1932] VLR 225 (CCA) a boy of 13 had buggered a bitch. The aider and abettor was convicted. As to the boy, the court said (at 228): It is true that where one of the parties to such a crime, whether patient or agent, is under fourteen, he may escape conviction, but we think cases to this effect can be justified by the general prima facie presumption of want of discernment between good and evil.

In R v JA (2007) 1 ACTLR 126; 161 ACTR 1; 212 FLR 309; 174 A Crim R 151 (Higgins CJ) a boy aged 11 was charged with threatening bodily harm with intent to engage in sexual intercourse. Trial was judge alone. His Honour acquitted. In his judgment, his Honour made an extensive examination of authority on criminal capacity (at [29] – [82]).

[4.4415] Rebutting the presumption Generally In R v ALH (2003) 6 VR 276 (CA) Cummins AJA, with whom the others agreed, said (at 298 [86]): Adult value judgments should not be attributed to children. If they are not, there is no reason in logic or experience why the proof of the act charged is not capable of proving requisite knowledge. Some acts may be so serious, harmful or wrong as properly to establish requisite knowledge in the child; others may be less obviously serious, harmful or wrong, or may be equivocal, or may be insufficient. I consider that the correct position is that proof of the acts themselves may prove requisite knowledge if those acts establish beyond reasonable doubt that the child knew that the act or acts themselves were seriously wrong. Further, I consider that the traditional notion of presumption is inappropriate. I consider that the better view is that the prosecution should prove beyond reasonable doubt, as part of the mental element of the offence, that the child knew the act or acts were seriously wrong. Such a requirement is consonant with humane and fair treatment of children. It is part of a civilised society.

In R v F; Ex parte Attorney-General [1999] 2 Qd R 157; (1998) 101 A Crim R 113 (CA) the court held that matters capable of rebutting doli incapax might include earlier similar criminal conduct and earlier dealings with the police. Other cases Marshall v Lowndes (1997) 138 FLR 313 (NT, Martin CJ); Field v Gent (1996) 67 SASR 122; 87 A Crim R 225 (FC) (throwing a missile); R (a Child) v Whitty (1993) 66 A Crim R 462 (Vic, Harper J) (theft); R v M (1977) 16 SASR 589 (CCA) (murder); A v DPP [1997] 1 Cr App R 27 (CCA) (indecent assault); DPP v K & B [1997] 1 Cr App R 36 (CCA) (rape); DPP v P [2007] 4 All ER 628 at [37] – [48] (QBD).

[4.4420] 10–14 abandoned in England England has abandoned all presumptions for children aged 10–14. Legislation: Crime and Disorder Act 1998 s 34. Cases: R v JTB [2009] 2 WLR 1008; [2009] 3 All ER 1 (HL); R v T [2008] 3 WLR 923 (CA).

[4.4605]

DOUBLE JEOPARDY

587

[4.4425] Articles DC Price, “The Criminal Liability of Children” (1995) 69 ALJ 593; P Blazey-Ayoub, “Doli Incapax” (1996) 20 Crim L J 34-40; T Crofts, “Rebutting the Presumption of Doli Incapax” (1998) 62 J Crim Law 185-193.

[4.4430] Other references Child at [3.1800]; Juvenile at [10.2600]; Presumptions at [16.3700] and Young person at [25.100].

DOUBLE JEOPARDY Meanings ..................................................................................................................................... Later charge not to question earlier verdict ............................................................................... Kienapple principle ..................................................................................................................... Twice penalised ........................................................................................................................... Civil and criminal case ............................................................................................................... Criminal conviction and contempt ............................................................................................. Legislation and cases .................................................................................................................. Double jeopardy exceptions ....................................................................................................... Other references .......................................................................................................................... Double jeopardy and sentencing ................................................................................................

[4.4600] [4.4605] [4.4610] [4.4615] [4.4620] [4.4625] [4.4630] [4.4635] [4.4640] [4.4645]

[4.4600] Meanings Generally In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684 McHugh, Hayne and Callinan JJ said (at 614; 686; 374): The phrase “double jeopardy” is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be “punished again for the same matter”. Further, “double jeopardy” is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment.

In Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 162 A Crim R 409; 228 ALR 1 Gummow and Hayne JJ said (at 343; 12 [41]): “Double jeopardy” is an expression that is not always used with a single meaning. It is an expression used in relation to several different stages of the process of criminal justice: prosecution, conviction and punishment. It describes values which underpin a number of aspects of the criminal law, rather than a rule that can be stated as the premise for deductive reasoning … It is these values that underpin the rule that evidence is inadmissible where, if accepted, it would overturn or tend to overturn an acquittal. It is these values that inform the rules governing successive prosecutions – rules which find their origins in the pleas in bar of autrefois convict and autrefois acquit but now have wider application than those pleas in bar.

Punishment In York v The Queen (2005) 225 CLR 466; 221 ALR 541; 156 A Crim R 249 McHugh J, citing five cases, said (at 477; 549; 259 [33]): Since the conferral on the Crown of rights of appeal against sentences, appellate courts have been much influenced in their approach to such appeals by the principle of double jeopardy.

[4.4605] Later charge not to question earlier verdict In R v Carroll (2002) 213 CLR 635; 194 ALR 1; 136 A Crim R 167 Mr Carroll had been convicted of murder of a child but the Qld Court of Criminal Appeal had entered a verdict

588

ROSS ON CRIME

[4.4610]

of acquittal. At his trial he had given evidence denying the killing. Fourteen years later he was charged with perjury being that denial. Nearly all the evidence was the murder case run again. He was convicted. The Queenslanld Court of Appeal set aside the perjury conviction. The prosecution appealed to the High Court. The appeal was dismissed unanimously. Gleeson CJ and Hayne J referred to the earlier acquittal as “incontrovertibly correct” (at 647; 10; 179 [35]ff). They said (at 650; 12; 181 [45]): The need for decisions of the courts, unless set aside or quashed, to be accepted as incontrovertibly correct is a principle which requires that it is the verdict of acquittal which should be incontrovertible. It is a proposition which has not been held to preclude persons other than the prosecution asserting in later proceedings that the person committed the crime of which he or she was acquitted at trial.

and later (at 651; 13; 181–182 [48]): To approach the question by directing attention to the elements of the two offences would recognise that the principle that an acquittal is incontrovertible is a principle founded in the finality of judicial proceedings and that it is what is decided in litigation that is final. Directing attention to evidence given at an earlier trial may serve to detract attention from what it is that was decided.

Other cases Garrett v The Queen (1977) 139 CLR 437; 18 ALR 237; Storey v The Queen (1978) 140 CLR 364 at 372; R v El-Zarw [1994] 2 Qd R 67; (1991) 58 A Crim R 200 (CCA); R v Young (1996) 90 A Crim R 80 at 94 (Vic CCA). A second charge can sometimes properly proceed. In R v Carroll (2002) 213 CLR 635; 136 A Crim R 167; 194 ALR 1 Gleeson CJ and Hayne J said (at 651; 13; 182 [50]): Finality of a verdict of acquittal does not necessarily prevent the institution of proceedings, or the tender of evidence, which might have the incidental effect of casting doubt upon, or even demonstrating the error of, an earlier decision. There may be cases where, at a later trial of other allegedly similar conduct of an accused, evidence of conduct may be adduced even though the accused had earlier been charged with, tried for, and acquitted of an offence said to be constituted by that conduct. R v Z [2000] 2 AC 483, R v Arp [1998] 3 SCR 339 and R v Degnan [2001] 1 NZLR 280 are cases of that kind. In such cases, the earlier acquittal would not be controverted by a guilty verdict at the second trial.

In Broome v Chenoweth (1946) 73 CLR 583 a first information in a tax case was dismissed. Starke and Dixon JJ held a second could proceed because the first information was so defective that the defendant had not been put in jeopardy. See also Autrefois Acquit/Convict at [1.7400].

[4.4610] Kienapple principle The expression Kienapple principle comes from the Canadian Supreme Court case of Kienapple v The Queen [1975] 1 SCR 729; 44 DLR (3d) 351; 15 CCC (2d) 524. It applies to stop a conviction for multiple charges for a single act. Mr Kienapple was charged on the one indictment with rape and unlawful carnal knowledge of a female then aged 14 years. He was convicted of both offences. The court set the second conviction aside. The majority judgment was given by Laskin J preferring res judicata rather than autrefois convict as their basis. In R v Prince [1986] 2 SCR 480; (1986) 33 DLR (4th) 724; 30 CCC (3d) 35 the same court made a thorough study of what they called the Kienapple principle. Dickson CJ gave the majority judgment. The Chief Justice said (at 492; 733; 44):

[4.4625]

DOUBLE JEOPARDY

589

In most cases, I believe, the factual nexus requirement will be satisfied by an affirmative answer to the question: Does the same act of the accused ground each of the charges?

and later (at 494; 734; 45): In my opinion, the weight of the authority since Kienapple [1975] 1 SCR 729; (1974) 44 DLR (3d) 351; 15 CCC (2d) 524 also supports the proposition that there must be sufficient nexus between the offences charged to sustain the rule against multiple convictions.

His Honour (at 495; 735; 46) quoted with approval another decision: It is not sufficient to consider the charges and to ask whether conviction on one will involve conviction on another. It is not sufficient to consider the facts and to ask whether only one act is involved. The facts and the charges must be considered together and their relationship to each other.

Then said: There must be a relationship of sufficient proximity firstly as between the facts, and secondly as between the offences, which form the basis of two or more charges for which it is sought to invoke the rule against multiple convictions.

[4.4615] Twice penalised Double jeopardy rejected R v Chhom Nor (2005) 11 VR 390; 152 A Crim R 118 (Vic CA); R v Langdon (2004) 11 VR 18; 150 A Crim R 59 (CA); R v Henderson [1999] 1 VR 830 (CA); Moore v The Queen (1993) 79 A Crim R 247; 21 MVR 227 (WA CCA).

Double jeopardy accepted R v Garth (2008) 186 A Crim R 28 (Vic, Judd J); R v Maggs (2008) 100 SASR 303; 184 A Crim R 23 (CCA); R v Filipovic (2008) 181 A Crim R 83 (Vic CA); R v Chin Poh Tan (2005) 152 A Crim R 397 (Vic CA); Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684; Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298; 100 A Crim R 521 (FC); R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151 (CA); Callahan v Broomham (1996) 68 IR 66 (NSW Industrial Relations Ct); Walsh v Stephenson (1996) 68 IR 22 (Qld Industrial Ct); Environment Protection Authority v Australian Iron & Steel Pty Ltd (1992) 28 NSWLR 502; 64 A Crim R 124; 77 LGRA 373 (CCA).

[4.4620] Civil and criminal case In Adler v DPP (2004) 185 FLR 443; 149 A Crim R 378 (NSW CCA) the accused had been given civil penalties for stockmarket manipulations. The court refused to stay criminal proceedings based on much the same facts.

[4.4625] Criminal conviction and contempt In K v J (2004) 184 FLR 1; 31 Fam LR 481 the Full Family Court held that it was not double jeopardy for a person to be convicted of contempt of court for the same act as had brought about a criminal conviction.

590

ROSS ON CRIME

[4.4630]

See also Appeal (Prosecution appeal against inadequacy of sentence) at [1.5340]); Felony-tort rule at [6.300]; and Nemo Debet Bis Vexari at [14.900].

[4.4630] Legislation and cases Legislation Some legislation prevents double jeopardy: Cth: Crimes Act 1914 s 50FC; Criminal Code Act 1995 s 71.18; Commonwealth Places (Application of Laws) Act 1970 s 8; Qld: Evidence Act 1977 s 39P; Criminal Code s 17; WA: Criminal Code s 17; Tas: Criminal Code s 11; NT: Criminal Code ss 17–21; NSW: Crimes (Sentencing Procedure) Act 1999 s 20; Crimes Act 1900 s 52AA(6); Vic: Charter of Human Rights and Responsibilities Act 2006 s 26; Interpretation of Legislation Act 1984 s 51; Juries Act 2000 s 86; SA: Acts Interpretation Act 1915 s 50; ACT: Human Rights Act 2004 s 24; NZ: New Zealand Bill of Rights Act 1990 s 26(2); Can: Canadian Charter of Rights and Freedoms s 11(h).

Cases R v Filipovic (2008) 181 A Crim R 83 (Vic CA); R v Audino (2007) 180 A Crim R 371 at 374–375 [11] – [19] (Vic CA); R v El-Kotob (2002) 4 VR 546; 132 A Crim R 199 at [44] (CA); R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151 (CA); DPP Reference No 1 of 1992 [1992] VR 405 at 412–413 (CCA).

[4.4635] Double jeopardy exceptions A number of jurisidictions have now introduced exceptions to the double jeopardy principle. The general operation of the exceptions is that an accused who has been acquitted can be retried for the same offences in a number of limited situations: where there offence is very serious (eg, murder) and fresh and compelling evidence emerges or where the acquitted was tainted (eg, the accused intimated a witness or bribed an official involved in the case. None of the exceptions have yet been applied. Tas: Criminal Code ss 390–397; Vic: Criminal Procedure Act 2009 (Vic) Pt 7A; NSW: Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW); Qld: Criminal Code Ch 68.

[4.4810]

DRIVE

591

[4.4640] Other references See also Nemo Debet Bis Vexari at [14.900].

[4.4645] Double jeopardy and sentencing Double jeopardy is a basis for not allowing Crown sentencing appeals unless the sentence is manifestly inadequate. Several jurisdictions have abolished the role of double jeopardy in sentencing. For a discussion of the ongoing relevance of the principle in sentencing, see Bui v DPP (Cth) (2012) 244 CLR 638; 218 A Crim R 241; 86 ALJR 208 [2012] HCA 1.

DRIVE Definition ..................................................................................................................................... Statutory provisions .................................................................................................................... More than one person may be a driver ...................................................................................... Driving must be conscious voluntary and deliberate ................................................................ Onus of proof .............................................................................................................................. Examples ..................................................................................................................................... Mistake on licence cancellation ................................................................................................. Sentencing ...................................................................................................................................

[4.4800] [4.4805] [4.4810] [4.4815] [4.4820] [4.4825] [4.4830] [4.4835]

[4.4800] Definition Generally speaking the control of the propulsive force of a vehicle is critical to the question of being a driver: Police v Thompson (2006) 45 MVR 37 (SA, Vanstone J); Marriott v Brown (1998) 28 MVR 279 (Tas, Underwood J); Tsolacis v Kelly (1997) 25 MVR 549 (Vic CA); Tink v Francis [1983] 2 VR 17 (FC); Hampson v Martin [1981] 2 NSWLR 782 (Foster J). In Robinson v The Queen (1991) 56 A Crim R 133; 14 MVR 381 (WA CCA) the accused had been convicted of manslaughter. He had stopped his truck when the lights failed and attempted their repair. The truck was obstructing traffic, and another car ran into the back of it. The appeal was dismissed. There could have been no alternative of dangerous driving causing death because the accused was not driving.

[4.4805] Statutory provisions In Tsolacis v Kelly (1997) 25 MVR 549 (Vic CA) Winneke P, with whom the others agreed, said (at 551): It goes without saying that the words “drive”, “driving” or “driver” where used in statutory offences must in each case take their colour from the context of the statutory provision in which the term is used. In every instance the first inquiry must be to determine the natural and ordinary meaning of the word in the context of the statutory provision in which the word is used.

[4.4810] More than one person may be a driver In Ricketts v Laws (1988) 14 NSWLR 311; 7 MVR 481 (CA) Kirby P said (at 314; 483): A vehicle may have two drivers, as for example where an instructor actually has his or her hand on the wheel or was controlling the direction of the car from a dual mechanism.

592

ROSS ON CRIME

[4.4815]

In Savage v Affleck (1992) 65 A Crim R 96; 17 MVR 282 (NSW, Smart J) three men were in the cabin of a small ute. The respondent was in the driver’s seat operating the pedals. The deceased lay across the respondent and steered. The third person operated the gears. It was held that the applicant was driving and probably the others were as well. His Honour said (at 99): I hold that there was evidence that Mr Affleck drove a vehicle in that he combined with the deceased and probably Mr Taylor to drive the vehicle.

[4.4815] Driving must be conscious voluntary and deliberate In Hearn v McCann (1982) 5 A Crim R 368 (SA) Zelling J said (at 372): A person could not be said to be “driving” a vehicle if he was under duress or other compulsive act of a stranger, or was driving under automatism or any similar mental condition. That, however, goes as much to the actus reus as to mens rea. A person cannot be said to be performing the act of driving under these circumstances.

There must be sufficient proof of automatism. A combination of Rohypnol and alcohol may be the subject of expert evidence. But the evidence to amount to automatism must show an absence of volition and cognition: R v Russell (1993) 70 A Crim R 17 (Tas, Cox J). In R v Kroon (1990) 55 SASR 476; 52 A Crim R 15; 12 MVR 483 (SA CCA) King CJ said (at 473; 16; 484): It is clear on the authorities, and on principle, that to constitute the offence, there must be a voluntary act of driving: R v Coventry, (1938) 59 CLR 633 at 638; R v Thompson (1975) 11 SASR 217 per Bray CJ at 220; Giorgianni v R (1985) 156 CLR 473 at 499. Where the driving or apparent driving is deprived of its voluntary character by, for example, automatism or unconsciousness, the offence is not committed: Hill v Baxter [1958] 1 QB 277; Cooper v McKenna; Ex parte Cooper [1960] Qd R 406 esp at 415-19; R v Carter [1959] VR 105 esp at 112-13.

In R v Spurge [1961] 2 QB 205; [1961] 2 All ER 688; 45 Cr App R 191 (CA), a five member court held (at 210; 690; 195): If … a motor-car endangers the public solely by reason of some sudden overwhelming misfortune suffered by the man at the wheel for which he is in no way to blame if, for example, he suddenly has an epileptic fit or passes into a coma, or is attacked by a swarm of bees or stunned by a blow on the head from a stone, then he is not guilty of driving in a manner dangerous to the public. (Hill v Baxter [1958] 1 QB 277; 1 All ER 193; 42 Cr App R 51). It would be otherwise if he had felt an illness coming on but had still continued to drive, for that would have been a manifestly dangerous thing to do. It is true that in the examples given above it may be said that in a sense the man at the wheel was not driving at all, and therefore not driving dangerously.

[4.4820] Onus of proof The alleged driver has the evidential onus of raising the issue of whether he was the driver. Thereafter the prosecution must prove driving beyond reasonable doubt: Jiminez v The Queen (1992) 173 CLR 572; 106 ALR 162; 59 A Crim R 308 at 582, 168, 314.

[4.4825] Examples Driving Tsolacis v Kelly (1997) 25 MVR 549 (Vic CA); Freeman v Police (2008) 49 MVR 361 (SA, David J). Coasting down hill with the engine off: Tink v Francis [1983] 2 VR 17 (FC) (motor car); Marriott v Brown (1998) 28 MVR 279 (Tas, Underwood J) (motor cycle).

[4.4835]

DRIVE

593

Pushing a car and steering it is done by a driver: Edwards v Buck (1991) 4 WAR 150; 14 MVR 179 (White AJ).

Not driving Steering a vehicle under tow: Wallace v Major [1946] KB 473; 2 All ER 87 (motor car); Caughey v Spacek [1968] VR 600 (Winneke CJ) (motor car); Tink v Francis [1983] 2 VR 17 (FC) (motor car); MacNaughton v Garland; Ex parte MacNaughton [1979] Qd R 240 (motorcycle). Steering a vehicle pushed by others: Tink v Francis [1983] 2 VR 17 (FC). Releasing the handbrake and not staying in the vehicle: R v Roberts [1965] 1 QB 85; [1964] 2 All ER 541; (1964) 48 Cr App R 296 (CCA).

Sleep Being asleep in driver’s seat of a moving car is not driving and any dangerous driving must occur during the time when the accused is awake: Jiminez v The Queen (1992) 173 CLR 572; 106 ALR 162; 59 A Crim R 308 approving; R v Kroon (1990) 55 SASR 476; 52 A Crim R 15; 12 MVR 483 (SA CCA); Lowe v Brierley (1998) 27 MVR 342 (WA, Heenan J).

[4.4830] Mistake on licence cancellation See also Mistake at [13.2900].

[4.4835] Sentencing Driving while suspended/disqualified Winning v Police (2004) 40 MVR 460 (SA, Gray J); Chinnery v Hansen (2001) 125 A Crim R 426 (WA, Hasluck J); Nuna v Stocks (2001) 33 MVR 448 (Tas, Blow J); Griekspoor v Scott (2000) 23 WAR 530 (Roberts-Smith J); Police v Golding (1999) 30 MVR 193 (SA, Prior J); Hale v Police (1999) 73 SASR 340 (Martin J); Long v Police (1998) 72 SASR 515 (Mullighan J); Harshazi v Police (1998) 71 SASR 316 (Mullighan J); Police v Cadd (1997) 69 SASR 150; 94 A Crim R 466; 26 MVR 380 (FB).

594

ROSS ON CRIME

[4.5000]

DRIVING CAUSING DEATH OR INJURY Offence ........................................................................................................................................ Legislation ................................................................................................................................... A person ...................................................................................................................................... Sleeping ....................................................................................................................................... Epilepsy ....................................................................................................................................... Objective test – manner or speed dangerous ............................................................................. Consciousness of guilt ................................................................................................................ Agony of the moment ................................................................................................................. Sudden or extraordinary emergency ........................................................................................... Evidence of prior hazardous driving .......................................................................................... Causation ..................................................................................................................................... Direction on causation ................................................................................................................ Victim not wearing seat belt ...................................................................................................... Alcohol ........................................................................................................................................ Mechanical defect of the vehicle is a defence .......................................................................... Hit and run driving ..................................................................................................................... Judge’s direction to jury ............................................................................................................. Negligence ................................................................................................................................... Sentencing ................................................................................................................................... Sentence ......................................................................................................................................

[4.5000] [4.5005] [4.5010] [4.5020] [4.5025] [4.5030] [4.5035] [4.5040] [4.5045] [4.5050] [4.5055] [4.5060] [4.5065] [4.5070] [4.5075] [4.5080] [4.5085] [4.5090] [4.5095] [4.5100]

[4.5000] Offence It is an offence to drive in such a way as to result in the death or injury of another person.

[4.5005] Legislation Qld: Criminal Code s 328A: dangerous driving causing death or grievous bodily harm; WA: Road Traffıc Act 1974 ss 59, 59A: dangerous driving causing death or grievous bodily harm; Tas: Criminal Code s 167A: causing death by dangerous driving; NT: Criminal Code s 174F: dangerous driving causing death or grievous harm. s 174FA: hit and run; NSW: Crimes Act 1900 s 52A: dangerous driving occasioning death or grievous bodily harm; Vic: Crimes Act 1958 s 318: culpable driving causing death; s 319 dangerous driving causing death or serious injury; s 24 negligently causing serious injury; SA: Criminal Law Consolidation Act 1935 s 19A: reckless driving causing death or bodily injury; ACT: Crimes Act 1900 s 29: culpable driving causing death or grievous bodily harm; Road Transport (Safety and Traffıc Management) Act 1999 s 6: negligent death causing death or grievous bodily harm; NZ: Land Transport Act; Can: Criminal Code s 249: dangerous driving causing bodily harm or death.

[4.5010] “A person” Legislation (except in South Australia) refers to “a person” or “another person”. An infant who is born alive but dies from pre-natal injuries has been held to be “a person”: R v F (1996) 40 NSWLR 245; 89 A Crim R 250; 24 MVR 436 (CCA).

[4.5030]

DRIVING CAUSING DEATH OR INJURY

595

[4.5015] The indictment (or presentment) Section 318 of the Crimes Act 1958 (Vic) puts four ways in which a person drives culpably: (a) recklessly, or (b) negligently, or (c) under the influence of alcohol, or (d) under the influence of a drug. In R v Beach (1994) 75 A Crim R 447 (Vic CCA) the presentment alleged (b) and (c). The court held that it did not matter that part of the jury might have been satisfied on one and the rest of the jury on the other. In R v Murray (2008) 2 ACTLR 120; 51 MVR 253 (Penfold J) his Honour dealt with the two sections alleging culpable driving and negligence. His Honour held that the sections gave rise to two levels of negligence, culpable driving behind the higher standard of negligence.

[4.5020] Sleeping A driver who falls asleep at the wheel is not acting consciously or voluntarily. In Jiminez v The Queen (1992) 173 CLR 572; 106 ALR 162; 59 A Crim R 308 the court approved the remarks of King CJ in R v Kroon (1990) 55 SASR 476; 52 A Crim R 15; 12 MVR 483 at 18 (A Crim R). The court then said (at 578–579; 166; 312): As King CJ recognises, where the question is whether a driver who falls asleep at the wheel is guilty of driving in a manner dangerous to the public, the relevant period of driving is that which immediately precedes his falling asleep. Not only must the period be sufficiently contemporaneous with the time of impact … but the driving during that period must be, in a practical sense, the cause of the impact and the death. The relevant period cannot be that during which the driver was asleep voluntary. And, for the reasons which we have given, if the driver’s actions upon waking up amount to no more than an attempt to avoid an accident, it cannot be that period of driving.

(note that the CLR omits part of a sentence: “… because during that time his actions were not conscious or…”: see Corrigenda 176 CLR xiii.) In Kruger v Kidson (2004) 14 NTLR 91; 182 FLR 440 Mildren J held that a sleeping passenger in the car of a learner driver was not liable for the criminal actions of the learner in the driving of the car.

[4.5025] Epilepsy In Gillett v The Queen (2006) 166 A Crim R 419; 46 MVR 429 (NSW CCA) the accused had driven causing death. Before the collision he had an epileptic seizure. He had suffered such seizures before. Appeal dismissed. McClellan CJ at CL, with whom the others agreed, said (at 431; 439 [29]): [T]he presence of the additional condition of sleep apnoea created a risk which the evidence confirmed the community would not accept. Persons suffering from epilepsy who have been deprived of sleep from whatever cause, including sleep apnoea, have such a risk of a seizure that they should not drive.

[4.5030] Objective test – manner or speed dangerous In R v Hain [1966] 2 NSWR 142; 85 WN Pt 1 NSW 7 (CCA) the court said in a joint judgment (at 145; 10):

596

ROSS ON CRIME

[4.5035]

1. Provided that there is evidence to support a conviction in terms of the relevant section and the jury have been properly instructed as to the applicable law, it is for the jury to decide as a fact whether the manner of driving was dangerous to the public or not. 2. The test to be applied in determining whether the management and control of the vehicle constituted driving in a manner which was dangerous to the public is an objective standard fixed in relation to other users of the highway whether the potentiality in fact of danger to the public is realised by the driver of the motor vehicle or not. 3. “Manner of driving” includes all matters connected with the management and control of the vehicle when it is being driven. 4. An act of omission done or omitted to be done with reference to the management or control of the vehicle which is merely casual or transitory may, in an appropriate case, constitute “manner of driving”. 5. Hence inattention on the part of the driver of a motor vehicle which leads to some act or omission on his part in his management or control of the vehicle is of itself no defence to a charge that the vehicle was driven in a manner which was dangerous to the public. 6. The quality of being dangerous to the public does not depend upon death or grievous bodily harm being occasioned to some person, though such a result must be proved to have to have occurred during that driving to complete the offence under the relevant section. 7. It is not enough that an impact takes place between the vehicle driven by the accused and another vehicle at some point of time after the vehicle has been driven in a manner which is a danger to the public – the impact must occur whilst the vehicle is being driven in a manner which is dangerous to the public; but the interval of time between the driving which is in breach of the section and the impact may in all the factual circumstances of the case be so short that the offending driving can be regarded as proceeding to the moment of impact. 8. The quality of the driving may be deduced from the resultant facts proved in evidence and be accepted by the jury.

Applied: R v Hallacoglu (1992) 29 NSWLR 67; 63 A Crim R 287 at 77, 296 (CCA). R v Bozzola (2001) 122 A Crim R 453 (NSW CCA) James J, with whom the other judges agreed, said (at 465 [62]): Whether the appellant was fatigued from driving too far or from having had insufficient rest and whether he was affected by the taking of drugs, while offering possible explanations of his manner of driving, were not really material to whether his manner of driving, judged objectively, had been dangerous.

In two separate judgments delivered the same day the Court of Criminal Appeal (SA) said that the test of whether a vehicle is driven in a manner dangerous to the public is an objective one: R v Kamleh (1990) 51 A Crim R 435; 12 MVR 1 at 436, 2–3; R v Kroon (1990) 55 SASR 476; 52 A Crim R 15; 12 MVR 483 at 16, 484. Other cases R v Allen (2003) 142 A Crim R 467; 39 MVR 407 (SA CCA); R v Buttsworth [1983] 1 NSWLR 658 (CCA); R v Beatty [2008] 1 SCR 49 (SCC).

[4.5035] Consciousness of guilt It would follow that where there is an objective test of driving, it is not usually open to the prosecution to seek to prove guilt from admissions, lies or flight or those matters which are

[4.5050]

DRIVING CAUSING DEATH OR INJURY

597

intended to show a consciousness of guilt. The driving will be objectively blameworthy or not, and consciousness of guilt will be irrelevant.

[4.5040] “Agony of the moment” The phrase “agony of the moment” is described by Jacobs J in Antonow v Leane (1989) 53 SASR 60; 10 MVR 435 at 63, 438 (FC): [A] driver who, “in the agony of the moment”, makes a not unreasonable, although in retrospect a dangerous, reaction to a sudden emergency, an emergency which not even a competent defensive driver might be expected to foresee or anticipate or guard against.

This was a civil case. Examples in criminal cases include the following. In R v Hewett (1981) 27 SASR 364; 4 A Crim R 19 (CCA) the accused’s vehicle was driven at a pedestrian at speed. She jumped but jumped the wrong way into the path of the car. The victim’s wrong movement was in the agony of the moment. In R v Warner (1991) 25 NSWLR 382; 58 A Crim R 54 (CCA) the appellant was convicted of culpable navigation of a cruiser which sank causing five children to drown. The phrase was used by defence counsel at trial and repeated in the judge’s charge (at 394; 66) to describe the appellant’s decision to switch off the motor when the boat was in difficulties. See also Byrnes v Snare (1986) 60 ALJR 507; 66 ALR 296; 4 MVR 97 at 297 (ALR), 98 (MVR) (HC).

[4.5045] Sudden or extraordinary emergency In some jurisdictions the legislation provides that a person is not liable in a sudden and extraordinary emergency when an ordinary person would not have acted otherwise. Cth: Criminal Code Act 1995 s 10.3; Qld: Criminal Code s 25; WA: Criminal Code s 25; NT: Criminal Code s 33; ACT: Criminal Code 2002 s 41. These sections can provide a defence: R v Warner [1980] Qd R 207; 1 A Crim R 18 (CCA); Dudley v Ballantyne (1998) 28 MVR 209 (WA, Owen J). See also McLuckie v Williams (1995) 82 A Crim R 118; 22 MVR 265 at 126, 272 (WA, Murray J) on honest and reasonable mistake of fact; R v Uduma [2013] SASFC 2. Sudden or extraordinary emergency at [19.6500]

[4.5050] Evidence of prior hazardous driving In R v Lewis [1913] VLR 227 (FC) the accused made a continuous journey at high speed. Beckett J said (at 229-230): [T]he rate the car was travelling prior to the accident, half a mile from the scene of the accident, bears directly on the probabilities as to the rate of speed at which the car was travelling when the accident occurred. Viewed in that aspect, we have no doubt the evidence was rightly admitted.

598

ROSS ON CRIME

[4.5055]

In R v Buchanan [1966] VR 9 (CCA). the applicant drank 16-17 glasses of beer (no breath or blood test). He drove at high speed round a bend on the wrong side of the road and hit another car head on, killing its occupants. It was held that earlier driving of the same sort was a replica of the later driving which caused the fatality and showed how the applicant handled the car when affected by liquor and was thus relevant. In R v Horvath [1972] VR 533 (CCA) the time lapse was the same but the two forms of driving were quite different. It was held that the evidence of earlier driving was inadmissible. The appeal was allowed. The court said (at 538): Where acts of driving are substantially separated in time and place, evidence of one is not, in our opinion, evidence of negligence of the other, in the absence of some connecting link, such as existed in R v Buchanan [1966] VR 9, or in R v Lewis [1913] VLR 227; 19 ALR 107. Failure to exercise care, depending, as it does, on the particular circumstances of the occasion is, in our view, not a constant feature of human behaviour and, accordingly, failure at one place and time not forming part of the occasion in issue does not, in itself, tend to prove failure at another time and place.

Applied: R v Clark (1986) 4 MVR 245 at 247 (Qld CCA); In R v Martin (1981) 4 A Crim R 302 (Qld CCA) a witness followed the applicant’s speeding car at 140 km/h but could not catch it. He followed for some 20 kilometres during which there were three incidents of the applicant’s car overtaking when unsafe. The passenger died when the car slammed into a bridge. It was held that the earlier driving evidence was admissible. The appeal was dismissed.

[4.5055] Causation Causation is usually a jury matter. If causation is an issue it is not open to a judge to remove that issue from the jury: Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545 (HC). The following matters have been held to raise the issue of causation which requires the jury’s determination. In Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157 (CCA) a collision occurred at a junction. The appellant was driving north along a four lane divided highway, perhaps too fast. The car of the victims was travelling south and indicating to make a right turn or a U turn across the path of the appellant. The victim’s car nosed out, unevenly and with hesitation. The trial judge refused to leave causation. The appeal was allowed. In R v Balic (1994) 20 MVR 93 (Tas CCA) the deceased passenger was not wearing a seat belt. The trial judge left causation to the jury but with comments adverse to the issue. The driver was acquitted. The Attorney-General referred the matter. The majority said no question of law arose. Slicer J examined many authorities and said causation was properly left. See also Judge at [10.900]; and Causation at [3.700].

[4.5060] Direction on causation In Campbell v The Queen [1981] WAR 286; (1980) 2 A Crim R 157 (CCA), Burt CJ said (at 290; 161): It would seem to me to be enough if juries were told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them they appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.

[4.5075]

DRIVING CAUSING DEATH OR INJURY

599

Approved: Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669. Other cases R v Hennigan [1971] 3 All ER 133; 55 Cr App R 262 – substantial cause of death must be more than de minimus. Followed: R v Moffatt (2000) 112 A Crim R 201 at 213 [72] (NSW CCA).

[4.5065] Victim not wearing seat belt In R v Cornish (1988) 48 SASR 520; 33 A Crim R 91; 6 MVR 419 (CCA), King CJ said (at 522; 92; 420): [W]hatever effect the failure to wear the seat belt might have had, it is perfectly apparent that a substantial cause of the death of the deceased was the occurrence of the accident. If, therefore, the appellant’s manner of driving caused the accident, it follows that a substantial cause of the deceased’s death was the driving of the appellant.

But in R v Balic (1994) 20 MVR 93 (Tas CCA) the trial judge had left causation to the jury on the deceased’s failure to wear a seat belt. In the Court of Criminal Appeal, Slicer J made an extensive review of the authorities on causation and concluded that the trial judge was correct. (The headnote wrongly says: R v Cornish followed).

[4.5070] Alcohol The effect of alcohol is relevant to how the driver handles the car: R v Buchanan [1966] VR 9 (CCA). However, the prosecution does not need to prove that the manner of driving was caused by the alcohol: R v Feketa (1982) 10 A Crim R 287 (Vic CCA) where the reading was .190%. Followed: R v Ryan (1992) 16 MVR 485 (Vic CCA). To be admissible, evidence of the consumption of alcohol (eg, by blood alcohol reading) must show that the driving would have been affected: R v Thorpe [1972] 1 NSWLR 342 (CCA). Where consumption of alcohol is small, evidence is liable to be excluded because its prejudicial effect outweighs its probative value. Appeal courts quashed convictions and entered verdicts of acquittal where evidence of slight consumption of alcohol was wrongly admitted in the following cases: R v Owens (1987) 30 A Crim R 59 (NSW CCA); R v Woodward [1995] 2 Cr App R 388 (CCA). The issue of a blood alcohol reading possibly below legal limit arose in R v Leaf-Milham (1987) 47 SASR 499; 30 A Crim R 68 (CCA). The appellant’s reading at the time of the fatal collision with the pedestrian was between .08 -.10%. In South Australia the limit is .08%. It was held (dismissing the appeal) that the evidence of the reading was relevant and not more prejudicial than probative. It was relevant to his vision and reactions when his vehicle was travelling so fast.

[4.5075] Mechanical defect of the vehicle is a defence In R v Spurge [1961] 2 QB 205; [1961] 2 All ER 688; 45 Cr App R 191 (CCA) Salmon J gave the leading judgment of the five member court (at 210–211; 690; 195):

600

ROSS ON CRIME

[4.5080]

There does not seem to this court to be any real distinction between a man being suddenly deprived of all control of a motor-car by some sudden affliction of his person and being so deprived by some defect suddenly manifesting itself in the motor-car. In both cases the motor-car is suddenly out of control of its driver through no fault of his.

In McBride v The Queen (1966) 115 CLR 44 McTiernan J said (at 55): The case of Reg v Spurge [1961] 2 QB 205; [1961] 2 All ER 688; 45 Cr App R 191 is an authority for the proposition that a mechanical defect may successfully be relied upon as a defence to a charge of dangerous driving if the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver and if the accused raises the defence the onus is on the Crown to negative it.

In Jiminez v The Queen (1992) 173 CLR 572; 106 ALR 162; 59 A Crim R 308 all the court, except McHugh J, said (at 583; 169; 315): [I]t will be a defence to establish an honest and reasonable mistake as to facts which if true would exculpate the driver. Perhaps the most obvious example is where a driver is unaware of the defective condition of his vehicle and believes it upon reasonable grounds to be in good working order.

A good example is R v Doherty (1983) 9 A Crim R 466 (Qld CCA). Without warning the wheels on the appellant’s car locked. The car veered across the highway, across the median strip, and landed on another car, killing two. The appeal was allowed and the conviction quashed. However, in each of the above cases, if the driver knew or ought to have known of the mechanical defect, there is no defence. See also R v Hinz [1972] Qd R 272 (CCA); Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 at 499, 659–660, 182.

[4.5080] Hit and run driving Legislation proscribes driving away from an accident where the victim is seriously injured. NT: Criminal Code s 174FA; Vic: Road Safety Act 1986 s 61.

[4.5085] Judge’s direction to jury In R v Horvath [1972] VR 533 (CCA) Winneke CJ delivering the judgment of the court said (at 539): [T]he proper course for the trial judge to adopt is to confine himself to the very terms of the relevant legislation.

Followed: R v De’Zilwa (2002) 5 VR 408; 133 A Crim R 501 (CA) at [41]; R v Allen (2003) 142 A Crim R 467; 39 MVR 407 (SA CCA).

[4.5090] Negligence In R v Horvath [1972] VR 533 (CCA) Winneke CJ, giving the judgment of the court, said (at 539) of s 318(b) Crimes Act 1958 (Vic): [T]he proper course for the trial Judge to adopt is to confine himself to the very terms of the relevant legislation to draw attention to the requirements that the jury must be satisfied that there

[4.5090]

DRIVING CAUSING DEATH OR INJURY

601

has been a failure on the part of the accused to observe the prescribed standard of care and that the failure must not only be unjustified but must be to a gross degree. The legislature has in words prescribed the degree of departure from the standard of care required to constitute the offence, and to do more than emphasize that the departure from the stated standard of care must be gross is only likely to obscure the nature of the task before the jury.

The judge should not explain the word “gross” to the jury. In R v Stephenson [1976] VR 376 the trial judge had given other meanings of “gross”, being “glaring”, “flagrant”, even “monstrous”. On the whole charge the jury was not misled. But (at 383): [T]he words which have been prescribed by the legislature need no further explanation to make their meaning apparent to the jury. There may be some circumstances where a further explanation is called for eg if a jury indicated that it required further assistance. We do not moreover disagree with the view expressed by their Honours in R v Lucas (1992) 2 VR 109; 55 A Crim R 361 that a comparison between civil negligence and the negligence required by the section may be helpful.

And later (at 484): [B]efore (the jury) could find the applicant guilty of the charges laid under s 318, they would have to be satisfied that he was guilty of negligence to such a degree that no reasonable person could consider that it was otherwise than gross.

The negligence referred to in s 24 of the Crimes Act 1958 (Vic) is the same as for manslaughter by criminal negligence. In R v Shields [1981] VR 717; (1980) 2 A Crim R 237 (CCA) the court said in a joint judgment (at 723; 244): Accordingly the jury may be directed that the act or omission must have taken place in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that grievous bodily injury would follow, that the act or omission merits punishment under the criminal law: cf Nydam v R, [1977] VR 430, at pp 444-5. A comparison with civil negligence will also be helpful.

In R v De’Zilwa (2002) 5 VR 408; 133 A Crim R 501 (CA) Charles JA giving the leading judgment, and after consulting with the President, said (at 423; 515 [46]): In my opinion where in future a person is charged with culpable driving under s 318(2)(b), the judge should direct the jury that the jury are required to find that the driving of the accused involved such a great falling short of the standard of care which a reasonable person would have exercised in the circumstances, and which involved such a high risk that death or serious injury would follow, that the driving causing death merited criminal punishment. Consistently with Lucas [1992] 2 VR 109; (1991) 55 A Crim R 361, a reference to and comparison with civil negligence would, I think, also be helpful to the jury.

In King v Queen [2012] HCA 24 the majority of the High Court stated that in relation to the offence of culpable driving a direction along the lines that negligence deserving of criminal punishment is inappropriate, given that is likely to confuse jurors who are unlikely to know the difference between criminal and civil standards of negligence.

Direction to jury where culpable driving alleging negligence is joined with s 24 (Note: s 24 was previous s 26) R v Shields [1981] VR 717; (1980) 2 A Crim R 237 at 724, 244 (CCA). In R v Beach (1994) 75 A Crim R 447 (Vic CCA) the court said in a joint judgment (at 451): The court stated in Shields [1981] VR 717; (1980) 2 A Crim R 237 that: [A] jury faced with a count under s 26 and a count specifying negligence under s 318 may be told that the direction which they have been given of what constitutes negligence for the

602

ROSS ON CRIME

[4.5095]

purposes of s 318 will also serve to define negligence for the purposes of s 26, and it is unnecessary and indeed undesirable to furnish the jury with any different definition of negligence for the purposes of s 26. Section 26 it should be added was the forerunner to s 24 and is not relevantly distinguishable.

[4.5095] Sentencing Generally In the guideline judgment of R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53; 37 MVR 1 (CCA, five member court) Spigelman CJ referred to an earlier judgment of the court in DPP v Jurisic (1998) 45 NSWLR 209. His Honour said (at 286 [216] – [217]: I had earlier (at 231B-C) set out a list of aggravating factors which had been established in the authorities as follows: (i) Extent and nature of the injuries inflicted. (ii) Number of people put at risk. (iii) Degree of speed. (iv) Degree of intoxication or of substance abuse. (v) Erratic driving. (vi) Competitive driving or showing off. (vii) Length of the journey during which others were exposed to risk. (viii) Ignoring of warnings. (ix) Escaping police pursuit. Further consideration of the authorities would cause me to amend this list by changing (v) to read “erratic or aggressive driving” and adding: (x) Degree of sleep deprivation. (xi) Failing to stop.

Complicity of victim In R v Tran (2002) 4 VR 457; 129 A Crim R 214; 36 MVR 248 (CA) Callaway J with whom the others agreed said (at 467; 224; 258 [34]): The correct view is that the complicity of a victim constitutes the absence of a circumstance of aggravation, albeit a circumstance of aggravation that is commonly present. Not too much attention is to be paid to labels. When it is said that a victim is “innocent”, that means only that he or she was not complicit. It is a matter for the judge, within the limits of a sound discretion, to decide what weight (if any) to attribute to the victim’s complicity.

Acts before and after In R v Scholes [1999] 1 VR 337; (1998) 102 A Crim R 510; 27 MVR 422; 24 Crim LJ 109-114 (CA) the acts of the accused before and after the driving were taken into account as were breach of parole and driving without a licence. See also R v Birnie (2002) 5 VR 426 (CA). Leaving the accident scene: R v Ryan (2003) 141 A Crim R 403; 39 MVR 395 (NSW CCA).

[4.5100] Sentence In R v Whyte (2002) 55 NSWLR 252; 134 A Crim R 53; 37 MVR 1 (CCA, five member court) Spigelman CJ said (at 286; 87; 32 [214] – [215]):

[4.5100]

DRIVING CAUSING DEATH OR INJURY

603

A custodial sentence will usually be appropriate unless the offender has a low level of moral culpability, as in the case of momentary inattention or misjudgment.

The numerical guideline The second limb of the guideline in R v Jurisic (1998) 45 NSWLR 209; 101 A Crim R 259; 29 MVR 49 at 231E (A Crim R) was as follows: With a plea of guilty, wherever there is present to a material degree any aggravating factor involving the conduct of the offender, a custodial sentence (minimum plus additional or fixed term) of less than three years (in the case of dangerous driving causing death) and less than two years (in the case of dangerous driving causing grievous bodily harm) should be exceptional.

Other cases DPP v Hill [2012] VSCA 144 (death); DPP v Janson (2011) 31 VR 222, 208 A Crim R 134; [2011] VSCA 19 (death)’ R v Singh (2011) 111 SASR 219, 221 A Crim R 1; [2011] SASCFC 128 (death); R v Carruthers (2008) 182 A Crim R 481; 50 MVR 29 (NSW CCA) (grievous bodily harm); Hughes v The Queen (2008) 49 MVR 420 (NSW CCA) (death); R v Lam (2006) 46 MVR 207 (Vic CA) (death); DPP v Johnstone (2006) 16 VR 75; 168 A Crim R 223 (CA) (two deaths and a serious injury); R v Tabakovic (2005) 154 A Crim R 30 (Qld CA) (grievous bodily harm. Driver 0.152%); R v Pevy (2004) 43 MVR 280 (NSW CCA) (death); DPP v Scott (2003) 6 VR 217; 141 A Crim R 497; 38 MVR 407 (CA) (death); Norris v AT (2003) 138 A Crim R 497; 38 MVR 519 (WA CCA) (grievous bodily harm); Wood v The Queen (2002) 130 A Crim R 518; 36 MVR 94 (WA CCA) (death); R v Guariglia (2001) 33 MVR 543 (Vic CA) (death); R v Fuller (1998) 27 MVR 474 (NSW CCA) (death); R v Grant (1998) 28 MVR 267 (Qld CA) (death); R v Taafe (1998) 102 A Crim R 472; 28 MVR 188 (Vic CA) (death); R v Hoffman (1997) 98 A Crim R 177; 27 MVR 563 (Qld CA) (bodily harm); R v Johnston (1985) 38 SASR 582 (CCA) (death); R v Fyfe (1985) 40 SASR 120 (CCA) (death); R v Esposito (1985) 38 SASR 574 (CCA) (bodily harm); R v Devlin (1985) 38 SASR 578 (CCA) (bodily harm); Tang v The Queen [2013] VSCA 31 (injury).

604

ROSS ON CRIME

[4.5300]

DRUGS Admissions .................................................................................................................................. Drugs are property ...................................................................................................................... Minute quantity ........................................................................................................................... Possession .................................................................................................................................... Occupier’s liability ...................................................................................................................... Duplicity ...................................................................................................................................... Belief different from fact ............................................................................................................ Commercial quantity and intent ................................................................................................. Evidence of uncharged acts ........................................................................................................ Manufacture ................................................................................................................................ Evidence of street value ............................................................................................................. Hot shot ....................................................................................................................................... Sentencing ................................................................................................................................... Sentence ...................................................................................................................................... Other references ..........................................................................................................................

[4.5300] [4.5305] [4.5310] [4.5315] [4.5320] [4.5325] [4.5330] [4.5335] [4.5340] [4.5345] [4.5350] [4.5355] [4.5360] [4.5365] [4.5370]

[4.5300] Admissions Admissions by an experienced drug user that the substance was a controlled drug was sufficient proof on its own of the nature of the drug: R v Chatwood [1980] 1 WLR 874; 1 All ER 467; 70 Cr App R 39; Anglim and Cooke v Thomas [1974] VR 363 (Harris J); Relf v Webster (1978) 24 ACTR 3 (Connor J); Parks v Bullock [1982] VR 258 (King J); R v Dillon [1983] 2 Qd R 627 (CCA); Reardon v Baker (1987) 25 A Crim R 203 (Vic, Phillips J).

[4.5305] Drugs are property Not withstanding that their possession may be illegal, drugs are property capable of being stolen: Anic v The Queen (1993) 61 SASR 223; 68 A Crim R 313 (CCA). An illegal entry to steal drugs is usually called a drug run-through.

[4.5310] Minute quantity A minute quantity affects knowledge of possession. In Williams v The Queen (1978) 140 CLR 591; 22 ALR 195 the amount in the jacket pocket was too small to be seen. The court held that the appellant was correct in saying he did not believe he had drugs. The appeal was allowed.

[4.5315] Possession See Possession at [16.2700]; and Knowledge at [11.700].

[4.5320] Occupier’s liability Some legislation makes an occupier liable for drugs found on the premises. The evidence is conclusive unless the occupier shows that there was no knowledge nor suspicion of the presence of the drug. Qld: Drugs Misuse Act 1986 ss 11 and 12; NT: Misuse of Drugs Act ss 5 and 40.

[4.5335]

DRUGS

605

See also WA: Misuse of Drugs Act 1981 s 5. Defence at [4.700]; and Onus of proof at [15.1100].

[4.5325] Duplicity Where someone is in the business of drugs, a single count can be laid and evidence given of a number of transactions. The following can connote business: R v Giretti (1986) 24 A Crim R 112 (Vic CCA) – traffick; R v Hamzy (1994) 74 A Crim R 341 (NSW CCA) – supply. However, including three types of drugs in one count is duplicity. A plea of guilty to such a charge was permitted to be withdrawn in R v F (1996) 90 A Crim R 356 (NSW CCA).

[4.5330] Belief different from fact Where an accused believed he was smuggling currency but the fact was that the contraband was drugs, his mistake could not result in the necessary guilty mind for drug importation: R v Taafe [1984] AC 539; [1984] 1 All ER 747; 78 Cr App R 301 (HL). Where, however, the accused believed he was importing drugs but what arrived was a form of snuff, he is guilty of attempt: R v Shivpuri [1987] AC 1; [1986] 2 All ER 334; 83 Cr App R 178 (HL). Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 (FC) was similar where the accused believed he was importing cannabis but it was procaine. The principle was applied in: R v Mai & Tran (1992) 26 NSWLR 371; 60 A Crim R 49 (CCA); R v Prior (1992) 91 NTR 53; 112 FLR 388; 65 A Crim R 1 (Mildren J).

[4.5335] Commercial quantity and intent Legislation in every jurisdiction refers to commercial quantity of a drug. The most frequent charges are trafficking in a commercial quantity or cultivating a commercial quantity (or large commercial quantity). Elements of these offences include: 1. The drug must be a commercial quantity (or a large commercial quantity); and 2. The accused has an intent to traffick (or cultivate) a commercial quantity. A jury must be directed on each element. As to intent, in R v Nguyen (2005) 12 VR 299; 154 A Crim R 360 (CA) the court said in a joint judgment (at 308–309; 371 [23]): [T]he jury should be directed that in deciding whether the intention to traffick in a prohibited drug in not less than a large commercial quantity has been proved to their satisfaction they should have regard to any direct evidence as to that intention, but might also draw the inference that the accused had such an intention from the circumstances of the case. One such circumstance which would be capable, in itself, of proving the relevant intention would arise if they were satisfied that the accused knew there was a significant or real chance that the trafficking of the prohibited drug in which it has been proved he engaged would involve quantities of the drug not less than a large commercial quantity. Such a conclusion would enable them to draw the inference that the accused had the relevant intention to traffick in a large commercial quantity of the drug. The jury, however, would have to be told that whether they make those findings or draw that inference is a matter for them, and even if the inference is open to be drawn that the accused intended to traffick in a large

606

ROSS ON CRIME

[4.5340]

commercial quantity of the drug, they could not so conclude beyond reasonable doubt if any other inference is reasonably open to be drawn. The jury might then be directed to adopt the same approach when considering, if it proves necessary, whether, in the alternative, intention to traffick in a commercial quantity of the drug has been proved.

[4.5340] Evidence of uncharged acts Uncharged acts are not confined to sexual charges. They have been held properly admissible in drug charges as well. Some of the cases pick up the expressions used in the sexual cases. In Grakalic v The Queen (2002) 27 WAR 19; 130 A Crim R 219 (CCA) there had been three accused at trial. One pleaded guilty and was sentenced on her preparedness to give prosecution evidence. She did give that evidence including that she had traded drugs with the accused for a good deal of time before the dates of the charges. She was clearly an accomplice. On appeal her evidence of the uncharged acts was held admissible. Murray J said (at [23]) that her evidence: [W]as clearly admissible to support her credibility and make believable her knowledge of the applicant … It was evidence of a guilty relationship capable of rebutting (innocent) association.

In R v Mong (2002) 5 VR 565; 136 A Crim R 502 (CA) the prosecution led evidence of similar uncharged drug dealing six months before the first offence. The Court of Appeal held the evidence was admissible. Callaway JA said that it was relationship evidence. His Honour said (at 570–571; 508 [18]): It was no different in that respect from an allegation of a sexual offence between an adult and a child some months before the offence charged.

In R v Long (2002) 137 A Crim R 263 (SA CCA) the two accused were charged over an amphetamine cook-up in South Australia. A prosecution witness gave uncorroborated evidence of there having been a cook-up six weeks before the charged act. Held, the evidence was admissible. Doyle CJ used a string of decisions in sexual cases as justification (at 269–271 [34] – [41]). The other judges agreed. But in R v Tragear (2003) 9 VR 107; 140 A Crim R 139 (CA) Callaway and Batt JJA held that finding cocaine in one location was not probative of the charges which were trafficking in cocaine (and alternatively possession) in another location. See also Uncharged acts at [21.100].

[4.5345] Manufacture It is an offence to manufacture a prohibited drug (without a licence) or to prepare to manufacture it.

Legislation Cth: Crimes (Traffıc in Narcotic Drugs and Psychotic Substances) Act 1980 s 6; Qld: Drugs Misuse Act 1986 ss 4 and 8; WA: Misuse of Drugs Act 1981 ss 5(1) and 6(1)(b); Tas: Misuse of Drugs Act 2001 ss 3(1), 6, 10, 21; NT: Misuse of Drugs Act s 8; NSW: Drug Misuse and Traffıcking Act 1985 s 24; Vic: Drugs, Poisons and Controlled Substances Act 1981 s 70;

[4.5350]

DRUGS

607

SA: Controlled Substances Act 1984 ss 13 and 32(1); ACT: Drugs of Dependence Act 1989 s 161; NZ: Misuse of Drugs Act 1975 s 56(1)(b). In McKeagg v The Queen (2006) 162 A Crim R 51 (WA CCA) Murray AJA, with whom the others agreed, said (at 59 [49]): It is therefore appropriate, I think, to give the word “manufacture” its ordinary English meaning of making something out of something different: cf Commissioner of Taxation (Cth) v Jack Zinader Pty Ltd (1949) 78 CLR 336 at 343. Further, while you can be said to be manufacturing something while that process goes on and before the thing is finally created out of other material, you cannot, in my opinion, within the meaning of s 6(1)(b) of the Misuse of Drugs Act 1981, be said to manufacture a prohibited drug until you make the prohibited drug. That is the completed offence, the production of the drug.

The applicant possessed the equipment and the ingredients. His conviction for manufacture was set aside and conviction for attempt substituted. In Re Avory (2003) 87 SASR 392; 143 A Crim R 514 (FC) the accused was found with chemicals in the boot of his car. The chemicals were often used to manufacture amphetamines. Held: the accused was not engaged in a “process of manufacture”. In R v Randylle (2006) 95 SASR 574; 166 A Crim R 301 (CCA, five member court) the court considered Re Avory. Manufacture depends on the facts. Taking steps to achieve that end are enough. Appeal dismissed.

[4.5350] Evidence of street value At trial The prosecution often seeks to lead evidence of the street value of a drug. The witness is invariably a police officer. The present state of the law is that such evidence must be relevant and the witness must be qualified to give opinion evidence. In R v Fazio (1997) 69 SASR 54; 93 A Crim R 522 (CCA) the accused had been convicted of possessing cocaine for sale. Evidence was led from a Drug Task Force detective. The court described that evidence (at 61; 529): The evidence led concerned the origin of cocaine and its extraction from the coca plant, a description of the drug in its pure form, the fact that it was often “cut” or “stepped” with adulterants, such as glucose, baking powder or sugar. He described the most common methods of ingestion, the approximate street price of the drug and a description of items usually found in possession of persons dealing in drugs.

The court held that in the circumstances the evidence was proper opinion evidence. In R v Kennedy (1979) 37 FLR 356 (NSW CCA) the defence was that the accused picked up the wrong suitcase from Sydney airport luggage carousel by mistake. The court held (at 367) it was preferable that the jury have evidence of the true value rather than speculate on it. In R v Sandford (1994) 72 A Crim R 160 (NSW CCA) Hunt CJ at CL examined the trial admissibility of such evidence (at 177–179). He said (at 178): The increase in price from what the middle man pays for the heroin to what he receives for it upon resale represents his profit. The street value of heroin could have been relevant only as material from which some outside idea might be gained as to what the price was which would be paid to a middleman.

(Note that this part of the judgment is not in the report of the case at (1994) 33 NSWLR 172.)

608

ROSS ON CRIME

[4.5355]

His Honour went on to say that although the probative value of the evidence of street value was slight, it was not wrongly admitted. Note that in He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 evidence had been given at trial of the street value of heroin (per Wilson J at 546).

On sentence Evidence of street value of drugs has been admitted on sentence in too many cases to be recited.

[4.5355] Hot shot A hot shot is a homicide by administration of a lethal dose of drugs. Reported cases on the subject include: Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 at [22]; Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 at [2]; R v Carter (2000) 1 VR 175 at 179 [11] (CA); R v Hickey (1995) 89 A Crim R 554 (Vic CA); R v Alexandroaia (1995) 81 A Crim R 286 (NSW CCA). Yet if a person prepares a syringe of heroin and hands it to another who self-administers and dies, that is not manslaughter. Of course the drug user must be of full age and competence. So held the House of Lords in R v Kennedy (No 2) [2007] 3 WLR 612; [2007] 4 All ER 1083 (HL). The reason is that it was not the decision of the accused whether the drug was used.

[4.5360] Sentencing Addiction as mitigation In R v Lacey (2007) 176 A Crim R 331 (Vic CA) the court in a joint judgment examined authority and concluded (at 334 [16]): The offender’s addiction will only call for mitigation of punishment where it is established on the balance of probabilities that there was a link between that addiction and the commission of the offences. Sentencing error will only arise where it can be shown that, on the material presented on the plea, the sentencing judge was bound to find the requisite link between the offender’s addiction and the offences: R v Bernath [1997] 1 VR 271 at 276 (Callaway JA).

In R v Griggs (1999) 95 FCR 490; 167 ALR 673 (FCA) Miles J, with whom the others agreed, said (at 498; 681 [39]): Until very recently the use of mind altering drugs such as heroin was regarded with such abhorrence that it could not possibly be accepted as a mitigating factor in the commission of crime. That is no longer the case. The dilemma of denying that moral responsibility is reduced by the effect of an addiction to a mind altering substance whilst insisting on heavy sentences for serious offences by a drug dependent person has been addressed by looking at the circumstances in which the person concerned became so dependent: R v Henry [1999] NSWCCA 111: Talbot v The Queen (1992) 34 FCR 100; 59 A Crim R 383; Douglas v The Queen (1995) 56 FCR 465.

In R v Killen (2005) 152 A Crim R 1 (NSW CCA) the court dismissed a prosecution appeal on inadequacy of sentence for social security fraud. Hidden J, with whom the others agreed, said (at 5 [17] – [18]): In R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149, Wood CJ at CL and Simpson J devoted most of their judgments to the relevance of drug addiction to sentencing. What they wrote is, of

[4.5360]

DRUGS

609

course, equally applicable to alcohol addiction. Adapting the words of the Chief Judge to the present case, it could be said that the respondent’s addiction “was not a matter of personal choice but was attributable to” events for which she “was not primarily responsible”: Henry (at [273](c)(ii)). It could also be said that her alcohol abuse began when she was young, when her “ability to exercise appropriate judgment or choice was incomplete”: Henry (at [273](c)(ii). The observations of Simpson J (at [336] - [348]), with which I respectfully agree, are also apposite. Directly on point, (at [336]) her Honour observed: In this Court, one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the Court, is very young, and sometimes the precipitation events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease.

Committing a crime to support a drug habit In R v Bouchard (1996) 84 A Crim R 499 (Vic CA) Callaway JA, delivering the leading judgment, said (at 501): It may be conceded that it is a relevant and sometimes very significant factor in sentencing that an offender engaged in trafficking, especially at “street level”, in order to gain the wherewithal to satisfy his own craving, rather than as a non-user acting purely for reasons of greed and in callous disregard of the grave harm that offence does to its victims. But it is quite unsafe, in my opinion, to reason from cases concerning narcotics to a case of armed robbery. More pertinent guidance in that regard is to be found in the judgment of Young CJ in Halewyn (1984) 12 A Crim R 202 at 203. In that case, when he was apprehended by the police, the applicant revealed, among other things, that he was a heroin addict and said in answer to questions that he committed the armed robbery to support his habit. The learned Chief Justice, in whose judgment Kaye and Beach JJ concurred, referred to the seriousness of the offence and its prevalence in the community and continued: The offence thus committed was a very serious one which, as I have said, is all too prevalent in this community. It is an offence which the courts are bound to deal with by imposing substantial sentences, and it has been said a number of times in this Court that the fact that an armed robbery is committed to support a drug habit is of little consequence in mitigating the sentence to be imposed. The English courts have gone even further. It is sufficient for me to refer to the well known remarks of Simon Brown J in Lawrence (1988) 10 Cr App R (S) 463 at 464. The fact that a crime such as armed robbery is committed to feed a drug addiction cannot be said to be totally irrelevant to the circumstances of the offender, and it is probably true that the view so robustly expressed by his Lordship should not be taken literally. It is, nevertheless, a factor entitled to little weight, especially in a case such as the present.

Effect of drugs on users: reclassification? In Adams v The Queen (2008) 234 CLR 143; 244 ALR 270; 183 A Crim R 534, four of the justices in joint judgment approved R v Pidoto and O’Dea (2006) 14 VR 269; 165 A Crim R 61 at 262; 72 [59] (CA). These justices said (at [9]): Harm to users and society is a protean concept ... What kinds of user, and what kinds of harm to society, are under consideration? The social evils of trading in illicit drugs extend far beyond the physical consequences to individual consumers. As the Victorian Court of Appeal pointed out in R v Pidoto and O’Dea, “questions arise as the whether the perniciousness of a substance is to be assessed by reference to the potential consequences of its ingestion for the user, or its effect upon the user’s behaviour and social interactions, or the overall social and economic costs to the community.” Furthermore, in relation to some of these matters, scientific knowledge changes, and opinions differ, over time. Generalisations which seek to differentiate between the evils of the illegal trade in heroin and MDMA are to be approached with caution.

In R v Sladic (2005) 92 SASR 36 (CCA) the court in a joint judgment approved observations in its own recent decision. The court repeated it (at 43 [27]):

610

ROSS ON CRIME

[4.5365]

Since the decision in Mangelsdorf, there have been considerable advances in knowledge of the effect of various drugs upon human behaviour. There is some evidence about the effect of marijuana upon the human brain. Some research suggests that there is a relationship between heavy use of marijuana and schizophrenia in young people. There has been the introduction of so-called “designer drugs”. Their use as recreational drugs has become more common. The long and short-term effect of these drugs on human behaviour has been the subject of a number of studies. It may be that it is time to reconsider the classification of drugs referred to in Mangelsdorf. The time may have come, in the appropriate case, for the Director to consider whether expert evidence should be called to inform the sentencing court of recent research as to the effect of various popular drugs upon users.

[The reference is to R v Mangelsdorf (1995) 66 SASR 60; 83 A Crim R 272 (CCA).] Other cases R v Zarb (1996) 88 A Crim R 55 (Vic CA); R v Bruce (1998) 71 SASR 536 (CCA); R v Chan Thanh Ma (1999) 107 A Crim R 252 (NSW CCA); R v Griggs (1999) 95 FCR 490; 167 ALR 673 (FCA); R v Proom (2003) 85 SASR 120; 138 A Crim R 478 (CCA) (sentence reduced).

[4.5365] Sentence In R v Hai Van Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 the New South Wales Court of Criminal Appeal usefully set out the principles that apply in sentencing serious federal drug offenders. The Court stated: [72] The following general propositions emerge from the authorities: (a) the criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation: R v Lee at [27]; … (c) it is the criminality involved in the importation which must be identified - the fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility: R v Lee at [26]; (d) although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported: Wong v The Queen; Leung v The Queen at 607-608 [64]; R v Lee at [23]-[24]; (e) the statements by the High Court in Wong v The Queen; Leung v The Queen do not suggest that, in an appropriate case, the amount of the drug involved in an importation is not a highly relevant factor in determining the objective seriousness of the offence,… (g) the difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case: Wong v The Queen; Leung v The Queen at 607-608 [64]; (h) the sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment … (j) the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor on sentence …

Specific deterrence is also regarded as an important consideration in relation to offenders who have prior convictions for drug offences. Barbaro v The Queen [2012] VSCA 288 The

[4.5370]

DUEL

611

seriousness of the harm that courts regard drug offending is illustrated in Mokbel v The Queen [2013] VSCA 118 at [108] where the court stated: The sentences imposed had to be seen to reflect the community’s abhorrence of trafficking in drugs, and the Court’s denunciation of a person who, for reasons of sheer greed, was prepared — repeatedly and determinedly — to inflict untold harm on the community.

In summary, the key principles that guide sentencing courts in Australia in sentencing drug offenders are as follows: 1. General deterrence is the most important consideration. 2. It is rare for offenders who are found guilty of large scale drug offences to not receive a custodial term. 3. In terms of offence severity, the most important consideration is the offender’s role. 4. The second most important consideration is the amount of drugs. 5. The Courts do not distinguish between degrees of dangerousness of drugs. 6. There is scope for mitigating factors to reduce the sentence. 7. The most important mitigating factors are: • assistance to authorities; • low purity of drugs; • drug addiction; • no commerciality; • previous good character. See also, DPP (Cth) v De La Rosa (2010) 79 NSWLR 1, 205 A Crim R 1; [2010] NSWCCA 194; Phuong Bich Nguyen v The Queen (2011) 31 VR 673, 207 A Crim R 380; [2011] VSCA 32.

Manufacture of amphetamines R v Pedavoli (2002) 128 A Crim R 137 (NSW CCA); R v Fatu [2006] 2 NZLR 72 (CA).

Women drug couriers See Sentencing (Woman drug courier) at [19.2195].

[4.5370] Other references Cannabis at [3.100]; Possession at [16.2700]; Supply at [19.6900]; and Trafficking at [20.1700].

DUEL Meaning ....................................................................................................................................... Provocation .................................................................................................................................. No more ordeal by battle ............................................................................................................ The offence .................................................................................................................................. Other references ..........................................................................................................................

[4.5500] [4.5505] [4.5510] [4.5515] [4.5520]

612

ROSS ON CRIME

[4.5500]

[4.5500] Meaning A duel is a prearranged formal combat between two men armed with deadly weapons. It arises from a personal quarrel or to decide a matter of honour. It came to be performed under rather strict conventional rules. Each combatant usually had a second, a person who attended him. The word comes from the Italian duello which in turn derives from the Latin words duo bellum, a war of two.

[4.5505] Provocation Provocation could arise from a duel. In DPP v Camplin [1978] AC 705; [1978] 2 All ER 168; 67 Cr App R 14 (HL) Lord Diplock said (at 713–714; 171; 17):r The human infirmity on which the law took compassion in a violent age when men wore weapons for their own protection when going about their business appears to have been chance medley or a sudden falling out at which both parties had recourse to their weapons and fought on equal terms.

But provocation became not so confined as time went on. In Parker v The Queen (1963) 111 CLR 610 Dixon CJ, in the minority in the failed appeal, said (at 630): I do not think that the criteria of “provocation” should nowadays be expressed in terms directed to duels and personal quarrels among men who ordinarily bear arms or to violence produced by violence.

In Parker v The Queen (1964) 111 CLR 665 (PC) their Lordships advised that the appeal be allowed.

[4.5510] No more ordeal by battle In Serville v Constance [1954] 1 WLR 487 (Ch D, Harman J) where the litigation was between two boxers about the right to the title “welter-weight champion of Trinidad”, his Honour said (at 491): [I]t occurred to me for the first time during the hearing to regret the desuetude of ordeal by battle as a method of trial.

[4.5515] The offence Duelling is now an offence by statute and at common law.

Legislation WA: Criminal Code s 72; Tas: Criminal Code s 81; NT: Criminal Code s 70 (challenge to a fight); Can: Criminal Code s 71. Elsewhere there is an equivalent common law offence.

[4.5520] Other references See also Provocation at [16.7800].

[4.5705]

DUPLICITY

613

DUPLICITY Definition ..................................................................................................................................... Origins and rationale .................................................................................................................. Present practice ........................................................................................................................... Rule to be applied in a practical way ........................................................................................ Alleging breach of a statutory offence ....................................................................................... Particular offences ....................................................................................................................... The cure: amendment .................................................................................................................

[4.5700] [4.5705] [4.5710] [4.5715] [4.5720] [4.5725] [4.5730]

[4.5700] Definition Duplicity occurs where more than one offence is joined in one count of an indictment. In Walsh v Tattersall (1996) 188 CLR 77; 88 A Crim R 496; 139 ALR 27 Dawson and Toohey JJ said (at 84; 30; 499): The proscription against duplicity is succinctly stated by Archbold (Archbold, Criminal Pleading, Evidence and Practice (44th ed, 1995), Vol 1, p 75). The indictment must not be double; that is to say, no one count of the indictment should charge the defendant with having committed two or more separate offences … This rule, though simple to state is sometimes difficult to apply … Duplicity in a count is a matter of form, not evidence. The rule has been described as one of elementary fairness, to enable the defendant to know what it is of which he has been charged or found guilty and so that he has the opportunity of making a no case submission or a sensible plea in mitigation. That duplicity is a matter of form, not a matter relating to the evidence called to support the count, is emphasised by the Court of Appeal in Greenfield (1973) 57 Cr App R 849 at 855-856.

[4.5705] Origins and rationale In S v The Queen (1989) 168 CLR 266; 45 A Crim R 221; 89 ALR 321 Gaudron and McHugh JJ said (at 284; 334–335; 234): The rule against duplicitous counts in an indictment originated as early as the seventeenth century … It may be … that the rule grew out of the strict formalities associated with criminal pleadings at a time when the difference between misdemeanour and felony was the difference between life and death. However, the rule against duplicitous counts has, for a very long time, rested on other considerations. One important consideration is the orderly administration of criminal justice. There are a number of aspects to this consideration: a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict … The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.

Followed: Kailis v The Queen (1999) 21 WAR 100; 107 A Crim R 195 (CCA). In Bastin v Davies [1950] 2 KB 579; [1950] 1 All ER 1095 Lord Goddard said (at 581): Duplicity consists in charging two or more separate offences in one information or count conjunctively: uncertainty arises when two or more offences are so charged in the alternative or disjunctively, for obviously such a procedure leaves it quite uncertain with which of those offences the defendant is charged, and the conviction, which must follow the information, would also leave it in doubt of which offence the defendant has been found guilty.

(Note: this part of the judgment does not appear in the report of the case [1950] 1 All ER 1095.)

614

ROSS ON CRIME

[4.5710]

[4.5710] Present practice In Walsh v Tattersall (1996) 188 CLR 77; 88 A Crim R 496; 139 ALR 27 Kirby J said (at 107; 49; 518): For the foregoing reasons of history, good prosecution practice and fair conduct of criminal trials, the general rule of our legal system is still this: that a prosecutor may not ordinarily charge in one count of an indictment, information or complaint two or more separate offences provided by law.

In Tasmania v M (2008) 17 Tas R 220; 184 A Crim R 404 (Blow J) the accused was charged with two counts of ill-treating a child. On the first count against the first child the prosecution alleged 13 events. On the second count against the other child there were 32 alleged events. There were to be further allegations not involving physical force comprising abuse, threats and demeaning the victims. His Honour held that all the evidence could be led and that there was no duplicity.

[4.5715] Rule to be applied in a practical way In DPP v Merriman [1973] AC 584; [1972] 3 All ER 42; (1972) 56 Cr App R 766 (HL) Lord Diplock said (at 607; 59; 796): The rule against duplicity, viz that only one offence should be charged in any count of an indictment … has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence. Where a number of acts of a similar nature committed by one or more defendants were connected with one another, in the time and place of their commission or by their common purpose, in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, it was the practice, as early as the 18th century, to charge them in a single count of an indictment.

Other cases Taylor v The Queen (1997) 6 Tas R 310; 137 FLR 250; 93 A Crim R 1 (CCA); R v Khouzame (1999) 108 A Crim R 170 (NSW CCA); R v Poulier (2007) 19 NTLR 91; 210 FLR 1; 170 A Crim R 345 (CCA); Chapman v The Queen [2013] NSWCCA 91. MJ v The Queen [2013] NSWCCA 250. Masri v The Queen [2015] NSWCCA 243.

[4.5720] Alleging breach of a statutory offence A statute may proscribe various acts. When those acts are included in one charge, the construction of the statute determines whether there is duplicity. In Romeyko v Samuels (1972) 2 SASR 529 Bray CJ said (at 552): The true distinction, broadly speaking, it seems to me, is between a statute which penalises one or more acts, in which case two or more offences are created, and a statute which penalises one act if it possesses one or more forbidden characteristics. In the latter case there is only one offence, whether the act under consideration in fact possesses one or several of such characteristics. Of course, there will always be borderline cases and if it is clear that Parliament intended several offences to be committed if the act in question possesses more than one of the forbidden characteristics, that result will follow.

Followed: R v Castles (2007) 17 VR 329; 179 A Crim R 19 at [13] – [14] (Bongiorno J); DPP v Judge Hassett (1994) 76 A Crim R 19 (Vic CCA) Ormiston J (at 26); R v Manwaring (1983) 2 NSWLR 82; (1983) 12 A Crim R 253 (CCA).

[4.5725]

DUPLICITY

615

In Byrne v Baker [1964] VR 443 (FC) the defendant was charged with a breach of the requirements of s 107 of the Companies Act 1958 (Vic) which provided: 107(1) A director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office.

The information presented against the defendant charged “that the defendant between 3 May 1960 and 21 June 1962 at Melbourne … being a director of (the company) did not at all times use reasonable diligence in the discharge of the duties of his office”. Particulars were furnished in a 10-page document containing 61 paragraphs alleging many acts and omissions throughout the period in the administration of the company and the management of its finances. The information was held to be duplicitous. The Full Court said in a joint judgment (at 454): Before the trial began the applicant was entitled to know just what was the specific charge against him. This in fact was never made known to him. The particulars when furnished made his position more difficult still. They introduced a multiplicity of prolix assertions without identifying any one definite act or omission as that upon which the prosecution relied to found its charge of failure to use reasonable diligence. The accused’s counsel were clearly right in their complaint below that the accused were placed in an impossible position by the course taken by the prosecution; and also in their contention, put forward at the outset of the proceedings below, that the information should be dismissed unless the prosecution selected one charge upon which it proposed to rely.

In Dendy v Brinkworth (2006) 97 SASR 407; 164 A Crim R 303 (Duggan J) the respondents had been charged with clearing trees contrary to the the Native Vegetation Act 1991. There was clearance on 27 separate sites all of which were on the one property. The magistrate dismissed the charges because of duplicity. On the informant’s appeal, his Honour held that the word “clearance” in the Act gave rise to a continuing offence. Appeal allowed. Matter remitted to the Magistrates Court for further hearing.

[4.5725] Particular offences Duplicity R v Giam (1999) 104 A Crim R 416 (NSW CCA). The indictment was in the following form: [W]ith intent to obtain for Jason Property Management Pty Ltd and Others a financial advantage, namely a facility with the State Bank of New South Wales, did make a false statement, namely, that he, Tony Giam, was secretary of Jason Property Management Pty Ltd and Fibodi Pty Ltd, and that he had been authorised to enter into such an arrangement with the bank to obtain such a facility, which he knew to be false and misleading in a material particular.

Bastin v Davies [1950] 2 KB 579; [1950] 1 All ER 1095. The information charged: [D]id sell to the prejudice of the purchaser … a certain article of food, to wit, beef sausage, which was not of the nature or not of the substance or not of the quality of the article demanded in that the said beef sausage was 32.6 per cent deficient in meat, contrary to s 3 of the Food and Drugs Act 1938 (UK).

R v Manwaring [1983] 2 NSWLR 82; (1983) 12 A Crim R 253 (CCA). The indictment was in the following form: [The appellants] did by force take away against her will [the complainant] with intent to cause the said [complainant] to be carnally known by any of the said John Cedric Mainwaring, Geoffrey Ernest Johnson, Cecil Paul Crane, or Geoffrey Thomas Wilson.

R v Orsos (1997) 95 A Crim R 457 (NSW CCA). The information charged: [D]id incite … a person under the age of sixteen years … to commit an act of indecency with or towards Andrew David Orsos.

616

ROSS ON CRIME

[4.5730]

Other cases R v Walsh (2002) 131 A Crim R 299 at 309–320 [39] – [65] (Vic CA); Byrne v Baker [1964] VR 443 (FC); R v Nicholls [1960] 1 WLR 658; [1960] 2 All ER 449; 44 Cr App R 188; R v Inman [1966] 3 WLR 567; [1961] 3 All ER 414; 50 Cr App R 247; Moore v Ray [1950] 2 All ER 561 (KBD). Environment Protection Authority v Riverina Australia Pty Ltd [2015] NSWCCA 165.

No duplicity Assault and rob: the hendiadys means that there is only one offence which should be charged as “rob”: R v Smith & Kirton (1990) 47 A Crim R 43 (NSW CCA). Assault and stalking: Thomas v Campbell (2003) 9 VR 136 (Nettle J). Injuriously and falsely imprison: One offence in which the word injuriously does not require separate direction to the jury: R v Vollmer [1996] 1 VR 95 at 173, 175-187 (CCA). Stolen or unlawfully obtained: R v Chan (1992) 28 NSWLR 421; 63 A Crim R 242 (CCA). False or misleading: R v Harris (1999) 150 FLR 281; 108 A Crim R 58 (Tas, Evans J). Possession for sale, supply or administration: R v Hoang (2002) 83 SASR 254; 134 A Crim R 303 (CCA); R v Rowan (2003) 85 SASR 364; 141 A Crim R 338 (CCA). With or in the presence of: R v Coffey (2003) 6 VR 543; 143 A Crim R 235 543 (VR) (CA). Other cases Rixon v Thompson (2008) 185 A Crim R 517 (Vic, Harper J). Hyde v Mason [2005] 2 Qd R 159 (CA).

[4.5730] The cure: amendment A duplicitous charge can be cured by amendment to remove the duplicity. In Edwards v Jones [1947] KB 659; [1947] 1 All ER 830 Lord Goddard said (at 661–662; 831–832): If magistrates find an information preferred which contains two offences and not one, they should take steps to see that it is amended. The way they should do it – the authorities bear this out – is by saying to the prosecutor “On which offence do you elect to proceed?” The prosecutor can then say: “I will elect to proceed upon offence A”. Thereupon the information should be amended by striking out the second offence charged, so that the defendant is only called upon to answer to the one offence. On the other hand, if the prosecutor says: “I decline to elect”, then the information is bad. No conviction could take place upon it, because any such conviction would be bad for duplicity.

Approved: Byrne v Baker [1964] VR 443 at 457 (FC). Ex parte Graham; Re Dowling (1968) 88 WN (NSW) 270 (Asprey J) at 282–283. In R v Orsos (1997) 95 A Crim R 457 (NSW CCA) Grove J said (at 460): It is to be remembered that the rule against double indictment is a matter of form and not of evidence. It is directed to removing the unfairness of multiple allegations within a single count and the rule does not affect any entitlement which a prosecutor may have otherwise to charge offences in separate counts.

[4.5910]

DURESS

617

See also Amendment at [1.4400]; Indictment at [9.1800]; Latent ambiguity at [12.100]; and Particulars at [16.900].

DURESS Definition ..................................................................................................................................... Legislation ................................................................................................................................... Threats to other than the accused .............................................................................................. When duress arises ..................................................................................................................... Reasonable belief ........................................................................................................................ Duress foreseen ........................................................................................................................... Aboriginal fear of punishment ................................................................................................... Evidential basis for the defence ................................................................................................. Objective test–judge’s direction ................................................................................................. Form of direction ........................................................................................................................

[4.5900] [4.5905] [4.5910] [4.5915] [4.5920] [4.5925] [4.5930] [4.5935] [4.5940] [4.5945]

[4.5900] Definition In R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 (CCA) Hunt J delivering the leading judgment said (at 541; 434): In duress, the relevant act is done only because the accused has lost his free choice to refrain from doing the act, in that he did the act because he feared that the consequences of the threat were greater than those flowing from the crime he commits. His act can be said to have been induced by the threat (made by a third person it should be noted, and not by the victim) only in the most general sense; there is no loss of self-control … Duress is a complete defence leading to an acquittal.

[4.5905] Legislation Cth: Criminal Code Act 1995 s 10.2; Qld: Criminal Code s 31(1)(d); WA: Criminal Code s 32; Tas: Criminal Code s 20; NT: Criminal Code ss 40 and 43BB; Vic: Crimes Act 1958 s 322O (may also be a murder defence); ACT: Criminal Code 2002 s 40; NZ: Crimes Act 1961 s 24; Can: Criminal Code s 17.

[4.5910] Threats to other than the accused In R v Hurley [1967] VR 526 (CCA) Smith J (in dissent on whether the evidence gave rise to duress) said (at 542): I consider that the defence cannot be confined to threats against the accused himself. It is true that the doctrine is often stated in a form which relates only to threats against the accused; but there is a great deal of authority for saying that the doctrine is not so confined. (authority cited)

Further (at 543): But once one goes beyond threats to the accused himself I can see no justification, either in logic or in convenience, for the laying down of a list of relationships or attachments which will define

618

ROSS ON CRIME

[4.5915]

the limits of the doctrine. Obviously the fact that the person threatened fell within such a list would be no safe indication of the degree of pressure imposed upon the accused by the threats. And I consider that the true view is that a threat made known to the accused to kill or do grievous bodily harm to any human being can be sufficient to found a defence of duress … (authority cited) Any limit considered necessary to prevent the defence from expanding to an unreasonable extent must be found, in my opinion, in the doctrine that the duress must be such as a person of ordinary firmness of character would be likely to yield to in the way that the accused did.

Approved: R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 at 537, 430 (CCA); R v Zaharias (2001) 122 A Crim R 586 at 588–589 [6] (Vic CA).

[4.5915] When duress arises In R v Hurley [1967] VR 526 (CCA) Smith J (in dissent on whether the evidence gave rise to duress) said (at 543): I consider that the following affirmative proposition may be stated. Where the accused has been required to do the act charged against him (i) under a threat that death or grievous bodily harm will be inflicted unlawfully upon a human being if the accused fails to do the act and (ii) the circumstances were such that a person of ordinary firmness would have been likely to yield to the threat in the way the accused did and (iii) the threat was present and continuing, imminent and impending (as previously described) and (iv) the accused reasonably apprehended that the threat would be carried out and (v) he was induced thereby to commit the crime charged and (vi) that crime was not murder, nor any other crime so heinous as to be excepted from the doctrine and (vii) the accused did not, by fault on his part when free from the duress, expose himself to its application and (viii) he had no means, with safety to himself, of preventing the execution of the threat, then the accused, in such circumstances at least, has a defence of duress.

This proposition has since been consistently applied: Nguyen v The Queen (2008) 181 A Crim R 72 at 80 [34] (NSW CCA); R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 (CCA); R v Palazoff (1986) 43 SASR 99; 23 A Crim R 86 (CCA); R v Brown (1986) 21 A Crim R 288 at 293, 305 (SA CCA); R v Lawrence (1980) 1 NSWLR 122; 32 ALR 72 at 141, 99 (CCA); R v Dawson [1978] VR 536 at 537 (CCA).

[4.5920] Reasonable belief The Commonwealth Criminal Code Act 1995 s 10.2(2) was interpreted in Morris v The Queen (2006) 201 FLR 325 (WA CA) in which McLure JA said (at 351 [135] – [139]): For the defence of duress to apply, the accused must believe each of the matters in pars(a), (b) and (c) of s 10.2(2). That is, the appellant must believe that: (a) a threat has been made that will be carried out unless an offence is committed; and (b) there is no reasonable way that the threat can be rendered ineffective; and (c) the conduct is a reasonable response to the threat. Further, the accused’s belief as to each matter must be reasonably held. At trial and in the appeal both parties accepted that the test of reasonableness was determined by reference to a person of the same age, gender and maturity as the appellant in the circumstances in which he found himself. This approach is consistent with the common law defence of duress as articulated by Hunt CJ in R v Abusafiah (1991) 24 NSWLR 531 at 544-546. However, it is inconsistent with the conclusion of the New South Wales Court of Appeal in Oblach v The Queen (2005) 195 FLR 212 as to the proper construction of s 10.2(2) of the Code. As I read

[4.5940]

DURESS

619

the judgments, the Court is unanimously of the opinion that an accused’s belief must be objectively reasonable having regard to the circumstances in which the offender found himself but without regard to any of the personal characteristics of the particular accused. In reaching this conclusion the New South Wales Court of Appeal placed great weight on the different terminology in the self defence provision in s 10.4(2) of the Code. The Oblach v The Queen (2005) 195 FLR 212 test is stricter than the objective hypothetical ordinary person test that applies in the law of provocation as stated by the High Court in Stingel v The Queen (1990) 171 CLR 312 at 327. The High Court concluded (at 329) that considerations of fairness and common sense dictated that, in at least some circumstances, the age (in the sense of immaturity) of an accused should be attributed to the ordinary person of the objective test but that qualification did not extend to gender (at 331). Further, leaving to one side broader contextual considerations, the words “reasonably believes” in Codes 10.2(2) prima facie connote what an accused himself might reasonably believe in all the circumstances in which he found himself, having regard to the personal characteristics of the particular accused: Viro v The Queen (1978) 141 CLR 88; 18 ALR 275 at 146 (CLR) per Mason J; Conlon (1993) 69 A Crim R 92 at 98-99 per Hunt CJ.

[4.5925] Duress foreseen In R v Z [2005] 2 AC 467; [2005] 2 WLR 709 (HL) the accused had voluntarily kept company with criminals whom he knew would force him into actions. Held: the defence of duress may not apply.

[4.5930] Aboriginal fear of punishment In R v Warren (1996) 88 A Crim R 78 (SA CCA) Doyle CJ, with whom the others agreed, said (at 81): In this Court it has been said that to constitute duress the threats of harm must have overborne the will of the accused and must have been such that a person of ordinary firmness of mind and will might have yielded to the threat in the same way. and it has also been accepted that the threat need not be of immediate death or Injury but may be a threat of future harm: see Brown (1986) 43 SASR 33; 21 A Crim R 288 and Palazoff (1986) 43 SASR 99; 23 A Crim R 86. For present purposes it suffices to say that it has never been suggested that the threat must be one lawfully made. Indeed, in the nature of things, duress is likely to arise from an unlawfully made threat to inflict harm. The appellants’ defence, therefore, did not depend upon them showing that Aboriginal customary law was recognised by Australian criminal law or operated alongside it. It was sufficient for them to raise the issue of whether they did what they did because their respective wills were overborne by the threat of the infliction upon them of serious harm by members of the Dieri people if they did not punish Mr Ah Chee.

[4.5935] Evidential basis for the defence In R v Smith [No 2] (1995) 64 SASR 1; 80 A Crim R 491 (CCA) Mullighan J said (at 35; 524): Furthermore, there was no evidential basis for the linchpin of the defence of duress. It is clear from the authorities that for the defence of duress to be available at the least, the will of the accused must be overborne by threats of death or serious bodily violence whether to himself or another. We were asked to accept that it was open to the jury to find that the situation in which Turner found himself was threatening enough in itself for his will to have been overborne. Although Turner did not offer any evidence in support of such a state of mind, we were asked to accept that it could be inferred from the state of fear of Roberts to which he testified. He said he was terrified and intimidated and that he was forced to do what he did. This is, of course, a shaky foundation for consideration of duress. Because one man is terrified does not establish the same state of mind on the part of someone else.

[4.5940] Objective test–judge’s direction In R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424 (CCA) Hunt J delivering the leading judgment said (at 542; 435).

620

ROSS ON CRIME

[4.5945]

The relevant direction in relation to the objective test should therefore be that the Crown must establish that there is no reasonable possibility that a person of ordinary firmness of mind and will would have yielded to the threat in the way the accused did. It was conceded before this Court that a direction in those terms would be unobjectionable.

[4.5945] Form of direction In R v Lanciana (1996) 84 A Crim R 268 (Vic CCA) Callaway JA delivering the leading judgment said (at 272): [I]t may be left to the discretion of a trial judge whether to direct in terms of the Crown proving beyond reasonable doubt that the accused did not act under duress, establishing that there is no reasonable possibility that the accused so acted or eliminating any reasonable possibility that he did. In speaking compendiously of “acting under duress” I intend in all three cases to refer to a comprehensive direction concerning the elements of that defence.

See also R v Zaharias (2001) 122 A Crim R 586 (Vic CA). Necessity at [14.500].

DYING DECLARATION Meaning ....................................................................................................................................... Dying declaration exception to the rule against hearsay .......................................................... Five conditions for admissibility ................................................................................................ The evidence must be reliable .................................................................................................... Further examples ......................................................................................................................... Care in application ......................................................................................................................

[4.6100] [4.6105] [4.6110] [4.6115] [4.6120] [4.6125]

[4.6100] Meaning A dying declaration is a spoken or written statement made by a person before death. The statement is made when the person has a settled and hopeless expectation of death. The statement must be relevant. The person would have been a competent witness before death. The declaration is admissible only in a homicide case.

[4.6105] Dying declaration exception to the rule against hearsay A dying declaration is an exception to the rule against hearsay. In R v Arnott (1992) 79 A Crim R 275 (Vic) Coldrey J ruled (at 275–276): The principles applicable to the admission into evidence of dying declarations are conveniently set out in Cross on Evidence (4th Aust ed, 1974), pars 33260 to 33310. At 890 the learned authors state: The oral or written declaration of a deceased person is admissible evidence of the cause of the death at the trial for his (or her) murder or manslaughter provided he (or she) was under a settled hopeless expectation of death when the statement was made and provided he (or she) would have been a competent witness if called to give evidence at that time. The policy considerations permitting this departure from the general rule against hearsay have been said to be, first, that any sanction of the oath in the case of a living witness would be balanced by the final conscience of a dying person who would not wish to die with a lie upon their lips and, secondly, that it is important in the interests of justice, that a person implicated in a killing should be obliged to meet in court the dying accusation of the victim.

The evidence was admitted.

[4.6125]

DYING DECLARATION

621

See also R v Hope [1909] VLR 149 (FC). The High Court refused special leave to appeal: Hope v The King (1909) 9 CLR 257.

[4.6110] Five conditions for admissibility In R v Golightly (1997) 17 WAR 401 (Owen J) the victim was shot at night and shortly after exclaimed that the accused shot him. The victim died within minutes of the shot. Owen J applied the civil standard and set five conditions for admissibility of the dying declaration (at 408–409): As well as the normal criteria on which any evidentiary question turns, there are five conditions that must he satisfied before a statement can be admitted into evidence as a dying declaration. First, the maker must be dead. Secondly, the trial must be for the declarant’s murder or manslaughter. Thirdly, the statement must relate to the cause of the declarant’s death. Fourthly, it must be established that the declarant would have been a competent witness. Finally, the declarant must have been under a settled hopeless expectation of death.

Owen J excluded the statement as not complying with the last condition.

[4.6115] The evidence must be reliable In Furbert v The Queen [2000] 1 WLR 1716 (PC) the dying victim told his mother who had shot him, naming one of the accused. It was accepted that the victim could not have had a proper view of the assailant. The Board agreed with the Court of Appeal that the evidence should not have been admitted, but said there had been no miscarriage of justice.

[4.6120] Further examples In Nembhard v The Queen [1981] 1 WLR 1515; [1982] 1 All ER 183; 74 Cr App R 144 (PC) the accused was convicted of the murder of a policeman by shooting. The victim’s wife heard the shots and ran to him. The victim told her he was dying and the accused had shot him. The wife gave that evidence. The Board advised that the evidence was properly admitted. In R v Polkinghorne (1999) 108 A Crim R 189 (NSW, Levine J) the mother of the dying girl asked, “What’s the matter, mate?” The victim replied, “Mum, Vin stabbed me.” Levine J applied sections of the Evidence Act 1995 (NSW) and ruled the evidence admissible. Note that in R v Bedingfield (1879) 14 Cox CC 341 a woman who had been in a house with the accused rushed out with her throat cut, saying, “See what Harry has done.” The evidence of her remark was excluded as hearsay. Recent authority says the case would be decided differently today: R v Andrews [1987] AC 281; [1987] 1 All ER 513; (1987) 84 Cr App R 382 (HL) at 300 per Lord Ackner; Papakosmas v The Queen (1999) 196 CLR 297 at 307 per Gleeson CJ and Hayne J.

[4.6125] Care in application The dying declaration exception came in for some serious concerns in Mills v The Queen [1995] 1 WLR 511; [1995] 3 All ER 865 at 520-522; [1995] 3 All ER 865 at 875–877 (PC). See also Hearsay at [8.1300]; and Res gestae at [18.3000].

E EDWARDS DIRECTION Origin ............................................................................................................................................ The case itself ............................................................................................................................... Broadhurst direction ...................................................................................................................... Possible presence of consciousness of guilt ................................................................................ General rule on directions ............................................................................................................ Directions on only part of consciousness of guilt ....................................................................... Further jury directions .................................................................................................................. Lie as corroboration ...................................................................................................................... Effect of failure to give an Edwards direction ............................................................................

[5.100] [5.105] [5.110] [5.115] [5.120] [5.125] [5.130] [5.135] [5.140]

[5.100] Origin The expression comes from Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600. The concern arose from the prosecution’s reliance on the lies told by an accused. Charles JA described the need for an Edwards direction in R v Renzella [1997] 2 VR 88; 88 A Crim R 65. His Honour said (at 92; 70): An Edwards direction is usually essential if the Crown invites the jury to treat lies by the accused as part of a circumstantial case, as corroboration, as confirmatory or supportive material or simply as evincing a consciousness of guilt.

[5.105] The case itself Mr Edwards and other prisoners were taken by van to another correction centre. Mr Edwards was convicted of having procured another prisoner to commit an indecent act on him. The other prisoner was being bashed, and Mr Edwards offered to protect him in return for oral sex. Only the two of them gave evidence. There was no corroboration. When Mr Edwards gave evidence he seemed to have feeble recall of non-essential matters and sometimes seemed to contradict himself. A lie was said to be corroboration.

[5.110] Broadhurst direction In Edwards, Brennan J examined (at 205; 608-609; 358) the Broadhurst direction: Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111 (PC). Lord Devlin, giving the advice of the Board, said (at 457; 119–120): It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains on the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can properly take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.

[5.115] Possible presence of consciousness of guilt In Edwards, Deane, Dawson and Gaudron JJ set forth the ways in which a lie can constitute an admission against interest. They said (at 210–211; 613; 362):

624

ROSS ON CRIME

[5.120]

A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to provide guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth) (1981) 73 Cr App R 159; [1981] QB 720, because of “a realization of guilt and a fear of the truth”.

Subsequent cases have developed the need for an Edwards direction on a post-offence conduct which a jury could use to infer consciousness of guilt.

[5.120] General rule on directions In R v Cuenco (2007) 16 VR 118 (CA) Nettle JA, with whom the other judges agreed, said (at 125 [15]): The general rule is that an Edwards direction should only be given if the prosecution contends that a lie or other post-offence conduct is evidence of consciousness of guilt, in the sense that it was told or engaged in because the accused knew that the truth or failure to act would implicate him in the commission of the offence, and if in fact the lie or other conduct is capable of bearing that character. Ordinarily, therefore, if the prosecution does not so contend, it is sufficient to guard against the possibility of the jury mistaking the effect of any evidence of lies or other post-offence conduct as evidence of consciousness of guilt to warn the jury along the lines which were propounded in Zoneff.

[5.125] Directions on only part of consciousness of guilt In R v Chang (2003) 7 VR 236; 140 A Crim R 573 (CA) the accused was convicted of murder. The post-offence conduct included flight, assault on police, laying a complex false trail, concealment of the body and many lies. The trial judge allowed the prosecutor to rely only on one lie as showing consciousness of guilt and gave a full Edwards direction about that lie. The appeal was allowed. Charles JA giving the leading judgment said (at 254; 591 [48]): The conduct here, I have concluded, would inevitably have been used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the relevant time. Since it was capable of being misused by the jury, the interests of a fair trial required a careful Edwards direction from the trial judge as to all the conduct and lies originally sought to be relied on by the prosecutor in this way.

Other cases R v Nguyen (2001) 118 A Crim R 479 (Vic CA) per Winneke P at 489; R v Curran (2008) 100 SASR 71 (CCA); Shepherd v The Queen [2011] NSWCCA 245 at [69]–[74].

[5.130] Further jury directions Deane, Dawson and Gaudron JJ went on to say (at 211; 613; 262–263): Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a

[5.300]

ELECTRONIC COMMUNICATION

625

lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.

[5.135] Lie as corroboration Deane, Dawson and Gaudron JJ went on to say (at 211; 613, 363): If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.

[5.140] Effect of failure to give an Edwards direction The failure to give an Edwards direction will not necessarily result in a miscarriage of justice where the prosecution does not contend that the lie is evidence of guilt: Dhanhoa v The Queen (2003) 217 CLR 1; 139 A Crim R 41; 199 ALR 547; [2003] HCA 40 per Gleeson CJ and Hayne J at [34]. But in R v Ali (2002) 135 A Crim R 426 (Vic CA) the prosecution had relied on lies and conduct after the offence to show consciousness of guilt. No Edwards direction was sought and none given. Held: appeal allowed, new trial ordered. See also R v Mitchell (2007) 174 A Crim R 52 (Qld CA); Howson v The Queen (2007) 210 FLR 288; 170 A Crim R 401 (WA CA) at [86] – [94]; R v Shiers (2003) 7 VR 174 (CA); R v Ibrahim (2003) 7 VR 141 (CA); R v Ugochukwu (2003) 138 A Crim R 544 (NSW CCA); R v Camilleri (2001) 119 A Crim R 106 (Vic CA); R v Le Broc (2000) 2 VR 43; 114 A Crim R 546 (CA). Xypolitos v The Queen [2014] VSCA 339. See also Consciousness of guilt at [3.5900]; Corroboration at [3.7900]; Lies at [12.1500]; and Zoneff direction at [26.100].

ELECTRONIC COMMUNICATION Meaning ......................................................................................................................................... [5.300] Stalking .......................................................................................................................................... [5.305] Other references ............................................................................................................................ [5.310]

[5.300] Meaning Electronic communication includes using email, SMS, the internet or other means of contact.

626

ROSS ON CRIME

[5.305]

Electronic Transactions Acts in the different jurisdictions provide: “electronic communication” means – (a) a communication of information in the form of data, text or images by means of guided or unguided electromagnetic energy, or both; or (b) a communication of information in the form of sound by means of guided or unguided electromagnetic energy, or both, where the sound is processed at its destination by an automated voice recognition system.

This definition is in: Cth: Electronic Transactions Act 1999 s 5; Qld: Electronic Transactions (Queensland) Act 2001 Dictionary; WA: Electronic Transactions Act 2003 s 5; Tas: Electronic Transactions Act 2000 s 3; NT: Electronic Transactions (Northern Territory) Act 2000 s 5; NSW: Electronic Transactions Act 2000 s 5; Vic: Electronic Transactions (Victoria) Act 2000 s 3; SA: Electronic Transactions Act 2000 s 5; ACT: Electronic Transactions Act 2001 Dictionary.

[5.305] Stalking Stalking can be by electronic communication. An example would be a number of emails. Such a mode of commission of the offence is in some legislation. Qld: Criminal Code s 359B(c)(2); Tas: Criminal Code s 192(1)(g); NT: Criminal Code s 189(1)(b); SA: Criminal Law Consolidation Act 1935 s 19AA(1)(a)(iva) and (ivb); ACT: Crimes Act 1900 s 35(2)(f)–(h).

[5.310] Other references See also Computers at [3.4700]; and Stalking at [19.5500].

EMBEZZLEMENT The offence .................................................................................................................................... Legislation ..................................................................................................................................... Alternative ..................................................................................................................................... Sentencing .....................................................................................................................................

[5.500] [5.505] [5.510] [5.515]

[5.500] The offence A clerk or servant will often receive property destined for his employer. If he wrongly takes it for his own before it comes into his employer’s possession he commits the offence of embezzlement. If he takes it from his employer’s possession he commits the offence of larceny:

[5.700]

EMBRACERY

627

R v Davenport [1954] 1 WLR 569; [1954] 1 All ER 602; 38 Cr App R 37; R v Harper (1984) 14 A Crim R 414 (SA Cox J); Edwards v United States of America [2002] 3 NZLR 222 (CA).

[5.505] Legislation Cth: Income Tax Assessment Act 1936; NSW: Crimes Act 1900 ss 155, 157, 160, 163.

[5.510] Alternative New South Wales Crimes Act 1900 s 120 provides embezzlement as an alternative to other property offences.

[5.515] Sentencing In R v Pont (2000) 121 A Crim R 302 (NSW CCA) Greg James J said (at 309–310 [45]): However, an examination of the sentencing statistics in respect of the crime of larceny by a servant for the past 10 years, indicates that imprisonment is imposed in less than one-third of cases on individuals sentenced for one offence. Similarly, for the offence of embezzlement by clerks or servants. There does not appear to be discrimination between different categories of white collar crime.

See also General deficiency at [7.100]; Property offences at [2.630]; and White collar crime at [23.300].

EMBRACERY Definition ....................................................................................................................................... [5.700] The common law offence ............................................................................................................. [5.705] Threatening etc juries: legislation ................................................................................................ [5.710]

[5.700] Definition Embracery is a common law crime concerning interfering with a jury: 1 Hawkins Pleas of the Crown Ch 27 tit 8. Embracery “consists in any attempt to corrupt or influence or instruct a jury, or any attempt to incline them to be more favourable to the one side than to the other, by money, promises, letters, threats or persuasions, whether the jurors on whom such an attempt is made give any verdict or not, or whether the verdict given be true or false”. In Re Dunn [1906] VLR 493, two women had invited a juror for a drink and invited him to visit after a forthcoming trial. The trial was in General Sessions and the women were brought to the Supreme Court before Cussen J. His Honour examined the authorities on contempt and said (at 502): [H]aving regard to the very wide definition of embracery as including an attempt to corrupt or influence a jury – see Oswald (2nd ed), p 52; Stroud’s Judicial Dictionary, tit embracery; Archbold’s Criminal Pleadings (23rd ed), p 1077 – and to the provisions of sec 86 of the Juries Act 1890 relating to attempts, it is possible that a prosecution may be brought specifically for that offence.

These days the conduct envisaged by the offence is more likely to be dealt with as contempt of court or attempt to pervert the course of justice: R v Owen [1976] 1 WLR 840; [1976] 3 All ER 239; (1976) 63 Cr App R 199.

628

ROSS ON CRIME

[5.705]

[5.705] The common law offence Embracery was abolished as a common law offence in New South Wales by s 341 of the Crimes Act 1900 and in South Australia by Sch 11 of the Criminal Law Consolidation Act 1935. In Victoria embracery has not been abolished as a common law offence: see Crimes Act 1958 s 322A. In R v Machin [1980] 1 WLR 764; [1980] 3 All ER 166; 71 Cr App R 166 (CA) Everleigh LJ, giving the judgment of the court, said (at 766; 153; 170): The law is concerned to forbid unlawful conduct which may result in a miscarriage of justice. There are specific common law offences such as embracery and personating a juryman.

[5.710] Threatening etc juries: legislation Legislation has replaced the common law offence of embracery except in Victoria. Qld: Criminal Code s 122; WA: Criminal Code s 123; Tas: Criminal Code s 93; NT: Criminal Code s 95; NSW: Crimes Act 1900 ss 321, 322; Vic: Common law embracery; SA: Criminal Law Consolidation Act 1935 s 245; ACT: Juries Act 1967 s 43 (personation of jurors). See also Cth: Evidence Act 1995 s 129(5)(a)(ii) (embracery); Tas: Evidence Act 2001 s 129(5)(a)(ii) (personating a juror); NSW: Evidence Act 1995 s 129(5)(a)(ii) (personating a juror). Jury at [10.2100].

EMDR Definition ....................................................................................................................................... [5.900]

[5.900] Definition EMDR stands for Eye Movement Desensitisation and Reprocessing. In R v Jamal (1993) 69 A Crim R 544 (NSWSC) Mathews J described it as follows when ruling the evidence in after a voir dire (at 548): EMDR was serendipitously discovered by a Californian psychologist, Dr Francine Shapiro in 1987. Dr Shapiro happened to be moving her eyes rapidly from side to side whilst she was thinking of a traumatic event in her past. Afterwards she unaccountably felt better. Accordingly she embarked on a series of clinical tests which confirmed that the process of moving one’s eyes from side to side whilst focusing on a traumatic event, had the effect of isolating the memory of the event from the distressing emotions which had previously accompanied it. In a typical session of EMDR the therapist will move a finger or an object horizontally in front of the patient’s face, so that the patient’s eyes move rapidly from side to side. At the same time the

[5.900]

EMDR

629

patient is asked to focus on a particularly distressing emotion or event in his or her past. A standard session of EMDR will include many of these “rounds” of eye movements, interspersed by discussion between the therapist and the patient as to how the patient is coping with it. Often the experience is a highly cathartic one with the patient reliving the traumatic event, sometimes in a very dramatic way.

The ruling was successfully appealed. In R v Tillott (1995) 38 NSWLR 1; 83 A Crim R 151 (CCA) Abadee J, with whom the others agreed, said (at 40–42; 190): 4. EMDR, generally considered, presents the same or significantly the same dangers or inherent dangers or risks in relation to possible unreliability of memory as hypnosis presents, such that the same guidelines or procedural safeguards as apply in the case of hypnosis should apply to EMDR. 5. Once it be found that EMDR has been applied to a prospective witness, then, because it presents the same or significantly the same dangers or inherent dangers or dangers of like kind and nature as hypnosis presents, the onus lies on the proponent of the evidence of the witness the subject of EMDR (whether Crown or accused) to prove that it is safe to admit the evidence. This onus does not lie on an accused who has been subject to the EMDR procedure. His/her evidence is per se admissible. 6. Once the witness has been shown to have been subject to the EMDR procedure, the guidelines or procedural safeguards of the type considered in McFelin [1985] 2 NZLR 750 (adopting the Californian Evidence Code) and Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 should be applied and adopted as far as reasonably possible. 7. The general guidelines and procedural safeguards should be applied before any particular consideration is given to the reliability of the evidence of the witness the subject of the EMDR process. The two-issues-approach adopted by her Honour (at 550) (1: Did the EMDR produce a distorted memory? or 2: did the EMDR reinforce an already distorted memory?) is not the correct approach at the initial stage of the inquiry when a witness has been subjected to the EMDR procedure. The initial question and correct approach is that dealt with in McFelin [1985] 2 NZLR 750 and Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1: see also the Californian Evidence Code, Browning and Hurd’s case. In my opinion her Honour did not apply the correct or proper test for admissibility. 8. Had the initial correct question been posed, and properly considered and answered, the evidence of Mr Thompson ought not to have been admitted. The whole of his evidence was inadmissible and should have been rejected. 9. Further or alternatively if the evidence of Mr Thompson was admissible, then as a matter of discretion the whole of it ought to have been excluded on the ground of unfairness. 10. The whole of Mr Thompson’s evidence was not admissible and would not be admissible at a new trial.

The effect of the judgment was that the whole procedure should be video-recorded. If it is not video-recorded a trial judge may reject the evidence. In R v KG (2001) 54 NSWLR 198; 129 A Crim R 42 (NSW CCA) Priestley JA with whom the others agreed said (at 205; 48 [29]): The result is, in my opinion, that Tillott (1995) 38 NSWLR 1; 83 A Crim R 151 had the consequence that a trial judge might reject the evidence of a witness who had undergone EMDR which was not video-recorded, because of that fact alone, but would not, because of the lack of video-recording, be bound to exclude it.

Note that Underwood J has ruled that the hypnosis (and EMDR) propositions set out in R v Tillott (1995) 38 NSWLR 1; 83 A Crim R 151 do not apply in Tasmania: R v Sparkes (1996) 6 Tas R 178; 88 A Crim R 194 at 202–203 (Tas R). In R v Cooper (1995) 14 WAR 416 Kennedy J examined the authorities and on the basis of committal material ruled that a voir dire be held. In R v T (1998) 103 A Crim R 345 (WA, Parker J) all the relevant authorities were examined and the ruling made that it would be safe to admit the evidence.

630

ROSS ON CRIME

[5.1100]

In R v KG (2001) 54 NSWLR 198; 129 A Crim R 42 (CCA) Tillott was examined on this DPP appeal against a directed acquittal. There is no rule that an EMDR session not videoed must have consequent evidence rejected. A trial judge was entitled to reject such evidence, but was not bound to.

ENTRAPMENT Meanings ..................................................................................................................................... The unwary innocent and the unwary criminal ......................................................................... No defence .................................................................................................................................. Discretion to exclude such evidence .......................................................................................... Effect on sentence ....................................................................................................................... Other references ..........................................................................................................................

[5.1100] [5.1105] [5.1110] [5.1115] [5.1120] [5.1125]

[5.1100] Meanings Entrapment has at least two meanings: 1. A law enforcement agent luring a person into committing a crime that was otherwise not imagined by the person; 2. A law enforcement agent providing an opportunity for a person to commit a crime that the person wanted to commit.

[5.1105] The unwary innocent and the unwary criminal In R v Sloane (1990) 49 A Crim R 270 (NSW CCA) Gleeson CJ said (at 273): To use the language of an American case on the subject, “a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal”: Sherman v United States 356 US 369 (1958).

In R v Bijkerk (2000) 111 A Crim R 443 (NSW CCA) Grove J said of the above remarks (at 446 [13]): The quotation is a precaution in pithy language rather than a formulation of a precise legal test.

[5.1110] No defence There is no defence of entrapment in Australia: Harvey v Police (2006) 95 SASR 357; 163 A Crim R 336; 45 MVR 546 (Debelle J); Robinson v Zhang (2005) 158 A Crim R 575 (NSW CA); R v Hsing (1991) 25 NSWLR 685; 56 A Crim R 88 (CCA); R v Venn-Brown [1991] 1 Qd R 458 (Ryan J); R v Papoulias [1988] VR 858; (1987) 31 A Crim R 322 (CCA); R v Vuckov and Romeo (1986) 40 SASR 498; 22 A Crim R 10 (Cox J). In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307 Mason CJ, Deane and Dawson JJ said (at 40; 55; 322): Once it is concluded that our law knows no substantive defence of entrapment, it seems to us to follow that the otherwise regular institution of proceedings against a person who is guilty of a criminal offence for the genuine purpose of obtaining conviction and punishment is not an abuse of process by reason merely of the circumstance that the commission of the offence was procured by illegal conduct on the part of the police or any other person. To the contrary, to institute and maintain proceedings in a competent criminal court for that purpose is to use the process of that court for the very purpose for which it was established.

[5.1120]

ENTRAPMENT

631

Other cases R v Bijkerk (2000) 111 A Crim R 443 (NSW CCA); R v Osborne (2003) 11 Tas R 295 (Slicer J); R v Sang [1980] AC 402; [1979] 2 All ER 1222; (1979) 69 Cr App R 282 (HL).

[5.1115] Discretion to exclude such evidence The court may exclude evidence produced by entrapment or order a permanent stay of proceedings. In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307 Mason CJ, Deane and Dawson JJ said (at 40; 55; 322): If the commission of the crime was procured by illegal conduct on the part of another person, one would prima facie expect that criminal proceedings would also be instituted against that person. If that other person is a police or other government officer, a failure to institute such criminal proceedings might be a relevant consideration favouring the exercise of the discretion to exclude evidence of the illegally procured crime or of an element thereof. Such a failure would not, however, of itself convert the use of a criminal court’s process for the trial and conviction of the person who committed the charged offence into an abuse of that process. Nonetheless, the appropriate ultimate relief in a case where the commission of the charged offence has been procured by illegal police conduct may well be a permanent stay of further proceedings.

In R v Gudgeon (1995) 128 FLR 221; 133 ALR 379; 83 A Crim R 228 (Qld CA) the accused was charged with conspiracy to import cannabis. In fact police facilitated the entry of a container of the drug. It was held that the evidence ought to have been excluded, but the case was overwhelming. Appeal dismissed. It mattered not that the accused was unrepresented. Other cases R v Swift (1999) 105 A Crim R 279 (Qld CA); Rice v Tricouris (2000) 110 A Crim R 86 (Vic, Beach J); R v Looseley [2001] 1 WLR 2060; [2001] 4 All ER 897; [2002] 1 Cr App R 360 (HL). Uniform Evidence Acts s 138(1) bear on the admission of such evidence where police have acted unlawfully. In R v Osborne (2003) 11 Tas R 295 (Slicer J) police bought drugs from the accused. Slicer J admitted the evidence and made a detailed examination of the prosecution’s role, and held that it was for the accused to show impropriety or breach of law.

[5.1120] Effect on sentence In R v Campanella (2004) 90 SASR 1 (CCA) Mullighan J, with whom the others agreed, said (at 9 [66] – [67]): It is well established that a sentence may be significantly reduced in circumstances where the offence would not have been committed but for the activities of the agent provocateur: see also Jurkovic v The Queen (1981) 6 A Crim R 215; R v C (1998) 72 SASR 391. Although the offender in R v Romeo (1987) 45 SASR 212 could not be so described, his sentence was reduced because of “faint hallmarks of entrapment and incitement” (at 224). White J expressed much the same view in R v Lainas (1989) 50 SASR 461 at 464. There was a substantial review of relevant authorities in R v Taouk (1992) 65 A Crim R 387 at 396 by Badgery-Parker J. It may be seen from aspects of this review that it is well established that, in cases of incitement or encouragement by police to commit a crime which would not otherwise have been committed by the offender, the sentence is significantly reduced for that reason alone.

632

ROSS ON CRIME

[5.1125]

In R v Mandica (1980) 24 SASR 394; 4 A Crim R 34 (CCA), it was pointed out that where the police have reliable information that a person is engaged in criminal activity, a police trap is a legitimate device for obtaining necessary evidence. The court said (at 404; 43): Any background information which might justify the setting of the trap will generally not be available to a sentencing court. The court must do the best it can with the facts proved before it by admissible evidence. In deciding whether to extend leniency by reason of entrapment, the sentencing judge should take a common-sense view of the evidence for the purpose of deciding whether there is a reasonable possibility that the convicted person would not have committed the offence but for the encouragement involved in the setting of the trap.

In R v Coster (1978) 1 NSWLR 515; 21 ALR 699; 34 FLR 71 (CCA) the court distinguished between a trap and an activity by agents provocateurs. On the facts there was no entrapment and that aspect was not taken into account on sentence. In R v Jurkovic (1981) 6 A Crim R 215 (FCA) Fox J delivering the leading judgment referred to the fact the accused had been apprehended only after the police arranged for an order to be placed. The charge was possession of heroin for the purpose of supply. I believe that it is also a matter of mitigation that the particular crime charged occurred only because the police asked that the order be placed. The situation is different from one in which the police, by agents provocateurs or otherwise, break into an on-going supply system. The police and other authorities are not in my view to be discouraged in the least from following either course, but when it comes to sentencing the mitigating effects can be different. (at 224)

In R v N (1999) 106 A Crim R 493 (NSW CCA) Spigelman CJ said (at 504): The principle that I would apply in this case is as set out in the judgment of Badgery-Parker J in Taouk (1993) 65 A Crim R 387 at 404: However, when it comes to sentence, the question is whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime] and whether, in all the circumstances of the case, the involvement of the police and the commission of the crime was such as to diminish his culpability.

[5.1125] Other references See also Agent Provocateur at [1.3400]; Abuse of process (Unlawful or illegal police conduct) at [1.1030]; and Police at [16.2300].

ERROR Definition ..................................................................................................................................... [5.1300] Venire de novo ............................................................................................................................ [5.1305] Writing ......................................................................................................................................... [5.1310]

[5.1300] Definition A writ of error lay for obvious and substantial mistakes appearing on the face of the record in a criminal trial. In Fleming v The Queen (1998) 197 CLR 250; 103 A Crim R 121; 158 ALR 379 the High Court said in a joint judgment (at 258; 384–385; 126 [17]): Marshall CJ defined a writ of error as: [A] commission by which the judges of one court are authorised to examine a record upon which a judgment was given in another court, and on such examination, to affirm or reverse the same according to law [Cohens v Virginia 6 Wheat 264 at 409 (1821) [19 US 120 at 183]]. The writ of error thus is to be seen as an exercise of original jurisdiction by which one court supervised another with respect to questions of law. Story [Commentaries on the Constitution of the United States (1st ed, 1833), vol 3, ¶1756] distinguished as follows between a writ of error and an appeal:

[5.1500]

ESCAPE

633

An appeal is a process of civil law origin, and removes a cause, entirely subjecting the fact, as well as the law, to a review and a re-trial. A writ of error is a process of common law origin; and it removes nothing for re-examination, but the law. The former mode is usually adopted in cases of equity and admiralty jurisdiction; the latter, in suits at common law tried by a jury. In respect of a jury trial or a trial by judge sitting alone in a witness action, the right of an “appeal” is not a common law right and must depend on a grant by legislation.

See also Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 at [8] – [10].

[5.1305] Venire de novo One of the relics of the writ of error is venire de novo. That was a writ issued by the King’s Bench on a writ of error and it vacated the verdict and directed the sheriff to summon new jurors. (The Latin phrase venire de novo means to come anew.) Cases R v Cockrell [2005] 2 Qd R 448 (CA) at [28] – [31]; R v Tran (2002) 167 FLR 345; 130 A Crim R 385 (ACT CCA) at [52] – [54]; R v Talia [1996] 1 VR 462; (1995) 82 A Crim R 373 at 478, 390 (CCA); R v Wilson & Grimwade (1995) 1 VR 163; 73 A Crim R 190 at 182, 211–212 (CCA); R v Rose [1982] AC 822; [1982] 2 All ER 731; (1982) 75 Cr App R 322 (HL); Crane v DPP [1921] 2 AC 299; [1921] All ER Rep 19; (1921) 15 Cr App R 183 (HL).

[5.1310] Writing RB Cooke, “Venire de Novo” (1955) 71 LQR 100-130.

ESCAPE Elements ...................................................................................................................................... Legislation ................................................................................................................................... In custody .................................................................................................................................... Being removed from one gaol to another .................................................................................. Failure to return from temporary release ................................................................................... Intent ............................................................................................................................................ Necessity ..................................................................................................................................... Duress .......................................................................................................................................... Sentencing ................................................................................................................................... Sentence ...................................................................................................................................... Death or injury of victim trying to escape ................................................................................

[5.1500] [5.1505] [5.1510] [5.1515] [5.1520] [5.1525] [5.1530] [5.1535] [5.1540] [5.1545] [5.1550]

[5.1500] Elements In R v Dhillon [2006] 1 WLR 1535; [2006] 1 Cr App R 237 (CCA) the court examined a number of authorities. David Steel J, giving the judgment of the court, said (at 1539; 242 [21]): In our judgment, these authorities demonstrate that the prosecution must in a case concerning escape prove four things: (i) that the defendant was in custody; (ii) that the defendant knew that he was in custody (or at least was reckless as to whether he was or not);

634

ROSS ON CRIME

[5.1505]

(iii) that the custody was lawful; and (iv) that the defendant intentionally escaped from that lawful custody.

[5.1505] Legislation Cth: Crimes Act 1914 s 47; Qld: Criminal Code ss 141–143; WA: Criminal Code ss 145–148; Tas: Criminal Code ss 106–108; NT: Criminal Code ss 111–114; NSW: Prisons Act 1952 s 34; Crimes Act 1900 s 310D; Vic: Crimes Act 1958 s 479C; Summary Offences Act 1966 s 49E; SA: Criminal Law Consolidation Act 1935 s 254; ACT: Crimes Act 1900 s 160; NZ: Crimes Act 1961 s 120.

[5.1510] In custody One of the elements is that the accused was in lawful custody. See Custody at [3.11000]. In Michaels v The Queen (1995) 184 CLR 117; 130 ALR 581; 80 A Crim R 542 (HC) Brennan, Deane, Toohey and McHugh JJ said (at 122; 583; 544): The appellant could not be convicted of escaping from lawful custody unless he was in custody and that custody was lawful at the time of his escape. That much is obvious.

A detention which is unlawful may become lawful: Michaels v The Queen (1995) 184 CLR 117; 130 ALR 581; 80 A Crim R 542. However there is no escape by removing oneself from unlawful custody.

[5.1515] Being removed from one gaol to another R v Templeton [1956] VLR 709 (CCA) was referred to in Day v The Queen (1984) 153 CLR 475; 51 ALR 353 at 478–479, 355: [T]he court stated the position as it then saw it in these words (at [1956] VLR 709 at 713): But subject to the exceptions provided for in the Habeas Corpus Act and in subsequent statutes the general rule still operates, so that the removal of a prisoner from one gaol to another is unlawful unless the case falls within one of the exceptions. After acknowledging the availability of the presumption of regularity to assist a jury in coming to a conclusion in favour of the lawfulness of the applicant’s custody in Ballarat Gaol, their Honours continued: But they were not bound to find that such removal [from Pentridge] and detention were lawful. And in view of the Crown’s failure to prove what may be called a documentary chain of title, or other specific facts, showing that the removal from Pentridge to the Ballarat Gaol fell within one of the exceptions to the prohibition against removal which is contained in the Habeas Corpus Act they might well have felt doubtful on the point. There was therefore a real issue of fact to be determined by the jury as to whether the removal to the Ballarat Gaol and the subsequent detention there were lawful.

In Day v The Queen (1984) 153 CLR 475; 51 ALR 353 sufficient proof of lawful custody of a prisoner transferred from one gaol to another was in the tender of a “Calendar or List of Prisoners”. The decision in Day v The Queen (1983) 9 A Crim R 445 (WA CCA) was affirmed.

[5.1545]

ESCAPE

635

Once sentenced, a prisoner is in custody. The lawfulness of that custody will not depend on where he is held: Powch v The Queen (1987) 163 CLR 496; 75 ALR 13.

[5.1520] Failure to return from temporary release Failure to return from temporary release may not be escape. A conviction on these facts was set aside in R v Montgomery [2008] 1 WLR 637; [2008] 2 All ER 924 (CA). Appeal allowed.

[5.1525] Intent In R v Scott [1967] VR 276 (CCA) Smith J said (at 284): [T]he element of going at large out of an actual custody, which is essential to constitute an escape, must be a conscious act done by the prisoner with the intention of liberating himself from that custody. This conclusion is supported by the general principles of common law; for it is a “cardinal rule” that “the intent and the act must both concur to constitute the crime”: see R v Reynhoudt (1962) 107 CLR 381 at 386; [1962] ALR 483 at 484; and compare Hargrave v R (1906) 4 CLR 232 at 237; 13 ALR 206 at 207.

If the original withdrawal from custody were unintentional or unconscious, that is a defence. The trial judge did not leave the defence to the jury. The appeal was allowed.

[5.1530] Necessity Necessity is a defence to escape: R v Loughnan [1981] VR 443 (CCA).

[5.1535] Duress R v Dawson [1978] VR 536 (CCA). See also Duress at [4.5900].

[5.1540] Sentencing In R v Brady (2005) 92 SASR 135; 155 A Crim R 230 (CCA) the appellants were kept in solitary confinement for two months after their attempt to escape. Duggan J, with whom the others agreed, said (at [46]): In some limited circumstances the sentencing court may make allowance for the fact that a prisoner will face a more onerous time in prison than other prisoners. The strict confinement of informers provides an example. A number of relevant authorities are discussed in R v Liddy (No 2) (2002) 84 SASR 231; 135 A Crim R 468. However, the detention of the appellants in solitary confinement in the present case was an administrative action which resulted from their own conduct. In my view this was not a matter which the sentencing judge was required to take into account: cf R v Liddy (No 2) (2002) 84 SASR 231; 135 A Crim R 468 (at [119]).

[5.1545] Sentence In New South Wales and South Australia the ordinary level of imprisonment for escape is said to be two years. In R v Smart (1990) 47 A Crim R 293 (NSW CCA) the prisoner had been bashed and sexually assaulted, and had complained of it. The sentence for escape was reduced from three years to one year. In R v Shepperbottom (2001) 121 A Crim R 69 (SA CCA) the usual punishment was said to be two years (at 71 [15]). On this prosecution appeal the sentence was increased to

636

ROSS ON CRIME

[5.1550]

12 months imprisonment and the non-parole period extended by six months. See also R v Hearn (2001) 80 SASR 175; 125 A Crim R 153 (CCA). In Schillabeer v Hussain (2005) 220 ALR 239 (SA, Gray J) Mr Hussain had escaped from a detention centre. The magistrate had discharged him without conviction upon his entering a $100 12 month good behaviour bond. The prosecution appealed against sentence. Appeal dismissed. But in R v Hearn (2001) 80 SASR 175; 125 A Crim R 153 (CCA) the accused had escaped and committed offences. He had been due for parole. Sentences: escape, nine months; offences during escape, five years; non-parole period of three years and nine months. If a prisoner is already serving a sentence of life imprisonment a sentence for escape must be concurrent: R v Farlow (1980) 2 NSWLR 166; 2 A Crim R 266 (CCA); R v Jolly [1982] VR 46 (CCA); R v Taikmaskis (1986) 19 A Crim R 383 at 384 (Vic CCA). See also Tas: Sentencing Act 1997 s 15(2). Life where parole date: R v Keating (1993) 65 A Crim R 315 (WA CCA). If there is escape from imprisonment on a Commonwealth charge, the offence is to be charged under the Crimes Act 1914 (Cth): R v Gregory [1983] 3 NSWLR 172; (1983) 10 A Crim R 137 (CCA). The correlation between the different provisions in Queensland is set forth in R v Pepper and Cornwall (1999) 104 A Crim R 135 (Qld CA).

[5.1550] Death or injury of victim trying to escape Where a person suffers injury or dies in attempting to escape an assault, the person assaulting is deemed to have caused that injury or death. R v Beech (1912) 7 Cr App R 197; [1911-1913] All ER Rep 530 (CCA); DPP (Jamaica) v Darley [1980] AC 237; [1979] 2 WLR 239; 69 Cr App R 39 (PC); Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669. See also Causation at [3.700].

ESPIONAGE The term ...................................................................................................................................... [5.1700]

[5.1700] The term In R v Lappas (2003) 152 ACTR 7; 139 A Crim R 77 (CA) Cooper and Weinberg JJ said (at 22; 93 [108]): The term “espionage” is generally defined as the act of monitoring the political, economic and military secrets of other countries. Its scope as a crime extends to communicating information that is of a prescribed kind to a foreign power. That foreign power need not be an enemy. The offence can be committed in time of peace as well as in time of war.

[5.1910]

EVIDENCE

637

Legislation Cth: Criminal Code Act 1995 s 91.1; Crimes Act 1914 s 15HB; NZ: Crimes Act 1961 s 78; Eng: Offıcial Secrets Act 1989.

Sentence R v Lappas (2003) 152 ACTR 7; 139 A Crim R 77 (CA).

EVIDENCE The term ...................................................................................................................................... Nature of the law of evidence .................................................................................................... Evidence which the defence may adduce .................................................................................. Order of defence witnesses ........................................................................................................ Unfairly obtained evidence ......................................................................................................... Only one criminal act per count ................................................................................................ Best evidence rule ....................................................................................................................... Uncontradicted evidence ............................................................................................................. Abolition of unsworn statement of accused ..............................................................................

[5.1900] [5.1905] [5.1910] [5.1915] [5.1920] [5.1925] [5.1930] [5.1935] [5.1940]

[5.1900] The term The word “evidence” comes from the Latin adjective evidens meaning obvious, manifest, clear.

[5.1905] Nature of the law of evidence In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 Brennan J said (at 573; 13; 200): The law of evidence, though adjectival, is the working tool which a trial judge must keep constantly at hand and the principles of the law of evidence are, so to speak, the ground on which the dynamics of a trial, especially a criminal trial, are played out.

In R v Skaf (2004) 60 NSWLR 86 (CCA) the court said in a joint judgment (at 104 [277]): 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.

[5.1910] Evidence which the defence may adduce In R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466 (CA) Henry J delivered the judgment. His Honour said (at 591; 485–486; 470): The authorities show that the defence may call evidence contradicting that of the prosecution witnesses where their evidence: (a) goes to an issue in the case (that is obvious); (b) shows that the witness made a previous inconsistent statement relating to an issue in the case (Denman’s Act, which we deal with below); (c) shows bias in the witness (Phillips (1936) 26 Cr App R 17);

638

ROSS ON CRIME

[5.1915]

(d) shows that the police are prepared to go to improper lengths to secure a conviction (Busby (1982) 75 Cr App R 79); (e) in certain circumstances proves the witness’s previous convictions; (f) shows that the witness has a general reputation for untruthfulness; (g) shows that medical causes would have affected the reliability of his testimony. All those categories listed, other than category (a), might be considered exceptions to the general rule as to the finality requirement of questions put on issues of credibility and collateral matters. They demonstrate the obvious proposition that a general rule designed to serve the interests of justice should not be used where so far from serving those interests it might defeat them.

As to: (b) see Prior inconsistent statement at [16.4700]. (c) see Bias at [2.1800]. (d) see Police at [16.2300]. (e) see Character at [3.1300]. (f) see Credit at [3.9600]. (g) see Witness at [23.700].

[5.1915] Order of defence witnesses An accused who gives evidence should be called first, but there is no rule on the order of defence witnesses. In R v Richards, McDonell and Aunger [1918] SALR 315 Buchanan J consulted his fellow judges then ruled (at 316): After conference with both my learned colleagues we are agreed that there is no rule of law that prevents the accused from giving evidence in the box even after he has called other witnesses for the defence. It is desirable that he should be the first witness called particularly where witnesses are ordered out of Court.

After citing authority it was further said (at 317): That shows the desirableness of the practice of calling the accused persons first, but as a matter of law I agree that their evidence at a later stage cannot be excluded. Although where witnesses are ordered out of Court it is competent for the jury to take that into consideration what weight can be given to that evidence.

Approved: R v Lister [1981] 1 NSWLR 110; (1980) 2 A Crim R 365 (CCA).

[5.1920] Unfairly obtained evidence In R v Ireland (1970) 126 CLR 321 the accused had been convicted of murder. The South Australian Court of Criminal Appeal allowed the appeal: R v Ireland [No 1] [1970] SASR 416. The prosecution appealed. Police had continued questioning after the accused had said he did not want to answer further. He was required to have his hands photographed and later medically examined because the knife broke during the stabbing and the break could have injured the assailant. Dealing with the photographs and the doctor’s evidence, Barwick CJ said that neither should have been admitted. He said (at 334–335): Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone, inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would

[5.1930]

EVIDENCE

639

more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured. 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.

See also Discretion at [4.3200].

[5.1925] Only one criminal act per count The prosecution must not lead evidence of more than one criminal act for any count on the indictment. Failure to observe this rule renders the jury verdict uncertain: R v Trotter (1982) 7 A Crim R 8 at 16-18 (Vic CCA); R v Brown (1983) 79 Cr App R 115; Kaitamaki v The Queen [1985] AC 147; [1984] 2 All ER 435; 79 Cr App R 251 at 152, 438, 254 (PC); R v Eades (1991) 57 A Crim R 151 at 155 (Vic CCA).

[5.1930] Best evidence rule In Godfrey v Woolworths (WA) Pty Ltd (1998) 103 A Crim R 336 (WA) Miller J was hearing an appeal from a magistrate’s dismissal of a charge. His Honour said at 339–340: A succinct statement of the “best evidence” rule is contained in JD Heydon (ed), Cross on Evidence (5th Aust ed, 1996), par 39005: A party relying on the words used in a document for any purpose other than that of identifying it must, as a general rule, adduce primary evidence of its contents. The rule has come under attack in recent times. In Governor of Pentonville Prison; ex parte Osman [1989] 3 All ER 701; (1990) 90 Cr App R 281, Lloyd LJ (at 728-729; 308-309) said that the court would: [B]e more than happy to say goodbye to the best evidence rule. We accept that it served an important purpose in the days of parchment and quill pens. But since the invention of carbon paper, and still more, the photocopier and the tele-facsimile machine, that purpose has largely gone. Where there is an allegation of forgery the Court will obviously attach little if any, weight to anything other than the original; so also if a copy produced in court is illegible. But to maintain a general exclusionary rule for these limited purposes is, in our view, hardly justifiable. Lloyd LJ cited Kajala v Noble (1982) 75 Cr App R 149 where Ackner LJ said (at 152): The old rule, that a party must produce the best evidence that the nature of the case will allow, and that any less good evidence is to be excluded, has gone by the board long ago. The only remaining instance of it is that if an original document is available in one’s hands, one must produce it; that one cannot give secondary evidence by producing a copy.

In Butera v DPP (Vic) (1987) 164 CLR 180; 30 A Crim R 417; 76 ALR 45, Dawson J said (at 194–195; 54–55; 426): The failure to observe the best evidence rule in practice has led textbook writers to conclude that it no longer exists, save as a convenient and concise description of the rule relating to the proof of

640

ROSS ON CRIME

[5.1935]

the contents of written documents, and that it is only in that form that it has survived … Indeed, Dixon CJ in Commissioner for Railways (NSW) v Young (1962) 106 CLR 535 at 544 appears to have thought that the rule excluding secondary evidence never went beyond writing; see also per Windeyer J at 556-558 … It is clear that … documents, other than written documents, ought not now to be, if they ever were, included in the rule requiring proof by primary evidence: see also R v Robson [1972] 1 WLR 651 at 653; 2 All ER 699 at 700-701.

[5.1935] Uncontradicted evidence A court is bound to accept uncontradicted evidence which is inherently reasonable, probable and conclusive of the matter. Hardy v Gillette [1976] VR 392 at 396–397 (Anderson J); Read v Nerey Nominees Pty Ltd [1979] VR 47 at 52 (Marks J); R v AWF (2000) 2 VR 1; 114 A Crim R 434 (at 10; 443 [31]) (CA).

Books Cross on Evidence (Australian ed, LexisNexis, Sydney); P Bayne, Uniform Evidence Law (Federation Press, Sydney, 2003); S Odgers, Uniform Evidence Law (6th ed, Lawbook Co, Sydney, 2004).

[5.1940] Abolition of unsworn statement of accused At one time an accused could make a statement not on oath. Reports of many cases refer to evidence given in that way. Unsworn statements have been abolished by statute in the jurisdictions where they existed. ACT: Evidence Act 1971 s 68A; NSW: Criminal Procedure Act 1986 s 31; SA: Evidence Act 1929 s 18A; Tas: Evidence Act 2001 s 30A; Vic: Evidence Act 1958 s 25 (now repealed, however it seems clear that s 226 of the Criminal Procedure Act 2009 does not allow for an unsworn statement); NZ: Crimes Act 1961 s 366A; Eng: Criminal Justice Act 1982 s 72. The occasion for the abolition might have been John Stonehouse who “occupied no less than six days making what he described as an unsworn statement from the dock”: R v Stonehouse (1977) 65 Cr App R 192 at 195 (CA). Darryl Sorby’s unsworn statement took the best part of three days: R v Sorby (1986) VR 753; 21 A Crim R 64 at 786, 98 (CCA).

EXAMINATION-IN-CHIEF Purpose ........................................................................................................................................ No leading questions .................................................................................................................. Legislation ................................................................................................................................... Address and occupation of witness ............................................................................................ Leading questions can sometimes be asked .............................................................................. No questions on credit: bolster rule ........................................................................................... Ten hints on examination-in-chief ..............................................................................................

[5.2100] [5.2105] [5.2110] [5.2115] [5.2120] [5.2125] [5.2130]

[5.2120]

EXAMINATION-IN-CHIEF

641

[5.2100] Purpose LC Hoffman, The South African Law of Evidence (2nd ed, 1970) said (at p 311): The purpose of examination in chief is to enable the party who has called a witness to put his evidence before the court, the method adopted being that of oral question-and-answer. This is a characteristic feature of the English trial which is made essential by the exclusionary rules of evidence. If a witness were allowed to say what he wished as in the Continental practice a rule such as the exclusion of hearsay would be impossible to operate. The question-and-answer method gives counsel control of what the witness says which makes for order and relevance but places upon counsel a considerable responsibility to present the evidence in a fair and complete manner.

(The author later became Lord Hoffman.)

[5.2105] No leading questions Ordinarily leading questions may not be asked and certainly not on matters in issue. In any event leading questions should be avoided. Du Cann (The Art of the Advocate (1993)) said (at p 97): Leading questions … do great damage; they destroy the reality of the evidence and prevent the character of the witness emerging, they destroy the reliability of the evidence by suggesting the answer the witness should give, and they stamp the partiality of the examiner. Even if they are not objected to by the judge or the other side they substantially reduce the value of the witness’s evidence.

Evidence-in-chief derived from leading questions was rejected in the undefended divorce case of Moor v Moor [1954] 1 WLR 27; [1954] 2 All ER 458 (CA).

[5.2110] Legislation Some legislation prevents leading questions in examination-in-chief other than by introduction or on undisputed matters. Uniform Evidence Acts s 37; NZ: Evidence Act 2006 s 89.

[5.2115] Address and occupation of witness In R v Chen (2002) 130 A Crim R 300 (NSW CCA) the court said in a joint judgment (at 312 [28] (4)): It is customary to obtain the address and occupation of witnesses at the start of the examination in chief. Strictly speaking, the address and occupation of a particular witness at the time of the trial is irrelevant to any issue, though either an address or an occupation at the time of the events in issue can be. The evidence is received simply in order to locate the witness in society.

[5.2120] Leading questions can sometimes be asked Leading questions may be asked in the following circumstances. (a) Formal and introductory matters eg name, address, occupation. I rarely lead on these. The witness knows the answers. I ask the questions one at a time: What is your name? Where do you live? What is your occupation? (b) Matters not in dispute. These will vary from case to case. Sometimes everything is in dispute. But generally you may be able to ask a date and perhaps a time but make the centre part of the question as non leading as possible. On 1 May last year in the afternoon can you tell us where you were?

642

ROSS ON CRIME

[5.2125]

(c) Directing attention: (i) Towards something: After you left home where did you go? or, Did you make a complaint to anyone? (ii) Away from something: It is necessary to avoid hearsay, unfair prejudice, and other inadmissible matters. The question may be: I don’t want you to tell us anything that was said, but did you speak to someone? (d) Jogging memory. Generally the memory of a witness must be exhausted before the witness can be taken to a document: Did you make entries in your register (cheque book/receipt book)? Can you remember now what they were? Would you be helped by looking at the register. Counsel’s opponent will object if it is apt. See Memory at [13.2100]. (e) Negativing consent: Consent is sometimes an issue, but it is generally a formal matter requiring only that the attention of the witness be directed: Did you give (the accused) permission to enter your house? Did you consent to that sexual intercourse? They are usually the last questions asked.

[5.2125] No questions on credit: bolster rule Evidence showing the credit, credibility or good character of a witness cannot be led in evidence-in-chief. This is sometimes called the “bolster rule”. In Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 McHugh J said (at 21; 31; 229 [49]): The bolster rule stipulates that evidence is not admissible if it merely bolsters the credibility of a party or witness, whether the evidence is sought to be led in evidence-in-chief or crossexamination of another witness or in re-examination of the party or witness attacked.

Lawton LJ giving judgment in the Court of Appeal in R v Turner [1975] QB 834; [1975] 2 WLR 56; [1975] 1 All ER 70; 60 Cr App R 80 said (at 842; 75; 84): [I]n general evidence can be called to impugn the credibility of witnesses but not led in chief to bolster it up.

In Bamfield v Massey (1808) 1 Camp 460; 170 ER 1021, a civil action for seduction of the plaintiff’s daughter, Lord Ellenborough said (at 461): Witnesses cannot be examined by the plaintiff to the character of the daughter, except in answer to evidence on the other side.

Other cases R v Béland [1987] 1 SCR 398; (1987) 43 DLR (4th) 641; 36 CCC (3d) 481 at 404–408, 646–649, 486–489 (SCC); R v PLK [1999] 3 VR 567; (1999) 108 A Crim R 414 (CA) at 577–578; 424–425 [43] – [46].

[5.2130] Ten hints on examination-in-chief 1. Use simple English. 2. Only one issue per question. 3. Induce the right order. 4. Use non leading questions. Guide without leading. 5. Keep control. You can stop, redirect and restart a witness without being intrusive.

[5.2310]

EXHIBIT

643

6. Watch the witness and listen to the answers. 7. Be thorough. Obscure terms and slang may need explanation, the layout of rooms or streets may need description. 8. Be prepared to refresh the memory of the witness. 9. Be prepared for a witness being hostile. 10. Tone down weak points. See also Credit at [3.9600]; Cross-examination at [3.10400]; and Re-examination at [18.2000]. JH Munkman, The Technique of Advocacy (Stevens & Son Ltd, London, 1951). AR Emmett, “Examination in Chief and Re-examination” (1987) 3 Aust Bar Rev 93-102. R Du Cann, The Art of the Advocate (Penguin Books, 1993), Ch 5. David Ross QC, Advocacy (Cambridge University Press, 2nd edition 2007), Ch 4.

EXHIBIT Definition ..................................................................................................................................... Provenance .................................................................................................................................. Continuity .................................................................................................................................... Marking of exhibits .................................................................................................................... Production for identification ....................................................................................................... Defence access to prosecution exhibit ....................................................................................... Lost exhibit ................................................................................................................................. Magistrates Court: loss of exhibits ............................................................................................ Destroyed exhibit ........................................................................................................................ What cannot be an exhibit .......................................................................................................... What may become an exhibit ..................................................................................................... Members of the public ................................................................................................................ Judge’s discretion on exhibits in jury room .............................................................................. Simple experiments by the jury ................................................................................................. Non-exhibits in the jury room .................................................................................................... Loss of exhibits ........................................................................................................................... Loss of defence exhibits .............................................................................................................

[5.2300] [5.2305] [5.2310] [5.2315] [5.2320] [5.2325] [5.2330] [5.2335] [5.2340] [5.2345] [5.2350] [5.2355] [5.2360] [5.2365] [5.2370] [5.2375] [5.2380]

[5.2300] Definition An exhibit is a document or an item produced for the inspection of the court. An exhibit must be relevant.

[5.2305] Provenance The provenance of an exhibit must be demonstrated, that is to say its origins must be established. An item stolen will be identified by its owner, photographs of the scene by the photographer, a video of the accused’s interview by the interviewers. Thus in Butera v DPP (Vic) (1987) 164 CLR 180; 30 A Crim R 417; 76 ALR 45 Mason CJ, Brennan and Deane JJ said about admitting a tape recording into evidence (at 184; 47; 419): It is unnecessary now to consider those conditions but it is obvious that the provenance of the tape recording must be satisfactorily established before it is played over to the jury.

[5.2310] Continuity The prosecution must satisfy the judge on the balance of probabilities that the exhibit sought to be tendered is the same as originally existed and that it has not been changed, mixed, contaminated or tampered with on the way.

644

ROSS ON CRIME

[5.2315]

R v Robson [1972] 1 WLR 651; [1972] 2 All ER 699; 56 Cr App R 450 concerned tape recordings. Shaw J ruled (at 653–654; 701; 452): In the first stage, when the question is solely that of admissibility ie is the evidence competent to be considered by the jury at all? – the judge, it seems to me, would be usurping their function if he purported to deal with not merely the primary issue of admissibility but with what is the ultimate issue of cogency. My own view is that in considering that limited question the judge is required to do no more than to satisfy himself that a prima facie case of originality has been made out by evidence which defines and describes the provenance and history of the recordings up to the moment of production in court. If that evidence appears to remain intact after cross–examination it is not incumbent on him to hear and weigh other evidence which might controvert the prima facie case. To embark on such an enquiry seems to me to trespass on the ultimate function of the jury.

R v McNair (unreported, Vic CCA, 8 May 1997) was a rape case. The doctor who examined the complainant said he put swabs in separate plastic tubes. On delivery to the Department of Forensic Science they were all in one jar. All contained a DNA profile which did not exclude the accused. It was held that the evidence was rightly admitted. On the prosecution case the jury only had to be satisfied about continuity on the balance of probabilities.

[5.2315] Marking of exhibits While there is no fast rule, prosecution exhibits are usually marked alphabetically: A, B, C, etc. Defence exhibits are usually marked numerically: 1, 2, 3 etc. If there is no prejudice to the accused, documents can be tendered together to be separately numbered: R v Connell (1995) 123 FLR 458 (WA, White J).

[5.2320] Production for identification Two or more witnesses might give evidence about the same item. One witness might speak of its origins, another of its relevance. For example, a gunsmith might be shown a bullet and say that it was fired from a gun which is also shown to him. Both bullet and gun are marked for identification, for example, MFI A: bullet; MFI B: gun. A later witness swears that the gun belongs to the accused. “Gun tendered absolutely, Exhibit B”. A doctor swears that he took a bullet from the body of the victim and identifies it. “Bullet tendered absolutely, Exhibit A”.

[5.2325] Defence access to prosecution exhibit The court may order the inspection or production of a prosecution exhibit to the defendant. In R v Clarke (1931) 22 Cr App R 58 (CA) it was held that the defence is entitled to see an early written description of the offender with a view to cross–examine on any discrepancies between the description and the evidence. See also Identification at [9.100]. In R v Hall (1959) 43 Cr App R 29 a judge ordered the production of witness statements. In R v Ekert [1975] Qd R 429 Dunn J ordered inspection. R v Charlton [1972] VR 758 at 761–762 (CCA) was applied. In Senior v Holdsworth [1976] QB 23; [1975] 2 All ER 1009 (CA) it was held that a court has power to order the production of a film in civil or criminal proceedings where the film will serve “a useful purpose”. In Mickelberg v The Queen (1992) 59 A Crim R 288 (WA) Malcolm CJ permitted access to exhibits for tests. This motion was made after conviction and unsuccessful appeals (and a petition of mercy) but in contemplation of civil proceedings.

[5.2335]

EXHIBIT

645

Where the interests of justice require, a judge will order the production of any item. In R v Spry and Dore (1848) 3 Cox CC 221 the Recorder ordered production of the deceased’s stomach to the defence. A police inspector was in possession of it. The accused were charged with the poisoning murder of a child. In R v Beaney (1866) 3 WW & a’B (L) Williams J in Victoria ordered exhumation. Both of these cases were referred to by in Sobh v Police Force of Victoria [1994] 1 VR 41; (1993) 65 A Crim R 466 (FC) per Brooking J ( at 47; 472–473). This power to order production is independent from the prosecutor’s duty to supply conflicting witness statements to the defence. See also Prosecutor at [16.6900]. The defence application to examine an exhibit must be made early. Expensive exhibits cannot be held indefinitely: R v Roberts (1999) 106 A Crim R 67 (NSW CCA).

[5.2330] Lost exhibit A judge will stay an indictment where an exhibit which is essential to the defence is lost. The test is whether a fair trial can be had. R v Reeves (1994) 122 ACTR 1; 121 FLR 393 was an originating motion for permanent stay. The accused was charged with gaining a financial advantage by making or concurring in making false company documents. Most of the company documents were destroyed but not so as to doom the prosecution case to failure. A stay was granted. Gallop J concluded (at 23): Having considered all the circumstances, I have concluded that because of the destruction of documents it is not possible for the applicant to receive a fair trial. That destruction creates a fundamental defect which goes to the root of the trial and I do not believe that there is anything that a trial judge could do in the conduct of the trial that could relieve against its unfair consequences: Barton v The Queen (1980) 32 ALR 449; 147 CLR 75 per Wilson J at 111.

See also R v Carosella [1997] 1 SCR 80; 142 DLR (4th) 595; 112 CCC (3d) 289 (SCC). Where a conviction results despite the lost exhibit an appeal court will quash a conviction and enter a verdict of acquittal: R v Devenish [1969] VR 737 (CCA). If no relevant unfairness was caused by the loss of the exhibit, an appeal will fail: R v Lobban (2000) 77 SASR 24; 112 A Crim R 357 (CCA).

[5.2335] Magistrates Court: loss of exhibits The same principle applies in a Magistrates Court. In Heinze v Burnley & Myers (1992) 57 SASR 452; 63 A Crim R 83 (CA) the application was to stay a .08 charge. After an accident the plaintiff had been given brandy from a fresh bottle. The police took the bottle but then returned it to the owners who in due course drank more. Thus the plaintiff could not establish how much he had drunk and how it affected the reading. Application was dismissed. Holmden v Bitar (1987) 47 SASR 509; 27 A Crim R 255 (Cox J) concerned a charge of having five tins of pâté in luggage. The magistrate had dismissed the information despite the averment because the tins had been destroyed depriving the defendant a chance to challenge the nature of the contents. Informant’s appeal against conviction was dismissed. In Police v Jervis (1998) 70 SASR 429; 101 A Crim R 1 (FC) the respondents were given a blood test kit by police to enable a check of breath analysis. The blood taking procedures

646

ROSS ON CRIME

[5.2340]

were wrong. In Ms Jervis’ case her sample was lost. The magistrate dismissed the charges. The Full Court allowed the prosecution appeal. Other cases Gray v Police (2003) 85 SASR 1; 138 A Crim R 463; 38 MVR 277 Gray J); Duncan v Crews (2000) 161 FLR 250 (NSW Greg James J); Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299; [1999] SASC 154 (Wicks J).

[5.2340] Destroyed exhibit Presumption In The Ophelia [1916] 2 AC 206 (PC) Sir Arthur Channell, giving the advice of the Board, said (at 229–230): If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case.

Applied: Allen v Tobias (1958) 98 CLR 367 at 375. There Dixon CJ, McTiernan and Williams JJ said that the maxim which embodies the presumption is omnia praesumuntur contra spoliatorem (all things are presumed against a wrongdoer).

Legislation In some jurisdictions it is an offence to destroy an item wanted in evidence. Qld: Criminal Code s 129; WA: Criminal Code s 132; Tas: Criminal Code s 99; NT: Criminal Code s 102.

[5.2345] What cannot be an exhibit An unsigned or unacknowledged record of interview cannot be an exhibit. In Driscoll v The Queen (1977) 137 CLR 517; 15 ALR 47 Barwick CJ said (at 523): Signature is perhaps the best, but clearly not the only, method of such acknowledgement. The record becomes admissible only because it has become the document of the person interrogated. If it has not become his document it should not be admitted into evidence as such.

[5.2350] What may become an exhibit A chart providing a summary of the documentary evidence may become an exhibit: R v Collins (1986) 44 SASR 214; 32 A Crim R 31 (CCA). See also Chart at [3.1600]. A translation of taped conversation in foreign languages may be entered as an exhibit: Butera v DPP (Vic) (1987) 164 CLR 180; 30 A Crim R 417; 76 ALR 45.

[5.2365]

EXHIBIT

647

[5.2355] Members of the public Members of the public in court have no right to see an exhibit. In R v Waterfield [1975] 1 WLR 711; [1975] 2 All ER 40; 60 Cr App R 296 the accused was convicted over the importation of indecent films from Scandinavia. The films became exhibits. Some of the films were shown to the jury with press and public excluded. Appeals against conviction dismissed, but the court said (at 715; 44; 299): [N]ormally when a film is being shown to a jury and the judge, in the exercise of his discretion, decides that it should be done in a closed courtroom or in a cinema, he should allow representatives of the press to be present. No harm can be done by doing so: some good may result.

[5.2360] Judge’s discretion on exhibits in jury room The normal practice is for the jury to take the exhibits with them when they retire to consider their verdict: R v Bradshaw (1978) 18 SASR 83 (CCA). But the judge has a discretion. In R v Stephenson (1978) 18 SASR 381 (CCA) the headnote reads: The normal practice of the Court is that (where practicable) exhibits admitted in evidence should accompany the jury when they retire to the jury room to consider their verdict. Per Bray CJ and King J: The trial Judge has a discretion to direct that an exhibit should not go with the jury to the jury room if he is of opinion that the exhibit is of such a nature as to be likely to exercise a disproportionate weight in their deliberations and be unduly prejudicial to the accused.

In his judgment Bray CJ said (at 387): [S]ome exhibits by their physical nature cannot accompany the jury on their retirement into the jury room. Examples of such exhibits that occur to me are a motor car or a flock of sheep. Other exhibits in the experience of many Judges have been excluded from the jury room by reason of their dangerous nature, such as a detonator or a container of poison. Others, I think, might be excluded on account of their value, such as a parcel of diamonds, or on account of their revolting nature, as in the case of some photographs in homicide cases. And I think that the Judge has a discretion also to exclude duly admitted exhibits from the jury room if they are of such a nature as to be likely to exercise a disproportionate weight in their deliberations, though, if the jury send out a message asking to see the excluded exhibit, the Judge will no doubt reconsider his decision.

[5.2365] Simple experiments by the jury In R v Hamitov (1979) 21 SASR 596 (CCA) the court said in a joint judgment (at 598): When exhibits are sent into the jury room it is understood that the jury are at liberty to inspect and experiment with them in any reasonable manner which occurs to them.

In Kozul v The Queen (1981) 147 CLR 221; 55 ALJR 377; 34 ALR 429 Gibbs CJ said (at 227; 433–434): If the question is whether a knife is sharp or a club is heavy, or whether one object resembles another, the jury can prefer their own observation to the evidence of the witnesses. Of course, it may be necessary to warn the jury of the possible dangers that may exist if they act on their own observation. For example, the present condition of the object may not be the same as its condition at the relevant time, or the fact to be observed may be such that an unskilled layman might need to have his observation assisted by expert evidence. In Hodge v Williams (1947) 47 SR (NSW) 489, at 493, Davidson J after saying that the tribunal may “with its own powers of observation and general knowledge” estimate the value of the evidence of witnesses directed to issues concerning articles in evidence as exhibits, and if necessary refuse to accept that evidence, went on: Nevertheless, it is not permissible for the Judge or jury, in the absence of the parties, to gather by extraneous evidence or experiments of their own, anything in the nature of additional

648

ROSS ON CRIME

[5.2370]

evidence, and apply it in the determination of the issue, unless the facts so obtained are ventilated and submitted to the comment of the parties or their counsel. When the experiments conducted by the jury go beyond a mere examination and testing of the evidence, and become a means of supplying new evidence, they become impermissible.

In R v Zakaria (1992) 62 A Crim R 259 (Vic CCA) the accused had been convicted of importing heroin in a suitcase. The suitcase with powder substituted for heroin was tendered and disassembled in court. The jury no doubt tested its tendency to hang to one side on the issue of whether the accused knew of its contents. Crockett and Marks JJ said (at 262): They merely examined a physical object which was quite properly in evidence. Such an examination would be normal and within the legitimate power of the jury to undertake. It may be granted that the evidence would not allow a conclusion to be drawn as to the applicant’s knowledge of the relative weights of the case in each of its conditions. But the jury knew that that was so. What handling the suitcase would permit the jury to ascertain would be any tendency of the case when picked up or carried to hang to one side – with and without the powder secreted in the false bottom. We can see no reason why the suitcase could not be handled by the jury for this purpose in order to form a view as to whether any demonstrated hanging to one side might have been such as to give rise to a suspicion in the applicant as to the nature of the case’s contents.

[5.2370] Non-exhibits in the jury room In Barker v The Queen (1994) 54 FCR 451; 127 ALR 280; 78 A Crim R 1 (FCA) the court said (at 465; 290; 12): The presence in the jury room of material relating to a subject of the jury’s deliberations and not in evidence constitutes an irregularity: Domican v R (No 3) (1990) 46 A Crim R 428 at 447-8; R v Rinaldi (1993) 30 NSWLR 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred: R v Marsland (SC (NSW) 17 July 1991, unreported); R v Rinaldi (1993) 30 NSWLR 605, supra. And “[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried”: Mraz v R (1955) 93 CLR 493 at 514 (per Fullagar J).

In R v Forrester [1985] 2 NZLR 85 (CA) a juror found a lighter, believed lost, in the pocket of an exhibit jacket. Accused was convicted. The appeal was allowed. In R v Cotter (2004) 147 A Crim R 540 (Vic, Redlich J) the jury found notes of the accused in a bag the prosecution alleged was his. The ownership of the bag was inculpatory. Redlich J examined authority and discharged the jury without verdict.

[5.2375] Loss of exhibits In R v Johannsen and Chambers (1996) 87 A Crim R 126 (Qld CCA) the accused were charged in 1994 with a murder that had occurred 20 years before. Much of the police brief was lost including early exculpatory statements of a now-important prosecution witness, the records of interview, police running sheets and notebooks and numerous related records of interview. The trial judge refused a permanent stay. Appeal allowed. Permanent stay granted.

[5.2380] Loss of defence exhibits R v Davis (1995) 57 FCR 512; 81 A Crim R 156 (FCA) concerned 14 charges of indecent assaults on patients laid against a doctor. The charges had not been laid for 25 years. By that time the doctor had retired and his secretary destroyed the medical records. Permanent stay granted.

Voice identification on exhibit tape R v Smith, Ashford & Schevella (1990) 50 A Crim R 434 at 453–454 (Vic CCA).

[5.2505]

EXPERIMENT

649

EXPERIMENT Meaning ....................................................................................................................................... Disclosure .................................................................................................................................... Experiments by police ................................................................................................................ Jury experiment ........................................................................................................................... Other references ..........................................................................................................................

[5.2500] [5.2505] [5.2510] [5.2515] [5.2520]

[5.2500] Meaning In a criminal case, an experiment usually means establishing a known truth. More broadly it means an action to test a hypothesis or to discover something unknown. In R v Neilan [1992] 1 VR 57; (1991) 52 A Crim R 303 (CCA) the court in a joint judgment endorsed the following (at 74–75; 327): The use of evidence of experiments and tests is extensively dealt with in 29 Am Jur 2d, ss 823 and the following. In s 824 this is laid down: One desiring to make an experiment or test in court or to introduce evidence of an experiment or test made out of court should first show that the experiment or test is to be made or was made, as the case may be, under conditions and circumstances similar to those prevailing at the time of the occurrence involved in the controversy; otherwise, the courts will not, as a general rule, permit the making of the experiments or tests or the introduction of evidence thereof. It is clear, however, that the conditions need not be identical with those existing at the time of the occurrence, but it is sufficient if there is a substantial similarity of conditions. Minor variations in the essential conditions go to the weight, rather than to the admissibility, of the evidence. There is no precise test or gauge to determine when the requirement of substantial similarity has been satisfied. This depends largely upon the purpose for which such evidence is to be introduced. Speaking generally, however, the measure of permissible variation of the conditions of the experiment or test from those of the occurrence is measured by whether such variation is liable to confuse or mislead the jury. When the conditions are so dissimilar from those of the occurrence in question as to tend to confuse or mislead the jury, the evidence of an experiment or test should be rejected. The question of similarity is one that lies within the sound discretion of the trial court, to be decided in the light of all the surrounding facts and circumstances. [footnotes omitted]

Approved: Birks v Western Australia (2007) 33 WAR 291; 168 A Crim R 350 (CA) at [50] per Buss JA with whom the other judges agreed.

[5.2505] Disclosure Both prosecution and defence must give notice of intent to call an expert witness and the details of the evidence. Further, the notice must include matters which cast doubt on the party’s own witness. In R v Ward [1993] 1 WLR 619; [1993] 2 All ER 577; (1993) 96 Cr App R 1, Glidewell LJ, giving the judgment of the court, said (at 680; 632; 56): [A]n expert witness who carried out or knows of experiments or tests which tend to cast doubt on the opinion he is expressing is in our view under a clear obligation to bring the records of such experiments and tests to the attention of the solicitor instructing him so it may be disclosed to the other party.

Approved: Easterday v The Queen (2003) 143 A Crim R 154 (WA CCA) at 189 [198] per Steytler J.

650

ROSS ON CRIME

[5.2510]

[5.2510] Experiments by police Wrong In R v Neilan [1992] 1 VR 57; (1991) 52 A Crim R 303 (CCA) police estimated the amount of light by which the accused could have seen those he claimed had murdered his wife. The court held in a joint judgment that the experiment was so defective as to make the evidence inadmissible. Yet the defence had shown its weakness, so no harm done. Appeal dismissed on this and other grounds. In Mallard v The Queen (2005) 224 CLR 125; 157 A Crim R 121; 222 ALR 236 [2005] HCA 68 the police believed that the accused had used a wrench to kill the victim. They tested the wrench on pigs heads. They did not tell the defence of expert evidence that made death by wrench almost impossible. Appeal allowed. Retrial ordered.

Right In R v Cox [1997] SASC 6507 (23 December 1997) the accused had been convicted of attempting to escape from a prison van. He had undone the locking device and was partway through the skylight when discovered. Police gave evidence of using a card to effect the actions of the accused. Appeal against conviction dismissed.

Firearms Police squads have special firearms squads. In a homicide case where death is caused by a firearm, a member will test the firearm. That member will give evidence such as of the pressure needed to fire, the weight with and without a magazine, the identifying marks on the bullet and the cartridge case made by the firearm in question. Assuming the expertise of the police officer, such evidence is frequently admitted. In R v Ryan [1966] VR 553 (CCA) the court said in a joint judgment (at 555): There was expert evidence that the bore of the rifle … was consistent with a shot having been fired therefrom.

[5.2515] Jury experiment A jury may be entitled to experiment with an exhibit. In Kozul v The Queen (1981) 147 CLR 221; 55 ALJR 377;34 ALR 429 the accused had been convicted of murdering by firearm. One issue was whether the firearm could be discharged by being knocked when cocked and uncocked. The jury did their own experiments, without bullets of course. The High Court held (Wilson J being the only dissentient) that the jury’s experiments were proper.

[5.2520] Other references See also Demonstration at [4.1500]; Exhibit (Simple experiments by the jury) at [5.2365]; Expert evidence at [5.2700]; and Scientific instrument at [19.500].

[5.2700]

EXPERT EVIDENCE

651

EXPERT EVIDENCE Admissibility ............................................................................................................................... Judge deciding if expert evidence required ............................................................................... Defence to give notice of expert evidence ................................................................................ Qualifications .............................................................................................................................. Expert must be independent ....................................................................................................... Examples of experts and non-experts ........................................................................................ Basis of opinion must be given .................................................................................................. Medical practitioner and patient history .................................................................................... Opinion evidence confined ......................................................................................................... Expert evidence uncontradicted .................................................................................................. Psychologist ................................................................................................................................ Other opinion evidence sought to be led ................................................................................... The ultimate issue ....................................................................................................................... Conflict in evidence .................................................................................................................... Test for admissibility .................................................................................................................. Aboriginal tracker ....................................................................................................................... Judge’s duties when opinion evidence is wrongly given .......................................................... Extortion ...................................................................................................................................... Defence notice ............................................................................................................................ Writing ......................................................................................................................................... Uniform Evidence Acts ..............................................................................................................

[5.2700] [5.2705] [5.2710] [5.2715] [5.2720] [5.2725] [5.2730] [5.2735] [5.2740] [5.2745] [5.2750] [5.2755] [5.2760] [5.2765] [5.2770] [5.2775] [5.2780] [5.2785] [5.2790] [5.2795] [5.2800]

[5.2700] Admissibility The subject must be specialised and the jury unlikely to be capable of forming a correct judgment without the assistance of an expert. In Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705 (CA) Heydon JA said (at 743–744 [85]): In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of “specialised knowledge”; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be “wholly or substantially based on the witness’s expert knowledge”; so far as the opinion is based on facts “observed” by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on “assumed” or “accepted” facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert’s evidence must explain how the field of “specialised knowledge” in which the witness is expert by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based”, applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert’s specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ’s characterisation of the evidence in HG v The Queen (1999) 197 CLR 414 (at 428 [41]), on “a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise”.

Followed and applied: R v Bjordal (2005) 93 SASR 237 (CCA). In DPP v Tong (2004) 151 A Crim R 296; 41 MVR 409 (NSW, Dowd J) his Honour characterised Makita (2001) 52 NSWLR 705 as follows (at [35]): It was a factual decision made by the Court of Appeal and one that presented no question of principle. The Court simply found that there was little weight in the opinion of the expert.

652

ROSS ON CRIME

[5.2705]

For an analysis of the meaning of an ‘opinion’, see Lithgow CC v Jackson (2011) 85 ALJR 1130; 281 ALR 223. The expert evidence rule is contained in the Uniform Evidence Act (ACT, Cth, NT, NSW, Tas, Vic), s 79. Other cases Clarke v Ryan (1960) 103 CLR 486 at 491–492; R v Chard (1971) 56 Cr App R 268; R v Turner [1975] QB 834; [1975] 2 WLR 56; [1975] 1 All ER 70; 60 Cr App R 80; R v O’Callaghan [1976] VR 441 (Gowans J); R v Darrington & McGauley [1980] VR 353 at 377 (CCA); R v Wright [1980] VR 593 (CCA).

[5.2705] Judge deciding if expert evidence required In R v Bartlett [1996] 2 VR 687 (CA) Winneke P said (at 695): In determining whether there is, or is not, a field of knowledge which requires expert assistance, the judge is to a large extent involved in an exercise of personal judgment, for which authority provides little help: see per Blackburn J in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 at 160.

[5.2710] Defence to give notice of expert evidence Often the defence will want to call expert evidence. Some legislation requires the defence to give notice to the prosecution of that intention and to provide full particulars. Qld: Criminal Code Act 1899 s 590B; WA: Criminal Procedure Act 2004 s 62; NSW: Criminal Procedure Act 1986 s 139(1)(b); SA: Criminal Law Consolidation Act 1935 s 285BC; Eng: Criminal Justice Act 2003 s 35. See also Disclosure (Defence duty to disclose) at [4.2855].

[5.2715] Qualifications What constitutes the expert’s qualifications is discussed in R v Darrington & McGauley [1980] VR 353 at 379 (CCA).

[5.2720] Expert must be independent The expert must be independent. If not the court may reject the evidence. In Easterday v The Queen (2003) 143 A Crim R 154 (WACCA) Steytler J said (at 216 [319]): I formed the strong impression that Mr McGowan has become partisan in his views, to the point at which he was more advocate than independent expert.

In R v Wright (1997) 93 A Crim R 48 (NSW CCA) Hunt CJ at CL, with whom the others agreed, began his assessment of a psychiatrist’s report in this way (at 54):

[5.2730]

EXPERT EVIDENCE

653

In what should more properly be an advocate’s address rather than a report of someone apparently put forward as an independent expert.

See also Phosphate Co-operative Co of Australia Ltd v Shears [1989] VR 665 at 681 (Brooking J).

[5.2725] Examples of experts and non-experts In R v Robb (1991) 93 Cr App R 161 (CA) Bingham LJ said (at 164): The old-established, academically-based sciences such as medicine, geology or metallurgy, and the established professions such as architecture, quantity surveying or engineering, present no problem. The field will be regarded as one in which expertise may exist and any properly qualified member will be accepted without question as expert. Expert evidence is not, however, limited to these core areas. Expert evidence of finger-prints, hand-writing and accident reconstruction is regularly given. Opinions may be given of the market value of land, ships, pictures or rights. Expert opinions may be given of the quality of commodities, or on the literary, artistic, scientific or other merit of works alleged to be obscene … Some of these fields are far removed from anything which could be called a formal scientific discipline. Yet while receiving this evidence the courts would not accept the evidence of an astrologer, a soothsayer, a witch-doctor or an amateur psychologist

In R v Lam (2001) 121 A Crim R 272 (Qld CA) the accused were charged with defrauding a casino by bribing a croupier. Trial evidence was given by a Mr Tough who was experienced in baccarat and said by the prosecution to be an expert. Held (at 290 [80] – [81]) the evidence was properly admitted.

[5.2730] Basis of opinion must be given In R v J (1994) 75 A Crim R 522 (Vic CCA) Brooking J said (at 531): Nor did the witness state sufficiently the basis of his opinions. I refer again to the paper delivered by Sir Owen Dixon to the Medico-Legal Society, from which Fullagar J cited an observation in Jenkins; Ex parte Morrison [1949] VLR 277 at 303. An expert should explain the basis of theory or experience on which the expert conclusions are said to rest: Haidley and Alford [1984] VR 229 at 234-235; (1983) 10 A Crim R 1 at 7-8.

In Trade Practices Commission v Arnotts (No 5) (1990) 21 FCR 324; 92 ALR 527 (FCA) Beaumont J excluded opinion evidence of Dr Williams, an economist. After examining a great many cases and learned works His Honour said (at 330; 533): In my opinion, these authorities establish that there is a rule of evidence at common law that, except in a straight-forward, uncomplicated case, where the facts are admitted and readily identified, the opinion of an expert is admissible only where the premises, that is to say, the facts, upon which his or her opinion is based, are expressly stated. It follows that, in a complex case, where facts are not readily identifiable, it is not permissible to put the whole of the transcript and documentary evidence to the witness en bloc.

In HG v The Queen (1999) 197 CLR 414; 160 ALR 554 Gleeson CJ said of a psychologist (at 428; 563 [41]): [A] reading of his report, and his evidence at the committal, reveals that it was based on a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise of a psychologist.

In R v Clark (2005) 13 VR 75; 158 A Crim R 278 (CA) the prosecution called an expert police witness who calculated the speed of the accused’s vehicle. The calculation was based on measurements and photographs of Senior Constable Oldfield who did not give evidence. The defence did not object but made a submission at the end of the whole case that the

654

ROSS ON CRIME

[5.2735]

expert evidence had not been proved. Appeal dismissed. The defence had waived the objection to hearsay. A reservation was added by Nettle JA, with whom Charles JA agreed, who said (at [63]): In this case the objection could have been allowed, consistently with fairness for both sides, by allowing the prosecutor to call Senior Constable Oldfield as a rebuttal witness (as the prosecutor proposed to the Judge when the objection was taken).

See also R v Ping [2006] 2 Qd R 69; (2005) 159 A Crim R 90 at [43] – [46] (CA); R v Juric (2002) 4 VR 411; 129 A Crim R 408 (at 426; 422 [19]) (CA). Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, where the Court noted that it is unclear whether the basis of the opinion must be given in the context of the Uniform Evidence Acts. See also, Kyluk Pty Ltd v Chief Executive Offıce of Environment and Heritage [2013] NSWCCA 114.

[5.2735] Medical practitioner and patient history In R v Perry (1990) 49 A Crim R 243 (NSW CCA) Gleeson CJ, with whom the others agreed, said (at 249): Since opinion evidence involves the drawing of inferences and conclusions from facts, the admissibility of such evidence depends upon proof or admission of the facts upon which the opinion is based.

Approved: Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465 at 71; 517 [204] per Callinan J. In Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394 the court said in a joint judgment (at 604; 402; 297 [39]): At common law, an expert (such as a medical practitioner) may give evidence about the factual basis for the opinion expressed (such as the history given by the patient) only as evidence showing the foundation for that opinion, not as evidence of the truth of the facts recounted. See eg, Ramsay v Watson (1961) 108 CLR 642 at 647-649.

The court then held that no change had been made to the above proposition by s 60 of the Evidence Act 1995 (NSW). The court said (at [40]): But there is no basis … for concluding that s 60 was intended to provide a gateway for the proof of any form of hearsay, however remote. As has been indicated earlier in these reasons, that that was not intended is made plain by the terms of s 59 to which s 60 is an exception.

In Ramsay v Watson (1961) 108 CLR 642 the court said in a joint judgment (at 649): This makes all statements made to an expert witness admissible if they are the foundation, or part of the foundation, of the expert opinion to which he testifies; but, except they be admissible under the first rule, such statements are not evidence of the existence in fact of past sensations, experiences and symptoms of the patient. Hearsay evidence does not become admissible to prove facts because the person who proposes to give it is a physician. And, if the man whom the physician examined refuses to confirm in the witness box what he said in the consulting room, then the physician’s opinion may have little or no value, for part of the basis of it has gone. Each case depends on its own facts.

In R v Qutami (2001) 127 A Crim R 369 (NSW CCA) Smart AJ delivering the leading judgment said (at 377 [59]): There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made to experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight, if any, given to those statements.

[5.2745]

EXPERT EVIDENCE

655

The expert in gave evidence of cultural matters. Yet statements to psychiatrists may need no confirmation. In Gordon v The Queen (1982) 41 ALR 64 (HC) Gibbs CJ, Mason, Murphy, Aicken and Brennan JJ, refusing special leave to appeal, said: In the case of psychiatric evidence, statements made to the psychiatrist may be themselves original evidence, in which case they need no confirmation in the witness box.

[5.2740] Opinion evidence confined Opinion evidence must be confined to matters which are the subject of the witness’s special study or knowledge: Transport Publishing Co v The Literature Board of Review (1956) 99 CLR 111 at 119; Wood v The Queen [2012] NSWCCA 21.

[5.2745] Expert evidence uncontradicted Expert evidence should not be rejected when it is uncontradicted, unless it is not in accordance with the remainder of the evidence: Hone v Western Australia (2007) 179 A Crim R 138 (WA CA): insanity in a murder case. Middleton v The Queen (2000) 114 A Crim R 258 (at 263–264 [14] – [23]) (WA CCA). R v Nielsen [1990] 2 Qd R 578; (1990) 47 A Crim R 269 (CCA) – the expert evidence seemed not to accord with the other evidence. It was found there was no diminished responsibility and the appeal was dismissed. R v Michaux [1984] 2 Qd R 159; (1984) 13 A Crim R 173 (CCA) – if the expert evidence is equivocal it need not be accepted (insanity of doctor on charges of sexual offences against female patients). R v Chester [1982] Qd R 252; (1981) 5 A Crim R 296 (CCA) – one psychiatrist gave evidence in a diminished responsibility case. On appeal, murder verdict reduced to manslaughter. Taylor v The Queen (1978) 45 FLR 343; 22 ALR 599 (FCA) – automatism in a break and enter case. R v Dick [1966] Qd R 301 (CCA).

Where experts differ R v Sodo (1975) 61 Cr App R 131.

An expert may rely on the works of others R v Abadom [1983] 1 WLR 126; [1983] 1 All ER 364; 76 Cr App R 48 at 130–131, 367–369, 50–53 (CA). Jeffrey v The Queen (1991) 60 A Crim R 384 at 387-390 (Tas CCA). PQ v Australian Red Cross Society [1992] 1 VR 19 at 34–35 (McGarvie J).

Voice R v McHardie & Danielson (1983) 2 NSWLR 733; 10 A Crim R 51 (NSW CCA).

Handwriting See Handwriting at [8.900].

656

ROSS ON CRIME

[5.2750]

Policemen as experts Driving R v Oakley (1980) 70 Cr App R 7 (CA); R v Murphy [1980] 1 QB 434; 2 All ER 325; 71 Cr App R 33 (CA).

Drugs Marchesano v The Queen (2000) 116 A Crim R 237 (WA CCA); Marinovich v The Queen (1990) 46 A Crim R 282 at 301 (WA CCA); Anderson v The Queen (1992) 60 SASR 90; 64 A Crim R 312 at 103, 324 (CCA); R v Morrison (2002) 136 A Crim R 222 at 229 [23] (SA CCA); R v Fazio (1997) 69 SASR 54; 93 A Crim R 522 (CCA). See also Drugs (Evidence of street value) at [4.5350].

[5.2750] Psychologist In R v Haidley & Alford (1984) VR 229; 10 A Crim R 1 (CCA) the evidence of the psychologist was excluded. The ruling was upheld on appeal. It was held: • the witness had no proper expertise; • the factual basis of his opinion was not verified; • he should not give evidence of the question which falls to be decided by the jury. See also R v Pinfold (1983) 76 Cr App R 271 (CA). A psychologist can give evidence that the accused did not have the capacity to make a confession: Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35 (HC).

[5.2755] Other opinion evidence sought to be led Facial and body mapping Facial mapping may be a field of specialised knowledge but not body mapping. Murdoch v The Queen (2007) 167 A Crim R 329 at [246] – [300] (NT CCA); R v Tang (2006) 65 NSWLR 681; 161 A Crim R 377 (CCA).

Forensic odontology Trial evidence of forensic odontology was held to be wrongly admitted in: R v Carroll (1985) 19 A Crim R 410 (Qld CCA); Lewis v The Queen (1987) 88 FLR 104; 29 A Crim R 267 (NT CCA). (Note that the FLR does not include the judgment of Maurice J.)

EMDR (Eye movement desensitising and reprocessing) evidence given after R v Jamal (1993) 69 A Crim R 544 (NSW, Mathews J); R v Tillott (1995) 38 NSWLR 1; 83 A Crim R 151 (NSW CCA). See also

[5.2760]

EXPERT EVIDENCE

657

EMDR at [5.900].

Evidence given by witness after hypnosis R v McFelin [1985] 2 NZLR 750; R v Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 (Hunt CJ); R v Haywood (1994) 73 A Crim R 41 (Tas, Wright J) and on appeal; R v Roughley, Haywood (1995) 78 A Crim R 160 (Tas CCA). See also Hypnosis at [8.2500].

Evidence of the capacity of an accused to form intent is not permitted R v Turner [1975] QB 834 [1975] 2 WLR 56; [1975] 1 All ER 70; 60 Cr App R 80 (CA). R v O’Callaghan [1976] VR 441 (CCA); R v Honner (1977) Tas SR 1 (Chambers J); R v Carn (1982) 5 A Crim R 466 (Vic CCA); R v Fowler (1985) 39 SASR 440; 17 A Crim R 16 (SA CCA).

Expert evidence shown after trial to be suspect R v Ward [1993] 1 WLR 619; [1993] 2 All ER 577; (1993) 96 Cr App R 1; R v McIlkenny [1992] 2 All ER 417; (1991) 93 Cr App R 287; R v Maguire [1992] QB 936; [1992] 2 All ER 443; (1992) 94 Cr App R 133;

[5.2760] The ultimate issue In R v Palmer [1981] 1 NSWLR 209; (1980) 1 A Crim R 458 (CCA) banks had been robbed and photographs of the robber were taken by security cameras. Persons not present at the crimes identified the person in the photographs as resembling the accused. Glass JA said (at 214; 464): The third ground argued was that the tender of such evidence violated a supposed rule that no opinion evidence, whether expert or non-expert, may be directed to an ultimate issue for determination by the jury. I question that there is any such rule in the terms which have been submitted to us. It is a commonplace experience in trials, both civil and criminal, before juries for evidence of opinion to be received from both experts and non-experts in relation to ultimate issues for jury determination. I need only say, so far as expert evidence is concerned, that this happens all the time with respect to scientific, medical and handwritten evidence and so far as concerns non-expert opinion, that this too, is receivable for the purposes of identification or proof of speed. The true rule, in my opinion, is that no evidence can be received upon any question, the answer to which involves the application of a legal standard. It is not possible, for example, to tender evidence that a defendant was negligent, that a deceased lacked testamentary capacity or that the accused was provoked. These are questions, the answers to which can only be given by the jury after the judge has instructed them upon the rule of law which they must apply.

In R v Fowler (1985) 39 SASR 440; 17 A Crim R 16 (CCA) Matheson J said (at 453; 27): Except in very rare cases, such as where insanity is pleaded, an expert can not be asked the very question which falls to be decided by the jury, a question which laymen can as well answer as a psychiatrist (see Cavenett v Chambers [1968] SASR 97 at 104-105; Samuels v Flavel [1970] SASR 256 at 261-262; R v Chard (1971) 56 Cr App R 268R v Darrington [1980] VR 353; (1979)

658

ROSS ON CRIME

[5.2765]

1 A Crim R 124; R v Carn (1982) 5 A Crim R 466; R v Haidle & Alfordy [1984] VR 229).

The ultimate issue rule does not apply in jurisdictions governed by the Uniform Evidence Acts; for a discussion, see Amaca Pty Ltd v King [2011] VSCA 447 at [113]. See also Smith v The Queen (2001) 206 CLR 650; 125 A Crim R 10; 181 ALR 354; [2001] HCA 50; R v Wright [1980] VR 593 at 609 (CCA).

[5.2765] Conflict in evidence Where there is conflict between the evidence of expert witnesses the jury must resolve that conflict: Hocking v Bell (1945) 71 CLR 430 at 440 per Dixon J (in dissent on other matters); Jemielita v The Queen (1995) 81 A Crim R 409 at 425ff (WA CCA). See also Blackie v Police [1966] NZLR 910 (CA); R v McEndoo (1980) 5 A Crim 52 (Qld CCA); R v Haidley & Alford [1984] VR 229; (1983) 10 A Crim R 1 at 235, 7–8 (CCA); R v Sender (1982) 44 ALR 139 at 143–144 (Tas, Everett J); Cameron v The Queen (1990) 2 WAR 1; 47 A Crim R 397 (CCA).

[5.2770] Test for admissibility In R v Bonython (1984) 38 SASR 45; 15 A Crim R 364 (CCA) King CJ said (at 46; 366): Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.

[5.2775] Aboriginal tracker In R v Harris (1997) 7 NTLR 1; 94 A Crim R 454 Bailey J ruled that an Aboriginal tracker was qualified by experience in tracking. But because the prosecution sought to tender a comparison with an inked footprint in which the witness had no experience, the evidence was excluded. See also Pat Lowe, Hunters and Trackers of the Australian Desert (Rosenberg Publishing, 2002).

[5.2780] Judge’s duties when opinion evidence is wrongly given In R v Anderson (2000) 1 VR 1; 111 A Crim R 19 (CA) Winneke P giving the leading judgment said (at 25; 44 [59]):

[5.2800]

EXPERT EVIDENCE

659

The trial judge has a continuing responsibility, particularly in a criminal trial where a witness has been allowed to express an opinion on a critical issue, to ensure that such opinion is not left for the jury’s consideration where it has become clear that the person who has expressed it has no qualification to do so, or has provided no factual or scientific foundation for the opinion expressed (see Bugg v Day (1949) 79 CLR 442 at 456-457 per Latham CJ; R v Inch (1990) 91 Cr App R 51 at 54; Marquard (1993) 85 CCC (3d) 193 at 225). Although it is, of course, true that it is for the judge to decide whether an expert’s opinion is admissible, and for the jury to decide whether the opinion is credible and what weight it should be given, it is also true that an opinion is only as good as the factual or scientific basis upon which it is expressed; and if no such basis is given or, if given, can be seen to be speculative or irrelevant to the opinion expressed, then the opinion will be worthless (R v Turner [1975] 1 QB 834 at 840(QB); (1974) 60 Cr App R 80 at 82 per Lawton LJ). In that sense the existence of such a foundation, or proper foundation, for the expression of opinion is a matter relevant to be taken into account on the question of admissibility (R v Bonython (1984) 38 SASR 45; 15 A Crim R 364 at 48; 367 per King CJ; R v J [No 2] (1994) 75 A Crim R 522 at 531-532, per Brooking J).

[5.2785] Extortion see Blackmail and Extortion at [2.2700].

[5.2790] Defence notice Some legislation requires the defence to give notice of intention to call expert evidence. Qld: Criminal Code s 590B; WA: Criminal Procedure Act 2004 s 562(4)(G); NSW: Criminal Procedure Act 1999 s 139(2); SA: Criminal Law Consolidation Act 1935 s 285BC.

[5.2795] Writing I Freckelton and H Selby, Expert Evidence in Criminal Law (LBC Information Services, 1999). See also Disclosure at [4.2800].

[5.2800] Uniform Evidence Acts Opinion evidence is governed in the UEA by ss 76 and 80 and the rules of admissibility are similar to that discussed at common law above, except that opinions relating to matters of knowledge are admissible and the ultimate issue rule does not apply (see s 80). There is some uncertainty whether the basis rule applies in the context of the UEA: Kyluk Pty Ltd v Chief Executive Offıce of Environment and Heritage (2013) 298 ALR 532; [2013] NSWCCA 114. Leading UEA opinion evidence cases are: R v Marsh [2005] NSWCCA 331 (meaning of opinion); Lithgow City Council v Jackson (2011) 244 CLR 352; 85 ALJR 1130; [2011] HCA 36 (meaning of opinion); R v Tang (2006) 65 NSWLR 681, 161 A Crim R 377; [2006] NSWCCA 167; Honeysett v The Queen [2014] HCA 29 (specialised knowledge); Godfrey v New South Wales [No 1] (2003) 25 NSWCCR 291; [2003] NSWSC 160 (expert qualifications); and

660

ROSS ON CRIME

[5.2900]

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588, 85 ALJR 694; [2011] HCA 21 (area of expertise).

EXTRADITION Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Constitution ................................................................................................................................. Speciality rules: s 42 .................................................................................................................. From Australia ............................................................................................................................ Magistrate’s function .................................................................................................................. Bail pending extradition ............................................................................................................. Earlier imprisonment .................................................................................................................. Function of Director of Public Prosecutions ............................................................................. Extradition from another country ............................................................................................... Indigence ..................................................................................................................................... Waiver ......................................................................................................................................... Illegal extradition ........................................................................................................................ Extradition from Australia .......................................................................................................... Between Australian States and Territories ................................................................................. Sentencing ...................................................................................................................................

[5.2900] [5.2905] [5.2910] [5.2915] [5.2920] [5.2925] [5.2930] [5.2935] [5.2940] [5.2945] [5.2950] [5.2955] [5.2957] [5.2960] [5.2965] [5.2970]

[5.2900] Meaning The word extradition comes from two Latin words: ex meaning from and traditio meaning a delivery of possession. The term itself means the delivery by one jurisdiction to another of a person whom the latter jurisdiction wants to prosecute for a crime committed there. The topic is complex. At an international level, the jurisdictions involve different countries. At a national Australian level, the jurisdictions are the different States and Territories. In R v Hamzy (2001) 53 NSWLR 726; 127 A Crim R 70 (NSW CCA) Barr J, with whom the other judges agreed, said (at 72 [8]–[9]): Extradition involves the partial surrender by one state in favour of another of an attribute of its sovereignty. It also involves a serious interference with the freedom of the person sought to be extradited. Partly because nation states are jealous of the sovereignty which they surrender by agreeing to extradition treaties and by enacting laws to give them effect and partly because of their concern to avoid abuse of the process of extradition, certain limitations and controls exist. One of those limitations is called the speciality rule. It provides that where a person is surrendered by a foreign State pursuant to an extradition agreement with that State, the person will not be triable or tried for any offence committed prior to the surrender other than any offence that may by proved by the facts on which the surrender is grounded, at least until that person has been restored to or has been given an opportunity of returning to that foreign State: Davies (1983) 76 Cr App R 120; B (1999) 198 CLR 111.

[5.2905] Legislation Cth: Extradition Act 1988. In addition, there are treaties between Australia and other countries. An example is: Treaty on Extradition between Australia and the United States of America 1974. Australia and the other country must be extradition countries under the Act. The country where the crime is alleged to have occurred will issue a warrant. A local magistrate will then issue a warrant for the arrest of the person. Generally, the other country will ask the Commonwealth Attorney-General for the extradition of the person. The nature of the offences will be set out, and the evidence in support. The Attorney-General will have these documents sent to the person.

[5.2920]

EXTRADITION

661

[5.2910] Constitution In Vasiljkovic v Commonwealth (2006) 227 CLR 614; 228 ALR 447; 80 ALJR 1399 the High Court held that Extradition Act 1988 is constitutionally proper.

[5.2915] Speciality rules: s 42 Generally The speciality rule means that where a person is extradited on certain charges, only those charges should be the subject of trial.

Legislation The proposition comes from Extradition Act 1988 s 42. That section provides: Speciality Where an extraditable person in relation to Australia is surrendered to Australia by a country (other than New Zealand), the person shall not, unless he or she has left, or has had the opportunity of leaving, Australia or, in a case where the person was surrendered to Australia for a limited period, has been returned to the country: (a) be detained or tried in Australia for any offence that is alleged to have been committed, or was committed, before the surrender of the person, other than: (i) any offence in respect of which the person was surrendered or any other offence (being an offence for which the penalty is the same or is a shorter maximum period of imprisonment or other deprivation of liberty) of which the person could be convicted on proof of the conduct constituting any such offence; or (ii) any other offence in respect of which the country consents to the person being so detained or tried, as the case may be; or (b) be detained in Australia for the purposes of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the surrender of the person to Australia, other than any other offence in respect of which the country that surrendered the person to Australia consents to the person being so detained and surrendered.

Case Mr Truong was extradited from England on conspiracies. He was tried and convicted in Victoria on murder and kidnapping. The speciality rule was not referred to at trial. He appealed citing speciality, and lost: R v Truong (2002) 5 VR 1 (CA). Ormiston JA, giving the leading judgment, referred extensively to the rule (at 27–38 [69] – [88]). In Truong v The Queen (2004) 223 CLR 122; 205 ALR 72 the court rejected the appeal ground based on the speciality rule. It could have been run at trial and wasn’t. Appeal dismissed. Gummow and Callinan said (at 164; 99 [111]): The circumstances of the surrender of the appellant to Australia were such as to attract the operation of s 42 of the Act. However, the right given by s 42 to an extradited person is exercisable by demurrer or special plea under the applicable procedures of the trial court. It is not open to plead the general issue, then, after conviction, to seek to impeach that conviction in the fashion sought to be done in this case.There remains the general powers of the trial court with respect to abuses of its processes, but no such case could be sustained here.

[5.2920] From Australia In Knauder v Moore (2002) 131 A Crim R 413 (FCA, Jacobson J) a local court in Berlin, Germany alleged that before his coming to Australia, Mr Knauder was suspected of having

662

ROSS ON CRIME

[5.2925]

committed 10 counts of fraud. After review, his Honour held that Mr Knauder was eligible for surrender to Germany on seven of the 10 counts.

[5.2925] Magistrate’s function A magistrate is the first to hear extradition proceedings from a foreign country. In DPP (Cth) v Kainhofer (1995) 185 CLR 528; 83 A Crim R 105; 132 ALR 483 the High Court held that a magistrate’s function was first to check that all the documents were in order. When satisfied of that, the extradition order was administrative. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282; 45 A Crim R 327; 91 ALR 341 (Full Court) the court said in a joint judgment that the ultimate issue to be decided by a magistrate in extradition proceedings is whether the person is “eligible for surrender”. The court then said (at 303–304; 361; 347–348): To determine that issue the magistrate will be required to determine the following constituent matters: 1. Is the offence one which qualifies as an extradition offence? (see s 5) 2. Is the requesting country an extradition country? (see s 5) 3. Are the documents produced to him [or her, that is, to the magistrate] as “supporting documents” under s 19(2)(a) within the definition of that expression in s 19(3) having regard to the following questions: (a) is there a duly authenticated warrant of the kind described by s 19(3)[(a)]; … (c) is there a duly authenticated statement in writing setting out the matters in s 19(3)(c)(i) [that is, a description of, and the penalty applicable in respect of, the offence]; (d) is there a duly authenticated statement in writing setting out the conduct constituting the offence (see s 19(3)(c)(ii)) [T]he magistrate may be required as well to determine whether the evidence before him [or her] would, if uncontroverted, provide sufficient grounds to put the person on trial or sufficient grounds for inquiry by a court.

Followed: Bennett v United Kingdom (2000) 115 A Crim R 346 at 347–348 [3] (FCA, Katz J). In Bennett v Government of the United Kingdom (2000) 115 A Crim R 346 (FCA, Katz J) his Honour held that the copy warrant was properly sealed and certified, and that for the purposes of the extradition proceedings the warrant and the attached petition were sufficient description of the alleged conduct to satisify s 19(c)(ii) of the Act. However, his Honour held that in the case of one of the two alleged offences, the evidence provided did not amount to a prima facie case. Order for extradition confirmed but declaration that the plaintiff was eligibile for surrender in relation to one of the two charges.

[5.2930] Bail pending extradition In United Mexican States v Cabal (2001) 209 CLR 165; 183 ALR 645 a three member High Court said that even if it were open to a court to grant bail, it should not be granted in this case. In United Mexican States v Cabal (2001) 209 CLR 165; 183 ALR 645 the same court came to the same conclusion.

[5.2935] Earlier imprisonment In Foster v Minister for Customs and Justice (2000) 200 CLR 442; 173 ALR 585 England sought extradition of Mr Foster. He had earlier been in prison there and escaped and

[5.2960]

EXTRADITION

663

returned by fake documents to Australia. England said that he had committed other offences there. Mr Foster said that he was at risk in prison in England because he had earlier implicated authorities there. He sought that there be no extradition. Application dismissed.

[5.2940] Function of Director of Public Prosecutions In Clarke v DPP (Cth) (1999) 149 FLR 361; 103 A Crim R 588 (ACT, Miles CJ) Mr Clarke had been extradited from America. He was charged with many counts of fraud. He was ill. The Legal Aid Commission had refused him legal aid for his committal. He was indigent and not entitled to social security. The Director of Public Prosecutions was paying him some basic living expenses. The denial of legal aid was creating great difficulties for him in defending the comittal. He sought a stay of the committal as an abuse of process. He relied on his constitutional right to legal representation in the United States, and argued that a United States Court would not have extradited him if aware that he would not be provided with legal representation to defend complex criminal proceedings in Australia. His Honour agreed that the America court may well have refused extradition if aware of those circumstances. Nevertheless, he dismissed the appplication, suggesting that another organ of government pay Mr Clarke’s subsistence and medical expenses.

[5.2945] Extradition from another country Request In Oates v Attorney-General (Cth) (2003) 214 CLR 496; 197 ALR 105 the court held in a joint judgment that a request made to Poland was proper. The court examined the topic.

Procedure In Bou-Simon v Attorney-General (2000) 96 FCR 325; 113 A Crim R 320 (FCA, Full Court) Mr Bou-Simon was charged with improper dealings in companies to his own advantage. He went to France. Australian warrants were served on him there. In court here, his advocates argued that misleading contact by the Australian prosecutors in the French extradition proceedings meant the prosecution should be stayed as an abuse of process. The court held that it is not appropriate for an Australian court to intervene in the conduct of a foreign extradition unless there were doubts about procedural fairness in the manner of conduct of the proceedings in the foreign country.

[5.2950] Indigence In Johnson v Attorney-General (Cth) (1999) 108 A Crim R 32 (FCA, O’Loughlin J) Mr Johnson, a Briton, was alleged to have committed cheating offences in South Australia. British courts ordered his extradition. In the meantime, his counsel in Australia sought a stay because of Mr Johnson’s indigence. Held: application refused. The application is better made before the Australian trial starts.

[5.2955] Waiver In R v Hamzy (2001) 53 NSWLR 726; 127 A Crim R 70 (NSW CCA) the court held that the accused had waived his right to an extradition hearing in USA.

[5.2957] Illegal extradition Illegal extradtion to Australia from another country, can result in a permanent stay: Moti v The Queen [2011] HCA 50

[5.2960] Extradition from Australia Notice: Extradition Act 1988 s 16(1) In Dutton v Republic of South Africa (1999) 92 FCR 575; 107 A Crim R 276 (FCA, Full Court) the Republic of South Africa sought extradition. A request was sent from South

664

ROSS ON CRIME

[5.2965]

Africa and on behalf of the Attorney-General a notice was sent to Mr Dutton. He challenged the validity and effectiveness of the notice. Held: application dismissed with costs. A notice under Extradition Act 1988 s 16(1) once issued cannot be withdrawn.

Diplomatic immunity In Von Arnim v Federal Republic of Germany (1999) 107 A Crim R 529 (FCA, Sundberg J) his Honour held that membership of World Health Organisation did not entitle the appellant to diplomatic immunity.

Appeal Appeal lies to the Federal Court, as we have seen. An appeal may also lie to a State Supreme Court. The Act allows an appeal (called a review) from a magistrate to a Judge of the Federal Court (s 21(1)). That review is by way of rehearing: Republic of South Africa v Dutton (1997) 77 FCR 128. The judge hearing the appeal acts judicially: Pasini v United Mexican States (2002) 209 CLR 246; 187 ALR 409. An appeal may also be available to a State Supreme Court: Brackenridge v New Zealand [2000] 1 Qd R 1; (1998) 103 A Crim R 545 (CA).

[5.2965] Between Australian States and Territories Legislation Cth: Service and Execution of Process Act 1992 applies. The ordinary procedure is this. One jurisdiction will issue a warrant. It will be served in the other jurisdiction. The matter may go to a magistrate. Whatever the result, the losing party may review the decision in the Supreme Court. Such a review is a rehearing: s 86.

Cases In Loveridge v Commissioner of Police (SA) (2004) 89 SASR 72; 146 A Crim R 84 (White J) a woman had escaped from a WA gaol in 1980. Various officers there said that the State did not want her back. In the result, a 1980 warrant was served on her in SA in 2004. On review, his Honour held that the warrant was valid, but that to remit her to WA would be an abuse of process. The circumstances were exceptional.

[5.2970] Sentencing In AB v The Queen (1999) 198 CLR 111; 165 ALR 298 the appellant was a Marist brother who had committed many sexual offences in Australia. He fled to USA and was said to have rehabilitated himself there. After he was extradited he revealed many more similar offences. He was sentenced and appealed. The High Court 3–2 remitted the matter for sentence in accordance with its judgment on the basis that the sentencing court had not taken into account the public interest in accused persons waiving extradition rights that might otherwise prevent them from being tried for offences under the speciality rule.

F FALSE IMPRISONMENT At common law ............................................................................................................................ Under the Codes ........................................................................................................................... The occasion of the restraint ........................................................................................................ Sentence .........................................................................................................................................

[6.100] [6.105] [6.110] [6.115]

[6.100] At common law The offence In New South Wales, Victoria and South Australia false imprisonment is an offence at common law. In R v Huynh (2006) 165 A Crim R 586 (Vic CA) Coldrey AJA, with whom the others agreed, referred to the analysis of the offence by Orminston J in R v Vollmer [1996] 1 VR 95 (CCA) at 175–188. Coldrey AJA then said (at 601 [83]): In essence, his Honour distilled from a myriad of authorities the proposition that false imprisonment was constituted by the intentional and unlawful restraint of the liberty of another person against that person’s will.

In R v Garrett (1988) 50 SASR 392; 40 A Crim R 213 (CCA) von Doussa J said (at 405; 225): False imprisonment is the intentional and unlawful total restraint of the liberty of another person against his will. The restraint need not be by physical barrier or actual physical force.

In R v Rahman (1985) 81 Cr App R 349 (CA Cr D) Lane LCJ said (at 353): False imprisonment consists in the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place. In other words it is unlawful detention which stops the victim moving away as he would wish to move. It hardly needs stating that a parent will very seldom be guilty of that offence in relation to his or her own child. The sort of restriction imposed upon children is usually well within the realms of reasonable parental discipline and is therefore not unlawful.

Intent In MacPherson v Brown (1975) 12 SASR 184 (FC) at 197 Bray CJ said: I would only say that, in my view, the mens rea necessary to constitute the crime of false imprisonment is the intention to deprive the victim of his liberty and the intention to arouse fear or violence or foresight of fear or violence is not relevant.

Followed: R v Vollmer [1996] 1 VR 95 (CCA) per Ormiston J (at 185–186).

666

ROSS ON CRIME

[6.105]

“Injuriously” In R v Vollmer [1996] 1 VR 95 (CCA) Ormiston J said (at 176): I have also concluded that the word “injuriously” customarily appearing in counts for false imprisonment adds nothing to the basic elements of that crime and does not require separate direction to the jury, either in this or any other trial.

[6.105] Under the Codes The offence under the Codes is deprivation of liberty.

Legislation Qld: Criminal Code s 355; WA: Criminal Code s 333; Tas: Criminal Code s 182(1) (part of the definition of assault); NT: Criminal Code s 196.

[6.110] The occasion of the restraint The occasion of the restraint may take different forms. There is no need for the body of the victim actually to be touched: Bird v Jones (1845) 7 QB 742; 115 ER 668; 68 RR 564; MacPherson v Brown (1975) 12 SASR 184 (FC) at 192 per Bray CJ. The threat of force to the victim or to another person or the threat of damage to valuable personal property is sufficient: R v Garrett (1988) 50 SASR 392; 40 A Crim R 213 (CCA) per von Doussa J (at 405; 225–226).

[6.115] Sentence Under the Codes the sentence is referred to in the section creating the offence. At common law, the sentence is at large. See also Common law at [3.3300]. Vic: Crimes Act 1958 s 320 (maximum 10 years imprisonment); DPP v Fernandez (2003) 137 A Crim R 524 (Vic CA): Two years imprisonment; R v Nguyen and Tran [1998] 4 VR 394; (1997) 99 A Crim R 151 (CA): Three years imprisonment. Appeal dismissed; R v Carr [1996] 1 VR 585; (1995) 84 A Crim R 409 (CA): Two years imprisonment. Prosecution appeal dismissed; R v Connell [1996] 1 VR 436; (1995) 83 A Crim R 249 (CA). One year’s imprisonment untouched on appeal; R v Dixon-Jenkins (1991) 55 A Crim R 308 (Vic CCA): Eight years imprisonment. Appeal dismissed. In each of the above cases the counts of false imprisonment were joined with more serious offences and the terms of imprisonment were concurrent or largely so.

[6.320]

FELONY-TORT RULE

667

FELONY-TORT RULE Definition ....................................................................................................................................... The use of the term survives ........................................................................................................ Rationale ........................................................................................................................................ England .......................................................................................................................................... New South Wales .......................................................................................................................... Victoria .......................................................................................................................................... South Australia .............................................................................................................................. Tasmania ........................................................................................................................................ Federal Court ................................................................................................................................ No discovery about a crime .........................................................................................................

[6.300] [6.305] [6.310] [6.315] [6.320] [6.325] [6.330] [6.335] [6.340] [6.345]

[6.300] Definition In Smith v Selwyn [1914] 3 KB 98; [1914-15] All ER Rep 229 Phillimore LJ said (at 105; 233): It is a well-established rule of law that a plaintiff against whom a felony has been alleged by the defendant cannot make that felony the basis of an action unless the defendant has been prosecuted or some good reason has been given why a prosecution has not taken place.

In Halabi v Westpac Banking Corp (1989) 17 NSWLR 26; 39 A Crim R 194 (CA), Kirby P said (at 27; 195): The felony-tort rule, in its widest expression, is claimed by the appellant to entitle a party in civil proceedings, founded upon a cause of action which involves the proof of facts constituting a felony, to a stay until that felony is prosecuted to conclusion in the criminal courts or a reasonable excuse has been shown for the want of such prosecution.

[6.305] The use of the term survives The division of offences into felonies and misdemeanours has been abolished everywhere in Australia except New South Wales (Crimes Act 1900 (NSW) ss 9, 10). The term is still used despite the anachronism. The rule no longer applies simply to felonies: PT Garuda Indonesia Pty Ltd v Grellman (1994) 48 FCR 252; 120 ALR 641 (Bkcy Div, Lockhart J) (at 265; 654).

[6.310] Rationale In Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635, Deane J said (at 544–545; 661): The reason for the rule was said to be that a person injured by felony should be required “to prosecute before he can sue” on the basis that public policy required assistance in the enforcement of the criminal law. Examples of statutory enticement to initiate criminal proceedings range from provisions entitling an informer to seek and keep a pecuniary penalty to provisions enabling a criminal court or other tribunal to award compensation to the victim of a crime.

[6.315] England The rule still applies in England: Jefferson Ltd v Byetcha [1979] 1 WLR 898; [1979] 2 All ER 1108 at 905, 1113 (CA).

[6.320] New South Wales The rule is obsolete. What now applies is a general discretion in a trial judge to prevent unfairness in concurrent civil and criminal proceedings: Halabi v Westpac Banking Corp (1989) 17 NSWLR 26; 39 A Crim R 194.

668

ROSS ON CRIME

[6.325]

In NSW Crime Commission v Kelly [2003] NSWCA 245 (9 September 2003) (NSW CA) Sheller JA with whom the others agreed said (at [36]): It has been authoritatively decided in this court that the felony-tort rule, which entitled a party in civil proceedings, founded upon a cause of action that involved facts constituting a felony, to obtain a stay of the proceedings until the felony was prosecuted, has been abandoned in this country; see Griffın v Sogelease Australia Ltd [2002] NSWCA 421. To quote from the decision of Wootten J in McMahon v Gould (1982) 6 ACLR 202 at 207: The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding.

(Note: this paragraph is omitted from the report of the case (2003) 58 NSWLR 71.)

[6.325] Victoria The rule still applies: Wonderheat v Bishop [1960] VR 489 (Pape J); Hatherley & Horsfall v Eastern Star [1965] VR 182 (Sholl J). However, the rule is subject to serious restrictions: Philippine Airlines v Goldair [1990] VR 385 (Young CJ). See also Supreme Court Act 1986 s 41.

[6.330] South Australia In FF Seeley Nominees v El Ar Initiations (1990) 96 ALR 468 (SA SC) Zelling J said (at 473): The rule has been widened to become a more general discretion by the decision of the New South Wales Court of Appeal in Halabi v Westpac Banking Corp (1989) 17 NSWLR 26: see the judgments of Kirby P at 36-8 and of McHugh JA (as he then was) at 56-69. Sitting as a single judge, I am unable to follow the robust leadership of Kirby P at 38-9 and declare the rule obsolete. As far as I am concerned, the rule still binds me.

[6.335] Tasmania Note the limitations on the rule by the Criminal Code Act 1924 s 9(3).

[6.340] Federal Court Notwithstanding Kirk v Commissioner of Australian Federal Police (1988) 19 FCR 530, the rule probably no longer applies: Rural Export and Trading (WA) Pty Ltd v Hahnheuser (2004) 148 A Crim R 179 (FCA, Gray J).

[6.345] No discovery about a crime Discovery in civil proceedings will not be allowed where to do so would provide evidence of a criminal act. In Reid v Howard (1995) 184 CLR 1; 131 ALR 609; 83 A Crim R 288 a chartered accountant was alleged to have used his client’s funds as his own. Police investigated but did not lay charges probably because of lack of particulars. Clients took civil action and the

[6.505]

FEMALE GENITAL MUTILATION

669

NSW Equity Division ordered disclosure. The High Court set that order aside. The felony-tort rule was not referred to in terms. It was held that the court below had no power to make the orders. The majority said (at 14; 618; 297–298): There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application – a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 346 protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal” (Lamb v Munster (1882) 10 QBD 110 at 111). For the same reason, there can be no exception in civil proceedings, whether generally or of one kind or another. Moreover, it would be anomalous to allow that a person could refuse to answer questions in criminal proceedings or before investigative bodies where the privilege has not been abrogated if that person could be compelled to answer interrogatories or otherwise make disclosure with respect to the same matter in civil proceedings.

See also Discovery at [4.3000]; and Privilege at [16.5300].

FEMALE GENITAL MUTILATION The offence of female genital mutilation ..................................................................................... [6.500] Defences: gender reassignment and surgery ................................................................................ [6.505]

[6.500] The offence of female genital mutilation Female genital mutilation is a statutory offence. Consent is no defence.

Legislation Qld: Criminal Code s 323A; WA: Criminal Code s 306; Tas: Criminal Code s 178A; NT: Criminal Code ss 186A–186D; NSW: Crimes Act 1900 s 45; Vic: Crimes Act 1958 ss 15, 32–34; SA: Criminal Law Consolidation Act 1935 ss 33–33B; ACT: Crimes Act 1900 ss 73–75; NZ: Crimes Act 1961 ss 204A and 204B.

[6.505] Defences: gender reassignment and surgery Gender reassignment and genuine surgery are defences. More properly expressed they are exceptions to what constitutes the offence.

Legislation Qld: Criminal Code s 323A(3)(e) and (f); WA: Criminal Code s 306(1)(d); Tas: Criminal Code s 178C; NT: Criminal Code s 186B(3);

670

ROSS ON CRIME

[6.700]

NSW: Crimes Act 1900 s 45(3); Vic: Crimes Act 1958 s 34A; SA: Sexual Reassignment Act 1988; ACT: Crimes Act 1900 ss 76 and 77; NZ: Crimes Act 1961 s 204A(3)–(5).

FINGERPRINTS Fingerprints ................................................................................................................................... Raising a latent fingerprint ........................................................................................................... Points of identity or points of similarity ...................................................................................... Fingerprints can be forged ............................................................................................................ Fingerprints can be lifted .............................................................................................................. Right of police to obtain fingerprints from a suspect ................................................................. Legislation: taking fingerprints from a suspect ........................................................................... Admissibility ................................................................................................................................. Expert evidence ............................................................................................................................. Glossary of fingerprint terms ........................................................................................................ Risks in explaining fingerprints .................................................................................................... Conviction on fingerprint evidence alone .................................................................................... Directions to the jury ....................................................................................................................

[6.700] [6.705] [6.710] [6.715] [6.720] [6.725] [6.730] [6.735] [6.740] [6.745] [6.750] [6.755] [6.760]

[6.700] Fingerprints A fingerprint is a mark made on a reasonably firm surface by the ridges of skin at the tips of a finger or thumb or both. A fingerprint matched to the accused can be circumstantial evidence. In Parker v The King (1912) 14 CLR 681 Griffiths CJ said (at 683): A finger print is therefore in reality an unforgeable signature.

[6.705] Raising a latent fingerprint The expression used by police is “dusting for prints”. At a burglary the expert will put fingerprint dust on the expected points of entry and departure. Best points are to be found on smooth surfaces such as glass or metal. Prints from porous surfaces such as paper can be treated with ninhydrin. The paper is put in a tube and in effect superglue vapour is directed onto it.

[6.710] Points of identity or points of similarity Police fingerprint experts say they are satisfied the identity is established if eight ridge characteristics match the sample. They also say they will not give evidence of opinion unless there are twelve matches on one finger or say eight on each of two fingers. In R v Buisson [1990] 2 NZLR 542 (CA, five member court) the court said (at 548): Of course any opinion that a fingerprint is enough by itself to establish identity should still be based on a sufficient number of points to be to all intents conclusive. But, as the evidence in this case indicated, to achieve that standard they need not amount to as many as 12 in every instance. If the prosecution in any case were to contend that less than 12 points should be accepted as conclusive, it would be desirable for the Judge to warn the jury that the 12 point standard has normally been followed in New Zealand and that they should be cautious before convicting on fingerprint evidence alone if that standard has not been met.

In England 16 points are required before an expert will give evidence of identity.

[6.735]

FINGERPRINTS

671

See also D Campbell, “Fingerprints: A Review” [1985] Crim LR 195.

[6.715] Fingerprints can be forged In Mickelberg v The Queen (1989) 167 CLR 259; 86 ALR 321; 43 A Crim R 182 Toohey and Gaudron JJ reviewing the evidence, said (at 299–300; 348; 209): After his conviction Raymond learned that fingerprints could be fabricated by applying a latex or rubber mould moistened by human sweat to a surface. He obtained the opinions of a number of experts and their opinions were advanced in the appeal as fresh evidence. Their evidence and the evidence of experts called by the Crown established that a fingerprint could be fabricated in this manner.

[6.720] Fingerprints can be lifted Fingerprint experts will admit that a fingerprint can be lifted from one surface and placed on another.

[6.725] Right of police to obtain fingerprints from a suspect In Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237 Gibbs CJ said (at 292; 244): The privilege prohibits the compulsion of the witness to give testimony, but it does not prohibit the giving of evidence against the will of the witness, as to the condition of his body. For example, the witness may be required to provide a fingerprint, or to show his face or some other part of his body so that he might be identified, or to speak or to write so that the jury or another witness may hear his voice or compare his handwriting.

In Grollo v Bates (1994) 53 FCR 218; 125 ALR 492; 75 A Crim R 271 Einfeld J said, after quoting Sorby (at 249; 520; 300): For its part, the United States Supreme Court has also held, in United States v Wade 388 US 218 (1967) and Schmerber v California 384 US 757 (1966), that the freedom from self-incrimination does not apply to the giving and taking of fingerprints, even after arrest. See also Wigmore on Evidence (1961), Vol VIII, p 378: Cross on Evidence (4th ed, 1991), at [25095].

[6.730] Legislation: taking fingerprints from a suspect Cth: Crimes Act 1914 s 3ZJ; Qld: Police Powers and Responsibilities Act 2000 s 294ff and Sch 4; WA: Police Act 1892 s 50AA; Tas: Criminal Law (Detention and Interrogation) Act 1995 s 4(4)(l); NT: Police Administration Act s 146; Vic: Crimes Act 1958 s 464N; SA: Criminal Law (Forensic Procedures) Act 1998 s 30; Summary Offences Act 1953 s 81(4)(a); ACT: Crimes Act 1900 s 230; NZ: Police Act 1958 s 57.

[6.735] Admissibility In R v Carr [1972] 1 NSWLR 608 (CCA) the court said in a joint judgment (at 611–612): In the absence of any evidence of any activity of an oppressive or deceitful kind in the obtaining of these fingerprints, we can discern no reason for a judge in the exercise of his discretion refusing to

672

ROSS ON CRIME

[6.740]

admit them. As is pointed out in Callis v Gunn [1964] 1 QB 495; (1963) 48 Cr App R 36, a much stronger rule applies in the case of statements made in answer to the police and to alleged confessions. There the onus is on the Crown to negative threats or inducements. They are in a “water-tight compartment”, whether it be regarded as an exception to the general rule or not. A fingerprint is as much a part of a person’s physical characteristics as the nose on his face, a missing finger, a mole on his chin or a scar on his thumb. A witness may tell of these identifying characteristics. It is true that in the case of a fingerprint the whorls and loops on the skin will not normally be directly visible. They will need to be printed on a sheet of paper and a magnifying glass will need to be used before they can be read. None the less wherever a man goes he leaves fingerprints behind him, on his plate, on spoons, forks and cups, in fact whenever he touches a medium which is capable of absorbing them. There is nothing private about fingerprints. As to whether it would be wrong to obtain a sample of an accused person’s fingerprints secretly by handing him a glass of water and therefore not admissible to give evidence of prints so taken, we express no opinion. Much would depend on the circumstances, but we do not think there is any rule that a person cannot by giving his fingerprints be made to incriminate himself. The rule “nemo tenetur se ipsum accusare” applies only to answers given by the accused to questions asked of him: R v Owen [1951] VLR 393 per Sholl J at 398; R v Kempley (1944) 44 SR (NSW) 416.

Approved: Carr v The Queen (1973) 127 CLR 662. However in DPPv Morrison [1993] 1 VR 573 Ashley J upheld a magistrate’s refusal to allow evidence of the taking of fingerprints from the defendant. The legislation had not been complied with.

[6.740] Expert evidence In R v Lawless [1974] VR 398 (CCA) the court said in a joint judgment (at 423): It is a matter for expertise not possessed by the ordinary run of mankind to identify characteristics of fingerprints and their patterns in each of two prints and make a comparison and form a conclusion as to whether they are identical or not and the jury could not be invited or allowed to act as experts: see R v Tilley, [1961] 1 WLR 1309; [1961] 3 All ER 406; R v Harden [1963] 1 QB 8; [1962] 1 All ER 286; R v Weise [1969] VR 953, at 972. That is not to say of course that the jury could be prevented from examining the exhibits for the purpose of determining whether they were satisfied to the necessary degree by the evidence of the witness. The determination was for them, but the provision of evidence was for the experts.

Followed: R v O’Callaghan [1976] VR 676 (CCA); R v Buisson [1990] 2 NZLR 542 at 549 (CA, five member court).

[6.745] Glossary of fingerprint terms (From JH Phillips and JK Bowen, Forensic Science and the Expert Witness, Law Book Co (1985) pp 64-65): Bifurcation: A forking or dividing of one ridge into two or more ridges. Characteristic: A feature of a friction ridge, for example, a bifurcation. a convergence, an interruption, or ending of a friction ridge. The term includes short ridges, a mere dot, and subsidiary ridges. The terms “points”, “minutiae”, “Galton details”. and “ridge details” are synonymous terms. Classification: The code that is used to file fingerprints into a system in order that one may retrieve the same fingerprints at a later date by use of the same code or classification (same classification not necessarily the same print). Convergence: A joining of two or more ridges which have been running parallel or nearly parallel.

[6.750]

FINGERPRINTS

673

Core: The centre of a fingerprint. Delta point: That portion of a fingerprint where ridges have been flowing side by side and then separated like the mouth of a river. Difference of appearance: The pliability of the papillary ridges, combined with pressure applied when depositing an impression, or foreign matter on the papillary ridges or receiving surface, may give to a fingerprint impression a difference of appearance. An identification is not affected by a difference of appearance from such causes. Dissimilarity: The term applied to a clear, well defined characteristic occurring in one of two impressions being compared and not in the other. Divergence: A spreading apart of two ridges which have been running parallel or nearly parallel. Fingerprint: An impression of the intricate design of friction ridge skin found on the palmar or inner surface of a person’s finger or thumb. The same type of friction skin, with tiny ridge configurations can be found on the whole palmar surface of the hands and on the soles of the feet in humans and higher primates. There is no physical, physiological or biological difference between the friction skin on the fingers and that on the palms of the hands and the soles of the feet. Friction skin: The ridged skin on the inner surface of the palms, fingers, and on the soles of the feet; characterised by the absence of hair and the presence of only eccrine glands. Identification: When it is established upon a comparison of two fingerprints that there is a sufficient number of ridge characteristics that match. Inked impression: An area of friction ridge skin recorded in fingerprint ink on an official fingerprint form. Latent: A latent fingerprint is an invisible or barely visible impression of the pattern of friction ridge skin left on a surface by traces of the perspiration exuded from the pores that lie along the ridges. Ridge pattern: The contour patterns formed by the flowing ridges of the friction skin appearing on the inner surfaces of the fingers and thumbs. Volar surfaces: The papillary friction ridge surfaces of the fingers, palms and soles of the feet.

[6.750] Risks in explaining fingerprints An accused’s fingerprints on the house of another will often call for an explanation. If the explanation “casts imputations on the character” of a prosecution witness (see Character at [3.1300]) an accused in his or her evidence may risk being asked about his or her own character. That very thing happened in at least two cases. In R v Bishop [1975] QB 274; [1974] 2 All ER 1206; (1974) 59 Cr App R 246 the accused explained the fingerprints by saying that the houseowner was his homosexual lover whom he often visited. When the accused was cross-examined the court allowed prior dishonesty convictions to be put to him. Appeal dismissed. In Phillips v The Queen (1985) 159 CLR 45; 62 ALR 479 the charge was rape. The accused’s explanation for his fingerprints was that he bought cannabis for the complainant at her request and afterwards checked to see if she were home. Again, the court allowed prior dishonesty convictions to be put in the accused’s cross-examination. Appeal dismissed.

674

ROSS ON CRIME

[6.755]

[6.755] Conviction on fingerprint evidence alone Convictions have been upheld where there is no evidence of identity except the fingerprint. R v Castleton (1909) 3 Cr App R 74; Parker v The King (1912) 14 CLR 681. See also Circumstantial evidence at [3.2000]; and Identification at [9.100].

[6.760] Directions to the jury In Maniaci v The Queen (2000) 114 A Crim R 308 (WA CCA) the trial judge had said: I will now speak to you about the fingerprint evidence. You will appreciate that in the detection of crime, fingerprints can provide strong circumstantial evidence. Courts take judicial notice of the fact that no two people have identical fingerprints. If you are satisfied that an accused person’s fingerprints have been found at an incriminating location or on an incriminating object, then that calls for some explanation as to how the fingerprints got there.

The appeal court took into account careful directions about onus and standard of proof, on whether the expert evidence of prints was to be accepted and that the accused did not need to prove anything. This ground of appeal was dismissed (at 315–316 [23] – [28]).

FITNESS Fitness for trial .............................................................................................................................. Legislation and cases .................................................................................................................... Incapacity during trial ................................................................................................................... Detention and sentence ................................................................................................................. Restriction on publication .............................................................................................................

[6.900] [6.905] [6.910] [6.915] [6.920]

[6.900] Fitness for trial A person charged with a criminal offence may not be mentally fit to stand trial. Statutes set out the tests of fitness. The terms of the statutes vary between the different jurisdictions.

[6.905] Legislation and cases Legislation Cth: Crimes Act 1914 s 20Bff; Criminal Code Act 1995 s 7.3; Qld: Mental Health Act 2000; WA: Criminal Code s 27; Criminal Law (Mentally Impaired Accused) Act 1996; Tas: Criminal Justice (Mental Impairment) Act 1999; NT: Criminal Code s 43Aff; NSW: Mental Health (Criminal Procedure) Act 1990; Vic: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; SA: Criminal Law Consolidation Act 1935 s 269Aff; ACT: Crimes Act 1900 ss 300ff and 430ff; Criminal Code 2002 ss 27–29; NZ: Criminal Procedure (Mentally Impaired Persons) Act 2003; Can: Criminal Code s 673.

[6.1100]

FITNESS TO PLEAD

675

Cases R v Larizza (2003) 142 A Crim R 249 (SA SC, Sulan J); Heffernan v The Queen (2005) 194 FLR 370 (NT CCA); Smith v The Queen (2007) 169 A Crim R 265 (NSW CCA); R v Minani (2005) 63 NSWLR 490; 154 A Crim R 349 (CCA); R v Demers [2005] 2 SCR 289 (SCA). A physical impairment does not fit in the legislation: Clarkson v The Queen (2007) 209 FLR 387; 171 A Crim R 1 (NSW CCA) at [107] – [184].

[6.910] Incapacity during trial R v Tier (2001) 121 A Crim R 509 (NSW CCA). R v Mailes (2001) 53 NSWLR 251; 126 A Crim R 20 (CCA). R v Sexton (2000) 77 SASR 405; 157 FLR 173; 116 A Crim R 173 (CCA).

[6.915] Detention and sentence R v DMA (2001) 126 A Crim R 264 (NSW, Sperling J). R v Mitchell (1999) 108 A Crim R 85 (NSW CCA).

[6.920] Restriction on publication Advertiser Newspapers v V (2000) 117 A Crim R 141 (SA CCA).

FITNESS TO PLEAD Definition ..................................................................................................................................... Legislation and cases .................................................................................................................. The oath of the jury (in Victoria) ............................................................................................... Onus of proof .............................................................................................................................. Deaf mute .................................................................................................................................... Procedure after unfitness finding ................................................................................................ Further procedures ...................................................................................................................... On appeal ....................................................................................................................................

[6.1100] [6.1105] [6.1110] [6.1115] [6.1120] [6.1125] [6.1130] [6.1135]

[6.1100] Definition In Kesavarajah v The Queen (1994) 181 CLR 230; 74 A Crim R 100; 123 ALR 463 Mason CJ, Toohey and Gaudron JJ held (at 245; 474; 110): In R v Presser, Smith J elaborated the minimum standards with which an accused must comply before he or she can be tried without unfairness or injustice (R v Presser [1958] VR 45 at 48). Those standards, which are based on the well-known explanation given by Alderson B to the jury in R v Pritchard (1836) 7 Car & P 303 at 304; 173 ER 135), require the ability (1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.

676

ROSS ON CRIME

[6.1105]

It does not mean that the accused is required to have sufficient capacity to make an able defence: Kesavarajah v The Queen (1994) 181 CLR 230; 74 A Crim R 100; 123 ALR 463 at 245, 473, 110; Ngatayi v The Queen (1980) 147 CLR 1; 30 ALR 27 at 8; 34; R v Richards (1994) 64 SASR 42; 77 A Crim R 1 (Mullighan J).

[6.1105] Legislation and cases Legislation Cth: Crimes Act 1914 ss 20B–20BH; Qld: Criminal Law (Mentally Impaired Defendants) Act 1996; Tas: Criminal Justice (Mental Impairment) Act 1999; NT: Criminal Code s 43Aff; NSW: Mental Health (Criminal Procedure) Act 1990; Vic: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; SA: Criminal Law Consolidation Act 1935 ss 269H–269ZB; ACT: Crimes Act 1900 s 311ff; Mental Health (Treatment and Care) Act 1994 s 68; NZ: Criminal Procedure (Mentally Impaired Persons) Act 2003.

Cases R v Bradley (No 1) (1986) 40 NTR 6; 85 FLR 102; 21 A Crim R 419 (Asche J). R v Bradley (No 2) (1986) 85 FLR 111 (Asche J). R v P (1991) 1 NTLR 157; 57 A Crim R 211 (Nader J). In New South Wales it is decided by judge and jury: Public Guardian v Guardianship Board (No 11 of 1997) (1997) 42 NSWLR 201; 92 A Crim R 591 (Hodgson J), but see R v Zvonaric (2001) 54 NSWLR 1; 127 A Crim R 9 (CCA) for hearing by judge alone. In Victoria it is decided by the jury: R v Khallouf [1981] VR 360 (CCA). In South Australia it is decided by jury or judge alone: Question of Law Reserved (No 1 of 1997) (1997) 70 SASR 251; 98 A Crim R 283 (FC). ACT: see R v Ardler (2003) 175 FLR 272; 139 A Crim R 446 (ACT, Crispin J). Effect: Jabanardi v The Queen (1983) 22 NTR 1 (Nader J); R v Jabanardi (1983) 77 FLR 333; 50 ALR 147 (FCA).

[6.1110] The oath of the jury (in Victoria) In R v Presser [1958] VR 45 Smith J had the following oath administered to the jury. You and each of you swear by Almighty God that you will diligently inquire and true presentment make for and on behalf of our sovereign lady The Queen whether the accused Edward John Presser who is charged with the murder of Leslie Ernest Oliver is or is not insane within the meaning of section 426 of the Crimes Act 1928 so that he cannot be tried upon that charge.

[6.1125]

FITNESS TO PLEAD

677

[6.1115] Onus of proof The onus of proof is on the party raising the issue. Prosecution proof is beyond a reasonable doubt. Defence proof is balance of probabilities: R v Donovan [1990] WAR 112; (1989) 39 A Crim R 150 (CCA); R v P (1991) 1 NTLR 157; 57 A Crim R 211 (NT Nader J). In R v Vernell [1953] VLR 590 Lowe ACJ ruled that where it is alleged on behalf of the accused that he is unfit to plead, the onus of proof in the preliminary trial of such issue lies upon the accused. Lowe ACJ ruled that counsel for the accused open his case to the jury and “then the proceedings will follow the ordinary course”. In R v Presser [1958] VR 45 Smith J held (at 50): Upon the authorities, it seems to me that my proper course is to treat this inquiry as one which does not involve any issue joined between the parties, and one in which, notwithstanding the presumption of sanity, I should not regard the accused as bearing the onus of an issue, or require him to begin. The Crown here, I think, if one looks at the substance of the matter, is the moving party. The Crown wants this trial to proceed. The Crown wants a finding that he is fit to be tried; and I think the appropriate thing is for the Crown to begin. The defence attitude in relation to the matter is, in substance, a negative one. The defence is not asking the court for an inquiry. It is not denying the Crown contention as to fitness. And it has not said specifically that it asks for any particular form of answer to this inquiry. I think that is all that I need to say on the question of who should begin. You may proceed, Mr Prosecutor.

Note however that the defence did not contend that Mr Presser was unfit to plead. In R v Forrester (1982) 31 SASR 312; 7 A Crim R 167 the accused had once been found unfit to plead. Where it was sought to have the fitness issue the subject of a subsequent hearing, Mitchell J ruled (at 314; 169): But even if an accused person is one to whom s 49(3) of the Mental Health Act 2000 applies, I am of the opinion that, except in the cases of agreement by the parties that the accused is fit to plead and wishes to plead, it is necessary for a jury to be empanelled to decide, after hearing evidence, whether the accused’s condition has improved to the extent that he is fit to plead. A jury having once determined that the accused is unfit to plead, it seems to me that the onus of proving that he is now fit to plead should be on him who asserts it. If the Crown makes the assertion then the proof should be beyond reasonable doubt; if the accused claims that he is fit to plead the onus of proving it should be upon the balance of probabilities.

[6.1120] Deaf mute In Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385 the High Court indicated that in the Northern Territory a deaf mute with no ability to communicate could not legally be the subject of committal. However “the issue of the appellant’s fitness to plead could then be determined under the provisions of s 357 of the Criminal Code” (at [34]). In R v Abdulla (2005) 93 SASR 208 (CCA) the appellant was deaf. Like Roland Ebatarinja he could not communicate in speech, in writing or by sign. The court held that there was impairment to his mental processes under the Criminal Law Consolidation Act 1935 (SA) s 269H. The section did not displace the continuing operation of the common law. Mr Abdulla could not be tried.

[6.1125] Procedure after unfitness finding The procedure to be adopted after accused has once been found unfit to plead was discussed in R v Forrester (1982) 31 SASR 312; 7 A Crim R 167. Mitchell J held (at 314–315; 170):

678

ROSS ON CRIME

[6.1130]

The possible consequences of a decision that the certificate of the Director under s 49 of the Mental Health Act 2000 is sufficient to enable a person to be tried, after a jury has declared him unfit to be tried, in the absence of his assent to such a course, have only to be contemplated in order to make it clear that that could not be the effect of s 49. If that were the position and the Director did not believe that an accused was insane for the purposes of s 293(1) of the Criminal Law Consolidation Act 1935, notwithstanding evidence to that effect which had been accepted by a jury empanelled to try the question of insanity, he could overrule the decision of the jury, merely by giving the certificate provided for in s 49 of the Mental Health Act 2000 . It is clear that this can not be so. There appears to be little authority on this point but such as there is fortifies me in the opinion which I have expressed. In Rivett (1950) 34 Cr App R 87, at p 91, the Court of Criminal Appeal said that, there having been no suggestion of a change in the prisoner’s mental condition after he had been found unfit to plead by a jury empanelled for that purpose, the issue should not have been reopened by empanelling another jury seven days later. In Khallouf [1981] VR 360 the Court of Criminal Appeal held that, an accused person having been once found unfit to plead, the trial judge should not accept a finding of guilty in a trial held subsequently to the verdict of the first jury without submitting to the second jury the issue whether the accused was fit to be tried.

In England the procedure developed under the Criminal Procedure (Insanity) Act 1904 is as follows. If the defence contends that the accused is under such disability as to bar his or her trial then the defence has the onus of proof, and the standard is balance of probabilities: R v Podola [1960] 1 QB 325; [1959] 3 All ER 418; 43 Cr App R 220. Where the prosecution raised the question of fitness to plead the onus of proof is on the prosecution and the standard is beyond a reasonable doubt: R v Robertson [1968] 1 WLR 1767; [1968] 3 All ER 557; (1968) 52 Cr App R 690. Where no facilities exist for detaining an accused unfit to plead, the court has wide powers to order detention: Jabanardi v The Queen (1983) 22 NTR 1 (Nader J); R v Jabanardi (1983) 77 FLR 333; 50 ALR 147 (FCA).

[6.1130] Further procedures In the Northern Territory the accused should not be asked to plead before the fitness question is decided: R v P (1991) 1 NTLR 157; 57 A Crim R 211 (NT, Nader J).

[6.1135] On appeal Where at trial there has been no issue of the accused’s fitness to plead, an appeal court will generally not entertain such a ground: Eastman v The Queen (2000) 203 CLR 1; 172 ALR 39. But where the issue of fitness has been raised, an appeal court will consider the ground: R v Khallouf [1981] VR 360 (CCA); Kesavarajah v The Queen (1994) 181 CLR 230; 74 A Crim R 100; 123 ALR 463; R v Sexton (2000) 77 SASR 405; 157 FLR 173; 116 A Crim R 173 (CCA). See also S Hayes & R Hayes, Simply Criminal (Law Book Co, 1984).

[6.1315]

FLIGHT

679

FLIGHT Flight ........................................................................................................................................... What is not flight ........................................................................................................................ Consciousness of guilt ................................................................................................................ Accused’s state of mind ............................................................................................................. Flight during the trial .................................................................................................................. Alternative explanations ............................................................................................................. Possible direction based on Edwards .........................................................................................

[6.1300] [6.1305] [6.1310] [6.1315] [6.1320] [6.1325] [6.1330]

[6.1300] Flight Flight is the term often used to describe the absconding of an accused to avoid arrest or to avoid going to court. Evidence of flight is capable of showing consciousness of guilt and of being corroboration.

[6.1305] What is not flight In R v Adam (1999) 106 A Crim R 510 (NSW CCA) the court said in a joint judgment (at 523 [62]): The evidence relied on by the Crown as being evidence of flight, that the appellant was observed walking away from the car park with his brother “at a normal pace”, being with his brother at the service station and walking back to the car park and moving his car a short distance within the car park was, in our opinion, so deficient in establishing that there was any “flight” at all or that the reason for any flight was consciousness of his own guilt, and not consciousness of his brother’s guilt, that it should not have been left to the jury as evidence of consciousness of guilt.

[6.1310] Consciousness of guilt On consciousness of guilt, in R v Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332 (CCA) Shepherdson J said (at 579; 338–339): [W]hen there is evidence of flight before a jury whether there be one or more than one reason advanced for that flight, the jury should be told that it is for them to decide on the whole of the evidence relevant to the charge in which evidence of flight has been admitted what inference is to be drawn from the accused person’s flight but if at the end of the day they decide to infer a consciousness of guilt in the accused person for the offence alleged, they must be satisfied beyond reasonable doubt of such an inference.

Followed: R v Power (1996) 87 A Crim R 407 at 409 (SA CCA); R v Festa (2000) 111 A Crim R 60 at 66 [14] (Qld CA). Other cases Quinlan v The Queen (2006) 164 A Crim R 106 at 111–118 [7] – [24] (NSW CCA); R v Dat Quoc Ho (2002) 130 A Crim R 545 at 554–562 [42] – [64] (NSW CCA). Allami v Western Australia [2013] WASCA 230.

[6.1315] Accused’s state of mind In R v Nguyen (2001) 118 A Crim R 479 (CA) Winneke P said (at 489 [20]): The probative strength of post-offence conduct, such as concealment of weapon or flight, with or without “covering lies”, will depend upon many factors including the circumstances in which the conduct occurred and the issue in proof of which the evidence is tendered. If it is open to be used by the jury for the purpose of drawing an inference as to the state of the accused’s mind at the

680

ROSS ON CRIME

[6.1320]

relevant time, the conduct will have to be assessed in the light of the probabilities. But, because such evidence is capable of being misused by the jury, the interests of a fair trial to the accused require, as I think they required in this case, a careful direction from the trial judge of the type referred to in Edwards (1992) 173 CLR 653; 60 A Crim R 100.

[6.1320] Flight during the trial In R v Festa (2000) 111 A Crim R 60 (Qld CA) Ms Festa had absconded on day 12 of her trial. In a joint judgment the court said (at 66 [14]): The fact that the appellant had absconded during the course of the trial was evidence which was capable of being regarded by the jury as suggesting a consciousness of guilt on her part. See Melrose [1989] 1 Qd R 572; (1987) 30 A Crim R 332, and authorities referred to there. That and most other decisions in which the matter has been considered have concerned “flight” by the accused before the trial began; but flight during trial must, if anything, afford an even firmer foundation for drawing an inference of that kind. The most obvious explanation of her disappearance was the evidence given against her at the trial appeared to be compelling and that a verdict of acquittal was unlikely. Of course, there are opposing inferences that are capable of explaining the sudden absence of an accused person from a trial which is already under way. It may be due to illness or injury or some other cause beyond control. His Honour was not obliged to canvass such possibilities with the jury. They were not so much as suggested by counsel for the appellant before he withdrew from the trial.

The appeal was Festa v The Queen (2001) 208 CLR 593; 185 ALR 394. McHugh J said (at 633; 425 [126]): And on the twelfth day of the hearing she fled, giving rise to the conclusion that she was conscious of her guilt.

[6.1325] Alternative explanations In R v Smith (1994) 73 A Crim R 384 (Vic CCA) Eames J said (at 427): When a jury is asked by the Crown to attribute consciousness of guilt to behaviour, or alleged lies, by an accused person, the trial judge is obliged to instruct them to consider alternative explanations for that conduct which would not lead to that inference: Edwards (1992) 173 CLR 653; 60 A Crim R 100; Tadic v Gibb (unreported, Court of Criminal Appeal, Vic, 31 August 1993).

In R v Renzella [1997] 2 VR 88; 88 A Crim R 65 (CA) the court said (at 90–91; 68–69): We preface this part of our judgment by setting out, in summary form, the principal points to be borne in mind: 1. Similar issues can arise in relation to conduct other than lies, such as flight or laying a false trail or bribery or attempted bribery of prosecution witnesses.

[6.1330] Possible direction based on Edwards More recent authorities suggest that a direction be given based on Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 at 211; 613; 362–363. Such direction might be: There may be reasons for flight apart from the realization of guilt. Flight may be from panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence.

(Such extraneous consequences may be a pressing need to be a certain place for a specific reason or reasons. It may be illness requiring treatment or the need to be close to a dear one who does. It may be to say goodbye. It may result from a confusion that to be away is not such a serious thing.)

[6.1515]

FORCE

681

See also Consciousness of guilt at [3.5900]; Corroboration at [3.7900]; Edwards direction at [5.100]; Handcuffs at [8.700]; Lies at [12.1500]; and Zoneff direction at [26.100].

FORCE Force by police ........................................................................................................................... To prevent the commission of an offence .................................................................................. Force by accused as an element ................................................................................................. Force by accused as a defence ...................................................................................................

[6.1500] [6.1505] [6.1510] [6.1515]

[6.1500] Force by police Arrest: force may be used in an arrest. See Arrest at [1.6000].

[6.1505] To prevent the commission of an offence Legislation Qld: Criminal Code s 260; WA: Criminal Code s 243; Tas: Criminal Code s 49; NT: Criminal Code ss 27(e) and 28(e). In R v De Jong [1997] 1 Qd R 89 Lee J held (at 93): I am unable to hold that the section is capable of authorising or justifying a pre-emptive strike … there must at least be some overt act indicating or capable of indicating the impending commission of an offence.

Breath test In Hrysikos v Mansfield (2002) 5 VR 485; 135 A Crim R 179; 37 MVR 408 (CA) Ormiston JA said (at 488; 182 [5]): [A]lthough there is a deprivation of liberty implicit in the whole of the relevant provision which derives from the fact that non-compliance has certain penal consequences if they can be characterised as a refusal, no aspect of the scheme under s 55 entitles the police officer to treat the person, who is at that stage in effect merely a suspect, as a person under arrest and thus subject to explicit directions and control by the officer … One should not infer a right in a police officer to detain a driver by use of force or to require the subject to go to or stay in some particular room or place which would involve a further deprivation of liberty.

See also Fingerprints at [6.700]; Samples and examination at [19.300]; and Search warrant at [19.900].

[6.1510] Force by accused as an element Examples of force being an element of the offence are the various forms of homicide, robbery in its various forms, riot, assault in the sense of battery, and other forms of violence such as rape.

[6.1515] Force by accused as a defence Disorderly conduct by victim Disorderly customer removed by shopkeeper: King v Connor (1996) 88 A Crim R 150 (WA, Steytler J).

682

ROSS ON CRIME

[6.1700]

See also Self-defence at [19.1300].

FORGERY Definition ..................................................................................................................................... Legislation ................................................................................................................................... Potential or actual prejudice ....................................................................................................... Handwriting ................................................................................................................................. “Signature” .................................................................................................................................. Prosecution production of original ............................................................................................. No claim of right defence .......................................................................................................... Sentence ......................................................................................................................................

[6.1700] [6.1705] [6.1710] [6.1715] [6.1720] [6.1725] [6.1730] [6.1735]

[6.1700] Definition In Brott v The Queen (1992) 173 CLR 426; 105 ALR 189; 58 A Crim R 97 McHugh J said (at 447; 202; 110): [T]he general rule of the common law was that forgery consisted in a person, with intent to defraud, making, altering or adding to an instrument so that the instrument contained a false representation that another person had signed or acknowledged the instrument or some part of its contents. If the document contained no more than a false representation by the person who signed or acknowledged the instrument or part of its contents, no forgery occurred. But this general rule has a notable exception: inserting or acknowledging a false date or time in an instrument with intent to defraud is forgery if the date or time is material.

Applied: R v Ceylan (2002) 4 VR 208; 130 A Crim R 500 at 217; 509 [22] (CA); Roddan v The Queen (2002) 128 A Crim R 397 at 402 [28] - [30] (WA CCA). Other cases R v Walsh [2007] 1 NZLR 738 (CA); R v O’Hara (2005) 155 A Crim R 82 (Vic CA); Tasmania v Serpanos (2007) 174 A Crim R 361 (Tas, Crawford J): (at 366 [18]) Brott distinguished.

[6.1705] Legislation Cth: Criminal Code Act 1995 ss 143.1–145.6; Qld: Criminal Code ss 1 and 488; WA: Criminal Code ss 1 and 473; Tas: Criminal Code s 278; NT: Criminal Code s 258; NSW: Crimes Act 1900 ss 250–256; Vic: Crimes Act 1958 s 83A (making a false instrument); Evidence (Miscellaneous Provisions) Act 1958 s 142; ACT: Criminal Code 2002 ss 343–351; NZ: Crimes Act 1961 ss 255–260; Eng: Forgery and Counterfeiting Act 1981;

[6.1730]

FORGERY

683

Can: Criminal Code ss 324 and 326.

[6.1710] Potential or actual prejudice At common law potential prejudice only was an element. In East, Pleas of the Crown (1803), Vol 2, pp 852, 854, the chapter on forgery states: [I]n all cases of forgery, properly so called, it is immaterial whether any person be actually injured or not, provided any may be prejudiced by it.

In England under its legislation actual prejudice must be proved: R v Tobierre [1986] 1 WLR 125; [1986] 1 All ER 346; (1985) 82 Cr App R 212 (CA); R v Garcia (1987) 87 Cr App R 175. Likewise Canada: R v Valois [1986] 1 SCR 278.

[6.1715] Handwriting See also Handwriting at [8.900].

[6.1720] “Signature” In Campbell v DPP (Cth) [1995] 2 VR 654 (CA) Ormiston J said (at 663): It would follow that the expression “affixes any … signature” should be interpreted to comprehend the placing by a commissioner or other person authorised of his or her signature, sign or mark to the document in the course of taking a declaration under the Act. If the commissioner or other person authorised knows the contents of that document to be untrue, an offence under para (d) of s 142 will have been committed.

[6.1725] Prosecution production of original The prosecution should produce the original document said to be forged. In R v Governor of Pentonville Prison: Ex parte Osman [1989] 3 All ER 701; (1988) 90 Cr App R 281 (QBD) Lloyd LJ, delivering the judgment of the court, said (at 728; 308-309): Where there is an allegation of forgery the court will obviously attach little, if any weight to anything other than the original; so also if a copy produced in court is illegible.

In R v Devenish [1969] VR 737 (CCA) the prosecution alleged that the accused had obtained money using a false receipt. The original had been lost and only a copy was produced. On appeal the conviction was set aside. See also Evidence (Best evidence rule) at [5.1930].

[6.1730] No claim of right defence In Roberts v Western Australia (2005) 29 WAR 445; 152 A Crim R 346 (CA) Templeman J, with whom the other judges agreed on this point, said (at 450; 351 [27]): [I]t is difficult – if not impossible – for the defence of honest claim of right to be raised against a charge of forgery.

684

ROSS ON CRIME

[6.1735]

[6.1735] Sentence Forged money Making the forgery: R v Rohde (1985) 17 A Crim R 166 (Vic CCA); Possession only: R v O’Keefe (1993) 67 A Crim R 381 (Vic CCA); Forged supportive letters: R v Barlow (1995) 87 LGERA 396 (Qld CA). See also R v Campbell (1997) 95 A Crim R 391 (Vic CA). Counterfeiting at [3.9000].

FORTUNE TELLING Legislation ................................................................................................................................... Example of legislation ................................................................................................................ Intent ............................................................................................................................................ Sentence ...................................................................................................................................... Witchcraft .................................................................................................................................... Not experts .................................................................................................................................. Rogue and vagabond ..................................................................................................................

[6.1900] [6.1905] [6.1910] [6.1915] [6.1920] [6.1925] [6.1930]

[6.1900] Legislation Legislation proscribes deception by telling fortunes. NT: Summary Offences Act s 57(1)(d); SA: Summary Offences Act 1953 s 40.

[6.1905] Example of legislation Summary Offences Act (NT) s 57(1)(d): (1) Any person who – (d) pretends to tell fortunes, or uses any subtle craft, means, or device, by palmistry or otherwise, to deceive and impose upon any of Her Majesty’s subjects …

See also Vagrancy Act 1824 (UK) s 6; Fraudulent Mediums Act 1951 (UK) s 1.

[6.1910] Intent Where a witness had paid a fortune teller money in advance that defendant was properly charged with attempting to obtain money by false pretences: R v Perera [1907] VLR 240 (FC). (The charge in Victoria is now obtaining a financial advantage by deception.) Perhaps because it is said to be impossible to see the future, it is not necessary to prove that the accused intended to deceive: Stonehouse v Masson [1921] KB 818; [1921] All ER Rep 534 (KBD – five member court); Smith v O’Sullivan [1921] SASR 349 (Murray CJ); McKenna v Ghurka [1929] VLR 294 (Lowe J);

[6.1930]

FORTUNE TELLING

685

Arriola v Harris [1943] SASR 175 (FC). Hartridge v Samuels (1976) 14 SASR 209 (FC). These laws pay no regard to prescience. It is all diablerie. It is no offence to publish in a newspaper: What the Stars Foretell: Barbanell v Taylor [1936] 3 All ER 66 (KBD). See also Hanson v Archdall (1930) 44 CLR 265. WH Thompson: “Fortune Telling Illegal” (1997) 17 Proctor (No 1) 36.

[6.1915] Sentence In R v Morgan (1996) 87 A Crim R 104 (Vic CA) Southwell AJA said (at 105) that the applicant and her associates: [C]onducted a fortune-telling business, which became a joint enterprise of stealing money and valuables from people who sought readings and who wanted their money and valuables to be blessed, and who were gullible enough to hand them over to the offenders upon the promise that they would be returned when evil spirits had been expelled. The total amount stolen was some $374,000 in cash and jewellery valued at about $90,000.

The applicant was convicted of theft and sentenced to imprisonment of three years and six months with a non-parole period of 18 months. The Court of Appeal reduced the minimum to 12 months imprisonment because of her cancer.

[6.1920] Witchcraft Witchcraft was a capital offence in England until 1735. In 1692, 19 people were hanged in Salem, Massachusetts, for witchcraft. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225; 142 ALR 331 McHugh J said (at 265; 360): Witches were a particular social group in the society of their day, notwithstanding that the attributes that identified them as a group were often based on the fantasies of others and a general community belief in witchcraft.

[6.1925] Not experts In R v Robb (1991) 93 Cr App R 161 (CA) Bingham LJ said (at 164): [C]ourts would not accept the evidence of an astrologer, a soothsayer, a witch-doctor.

Claimed experts who predict an economic or actuarial future have been rejected as soothsayers. In Pennant Hills Restaurant Pty Ltd v Barrell Insurances Pty Ltd (1981) 145 CLR 625; 34 ALR 162 Gibbs J said (at 639; 168): Predictions as to the economic future in 30 years’ time may perhaps be made by a soothsayer but expert evidence cannot rationally be given on such a subject.

In Government Insurance Offıce (NSW) v Rosniak (1992) 27 NSWLR 665 (CA) Meagher JA said that the trial judge had correctly rejected the evidence of actuaries. His Honour said (at 699) that they had thrown: [T]hemselves into the task of forecasting the events of the next sixty-one years like ancient Etruscan soothsayers examining the entrails of sacrificed birds.

[6.1930] Rogue and vagabond By old legislation in England, a fortune teller was deemed to be a rogue and vagabond: Quan Yick v Hinds (1905) 2 CLR 345 at 361 per Griffith CJ.

686

ROSS ON CRIME

[6.2100]

FRAUD Principle ...................................................................................................................................... Certiorari ..................................................................................................................................... Setting aside a warrant ............................................................................................................... Consent of victim obtained by fraud ......................................................................................... Second appeal ............................................................................................................................. Counsel alleging fraud ................................................................................................................ Difficulties of a fraud trial ..........................................................................................................

[6.2100] [6.2105] [6.2110] [6.2115] [6.2120] [6.2125] [6.2130]

[6.2100] Principle In Lazarus Estates Ltd v Beasley [1956] 1 QB 702; [1956] 1 All ER 341 (CA) Denning LJ said (at 712; 345): No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.

[6.2105] Certiorari In Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50; 86 A Crim R 100 (FC) the court recited that certiorari was available for absence or excess of jurisdiction. Malcolm CJ said (at 56; 106): [C]ertiorari could also be available where the exercise of jurisdiction was procured by fraud. Thus, a decision of an inferior tribunal obtained by fraud, for example by perjured evidence, may be quashed on certiorari: see R v Gillyard (1848) 12 QB 527; R v Fulham, Hammersmith and Kensington Rent Tribunal; Ex parte Gormly [1952] 1 KB 179. As Denning LJ said in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712: “No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything.”

[6.2110] Setting aside a warrant In Bertran v Vanstone (2000) 114 A Crim R 158; 173 ALR 63 (FCA, Kenny J) her Honour said (at 100; 198 [121]): A warrant may, in accordance with ordinary principles of administrative law, be set aside if it is established that it has been obtained by fraud or misrepresentation.

[6.2115] Consent of victim obtained by fraud An offence can be committed by an accused who obtains the consent of the victim by fraud, where absence of consent is an element of the offence. The following are some examples: Burglary; Kidnapping; Property offences (theft, stealing, larceny, obtaining property by deception); Rape.

[6.2120] Second appeal Where a person has been convicted on indictment and the appeal heard and dismissed and the court order perfected, no further appeal lies. That is notwithstanding that there is some evidence of fraud by prosecution witness. The only courses open are a petition of mercy or a reference by the Attorney-General. Some examples: Ibbs v The Queen (2001) 122 A Crim R 377 (WACCA);

[6.2305]

FRESH EVIDENCE

687

Re Knowles [1984] VR 751 (FC). See also Appeal (Nature and use of trial judge’s report) at [1.5395]ff; Defrauding at [4.900]; and Mercy at [13.2500].

[6.2125] Counsel alleging fraud Australian Bar Association Model Rules provide: 37. A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that: (a) available material by which the allegation could be supported provides a proper basis for it; and (b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case if it is not made out.

[6.2130] Difficulties of a fraud trial In Randall v The Queen [2002] 1 WLR 2237 (PC) the Board advised (at 2241 [9]): A contested criminal trial on indictment is adversarial in character. The prosecution seeks to satisfy the jury of the guilt of the accused beyond reasonable doubt. The defence seeks to resist and rebut such proof. The objects of the parties are fundamentally opposed. There may well be disputes concerning the relevance and admissibility of evidence. There will almost always be a conflict of evidence. Some witnesses may be impugned as unreliable, others perhaps as dishonest. Witnesses on both sides may be accused of exaggerating or even fabricating their evidence. Defendants may choose to act in an obstructive and evasive manner. Opposing counsel may find each other easy to work with or they may not. It is not unusual for tempers to become frayed and relations strained. In a fraud trial the pressure on all involved may be even more acute than in other trials. Fraud trials tend to involve a great deal of documentation, which is particularly cumbersome to handle in a jury trial. They tend to involve much unfamiliar details, often of a technical nature, which it is difficult for many people to understand, assimilate, retain and recall. And fraud trials tend to be very long, which in itself tends to increase the strain on all involved, whether the defendant, witnesses, jurors, counsel or the judge.

FRESH EVIDENCE Meaning ....................................................................................................................................... General principles ....................................................................................................................... Where a witness recants ............................................................................................................. Where a prosecution witness is later proved to have lied ........................................................ Distinction between fresh evidence and new evidence ............................................................. Fresh evidence in writing ........................................................................................................... On appeal against sentence ........................................................................................................ Admissibility ............................................................................................................................... High Court does not receive fresh evidence .............................................................................. Mode of putting fresh evidence to appeal court ........................................................................ Legislation ...................................................................................................................................

[6.2300] [6.2305] [6.2310] [6.2315] [6.2318] [6.2320] [6.2325] [6.2330] [6.2335] [6.2340] [6.2345]

[6.2300] Meaning Fresh evidence in this part means evidence which was not available at trial but which particularly the defence want to use on appeal.

[6.2305] General principles In R v Nguyen [1998] 4 VR 394; (1997) 99 A Crim R 151 (CA) Kenny JA delivering the leading judgment said (at 400–401; 158):

688

ROSS ON CRIME

[6.2305]

Ordinarily a court will not be satisfied that the “fresh evidence” ground is made out unless: (a) the evidence was not available, or could not with reasonable diligence have become available, at the trial; (b) the evidence is relevant and otherwise admissible; (c) the evidence is apparently credible (or at least capable of belief); and (d) there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial: see Gallagher at 399, 402, 410, 421; 249, 251, 257, 265 and Mickelberg at 273, 288, 301, 190, 200-201, 210-211. (If there is any practical difference between a test expressed in terms of “a likelihood”, none has thus far been suggested: for it has been said that “likelihood” is no more than “a substantial – a ‘real and not remote’ – chance regardless of whether it is less or more than 50 per cent”: see Boughy (1986) 161 CLR 10 at 21; 20 A Crim R 156 at 163; Mickelberg at 301; 210-211; Cheney (1991) 28 FLR 103 at 108; and Hefferman (unreported, Vic CCA, No 140 of 1993, 20 May 1994).

In R v Abou-Chabake (2004) 149 A Crim R 417 (NSW CCA) Kirby J, with whom the other judges agreed, examined authorities and summarised the principles (at 427 - 428 [63]): First, a distinction is made between “new evidence” and “fresh evidence”. Fresh evidence is evidence not available to the accused at the time of the trial, actually or constructively. Evidence is constructively available if it could have been discovered, or available at the trial by the exercise of due diligence. Second, great latitude must be extended to an accused in determining what evidence, by reasonable diligence, could have been available at his trial (Ratten v The Queen (at 512) per Barwick CJ). Third, the court is ultimately concerned with whether there has been a miscarriage of justice. The rationale for setting aside a conviction on the basis of new evidence or fresh evidence is that the absence of that evidence from the trial was, in effect, a miscarriage of justice. That evidence must be examined in the context of the evidence given at the trial (Mickelberg v The Queen (1989) 167 CLR 259 at 301; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ). Fourth, the issue of whether there has been a miscarriage is to be approached on a number of levels, depending upon the order sought (whether a verdict of acquittal or a new trial), and the capacity of the new or fresh evidence to sustain the order sought. Fifth, where a verdict of acquittal is sought and the new evidence is of such cogency that innocence is shown to the court’s satisfaction, or the court entertains a reasonable doubt as to guilt, the guilty verdict will be quashed and the appellant discharged. In such circumstances, it does not matter whether the evidence is fresh or simply new (Ratten v The Queen (at 518-519) per Barwick CJ; cf Gibbs CJ in Gallagher v The Queen (1986) 160 CLR 392 at 398–399; 20 A Crim R 244 at 248–249). Sixth, where the evidence does not have that quality, or where a new trial is sought, a number of issues arise. The verdict will be quashed and a new trial ordered only where the following questions are answered affirmatively: • Is the evidence fresh? • If it is, is it “credible” or at least capable of belief (Gallagher v The Queen (at 395; 246) per Gibbs CJ), or “plausible” (Mickelberg v The Queen (1989) 167 CLR 259 at 301; 43 A Crim R 182 at 210 per Toohey and Gaudron JJ)? • If it is, would that evidence, in the context of the evidence given at the trial, have been likely to have caused the jury to have entertained a reasonable doubt about the guilt of the accused (Gallagher v The Queen (at 410; 257) per Brennan J) or, if there is a practical difference, is there a significant possibility that the jury, acting reasonably, would have acquitted the accused (Gallagher v The Queen (at 402; 251) per Mason and Deane JJ)? See Mickelberg v The Queen (at 301-302; 210-211) per Toohey and Gaudron JJ.

[6.2310]

FRESH EVIDENCE

689

Seventh, the concept of a miscarriage of justice is not an abstract investigation of truth (cf an Inquiry under s 474D Crimes Act 1900). It is an investigation in the context of the adversarial nature of a criminal trial. Where deliberate tactical decisions are made on the part of the accused as to the evidence that should or should not be called, and the issues that should or should not be pursued, there is nothing unfair, and there will be no miscarriage, in holding an accused to such decisions, even though it is conceivable that other decisions or something else may have worked rather better (Ratten v The Queen (at 517)).

Other cases Mann v Tasmania (2008) 186 A Crim R 87 (Tas CCA): evidence neither new nor fresh; Hillier v The Queen (2008) 1 ACTLR 235; 163 ACTR 60 (CA); Howson v The Queen (2007) 210 FLR 288; 170 A Crim R 401 at [41] – [48] (WA CA); Perkins v The Queen (2007) 169 A Crim R 516 (NSW CCA); R v Neaven [2007] 2 All ER 891 at [41] (CA); Vasquez-Felipe v The Queen (2006) 167 A Crim R 321 (NSW CCA); R v Kucma (2005) 11 VR 472 (CA); R v Mrzljak [2005] 1 Qd R 308; (2004) 152 A Crim R 315 (CA); Saunders v The Queen (2004) 149 A Crim R 174 at 179–180 [13] – [17] (Tas CCA); Williams v The Queen (2002) 11 Tas R 258; 133 A Crim R 317 (CCA); R v Pendleton [2002] 1 WLR 72; [2002] 1 All ER 524; [2002] 1 Cr App R 34 (HL); R v Johns (1999) 110 A Crim R 149 at 165 [42] (NSW CCA); Eastman v The Queen (1997) 76 FCR 9; 158 ALR 107 at 105–108 (FCR), 195–198 (ALR) (FCA); R v O’Neill [1996] 2 Qd R 326; (1995) 81 A Crim R 458 at 439; 564 (CA); Bond v The Queen (1992) 62 A Crim R 383 (WA CCA); R v Saleam (1989) 16 NSWLR 14; 39 A Crim R 406 at 20–21; at 411–412 (CCA).

[6.2310] Where a witness recants On the hearing of an appeal, evidence is sometimes called that a witness conceded giving false evidence at trial. And what that witness now says is true. In R v Bryer (1994) 75 A Crim R 456 (Qld CA) Fitzgerald P said (at 458): A conviction is set aside on the basis of a recantation if (i) the witness’s new version of events is sufficiently relevant, cogent and plausible to raise a doubt as to guilt in all the circumstances, including the original evidence and explanations given for the original evidence and the recantation, or (ii) the evidence of the recanting witness is so untrustworthy that it “ought not to be allowed to enter into the reasons for any verdict of guilty”: Davies v The King (1937) 57 CLR 170. In the latter circumstance, it would be inappropriate for the recanting witness to be called in the event of a retrial.

Approved and applied: Re GAM (2005) 12 VR 177; 156 A Crim R 134 [29]–[30] (Vic CA): dismissed. Other cases JJT v The Queen (2006) 67 NSWLR 152 (CCA): dismissed; Amiss v Western Australia (2006) 165 A Crim R 387 (WA CA): dismissed;

690

ROSS ON CRIME

[6.2315]

Dial v State of Trinidad and Tobago [2005] 1 WLR 1660 (PC): dismissed; Mickelberg v The Queen (2004) 29 WAR 13 (CCA) per Steytler J at 132–137 [418] – [434]: granted; Ibbs v The Queen (2001) 122 A Crim R 377 (WA CCA): granted; R v Bryer (1994) 75 A Crim R 456 (Qld CA): dismissed; R v Vincec (1990) 50 A Crim R 203 at 210–211 (Vic CCA): dismissed; R v Geesing (1985) 38 SASR 226; 16 A Crim R 90 (CCA): granted; R v DBI [2015] QCA 83; granted. In R v Flower [1966] 1 QB 146; [1965] 3 All ER 669; (1965) 50 Cr App R 22 (CA) Widgery J, delivering the judgment of the court, said (at 150–151; 672; 31): If the witness’s new version of the case is disbelieved this may very well show he is now unreliable, but it is a fallacy to assume from this that he was also unreliable at the trial. Witnesses may have second thoughts for a variety of different reasons. Some become emotionally disturbed, others brood on the effect of their evidence, whilst others are subject to more tangible pressures to induce them to depart from the truth. It is the witness’s state of mind at the trial which matters and this ought to be judged by reference to the circumstances prevailing at that time. It is trite to say that every case depends on its own facts but in our view there is no general requirement for a new trial merely because the witness’s account in this court differs from that given in the court below. So much depends in every case upon the reason, if any, given by the witness for having changed his or her testimony.

In Davies v The King (1937) 57 CLR 170 the court said in a joint judgment (at 183): A declaration by a witness that he has committed perjury cannot possibly be accepted as a ground in itself for setting aside the result of a trial in which the witness has given evidence. If the contrary were held, the whole administration of both civil and criminal justice would be undermined.

See also Ark v Western Australia [2014] WASCA 45. AM West, “Recantation as Fresh Evidence” (1996) 16 Qld Lawyer 13.

[6.2315] Where a prosecution witness is later proved to have lied Where a prosecution witness is later proved to have lied in evidence, an appeal court will set the conviction aside. It will do that even if it has earlier dismissed the appeal: Ibbs v The Queen (2001) 122 A Crim R 377 (WA CCA); Cannon v Tahche (2002) 5 VR 317 at 319–320 [3] – [6] (CA). The court will not grant leave for a further appeal if there is doubt about whether the trial evidence was false: R v GAM (No 2) (2004) 9 VR 640; 146 A Crim R 57 (CA). For the unsuccessful petition of mercy: Re GAM (2005) 12 VR 177; 156 A Crim R 134 (CA).

[6.2318] Distinction between fresh evidence and new evidence In Tasovac v State of Western Australia [2015] WASCA 24 at [82], the court noted: “New evidence is evidence which was available at trial or which could, with reasonable diligence, have been discovered. Fresh evidence is evidence which either did not exist at the time of the trial or which could not then with reasonable diligence have been discovered”.

[6.2320] Fresh evidence in writing In R v Sales [2000] 2 Cr App R 431 (CA) Rose LJ said (at 438):

[6.2325]

FRESH EVIDENCE

691

Proffered fresh evidence in written form is likely to be in one of three categories: plainly capable of belief; plainly incapable of belief; and possibly capable of belief. Without hearing the witness, evidence in the first category will usually be received and evidence in the second category will usually not be received. In relation to evidence in the third category, it may be necessary for this court to hear the witness de bene esse in order to determine whether the evidence is capable of belief. That course is frequently followed in this court.

[6.2325] On appeal against sentence Prisoner’s ill health In R v WEF [1998] 2 VR 385 (CA) Winneke P said (at 388–389): The circumstances in which this court will entertain new evidence relating to events which are alleged to have supervened after sentence are rare and exceptional. In normal circumstances, if it is suggested that subsequent events have made or made to appear a sentence, appropriate when passed, manifestly excessive, then that is a matter for the consideration of the Executive in the exercise of the prerogative of mercy and not a matter for an appellate court. The authorities for this proposition have been collected and explained by this court recently in the case of R v Babic [1998] 2 VR 79, per Brooking JA at 80-1. However, this court has recognised that there is a rare exception to this otherwise fundamental rule. The court will receive evidence of events occurring after sentence, in appropriate circumstances, if those events can be said to be relevant, not so much per se, but because they throw a different light on circumstances which existed at the time of sentence. Thus, in the case of R v Eliasen (1991) 53 A Crim R 391, the Court of Criminal Appeal said, per Crockett J at 394: This court may, if it considers the case an appropriate one to do so, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this court with a view to this court’s reconsidering the matter in the light of that additional evidence. It must follow that, if the court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention. This authority has been followed by this court in a number of cases since Eliasen: see R v Rostom (1996) 2 VR 97; 83 A Crim R 58; R v Williams (unreported, 18 September 1995); R v Morgan (1996) 87 A Crim R 104; R v Bell (unreported, 18 August 1997). In the case of Rostom, Charles JA, speaking for the court at 99, explained that the basis for receiving the new evidence was to be found in demonstrating the true significance of facts in existence at the time of sentence.

Other cases R v Wooden (2006) 45 MVR 227 (Vic CA); R v Daroucher-Yvon (2003) 142 A Crim R 489 (NSW CCA); R v Hughes [2004] 1 Qd R 541; (2003) 142 A Crim R 497 (CA); R v Riley [2001] 1 Qd R 407; 107 A Crim R 117 (CA); R v Holland (2002) 134 A Crim R 451 (Vic CA); R v Zehir (1998) 104 A Crim R 109 (Vic CA); R v Bailey (1988) 35 A Crim R 458 at 462 (NSW CCA);

Prison conditions In R v Cartwright (1989) 17 NSWLR 243 (CCA) Hunt and Badgery Parker JJ said (at 257): Where circumstances arise for the first time after sentencing which are alleged to render the sentence imposed either excessive or inadequate, the review of that sentence is the proper province of the executive government and not of this court: R v Munday [1981] 2 NSWLR 177 at 178.

692

ROSS ON CRIME

[6.2330]

Other cases R v C (2004) 89 SASR 270; 147 A Crim R 361 (CCA). R v Rostom (1996) 2 VR 97; 83 A Crim R 58 (CA).

Revocation of parole After sentence for an offence, an accused may have parole revoked. That parole was for an earlier offence. This revocation of parole can be received as fresh evidence for it increases the total term of imprisonment: R v Alashkar (2007) 17 VR 65; 174 A Crim R 435 (CA).

More help to prosecution Springer v The Queen (2007) 177 A Crim R 13 (NSW CCA).

[6.2330] Admissibility In R v Babic [1998] 2 VR 79 (CA) Brooking JA said (at 80): Evidence of an event occurring after sentence which is said to make the sentence passed excessive will not be received, the correct analysis being, in my view, not that the evidence will not be received as a matter of discretion, but that it will not be received because it is not admissible.

This view has not been followed. Other cases R v Dorning (1981) 27 SASR 481 (CCA); R v O’Shea (1982) 31 SASR 129; 8 A Crim R 219 (CCA); R v Smith (1987) 44 SASR 587; 27 A Crim R 315 (CCA) at 589; 317 per King CJ; R v Young (1996) 85 A Crim R 104 (Vic CA) at 108–109 per Charles JA; Vasich v The Queen (1998) 99 A Crim R 262 (WA CCA); In R v Eliasen (1991) 53 A Crim R 391 (Vic CCA) there had been undiagnosed HIV on sentence. The fresh evidence was admitted and the appeal allowed; In R v DVG (1999) 109 A Crim R 145 (SA CCA) there was undiagnosed lung cancer on sentence. Fresh evidence was admitted but the appeal was dismissed; In R v Leith [2000] 1 Qd R 660 (CA) the applicant was diagnosed with a terminal illness. Appeal allowed. To allow the applicant to die in custody would be draconian, tragic and inhumane.; R v Santamaria (2001) 126 A Crim R 99 (SA CCA); R v Ashton (2002) 137 A Crim R 73 (NSW CCA): Appeal lodged in time but not heard for 21/2 years. Psychiatric problems developed. Appeal allowed.

[6.2335] High Court does not receive fresh evidence The High Court has held that it has no jurisdiction to receive fresh evidence: Mickelberg v The Queen (1989) 167 CLR 259; 86 ALR 321; 43 A Crim R 182; Eastman v The Queen (2000) 203 CLR 1; 172 ALR 39.

[6.2340] Mode of putting fresh evidence to appeal court The mode of putting fresh evidence before an appeal court first calls for a ground of appeal to that effect. The ground must be supported by an affidavit of the witness. The witness must be available to give evidence, for the prosecutor may want to cross-examine.

[6.2510]

FUNCTUS OFFICIO

693

In Benedetto v The Queen [2003] 1 WLR 1545; [2003] 2 Cr App R 390 (PC) the Board advised (at [76]): In future the Board will expect (1) that notice of any application to adduce fresh evidence to be given to the other party or parties; (2) that an affidavit in support of such application be sworn and served, giving the grounds of the application and the reasons for seeking to adduce fresh evidence before the Board; (3) that copies of the evidence in question be exhibited to any such affidavit; (4) that such application, affidavit and exhibits be lodged with that party’s case.

Other cases R v Ali (2001) 122 A Crim R 498 at 499–500 (NSW CCA); R v Vincec (1990) 50 A Crim R 203 at 210–211 (Vic CCA).

[6.2345] Legislation Some legislation gives an appeal court power to receive evidence. WA: Criminal Appeals Act 2004 s 40(1)(e).

FUNCTUS OFFICIO Definition ..................................................................................................................................... Rationale ...................................................................................................................................... Ex parte application does not attract the rule ............................................................................ Summary offences ....................................................................................................................... Committal proceedings ............................................................................................................... Common law ............................................................................................................................... Slip rule ....................................................................................................................................... Application .................................................................................................................................. Legislation ...................................................................................................................................

[6.2500] [6.2505] [6.2510] [6.2515] [6.2520] [6.2525] [6.2530] [6.2535] [6.2540]

[6.2500] Definition Functus offıcio is from the Latin for having fulfilled (or completed or discharged) the duty (or function or office). The plural is functi officio. When a judicial officer has discharged the duty of completing the case the officer is said to be functus officio and ordinarily the case cannot be reopened. In Jovanovic v The Queen (1999) 92 FCR 580; 106 A Crim R 548; 165 ALR 6 (FCA) the court said in a joint judgment (at 584; 551; 10 [15]): As a general rule, except by way of appeal, a court has no power to review, rehear, vary or set aside any judgment or order once it is formally recorded.

[6.2505] Rationale In Bailey v Marinoff (1971) 125 CLR 529 Gibbs J said (at 539): The rule rests on the obvious principle that it is desirable that there be an end to litigation and on the view that it would be mischievous if there were jurisdiction to rehear a matter decided after a full hearing.

[6.2510] Ex parte application does not attract the rule In Jovanovic v The Queen (1999) 92 FCR 580; 106 A Crim R 548; 165 ALR 6 (FCA) the court said in a joint judgment (at 584; 552; 10 [19]):

694

ROSS ON CRIME

[6.2515]

This general rule does not apply to an order made ex parte, which may be set aside or varied on the application of any party affected by it.

In Fernandes v Butler (2002) 131 A Crim R 403 (Vic, Smith J) his Honour followed Jovanovic and said (at 410 [27]): [A] person is not functus officio after making a determination affecting the rights of people, including the question of the right to possession of chattels, when the determination has been given ex parte.

[6.2515] Summary offences In Jovanovic v The Queen (1999) 92 FCR 580; 106 A Crim R 548; 165 ALR 6 (FCA) the court said in a joint judgment (at 580; 554; 12 [32]): The position at common law regarding summary offences is more straightforward. Once a defendant had been both convicted and sentenced the court is regarded as being functus officio irrespective of whether the conviction and sentence have been entered in the records of the court: S v Recorder of Manchester [1971] AC 481 at 489 per Lord Reid; R v Essex Justices; ex parte Final [1963] 2 QB 816 at 820 per Lord Parker CJ. Before sentence is passed, however, a court may permit a plea of guilty to be withdrawn. That may be done even if the plea of guilty has been accepted, and a finding of guilt entered: cf R v Manchester Justices; ex parte Lever [1937] 2 KB 96 at 101 per Humphreys J.

See also Psaras v Littman (2006) 18 NTLR 189; 204 FLR 43; 165 A Crim R 116 (Martin (BR) CJ).

[6.2520] Committal proceedings In JD v DPP (1999) 107 A Crim R 296 (NSW, Hidden J) committal proceedings had been withdrawn and the plaintiff sought costs. The magistrate refused. The plaintiff sought a declaration and other relief. Hidden J found no authority on the functus officio point which the DPP argued. On the facts he found the magistrate was not functus officio.

[6.2525] Common law At common law a court loses power to vary an order once it has been perfected, that is passed into record. In R v Cross (Patrick) [1973] 1 QB 937; 2 All ER 920; (1973) 57 Cr App R 660 (CA) Lord Widgery CJ said (at 940; 922; 663): It is well recognised that a court of record has power to alter a judgment or order which it has made within certain limits. The limits set in general appear to be that the power to alter judgments ceases when the judgment is, in the words of the civil courts, drawn up. In other words, the general principle seems to be that when once the judgment has been finally recorded, then the inherent power to vary it is lost.

Approved: R v Billington [1980] VR 625 (CCA) at 629-631. In R v Lapa (No 2) (1995) 80 A Crim R 398 (NSW CCA) Clark JA said (at 402): It is well established at common law that a court may review, correct or alter its judgment at any time until its order or judgment has been perfected … The position is different once the judgment or order has been perfected. Subject to the rules of court and possible exceptions concerning subsidiary matters, a court has no power to reconsider its decision and the judgment can be reviewed only on appeal.

[6.2540]

FUNCTUS OFFICIO

695

and further (at 403): In the present case it is common ground that the order had not been perfected when the application for reconsideration was filed. Nor had it been perfected at the time that the court heard argument on the application. In accordance with old authority the court had undoubted jurisdiction to entertain the application and to accede to it.

[6.2530] Slip rule See Slip rule at [19.4900].

[6.2535] Application Thomas J received submissions and passed sentence. Later the prosecution sought forfeiture of a firearm. She held she was functus officio and therefore could not entertain the application: DPP v Hofschuster (1995) 125 FLR 239 (NT, Thomas J). Other cases R v Caruso (1988) 49 SASR 465; 37 A Crim R 1 (CCA); Minister for Immigration v Kurtovic (1990) 21 FCR 193 at 211 (FCA, Gummow J); Muscat v Magistrates’ Court (1996) 66 SASR 367; 86 A Crim R 277 (Lander J); Jayasinghe v Minister for Immigration (1997) 76 FCR 301; 145 ALR 532 at 311, 542 (FCA, Goldberg J); R v Commissioner of Police; Ex parte O’Brien (1997) 140 FLR 128; 116 NTR 1 (Kearney J); Singh v Minister for Immigration and Multicultural Affairs (2001) 109 FCR 18 (Merkel J); Steward v DPP [2004] 1 WLR 592; [2003] 4 All ER 1105 (QBD).

[6.2540] Legislation In Jovanovic v The Queen (1999) 92 FCR 580; 106 A Crim R 548; 165 ALR 6 (FCA) the court in a joint judgment characterised the (Victorian) legislation (at 590–591; 558; 16 [49] – [50]): The section is significantly wider than the slip rule, however, since it applies to clerical mistakes, errors arising from an accidental slip or omission, material miscalculation of figures, material mistakes in the description of anyone or anything, defects of form, and failure to deal with a matter that the sentencer would undoubtedly have dealt with if his or her attention had been drawn to it. The sentencer has two weeks from the date of imposing sentence to make any such correction. It is not necessary for the correction of the mistake to be undertaken in open court, nor is it necessary for the judge or magistrate proposing to make the correction to hear or invite written submissions from any other party unless it is thought desirable or necessary in the interests of justice to do so. The statutory power conferred by provisions of this type does not derogate from the existing common law power to correct sentencing slips (see R v De Zylva (1988) 38 A Crim R 207; R v Saxon [1998] 1 VR 503; (1997) 92 A Crim R 188), or from statutory rights of appeal or review in respect of sentence.

Qld: Penalties and Sentences Act 1992 s 188; Justices Act 1886 s 147A; WA: Sentencing Act 1995 s 37; Magistrates Court Act 2004 s 23(1); Tas: Sentencing Act 1997 s 94; NT: Sentencing Act s 112; NSW: Crimes (Sentencing Procedure) Act 1999 s 43;

696

ROSS ON CRIME

[6.2540]

Vic: Sentencing Act 1991 s 104A; SA: Criminal Law (Sentencing) Act 1988 s 9A. Decisions on the legislation include: R v Deacon (1993) 65 A Crim R 261 (Qld, Thomas J) at 262–263; R v Majors (1991) 27 NSWLR 624; 54 A Crim R 334 (CCA) at 629; 339; R v Tolmie (1994) 72 A Crim R 416 (NSW CCA) at 420; Ho v DPP (1995) 37 NSWLR 393; 82 A Crim R 80; 22 MVR 523 (CA) at 402–403; 89–90; 530–532; R v Stephenson (2001) 127 A Crim R 452 (Qld CA).

G GENERAL DEFICIENCY Meaning and application .............................................................................................................. Legislation ..................................................................................................................................... Joinder ........................................................................................................................................... Sentencing .....................................................................................................................................

[7.100] [7.105] [7.110] [7.115]

[7.100] Meaning and application Where the prosecution alleges that a clerk or servant appropriates property over a period, it may face difficulty in proving the taking of individual items. In these circumstances it can rely on a general deficiency in the property or accounts of the principal. It is an aid to proof. In R v Rich (1997) 68 SASR 390; 93 A Crim R 483 (CCA) Cox J said (at 491): Usually a prosecutor relies upon a general deficiency where there is a large number of thefts or frauds committed over a relatively lengthy period and it is impossible to identify or trace them individually so that the only way a crime or crimes can be proved is by ruling off the books to establish a general balance and then showing in some appropriate way that the only explanation for the demonstrated shortfall is theft or fraud and that the defendant must have been the person responsible.

(this is not in the report of the case at 68 SASR 390.) Other cases R v Lawson [1952] 1 All ER 804; (1954) 36 Cr App 30 (Lynskey J); R v Tomlin [1954] 2 QB 274; [1954] 2 All ER 272; (1954) 38 Cr App R 82 (CA); R v Mews (1988) 35 A Crim R 213 (WA CCA). (As to embezzlement see Edwards v United States of America [2002] 3 NZLR 222 (CA)).

[7.105] Legislation Some legislation provides for proof of general deficiency. Cth: Criminal Code Act 1995 s 131.11; Qld: Criminal Code s 568(2) (applying only to a trustee); WA: Evidence Act 1906 s 44; Criminal Procedure Act 2004 Sch 1 s 8(3); NSW: Crimes Act 1900 s 161; SA: Criminal Law Consolidation Act 1935 s 136; ACT: Criminal Code 2002 ss 307 and 331.

698

ROSS ON CRIME

[7.110]

[7.110] Joinder Where a general deficiency is alleged there will be only one count on the indictment. At common law, where the individual takings are identified, there should be separate counts for each. In Tasmania and Victoria the common law rule continues to apply. A general deficiency can still be alleged: Tuck v The Queen (1999) 9 Tas R 68; 117 A Crim R 305 (CCA). In R v Tomlin [1954] 2 QB 274; [1954] 2 All ER 272; (1954) 38 Cr App R 82 (CCA) Pearson J giving the judgment of the court, said (at 282; 275; 90): [W]here it is possible to trace the individual items and to prove a conversion of individual property or money, it is undesirable to include them all in a count alleging a general deficiency.

The legislation in Western Australia, New South Wales, South Australia and the Australian Capital Territory abrogates the common law rule. In Caratti v The Queen [1984] WAR 313; (1983) 10 A Crim R 328 (CCA) Burt CJ said (at 317; 338): That section was no doubt designed to displace the rule of the common law that where it is possible to identify individual items of property and to prove the fraudulent taking or fraudulent conversion of each of a number of such items on particular dates it is “undesirable” if not positively wrong to “lump” the items together and to charge the accused with stealing or with a fraudulent conversion of the total as a “general deficiency”: see R v Goodall (1975) 11 SASR 94, where the cases are discussed.

In Queensland and Northern Territory the criminal codes provide only for joinder: Queenslandd Criminal Code s 568(1); Northern Territory Criminal Code s 310(2). R v Poulier (2007) 19 NTLR 91; 210 FLR 1; 170 A Crim R 345 (CCA) was the reservation of a point of law. The accused had stolen cash from his employer many times. The total was over $126,000. The court held that one count was proper. Mildren J, with whom Martin (BR) CJ agreed, cited general deficiency as one reason for the single count (at [10]). A separate trial may not be ordered in a complex fraud case. In R v Goodall (1975) 11 SASR 94 (CCA) Bray CJ said (at 97): In most cases where it is impossible to disentangle the defendant’s dealings with the money or property entrusted to him, it is because he has created the impenetrable entanglement, and … it does not become the maker of the omelette to demand the separation of the eggs.

[7.115] Sentencing In R v Faithfull (2004) 142 A Crim R 554 (WACCA) the respondent pleaded guilty to two offences. As a bank manager he had misappropriated funds many times. The prosecution case was general deficiency. Held: a general deficiency does not attract the “one transaction rule”. McLure J with whom the others agreed said (at 559 [33]): I am not persuaded that the respondent’s conduct was part of a single enterprise or that each act of theft involved the mechanical implementation of a preconceived plan. However, even if it is open to characterise the conduct as a single enterprise within the one transaction rule it does not follow that the sentences should have been made concurrent.

For other reasons the prosecution appeal against sentence was dismissed. See also Embezzlement at [5.500]; and Property offences at [2.630].

[7.315]

GOING ARMED

699

GOING ARMED The offence .................................................................................................................................... Legislation ..................................................................................................................................... Going ............................................................................................................................................. Armed ............................................................................................................................................ In public ........................................................................................................................................ Without lawful occasion ............................................................................................................... Sentence ........................................................................................................................................

[7.300] [7.305] [7.310] [7.315] [7.320] [7.325] [7.330]

[7.300] The offence Any person who goes armed in public without lawful occasion in such a manner as to cause fear to any person is guilty of an offence. In Parmbuk v McMaster (2005) 195 FLR 176 (NT, Southwood J) his Honour said (at 178 [8]): The object of the section is to prevent people going about openly carrying arms. There are three elements to the offence. First, the person must be armed. Secondly, he or she must go armed in public. Thirdly, the manner in which the person goes armed in public must be such a manner as to cause fear to a person of reasonable firmness and courage.

[7.305] Legislation Qld: Criminal Code s 69; Tas: Criminal Code s 78; NT: Criminal Code s 69.

[7.310] “Going” In Parmbuk v McMaster (2005) 195 FLR 176 (NT, Southwood J) his Honour held (at 178–179 [10]): “Goes” means to go about. “Go” is not synonymous with the word “be” – to “be armed” is not to “go armed”. “Goes armed” refers to the manner of a person proceeding in public. It refers to the open exhibition of a weapon, for example, by the parading or promenading of arms. The following factors apply to the second element of the offence: (a) it is not necessarily satisfied by a user alone: Dearnley v The King [1947] St R Qd 51 at 65; (b) “going” may not require physical progress (or motion) by reference to the position of other people: R v Hildebrandt [1964] Qd R 43 at 63; an assault committed by a person who threatens another with a weapon does not necessarily constitute a going armed even if it is done in public: R v Burnett (1983) 19 Qld Lawyer Reps 23 at 24.

In R v Hildebrandt [1964] Qd R 43 (CCA) the accused was convicted after brandishing a firearm in an aircraft. The appeal was dismissed. “Going” was said to refer to the manner of going and not to progression with reference to the position of other people. In R v Anderson [1910] QWN 19; 4 QJPR 106 the accused was accosted by a man who struck him and threatened to shoot him. The accused produced a loaded firearm and was stopped by police after pursuing the assailant for a few metres. Chubb J directed the jury to return a verdict of not guilty. Merely to go about carrying a stick is not an offence under this section: Inowye v The King (1921) 24 WALR 52 (CCA).

[7.315] “Armed” In Parmbuk v McMaster (2005) 195 FLR 176 (NT, Southwood J) the appellant was carrying a rock. Southwood J held that he was not armed. His Honour said (at 178 [9]):

700

ROSS ON CRIME

[7.320]

[T]o be armed with a weapon means to be something more than to be in mere possession of it; the weapon must also be available for immediate use as a weapon or for an offence: Dixon v Seears (1982) 16 NTR 20; Miller v Hrvojevic [1972] VR 305 at 306; R v Standley (1996) 90 A Crim R 67. It is not necessary that an accused has a weapon in his hand: R v Kolb & Adams (unreported, Vic CCA, 14 December 1979). A weapon is a physical object that may be used to injure or overcome an opponent in any way.

Merely to go about carrying a stick is not an offence under this section: Inowye v The King (1921) 24 WALR 52 (CCA). To hold a replica pistol and pretend it is real is to be armed: Ashcroft v The Queen (1989) 38 A Crim R 327

[7.320] “In public” In R v Hildebrandt [1964] Qd R 43 (CCA) it was said where the accused brandished a firearm in an aeroplane, Sable J (at 65): Those in the aircraft were not members of the same club at an outing, or of the same family, but were, on the evidence, ordinary citizens who had paid a fare to be taken by a common carrier from one place to another. I consider that a person going armed in such company is doing so in public within the meaning of s 69.

[7.325] Without lawful occasion In R v Bennett [2000] 2 Qd R 174 (CA) McPherson JA with whom the others agreed said (at 181 [25]): [C]onfining it to self-defence adopted too narrow a view of the expression “without lawful occasion” in s 69(1). Other lawful reasons or excuses for going, at least temporarily, armed in public on the outskirts of towns in western Queensland can readily be imagined. Using a rifle to shoot a rabid dog or a wild pig that presents a threat to the safety of people in the area would surely not under s 69(1) be “without lawful occasion” simply because it takes place in public and causes fear. Here it was not dogs or pigs that Mr Bennett was seeking to restrain, but his own sons, who were engaged in a serious attack on another person. Firing a shot harmlessly in the air in order to bring them to their senses was not only a legitimate reason or lawful excuse for his going armed in public (if that is what he did) but a thoroughly effective one.

[7.330] Sentence Hurd v The Queen [1988] Tas R 126; 38 A Crim R 454 (CCA). See also J Aberdeen, “What is Going Armed?”, (1998) 19 The Queensland Lawyer 57. Armed at [1.5600].

GOODS IN CUSTODY Meaning ......................................................................................................................................... Legislation ..................................................................................................................................... Custody .......................................................................................................................................... Thing ............................................................................................................................................. Reasonable suspicion .................................................................................................................... Giving custody to another ............................................................................................................ Defences ........................................................................................................................................

[7.500] [7.505] [7.510] [7.515] [7.520] [7.525] [7.530]

[7.500] Meaning Goods in custody is the familiar term for the offence under s 527C of the Crimes Act 1900 (NSW). There is an equivalent provision in the ACT: Criminal Code 2002 s 324(a)(i).

[7.530]

GOODS IN CUSTODY

701

[7.505] Legislation 527C. (1) Any person who: (a) has any thing in his or her custody: … which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court: (a) if the thing is a motor vehicle or a motor vehicle part, to imprisonment for 1 year, or to a fine of 10 penalty units, or both, or (b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both. … (2) It is a sufficient defence to a prosecution for an offence under subsection (1) if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained.

[7.510] Custody Custody is “the immediate de facto control or charge of the article in question”: Ex parte McPherson [1933] 50 WN (NSW) 25 (CCA) per Street CJ at 27.

[7.515] Thing See Possession at [16.2700].

[7.520] Reasonable suspicion R v Porter (2004) 61 NSWLR 384; 186 FLR 350; 149 A Crim R 112 (CCA). See also Possession at [16.2700].

[7.525] Giving custody to another An offence may be committed by one who disposes of the goods to a bona fide purchaser for value: Gilroy v Jebara (1992) 29 NSWLR 20 (Abadee J).

[7.530] Defences It is a defence to the charge that the person did not have custody of the subject property: R v English (1989) 17 NSWLR 149 (CCA). If custody is not in issue it may be argued that the goods could not be “reasonably suspected of being stolen or otherwise unlawfully obtained”. It is also a defence if the accused can satisfy the court on the balance of probabilities that he or she had no reasonable grounds for suspecting that the goods were stolen or unlawfully obtained: Ex parte Patmoy; Re Jack (1944) 44 SR (NSW) 351 (FC); Tegge v Caldwell (1988) 15 NSWLR 226; 36 A Crim R 8 (Yeldham J).

702

ROSS ON CRIME

[7.700]

GOVERNMENT GAZETTE Legislation ..................................................................................................................................... [7.700] Application .................................................................................................................................... [7.705]

[7.700] Legislation By s 5 of the Evidence Act 1995 (Cth), s 153 now applies in all Australian courts. Production of the Government Gazette raises the rebuttable presumptions: • that it is the Government Gazette and was published on the day it bears; • the acts said to have been performed were duly done on the day said. There is equivalent legislation in the states: Uniform Evidence Acts s 153 ; Qld: Evidence Act 1977 s 45; WA: Evidence Act 1906 s 74; SA: Evidence Act 1929 s 37A; NZ: Evidence Act 2006 s 141; Can: Canada Evidence Act s 17.

[7.705] Application Courts take judicial notice of when Acts come into force. The following cases are examples: Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 162 A Crim R 409; 228 ALR 1 footnotes 5 and 10; Mallard v The Queen (2005) 224 CLR 125; 157 A Crim R 121; 222 ALR 236; [2005] HCA 68 footnote 35; DPP v Alexander (2003) 86 SASR 577; 142 A Crim R 68 at [23] (CCA); R v ALH (2003) 6 VR 276 at 299 [94] (CA).

GRAFFITI Etymology of graffiti .................................................................................................................... Present meaning ............................................................................................................................ Use in Australia ............................................................................................................................ Legislation ..................................................................................................................................... Sentencing .....................................................................................................................................

[7.900] [7.905] [7.910] [7.915] [7.920]

[7.900] Etymology of graffiti The word derives from the ancient Greek. The present form graffıto (plural graffıti) is an Italian gerund meaning scribbling or scratching. An early use of graffıti was by archaeologists of the 19th century who valued the ancient informal writings and scratchings on monuments as showing the vernacular of the time, and the cares and humour of everyday life.

[7.905] Present meaning Graffiti now means informal paintings, drawings and messages on public buildings and transport with the effect of defacing them. Very few are obscene.

[7.910] Use in Australia Leaving aside scatology, a few of the more memorable graffıti follow:

[7.1105]

GRIEVOUS BODILY HARM

703

“Eternity”: Arthur Malcolm Stace (1884–1967) wrote this one word in careful copperplate more than half a million times in Sydney, Wollongong and Newcastle for about 30 years from 1932. His purpose was said to be a religious one. “pig-iron Bob”: referred to Commonwealth Attorney-General Robert Menzies in forcing the transport of iron ore to Japan in 1935. “U2 threatens you too”: the reference is to the American spy aircraft, the U2.

[7.915] Legislation Legislation makes graffiti an offence. Qld: Summary Offences Act 2005 s 17; Criminal Code s 469; WA: Criminal Code ss 445 and 446; Tas: Criminal Code s 273; NT: Summary Offences Act s 75(1)(g); NSW: Summary Offences Act 1988 ss 10A and 10B; Crimes (Sentencing Procedure) Act 1999 s 91; Vic: Graffıti Prevention Act 2007; Transport Act 1983 ss 223A–223F; SA: Graffıti Control Act 2001; Summary Offences Act 1953 s 48; ACT: Crimes Act 1900 s 119; Roads and Places Act 1937 ss 14A and 14B; Eng: Anti-social Behaviour Act 2003 ss 43–52; Clean Neighbourhoods and Environment Act 2005 ss 28–31.

[7.920] Sentencing DPP v Shoan (2007) 176 A Crim R 457 (Vic CA).

GRIEVOUS BODILY HARM Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Definition ..................................................................................................................................... Intent ............................................................................................................................................ Direction to the jury ................................................................................................................... The codes: Queensland , Western Australia and the Northern Territory .................................. Other references ..........................................................................................................................

[7.1100] [7.1105] [7.1110] [7.1115] [7.1120] [7.1125] [7.1130]

[7.1100] Meaning Grievous bodily harm means really serious bodily injury. In the common law States (New South Wales, Victoria and South Australia) it bears on intent in murder “… with intent to kill or cause grievous bodily harm”. Causing grievous bodily harm is also a statutory offence.

[7.1105] Legislation New South Wales Crimes Act 1900 s 54: causing grievous bodily harm by negligence etc. s 33A: discharging loaded arms with intent to do grievous bodily harm. s 47: using explosive with intent to do grievous bodily harm.

704

ROSS ON CRIME

[7.1105]

s 35: infliction of grievous bodily harm. s 35A: maliciously cause a dog to inflict grievous bodily harm. s 27: wounding or causing grievous bodily harm.

Victoria In the Crimes Act 1958 grievous bodily harm has been replaced by injury and serious injury (both defined).

South Australia Criminal Law Consolidation Act 1935 s 21: wounding with intent to do grievous bodily harm. s 23: wounding or inflicting grievous bodily harm. s 29: acts creating risk of grievous bodily harm. s 31: possession of object with intent to cause grievous bodily harm.

Queensland Criminal Code Criminal Codes 1: definition. Criminal Codes 302(1): murder. Criminal Codes 317: acts intended to cause grievous bodily harm. Criminal Codes 320: doing grievous bodily harm. Criminal Codes 322: poisoning. Criminal Codes 327: setting mantraps.

Western Australia Criminal Code Criminal Codes 1: definition. Criminal Codes 279(1): murder. Criminal Codes 294: acts intended to cause grievous bodily harm. Criminal Codes 297: doing grievous bodily harm. Criminal Codes 305: setting dangerous things.

Tasmania Criminal Code Criminal Codes 170: acts intended to cause grievous bodily harm. Criminal Codes 172: wounding or causing grievous bodily harm. Criminal Codes 175: poisoning. Criminal Codes 179: setting mantraps.

[7.1120]

GRIEVOUS BODILY HARM

705

Australian Capital Territory Crimes Act 1900 s 19: intentionally inflicting grievous bodily harm. s 20: recklessly inflicting grievous bodily harm. s 23: inflicting grievous bodily harm. s 25: causing grievous bodily harm. s 31: threat to inflict grievous bodily harm. s 43: childbirth: grievous bodily harm.

New Zealand Crimes Act 1961 s 188 wounding with intent. s 189 injuring with intent. s 200 poisoning.

[7.1110] Definition Grievous bodily harm means really serious bodily injury and not merely a serious interference with health or comfort: DPP v Smith [1961] AC 290; [1960] 3 All ER 161; 44 Cr App R 261 (HL); R v Metharam [1961] 3 All ER 200; 45 Cr App R 304 (CA); Hyam v DPP [1975] AC 55; [1974] 2 All ER 41; (1974) 59 Cr App R 91 (HL); R v Perks (1986) 41 SASR 335; 20 A Crim R 201 (CCA); R v Blevins (1988) 48 SASR 665; R v Griffıths (1999) 103 A Crim R 291 (SA CCA).

[7.1115] Intent The test is objective as is to be based on what the ordinary man thinks likely to result, and which did result: R v Knutsen [1963] Qd R 157 (CCA). In R v McKnoulty (1995) 77 A Crim R 333 (NSW CCA) Hunt CJ at CL said (at 344): The usual direction in relation to such a specific intent is that a person’s acts may themselves provide the most convincing evidence of his intention. An intention to inflict grievous bodily harm may be inferred from the nature of the act which is done: Thomas (1960) 102 CLR 584 at 596–597; R v Stokes and Difford (1990) 51 A Crim R 25 at 30. But that is altogether different from a direction to the effect (as was this one) that reckless indifference was sufficient.

A single blow from a fist is unlikely to raise an inference of intent to cause grievous bodily harm: R v Griffıths (1999) 103 A Crim R 291 (SACCA) (at 296 [18]).

[7.1120] Direction to the jury In R v Perks (1986) 41 SASR 335; 20 A Crim R 201 (CCA) King CJ said (at 337; 203):

706

ROSS ON CRIME

[7.1125]

I consider that the conventional expressions “grievous bodily harm”, despite its somewhat archaic ring, should be adhered to. If the meaning of “grievous” is to be explained, the expression “really serious” rather than merely “serious” should be used… The safer course, in my opinion, is to use the phrase which is incorporated in the classical definitions of the crime of murder, namely “intent to do grievous bodily harm”, with or without the explanation that “grievous” means “really serious”.

Followed: R v Griffıths (1999) 103 A Crim R 291 (SACCA). It is a jury matter. In R v Rhodes (1984) 14 A Crim R 124 (Vic CCA) Brooking J said (at 128): Once the jury has been given the usual short definition of grievous bodily harm, it is not the practice, and would indeed be unwise (Smith (1961) AC 290 at 335) to attempt a more elaborate exposition of the meaning of that phrase. The law gives only very general assistance to juries in this regard. While some injuries are manifestly too slight and some injuries clearly sufficient to answer the legal test, there remains an infinite variety of situations in which a jury might reasonably take either view.

[7.1125] The codes: Queensland, Western Australia and the Northern Territory The criminal codes in Queensland and Western Australia include in their definitions “permanent injury to health”. The phrase appears in s 1 of each code: the definitions section. NT: Criminal Code s 1A defines “harm”.

“permanent injury to health” In R v Tranby (1991) 1 Qd R 432; (1991) 52 A Crim R 228 (CCA) the appellant had bitten off a large part of the victim’s left ear lobe. Appeal allowed. Cosmetic disfigurement, or disability with no impairment to bodily function is not grievous bodily harm.

Other cases R v Morrison; Ex parte West [1998] 2 Qd R 79; (1996) 89 A Crim R 21 (CA); Wayne v Boldiston (1992) 85 NTR 8; 108 FLR 252; 62 A Crim R 1 (Mildren J).

[7.1130] Other references See also Assault (Occasioning (actual) bodily harm) at [1.6435].

H HABEAS CORPUS Definition ....................................................................................................................................... The writ ......................................................................................................................................... Habeas corpus ad subjiciendum ................................................................................................... Purpose of habeas corpus ad subjiciendum ................................................................................. What is detention? ........................................................................................................................ Burden of proof ............................................................................................................................ Examples ....................................................................................................................................... Not for bail .................................................................................................................................... Form ..............................................................................................................................................

[8.100] [8.105] [8.110] [8.115] [8.120] [8.125] [8.130] [8.135] [8.140]

[8.100] Definition Habeas corpus is a Latin term meaning you shall have the body (in court).

[8.105] The writ Habeas corpus is the generic name for a group of writs requiring the production of a named person before the court for the purpose of deciding what to do with that person. The writ existed at common law, and was subsequently followed in England by the Habeas Corpus Act 1679, Habeas Corpus Act 1816 and Habeas Corpus Act 1862. The application for the writ is still the proper remedy.

[8.110] Habeas corpus ad subjiciendum This is a Latin term meaning you shall have the body to submit to (the jurisdiction of the court). Various Supreme Court rules refer to the term. The following are examples: Qld: Uniform Civil Procedure Rules 1999 s 568; NSW: Uniform Civil Procedure Rules 2005 r 1.19; Vic: Supreme Court (General Civil Procedure) Rules 2005 O 57.

[8.115] Purpose of habeas corpus ad subjiciendum The writ is generally used to challenge whether any detention is lawful. The US Supreme Court held that detainees at Guantanamo Bay Naval Base, Cuba, were entitled to apply for habeas corpus: Rasul v George W Bush 542 US (June 28, 2004). The court examined the history of the remedy.

[8.120] What is detention? In R v Bournewood Community and Mental Health NHS Trust; Ex parte L [1998] 2 WLR 764; 1 All ER 634 (CA) an autistic patient was held to have been wrongly detained by the hospital. Lord Woolf MR said (at 769; 639): [A] person is detained in law if those who have control over the premises in which he is have the intention that he shall not be permitted to leave those premises and have the ability to prevent him form leaving.

708

ROSS ON CRIME

[8.125]

On appeal [1998] 3 WLR 107; [1998] 3 All ER 289 (HL) their Lordships found that L was detained and that the detention was necessary.

[8.125] Burden of proof In R v Carter; Ex parte Kisch (1934) 52 CLR 221 Evatt J said (at 227): In habeas corpus applications the duty of the Court is to see if “legal ground (is) made to appear justifying detention” (per Lord Birkenhead; see Secretary of State for Home Affairs v O’Brien (1923) AC 603, at p 610). The general onus as to the legality of detention is upon the respondent.

[8.130] Examples Australian nationals taken into custody preparatory to their deportation to the countries of their birth. Habeas corpus lies: Walsh v Johnson (1925) 37 CLR 36. Habeas corpus was issued against Carter, the master of a vessel, who tried to prevent a Czech from landing. The master believed that Kisch was a prohibited immigrant: R v Carter; Ex parte Kisch (1934) 52 CLR 221 (Evatt J). Where the governor of a prison holds a person (mistakenly) for longer than the proper sentence, habeas corpus lies: R v Governor of Brockhill Prison: Ex parte Evans [1997] QB 443; [1997] 1 All ER 439 (QBD). Arrest and custody for an offence for which a pardon has been granted. Habeas corpus lies: Phillip v DPP (Trinidad and Tobago) [1992] 1 AC 545; [1992] 2 WLR 211; [1992] 1 All ER 665 (PC).

[8.135] Not for bail Habeas corpus is not to be used for the purpose of bail or an appeal against refusal of bail: Eaves v James (1988) 33 A Crim R 369 (NSW CCA).

[8.140] Form IN THE SUPREME COURT

No

OF VICTORIA AT BETWEEN

AB

Plaintiff

and CD

Defendant

TO THE DEFENDANT: of [address] Have the plaintiff [or name of person restrained, if not the plaintiff] before the Judge in the Practice Court, Law Courts, William Street, Melbourne, on [eg 20 June, .......... ] and thereafter submit to the further order of the Court as his custody. YOU are required to make a return to this writ by filing a notice stating the grounds of detention of the plaintiff [or as the case may be] and serving a copy on the plaintiff at or before the time referred to above.

[8.305]

HABIT

709

TAKE NOTICE that disobedience to this writ is a contempt of court which may be punished by imprisonment or fine or both. Issued [eg 15 June, .......... ]. By the Court See also M Groves, “The Use of Habeas Corpus to Challenge Prison Conditions” (1996) 19 UNSWLJ 281–302. D Clark and G McCoy, Habeas Corpus (Federation Press, 2000).

HABIT Admissibility ................................................................................................................................. Meaning ......................................................................................................................................... An individual ................................................................................................................................ Group ............................................................................................................................................. Drug habit as motive .................................................................................................................... Witness with drug habit ................................................................................................................ Legislation .....................................................................................................................................

[8.300] [8.305] [8.310] [8.315] [8.320] [8.325] [8.330]

[8.300] Admissibility Evidence that a person had the habit of acting in a given way may be relevant to how the person acted on the event in question. In Roberts v Western Australia (2005) 29 WAR 445; 152 A Crim R 346 (CCA) Templeman J, with whom the others agreed on this point, said (at 461; 361 [93]): There is no doubt that evidence of habit may be admissible. In R v Liddy (2002) 81 SASR 22 at [479] Williams J cited the following passage from Wigmore on Evidence – 1983 (Vol 1A), para 98.1: “A probative force of habit is based principally upon the fact that habitual conduct is largely free from the complicating and confusing element of elusion.”

Templeman J went on to say that the refusal of a man to let others operate his bank account was not admissible evidence of habit. In R v Murphy (1985) 4 NSWLR 42; 63 ALR 53 (CA and CCA) the court said in a joint judgment (at 63): [A]ll the cases, and indeed commonsense, would suggest that evidence of habit, and particularly of negative habit, to be of probative value, must be seen to have some bearing upon the situation in which the habit or non-habit is claimed to have been followed.

The court went on to say that the evidence must not be “too generalised or related to circumstances which were too dissimilar to give it probative value”.

[8.305] Meaning The Macquarie Dictionary defines habit in the following ways: 1. a disposition or tendency, constantly shown, to act in a certain way. 2. such a disposition acquired by frequent repetition of an act. 3. a particular practice, custom, or usage. 4. an addiction to, or compulsive need of, esp narcotics.

710

ROSS ON CRIME

[8.310]

[8.310] An individual In Blomley v Ryan (1956) 99 CLR 362 the court refused specific performance of a conveyance because of Mr Ryan’s condition which Fullagar J described (at 407): [T]he defendant was an old man, whose health and faculties had been impaired by habitual drinking to excess over a long period, who was at the material time in the middle of a prolonged bout of heavy drinking of rum, and who was utterly incapable of forming a rational judgment about the terms of any business transaction.

McWilliams v Sir William Arrol & Co Ltd [1962] 1 WLR 295; [1962] 1 All ER 623 (HL) is a voice from long ago. A widow claimed damages for the death of her husband who died in a fall from a tower where he was working. The employers did not provide a safety belt but even if they had the deceased would not have worn it, nor would his colleagues. No negligence.

[8.315] Group In Thompson v Bankstown Corporation (1953) 87 CLR 619 Dixon CJ and Williams J referred to an occupier’s responsibility (at 627): [A] duty of care measured in safeguarding children in accordance with their known disabilities, propensities, habits and customs.

In Orr v Holmes (1948) 76 CLR 632 the plaintiff claimed a share of the prize money in the Golden Casket Lottery. Rich J said (at 636): In Queensland the existence of this lottery has given rise to customs and habits of conduct among the inhabitants of that State who interest themselves in the project, doubtless no small number.

As to a body of practice among medical folk, see Rosenberg v Percival (2001) 205 CLR 434; 178 ALR 577. In R v Blackwell (1996) 87 A Crim R 289 at 291–292 (SA CCA) a detective in the Drug Task Force was held properly to have given evidence of the habits of drug users.

[8.320] Drug habit as motive In R v Cummins (2004) 10 VR 15; 147 A Crim R 585 (CA) Ormiston JA, with whom the others agreed, said (at 23; 595–596 [26]): The need to satisfy a craving for drugs is a commonly enough asserted motive for armed robbery, burglary or theft – indeed so common that it is probably put forward on pleas in almost half of the cases of that kind that come before the courts … In a circumstantial case (such as the present) such an addiction to or craving for drugs can ordinarly be said to have some relevance, as it has been held on at least two occasions, but that does not mean that it should always be admitted in proof of a property offence.

[8.325] Witness with drug habit In a criminal case a judge should warn the jury to be cautious about the evidence of a prosecution witness with a drug habit. In R v Johnson (2004) 89 SASR 294; 147 A Crim R 151 (CAA) Duggan J, with whom the others agreed, said (at 306; 162 [55]): Clearly, there were circumstances which required the exercise of caution in assessing B’s evidence. She had a chronic amphetamine habit which led her to commit offences in order to support it. She was given assistance in return for her information in the case. The trial judge reminded the jury of these circumstances and told them to exercise great care when considering her evidence.

[8.330] Legislation Some legislation allows the withholding of a firearms permit from a person with intemperate habits. Nor is a licence available.

[8.520]

HABITUAL CRIMINAL

711

NT: Firearms Act 1997 ss 10 and 33; NSW: Firearms Act 1996 ss 11 and 29.

HABITUAL CRIMINAL Meaning ......................................................................................................................................... Legislation ..................................................................................................................................... Cases .............................................................................................................................................. Writing ........................................................................................................................................... Other reference ..............................................................................................................................

[8.500] [8.505] [8.510] [8.515] [8.520]

[8.500] Meaning A habitual criminal is one who regularly commits serious crimes of much the same sort.

[8.505] Legislation At one time most jurisdictions had legislation allowing lengthy imprisonment of a prisoner declared to be a habitual criminal. With few exceptions, that legislation has been repealed.

Existing NT: Criminal Code s 414(1)(d): (appeal and reference by Crown Law Officer on habitual criminal declaration); NSW: Habitual Criminals Act 1957.

[8.510] Cases In Strong v The Queen (2005) 224 CLR 1; 216 ALR 219 the court interpreted the New South Wales legislation. Otherwise the cases generally come from the days where legislation allowed the declaration of a person to be a habitual criminal.

Proof Kirkland v The Queen [1957] SCR 3 (SCC); R v Jones (1920) 15 Cr App R 20 (CA).

Length of sentence Singh v The Queen (1983) 55 ALR 692; 11 A Crim R 263 (FCA).

Refusal of habitual criminal declaration O’Shea v DPP (1998) 71 SASR 109 (Perry J); Clinch v The Queen (1994) 72 A Crim R 301 (WA CCA).

[8.515] Writing M W Daunton-Fear, “Habitual Criminals and the Indeterminate Sentence” 3 Adel LR 335–359.

[8.520] Other reference See also Sentencing (Indefinite imprisonment) at [19.1920].

712

ROSS ON CRIME

[8.700]

HANDCUFFS No general rule of handcuffing on arrest ..................................................................................... Unreasonable handcuffing may not vitiate arrest ......................................................................... Handcuffs on accused in court ..................................................................................................... Handcuffs and other restraints in prison ...................................................................................... Handcuffing by police in cells ......................................................................................................

[8.700] [8.705] [8.710] [8.715] [8.720]

[8.700] No general rule of handcuffing on arrest In Perkins v County Court of Victoria (2000) 2 VR 246; 115 A Crim R 528 (CA) Charles JA said (at 267–268; 549–550 [44]): [T]here is no general rule that persons arrested and being conveyed to or from a place of detention to a court must be handcuffed. An arresting officer is entitled to take proper precautions when conveying a person in custody, and all the circumstances must be considered to determine whether there are reasonable grounds for the arresting officer to handcuff the prisoner. But the right to handcuff must be found in some additional circumstance, such as the necessity to prevent the prisoner’s escaping; or committing some further offence; or endangering the safety of persons or property (see Kumar v Minister for Immigration (1991) 28 FCR 128, per Lockhart J at 130–1, and the cases there cited). If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.

In Leigh v Cole (1853) 6 Cox CC 329 Williams J said (at 331–332): [W]ith respect to handcuffing, the law undoubtedly is that police officers are not only justified, but they are bound to take all reasonably requisite 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 anyone. As to supposing that there is any general rule that everyone conveyed from the police station to the magistrates’ court is to be handcuffed, seems to me to be an unjustifiable view of the law, and one on which the police officers are mistaken. In many instances a man may be conveyed before the magistrates without handcuffing him, and taking him thus publicly through the streets.

In Trobridge v Hardy (1955) 94 CLR 147 an elderly taxi driver sued a police constable for damages for assault and allied grounds. It seems that the arrest of the plaintiff had been without grounds. Fullagar J said at 159: [H]e was informed that the police were not going to wait all night for him, struck a blow on the shoulder, and told that he was under arrest for “refusing (sic) to give his name and address”. When he asked to be allowed to complete taking the names and addresses, the defendant said: “If you hesitate one moment, I’ll handcuff you.” He was then seized by the arm, taken to his cab and driven to the police station … He had shown no sign of violence or of attempting to run away. The “thump” on the shoulder, and the threat to handcuff him, were outrages.

[8.705] Unreasonable handcuffing may not vitiate arrest In Kumar v Minister for Immigration (1991) 28 FCR 128; 100 ALR 439 (FCA) Lockhart J said (at 133–134; 445): In my opinion the handcuffing of the applicant was unreasonable. The unreasonable handcuffing of the applicant does not, however, vitiate the arrest of the applicant who was lawfully arrested, though not lawfully handcuffed. The arrest was completed before the handcuffs were put on the applicant and the circumstances attending the handcuffing of the applicant did not vitiate the arrest itself. I am not persuaded that any form of relief should be granted to the applicant flowing from the fact that be was unreasonably handcuffed, nor is any suggested. It is not suggested that he suffered damage because of it, although doubtless he suffered indignity and embarrassment. The handcuffing was an unnecessary interference with his person and dignity.

[8.905]

HANDWRITING

713

[8.710] Handcuffs on accused in court A trial judge is in charge of security arrangements in court and may regard handcuffs as necessary: Murray v Flack (1983) 6 A Crim R 394 (NSW, Rogers J). Where a trial judge has required restraint of the accused an appeal court will not be minutely critical of the measures adopted: R v Farr (1994) 74 A Crim R 405 (Qld CA). See also Court (Security) at [3.9225]; and Security at [19.1100].

[8.715] Handcuffs and other restraints in prison Binse v Williams [1998] 1 VR 381; (1997) 91 A Crim R 340 (CA).

[8.720] Handcuffing by police in cells It is not wrong for police to handcuff a prisoner in the cells to prevent self harm: Doolan v Edgington (1999) 110 A Crim R 19 (NT, Martin CJ). See also GA Flick, Civil Liberties in Australia 1981, p 42; R Munday, “Handcuffing the Defendant” (1990) 140 NLJ No 6436 p 47.

HANDWRITING Comparison ................................................................................................................................... Objection to a standard document ................................................................................................ Relevance ...................................................................................................................................... Police document ............................................................................................................................ Expert evidence ............................................................................................................................. Is an expert necessary ................................................................................................................... Directions to the jury where there is no expert evidence ...........................................................

[8.900] [8.905] [8.910] [8.915] [8.920] [8.925] [8.930]

[8.900] Comparison Legislation is in the following form in some Evidence Acts: Comparison of a disputed writing with any writing proved to the satisfaction of the judge to be genuine shall be permitted to be made by witnesses and such writings and the evidence of witnesses respecting the same may be submitted as evidence of the genuineness or otherwise of the writing in dispute.

Qld: Evidence Act 1977 s 59; WA: Evidence Act 1906 s 31; SA: Evidence Act 1929 s 30; Can: Canada Evidence Act s 8.

[8.905] Objection to a standard document R v Browne-Kerr [1990] VR 78 (CCA) was a forgery case, where the appellant had denied that the standard document was his. The court said (at 87): We are of the view that, in the circumstances of this case, where the applicant objected to the admissibility of Exhibit G and sought to have that question determined on a voir dire in order that he may give evidence on oath on the matter, the trial judge should have heard evidence on a voir

714

ROSS ON CRIME

[8.910]

dire on the relevant issue of fact and then determined whether he was satisfied on the balance of probabilities that the standard document was in the handwriting of the applicant. It is our opinion that, in the circumstances of this case, the failure of the trial judge to comply with the requirements of s 148 of the Evidence Act vitiated the verdicts of the jury.

[8.910] Relevance The disputed handwriting must be in some way relevant: R v Nicholas [1988] Tas SR 155 (Neasey J).

[8.915] Police document In R v Knight (2001) 160 FLR 465 (NSW CCA) the accused had been convicted of many offences of making false instruments and forgery. While he was in custody, the police had him fill out a form giving particulars of name, address, occupation and other details. No warning was given. The expert used that document in the handwriting comparison at trial. Held: appeal against conviction dismissed. The document was not an admission under Uniform Evidence Acts s 139 and the accused did not have to be cautioned. The document fell outside the privilege against self-incrimination.

[8.920] Expert evidence Expert evidence is often given: R v Browne-Kerr [1990] VR 78 (CCA) is an example. Glass JA said in R v Palmer [1981] 1 NSWLR 209; (1980) 1 A Crim R 458 (CCA) (at 214; 464): It is a commonplace experience in trials, both civil and criminal, before juries, for evidence of opinion to be received from both experts and non-experts in relation to ultimate issues for jury determination. I need only say, so far as expert evidence is concerned that this happens all the time with respect to scientific, medical and handwritten evidence and so far as concerns non-expert opinion, that this, too, is receivable for the purposes of identification or proof of speed.

[8.925] Is an expert necessary In England, to leave a question of handwriting to be decided by a jury unassisted by expert evidence is a dangerous course that should not be followed: R v Tilley [1961] 1 WLR 1309; [1961] 3 All ER 406; 45 Cr App R 360. This view was rejected in Australia. Malcolm CJ said in Grayden v The Queen [1989] WAR 208; (1988) 36 A Crim R 163 (CCA) (at 213; 168): The decision is ultimately for the tribunal of fact: Gawne v Gawne [1979] 2 NSWLR 449. Consequently, decisions of the Court of Criminal Appeal which suggest it is unsafe to leave the question of comparison to the jury without the guidance of an expert are inconsistent with Adami (1959) 108 CLR 605 and must be disregarded: see for example Tilley [1961] 1 WLR 1309; 3 All ER 406; 45 Cr App R 360.

In New Zealand an expert is necessary: R v Stephens [1999] 3 NZLR 81 (CA). See also Medina v The Queen (1990) 3 WAR 21; 46 A Crim R 132 (CCA). No expert evidence was given in Adami v The Queen (1959) 108 CLR 605.

[8.930] Directions to the jury where there is no expert evidence In Medina v The Queen (1990) 3 WAR 21; 46 A Crim R 132 (CCA) Walsh J, with whom the others agreed, examined authority and said (at 34; 144):

[8.1110]

HARBOURING

715

In Australia, although a trial judge can give a warning to the jury in respect of the process of comparing handwriting, in the absence of expert testimony, such a warning is not mandatory.

In Grayden v The Queen [1989] WAR 208; (1988) 36 A Crim R 163 (CCA) Malcolm CJ, with whom the others agreed, said (at 213–214; 168): The position in Australia appears to be that the trial judge can give a warning to the jury in respect of the process of comparing handwriting, where documents are left with it in the absence of expert testimony, unless the circumstances require it, but such a warning is not mandatory. The trial judge should, however, make it clear to the jury that the determination of the question of authorship is solely a matter for it: R v Leroy [1984] 2 NSWLR 441 at 446; (1984) 13 A Crim R 469 at 474; and Daley v The Queen [1979] Tas SR 75 at 82–83.

In R v Leroy [1984] 2 NSWLR 441; (1984) 13 A Crim R 469 (CCA) Street CJ, with whom the others agreed, said (at 446; 474): It is to be observed that his Honour specifically cautioned the jury to be guided by the handwriting expert. At the same time there was admissible evidence from Deborah Sheil that the writing on the application form appeared similar to that of the appellant, and it was open to the jury under the Evidence Act 1898 (NSW) to make the comparison itself, and to reach a conclusion on the matter. The jury had additional material beyond that available to the handwriting expert, providing a context in which apparent similarities might well have been regarded by the jury as sufficient to support a conclusion that the appellant was the author of the post office box application. I can myself find no error in the manner in which his Honour left the matter to the jury.

In R v Ahmed [2001] NSWCCA 450 (21 November 2001) (CCA) Bell J, with whom the others agreed, accepted (at [60] – [62]) Leroy and Grayden and said (at [64]): In my view there is nothing in the Evidence Act 1995 (NSW) that alters the approach expressed above.

HARBOURING Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Definition ..................................................................................................................................... Nature of the offence .................................................................................................................. Knowledge ...................................................................................................................................

[8.1100] [8.1105] [8.1110] [8.1115] [8.1120]

[8.1100] Meaning It is an offence to harbour an escaped prisoner.

[8.1105] Legislation Qld: Criminal Code s 145; WA: Criminal Code s 148; Tas: Criminal Code s 107; NT: Criminal Code s 114. NSW: Crimes Act 1900 ss 310G and 358C; SA: Criminal Law Consolidation Act 1935 s 255; ACT: Crimes Act 1900 s 164; Eng: Criminal Justice Act 1961 s 22(2). Victoria generally charges as accessory after the fact.

[8.1110] Definition In Darch v Weight [1984] 1 WLR 659; [1984] 2 All ER 245; 79 Cr App R 40 (QBD), Goff LJ said (at 661; 247; 43):

716

ROSS ON CRIME

[8.1115]

I am of the opinion that the word “harbour” in this context means to shelter a person, in the sense of giving refuge to that person. This is an ordinary dictionary meaning of the word. We have been referred to the Shorter Oxford English Dictionary (1973), p 925, and we can see, at no 3 under the heading of the word “harbour”, that it means “to give shelter to, to shelter”. This appears to me to be the natural meaning of the word in its context in this particular statute.

[8.1115] Nature of the offence In Darch v Weight [1984] 1 WLR 659; [1984] 2 All ER 245; 79 Cr App R 40 (QBD) Goff LJ said (at 662; 248; 44): Merely to assist or to provide support (in the sense in which I read it as being exclusive of shelter) would not be enough to commit the offence; there has to be a provision of shelter in the sense of providing a refuge for an escapee before there can be a conviction on the offence charged under the first part of section 22(2). Furthermore, if a person has not carried out any positive act to provide shelter for an escapee, I do not see how that person can be guilty of the offence in question.

[8.1120] Knowledge On the charge of accessory after the fact in R v Tevendale [1955] VLR 95 (CCA) Herring CJ said (at 96): [I]t is necessary, before a man can be convicted of being an accessory after the fact, that the jury be satisfied that he did know the principal offence had been committed by the principal felon; that if charged with assisting a thief it is necessary that he should know that the theft had been committed.

This was applied in R v Stone [1981] VR 737. Crockett J ruled (at 740): [W]hat must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts, or acts, that establish the precise felony with respect to which the Crown alleges the accused was an accessory.

HEARSAY Rule against hearsay ................................................................................................................... Rationale of the rule ................................................................................................................... To prove what was said .............................................................................................................. Statements of victim who later died .......................................................................................... Rule not to be applied inflexibly ................................................................................................ Uniform Evidence Acts .............................................................................................................. Common law exceptions generally ............................................................................................ Police acting upon information received ................................................................................... What the doctor said ................................................................................................................... Out of court statements .............................................................................................................. Confession by another to the crime: generally not admissible ................................................. Telephone call ............................................................................................................................. Res gestae exception ................................................................................................................... Examples ..................................................................................................................................... Knowledge or state of mind exception ...................................................................................... Spontaneity exception ................................................................................................................. Dying declaration exception ....................................................................................................... Tags, labels and postmarks ......................................................................................................... Ten aspects of hearsay ................................................................................................................

[8.1300] [8.1305] [8.1310] [8.1315] [8.1320] [8.1325] [8.1330] [8.1335] [8.1340] [8.1345] [8.1350] [8.1355] [8.1360] [8.1365] [8.1370] [8.1375] [8.1380] [8.1385] [8.1390]

[8.1300] Rule against hearsay In Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370 Dawson, Toohey and Gummow JJ said (at 22; 101; 385): Out of court statements are not evidence of the truth of what is said unless the statement falls within an exception to the rule against hearsay. One such exception admits evidence of a

[8.1310]

HEARSAY

717

confessional nature against the maker. Another renders admissible a statement made by a third party, since deceased, which is against his or her pecuniary or proprietary interest.

[8.1305] Rationale of the rule In R v Khelawon [2006] 2 SCR 787; (2006) 274 DLR (4th) 385; 215 CCC (3d) 161 (SCC) Charron J delivering the judgment of the court said (at 793; 388–389; 165 [2]): As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person’s perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking function.

In R v Howse [2006] 1 NZLR 433 (PC) Lord Roger of Earlsferry and Sir Andrew Leggatt, in dissent on other matters, said (at 450 [46]): [T]he court recognises the continuing importance of the basic exclusionary rule itself. It guards against the “dangers” in hearsay evidence. The nature of those dangers is well known. Second-hand reports are notoriously prone to be inaccurate. Most importantly, the person who made the allegation cannot be challenged in the court and the strengths and weaknesses of the allegation cannot be readily explored.

In Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394 the High Court said in a joint judgment (at 602; 400–401; 295 [32]): The common law of evidence has long focused upon the quality of the evidence that is given at trial and as required that the evidence that is given at trial is given orally, not least so that it might be subject to cross-examination. That is why the exclusionary rules of the common law have been concerned with the quality of the evidence tendered – by prohibiting hearsay, by permitting the giving of opinions about matters requiring expertise by experts only, by the “best evidence rule” and so on. And the concern of the common law is not limited to the quality of evidence, it is a concern about the manner of trial. One very important reason why the common law set its face against hearsay evidence was because otherwise the party against whom the evidence was led could not cross-examine the maker of the statement. Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.

[8.1310] To prove what was said Evidence of spoken words to prove the fact of what was said will be admissible if relevant. The rule against hearsay will exclude such evidence if tendered to prove the truth of such words. In Ratten v The Queen [1972] AC 378; [1971] 3 All ER 801; (1971) 56 Cr App R 18 (PC), Lord Wilberforce, giving the advice of the Board, said (at 387; 805; 23): The mere fact that evidence of a witness includes evidence as to words spoken by another person who is not called is no objection to its admissibility. Words spoken are facts just as much as any other action by a human being. If the speaking of the words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words spoken are relied on “testimonially”, ie as establishing some fact narrated by the words. Authority is hardly needed for this proposition, but their Lordships will restate what was said in the judgment of the Board in Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.

718

ROSS ON CRIME

[8.1315]

Thus in Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 the central issue was the admissibility of a woman’s telephone conversation with Mr Bull from which he inferred her consent to sexual intercourse by visiting his house. McHugh, Gummow and Hayne JJ said that the conversation was admissible. Their Honours, after referring to Subramaniam v Public Prosecutor [1956] 1 WLR 965 at 970 said (at 478; 640; 589 [118]): If the relevance of the evidence depended upon the truth of these assertions, the hearsay rule would make the evidence inadmissible. However, the relevance of the conversation depends not on the truth of these assertions but on the facts that Bull said “Oh if you come over here we might be able to do one of your fantasies if you want”, that, in relation to “cobwebs”, he said “Well maybe we can blow them away for you”, and that the complainant subsequently went to the house (which fact was not in dispute). Regardless of the truth value of these statements by Bull, the fact that they were made by Bull and that the complainant responded in the way she did is relevant to the complainant’s reason for going to the house in the light of her subsequent action in attending the house in response to the telephone call. Her state of mind – her reason for going to the house – was relevant to whether she consented to the sexual activities that took place after she arrived and her statements in their context were evidence of her state of mind: Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 at 288–289, 300–302, 307.

Other cases Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394; Klein v The Queen (2007) 172 A Crim R 290 (NSW CCA).

[8.1315] Statements of victim who later died In R v Howse [2006] 1 NZLR 433 (PC) the appellant had been convicted of murdering two step-daughters. The motive was said to be an effort to conceal the sexual indignities he had visited upon them. The trial judge admitted diary notes of those indignities and complaints to others. The Board advised that all this evidence was inadmissible hearsay. By a majority the Board applied the proviso and dismissed the appeal. The statement of a victim who died may be admitted as a dying declaration. Alternatively it may be part of the res gestae if it relates to the commission of the crime. In R v Plevac (1995) 84 A Crim R 570 (NSW CCA) a man had thrown petrol over a woman and set her on fire. The accused was her estranged husband. She died soon after. At the trial the judge admitted her conversation with the ambulance driver as part of the res gestae. (It was common ground that the conversation was not a dying declaration). Q: Did your husband or boyfriend do this? A: No. Q: Did you recognise the man who did? A: No, but my husband has something to do with this, he’s threatened me with this before. (She then sighed) To burn me. The court held in a joint judgment (at 577) that the second question and answer was inadmissible for they did not relate to the commission of the crime. And for that reason the first question and answer were admissible. Appeal allowed. Other cases R v Starr [2000] 2 SCR 144; 190 DLR (4th) 591; 147 CCC (3d) 449 (SCC); R v Hytch (2000) 114 A Crim R 573 (Qld CA); Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59.

[8.1325]

HEARSAY

719

Other cases Dying declaration at [4.6100]; Res gestae at [18.3000]; and Telephone at [20.500].

[8.1320] Rule not to be applied inflexibly In Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 Mason CJ said (at 293; 66; 282): The hearsay rule should not be applied inflexibly. When the dangers which the rule seeks to prevent are not present or are negligible in the circumstances of a given case there is no basis for a strict application of the rule. Equally, where in the view of the trial judge those dangers are outweighed by other aspects of the case lending reliability and probative value to the impugned evidence, the judge should not then exclude the evidence by a rigid and technical application of the rule against hearsay.

[8.1325] Uniform Evidence Acts In Vickers v The Queen (2006) 160 A Crim R 195 (NSW CCA) Simpson J, with whom the others agreed, said (at 208 [65]): Part 3.1 of the Evidence Act was designed and intended to relax the old common law prohibition on the admission of hearsay evidence. It was not designed or intended to abolish the prohibition altogether or to render remote (and therefore potentially extraneous and unreliable) hearsay statements admissible. It was intended to contain a brake upon the relaxation of the common law hearsay rule; that brake is contained in s 82.

The approach to hearsay under the Act is a significant departure from the common law. The UEA allows in a greater amount of out of court statements and effectively abolishes the distinction between admitting statements for their truth or simply to prove that they were made. Also, unlike the position at common law, implied (ie, unintended) assertions are not excluded under the hearsay rule. The definition of hearsay is not confined to representations made by people other than the witness. It also includes a previous representation made by a witness. The main exceptions relevant to criminal proceedings are: 1. evidence relevant for a non-hearsay purpose (s 60); 2. first-hand hearsay if the maker of the representation is unavailable (s 65) or available (s 66); 3. contemporaneous statements about a person’s health etc, (s 66A); 4. business records (s 69); 5. tags and labels (s 70); 6. electronic communications (s 71); 7. use of evidence in interlocutory proceedings (s 75); 8. admissions (s 81); 9. exceptions to the rule excluding evidence of judgments and convictions (s 92(3)); and 10. character of and expert opinion about accused persons (ss 110 and 111). Section 59 does not apply where a representation is relevant simply because it was made (ie, irrespective of its truth), as opposed to being relevant only if it is true. This is similar to the position at common law where representations that are relevant simply because they are

720

ROSS ON CRIME

[8.1330]

made are termed “original evidence”. The fact that original evidence is admissible under the Act is underlined by s 60, which states that the “hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact”. However, s 60 marks a considerable departure from the common law. At common law, where evidence was relevant for a non-hearsay purpose, it could only be used for that purpose. Section 60 changes this so that where evidence is admissible for a non-hearsay purpose it can be used as proof of the asserted fact. Thus, where for example, a prior inconsistent statement is admitted in order to discredit a witness, the out of court statement can now also be used as evidence of the contents of the statement. An important departure in the Act from the common law is the establishment of the concept of first-hand hearsay and the many exceptions that relate to this form of hearsay. Pursuant to s 62(1) a representation is first-hand hearsay when it was “made by a person who had personal knowledge of an asserted fact”. Section 62(2) then states: A person has personal knowledge of the asserted fact if his or her knowledge of the fact was, or might reasonably be supposed to have been, based on something that the person saw, heard or otherwise perceived, other than a previous representation made by another person about the fact.

If a representation fits this criteria it is first-hand hearsay and admissible if it also comes within the numerous exceptions that apply to this form of evidence. The exceptions are broadly based on the rationale that this form of evidence is more likely to be reliable than other forms of hearsay. An important part of the definition of first-hand hearsay is that the words “might reasonably be supposed” import an objective component into the test.This is especially important where the person who made the representation is not the person giving evidence of it in the witness box. See also Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394; Australian Handsets Pty Ltd (in liq) v Alvarez [2011] NSWSC 160

[8.1330] Common law exceptions generally In Adam v The Queen (2001) 207 CLR 96; 183 ALR 625; 123 A Crim R 280 Gaudron J said (at 113 [55] footnote 33): Common law exceptions to the hearsay rule included statements in public documents, admissions by a party against that party’s interests, voluntary confessions of criminal conduct, evidence given in earlier proceedings involving the same parties and similar issues, evidence of age, ancient documents produced from proper custody, expert opinion evidence (particularly as to the sources on which the expert opinion was based) and postmarks. See Cross on Evidence, 6th Aust ed (2000), Ch 17. See also Pollitt v The Queen (1992) 174 CLR 558 as to a more recent common law exception to the hearsay rule in relation to the identity of parties to a telephone conversation.

[8.1335] Police acting “upon information received” In R v Nguyen [1999] 1 VR 457; (1998) 104 A Crim R 169 (CA) the applicant had been convicted of heroin trafficking. Police had given evidence of attendance at the scene from “information received on that evening in relation to a suspected drug delivery”. The evidence was held to be hearsay and the appeal allowed.

[8.1340] What the doctor said In R v FP (2007) 169 A Crim R 318 (Qld CA) the appellant had been convicted of indecent dealing with a child under the age of 12 years. The complainant gave evidence of having an early period. She said that she went to the doctors. She then said what the doctor had told

[8.1350]

HEARSAY

721

her about the early period and that the doctors had said that something must have happened. No doctor gave evidence. At trial, defence counsel did not object to the hearsay evidence and even addressed on it. The trial judge did not direct the jury on the hearsay and defence counsel took no exception. Held: appeal allowed. The trial judge should have directed on the hearsay and the failure resulted in a miscarriage of justice.

[8.1345] Out of court statements An out of court statement by one accused is not evidence for or against another accused. In Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370 each of the two accused said the other had killed the two deceased by knife. The co-accused, Ms Calder, had spoken to two prosecution witnesses within two hours of the killing suggesting that she had killed the victims. The prosecution alleged that one or other of the accused was responsible for each death as principal and that the other acted in concert with or aided and abetted the principal, as the only evidence of who had done the stabbing was found in their own accounts. Ms Calder did not give evidence. Mr Bannon relied on those admissions of Ms Calder which exculpated him in that they inculpated her. The trial judge directed the jury that Ms Calder’s admissions could not be used by Mr Bannon. The High Court said the trial judge was right. In Jones v The Queen (2009) 83 ALJR 671; 254 ALR 626 two accused were charged with a stabbing murder. Each said that he was only an accessory to the other. Neither gave evidence. Mr Jones sought evidence from police that the co-accused had been charged and convicted of stabbing one of Mr Jone’s mates and its full details. He wanted to show his fear of the co-accused. The trial judge only allowed evidence that the co-accused was on bail on that charge, but forbade other evidence as hearsay. Held: the trial judge was correct. The evidence of the police witnesses would have been hearsay. Further, it was not relevant. In R v Lowrie [2000] 2 Qd R 529; (1999) 106 A Crim R 565 (CA) the trial judge had failed to give the proper direction, that is, that an accused’s out of court statement is evidence for or against that accused alone. It is not evidence for or against another accused. The appeal was allowed.

[8.1350] Confession by another to the crime: generally not admissible In Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370 Dawson, Toohey and Gummow JJ said (at 22; 101; 385): As the law stands in this country, there is no exception to the hearsay rule which renders admissible either against or in favour of an accused hearsay evidence of a confession by a co-accused or by a third party. See eg, In re Van Beelen (1974) 9 SASR 163: R v Szach (1980) 23 SASR 504: Wade v Gilroy (1986) 83 FLR 14; R v Greatorex (1994) 74 A Crim R 496.

Re Van Beelen (1974) 9 SASR 163 (FC) was a petition of mercy which was referred to the Full Court. A man called Sandercock had made a statement from which it might be inferred that he possessed such special knowledge of events that only a killer would know. The court held the statement to be inadmissible. In R v Szach (1980) 23 SASR 504; 2 A Crim R 321 (CCA) the accused was convicted of the murder of an Adelaide lawyer, Derrance Stevenson. The prosecution case was that they were homosexual lovers and that the accused shot Stevenson and put the body in a freezer. Before the body was found, a man spoke to the receptionist at the Legal Services Commission saying that he wanted to see a lawyer about a crime. The receptionist asked “Have you a solicitor?”“Only Derrance Stevenson but when I left him last night he was in

722

ROSS ON CRIME

[8.1355]

no condition to act for anyone”. The trial judge directed the jury to reject this as hearsay. On appeal, the Court of Criminal Appeal upheld the direction. King CJ said (at 572–573; 332): The jury was entitled to use the esoteric knowledge disclosed by the statement as the basis of an inference, if it saw fit to draw the inference, that the unknown man had been with the deceased on the previous night. It was not entitled to use the hearsay narrative as evidence that the unknown man had been with the deceased.

In R v Greatorex (1994) 74 A Crim R 496 (NSW CCA) the defence was wrongly stopped from cross-examining police on their failure to investigate a confession by a now dead man named David Arthur. He had allegedly confessed that it was he who deposited the drugs in a jar in the appellant’s garden and that she knew nothing of it. But the Court of Criminal Appeal said that such evidence could not be relied on to show the truth of the confession of Arthur. In R v Blastland [1986] AC 41; [1985] 2 All ER 1095; 81 Cr App R 226 (HL), the accused was convicted of murder of a boy after buggery. A man named Mark had successively made and withdrawn confessions. It was held that the confessions of Mark had been properly excluded as evidence. In Queensland, hearsay statements claiming responsibility for a killing are admissible in favour of some other person who is charged with the offence: R v Zullo [1993] 2 Qd R 572 at 574 (CCA); R v K; Ex parte Attorney-General (Qld) (2002) 132 A Crim R 108 at 113–114 [17] (CA); R v Martin (2002) 134 A Crim R 568 at 575 [21] (Qld CA).

Assertion by another that the accused did not commit the crime R v Ria [1994] 2 NZLR 212 (HC).

[8.1355] Telephone call In R v Astill (1992) 63 A Crim R 148 (NSW CCA) Kirby P (at 157) summarised Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59: In Walton (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59, the disputed evidence was of a telephone conversation with the deceased. It was relevant to establish who the caller was. After speaking for some time with the caller, the deceased had said to her three-year-old son “Daddy’s on the phone”. The son spoke to the caller saying “Hello Daddy”. There was evidence that the son called the accused, and no-one else, “Daddy”. The trial judge warned the jury that the evidence did not establish that the accused had telephoned the deceased to arrange the meeting which led to her death. However, he ruled that the evidence was admissible to show the deceased’s intention and expectation at the time the conversations took place. But he also directed the jury that the deceased’s statements should not be treated as evidence that she actually met the accused. The High Court unanimously held that, for some purposes at least, the evidence of the witness who overheard the telephone conversation was admissible. Wilson, Dawson and Toohey JJ held that the conversation could be admitted, save for the words uttered by the son, upon the ground that it showed that the deceased believed that the person she was arranging to meet was the accused. Deane J held that it was admissible on the ground that it was direct confirmatory evidence of the making of the arrangement. Mason CJ took a somewhat broader view. He considered that the evidence was admissible upon the Ratten [1972] AC 378; [1971] 3 All ER 801; 56 Cr App R 18 principle. He held that it would have been open to the trial judge to have admitted, as well, the evidence of the son’s statement for the purpose of identifying the maker of the telephone call. See also Benz (1989) 168 CLR 110 at 143; 26 and Pollitt (1992) 174 CLR 558; 108 ALR 1; 62 A Crim R 190 at 565f, 594, 621–622; 193f, 215–216, 237.

In Astill, the accused was convicted of manslaughter of a baby. The baby had been in the care of the occupants of a flat, one of whom was the accused. The death must have been

[8.1370]

HEARSAY

723

caused by the accused, Hughes or Trajkovski. The baby’s mother phoned three times. H or T spoke. On the first call T said the accused was asleep. Later calls established cause for concern. From this is to be inferred that H (with or without T) had assaulted the baby. All the witnesses were available. At the first trial evidence of the phone calls was admitted. In the second it was excluded. It was held that the evidence was improperly excluded and the appeal was allowed with a new trial ordered. See also R v Ryan (1984) 14 A Crim R 97 (NSW CCA). See also Telephone at [20.500].

[8.1360] Res gestae exception In Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 Wilson, Dawson and Toohey JJ said (at 304; 74; 290): An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion: Ratten [1972] AC 378; [1971] 3 All ER 801; 56 Cr App R 18 at 389–90; R v Andrews [1987] AC 281 at 300–1: see also Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 531. Of course, the discussion in Ratten [1972] AC 378; [1971] 3 All ER 801; 56 Cr App R 18 and Andrews [1987] AC 281 was in the context of the res gestae rule. The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267 at 273.

[8.1365] Examples In Ratten v The Queen [1972] AC 378; [1971] 3 All ER 801; 56 Cr App R 18 a telephonist was told “Get me the police please”. The Crown case was that the voice was that of the victim just before being shot by the accused. R v Benz (1989) 168 CLR 110; 44 A Crim R 1; 89 ALR 339 concerned a charge of murder against a de facto wife and her de facto stepdaughter. The deceased was battered and stabbed but died from drowning. On the bridge two women were seen in the early hours of the morning at the time of the alleged death. The younger woman said that her mother was feeling sick. See also Res gestae at [18.3000].

[8.1370] Knowledge or state of mind exception Note the decision in Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 in which Wilson, Dawson and Toohey JJ stated (at 300): When a person’s state of mind is relevant, evidence tending to prove that fact is admissible. That evidence may, of course, take the form of conduct on the part of the person whose state of mind is in question from which the state of mind might be inferred. But it might also take the form of statements made by the person or by another from which a similar inference might be made.

Deane J said (at 307): [E]vidence of a relevant out-of-court statement is admissible to prove the maker’s knowledge or state of mind in a case where that knowledge or state of mind is itself a fact in issue or provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue.

724

ROSS ON CRIME

[8.1375]

The evidence in question was of a witness who said that the victim told him she was going to meet the accused. Such evidence is often led by the defence. In Walton v The Queen 166 CLR 283; 38 A Crim R 276; 84 ALR 59 the majority said (at 301): An example of statements made by another being admissible in evidence upon this basis is to be found in Subramaniam v Public Prosecutor [1956] 1 WLR 965, a case in which the appellant was convicted in Malaya of being illegally in possession of ammunition. His defence was that he had been captured by terrorists and was at all times acting under duress. It was held by the Privy Council that the trial judge was in error in ruling out, as hearsay, evidence of a conversation between the terrorists and the appellant. The evidence was admissible, not to prove the truth of any statements made by the terrorists, but as bearing upon the state of mind of the appellant. As was observed at 970: The fact that the statement was made, quite apart from its truth, is frequently relevant in considering the mental state and conduct thereafter of the witness or of some other person in whose presence the statement was made. In the case before their Lordships statements could have been made, to the appellant by the terrorists, which, whether true or not, if they had been believed by the appellant, might reasonably have induced in him an apprehension of instant death if he failed to conform to their wishes. The evidence excluded in that case was, therefore, admissible. Evidence of a statement or statements made by the very person whose state of mind is in question may be similarly admissible.

So where an identifying witness forgets which photograph he identified from a folder of photographs prepared and shown to him by the police, evidence may be led of what the witness said and did at the time of identification: Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289. See also R v Goodall [1982] VR 33 (CCA).

[8.1375] Spontaneity exception In R v Astill (1992) 63 A Crim R 148 (NSW CCA), Kirby J said (at 156): There is a further basis upon which such evidence may be received. It is where the assertion is so apparently spontaneous as to lend weight to the conclusion that it was not concocted or self serving. This feature may then permit the reception of the evidence even over objection. The theoretical basis for doing so is, as Dixon J explained in Adelaide Chemical & Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514 at 532f: “reliance on the greater trustworthiness of statements made at once and without reflection …”. The fundamental basis for the disinclination of judges to exclude such evidence was explained by Lord Wilberforce in Ratten [1972] AC 378 at 389 (PC): The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply. In their Lordships’ opinion this should be recognised and applied directly as the relevant test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction … As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.

And later (at 391): These authorities show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.

On this exception the High Court warned in Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 per Wilson, Dawson and Toohey (at 304):

[8.1385]

HEARSAY

725

An assertion may be admitted to prove the facts asserted if it is part of the res gestae, but it is then an exception to the rule against hearsay: see Adelaide Chemical and Fertilizer Co Ltd v Carlyle (1940) 64 CLR 514. The justification for that exception is now said to lie in the spontaneity or contemporaneity of assertions forming part of the res gestae which tends to exclude the possibility of concoction or distortion. (authorities cited) … The unlikelihood of concoction or distortion is not sufficient of itself to render a hearsay statement admissible: see Vocisano v Vocisano (1974) 130 CLR 267, at 273.

[8.1380] Dying declaration exception See Dying declaration at [4.6100].

[8.1385] Tags, labels and postmarks Legislation Uniform Evidence Acts s 70 provide: 70. The hearsay rule does not apply to a tag or label attached to, or writing placed on, an object (including a document) if the tag or label or writing may reasonably be supposed to have been so attached or placed: (a) in the course of a business; and (b) for the purpose of describing or stating the identity, nature, ownership, destination, origin or weight of the object, or of the contents (if any) of the object.

(Evidence Act 1995 s 70 has extra sub-sections).

Hearsay documents at common law Label to show contents: Patel v Comptroller of Customs [1966] AC 356; [1965] 3 All ER 393 (PC); Gosden v Billerwell (1980) 47 FLR 357; 31 ALR 103; 2 A Crim R 1 (FCA) per Brennan J (at 361; 107–108; 5). Interview register to prove date and time of interview: R v Clune (No 1) [1975] VR 723 (CCA). Airline ticket to prove the name of a passenger: Re Gardner: Ex parte RJ Gardner Pty Ltd (1968) 13 FLR 345 (Gibbs J). Records on cards by employees showing engine, chassis and cylinder block numbers: Myers v DPP [1965] AC 1001; [1964] 2 All ER 881; 48 Cr App R 348 (HL).

Not hearsay documents at common law Postmark to show country of origin: R v Kelly (1975) 24 FLR 441 (SA CCA); R v Leroy [1984] 2 NSWLR 441; (1984) 13 A Crim R 469 (CCA). See also A Apps, “Verification of Photographs” (1992) 9 Aust Bar Rev 202; J Bartrouney, “Admissibility of Computer Produced Statements” (1993) 67 Law Inst J 611; GPJ McGinley and V Waye, “Implied Assertions and the Hearsay Prohibition” (1993) 67 ALJ 657; PB Carter, “Hearsay: Whether and Whither?” (1993) 109 LQR 573.; J Hunter, “Unreliable Memoirs and the Accused: Bending and Stretching Hearsay” (1994) 18 Crim LJ 76;

726

ROSS ON CRIME

[8.1390]

A Rein, “The Scope of Hearsay” (1994) 110 LQR 431; YF Lim, “A Logical View of the Hearsay Rule” (1994) 68 ALJ 724; KJ Arenson, “Unravelling the Hearsay Riddle; A Novel Approach” (1994) 16 Syd LR 342; DC Price, “The Hearsay Rule and Statements of Intention” (1995) 69 ALJ 594; A Palmer, “Hearsay: A Definition That Works” (1995) 14 U Tas LR 29.

[8.1390] Ten aspects of hearsay 1. The word “hearsay” properly means what a person says out of court and which is not admissible in evidence. Hence the term “the rule against hearsay”. 2. The reason for the rule is to reduce the chance of mistake or conjecture or invention of evidence. A witness may not properly remember what was said. Further it is not on oath and cannot be tested. 3. What a person says out of court is not admissible if it is not relevant or if a party wants to prove the truth of what was said. An example may be talk or a telephone call in the absence of the accused by a person who later dies. 4. What a person says out of court is admissible if it is relevant and if the party introducing the evidence wants to prove only the fact that the words were said but not their truth. 5. Courts talk about “exceptions to the rule against hearsay”. 6. A confession is an exception to the rule against hearsay. So what an accused says out of court can be admissible. A confession by one accused is not evidence for or against another accused. But in a joint crime such as conspiracy, what one accused says of the aims and plans which are on foot is evidence against all. 7. There are other exceptions to the rule against hearsay. They include the spontaneity exception, the dying declaration and the res gestae exception. 8. In a sexual case, recent complaint by the victim is admissible to show consistency. 9. There are statutory exceptions. An example is s 26E of the Evidence Act (NT) which says that the complaint of a child victim in a sexual case may be evidence of facts in issue. 10. The rule against hearsay applies to documents as well as to spoken words.

HINDER Legislation ................................................................................................................................... Definition ..................................................................................................................................... Honest and reasonable belief ...................................................................................................... Examples of hindering ................................................................................................................ Examples of non-hindering ........................................................................................................

[8.1500] Legislation It is an offence to hinder police. Cth: Australian Federal Police Act 1979 s 64; Qld: Police Service Administration Act 1990 ss 10, 20A; WA: Criminal Code s 172;

[8.1500] [8.1505] [8.1510] [8.1515] [8.1520]

[8.1520]

HINDER

727

Tas: Police Offences Act 1935 s 340; NT: Police Administration Act 1978 s 159 (hinder/obstruct police); NSW: Crimes Act 1900 s 546C; Vic: Summary Offences Act 1966 s 52 (obstruct/hinder police); SA: Summary Offences Act 1953 s 6(2); ACT: Crimes (Offences Against the Government) Act 1989 s 18(c).

[8.1505] Definition In Plunkett v Kroemer [1934] SASR 125 Napier J said (at 127): “hinder” is not a word of art, or capable of precise definition, and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. If the constable is frustrated in his attempt to perform his duty, or retarded in the execution thereof, then, clearly, he has been “hindered” but I think the fair and natural meaning of the word goes further than that. I think that a constable is “hindered” by any obstruction or interference that makes his duty substantially more difficult of performance.

In Leonard v Morris (1975) 10 SASR 528 (FC) Bray CJ said (at 531): Any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance is a hindering within the meaning of the section.

An overt act is necessary. Bray CJ said (at 530–531): Some overt act is required and mere inaction cannot amount to hindering.

[8.1510] Honest and reasonable belief In Towse v Bradley (1985) 60 ACTR 1; 73 FLR 341; 14 A Crim R 408 Blackburn CJ held (at 4; 343; 410): The appellant would have been entitled to be acquitted if she honestly and reasonably believed that the person hindered or resisted was not a police officer, or was not engaged in the execution of her duty at the time.

[8.1515] Examples of hindering Warning an offender of the approach of police: Terbutt v Holmes (1935) 52 WN (NSW) 223 (Bavin J) – a prostitute; Lenthall v Curran [1933] SASR 248 (FC) – hotel bettors; Young v Owen (1972) 19 FLR 70 (NT, Forster J) – speeding motorists; Maingay v Mansfield (1919) 21 WALR 70 (FC) – hotel open after hours (patrons); Hinchcliffe v Sheldon [1955] 1 WLR 1207; [1955] 3 All ER 406 – hotel open after hours (licensee).

[8.1520] Examples of non-hindering Hogben v Chandler [1940] VLR 285 (Martin J) – advice not to answer police questions. Cth: Competition and Consumer Act 2010 s 45D(1); Curran v Thomas Borthwick (1990) 26 FLR 241 (FCA, Gray J); BLF v J-Corp (1993) 42 FCR 452; 114 ALR 551 (FCA);

728

ROSS ON CRIME

[8.1700]

NSW: Crimes Act 1900. R v Keenan (1994) 76 A Crim R 374 (NSW CCA); Plumb v Rayner (1995) 84 A Crim R 402 (NSW, Bruce J).

HIV Meaning ....................................................................................................................................... Transmission ............................................................................................................................... Action .......................................................................................................................................... Cases ............................................................................................................................................ Legislation ...................................................................................................................................

[8.1700] [8.1705] [8.1710] [8.1715] [8.1720]

[8.1700] Meaning HIV is an acronym for human immunodeficiency virus. HIV can result in AIDS: acquired immunodeficiency syndrome.

[8.1705] Transmission HIV is transmitted by penetrative sexual intercourse: vaginal, anal or oral. It can be transmitted by transfusion of infected blood. This caused the death of tennis champion Arthur Ashe in 1993. Sharing contaminated needles during drug injections is another cause. It passes from infected mother to infant during pregnancy.

[8.1710] Action There are two types of HIV: HIV-1 and HIV-2. HIV-1 is responsible for the vast majority of AIDS cases in Australia and the United States. HIV-2, seen more often in western Africa, has a slower course than HIV-1. HIV is especially lethal because it attacks the very immune system cells (variously called T4, CD4, or T-helper lymphocytes) that would ordinarily fight off such a viral infection. Receptors on these cells appear to enable the viral RNA to enter the cell. As with all retroviruses, once the RNA is inside the cell, an enzyme called reverse transcriptase allows it to act as the template for its own RNA to DNA transcription. The resultant viral DNA inserts itself into a cell’s DNA and is reproduced along with the cell and its daughters. See also Houghton v The Queen (2004) 28 WAR 399; 144 A Crim R 343 (at 402–403; 346 [11] – [14] (CCA)).

[8.1715] Cases Cases on an HIV infected person having unprotected sexual intercourse: R v Reid (2006) 162 A Crim R 377 (Qld CA); Houghton v Western Australia (2006) 32 WAR 260; 163 A Crim R 226 (CA); Houghton v The Queen (2004) 28 WAR 399; 144 A Crim R 343 (CCA); R v Dica [2004] QB 1257; [2004] 3 All ER 593 (CA); R v Cuerrier [1998] 2 SCR 371; 162 DLR (4th) 513; 127 CCC (3d) 1 (SCC); Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397 (Mandie J); R v Mwai [1995] 3 NZLR 149 (CA);

[8.1905]

HOSTILE WITNESS

729

R v Konzani [2005] 2 Cr App R 198 (CA).

[8.1720] Legislation Tas: HIV/AIDS Preventive Measures Act 1993 s 20.

HOSTILE WITNESS Definition ..................................................................................................................................... Uniform Evidence Acts – Unfavourable witness ...................................................................... Earlier statement ......................................................................................................................... Proof of earlier statement ........................................................................................................... Making the application ............................................................................................................... Voir dire to determine hostility .................................................................................................. Prosecution duty .......................................................................................................................... Nature of cross-examination ....................................................................................................... Appeal ......................................................................................................................................... Evidential effect of inconsistent statement ................................................................................ Uniform Evidence Acts ..............................................................................................................

[8.1900] [8.1905] [8.1910] [8.1915] [8.1920] [8.1925] [8.1930] [8.1935] [8.1940] [8.1945] [8.1950]

[8.1900] Definition In R v Hutchinson (1990) 53 SASR 587; 49 A Crim R 229 (CCA) King CJ reviewed the authorities and said (at 592; 234): [T]he correct test as laid down by the High Court is whether the witness is deliberately withholding material evidence by reason of an unwillingness to tell the whole truth at the instance of the party calling him or for the advancement of justice. The test so formulated does not depend upon the motive of the witness in withholding evidence or, of course, giving false evidence. If a witness gives false evidence or withholds evidence by reason of an unwillingness to tell the truth or the whole truth at the instance of the party calling him or for the advancement of justice, it matters not whether his motive is hostility to the cause of the party calling him, sympathy for the cause of that party’s opponent, desire to advance or protect his own interest in some way, or some other motive. The crucial consideration is that the party calling the witness is unable, by reason of the witness’s unwillingness to tell the truth or the whole truth, to elicit the true facts by non-leading questions.

The basis for determination is demeanour and earlier statement. In Russell v Dalton (1883) 4 NSWR 261 (FC) Windeyer J said (at 266): If the judge could only determine whether a witness was hostile by his demeanour, it appears to me that the remedial object of the statute would be defeated by a witness of cool demeanour, such as would deceive the presiding judge. The best evidence of a witness being hostile is that he deceives the attorney of the side which calls him as to the evidence which he is about to give.

Approved: McLennan v Bowyer (1961) 106 CLR 95 at 103.

[8.1905] Uniform Evidence Acts – Unfavourable witness The Uniform Evidence Acts s 38 refers to “unfavourable witness”. See Adam v The Queen (2001) 207 CLR 96; 183 ALR 625; 123 A Crim R 280; R v Le (2002) 54 NSWLR 474; 130 A Crim R 44 (CCA); R v Cakovski (2002) 133 A Crim R 18 (NSW, O’Keefe J); R v White (2003) 140 A Crim R 63 at 74 [66] (NSW CCA); R v Anyang [2011] VSC 31; NM Rural Enterprises Pty Ltd v Rimanui Farms Ltd [2011] NSWSC 203.

Other legislation Qld: Evidence Act 1977 s 17; WA: Evidence Act 1906 ss 20, 21;

730

ROSS ON CRIME

[8.1910]

SA: Evidence Act 1929 s 27; NZ: Evidence Act 2006 s 94; Can: Canada Evidence Act s 9.

[8.1910] Earlier statement A witness may be declared hostile on the basis of a prior inconsistent statement: R v Hayden [1959] VR 102 (Sholl J); McLennan v Bowyer (1961) 106 CLR 95 at 103–104; R v Jacquier (1979) 20 SASR 543 at 554 (FC). The prior inconsistent statement need not be written. It may be oral: R v Prefus (1988) 86 Cr App R 111 at 115 (CA).

[8.1915] Proof of earlier statement In the absence of the jury: • The attention of the witness should be taken to the earlier statement: Price v Bevan (1974) 8 SASR 81 (FC) at 87 and 90. A voir dire may be necessary: R v Hadlow [1992] 2 Qd R 440; (1991) 56 A Crim R 11 at 442–443, 13–15 (CCA); R v Coventry (1997) 7 Tas R 199; 98 A Crim R 46 (Slicer J). • If a witness admits making the statement, further proof is unnecessary. • If the statement is not admitted, the witness is usually stood down for another witness to give evidence that the statement was made: Cheney v The Queen (1991) 28 FCR 103; 99 ALR 360 at 125k, 382 (FCA).

[8.1920] Making the application Almost always the party calling the witness applies during examination-in-chief that the witness be declared hostile. But the application can also be made in re-examination: Willis v Magistrates’ Court (Vic) (1996) 89 A Crim R 273 at 279 (Vic, Smith J).

[8.1925] Voir dire to determine hostility In R v Coventry (1997) 7 Tas R 199; 98 A Crim R 46 Slicer J made the following ruling (at 204; 50): Accepting the above analysis, the permitted conclusion is that a party seeking to have a witness declared hostile for the purpose of the Act, s 98(2), ought be permitted to: • have the matter determined by means of voir dire examination; • establish the existence or otherwise of previous inconsistent statements; • examine the circumstances of inconsistency and the reasons thereof; • pursue such examination by means of leading questions; • challenge responses to such leading questions by means of cross-examination; where necessary prove by means of independent evidence the existence of inconsistency and “hostility”; provided that such questioning and eliciting of evidence are confined to the existence and nexus of inconsistency with an attitude referable to the case. General questioning of character and prior conduct are ordinarily irrelevant to the issue.

[8.1950]

HOSTILE WITNESS

731

The refusal to allow cross-examination is wrong. In R v Ashton (1999) 108 A Crim R 200 (Qld CA) the trial judge had allowed the examination of a witness alleged to be hostile to the prosecution on the voir dire. The defence counsel was not permitted to cross-examine. On appeal held that such cross-examination should have been allowed but that there was no miscarriage of justice. See also Voir dire at [22.1700].

[8.1930] Prosecution duty At common law the prosecution should not call a witness known to be hostile: Blewitt v The Queen (1988) 62 ALJR 503; 80 ALR 353 at 505, 355; R v Lawless (1994) 98 Cr App R 342 at 349; R v Schreik [1997] 2 NZLR 139 (CA). Under the Uniform Evidence Acts it is not improper to call a hostile witness for the purpose of putting the statement into evidence: R v Adam (1999) 47 NSWLR 267 (CCA).

[8.1935] Nature of cross-examination In R v Smith [No 2] (1995) 64 SASR 1; 80 A Crim R 491 (CCA) Mullighan J in the leading judgment said (at 17–18; 506): In Price v Bevan (1974) 8 SASR 81, Bray CJ, having acknowledged that once a witness has been allowed to be cross-examined as hostile, it is a full cross-examination, went on to say (at 88): If he makes a further statement in the box inconsistent with some prior statement of his, such prior inconsistent statement may be proved in exactly the same way, but again its precise circumstances must first be put to him and the rebutting witness is limited to giving evidence of the precise inconsistent statement so put and must do so orally in the absence of some document authenticated by the hostile witness.

[8.1940] Appeal In R v Hunter [1956] VLR 31 (CCA) the court said (at 32): The question whether a witness is hostile is for the trial Judge to determine, and his discretion in allowing cross-examination by the party who called him will not, except in very exceptional circumstances, be interfered with on appeal – Rice v Howard (1886) 16 QBD 681; R v Williams (1913) 29 TLR 188. His discretion may, however, be open to appeal if he has in its exercise taken into account matters which he should not have considered.

[8.1945] Evidential effect of inconsistent statement In Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 McHugh, Gummow and Hayne JJ said (at 466; 631 [79]): [W]hen a witness has been declared a hostile witness and admits that he or she has made an inconsistent statement, the contents of the statement are not proof of the facts therein stated: Golder v The Queen (1960) 45 Cr App R 5 at 11; R v Thynne [1977] VR 98 at 100. The matter is different if the witness not only admits that he or she made an inconsistent statement but also deposes that the facts in that statement are true. In that situation, the contents of the statement are evidence of the facts which it contains: Birkett v AF Little Pty Ltd [1962] NSWR 492; R v Thynne [1977] VR 98 at 100–101.

[8.1950] Uniform Evidence Acts Section 38 of the UEA deals with what at common law are known as hostile witnesses. This liberalises the law beyond that at common law. Under the UEA the relevant term is unfavourable; not hostile, and cross examination of one’s witness is admitted more liberally under the UEA than at common law.

732

ROSS ON CRIME

[8.2100]

There are three situations under the Act in which a party can cross-examine its own witness with leave of the court: (i) about a prior inconsistent statement; (ii) where the witness appears to be refusing to genuinely give evidence about a matter of which they are aware and (iii) where the witness gives evidence that is unfavourable. The third situation is the most unclear and has generated the most case analysis. Factors set out in (i) and (ii) often are relevant to establishing the third criteria – although it is only necessary to establish one of the three criteria to lay a foundation for cross-examination of one’s own witness. Where one of these criteria is established, leave must still be granted in order for cross-examination to be permitted. Where a party is given leave to cross examine its own witness, it is not cross-examination at large, but rather in relation to the subject matter upon which leave was based: R v Taylor [2003] NSWCCA 194 at [77]-[88]. In addition to this, with leave, the witness can be questioned about matters solely going credibility. See, DPP v Nair (2009) 170 ACTR 15, 236 FLR 239; [2009] ACTCA 17; Razzak v The Queen (2008) 191 A Crim R 530; [2008] NSWCCA 304; R v SH (2011) 6 ACTLR 1; 256 FLR 123; [2011] ACTSC 198.

HOUSEBREAKING The offence of housebreaking .................................................................................................... Housebreaking (Qld) ................................................................................................................... Housebreaking (NSW) ................................................................................................................ Dwelling house ........................................................................................................................... Consent or claim of right ........................................................................................................... Possession of instruments of housebreaking .............................................................................. The nature of the instrument ...................................................................................................... Possession .................................................................................................................................... Possession after arrest is not sufficient ...................................................................................... Sentence ......................................................................................................................................

[8.2100] [8.2105] [8.2110] [8.2115] [8.2120] [8.2125] [8.2130] [8.2135] [8.2140] [8.2145]

[8.2100] The offence of housebreaking Housebreaking exists as an indictable offence in Queensland and New South Wales. In the Northern Territory the offence is unlawful entry of buildings (NT: Criminal Code s 213). Elsewhere the offence is burglary.

[8.2105] Housebreaking (Qld) See Qld Criminal Code s 419. The offence may be committed by day. Housebreaking in the night or with other aggravating circumstances is deemed to be burglary. In s 1, “night” is defined as the interval between 9 pm and 6 am. (Note that the NT: Criminal Code s 1 has a similar definition.)

[8.2110] Housebreaking (NSW) The offence of housebreaking is proscribed by s 109(1) of the Crimes Act 1900: 109.(1) Whosoever: enters the dwelling-house of another, with intent to commit a serious indictable offence therein, or, being in such dwelling-house commits any serious indictable offence therein, and in either case breaks out of the said dwelling-house shall be liable to imprisonment for fourteen years.

[8.2115] Dwelling house A dwelling house does not include a structure which contains a number of flats or units: R v Tahau [1975] 1 NSWLR 479 (Yeldham J).

[8.2135]

HOUSEBREAKING

733

[8.2120] Consent or claim of right Consent or its absence is not an element of the offence and does not affect the criminality of the entry: R v Rigney [1996] 1 Qd R 551; (1995) 86 A Crim R 9 (CA). The earlier decision of R v Williams [1988] 1 Qd R 289; (1986) 21 A Crim R 460 (CCA) was doubted. Williams had held that where there is evidence of consent to enter a house or entry is made by claim of right, the judge must leave such defences to the jury.

[8.2125] Possession of instruments of housebreaking It is an offence to possess instruments of housebreaking.

Legislation Qld: Criminal Code s 425(1)(c); WA: Criminal Code s 407(c); Tas: Criminal Code s 248(b); Police Offences Act 1935 s 7(3); NT: Criminal Code s 215; Summary Offences Act 1978 s 57(1)(e); NSW: Crimes Act 1900 s 114(1)(b); Vic: Crimes Act 1958 s 91; Summary Offences Act 1966 s 49D; SA: Criminal Law Consolidation Act 1935 s 171(2); Summary Offences Act 1953 s 15(1)(b); NZ: Crimes Act 1961 ss 243 and 244; Eng: Theft Act 1968 s 25(1); Can: Criminal Code s 351(1).

[8.2130] The nature of the instrument In R v Patterson [1962] 2 QB 429; [1962] 1 All ER 340; 46 Cr App R 106 (CA Cr D), Lord Parker CJ, delivering the judgment of the court, said (at 435; 343; 112): It seems to the court that, in the first instance, the prosecution must prove that the prisoner was found in possession by night of either an implement which can properly be described as one of those specifically named in the section, or of an implement capable in fact of being used as a housebreaking implement from its common though not exclusive use for that purpose or from the particular circumstances of the case in question. Once possession of such an implement has been shown, the burden shifts to the prisoner to prove on the balance of probabilities that there was lawful excuse for his possession of the implement at the time and place in question.

Approved: R v Korac (1978) 18 SASR 317 at 320 (FC). R v Pierpoint (1993) 71 A Crim R 187 at 192 (NSW CCA). In Notman v Owen (unreported, Vic SC, 28 May 1982) Starke J held that a false moustache, two wigs, walkie-talkies and oxyacetylene equipment were not instruments of housebreaking. His Honour said they were not ejusdem generis with “pick-lock key, crow, jack or bit”.

[8.2135] Possession The possession must be an actual physical possession and not a constructive possession: R v Yates (1963) 80 WN (NSW) 744 (CCA). In R v Pierpoint (1993) 71 A Crim R 187 (NSW CCA) the accused’s son was carrying bolt cutters. The accused did not know of it and was drunk. Appeal allowed. Acquittal entered.

734

ROSS ON CRIME

[8.2140]

[8.2140] Possession after arrest is not sufficient In R v Harris [1924] All ER Rep 286; (1924) 18 Cr App R 157 (CCA) Lord Hewart CJ, delivering the judgment of the court, said (at 287; 159): Possession after arrest does not satisfy the statute.

[8.2145] Sentence R v Josey; Ex parte Attorney-General (2003) 138 A Crim R 292 (Qld CA); R v Sinclair (1993) 66 A Crim R 284 (WA CCA); See also Burglary at [2.4500]; Knowledge at [11.700]; Possession at [16.2700]; and Recent possession at [18.1200].

HUMAN RIGHTS Declaration of Human Rights (United Nations, 1948) .............................................................. Legislation and cases .................................................................................................................. Statutory Interpretation ............................................................................................................... Application ..................................................................................................................................

[8.2300] [8.2305] [8.2315] [8.2320]

[8.2300] Declaration of Human Rights (United Nations, 1948) The declaration On 10 December, 1948 the General Assembly of the United Nations adopted and proclaimed the Universal Declaration of Human Rights the full text of which appears in the following pages. Following this historic act the Assembly called upon all Member countries to publicize the text of the Declaration and “to cause it to be disseminated, displayed, read and expounded principally in schools and other educational institutions, without distinction based on the political status of countries or territories”.

Preamble Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people, Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law, Whereas it is essential to promote the development of friendly relations between nations, Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom, Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

[8.2300]

HUMAN RIGHTS

735

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge, Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Articles: 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood. 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. 3. Everyone has the right to life, liberty and security of person. 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms. 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. 6. Everyone has the right to recognition everywhere as a person before the law. 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination. 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law. 9. No one shall be subjected to arbitrary arrest, detention or exile. 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him. 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

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[8.2300]

12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks. 13. (1) Everyone has the right to freedom of movement and residence within the borders of each state. (2) Everyone has the right to leave any country, including his own, and to return to his country. 14. (1) Everyone has the right to seek and to enjoy in other countries asylum from persecution. (2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations. 15. (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. 16. (1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. (2) Marriage shall be entered into only with the free and full consent of the intending spouses. (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State. 17. (1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property. 18. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. 19. Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. 20. (1) Everyone has the right to freedom of peaceful assembly and association. (2) No one may be compelled to belong to an association.

[8.2300]

HUMAN RIGHTS

737

21. (1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives. (2) Everyone has the right of equal access to public service in his country. (3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. 22. Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. 23. (1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment. (2) Everyone, without any discrimination, has the right to equal pay for equal work. (3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. (4) Everyone has the right to form and to join trade unions for the protection of his interests. 24. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay. 25. (1) Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control. (2) Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection. 26. (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit. (2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.

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(3) Parents have a prior right to choose the kind of education that shall be given to their children. 27. (1) Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author. 28. Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized. 29. (1) Everyone has duties to the community in which alone the free and full development of his personality is possible. (2) In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (3) These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations. 30. Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.

Not a treaty but an influence In Newcrest Mining (WA) v Commonwealth (1997) 190 CLR 513; 147 ALR 42 Kirby J said (at 658; 148): One highly influential international statement on the understanding of universal and fundamental rights is the Universal Declaration of Human Rights. That document is not a treaty to which Australia is a party. Indeed it is not a treaty at all. It is not part of Australia’s domestic law, still less of its Constitution…Nevertheless, it may in this country, as it has in other countries, influence legal development and constitutional interpretation … At least it may do so where its terms do not conflict with, but are consistent with, a provision of the Constitution. [Citations omitted.]

Paradox In Gerhardy v Brown (1985) 159 CLR 70; 57 ALR 472 Mason J said (at 102; 495): The concept of human rights as it is expressed in the Convention and in the United Nations Universal Declaration of Human Rights evokes universal values ie values common to all societies. This involves a paradox because the rights which are accorded to individuals in particular societies are the subject of infinite variation throughout the world with the result that it is not possible, as it is in the case of a particular society, or in the case of homogeneous societies, which are grouped together eg the European Economic Community, to distil common values readily or perhaps at all. Although there may be universal agreement that a right is a universal right, there may be no universal or even general agreement on the content of that right.

[8.2305] Legislation and cases The following jurisdictions have specific legislation on human rights: Australia: International Covenant on Civil and Political Rights (treaty adopted);

[8.2305]

HUMAN RIGHTS

739

Vic: Charter of Human Rights and Responsibilities Act 2006; ACT: Human Rights Act 2004; NZ: New Zealand Bill of Rights Act 1990; Can: Canadian Charter of Rights and Freedoms; Eng: Human Rights Act 1998; EEC: European Convention on Human Rights. As noted above, there are only two Australia jurisdictions with a human rights charter. Both the Australian Capital Territory and Victorian Charters are derived from the International Covenant on Civil and Political Rights 1966 (ICCPR). These Charters are not conventional legislative instruments. They do not create stand-alone legal rights. The fact that a right in the Charters is violated does not confer an aggrieved individual a legal remedy. The Charters are a hybrid between a legal instrument and an educational instrument. By way of overview, the Charter impacts on Australian Capital Territory and Victorian law in the following three ways: • requiring all statutes to be interpreted in light of the Charter; • imposing special responsibilities on public authorities to accord Charter rights; • requiring statements of compatibility with human rights to be prepared in respect of all Bills before Parliament. There are numerous rights enshrined in the Victorian Charter. By way of overview, they are: 1. recognition and equality before the law (s 8); 2. right to life (s 9); 3. protection from torture and cruel, inhuman or degrading treatment (s 10); 4. freedom from forced work (s 11); 5. freedom of movement (s 12); 6. privacy and reputation (s 13); 7. freedom of thought, conscience, religion and belief (s 14); 8. freedom of expression (s 15); 9. peaceful assembly and freedom of association (s 16); 10. protection of families and children (s 17); 11. taking part in public life (s 18); 12. cultural rights (s 19); 13. property rights (s 20); 14. right to liberty and security of person (s 21); 15. humane treatment when deprived of liberty (s 22); 16. children in the criminal process (s 23); 17. fair hearing (s 24);

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ROSS ON CRIME

[8.2320]

18. rights in criminal proceedings (s 25); 19. right not to be tried or punished more than once (s 26); and 20. prohibition against retrospective criminal laws (s 27).

Interpretation The general approach to applying the interpretive provision of the Victorian Charter was discussed in Momcilovic v The Queen (2011) 85 ALJR 957; 209 A Crim R 1; 280 ALR 221; [2011] HCA 34. This is the first (and to date only) decision of the High Court to consider the operation of the Charter. The High Court decision did not provide authoritative clarity on these provisions because the majority of the Justices decided the matter on a basis that did not involve the application of the Charter. The court (by majority – French CJ, Gummow, Hayne, Crennan and Kiefel JJ) allowed the appeal on another basis. However, the Charter did receive considerable analysis by some members of the court. By way of overview, all members of the court except for Heydon J held that the key provisions of the Charter in the form of ss 7 and 32 were valid. Heydon J held that the entire Charter was invalid. In relation to s 32 (the interpretive clause), French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that it was valid and operated as normal rule of statutory interpretation. It cannot be applied so aggressively to permit the court to effectively re-write legislation. To this end, the court opted for a more modest approach to the application of s 32 than the equivalent provision in the United Kingdom. French CJ stated:5 According to French CJ and Crennan and Kiefel JJ, s 7(2) (the limitation clause) cannot be engaged until after the s 32 analysis has occurred. A different approach was endorsed by Gummow J, Hayne J and Bell J regarding the intersection of ss 7 and 32. On their approach, s 7(2) is part of the definition of rights that are set out in Pt 2 of the Charter. Thus, in applying s 32 to statutory provisions, it is necessary to do so in the context of the limitations to the right set out in s 7(2). In WK v The Queen, Nettle J noted the uncertainty following the High Court decision in Momcilovic v The Queen (2011) 85 ALJR 957; 209 A Crim R 1; 280 ALR 221; [2011] HCA 34 in the following terms: … [T]he judgments of the High Court in Momcilovic v The Queen (2011) 85 ALJR 957; 209 A Crim R 1; 280 ALR 221; [2011] HCA 34 do not yield a single or majority view as to what is meant by interpreting a statutory provision in a way that is compatible with human rights within the meaning of s 32 of the the Charter. As it appears to me, French CJ and Crennan and Kiefel JJ took a view of s 32 which is similar to that adopted by this court in R v Momcilovic (2010) 25 VR 436; 200 A Crim R 453; 265 ALR 751; [2010] VSCA 50; Gummow, Hayne and Bell JJ took a broader view of s 32, which attributes greater significance and utility to s 7; and Heydon J concluded that s 32 is invalid. Assuming that s 32 is not invalid, one is left with a choice between the other two approaches.

In Noone v Operation Smile (Aust) Inc it was also noted that there was no ratio from Momcilovic v The Queen (2011) 85 ALJR 957; 209 A Crim R 1; 280 ALR 221; [2011] HCA 34 regarding the manner in which the Charter should be interpreted.

[8.2320] Application Human Rights have been applied in more cases than can be listed here. But some of them are as follows: Ragg v Magistrates’ Court (2008) 18 VR 300; 179 A Crim R 568 (Bell J); R v JA (2007) 1 ACTLR 126; 161 ACTR 1; 212 FLR 309; 174 A Crim R 151 (Higgins CJ);

[8.2515]

HYPNOSIS

741

A v Home Department (No 2) [2006] 2 AC 221; [2005] 3 WLR 1249; [2006] 1 All ER 575 (HL); Re Attorney-General’s Reference No 2 of 2001 [2004] 2 AC 72; [2004] 1 All ER 1049; [2004] 1 Cr App R 245 (HL).

HYPNOSIS Meaning ....................................................................................................................................... Disclosure to the defence ........................................................................................................... Onus on party seeking to lead evidence to show its reliability ................................................ Guidelines .................................................................................................................................... Hypnosis and EMDR .................................................................................................................. Evidence excluded ......................................................................................................................

[8.2500] [8.2505] [8.2510] [8.2515] [8.2520] [8.2525]

[8.2500] Meaning Hypnosis is a seeming deep sleep where the subject is likely to accept any suggestion or answer any question posed by the person who induced the sleep (the hypnotist). The term is derived from Hypnos, the Greek god of sleep.

[8.2505] Disclosure to the defence The fact that a prosecution witness has undergone hypnosis must be disclosed to the defence and if required by the defence the prosecution must supply all material relevant to the hypnosis: R v McFelin [1985] 2 NZLR 750 at 751 (CA); R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 at 172 (CCA); R v Browning [1995] Crim LJ 227 (CA). In R v Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 Hunt CJ at CL ruled (at 715; 4): The Court of Appeal (in R v McFelin [1985] 2 NZLR 750) also stated that the fact that a witness was hypnotised should be disclosed to the accused, and all relevant transcripts and information provided to the accused on request. In my view, such information (including video recordings) should be made so available well in advance of the trial, to enable the accused to have the assistance of his own expert witnesses in relation to that material.

The purpose of the hypnosis is irrelevant. In R v Tillott (1995) 38 NSWLR 1; 83 A Crim R 151 (CCA) Abadee J said (at 17; 167): [T]he vice sought to be avoided is the admission of potentially unreliable evidence and it does not matter how it was sourced, revived, or the purpose for which that evidence was revived. One is not concerned with whether the potentially unreliable evidence was obtained by a forensic or therapeutic route, or an accidental or deliberate route. The need for safeguards is not addressed to or concerned with whether the procedure is accidental, deliberate, forensic or therapeutic.

[8.2510] Onus on party seeking to lead evidence to show its reliability In R v Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 Hunt CJ at CL ruled (at 714; 3): According to R v McFelin [1985] 2 NZLR 750, the onus lies upon the party seeking to introduce the hypnotically induced evidence to establish that it is safe to admit that evidence in the particular case, in the sense (as I understand it) that it is sufficiently reliable as to provide a prima facie reason for admitting the evidence.

[8.2515] Guidelines In R v Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 Hunt CJ at CL ruled (at 714–715; 3–4):

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ROSS ON CRIME

[8.2515]

[T]he trial courts of New South Wales should follow the guidelines put forward in McFelin, which were in turn adopted (and to some extent adapted) from the requirements of the California Evidence Code. The distinction between guidelines and requirements is an important one to notice. The California Evidence Code imposes the following requirements upon the admissibility of hypnotically induced evidence (I have added my comments in relation to them): 1. The hypnotically induced evidence must be limited to matters which the witness had recalled and related prior to the hypnosis. (I shall refer to that as “the original recollection”.) In other words, evidence will not be allowed where its subject matter was recalled for the first time under hypnosis or thereafter. The effect of that restriction is that only detail recalled for the first time under hypnosis or thereafter will be allowed to be given in evidence. 2. The substance of that original recollection must have been preserved, in written, audio or video-recorded form. 3. The hypnosis must have been conducted in accordance with the following procedures: (a) the witness gave informed consent to the hypnosis; (b) the hypnosis was performed by a person who is experienced in its use and who is independent of the police, the prosecution and the accused; (c) the witness’s original recollection and other information supplied to the hypnotist concerning the subject matter of the hypnosis was recorded in writing in advance of the hypnosis; and (d) the hypnosis was performed in the absence of the police, the prosecution and the accused, but was video-recorded. In my view, these procedures are designed: (1) to avoid the generally accepted dangers of hypnosis that, in the heightened level of susceptibility to suggestion which is characteristic of a person in an hypnotic state, the witness may subconsciously be influenced by suggestions or cues planted intentionally or otherwise during the hypnosis, and (2) to assist the trial judge in determining whether there is any likelihood that: (i) the witness has merely confabulated (that is, has subconsciously filled in gaps in his or her memory by guessing or by fantasising); or (ii) the witness has acquired a stronger and artificial confidence in his or her original recollection; or (iii) the ability of the accused to cross-examine the witness concerning that original recollection has been impaired. (Confabulation is apparently also known by the somewhat more emotive term “pseudomemory”.) These matters must be established to the satisfaction of the trial judge in a voir dire hearing, at which expert testimony is admissible as to the reliability of the witness’s evidence. The guidelines put forward by the New Zealand Court of Appeal do not insist upon compliance with every one of those safeguards, but leave it to the discretion of the trial judge as to whether any non-compliance renders the evidence unreliable. The Californian safeguards are, however, to be complied with as far as reasonably possible. It was said that, obviously enough, the greater the compliance with the safeguards the greater the likelihood that the evidence would be admitted. Regard should be had to the strength of the other evidence available to confirm or to support the evidence hypnotically induced, and in practice it is likely to be more difficult to show that the evidence can safely be admitted if the recollection of the witness emerged for the first time during or after hypnosis.

Note that in Tasmania Underwood J has ruled that R v McFelin [1985] 2 NZLR 750 should not be followed: R v Sparkes (1996) 6 Tas R 178; 88 A Crim R 194 at 189–191, 202–203.

[8.2525]

HYPNOSIS

743

[8.2520] Hypnosis and EMDR The admissibility of evidence obtained by EMDR gives rise to the same principles as hypnosis: R v T (1998) 103 A Crim R 345 (WA, Parker J).

[8.2525] Evidence excluded In R v Horsfall (1989) 51 SASR 489; 44 A Crim R 345 Cox J ruled out evidence sought to be led from a 10-year-old girl. The reason was the likelihood of irretrievable contamination by suggestion under hypnosis. The evidence would have caused unfairness to the accused. In R v Jenkyns (1993) 32 NSWLR 712; 71 A Crim R 1 part of the evidence was excluded. See also Justice MD Kirby, “Hypnosis and the Law” (1984) 8 Crim LJ 152, being a paper presented to the Australian Psychological Society on 25 February 1984.

I IDENTIFICATION Three forms of identification ........................................................................................................ The nature of identification .......................................................................................................... Looks like ...................................................................................................................................... Accused picked out as similar ...................................................................................................... Identification of an object ............................................................................................................. Particulars of description to be given if requested or if discrepancy ......................................... Recognition ................................................................................................................................... Forms of identification .................................................................................................................. Warning to jury ............................................................................................................................. Magistrate ...................................................................................................................................... Power to exclude .......................................................................................................................... Expert evidence ............................................................................................................................. Voice .............................................................................................................................................. Actions by police .......................................................................................................................... Identification parade ...................................................................................................................... Direction on identification parade ................................................................................................ Refusal to participate in identification parade ............................................................................. Single suspect ................................................................................................................................ Courtroom identification ............................................................................................................... Identification by person not at the scene ..................................................................................... Folder of photos ............................................................................................................................ Photofit .......................................................................................................................................... Photoboard .................................................................................................................................... Identical twin ................................................................................................................................ Condition of identifying witness, possibly affecting accuracy ................................................... Other types of identification ......................................................................................................... Aboriginal tracker ......................................................................................................................... Shoe prints .................................................................................................................................... Jury to make their own assessment .............................................................................................. Evidence Acts ................................................................................................................................

[9.100] [9.105] [9.110] [9.115] [9.120] [9.125] [9.130] [9.135] [9.140] [9.145] [9.150] [9.155] [9.160] [9.165] [9.170] [9.175] [9.180] [9.185] [9.190] [9.195] [9.200] [9.205] [9.210] [9.215] [9.220] [9.225] [9.230] [9.235] [9.240] [9.245]

[9.100] Three forms of identification In Festa v The Queen (2001) 208 CLR 593; 185 ALR 394 McHugh J referred to three forms of identification: • positive identification as direct evidence; • positive identification as circumstantial evidence; • “circumstantial identification evidence”.

Describing the first two forms, his Honour said (at 610; 406–407 [54]): Most cases concerned with identification evidence are cases of positive identification. That is to say, cases where a witness claims to recognise the accused as the person seen on an occasion that is relevant to the charge. Positive-identification evidence may be used as direct or circumstantial proof of the charge. A positive identification of the accused is direct evidence of the crime when it identifies the accused as the person who committed one or more of the acts that constitute the crime in question. A positive identification is circumstantial evidence when its acceptance provides

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[9.105]

the ground for an inference, alone or with other evidence, that the accused committed the crime in question. A witness gives direct evidence of the charge when she testifies that the accused ordered her to hand over the takings. A witness gives circumstantial evidence of the charge when she testifies that the accused was the person who ran out of the bank immediately after other evidence proves it was robbed.

His Honour described the third form (at 610–611; 407 [56]): Unfortunately, another class of evidence is sometimes called “circumstantial identification evidence”. It is evidence that asserts that the general appearance or some characteristic or propensity of the accused is similar to that of the person who committed the crime. It may be evidence of age, race, stature, colour or voice or of a distinctive mark or gait. It differs from positive-identification evidence in that the witness does not claim to recognise the accused as the person who committed the crime or was present in circumstances from which it can be inferred that the accused committed the crime. Although such evidence does not directly implicate the accused in the crime or as being present in incriminating circumstances, it is admissible evidence. It is proof of a circumstance – usually, but not always, weak – that with other evidence may point to the accused as the person who committed the crime. (citations omitted)

[9.105] The nature of identification In Bulejcik v The Queen (1996) 185 CLR 375; 86 A Crim R 467; 135 ALR 517 (HC), McHugh and Gummow JJ said (at 406; 539–540; 491): Identification evidence is often unreliable evidence because human perception and recollection are prone to error. But neither the distinctiveness of the accused’s voice nor the familiarity of a witness with that voice ensures that the identification of that voice with a criminal occurrence is reliable. Distinctiveness and familiarity are merely factors that may increase the probability that a particular identification is correct. Identification by a witness with a good memory for sounds may be just as reliable as identification by a witness who is familiar with the accused’s voice or who claims to remember that the voice at the scene of the crime had the same distinctive features as the accused’s voice. The capacities of individuals to remember sights and sounds vary enormously. Some persons may remember sounds that others do not, just as some persons may recollect physical features when others who were present cannot recollect them. Moreover, individuals who witness or are involved in criminal incidents react differently. Some remain relatively calm; others are shocked or confused.

[9.110] “Looks like” In Pitkin v The Queen (1995) 69 ALJR 612; 130 ALR 35; 80 A Crim R 302 (HC), a witness said of a photograph of the accused “this looks like the person”. The evidence on its own was held not sufficient identification. The appeal was allowed.

[9.115] Accused picked out as “similar” Such evidence is admissible as circumstantial but not as identification: Murphy v The Queen (1994) 62 SASR 121 (CCA). That evidence when standing alone is not sufficient to sustain a conviction: Pitkin v The Queen (1995) 69 ALJR 612; 130 ALR 35; 80 A Crim R 302 (HC).

[9.120] Identification of an object The dangers of identification of a person apply to the identification of an item. A judge must warn the jury of those dangers: In R v Lowe (1997) 98 A Crim R 300 (NSW CCA) Hunt CJ at CL said (at 317): I see no distinction in principle between visual, voice and object identification. I am satisfied that a warning as to the danger of convicting should be given where the identification relates to an inanimate object, such as the clothing worn by the offender or a weapon used by him in the

[9.130]

IDENTIFICATION

747

commission of the crime, and where that evidence represents a significant part of the proof of the guilt of the accused. Just as with voice identification, object identification is not a distinct category of evidence.

Other cases R v Whalen (2003) 56 NSWLR 454 at 467 [45] – [48] (CCA) (vehicle); R v Clout (1995) 41 NSWLR 312 (CCA) at 320–321 (identification of a semi trailer); Bond v MacFarlane (1990) 102 FLR 38 at 46 (ACT, Higgins J) (cars); R v Callaghan (2001) 4 VR 79; 124 A Crim R 126 at 95–96; 143–144 [28] (CA) (handguns); R v Theos (1996) 89 A Crim R 486 at 491–496 (Vic CA) (shotgun); R v Bridger (1930) 22 Cr App R 21 (identification of a cash box).

[9.125] Particulars of description to be given if requested or if discrepancy In R v Turnbull [1977] 1 QB 224; [1976] 3 All ER 549; (1976) 63 Cr App R 132, the five judge court held (at 228; 552; 137): If in any case, whether it was being dealt with summarily or on indictment, in which the prosecution has reason to believe that there is such material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asked to be given particulars of such descriptions, the prosecution should supply them.

Applied: R v Burchielli [1981] VR 611; 2 A Crim R 352 at 618, 359 (CCA); Dawson v The Queen (1990) 2 WAR 458; 47 A Crim R 458 (CCA).

[9.130] Recognition On occasions the recognition of someone known to the witness has more evidential force than the identification of a stranger. There are not many recognition cases. In R v Turnbull [1977] 1 QB 224; [1976] 3 All ER 549; (1976) 63 Cr App R 132 the five judge court said (at 228; 552; 137): Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

In Beckford v The Queen (1993) 97 Cr App R 409 (PC) Lord Lowry, giving the advice of the Board, dealt with a judges summing-up and said (at 415): The need to give the general warning even in recognition cases where the main challenge is to the truthfulness of the witness should be obvious. The first question for the jury is whether the witness is honest. If the answer to that question is yes, the next question is the same as that which must be asked concerning every honest witness who purports to make an identification, namely, is he right or could he be mistaken?

In Shand v The Queen [1996] 2 Cr App R 204 (PC) Lord Slynn of Hadley giving the advice of the Board said (at 209): The importance in identification cases of giving the Turnbull warning has been frequently stated and it clearly now applies to recognition as well as to pure identification cases. It is, however, accepted that no precise form of words need be used as long as the essential elements of the warning are pointed out to the jury. The cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence.

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[9.135]

In Langford v The State [2005] UKPC 20 (11 May 2005) the Board advised (at [27]): Judges could usefully refer to the reminder given by Lord Lane CJ in R v Bentley [1991] Crim LR 620, that many people have experienced thinking that they had seen someone in the street whom they knew, only to discover that they were wrong. The expression “I could have sworn it was you” is an apposite remark to describe such an honest mistake.

Other cases Carr v The Queen (2000) 117 A Crim R 272 at 288–289 [59] – [61] (Tas CCA); Smith v The Queen (2001) 206 CLR 650; 125 A Crim R 10; 181 ALR 354; [2001] HCA 50 per Kirby J at 668 [56] – [57]; R v Spero (2006) 13 VR 225; 161 A Crim R 13 (CA) per Redlich AJA (at 233–235; 22–23 [26] – [30]) with whom the other judges agreed; Capron v The Queen (The Bahamas) [2006] UKPC 34 (29 June 2006); R v Forbes [2001] 1 AC 473; [2001] 1 All ER 686; [2002] Cr App R 430 (HL).

[9.135] Forms of identification Identification may be visual, by fingerprint, by voice, by photograph (of a person in bank photo by another not at the scene) and so on.

[9.140] Warning to jury Legislation Some legislation requires a judge to warn a jury on the dangers involved in evidence that identifies an accused. Uniform Evidence Acts s 116: The section is as follows: 116(1) If identification evidence has been admitted, the judge is to inform the jury: (a) that there is a special need for caution before accepting identification evidence; and (b) of the reasons for that need for caution, both generally and in the circumstances of the case. (2) It is not necessary that a particular form of words be used in so informing the jury.

See also Dhanhoa v The Queen (2003) 217 CLR 1; 139 A Crim R 41; 199 ALR 547; [2003] HCA 40 at [19], [22], [53], [92] – [94].

The cases In Domican v The Queen (1992) 173 CLR 555; 60 A Crim R 169; 106 ALR 203 the majority held (at 561–562; 207; 172–173): Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. It must be appropriate to the circumstances of the case. Consequently, the jury must be instructed “as to the factors which may affect the consideration of [the identification] evidence in the circumstances of the particular case”. A warning in general terms is insufficient. The attention of the jury “should be

[9.140]

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drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. (authorities cited for each proposition).

In R v Southon (2003) 85 SASR 436; 139 A Crim R 250 (CCA) Sulan J with whom the others agreed said (at 445; 258–259 [43] – [45]): Where there is evidence which identifies the accused as the person who committed the crime, or from which the jury is asked to conclude that it was the accused who committed the crime and the reliability of that evidence is disputed, a trial judge is required to warn the jury of the dangers associated with such evidence. The extent of the warning will vary according to the circumstances of the case. The warning will remind the jury of mistakes that can occur when witnesses are asked to identify a person who committed the crime. Such factors as the lighting at the time, whether the witness knew or had seen the accused before, the length of time that the witness had to observe the accused, whether the witness was panicking at the time, and other matters which may have distracted the witness are just some of the factors to which the judge might refer. The circumstances of the identification are also relevant. For example, if the identification was made at a line-up and it was some months after the event, the judge should caution the jury about the possibility of error. If the identification was by way of photographic array, then the judge should direct the jury about the deficiencies of such a method of identification. There is also evidence which identifies the accused but forms part of the circumstantial evidence upon which the case depends. On occasions, a witness will pick out an accused in a line-up, or by some other method, and identify the accused as a person who looks similar to the person who committed the crime. In effect, the witness is saying that the person who is picked out is of a similar height and build, has similar facial characteristics and has similar coloured and length hair and other identifying features as the person who committed the crime. This evidence is circumstantial evidence. It is evidence to which the jury is entitled to have regard when considering whether the prosecution has proved that the accused was the person who committed the crime. In those circumstances it may be necessary for a trial judge to give a warning comparable to that which may be given when there is direct evidence of identification. In other cases of circumstantial evidence, such a warning may not be necessary.

In R v Turnbull [1977] 1 QB 224; [1976] 3 All ER 549; (1976) 63 Cr App R 132 the five judge court held (at 228; 552; 137): First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example, by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

Approved: Powers v The Queen (2000) 113 A Crim R 51 at 60 [40] (NT CCA); R v Burchielli [1981] VR 611; 2 A Crim R 352 at 617–618, 358–359 (CCA). In Burchielli, Young CJ and McInerney J said (at 620–621; 362) that a judge’s summing up should include:

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[9.145]

1. That the experience of lawyers (which jurors have probably not shared) have taught them that mistakes in identification do not infrequently occur. 2. That honest and convincing witnesses may be mistaken, particularly where their opportunities for observing the suspect are limited. 3. That the presentation of a single suspect (as in the case of Mrs Campbell) so greatly increases the liability to mistake as to make it extremely dangerous for a jury to assign any probative value to Mrs Campbell’s evidence of identification. 4. That identification from police photographs is undesirable … 5. That two defective identifications do not necessarily support one another.

Other cases R v Dickson [1983] 1 VR 227 (CCA). Note that the decision in Dickson was cited with approval in Reid v The Queen [1990] 1 AC 363; [1989] 3 WLR 771; (1989) 90 Cr App R 121 (at 380; 778; 126) (PC); Wood v The Queen [2012] NSWCCA 21 at [413]–[414]; R v Janissen [2013] QCA 279.

[9.145] Magistrate In a summary hearing, a magistrate must heed the warnings as would a jury by directing himself as would a judge: Grbic v Pitkethly (1992) 38 FCR 95; 65 A Crim R 12; 110 ALR 577 (FCA); Sharrett v Gill (1993) 113 FLR 316; 65 A Crim R 44 (ACT, Miles CJ); Parkinson v Espinoza (1996) 85 A Crim R 336 (WA, Anderson J).

[9.150] Power to exclude A judge has the power to exclude evidence of identification which is unfairly prejudicial or tainted: Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289. Gibbs CJ said (at 402–403; 294): However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operate unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

Voir dire to determine the admissibility of identification is not often necessary: R v Rowley (1986) 23 A Crim R 371 (VIC CCA) at 374–375, 378–380. See also Voir dire at [22.1700].

[9.155] Expert evidence Expert evidence on the general unreliability of identifications is inadmissible in jurisdictions other than where the Uniform Evidence Acts apply. General cases: R v Clune [1995] 1 VR 489; 5 A Crim R 246 at 531 (VR) (CCA); Smith v The Queen (1990) 64 ALJR 588 (HC); R v Smith [1987] VR 907 (Vincent J). Cases under Uniform Evidence Acts: R v Rose (2002) 55 NSWLR 701 (CCA); R v Smith (2000) 116 A Crim R 1 at 9 [46] – [47] (NSW CCA).

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[9.160] Voice On one view, the reliability of the impugned identification evidence goes to weight rather than admissibility: R v Miladinovic (1993) 107 FLR 241; 71 A Crim R 478 at 246, 484 (FCA). In R v Ong (2007) 176 A Crim R 366 (Vic CA) Buchanan JA, with whom the other judges agreed, said (at 370 [20]): The reliability of evidence identifying a voice depends upon the familiarity of the witness with the voice, the length and volume of the speech said to be that of the person identified and the time that has elapsed between the occasions on which the witness heard the voice to be identified and the voice of the person said to be the speaker.

In R v Callaghan (2001) 4 VR 79; 124 A Crim R 126 (CA) Winneke P said (at 94; 142 [27]): This review of the authorities on the question of the admissibility of voice identification evidence leads me to conclude that courts in this State should continue to follow the principles which have been established by previous decisions of the Court of Criminal Appeal; namely that there is no rule of law which obliges the trial judge to exclude such evidence in the absence of evidence of prior familiarity or distinctiveness, although he may, in the exercise of his discretion, exclude it on grounds of prejudice or unfairness.

In R v Bueti (1997) 70 SASR 370 (CCA) Doyle CJ said (at 379): [T]here is no reason in principle, in my opinion, why the admissibility of evidence of identification by voice recognition should be treated as subject to rules peculiar to that type of evidence. The admissibility of such evidence should depend upon the principles that generally regulate the admissibility of evidence. That is not to deny, of course, that those principles must be applied with reference to the particular nature of the evidence under consideration.

See also, Braslin v Tasmania [2011] TASCCA 14. Other cases Korgbara v The Queen (2007) 170 A Crim R 568; 210 FLR 36 (NSW CCA); R v Solomon (2005) 92 SASR 331; 192 FLR 421 (CCA); Neville v The Queen (2004) 145 A Crim R 108 (WA CCA); R v Camilleri (2001) 127 A Crim R 290 (NSW CCA); R v Chenia [2003] 2 Cr App R 6 (CA); R v O’Doherty [2003] 1 Cr App R 5 (NI CA); R v Brotherton (1992) 29 NSWLR 95; 65 A Crim R 301 at 105–106, 311–312 (CCA); The variance in New South Wales of R v E J Smith [1984] 1 NSWLR 462 at 477 (CCA) and R v Brownlowe (1986) 7 NSWLR 461 at 466 (CAA), was not settled in Bulejcik v The Queen (1996) 185 CLR 375; 86 A Crim R 467; 135 ALR 517 (HC).

Expert evidence Li v The Queen (2003) 139 A Crim R 281 (NSW CCA). See also S O’Driscoll, “Voice Identification” (1994) NZLJ 138; D Ormerod, “Sound Familiar? – Voice Identification Evidence” [2001] Crim LR 595–622.

[9.165] Actions by police In Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289 Gibbs CJ said (at 401; 292–293):

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[9.170]

[I]t is most undesirable that police officers who have arrested a person on a charge of having committed a crime should arrange for potential witnesses to identify that person except at a properly conducted identification parade. Similarly, speaking generally, an identification parade should, wherever possible, be held when it is desired that a witness should identify a person who is firmly suspected to be the offender.

Identification evidence obtained by a trick may be excluded R v Shannon (1987) 47 SASR 347; 29 A Crim R 434 (CCA); R v Szach (1980) 23 SASR 504; 2 A Crim R at 582–583 (SASR) (CCA); R v Alexander [1994] 2 VR 249 at 257 (CCA).

[9.170] Identification parade Method Fairly complete methods of conducting an identification parade are set out in: Cth: Crimes Act 1914 s 3ZM; ACT: Crimes Act 1900 s 233.

No force A person cannot be forced to submit to such a parade but has no right not to be identified: R v Clune [1982] VR 1; 5 A Crim R 246 (CCA). Other cases Dair v Western Australia (2008) 182 A Crim R 385 (WA CCA): identification parade in a prison is not wrong; R v Haidley & Alford (1984) VR 229; 10 A Crim R 1 (CCA).

[9.175] Direction on identification parade In R v Forbes [2001] 1 AC 473; [2001] 1 All ER 686; [2002] Cr App R 430 (HL) the police did not conduct an identification parade and should have. Lord Bingham, delivering the opinion of the Committee, said (at 488; 698 [27]): [T]he jury should ordinarily be told that an identification parade enables a suspect to put the reliability of an eye-witness’s identification to the test, that the suspect has lost the benefit of that safeguard and that the jury should take account of that fact in its assessment of the whole case, giving it such weight as it thinks fair. In cases where there has been an identification with the consent of the suspect, and the eye witness has identified the suspect, in circumstances involving no breach of the Code, the trial judge will ordinarily tell the jury that they can view the identification at the parade as strengthening the prosecution case but may also wish to alert the jury to the possible risk that the eye witness may have identified not the culprit who committed the crime but the suspect identified by the same witness on the earlier occasion.

In fact there was other strong identification evidence. Not withstanding the trial judge’s scanty directions on lack of identification parade, the appeal was dismissed.

[9.180] Refusal to participate in identification parade Generally Refusal to participate can be given in evidence, not to show consciousness of guilt but to explain why there is no evidence of an identification parade where one would be expected: R v McCarthy (1993) 71 A Crim R 395 at 404 (NSW CCA);

[9.185]

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R v Clune [1982] VR 1 (CCA) per Crockett J at 11; R v Davies (2005) 11 VR 314; 153 A Crim R 217 (CA).

Judges direction In R v McCarthy (1993) 71 A Crim R 395 (NSW CCA) Hunt CJ at CL said (at 404): When such evidence is given, however, the judge should give a direction – as soon as the evidence is given and, if necessary, again in the summing up – to make it clear to the jury that the accused had a fundamental right to decline to participate in an identification parade and that his exercise of that right must not lead to any conclusion by them that he is guilty.

Approved: R v Davies (2005) 153 A Crim R 217 at 221 [11] – [12] (Vic CA).

[9.185] Single suspect Presentation of a single suspect may be a tainted identification, and is certainly weak. Such evidence is not inadmissible: Festa v The Queen (2001) 208 CLR 593; 185 ALR 394; Kelly v The Queen (2002) 129 A Crim R 363 (WA CCA); A judge has a discretion to exclude such evidence: R v Hallam (1985) 42 SASR 126; 18 A Crim R 221 (CCA); An appeal the court will often set aside a conviction based on such evidence: Davies and Cody v The King (1937) 57 CLR 170; R v Corke (1989) 41 A Crim R 292 (Qld CCA).

By photograph R v Ormsby [1985] 1 NZLR 311 (CA); R v Dwyer and Ferguson [1925] 2 KB 799; [1924] All ER Rep 272; 18 Cr App R 145. However, identification evidence gained by showing the witness a single photograph of the victim was allowed in R v Scott (2000) 116 A Crim R 15 (Qld, Byrne J).

In person Single suspect R v Dickman (1910) 5 Cr App R 135 at 142–143 (CCA); R v Burchielli [1981] VR 611; 2 A Crim R 352 (CCA); R v Hallam (1985) 42 SASR 126; 18 A Crim R 221 (CCA).

Displacement effect The “displacement effect” was described by Stephen J in Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289 at 409 (CLR): Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained that the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.

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[9.190]

This displacement effect has been referred to often: R v Carusi (1997) 92 A Crim R 52 at 55 (NSW CCA); R v Morris (1996) 88 A Crim R 297 at 305–306 (NSW CCA); Wood v R NSWCCA 21 at [413]-[414]. R v Crawford [2015] SASCFC 112.

Warning If the evidence is admitted, the judge must warn the jury of the displacement effect: R v Akgul (2002) 5 VR 537 (CA). If the judge (or magistrate) sits alone, a self-warning must be given: R v Marshall (2000) 113 A Crim R 190 at 195 [35] (NSW CCA).

[9.190] Courtroom identification Alone, a courtroom or dock identification is of little weight and potentially prejudicial as often to require exclusion: R v Demeter [1995] 2 Qd R 626; (1995) 77 A Crim R 462 (CA); Grbic v Pitkethly (1992) 38 FCR 95; 65 A Crim R 12; 110 ALR 577 (FCA); Dawson v The Queen (1990) 2 WAR 458; 47 A Crim R 458 (CCA); R v Williams [1983] 2 VR 579 (CCA); R v Dupas [2011] VSC 200. Wood v R NSWCCA 21 at [415]-[416]; In Police v Murray [2013] SASCFC 68, at [34] the Court stated: There may be cases where an in-dock identification is appropriate, but only where there has been some form of positive identification on a previous occasion and the in-dock identification merely relates that previous identification to the case at hand. That is not the case here. There was no previous positive identification, merely evidence that amounted to a piece of circumstantial evidence. Therefore, the only positive identification led as part of the prosecution case against the appellant was that in-dock identification. The evidence is clearly valueless and, if objected to at the time, should have been excluded.

As noted above, the position is different when there has already been a previous acceptable identification. In Murdoch v The Queen (2007) 167 A Crim R 329 (NT CCA) the court said in a joint judgment (at 340 [68]): [D]ock identifications are not usually permitted, other than as a confirmatory of an acceptable prior out-of-court identification: Jamal v The Queen (2000) 116 A Crim R 45; R v Gorham (1997) 68 SASR 505.

In R v Clark (1996) 91 A Crim R 46 (SA CCA) Cox J gave the leading judgment. He said (at 51–52): At the trial the learned judge, over a defence objection, permitted the victims to identify in the dock those appellants whom they had already identified in the photographs. Such a procedure is often followed in this State: indeed, in Britten (1988) 51 SASR 567 King CJ said (at 572) that a witness who has identified an accused person out of court should always be asked at the trial whether he or she can identify the accused in court. It gives an honest witness an opportunity of reconsidering the matter and it may also stop the jury from inferring wrongly from the absence of a dock identification that the witness is unable to make one. Of course, these are negative aspects of such evidence. Probably the second identification will add very little, if anything, to the first. (It

[9.200]

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may, conceivably – the witness may perceive in court some significant feature of the accused that was not observable in the photograph.) There was also, as the learned trial judge observed, some value in a dock identification for the jury, in a case involving multiple accused, in understanding which accused was alleged to have done what. Any risk that the jury’s common sense does not guarantee that a dock identification does not generally prejudice the accused will be removed by the usual direction in the summing up.

Sometimes a witness will claim to be more certain. In Al-Hashimi v The Queen (2004) 181 FLR 383; 145 A Crim R 186 (WA CCA) a witness had said at the preliminary hearing that he was only 70% certain of the identity of the accused. At trial he said he was 100% sure in the dock identification. On appeal, held that the evidence was properly admitted. Other cases R v Saxon (1998) 1 VR 503; 92 A Crim R 188 at 513, 198–199 (CA); Jamal v The Queen (2000) 182 ALR 307; 116 A Crim R 45 (FCA); Al-Hashimi v The Queen (2004) 181 FLR 383; 145 A Crim R 186 (WA CCA); Williams v The Queen [1997] 1 WLR 548 (PC); Young v Lusted [2011] TASSC 22.

[9.195] Identification by person not at the scene Evidence may be given by a person not at the scene. Such a person may be an expert or may make the identification from earlier acquaintance with the accused by way of recognition. In Smith v The Queen (2001) 206 CLR 650; 125 A Crim R 10; 181 ALR 354; [2001] HCA 50 police had identified the accused as one person in bank security photographs of a robbery. The court held that the police were in no better position than the jury to compare the photograph with the accused. The police evidence was irrelevant and therefore inadmissible. Police (and other) evidence will be relevant and admissible if there are other matters which bear on the identification. In Nguyen v The Queen (2007) 180 A Crim R 267 (NSW CCA) CCTV still photograph evidence was before the jury. Two police officers looked at the evidence and identified the accused. Each officer said that they had known the accused for a long time. The evidence on the footage and photos was unclear but seemed to show persons looking different from those in the dock. The trial judge had admitted the evidence. Held (at [9] – [39]), the police evidence was properly admitted. Unlike Smith v The Queen, the jury could not have made its own identification. See also Relevance at [18.2400].

[9.200] Folder of photos Where a witness looks at a folder of photos and picks out one as the offender, in Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289 the court held: • evidence of an identification made out of court by the use of police photographs is admissible; • where such evidence is admitted, the photographs themselves will also be admissible;

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• the trial judge has a discretion to exclude such evidence if it would be unfair to the accused to accept it (see, for example, R v Carusi (1997) 92 A Crim R 52 (NSW CCA)); • when a witness gives evidence of an earlier identification, but is unable to remember the person identified, an observer may give evidence of his act of identification.

[9.205] Photofit This is admissible as part of an identifying witness’ evidence: R v Cook [1987] 1 QB 417; [1987] 1 All ER 1049; 84 Cr App R 369 (CA); R v Hentschel [1988] VR 362 (CCA). See also Photofit at [16.1500].

[9.210] Photoboard Generally Police will often make up a board containing photographs, usually 12. The board is shown to the witness. Ideally the police never even intimate that the accused or suspect is one whose photo is among those on the board. The photos must be of similar people and not identified in any way. Generally speaking, if the accused is a suspect, particularly if in custody, the accused should be offered an identification parade. The photoboard identification and the identification parade should be recorded particularly on video.

Cases Where the accused’s photo stands out as being the only one with the features earlier described by the witness, evidence of identification from the photoboard is improper. So in R v Blick (2000) 111 A Crim R 326 (NSW CCA) the photo of the accused was the only one with a goatee beard. Appeal allowed. In Knight v Brown (2004) 183 FLR 135 (ACT, Connolly J) the photo of the accused was the only one with bright red hair. Appeal allowed. See also R v Shamouil (2006) 66 NSWLR 228 (CCA).

Legislation Uniform Evidence Acts s 115 refers to picture identification evidence. It sets out conditions in which a picture can be used. The picture must not show that the defendant was in custody. In effect the picture should not be shown unless the appearance of the defendant had changed since the offence; the defendant refused to take part in an identification parade; an identification parade was not reasonable. In R v Darwiche (2006) 166 A Crim R 28 (NSW, Bell J) his Honour examined s 115(5)(a), refusal to take part in an identification parade. His Honour ruled (at 36 [34]): The verb “refuse” is defined in the Oxford English Dictionary, 2nd ed, as “to decline to take or accept (something offered or presented); to reject the offer (a thing).”

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757

[9.215] Identical twin Sharrett v Gill (1993) 113 FLR 316; 65 A Crim R 44 (ACT, Miles CJ) was an appeal from a summary case. The defendant gave an alibi; his identical twin was the driver he said. The appeal was allowed.

[9.220] Condition of identifying witness, possibly affecting accuracy Drunkenness R v Manh (1983) 33 SASR 563; 9 A Crim R 81 at 575, 90 (CCA).

Schizophrenia Bromley v The Queen (1986) 161 CLR 315; 22 A Crim R 216; 67 ALR 12.

Fear “Two unsatisfactory identifications do not support one another”: R v Burchielli [1981] VR 611; 2 A Crim R 352 at 616 (CCA).

[9.225] Other types of identification Bite marks As to the identification by bite marks, there is no reliable identification by forensic odontology that exists to enable the evidence to be received: R v Carroll (1985) 19 A Crim R 410 (Qld CCA); Lewis v The Queen (1987) 88 FLR 104; 29 A Crim R 267 (NT CCA).

Podiatrist Feet marks in shoes at the scene are admissible: R v Rose (1993) 69 A Crim R 1 (SA CCA).

[9.230] Aboriginal tracker A trained, experienced Aboriginal tracker can give evidence of, for example, footprints he or she observed. But a comparison with inked footprints may be beyond his her expertise and thus be inadmissible: R v Harris (1997) 7 NTLR 1; 94 A Crim R 454 (ruling of Bailey J).

[9.235] Shoe prints Prints made by shoes can be the subject of identification evidence. The expert who is called must be sufficiently expert and be able to match the shoe with the print. In R v Fisher (1986) 23 A Crim R 392 (Qld CCA) it was held (at 399–400) that the evidence was properly admitted. In Lewis v The Queen (1987) 88 FLR 104; 29 A Crim R 267 (NT CCA) it was held that the evidence was insufficient and no tender should have been made of the shoe and the print (at 109; 279 and 119; 390). The expert must not give evidence that his opinion is reinforced by the admission of an accused that the footprint is his: R v Howard [1989] 1 SCR 1337; 48 CCC (3d) 38 (SCC).

[9.240] Jury to make their own assessment In Neville v The Queen (2004) 145 A Crim R 108 (WA CCA) police had given identification evidence of the voice of the accused recorded by a surveillance camera. The judge had

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directed the jury not to play detective. On appeal held that the police evidence was properly admitted but that the detective direction was wrong. Murder conviction set aside. Miller J with whom the others agreed said (at 126 [71]): [T]he cases stand for the proposition that a jury must be informed that although there is evidence to assist them on the issue, it remains ultimately their decision and a decision which they can take, having regard to their own views on the matter from the material available in the Court, irrespective of the opinion or identification evidence which may have been adduced by the prosecution.

[9.245] Evidence Acts The admissibility of identification evidence in UEA jurisdictions is governed by ss 114–116 of the Uniform Evidence Acts. “Identification evidence” in the Act is defined in the Dictionary as follows: (a) an assertion by a person to the effect that a defendant was, or resembles (visually, aurally or otherwise) a person who was, present at or near a place where: (i) the offence for which the defendant is being prosecuted was committed; or (ii) an act connected to that offence was done – at or about the time at which the offence was committed or the act was done, being an assertion that is based wholly or partly on what the person making the assertion saw, heard or otherwise perceived at that place and time; or (b) a report (whether oral or in writing) of such an assertion;

The rules relating to identification evidence are confined to representations that contend that the defendant is a particular person. The rules relating to identification evidence extend to recognition evidence (where the witness knows the accused) and semblance evidence (where the witness states that the accused looked like someone). Identification evidence does not include DNA evidence, fingerprint, other forensic identification procedures and other physical items. Importantly, the definition of identification evidence does not extend to visual identification evidence that is exculpatory of the accused. Identification evidence also does not include evidence of an individual’s characteristics, such as “the rapist had blue eyes” or “the rapist was a friend of my boss”: Trudgett v The Queen (2008) 70 NSWLR 696; 182 A Crim R 253; 2008] NSWCCA 62. The Act maintains a strong preference for identification parades as being the preferred mode of identification evidence and photographic identification is only admitted in limited circumstances: ss 114, 115. There are two main situations where photographic identification is admissible (i) where it was not reasonable to have conducted an identification parade; and (ii) where the defendant refused to take part in such an identification parade. There are a number of situations in which it might not be reasonable to conduct an identification parade, including where it is not possible to gather other people who looked similar to the accused or where a suspect was not identified and the suspect was identified using other means which undermine the usefulness of an identification parade. Section 115 of the Act maintains the common law distinction between using photographs during the course of the detection process (which is permitted) and the use of photographs during the evidentiary stage (which is generally not permitted). This distinction is preserved by stipulating that photographs cannot be used after a person has been in police custody. Photographs are permitted during the investigative stage of an inquiry in order to assist in the process of identifying and apprehending suspects. When picture identification occurs it cannot involve pictures that show that the accused was in police custody.

[9.405]

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Section 116 of the Act states that a warning is necessary where identification evidence is admitted. It is important to note that s 116 is supplemented by s 165. Thus, as is the case at common law, whenever identification evidence constitutes a significant part of the prosecution case and the reliability of such evidence is in dispute, the judge must give both general and specific warnings regarding the dangers of convicting on the basis of such evidence. A specific warning must refer to all matters which may reasonably be regarded as undermining the reliability of the identification evidence. The general warning must sufficiently convey to the jury that identification evidence can be very unreliable, the reasons for such unreliability, and that one or more witnesses can be very convincing notwithstanding the fact that they have mistakenly given identification evidence: see Dhanhoa v The Queen (2003) 217 CLR 1; 139 A Crim R 41; 199 ALR 547; [2003] HCA 40.

IGNORANCE General principle ........................................................................................................................... Rationale ........................................................................................................................................ Some Latin maxims ...................................................................................................................... Legislation ..................................................................................................................................... Ignorance of the facts ................................................................................................................... Belief that conduct is lawful ........................................................................................................ Honesty and bona fides exception ................................................................................................ Non-printing and non-publicity exception ................................................................................... Codes ............................................................................................................................................. Bliss ...............................................................................................................................................

[9.400] [9.405] [9.410] [9.415] [9.420] [9.425] [9.430] [9.435] [9.440] [9.445]

[9.400] General principle Ignorance of the law does not excuse or relieve from the consequences of a crime: R v Taib; Ex parte DPP (Cth) [1999] 2 Qd R at 663-664; (1998) 147 FLR 273 at 287-288; 158 ALR 744 at 757-758; 105 A Crim R 10 at 24-25 (CA). In R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230 (CCA) Hunt J said (at 376–377; 234): [T]here is no presumption that everyone knows the law, even though ignorance of the law does not excuse: Martindale v Falkner (1846) 2 CB 706 at 719; 135 ER 1124 at 1129 and Evans v Bartlam [1937] AC 473 at 479.

In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 Gleeson CJ and Kirby J said (at 500; 423 [1]): Professor Glanville Williams said that almost the only knowledge of law that many people possess is the knowledge that ignorance of the law is no excuse when a person is charged with an offence. This does not mean that people are presumed to know the law. Such a presumption would be absurd. Rather, it means that, if a person is alleged to have committed an offence, it is both necessary and sufficient for the prosecution to prove the elements of the offence, and it is irrelevant to the question of guilt that the accused person was not aware that those elements constituted an offence.

CTM v The Queen (2008) 236 CLR 440; 185 A Crim R 188; 247 ALR 1 Gleeson CJ, Gummow, Crennan and Kiefel JJ, quoting Ostrowski v Palmer, said (at 982; 193; 5 [7]): Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse.

[9.405] Rationale John Selden (1584–1654) Table Talk (1689), “Law”: Ignorance of the law excuses no man; not that all men know the law, but because ’tis an excuse every man will plead, and no man can tell how to confute him.

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ROSS ON CRIME

[9.410]

In Cooper v Phibbs (1867) LR 2 HL 148 Lord Westbury said (at 170): It is said, “Ignorantia juris haud excusat”, but in that maxim the word “juris” is used in the sense of denoting general law, the ordinary law of the country.

[9.410] Some Latin maxims Ignorantia iuris haud excusat/ Ignorantia iuris non excusat: Ignorance of the law does not excuse. Ignorantia eorum quae quis scire tenetur non excusat: Ignorance of those things which one ought to know is no excuse. Ignorantia facti excusat, ignorantia iuris non excusat: Ignorance of a fact excuses, ignorance of the law excuses not. Ignorantia iuris, quod quisque scire tenetur, neminem excusat: Ignorance of law, which every man is presumed to know, excuses no man. Ignorantia legis neminem excusat: Ignorance of the law excuses no man.

[9.415] Legislation Some general legislation on ignorance provides that ignorance of the law is no excuse: Cth: Criminal Code Act 1995 ss 9.1–9.4; Qld: Criminal Code s 22; WA: Criminal Code s 22; Tas: Criminal Code s 12; NT: Criminal Code ss 30; 43AW; 43AY; ACT: Criminal Code 2002 ss 35–37; NZ: Crimes Act 1961 s 25; Can: Criminal Code s 19.

[9.420] Ignorance of the facts In Iannella v French (1968) 119 CLR 84, Windeyer J said (at 112): To deny that ignorance of law does not excuse those who break the law would indeed be a heresy. The doctrine relied upon by the Crown is usually cited as a Latin maxim, either as “ignorantia iuris non excusat” or some Latin variant of that wording. And commonly a contrast is made, as it was made in Roman law, between ignorance of fact and ignorance of law.

In Power v Huffa (1976) 14 SASR 337 (FC), Bray CJ said (at 346): [I]n my view, any belief which involves a mistaken belief about a general proposition of law, as opposed to a mistaken belief about the legal rights or obligations or status of a particular individual in a particular situation, which may be, but is not necessarily, a mistake of fact (Cooper v Phibbs (1867) LR 2 HL 149), cannot be anything but a mistake of law.

[9.425] Belief that conduct is lawful In Walden v Hensler (1987) 163 CLR 561; 29 A Crim R 85; 75 ALR 173, Gaudron J said (at 606; 206–207; 118): Section 22 of the Criminal Code is in two parts: the first part gives expression to the principle encompassed in the maxim ignorantia juris non excusat; the second part provides, not by way of

[9.430]

IGNORANCE

761

exception, but by way of qualification to this principle, the defence of claim of right. Such a defence is not constituted by mere ignorance of the criminal law, and therefore must have some foundation or basis independent of a mere belief in a liberty to engage in that which is not unlawful. Equally, however, ignorance of the criminal law does not preclude the assertion of a supposed right, notwithstanding that such assertion involves a belief, founded in ignorance, that conduct proscribed by the criminal law is lawful.

See also R v Joseph Mohr (unreported, Vic SC, except for a reference in a book review by B McSherry (1997) 21 Crim LJ 299). Ms McSherry said: On 9 May 1997, a Supreme Court jury acquitted Joseph Mohr, a 74-year-old man, of the murder of his wife. Mr Mohr claimed that he had slashed his wife’s wrists at her request because she no longer wanted to live. His wife had been suffering from arthritis and paralysis caused by a stroke in 1994. Defence counsel raised the ingenious argument that the prosecution not only had to prove that Mohr intended to kill his wife, but that he also knew that the act was wrong in the sense of it being unlawful. There was some evidence to the effect that despite continual explanations from his doctor that active euthanasia was illegal, this information did not “sink in”. In acquitting Mohr, the jury must have accepted that it was not proved beyond reasonable doubt that Mohr knew killing a chronically ill person was unlawful.

Defence counsel was John A Smallwood (later Judge Smallwood QC). Balmford J had directed the jury on this point as follows: And finally, in the circumstances of this particular case, that guilty mind must involve knowledge by the accused, at the time when the acts in question were done, that killing his wife, in the circumstances in which he did so, was wrong in the sense of being unlawful.

In R v Freeman (1985) 3 NSWLR 303; 17 A Crim R 272 (CA), Miss Freeman was convicted of conspiracy to pervert the course of justice. She was said to have used an accused’s own money for bail. Street CJ, allowing the appeal, noted her evidence without criticism. His Honour said (at 304; 273): Miss Freeman went into the witness box in the course of her case and gave evidence asserting innocence on her part of any wrongful intent, asserting a belief that what she was doing was not unlawful and asserting also that she was acting under the instructions of her employer solicitor.

Later (at 309–310; 278–279), in the course of finding that the directions of the trial judge were wrong, his Honour said: It goes without saying, of course, that if, in the course of performing an innocently originating agreement, awareness of its wrongness was brought to the knowledge of the parties (for example by perusal of the bail documents or by admonitions of the bail justice) then continuation thereafter, in the sense of reaffirmation of the original innocent agreement, could readily be recognised as importing criminality. But that is not the present case. The charge, here, was pressed by the Crown essentially on the original agreement. Consideration of the state of mind of the parties at all stages of the transaction in relation to inherent wrongness in what was being done was withdrawn from the jury.

See also DPP Reference (No 1 of 1999) (1999) 8 NTLR 148; 149 FLR 465; 128 NTR 1; 105 A Crim R 489 (Martin CJ) at [40] – [42].

[9.430] Honesty and bona fides exception In R v P (1986) 41 SASR 360; 21 A Crim R 186, in dealing with the maxim “ignorantia legis haud excusat”, King CJ said (at 368; 192–193): The direct application of the maxim in the criminal law is found in the principle that it is not a defence to a criminal charge that the accused person did not know, or did not know the true import, of the law which he is said to have broken. But the maxim also has a permeating influence on the

762

ROSS ON CRIME

[9.435]

law in other respects, not least of which respects is that of statutory interpretation. Courts tend to interpret statutes, in the absence of indication to the contrary, in a way which gives effect to the principle. Nevertheless the principle cannot be pushed too far. Where there is a question of the honesty or bona fides of a person, that question cannot be resolved artificially by excluding from consideration, if it is otherwise relevant, that person’s understanding of the relevant law. Thus the defence of claim of right to a charge of larceny is available to a person whose claim is genuine but mistaken because it is based upon his mistaken view of the law.

[9.435] Non-printing and non-publicity exception In Defiant Cycle Co Ltd v Newell [1953] 1 WLR 826; [1953] 2 All ER 38 (CCA) the appellant had been convicted of selling metal at a higher price than the regulations and their schedules allowed. The schedule was never published, nor was there any certificate exempting publication. Goddard LCJ said (at 830; 41): [I]f no certificate has been given exempting the King’s printer from printing the whole of the order, while it does not affect the validity of the order itself, it throws on the Crown the burden of proving that at the date of the commission of the offence reasonable steps had been taken for the purpose of bringing the purport of the instrument to the notice of the public, or of persons likely to be affected by it, or the person charged.

Note: The All ER refers to the Queen’s printer. See also R v Sheer Metalcraft Ltd [1954] 1 QB 586; [1954] 2 WLR 777; [1954] 1 All ER 542 (ruling of Streatfield J on the sufficiency of publicity without publication); Lim Chin Aik v The Queen [1963] AC 160; [1963] 2 WLR 42; [1963] 1 All ER 223 at 171–172, 47, 227 (PC); R v Secretary of State for Social Services; Ex parte Camden London Borough Council [1987] 1 WLR 819; 2 All ER 560 at 826, 566.

[9.440] Codes Two Codes recognise the non-publication exception: Qld: Criminal Code s 22(3); NT: Criminal Code s 30(3) and (4). See also Belief at [2.800]; Claim of right at [3.2200]; Knowledge at [11.700]; and Mens rea at [13.2300].

[9.445] Bliss Thomas Gray (1716–1771), the English poet, wrote in Ode on a Distant Prospect of Eton College (1747): Yet ah! why should they know their fate? Since sorrow never comes too late, And happiness too swiftly flies. Thought would destroy their paradise. No more; where ignorance is bliss, ’Tis folly to be wise.

[9.605]

IMPLEMENT OF CRIME

763

See also Belief at [2.800]; Claim of right at [3.2200]; Knowledge at [11.700]; and Mens rea at [13.2300].

IMPLEMENT OF CRIME Equipment or implement of crime ............................................................................................... Disguise ......................................................................................................................................... Drug cases – cultivation ............................................................................................................... Trafficking ..................................................................................................................................... Cash ...............................................................................................................................................

[9.600] [9.605] [9.610] [9.615] [9.620]

[9.600] Equipment or implement of crime Evidence is frequently admitted in criminal trials to prove that the accused had possession of equipment needed to commit the crime charged. The admissibility generally turns on whether the equipment is capable of being used for the crime in question. The evidence is not admissible if it does no more than show that the accused has a propensity to commit crimes of that sort. In Thompson and Wran v The Queen (1968) 117 CLR 313, a safe at the Darwin Bowling Club was blown open and money taken from the safe. Evidence was given of the accused’s possession of a kit for blowing safes and for drilling and picking the locks of safes. The appeal was allowed and Barwick CJ and Menzies J said (at 316): In our opinion, this evidence went beyond what was permissible. Evidence that the prisoners had in their possession material, which might have been used to break into and to steal from the Darwin Bowling Club or the Darwin Squash Centre, or, was of the same character as what was used in the commission of those crimes, was admissible to identify them with the crimes, eg, a jemmy to break in, or a supply of gelignite, detonators, wires and batteries, suitable for the blowing of the safes. Some of the evidence admitted, however – of which instances have already been given – did no more than tend to show that the prisoners were well-equipped safebreakers. We do not think that evidence of the possession of tools for the commission of crime is admissible only when it appears that tools of that nature were used in carrying out the alleged crime; it is sufficient if such tools might have been so used: R v Sims [1946] 1 KB 531 at p 538 where Goddard CJ said: Thus, in the case of burglary, evidence is admissible that housebreaking implements such as might have been used in the crime were found in the possession of the accused. … In all cases, however, where such evidence is admitted, it is to identify an accused person with the crime charged against him, and evidence that the possession of tools of crime other than those which were or might have been used to commit the crime charged, or tools of such a nature, ie, in the absence of some special connexion, inadmissible because it does no more than prove criminal disposition.

In R v Glen [1973] VR 809 (CCA) Winneke CJ, giving the judgment of the court said (at 817): [E]vidence of the possession of oxy-acetylene equipment was held admissible on counts concerning opening of a safe using that sort of apparatus.

[9.605] Disguise In R v Talbot (1989) 44 A Crim R 70 (NSW CCA) it was noted that a wig and beanie used in one armed robbery is not admissible on a charge of another armed robbery where a different disguise was used.

764

ROSS ON CRIME

[9.610]

[9.610] Drug cases – cultivation In R v Taouk and Henna (1982) 8 A Crim R 349 (NSW CCA) evidence of possession of cannabis seeds was admitted on a charge of cultivation. Likewise in R v Orchard (1993) 70 A Crim R 289 (NSW CCA) the accused’s house where the cannabis seeds were found was a four hour drive from the place of cultivation. In R v Hofer (1991) 55 A Crim R 225 (Vic CCA) a book on how to do it was admitted as evidence where the cultivation accorded with the book’s instructions.

[9.615] Trafficking In R v Edwards (1993) 67 A Crim R 539 (Vic CCA) on charges of trafficking cannabis, evidence was held to be properly admitted of the possession of scales and plastic bags. In R v Sultana (1994) 74 A Crim R 27 (NSW CCA), a street supplier of heroin had evidence of the possession of firearms admitted because they would be appropriate to the business of a street heroin dealer. In R v Edwards [1998] 2 VR 354; (1997) 94 A Crim R 204 (CA) Sultana was approved (at 368–369; 218). Evidence of possession of a pistol was held to be properly admitted on a charge of trafficking in amphetamines. In R v Blackwell (1996) 87 A Crim R 289 (SA CCA) the appellant had been convicted of possession of heroin for the purpose of sale. Evidence of his having a can of mace and a pen pistol was held properly admitted. Duggan J said (at 290): It is well-known that drug dealers may become involved in situations which place their personal safety at risk. Accordingly it is not unknown for dealers to arm themselves or carry some sort of protective device, particularly when in possession of large quantities of drugs. Reference has been made to this fact in some of the authorities (see, eg, McGhee (1993) 61 SASR 208; 68 A Crim R 220; Sultana (1994) 74 A Crim R 27 and the cases referred to therein) … It is well accepted that if, in addition to being found also to have items commonly associated with drug dealing, then the finding of such items usually will be relevant as part of the circumstantial material to establish the purpose for which the drug was in that person’s possession. In my view the mace and the pen pistol were relevant for this purpose. I am also of the opinion that the probative value of this evidence was not outweighed by any prejudicial effect. There was not a real risk on the present case that the jury would misuse the evidence by regarding the appellant as a person with a propensity towards violence and the fact that the evidence might have suggested an involvement in ongoing drug dealing is an inevitable consequence of the requirement to prove that the drug was in the appellant’s possession for the purpose of sale.

[9.620] Cash In R v Lewis (1989) 46 A Crim R 365 (NT CCA) evidence of possession of a sizeable amount of cash was held not to be admissible on a charge of possession of drugs for the purpose of supply, for in the nature of the charge the supply has not occurred. In R v Sultana (1994) 74 A Crim R 27 (NSW CCA) evidence of having a large unexplained amount of cash was admitted when the charge was actual supply. See also Housebreaking (Possession of instruments of housebreaking) at [8.2125].

[9.810]

IMPORTATION

765

IMPORTATION Legislation ..................................................................................................................................... Definition ....................................................................................................................................... Attempted importation .................................................................................................................. Knowingly concerned: Customs Act 1901 s 233B(1)(d) ............................................................ Sentencing ..................................................................................................................................... Drug importation sentences ..........................................................................................................

[9.800] [9.805] [9.810] [9.815] [9.820] [9.825]

[9.800] Legislation Cth: Customs Act 1901 s 233B(1)(b).

[9.805] Definition In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Dawson J said (at 595–596; 501–502; 256): To import goods is to bring them into the country from abroad: Lyons v Smart (1908) 6 CLR 143, at p 150. But if the goods are merely passing through en route to some place outside the country, they are not imported. Thus in Reg v Bull (1974) 131 CLR 203 it was held that goods are not imported into Australia within the meaning of s 233B(1)(b) of the Customs Act 1901 until they are landed or brought within the limits of a port with the intention of landing or discharging them. Moreover, importation connotes a commercial purpose or at least an intention to use or consume the goods. Goods would not, to my mind, be imported if they were discovered on board a ship or an aircraft during a journey to Australia and were handed to customs officers on arrival here because their importation was prohibited. I mention these things because it seems to me that it is not possible as a matter of language to speak of importation without introducing some element of purpose or intention: cf White v Ridley (1978) 140 CLR 342, esp at p 359. Even though that element of purpose or intention is usually an obvious inference from the surrounding circumstances, mere proof that goods have been brought into the country may, in some circumstances, not be enough.

In Forbes v Traders Finance Ltd (1970) 126 CLR 429 Barwick CJ said (at 432): Importation extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import.

In Calderwood v The Queen (2007) 172 A Crim R 208 (NSW CCA) McClellan CJ at CL, with whom the others agreed, said (at 212 [12]): … an importation neither begins nor ends at the point of which the goods arrive in Australia. Both events before the goods arrive and activities afterwards, which are incidental to the bringing of the goods into Australia, are admissible to prove the importation … Even if the appellant only gained knowledge that drugs were in the parcels after they had arrived in Australia, if he, nevertheless continued in his efforts to obtain possession of the box he can be guilty of importing.

The question of the degree to which an act is proximate to importation was discussed in R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 63–64 (NSW CCA).

[9.810] Attempted importation Where a person imports a substance believing it to be prohibited, but which proves not to be prohibited, the person is to be charged with attempt. In Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 (FC), the defendant had intended to import cannabis. The substance imported proved to be procaine, an anaesthetic which was not prohibited. The court held that the proper charge was attempt to import cannabis. Britten v Alpogut [1987] VR 929; (1986) 23 A Crim R 254 has been followed in Australia: R v Lee (1990) 1 WAR 411; 47 A Crim R 187 (CCA);

766

ROSS ON CRIME

[9.815]

R v Mai (1991) 26 NSWLR 371; 60 A Crim R 49 (CCA); R v El Hassan (2001) 126 A Crim R 477 (NSW CCA). Other cases R v Barbouttis (1995) 37 NSWLR 256; 82 A Crim R 432 (CCA).

[9.815] Knowingly concerned: Customs Act 1901 s 233B(1)(d) Some act is necessary In R v Tannous (1987) 10 NSWLR 308; 81 ALR 403; 32 A Crim R 301 (CCA), Lee J, giving the leading judgment said (at 308–309; 408; 306): The “concern” to which the section speaks is not a concern personal to the appellant in the sense of being in his mind, but is a concern which can be demonstrated objectively by reference to his association, whatever it may be, with the importation … Before he can be convicted under the section he would have to do something to connect himself with or involve himself in the importation.

The act must be before or during the importation In R v Leff (1996) 132 FLR 102; 86 A Crim R 212 (NSW CCA), James J said (at 111; 222): A person commits the offence of being knowingly concerned in the importation of prohibited imports into Australia, only if the person becomes knowingly concerned in the importation before the importation takes place or during the importation, that is while the importation is still in progress (R v Tannous (1987) 10 NSWLR 303 especially at 307), even though the conduct by which the concern is made manifest need not occur while the importation is still in progress: see R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 64.

The knowledge must be actual, not hypothetical In Pereira v DPP (1988) 63 ALJR 1; 82 ALR 217; 35 A Crim R 382 (HC), the court said in a joint judgment (at 3; 219; 384): [I]t was necessary that that knowledge exist before or in the course of the process of importation.

See also R v Forbes [2001] 1 AC 473; [2001] 1 All ER 686; [2002] Cr App R 430 (HL).

“concerned in” In R v Lam (1990) 46 A Crim R 402 (NSW CCA), Herron CJ said (at 405): The expression “concerned in” is one of general import and it is impossible to state with precision what it comprehends. It is necessary to consider the facts and circumstances of the particular case. … The Shorter Oxford Dictionary and the Macquarie Dictionary both give as a synonym for “concerned” the word “involved”. In R v Kelly (1975) 12 SASR 389 at 400 the Full Court of the Supreme Court of South Australia said, in relation to the word “concerned”: The word is no doubt deliberately chosen to cover a wide range of activities since it would be well-nigh impossible to define more closely the various acts which could go towards the fulfilment of a plan for the importation of prohibited articles.

[9.820]

IMPORTATION

767

In R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 (NSW CCA) the court said in a joint judgment (at 64): [I]n Yong (1975) 7 ALR 271, this Court made it plain that it was not necessary, to secure a conviction under s 233B(1)(d) that the “concern” should be made manifest in the physical sense whilst the importation was actually in progress. It is sufficient if the “concern” is manifested in the venture which centred upon the importation. To similar effect was the decision of the Court of Criminal Appeal of South Australia in Kelly (1975) 12 SASR 389; see also Ashbury v Reid [1961] WAR 49.

See also Cheung v The Queen (1997) 97 A Crim R 283 (WA CCA) at 288–293.

[9.820] Sentencing Generally In R v Klein (2001) 121 A Crim R 90 (NSW CCA) Wood CJ said (at 95 [24]): Sentencing judges must not lose sight of the following principles when sentencing for such offences: (a) Prior good character and relative youth are of reduced significance since they are matters which the organisers of the heroin and cocaine trade use to their advantage, in order to avoid attracting suspicion in relation to those who carry those substances across immigration and customs barrier upon their behalf (see Leroy [1984] 2 NSWLR 441 at 446–447; (1984) 13 A Crim R 469 at 474–475 and Lawson, Wu and Thapa (1997) 98 A Crim R 463). (b) The subjective circumstances of an offender standing for sentence need to be kept in context, and not given such an undue weight as result in a sentence that is disproportionate to the objective seriousness of the criminality involved (see R v Dodd (1991) 57 A Crim R 349 at 354; Stead [1999] NSW CCA 41 and Zayat (unreported, Court of Criminal Appeal, NSW, No 60125 of 1996, 22 November 1996)). (c) For foreign offenders, the fact of their separation from their homeland and family is of very little relevance. Those who choose to run the risk of bringing drugs into this country must accept the consequences of being imprisoned here, with all the disadvantages entailed (see R v Ferrer-Esis (1991) 55 A Crim R 231 at 239 and Chu (unreported, Court of Criminal Appeal, NSW, No 60232 of 1998, 16 October 1998)). (d) Those involved in an importation for purely financial gain or for greed, can expect little in the way of leniency. (e) The discount allowed for assistance must not be such as to result in a sentence that is disproportionate to the offence, or that is likely to cause affront to the community (see Chu (unreported, Court of Criminal Appeal, NSW, No 60232 of 1998, 16 October 1998) and Gallagher (1991) 23 NSWLR 220; 53 A Crim R 248). (f) There is no reason to extend particular leniency to those who perform the task of personally carrying narcotics into the country, because without them the trade in those substances will collapse (see Laurentiu and Becheru (1992) 63 A Crim R 402, Budiman (1998) 102 A Crim R 411, and Behar (unreported, Court of Criminal Appeal, NSW, No 60363 of 1998, 14 October 1998)).

768

ROSS ON CRIME

[9.825]

Courier and principal In R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464; 166 ALR 330 Gleeson CJ, Gaudron, Hayne and Callinan JJ said (at 279; 335; 469 [19]): The distinction between “couriers” and “principals” Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under theCustoms Act 1901. One may be charged with importing the drug; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of, or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed upon another. In that context, a distinction between “couriers” and “principals” may prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms. Further, it is always necessary, whether one or several offenders are to be dealt with in connection with a single importation of drugs, to bear steadily in mind the offence for which the offender is to be sentenced. Characterising the offender as a “courier” or a “principal” must not obscure the assessment of what the offender did.

[9.825] Drug importation sentences Cocaine R v Jackson (2003) 138 A Crim R 148 (Qld CA): 25/13 years imprisonment; R v Suarez-Mejia (2002) 131 A Crim R 577 (WA CCA): life imprisonment with 20 years non-parole period; R v Hamzy (2001) 53 NSWLR 726; 127 A Crim R 70 (CCA): total thirteen and a half years imprisonment for two separate importations; R v Blanco (1999) 106 A Crim R 303 (NSW CCA); Heryadi v The Queen (1998) 19 WAR 383; 98 A Crim R 578 (CCA): eight years imprisonment with a minimum of four years.

Speed (methylamphetamine) R v W (2002) 129 A Crim R 400 (NSW CCA); Iskandar v The Queen (2001) 126 A Crim R 546 (WA CCA).

Ecstasy (MDMA-methylene-dioxy-methamphetamine) R v Van Der Aar (2001) 124 A Crim R 115 (Vic CA): seven years imprisonment with a non-parole period of four and a half years; Barany v The Queen (2000) 114 A Crim R 426 (WA CA): six years imprisonment; Heryadi v The Queen (1998) 19 WAR 383; 98 A Crim R 578 (CCA): eight years imprisonment; R v Carey [1998] 4 VR 13; (1997) 97 A Crim R 552 (CA): eight years imprisonment with a minimum of five and a half years; R v Bowers (1997) 97 A Crim R 461 (NSW CCA): eight and a half years imprisonment with a non-parole period of four and a half years; R v Efendi (2001) 125 A Crim R 487 (NSW CCA): ten years imprisonment.

[9.1005]

INCEST

769

Heroin R v Ha Khanh Phong (2005) 12 VR 17; 223 ALR 322; 153 A Crim R 477 (CA); R v Kaldor (2004) 150 A Crim R 271 (NSW CCA); R v Bezan (2004) 147 A Crim R 430 (NSW CCA); R v Stanbouli (2003) 141 A Crim R 531 (NSW CCA): conspiracy; Tramontano v The Queen (2002) 131 A Crim R 1 (NT CCA); R v Gey-Houn Ra (2002) 131 A Crim R 133 (NT CCA); R v Chen (2003) 138 A Crim R 433 (NSW CCA); R v Ng (2002) 5 VR 257; 136 A Crim R 299 at [144] – [155] (CA): 25/20 years: conspiracy; Thom v The Queen (2001) 126 A Crim R 196 (WA CCA); Radebe v The Queen (2001) 162 FLR 313; 122 A Crim R 559 (WA CCA). R v Ngui and Tiong (2000) 1 VR 579; 155 FLR 216; 111 A Crim R 593 (CA).

INCEST The offence .................................................................................................................................. Legislation ................................................................................................................................... Act must be voluntary and intentional ....................................................................................... Parents and children .................................................................................................................... Evidence ...................................................................................................................................... Sentencing ................................................................................................................................... Sentence ......................................................................................................................................

[9.1000] [9.1005] [9.1010] [9.1015] [9.1020] [9.1025] [9.1030]

[9.1000] The offence Incest proscribes sexual intercourse between a person and progenitors, offspring and siblings (In Victoria step-children, step-parents and half siblings are included).

[9.1005] Legislation Qld: Criminal Code s 222; WA: Criminal Code s 329; Tas: Criminal Code s 133; NT: Criminal Code s 134; NSW: Crimes Act 1900 s 78A; Vic: Crimes Act 1958 s 44; SA: Criminal Law Consolidation Act 1935 s 75; ACT: Crimes Act 1900 s 62; NZ: Crimes Act 1961 s 130; Eng: Sexual Offences Act 1956 ss 10 and 11; Can: Criminal Code s 155.

770

ROSS ON CRIME

[9.1010]

[9.1010] Act must be voluntary and intentional In R v AJS (2005) 12 VR 563; 159 A Crim R 327 (CA) the court said in a joint judgment (at 569; 334 [25]): To prove the crime of incest, the prosecution must establish that the act of penetration was a voluntary and intentional (or willed) act on the part of the accused. The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt.

(This part of the judgment is not affected by the successful appeal: AJS v The Queen (2007) 81 ALJR 1208; 235 ALR 633; 171 A Crim R 436).

[9.1015] Parents and children Illegitimate children are regarded as children In R v Frith [1914] VLR 658 (CCA) it was held that it was no defence that the stepdaughter was illegitimate; likewise for Dawson v The King (1927) 40 CLR 206. Where a marriage is to be an element it must be strictly proved and is not proved by an accused’s admission or by general repute: R v Umanski [1961] VR 242 (CCA).

Step-father At common law, a step-father is not a father legally or by consanguinity and cannot be guilty of incest with a step-daughter: R v Geddeson (1906) 25 NZLR 323 (Cooper J). Legislation has almost always made a step-father liable.

Adoptive parent Whether an adoptive parent can commit incest was dealt with in: R v Stanley (1903) 23 NZLR 378 (CA); Wilkinson v The King [1947] NZLR 412 (CA); R v Campbell [1968] Tas LR 38 (Burbury CJ).

[9.1020] Evidence Accomplice Is the child an accomplice and subject to the same warning: R v Draper (1929) 21 Cr App R 147 (CA); R v Starr [1969] QWN 23 (ruling of WB Campbell J) distinguishing R v Sneesby [1951] St R Qd 26 (ruling of Philip J).

Fresh complaint Evidence of fresh complaint is not admissible: R v Starr [1969] QWN 23 (WB Campbell J).

Relationship A jury must be properly instructed on relationship evidence. In R v Grech [1997] 2 VR 609; (1996) 88 A Crim R 489 (CA) Callaway JA said (at 614; 494): In my opinion the jury should have been told that: (a) the evidence of extraneous sexual conduct was admitted solely to establish the relationship between the applicant and his daughter as part of the context and setting in which the offences charged were alleged to have occurred; and

[9.1025]

INCEST

771

(b) even if the jury accepted that evidence or part of it: (i) the commission of the offences charged could be proved only by the evidence relating to them, not by evidence relating to the extraneous conduct; and (ii) they must not reason that, because the applicant engaged in sexual conduct with his daughter on one or more earlier occasions, he was the kind of person who was likely to have done so on the occasions charged.

Followed: R v DCC (2004) 11 VR 129; 151 A Crim R 403 at [2] (CA). See also Relationship at [18.2200].

Similar acts with the same person R v Ball [1911] AC 47; [1908–10] All ER Rep 111; (1910) 6 Cr App R 31 (HL).

Similar acts with another R v O’Regan [1961] Qd R 78 (CCA).

Where evidence of relationship is admissible, such evidence should be called after the evidence given in direct proof Chin v The Queen [1980] WAR 10 (CCA).

[9.1025] Sentencing In Attorney-General’s Reference (No 1 of 1989) [1989] 1 WLR 1117; [1989] 3 All ER 571; 90 Cr App R 141 the Court of Appeal gave the following guidelines (at 1122–1123; 575–576; 147–148): [W]e venture to make the following suggestions as a broad guide to the level of sentence for various categories of the crime of incest. All are on the assumption that there has been no plea of guilty. 1. Where the girl is over 16. Generally speaking a range from three years’ imprisonment down to a nominal penalty will be appropriate depending in particular on the one hand on whether force was used, and upon the degree of harm, if any, to the girl, and on the other the desirability where it exists of keeping family disruption to a minimum. The older the girl the greater the possibility that she may have been willing or even the instigating party to the liaison, a factor which will be reflected in the sentence. In other words, the lower the degree of corruption, the lower the penalty. 2. Where the girl is aged from 13 to 16. Here a sentence between about five years and three years seems on the authorities to be appropriate. Much the same principles will apply as in the case of a girl over 16, though the likelihood of corruption increases in inverse proportion to the age of the girl. Nearly all the cases in this and other categories have involved pleas of guilty and the sentences in this category seem to range between about two and four years, credit having been given for the plea. 3. Where the girl is under 13. It is here that the widest range of sentences is likely to be found. If one can properly describe any case of incest as the “ordinary” type of case, it will be one where the sexual relationship between husband and wife has broken down; the father has probably

772

ROSS ON CRIME

[9.1030]

resorted to excessive drinking and the eldest daughter is gradually, by way of familiarities, indecent acts and suggestions made the object of the father’s frustrated sexual inclinations. If the girl is not far short of her thirteenth birthday and there are no particularly adverse or favourable features on a not guilty plea, a term of about six years on the authorities would seem to be appropriate. It scarcely needs to be stated that the younger the girl when the sexual approach is started, the more likely it will be that the girl’s will was overborne and accordingly the more serious would be the crime. Other aggravating factors, whatever the age of the girl may be, are (inter alia) as follows: 1. If there is evidence that the girl has suffered physically or psychologically from the incest. 2. If the incest has continued at frequent intervals over a long period of time. 3. If the girl has been threatened or treated violently by or was terrified of the father. 4. If the incest has been accompanied by perversions abhorrent to the girl, eg buggery or fellatio. 5. If the girl has become pregnant by reason of the father failing to take contraceptive measures. 6. If the defendant has committed similar offences against more than one girl. Possible mitigating features are (inter alia) the following: 1. A plea of guilty. It is seldom that such a plea is not entered, and it should be met by an appropriate discount, depending on the usual considerations, that is to say how promptly the defendant confessed and his degree of contrition and so on. 2. If it seems that there was a genuine affection on the part of the defendant rather than the intention to use the girl simply as an outlet for his sexual inclinations. 3. Where the girl has had previous sexual experience. 4. Where the girl has made deliberate attempts at seduction. 5. Where, as very occasionally is the case, a shorter term of imprisonment for the father may be of benefit to the victim and the family.

[9.1030] Sentence Father and daughter or step-daughter R v H (1994) 74 A Crim R 41 (NSW CCA): eight years imprisonment with an additional term of three years. R v Wakime [1997] 1 VR 242 (CA): seven years imprisonment with a minimum of five years. Winneke P with whom the other judges agreed said (at 244): None the less, as this court has repeatedly pointed out, incest is an abhorrent crime. His Honour correctly recognised the crime’s capacity to erode decent family life and the trust and confidence of its victims. This court has said that it ought not to turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this court in particular is continually reminding itself and other courts that incest ought to attract condign punishment.

In R v Huchison [1972] 1 WLR 398; [1972] 2 All ER 936; (1972) 56 Cr App R 307 (CA), the sentence was two years for a single act. The daughter was probably under 14 years of age.

[9.1200]

INCITEMENT

773

R v Percival [1998] 2 Qd R 191; (1997) 98 A Crim R 419 (Qld CA): four counts; pregnancy and abortion. Sentence: seven and a half years imprisonment. DPP v VH (2004) 10 VR 234; 149 A Crim R 367 (CA): six counts. Sentences between five and seven years with concurrency and cumulation orders. In DPP v BGJ (2007) 171 A Crim R 74 (Vic CA) the respondent was on parole after incest offences. He then committed incest on S, and she gave birth to N who was physically and intellectually disabled. He indecently assaulted N. Total sentence seven years with five years before parole. KJR v The Queen (2007) 173 A Crim R 226 (NSW CA). Carnal knowledge: nine year non-parole term and a remainder of three years.

Grandfather and granddaughter DPP v GJL (2004) 7 VR 366 (CA): 10 years imprisonment with a minimum of seven years.

Siblings In R v Ball (1910) 5 Cr App R 238 (CACD) the brother was sentenced to three years imprisonment and his sister to six months. In R v Watson (1999) 106 A Crim R 300 (Qld CA), Davies JA said (at 301): [W]here the intercourse which occurs is between mature consenting adults the main community concern is the effect which that may have on children born to the parties. The risk of that occurring may vary from case to case but it may be seriously doubted whether in such case any community benefit is served by the imposition of a term of imprisonment.

Sentence on the brother was varied on appeal to conviction and $200 recognizance to keep the peace and be of good behaviour for two years.

INCITEMENT Definitions ................................................................................................................................... Legislation on the offence .......................................................................................................... Substantive offence ..................................................................................................................... Prosecution must prove incitement to commit an offence ........................................................ Effect on person incited is not relevant ..................................................................................... Proximity of incitement to commission of offence ................................................................... Is the crime incited possible or impossible ............................................................................... Attempt to incite ......................................................................................................................... Evidence ...................................................................................................................................... Other inciting offences ................................................................................................................ Incitement by law enforcement agents ...................................................................................... Incitement to murder: sentence ..................................................................................................

[9.1200] [9.1205] [9.1210] [9.1215] [9.1220] [9.1225] [9.1230] [9.1235] [9.1240] [9.1245] [9.1250] [9.1255]

[9.1200] Definitions In R v Eade (2002) 131 A Crim R 390 (NSW CCA) Smart AJ said (at 402 [59]): In Young v Cassells (1914) 33 NZLR 852, Stout CJ, in an oft quoted passage said: “The word ‘incite’ means to rouse; to stimulate; to urge or spur on; to stir up; to animate.” In R v Massie [1999] 1 VR 542 at 554; (1998) 103 A Crim R 551 at 564, Brooking JA, with whom Winneke P and Batt JA agreed, said of “incite”, “common forms of behaviour covered by the word are ‘command’, ‘request’, ‘propose’, ‘advise’, ‘encourage’ or ‘authorise’”. Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.

774

ROSS ON CRIME

[9.1205]

In Race Relations Board v Applin [1973] 1 QB 813; [1973] 2 WLR 895; [1973] 2 All ER 1190, Lord Denning said (at 825; 898; 1194): A person may “incite” another to do an act by threatening or by pressure, as well as by persuasion.

Victoria Crimes Act 1958, s 2A(1): “incite” includes command, request, propose, advise, encourage or authorize.

[9.1205] Legislation on the offence Cth: Criminal Code Act 1995 s 11.4; WA: Criminal Code s 553; Tas: Criminal Code ss 298 and 342A; NT: Criminal Code s 43BI; Summary Offences Act s 69B; Police Administration Act s 158; NSW: Common law and Crimes Act 1900 s 249F; Vic: Crimes Act 1958 ss 321G–321L; ACT: Criminal Code 2002 s 47.

[9.1210] Substantive offence In R v Dimozantis (1991) 56 A Crim R 345 (Vic CCA) the ruling of the trial judge was approved (at 349): The learned trial judge ruled that it was not necessary, as an element of the offence, to prove that the person incited acted upon the incitement, although it was necessary to prove that the course of conduct urged would, if it had been acted upon as the inciter intended it to be, amount to the commission of the offence.

In R v Assistant Recorder of Kingston-Upon-Hull; Ex parte Morgan [1969] 2 QB 58; [1969] 1 All ER 416; 53 Cr App R 96 Lord Parker CJ said (at 62; 417; 98): [I]n the crime of incitement … it matters not that no steps have been taken towards the commission of the attempt or of the substantive offence. It matters not, in other words, whether the incitement had any effect at all. It is merely the incitement or the attempting to incite which constitutes the offence.

[9.1215] Prosecution must prove incitement to commit an offence In Walsh v Sainsbury (1925) 36 CLR 464, Isaacs J said (at 476): Sec 7A of the Crimes Act creates a new and substantive offence. The mere fact that A “incites to” or “urges” the commission of an offence or offences against a Commonwealth law is enough to constitute A an offender. He may “incite” or “urge” a particular person or generally, but, the “incitement” or the “urging” once proved, the offence is complete. Withdrawal does not obliterate it, though no doubt it may affect the measure of punishment. But to be itself an offence the “incitement” or the “urging” must be to the commission of some “offence”.

See also Clyne v Bowman (1987) 33 A Crim R 280 at 285–286 (NSW Yeldham J).

[9.1230]

INCITEMENT

775

[9.1220] Effect on person incited is not relevant In R v Zhan Yu Zhong (2003) 139 A Crim R 220 (Vic CA) Buchanan JA with whom the others agreed said (at 224 [18]): The actus reus of the crime is incitement to commit an offence. Section 2A of the Crimes Act provides: “incite” includes command, request, propose, advise, encourage or authorize The section does not require that the person incited form the mens rea for the crime to be committed. It appears that the incitement need not have any effect upon the person incited, other than to come to the latter’s knowledge.

[9.1225] Proximity of incitement to commission of offence See also Invicta Plastics v Clare (1975) 120 SJ 62; [1976] RTR 251; Crim LR 131 (QBD). Invicta plastics advertised “Radtec”, showing a car and a speed sign. The device would squeal within 800m of a police radar trap. Appeal against conviction for inciting a breach of the (English) Wireless Telegraphy Act 1949. Held: the advertisement was sufficiently proximate. Appeal dismissed.

[9.1230] Is the crime incited possible or impossible Impossible R v Whitehouse [1977] QB 868; [1977] 3 All ER 737; 65 Cr App R 33. A father incited his 15-year-old daughter to have sexual intercourse with him. Because of her age she would not have committed a crime by that intercourse. Plea of guilty and conviction set aside.

Possible In DPP v Nock [1978] AC 979; [1978] 2 All ER 654; 67 Cr App R 116 (HL), Lord Scarman said (at 999; 663; 129): Our attention was also drawn to two cases, upon which it may be helpful to comment very briefly. In R v McDonough (1962) 47 Cr App R 37 the Court of Criminal Appeal held that an incitement to receive stolen goods was complete on the making of the incitement even though there were no stolen goods – perhaps even, no goods at all. In Haggard v Mason [1976] 1 WLR 187 the Divisional Court held that the offence of offering to supply a controlled drug was committed, even though the drug in fact supplied was not a controlled drug. Neither of these cases infringes the principle of R v Smith (2000) 116 A Crim R 1: for in each, as Lord Widgery pointed out in Haggard v Mason [1976] 1 WLR 187 (p 189), the offence was complete. In McDonough (1962) 47 Cr App R 37 … the actus reus was the making of the incitement and in Haggard’s case [1976] 1 WLR 187 it was the making of the offer.

Applied: R v Fitzmaurice [1983] QB 1083; [1983] 1 All ER 189; 76 Cr App R 17. Other cases: R v Higgins (1801) 2 East 5; 102 ER 269 (KB); R v Gregory (1867) LR 1 CCR 7; R v Ransford (1974) 13 Cox 19 (CCR).

776

ROSS ON CRIME

[9.1235]

[9.1235] Attempt to incite In R v Langer [1972] VR 973 (CCA), the court said (at 984): [A]n order for a new trial on the charge of attempted incitement would, in our opinion, be both unreasonable and unsatisfactory, even if conviction on such a charge is open in the face of proof of the completed offence which we find it unnecessary to decide. In that regard the decisions in R v Males [1962] 2 QB 500; [1961] 3 All ER 705, and Rodgers v Arnott [1960] 2 QB 244, may require to be contrasted and examined to ascertain whether they can be reconciled and, if not, which is to be preferred.

[9.1240] Evidence Where the incited offence is complete, evidence can be given to show that fact. In R v Campbell [1908] VLR 136 (FC) the accused incited a boy to steal jewellery. Evidence was allowed of the accused’s pawning the jewellery.

[9.1245] Other inciting offences Inciting sexual acts: WA: Criminal Code ss 553 and 555A; NSW: Crimes Act 1900 ss 61N, 61O, 249F; SA: Criminal Law Consolidation Act 1935 s 58. Incitement to murder: R v Abu Hamza [2007] QB 659; [2007] 3 All ER 451; [2007] 1 Cr App R 27 (CA); Murder here means only an intent to kill. The jury must not be directed that an intent to cause grievous bodily harm is open: R v Massie [1999] 1 VR 542; (1998) 103 A Crim R 551 (CA).

Others WA: Criminal Code s 78; Tas: Public Health Act 1997 s 156; Police Offences Act 1935 s 8; NT: Summary Offences Act s 69B.

[9.1250] Incitement by law enforcement agents In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307 law enforcement agents brought heroin into Australia illegally. Mr Ridgeway was alleged to have purchased it, and was charged. Mason CJ, Brennan, Deane, Dawson and Toohey JJ (McHugh J dissenting) found that the importation was illegal and that the public interest required that evidence of the importation be excluded. But Gaudron J said (at 76; 84; 352): For present purposes it is sufficient to concentrate on the situation in which the accused person could not or would not have committed the offence with which he is charged if law enforcement agents or those acting on their behalf had not acted illegally, whether by aiding, abetting, procuring or inciting him to commit the offence or by participating in some more positive way in its commission.

[9.1255] Incitement to murder: sentence R v Maccia (2005) 152 A Crim R 88 (Vic CA): eight years minimum five; R v Massie [1999] 1 VR 542; (1998) 103 A Crim R 551 (CA): eight years;

[9.1415]

INDECENCY

777

Dimozantos v The Queen (No 2) (1993) 178 CLR 122; 116 ALR 411; 67 A Crim R 447: eight years.

INDECENCY Offences ....................................................................................................................................... Legislation ................................................................................................................................... Limited only by imagination ...................................................................................................... Definition ..................................................................................................................................... The test ........................................................................................................................................ Indecent assault ........................................................................................................................... Alternatives ................................................................................................................................. Mental element in indecent assault ............................................................................................ Examples of indecent assault ..................................................................................................... Gross indecency .......................................................................................................................... Duplicity ......................................................................................................................................

[9.1400] [9.1405] [9.1410] [9.1415] [9.1420] [9.1425] [9.1430] [9.1435] [9.1440] [9.1445] [9.1450]

[9.1400] Offences Indecency is a component of many offences.

[9.1405] Legislation Qld: Criminal Code ss 210, 216(2), 227, 228; Summary Offences Act 2005 s 6(3); WA: Criminal Code ss 203, 204, 323; Tas: Criminal Code Act 1924 ss 123, 127, 137, 138; Police Offences Act 1935 ss 12(1)(c), 13(1)(a); NT: Criminal Code ss 127–130, 132, 133; Summary Offences Act s 50; NSW: Crimes Act 1900 ss 61L, 61M, 61N, 61O, 81C; Summary Offences Act 1988 ss 21G, 21H; Vic: Crimes Act 1958 ss 39, 47, 49; Summary Offences Act 1966 s 17; SA: Criminal Law Consolidation Act 1935 ss 56, 58; Summary Offences Act 1953 ss 22, 33; ACT: Crimes Act 1900 ss 57–61, 393, 546B; NZ: Crimes Act 1961 ss 124–126, 130ff.

[9.1410] Limited only by imagination In R v Coffey (2003) 6 VR 543; 143 A Crim R 235 (CA) Callaway JA said (at 550; 243 [22]): [I]ndecent acts are as various as human imagination can make them.

[9.1415] Definition In R v Labaye [2005] 3 SCR 728; (2005) 260 DLR (4th) 595; 203 CCC (3d) 170 (SCC) McLachlin CJC, delivering the majority judgment, analysed authorities, morality and the needs of society. Her Honour expressed the following conclusion (at 753–754; 614–615; 189 [62]): Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements: 1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:

778

ROSS ON CRIME

[9.1415]

(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or (b) predisposing others to anti-social behaviour; or (c) physically or psychologically harming persons involved in the conduct, and 2. That the harm or risk is of a degree that is incompatible with the proper functioning of society. As the above makes clear, the categories of harm capable of satisfying the first branch of the inquiry are not closed, nor is any one of the listed categories in itself an integral part of the definition of harm.

The same court on the same day affirmed these principles in R v Kouri [2005] 3 SCR 789; 260 DLR (4th) 643; 203 CCC (3d) 217 (SCC). Both cases involved swingers. In Crowe v Graham (1968) 121 CLR 375 the High Court was concerned with the meaning of the words “obscene” and “indecent” in the Obscene and Indecent Publications Act 1955 (NSW). Windeyer J said (at 390): Let us turn to the words “obscene”, “indecent”. Each is a well-known word. Each has been long used in law. Apart from any definitions given them by statutes, they are both to be understood with the meanings they have for common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective “indecent” has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it sometimes denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness. Indecent language does not: see eg Norley v Malthouse [1924] SASR 268. Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words, “against public decency and good manners”. The House of Lords has said that for the common law the list is not closed.

Knuller Ltd v DPP [1973] AC 435; [1972] 2 All ER 898; 56 Cr App R 633 (HL) was about a magazine with a section on homosexual practices. Lord Reid said (at 458; 905; 643): There are at present three well-known offences of general application which involve indecency: indecent exposure of the person, keeping a disorderly house, and exposure or exhibition in public of indecent things or acts. The first two are far removed from sale of indecent literature and I can see no real analogy with the third. Indecent exhibitions in public have been widely interpreted. Indecency is not confined to sexual indecency; indeed it is difficult to find any limit short of saying that it includes anything which an ordinary decent man or woman would find to be shocking, disgusting and revolting.

Sims J in Parva v Inglis [1915] 34 NZLR 1051 said (at 1053): [T]he word “indecent” has no definite legal meaning, and it must be taken therefore, in its modern and popular acceptation … In the Standard Dictionary“indecent” is defined to be anything that is unbecoming or offensive to common propriety.

Other cases are collected in Drago v The Queen (1992) 8 WAR 488; 63 A Crim R 59; Phillips v Police (1994) 75 A Crim R 480 (SA CCA). Community standards are judged by the tribunal of fact. Windeyer J said in Crowe v Graham (1968) 121 CLR 375 (at 399): No one would question that, however obscenity and indecency be understood as grounds for the condemnation of a publication, the question is to be related to contemporary standards, community standards. But of that the appointed tribunal of fact must be the judge. Evidence is neither needed nor permitted. Contemporary standards are those currently accepted by the Australian community. Decisions in other countries, one way or the other, about particular publications, whether magazines or novels, cannot be used to decide the issue of obscenity here. And community standards are those which ordinary decent-minded people accept. They are not what those who peddle obscenities and indecencies urge should be accepted.

[9.1435]

INDECENCY

779

See also R v Dean [1973] 2 NZLR 481 (CA).

[9.1420] The test In R v Stringer (2000) 116 A Crim R 198 (NSW CCA) Adams J said (at 212 [56]): The test of indecency has been variously stated as whether the behaviour was unbecoming or offensive to common propriety (Harkin (1989) 38 A Crim R 296) or an affront to modesty (Crowe v Graham (1968) 121 CLR 375) or would offend the ordinary modesty of the average person (Moloney v Mercer [1971] 2 NSWLR 207).

See also Obscene (Indecent and obscene convey one idea) at [15.305].

[9.1425] Indecent assault Indecent assault is not an assault and an independent act of indecency. Such a submission was rejected when Street CJ said in R v Sorlie (1925) 25 SR (NSW) 532; 42 WN (NSW) 152 (CCA) (at 535; 153): I think that any assault, which of itself amounts to the commission of an act of indecency upon the female assaulted or which is of such a character as to involve an act of indecency upon her, comes within the terms of the section, and is a punishable offence.

Applied: Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 (CA). In R v Harkin (1989) 38 A Crim R 296 (NSW CCA) Lee J with whom the others agreed said (at 301): [I]f there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are relevant areas … The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.

See also, R v C, M [2014] SASCFC 116.

[9.1430] Alternatives A verdict of common assault is not an alternative to indecent assault where the absence of consent is an element: R v Williamson [1969] VR 696 (CCA). A verdict of attempted indecent assault may be an alternative: Benbolt v The Queen (1993) 60 SASR 7; 67 A Crim R 11 (CCA).

[9.1435] Mental element in indecent assault In Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 (CA) Cole JA said (at 202–203; 351): It has always been the law that the onus is on the Crown to establish absence of consent if a prosecution for a sexual assault, or indeed any assault, arising from physical contact, is to succeed.

780

ROSS ON CRIME

[9.1440]

The mental ingredient required to be established by the Crown in such cases is an intention on the part of the accused to perform the act, be it of intercourse or other form of sexual or indecent assault without the consent of the victim or “willy nilly not caring whether the victim consents or no”: DPP v Morgan [1976] AC 182 at 215; (1975) 61 Cr App R 136 at 157, per Lord Hailsham.

Further (at 204–205; 353): [E]stablished failure by the accused to advert to the question of consent in cases of assault occasioned by physical contact, with the accused intending to and in fact proceeding with the offending acts, discharges the onus of proof on the Crown to establish the absence of consent to those acts so as to render them an assault within the meaning of s 61L of the Crimes Act.

Proof of hostility is not necessary for indecent assault as it might be for assault or for battery. In R v Phillips (1971) 45 ALJR 467 Barwick CJ said (at 473): [T]he circumstances of the physical contact of one person with another which makes that contact indecent make it unnecessary upon a charge of indecent assault to establish some “hostility” over or above the actual circumstances of the indecency and the contact of the two persons.

Approved: Boughey v The Queen (1986) 161 CLR 10; 20 A Crim R 156; 65 ALR 609 at 26 (CLR).

[9.1440] Examples of indecent assault Examples of indecent assault include the following:

The kiss In R v Pahuja (No 2) (1989) 50 SASR 551; 40 A Crim R 252 (CCA) White J said (at 553; 254): Whatever might be the situation where a young girl misinterprets the manner or the reason for massaging her chest in the breast area, there could not be any like immature misinterpretation of a kiss and/or the insertion of the tongue into her mouth. If either or both these two latter things happened they would necessarily constitute indecent assault(s).

In R v Leeson (1968) 52 Cr App R 185 (CA) Diplock LJ said (at 187): This Court has no doubt that where an assault of this kind involving the kissing of a girl against her will is accompanied by suggestions that sexual intercourse should take place or that sex play should take place between them, the assault is an indecent one.

The touch Touching the genitals: R v McCormack [1969] 2 QB 442; [1969] 3 All ER 371; 53 Cr App R 514. Touching of the arms or legs while taking nude photos of boys of 12 or 13: R v Sutton [1977] 1 WLR 1086; [1977] 3 All ER 476; 66 Cr App R 21. A man allowed a girl of eight to touch the penis when both were clothed, and he did not take her hand away thereby inviting her to continue. This was held indecent assault in R v Speck [1977] 2 All ER 859; 65 Cr App R 161. Likewise, where a man put a child’s hand in his pocket to touch his penis: R v Doyle [1957] SASR 182 (CCA). Touching a leg and bottom, hugging and trying to kiss and trying to touch the complainant’s breasts was held indecent assault in Fitzgerald v Kennard (1995) 38 NSWLR 184; 84 A Crim R 333 (CA). See also R v H [2005] 1 WLR 2005; [2005] 2 All ER 859 (CCA).

[9.1605]

INDEMNITY

781

Woman to woman A woman had sexual intercourse with a 12-year-old boy in R v Hare [1934] 1 KB 354; [1933] All ER Rep 550; 24 Cr App R 108. At the end of the judgment the court said that indecency can be visited on a male or female: There is no doubt, in our opinion, that in section 52 the word “whosoever” includes a woman; there can be no reason for saying that a woman cannot be guilty of indecent assault upon another female.

[9.1445] Gross indecency The meaning of gross was discussed in R v Whitehouse [1955] QWN 76 (CCA), where Philp J took the view that it meant “plain, evident, obvious” from the Oxford Dictionary meaning. According to the Macquarie Dictionary the meaning of gross is glaring or flagrant; morally coarse; lacking refinement; indelicate or indecent. The phrase “commits an act of gross indecency with”, “with” is to be construed as meaning that the participation of two men is necessary, not that the indecency is inflicted on or towards one of them without his consent: R v Preece [1977] 1 QB 370; [1976] 2 All ER 690; 63 Cr App R 28; Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369.

[9.1450] Duplicity An indictment alleging a gross indecency “with or towards” a person is duplicitous: R v Orsos (1997) 95 A Crim R 457 (NSW CCA). See also Duplicity at [4.5700].

INDEMNITY Meaning ....................................................................................................................................... Legislation ................................................................................................................................... Use indemnity and transactional indemnity ............................................................................... Judge’s certificate ........................................................................................................................ Future indemnity ......................................................................................................................... Nature of dealing between the executive and the witness ........................................................ Construction of indemnity document ......................................................................................... There must be a promise to tell the truth .................................................................................. Judge’s discretion to reject evidence of indemnified witness ................................................... Judge’s directions ........................................................................................................................ Frequently seen forms ................................................................................................................

[9.1600] [9.1605] [9.1610] [9.1615] [9.1620] [9.1625] [9.1630] [9.1635] [9.1640] [9.1645] [9.1650]

[9.1600] Meaning An indemnity is a written promise by an authorised person to relieve a person of the penal consequences of a criminal act. The indemnity is usually conditional on the giving of truthful evidence against others.

[9.1605] Legislation Some legislation gives the prosecution specific power to issue an indemnity to a witness. WA: Director of Public Prosecutions Act 1991 s 20(1)(c); NT: Director of Public Prosecutions Act s 21(2)(b); NSW: Criminal Procedure Act 1986 s 32;

782

ROSS ON CRIME

[9.1610]

Vic: Public Prosecutions Act 1994 ss 22(ca), (cb) and 22(d).

[9.1610] Use indemnity and transactional indemnity In Ganin v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 (CA) Kirby P said (at 433; 426): The reference to “use derivative use” indemnity arose out of a study by the Senate Committee of the United States practice, following the passage of the Witness Immunity Act 1970 (US) (18 USC P6002). In the United States, an important distinction has been drawn between “use indemnity” and “transactional indemnity”. The former protects the person, the subject of compulsion, from the use of the enforced testimony itself. The latter protects the subject in respect of any prosecution arising out of a transaction with respect of which the testimony is related. The “use derivative use” indemnity lies between the two foregoing indemnities. Its purpose is to ensure that the prosecution gets the benefit of the witness’s testimony, is forbidden from using that testimony or material derived from that testimony, but without being obliged to pay a price (often considered too high) of affording complete exculpation to the witness from past criminal activities, which may not have been known at the time the questions were first asked.

[9.1615] Judge’s certificate In some jurisdictions legislation allows a judge to give a certificate to a witness who declined to answer questions on the ground of self-incrimination. The certificate has the effect of an indemnity.

Legislation Uniform Evidence Acts s 128; WA: Evidence Act 1906 s 11.

Cases Markinovna v The Queen (1997) 19 WAR 119; 96 A Crim R 7 (CCA) in a joint judgment (at 122-127; 8-14); Attorney-General (WA) v Cockram (1990) 2 WAR 477 (CCA).

Practice In Cornwell v The Queen (2007) 231 CLR 260; 234 ALR 51; 169 A Crim R 89, an accused giving evidence had declined to answer questions in chief because the answers might incriminate him in offences other than those charged. Howie J told him to answer the questions and later gave him a certificate. Jury could not agree and discharged. At the second trial before Judge Blackmore, the judge allowed in the transcript of the evidence at the first trial. Accused convicted. Appeal allowed.

Directions In Hugo v The Queen (2000) 113 A Crim R 484 (WA CCA) Sheller AJ, with whom the other judges agreed, said (at 527 [136]): Given that certificates of immunity should generally be granted in the presence of the jury, the trial judge should take care, either then or in his directions to the jury or both, to explain to the jury the limited nature of the satisfaction which is preconditional to the granting of such a certificate, namely that it is not a finding by the trial judge of credit or truthfulness on the part of the witness, and that that question is for the jury to determine as they do with any witness.

In Trudgian v Western Australia (2006) 33 WAR 163 (CA) Steytler P, with whom the other judges agreed, said (at 170 [27]):

[9.1635]

INDEMNITY

783

If, in the course of explaining the effect of a s 11 certificate, the trial judge leaves a witness with the impression that he or she is immune from prosecution for perjury, this may affect the force of the oath or affirmation the witness has taken ... Moreover, it would be incorrect for counsel to assert that the effect of the grant of a certificate was that the witness could lie with impunity and it would be appropriate, in such a case, for the trial judge to direct the jury accordingly ...

[9.1620] Future indemnity The prosecution prerogative to grant indemnities for past criminal acts to assist in gaining prosecution evidence does not extend to issuing licences to break the law in the future. The trial judge should have excluded the evidence in R v D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71 (CCA).

[9.1625] Nature of dealing between the executive and the witness The prosecution should give immunity to those who would discredit such a witness. In R v Savvas (1991) 55 A Crim R 241 (NSW CCA) Gleeson CJ and Loveday J said (at 256): Whilst it is for the Executive, and not for this Court, to make decisions concerning the grant and refusal of Crown immunity, and whilst we have no particular material that would enable us, even if we were minded to attempt to do so, to review the decisions that were made in the present case, we would not deny the possibility that a situation could arise, in a given case, where the making of such decisions might be demonstrated to have produced such unfairness as would justify a Court of Criminal Appeal in setting aside a conviction of an appellant. However, we do not consider that a case for such intervention has been made out in this appeal … A witness who requires Crown immunity is quite likely to be a person of bad character, and that person’s credibility will often be a major issue at a trial. No doubt it would be to the advantage of accused persons, and would assist challenges to the credibility of such witnesses, if the Attorney-General also adopted a policy of granting immunity to anyone who might come forward with information going to the discredit of such a witness. There is, however, no legal obligation for that to be done, and in determining the degree of any alleged unfairness that has resulted in a particular case regard must be had to the nature, cogency, and apparent reliability of the evidence which it is suggested might become available if some kind of counterbalancing immunity were granted.

[9.1630] Construction of indemnity document In R v Georgiadis [1984] VR 1030 (Ormiston J) the accused had been given an indemnity for giving evidence in a drug trial. He was there cross-examined on his part in a wounding. He was later presented on the wounding charge. It was held that the document should be interpreted in the same way as an ordinary agreement, although it was desirable that it should be given a benevolent construction in favour of the person to whom it was given. (The prosecution then announced and filed a nolle prosequi.)

[9.1635] There must be a promise to tell the truth In R v Green (1983) 9 A Crim R 200 (SA CCA) Wells J said (at 204): [I]f a member of the community seeks to be granted a de facto immunity (in some appropriate form) from the regular processes of the criminal law, he must, in my judgment, be held to the duty of absolute frankness and truth. The imperative responsibility to serve the public interest ordains that the authorities with whom he is in treaty are not empowered to act on anything less. It would be intolerable if those authorities were constrained or expected to recommend the grant of such an immunity upon the basis of statements as to whose genuineness there was a real doubt. A condition precedent to the grant of immunity, however achieved, must, in my judgment, be the display, by the accused, of bona fides at all relevant times.

See also R v Brown (1983) 21 NTR 6; 74 FLR 97; 8 A Crim R 320 (O’Leary J).

784

ROSS ON CRIME

[9.1640]

[9.1640] Judge’s discretion to reject evidence of indemnified witness In R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (CCA) Badgery-Parker J giving the leading judgment said (at 175; 326): In my view the law may now be regarded as settled. There is no separate discretion other than those discussed by this Court in Merritt and Roso (1985) 19 A Crim R 360 and Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 to exclude evidence on the ground that the source of it is a witness who has received an immunity from prosecution. There is a discretion to exclude evidence upon the ground that its admission, permitted by the strict rules of admissibility, would nevertheless be unduly prejudicial to the accused. In a particular case, such unfairness may arise from circumstances which include the fact that the witness in question has been granted an immunity. The mere fact that a witness has been granted such immunity does not necessarily and will not ordinarily compel a conclusion that reception of the evidence would be unfair to the accused so as to require discretionary exclusion of it.

[9.1645] Judge’s directions The strongest warning is required: Chidiac v The Queen (1991) 171 CLR 432; 52 A Crim R 119; 65 ALJR 207; 98 ALR 368; R v Sekhon (1992) 63 A Crim R 349 at 360 (Vic CCA). R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (CCA) was an appeal against conviction for conspiracy to import heroin. The trial judge was Wood J. The court approved his direction. Badgery-Parker J said (at 178; 328–329): He went into considerable detail as to the reason why the evidence of an accomplice might be unreliable, and the reason why, in those circumstances, the warning was given. His Honour said: There are no doubt many reason why the evidence of accomplices may be unreliable and I am sure you can think of many yourselves. You may think it is only natural for an accomplice to want to shift the blame from himself to others, perhaps to downplay his role, perhaps to justify his own conduct. In that process the accomplice may construct an untruthful story, he may play up the part of others, he may even blame innocent people. Experience has shown that once an accomplice gives a version to the police, he may feel locked into that story and be unwilling to tell the truth later. Of course you may think, it is a matter for you, that the risk that an accomplice has told an untrue story may be greater where he has been offered a prospect of receiving some reward or immunity from prosecution either for himself or for someone else. It is a matter of common sense. Freedom from prosecution either of an accomplice or someone else who is associated with him, either here or in some other place in return for giving evidence against an accused person, may – although not necessarily will do so – constitute an inducement or persuasion to give false evidence. His Honour continued over two further pages to emphasise the aspects of the immunity situation in the instant case and the need for the jury to consider the significance of the immunity.

See also Chidiac v The Queen (1991) 171 CLR 432; 52 A Crim R 119; 65 ALJR 207; 98 ALR 368; R v Sekhon (1992) 63 A Crim R 349 at 360 (Vic CCA).

[9.1650] Frequently seen forms INDEMNITY WHEREAS: I. (Name of Defendant) has been charged with the offences as specified in the schedule attached hereto. II. (Name of witness) is required as a witness at the committal proceedings and any subsequent trial to give evidence of all facts within his knowledge relevant to the said charges.

[9.1650]

INDEMNITY

785

III. In so giving evidence the said (Name of Witness) might render himself liable to prosecution for an offence or offences. IV. It is expedient in the interests of justice that the said (Name of Witness) should be indemnified as hereinafter appears. NOW THEREFORE I, (Name of DPP) one of Her Majesty’s Counsel and Director of Public Prosecutions for the State of (State) DO HEREBY UNDERTAKE that no criminal proceedings of any kind shall be taken or continued after this day against the said (Name of Witness) arising out of or in respect of or on account of his participation in the aforementioned offences and of which he gives evidence at the said committal proceedings and any subsequent trial PROVIDED THAT he gives such evidence truthfully and frankly, withholding nothing of relevance AND FURTHER PROVIDED THAT this indemnity shall not affect any prosecution of the said (Name of Witness) for any offences arising our of any knowingly false evidence given by him at the said committal proceedings or any subsequent trial. DATED: DIRECTOR OF PUBLIC PROSECUTIONS UNDERTAKING I, (Name of DPP), one of Her Majesty’s Counsel and Director of Public Prosecutions for the State of (State) DO HEREBY UNDERTAKE that: a. any answer given or statement or disclosure made by (Name of Witness) in the course of giving evidence in proceedings against (Name of Defendant) for the offence specified in the schedule attached hereto; or b. the fact that the said (Name of Witness) discloses or produces a document or other thing in the course of giving evidence in the said proceedings; or c. any information, document or other thing that is obtained as a direct or indirect consequence of an answer that is given, a statement or disclosure that is made, or a document of other thing that is disclosed or produced by the said (Name of Witness) in the course of giving evidence in the said proceedings, will not be used in evidence against the said (Name of Witness) in any criminal proceedings in the said State, PROVIDED THAT nothing in this undertaking shall affect the prosecution of the said (Name of Witness) in respect of any false evidence he might give in the proceedings referred to in (a) hereof. DATED: DIRECTOR OF PUBLIC PROSECUTIONS In R v Clark (2001) 123 A Crim R 506 (NSW CCA) Heydon JA (at 543 [57]) referred to the idemnity given to Scott Dennis Brown: If you actively co-operate in criminal proceedings pending against Steven John Clark for the offence of murder and if your evidence there is the truth, the whole truth and nothing but the truth, I grant you indemnity from prosecution for: 1. concealing a serious offence; or 2. any associated offence except the offence of murder in respect of matters relevant to the proceedings and covered by your evidence at the trial.

786

ROSS ON CRIME

[9.1800]

INDICTMENT Definition ..................................................................................................................................... Judiciary Act (Cth) s 69 ............................................................................................................. Criminal Law Consolidation Act (SA) s 275(1) ........................................................................ Form of indictment ..................................................................................................................... Amendment ................................................................................................................................. Date ............................................................................................................................................. Place ............................................................................................................................................ Pleading the offence .................................................................................................................... Framing of indictment ................................................................................................................ Irregularity in form ..................................................................................................................... Aggravating factor ...................................................................................................................... A rule of practice ........................................................................................................................ Aggravation under Customs Act (Cth) s 235(2) ........................................................................ Indictment is not to be overloaded or trivial ............................................................................. Signing the indictment ................................................................................................................ Filing and making indictment/presentment ................................................................................ Legislation ................................................................................................................................... More than one count-joinder ...................................................................................................... Joinder apart from statute: mutually contradictory counts ........................................................ State procedures apply to Commonwealth indictments ............................................................ Length of time ............................................................................................................................ Joinder in sexual cases ............................................................................................................... Joinder of accused ...................................................................................................................... One indictment only ................................................................................................................... Filing over ................................................................................................................................... Ex officio indictment .................................................................................................................. Court power over indictment ...................................................................................................... Prosecution decides on charges .................................................................................................. Clearing the indictment by verdict .............................................................................................

[9.1800] [9.1805] [9.1810] [9.1815] [9.1820] [9.1825] [9.1830] [9.1835] [9.1840] [9.1845] [9.1850] [9.1855] [9.1860] [9.1865] [9.1870] [9.1875] [9.1880] [9.1885] [9.1890] [9.1895] [9.1900] [9.1905] [9.1910] [9.1915] [9.1920] [9.1925] [9.1930] [9.1935] [9.1940]

[9.1800] Definition An indictment is a written accusation of crime made at the suit of the prosecution against one or more persons. It must be signed by a person authorised to do so. In South Australia such a document is called an information; it was called a presentment in Victoria until the Criminal Procedure Act 2009 came into force. Qld Criminal Codes 1: indictment means a written charge preferred against an accused person in order to the person’s trial before some court other than justices exercising summary jurisdiction.

(interpreted in R v Gittens [1965] Qd R 361 at 367 (CCA)). WA Criminal Code s 1: The term “indictment” means a written charge of an indictable offence presented to the Supreme Court or District Court in order that the accused person be tried by that court.

No other jurisdictions have definitions.

[9.1805] Judiciary Act (Cth) s 69 69.(1) Indictable offences against the laws of the Commonwealth shall be prosecuted by indictment in the name of the Attorney-General of the Commonwealth or of such other person as the Governor General appoints in that behalf.

[9.1810] Criminal Law Consolidation Act (SA) s 275(1) Any person may be put upon his trial at any criminal sessions of the Supreme Court, for any offence, on any information presented to the Court in the name and by the authority of the Attorney-General.

[9.1825]

INDICTMENT

787

[9.1815] Form of indictment Legislation Qld: Criminal Code s 564; WA: Criminal Procedure Act 2004 s 85 and Sch 1; Tas: Criminal Code s 311; NT: Criminal Code ss 304, 305; NSW: Crimes Act 1900 s 360; Vic: Criminal Procedure Act 2009 s 159(3) and Sch 1; SA: Criminal Law Consolidation Act 1935 s 277; ACT: Crimes Act 1900 s 260; NZ: Crimes Act 1961 s 328 and Second Schedule form 4; Can: Criminal Code s 580 and Form 4.

Cases In R v Hamzy (1994) 74 A Crim R 341 (NSW CCA), Hunt CJ at CL said (at 344): A challenge to the form of an indictment, however, is in many (but not in all) cases of fundamental importance to the validity of the trial, and the defect demonstrated in the indictment may in some (but, again, not in all) cases involve such a departure from the essential requirements of the law that the defect goes to the root of the proceedings, leading to a miscarriage of justice.

The section creating the offence prevails over the form in the Rules: R v Aniba (1995) 83 A Crim R 224 (Qld CA). The accused had been convicted of “carnal knowledge against the order of nature” following Form 141 of the Rules but s 208(1) of the Criminal Code proscribes “carnal knowledge by anal intercourse”. The court referred to Dearnley v The King [1947] St R Qd 51; (1947) 41 QJPR 71 and R v Forman [1983] 1 Qd R 85. The Court then said (at 226): Here the differences between the form and the wording of the section which it purports to relate are at least as substantial as they were in Dearnley [1947] QSR 51. There must be some limit on the extent to which a form can, while remaining valid, depart from the wording of the relevant section …

In conclusion on the point: It appears to us that the better view is that Form No 141 no longer has any legal effect; the replacement of the provisions to which it originally referred by legislation of a substantially different character is enough, in our opinion, to achieve that result.

[9.1820] Amendment See Amendment at [1.4400].

Out of time Kovess v DPP (Cth) (1997) 74 FCR 297; 90 A Crim R 579 (FCA Finn J).

[9.1825] Date The date of an alleged offence is usually not important. But in some cases the date has been the essence of the offence or become so in the evidence. In R v Pfitzer (1976) 15 SASR 171 (CCA) Bray CJ said (at 175):

788

ROSS ON CRIME

[9.1830]

Whether the date alleged in an information is vital to the charge must depend on the circumstances. So long as it is clear that the controversy turns on the events of a certain occasion, it may not matter if the date of that occasion is misstated if the occasion itself is clearly identified and both parties have directed their cases towards it: cf Page v Butcher [1957] SASR 165. But obviously if a man is charged with committing an offence on Saturday and comes prepared with an alibi for Saturday, he cannot be convicted of committing the offence on Friday or Sunday, unless perhaps the information is amended and the trial adjourned to enable him to meet the new case. If authority is needed for so obvious a proposition, it will be found in Wright v Nicholson (1970) 54 Cr App R 38.

In R v H (1995) 83 A Crim R 402 (SA CCA) Mullighan J said for the court (at 411): As Derrington J observed in R v Jacobs [1993] 2 Qd R 541 (at 544): Apart from the exceptions which have been mentioned, it is going too far to say that the time alleged in the indictment may become an element of the offence. Rather the correct view is that the nature of the allegations in the Crown case may be such that the prosecution is fixed to a certain date and it would be wrong to countenance any departure from that point when it is especially relevant to proof, alibi or the like. That date or period of time which is particularised may well become material in the context of the forensic issues as they develop at a trial. As Myers CJ said in Dean [1932] 51 NZLR 753 (at 761): True, the date specified in the indictment is not material, but if it is sworn to that the alleged offence took place on a specific date and there is no evidence that other offences took place in the neighbourhood of that date it seems to me that the date sworn to does become essential. In other words, it is the date proved that is material, not the date specified in the indictment.

R v H (1995) 83 A Crim R 402 is an example of how dates can be important. The accused was convicted of rape. The prosecutrix first told police the crimes occurred in July 1986, then 25–28 February 1985. The accused was at that time in prison, and called prison officers to give evidence. A mistrial was declared. The prosecutrix changed the dates again to 25 February–5 March 1985, then shortly after to 19 May 1986. The appeal was allowed and a verdict of not guilty entered on each count. In WGC v The Queen (2007) 233 CLR 66; 241 ALR 199; 179 A Crim R 193 the accused had been convicted in 2006 of having sexual intercourse in 1986 with a complainant aged between 12 and 16. The complainant said she was 13 at the time. The defence was that the sexual intercourse occurred in 1989 and that the complainant then said that she was 17. The intercourse took place on a boat. The clear evidence was that she had been on the boat between five and eight times between 1982 and 1990. Held: (3–2): date was not relevant. The only issue was the age of the complainant. Appeal dismissed. Other cases R v Westerman (1991) 55 A Crim R 353 (NSW CCA); Galbraith v The Queen (1989) 6 WAR 12; 39 A Crim R 17 (CCA); R v Kringle [1953] Tas SR 52 at 53–54 (summing-up of Crisp J); R v Dean [1932] NZLR 753 (CA, five members); R v Dossi (1918) 13 Cr App R 138 at 159–160;

[9.1830] Place The place where the crime is alleged to have occurred must be within the jurisdiction of the court. See also Jurisdiction at [10.1900].

[9.1850]

INDICTMENT

789

[9.1835] Pleading the offence Breach of statute is pleaded by using the words of the statute or of the form which relates to it. Where the form has been rendered obsolete by change in the statute, the statute should be used and not the form: R v Aniba (1995) 83 A Crim R 224 (Qld CA). Common law offences will usually be pleaded by using the form in the rules or by taking the elements of the offence from the cases on the subject.

[9.1840] Framing of indictment The indictment is not to be framed in a way different from the prosecution case: R v Scalia [1971] VR 200 (CA) (other cases on dates); R v Westerman (1991) 55 A Crim R 353 (NSW CCA); R v Le Boursicot (1994) 79 A Crim R 548 (NSW Smart J).

[9.1845] Irregularity in form In R v Ayres [1984] AC 447; [1984] 1 All ER 619; 78 Cr App R 232 (HL) Lord Bridge, with whom the others agreed, said (at 460–461; 626; 244–245): In a number of cases where an irregularity in the form of the indictment has been discussed in relation to the application of the proviso, a distinction treated as of crucial importance has been drawn between an indictment which is a nullity, and one which is merely defective. For my part I doubt if this classification provides much assistance in answering the question which the proviso poses. If the statement of particulars of the offence in an indictment disclosed no criminal offence whatever, or charged some offence which has been abolished – in which case the indictment could fairly be described as a nullity – it is obvious that a conviction under that indictment cannot stand. But if the statement and particulars of offence can be seen fairly to relate to, and be intended to charge a known and subsisting criminal offence, but pleaded in terms which are inaccurate, incomplete or otherwise imperfect, then the question whether a conviction on that indictment can properly be affirmed under the proviso must depend on whether, in all the circumstances, it can be said with confidence that the particular error in the pleading cannot in any way have prejudiced or embarrassed the defendant.

Approved: Kahatapitiye v The Queen (2004) 146 A Crim R 542 at 543–544 [9] (WA CA); R v Fahey [2002] 1 Qd R 391; (2001) 121 A Crim R 390 (at 396–397; 395 [21]) (CA). Discussed: R v Wilson (No 2) (2007) 169 A Crim R 553 at 560 [40] – [43] (SA CCA). See also Proviso at [16.7600]. Legislation Vic: Criminal Procedure Act 2009 s 166.

[9.1850] Aggravating factor In R v De Simoni (1981) 147 CLR 383; 35 ALR 265; 5 A Crim R 329 Gibbs CJ said (at 389; 268–269; 333): At common law the principle that circumstances of aggravation not alleged in the indictment could not be relied upon for purposes of sentence if those circumstances could have been made the subject of a distinct charge appears to have been recognised as early as the eighteenth century.

790

ROSS ON CRIME

[9.1855]

In R v Bright [1916] 2 KB 441; [1916–1917] All ER Rep 811; 12 Cr App R 69 (CCA) Darling J said (at 444; 812; 72): Further, we are of opinion that the judge must not attribute to the prisoner that he is guilty of a crime which is not charged in the indictment, nor of a statutory aggravation of the crime which might and should have been charged in the indictment if he was to be punished for the aggravation.

See also Sentencing (Agreed facts) at [19.2205].

[9.1855] A rule of practice In Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R 65; 62 ALR 161 Gibbs CJ, Wilson and Dawson JJ said (at 280; 172; 74): Where the circumstances of aggravation do no more than increase the maximum penalty, they do not alter the nature of the charge although they do affect, sometimes very materially, the legal consequences that may flow from a conviction. The rule of practice laid down in R v Bright [1916] 2 KB 441; [1916–1917] All ER Rep 811; 12 Cr App R 69 is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment. The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge. Although it would be an exaggeration to say that the rule of practice in R v Bright [1916] 2 KB 441; [1916–1917] All ER Rep 811; 12 Cr App R 69 has been generally applied in cases where the circumstances of aggravation increase the maximum punishment but do not change the offence, it is a beneficial rule and ought generally to be followed.

[9.1860] Aggravation under Customs Act (Cth) s 235(2) In Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R 65; 62 ALR 161 (above) Gibbs CJ, Wilson and Dawson JJ said (at 281): Where the circumstances of aggravation described in Customs Act s 235(2) are relied on, they should be charged in the indictment. If necessary, of course, an alternative charge, omitting the circumstances of aggravation, could be laid in addition.

Further explanation was given in R v Meaton (1986) 160 CLR 359; 21 A Crim R 117; 65 ALR 65, where Gibbs CJ, Wilson and Dawson JJ said (at 364): The preferable course for the prosecution is to lay one charge which includes the circumstances of aggravation; the jury can then be directed that it would be open to them (in appropriate circumstances) to find the accused guilty of the charge without those circumstances of aggravation: see Archbold’s Criminal Evidence & Practice, 42nd ed (1985), pars 4–459 – 4–461. Where the accused is alleged to have been convicted of a previous offence in respect of narcotic goods, in New South Wales the practice governed by ss 394 and 414 of the Crimes Act 1900 (NSW), as amended, should be adopted. In those States where the matter is not governed by express statutory provision, the practice which is set out in Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R; 62 ALR 161, at pp 279–281 (CLR), should be followed. In other words, the accused should, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offence together with any circumstances of aggravation other than the alleged previous conviction. If he pleads not guilty or the court orders a plea of not guilty to be entered, the jury should be charged in the first instance to inquire only regarding those matters. If the accused is convicted the jury will, if the accused does not admit the previous conviction, be asked to find if he was previously convicted of the earlier offence alleged: but, in relation to Victoria, see Crimes Act 1958 (Vic), as amended, s 395. In the event of an accused pleading guilty to the offence as charged but then disputing an alleged previous conviction, since no jury will have been empanelled the judge will proceed to determine that issue. Furthermore, if an accused person pleads guilty only to the offence as defined by s 233B, any matters of aggravation that may be in dispute will fall to be determined in accordance with the practice prevailing in the State concerned.

[9.1870]

INDICTMENT

791

See also Sentencing at [19.1800].

[9.1865] Indictment is not to be overloaded or trivial In R v Ambrose (1973) 57 Cr App R 538 Lawton LJ said (at 540): When the Court inquired of counsel why a triviality of this kind got into the indictment, the Court was informed that it was thought right to deal with the matter as there was evidence relating to it. The Court wishes it to be clearly understood that those who draft indictments should use common sense and should not put into indictments charges which are of such a trivial nature. Not only it is unfair, but it also tends to impede the doing of justice on more important aspects of an indictment. The language of ordinary people in this country sums up this kind of situation. The ordinary man does not like, as he puts it, the book being thrown at someone, or, to use the other phrase which is in common use, everything being thrown at an accused person except the kitchen sink. The ordinary man is right: it is not fair.

Applied: R v Siugzdinis and Mauri (1984) 32 NTR 1; 81 FLR 360; 15 A Crim R 136 at 12; 370; 147 (Muirhead J). A 76-count presentment alleging sexual offences involving children had been laid in R v Taylor (1992) 58 A Crim R 337 (Vic CCA), Phillips CJ said (at 340–341): The learned judge had protested the length of the second presentment before arraignment but to no avail. Having conducted what must have been an extensive analysis of both presentments, his Honour was prepared to proceed to arraignment but later referred to the preparation of this presentment as a “ridiculous exercise” with the result that the proceeding had been unnecessarily complicated with a great increase in the risk of error. These criticisms were, in my opinion, entirely well founded. I do not know of a previous case in which this Court has been obliged to comment on such a presentment and it needs to be said, and said firmly, that this Court expects there will never be a repetition of such unhelpful pleading in criminal proceedings.

R v Smart [1983] 1 VR 265; (1982) 6 A Crim R 192 (CCA): 63 counts of commercial fraud. R v Appleby (1996) 88 A Crim R 456 (Vic CA): 94 counts of theft and one count of obtaining a financial advantage by deception.

[9.1870] Signing the indictment Legislation requires that an authorised person sign the indictment.

Legislation Cth: Director of Public Prosecutions Act 1983 s 9; Qld: Criminal Code s 560; Criminal Practice Rules 1999 Sch 2; WA: Criminal Procedure Act 2004 ss 80 and 85(2)(c); Tas: Criminal Code s 310(2); NT: Criminal Code ss 298 and 304; NSW: Criminal Procedure Act 1986 s 126; Vic: Criminal Procedure Act 2009 s 159(3); Public Prosecutions Act 1994 s 36(1)(a); SA: (no specific reference); ACT: Director of Public Prosecutions Act 1990 s 7; Eng: Criminal Justice Act 2003 s 29.

792

ROSS ON CRIME

[9.1875]

Cases The courts interpret the legislation strictly. Failure to have the proper signature on the indictment or presentment invalidates the trial. In R v Clarke [2008] 1 WLR 338; [2008] 2 All ER 665; [2008] 2 Cr App R 2 (HL) the signature was not put on the indictment until after amendment at the end of the trial. Held: appeal against conviction allowed. The late signing could not validate an invalid trial. R v Janceski and R v Morais followed. In R v Halmi (2005) 62 NSWLR 263; 156 A Crim R 150 (CCA) the indictment had been signed by Ms Kate Traill, a member of the private Bar but not authorised by the Director of Public Prosecutions under the Criminal Procedure Act 1986 (NSW) s 126. Appeal allowed. In R v Janceski (2005) 64 NSWLR 10; 223 ALR 580 (CCA) Ms Traill had again signed the indictment. Appeal allowed. In R v Morais (1988) 3 All ER 161; 87 Cr App R 9 the “proper officer” had not signed the bill of indictment, though it had initialled by the trial judge. The appeal was allowed. In R v Parker [1977] VR 22 (CCA) it was held that in Victoria a prosecutor can sign presentments. In this case the prosecutor who had signed the presentment was a County Court judge by the time the trial started. The appeal was allowed. Other cases R v Foley [2003] 2 Qd R 88; (2002) 136 A Crim R 46 (CA); R v Cockrell [2005] 2 Qd R 448 (CA); R v Jackson [1997] 2 Cr App R 497 (CA).

[9.1875] Filing and making indictment/presentment The filing and making indictment/presentment is a formal public procedure. In R v Holden (2001) 161 FLR 372; 120 A Crim R 240 (Vic CA) Ormiston JA said (at 373; 242 [3]): In my opinion the filing to which the authorities refer, especially R v Parker [1977] VR 22, is not a mere filing by depositing the piece of paper on the counter of a court registry. It is more than apparent, especially from the judgments of Young CJ and Murphy J in that case, that the filing of a presentment involves an element of publicity which is why the filing takes place in open court in the sense that, when presentment is made, the signed presentment is handed up to judge or associate in open court, the associate being required to pass the document to the prothonotary or registrar, as the case may be, for ultimate retention on the court files.

and later (at 374; 242 [5]): I would therefore conclude that by application of common law principles the act of making presentment requires signature of a duly appointed prosecutor and the handing of the presentment to the judge’s associate on behalf of the Court. Its ultimate filing away in the court records is therefore incidental. Moreover it would be insufficient for the purpose of making presentment if the solicitor for the Director of Public Prosecutions, whether State or Commonwealth, merely took a presentment to the court office, here the County Court registry, and handed it over the counter, for filing in that way would lack the necessary element of publicity.

[9.1880] Legislation Qld: Criminal Code s 560; WA: Criminal Procedure Act 2004 s 85(2)(c); Tas: Criminal Code s 310(2);

[9.1885]

INDICTMENT

793

NT: Criminal Code s 304; NSW: Criminal Procedure Act 1986 s 126; Vic: Criminal Procedure Act 2009 s 159(3); SA: Criminal Law Consolidation Act 1935 s 278; ACT: Director of Public Prosecutions Act 1990 s 7(2).

[9.1885] More than one count-joinder Charges for more than one offence can be joined in the same indictment if they are “founded on the same facts or form or are part of a series of offences of the same or similar character”.

Legislation Qld: Criminal Code s 567; WA: Criminal Procedure Act 2004 Sch 1 s 9; Tas: Criminal Code s 311(2); NT: Criminal Code s 309; NSW: Criminal Procedure Act 1986 s 29; Vic: Crimes Act 1958 Sch 6; SA: Criminal Law Consolidation Act 1935 s 278(1); ACT: Crimes Act 1900 s 434B(1). In Sutton v The Queen (1984) 152 CLR 528; 11 A Crim R 331; 51 ALR 435 Brennan J said (at 541–542): When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted.

In R v Mayfield (1995) 63 SASR 576; 80 A Crim R 294 (CCA) Cox J said (at 578; 296): Whether counts may be joined in the same information and whether the counts, if properly joined, should be tried together are two distinct questions. See s 278 of the Criminal Law Consolidation Act 1935 (SA); R v Armstrong (1990) 54 SASR 207; 48 A Crim R 358. The court may sever a count or counts, so that they will be tried separately, where it is of the opinion that otherwise an accused may be prejudiced or embarrassed in his defence. Where the evidence on the different counts is cross-admissible, so that the evidence relating to all counts would be admissible on a trial of any one of them, the accused will not be able to show any relevant prejudice or embarrassment. In any other case there will be a serious question for the trial judge to consider.

Cox J went on to say (at 580–581; 298–299): Even if the evidence was not cross-admissible, there was still a strong case here for trying the two charges together. Section 278 of the Criminal Law Consolidation Act 1935 (SA) and the reported decisions, including Sutton (1984) 152 CLR 528 and Ingivald, recognise that there will be cases in which a joint trial of multiple counts is justified even though the evidence on the several counts is not completely cross-admissible. R v Jacobs (1988) 143 LSJS 14 is one example. Another is

794

ROSS ON CRIME

[9.1890]

provided by the typical social services fraud (say, by getting regular pension payments under a fictitious name) which is commonly dealt with on an information alleging a large number of identical offences which may not be cross-admissible but are almost invariably tried together. It is a question of balancing the competing interests of the accused and the community. Relevant factors will include the length of the trial and its complication, the expense, the inconvenience and in some cases distress caused to witnesses, the nature and degree of prejudice that the accused is likely to suffer if the charges are heard together, and the extent to which an appropriate direction to the jury can be expected to lessen that prejudice. The prejudice is likely to be particularly severe in a sexual case, so that a trial judge will usually order separate trials in such a case. Ingivald may be regarded as an exception in that respect to a sound general rule. Of course, the risk of prejudice may be decisive in other types of trials as well. See the observations of King CJ in Jacobs (1988) 143 LSJS 14 (at 24–26). Other Australian cases on the subject are R v Cranston [1988] 1 Qd R 159; and R v Kranz (1991) 53 A Crim R 331. The English practice is illustrated by the decisions in Ludlow v Metropolitan Police Commissioner [1971] AC 29; R v Blackstock (1979) 70 Cr App R 34; R v Wells (1991) 92 Cr App R 24. In my opinion, the trial judge was entitled in the circumstances of this case to reject the application for separate trials.

Murder can be joined with other counts of murder: R v Wright and Haigh [1983] 1 VR 65; (1981) 4 A Crim R 158 (CCA); R v Miller (1980) 25 SASR 170; 1 A Crim R 165; 32 ALR 321 at 188. However, murder is not usually joined with other counts: R v Pollitt [1991] 1 VR 299; (1990) 47 A Crim R 176 (ruling of Beach J): murder not to be joined with conspiracy to commit the same murder (at 302; 179); R v Hofschuster (1992) 110 FLR 385; 65 A Crim R 167 (NT, ruling of Mildren J) but see R v Bazley (1986) 21 A Crim R 19 (Vic CCA). See also Murder at [13.3700].

[9.1890] Joinder apart from statute: mutually contradictory counts Counts are mutually exclusive if the evidence is so contradictory that a conviction on one count requires an acquittal on the other. In R v Bellman [1989] AC 836; [1989] 1 All ER 22; 88 Cr App R 252 (HL) the accused had raised sums in England to buy drugs in America and smuggle them back. One group of charges was obtaining money by deception because there was never an intention to buy such drugs. The other group was conspiracy to import the drugs. Lord Griffiths gave the judgment with whom the others agreed. He said (at 851; 29; 260–261): I find no support in law for the submission that mutually contradictory counts can never be joined in one indictment. I can find no overriding reason why justice requires there should be such a rule nor was it suggested that Bellman suffered injustice in the present case. As I have endeavoured to point out, there will be rare occasions when I think justice positively requires there should be such joinder. … there is no rule of law that prevents the inclusion in one indictment of mutually exclusive counts and that if, at the end of the prosecution case, the evidence establishes a prima facie case on both counts, the matter should be left to the jury to determine the question of guilt, and the prosecution should not be put to their election upon which count to proceed.

Followed: Smith v The Queen (2007) 35 WAR 201; 213 FLR 12; 175 A Crim R 528 at [37] and [171] (CA);

[9.1915]

INDICTMENT

795

R v Thomson (2002) 134 A Crim R 252 at 255 [14]ff (NSW CCA); Healy v The Queen (1995) 15 WAR 104 at 110 (CCA); R v Collins [1996] 1 Qd R 631; 76 A Crim R 204 at 637, 208–209 (CCA).

[9.1895] State procedures apply to Commonwealth indictments In R v Bibaoui [1997] 2 VR 600; (1996) 139 ALR 746; 87 A Crim R 527 (CA) Tadgell JA said (at 607; 753; 535): in Victoria, an indictment duly preferred on behalf of the Crown in right of the Commonwealth is equivalent procedurally to a presentment preferred on behalf of the Crown in right of the State of Victoria. An indictment preferred on behalf of the Crown in right of the Commonwealth in any other State or Territory was and is also equivalent procedurally to any other indictment.

Commonwealth and State charges can be joined in one indictment: R v Nicola [1987] VR 1040; (1987) 79 ALR 469; 25 A Crim R 467 (CCA).

[9.1900] Length of time Where two sexual offences occurred 12 years apart, it was held that the joinder was proper: R v Iongi (1993) 69 A Crim R 441 (Qld CCA). See also R v Collins [1996] 1 Qd R 631; 76 A Crim R 204 at 637, 208–209 (CCA).

[9.1905] Joinder in sexual cases In Hoch v The Queen (1988) 165 CLR 292; 35 A Crim R 47; 81 ALR 255, Brennan and Dawson JJ said (at 298): The prosecution joined the three counts in one indictment in pursuance of s 567(2) of Criminal Code (Qld) which authorizes, inter alia, a joinder of counts when the offences charged are part of a series of offences of the same or similar character. It does not necessarily follow that, because counts are properly joined in one indictment, the trial on each count should not be severed from the others. If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts – and there usually is such a risk in sexual cases – separate trials should be ordered: De Jesus v The Queen (1986) 61 ALJR 1; A Crim R 375; 68 ALR 1.

Note that in De Jesus v The Queen (1986) 61 ALJR 1; 22 A Crim R 375; 68 ALR 1 counsel at trial had conceded that the counts were properly joined in the one indictment.

[9.1910] Joinder of accused In R v Fenwick (1954) 54 SR NSW 147; 71 WN 102 (CCA) two men were charged with rape of a girl while driving her home from a dance. There was a one count indictment and it was held that the trial judge was right in directing the jury that the accused acted in concert, or individually. “An indictment charging two persons on the one count is joint and several”: King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 436; 68 ALR 27 per Dawson J (at 433–434).

[9.1915] One indictment only The trial of different offences appearing in different indictments cannot be taken together. In R v McDonnell (1928) 20 Cr App R 163“the whole trial was a mere nullity”.

796

ROSS ON CRIME

[9.1920]

In R v Olivo (1942) 28 Cr App R 173 (CA) Tucker J, delivering the court’s judgment, said (at 174–175): It appears to be the fact that three indictments were tried together at the same time. That irregularity is most unfortunate for several reasons. First, there is no reason why all these three charges should not have been included in one indictment, in which case there would have been no objection to all three being investigated together. That would have been the proper and normal procedure to adopt. Furthermore, in this particular case there appear to be no merits in the appeal. None the less, it has for a great number of years been elementary in criminal procedure that, if there is more than one indictment, the indictments cannot be tried together, and any so-called trial at which such a procedure has been adopted is a complete nullity.

(slightly different words are used in the report of the case at [1942] 2 All ER 494). Other cases Swansson v The Queen (2007) 69 NSWLR 406; 209 FLR 339; 239 ALR 578; 168 A Crim R 263 (CCA: five member court) one indictment, one jury; DPP (Vic) v Ferguson (2004) 148 A Crim R 244 (Vic, Smith J); R v Nicola [1987] VR 1040; (1987) 79 ALR 469; 25 A Crim R 467 at 1044, 473, 471 (CCA); R v Landy [1943] VLR 73 (FC); R v Scott (unreported, Vic CCA, 2 June 1987).

[9.1920] Filing over If a second indictment is filed and the first given a nolle prosequi; such a procedure is proper: Poole v The Queen [1961] AC 223; [1960] 3 All ER 398 (PC); R v Lewis [1975] 2 NZLR 490 at 493 (CA). Where a second indictment is filed it is proper to stay the first: R v Follett [1989] 1 QB 338; [1989] 1 All ER 995; 88 Cr App R 310; R v Harris [No 2] [1990] VR 305 (Ormiston J). The power to stay is inherent: R v McNamara (No 2) (1997) 1 VR 257; 86 A Crim R 339 (CA) in a joint judgment (at 270; 352). In R v Hiep (2000) 155 FLR 228; 113 A Crim R 48 (ACT) Crispin J ruled that the prosecution could withdraw one indictment on which a jury had been discharged without verdict and present another which omitted the first and second counts.

[9.1925] Ex officio indictment The term “direct indictment” or “ex officio indictment” refers to the power of the prosecuting authority, usually the Director of Public Prosecutions, to charge indictable offences for which there has been no committal, or on which the accused has been discharged at committal.

Legislation Cth: Judiciary Act 1903 s 71A; Director of Public Prosecutions Act 1983 s 6(2D); Qld: Criminal Code s 561; WA: Director of Public Prosecutions Act 1991 s 11(2)(c);

[9.1930]

INDICTMENT

797

Tas: Criminal Code s 310(3); NT: Criminal Code s 300; NSW: Director of Public Prosecutions Act 1986 s 29; Criminal Procedure Act 1986 s 8(2); Vic: Criminal Procedure Act 2009 ss 158–159, 161; Public Prosecutions Act 1994 ss 3(c), 22(2), 36(2); SA: Criminal Law Consolidation Act 1935 s 275; ACT: Director of Public Prosecutions Act 1990 s 7. Cases The exercise of the power to present an ex officio indictment cannot be examined: Barton v The Queen (1980) 147 CLR 75; 32 ALR 449 at 94–95, 103, 107 and 109 (CLR); DPP v PM (2006) 67 NSWLR 46; 164 A Crim R 151 at [82] (CCA); Pepper v Western Australia (2005) 30 WAR 447 (CA). However, such an indictment may be stayed to prevent an abuse of process: Barton v The Queen (1980) 147 CLR 75; 32 ALR 449 at 95–98, 105, 107 and 109. Gibbs ACJ and Mason J said (at 101): It is for the courts, not the Attorney-General, to decide in the last resort whether the justice of the case requires that a trial should proceed in the absence of committal proceedings. It is not for the courts to abdicate that function to the Attorney-General, let alone to Crown Prosecutors whom he may appoint.

Ex officio indictment stayed as an abuse of process: R v Siugzdinis and Mauri (1984) 32 NTR 1; 81 FLR 360; 15 A Crim R 136 (Muirhead J); R v Haslett (1987) 50 NTR 17; 90 FLR 233; 31 A Crim R 85 (Asche CJ); R v Gagliardi and Filippidis (1987) 45 SASR 418; 26 A Crim R 391 (Olsson J). Ex officio indictment not stayed where abuse of process argued: Ex parte Johnson and Edwards [1980] Qd R 387; (1979) 2 A Crim R 414 (CCA); R v Breen (1990) 67 NTR 15; 99 FLR 474; 47 A Crim R 298 (Angel J); Christianos v DPP (1992) 9 WAR 345; 69 A Crim R 461 (FC); R v Duffıeld (1992) 28 NSWLR 628; 110 ALR 323; 64 A Crim R 18 (CCA).

[9.1930] Court power over indictment A court has no power until the indictment is filed. In Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 Brennan J said (at 36; 585; 316): Absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment.

Followed: R v Tran (2002) 167 FLR 345; 130 A Crim R 385 at 349 [36] (ACT FC); R v Scott (1993) 42 FCR 1; 116 ALR 703 at 6 and 23 (FCR), 707 and 723 (ALR) (FCA). A court will not review the filing of a presentment: Fox v DPP [1992] 1 VR 673 (Southwell J).

798

ROSS ON CRIME

[9.1935]

[9.1935] Prosecution decides on charges In R v McCready (1985) 20 A Crim R 32 (Vic CCA) Young CJ said (at 39): [I]t is for the Crown to decide upon what offences an accused person is brought to trial by way of presentment or indictment, and, although the Court unquestionably has power to prevent an abuse of its process, it is not for the Court to decide, speaking generally, upon what offence the Crown should proceed.

In Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R; 135 ALR 1 Gaudron and Gummow JJ said (at 534; 26): It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what. (citations omitted)

[9.1940] Clearing the indictment by verdict The indictment must be cleared. Where the indictment contains a count with alternatives, a jury must return a verdict on that main count before considering alternatives. In Stanton v The Queen (2003) 77 ALJR 1151; 198 ALR 41 the accused had been charged with wilful murder. In answer to a jury question during their deliberation, the trial judge had directed them that they could not deliver a verdict on the murder or manslaughter alternatives until they were agreed on a not guilty verdict on wilful murder. Gleeson CJ and others said (at [22]): [T]he prosecution was entitled to have the trial judge seek a verdict on the charge in the indictment, and if the jury were unable to agree, either on a verdict of guilty of wilful murder or a verdict of not guilty of wilful murder, then the proper course was to discharge the jury.

The High Court in Stanton (at [24]) approved R v McCready [1967] VR 325 at 329 (CCA) where the court said that until the main charge (rape) was the subject of verdict, “the accused’s guilt of the alternative crime remains irrelevant”. Other cases R v Kane (2001) 3 VR 542; 123 A Crim R 385 (CA) per Ormiston JA at 549; 391 [14]. R v Moy (1995) 65 SASR 117; 81 A Crim R 242 (Matheson J). As to what are proper verdicts on what alternatives when a jury should be discharged from giving a verdict on those alternatives, see: R v Weeding [1959] VR 298 (CCA); R v O’Grady [1960] NZLR 585 (CA); R v Sessions [1998] 2 VR 304; (1997) 95 A Crim R 151 (CA).

INFANTICIDE No common law offence ............................................................................................................ Legislation and cases .................................................................................................................. Alternative to murder .................................................................................................................. Sentence .......................................................................................................................................

[9.2100] [9.2105] [9.2110] [9.2115]

[9.2115]

INFANTICIDE

799

[9.2100] No common law offence There is no common law offence of infanticide. The Canadian Criminal Code, s 233 describes it this way: A female person commits “infanticide” when by a wilful act or omission she causes the death of her new-born child if at the time of the act or omission she is not fully recovered from the effects of giving birth to the child and by reason thereof or of the effects of lactation consequent on the birth of the child her mind is then disturbed.

[9.2105] Legislation and cases Legislation Tas: Criminal Code s 165A; NSW: Crimes Act 1900 s 22A; Vic: Crimes Act 1958 s 6. By s 10(3) child destruction is an alternative; NZ: Crimes Act 1961 s 178; Eng: Infanticide Act 1938 s 1; Can: Criminal Code ss 233, 237.

Cases In R v Hutty [1953] VLR 338 Barry J, when charging the jury, said (at 341): [T]he first requirement, before a woman may claim the benefit of this sub-section, is that the child that is killed must be under the age of twelve months … You will next observe that the section speaks of the death of the child being caused by a wilful act or omission. “Wilful” in that context means “intentional”, and before you could convict the prisoner of infanticide you would have to be satisfied that she intentionally did some act or intentionally made some omission which brought about the death of the child. If you were satisfied that the death of the child had been brought about by an intentional act or omission on the part of the prisoner, then it would be for you to consider whether at the time she did that act or made that omission, the balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child.

See also Causation at [3.700]; and Concealing birth at [3.4900].

[9.2110] Alternative to murder Infanticide is an alternative to murder: Tas: Criminal Code s 333(d); NSW: Crimes Act 1900 s 22A(2); Vic: Crimes Act 1958 s 6(2). By s 10(2) it is an alternative to murder and manslaughter; NZ: Crimes Act 1961 s 178(2); Eng: Infanticide Act 1938 s 1(2).

[9.2115] Sentence R v Cooper [2001] NSWSC 769 (31 August 2001) (Simpson J); R v Pope [2002] NSWSC 397 (7 May 2002) (Greg James J); R v Azzopardi [2004] VSC 509 (6 December 2004) (Kellam J).

800

ROSS ON CRIME

[9.2300]

The only woman executed in New Zealand was Minnie Dean in 1895. Her crime was infanticide.

INFORMER Definition ..................................................................................................................................... Use ............................................................................................................................................... Anonymity ................................................................................................................................... The test of anonymity ................................................................................................................. Public interest immunity ............................................................................................................. The test for disclosure ................................................................................................................ Pseudonym .................................................................................................................................. Name and address of a witness must be given to the court ..................................................... Sentencing ................................................................................................................................... Later refusal to give evidence .................................................................................................... Whistleblower .............................................................................................................................

[9.2300] [9.2305] [9.2310] [9.2315] [9.2320] [9.2325] [9.2330] [9.2335] [9.2340] [9.2345] [9.2350]

[9.2300] Definition An informer is one who gives information to the police about the commission of a crime or the identity of the person who committed it. In return police might promise not to charge the informer for his own crimes, or to pay for the information by money or with something else the informer might want. Informers might fear reprisals if identified. Slang synonyms include: dobber, fizz, lagger, nark, dog and the word grass is apparently used in England. In Re Gibson (1991) 57 A Crim R 322 (FC) Ambrose J said of the term “informer” (at 331): [I]t is a term that has long been used in the criminal law to describe a person who is not a member of the police force who informs police officers of acts relating to the proposed commission of offences and the criminals involved or of the identity of persons involved in the commission of criminal offences already committed.

[9.2305] Use In Kirzner v The Queen [1978] 2 SCR 487; (1977) 38 CCC (2d) 131 (SCC) the majority said (at 493; 136): The use of spies and informers is an inevitable requirement for detection of consensual crimes and of discouraging their commission; otherwise, it would be necessary to await a complaint by a “victim” or to try to apprehend offenders in flagrante delicto, an exercise not likely to be crowned with much success. Such practices do not involve such dirty tricks as to be offensive to the integrity of the judicial process. Nor can objection on this ground be taken to the use of decoys who provide the opportunity to others intent upon the commission of a consensual offence. In all such cases, the offender can claim no extenuation that would mitigate either his culpability or the use of evidence to establish it or his punishment upon conviciton.

[9.2310] Anonymity The identity of informers may not be disclosed in most legal proceedings. In D v National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 2 WLR 201; [1977] 1 All ER 589, (HL) Lord Diplock said (at 218; 207; 595): The rationale of the rule as it applies to police informers is plain. If their identify were liable to be disclosed in a court of law, these sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. So the public interest in preserving the anonymity of police informers had to be weighed against the public interest that information which might assist a judicial tribunal to ascertain facts relevant to an issue upon which it is required to adjudicate should be withheld from that tribunal. By the uniform practice of the judges which by

[9.2320]

INFORMER

801

the time of Marks v Beyfus (1890) 25 QBD 494 had already hardened into a rule of law, the balance has fallen upon the side of non-disclosure except where upon the trial of a defendant for a criminal offence disclosure of the identify of the informer could help to show that the defendant was innocent of the offence. In that case, and in that case only, the balance falls upon the side of disclosure.

In Gardiner v The Queen (2006) 162 A Crim R 233 (NSW CCA) McClellan CJ at CL, with whom the other judges agreed, said (at 255 [99]): As the authorities make plain only where revelation of the identity of an informer may assist a person to establish their innocence will the rule requiring that it not be disclosed be varied.

In R v Mason (2000) 77 SASR 105; 112 A Crim R 266 (CCA) Bleby J, with whom others agreed, said (at 110; 271 [22]): The rule is well known and easily stated, but, surprisingly, there are many aspects of its application on which little guidance is given in the cases.

[9.2315] The test of anonymity In R v Mason (2000) 77 SASR 105; 112 A Crim R 266 (CCA) Bleby J with whom the other judges agreed said (at 112; 272 [28]): Ultimately, it is the court which grants the immunity. It is for the court to be satisfied that the conditions for the granting of the immunity are fulfilled. Furthermore, it would be an unjustified departure from ordinary standards if the court merely had to be satisfied that there was a real risk or chance that the informer gave the information on a condition of confidentiality. In my opinion the court should be satisfied on the balance of probabilities that the information was given on the basis that the informer’s identity would remain confidential.

[9.2320] Public interest immunity In Haydon v Magistrates Court (2001) 87 SASR 448 (FC) Perry J with whom the other judges agreed said (at 462–463 [66]): Although there have been differing views expressed on the matter, in my opinion, the better view is that the so-called police informer privilege is part of the doctrine of public interest immunity. That view is supported by the observations of McHugh JA, as he then was, in Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246: The protection of the identity of informers is the result of the immunity from disclosure granted to communications made in the public interest. The protection is no longer regarded as the consequence of an independent rule or privilege but is recognised as a particular manifestation of the doctrine of public interest immunity …

Perry J went on to say (at 463–464 [66]): 5. Whether the immunity applies to a particular document for which police informer immunity is claimed, depends upon its contents and not upon its characterisation as part of a class of documents. 6. Although a claim for public interest immunity may be raised by any party to the proceedings, it is not a claim inter partes, and may be raised by any person, whether a party to the proceedings or not, or the court may raise the question of its own initiative. 7. In all cases where the question of public interest immunity arises, it is for the court and not for the executive government to determine whether or not the immunity exists and should be enforced. 8. In determining a claim of public interest immunity, the court undertakes a balancing exercise, weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence …

802

ROSS ON CRIME

[9.2325]

9. It is desirable, but not essential, that a claim of public interest immunity should be supported by an affidavit or certificate of the Minister concerned, or a senior public servant, although neither an affidavit nor a certificate is to be regarded as concluding the issue. 10. When a claim for public interest immunity is raised, the judge may inspect the documents sought to be protected. In this case, all parties consent to inspection if the court wishes to do so. 11. Confidentiality is not a separate head of immunity, but it may be a material consideration to take into account in dealing with a claim of public interest immunity. 12. A claim for public interest immunity may be raised in the course of the preliminary examination of a charge of an indictable offence. (citations omitted)

[9.2325] The test for disclosure In Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 (FC) Brooking J giving the leading judgment said (at 90): The fact that there is good reason to think that disclosure of the informer’s identity may be of some slight assistance to the defence is not sufficient to outweigh the public interest in non-disclosure. The balancing process accepts that justice, even criminal justice, is not perfect, or even as perfect as human rules can make it. But once it is demonstrated that there is good reason to think that non-disclosure may result in substantial prejudice to the accused, the balance has been shown to incline in his favour and disclosure should be directed.

and (at 91): There is no reason why, in a strong enough case, the necessary substantial prejudice could not consist in the inability to gather and use material bearing on the credibility of a witness for the prosecution of some importance where the credibility of that witness was really in question. As Cooke P said in R v Hughes [1986] 2 NZLR 129 at 145 in considering the matter the judge or magistrate is not obliged to act on the statements of counsel on either side. He may take evidence on the voir dire.

See also Nixon v Random House Australia Pty Ltd (2000) 2 VR 523 (Hedigan J). R v XZ (2000) 116 A Crim R 308 (FCA).

[9.2330] Pseudonym An informer may give evidence using a pseudonym. In R v Smith (1996) 86 A Crim R 308 (NSW CCA) the court said in a joint judgment (at 312): The use of pseudonyms, supported, where appropriate, by such rulings and directions as may be necessary to give practical effect to the immunity, is a common method of protecting the public interest here involved: see A-G v Leveller Magazine Ltd [1979] AC 440; (1979) 68 Cr App 343 for an example of the use of pseudonyms in a case where the public interest required non-disclosure of identity. See John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 80 A Crim R 414 per Kirby P at 112–113; 444. Magistrates have the power to direct that pseudonyms be used in such a case: see John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131; 59 A Crim R 68. (As was noted earlier, the name Mr Green in the present case, is itself a pseudonym.) Where proceedings are not held in camera, a non-publication order may be made to protect an informer: see A-G (NSW) v Mayas Pty Ltd (1998) 14 NSWLR 342 at 343; 36 A Crim R 345 at 346; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 472.

[9.2335] Name and address of a witness must be given to the court In Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 (FC), Brooking J delivering the leading judgment said (at 87–88):

[9.2340]

INFORMER

803

I cannot for the moment conceive of any circumstances in which it would be right for a court to take the evidence of a witness without at least the disclosure in confidence of the name and address of that witness to the court.

The principles that apply to non-publication of an informer’s name and identity are contained in Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 at 88–89 and in R v Smith (1996) 86 A Crim R 308 (NSW CCA) where the court said (at 311–312): 1. The fact that one person provides information to another in confidence does not of itself mean that disclosure of such information may not be compelled in legal proceedings. The private interest in confidentiality yields to the public interest in the due administration of justice. However, in certain circumstances the law recognises that a more important public interest is served by protecting information, or the identity of an informant, from disclosure in court. One such circumstance is involved in the practice, which has long since hardened into a rule of law, that the identity of police informers will be protected from disclosure: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171 at 218. 2. The rationale of this form of public interest immunity is that, if it were not extended, sources of information would dry up and the prevention and detection of crime would be hindered. 3. There is powerful authority for the proposition that, at common law, when a claim for immunity is made in respect of the identity of a police informer, the court before whom the claim is made does not undertake for itself, afresh, a balancing exercise, weighing one interest against another. The balance has already been struck; it falls on the side of non-disclosure except where, at a criminal trial, disclosure could help show that the accused is not guilty: see D v National Society for the Prevention of Cruelty to Children [1978] AC 171, at 218; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 246–247. Contrary views, in support of a conclusion that a balancing exercise is still required, have been expressed: see, eg, Meissner (1994) 76 A Crim R 81. Section 130 of the Evidence (Consequential and Other Provisions) Act 1995 (which, although the learned magistrate was not referred to it, applies to the committal proceedings against Smith) appears now to require a weighing of competing interests. Even so, at the very least, the Attorney General is entitled to rely upon the high importance which this aspect of the law of public interest immunity attaches to the protection of the identities of police informers, and the generally accepted reason for that importance. 4. The use of pseudonyms, supported, where appropriate, by such rulings and directions as may be necessary to give practical effect to the immunity, is a common method of protecting the public interest here involved: see A-G v Leveller Magazine Ltd [1979] AC 440; (1979) 68 Cr App 343 for an example of the use of pseudonyms in a case where the public interest required non-disclosure of identity, see John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81; 80 A Crim R 414 per Kirby P at 112–113; 444. 5. Magistrates have the power to direct that pseudonyms be used in such a case: see John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131; 59 A Crim R 68. (As was noted earlier, the name Mr Green, in the present case, is itself a pseudonym.) Where proceedings are not held in camera, a non-publication order may be made to protect an informer: see A-G (NSW) v Mayas Pty Ltd (1988) 14 NSWLR 342 at 343; 36 A Crim R 345 at 346; John Fairfax & Sons v Police Tribunal (NSW) (1986) 5 NSWLR 465 at 472.

[9.2340] Sentencing As a matter of public policy a discount in sentence is given to an accomplice who provides the police with information, who pleads guilty and who gives evidence at the trial of a principal. The proportion of the discount depends mostly on the timeliness of the provision of information and its quality, the part played in the criminal enterprise by the informer, and how essential the information was in the securing of a conviction of the other.

804

ROSS ON CRIME

[9.2340]

In terms of the size of the discount that is available, in R v Morgan [2010] NSWCCA 108 it was held that the discount for a plea of guilty and assistance to authorities should be between 40 - 50%. The court stated: [20] This Court has, on a number of occasions, stated, quite categorically, that two quite distinct situations arise, when calculating a discount for a plea of guilty and assistance. [21] The first such situation is a circumstance where the offender to be sentenced will spend that sentence, or a substantial part of that sentence, in more onerous conditions than the general prison population, on account of the assistance given. In those circumstances, a reduction for the plea of guilty and assistance, if one were granted, should be no more than 50%, unless very exceptional circumstances are disclosed. Onerous conditions of imprisonment are not exceptional circumstances. [22] The second situation complements the first. This situation applies when the offender to be sentenced will not, on account of the assistance given, serve any, or any substantial part, of the sentence to be imposed, while suffering more onerous conditions of imprisonment than the general prison population. In those circumstances the reduction for the plea of guilty and assistance should be no more than 40%, unless one can show exceptional circumstances.

In R v Holland (2011) 205 A Crim R 429; [2011] NSWCCA 65, a 45% discount for cooperation and pleading guilty was upheld by the court following a prosecution appeal; In R v Baldock (2010) 203 A Crim R 214; [2010] WASCA 170, it was noted that the discount could exceed 50% in rare cases. See also: R v Gilbert (2008) 186 A Crim R 153 (Qld CA): one third discount; R v Sahari (2007) 17 VR 269; 177 A Crim R 1 (CA); DPP (Cth) v AB (2006) 94 SASR 316; 161 A Crim R 45 (CCA); R v ZMN (2002) 4 VR 537; 132 A Crim R 586 (CA); R v Gladkowski (2000) 115 A Crim R 446 (Qld CA); R v Kokkinos (1998) 4 VR 574; 145 FLR 474; 101 A Crim R 227 (CA); R v Su (1997) 1 VR 1; 129 FLR 120 at 77–79, 198–201 (CA); Duffy v The Queen (1996) 85 A Crim R 456 (WA CCA); R v Cox (1996) 66 SASR 152; 85 A Crim R 178 (CCA): 30% discount; R v Rostom (1996) 2 VR 97; 83 A Crim R 58 (CA); R v Mundy (1994) 76 A Crim R 92 (Vic CCA); R v Thompson (1994) 76 A Crim R 75 (Qld CA); Foster and D’Anna v The Queen (1992) 59 A Crim R 14 (WA CCA); R v Perrier (No 2) [1991] 1 VR 717; (1990) 59 A Crim R 164 (CCA); R v Many (1990) 51 A Crim R 54 (NSW CCA): a third discount; R v Cartwright (1989) 17 NSWLR 243 (CCA) especially252–253; R v Perez-Vargas (1986) 8 NSWLR 559; 25 A Crim R 194 at 563, 198 (CCA); R v McGookin (1986) 20 A Crim R 438 at 449–450 (Vic CCA); R v Golding (1980) 24 SASR 161; 3 A Crim R 26 (Wells J).

[9.2350]

INFORMER

805

The sentencing discount will be given to an informer whose information does not relate to the offence with which the informer is charged: Bowie v Police (2003) 85 SASR 52; 141 A Crim R 199 (Duggan J).

[9.2345] Later refusal to give evidence Where a prisoner is given a reduced sentence on the promise to give evidence at the trial of co-offenders, and in the event refuses, the DPP can appeal that sentence. R v J (1992) 59 SASR 145; 64 A Crim R 441 (CCA). R v Stanley (1998) 7 Tas R 357 (CCA).

Legislation Cth: Crimes Act 1914 s 21E; Qld: Penalties and Sentences Act 1992 s 188; WA: Sentencing Act 1995 s 37A; NSW: Criminal Appeal Act 1912 s 5DA; Vic: Criminal Procedure Act 2009 s 260; ACT: Crimes (Sentencing) Act 2005 s 137. On the hearing of the appeal the respondent can contend that there was reasonable excuse for failure to comply with the undertaking: R v YZ (1999) 162 ALR 265 (NSW CCA). See also R v B (2002) 132 A Crim R 191 (Qld CA)’ R v Karaman (2002) 128 A Crim R 72 (NSW CCA). The trial judge can imprison for contempt the informer witness who refuses to answer questions (see Contempt in the face of the court at [3.7065]). This contempt imprisonment will be cumulative on any increase in sentence when the prosecution appeals: R v Parsons (1992) 74 A Crim R 172 (WA CCA).

[9.2350] Whistleblower The term whistleblower comes from the expression “to blow the whistle on …”. The allusion is to a policeman’s whistle or that of an umpire or referee at the football, designed to put a stop to wrongful acts.

Legislation Legislation proscribes any reproach by the malefactors to the whistleblower for making their wrongdoing public. Cth: Public Service Act 1999 s 16; Corporations Act 2001 s 1317AA ff; Qld: Whistleblowers Protection Act 1994; Powers of Attorney Act 1998 s 133; Guardianship and Administration Act 2000 s 247; WA: Public Interest Disclosure Act 2003; NSW: Protected Disclosures Act 1994; Vic: Whistleblowers Protection Act 2001; SA: Whistleblowers Protection Act 1993;

806

ROSS ON CRIME

[9.2500]

ACT: Public Interest Disclosure Act 1994; NZ: Protected Disclosures Act 2000; Eng: Public Interest Disclosure Act 1998. See also Australian Law Reform Commission Report 82: Integrity but not by Trust Alone, Ch 14 Scope of Complaints Systems; D Lusty, “Anonymous Accusers: An Historical and Comparative Analysis of Secret Witnesses in Criminal Trials” (2002) 24 Syd LR 361–426; D Lewis, “Whistleblowing Statutes in Australia: Is It Time For a New Agenda” (2003) 8 Deakin L Rev 318–334; B Martin, “Illusions of Whistleblower Protection” (2003) 5 UTS L Rev 119. Public interest immunity at [16.8300].

INSANITY Introduction ................................................................................................................................. Legislation ................................................................................................................................... Burden of proof .......................................................................................................................... Legislation on insanity ................................................................................................................ Difficulties arising from the burden of proof ............................................................................. Admissions of an insane person ................................................................................................. Duty of the Prosecution .............................................................................................................. Duty of defence .......................................................................................................................... Duty of trial judge ...................................................................................................................... Aiding and abetting .................................................................................................................... Committal .................................................................................................................................... Judge’s direction to jury ............................................................................................................. Sentence ...................................................................................................................................... Literature .....................................................................................................................................

[9.2500] [9.2505] [9.2510] [9.2515] [9.2520] [9.2525] [9.2530] [9.2535] [9.2540] [9.2545] [9.2550] [9.2555] [9.2560] [9.2565]

[9.2500] Introduction Everyone is presumed to be sane. But some people are very abnormal of mind. They do not know whether their actions are right or wrong. Such a severe mental defect makes these folk not responsible for criminal acts. They are the insane. For an illustration of a case where an accused was found not guilty of murder on the basis of insanity, see Western Australia v Evans (No 2) [2012] WASC 366.

[9.2505] Legislation Qld: Criminal Code ss 27, 647; Mental Health Act 2000; WA: Criminal Code s 27; Tas: Criminal Code ss 16, 381; NT: Criminal Code ss 43A–43ZQ; NSW: Mental Health (Criminal Procedure) Act 1990 s 38; Vic: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 20 (defence of mental impairment); SA: Criminal Law Consolidation Act 1935 s 269Cff;

[9.2520]

INSANITY

807

ACT: Crimes Act 1900 ss 320–324; Mental Health (Treatment and Care) Act 1994; NZ: Crimes Act 1961 s 23ff.

[9.2510] Burden of proof The burden of proof of insanity is on the accused on the balance of probabilities: M’Naughten’s Case (1843) 10 CC & F 200 [8 ER 718]; 4 St Tr (NS) 847; [1843–60] All ER Rep 229; Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1; 25 Cr App R 72 (HL); R v Porter (1933) 55 CLR 182 at 183–184 (charge of Dixon J); Sodeman v The King (1936) 55 CLR 192 at 200, 209, 216, 228–229 (HC) 233 (PC); Thomas v The Queen (1960) 102 CLR 584 at 589, 591, 598; Mizzi v The Queen (1960) 105 CLR 659 at 664–665; Hawkins v The Queen (1994) 179 CLR 500; 72 A Crim R 288; 122 ALR 27 at 509–510 (CLR). In Victoria, the burden of proof of mental impairment is on whoever raises the question on the balance of probabilities: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 21. See also Sir Owen Dixon, “A Legacy of Hadfield, M’Naughten and MacLean” (1957) 31 ALJ 255.

[9.2515] Legislation on insanity Some legislation refers to insanity being a defence. Qld: Criminal Code ss 27 and 647; WA: Criminal Code s 27; Tas: Criminal Code s 16; Criminal Justice (Mental Impairment) Act 1999 s 21; NSW: Criminal Procedure Act 1986 s 139 (defence response); NZ: Crimes Act 1961 s 23(3); In Victoria there is no defence of insanity: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 25.

[9.2520] Difficulties arising from the burden of proof Depending on how the abnormality of mind is characterised, whether as insanity or some other mental state defence, there will be a difference in the onus and standard of proof: R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545; Hawkins v The Queen (1994) 179 CLR 500; 72 A Crim R 288; 122 ALR 27 at 510, 517 (CLR). In M’Naughten’s Case (1843) 10 CC & F 200 [8 ER 718]; 4 St Tr (NS) 847; [1843–60] All ER Rep 229 the meaning of insanity was discussed: Her Majesty’s judges (with the exception of Maule J who has stated his opinion to your Lordships), in answering the questions proposed to them by your Lordships’ House, think it right, in the first place, to state that they have forborne entering into any particular discussion upon these

808

ROSS ON CRIME

[9.2520]

questions from the extreme and almost insuperable difficulty of applying those answers to cases in which the facts are not brought judicially before them. The facts of each particular case must of necessity present themselves with endless variety, and with every shade of difference in each case, and as it is their duty to declare the law upon each particular case, on facts proved before them, and after hearing argument of counsel thereon, they deem it at once impracticable, and at the same time dangerous to the administration of justice, if it were practicable, to attempt to make minute applications of the principles involved in the answers given by them to your Lordships’ questions. They have, therefore, confined their answers to the statement of that which they hold to be the law upon the abstract questions proposed by your Lordships, and as they deem it unnecessary in this peculiar case to deliver their opinions seriatim, and as all concur in the same opinion, they desire me to express such their unanimous opinion to your Lordships. The first question proposed by your Lordships is this: What is the law respecting alleged crimes committed by persons afflicted with insane delusion in respect of one or more particular subjects or persons, as, for instance, where at the time of the commission of the alleged crime the accused knew he was acting contrary to law, but did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some supposed public benefit? In answer to this question, assuming that your Lordships’ inquiries are confined to those persons who labour under such partial delusions only, and are not in other respects insane, we are of opinion that, notwithstanding the party accused did the act complained of with a view, under the influence of insane delusion, of redressing or revenging some supposed grievance or injury, or of producing some public benefit, he is nevertheless punishable according to the nature of the crime committed, if he knew at the time of committing such crime that he was acting contrary to law; by which expression we understand your Lordships to mean the law of the land. Your Lordships are pleased to inquire of us, secondly: What are the proper questions to be submitted to the jury when a person alleged to be afflicted with insane delusion respecting one or more particular subjects or persons is charged with the commission of a crime (murder, for example), and insanity is set up as a defence? And, thirdly: In what terms ought the question to be left to the jury as to the prisoner’s state of mind at the time when the act was committed? As these two questions appear to us to be more conveniently answered together we have to submit our opinion to be that the jurors ought to be told in all cases that every man is to be presumed to be sane and to possess a sufficient degree of reason to be responsible for his crimes until the contrary be proved to their satisfaction. and that to establish a defence on the ground of insanity it must be clearly proved that, at the time of the committing of the act the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong. The mode of putting the latter part of the question to the jury on these occasions has generally been, whether the accused at the time of doing the act knew the difference between right and wrong, which mode, though rarely, if ever, leading to any mistake with the jury, is not, as we conceive, so accurate when put generally and in the abstract, as when put with reference to the party’s knowledge of right and wrong in respect to the very act with which he is charged. If the question were to be put as to the knowledge of the accused solely and exclusively with reference to the law of the land, it might tend to confound the jury, by inducing them to believe that an actual knowledge of the law of the land was essential in order to lead to a conviction, whereas the law is administered upon the principle that everyone must be taken conclusively to know it, without proof that he does know it. If the accused was conscious that the act was one which he ought not to do, and if that act was at the same time contrary to the law of the land, he is punishable; and the usual course, therefore, has been to leave the question to the jury whether the party accused had a sufficient degree of reason to know that he was doing an act that was wrong, and this course we think is correct, accompanied with such observations and explanations as the circumstances of each particular case may require. The fourth question which your Lordships have proposed to us is this: If a person under an insane delusion as to existing facts commits an offence in consequence thereof, is he thereby excused?

[9.2520]

INSANITY

809

To this question the answer must, of course, depend on the nature of the delusion, but, making the same assumption as we did before, namely, that he labours under such partial delusion only, and is not in other respects insane, we think he must be considered in the same situation as to responsibility as if the facts with respect to which the delusion exists were real. For example, if under the influence of his delusion he supposes another man to be in the act of attempting to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from punishment. If his delusion was that the deceased had inflicted a serious injury to his character and fortune, and he killed him in revenge for such supposed injury, he would be liable to punishment. The question lastly proposed by your Lordships is: Can a medical man conversant with the disease of insanity, who never saw the prisoner previously to the trial, but who was present during the whole trial and the examination of all the witnesses, be asked his opinion as to the state of the prisoner’s mind at the time of the commission of the alleged crime, or his opinion whether the prisoner was conscious at the time of doing the act that he was acting contrary to law, or whether he was labouring under any and what delusion at the time? In answer thereto, we state to your Lordships, that we think the medical man, under the circumstances supposed, cannot in strictness be asked his opinion in the terms above stated, because each of those questions involves the determination of the truth of the facts deposed to, which it is for the jury to decide, and the questions are not mere questions upon a matter of science, in which case such evidence is admissible. But where the facts are admitted or not disputed, and the question becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though the same cannot be insisted on as a matter of right.

This has been elaborated on more recently in as follows Kosian v DPP [2013] VSCA 357: [21] The terms of s 20 [of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997] incorporate the common law test of insanity as it has developed in Australia. In R v Porter, Dixon J (as he then was) enunciated the two different states of mind which may provide a basis for the defence of mental impairment and which are now enshrined in s 20(1) of the Act: One state of mind is that in which [the accused] is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong. [22] As to the state of mind that that the accused did not know that his act was wrong, Dixon J said: It is supposed that he knew he was killing, knew how he was killing and knew why he was killing, but that he was quite incapable of appreciating the wrongness of the act ... The question is whether he was able to appreciate the wrongness of the particular act he was doing at the particular time. Could this man be said to know in this sense whether his act was wrong if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make that act right or wrong? If through the disordered condition of the mind he could not reason about the matter with a moderate degree of sense and composure it may be said that he could not know that what he was doing was wrong. [23] These propositions were repeated in R v Matusevich and Thompson: that for an accused not to know that their conduct was wrong, they must have been unable at the time of the offending to reason about the matter with a moderate degree of sense and composure — a formulation which now provides the basis for the concept of knowledge expressed in s 20(1)(b) of the Act. [24] In Stapleton v The Queen, the High Court (Dixon CJ, Webb and Kitto JJ) stated that in order for an accused to understand that their conduct was “wrong” for the purposes of establishing the defence of insanity, they had to have understood that it was wrong according to the ordinary principles of reasonable men, rather than being wrong as contrary to law. Was the accused unable because of his mental illness to think rationally of the reasons which to ordinary people make that act right or wrong? In R v White, Chernov JA, with whom Charles JA agreed, affirmed the remarks of the judge below that the expression “wrong” in s 20(1)(b) of the Act is “not directed to moral or legal concepts ... but to the accused’s awareness that reasonable persons would disapprove as wrong the actions he is performing”.

810

ROSS ON CRIME

[9.2525]

[9.2525] Admissions of an insane person Proof of the crime was based on the admissions of an insane person: R v Stiles (1990) 50 A Crim R 13 (Vic CCA). After acquittal on the ground of insanity the court said (at 22): Counsel for the applicant submitted that given that the evidence against the applicant was constituted by admissions and given his established insanity, either the admissions could not be relied upon as accurate or, if they could be so relied upon, gave rise to self defence. Thus, the argument ran, the verdict was not supported by evidence. We consider that that argument suffers from a fallacious circularity. The proper approach is not circular but linear. The jury in the first place must consider whether the offence is proved. If it is not, the accused should be acquitted, not found not guilty on the ground of insanity. An accused must not lose a chance of acquittal of the offence charged by reason of being insane. In considering whether the offence has been proved, the jury must in the first place act upon the presumption that the accused was of sound mind. The question of insanity only arises if the jury, assuming the accused was of sound mind, would find the offence proved beyond reasonable doubt: see Porter (1933) 55 CLR 182 at 185 per Dixon J (as then he was) and Perkins [1983] WAR 184 at 188 per Burt CJ (a decision upon the Criminal Code (WA) but stating relevant principle).

[9.2530] Duty of the Prosecution In Hawkins (AJ) v The Queen (1994) 179 CLR 500; 122 ALR 27; 72 A Crim R 288 the whole court said (at 513; 35–36; 296): The prosecution is entitled to invoke the presumption of sound mind but not to exclude any evidence which is relevant to rebut it.

The court said in a joint judgment (at 517; 38; 299): It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was “voluntary and intentional” within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent – relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code. The Courts below were in error in holding that the evidence of Dr Sale and Professor Jones was inadmissible on the issues of those intents.

[9.2535] Duty of defence The defence can raise or not raise insanity as an issue. If insanity is not raised, it cannot be a ground of appeal according to R v Dashwood [1943] KB 1; [1942] 2 All ER 586; (1992) 28 Cr App R 167. Followed: R v Jeffrey [1967] VR 467 at 473–474 (CCA); R v Masin [1970] VR 379 at 381–382 (CCA). Note that Dashwood is no longer good law in England. It was decided before the commencement of s 23 of the Criminal Appeal Act 1968 allowing evidence to be led on appeal.

[9.2540] Duty of trial judge A question of mental fitness In Kesavarajah v The Queen (1994) 181 CLR 230; 74 A Crim R 100; 123 ALR 463 at 244, 473, 109 the court said in a joint judgment:

[9.2555]

INSANITY

811

It is well established that when, before a trial begins, the question arises as to the mental fitness of the accused to stand his or her trial, it is the court’s duty to determine the accused’s fitness to be tried notwithstanding that neither the prosecution nor the defence seeks such an inquiry.

See also Fitness to plead at [6.1100].

Does the issue arise In Hawkins v The Queen (1994) 179 CLR 500; 72 A Crim R 288; 122 ALR 27 the court said in a joint judgment (at 517; 38; 299): It follows that, if there be evidence that the accused was suffering from a mental disease when the incriminated act was done and the evidence is capable of supporting a finding of insanity, the trial judge must give the jury a direction on that issue. Evidence of mental disease that is incapable of supporting a finding of insanity or that does not satisfy the jury that the accused was insane when the incriminated act was done, is inadmissible on, and must be taken to be irrelevant to, the issue whether the act was “voluntary and intentional” within the meaning of those terms in s 13 of the Code. But such evidence of mental disease is relevant to and admissible on the issue of the formation of a specific intent – relevantly, the intents prescribed by pars (a) and (b) of s 157(1) of the Code. The Courts below were in error in holding that the evidence of Dr Sale and Professor Jones was inadmissible on the issues of those intents.

In Heffernan v The Queen (2005) 194 FLR 370 (NT CCA) there was a question of whether the trial judge should have directed the jury on insanity and diminished responsibility. Martin (BR) CJ, delivering the leading judgment, said (at 402 [142]): The principles are not in doubt. If there was evidence from which a reasonable jury properly directed could conclude that either of those defences had been made out, regardless of the attitude of the appellant the judge would have been under a duty to leave those defences to the jury: Pemble v The Queen (1971) 124 CLR 107 at 117–118 per Barwick CJ with whom Windeyer J agreed; at 132–133 per Menzies J; Van Den Hoek v The Queen (1986) 161 CLR 158 at 161–162 per Gibbs CJ, Wilson, Brennan and Deane JJ; Fittock v The Queen (2001) 11 NTLR 52 at [33] per Angel, Mildren and Riley JJ.

[9.2545] Aiding and abetting An insane person cannot aid and abet: R v Aarons [1985] VR 974 (charge of Brooking J).

[9.2550] Committal A magistrate at committal who hears evidence of insanity and lack of intent will ordinarily treat these as jury matters. The cases where the magistrate would not commit for that reason would few and far between although possible in theory: Keighran v Lowndes (1997) 138 FLR 448 (NT CA) (affirming the decision of Thomas J in Keighran v Lowndes (1996) 5 NTLR 140; 134 FLR 420).

[9.2555] Judge’s direction to jury At one time, the High Court had some original jurisdiction in the ACT. Thus it was that Dixon J, the trial judge in R v Porter (1933) 55 CLR 182, in his charge to the jury said (at 188): The next thing which I wish to emphasize is that his state of mind must have been one of disease, disorder or disturbance. Mere excitability of a normal man, passion, even stupidity, obtuseness, lack of self-control, and impulsiveness, are quite different things from what I have attempted to describe as a state of disease or disorder or mental disturbance arising from some infirmity, temporary or of long standing. If that existed it must then have been of such a character as to prevent him from knowing the physical nature of the act he was doing or of knowing that what he

812

ROSS ON CRIME

[9.2560]

was doing was wrong. You will see that I have mentioned two quite different things. One state of mind is that in which he is prevented by mental disorder from knowing the physical nature of the act he is doing; the other is that he was prevented from knowing that what he was doing was wrong.

The whole charge was approved by the Full High Court in Stapleton v The Queen (1952) 86 CLR 358 at 367 and Wingoss v The Queen (1960) 105 CLR 295 at 300. If insanity be found the appropriate verdict is “not guilty on the ground of insanity”. In New South Wales under s 37 of the Mental Health (Criminal Procedure) Act 1990 the judge must explain the findings open and their legal and practical consequences. The purpose is to contrast punishment if found guilty and the treatment if there is a special verdict: R v Hilder (1997) 97 A Crim R 70 (NSW CCA). For a discussion of the directions that a judge should tell a jury regarding the meaning of insanity, see Skelton v The Queen [2015] NSWCCA 320 (16 December 2015).

[9.2560] Sentence Insanity even though not raised as an issue at trial is relevant to sentence, for the principle of general deterrence does not apply: R v Anderson [1981] VR 155; (1980) 2 A Crim R 379 (CCA). See also Ward v The Queen (2000) 23 WAR 254; 118 A Crim R 78 (CCA).

[9.2565] Literature John Dryden (1631–1700) wrote in Absalom and Achitophel (1681) part 1,1,150: Great wits are sure to madness near allied, And thin partitions do their bounds divide.

INTENT Legislation ................................................................................................................................... No presumption of intention ...................................................................................................... Inferring intent is a matter of fact, not of law .......................................................................... Honest belief means no intent .................................................................................................... Specific intent is personal to an accused ................................................................................... No direction on what intent means ............................................................................................

[9.2700] Legislation Some statutes refer to intention to perform a criminal act: Cth: Criminal Code Act 1995 ss 4.1, 5.2; Qld: Criminal Code s 23; WA: Criminal Code s 23; Tas: Criminal Code s 13; NT: Criminal Code s 43AI; ACT: Criminal Code 2002 ss 14 and 18.

[9.2705] No presumption of intention In Smyth v The Queen (1957) 98 CLR 163 the court said (at 166):

[9.2700] [9.2705] [9.2710] [9.2715] [9.2720] [9.2725]

[9.2705]

INTENT

813

In this Court disapproval has been expressed on more than one occasion of the use, where a specific intent must be found, of the supposed presumption, conclusive or otherwise, that a man intends the natural, or natural and probable, consequences of his acts: see Stapleton v The Queen (1952) 86 CLR 358, at 365; Baily v Baily (1952) 86 CLR 424, at 427; Deery v Deery (1954) 90 CLR 211, at 219–223; Gow v White (1908) 5 CLR at 876, per O’Connor J.

In Thomas v The Queen (1960) 102 CLR 584 Kitto J said (at 596–597): This Court has disapproved on several occasions of the course of charging a jury in terms of a presumption of intention, pointing out that it conceals the true position.

In R v Stokes and Difford (1990) 51 A Crim R 25 (NSW CCA) Hunt J said (at 30): The danger of the presumption that every person intends the natural consequences of his acts is that it produces an illegitimate transfer of the burden of proof upon the issue of intention from the Crown to an accused denying the allegation: Stapleton (1952) 86 CLR 358 at 365. The High Court has on several occasions disapproved of any reference to such a presumption. The cases are collected in Smyth (1957) 98 CLR 163 at 166–167; see also Parker (1963) 111 CLR 610 at 632. That prohibition does not mean, however, that the jury cannot be invited to draw an inference or a conclusion from the accused’s own acts that they were done with the intention which the Crown has to establish: Thomas (1960) 102 CLR 584 at 596–597; Kalajzich (1989) 39 A Crim R 415 at 459. The Crown bears the onus of persuading the jury to draw such an inference; all that the High Court has said is that it should never be suggested to the jury that the law supplies a presumption on the point which satisfies that onus and which the accused is therefore required to rebut.

A judge is not to direct that a person intends the natural or probable consequences of his or her acts. In R v Schonewille [1998] 2 VR 625 (CA) Winneke ACJ said (at 633): Courts in this country have consistently said that, in cases where specific intent is an ingredient of the crime alleged, it is wrong for trial judges to tell juries that there is a presumption that a person intends the natural consequences of his or her acts: Smyth v R (1957) 98 CLR 163 at 166; Stapelton v R (1952) 86 CLR 358 at 365; Vallance v R (1961) 108 CLR 56 at 82–3 per Windeyer J; Parker v R (1963) 111 CLR 610 at 632–3 per Dixon CJ, 648–9 per Windeyer J; Snow v R [1962] Tas SR 271 at 286–8; R v Hubert (1993) 67 A Crim R 181 at 198–9. The reason usually assigned for disapproving such a direction is that it tends to conceal the true nature of the jury’s function: Smyth at 167; Thomas v R (1960) 102 CLR 584 per Kitto J at 597. In Parker’s case, where the relevant direction was that “the law normally…treats the person who has made the attack as having intended the natural and probable consequences of the use by him … of the weapon …”, Windeyer J said at 648: Any reference to the natural and probable consequences of acts is apt today to let loose a flood of debate about so-called “objective” and “subjective” tests, a debate that can readily become far removed from the realities of the case in hand. I have stated my own understanding of the basic principles as this Court has stated them and as I accept them, and I need not repeat what I said in Vallance v The Queen (1961) 108 CLR 56. In every case where intent is in question the question is what did the accused – the man before the court – intend.

Gollins v Gollins [1964] AC 644; [1963] 3 WLR 176; [1963] 2 All ER 966 (HL) turned on whether cruelty had been established in a divorce case. Lord Reid said (at 664; 186; 972): Sometimes it is said that a person must be presumed to have intended the natural and probable result of what he did. That, if taken literally, must mean that it would be irrelevant to prove that in fact he did not intend that result: it would introduce a purely objective standard not depending at all on the state of his mind. In fact people often intend something quite different from what they know to be the natural and probable result of what they are doing. To take a trivial example, if I say that I intend to reach the green, people will believe me although we all know that the odds are ten to one against my succeeding; and no one but a lawyer would say that I must be presumed to have intended to put my ball in the bunker, because that was the natural and probable result of my shot.

In R v AJS (2005) 12 VR 563; 159 A Crim R 327 (CA) the court said in a joint judgment (at 569; 334 [25]):

814

ROSS ON CRIME

[9.2710]

The element of intent may not often be in controversy in crimes involving sexual penetration but, when intent is in issue, it is of paramount importance that the jury be directed as to the obligation of the prosecution to establish intent beyond reasonable doubt.

(This part of the judgment is not affected by the successful appeal: AJS v The Queen (2007) 81 ALJR 1208; 235 ALR 633; 171 A Crim R 436). Other cases R v Callaghan (2007) 172 A Crim R 278 (Vic CA); R v Reid (2006) 162 A Crim R 377 (Qld CA); R v Weiderman (1996) 90 A Crim R 250 at 255–256 (Tas, Slicer J);

[9.2710] Inferring intent is a matter of fact, not of law In Kural v The Queen (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 Mason CJ, Deane and Dawson JJ said in talking of the mens rea of drug importation (at 505; 659; 13): What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.

The same judges repeated the same words on the same day in Saad v The Queen (1987) 61 ALJR 243; 29 A Crim R 20; 90 ALR 667 at 244, 669, 21. That was also a drug case.

[9.2715] Honest belief means no intent In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Dawson J said (at 592; 499; 253): Thus at common law, because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds. Either the accused has a guilty mind or he does not, and if an honest belief, whether reasonable or not, points to the absence of the required intent, then the prosecution fails to prove its case: see Reg v Morgan [1976] AC 182.

[9.2720] Specific intent is personal to an accused Where an offence is one of specific intent, matters personal to an accused are relevant and admissible which bear on the operation of the mind of the accused. Mostly such evidence is psychiatric as was sought to be led in Schultz and was led in Hawkins (AJ). In Schultz v The Queen [1982] WAR 171; (1981) 5 A Crim R 234 (CCA) the accused was convicted of wilful murder. He had been born with a deformed left arm and had an IQ between 69 and 78. He was alcoholic at 15. He had a speech defect. The trial judge had not allowed defence evidence from a psychiatrist and psychologist. The court set aside the conviction. Burt CJ said (at 174; 237): [I]n my opinion the evidence was relevant and, when led by the appellant, admissible. Once it be acknowledged that there is no legal presumption that a man intends the probable consequences of his acts and that in every case the finding to be made is specifically and exclusively as to the intention of a particular person at a particular moment of time, then, as it seems to me, all facts personal to the person concerned which have bearing or which in the judgment of reasonable men may have a bearing upon the operation of his mind are relevant to that finding.

[9.2900]

INTERLOCUTORY APPEAL

815

Approved: Hawkins (AJ) v The Queen (1994) 179 CLR 500; 122 ALR 27; 72 A Crim R 288 in a joint judgment (at 513–514; 38; 296). See also Mens rea at [13.2300]; Mistake at [13.2900]; Strict liability at [19.6100]; and Transferred malice at [20.1900].

[9.2725] No direction on what intent means Generally a judge should not direct a jury on the meaning of intent. In R v Moloney [1985] AC 905; [1985] 1 All ER 1025; 81 Cr App R 93 (HL) Lord Bridge, with whom the other Law Lords agreed, said (at 926; 1036–1037; 106): The golden rule should be that, when directing a jury on the mental element necessary in a crime of specific intent, the judge should avoid any elaboration or paraphrase of what is meant by intent, and leave it to the jury’s good sense to decide whether the accused acted with the necessary intent, unless the judge is convinced that, on the facts and having regard to the way the case has been presented to the jury in evidence and argument, some further explanation or elaboration is strictly necessary to avoid misunderstanding.

In Cutter v The Queen (1997) 71 ALJR 638; 143 ALR 498; 94 A Crim R 152 Kirby J, with whom McHugh J agreed, dissented on the result of the appeal. But there is nothing in the majority judgments to doubt what Kirby J said (at 648; 511; 165–166): Attempts have been made to define the meaning of “intent” or its derivatives ... However, the better view is that the word, being one of ordinary acceptation, should not be defined but should be left to the trier of fact without elaboration as to its meaning (R v Moloney [1985] AC 905 at 926). The only exception is a case where some element in the evidence suggests the need for elucidation, so as to draw the distinction between intention, on the one hand, and the accused’s motives, desires, wishes, hopes, reasons or expectations, on the other. Clearly enough, where there is no direct evidence to which the trier of fact can safely resort, so as to draw an inference as to the “subjective” intention of the accused, the principal focus of attention will ordinarily be the facts surrounding the alleged offence.

Followed: R v Reid [2007] 1 Qd R 64 (CA) at 85 per Keane JA with whom Chesterman J agreed. McPherson JA dissented. See also Circumstantial evidence at [3.2000]; Mens rea at [13.2300]; Mistake at [13.2900]; Strict liability at [19.6100]; and Transferred malice at [20.1900].

INTERLOCUTORY APPEAL Meaning and origin ..................................................................................................................... Legislation ................................................................................................................................... Interlocutory judgment or order ................................................................................................. Prosecution case substantially weakened ................................................................................... No legislation means no interlocutory appeal ........................................................................... Other references ..........................................................................................................................

[9.2900] [9.2905] [9.2910] [9.2915] [9.2920] [9.2925]

[9.2900] Meaning and origin An interlocutory appeal is an appeal to the Court of (Criminal) Appeal from a decision of a trial judge. It derives from legislation, of course. There is no appeal without legislation. The legislation allows an appeal from a ruling that would “substantially weaken” the prosecution

816

ROSS ON CRIME

[9.2905]

case. That is the main subject. New South Wales also allows an interlocutory appeal from a magistrate’s summary proceeding to a single Supreme Court judge.

[9.2905] Legislation The legislation allowing an interlocutory appeal follows: NSW: Criminal Appeal Act 1912 s 5F (with subsections) (to CCA); Local Court Act 2007 ss 40(2)(a) and 41 (interlocutory appeal from magistrate to single Supreme Court judge) (previously Justices Act 1902 s 104(2)); Vic: Criminal Procedure Act 2009 ss 295–301; SA: District Court Act 1991 s 43(2)(b); Magistrates Court Act 1991 s 42(1a).

[9.2910] Interlocutory judgment or order What is an interlocutory judgment or order? The cases are collected in the appeal from the magistrate in Anson v DPP (2002) 129 A Crim R 328 (NSW, O’Keefe J). His Honour referred to the cases under Criminal Appeal Act 1912 s 5F (at 331–335 [17] – [38]). His Honour then said (at 335 [39]): From the foregoing it can be seen that the characterisation of what was done in the course of the proceedings does not depend upon the use of the word “judgment” or the word “order”. What has to be looked at is the character and effect of the decision.

[9.2915] Prosecution case substantially weakened In R v Shamouil (2006) 66 NSWLR 228 (CCA) witnesses identified the accused on a photoboard. The witnesses then retracted their identifications. The trial judge ruled out the evidence of the photoboard as being too prejudicial to the accused. The prosecution appealed. Spigelman CJ, with whom the other judges agreed, said (at [29] – [30]): In accordance with the authorities, this Court must assess the Crown case in order to determine whether or not the excluded evidence substantially weakens it (authorities given). The Crown bears the onus of establishing that the exclusion of the evidence substantially weakens its case.

Appeal allowed. The court agreed that any prejudice to the accused could be dealt with in the judge’s directions to the jury.

[9.2920] No legislation means no interlocutory appeal Any appeal must be permitted by legislation. The legislation in South Australia allowing interlocutory appeals does not allow a defendant’s appeal on admissibility of evidence. Hence such an appeal is incompetent: McIlvar v Szwarcbord (2008) 186 A Crim R 106 (SA White J).

[9.2925] Other references See also Appeal at [1.5200].

INTERNATIONAL International treaties .................................................................................................................... [9.3100] International crimes .................................................................................................................... [9.3105] Use of treaties not in Australian law ......................................................................................... [9.3110]

[9.3105]

INTERNATIONAL

817

[9.3100] International treaties In Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385 Mason CJ and McHugh J considered the International Covenant on Civil and Political Rights to which Australia is a party. They said (at 305; 391; 183): [T]he rights and obligations … are not incorporated into Australian law unless and until specific legislation is passed implementing the provisions.

In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353 Mason CJ and Deane J said (at 286–287; 361–362): It is well established that the provisions of an international treaty to which Australia is a party do not form part of Australian law unless those provisions have been validly incorporated into our municipal law by statute. This principle has its foundation in the proposition that in our constitutional system the making and ratification of treaties fall within the province of the executive in the exercise of its prerogative power whereas the making and the alteration of the law fall within the province of Parliament, not the executive. So, a treaty which has not been incorporated into our municipal law cannot operate as a direct source of individual rights and obligations under that law.

See also Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 (FCA). International treaties were held to be incorporated into Australian law in: Commonwealth v Tasmania (the Tasmanian Dam case) (1983) 158 CLR 1; 57 ALJR 450; 46 ALR 625; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; 87 ALR 412; G Cranwell, “Treaties and Australian Law – Administrative Discretions, Statutes and the Common Law” [2001] QUTLJ 5.

[9.3105] International crimes Generally The Criminal Code Act 1995 (Cth) creates offences too numerous to list.

Sexual offences against children Australian citizens or residents can be charged with offences over sexual conduct overseas with a child under 16: Crimes Act 1914(Cth) s 50AA – 50FD. New Zealanders can be charged under Crimes Act 1961 s 144A.

People Smuggling People-smuggling offences are set out in ss 233A to 233C of the Migration Act 1958 (Cth). These offences apply to operations bringing people to Australia. Section 73 of the Criminal Code 1995 (Cth) contains parallel offences for smuggling operations bringing taking to other countries. The core people-smuggling offence is set out in s 233A of the Migration Act 1958 (Cth), which states that: (1) A person (the first person ) commits an offence if: (a) the first person organises or facilitates the bringing or coming to Australia, or the entry or proposed entry into Australia, of another person (the second person ); and

818

ROSS ON CRIME

[9.3110]

(b) the second person is a non-citizen; and (c) the second person had, or has, no lawful right to come to Australia. Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

Section 233A(2) stipulates that the offence is one of absolute liability pursuant to s 6.2 of the Criminal Code Act 1995. It is notable that there is no requirement for the offence to be committed for financial gain. Section 233B establishes an aggravated form of the offence if an offender intends that the person being smuggled will be exploited after entry into Australia, or subjects the person to cruel, inhumane or degrading treatment, or behaves in a manner that gives rise to the danger of death or serious harm to the victim and is reckless towards this danger. It is expressly stated that a person can be guilty of this offence even if he or she has not been convicted of the people smuggling. The maximum penalty for this is imprisonment for 20 years (or 2,000 penalty units, or both). This offence is rarely charged. A further aggravated form of the offence, and the offence which is most commonly charged, is set out in s 233C of the Migration Act 1958. This applies where a person organises or facilitates the entry of a group of at least five other persons into Australia. The maximum penalty for this offence is also imprisonment for 20 years (or 2,000 penalty units, or both). Mandatory minimum penalties are prescribed for people convicted of the aggravated forms of people smuggling in ss 233B and 233C where the offender is 18 years or more. There is an eight-year minimum penalty where an offender commits an offence under s 233B or a repeat offence under s 233B or 233C (or 234A). The minimum non-parole period is five years. For other offences within s 233C there is a minimum five-year term of imprisonment with a non-parole period of three years. This is the mandatory penalty provision that is most commonly applied and is generally applied to first offenders who smuggle in five or more people. In Magaming v The Queen [2013] HCA 40 the High Court that these mandatory penalties were constitutionally valid and did not violate the separation of powers doctrine. See also, Bin Sulaeman v The Queen [2013] NSWCCA 283 for a discussion of the elements of the offence pursuant to s 233C.

Sentence R v Feng Lin (2001) 119 A Crim R 194 (NSW CCA); Curtis v Sidik (1999) 9 NTLR 115; Sidik v Najar (1999) 119 A Crim R 1 (Mildren J); Kadem v The Queen (2002) 129 A Crim R 304 (WA CCA); R v Disun (2003) 27 WAR 146 (CCA).

[9.3110] Use of treaties not in Australian law In R v Togias (2001) 127 A Crim R 23 (NSW CCA) Spigelman CJ said (at 28 [33]): International treaties and conventions to which Australia is a party, but which have not been incorporated in Australian law, have been invoked in Australian legal reasoning. Such international obligations: • Are an appropriate influence on the development of the common law: Mabo v Queensland (No 2) (1992) 175 CLR 1 at 42 per Brennan J; Dietrich (1992) 177 CLR 292 at 360; 64 A Crim R 176 at 225-226 per Toohey J; (at 372–373) per Gaudron J; Minister for Immigration and Ethnic Affairs v Teoh per Mason CJ and Deane J.

[9.3300]

INTERPRETATION

819

• May be used to resolve an ambiguity in a statute: Polites v Commonwealth (1945) 70 CLR 60 at 68–69 per Latham CJ; (at 77) per Dixon J; (at 80–81) per Williams J; Teoh (at 287) per Mason CJ and Deane J; Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1 at 38 per Brennan, Deane and Dawson JJ; Kartinyeri v Commonwealth (1998) 195 CLR 337 at 384 [97] per Gummow and Hayne JJ. • May create a legitimate expectation about executive decision-making: Teoh (especially at 291) per Mason CJ and Deane J.

Other cases Kruger v Commonwealth (1997) 190 CLR 1 at 70–71 per Dawson J; Kidd v Department of Corrective Services [2001] 2 Qd R 393; (2000) 117 A Crim R 201 (White J) at 399; 207 [22].

INTERPRETATION Court must interpret a relevant enactment ................................................................................. Generally ..................................................................................................................................... Statute replacing the common law ............................................................................................. Right, title or interest .................................................................................................................. Retrospectivity ............................................................................................................................ Transitional provisions ................................................................................................................ Penal statute ................................................................................................................................ Ambiguity .................................................................................................................................... Strict construction ....................................................................................................................... Statutes not to be construed to exclude rights ........................................................................... Purposive construction ................................................................................................................ The mischief rule and the context rule ...................................................................................... Similar words in different statutes ............................................................................................. Second reading speech of Minister and extrinsic materials ...................................................... Weight given to Minister’s second reading speech ................................................................... Interpretation of Commonwealth statute by State courts .......................................................... Imputing mens rea ...................................................................................................................... Avoiding the irrational and unjust .............................................................................................. Avoiding results that are absurd ................................................................................................. Presumption that common law right is not abrogated .............................................................. Positive statements can give rise to negative implications ....................................................... Ejusdem generis .......................................................................................................................... Blue pencil .................................................................................................................................. Dictionaries ................................................................................................................................. Using common sense .................................................................................................................. Implied repeal by later statute .................................................................................................... Not to force facts into an Act: Procrustes .................................................................................

[9.3300] [9.3305] [9.3310] [9.3315] [9.3320] [9.3325] [9.3330] [9.3335] [9.3340] [9.3345] [9.3350] [9.3355] [9.3360] [9.3365] [9.3370] [9.3375] [9.3380] [9.3385] [9.3390] [9.3395] [9.3400] [9.3405] [9.3410] [9.3415] [9.3420] [9.3425] [9.3430]

[9.3300] Court must interpret a relevant enactment In Brutus v Cozens [1972] AC 854; [1972] 3 WLR 521; [1972] 2 All ER 1297; (1972) 56 Cr App R 799 (HL) Lord Reid said (at 861; 1299; 804): The proper construction of a statute is a question of law.

In Electoral Commission v Tate [1999] 3 NZLR 174 (CA, Full Bench) the court said at 182 [33]: [I]t is fundamental that the Courts are never entitled on the principle of non liquet (it is not clear) to decline to determine the legal meaning of a relevant enactment

820

ROSS ON CRIME

[9.3305]

[9.3305] Generally In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 Dixon CJ said (at 397): [T]he context, the general purpose of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.

In Cabell v Markham 148 F 2d 737 (2nd Circ, 1945) Learned Hand J said (at 739): Of course it is true that the words used, even in their literal sense, are the primary, and most ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

McHugh J quoted both of the above in Kelly v The Queen (2004) 218 CLR 216; 205 ALR 274 at 251–252; 300–301 [97] – [98].

[9.3310] Statute replacing the common law In Conway v The Queen (2002) 209 CLR 203; 186 ALR 328 Gaudron A-CJ, McHugh, Hayne and Callinan JJ said in a joint judgment (at 207; 330 [5]): Resort to legal history to explain a statutory enactment evinces no distaste for construing the statutory language. When a statute enters a field that has been governed by the common law, the pre-existing common law almost invariably gives guidance as to the statute’s meaning and purpose. That is because the meaning of legislation usually depends on a background of concepts, principles, practices and circumstances that the drafters “took for granted or understood, without conscious advertence, by reason of their common language or culture”: Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 196.

[9.3315] Right, title or interest Interpretation Acts provide that repeal, amendment or lapse “shall not … affect any right title interest etc” unless the contrary appears: Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321.

[9.3320] Retrospectivity Substantive law A statute which creates an offence applies as at the date of an offence. A later amendment will not operate: Nguyen v The Queen (2003) 175 FLR 321 (NT CCA); R v ALH (2003) 6 VR 276 at 299–300 [94] – [95] (CA); R v Perriman (2000) 114 A Crim R 486 (Tas, Slicer J).

Legislation Qld: Criminal Code s 11; WA: Criminal Code s 11; NT: Criminal Code s 14; Vic: Charter of Human Rights and Responsibilities Act 2006 s 27; ACT: Human Rights Act 2004 s 25;

[9.3320]

INTERPRETATION

821

NZ: Interpretation Act 1999 s 7; New Zealand Bill of Rights Act 1990 s 26(1). In R v Kidman (1915) 20 CLR 425, it was noted that parliament has the power to pass legislation retrospective in operation so as to create a crime. The cattle king was charged with conspiracy to defraud the Commonwealth by an amendment to the Commonwealth Crimes Act 1914. Kidman’s motion to quash the indictment was refused. However, there is a presumption against retrospectivity. In DPP (Cth) v Keating (2013) 87 ALJR 657; [2013] HCA 20, the Court stated at [47]-48]: A clear statement of legislative intention is required before the courts will find that liability for a serious Commonwealth offence is imposed by means of a statutory fiction [ie that an obligation is imposed retrospectively] [33]. The ascertainment of such an intention proceeds by the application of well-understood principles [34] … It is not to the point to observe that ignorance of the law affords no excuse or that the prosecution is not required to prove an intention to breach a legal duty. The submission ignores that the failure to do a thing is not an offence in the absence of a legal duty to do the thing[35]. As explained in Poniatowska, s 4.3 of the [Commonwealth Criminal] Code is a reflection of an idea that is fundamental to criminal responsibility: that the criminal law should be certain and its reach ascertainable by those who are subject to it [36]. This idea underpins the strength of the presumption against retrospectivity in the interpretation of statutes that impose criminal liability. Mr Bennion explains the principle in this way [37]: A person cannot rely on ignorance of the law and is required to obey the law. It follows that he or she should be able to trust the law and that it should be predictable. A law that is altered retrospectively cannot be predicted. If the alteration is substantive it is therefore likely to be unjust. It is presumed that Parliament does not intend to act unjustly.

One statute can revive criminal sanctions under another: R v Frawley (2005) 190 FLR 158; 152 A Crim R 336 (NSW CCA). There may be a difference between substantive law and rules which govern only procedure.

Procedural rules may be retrospective Rodway v The Queen (1990) 169 CLR 515; 92 ALR 385; 47 A Crim R 426 concerned a Tasmanian amendment to the corroboration rules in sexual offences. The court said (at 518–519; 387; 427–428): The rule at common law is that a statute ought not be given a retrospective operation where to do so would affect an existing right or obligation unless the language of the statute expressly or by necessary implication requires such construction. It is said that statutes dealing with procedure are an exception to the rule and that they should be given a retrospective operation. It would, we think, be more accurate to say that there is no presumption against retrospectivity in the case of statutes which affect mere matters of procedure. Indeed, strictly speaking, where procedure alone is involved, a statute will invariably operate prospectively and there is no room for the application of such a presumption. It will operate prospectively because it will prescribe the manner in which something may or must be done in the future, even if what is to be done relates to, or is based upon, past events. A statute which prescribes the manner in which the trial of a past offence is to be conducted is one instance. But the difference between substantive law and procedure is often difficult to draw and statutes which are commonly classified as procedural – statutes of limitation, for example – may operate in such a way as to affect existing rights or obligations. When they operate in that way they are not merely procedural and they fall within the presumption against retrospective operation. But when they deal only with procedure they are apt to be regarded as an exception to the rule and, if their application is related to or based upon past events, they are said to be given a retrospective operation provided that they do not affect existing rights or obligations.

Further (at 521; 389): But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime

822

ROSS ON CRIME

[9.3325]

does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial.

Applied: Attorney-General’s Reference (No 1 of 2004) (2005) 13 Tas R 395; 152 A Crim R 146 (CCA). Beneficial legislation enhancing rights may be retrospective: SA Police v Gun (2002) 133 A Crim R 300 (SA, Gray J).

Other cases R v Corkin (1989) 50 SASR 580; 40 A Crim R 162 (CCA); Kenny v Maher (1993) 70 A Crim R 333 (Tas, Cox J); Chan Chi-Hung v The Queen [1996] 1 AC 442; [1996] 1 All ER 914 (PC); Green v Davies (1997) 95 A Crim R 238 (Tas, Zeeman J); Question of Law Reserved (2000) 77 SASR 344; 113 A Crim R 272 (CCA).

Construction of Criminal Code Brennan v The Queen (1976) 135 CLR 569; 12 ALR 333; Stuart v The Queen (1974) 134 CLR 426; 4 ALR 545 at 442, 555; R v Perriman (2000) 114 A Crim R 486 (Tas, Slicer J).

[9.3325] Transitional provisions Generally R v Frawley (2005) 190 FLR 158; 152 A Crim R 336 (NSW CCA).

On sentence Worthington v Western Australia (2005) 152 A Crim R 585 (WA CA); R v Crabbe (2004) 145 NTR 50; 188 FLR 209; 150 A Crim R 523 (Martin (BR) CJ); R v Carrion (2000) 49 NSWLR 149; 113 A Crim R 39 (CCA).

[9.3330] Penal statute In R v Adams (1935) 53 CLR 563 Rich, Dixon, Evatt and McTiernan JJ said (at 567–568): No doubt, in determining whether an offence has been created or enlarged, the Court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by a consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.

In Beckwith v The Queen (1976) 135 CLR 569; 12 ALR 333 Gibbs J said (at 576; 339): The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R v Adams (1935) 53 CLR 563 at 567–8; Craies on Statute Law 7th ed, pp 529–34. The rule is perhaps one of last resort.

[9.3340]

INTERPRETATION

823

In Tasmania v Green (2007) 16 Tas R 318; 175 A Crim R 511 (Underwood CJ) (at 327; 519–520 [31]) his Honour quoted Gibbs J in Beckwith (above) and held that the penal statute principle of interpretation had little or no application to the Tasmanian Criminal Code. See also, Leo v The Queen [2014] NTCCA 8 and Milne v The Queen (2014) 88 ALJR 395; [2014] HCA 4, which favour a reversion to the principle that criminal statutes should be interpreted strictly.

[9.3335] Ambiguity In R v Mailes (2001) 53 NSWLR 251; 126 A Crim R 20 (CCA) Wood CJ at CL with whom the others agreed said that the following can be used to resolve ambiguity: [104] – [105] the long title; [106] the purposive approach, including; [107] the historical setting to identify the object; [108] a scheme of legislation.

(His Honour provided plentiful authority for each proposition.) Where there is ambiguity, a construction is used which favours liberty: Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134; 33 ALR 25; John Fairfax v Doe (1995) 37 NSWLR 81; 130 ALR 488; 80 A Crim R 414 (CA); DPP v Serratore (1995) 38 NSWLR 137; 81 A Crim R 363; 132 ALR 461 (NSW CA); R v Kurunggaiyi (2005) 15 NTLR 70 (CCA) per Mildren J at 78 [20]; Western Australia v JJS (a child) (2004) 145 A Crim R 403 at 423 [114] (WACA). Where the legislation is ambiguous, a penal statute should be resolved in favour of the subject: Murphy v Farmer (1988) 165 CLR 19; 79 ALR 1; Battaglini v Interfren Pty Ltd (1989) 16 NSWLR 378; Coleman v Gray (1994) 55 FCR 412; 133 ALR 328; 79 A Crim R 1 (FCA).

[9.3340] Strict construction In Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134; 33 ALR 25 a prisoner was claimed after breach of parole. The prisons purported to construe the regulations to deprive him of his remissions before release. The court could not find that the regulations clearly enabled that course (at 139; 29): It will not be found by implication which results from the interpretation of an obscure or ambiguous provision. The expectation to which we refer is reinforced by the established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of the subject: Maxwell on Interpretation of Statutes, 12th ed, p 239: Marcotte v Deputy Attorney-General of Canada (1974) 51 DLR (3d) 259 at 264: Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR l05 at 116: Watson v Marshall Cade (1971) 124 CLR 621 at 629, 649.

In DPP v Serratore (1995) 38 NSWLR 137; 81 A Crim R 363; 132 ALR 461 (CA) Kirby P said (at 142; 466; 369): Traditionally, in our law, liberty has been regarded as a most precious civic right. Legislation which has the effect of derogating from the right of an individual to enjoy liberty is conventionally

824

ROSS ON CRIME

[9.3345]

accorded (in the case of ambiguity) a strict construction which favours liberty: Piper v Corrective Services Commission of New South Wales (1986) 6 NSWLR 352 (CA) at 358.

[9.3345] Statutes not to be construed to exclude rights In Commissioner of Police v Tanos (1958) 98 CLR 383 Dixon CJ and Webb J said (at 396) that an intention on the part of the legislature to exclude the rules of natural justice was not to be assumed nor spelled out from “indirect references, uncertain inferences or equivocal considerations”. Nor is such an intention to be inferred from the presence in the statute of rights which are commensurate with some of the rules of natural justice: Baba v Parole Board of New South Wales (1986) 5 NSWLR 338 at 344–345; 347; 349. Followed: Annetts v McCann (1990) CLR 596; 97 ALR 177 at 598, 178. In R v Secretary for the Home Department; Ex parte Simms [2000] 2 AC 115; [1999] 3 All ER 400 (HL) Lord Hoffmann said (at 131; 412): Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights… The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.

In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 (HC) McHugh J said (at 562–563; 573 [43]): Courts do not construe legislation as abolishing, suspending or adversely affecting rights, freedoms and immunities that the courts have recognised as fundamental unless the legislation does so in unambiguous terms. In construing legislation, the courts begin with the presumption that the legislature does not interfere with these fundamental rights, freedoms and immunities unless it makes its intention to do so unmistakably clear. The courts will hold that the presumption has not been overcome unless the relevant legislation expressly abolishes, suspends or adversely affects the right, freedom or immunity or does so by necessary implication. They will hold that the legislature has done so by necessary implication whenever the legislative provision would be rendered inoperative or its object largely frustrated in its practical application, if the right, freedom or immunity were to prevail over the legislation. A power conferred in general terms, however, is unlikely to contain the necessary implication because “general words will almost always be able to be given some operation, even if that operation is limited in scope”: Coco v R (1994) 179 CLR 427 at 438.

In Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 Gleeson CJ said (at 577; 130 [19]): Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new.

[9.3350] Purposive construction A construction of an Act is to be favoured which promotes the object of the Act.

Legislation Cth: Acts Interpretation Act 1901 s 15AA; Qld: Acts Interpretation Act 1954 s 14A;

[9.3360]

INTERPRETATION

825

WA: Interpretation Act 1984 s 18; Tas: Acts Interpretation Act 1931 s 8A; NT: Interpretation Act s 62A; NSW: Interpretation Act 1987 s 33; Vic: Interpretation of Legislation Act 1984 s 35(a); SA: Acts Interpretation Act 1915 s 22; ACT: Legislation Act 2001 s 139; NZ: Interpretation Act 1999 s 5(1). In Kelly v The Queen (2004) 218 CLR 216; 205 ALR 274 McHugh J said (at 251–252; 300–301 [98]): Purposive construction is the modern approach to statutory construction. Legislative enactments should be construed so as to give effect to their purpose even if on occasions this may require a “strained construction” to be placed on the legislation. The literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature. As Learned Hand J famously pointed out (Cabell v Markham 148 F 2d 737 (2nd Circ, 1945) at 739): Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.

[9.3355] The “mischief rule” and the “context rule” In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; 141 ALR 618, Brennan CJ, Dawson, Toohey and Gummow JJ said (at 408; 634): It is well settled that at common law, apart from any reliance upon s 15AB of the Acts Interpretation Act 1901 (Cth), the court may have regard to reports of law reform bodies to ascertain the mischief which a statute is intended to cure. Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses “context” in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.

In R v A (No 2) [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1 (HL) the House of Lords allowed counsel for the Secretary of State to refer to Parliamentary debates in order to identify the mischief which led to the enactment of the statute in question. (See the judgment of Lord Steyn at [25]).

[9.3360] Similar words in different statutes There should not be too enthusiastic an adherence to the principle that similar words in different statutes should be interpreted in the same way. In Wicks v Marsh (1993) 67 A Crim R 71 (Qld CCA) the court said in a joint judgment (at 74): It is true that generally where the legislature enacts a provision after a similar provision has been judicially interpreted in another jurisdiction, the legislature is assumed to be aware of that judicial interpretation and to have intended that it be followed: Local Board of Health of City of Perth v Maley (1904) 1 CLR 702 at 715; National Phonograph Co of Australia Ltd v Menck (1908) 7 CLR 481 at 529. However, on many occasions courts have cautioned against too enthusiastic an application of this principle. For example, in R v Reynhoudt (1962) 107 CLR 381 at 388, Dixon CJ said:

826

ROSS ON CRIME

[9.3365]

the view that in modern legislation the repetition of a provision which has been dealt with by the courts means that a judicial interpretation has been legislatively approved is, I think, quite artificial. To repeat what I have said before, the mechanics of law-making no longer provide it with the foundation in probability which the doctrine was supposed once to have possessed.

Other cases Galloway v Galloway [1956] AC 299 at 320; Bacon v Salamane (1965) 112 CLR 85 at 90–91; Farrell v Alexander [1977] AC 59; [1976] 3 WLR 145; [1976] 2 All ER 721 at [74]. In Flaherty v Girgis (1987) 162 CLR 574 at 594 Mason CJ, Wilson and Dawson JJ stated: For the reason given by Dixon CJ [in Reynouldt], the suggested rule nowadays is little use as a guide and it will not be permitted to prevail over an interpretation otherwise appearing to be correct.

[9.3365] Second reading speech of Minister and extrinsic materials Legislation Cth: Acts Interpretation Act 1901 s 15AB; Qld: Acts Interpretation Act 1954 s 14B; WA: Interpretation Act 1984 s 19; Tas: Acts Interpretation Act 1931 s 8B; NT: Interpretation Act s 62B; NSW: Interpretation Act 1987 s 34; Vic: Interpretation of Legislation Act 1984 s 35(b); ACT: Interpretation Act 1967 s 11B.

[9.3370] Weight given to Minister’s second reading speech In Re Bolton; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225 Mason CJ, Wilson and Dawson JJ said (at 518; 227–228): The words of a Minister must not be substituted for the text of the law. Particularly is this so when the intention stated by the Minister but unexpressed in the law is restrictive of the liberty of the individual. It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.

Applied in Minister for Immigration v Tang Jia Xin (1994) 69 ALJR 8; 125 ALR 203 (HC). The court said in a joint judgment (at 11; 207): However, a minister’s second reading speech, while available as a guide to interpretation, cannot be determinative of or substituted for the text of the legislation. This is particularly so where the law is restrictive of the liberty of the individual.

[9.3375] Interpretation of Commonwealth statute by State courts State courts should give a consistent meaning to a Commonwealth statute: Zibillari v The Queen [1980] WAR 40; (1980) 31 ALR 393; 3 A Crim R 161 (CCA); R v Daher [1981] 2 NSWLR 699; 5 A Crim R 137; 40 ALR 73 (CCA); R v Abbrederis (1981) 1 NSWLR 530; 3 A Crim R 366; 36 ALR 109 (CCA); R v Parsons (1983 2 VR 499; 71 flr 416; 53 ALR 568 (CCA);

[9.3390]

INTERPRETATION

827

R v Nagy [1992] 1 VR 637; (1991) 57 A Crim R 64 at 649, 76 (CCA); R v Mai & Tran (1992) 26 NSWLR 371; 60 A Crim R 49 at 383, 60 (CCA); R v Sekhon (1992) 63 A Crim R 349 at 352 (Vic CCA). State courts should give a consistent meaning to comparable provisions of Federal and State Acts for example the Corporations Law. In Australian Security Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485; 112 ALR 627; [1993] HCA 15 the court said (at 492; 629): Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

For discussion involving the Proceeds of Crime Act 1987 (Cth) and similar State Acts see Della Patrona v DPP (Cth) [No 2] (1995) 38 NSWLR 257; 132 ALR 307; 83 A Crim R 208 (CA).

[9.3380] Imputing mens rea In Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133; 66 WN 52 (FC) Jordan CJ said (at 142): There is no doubt that in respect of a thing which is criminal by the common law, a person is not criminally liable unless he does the thing himself or is an accessory, aider or abettor, or accomplice of someone else who does it, and, if he does the thing himself he is not criminally responsible in the absence of mens rea, that is, if he did not know that all the facts constituting the ingredients necessary to make the act criminal were involved in what he did. Prima facie, these rules are applicable also to things which are not criminal by the common law but have been made penal and criminal by statute. But in the case of offences of the latter type the law has been greatly obscured by a readiness on the part of judges to assume the role of legislators and discover in penal statutes implications of intention to impose vicarious liability and to penalise acts done in the complete absence of guilty knowledge, notwithstanding that the legislature has abstained from expressly excluding the rules of the common law. In the result it is seldom possible to know with any degree of certainty whether by a penal statute vicarious liability is imposed or mens rea is excluded, unless the particular point in the particular statute has been the subject of an authoritative decision.

[9.3385] Avoiding the irrational and unjust In Public Transport Commission (NSW) v Murray More (NSW) Pty Ltd (1975) 132 CLR 336 Gibbs J said (at 350): [W]here two meanings are open … it is proper to adopt the meaning that will avoid consequences that appear irrational and unjust.

Followed: R v Francis-Wright (2005) 153 A Crim R 299 (Vic CA) per Williams AJA at 311 [39].

[9.3390] Avoiding results that are absurd In DPP v Serratore (1995) 38 NSWLR 137; 81 A Crim R 363; 132 ALR 461 (CCA) Kirby P said (at 146; 470; 373): The avoidance of absurd, incongruous and highly inconvenient results in legislation is a function of the courts, derived from the presumption that parliament would not intend such results; cf Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 (CA) at 299. The modern approach to the construction of legislation is to endeavour to avoid such

828

ROSS ON CRIME

[9.3395]

outcomes. In Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 (CA) at 424, McHugh JA, in an often quoted explanation of the purposive approach to construction of statutes, cited Lord Diplock’s injunction: if … the courts can identify the target of parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed: “The Courts as Legislators”, The Lawyer and Justice (Sweet & Maxwell) (1978) p 274.

[9.3395] Presumption that common law right is not abrogated In R v Fuller (1994) 34 NSWLR 233; 74 A Crim R 415 (CCA) Hunt CJ at CL said (at 237–238, 419): There is a presumption that the legislature does not intend to abrogate a common law right or privilege unless a contrary intention is clearly expressed or necessarily implied in the statute. There is a long line of authority to that effect: Potter v Minahan (1908) 7 CLR 277 at 304; American Dairy Queen (Qld) Pty Ltd v Blue Rio Pty Ltd (1981) 147 CLR 677 at 682–683; Baker v Campbell (1983) 153 CLR 52 at 96–97, 123; Bropho v Western Australia (1990) 171 CLR 1 at 18; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319 at 322, 338; Coco v The Queen (1994) 179 CLR 427 at 437–438.

In Malika Holdings Pty Ltd v Stretton (2001) 204 CLR 290; 178 ALR 218, McHugh J said (at 299; 225 [30]): Speaking generally, a much surer guide to the legislative intention in areas of legislation dealing with ordinary rights or the general system of law is to construe the language of the enactment in its natural and ordinary meaning, having regard to its context – which will include other provisions of the enactment, its history and the state of the law – as well as the purpose which the enactment seeks to achieve.

This presumption has been reframed as the principle of legality. In X7 v Australian Crime Commission (2013) 87 ALJR 858; [2013] HCA 29, Keifel J stated, at [158]: The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness [221]. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so [222].

Hayne and Bell JJ in the same case stated, at [86]-[87]: The question of statutory construction which arises in this case requires the consideration and application of a well-established rule. That rule, often since applied [150], was stated by O’Connor J in Potter v Minahan [151] by quoting Maxwell’s On the Interpretation of Statutes [152]: It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness [153]; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used. (emphasis added) This rule of construction has found most frequent application in this Court with respect to legislation which may affect rights. In that context, it has come to be referred to as a “principle of legality” [154].

[9.3400] Positive statements can give rise to negative implications In Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66; 166 ALR 159 Gaudron, Gummow and Callinan JJ said (at 56; 165; 75 [19]): Positive legislative statements will often be capable of giving rise to negative implications. A recent example of the application of this principle (in a constitutional case) is Gould v Brown (1998) 193 CLR 346 in which McHugh J said (at 423):

[9.3410]

INTERPRETATION

829

The affirmative but limited grants of constitutional power to the Parliament of the Commonwealth negate its competency to invest the federal courts and the High Court with original and appellate jurisdiction except in accordance with ss 73, 75 and 76. In my view, logically these affirmative grants must also negative the power of other legislatures in the federation to invest the High Court and the federal courts with jurisdiction.

[9.3405] Ejusdem generis The Latin words ejusdem generis mean of the same kind or nature. It is often called the ejusdem generis rule. In statutory construction the term usually means a combination of specific words and general words. In Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 Dixon J warned about ejusdem generis. His Honour said (at 649): But the truth is that it is wrong to use the rule for an ejusdem-generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter.

In Pepper v Attorney-General (QLD) (No 2) [2008] 2 Qd R 353 (CA) Muir JA, with whom the other judges agreed, adopted (at [31]) a learned author’s description on how to limit introductory general words followed by particular words: The ejusdem generis principle is presumed not to apply where apparently general words are followed by narrower words suggesting a genus more limited than the initial general words, if taken by themselves, would indicate. The question is however, as always, one of the legislator’s intention.

In Notman v Owen (unreported, Vic SC, 28 May 1982) Starke J held that a false moustache, two wigs, walkie-talkies and oxyacetylene equipment were not instruments of housebreaking. His Honour said they were not ejusdem generis with “pick-lock key, crow, jack or bit”. In Ricciardello v Van Aken (1996) 14 WAR 1; 85 A Crim R 219 (Scott J) his Honour held (at 10; 227): The words “unlawfully obtained” should be construed ejusdem generis with the word “stolen”.

[9.3410] Blue pencil In criminal law, the term blue pencil means the cutting or omission of legislation or regulation or document as if by using a blue pencil. In DPP v Hutchinson [1990] 2 AC 783; [1990] 2 All ER 836 (HL) Lord Lowry said (at 819; 850): 1. The blue pencil test already represents a concession 
to the erring law-maker, the justification for which I
 have tried to explain. 2. When applying the blue pencil test (which actually
 means ignoring the offending words), the court cannot 
cause the text of the instrument to be altered. It
 will remain as the ostensible law of the land unless
 and until it is replaced by something else. It is too
 late now to think of abandoning the blue pencil
 method, which has much to commend it, but the
 disadvantage inherent in the method ought not to be
 enlarged. 3. It is up to the law-maker to keep within his powers 
and it is in the public interest that he should take 
care, in order that the public may be able to rely on
 the written word as representing the law. Further
 enlargement of the court’s power to validate what is 
partially invalid will encourage the law-maker to
 enact what he pleases, or at least to enact what may
 or may not be valid, without having to fear any
 worse result than merely being brought back within
 bounds.

In Harrington v Lowe (1996) 190 CLR 311; 136 ALR 42, a family case, six of the Justices (Kirby J excepted) said in a joint judgment (at 328; 52):

830

ROSS ON CRIME

[9.3415]

As to the common law in Australia, the position, as established by the earlier decisions of this Court to which we have referred, appears to be that a valid operation for the sub-rules might be preserved after textual surgery by operation of the ’blue pencil’ rule so that the valid portion could operate independently of the invalid portion, or, failing that, by treating the text as modified so as to achieve severance. But this latter step may be taken only where in so doing there is effected no change to the substantial purpose and effect of the impugned provision, and, in particular, there is not left substantially a different law as to the subject matter dealt with from what it would otherwise be.

In APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; 219 ALR 403 Kirby J said (at 447; 494 [369]): A difficulty arises where the impugned law affords no textual foundation for applying a ‘blue pencil’ to the offending parts ‘so that the valid portion could operate independently of the invalid portion’.

In R v Ng (2002) 5 VR 257; 136 A Crim R 299 (CA) the court held in a joint judgment (at 288; 333 [59]) that it could not sever a warrant by using the blue pencil method.

[9.3415] Dictionaries A dictionary may be used to interpret words in statutes. In House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 (CA) Mason P said (at 505 [28] – [29]): A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretative task confronting a person required to construe a particular document for a particular purpose. I agree with the following remarks of Judge Randolph of the United States Court of Appeals for the District of Columbia Circuit: “Dictionaries, Plain Meaning and Context in Statutory Interpretation” (1994) 17 Harvard Journal of Law and Public Policy 71 at 72: … citing … dictionaries creates a sort of optical illusion, conveying the existence of certainty – or “plainness” – when appearance may be all there is. Lexicographers define words with words. Words in the definition are defined by more words, as are those words. The trail may be endless; sometimes, it is circular. Using a dictionary definition simply pushes the problem back. The limitations of dictionaries are discussed with magisterial clarity by Mahoney JA in Provincial Insurance Australia Pty Ltd v Consolidated Wood Products Pty Ltd (1991) 25 NSWLR 541 at 560–561. Because the passage is lengthy I do not set it out. However, I respectfully agree with what his Honour has written there.

Yet in Brutus v Cozens [1972] AC 854; [1972] 3 WLR 521; [1972] 2 All ER 1297; (1972) 56 Cr App R 799 (HL) Lord Reid rejected submissions on the dictionary meanings of the word “insulting” in legislation. His Lordship said (at 861; 1299; 803–804): The meaning of an ordinary word of the English language is not a question of law.

[9.3420] Using common sense In Roschen v Ward 279 US 337 (1929) Holmes J said (at 339): We agree to all the generalities about not supplying criminal laws with what they omit, but there is no canon against using common sense in construing laws as saying what they obviously mean.

[9.3425] Implied repeal by later statute Where two provisions are inconsistent the latter repeals the former by implication: R v Crehan and Rowe (2001) 4 VR 189; 127 A Crim R 256 (CA).

[9.3605]

INTERPRETER

831

[9.3430] Not to force facts into an Act: Procrustes A court should not attempt to force the facts of a case “into the language of an Act not designed to fit them”: R v Gold [1988] 1 AC 1063; 2 All ER 186; 87 Cr App R 257 (HL) per Lord Brandon (at 1073; 192; 264). His Lordship approved the description of this vain undertaking as a “Procrustean attempt”. In Tomlins v Brennan (2006) 18 NTLR 80 (CA) Southwood J said (at 100 [79]): Procrustes is a brigand in Greek Mythology who inhabited the coastal road from Troezen to Athens. He lived in the hills near Eleusis where he kept an iron bed which he invited passersby to use. If the guest was too tall, he would amputate his limbs; if the guest was too short, the guest was stretched on the rack until he fitted the bed. Nobody would ever fit the bed because it was secretly adjustable. Hence the adjective “procrustean”. Procrustes was killed by Theseus, who was the national hero of Athens.

Article Lord Steyn, “The Intractable Problem of the Interpretation of Legal Texts” (2003) 25 Syd LR 5–19.

INTERPRETER No interpreter means an unfair trial ........................................................................................... Legislation ................................................................................................................................... Rationale ...................................................................................................................................... Must be able to understand the charge ...................................................................................... The nature of interpretation ........................................................................................................ Double interpretation .................................................................................................................. Translation of documents before trial ........................................................................................ Weak defence case ...................................................................................................................... Judge does not always have a discretion ................................................................................... Duty of judicial officer ............................................................................................................... No interpreter – accused discharged .......................................................................................... A witness has no right to give evidence in a native tongue ..................................................... Withholding an interpreter from the accused ............................................................................

[9.3600] [9.3605] [9.3610] [9.3615] [9.3620] [9.3625] [9.3630] [9.3635] [9.3640] [9.3645] [9.3650] [9.3655] [9.3660]

[9.3600] No interpreter means an unfair trial In Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385 the court said in a joint judgment (at 454; 391; 542 [27]): If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial: R v Lee Kun [1916] 1 KB 337; [1914–15] All ER Rep 603; (1915) 11 Cr App R 293 at 341, 342 (KB); Johnson (1987) 25 A Crim R 433 at 435; Lars (1994) 73 A Crim R 91 at 115.

Other cases Frank v Police (2007) 98 SASR 547; 175 A Crim R 592 (Sulan J); Kunnath v The State [1993] 1 WLR 1315; [1993] 4 All ER 30; 98 Cr App R 455 (PC).

[9.3605] Legislation Some legislation guarantees a free interpreter for a person charged where the person does not understand the language. Qld: Evidence Act 1977 s 131A; Vic: Crimes Act 1958 s 464D (Questioning); Charter of Human Rights and Responsibilities Act 2006 s 25(2)(i);

832

ROSS ON CRIME

[9.3610]

ACT: Human Rights Act 2004 s 22(2)(h); Evidence Act 1971 s 63A; NZ: Interpretation Act 1999 s 7; New Zealand Bill of Rights Act 1990 s 24(g); UK & Eur: European Convention on Human Rights Art 6.3(e); Can: Canadian Charter of Rights and Freedoms s 14. Some legislation simply provides that a witness may give evidence through an interpreter. Uniform Evidence Acts ss 30 and 31; SA: Evidence Act 1929 s 14. Other legislation Qld: Crime and Misconduct Act 2001 s 182; WA: Criminal Procedure Act 2004 s 75(3)(b): adjourning summary case for interpreter; Tas: Criminal Law (Detention and Interrogation) Act 1995 s 5(1): police officer must arrange a competent interpreter; Evidence Act 2001 s 30: witness; NSW: Evidence Act 1995 s 30: witness; Vic: Criminal Procedure Act 2009 s 335. The court must not hear the proceeding without a competent interpreter; Crimes Act 1914 (Cth) s 23J(3): (3) The Minister must, so far as is reasonably practicable, establish and update at such intervals as the Minister thinks appropriate, a list, in relation to such a region, of the names of persons who are able and willing to act as interpreters for Aboriginal persons or Torres Strait Islanders who: (a) because of inadequate knowledge of the English language, or a physical disability, are unable to communicate orally with reasonable fluency in that language; and (b) are under arrest and under investigation in that region for Commonwealth offences.

See also Confession (Confession through an interpreter) at [3.5430].

[9.3610] Rationale In Kunnath v The State [1993] 1 WLR 1315; [1993] 4 All ER 30; 98 Cr App R 455 (PC) the Board advised (at 35; 319): It is an essential principle of the criminal law that a trial for an indictable offence should be conducted in the presence of the defendant: Lawrence v The King [1933] AC 699, 708 per Lord Atkin. As their Lordships have already recorded, the basis of this principle is not simply that there should be corporeal prescence but that the defendant, by reason of his presence, should be able to understand the proceedings and decide what witnesses he wishes to call, whether or not to give evidence and, if so, upon what matters relevant to the case against him: Rex v Kwok Leung [1909] 4 HKLR 161, 173–174, per Gompertz J, and Rex v Lee Kun [1916] 1 KB 337, 341 per Lord Reading CJ. A defendant who has not understood the conduct of proceedings against him cannot, in the absence of express consent, be said to have had a fair trial.

[9.3615] Must be able to understand the charge In DPP v Merriman [1973] AC 584; [1972] 3 All ER 42; (1972) 56 Cr App R 766 (HL) Lord Morris said (at 592; 49; 775): It is only fair that a person should know what is the charge brought against him. In Book IV of his Commentaries (p 318) Blackstone wrote: “Then the indictment is to be read to him distinctly in the

[9.3630]

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833

English tongue (which was law even while all other proceedings were in Latin) that he may fully understand his charge.” Prior to the time of George II all indictments were in Latin. By statute it was then provided that they should be in the English tongue. “It was thought to be of much greater use and importance that they should be in a language capable of being known and understood by the parties concerned whose lives and liberties were to be affected thereby”: see Hale’s Pleas of the Crown (1778 ed, Vol 2, note on p 169.

[9.3620] The nature of interpretation In R v Tran [1994] 2 SCR 951; 117 DLR (4th) 7; 92 CCC (3d) 218 (SCC) Lamer CJ giving the judgment of the court said that the interpretation must be continuous (986; 36; 246), precise (986; 37; 247–248), impartial (988; 38; 248), competent (988–989; 38; 248–249) and contemporaneous (989–990; 39; 249–250). In Perera v MIMA (1999) 92 FCR 6 Kenny J held (at 19 [29]): [T]here is rarely an exact lexical correspondence but, even so, some interpretations are better than others. Whilst the interpretation at a Tribunal hearing need not be at the very highest standard of a first-flight interpreter, the interpretation must, nonetheless, express in one language, as accurately as that language and the circumstances permit, the idea or concept as it has been expressed in the other language.

There is an entitlement to have legal argument interpreted: Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 (NSWCA). An example of incompetent interpreting is in R v Lars (1994) 73 A Crim R 91 (NSW CCA). One of the accused was Marina Da Silva, born in Brazil whose native tongue was Portuguese. Her conversation with the police was interpreted by a Mr Campbell who had a fair working knowledge of the language from his engineering work in Brazil. He missed the subtlety and force of Ms Da Silva’s denials. The court allowed her appeal on that ground (at 115–121) and entered a verdict of acquittal.

[9.3625] Double interpretation The use of double interpretation may be necessary when it proves impossible to find one interpreter who is fluent in English and in the accused’s own language. The broad principles that apply to such a process were outlined in R v West London Youth Court [2000] 1 WLR 2368 at 2375; [2000] 1 All ER 823 at 831 (QBD).

[9.3630] Translation of documents before trial In R v Lee Kun [1916] 1 KB 337; [1914–15] All ER Rep 603; (1915) 11 Cr App R 293 Lord Reading CJ said (at 343; 606; 301–302): We have come to the conclusion that the safer, and therefore the wiser course, when the foreigner accused is defended by counsel, is that the evidence should be interpreted to him except when her or counsel on his behalf expresses a wish to dispense with the translation and the judge thinks fit to permit to omission; the judge should not permit it unless he is of opinion that because of what has passed before the trial the accused substantially understands the evidence to be given and the case to be made against him at the trial ... Speaking generally, police court proceedings will have taken place and the evidence will there have been translated to the accused before he has to stand his trial on the indictment, so that at the trial he knows the case to be made against him. He can instruct his counsel upon it.

In R v Mosquera (1993) 816 Fed Supp 168 Weinstein J ruled at 175: [5] Due process demands that criminal defendants be given the means to understand the charges lodged against them as soon and as fully as practicable. It is fundamental that a defendant must be told what he has been accused of in a language he or she can understand. This is the responsibility of the government, which brought the charges, not of the defendant.

834

ROSS ON CRIME

[9.3635]

… [7] If the government cannot afford to provide due process to those it prosecutes, it must forgo prosecution.

In R v Rostom (2007) 98 SASR 528 (CCA) the accused was unrepresented at trial. He could speak English quite well, but could not read it. There was a good interpreter, but none of the witness statements had been translated. Appeal allowed. The court applied R v Lee Kun. In Alwen Industries v Collector of Customs [1996] 3 NZLR 226 Robertson J was asked to order pretrial translation of the briefs of evidence and documentary evidence. The Chinese accused could not speak or read English. His Honour considered R v Lee Kun [1916] 1 KB 337; [1914–15] All ER Rep 603; (1915) 11 Cr App R 293 at 343 (KB). Robertson J said at 230–231: The judge emphasised the importance of translating any new or additional evidence, or evidence which differed from that recorded in depositions. While the passage is not precisely on point, it indicates that the Court anticipated some sort of translation of evidence at the pretrial stage. It also articulates the principle involved: that an accused person should know the case against them and be able to instruct counsel adequately. It suggests that there should be no difference whether the evidence at the depositions stage was viva voce or in written form.

Robertson J ruled at 232: I am persuaded that written translations of the briefs of evidence will be necessary to ensure a fair trial in this case but not necessarily in every case. Some cases may require translations of only the most critical evidence, and in other cases oral translations will suffice. There are obviously degrees of language difficulty just as there are degrees of importance of documents used in a proceeding.

[9.3635] Weak defence case In R v Saraya (1993) 70 A Crim R 515 (NSW CCA) Badgery-Parker J delivered the leading judgment. His Honour said (allowing the appeal) (at 516): The fact that the defence was, as it seems to me, a weak one made it even more important to the fairness of the trial that he should have been able to explain to the jury clearly and vividly the facts on which he relied to discharge the evidentiary onus which would put the Crown in the position of having to exclude any reasonable possibility that the offence was committed under duress: cf Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 424. Where an accused person is unable adequately to give evidence in the English language, the right to the use of an interpreter for the purpose of his giving evidence must in my view be regarded as an essential incident of a fair trial; and the trial will be unfair if an interpreter is not provided: Dietrich (1992) 177 CLR 292; 64 A Crim R 176. Equally, it will be unfair if the interpreter lacks the skill and ability to translate accurately the questions asked by counsel and the answers given by the accused person.

[9.3640] Judge does not always have a discretion In R v Johnson (1987) 25 A Crim R 433 (Qld CCA) Sherpherdson J said (at 435): [T]he guiding star is the need to ensure a fair trial for an accused person and that with that guiding star as the backdrop there are two needs to be considered – the need of the jury to hear and understand a witness’s evidence and the need of an accused person to hear and understand a witness’s evidence. The decision to call in an interpreter may not always be within a trial judge’s discretion. For example, if the jury were to ask for an interpreter for a particular witness the trial judge would as it seems to me have no alternative but to obtain one. On the aspect of a jury’s understanding I note a Sydney Morning Herald report of the case of Tau Chu (unreported, Court of Criminal Appeal, NSW, No 60232 of 1998, 16 October 1998), noted (1852) Australian Digest (2nd ed), Vol 8, par 408. In that case a Chinaman on his trial addressed the jury in his own defence in Chinese. The remarks were explained to the judge and jury by a person not sworn as an interpreter. The jury heard the remarks and the explanation of them and might have acted on them. The judge

[9.3655]

INTERPRETER

835

– thinking from the explanations so given that these remarks could not benefit the prisoner – did not have them interpreted by a sworn interpreter to the jury. The prisoner was found guilty. On point reserved, the Supreme Court was of opinion that the defence in Chinese, whatever its value or purport, should have been laid before the jury through the medium of a sworn interpreter. As this had not been done their Honours intimated that they would recommend a pardon.

[9.3645] Duty of judicial officer In Re East; Ex parte Nguyen (1998) 196 CLR 354; 159 ALR 108 Kirby J said (at [82]): Where a trial would be unfair because of the absence of an interpreter, it is the duty of the judicial officer to endeavour to ensure that an interpreter is provided. Where the accused is legally represented, the judicial officer can usually rely upon the legal representative to communicate to the court the needs and wishes of the accused. But even then, the judicial officer will not be relieved of the obligation to ensure a fair trial if it should subsequently appear (from something said or done in the trial) that an interpreter is needed.

In Perera v MIMA (1999) 92 FCR 6 Kenny J held (at 16 [18]): In the case of an accused who is not sufficiently proficient in English to understand the proceedings or to make himself understood, the trial judge must, as part of his/her duty to ensure a fair trial, see to it that the accused receives the assistance of a competent interpreter: Dietrich v The Queen (1992) 177 CLR 292 at 331 per Deane J; R v Saraya (1993) 70 A Crim R 515 at 516 per Badgery-Parker J (with whom Kirby ACJ and Loveday AJ agreed); R v Johnson (1987) 25 A Crim R 433 at 435 per Shepherdson J and 442–443 per Derrington J; R v Lee Kun [1916] 1 KB 337 at 341–343 per Lord Reading CJ; Kunnath v State [1993] 1 WLR 1315 at 1319–1321; [1993] 4 All ER 30 at 35–36; R v Begum (1991) 93 Cr App R 96 at 100–101; R v Tran [1994] 2 SCR 951 at 963 and United States ex rel Negron v New York (2nd Cir 1970) 434 F 2d 386. Approved: De La Espriella-Velasco v The Queen (2006) 31 WAR 291 at 378–379 [361] (CA).

[9.3650] No interpreter – accused discharged If no interpreter can be found the accused should be discharged. In Ngatayi v The Queen (1980) 147 CLR 1; 30 ALR 27 Gibbs, Mason and Wilson JJ said (at 8; 32): [I]n a case where there is no mental or physical disability, there may be no statutory enactment under which the accused can continue to be detained. In such case no doubt he should be discharged. In fact in R v Willie (1885) 7 QLJ (NC) 108, Cooper J. ordered the discharge of four aboriginals when no interpreter could be found competent to communicate the charge to them. The report does not however disclose the authority, statutory or otherwise, for taking this course.

No wonder the High Court could not find the authority used by Cooper J. The whole report of R v Willie (1885) 7 QLJ (NC) 108 is as follows: 108. Trial – Aboriginal – Inability Of Interpreter To Charge Accused. Where, on the trial of four aboriginals on a charge of murder, no interpreter could be found competent to communicate the charge to the accused, the prisoners were ordered to be discharged. R v Willie (1885) 7 QLJ (NC) 108 per Cooper J.

R v Willie (1885) 7 QLJ (NC) 108 was referred to without adverse comment in Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385 (at 454; 391; 542 [27]).

[9.3655] A witness has no right to give evidence in a native tongue A witness has no right to give evidence in a native tongue not being English: Dairy Farmers Co-Operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464. In Cucu v District Court of NSW (1994) 73 A Crim R 240 (CA), Sheller J said (at 250):

836

ROSS ON CRIME

[9.3660]

Inevitably evidence must be presented to the court in the English language. In a civil case where English is not the first language of a witness it will be for the judge to decide whether the evidence should be given by the witness in English or through an interpreter. Normally where a witness has difficulty speaking English and requests the assistance of an interpreter this will be permitted. However this course adds another dimension to the court’s task in eliciting the truth. A judge may feel that a direct account in English even badly spoken is fairer to the witness and to the parties: see Filios v Morland [1963] SR NSW 331 at 332–334 approved by the High Court in Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 464. Moreover it should be borne in mind that for many people brought up in other countries with different systems of education it is natural to understand and speak several languages including English. Judges will in weighing the evidence take account of the witness’s language difficulties.

[9.3660] Withholding an interpreter from the accused In Dietrich v The Queen (1992) 177 CLR 292; 109 ALR 385; 64 A Crim R 176 Deane J said (at 331; 412; 203): If, for example, available interpreter facilities, which were essential to enable the fair trial of an unrepresented person who could neither speak nor understand English, were withheld by the government, a trial judge would be entitled and obliged to postpone or stay the trial and an appellate court would, in the absence of extraordinary circumstances, be entitled and obliged to quash any conviction entered after such an inherently unfair trial.

INTOXICATION Description .................................................................................................................................. General principle ......................................................................................................................... Admissibility in any criminal offence ........................................................................................ Relevance .................................................................................................................................... Sufficiency of evidence ............................................................................................................... When intoxication is an issue .................................................................................................... Intoxication not raised as a trial issue by the defence .............................................................. Reliability of witness who was intoxicated ............................................................................... Expert evidence ........................................................................................................................... Non-expert opinion evidence ...................................................................................................... Legislation ................................................................................................................................... Cases ............................................................................................................................................ Possible intoxication direction .................................................................................................... Other references ..........................................................................................................................

[9.3800] [9.3805] [9.3810] [9.3815] [9.3820] [9.3825] [9.3830] [9.3835] [9.3840] [9.3845] [9.3850] [9.3855] [9.3860] [9.3865]

[9.3800] Description In R v Ormsby [1945] NZLR 109 (Fair J) his Honour directed the jury as follows (at 109): A man is in a “state of intoxication” … when as a result of his consumption of intoxicating liquor, his physical and mental faculties, or his judgment, are appreciably and materially impaired in the conduct of the ordinary affairs or acts of daily life.

Followed: McDonald v Sherrin (1998) 8 Tas R 146 at 148 (Evans J).

[9.3805] General principle In R v Kamipeli [1975] 2 NZLR 610 (CA) McCarthy P said (at 616): Drunkenness is not a defence of itself. Its true relevance by way of defence, so it seems to us, is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.

[9.3820]

INTOXICATION

837

Approved: R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449. In Cutter v The Queen (1997) 71 ALJR 638; 143 ALR 498; 94 A Crim R 152 in addressing Criminal Code (WA) s 28 Brennan CJ and Dawson J said (at 641; 501; 155): Intoxication is relevant to the question whether an accused had the relevant specific intent in fact whether or not it establishes that he had lost the capacity to form an intent: R v Crump [1966] Qd R 340. The common law is no different: see Viro v The Queen (1978) 141 CLR 88; 18 ALR 257 at 112 (CLR).

[9.3810] Admissibility in any criminal offence Barwick CJ said in R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 (at 87–88; 466; 364): In my opinion, evidence of the state of the body and mind of an accused tendered to assist in raising a doubt as to the voluntary character of the physical act involved in the crime charged is admissible on the trial of an accused for any criminal offence, whether an offence at common law or by statute. Further, in my opinion, such evidence tendered to raise a doubt as to the actual intention with which the physical act involved in the crime charged, if done, was done is admissible on the trial of an accused for any offence, whether at common law or by statute, with the exception of such statutory offences as do not require the existence of an actual intent, the so-called absolute offences.

[9.3815] Relevance Intoxication may be relevant to a variety of issues. In Bedi v The Queen (1993) 61 SASR 269; 68 A Crim R 539 (CCA) Duggan J with whom the others agreed said (at 273; 542): It is clear that the intoxication of an accused person, whether induced by alcohol, drugs, or a combination of both, may be of relevance to a variety of issues in a criminal trial, including the existence of a particular state of mind or the appreciation of facts relevant to some element of an offence or to a defence to the charge. Intoxication may also be of relevance in the assessment of the reliability of the witnesses. If there is evidence of intoxication capable of having some bearing on these issues it is the duty of the trial judge to identify that evidence for the jury and relate it to those issues with appropriate directions on the law. It may well be that for one reason or another the defence case does not wish to rely on evidence of intoxication, but that does not relieve the trial judge of giving the jury appropriate directions.

Approved: R v Baltensperger (2004) 90 SASR 129 at 141–142 [45] (CCA).

[9.3820] Sufficiency of evidence In R v Sullivan (1981) 6 A Crim R 259 (NSW CCA) Reynolds JA said (at 263): It is not the law that whenever an accused person makes reference to having consumed an unspecified quantity of alcohol at some time antecedent to the act charged, with no evidence as to the extent to which it may have been eliminated from the bloodstream and no evidence that it was capable of affecting or did affect his volition or powers of reasoning, a special direction is nevertheless called for. To give such a direction in those cases is to confuse and mislead a jury and invite a verdict which is contrary to the evidence.

Applied: R v Wilson (1986) 42 SASR 203; 22 A Crim R 130 at 212, 138 (CCA), Legoe J. In R v Stokes and Difford (1990) 51 A Crim R 25 (NSW CCA) Hunt J said (at 31):

838

ROSS ON CRIME

[9.3825]

If there is any doubt as to whether intoxication has been sufficiently raised in the evidence, it is the duty of the judge to leave the issue to the jury.

Applied: R v Rose (1996) 87 A Crim R 109 at 111 (NSW CCA). In R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449, Barwick CJ said (at 88; 466; 364): [T]he jury needs careful and special instruction. If the evidence, if accepted, is not such as to be capable of raising a doubt as to either of the basic elements, voluntariness or actual intent, there being no other material to suggest a lack of voluntariness or actual intent, that evidence can be withdrawn from the jury’s consideration. It will have had no more than a tendency to establish that though the accused acted voluntarily and with the requisite intent, he was influenced in what he did by a state of insobriety. They should be told that if the evidence does not raise in their minds a doubt as to voluntariness or actual intent they may put that evidence out of their minds in considering the accused’s guilt or innocence.

[9.3825] When intoxication is an issue It is the duty of a judge to direct a jury on intoxication if it arises on the evidence. Barwick CJ said in R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 said (at 88; 466–467; 364–365): But if the evidence is capable of raising a doubt either as to voluntariness or the existence of an actual intent, the jury should be told that if that evidence raises in their minds a reasonable doubt as to voluntariness or actual intent, it is for the Crown to remove that doubt from their minds and to satisfy them beyond reasonable doubt that the accused voluntarily did the act with which he is charged and that he did so with the actual intent appropriate to the crime charged. They should be instructed as to the meaning and scope of voluntariness and as to the precise intent which the crime charged requires. It would be proper in these cases to tell a jury that the fact that a man does not later remember what he did does not necessarily indicate that his will did not go with what he did do or that he did not have the necessary intent.

In R v Curtis (1991) 55 A Crim R 209 (SA CCA), the accused said he ingested marijuana and alcohol. The complainant said the accused was “quite drunk”. Intoxication was properly an issue. In R v Perks (1986) 41 SASR 335; 20 A Crim R 201 (CCA) the prosecution in a murder trial relied on intoxication to negative the objective element in provocation and the genuine belief of self defence. The defence was that the accused was sober. The judge did not leave intoxication and the appeal was allowed. In R v Khouzame (1999) 108 A Crim R 170 (NSW CCA) the court held that intoxication had a bearing on knowledge of lack of consent to sexual acts. However the appeal was not allowed on this ground. In R v Faure [1999] 2 VR 537 (CA) it was held that intoxication might prevent formation of the requisite intent for murder and the state of mind necessary to prove reckless murder. The judge did not direct the jury on intoxication. The defence took no exception to this omission. Appeal allowed on this ground. In R v Le Broc (2000) 2 VR 43; 114 A Crim R 546 (CA) the evidence at trial was that the accused was drunk, pissed, out of it. The trial judge did not leave intoxication to the jury and the defence made no complaint. Held: appeal dismissed on this and other grounds, for the evidence on intoxication was imprecise, vague and uncertain. In Spencer v The Queen (2003) 172 FLR 471; 137 A Crim R 444 (NT CCA) the accused cut his wife in the thigh. The jury direction failed properly to deal with intent, the mild force and the independence of the cut to proximity of vital organs. Appeal against murder conviction allowed and re-trial ordered.

[9.3840]

INTOXICATION

839

[9.3830] Intoxication not raised as a trial issue by the defence Where no direction on intoxication is sought by the defence at trial it was once not open to raise the absence of direction on appeal: R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 (CCA) (at 546–547; 529–530). That is particularly so when the defence is complete non-involvement in the crime: R v Shaw (1981) 4 A Crim R 228 (NSW CCA). See also Judge at [10.900].

[9.3835] Reliability of witness who was intoxicated Where a witness was intoxicated at the happening of the events in issue, the judge should direct a jury that the evidence may not be reliable. In R v Salih (2005) 160 A Crim R 310 (Vic CA) the appellant had been convicted of rape. Was there consent? The complainant was heavily intoxicated by alcohol and marijuana. She gave a number of different versions of various events. The court held that the trial judge should have directed the jury on her reliability. Harper A JA, with whom the others agreed, said (at 340 [112] – [113]): Neither side called any experts to speak on the subject, so the jury if they considered the matter at all must of necessity have done so by drawing on whatever experience they or individual jurors may have had. The judge, of course, could not by any direction of his fill the gap left by the absence of expert evidence. The best he could have done was to remind the jury of the evidence about her consumption, and of her own assessment of its effect on her, and warn them that, as that is all they have, it would be unsafe to convict the applicant on the complainant’s evidence unless having very carefully considered that evidence they were satisfied that it was accurate. In my opinion, a direction of that kind should have been given.

[9.3840] Expert evidence In R v Haywood [1971] VR 755 (Crockett J): expert evidence on the effects of valium and whisky on a 15-year-old boy was allowed. In R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449: Granat at trial had called medical evidence to show that the Avil tablets combined with the alcohol “could have rendered the accused incapable of reasoning and of forming an intent to steal or to wound” (at 68; 452; 350). Barwick CJ said (at 79; 460; 358): But I do not doubt that admission of evidence of intoxication, including as most likely it will expert evidence, would call for careful direction by the presiding judge.

In Perkins v The Queen [1983] WAR 184 (CCA), the effect of alcohol on a person with frontal lobe damage to the brain was the subject of expert evidence. In Cameron v The Queen (1990) 2 WAR 1; 47 A Crim R 397 (CCA) medical or other expert evidence was available but had not been called at trial to show the effect of cannabis and alcohol on the accused. Appeal dismissed. R v Garth (1994) 73 A Crim R 215 (SA CCA) involved a confession by an alcoholic and expert evidence was given on alcoholism. See particularly at 237 per Olsson J. See also R v Neilsen [1990] 2 Qd R 578; (1990) 47 A Crim R 269 (CCA).

840

ROSS ON CRIME

[9.3845]

[9.3845] Non-expert opinion evidence Most courts will allow non-experts to give the opinion that a person was drunk and such evidence relies on behaviour and appearance: R v Whitby (1957) 74 WN (NSW) 441 (CCA). In R v Kelly [1958] VR 412 Smith J ruled: In the first place, the Crown may be asking a witness to say whether the accused was under the influence of liquor. Such an enquiry must ordinarily amount, in these cases, to asking the witness what was the cause of the behaviour or symptoms that he observed in the accused. What the Crown is seeking to obtain from the witness is not merely evidence of what he observed but evidence of his opinion or inference derived from what he observed.

Further (at 413): In the second place however, the Crown may merely be seeking to obtain from a witness in the form of a simile, or otherwise, a compendious description of what he actually observed. For example, in some cases a witness may be found to express his observations of another person by saying such things as “he looked frightened” or “he looked ill” or “he took up a stance like that of a boxer” or “his voice was like that of an old man” or “his speech was like that of a drunken man” or “his gait was like that of a man under the influence of liquor”. Such expressions will not, I think, ordinarily involve any expression of an opinion or inference as to causation.

[9.3850] Legislation Cth: Criminal Code Act 1995 s 8; Qld: Criminal Code s 28; WA: Criminal Code s 28; Tas: Criminal Code s 17; NT: Criminal Code ss 7, 43AR–43AV, 318, 383; NSW: Crimes Act 1900 ss 428A–428I; Vic: Crimes Act 1958 s 9AJ; SA: Criminal Law Consolidation Act 1935 ss 267A–269; ACT: Criminal Code 2002 ss 30–34.

[9.3855] Cases Queensland In R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72 (CCA) it was held that self-induced intoxication cannot be relied upon to avoid criminal responsibility for an offence which does not involve an intention to cause a specific result. Thus the decision in R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 does not apply where the Criminal Code does. Alcohol and a blow to the head was discussed in R v Hughes (1994) 76 A Crim R 177 (Qld CCA). Davies JA said (at 180): [T]hough evidence of incapacity to form the relevant intention, whether because of intoxication or concussion from the blow to his head, would be evidence that the appellant did not have that intention, it is the existence of actual intention which must be proved and to which intoxication and the effect of the blow are relevant: see Thomas (1960) 102 CLR 584 at 597; Crump [1966] Qd R 340 at 343, 346.

[9.3855]

INTOXICATION

841

Western Australia R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72 (CCA) was applied in Cameron v The Queen (1990) 2 WAR 1; 47 A Crim R 397 (CCA). For further discussion see Hubert v The Queen (1993) 67 A Crim R 181 (at 199–200) (WA CCA).

Tasmania Snow v The Queen [1962] Tas SR 271 (CCA) esp at 289. Applied: McCullough v The Queen [1982] Tas R 43; 6 A Crim R 274 (CCA). In Hawkins (AJ) v The Queen (1994) 179 CLR 500; 122 ALR 27; 72 A Crim R 288 the High Court said of Snow v The Queen [1962] Tas SR 271 (at 513; 35; 296): It does not affect the general question whether an inference of specific intent should be drawn from the circumstances of the case, though it may restrict the effect of a lesser degree of drunkenness on the drawing of an inference of intent.

The qualifying words partial or total intoxication should not be used without full explanation: R v Cooke (1985) 39 SASR 225; 16 A Crim R 304 (CCA). Intoxication is relevant to whether the accused knew the consequences of his or her conduct. Self-induced intoxication is irrelevant to whether the accused ought to have known the consequences of his conduct (murder charge): Attorney-General’s Reference No 1 of 1996 (1998) 7 Tas R 293; 99 A Crim R 386 (CCA). Other cases R v Weiderman (1996) 90 A Crim R 250 (Tas, Slicer J). Gow v Davies (1992) 1 Tas R 1; 61 A Crim R 282 (CCA).

Northern Territory In Charlie v The Queen (1998) 119 NTR 1; 143 FLR 73; 99 A Crim R 232 (CCA) Martin CJ said (at 6; 79; 238): Here, the basic fact is that the intoxication was not involuntary, from which the conclusion is drawn that the accused foresaw the natural and probable consequences of his conduct. The effect of the provision is that the presumption may be made, and thus provide some evidence of that fact. That does not disturb the burden of proof resting upon the Crown to show beyond reasonable doubt, that the accused foresaw the possible consequences of his conduct as required by s 31. What must be looked at is the whole of the evidence including the presumed fact. However, the burden or onus of proof remains with the Crown.

(An appeal from this judgment was dismissed by the High Court: Charlie v The Queen (1999) 199 CLR 387; 162 ALR 463, but this part of the judgment of the Court of Criminal Appeal was not one of the grounds.)

South Australia In R v Childs (2007) 98 SASR 111; 172 A Crim R 450 (CCA) the accused had been convicted of murder. There was evidence of intoxication. Doyle CJ and Vanstone J said that on the murder charge, voluntariness was a live issue. Their Honours then said (at [90]): Then, in giving the elements of manslaughter by unlawful and dangerous act, the judge should have advised the jury that any doubt about the relevant act being voluntary and deliberate arising from the accused’s intoxication could not stand in the way of conviction for manslaughter. (This follows from the provisions of s 268(2) of the Act.)

842

ROSS ON CRIME

[9.3860]

[9.3860] Possible intoxication direction A judge must give a direction1 when the evidence suggests that the person charged was intoxicated and even if the defence asks that no such direction be given.2 (In the Code jurisdictions intoxication applies to crimes of specific intent only).3 There must be sufficient evidence of intoxication.4 A possible5 direction follows. 1. There is evidence that the accused was intoxicated. (Here refer to evidence). 2. Intoxication can obviously be caused by any intoxicating substance. Such substances include alcohol or other drug alone or in combination.6 3. Intoxication may do no more than remove inhibitions or restraints and induce a sense of self confidence or even aggressiveness.7 4. I must remind you of a matter of law which you must accept. The prosecution brings this charge. The prosecution has to prove its case against the accused. If it fails to prove any of the elements of its charge, you must bring in a verdict of not guilty. A person accused of a crime does not have to prove anything. 5. One of the elements of this charge is intent. Intoxication can affect intent, that is the intention to do the act which is charged.8 It also includes the prosecution allegation of acting recklessly.9 6. You do not have to decide whether the accused was not capable of forming the intent. All you have to decide is whether in the light of the evidence of intoxication the prosecution has proved his intention to do the act with which he is charged.10 7. I must warn you that intoxication can cause a person to make a mistake. Mistakes can be made on the gravity of a threat faced by an accused,11 or on whether a life will be put in peril by the discharge of a firearm.12 Intoxication can cause a person to mistake someone else’s house as his own.13 8. Remember. The prosecution must prove (specific) intent. Has the prosecution proved beyond reasonable doubt that the intoxicated accused intended to act in the way they claim? Is it possible that because of intoxication the accused did not intend to act that way? If the prosecution has not proved intent beyond reasonable doubt then you must acquit.

1 R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449; R v Bedi (1993) 61 SASR 269; 68 A Crim R 539; R v Rose (1996) 87 A Crim R 109 (NSW CCA). 2 R v Stokes and Difford (1990) 51 A Crim R 25 at 32 (NSW CCA). 3 R v Kusu [1981] Qd R 136; (1980) 4 A Crim R 72 (CCA). 4 R v Le Broc (2000) 2 VR 43; 114 A Crim R 546 (CA). 5 See R v Nicholson [1956] St R Qld 520 approved Thomas v The Queen (1960) 102 CLR 584 per Kitto J at 587. 6 R v Haywood [1971] VR 755 (Crockett J); Viro v The Queen (1978) 141 CLR 88; 18 ALR 257 per Gibbs J at 112 (CLR); R v Williamson (1996) 67 SASR 428; 92 A Crim R 24 (CCA). 7 R v Coleman (1990) 19 NSWLR 467; 47 A Crim R 306 at 486, 323–324 (CCA). 8 The word “intent” should not be expanded: R v Wilmot (No 2) [1985] 2 Qd R 413. 9 R v Grant (2002) 131 CLR 510; 55 NSWLR 80; 131 A Crim R 523 (CCA). 10 Cutter v The Queen (1997) 71 ALJR 638; 143 ALR 498; 94 A Crim R 152 at 641 (ALJR); R v Wilson [1998] 2 Qd R 99 (CA); R v Makisi (2004) 151 A Crim R 245 (NSW CCA). 11 R v Conlon (1993) 69 A Crim R 92 (Hunt CJ at CL). 12 R v Bedi (1993) 61 SASR 269; 68 A Crim R 539 (CCA). 13 Gow v Davies (1992) 1 Tas R 1; 61 A Crim R 282 (FC).

[9.4010]

ISSUE ESTOPPEL

843

[9.3865] Other references Spiking [19.5300].

ISSUE ESTOPPEL Definition ..................................................................................................................................... [9.4000] No issue estoppel in criminal proceedings ................................................................................ [9.4005] The Anshun principle .................................................................................................................. [9.4010]

[9.4000] Definition Dixon J said in Blair v Curran (1939) 62 CLR 464 (at 531): A judicial determination directly involving an issue of fact or of law disposes once for all of the issue, so that it cannot afterwards be raised between the same parties or their privies.

Followed: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3 at 597 (CLR). These were civil cases.

[9.4005] No issue estoppel in criminal proceedings In criminal proceedings issue estoppel is said not to apply: R v Storey (1978) 140 CLR 364; 22 ALR 47 at 371–374 per Barwick CJ; 379–389 per Gibbs J; 400–401 per Mason J. In Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417 Mason CJ said (at 254–255; 419; 463): I adhere to the view which I expressed in Reg v Storey (1978) 140 CLR 364, at pp 400–401 that the doctrine of issue estoppel as it has developed in civil proceedings is not applicable to criminal proceedings. The reasons which compel acceptance of that view are set out in the judgments of Barwick CJ, Gibbs J and myself in that case (1978) 140 CLR at pp 371–374, per Barwick CJ; pp 379–389, per Gibbs J; pp 400–401, per Mason, J. The availability of res judicata, the defences of autrefois acquit and autrefois convict and the rule against double jeopardy and the doctrine of abuse of process make it unnecessary to introduce the doctrine of issue estoppel into the criminal law. Moreover, the introduction of issue estoppel and all its complexities would serve only to make the criminal law more convoluted. This view accords with the position reached in other common law jurisdictions.

Yet in R v Mahalingan [2008] 3 SCR 316; 237 CCC (3d) 411 the Supreme Court of Canada held that issue estoppel still applied in criminal proceedings as it had done for longer than the last three decades. Other references Spiking at [19.5300].

[9.4010] The Anshun principle The expression comes from Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; 36 ALR 3. The principle applies when there are two proceedings on the same subject. In Stuart v Sanderson (2000) 100 FCR 150; 175 ALR 681; 113 A Crim R 92, Madgwick J held (at 159; 689; 102 [31]): Thus, where a party has behaved unreasonably in not raising a matter in the earlier proceedings, that party will in general not be permitted to later litigate it, unless there are special circumstances.

844

ROSS ON CRIME

[9.4010]

See also Ormiston J “Abuse of Process, Anshun and the Criminal Law – A Commentary” (1997) 71 ALJ 942. Brereton v Sinclair (2000) 2 VR 424; 118 A Crim R 366 at 431; 373 [20] – [22] (CA). King v Lintrose Nominees Pty Ltd (2001) 4 VR 619 (CA).

J JAZZ People of jazz .............................................................................................................................. It’s music, but is it jazz? ............................................................................................................ Knights and dames ...................................................................................................................... Defamation .................................................................................................................................. Musicians shot dead .................................................................................................................... Managers ..................................................................................................................................... Drummers .................................................................................................................................... Guitarists ..................................................................................................................................... Singers ......................................................................................................................................... Classical music ............................................................................................................................ Popular music .............................................................................................................................. They gave up law for music ...................................................................................................... Ballads and musical instruments proscribed .............................................................................. Raves ...........................................................................................................................................

[10.100] [10.105] [10.110] [10.115] [10.120] [10.125] [10.130] [10.135] [10.140] [10.145] [10.150] [10.155] [10.160] [10.165]

[10.100] People of jazz In R v Francis [2007] 1 WLR 1021 (CA) Moses LJ delivering the judgment of the court said (at 1024 [13]): When a bright idea strikes counsel as a moment of epiphany it is useful for the advocate to recall the advice of that illustrious member of the Modern Jazz Quartet. Miles Davis advised, “Think of a note. Don’t play it”.

(His Lordship’s point was well made but technically wrong. Miles Davis was never a member of the Modern Jazz Quartet). Leon Bix Beiderbecke (1903–1931) the cornet virtuoso died of alcoholism during prohibition in USA (1919–1933). Joe Pass (Joseph Passalaqua) (1929–1994) perfected his sweet jazz guitar technique in a prison cell while serving time for narcotic offences. Bernard Stanley (Acker) Bilk (1929–) fell asleep while on guard duty in Egypt in 1947. He was sent to prison for three months. It was there that he taught himself the jazz clarinet. Milton “Mezz” Mezzrow (1899–1972) the jazz reed player, went into a jazz club in 1940 with 60 marijuana joints. He was sent to prison. In 1948 he wrote a book “Really the Blues”. It starts the following way: Music School? Are you kidding? I learned to play the sax in Pontiac Reformatory ... More than once I strayed off from the music and did my share of evil and served my time. Other times the opium had me so strong it turned me every way but loose.

Coleman Hawkins (1904–1968) committed an offence by playing his tenor saxophone in England contrary to his entry conditions. Herbert William Wilcox aided and abetted this breach by reporting the concert in Jazz Illustrated: Wilcox v Jeffrey [1951] 1 All ER 464 (KBD). A man was convicted of recklessly causing serious injury arising out of acrimony at a jazz dancing class in Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; 109 ALR 225 at 505 (CLR).

846

ROSS ON CRIME

[10.105]

Marguerite (Blossom) Dearie (1926–2009) sang a beautiful version of the Dave Frishberg song “My Attorney Bernie”. She accompanied herself on piano. The Goon Show was a radio comedy from England (1951–1960). Almost every edition contained some form of criminality by Count Jim Moriarty or Hercules Grytpipe-Thynne. The show featured two jazz musicians. One was a quartet led by singer Ray Ellington (1916–1985). The other was a group led by harmonica player Max Geldray (1916–2004) who had played in Paris in the 1930s with the gypsy guitarist Jean Baptiste (Django) Reinhardt (1910–1953). Editions of the Goon show are still being repeated. “Today you play jazz, tomorrow you will betray your country”: Soviet poster of the Stalin era. Henry van Dyke (1852–1933) the American author and clergyman said: JAZZ: music invented by demons for the torture of imbeciles.

[10.105] It’s music, but is it jazz? The Platters’ temporary entry permit to Australia was the issue in Conyngham v Minister (1986) 68 ALR 423 (Wilcox J); and on appeal in Minister v Conyngham (1986) 11 FCR 528; 68 ALR 441 (FCA). A judge should not listen to a dance band during a court case unless all parties agree: Scott v Numurkah Corporation (1954) 91 CLR 300. In Lobban v The Queen [1995] 1 WLR 877; [1995] 2 All ER 602; [1995] 2 Cr App R 573 (PC) the Board approved convictions for the murder of the reggae singer Peter Tosh (Winston Hubert McIntosh) (1944–1987). A didgeridoo was wasted as an instrument of murder in R v Mitchell (2007) 174 A Crim R 52 (Qld CA) and in R v Walsh (1993) 70 A Crim R 408 (Vic CCA). In R v Maher (2005) 154 A Crim R 457 at 460 [6] (NSW CCA) it was a weapon used in a prison riot. (The masters who make and play the instrument in north-east Arnhem Land call it yidaki.) Death by banjo: Ferdinand Ambach killed Ronald Brown in Auckland New Zealand. He smashed a banjo over the victim’s head, then rammed the fret board down his throat. July 2009 verdict was manslaughter. The gay victim provoked the straight accused. The risk of selling a worthless piano is that you may be charged with a criminal offence: Mattingley v Tuckwood (1989) 88 ACTR 1; 43 A Crim R 111 (Kelly J); R v Button [1992] 1 Qd R 552; (1991) 54 A Crim R 1 (CCA) (Byrne J). A flute is passed quickly from hand to hand. For that reason Douglas J directed a jury to enter a not guilty verdict where an accused had a stolen flute more than seven months after the theft: R v Hardy [1924] QWN 26; 18 QTPR 89. A gentleman is a man who can play the piano accordion and doesn’t. Unless, of course, he has had too much to drink: Heinze v Burnley & Myers (1992) 57 SASR 452; 63 A Crim R 83 (FC). A woman who plays the accordion skilfully in the street is no lady and may be a beggar: Eggins v Webber (1939) 56 WN (NSW) 73 (Bevan J). Ambrose Bierce defined an accordion: “An instrument in harmony with the sentiments of an assassin”. (The Devil’s Dictionary, 1911). Huddie Ledbetter (“Leadbelly”) (c 1888–1949) was an accordionist. He also sang and played blues guitar. He served three gaol terms: 1918–1925 (murder), 1930–1934 (attempted manslaughter) and 1939 (assault). No wonder he was described as a performer of conviction. In R v Carr [2003] TASSC 123 (12 November 2003, unreported, ruling of Crawford J) the accused was charged with stealing two piano accordions and a chain saw. If true, he might have wanted to play the chainsaw because it has a little more delicacy in a ballad.

[10.125]

JAZZ

847

Andrew Barton Paterson (1864–1941) gave up the law for writing. His pseudonym “Banjo” was not taken for his liking of the instrument but from the name of a horse owned by his father. In 1895 he wrote the words of Waltzing Matilda five years after giving up legal practice.

Is a lighting operator part of a band? For the purpose only of Workers Compensation, a lighting operator for a live band is considered to be an entertainer: Newstead v Gulgong RSL Club Ltd (1995) 12 NSW CCR 102 (CA).

[10.110] Knights and dames Queen Elizabeth II bestowed honours on the following English musicians who became knights or dames. Jazz Cleo Laine, 1997 (born Clementine Dinah Campbell, 1927), vocalist; John Philip William Dankworth, 2006, reed player and composer. Pop James Paul McCartney, 1997; Elton Hercules John, 1977 (born Reginald Keith Dwight, 1947); Cliff Richard, 1998 (born Harry Roger Webb, 1940); Michael Philip (Mick) Jagger, 2002; Tom Jones, 2006 (born Thomas John Woodward, 1940).

[10.115] Defamation Elton John sued a newspaper that alleged that he spat out his food. It was a form of bulimia, they said: John v MGN Ltd [1997] QB 568; [1996] 2 All ER 35 (CA). Stefane Grappelli (1908–1997), the jazz violinist, said he was defamed when his agents claimed a series of concerts in England was cancelled due to his ill-health: Grappelli v Derek Block Ltd [1981] 1 WLR 822; 2 All ER 272 (CA).

[10.120] Musicians shot dead Many musicians have been shot dead. The following ones, however, were shot dead while playing on the bandstand. Clarence “Pine Top” Smith (1904–1929). Darrell “Dimebag” Abbott (1966–2004).

[10.125] Managers Gilbert O’Sullivan had his management’s contract set aside because of undue influence. He was alone again, naturally: O’Sullivan v Management Agency [1985] 1 QB 428; [1984] 3 WLR 448; [1985] 3 All ER 351. No injunction will be granted to prevent a group’s engagement of a different manager: Page One Records Ltd v Britton (trading as “The Troggs”) [1968] 1 WLR 157; [1967] 3 All ER 822 (Stamp J).

848

ROSS ON CRIME

[10.130]

[10.130] Drummers In R v Pressick and Badke (unreported, Qld CA, 20 September 1996) the second accused had kicked a bass drum causing considerable damage. The sentencing judge had said that the damage to the drum kit may have been of great benefit to the neighbourhood. In R v Redenbach (1991) 52 A Crim R 95 (Vic CCA) the role of one of the accused had been to play a set of drums to cover the sounds of gunshots. In R v Regan (1993) 67 A Crim R 100 (Vic CCA) the applicant went on a rampage with a metal stand from a drum kit. In Scott v Numurkah Corporation (1954) 91 CLR 300, Fullagar J said (at 316–317): The strains of a lilting waltz may make no impression in the hero or villain of a raucous and boisterous drama, whereas the pathos of a heroine with a voice like Cordelia’s may be murdered by an unholy conspiracy of saxophone and drum.

[10.135] Guitarists A man induced parents to send a child to him for guitar lessons. He sexually assaulted her. He did own a guitar but could not play it: R v The Queen (2003) 139 A Crim R 371 at 374-375 [17] – [18] (Qld CA). Even a successful American guitarist in the Foo Fighters should not ride a moped after drinking: Riordon v Grohl (2000) 33 MVR 145 (Qld CA). Never try to pass your guitar off as a Fender. You will be sued for a trade marks infringement: Fender Australia Pty Ltd v Bevk (trading as Guitar Crazy) (1989) 25 FCR 161; 89 ALR 89 (Burchett J). Don’t import drugs secreted in a guitar: Wai v The Queen (1995) 15 WAR 404; 126 FLR 281; 132 ALR 708; 82 A Crim R 402 (CCA); R v Kaldor (2004) 150 A Crim R 271 (NSW CCA).

[10.140] Singers It is rape for a singing master to have sexual intercourse with a girl pupil by persuading her that it was an accepted procedure for the improvement of breathing: R v Williams [1923] 1 KB 340; [1922] All ER Rep 433; 17 Cr App R 56 (CCA). The accused was the choirmaster at a Presbyterian chapel.

[10.145] Classical music Frank McKinney “Kin” Hubbard (1868–1930) said: “Classical music is the kind we keep hoping will turn into a tune.” In R v Pavlovski [1998] VSCA 70 (7 May 1998) (CA) Charles JA spoke of a cannabis production: The search uncovered an elaborate hydroponic arrangement … Classical music was being played to the plants in every room and they were showing their appreciation of Mozart by growing profusely.

Dick Van Dijk was sentenced to life imprisonment for importing cannabis resin. That was the only thing to prevent his being the tour manager for the Orchestra of the Eighteenth Century: Van Dijk v The Queen (1995) 82 A Crim R 68 (WA, Murray J). In W v Marsh (1983) 35 SASR 333; 12 A Crim R 90 (Johnston J) a young classical violinist tried to break into a shop using a crowbar. It was for a dare, he said. Trivial, said the judge.

[10.150]

JAZZ

849

John Philip Aitchison became a cathedral musician in England and on return to Australia an Anglican priest. Before all of that he was convicted of indecency with young boys: Aitchison v DPP (1996) 135 FLR 217; 90 A Crim R 448 (ACT, Higgins J). Thomas Beecham (1879–1961), the English conductor, was no fan of the harpsichord. At different times he described it “like two skeletons copulating on a corrugated tin roof” and “playing a birdcage with a toasting fork”. Beecham’s father and grandfather made their money from anti-constipation tablets. The selling motto was “Beechams pills make you REGULAR”.

[10.150] Popular music The first group of soul singer Sam Cooke (1931–1964) was Highway QC’s. Daryl Braithwaite made a late attempt to revive his career: Brenner v First Artists’ Management Pty Ltd [1993] 2 VR 221 (Byrne J). Charles Edward (Chuck) Berry (b 1926), the rock ’n’ roll pioneer, served three gaol terms. 1944–1947 (armed roberry), 1959–1963 (sex with a 14-year-old girl) and 1979, four months for tax evasion. The movie, Chuck Berry, Hail! Hail! Rock ’n’ Roll! (1987) contains personal history and the grand concert to celebrate his 60th birthday. In the movie he declined to answer questions about his convictions. James Joseph Brown (1933–2006) was known as the Godfather of Soul. For an armed robbery in 1949 he spent three years in a reform school. In 1988 he was convicted of drug, driving and firearm offences and assaulting police. He was sentenced to six years imprisonment but released after three years. He was charged over a number of domestic violence offences. In 2004 he forfeited a bond for the last of them but served no time. Douglas James (Jim) Morrison (1943–1971) was the lead singer of the Doors. In 1969 he removed his pants on stage, simulated masturbation and swore. A Florida court convicted him of indecent exposure and using profanity. He was sentenced to six months imprisonment and fined $500 but released pending appeal. The appeal had not been heard when he was found dead in the bath of his Paris apartment on 3 July 1971, apparently of a lethal mix of alcohol and drugs. Ageing pop stars are notorious for foibles. In 1999 Gary Glitter (Paul Francis Gadd b 8 May 1944) was sentenced to four months imprisonment for possession of child pornography. He was released after serving two months. In March 2006 he was convicted in Vietnam for obscene acts with two girls and sentenced to three years imprisonment. Boy George (George Alan O’Dowd b 14 June 1961) was convicted by jury verdict of strapping a male escort to his bed and assaulting him. He was sentenced to 15 months imprisonment but released on 11 May 2009 after serving four months. In 2002 Adam Ant (Stuart Leslie Goddard b 3 November 1954) pleaded guilty to having caused an affray in a London hotel. The sentence was one year’s community service because of his mental disorder. “Extraordinary how potent cheap music is”: Noël Coward (1899–1973) in Private Lives (1930). “The provisions of the Corporations Law that include s 553C are … drafted in the language of the pop songs”: Callaway JA in GM & AM Pearce v RGM Australia [1998] 4 VR 888 (CA) at 889. “Lawyers Guns and Money”: Title of a song (1978) by Warren Zevon (1947–2003). “Better Get a Lawyer Son”: Title of a song (1998) by The Cruel Sea. “Sex and Drugs and Rock and Roll”: 1977 song written and performed by Ian Dury (1942–2000).

850

ROSS ON CRIME

[10.155]

Sex and Thugs and Rock ’n’ Roll: 1996 book by Billy Thorpe (1946-2007) (Pan Macmillan).

[10.155] They gave up law for music George Frederick Handel (1685–1759). Sir William Schwenk (WS) Gilbert (1836–1911). Peter Ilich Tchaikovsky (1840–1893). Jean Sibelius (1865–1957). Al Dubin (1891–1945). Cole Albert Porter (1891–1964). Oscar Hammerstein II (1895–1960). Paul Robeson (1898–1976). Hoagland Howard (Hoagy) Carmichael (1899–1981). Leslie Hutchinson (1900–1969). Arthur Schwartz (1900–1984). Harry Lillis (Bing) Crosby (1903–1977). Woodward Maurice (Tex) Ritter (1905–1974). Ian Bryce Wallace (b 1919). Arturo (Chico) O’Farrill (1921–2001). Hildegard Behrens (1937–2009). Angelique Kidjo (b 1960). Joshua Redman (b 1969). Tomoko Ohno. Melissa Forbes. (Sikiru Ayinde Barrister, the African musician, had never been a lawyer).

[10.160] Ballads and musical instruments proscribed It can be an offence to sing. Legislation proscribes the singing in a public place of a song or ballad which is indecent, obscene or (in Tasmania and South Australia) profane. Qld: Criminal Code s 228(1)(c); Tas: Police Offences Act 1935 s 12(1)(b); NT: Summary Offences Act s 53(1)(a)(i); Vic: Summary Offences Act 1966 s 17(1)(a); SA: Summary Offences Act 1953 s 22(1). The temptation might be to try those suspect words and music in New South Wales, Australian Capital Territory or on Commonwealth land. Don’t chance it. In some places you can be charged for playing a musical instrument badly, and rightly so. It can offend (NT: Summary Offences Act s 76). In Victoria you can play what you like how you like provided it is not on a bus, tram or train.

[10.310]

JOINDER

851

In Western Australia a musical instrument is defined as the equivalent of a dredge (Environment Protection Act 1983 s 3). These laws would all be valid: Kruse v Johnson [1898] 2 QB 91; 19 Cox CC 103 (bench of seven). Approved often, for example Brunswick Corp v Stewart (1941) 65 CLR 88 per Williams J at 99.

[10.165] Raves In England, the Criminal Justice and Public Order Act 1994 s 63 allows raves to be stopped. Section 63(1)(G) carries the following provision: “music” includes sounds wholly or predominately characterised by the emission of a succession of repetitive beats.

JOINDER Introduction ................................................................................................................................. Legislation: Joinder of counts .................................................................................................... Trivial charges not to be joined ................................................................................................. Prosecutor’s duty in joining charges .......................................................................................... Defence duty if objection to joinder .......................................................................................... Court’s rules on joinder .............................................................................................................. Interpretation of the legislation .................................................................................................. Joinder of counts against one accused ....................................................................................... Joinder of accused ...................................................................................................................... Appeal .........................................................................................................................................

[10.300] [10.305] [10.310] [10.315] [10.320] [10.325] [10.330] [10.335] [10.340] [10.345]

[10.300] Introduction Joinder has two separate meanings: 1. When an indictment contains more than one count each for a separate offence, the counts are said to be joined. 2. Where more than one accused is charged on the same indictment, the accused are said to be joined. Their trial is a joint trial.

[10.305] Legislation: Joinder of counts Cth: Crimes Act 1914 s 4K(3); Qld: Criminal Code s 567(2); Justices Act 1886 s 43(1)(G); WA: Criminal Procedure Act 2004 Sch 1 cl 9; Criminal Procedure Act 2004 Sch 1 cl 7(3); Tas: Criminal Code s 311(2); Justices Act 1959 s 29(1); NT: Criminal Code s 309(1); Justices Act s 51(1); NSW: Criminal Procedure Act 1986 s 29; Vic: Criminal Procedure Act 2009 s 170, Sch 1 cl 5; SA: Criminal Law Consolidation Act 1935 s 278; Summary Procedure Act 1921 s 51(1); ACT: Crimes Act 1900 s 434B; NZ: Crimes Act 1961 s 340; Eng: Indictments Act 1915; Indictment Rules r 9.

[10.310] Trivial charges not to be joined Where the prosecution allegation is that in one episode the accused committed one serious act and some minor ones, the serious act only should be charged.

852

ROSS ON CRIME

[10.315]

In DPP v Merriman [1973] AC 584; [1972] 3 All ER 42; (1972) 56 Cr App R 766 (HL) Lord Morris said (at 607; 47; 776): [I]t will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must, of course, depend on the circumstances.

In R v Morrow and Flynn [1991] 2 Qd R 309; (1990) 48 A Crim R 232 (CCA) Connolly J, giving the judgment of the court, said (at 312; 235): It is obvious that a knifing attack by one man who delivers a number of blows may properly be charged as a series of woundings but one must ask oneself whether this would be an application of common sense in terms of Lord Morris’s speech. For my part I see no objection to charging the incident as one offence, provided always that it is clear what the offender is charged with. Similarly, a series of penetrations by the same offender in the course of one sexual attack need not, in my judgment, be the subject of separate counts so long as they are seen to be separate and distinct in time or circumstance. The first penetration may be interrupted by the victim’s struggles or by a momentary apprehension of detection. It would of course be open in strict point of law to charge each penetration as a separate offence but scarcely consistent with the robust approach suggested by Lord Morris. In such a case I see no objection to charging one count of rape. On an indictment for attempted murder it may be proved that the prisoner knifed the victim two or three times and then pursued him down the street knife in hand. Technically the Crown could charge each knifing and pursuit as separate offences of attempted murder. There can however be no objection to charging the whole episode as an attempted murder and indeed one has known this to be done.

In R v Harris [1969] 3 WLR 745; [1969] 2 All ER 599; 53 Cr App R 376 it was held that a separate count of indecent assault should not have been joined with a count of buggery where they were both arising from the same incident to the same complainant. In R v Ambrose (1973) 57 Cr App R 538 Lawton LJ said (at 540): When the court inquired of counsel why a triviality of this kind got into the indictment, the court was informed that it was thought right to deal with the matter as there was evidence relating to it. The court wishes it to be clearly understood that those who draft indictments should use common sense and should not put into indictments charges which are of such a trivial nature. Not only is it unfair, but it also tends to impede the doing of justice on more important aspects of an indictment. The language of ordinary people in this country sums up this kind of situation. The ordinary man does not like, as he puts it, the book being thrown at someone, or to use the other phrase which is in common use, everything being thrown at an accused person except the kitchen sink. The ordinary man is right: it is not fair.

Approved: R v Siugzdinis (1984) 32 NTR 1; 81 FLR 360; 15 A Crim R 136 at 12; 370; 147 (Muirhead J).

[10.315] Prosecutor’s duty in joining charges In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684 McHugh, Gummow and Hayne JJ said (at 620–621; 691; 380 [30]): The decision about what charges should be laid and prosecuted is for the prosecution. Ordinarily, prosecuting authorities will seek to ensure that all offences that are to be charged as arising out of one event or series of events are preferred and dealt with at the one time. Nothing we say should be understood as detracting from that practice or from the equally important proposition that prosecuting authorities should not multiply charges unnecessarily.

[10.320] Defence duty if objection to joinder If the defence wishes to object to the joinder of counts in the indictment, that objection should be taken before or at the trial: Dearnley v The King [1947] St R Qd 51; (1947) 41 QJPR 71 (CCA) per EA Douglas J at 59.

[10.330]

JOINDER

853

In R v Collins [1996] 1 Qd R 631; 76 A Crim R 204 (CA) McPherson JA and Lee J said of the Queensland (at 637; 209): Generally speaking, the proper remedy for an accused who alleges improper joinder and wishes to challenge the form of the indictment is to move the court before pleading for the indictment to be quashed on the ground of formal defect: s 596; R v Pugh [1971] Qd R 249.

[10.325] Court’s rules on joinder A court can make its own rules on joinder. In R v Assim [1966] 2 QB 249; [1966] 2 All ER 881; 50 Cr App R 224 (CCA: a five member court) Sachs J, delivering the judgment of the court, said (at 258; 8886; 233): [Q]uestions of joinder, be they of offences or offenders, are matters of practice on which the court has, unless restrained by statute, inherent power to formulate its own rules and to vary them in the light of current experience and the needs of justice.

Approved: Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198; 27 A Crim R 103 (CA) per McHugh JA (at 213; 117); R v Crawford [1989] 2 Qd R 443; 36 A Crim R 182 (CCA) per Matthews J (at 446; 184).

[10.330] Interpretation of the legislation “series” A series can be constituted by two offences. In R v Kray [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569 Widgery LJ said (at 130; 944; 574): It may be true that the word “series” is not wholly apt to describe less than three components, but so to limit its meaning in the present context would produce the perverse result that whereas three murders could be charged in the same indictment, two could not. The construction of the rule has not been restricted in this way in practice during the 50 years which have followed the passage of the Act and it is too late now to take a different view.

Approved: Ludlow v Metropolitan Police Commissioner [1971] AC 29; [1970] 1 All ER 567; (1970) 54 Cr App R 233 (HL); R v Anderson (1973) 5 SASR 256 (CCA) per Bray CJ at 265; De Jesus v The Queen (1986) 61 ALJR 1; 22 A Crim R 375; 68 ALR 1 per Dawson J (at 9; 15; 389). In De Jesus v The Queen (1986) 61 ALJR 1; 22 A Crim R 375; 68 ALR 1 Dawson J said (at 9; 15; 389): (I)t is clear enough that, by requiring a series of offences, the section does not countenance the joinder of counts charging offences which are legally the same or similar in character but which in their factual setting are disparate. What is required is a sufficient correlation to enable the offences to be described as a “series” without straining the word beyond the meaning which it is reasonably capable of bearing.

DPP v Lamb [2015] VSCA 307. Other cases Smith v The Queen (2007) 35 WAR 201; 213 FLR 12; 175 A Crim R 528 (CA); Grakalic v The Queen (2002) 27 WAR 19; 130 A Crim R 219 at [10] (CCA);

854

ROSS ON CRIME

[10.335]

Zammit v Western Australia (2007) 34 WAR 302; 170 A Crim R 324 at [24] – [33] (CA).

“founded on the same facts” In R v Barrell and Wilson (1979) 69 Cr App R 250 Shaw LJ said (at 252–253): The phrase “founded on the same facts” does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin.

Approved: Zammit v Western Australia (2007) 34 WAR 302; 170 A Crim R 324 at [35] (CA); R v Reid [1999] 2 VR 605; (1999) 152 FLR 26 at 621, 76 [164] (CA); R v Collins [1996] 1 Qd R 631; 76 A Crim R 204 at 637, 208 (CA); R v Hofschuster (1992) 110 FLR 385; 65 A Crim R 167 at 392, 174 (NT, Mildren J); R v Cranston [1988] 1 Qd R 159 at 162 (CCA); Beck v The Queen [1984] WAR 127 at 139 (CCA).

[10.335] Joinder of counts against one accused The potential for prejudice In Castro v The Queen (1881) 6 App Cas 229 (HL) Lord Blackburn said (of joinder) (at 244): [I]t was frequently not fair to do it, because it might embarrass a man in the trial if he was accused of several things at once, and frequently the mere fact of accusing him of several things, was supposed to tend to increase the probability of his being found guilty, as it amounted to giving evidence of bad character against him.

Approved: R v Southern (1930) 22 Cr App R 6 at 9. Referred to: De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1; 22 A Crim R 375 per Dawson J (at 9; 14; 388); BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101 per McHugh J (at 308; 124; 425). The fact that Lord Blackburn in Castro was concerned with an indictment containing felonies does not diminish its force for that reason alone. R v Rajacic [1973] VR 636 (FC) per Smith ACJ at 640. R v Quinn (1991) 55 A Crim R 435 (NSW CCA) at 438ff. In DPP v Boardman [1975] AC 421; [1974] 3 All ER 887; 60 Cr App R 165 (HL) Lord Cross said (at 459; 911; 186–187): If the charges are tried together it is inevitable that the jurors will be influenced, consciously or unconsciously, by the fact that the accused is being charged not with a single offence against one person but with three separate offences against three persons. It is said, I knew, that to order separate trials in all these cases would be highly inconvenient. If and so far as this is true it is a reason for doubting the wisdom of the general rule excluding similar fact evidence. But so long as there is that general rule the courts ought to strive to give effect to it loyally and not, while paying lip service to it, in effect let in the admissible evidence by trying the charges together.

[10.335]

JOINDER

855

Approved: Sutton v The Queen (1984) 152 CLR 528; 51 ALR 435; 11 A Crim R 331 per Gibbs CJ (at 531; 437; 333); Pfennig v The Queen (1995) 182 CLR 461; 77 A Crim R 149; 127 ALR 99 per McHugh J (at 530; 148; 202).

“same or similar character” In R v Kray [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569 (CACrD) Widgery LJ said (at 130–131; 944; 574): [O]ffences cannot be regarded as of a similar character for the purposes of joinder unless some suffıcient nexus exists between them. Such nexus is certainly established if the offences are so connected that evidence of one would be admissible on the trial of the other, but it is clear that the rule is not restricted to such cases.

(Emphasis added.) (as to nexus see Appendix B – Latin at [28.1100].) In Ludlow v Metropolitan Police Commissioner [1971] AC 29; [1970] 1 All ER 567; (1970) 54 Cr App R 233 (HL) Lord Pearson said (at 39; 573; 242): I think the proper conclusion to be drawn from the judgments as a whole is that both the law and the facts have been and should be taken into account in deciding whether offences are similar or dissimilar in character. In my opinion, however, it is important to notice that there has to be a series of offences of a similar character. For this purpose there has to be some nexus between the offences … Nexus is a feature of similarity which in all the circumstances of the case enables the offences to be described as a series.

In De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1; 22 A Crim R 375 Dawson J (at 9; 15; 389) described Lord Pearson’s last sentence as containing “an element of circumlocution”. His Honour said earlier: (A)s a matter of construction the requirement in my view refers more to the legal character or components of the offences than to the facts alleged by the prosecution in the particular instance. Thus the offences of rape are of the same kind and other offences of a sexual character, such as indecent assault, may be offences of a similar kind to rape.

Sexual cases In De Jesus v The Queen (1986) 61 ALJR 1; 68 ALR 1; 22 A Crim R 375 Gibbs CJ said (at 3; 4–5): Sexual cases, however, are peculiarly likely to arouse prejudice, against which a direction to the jury is unlikely to guard.

Dawson J said (at 10; 16): But as a rule sexual offences form a special class of offences which should be tried separately except where the evidence on one count is admissible on another count.

In Hoch v The Queen (1988) 165 CLR 292; 35 A Crim R 47; 81 ALR 225 the accused had been convicted of three joined counts of indecent dealing with three separate boys on separate occasions. Two of the victims were brothers and one victim at least bore antipathy to the accused before the alleged offences. The High Court struck down the convictions and entered verdicts of acquittal. The professed reason was the real chance that the victims had concocted their stories. But as to the joinder of the counts, Brennan and Dawson JJ said in a joint judgment (at 298; 229; 51):

856

ROSS ON CRIME

[10.335]

It does not necessarily follow that, because counts are properly joined in one indictment, the trial on each count should not be severed from the others. If the evidence admissible on each count is not admissible on the other counts and there is a consequent risk of impermissible prejudice to an accused in the conduct of a single trial on all counts – and there usually is such a risk in sexual cases – separate trials should be ordered.

In R v Jolly [1998] 4 VR 495 (CA) Kenny JA, delivering the leading judgment said (at 501): [T]he evidence on count 1 was part of the narrative required to give context to the incident which constituted count 2. The incident constituting count 1 provided evidence of the circumstances in which the incident constituting count 2 was said to occur. The first incident was capable of being seen by the jury as indicative of some unhealthy sexual interest on the applicant’s part in the complainant on the evening in question. Accordingly, leaving aside the question of the photographs, the evidence on count 1 was, in my view, admissible on count 2 and the question of separate trials did not arise.

Murder charges: one accused, several counts In Packett v The King (1937) 58 CLR 190 there were two counts of murder arising from one incident. The High Court held that the joinder was proper. In R v Bazley (1986) 21 A Crim R 19 (Vic CCA) the joined counts held to be proper were conspiracy to murder, theft and two counts of murder. In Weissensteiner v The Queen (1993) 178 CLR 217; 117 ALR 545; 68 A Crim R 251 the accused was held properly convicted of the murder of two people whose bodies were never found. In R v Folbigg (2005) 152 A Crim R 35 (NSW CCA) a mother was found guilty of the murder of three of her children and manslaughter of a fourth. Held: (at 78–82 [145] – [160]) the joinder was proper.

Cross-admissibility Courts have held that there should be joinder when the evidence is cross-admissible. There is often joinder for that reason in sexual cases. But the joinder is not proper where there is a risk of a jury’s impermissible propensity reasoning: R v CHS (2006) 159 A Crim R 560 (Vic CA). In DPP v P [1991] 2 AC 447; [1991] 3 All ER 337; (1991) 93 Cr App R 267 (HL) Lord Mackay of Clashfern LC delivered the judgment with whom the others agreed. His Lordship said (at 462; 348; 280): [T]he judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it, notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include “striking similarity” in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application of the principle.

[10.345]

JOINDER

857

In R v Mayfield (1995) 63 SASR 576; 80 A Crim R 294 (CCA) Cox J said (at 578; 296): Where the evidence on the different counts is cross-admissible, so that the evidence relating to all counts would be admissible on a trial of any one of them, the accused will not be able to show any relevant prejudice or embarrassment.

In Cookson v The Queen (1989) 45 A Crim R 121 (WA CCA) the accused had been convicted of counts of stealing as a servant and of armed robbery. The prosecution case was that he stole $4,200 from his employer and that two days later committed an armed robbery to reimburse that employer. The stealing provided a motive for the armed robbery and hence all the evidence was admissible on both counts. See also R v Papamitrou (2004) 7 VR 375 at 387–391 [26] – [32] (CA); R v Liddy (2002) 81 SASR 22 at 136–140 [494] – [506] (CCA); R v GAE (2000) 1 VR 198; 109 A Crim R 419 (CA); R v Smith (1998) 71 SASR 543; 104 A Crim R 1 (CCA); David Ross QC, “Joinder of Counts Against One Accused” (2004) 9 Deakin L Rev 197-212. Indictment at [9.1800]; Separate trials at [19.2400]; and Severance at [19.2600].

[10.340] Joinder of accused Legislation Qld: Criminal Code s 568(7)–(9); WA: Criminal Procedure Act 2004 Sch 1 cl 9 (joinder); s 133 (separate trials); Tas: Criminal Code s 330; NT: Criminal Code s 308; Vic: Criminal Procedure Act 2009 s 193–195; SA: Criminal Law Consolidation Act 1935 s 279 (joinder of accessaries); ACT: Crimes Act 1900 s 270 (separate trial provision).

[10.345] Appeal In Western Australia each party can appeal against the joinder or separate trial of accused: Criminal Appeals Act 2004 s 26; Western Australia v Bowen (2006) 32 WAR 81 (CA). In New South Wales and Victoria parties have the right to appeal against an interlocutory order: Criminal Appeal Act 1912 s 5F; Criminal Procedure Act 2009 s 295. Common law (New South Wales, Victoria, South Australia and Australian Capital Territory). In R v Assim [1966] 2 QB 249; [1966] 2 All ER 881; 50 Cr App R 224 (CCA) Sachs J, giving the judgment of the court, said (at 258; 886; 233): Questions of joinder, be they of offences or offenders, are matters of practice on which the court has, unless restrained by statute, inherent power to formulate its own rules and to vary them in the light of current experience and the needs of justice.

In R v Hogan (1990) 159 LSJS 297 Mullighan J ruled (at 306): Justification for the joinder of the accused … must be found in the common law or, as is sometimes said, in the established practice of the court.

858

ROSS ON CRIME

[10.345]

Followed: R v Smith and Turner (1994) 63 SASR 123 at 135 (ruling of Perry J). In R v Domokos (2005) 92 SASR 258 (CCA) Doyle CJ, with whom the others agreed, referred to R v Collie (1991) 56 SASR 302; 55 A Crim R 139 (CCA) at 307–310 (SASR) per King CJ then said (at 275 [98]): In short, even if the decision to refuse to separate the trials is considered to be correct when made, it is nevertheless possible that in all the circumstances the joint trial might give rise to a miscarriage of justice.

Principles of joinder of accused In R v Assim [1966] 2 QB 249; [1966] 2 All ER 881; 50 Cr App R 224 (CCA) Sachs J, giving the judgment of the court, said (at 261; 887; 236): Where, however, the matters which constitute the individual offences of the several offenders are upon the available evidence so related, whether in time or by other factors, that the interests of justice are best served by their being tried together, they can properly be the subjects of counts in the one indictment and can, subject always to the discretion of the court, be tried together. Such a rule, of course, includes cases where there is evidence that several accused acted in concert, but it is not limited to such cases.

Approved: R v Crawford [1989] 2 Qd R 443; 36 A Crim R 182 at 446 (Qd R) (CCA) and later in South Australia by Mullighan J in R v Hogan (1990) 159 LSJS 297 at 302; and by Perry J in two rulings: R v Trotter, Sutherland and Jordan (1992) 60 A Crim R 1 at 3, and R v Smith and Turner (1994) 63 SASR 123 at 136 and in New South Wales: R v ITA (2003) 139 A Crim R 340 at 252 [78] – [79] (NSW CCA).

There must be at least one common feature In R v Leslie (1989) 39 A Crim R 105 (Qld CCA), Mr Leslie was jointly tried with Mr Taylor. In a fight at a nightclub, they had fought each other. When people tried to intervene, Mr Leslie glassed one victim and Mr Taylor bit the finger of another. They were not alleged to be acting in concert. The appeal was allowed. Kneipp J, giving the judgment of the court, said (at 109): [I]n general, a joinder will be authorised if there is at least one common factum probans, or if there is a concurrence of a substantial number of circumstances even though there might not, strictly speaking, be any common factum probans.

Public interest in joinder of accused In R v Demirok [1976] VR 244 (CCA) matters of public interest in joinder were held to be: 1. Court time and public expense; 2. The risk of inconsistent verdicts with a separate trial; 3. Expedition; 4. Convenience of witnesses.

The court said, in a joint judgment, (at 254): The matters of public interest which must be considered in this case, and all such cases, may be summarised as follows. In the first place, there is the question of the administrative matters of court time spent and public expense incurred if more than one trial is to be conducted. These matters will in many cases not be of very great weight, in others they may assume real significance. Secondly, it is against the interests of justice that there should be inconsistent

[10.345]

JOINDER

859

verdicts, and those interests require that where the accounts of accused persons differ or conflict their differences should be resolved by the same jury at the same trial. Thirdly, and allied with the first two considerations, it has always been the policy of the law to reach finality as expeditiously as possible; and no system could function if it permitted the repeated retrial of the same issues except in situations where the concept of justice so required. Fourthly, the convenience of witnesses must be considered. The lot of a witness in a criminal trial is not a happy one, and unless for good reason, witnesses should not be required to give evidence of the same events at a succession of trials.

Approved: Webb v The Queen (1994) 181 CLR 41; 73 A Crim R 258; 122 ALR 41; [1994] HCA 63 per Toohey J (at 89; 76; 293) with whom Mason CJ and McHugh J agreed.

Murder charges: several accused and several counts Different accused have been jointly convicted of murders of different victims and the joinder both of the counts and accused has been held proper. R v Kray [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569; Miller v The Queen (1980) 55 ALJR 23; 32 ALR 321 (the Truro murders); R v Wright and Haigh [1983] 1 VR 65; (1981) 4 A Crim R 158 (CCA);

Cut throat defence It sometimes happens in a joint trial that each accused will exonerate himself and implicate the other accused. That form of defence has been called cut throat. In R v Varley [1982] 2 All ER 519; 75 Cr App R 242 (CA) Kilner Brown J, delivering the judgment of the court, said (at 522; 246): The truth of the matter is that this was a case where two experienced criminals metaphorically cut each other’s throats in the course of their respective defences.

Good examples of where each accused blamed the other are: Lowery v The Queen [1974] AC 85; [1973] 3 All ER 662; 58 Cr App R 35 (PC) on appeal from R v Lowery and King (No 3) [1972] VR 939 (CCA); Bannon v The Queen (1995) 185 CLR 1; 132 ALR 87; 83 A Crim R 370; R v Randall [2004] 1 WLR 56; [2004] 1 All ER 467; [2004] 1 Cr App R 375 (HL). As to separate trials on a cut throat defence: In R v Ignjatic (1993) 68 A Crim R 333 (NSW CCA) Hunt CJ at CL said (at 339): [T]he mere existence of cut throat defences is no longer a basis for supporting a joint trial … But that does not mean that the mere existence of cut throat defences has become a basis for rejecting a joint trial.

In Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258 Toohey J, with whom Mason CJ and McHugh J agreed, said (at 89; 76; 293): [C]onsideration by the jury at the same trial is likely to avoid inconsistent verdicts, particularly when each accused tries to cast the blame on the other or others.

Other defences: duress and alibi The defences of duress and alibi do not of themselves entitle a trial separate from a co-accused.

860

ROSS ON CRIME

[10.500]

In R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 (CCA) the court said, in a joint judgment, (at 163; 393): The fact that one accused alleges he was coerced by the other so far from being a reason for separating the trials will generally be a reason for separating the trials will generally be a reason for adhering to a joint trial. Nor is the fact that one accused raises an alibi a reason of itself for severance.

See also Indictment at [9.1800]; Separate trials at [19.2400]; and Severance at [19.2600].

JOINT ENTERPRISE The terms .................................................................................................................................... Prosecution purpose .................................................................................................................... Example ....................................................................................................................................... Legislation ................................................................................................................................... Description .................................................................................................................................. The test ........................................................................................................................................ Mere foresight is not enough ..................................................................................................... Extended common purpose ........................................................................................................ In company .................................................................................................................................. Differs from conspiracy and accessory ...................................................................................... Joint trial ..................................................................................................................................... Directions .................................................................................................................................... Withdrawal .................................................................................................................................. Writing ......................................................................................................................................... Other references ..........................................................................................................................

[10.500] [10.505] [10.510] [10.515] [10.520] [10.525] [10.530] [10.535] [10.540] [10.545] [10.550] [10.555] [10.557] [10.560] [10.565]

[10.500] The terms In McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 Brennan CJ, Deane, Dawson, Toohey and Gummow JJ said (at 113; 29–30; 232): Those terms – common purpose, common design, concert, joint criminal enterprise – are used more or less interchangeably to invoke the doctrine which provides a means, often an additional means, of establishing the complicity of a secondary party in the commission of a crime.

[10.505] Prosecution purpose In R v Tangye (1997) 92 A Crim R 545 (NSW CCA) Hunt CJ at CL said (at 556): The Crown needs to rely upon a straightforward joint criminal enterprise only where … it cannot establish beyond reasonable doubt that the accused was the person who physically committed the offence charged. It needs to rely upon the extended concept of joint criminal enterprise, based upon common purpose, only where the offence charged is not the same as the enterprise agreed. This Court has been making that point for years, and it is a pity that in many trials no heed is taken of what has been said.

In R v Jacobs (2004) 151 A Crim R 452 (NSW CCA) Wood CJ at CL, with whom the others agreed, said (at 478 [145]): Tangye (1997) 92 A Crim R 545 is not authority for the proposition that the doctrine of common purpose cannot be relied upon to extend culpability arising from a joint criminal enterprise to commit crime A to include crime B, where crime B was within the contemplation of the accused as a possible incident in the execution of their agreed joint criminal enterprise. Indeed, it recognises that, in a suitable case, it is entirely appropriate and permissible for the Crown to rely on extended joint criminal enterprise. There is, in any event, abundant authority to show that this is so: see for example McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26; R v Sharah (1992) 30 NSWLR 292; 63 A Crim R 361 and R v Kyriakou (1987) 29 A Crim R 50. There is

[10.520]

JOINT ENTERPRISE

861

nothing in the statement of the relevant principle by the High Court in Gillard v The Queen (2003) 139 A Crim R 100 at [109] – [112] to require any variation in this approach.

[10.510] Example In R v Taufahema (2007) 228 CLR 232; 81 ALJR 800; 168 A Crim R 95; 234 ALR 1 Gummow, Hayne, Heydon and Crennan JJ said (at [46]): The prosecution put its case in two ways at the trial. It opened the case to the jury by saying that the accused was party to a joint criminal enterprise, namely one involving the use of a firearm to prevent the lawful arrest of the men in the car by the police. But the prosecution case by the end of the trial as put by prosecution counsel to the jury and as explained in the trial judge’s summing up was that there was a joint enterprise to evade arrest, involving the shooting of a policy officer as a foreseen possibility.

[10.515] Legislation Legislation in some jurisdictions refers to two or more persons forming a common intention to prosecute an unlawful purpose in conjunction, and committing the contemplated crime. Qld: Criminal Code s 8; WA: Criminal Code s 8; Tas: Criminal Code s 4; NT: Criminal Code s 8; NZ: Crimes Act 1961 s 66(2).

[10.520] Description In R v Jacobs (2004) 151 A Crim R 452 (NSW CCA) Wood CJ at CL, with whom the others agreed, said (at 479 [156]): [A] joint criminal enterprise need not be pre-planned. It can develop and be formed instantaneously.

In Gillard v The Queen (2003) 219 CLR 1; 202 ALR 202; 139 A Crim R 100 Hayne J with whom Gleeson CJ, Gummow and Callinan JJ agreed, said (at 35–36; 226–227; 126–127 [110] – [112]): In its simplest application, the doctrine of joint criminal enterprise means that, if a person reaches an understanding or arrangement amounting to an agreement with another or others that they will commit a crime, and one or other of the parties to the arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, all are equally guilty of the crime regardless of the part played by each in its commission. The doctrine has further application. It is not confined in its operation to the specific crime which the parties to the agreement intended should be committed. “[E]ach of the parties to the arrangement or understanding is guilty of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose”. The scope of the common purpose is to be determined subjectively: by what was contemplated by the parties sharing that purpose. And “[w]hatever is comprehended by the understanding or arrangement, expressly or tacitly, is necessarily within the contemplation of the parties to the understanding or arrangement”. As McAuliffe (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 reveals, the contemplation of a party to a joint enterprise includes what that party foresees as a possible incident of the venture. If the party foresees that another crime might be committed and continues to participate in the venture, that party is a party to the commission of that other, incidental, crime even if the party did not agree to its being committed. In such a case, as was said in McAuliffe (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26, “the prosecution must prove that the individual concerned foresaw

862

ROSS ON CRIME

[10.525]

that the incidental crime might be committed and cannot rely upon the existence of the common purpose as establishing that state of mind”. To hold the individual liable for the commission of the incidental crime, when its commission is foreseen but not agreed, accords with the general principle that “a person who intentionally assists in the commission of a crime or encourages its commission may be convicted as a party to it”. The criminal culpability lies in the participation in the joint criminal enterprise with the necessary foresight. [The extensive footnote references to McAuliffe (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 are omitted]

In Huynh v The Queen [2013] HCA 6, the Court, at [37]-[39] stated: Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy [22]. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution[23]. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen [24]. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution. A person participates in a joint criminal enterprise by being present when the crime is committed pursuant to the agreement.

[10.525] The test In Clayton v The Queen (2006) 81 ALJR 439; 231 ALR 500; 168 A Crim R 174 six of the seven justices said in a joint judgment (at 443; 504–505; 178–179 [17]): A person who does not intend the death of the victim, but does intend to do really serious injury to the victim, will be guilty of murder if the victim dies. If a party to a joint criminal enterprise foresees the possibility that another might be assaulted with intention to kill or cause really serious injury to that person, and, despite that foresight, continues to participate in the venture, the criminal culpability lies in the continued participation in the joint enterprise with the necessary foresight. That the participant does not wish or intend that the victim be killed is of no greater significance than the observation that the person committing the assault need not wish or intend that result, yet be guilty of the crime of murder.

[In R v Taufahema (2007) 228 CLR 232; 81 ALJR 800; 168 A Crim R 95; 234 ALR 1 the High Court declined to re-examine what it said in earlier cases on extended common purpose.] In R v Rahman [2007] 1 WLR 2191; [2007] 3 All ER 396; [2007] 2 Cr App R 209 (CA) the court set out a test for whether a person who did not perform the main act was acting jointly with the principal. Hooper J, giving the judgment of the court, said (at 2203; 410; 225 [53] – [54]): We use P to describe the killer, in this case the “knifeman”, who is guilty of murder. We use V to describe the victim. We use D to describe a defendant other than P who has participated in the attack and falls within one of the categories set at [22], above, namely he realised that one of the attackers, with intent to cause V really serious bodily harm, might kill him, or he intended that such harm would be caused to V, or he realised that one of the attackers might cause such harm to V intending to cause him such harm. 1. What was P’s act which caused the death of V? (Eg stabbing, shooting, kicking, beating). 2. Did D realise that one of the attackers might do this act? If yes, guilty of murder. If no, go to the next question. 3. What act or acts did D realise that one of the attackers might do to cause V really serious injury?

[10.540]

JOINT ENTERPRISE

863

4. Is this act or are these acts which D did realise that one of the attackers might do, of a fundamentally different nature to P’s act which caused the death of V? If yes, not guilty of murder. If no, guilty of murder. We have used the word “realise” rather than “foresee” but they mean the same thing in this context. Either could be used.

In R v Rahman [2009] 1 AC 129; [2008] 4 All ER 351; [2009] 1 Cr App R 1 (HL) their Lordships dismissed an appeal against conviction and approved the above decision of the Court of Appeal.

[10.530] Mere foresight is not enough In Hui Chi-Ming v The Queen [1992] 1 AC 34; [1991] 3 All ER 897; (1991) 94 Cr App R 236 (PC) Lord Lowry, giving the advice of the Board, said (at 53; 910; 237): [M]ere foresight is not enough: the accessory, in order to be guilty, must have foreseen the relevant offence which the principal may commit as a possible incident of the common unlawful enterprise and must, with such foresight, still have participated in the enterprise.

Approved: McAuliffe v The Queen (1995) 183 CLR 108; 79 A Crim R 229; 130 ALR 26 in a joint judgement (at 117; 32; 235); R v Sharah (1992) 30 NSWLR 292 at 303; 63 A Crim R 361 at 372 (CCA); Nguyen v The Queen (2007) 180 A Crim R 267 at 285 [101] (NSW CCA).

[10.535] Extended common purpose In R v Iliovski (2002) 135 A Crim R 117 (Vic CA) Callaway JA, with whom the others agreed, referred to McAuliffe and then said (at 124 [22]): [A] party may be guilty of a crime which falls outside the scope of the common purpose if he or she contemplated as a possibility the commission of that offence by one of the other parties in the carrying out of the enterprise and continued to participate in the venture with that knowledge. For convenience, I shall refer to that aspect as “extended common purpose”. Such precision is desirable in this judgment partly because … the terminology varies from State to State and there is a certain amount of imprecision and overlap in the terms that are used. See eg R v Phan (2001) 53 NSWLR 480 at 485 [64]; 123 A Crim R 30 at 45 [64] per Wood CJ at CL and R v Lao (2002) 5 VR 129 at fn 98 per Eames JA.

See also R v Hartwick (2005) 159 A Crim R 1 at 17–19 [29] – [34] (Vic CA). The Supreme Court of the United Kingdom in R v Jogee; Ruddock v The Queen [2016] UKSC 8; [2016] UKPC 7 stated that the test for extended joint enterprise (focusing on mere foresight of harm) was too wide and it is unsatisfactory that the mental state necessary for a secondary party should be easier to establish than for a principal party.

[10.540] In company The phrase “in company” was interpreted in R v Button (2002) 54 NSWLR 455; 129 A Crim R 242 (CCA) per Kirby J at 465; 273 [121] – [122]. That interpretation was approved in R v ITA (2003) 139 A Crim R 340 at 393 [137] (NSW CCA). In Western Australia v Dick (2006) 161 A Crim R 271 (WA, Johnson J) his Honour examined authority and said (at 279 [37]): … I consider the scope of the expression “in company” to be confined to offences committed by two or more offenders where, pursuant to the common purpose, the second offender is either

864

ROSS ON CRIME

[10.545]

present at the scene confronting the victim, irrespective of whether he intends to participate in the actual commission of the offence, or in sufficient proximity to embolden and reassure the main offender by being prepared to assist and participate, if necessary.

See also Concert at [3.5100] and Robbery at [18.3800].

[10.545] Differs from conspiracy and accessory In Truong v The Queen (2004) 223 CLR 122; 205 ALR 72 Hayne J said (at 185–186; 117 [190] – [191]): Where two offenders agree to commit an offence, and that offence is later committed, it is possible to describe the criminality of their conduct both as the offence of conspiracy and the substantive offence committed. And where two offenders act in concert in pursuit of a common criminal design each may be found guilty of the offence that has been committed even if it is shown that each participated in its commission in some different way. And again, persons may be guilty of an offence as an accessory before the fact or as a principal in the second degree who, being present at the scene of a crime, aids or abets its commission. The establishment of each of these different forms of criminal responsibility will require proof of the particular elements which go to establish that responsibility. The elements of a charge of conspiracy differ from the elements to be established in proving joint criminal enterprise. The elements of each of those offences differ from what must be established to make out a case that an accused person was an accessory before the fact or a principal in the second degree.

[10.550] Joint trial Persons accused of a joint criminal enterprise are usually tried together. In Lobban v The Queen [1995] 1 WLR 877; [1995] 2 All ER 602; [1995] 2 Cr App R 573 (PC) Lord Steyn giving the advice of the Board said (at 884; 608; 580): It is established practice that, subject to a judge’s discretion to order separate trials in the interests of justice, those who are charged with an offence allegedly committed in a joint criminal enterprise should generally be tried in a joint trial.

[10.555] Directions In R v Tangye (1997) 92 A Crim R 545 (NSW CCA) Hunt CJ at CL said (at 556–557): So far as a straightforward joint criminal enterprise is concerned, the jury should be directed along these lines: (1) The law is that, where two or more persons carry out a joint criminal enterprise, each is responsible for the acts of the other or others in carrying out that enterprise. The Crown must establish both the existence of that joint criminal enterprise and the participation in it by the accused. (2) A joint criminal enterprise exists where two or more persons reach an understanding or arrangement amounting to an agreement between them that they will commit a crime. The understanding or arrangement need not be express, and its existence may be inferred from all the circumstances. It need not have been reached at any time before the crime is committed. The circumstances in which two or more persons are participating together in the commission of a particular crime may themselves establish an unspoken understanding or arrangement amounting to an agreement formed between them then and there to commit that crime. (3) A person participates in that joint criminal enterprise either by committing the agreed crime itself or simply by being present at the time when the crime is committed, and (with knowledge that the crime is to be or is being committed) by intentionally assisting or encouraging another participant in the joint criminal enterprise to commit that crime.

[10.700]

JONES V DUNKEL

865

The presence of that person at the time when the crime is committed and a readiness to give aid if required is sufficient to amount to an encouragement to the other participant in the joint criminal enterprise to commit the crime. (4) If the agreed crime is committed by one or other of the participants in that joint criminal enterprise, all of the participants in that enterprise are equally guilty of the crime regardless of the part played by each in its commission.

Approved: Osland v The Queen (1998) 197 CLR 316; 159 ALR 170 at 343; 190 [73] per McHugh J; R v Kostic (2004) 151 A Crim R 10 at 21 [53] (SA CCA).

[10.557] Withdrawal For a discussion of circumstances in which an accused can effectively withdraw from a criminal enterprise, see Miller v Miller [2011] HCA 9.

[10.560] Writing Richard Buxton “Joint Enterprise” [2009] Crim LR 233–243.

[10.565] Other references See also Common purpose at [3.3500]; Concert at [3.5100]; and Murder (Common purpose manslaughter) at [13.3765].

JONES V DUNKEL The rule ....................................................................................................................................... A witness in the camp of a party ............................................................................................... The rule applies in criminal proceedings ................................................................................... The Ferrcom principle ................................................................................................................ The rule does not absolve a prosecutor of the duty to call a witness ...................................... Who is obliged to call the witness ............................................................................................. Judge’s comment ........................................................................................................................

[10.700] [10.705] [10.710] [10.715] [10.720] [10.725] [10.730]

[10.700] The rule The rule in Jones v Dunkel (1959) 101 CLR 298 concerns the inferences that can be drawn from a party’s unexplained failure to call a witness who might be expected to have been called. The rule was explained in O’Donnell v Reichard [1975] VR 916 (FC) by Newton and Norris JJ. After referring to Jones v Dunkel (1959) 101 CLR 298 they said (at 929): [T]he law may be stated to be that where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken.

In R v Lao (2002) 5 VR 129; 137 A Crim R 20 (CA) Buchanan JA put the position concisely. His Honour said (at 139; 31 [34]):

866

ROSS ON CRIME

[10.705]

[W]hen a party appears to be able to prove the true facts and fails to do so, in the absence of explanation, an inference which is open on the facts that is favourable to the other party may be more readily drawn (Jones v Dunkel (1959) 101 CLR 298, at 308 per Kitto J, at 312 per Menzies J and at 320–1 per Windeyer J).

[10.705] A witness “in the camp” of a party The expression comes from O’Donnell v Reichard [1975] VR 916 at 937. It is not a term of art and does not require any further explanation from the trial judge: Payne v Parker [1976] 1 NSWLR 191 (CA) per Glass JA at 201–202; R v Kormonick [1986] VR 845; 14 A Crim R 256 at 859–60, 271 (CCA); R v Sandford (1994) 72 A Crim R 160 at 185 (CCA, per Hunt CJ at CL). Note that the report in 33 NSWLR 172 does not contain that part of the judgment.

[10.710] The rule applies in criminal proceedings The rule applies in criminal proceedings but it has two aspects: that which applies to the accused and that which applies to witnesses generally.

The accused and defence witnesses In RPS v The Queen (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 four of the justices said in a joint judgment (at 633; 738, 350 [28]): In a criminal trial, not only is an accused person not bound to give evidence, it is for the prosecution to prove its case beyond reasonable doubt. The observations by the court in Jones v Dunkel (1959) 101 CLR 298 must not be applied in criminal cases without taking account of those considerations.

In Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 Gaudron and Hayne JJ said (at 291; 183 [5]): As a general rule a trial judge should not direct the jury in a criminal trial that the accused would be expected to give evidence personally or call others to give evidence. Exceptions to that general rule will be rare. They are referred to in Azzopardi v The Queen (2001) 205 CLR 50 at 74 [64]. As a general rule, then, a trial judge should not direct the jury that they are entitled to infer that evidence which the accused could have given, or which others, called by the accused, could have given, would not assist the accused. If it is possible that the jury might think that evidence could have been, but was not, given or called by the accused, they should be instructed not to speculate about what might have been said in that evidence.

Their Honours later said (at 1554; 184 [10]): The reasoning which underpinned the decisions in RPS (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 and in Azzopardi (2001) 205 CLR 50 cannot be confined to the accused giving evidence personally. It applies with equal force to the accused calling other persons to give evidence. It cannot be said that it would be expected that the accused would call others to give evidence. To form that expectation denies that it is for the prosecution to prove its case beyond reasonable doubt.

Prosecution ordinarily should call witnesses. In Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 Gaudron and Hayne JJ said (at 292; 184 [11]): Any conclusion about who would be expected to call a person to give evidence must take account of the obligations of the prosecution. If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them.

In R v Corish (2006) 96 SASR 207; 170 A Crim R 162 (CCA) the appellant had been convicted of drug offences where he had the onus of disproof. He had given evidence at

[10.720]

JONES V DUNKEL

867

trial. He said that a large part of the drugs was only in his possession on trust for his step-brother, Mr Babidge. Neither side called Mr Babidge. The trial judge made adverse comments to the jury on the defence failure. Dyers applied. Appeal allowed. Other cases R v Geary [2003] 1 Qd R 64; (2002) 128 A Crim R 17 (at 72; 24 [36]) (CA); R v Hart; Ex parte DPP (2006) 159 A Crim R 428 at 444 [72] (Qld CA).

Other witnesses R v Booth [1983] 1 VR 39; 8 A Crim R 4 at 45–46 (VR), 10–11 (A Crim R) (CCA); R v Smith [No 2] (1995) 64 SASR 1; 80 A Crim R 491 (CCA); R v Palmer (1998) 103 A Crim R 299 (Qld CA).

[10.715] The Ferrcom principle The Jones v Dunkel (1959) 101 CLR 298 rule also applies where a witness fails to give evidence on an expected topic: Commercial Union v Ferrcom (1991) 22 NSWLR 389 (CA) at 418ff: The Ferrcom (1991) 22 NSWLR 389 principle has been applied in criminal cases. Some of them were: R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 (CCA) per Hunt CJ at CL (at 532; 439); R v Ion (1996) 89 A Crim R 81 at 94 (NSW CCA); R v GEC (2001) 3 VR 334 at 334–335 [41] (CA).

But there must be grave doubt whether the Ferrcom principles still applies in a criminal trial. If from Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 Jones v Dunkel (1959) 101 CLR 298 no longer applies, then neither can its offshoot Ferrcom. Yet in R v Asfour (1992) 60 A Crim R 409 (NSW CCA) the appellant had been convicted of stabbing a fellow prison inmate. At trial, the victim gave evidence for the defence saying that the accused had not stabbed him but refusing to say who had. The trial judge was correct in telling the jury of the deficiencies in the victim’s evidence. Appeal dismissed.

[10.720] The rule does not absolve a prosecutor of the duty to call a witness In R v Shaw (1991) 57 A Crim R 425 (Vic CCA) Nathan J said (at 450): [E]ye witnesses do not belong to a camp, but are within the class of persons from whom juries expect and are entitled to hear. The characterisation of witnesses being in “camps” is unfortunate. It necessarily implies that the prosecutor might choose to call only those witnesses favourable to his camp. This is an absolute derogation of a prosecutor’s responsibilities.

Approved: R v Kneebone (1999) 47 NSWLR 450 (CCA). Greg James J said (at 461 [53]): I agree with his Honour’s observations. They accord with the generally accepted view of the role and responsibility of a Crown prosecutor: see, eg, Richardson v The Queen (1974) 131 CLR 116.

See also Prosecutor at [16.6900].

868

ROSS ON CRIME

[10.725]

[10.725] Who is obliged to call the witness In R v Buckland (1977) 2 NSWLR 452 (CCA) Street CJ delivered the leading judgment. He said (at 457): There are three alternative bases upon which there might arise an expectation that a particular witness would be called. In the first place, the witness might be one that the Crown would normally have been expected to call in the course of proving the guilt of the accused beyond reasonable doubt. In the second place, the witness might be one whom the accused would normally have been expected to call in his defence against the Crown case. And in the third place, the witness may be one whom the Crown would be expected to call, or at least to offer to call, in discharge of the Crown’s ever present duty to present fairly to the jury all of the relevant evidence attaching to the charge against the accused. If the absent witness fell within the third of these categories, then the proper course of the trial judge to adopt, in answer to questions such as were asked in the present case, would simply be to direct the jury that they should approach the determination of the case, and decide whether the Crown has discharged the onus of proving guilt beyond reasonable doubt, upon the evidence and other material actually adduced in the trial, without speculating upon what might have been the content of the evidence of other witnesses. This approach would also be appropriate, if the evidence of a witness mentioned in a question such as these would have been irrelevant or inadmissible. In the first and second of the three situations mentioned earlier, that is to say, where the missing witness can be expected to give evidence as an element of proof of guilt or in defence to the charge respectively, then the opposing party is entitled to comment upon the absence of that witness, and to have the jury informed of the inference open to it arising from the absence of that witness. It could be expected that by reason of the duty on the Crown to present the case fully and fairly, the occasion for the accused to comment upon the unexplained absence of a Crown witness would be comparatively rare. In either case, if the point is taken in addresses, and either put unfairly or not precisely correctly, or if a request is made to the judge for an appropriate direction, ordinarily a direction should be given by the judge. He will be able to determine whether, in the interests of fairness, the position justifies development or emphasis of the precise technical position as to the available inference, or whether the tempering of the direction by pointing out to the jury the dangers of speculation, and exhorting them to reach their verdict on the evidence that has actually been adduced at the trial.

Applied: R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 (CCA).

[10.730] Judge’s comment In RPS v The Queen (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 (HC) Callinan J said (at 656; 756; 370 [111]): There is no doubt that a direction in accordance with Jones v Dunkel may be given in respect of a failure by the Crown to call a material witness without acceptable and admissible explanation. The need for such a direction will usually be heightened by the Crown’s responsibility to present its case in a way that is fair to the accused. However, such a direction may not be given in relation to an accused person or an accused person’s witnesses who, if the matter were a civil trial, might be expected to be called. A direction with respect to a defence case, based upon Jones v Dunkel would not only infringe s 20(2) [Evidence Act 1925 (NSW)] but also would erode the basic principle of the presumption of innocence. The principles stated in Jones v Dunkel by their very nature presuppose that there is a need, or an occasion, for evidence to be called by a party, or an expectation that evidence could and should be called by a party. An accused person in criminal proceedings labours under no such need, occasion or expectation.

In R v Alexander and McKenzie (2002) 6 VR 53 (CA) Winneke P said (at 79 [54]): As a general rule, a trial judge should not direct the jury in a criminal trial that the prosecution would be expected to have called persons to give evidence other than those that it did call as witnesses. There may be rare exceptions to the rule, but only in cases where it is shown that the “failure to call” amounts to a breach of the prosecutor’s duty to call all material witnesses. (Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 per Gaudron and Hayne JJ at [6]).

[10.800]

JOURNALIST PRIVILEGE

869

See also R v Buckland [1977] 2 NSWLR 452 (CCA) per Street CJ at 459. R v Newland (1997) 98 A Crim R 455 (NSW CCA).

JOURNALIST PRIVILEGE Journalist Privilege ...................................................................................................................... [10.800]

[10.800] Journalist Privilege A number of Australian jurisdictions have privilege that apply to protect the identity of sources to journalists. Sections 126G and 126H in the Commonwealth UEA create a privilege for journalists. The same privilege exists in New South Wales and the Australian Capital Territory (ss 126J to 126L UEA (New South Wales and Australian Capital Territory) and Victoria (ss 126J to 126K UEA (Vic)). In Tasmania there is a broader professional confidential relationship privilege in relation to ““protected confidences” (ss 126A to 126F UEA (Tas)), which applies to journalists. The privilege is not absolute and can be overridden in a number of circumstances. For examples, where it was rejected see: Liu v The Age Company Ltd (2012) 257 FLR 360; [2012] NSWSC 12 and In Ashby v Commonwealth (No 2) (2012) 203 FCR 440; [2012] FCA 766.

JUDGE Appointment ................................................................................................................................ [10.900] Advice to a new judge ................................................................................................................ [10.905] Immunity ..................................................................................................................................... [10.910] Trial by judge alone .................................................................................................................... [10.915] Presence ....................................................................................................................................... [10.920] Judge incapable of proceeding ................................................................................................... [10.925] Power to temper the rules and practices .................................................................................... [10.930] Trial judge is a gatekeeper ......................................................................................................... [10.935] Power to order disclosure of prosecution material to defence .................................................. [10.940] No private consultation ............................................................................................................... [10.945] Conduct during the trial .............................................................................................................. [10.950] Demeanour and credibility of witness ....................................................................................... [10.955] Judge should not call a witness .................................................................................................. [10.960] Rulings: reasons must be given .................................................................................................. [10.965] Judge should not tell jury of ruling ........................................................................................... [10.970] No undue interference ................................................................................................................ [10.975] Judge should not reject evidence to which there is no defence objection ............................... [10.980] Judge should not cross-examine accused ................................................................................... [10.985] Criticism of defence counsel ...................................................................................................... [10.990] Preserving impartiality ................................................................................................................ [10.995] At the end of the prosecution case .......................................................................................... [10.1000] Judge should not interrupt counsel’s final address .................................................................. [10.1005] Inviting counsel to comment on summing up ......................................................................... [10.1010] Indictment containing more than one count ............................................................................ [10.1015] More than one accused ............................................................................................................. [10.1020] Forbidden comment – police perjury or conspiracy ................................................................ [10.1025] Which defences are to be left to the jury ................................................................................ [10.1030] Where the defence does not raise an issue .............................................................................. [10.1035] Must direct on issues ................................................................................................................ [10.1040] Principles of summing up ......................................................................................................... [10.1045] Must avoid perceptible risk of miscarriage of justice ............................................................. [10.1050]

870

ROSS ON CRIME

Judge’s directions to the jury ................................................................................................... Written directions ...................................................................................................................... Transcript and exhibits ............................................................................................................. Beyond reasonable doubt .......................................................................................................... Forbidden directions ................................................................................................................. On the accused’s evidence ....................................................................................................... Not to alter prosecution case .................................................................................................... Not to withdraw an element in issue ....................................................................................... Not to direct a reasoning towards guilt ................................................................................... Not to disparage reasonable defence explanation .................................................................... Judge may comment on the evidence ...................................................................................... Judge must not put pressure on the jury .................................................................................. Judge must disclose communication with jury ........................................................................ Adequacy of judge’s directions ................................................................................................ Not to question jury about verdict ........................................................................................... Sentencing ................................................................................................................................. Must maintain a neutral position .............................................................................................. An over-speaking judge ............................................................................................................ Not to be a sphinx .................................................................................................................... Not to descend to the arena ...................................................................................................... Some occupants of the bench ................................................................................................... Judges’s oath of office .............................................................................................................. Writings about judges ............................................................................................................... Reference to other directions ....................................................................................................

[10.900]

[10.1055] [10.1060] [10.1065] [10.1070] [10.1075] [10.1080] [10.1085] [10.1090] [10.1095] [10.1100] [10.1105] [10.1110] [10.1115] [10.1120] [10.1125] [10.1130] [10.1135] [10.1140] [10.1145] [10.1150] [10.1155] [10.1160] [10.1165] [10.1170]

[10.900] Appointment In Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1 Brennan J said (at 33–34; 23): [T]he responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government … The calibre of appointments to the judiciary depends solely on the Executive Government and that is a heavy responsibility which the Executive Government alone must bear.

In Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606; 229 ALR 223 Gleeson CJ said (at 1613–1614; 228 [19]): Judges are appointed by the executive government in the exercise of powers conferred by parliament. Judges are not appointed by the judicial branch of government. They are appointed by the political branches of government, and decisions as to appointment are subject to political accountability. No doubt many judges have strong opinions about matters relating to judicial appointments, whether permanent or temporary. Many judges have opinions about the number of judges that ought to be appointed, the qualities that ought to be looked for in appointees, and the procedures of selection that ought to be followed. Their opinions may deserve weight, because of their personal knowledge and experience. Even so, judges do not appoint one another. The responsibility for making decisions about judicial appointments, including numbers and circumstances of appointments, rests with those who have the responsibility of paying the salaries, and providing the necessary resources, of the appointees, and who have political accountability for bad or unpopular decisions about appointments.

[10.905] Advice to a new judge Dodds-Streeton J was welcomed on her appointment. In response she said ((2003) 77 ALJ 23): [T]he oldest advice to a new judge I am aware of, Egyptian and almost 5,000 years old, seems hard to beat. The sage Ptah-Hotep from the 6th Dynasty advised: If you are a man who judges, listen calmly to the speech of one who pleads. Don’t stop him from unburdening himself of that which he planned to tell. A man in distress wants to pour out

[10.925]

JUDGE

871

his heart, more than that his case be won. About him who stops a plea one says, “Why does he reject it?” Not all one pleads for can be granted, but a good hearing soothes the heart.

[10.910] Immunity Generally A judge is immune from civil process arising from judicial acts: Sirros v Moore [1975] QB 118; [1974] 3 All ER 776 (CA); Re McC [1985] AC 528; [1984] 3 All ER 908 (HL); Rajski v Powell (1987) 11 NSWLR 522 (CA); Yeldham v Rajski (1989) 18 NSWLR 48; 45 A Crim R 1 (CA); Re East; Ex parte Nguyen (1998) 196 CLR 354; 159 ALR 108; Wentworth v Wentworth (2000) 52 NSWLR 602 (CA); Fingleton v The Queen (2005) 227 CLR 166; 153 A Crim R 503; 216 ALR 474; [2005] HCA 34; Ogawa v Spender (2006) 151 FCR 228 (FC).

Legislation By legislation a judicial officer is not criminally responsible for acts done or omitted as part of the judicial function. Qld: Criminal Code s 30; WA: Criminal Code s 30; NT: Criminal Code s 39. Applied: Fingleton v The Queen (2005) 227 CLR 166; 153 A Crim R 503; 216 ALR 474; [2005] HCA 34.

[10.915] Trial by judge alone In some jurisdictions, a judge can hear a trial without a jury. See Trial (By judge alone) at [20.2545].

[10.920] Presence A judge should be present at every stage of a trial including a view: R v Hunter [1985] 1 WLR 613; [1985] 2 All ER 173; 81 Cr App R 40. See also View (Judge to be present) at [22.1515].

[10.925] Judge incapable of proceeding In R v Cook (1984) 71 FLR 232; 11 A Crim R 415 (NT, O’Leary J) his Honour said (at 238; 420): It is not easy to define with any precision what exactly is encompassed in the word “incapable” as used in subs 2 of that section. In its ordinary meaning it signifies a want of capacity, an inability or

872

ROSS ON CRIME

[10.930]

a disability, and I think it must refer to some personal incapacity of the presiding judge, such as may arise from illness or mental or physical infirmity: see Re Watts’ Settlement (1851) 9 Hare 106; 68 ER 434, per Turner V-C at 108; but see too R v Kelman [1957] NZLR 904. Mere absence from the jurisdiction or being otherwise engaged does not, in my view, constitute incapacity in that sense.

In Cesan v The Queen (2008) 83 ALJR 43 the High Court allowed an appeal against conviction. The case had been heard in May and June 2004 before judge and jury in NSW District Court. The judge was Ian John Dodd. During the trial his Honour kept falling asleep and sometimes snoring loudly. This was the successful ground of appeal. Sleep apnoea was his Honour’s problem. His Honour retired on 19 July 2005.

Legislation Qld: Jury Act 1995 s 61; District Court of Queensland Act 1967 s 25; WA: Criminal Procedure Act 2004 s 122; NT: Criminal Code s 372.

[10.930] Power to temper the rules and practices In Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385 Gaudron J said (at 365): And it is the duty of the courts to ensure that only fair trials are had, either by tempering the rules and practices to accommodate the case concerned or, if that not be adequate, by staying the prosecution.

No doubt the above was said with the background of such a case as R v Demirok [1976] VR 244 (CCA). The court said (at 255–256): In very rare cases, of which we think this is one, although the trial has been correctly conducted, the result may nevertheless have been to expose the accused man to a conviction influenced by material which was both inadmissible and highly prejudicial. In such a situation, we think that it is not satisfactory to say that, the rules governing trials having been observed, there has been no miscarriage of justice. To do so is to elevate the rules above the end which they are designed to produce. The miscarriage lies in the fact that, despite the correct application of the various rules, the trial has not been of the kind which those rules are intended to produce.

Applied: R v Gallagher (1986) VR 219; 16 A Crim R 215 at 238, 234 (CCA). See also Rules at [18.4400].

[10.935] Trial judge is a gatekeeper Superior courts describe a trial judge as a gatekeeper. The metaphor describes the duty of a trial judge to prevent wrong evidence going to a jury. The following examples are about hearsay. In R v Howse [2006] 1 NZLR 433 (PC) Lord Carswell, giving the advice of the majority, said (at 442 [22]): The judge, as gatekeeper, should accordingly not have allowed the evidence to go before the jury as proof of the truth of the allegations.

In R v Khelawon [2006] 2 SCR 787; (2006) 274 DLR (4th) 385; 215 CCC (3d) 161 (SCC) Charron J delivering the judment of the court said (at 793; 389; 165 [2]):

[10.945]

JUDGE

873

The trial judge acts as a gatekeeper in making this preliminary assessment of the “threshold reliability” of the hearsay statement.

[10.940] Power to order disclosure of prosecution material to defence In Carter v Hayes (1994) 61 SASR 451; 72 A Crim R 387 (FC) King CJ said (at 456; 392): Disclosure by those conducting a prosecution of material in the possession or power of the prosecution which would tend to assist the defence case, is an important ingredient of a fair trial (Clarkson v DPP [1990] VR 745 at 755), and is an aspect of the prosecution’s duty to ensure that the “Crown case is presented with fairness to the accused”: Richardson (1974) 131 CLR 116 at 119; Apostilides (1984) 154 CLR 563; 15 A Crim R 88. Moreover the court has power to order the production to the defence of material in the prosecution’s possession or power if the interests of justice so require: Clarke (1930) 22 Cr App R 58; Mahadeo [1936] 2 All ER 813; Hall (1958) 43 Cr App R 29; Xinaris [1955] Crim LR 437; Charlton [1972] VR 758. It will often be necessary, or at least desirable, in the interests of a fair trial that the defence have access to the statements of witnesses and other evidentiary material in the possession of the prosecution in advance of trial in order to prepare for cross-examination of prosecution witnesses and to prepare the defence generally.

See also Discovery at [4.3000].

[10.945] No private consultation A judge should not have a private consultation about the case. In Teakle v Western Australia (2007) 33 WAR 188; 168 A Crim R 483 (CA) Buss JA, with whom the others agreed, set out the reasons for no private consultation (at 206; 500 [67]): First, the communication or inquiry will occur in the absence of the parties and without their knowledge or consent. Secondly, the communication or inquiry will not be conducted openly or in public. Thirdly, the Judge will be performing an inquisitorial function in which he or she will be involved actively in gathering facts. Fourthly, the Judge will not necessarily know, in advance, whether the communication or inquiry will reveal information which is capable of being used adversely or favourably to the offender. (But, in any event, any risk to the integrity of the judicial process, and the fairness of the procedure adopted, are not to be determined by whether the information obtained happens to be adverse or favourable.) Fifthly, even if the Judge has sought to make a proper record of the communication or inquiry, disputes may arise later as to the precise terms of the information which he or she has obtained and any associated nuances, especially if the information is sought or conveyed orally.

Thus the judge should not see counsel in the judge’s chambers: R v Tait & Bartley (1979) 46 FLR 386; 24 A Crim R 473; 24 ALR 473 at 401ff, 487ff (FCA); R v Marshall [1981] VR 725 at 732 (CCA); R v Ciaston (1987) 27 A Crim R 285 at 287–288 (Vic CCA); R v Foster (1992) 25 NSWLR 732; 59 A Crim R 28 per Carruthers J at 736–741; 32–37. In R v McGuire (2000) 110 A Crim R 348 (Qld CA), de Jersey CJ said (at 356): Where a so called “plea bargain” has been reached between Crown and defence, it should not be privately canvassed with the judge in advance of sentencing. That is inimical to open, public justice and carries the potential to compromise the court. As observed when this matter last came before the Court of Appeal, “a plea bargain cannot remove from a judge the responsibility of imposing a just sentence”. The judge will apparently discharge that responsibility if the judge is seen to sentence unencumbered by views expressed to him privately in chambers. The process

874

ROSS ON CRIME

[10.950]

should, in its entirety, take place in public, with certain very limited and well-established exceptions – and they do not include “vetting” plea bargains privately past the intended sentencing judge before the hearing in open court.

A judge must not have a private communication with a juror either by note or by seeing a juror in chambers. A judge should show a juror’s note to counsel and invite their submissions: Ramstead v The Queen [1999] 2 AC 92; [1999] 2 WLR 698; 1 NZLR 513 (PC). A judge must not see a witness alone in chambers: R v Dunne (1929) 21 Cr App R 176; Lau v The Queen (1991) 6 WAR 30; 58 A Crim R 390 (CCA).

[10.950] Conduct during the trial Generally In Robinson v The Queen (2006) 162 A Crim R 88 (NSW CCA) Johnson J, with whom the others agreed, said (at 127 [140]): [T]he judge’s role in a criminal trial is to hold the balance between the contending parties without himself taking part in their disputations; the judge does not exercise an inquisitorial role in which he seeks himself to remedy the deficiencies in the case on either side, nor is it part of the function of the trial judge to don the mantle of prosecution or defence counsel: Whitehorn v The Queen (1983) 152 CLR 657 at 682.

Courtesy In R v Love (1983) 9 A Crim R 1 (WA CCA) Wallace J said (at 11): Clearly a judge should not be abrupt, terse, discourteous or belittle a litigant in person and such conduct may well lead to the conclusion that there has been an unfair trial.

In R v Hircock [1970] 1 QB 67; [1969] 1 All ER 47; 53 Cr App R 51 Widgery LJ said (at 72; 50; 57): There is, in our judgment, a very important distinction between conduct on the part of the presiding Judge which may be regarded as discourteous and may show signs of impatience – and, indeed, conduct which cannot be commended in any way – but which does not in itself invite the jury to disbelieve the defence witnesses, and conduct which positively and actively obstructs counsel in the doing of his work.

Saif Ali v Sydney Mitchell & Co [1980] AC 198; [1978] 3 All ER 1033 (HL) was a civil case about the negligence of counsel. Lord Wilberforce said (at 212; 1037): Judges are more than mere selectors between rival views – they are entitled to and do think for themselves.

Approved: Coleman v Power (2004) 220 CLR 1; 78 ALJR 1166; 209 ALR 182 at 94; 243 [243] per Kirby J.

[10.955] Demeanour and credibility of witness Demeanour and appearance of a witness may not be a true guide to credibility. In State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; 160 ALR 588, Kirby J said (at 328–329; 617): There is a growing understanding, both by trial judges and appellate courts, of the fallibility of judicial evaluation of credibility from the appearance and demeanour of witnesses in the somewhat artificial and sometimes stressful circumstances of the courtroom. Scepticism about the supposed judicial capacity in deciding credibility from the appearance and demeanour of a witness is not

[10.965]

JUDGE

875

new. In Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Co (The Palitana) (1924) 20 LI L Rep 140 at 152, Atkin LJ remarked that “an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour”.

Chester Porter QC said: The best witness I ever saw, whose demeanour was 100 per cent perfect, was Australia’s top con man. (Bar News, Spring 1999, p 20)

[10.960] Judge should not call a witness In R v Apostilides (1984) 154 CLR 563; 53 ALR 445; 15 A Crim R 88 the court said in a joint judgment (at 575; 455; 97): Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence.

In R v Griffıs (1996) 67 SASR 170; 91 A Crim R 203 (CCA) the trial judge had himself called a witness. Appeal allowed. The circumstances were not “most exceptional”. The same position prevails in England: R v Grafton [1993] QB 101; [1992] 4 All ER 609; 96 Cr App R 156 (CA).

[10.965] Rulings: reasons must be given Reasons must be given for findings and rulings for the information of the parties. In Brittingham v Williams [1932] VLR 237 (FC) the court said in a joint judgment (at 239): [A] judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to afford assistance to the Court of Appeal in the event of there being an appeal.

In Perkins v County Court of Victoria (2000) 2 VR 246; 115 A Crim R 528 (CA) Buchanan JA said (at 271; 553 [56]): [T]he provision of reasons for decisions affecting persons’ rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles.

Other cases Fletcher Construction Aust Ltd v Lines MacFarlane (2002) 6 VR 1 at 30 [99] (CA). Roy Morgan Research Centre v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; 181 ALR 307 at 83–84; 314 [26]. R v Keyte (2000) 78 SASR 68; 118 A Crim R 463 (CCA). Wu v The Queen (1999) 199 CLR 99; 166 ALR 200; 108 A Crim R 252 per Kirby J at [71]. Fleming v The Queen (1998) 197 CLR 250; 103 A Crim R 121; 158 ALR 379 at [22]. R v Arnold [1999] 1 VR 179; (1998) 102 A Crim R 535 (CA) per Phillips JA at 181–182; 538 (with whom the others agreed); Beale v GIO (1997) 48 NSWLR 430 at 441 (CA); R v Frantzis (1996) 66 SASR 558; 87 A Crim R 295 (CCA) per Lander J at 560–561; 296–297 (with whom the others agreed); Sobh v Children’s Court (1994) 74 A Crim R 453 at 459–460 (Vic, Mandie J); Webb v The Queen (1994) 13 WAR 257; 74 A Crim R 436 (CCA);

876

ROSS ON CRIME

[10.970]

Watson v Anderson (1976) 13 SASR 329 (FC); Pettitt v Dunkley [1971] 1 NSWLR 376 (CA). See also Judge at [10.900]; Reasons at [18.600] and Sentencing at [19.1800].

[10.970] Judge should not tell jury of ruling A judge should not tell a jury of a ruling on evidence. Basto v The Queen (1954) 91 CLR 628 at 640; R v Banner [1970] VR 240 at 252–253 (CCA); R v Chai (1992) 27 NSWLR 153; 60 A Crim R 305 (at 187; 337) (NSW CCA); R v Bacash (2001) 3 VR 428; 124 A Crim R 535 (at 434; 542 [18]) (CA); R v Atallah (2001) 3 VR 437; 125 A Crim R 463 (at 443–444; 469–470 [17] – [20]) (CA). In Mitchell v The Queen [1998] AC 695; [1998] 2 WLR 839; [1998] 2 Cr App R 35 (PC) Lord Steyn said (at 703; 845–846; 42): There is no logical reason why the jury should know about the decision of the judge … This is underlined by the fact that in modern English practice the judge’s decision after a voire dire is never revealed to the jury.

Followed: De Four v The State [1999] 1 WLR 1731 at 1734–1735 (PC).

[10.975] No undue interference In R v Mawson [1967] VR 205 (CCA) the Court said in a joint judgment (at 207): It is clearly established by a long line of authority that excessive interference or involvement by a trial judge in the conduct of a trial may constitute such a departure from the due and orderly processes of fair trial as to amount to a miscarriage of justice.

The trial judge had examined witnesses to elicit material which the prosecution did not seek to lead. He commented adversely and strongly to the jury about the defence and did not say the jury could disregard his comments. The appeal was allowed. In R v Sharp [1994] QB 261; (1993) 98 Cr App R 144 (CA) Stuart-Smith LJ, giving the judgment of the court, said (at 273; 152): When a judge intervenes in the course of examination, or particularly cross-examination, a number of problems can arise depending on the frequency and manner of interruptions. First the judge may be in danger of seeming to enter the arena in the sense that he may appear partial to one side or the other. This may arise from the hostile tone of questioning or implied criticism of counsel who is conducting the examination or cross-examination, or if the judge is impressed by a witness, perhaps suggesting excuses or explanations for a witness’s conduct which is open to attack by counsel for the opposite party. Quite apart from this, frequent interruptions may so disrupt the thread of cross-examination that counsel’s task may be seriously hampered. In a case of any complexity cross-examination of the principal witnesses is something that calls for careful preparation and planning. It is the most important part of the advocate’s art, because a competent cross-examination is designed to weaken or destroy the opponent’s case and to gain support for the client’s case. But it is easier said than done. If the judge intervenes at a crucial point where the witness is being constrained to make an important admission, it can have an adverse effect on the trial.

[10.985]

JUDGE

877

In R v Thompson (2002) 130 A Crim R 24 (NSW CCA) Ipp AJA said (at 35–36 [59]): His Honour at times became impatient with counsel (both for the prosecution and the defence), and in some instances where questions were not properly asked, but where the thrust of the questions was apparent, he simply took over the questioning, apparently in a desire to shorten the proceedings. There is little to commend this practice.

Other cases R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 at 468, 52–53 (CCA); R v Lars (1994) 73 A Crim R 91 at 121–129 (NSW CCA); R v Cunningham (1992) 61 A Crim R 412 (Vic CCA); R v Boykovski and Atanasovski (1991) 58 A Crim R 436 (Vic CCA); Brouillard v The Queen [1985] 1 SCR 39; (1985) 16 DLR (4th) 447; 17 CCC (3d) 193 (SCC) R v Davies (1984) 14 A Crim R 397 (NSW CCA); R v Hsing (1984) 12 A Crim R 196 (NSW CCA); R v Clewer (1953) 37 Cr App R 37.

[10.980] Judge should not reject evidence to which there is no defence objection In R v Visser [1983] 3 NSWLR 240; (1983) 12 A Crim R 315 (CCA) Hunt J, with whom Street CJ and Mahoney JA agreed, said (at 242; 318–319): It will be a very rare case where a trial judge is justified in intervening to reject evidence where the accused is represented and where no objection has been taken to it. The duty of a trial judge to put to the jury any matters upon which the jury, upon the evidence, could find for the accused, whether or not it has been raised by his counsel (Pemble v The Queen (1971) 124 CLR 107 at 118) does not include an obligation to reject evidence to which his counsel has not objected. An objection may deliberately not be taken to inadmissible evidence for a variety of reasons. Quite often, it is because counsel for the accused sees some advantage to his client in not fighting an irrelevant issue in relation to that evidence, even where the evidence may otherwise be prejudicial to his client. An intervention by the trial judge may sometimes cause more prejudice than the evidence which he intervenes to reject.

Followed: R v Fordham (1997) 98 A Crim R 359 at 361 (NSW CCA). But a judge has an overriding duty to reject inadmissible evidence: R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 at 30, 176 (CCA); R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 at 703–704, 410–411 (CCA).

[10.985] Judge should not cross-examine accused In R v Mercer (1993) 67 A Crim R 91 (NSW CCA) the trial judge showed apparent disbelief at the answers given by the accused to his own cross-examination. Hunt CJ at CL said (at 94–95): The judge may draw the attention of the Crown Prosecutor to something which he may appear to have overlooked in his cross-examination, in order (for example) to avoid any unintended breach of the rule in Browne v Dunn (1893) 6 R 67, but even that should be done discreetly (and in the absence of the jury). The course followed by the judge in this case of attacking the appellant’s credit for himself should not have occurred.

878

ROSS ON CRIME

[10.990]

Where the evidence of a witness–any witness, including an accused–is such as to invite disbelief, it is a constant temptation for trial judges to make their disbelief apparent … … such conduct is fraught with grave danger where a jury is the tribunal of fact, and strong self-discipline is required to be exercised by trial judges in such cases: cf Hsing (1984) 12 A Crim R 196 at 200.

In R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 at 462–473; 44–57 (CCA) the trial judge wrongly cross-examined the accused. The appeal was allowed on this ground. In Rowland v Police (2001) 79 SASR 569 (Perry J) his Honour set out the law and practice (at 576–577 [60] – [66]). The judge should also generally not cross examine an accused who gives evidence at a sentencing plea: Ellis v The Queen [2015] NSWCCA 262.

[10.990] Criticism of defence counsel In R v Boykovski (1991) 58 A Crim R 436 (Vic CCA), the trial judge’s conduct gave rise to conviction and successful appeal. In addition to comments adverse to the accused the judge had criticised defence counsel. The court said (at 443): The additional aspect in connection with the conduct of the trial which has led us to the conviction that it has been vitiated arises from the judge’s interference with defence counsel’s cross-examination of Crown witnesses and examination of his own and the judge’s constant criticism of defence counsel’s conduct.

See also R v Nation (1994) 78 A Crim R 125 (Vic CCA); R v Lewis [2000] 1 VR 290 at 326–328 [93] – [97] (CA): criticism justified; R v De’Zilwa (2002) 5 VR 408; 133 A Crim R 501 at 419; 512 [37] (CA). Piccolotto v The Queen [2015] VSCA 143.

[10.995] Preserving impartiality A judge should not speak about the case out of court to only one counsel: City of St Kilda v Evindon Pty Ltd [1990] VR 771 (Kaye J). However, a judge who is friendly with one counsel is not biased by that matter alone: Emanuele v Emanuel Investments Pty Ltd (1997) 139 FLR 36 (SA FC). See also Bias at [2.1800]. A judge must not see counsel or hear or receive matters in chambers which should be heard in open court: R v Preston [1994] AC 130; [1993] 4 All ER 638; (1993) 98 Cr App R 405 (HL); R v Pitman [1991] 1 All ER 468 (CA); R v Warby [1983] 1 NSWLR 289; (1982) 9 A Crim R 349 (CCA); R v Tait & Bartley (1979) 46 FLR 386; 24 A Crim R 473; 24 ALR 473 (FC). A judge’s indication on sentence should take place in open court: R v Marshall [1981] VR 725 (CCA). In England, if such sentence indication is given in chambers, the discussion should be recorded: R v T Smith [1990] 1 WLR 1311; [1990] 1 All ER 634; (1990) 90 Cr App R 413 (CA).

[10.1000]

JUDGE

879

A judge must not communicate with the jury except in open court, or at least advising counsel of the nature and content of the communication. R v Crowe [1985] 2 Qd R 389; (1985) 16 A Crim R 478 (CCA). In R v Yuill (1994) 34 NSWLR 179; 77 A Crim R 314 (CCA), the court said in a joint judgment (at 190; 324): It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript. Most of the English authorities are collected in the judgment of the Criminal Division of the English Court of Appeal in Gorman (1987) 85 Cr App R 121. To that list should be added Ion (1950) 34 Cr App R 152 at 155–156 and Rose (1982) 75 Cr App R 322 at 328 (there was no reference to the point in the subsequent appeal in that case to the House of Lords: Rose [1982] AC 822). Local authorities for the proposition are Arthur (1966) 84 WN (Pt 1) (NSW) 121 at 125; Smith [1982] 2 NSWLR 608 at 609–612; and, in Western Australia, Rabey [1980] WAR 84 at 87, 93. This Court has recently said that the preferred course is not only for such communications to be recorded in the transcript but also for them to be marked for identification and placed in the file: Masters (1992) 26 NSWLR 450 at 482; 59 A Crim R 445 at 475–476. There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine–for example, a request by a juror to pass on a message to a relative about staying back late: Ion (1996) 89 A Crim R 81 at 154; Arthur (1966) 84 WN (Pt 1) (NSW) 121 at 125; Townsend (1982) 74 Cr App R 218 at 220; Gorman (1987) 85 Cr App R 121. The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge–the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement: Townsend (1982) 74 Cr App R 218 at 511; Rose [1982] AC 822 at 329; Gorman (1987) 85 Cr App R 121.

In R v Szabo (2001) 2 Qd R 214; 112 A Crim R 215 (CA) Thomas JA, with whom the others agreed, said (at 227; 227 [54]): A verdict may be set aside when communications have occurred between a judge and a jury, or between some unauthorised source and a jury: Green (1950) 34 Cr App R 33; Rabey [1980] WAR 84; Arthur (1966) 84 WN (Pt 1) NSW 121; Kachikwu (1968) 52 Cr App R 538; Townsend (1982) 74 Cr App R 218; Davis (No 2) (1960) 44 Cr App R 235; Ion (1951) 34 Cr App R 152; compare Crowe [1985] 2 Qd R 389. The setting aside of such verdicts is sometimes based on perception rather than actuality, as for example when actual details of the communication are not known but the court considers there is a sufficient danger that the verdict was influenced by such material. In such cases it is the risk of miscarriage that justifies the decision: compare Chaouk [1986] VR 707; Spencer [1987] AC 128 at 144, 146. But of course such cases also demonstrate that the accused has not had a trial according to law in that material was received by the jury other than through proper process. When this happens the contest usually comes down to whether the proviso should be applied.

[10.1000] At the end of the prosecution case If there is no evidence the trial judge must direct a verdict of not guilty. In Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 the court said in a joint judgment (at 212; 542; 160): The question whether a trial judge may direct a jury to return a verdict of not guilty if, in his or her opinion, a guilty verdict would be unsafe or unsatisfactory was adverted to but left unanswered in Whitehorn v The Queen (1983) 152 CLR 657 at 689. There is no doubt that it is a trial judge’s duty to direct such a verdict if the evidence cannot sustain a guilty verdict or, as is commonly said, if there is no evidence upon which a jury could convict: see, for example, Plomp (1963) 110 CLR at p 246; Reg v Prasad (1979) 23 SASR 161 at p 162; Reg v R (1989) 18 NSWLR 74 at p 77. And it may sometimes happen (although it should be but rarely) that evidence is withdrawn because it becomes apparent that, although technically admissible, it has no or insignificant probative value in comparison with its prejudicial effect, with the consequence that, if the remaining evidence will not support a guilty verdict, a verdict of not guilty must be directed: see, as to the discretion to reject

880

ROSS ON CRIME

[10.1005]

technically admissible evidence, R v Christie [1914] AC 545 at 560; Harris v Director of Public Prosecutions [1952] AC 694 at 707; Driscoll v The Queen (1977) 137 CLR 517 at p 541; Harriman v The Queen (1989) 167 CLR 590 at p 619; and, as to the withdrawal of evidence and the subsequent direction of a verdict of not guilty, Reg v The Queen (1989) 18 NSWLR at 76.

If there is some evidence he may inform the jury of their right to return a verdict of not guilty without hearing more. See also Circumstantial evidence (No case submission) at [3.2045] and Prasad direction at [16.2900].

[10.1005] Judge should not interrupt counsel’s final address In R v Tuegel [2000] 2 All ER 872 (CA) Rose LJ, delivering the judgment of the court, said (at 888): [E]xceptionally it may be necessary for a judge, in the presence of the jury, to interrupt a speech by counsel. But, generally speaking, just as it is preferable for counsel not to interrupt a summing up, so it is preferable for a judge not to interrupt a speech – whether for prosecution or defence. The reasons are obvious. The speaker’s train of thought may be disrupted and the jury’s attention may be inappropriately diverted with consequences prejudicial to the case which is being made. Ideally, therefore, interventions for the purpose of correcting or clarifying something said, either by judge or counsel, should be made, in the first instance, in the absence of the jury and at a break in the proceedings, so that, thereafter, if necessary, the point can be dealt with before the jury in an orderly fashion.

[10.1010] Inviting counsel to comment on summing up Such comments should be before the summing up and in the absence of the jury. In R v Sandford (1994) 72 A Crim R 160 (CCA) Hunt CJ at CL said (at 193): Most of us can recall the insistence, many many years ago, of some trial judges that all applications for directions should be made in the presence of the jury. Some counsel perfected a ready abuse of that system by attempting to have the last word to the jury in the guise of applications for further directions, which led to their opponents having to attempt to do likewise. It all took a long time, and some judges completely lost control of the debate. It was never a good practice. Why it was insisted upon was never clear. What is now clear is that the practice has all but disappeared. And so it should. There are many reasons why that is so. First, such applications should be heard before the summing up, so that the judge is able to deal with any corrections needed in the ordinary course of the summing up and not out of context at the end. Secondly, they should be heard in the absence of the jury so as to prevent the scramble by counsel seeking to abuse the system in the way which I have already described, and to save time. Thirdly, the absence of the jury permits both the judge and counsel more freedom in discussing the issue than is otherwise the case in the presence of the jury.

[10.1015] Indictment containing more than one count The trial judge has a duty to leave to the jury every count in the indictment on which there is evidence to go to the jury and the judge must direct them on the law relating to every such count: R v Lincoln [1944] 1 All ER 604; (1944) 29 Cr App R 191. See also R v Tompson [1943] KB 650; [1943] 2 All ER 130; (1943) 29 Cr App R 88. Where the indictment has several counts, the judge must warn the jury that the evidence given in support of each count must be considered separately. In Harris v DPP [1952] AC 694; [1952] 1 All ER 1044; (1952) 36 Cr App R 39 (HL), Viscount Simon said (at 712; 1050; 59–60):

[10.1025]

JUDGE

881

One of the grounds stated in the appellant’s notice of appeal … was that the learned judge failed to direct the jury that it was its duty to consider each count separately and not to be influenced in its decision on the eighth count by the evidence of the earlier thefts. The learned judge did, indeed, in his summing up, go through each count separately, but he treated the evidence as cumulative and told the jury that the main question was whether it was satisfied that the appellant “stole the money” without pointing out that the relevant considerations might be somewhat different on the different counts. True it is that the jury by its verdict distinguished between them, but the fact remains that it was not directed to consider what part of the evidence was properly of weight in deciding its verdict on the eighth count.

Brennan J said in Sutton v The Queen (1984) 152 CLR 528; 51 ALR 435; 11 A Crim R 331 (at 541–542; 445; 340–341): When two or more counts constituting a series of offences of a similar character are joined in the same information, a real risk of prejudice to an accused person may arise from the adverse effect which evidence of his implication in one of the offences charged in the indictment is likely to have upon the jury’s mind in deciding whether he is guilty of another of those offences. Where that evidence is not admissible towards proof of his guilt of the other offence, some step must be taken to protect the accused person against the risk of impermissible prejudice. Sometimes a direction to the jury is sufficient to guard against such a risk; sometimes it is not. Where a direction to the jury is not sufficient to guard against such a risk, an application for separate trials should generally be granted. There may be an exceptional case where countervailing factors appear, but I do not presently foresee them.

In R v Mayfield (1995) 63 SASR 576; 80 A Crim R 294 (CCA) Cox J said (at 582; 300): While the Crown case, that both robberies were committed by the same two men, one of them being the appellant, was a strong one, the two charges could not be regarded as necessarily standing or falling together. It was important, therefore, that the jury be given a careful direction about considering the evidence as to each charge separately from the other.

[10.1020] More than one accused In R v Masters (1992) 26 NSWLR 450; 59 A Crim R 445 (CCA) the court said in a joint judgment (at 455; 448): Where more than one accused are being tried together, it is the clear duty of the judge–except in unusual cases–to separate for the jury’s consideration the evidence properly relevant and material in the case of each, and to present the case made against each of the accused separately: Towle (1954) 72 WN 338 at 340; special leave to appeal refused (1956) 97 CLR 686). A joint trial for conspiracy does not merely by its nature constitute an unusual case, and the summing up in such a trial must deal separately with the case against each accused: Cosgrove and Hunter (1988) 34 A Crim R 299 at 303.

See also Boxer v The Queen (1995) 14 WAR 505; 81 A Crim R 299 (CCA) (riot). Where there is common evidence or a common case against each accused it is unnecessary for the trial judge to repeat the same detail: R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211 at 105, 223 (CCA).

[10.1025] Forbidden comment – police perjury or conspiracy In McKinney v The Queen (1991) 171 CLR 468; 52 A Crim R 240; 98 ALR 577 Mason CJ, Deane, Gaudron and McHugh JJ said (at 476–477; 582; 245): The question which is inevitably raised by a challenge to police evidence of confessional statements is, as earlier noted, whether it is a reasonable possibility that the police evidence is untruthful, which, in the circumstances, entails the possibility that police witnesses have perjured themselves and conspired to that end. That is a different question from the question whether the police have, in fact, perjured themselves and conspired to that end. It cannot be sufficiently emphasised that a jury should never be directed in terms which suggest that it is necessary to decide that latter question.

882

ROSS ON CRIME

[10.1030]

[10.1030] Which defences are to be left to the jury In R v Tikos [No 1] [1963] VR 285 (CCA) Sholl J said (at 289): But the applicant was entitled to have left to the jury for their consideration any hypothesis which the evidence fairly raised for consideration, with an appropriate direction as to the law which would be applicable if it were adopted even if it was a hypothesis inconsistent with that for which defence counsel had contended: see the recent discussion of that topic by this Court in R v Longley [1962] VR 137. I quite agree that the trial judge is not bound to leave merely fanciful theories, which nothing in the evidence fairly supports, just in case counsel may later argue on an appeal that they ought to have been put. But anything which may conceivably be thought by a reasonable jury to be a serious possibility should be dealt with by the jury.

In Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163; 71 ALR 641 (self defence) Wilson, Dawson and Toohey JJ said (at 665; 655; 176): [T]he appellant had only to raise a reasonable doubt in the minds of the jury to entitle him to succeed in his defence. As Gibbs J observed in Reg v Muratovic [1967] Qd R 15 at p 20, … the plea of self-defence may seem to a judge to be weak and tenuous, but it is for a jury not a judge to decide upon a plea of this kind, as upon any other question of fact, provided … that there is evidence on which a reasonable jury could decide the issue favourably to the accused.

In Von Starck v The Queen [2000] 1 WLR 1270 (PC) Lord Clyde, delivering the advice of the Board, said (at 1275): If the evidence is wholly incredible, or so tenuous or uncertain that no reasonable jury could reasonably accept it, then of course the judge is entitled to put it aside.

See also Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 at 68, 581, 338 (provocation). Circumstantial evidence at [3.2000]; and Defence at [4.700].

[10.1035] Where the defence does not raise an issue The judge has a duty to leave a defence to a jury even though defence counsel asks that it not be left. In R v Allwood (1975) 18 A Crim R 120 (Vic CCA) Crockett J said (at 130): If upon any possible view of the law or facts a verdict in favour of an accused could be based then it is the duty of the judge to put such issue to the jury. This is so even if counsel for the accused does not rely upon any such defence. Indeed, the judge’s duty remains unaltered even if counsel positively rejects reliance upon any such issue.

In Pemble v The Queen (1971) 124 CLR 107 Barwick CJ said (at 117): Whatever course counsel may see fit to take, no doubt bona fide but for tactical reasons in what he considers the best interest of his client, the trial judge must be astute to secure for the accused a fair trial according to law.

Examples Manslaughter as an alternative to murder Gillard v The Queen (2003) 219 CLR 1; 202 ALR 202; 139 A Crim R 100.

Provocation to reduce murder to manslaughter R v Thorpe [1999] 1 VR 326; (1998) 102 A Crim R 278 (CA); R v Shea (1988) 33 A Crim R 394 (Vic CCA); R v Koutsouridis (1982) 7 A Crim R 237 (Vic CCA).

[10.1045]

JUDGE

883

Accident Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545.

Intoxication R v Williamson (1996) 67 SASR 428; 92 A Crim R 24 (CCA); R v Khouzame (1999) 108 A Crim R 170 (NSW CCA); R v Faure [1999] 2 VR 537 (CA).

Self-defence R v Kear [1997] 2 VR 555 (CA); R v Goff (2000) 112 A Crim R 485 (NSW CCA). See also R v Ward (1989) 42 A Crim R 56 (NSW CCA).

[10.1040] Must direct on issues The judge must direct jury on what is an issue and relate the law to the issue. Failure to direct in this way will result in a miscarriage of justice and require a conviction to be set aside. In R v Anderson [1996] 2 VR 663 (CA) Winneke P, giving the leading judgment, said (at 666–667): As the Court of Criminal Appeal in this State has often said, it is ordinarily the duty of the trial judge in a criminal trial not only to direct the jury on the law applicable but to assist them to apply that law to the facts of the case before them by telling them what, in the light of the directions of law, are the real issues raised in the case. I refer to R v Jellard [1970] VR 802; R v Wilkes and Briant [1965] VR 475; Alford v Magee (1952) 85 CLR 437 at 466.

Cases where the judge has not related the law to the evidence include: R v Zilm (2006) 14 VR 11; 161 A Crim R 149 (CA); R v Salih (2005) 160 A Crim R 310 (Vic CA); R v Taylor (2004) 10 VR 199; 149 A Crim R 399 (CA); R v Crockett (2001) 124 A Crim R 312 (Vic CA); R v Mogg (2000) 112 A Crim R 417 (Qld CA). Cases where the judge has failed to recognise the issue include: R v Hendriksen (2007) 98 SASR 571; 171 A Crim R 512 (CCA); Stevens v The Queen (2005) 227 CLR 319; 222 ALR 40; 156 A Crim R 487; R v AJS (2005) 12 VR 563; 159 A Crim R 327 (CA); Spencer v The Queen (2003) 172 FLR 471; 137 A Crim R 444 (NT CCA); R v Franks [1999] 1 VR 518 (CA); R v Jones (1995) 38 NSWLR 652; 78 A Crim R 504 (CCA).

[10.1045] Principles of summing up The judge’s summing up must be well balanced and fair: Gassy v The Queen (2008) 236 CLR 293; 82 ALJR 838; 245 ALR 613; 184 A Crim R 334.

884

ROSS ON CRIME

[10.1045]

In R v Dickson [1983] 1 VR 227 (CCA) the court said in a joint judgment (at 230): Judges’ charges in criminal trials ought not to be the places for the compulsory recitation of formulae.

In RPS v The Queen (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 (HC), Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at 637; 741; 354 [41]): The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence, eg, Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60; Domican v The Queen (1992) 173 CLR 555; 60 A Crim R 169; 106 ALR 203.

In Domican v The Queen (1992) 173 CLR 555; 60 A Crim R 169; 106 ALR 203, six of the justices (ie all except Brennan J who dissented) said (at 637; 206; 172): In a criminal trial, the distinction between directions on matters of law and directions on matters of fact or argument is fundamental. A trial judge is bound to direct the jury as to any principle of law or rule of practice applicable to the case, and a misdirection or non-direction on such a matter will usually mean that the trial has miscarried. But matters of fact and the arguments in relation to them are in a different category. A trial judge is not bound to discuss all the evidence or to analyze all the conflicts in the evidence (R v Ali Ali (1981) 6 A Crim R 161, at p164), and, by itself, the failure of a trial judge to do so does not mean that there has been any miscarriage of justice.

Further (at 561; 206; 172): Nevertheless, the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused (R v Lowery [No 3] [1972] VR 939, at p 948). This Court has said that it “is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities” (Basto v R (1954) 91 CLR 628, at p.637). Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence (R v Matthews and Ford [1972] VR 3, at pp 15–16). Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence (R v Davies and Cody [No 2] [1937] VLR 226, at pp 236–237; R v Melville (1956) 73 WN (NSW) 579). Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way. The foregoing statements are applicable to all criminal cases.

In R v Zorad (1990) 19 NSWLR 91; 47 A Crim R 211 (CCA) the whole court said (at 105; 225): A summing up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resume of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence: Holford v Melbourne Tramway & Omnibus Co Ltd [1909] VLR 497 at 522–523; Mowlds v Fergusson (1939) 40 SR (NSW) 311 at 323 and Alford v Magee (1952) 85 CLR 437 at 466. This is a rule which appears increasingly to be ignored by trial judges. It is not a compliance with that rule simply to read the relevant part of the section to the jury and then to read out the evidence which has been given chronologically, starting with the first witness and going through the evidence in chief, the cross-examination and then re-examination of each

[10.1055]

JUDGE

885

witness before turning to the next witness and so on. The idea of a summing up is to present for the jury the issues of fact which they have to determine.

Followed: R v Heuston (1995) 81 A Crim R 387 at 392–393 (NSW CCA); R v Piazza (1997) 142 FLR 64; 94 A Crim R 459 (NSW CCA) per Hunt CJ at CL at 65; 460.

[10.1050] Must avoid perceptible risk of miscarriage of justice A judge must give any warning “necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case”. The quotation arises from the case Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 at 330, 247 per Brennan J. It took its present form in Longman v The Queen (1989) 168 CLR 79; ; 43 A Crim R 463; 64 ALJR 7389 ALR 161; [1989] HCA 60 at 86, 167 in the joint judgment of Brennan, Dawson and Toohey JJ. Applied: R v Miletic [1997] 1 VR 593 at 606 (CA); R v Corrigan (1998) 74 SASR 454 at 465–467 (CCA); R v Rayner [1998] 4 VR 818 at 859 per Callaway JA (CA). Prison informer: The judge should give a warning of acting on the evidence of a prison informer: Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1. See also Uniform Evidence Acts s 165(e). See also Delay at [4.1100]; and Longman warning at [12.2100].

[10.1055] Judge’s directions to the jury In Nembhard v The Queen [1981] 1 WLR 1515; [1982] 1 All ER 183; 74 Cr App R 144 (PC) the Board advised (at 1520; 186; 148): A summing-up, if it is to be helpful to the jury should be tailored to fit the facts of the particular case and not merely taken ready-made “off the peg”.

In R v Lawrence [1982] AC 510; [1981] 1 All ER 974; 73 Cr App R 1 (HL) Lord Hailsham said (at 519; 975; 5): The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts.

Approved: Holland v The Queen (1993) 67 ALJR 946; 117 ALR 193; 68 A Crim R 176 at 951, 200–201, 183–184 (HC). The court earlier said: As Dixon, Williams, Webb, Fullagar and Kitto JJ observed inAlford v Magee (1952) 85 CLR 437 (at 466),

886

ROSS ON CRIME

[10.1060]

it may be recalled that the 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 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. If the case were a criminal case, and the charge were of larceny, and the only real issue were as to the asportavit, probably no judge would dream of instructing the jury on the general law of larceny. He would simply tell them that if the accused did a particular act, he was guilty of larceny, and that, if he did not do that particular act, he was not guilty of larceny.

The judge must relate the law to the evidence: R v Jellard [1970] VR 802 (CCA). In R v Chai (2002) 76 ALJR 628; 128 A Crim R 101; 187 ALR 436 the High Court said in a joint judgment (at [18]): First, it is not the function of a trial judge to expound to the jury principles of law going beyond those which the jurors need to understand to resolve the issues that arise for decision in the case. Secondly, the law should be explained to the jury in a manner which relates it to the facts of the particular case and the issues to be decided: Alford v Magee (1952) 85 CLR 437.

The circumstances in which a trial can miscarry because of an error in the charge are discussed in Simic v The Queen [1980] HCA 25; (1980) 144 CLR 319. See also Priest v Tasmania [2012] TASCCA 6. See also Xypolitos v The Queen [2014] VSCA 339, which discusses the obligations of a judge to give a direction pursuant to Jury Directions Act 2013 (Vic) which has not been requested by counsel.

[10.1060] Written directions A memorandum of the issues may be given to the jury if the judge thinks it will be of assistance, for example, in a complicated case. It should be shown to counsel in plenty of time. But there are dangers in such a course. In R v Dunn (2006) 94 SASR 177 (CCA) Bleby J, with whom the others agreed, said (at 187 [41] – [42]): [I]t would be an error merely to hand the written direction to the jury without more, without reading and perhaps repeating the words written down. One cannot assume, even in our relatively well-educated society, that all jurors are literate, and judges should ever be alive to the reaction of members of the jury to a difficult direction and to the possible need of further explanation or repetition of it. More importantly, however, when a direction on the law of the nature of that in question is given, it is incumbent on the judge to ensure that the jury understands how that direction on the law relates to the facts.

In R v Hughes (1980) 7 A Crim R 51 (Vic CCA) Lush J said (at 53): In my opinion a memorandum of the issues to be decided by the jury, and the consequent verdicts, may be used if the trial judge feels that it would be of assistance to the jury. But any such document should be closely limited to issues which are open on one view or another of the evidence and should be expressed in terms relating to the evidence.

In R v McKechnie (1992) 94 Cr App R 51 (CCA) Auld J, delivering the judgment of the court, said (at 63): [W]here a judge intends to supplement his summing up by written directions he should provide them to the jury at the beginning of his summing up or at the point in it where he deals with the directions that he has written for them. He should use the written directions as an integral part of the summing up, referring the jury to the written directions, one by one, as he deals with the same points orally. It is not helpful to do, as the recorder did here, simply hand the jury the written directions at the end of the summing up without taking them through them or relating the written material to what he has said to them.

[10.1065]

JUDGE

887

The written directions must be right: R v Curzon (2000) 1 VR 416; 114 A Crim R 472 (CA). In R v Abebe (2000) 1 VR 429; 114 A Crim R 398 (CA) Coldrey AJA said (at 446; 416 [58]): If a chart is to be utilised as an adjunct to a judge’s charge care must be taken that the directions of law contained in it appropriately address the factual issues raised for jury determination. The concepts of concert and aiding and abetting, which featured in the present chart, are designed to found criminal liability and will rarely be of assistance to a jury in the context of provocation.

In R v M [2000] 1 WLR 421; [2000] 1 All ER 148 (CA) the trial judge had given the jury a written document of 25 pages. Kennedy LJ said (at 433–434; 159): There is nothing to prevent a judge from providing the jury with a simple aide memoire of that kind which might well also assist the jury to concentrate during the summing up, and help to steer their discussions thereafter … [B]ut we do accept that if a jury is presented with a substantial document set out in prose form, rather than for example a fairly simple flow chart or schedule, there are dangers. In the first place it may all too easily be regarded by the jury as a short cut – the answer to the case … But, secondly, because the document is likely, as here, to address only a particular part of the prosecution case, it may tend to give the appearance of unfairness – something which calls for some sort of balancing document from the other side … We are satisfied that in this case no harm was done … but we do not encourage the use of such documents in future cases.

See also Chart at [3.1600].

[10.1065] Transcript and exhibits Transcript Evidence in courts is recorded and often transcribed. In a jury trial a judge will often regard the transcript as the judge’s own notes. The judge and counsel will often bring any corrections to each other’s attention. A judge can give the jury a transcript of the evidence, or part of it. In R v Haines (2002) 3 NZLR 13 (CA) the court said in a joint judgment (at 21 [30]): One way of viewing the decision to provide a transcript of the evidence is that its availability can assist the jury to the extent that the jury wishes to make use of the resource. The ready availability of the transcript in the jury room reduces the risk that the jury will erroneously reconstruct what was said in evidence instead of asking that passages be read back to them by the Judge. It is likely also to reduce internal disagreement on what was said in evidence. The weight to be given to the advantages will depend on whether in a particular case on provision of the transcript the evidence will become reasonably accessible to the jury.

As to the transcript of a tape recorded interview see Tape Recording at [20.100].

Exhibits A judge has a discretion to allow the jury to take exhibits into the jury room. In practice a judge will withhold exhibits that are too massive, too dangerous, too valuable or too prejudicial to the accused. See Exhibit at [5.2300].

Dictionary In R v Chatzidimitriou (2000) 1 VR 493; 112 A Crim R 95 (CA) the trial judge provided the jury with a dictionary at their request. No complaint was made of his spoken direction. The appeal was dismissed. Phillips JA said that giving the dictionary was undesirable but not wrong (at [13]). Callaway JA would have allowed the appeal.

888

ROSS ON CRIME

[10.1070]

[10.1070] Beyond reasonable doubt See Beyond reasonable doubt at [2.1600].

[10.1075] Forbidden directions A judge must never direct a jury to return a verdict of guilty: R v Wang [2005] 1 WLR 661; [2005] 1 All ER 782; [2005] 2 Cr App R 136 (HL); R v Caley-Knowles [2006] 1 WLR 3181; [2007] 1 Cr App R 197 (CA); R v Krieger [2006] 2 SCR 501; (2006) 272 DLR (4th) 410; 213 CCC (3rd) 303 (SCC); R v Childs (2007) 98 SASR 111; 172 A Crim R 450 (CCA). In Jackson v The Queen (1976) 134 CLR 42; 9 ALR 65 Murphy J said (at 54; 74): A judge is never entitled to direct a jury to return a verdict of guilty.

and later (at 55; 74): The independence of juries must not be eroded by judges directing them to convict.

In directions to the jury a judge must not say “decide who is lying”. In R v Ward (1984) 15 A Crim R 275 (Qd CCA) Connolly J said (at 276): The following propositions may be deduced from the decided cases: 1. To direct the jury that they are to decide whether the Crown witnesses or the accused were lying is a misdirection, unless they are also clearly directed that if they cannot determine where the truth lies, the accused is entitled to the benefit of the doubt: Lapuse [1964] VR 43. Such an error of law will ordinarily lead to the quashing of the conviction: Lapuse [1964] VR 43; El Mir (1957) 75 WN (NSW) 191; Jackson (1957) 74 WN (NSW) 477; Tegg (1982) 7 A Crim R 188; Calides. This result may ensue even when a correct direction has been given at the beginning and end of the judge’s summing up. It is a matter of the effect of the summing up as a whole. Instances will be found in Lapuse [1964] VR 43 at 46, Jackson (1957) 74 WN (NSW) 477 at 477 and Calides at 359. This may be by reason of the emphasis given to the direction or indication to determine where the truth lies or of the way in which the factual problem is stated: Lapuse [1964] VR 43 at 46. To put it another way the directions in question may overlay an otherwise correct direction and create confusion: Smith [1964] VR 217 at 224. 2. However to tell the jury that it is their function to determine who is telling the truth is not and cannot be a misdirection. In principle it cannot be for it is a question of fact. Such directions were given and upheld on appeal in Bullard [1957] AC 635 at 644 and in Smith [1964] VR 217 at 218. 3. The jury must however be left in no doubt as to their duty if unable to reach any affirmative conclusion as to where the truth lies.

A judge must not say “the defence alleges a conspiracy against the police”: Duke v The Queen (1989) 180 CLR 508 at 515–516, 521, 529. The judge must not misstate the evidence. The test is whether the jury would have been misled: Simic v The Queen (1980) 144 CLR 319; 30 ALR 519; Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 11–12, 626; R v Jiminez (1991) 53 A Crim R 56 (NSW CCA); R v JWM (1999) 107 A Crim R 267 (Qld CA).

[10.1080]

JUDGE

889

A judge must not say “why would the complainant lie?”: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 (HC).

[10.1080] On the accused’s evidence A judge must not make adverse comments on the accused’s failure to give evidence, or failure to speak to the police. See also Silence at [19.3900]. Similarly, a judge must not disparage the evidence given by an accused. In R v Router (1979) 14 ALR 365 (NSW CCA), Lee J said (at 377): The fact that the accused had given evidence on oath was not a matter which should have exposed him to a comment such as was made by the learned trial judge, a comment which, regrettably, had in it the element of a begrudging concession that “at least” the accused had taken a proper course in offering himself to cross-examination. Objectionable though it was, it would not, however, justify the granting of a new trial, but a new trial, on both counts, in my view, must be ordered because of the other defects in the summing-up which I have set out.

A judge must not say that the evidence of the accused should be scrutinised more carefully than that of other witnesses because of the accused’s interest in the outcome of the case. In De Rosa v Western Australia (2006) 32 WAR 136; 162 A Crim R 344 (CA) Roberts-Smith JA, with whom the others agreed, said (at 147; 355 [44]): The following propositions may be extracted from the authorities … (1) Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case. (2) The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused. That approach undermines the presumption of innocence. (3) The unfairness will be manifest where there is a conflict between the evidence of an accused and that of prosecution witnesses, and particularly so where the outcome turns on the jury’s preference for the evidence of the complainant against that of the accused. (4) The prohibition applies to a direction about the interest of a witness in the outcome of the trial; it does not preclude reference to any other interest or motive which a witness (including the accused) may have when giving evidence in the proceedings. (5) The unfairness flowing from such a direction may not be overcome by otherwise impeccable directions on the onus and standard of proof. (6) In an exceptional case, where the circumstances require some reference to the accused’s interest in the outcome as a matter of fairness to the accused, it should be sufficient to direct the jury they must approach the case on the basis the accused is presumed innocent of the acts the subject of the charge and that it would be wrong and unfair for them to discount the accused’s evidence, simply because he or she has a particular interest in the outcome of the trial. (7) The principle is to be rigorously applied and not to be eroded by Courts of Appeal or trial judges failing to faithfully apply the prohibition against the giving of a direction to evaluate the evidence of an accused on the basis of his or her interest in the outcome of the case.

890

ROSS ON CRIME

[10.1085]

Other cases Morris v The Queen (2006) 201 FLR 325 (WA CA); R v Haggag (1998) 101 A Crim R 593 (Vic CA) per Callaway JA at 598; R v Brown [1995] 1 Qd R 287 (CCA); R v Asquith (1994) 72 A Crim R 250 (NSW CCA); Stafford v The Queen (1993) 67 ALJR 510; Robinson v The Queen (1991) 180 CLR 531; 102 ALR 493; 55 A Crim R 318; J Gens, “Directions on the Accused’s Interest in the Outcome of the Trial” (1997) 21 Crim LJ 273. A judge must not say an accused has a motive to lie: Stafford v The Queen (1993) 67 ALJR 510; R v Asquith (1994) 72 A Crim R 250 at 255–260 (NSW CCA); R v Brown [1995] 1 Qd R 287 (CCA); Etherton v Western Australia (2005) 30 WAR 65; 153 A Crim R 64 (CA).

[10.1085] Not to alter prosecution case A judge should not, without notice, put the prosecution case in a way not put by the prosecutor: Robinson v The Queen (2006) 162 A Crim R 88 at 127–129 [137] – [149] (NSW CCA); R v Franco (2003) 139 A Crim R 228 (SA CCA); R v Green (2002) 4 VR 471; 128 A Crim R 513 at 479; 521–522 [23] (CA); Carr v The Queen (2000) 117 A Crim R 272 at 281–286 [36] – [49] (Tas CCA); R v GAS [1998] 3 VR 862; (1997) 98 A Crim R 80 (CA); R v Warburton-Pitt (1991) 92 Cr App R 136; R v Pureau (1990) 19 NSWLR 372; 47 A Crim R 230 (CCA); King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 436; 68 ALR 27; R v Utting [1987] 1 WLR 1375; (1987) 86 Cr App R 164 (CA).

[10.1090] Not to withdraw an element in issue A judge must not withdraw from the jury any element in issue. In Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545 Brennan, Dawson and Gaudron JJ said (at 79; 547; 167): A plea of not guilty puts all elements of the offence charged in issue and a trial judge is wrong to withdraw any element in issue from the jury, no matter how cogent a Crown case may be. That is not to say that a particular direction must be given as to each element of an offence in a case where no contest as to a particular element is raised in the conduct of the trial and where the evidence does not itself raise an issue as to the existence of that element. It is one thing not to give a direction on an issue; it is another to withdraw an issue from the jury’s consideration. In this case, the trial judge erroneously withdrew from the jury critical issues, the burden of proof of which lay on the Crown.

[10.1105]

JUDGE

891

[10.1095] Not to direct a reasoning towards guilt In RPS v The Queen (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 Gaudron A-CJ, Gummow, Kirby and Hayne JJ said (at 637; 741; 354 [43]): To attempt to instruct the jury about how they may reason towards a verdict of guilt (as distinct from warning the jury about impermissible forms of reasoning) leads only to difficulties of the kind that have arisen in the present case.

[10.1100] Not to disparage reasonable defence explanation On defence counsel’s final address, the judge should not disparage a reasonable explanation of the prosecution evidence. In Druett v The Queen (1994) 123 FLR 249 (NT CCA) Priestley J said (at 307): [T]he trial judge made errors of two kinds. One was to criticise what counsel had said on the basis he had not laid any foundation for the particular argument he was putting, when in fact he had. The other was to tell the jury not to speculate about possible explanations of the evidence suggested by counsel when there was no evidence to support the possibilities. In doing this, the judge was preventing any use by the accused of a well-established rule, that it is legitimate for an argument to be put to the jury, in final address, that the evidence before them is susceptible of a reasonable explanation other than that the accused committed the crime. This argument may be put whether or not the jury could conclude that the reasonable explanation was in fact the explanation. It is not necessary that the accused establish the explanation; what is necessary is that the explanation is, as a matter of reason, consistent with a version of the facts which it is open to the jury to find, upon the whole of the evidence: see Barca v The Queen (1975) 133 CLR 82 especially at 105.

[10.1105] Judge may comment on the evidence A judge may make balanced comments on the evidence. In B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 Brennan J said (at 605–606; 435–436; 229): A trial judge has a broad discretion in commenting on the facts and in choosing the strength of the language employed in commenting on the facts, but the comment must stop short of overawing the jury (Broadhurst v The Queen [1964] AC 441 at 464). It must exhibit a judicial balance (Green v The Queen (1971) 126 CLR 28 at 34) so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied on in support of the defence” (Stokes v The Queen (1960) 105 CLR 279 at 284). I agree with the observations of the Full Court of the Supreme Court of South Australia in R v Hulse (1971) 1 SASR 327 at 335: [T]o use the words of the Privy Council in Broadhurst’s case [1964] AC 441 (at 464) there is a danger of the jury being overawed by the judge’s views, where, even though the jury are told that the decision on the facts is for them, the language if the judge is so forceful that they may be under the impression that there is really nothing for them to decide or that they would be fatuous or disrespectful if they disagreed with the judge’s views. Whether his Honour went too far in deprecating the defence case depends on the impression gained by reading the summing up as a whole (Green v The Queen (1971) 126 CLR 28 at 34).

In RPS v The Queen (2000) 199 CLR 620; 168 ALR 729; 113 A Crim R 341 Gaudron ACJ, Gummow, Kirby and Hayne JJ said (at 637; 741; 354 [42]): [I]t has long been held that a trial judge may comment (and comment strongly) on factual issues. But although a trial judge may comment on the facts, the judge is not bound to do so except to the extent that the judge’s other functions require it. Often, perhaps much more often than not, the safer course for a trial judge will be to make no comment on the facts beyond reminding the jury, in the course of identifying the issues before them, of the arguments of counsel.

Whatever the comments, the judge must give a balanced direction: R v Lao (2002) 5 VR 129; 137 A Crim R 20 (CA); R v Mong (2002) 5 VR 565; 136 A Crim R 502 at 508–512 [21] – [30] (Vic CA).

892

ROSS ON CRIME

[10.1110]

Examples of comments resulting in an unbalanced direction: R v Hughes (1989) 42 A Crim R 270 (Vic CCA); Mears v The Queen [1993] 1 WLR 818; (1993) 97 Cr App R 239 (PC). See also Hermanus v The Queen [2015] VSCA 304.

[10.1110] Judge must not put pressure on the jury A judge must not put pressure on the jury to reach a verdict. In R v McKenna [1960] 1 QB 411; [1960] 1 All ER 326; 44 Cr App R 63 (CCA) Cassels J giving the judgment of the court said (at 422; 329; 73–74): It is a cardinal principle of our criminal law that in considering their verdict, concerning as it does, the liberty of the subject, a jury shall deliberate in complete freedom, uninfluenced by any promise, unintimidated by any threats. They will stand between the Crown and the subject, and they are still one of the main defences of personal liberty.

Thus the court held that it had been wrong of the trial judge to put a time limit on the return of a verdict. It is undue pressure on a jury for a judge to ask them if they need to retire to arrive at a verdict: Crosdale v The Queen [1995] 1 WLR 864; [1995] 2 All ER 500 at 875–876, 510 (PC). There is no difference if the question is asked by the clerk of the court: De Four v The State [1999] 1 WLR 1731 at 1737 (PC). It is also wrong for a judge to tell a jury that delay in or failure to reach a verdict would cause “considerable public inconvenience”: Black v The Queen (1993) 179 CLR 44; 118 ALR 209; 69 A Crim R 248. See also R v Yuill (1994) 34 NSWLR 179; 77 A Crim R 314 (CCA); R v Rose [1982] 1 WLR 614; [1982] 2 All ER 536. (The appeal [1982] AC 822; 2 All ER 731; 75 Cr App R 322 (HL) turned on whether a new trial could be ordered.) Black direction at [2.2500]; Jury at [10.2100]; and Verdict at [22.500].

[10.1115] Judge must disclose communication with jury In R v Gorman [1987] 1 WLR 545; [1987] 2 All ER 435; (1987) 85 Cr App R 121 (CCA) Lord Lane CJ, giving the judgment of the court said (at 550–551; 439–440; 126–127): Accordingly it seems to us that certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to consider its verdict. First of all, if the communication raises something unconnected with the trial, for example a request that some message be sent to a relative of one of the jurors, it can simply be dealt with without any reference to counsel and without bringing the jury back to court. We have been helpfully referred to a decision of this Court reported in Conner, The Times, June 26, 1985, where that very situation seems to have arisen. Secondly, in almost every other case a judge should state in open court the nature and content of the communication which he has received from the jury and, if he considers it helpful so to do, seek the assistance of counsel. This assistance will normally be sought before the jury is asked to return to court, and then, when the jury returns, the judge will deal with their communication. Exceptionally if, as in the present case, the communication from the jury contains information which the jury need not, and indeed should not, have imparted, such as details of voting figures, as we have called them, then, so far as possible the communication should be dealt with in the normal way, save that the judge should not disclose the detailed information which the jury ought not to have revealed. We may add, before parting with the case, that the object of these procedures, which should never be lost sight of, is this: first of all, to ensure that there is no suspicion of any private or secret

[10.1120]

JUDGE

893

communication between the court and jury, and secondly, to enable the judge to give proper and accurate assistance to the jury upon any matter of law or fact which is troubling them. If those principles are borne in mind, the judge will, one imagines, be able to avoid the danger of committing any material irregularity.

In R v Black (2007) 15 VR 551 (CA) Buchanan AP, with whom the others agreed, quoted the above extract from R v Gorman and said (at 555 [15]): The same basic rule and exceptions have been stated by Australian courts.

In R v Yuill (1994) 34 NSWLR 179; 77 A Crim R 314 (CCA) the court said in a joint judgment (at 190; 324): It has always been the basic rule that the contents of any communication between the jury and the trial judge must be disclosed to the parties in open court and recorded in the transcript … There are two exceptions to that basic rule. The first is where the communication concerns some subject which is unconnected with the issues which the jury have to determine – for example, a request by a juror to pass on a message to a relative about staying back late … The second is where the communication concerns some subject about which it was inappropriate for the jury to have communicated with the judge – the most obvious example being a disclosure of the voting figures when quite properly informing the judge of the existence of a disagreement.

Followed: R v Martin (No 2) (1997) 68 SASR 419; 94 A Crim R 357 (CCA) per Doyle CJ at 441; 381; Deemal-Hall v DPP (Cth) (1995) 65 SASR 495; 120 FLR 413 (CCA): judge not to disclose jury voting figures. In Ramstead v The Queen [1999] 2 AC 92; [1999] 2 WLR 698; [1999] 1 NZLR 513 (PC) the judge was given a note explaining reasons for the jury’s decision. The judge spoke to the foreman about it in Chambers. Counsel were not informed. The appeal was allowed. Other cases Ngati v The Queen (2008) 180 A Crim R 384 at 393 [32] – [34] (NSW CCA): trial judge should not reveal the jury’s voting figures. R v Black (2007) 15 VR 551 (CA). R v K; Ex parte Attorney-General (2002) 132 A Crim R 108 at 118–119 [29] (Qld CA). R v GAE (2000) 1 VR 198; 109 A Crim R 419 (CA) per Chernov JA at 230–231; 450–451 [104] – [108]. A B v The Queen [2013] VSCA 8 (communication between a party to a case and the court must involve all other parties).

[10.1120] Adequacy of judge’s directions In R v Stoddart (1909) 2 Cr App R 217 (five member CCA) the court said at 246: Every summing-up must be regarded in the light of the conduct of the trial and the questions which have been raised by the counsel for the prosecution and for the defence respectively.

Approved: Barker v The Queen (1983) 153 CLR 338; 47 ALR 1 at 368 per Brennan and Deane JJ; R v Taylor (2004) 10 VR 199; 149 A Crim R 399 (CA) per Charles and Nettle JJA at 209; 411 [37]; R v Deen [1964] Qd R 569 at 572 (CCA).

894

ROSS ON CRIME

[10.1125]

[10.1125] Not to question jury about verdict Save in exceptional circumstances, a judge should not question the jury on the meaning of their verdict. R v Spanos (2007) 99 SASR 487; 178 A Crim R 511 (CCA); R v Isaacs (1997) 41 NSWLR 374; 90 A Crim R 587 (CCA, five member court); R v Larkin [1943] KB 174; [1943] 1 All ER 217; (1942) 29 Cr App R 18. See also Verdict at [22.500].

[10.1130] Sentencing A sentencing judge must not take into account impressions of the accused derived from an earlier appearance before that judge: R v Feehan (unreported, Vic CCA, 2 October 1975); R v Slater (Goldberg) (unreported, Vic CCA, 6 April 1984). In Jambajimba v Dredge (1985) 33 NTR 19; 81 FLR 180 Muirhead ACJ said (at 21; 182): To reject a defendant’s testimony in one case, because he or she has been found unworthy of credit on a previous occasion, would be entirely wrong. That would illustrate bias.

Sentence increase by appellate court An increase in sentence by the state appellate court where the accused appealed occurred in Malvaso v The Queen (1989) 168 CLR 227; 43 A Crim R 451; 89 ALR 34. Mason CJ, Brennan and Gaudron JJ said (at 233; 38): Strict compliance with procedures which authorize an increase in sentence by an appellate court should be insisted on, as it was in Neal v The Queen (1982) 149 CLR 305, before a prisoner is deprived of the liberty left to him after sentencing at first instance.

See also Thompson v The Queen (1999) 73 ALJR 1319; 165 ALR 219; McL v The Queen (2000) 74 ALJR 1319; 174 ALR 1; 114 A Crim R 491.

[10.1135] Must maintain a neutral position Undue interruptions by the trial judge may show a failure to maintain a neutral position: R v Agostinelli (1995) 82 A Crim R 326 (SA CCA).

[10.1140] An over-speaking judge In Essays or Counsels Civil and Moral. Of Judicature Lord Chancellor Bacon wrote: Patience and gravity of hearing is an essential part of justice; and an over-speaking judge is no well-tuned cymbal.

Approved: Jones v National Coal Board [1957] 1 QB 55; [1957] 2 WLR 760; [1957] 2 All ER 155 (CA); R v Agostinelli (1995) 82 A Crim R 326 at 335 (SA CCA) [T]; R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 (CCA) per Wood CJ at CL at 469; 54.

[10.1155]

JUDGE

895

[10.1145] Not to be a sphinx In Brouillard v The Queen [1985] 1 SCR 39; (1985) 16 DLR (4th) 447; 17 CCC (3d) 193 (SCC), Lamer J giving the judgment of the court said (at 44; 50; 196): [I]t is clear that judges are no longer required to be as passive as they once were; to be what I call sphinx judges. We now not only accept that a judge may intervene in the adversarial debate, but also believe that it is also essential for him to do so for justice in fact to be done. Thus a judge may and sometimes must ask witnesses questions, interrupt them in their testimony and if necessary call them to order.

In Chow v DPP (1992) 28 NSWLR 593; 63 A Crim R 316 (CCA) Kirby P said (at 606; 327): [A] silent judge is nowadays regarded, more often than not, as a menace.

Both approved: R v Palmieri [1998] 1 VR 486; (1997) 91 A Crim R 120 per Charles JA at 498–499; 133 (CCA). In Johnson v Johnson (2000) 201 CLR 488; 174 ALR 655 (HC) five of the justices said in a joint judgment (at 493; 658 [13]): At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person expecting a judge to remain, until the moment of judgment, as inscrutable as the Sphinx.

[10.1150] Not to descend to the arena In Yuill v Yuill [1945] P 15; [1945] 1 All ER 183 (CA) Lord Greene MR said (at 20; 189): A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict.

Approved: R v Murphy (1986) 5 NSWLR 18; 23 A Crim R 349 at 40, 370 (Hunt J); R v Palmieri [1998] 1 VR 486; (1997) 91 A Crim R 120 at 498–499,132–133 (CA); R v Esposito (1998) 45 NSWLR 442; 105 A Crim R 27 at 467–473, 52–57 (CCA); Hoare Bros Pty Ltd v Magistrates Court (Vic) (2003) 142 A Crim R 330 (Vic, Balmford J); Jones v National Coal Board [1957] 2 QB 55 (CA) at 63 per Denning LJ. See also R v Agostinelli (1995) 82 A Crim R 326 (SA CCA); R v Frixou [1998] Crim L R 352 (CA).

[10.1155] Some occupants of the bench Young appointments John Lewes Pedder (1793–1859). Appointed as the first Chief Justice of the Tasmanian Supreme Court on 4 March 1824 aged 30. Lake Pedder was named after him. He resigned in 1854 after a stroke. Algernon Sidney Montague (1802–1880). Appointed to the Tasmanian Supreme Court on 1 February 1833, probably aged 30.

896

ROSS ON CRIME

[10.1155]

Donald Arthur Roberts (1889–1958). Appointed to the Northern Territory Supreme Court on 11 November 1921, aged 32. (He resigned on 4 July 1928.) Paul de Jersey (b 21 September 1948). Appointed to the Queensland Supreme Court on 4 February 1985, aged 36. Alfred Stephen (b 20 August 1802). Appointed to the New South Wales Supreme Court on 30 April 1839, aged 36. He was Chief Justice from 1844–1873. Herbert Vere Evatt (b 30 April 1894). Appointed to the High Court on 19 December 1930, aged 36. (He resigned on 2 September 1940). John Alfred Dowsett (b 27 April 1948). Appointed to the Queensland Supreme Court on 29 July 1985, aged 37. Redmond Barry (1813–1880). Appointed to the Victorian Supreme Court, aged 38. Peter Ross Awdry Gray (b 9 May 1946). Appointed to the Federal Court on 17 May 1984, aged 38. Edward Aloysius McTiernan (b 16 February 1892). Appointed to the High Court on 30 December 1930, aged 38. Edward Eyre Williams (1813–1880). Appointed to the Victorian Supreme Court, aged 39. Michael David Andrew Maurice (b 12 September 1945). Appointed to the Northern Territory Supreme Court on 21 September 1984, aged 39. (He resigned on 30 January 1988.) David John Davies Bevan (1873–1954). Appointed to the Northern Territory Supreme Court on 23 May 1912, aged 39. Nye Perram (b 29 January 1969). Appointed to the Federal Court on 8 August 2008, aged 39. Shane Raymond Marshall (b 17 November 1955). Appointed to the Federal Court on 17 July 1995, aged 39. Robert Shenton French (b 19 March 1947). Appointed to the Federal Court on 25 November 1986 aged 39. Appointed as 12th Chief Justice of the High Court on 1 September 2008. Robert Johnstone Douglas (b 3 April 1883). Appointed to the Queensland Supreme Court on 24 January 1923, aged 39. He retired on his 70th birthday. Samuel James Way (b 11 April 1836). Appointed Chief Justice of the South Australian Supreme Court in March 1876, aged 39. He retained that office until his death 40 years later. Francis Forbes (1784–1841). Appointed first Chief Justice of New South Wales in October 1823 aged 39. He had been appointed Chief Justice of Newfoundland in 1816 aged 31. The town Forbes is probably named after him. Gerald Edward (Tony) Fitzgerald (b 26 November 1941). Appointed to the Federal Court on 19 November 1981, aged 39.

Appointment to Supreme Court direct from magistracy Sally Gordon Thomas (b 7 August 1939) was a Northern Territory magistrate 1978–1986, Chief Magistrate 1986–1992 whereupon she was appointed to the Northern Territory Supreme Court and sat 1992–2009. Guy Stephen Montague Green (b 1937) was a magistrate 1971–1973 then appointed Chief Justice of the Tasmanian Supreme Court 1973–1995, then Governor 1995–2003.

[10.1155]

JUDGE

897

George Henry Walters (1914–2002) was a South Australian magistrate 1950–1957, deputy master then master (1957–1965), registrar of the High Court (1961–1965), then Supreme Court judge (1966–1984). William Peter Maria Zeeman (1944–1998) was a magistrate and coroner for Tasmania 1978–1981. He was appointed to the Tasmanian Supreme Court in 1990. He died in office. Shan Eve Tennent was a magistrate and coroner for Tasmania 1998–2005. She was the first woman appointed to the Tasmanian Supreme Court in 2005.

Early resignations Albert Bathurst Piddington (1862–1945). Appointed to the High Court in 1913. He declined to be sworn in, and never sat. Donald Arthur Roberts (1889–1958) resigned from the Northern Territory Supreme Court on 4 July 1928 after six and a half years on the bench. He was 38. Michael David Andrew Maurice (b 12 September 1945) resigned from the Northern Territory Supreme Court on 30 January 1988 after three years and four months on the bench. He was 42. Gerald Edward (Tony) Fitzgerald (b 26 November 1941) couldn’t stay on one bench for long. Appointed to the Federal Court on 19 November 1981, resigned on 30 June 1984. Returned to the Bar. Was the Commissioner of Inquiry into “Possible Illegal Activities and Associated Police Misconduct” beginning 1987. Appointed President Queensland Court of Appeal 1991. Resigned on 30 June 1998 and took an acting, then permanent position on New South Wales Supreme Court on 1 July 1998. Resigned from that on 16 April 2001. Vince Bruce (b 6 December 1942) resigned from the New South Wales Supreme Court on 8 March 1999 after four years and nine months on the bench. He was 56. Gaetano (Tony) Pagone (b 31 July 1955) sat on the Victorian Supreme Court for less than a year. He was appointed on 10 October 2001 and resigned on 30 June 2002. He was appointed again to the same court on 19 May 2007. Jeffrey William Shaw (b 10 October 1949) was appointed to the New South Wales Supreme Court on 4 February 2003. He resigned on 12 November 2004, a month after driving with a blood alcohol content of .225% and crashing into a parked car. Neil John Young (b 7 January 1952) was appointed to the Federal Court on 30 November 2005 and resigned on 24 January 2007. Stuart Ross Morris (b 21 July 1950) was appointed to the Victorian Supreme Court on 9 April 2003. He resigned on 21 March 2007.

Old retirements Legislation now puts the age of statutory senility at 70 years. Before then some judges sat until an advanced age. George Edward Rich (b 3 May 1863) retired from the High Court on his 87th birthday (3 May 1950), after 37 years on the bench. Edward Aloysius McTiernan (b 16 February 1892) retired from the High Court on 12 September 1976, aged 84, after 46 years on the bench. Thomas John Mellis Napier (b 24 October 1882). Appointed to the South Australian Supreme Court in February 1924. Appointed Chief Justice 1942. Retired 1 March 1967 aged 84 after 43 years on the bench.

898

ROSS ON CRIME

[10.1155]

Frank Gavan Duffy (b 29 February 1852) was appointed to the High Court in 1913, became its Chief Justice at the age of 78 and retired on 1 October 1935 aged 83. Reginald Alfree Smithers (b 3 February 1903) retired from what became the Federal Court on 30 September 1986, aged 83. Percy Ernest Joske (b 5 October 1895) retired from the Australian Industrial Court on 31 December 1977, aged 82. Thomas a’Beckett (b 31 August 1836) retired from the Victorian Supreme Court on 30 June 1917, aged 80, after 30 years on the bench. Charles Augustine Sweeney (b 27 April 1915) was appointed to various benches from 1963 and ultimately to the Federal Court in 1970. He retired from that court on 29 July 1995 aged 80.

Removal from office Francis Maxwell Douglas QC of the NSW Bar had possibly the briefest time ever on the bench. Five days. On Monday April 6, 2009 he was sworn in as a Justice of Appeal on the Supreme Court of Fiji. On Wednesday April 8 the Court of Appeal held that the military regime governing Fiji was unconstitutional and illegal. On Friday April 10 the military regime sacked him and other judges. He returned to the New South Wales Bar. Algernon Sidney Montague (1802–1880). Appointed to the Tasmanian Supreme Court on 1 February 1833. “Amoved” 31 December 1847. Benjamin Boothby (1803–1868). Appointed to the South Australian Supreme Court on 25 February 1853. “Amoved” by motion of the Parliament on 29 July 1867. David John Davies Bevan (1873–1954). Appointed to the Northern Territory Supreme Court on 23 May 1912. Removed on 22 September 1920 as notified in the Government Gazette (Cth). Angelo Vasta (b 8 January 1941). Appointed to the Queensland Supreme Court on 13 February 1984. Removed by motion of Parliament on 8 June 1989. Vince Bruce (b 6 December 1942). Appointed to the New South Wales Supreme Court on 4 July 1994. He was alleged to be dilatory. At one stage, he was reserved on 33 judgments. Parliament was addressed for his removal. He made a speech to the Upper House citing a depressive illness. The House voted on 25 June 1998, the motion was lost 16–24, and he stayed in office. He resigned on 8 March 1999. In Meerabux v Attorney-General of Belize [2005] 2 AC 513; [2005] 2 WLR 1307 (PC) George Meerabux, a former justice of the Supreme Court of Belize lost his appeal to the Privy Council against his removal. He had given no evidence in reply to the allegations against him. Lord Hope, giving the advice of the Board, referred to the allegations (at 522; 1312–1313 [9]): Four matters in particular were raised: (i) an allegation that the appellant had colluded with Mr Gian Gandhi, then the Solicitor General of Belize, in preparing his judgment in a case in which Mr Gandhi had appeared on behalf of the Attorney General; (ii) an allegation that the appellant was willing to interfere improperly with the functions of the justice system, in that he met Mr Orlando de la Fuente, who was a party to a child custody case before another judge, and informed him that if he had known about the matter he would have transferred the case into his own court and awarded him custody of the child; (iii) an allegation that the appellant entered into an intimate relationship with Miss Ruth Guerra while she was a defendant in criminal proceedings, in the course of which he varied her bail conditions on at least two occasions without there having been any formal applications to that effect; and (iv) an allegation that on two occasions he had received gifts or money from litigants appearing before him and that he had held himself out as willing to use his office for improper gains.

[10.1165]

JUDGE

899

See also Bruce v Cole (1998) 45 NSWLR 163 (CA).

Longest title The judge who may have the longest legal title in the Common Law world is The Lord Chief Justice of England and Wales and President of the Courts of England and Wales, and Head of Criminal Justice Lord Judge (appointed October 1, 2008).

Removal from office: legislation Cth: Constitution, s 72; Federal Court of Australia Act 1976 s 6(1)(b); Qld: Constitution Act 1867 s 16; District Court of Queensland Act 1967 s 15; WA: Constitution Act 1889 s 55; District Court of Western Australia Act 1969 s 11(1); Tas: Supreme Court (Judges’ Independence) Act 1857 s 1; NT: Supreme Court Act s 40; NSW: Constitution Act 1902 s 53; Vic: Constitution Act 1975 s 77; County Court Act 1958 s 9(2); SA: Constitution Act 1934 s 75; District Court Act 1991 s 15; ACT: Judicial Commissions Act 1994 s 5.

[10.1160] Judges’s oath of office I, .......... , do swear that I will bear true allegiance to Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, that I will well and truly serve Her in the Office of Chief Justice [or Justice] of the High Court of Australia and that I will do right to all manner of people according to law without fear or favour, affection or ill-will. So Help me God! or I, .......... , do solemnly and sincerely promise and declare that [as above, omitting the words “So help me God!”].

(Cth: High Court of Australia Act 1979, Schedule) It is a curious oath compared with that taken by those who become citizens of Australia. The oath of citizenship is: From this time forward (under God) I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect, and whose laws I will uphold and obey.

[10.1165] Writings about judges Books Kirby J, The Judges (1983 Boyer Lectures), Sydney, Australian Broadcasting Corporation; Lord Devlin, The Judge, London, OUP, 1979; E Neumann, The High Court of Australia, University of Sydney, 1973.

Articles Crennan J, “Scepticism and judicial method” (2008) 82 ALJ 169-179; David Ross QC, “A Good Judge” (2005) 26 Aust Bar Rev 102-109;

900

ROSS ON CRIME

[10.1170]

Heydon JA, “Judicial Activism and the Death of the Rule of Law” (2003) 23 Aust Bar Rev 110-133; [2003] Quadrant 9-22; Lord Rodger, “The Form and Language of Judicial Opinions” (2002) 118 LQR 226-247; Gleeson CJ, “The State of the Judicature” (2000) 74 ALJ 147-158; McHugh J, “The Judicial Method” (1999) 73 ALR 37-51; Buchan John, “The Judicial Temperament” (1999) 73 ALJ 260-269; Kirby J, “Judging: Reflections of the Moment of Decision” (1999) 18 Aust Bar Rev 4-22; Campbell E, “Suspension of Judges from Office” (1999) 18 Aust Bar Rev 63-78; Gleeson CJ, “Who do Judges Think They Are” (1998) 22 Crim LJ 10-16; Clarke J, “Ex Tempore Judgments” (1997) 8 DL (No 11) 1; Mason Sir Anthony, “The Judge as Law-maker” (1997) 3 JCULR 1; Miles CJ et al, “Declarations of Principles of Judicial Independence” (1997) 8 PLR 114-115; Brennan CJ, “Why be a Judge” (1996) 14 Aust Bar Rev 89-96; Kirby P, “Reasons for Judgment: Always Possible, Usually Desirable and Often Obligatory” (1994) 12 Aust Bar Rev 121-136; Gibbs CJ, “The State of the Australian Judicature” (1985) 69 ALJ 522-528; King CJ, “Minimum Standards of Judicial Independence” (1984) 58 ALJ 340-345; Stephen J, “Judicial Independence: A Fragile Bastion” (1982) 13 MULR 334-348; Brennan J, “Limits of the Use of Judges” (1978) FL Rev 1-14.

[10.1170] Reference to other directions Depending on the nature of the case, the judge may have to give the jury different directions. Some of them are: • Azzopardi direction; • Black direction; • Burns direction; • Edwards direction; • Kirby warning; • Liberato direction; • Longman warning; • McKinney direction; • Murray direction; • Papadopoulos direction; • Prasad direction; • Shepherd direction; • Vetrovec warning;

[10.1305]

JUDGES’ RULES

901

• Zoneff direction.

JUDGES’ RULES Meaning and origin ................................................................................................................... The Rules .................................................................................................................................. Effect ......................................................................................................................................... Current application .................................................................................................................... No application in the United Kingdom .................................................................................... Writings ..................................................................................................................................... Other references ........................................................................................................................

[10.1300] [10.1305] [10.1310] [10.1315] [10.1320] [10.1325] [10.1330]

[10.1300] Meaning and origin Judges’ Rules were recommendations by the English judges. They were suggestions to police on how properly to speak with suspected persons and what a judge should take into account when considering the admissibility of a confession. In R v Voisin [1918] 1 KB 531; [1918-19] All ER Rep 491 (CCA) AT Lawrence J, giving the judgment of the court, said in the final paragraph (at 539–540; 494): In 1912 the judges, at the request of the Home Secretary, drew up some rules as guides for police officers. These rules have not the force of law. They are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial.

[10.1305] The Rules The last revision of the Judges’ Rules was issued by Lord Parker CJ and reported as Practice Note [1964] 1 WLR 152–158; [1964] 1 All ER 237–239. They came into force on January 27, 1964. The revision was as follows: Judges’ Rules 1. When a police officer is trying to discover whether, or by whom, an offence has been committed he is entitled to question any person, whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it. 2. As soon as a police officer has evidence which would afford reasonable grounds for suspecting that a person has committed an offence, he shall caution that person or cause him to be cuationed before putting to him any questions, or further questions, relating to that offence. The caution shall be in the following terms: You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence. When after being cautioned a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any such questioning or statement began and ended and of the persons present. 3.

(a) Where a person is charged with or informed that he may be prosecuted for an offence he shall be cautioned in the following terms: Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and may be given in evidence.

902

ROSS ON CRIME

[10.1305]

(b) It is only in exceptional cases that questions relating to the offence should be put to the accused person after he has been charged or informed that he may be prosecuted. Such questions may be put where they are necessary for the purpose of preventing or minimising harm or loss to some other person or to the public or for clearing up an ambiguity in a previous answer or statement. Before any such questions are put the accused should be cautioned in these terms: I wish to put some questions to you about the offence with which you have been charged (or about the offence for which you may be prosecuted). You are not obliged to answer any of these questions, but if you do the questions and anwers will be taken down in writing and may be given in evidence. Any questions put and answers given relating to the offence must be contemporaneously recorded in full and the record signed by that person of if he refused by the interrogating officer. (c) When such a person is being questioned, or elects to make a statement, a record shall be kept of the time and place at which any questioning or statement began and ended and of the persons present. 4. All the written statements made after caution shall be taken in the following manner: (a) If a person says that he wants to make a statement he shall be told that it is intended to make a written record of what he says. He shall always be asked whether he wishes to write down himself what he wants to say; if he says that he cannot write or that he would like someone to write it for him, a police officer may offer to write the statement for him. If he accepts the offer the police officer shall, before starting, ask the person making the statement t to sign, or make his mark to, the following: I, .........., wish to make a statement. I want someone to write down what I say. I have been told that I need not say anything unless I wish to do so and that whatever I say may be given in evidence. (b) Any person writing his own statement shall be allowed to do so without any prompting as distinct from indicating to him what matters are material. (c) The person making the statement, if he is going to write it himself, shall be asked to write out and sign before writing what he wants to say, the following: I make this statement of my own free will. I have been told that I need not say anything unless I wish to do so and that whatever I say may given in evidence. (d) Whenever a police officer writes the statement, he shall take down the exact words spoken by the person making the statement, without putting any questions other than such as may be needed to make the statement coherent, intelligible and relevant to the material matters: he shall not prompt him. (e) When the writing of a statement by a police officer is finished the person making it shall be asked to read it and to make any corrections, alterations or additions he wishes. When he has finished reading it he shall be asked to write and sign or make his mark on the following certificate at the end of the statement: I have read the above statement and I have been told that I can correct, alter or add anything I wish. This statement is true. I have made it of my own free will. (f) If the person who has made a statement refuses to read it or to write the above mentioned certificate at the end of it or to sign it, the senior police officer present shall record on the statement itself and in the presence of the person making it, what has happened. If the person making the statement cannot read,

[10.1315]

JUDGES’ RULES

903

or refuses to read it, the officer who has taken it down shall read it over to him and ask him whether he would like to correct, alter or add anything and to put his signature or make his mark at the end. The police officer shall then certify on the statement itself what he has done. 5. If at any time after a person has been charged with, or has been informed that he may be prosecuted for an offence a police officer wishes to bring to the notice of that person any written statement made by another person who in respect of the same offence has also been charged or informed that he may be prosecuted, he shall hand to that person a true copy of such written statement, but nothing shall be said or done to invite any reply or comment. If that person says that he would like to make a statement in reply, or starts to say something, he shall at once be cautioned or further cautioned as prescribed by rule 3 (a). 6. Persons other than police officers charged with the duty of investigating offences or charging offenders shall, so far as may be practicable, comply with these rules (3).

[10.1310] Effect In Peart v The Queen [2006] 1 WLR 970 (PC) the Board advised (at 982 [24]): (i) The Judges’ Rules are administrative directions, not rules of law, but possess considerable importance as embodying the standard of fairness which ought to be observed. (ii) The judicial power is not limited or circumscribed by the Judges’ Rules. A court may allow a prisoner’s statement to be admitted notwithstanding a breach of the Judges’ Rules; conversely, the court may refuse to admit it even if the terms of the Judges’ Rules have been followed. (iii) If a prisoner has been charged, the Judges’ Rules require that he should not be questioned in the absence of exceptional circumstances. The court may nevertheless admit a statement made in response to such questioning, even if there are no exceptional circumstances, if it regards it as right to do so, but would need to be satisfied that it was fair to admit it. The increased vulnerability of the prisoner’s position after being charged and the pressure to speak, with the risk of self-incrimination or causing prejudice to his case, militate against admitting such a statement. (iv) The criterion for admission of a statement is fairness. The voluntary nature of the statement is the major factor in determining fairness. If it is not voluntary, it will not be admitted. If it is voluntary, that constitutes a strong reason in favour of admitting it, notwithstanding a breach of the Judges’ Rules; but the court may rule that it would be unfair to do so even if the statement was voluntary.

[10.1315] Current application The Judges’ Rules still influence courts. In R v Maratabanga (1993) 3 NTLR 77; 114 FLR 117 (Mildren J) his Honour held (at 86): Rule 1 of the Judges’ Rules permits a police officer to put questions to any person, whether suspected or not, from whom he thinks useful information can be obtained. Rule 2 requires a cuation to be given whenever the police officer has made up his mind to charge that person with a crime. These Rules do not have the force of law in Australia, although they are taken into account in deciding whether or not to admit confessins: see Van Der Meer and Others v the Queen (1988) 82 ALR 10 at 15; 62 ALJR 656 at 658, per Mason CJ.

Other cases R v Swaffıeld (1998) 192 CLR 159; 96 A Crim R 96; 151 ALR 98 per Toohey, Gaudron and Gummow JJ at [94]; R v Davidson (1996) 92 A Crim R 1 (Qld CA) per Macrossan CJ and Mackenzie J at 5–6;

904

ROSS ON CRIME

[10.1320]

Peart v The Queen [2006] 1 WLR 970 (PC).

[10.1320] No application in the United Kingdom Legislation In the United Kingdom, the Judges’ Rules no longer apply. The Police and Criminal Evidence Act 1984 (UK) has supervened. The legislation is usually called by its acronym PACE Act. The Secretary of State issues Codes of Practice under PACE Act. Code 10 sets out the police requirement to give a caution to a suspect. Code 11 regulates police interview generally.

Cases under PACE Act on cautions R v Hunt [1992] Crim LR 582 (CA); R v Sparks [1991] Crim LR 128 (CA).

[10.1325] Writings GL Teh, “An examination of Judges’ Rules in Australia” (1972) 46 ALJ 489.

[10.1330] Other references See also Caution at [3.900]; Confession at [3.5300].

JUDICIAL NOTICE Definition ................................................................................................................................... Acts of Parliament .................................................................................................................... Regulations ................................................................................................................................ Signatures of officials ............................................................................................................... Scientific instruments ................................................................................................................ Notorious facts – generally ...................................................................................................... Notorious facts – particular examples ...................................................................................... Judicial notice by legislation .................................................................................................... Other references ........................................................................................................................

[10.1500] [10.1505] [10.1510] [10.1515] [10.1520] [10.1525] [10.1530] [10.1535] [10.1540]

[10.1500] Definition Certain matters are so well known that they do not have to be proved by evidence. Of those matters a court will take judicial notice. In Simpson v The Queen (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19 Gaudron and McHugh JJ said (at 234; 575; 23 [14]): A judge called on to take judicial notice of a fact may have regard to any fact or matter that is within the knowledge of “every well-informed person in Australia”. Furthermore, in an appropriate case, the judge may cause “inquiries to be made by himself for his own information from sources to which it is proper for him to refer”.

In Ward v Western Australia (1998) 159 ALR 483 (FCA) Lee J said (at 498): In addition to taking judicial notice of the facts of history, whether past or contemporaneous, the court, of course, was entitled to rely on its own historical knowledge and research: see Monarch Steamship Co Ltd v A/B Karlshamms Oljebriker [1949] AC 196 at 234; Reid v Bishop of Lincoln [1892] AC 644 per Lord Halsbury at 652–4; Calder v Attorney-General (British Columbia) [1973] SCR 313 per Hall J at 346.

[10.1520]

JUDICIAL NOTICE

905

In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 McHugh J examined the theory and practice of judicial notice (at 478–481; 157–159 [64] – [70]).

[10.1505] Acts of Parliament Judicial notice is always taken of Acts and no proof is necessary. See also Uniform Evidence Acts s 143; Acts and Regulations Publication Act 1989 s 16A (NZ). In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 Gleeson CJ and Kirby J said (at 501; 423 [2]): In a society in which many personal, social and commercial activities are closely regulated, and the schemes of regulation are frequently changed, the detail of regulation may be difficult for citizens and their lawyers to keep up with. Courts themselves normally require evidence of regulations as distinct from statutes.

[10.1510] Regulations Various statutory provisions facilitate proof of regulations: Uniform Evidence Acts s 143(1)(b); Qld: Evidence Act 1977 ss 45, 48, 50; WA: Evidence Act 1906 s 56; SA: Evidence Act 1929 ss 35, 37–37G; NZ: Acts and Regulations Publication Act 1989 s 16B. Otherwise the regulations should be tendered: Schuett v McKenzie [1968] VR 225 (Winneke CJ); Ready v Ross [1973] VR 462 (McInerney J).

[10.1515] Signatures of officials The matter of official signatures was raised in R v Marijancevic (1991) 54 A Crim R 431 (Vic CCA). Stating the conclusion on proof of prior convictions, the court said in a joint judgment (at 450): Accordingly, we consider it to be the law that, if a handwritten signature appears above the description “Registrar of the County Court”, s 395(4) operates to require the court in which the document is tendered to receive that document as proof of the facts set out in it. Further, a document will be similarly admissible if what appears is a facsimile signature apparently impressed thereon by means of a stamp. It still “purports” to be the “signature” of the Registrar. And the court does not require evidence of the giving of the authority pursuant to which the stamp was so impressed, any more than it would do so if the signature were apparently handwritten. It follows that the judge was correct in ruling that the certificate was admissible.

There are numerous statutes which provide that judicial notice shall be taken of the signatures of various persons attached to official documents: Uniform Evidence Acts s 150(3). WA: Evidence Act 1906 ss 58 and 59; SA: Evidence Act 1929 s 39. Yet in Marijancevic v Risdale (2008) 183 A Crim R 574 (Vic, Williams J) her Honour held that some legislation allowed an unsigned certificate to be evidence.

[10.1520] Scientific instruments There is a common law presumption that scientific instruments are accurate. Courts will require stricter proof for a time but in later cases such evidence may be dispensed with. The presumption can be rebutted.

906

ROSS ON CRIME

[10.1525]

Courts do not now normally require proof of the following.

Speedometer Thompson v Kovacs [1959] VR 229 at 233 (Sholl J); Redman v Klun (1979) 20 SASR 343 (FC); Re Appeal of White (1987) 9 NSWLR 427; 31 A Crim R 194 (Shadbolt DCJ); Police (SA) v Tereschenko (2000) 32 MVR 249 (SA, Duggan J); Avins v Garvey (2001) 35 MVR 277 (WA, Miller J).

Speed camera Radalj v Taylor (1997) 98 A Crim R 170; 26 MVR 11 (WA, Heenan J).

Tape measure Mitchell v WS Kimpton & Sons Pty Ltd [1971] VR 583 (FC).

Computer generated documents Rook v Maynard (1993) 2 Tas R 97; 126 ALR 150; 70 A Crim R 133 (Wright J).

Satellite navigation system Chiou Yaou Fa v Morris (1987) 46 NTR 1; 87 FLR 37; 27 A Crim R 342 (FC).

Measuring instruments (for fish and generally) Breedon v Kongras (1996) 16 WAR 66; 85 A Crim R 472 (Owen J); Crosthwaite v Loader (1995) 77 A Crim R 348 at 358 (Qld CA).

[10.1525] Notorious facts – generally R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149 (CCA) was a guideline judgment on sentence for armed robbery. The court examined the frequency of the offence and the effect on victims. In this setting Spigelman CJ said (at 364; 165 [75] – [76]): The Court may “notice” certain notorious facts of which ordinary persons are presumed to be aware. The court can “notice” such facts either directly, or after being “reminded” of such facts by appropriate information or evidence: see, for example, Holland v Jones at 153. The court may make reference to works of reference or authority in order to “remind it” of what it “knows”: see McQuaker v Goddard [1940] 1 KB 687 at 700–701. Sometimes evidence will be required. The information which the court acquires in this way is not “evidence strictly so-called”: see McQuaker v Goddard [1940] 1 KB 687 at 700; Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 691; Saul v Menon (1980) 2 NSWLR 314 at 325; Wigmore on Evidence (3rd ed, 1940), par 2568a; Stone and Wells, Evidence, Its History and Policies (1991), p 174; Nokes, “The Limits of Judicial Notice” (1958), p 74 Law Quarterly Review 59 at 63. Nor, in my opinion, is “knowledge”, of which proof is not required under s 144 of the Evidence Act, “evidence strictly so-called”.

JV Barry KC in “The Ambit of Counsel’s Address” (1942) 15 ALJ 368 wrote at 372: According to Thayer, “Whatever a court will notice without proof it may state to the jury, or allow to be stated without proof. Just as it is safe, and even necessary, to assume that juries, witnesses, counsel, and parties, as well as the Court itself, all understand the ordinary meaning of language, and have enough capacity, training, and experience to conduct ordinary business, and to understand

[10.1530]

JUDICIAL NOTICE

907

it when it is talked about, so and upon like grounds it is assumed that they all know certain conspicuous and generally known facts, and are capable of making certain obvious applications of their knowledge … Certain great facts in literature and in history will be noticed without proof; eg what in a general way the Bible is, or Aesop’s Fables, or who Columbus was; but to particular details of the contents of these books or of Columbus’s discoveries it may well be otherwise. A knowledge will be assumed of the nature and effects of familiar articles of food and drink in ordinary use and an infinite number of like matters.”

In Simpson v The Queen (1998) 194 CLR 228; 155 ALR 571; 103 A Crim R 19 Gaudron and McHugh JJ said (at 234–235; 575; 23–24 [15]): The consequences of using many common objects and substances are widely known in the Australian community. That guns kill, that acid burns, that flame ignites household gas and that driving on the wrong side of the road is likely to cause a collision, for example, are matters so well known in the Australian community that a jury can safely infer that the accused knew about such matters when they are relevant to a charge under s 157(1)(c) of the Criminal Code. Ordinary members of that community are also well aware of the consequences that can follow from most uses of knives, fire, gas, electricity and explosives. In cases where the accused has caused the death of a person by using such an object or substance, it will usually be open to a jury, acting reasonably, to infer that the accused knew what could follow from its use.

[10.1530] Notorious facts – particular examples Calendar The date of Good Friday 2002: Pikos v Bezuidenhout (2004) 145 A Crim R 544 at 546 [11] (Qld CA).

Climate In summer it is hotter in northern Victoria than in Melbourne: Grasso v Love [1980] VR 163 (FC) at 169–170. Sunset in Tasmania is never as late as 8.45 pm: Warren v Pilkington [1960] Tas SR 6 (This was before daylight saving). At 5 pm in February during daylight saving time in South Australia there are still some hours of daylight left: R v Caruso (1988) 49 SASR 465; 37 A Crim R 1 at 469, 6 (CCA). Rain falls from time to time: Fay v Prentice (1845) 14 LJCP 298 at 299.

Distances A court cannot take judicial notice of distance unless it is notorious. Nor can the court use a street directory to calculate distance: Bailey v City Smash Repairs (Vic) Pty Ltd (1998) 27 MVR 545 (Vic, Smith J).

Fingerprints Individual human finger prints are unique: R v Parker (1912) 14 CLR 681.

School age and school hours In Sullivan v Gordon (1999) 47 NSWLR 319 (CA: five member court) Beazley JA giving the leading judgment said (at [76]): There was of course no evidence as to the age at which children start and finish school or of school hours. However, these are matters of common knowledge and the Court is entitled to act on that basis: Evidence Act 1995 (NSW), s 144.

Cannabis In Horman v Bingham [1972] VR 29 Newton J took judicial notice of the position of cannabis seeds. He said (at 34):

908

ROSS ON CRIME

[10.1530]

[I]t is open to a court to take judicial notice of an indisputable botanical fact such as the position of seeds upon a plant, at all events in a case where the fact is well known to all persons having any acquaintance with the plant in question, and may readily be verified by means of standard works of reference, and is not disputed in the course of the proceedings before the Court.

However, judicial notice will not be taken of normal yield and value: R v McCourt (1993) 69 A Crim R 151 (SA CCA) at 156–158. Judicial notice was taken of the term “grass”: Ringstaad v Butler [1978] 1 NSWLR 754 at 757 (Cantor J). In R v Stavropoulos (1990) 50 A Crim R 315 (Vic CCA) McGarvie J said (at 324): The courts have taken judicial notice that offences concerning a drug such as cannabis are much less heinous than those concerning a drug such as heroin: see Piercey [1971] VR 647 at 650–651; Tait and Bartley (1979) 46 FLR 386 at 397; Wiltshire (unreported, Court of Criminal Appeal, 10 June 1981); Kloss (1983) 47 ALR 692.

Aboriginal trackers In R v Harris (1997) 7 NTLR 1; 94 A Crim R 454 Bailey J ruled (at 4; 457): [J]udicial notice may be taken of the widely recognised abilities of Aboriginal trackers. In particular it is well known and widely accepted that trackers have rendered very substantial assistance to the authorities and others in locating missing persons by following footprints and other indications of a person’s movements in natural environments.

Cigarettes No judicial notice was taken that Winfield was a brand of cigarettes. In DPP v United Telecasters Sydney Ltd (1990) 168 CLR 594 Brennan, Dawson and Gaudron JJ said (at 597): [E]vidence was admitted in the form of a packet of Winfield cigarettes and a colour photograph of an advertising hoarding which showed an open packet of Winfield cigarettes.

Further (at 598–599): The existence of that product and the fact that it was sold in red and white packets bearing the name “Winfield” were not matters of which judicial notice could have been or was taken. Knowledge of those facts may have been widespread but they could not have been said to be notorious or even matters of common knowledge. They were, therefore, facts to be proved in the ordinary way.

Disease HIV is a life-endangering illness: Mutemeri v Cheesman [1998] 4 VR 484; (1998) 100 A Crim R 397 (Mandie J).

Magistrates and local knowledge The following matters are properly taken into account by magistrates as common local knowledge. The distance between the town where the court is sitting and another town: Malone v Smith (1945) 63 WN (NSW) 54 (Owen J); Blatchford v Dempsey [1956] SASR 285 (Ross J). The nature of the only bend in a particular road: Kent v Scattini [1961] WAR 74 (FC) per Jackson SPJ at 76.

[10.1700]

JUDICIAL REVIEW

909

The residential character of an area: Paul v DPP (1989) 90 Cr App R 173 at 177 (a soliciting of a prostitute case).

Knowledge of the community In Jambajimba v Dredge (1985) 33 NTR 19; 81 FLR 180 Muirhead ACJ said (at 21; 182): I take the view that it is a healthy thing in a restricted community for a magistrate to take sufficient interest in the people amongst whom he works to gain understanding of the background of individuals.

[10.1535] Judicial notice by legislation In Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; 186 ALR 145 McHugh J said (at 481; 159 [70]): In three Australian states, legislative provisions enable the court to refer to certain published works considered to be of authority in matters of public history, literature, science or art. Section 72 of the Evidence Act 1906 (WA), for example, provides: All courts and persons acting judicially may, in matters of public history, literature, science, or art, refer, for the purposes of evidence, to such published books, maps or charts as such courts or persons consider to be of authority on the subjects to which they respectively relate.

See also Uniform Evidence Acts s 144; Evidence Act 1929 (SA) s 64; Evidence Act 1906 (WA) s 72. See also Uniform Evidence Act, s 144 (Aytugrul v The Queen [2012] HCA 15, at [21]; Gattellaro v Westpac Banking Corp [2004] HCA 6; [17], [69], where it was noted that s 144 displaces the common law judicial notice principle); Evidence Act 1929 (SA) s 64; Evidence Act 1906 (WA) s 72.

[10.1540] Other references See also Presumptions at [16.3700].

JUDICIAL REVIEW Different remedies ..................................................................................................................... Upholding the decision below .................................................................................................. Review of the prerogative ........................................................................................................ Not to fragment a criminal trial ............................................................................................... Want of logic may not be error of law .................................................................................... Duty to give reasons ................................................................................................................. A different magistrate should rehear after successful review .................................................

[10.1700] [10.1705] [10.1710] [10.1715] [10.1720] [10.1725] [10.1730]

[10.1700] Different remedies In Enfield City v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400 Gleeson CJ, Gummow, Kirby and Hayne JJ said (at 145–146; 407–408 [22]): There will be differences between, on the one hand, the availability in public law of equitable remedies, and judicial review by mandamus, prohibition and certiorari on the other. At least under s 75(v) of the Constitution , rules as to standing may be more generous for prohibition and certiorari. However, an applicant with standing still may fail to obtain an order absolute for reasons which would not have precluded the availability of a declaration. This was the case in Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255. FAI Insurances Ltd v Winneke decided that, while certiorari and mandamus were not available against

910

ROSS ON CRIME

[10.1705]

the Governor in Council, a declaration might be made against the Attorney-General of Victoria as representative of the Crown. Again, with certiorari, there are technicalities attending the requirement of an error of law on the face of the record; these are exemplified by Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359. However, where the question is whether the decision-maker has erred as to the jurisdictional facts, as in this case, that question has to be answered by the court in which it is litigated upon the evidence before that court. In this respect, where the issue requires determination of whether jurisdictional facts existed, the task of the court to determine that question is essentially the same whether the relief sought be equitable or, for example, prohibition.

[10.1705] Upholding the decision below The party seeking to uphold the order of the court below is entitled to support that order on any ground which was open at the stage when the order was made: Christie v Permewan Wright & Co Ltd (1904) 1 CLR 693 per Griffith CJ at 697; Preston Ice and Cool Stores Pty Ltd v Hawkins [1955] VLR 89 at 92 (Smith J); Howard v Bondfield (1974) 3 ACTR 62 at 67 (Connor J); Relf v Webster (1978) 24 ACTR 3 at 8 (Connor J). In Carter v Reid [1992] 1 VR 351, Hedigan J said (at 355): It has always been the position on appeal that a respondent may seek to support and uphold the decision of the court below on any ground that was open to that court, even though it may not have been the ground for decision relied on. However, in my view, this cannot be the case where the ground or argument advanced to uphold the decision and order was not open at the date of the decision of the inferior court. This is clearly the case here, as the argument now sought to be advanced arises solely out of legislation subsequently enacted.

[10.1710] Review of the prerogative In Burt v Governor-General [1992] 3 NZLR 672 (CA) the court said in a joint judgment (at 678): The prerogative of mercy is a prerogative of power in the strictest sense of that term, for it is peculiar to the Crown and its exercise directly affects the rights of persons. On the other hand it would be inconsistent with the contemporary approach to say that, merely because it is a pure and strict prerogative power, its exercise or non-exercise must be immune from curial challenge. There is nothing heterodox in asserting, as counsel for the appellant do, that the rule of law requires that challenge shall be permitted in so far as issues arise of a kind with which the Courts are competent to deal.

This case was about the refusal to refer a petition of mercy. Followed: Von Einem v Griffın (1998) 102 A Crim R 51 (SA, Duggan J). See also Mercy (Petition of mercy: definition) at [13.2500]. The acts of the DPP may also be subject to judicial scrutiny: DPP (SA) v B (1998) 194 CLR 566; 101 A Crim R 420; 155 ALR 539 per Kirby J (at [63]). See also Director of Public Prosecutions at [4.2600].

[10.1715] Not to fragment a criminal trial In Oates v Williams (1998) 84 FCR 348; 156 ALR 1; 102 A Crim R 353 (FCA) the court said in a joint judgment (at 361; 13–14; 365):

[10.1730]

JUDICIAL REVIEW

911

[C]ourts have repeatedly indicated that the fragmentation of a criminal trial by way either of leave to appeal or judicial review is highly undesirable and will only be allowed in exceptional circumstances. This point has been made by the High Court in many cases and without citing all of them we refer to: Sankey v Whitlam (1978) 142 CLR 1; Iorlano (1983) 151 CLR 678; Clyne v DPP (Cth) (1984) 154 CLR 640; Yates v Wilson (1989) 168 CLR 338; Vereker v O’Donovan (1988) 6 Leg Rep SL 3; Beljajev v DPP (1991) 173 CLR 28; Elliott v Seymour (1993) 68 ALJR 173; Coco v Shaw (unreported, High Court, 26 June 1991) (reasons for refusing special leave); Re Rozenes; ex parte Burd (1994) 68 ALJR 372; Parker v Taylor (1994) 68 ALJR 496. On the other hand, there are many instances where a court has reviewed a decision rather than permitting the matter to be left to the trial judge of the criminal proceedings. Again without being exhaustive the cases include Beneficial Finance Corp Ltd v Australian Federal Police (1991) 31 FCR 523; 58 A Crim R 1; Parker v Churchill (1985) 9 FCR 316; Tillett; ex parte Newton (1969) 14 FLR 101; Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 473; 50 A Crim R 98; George v Rockett (1990) 170 CLR 104; 48 A Crim R 246; Freeman v Roberts (1992) 37 FCR 399.

[10.1720] Want of logic may not be error of law In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 Mason CJ said (at 356; 38): Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.

[10.1725] Duty to give reasons A judge should give reasons even for refusing leave. In Roy Morgan Research Centre v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; 181 ALR 307, Gaudron, Gummow, Hayne and Callinan JJ said (at 83–84; 314 [26]): The practice of giving no reasons for refusing leave under s 148(1) of the VCAT Act is unwarranted. There is no basis for departing in such cases from the ordinary rule that reasons should be given. Those reasons need not be extensive. In appropriate cases, little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached. The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave.

In R (Lynch) v General Dental Council [2004] 1 All ER 1159 (QBD) Collins J held (at 1170 [32]): Where there are inadequate reasons and particularly where an important reason can be shown to have been based on a possible misunderstanding, the court will intervene if persuaded that the result might have been different.

[10.1730] A different magistrate should rehear after successful review See also Magistrate at [13.500]; Reasons at [18.600]. Stephen Gageler, “The Legitimate Scope of Judicial Review” (2001) 21 Aust Bar Rev 279.

912

ROSS ON CRIME

[10.1900]

JURISDICTION The word ................................................................................................................................... Definition ................................................................................................................................... Territorial sovereignty ............................................................................................................... General principle: all crime is local ......................................................................................... Legislation ................................................................................................................................. Crime on the high seas ............................................................................................................. Crime on a State boundary ....................................................................................................... Interstate conduct ...................................................................................................................... Commonwealth places .............................................................................................................. Jury ............................................................................................................................................ Conspiracy ................................................................................................................................. Judicial power and its exercise ................................................................................................ Inherent jurisdiction .................................................................................................................. Crimes at sea ............................................................................................................................. International law defence to domestic charge .........................................................................

[10.1900] [10.1905] [10.1910] [10.1915] [10.1920] [10.1925] [10.1930] [10.1935] [10.1940] [10.1945] [10.1950] [10.1955] [10.1960] [10.1965] [10.1970]

[10.1900] The word Iuristictio is a Latin word meaning “judicial authority” (literally: speaking of law).

[10.1905] Definition In Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207 Gaudron Gummow and Hayne JJ said (at 517; 28; 227 [79]): “Jurisdiction” may be used (i) to describe the amenability of a defendant to the court’s writ and geographical reach of that writ, or (ii) rather differently, to identify the subject matter of those actions entertained by a particular court, or, finally (iii) to locate a particular territorial or “law area” or “law district”.

In Pinkstone v The Queen (2004) 219 CLR 444; 206 ALR 84 McHugh and Gummow JJ said (at 460 [42]): In Thompson v The Queen (1989) 169 CLR 1, Brennan J, in a passage subsequently adopted by three members of this Court in Lipohar v The Queen, said (at 19): The jurisdiction of a court to hear and determine a charge of a criminal offence and the territorial ambit of a law which creates or defines the offence charged are two distinct questions. His Honour referred with approval to the observation of Devlin J in R v Martin [1956] 2 QB 272. There, his Lordship had said (at 285): There is a distinction, in my judgment, between what I may call the nature of an offence and the ingredients which have to be present before an offence is committed at all on the one hand, and, on the other hand, the question of what courts are to assume or are to be given jurisdiction when the offence has been committed It is convenient to adopt that approach in the present case.

[10.1910] Territorial sovereignty In Chow Hung Ching v The King (1948) 77 CLR 449 Starke J said (at 470): International and municipal law recognize that “a state possesses jurisdiction … in virtue of its territorial sovereignty over the person and property of foreigners found upon its land and waters”. See Hall, International Law, 7th ed (1917), par 47, p 176; Oppenheim, International Law, 6th ed (1947), vol 1 (Peace), par 144, pp 293, 294. But to this broad statement there exist some special limitations or exceptions.

[10.1915] General principle: all crime is local The expression was used in Macleod v AG (NSW) [1891] AC 455 (PC) which was an appeal against a bigamy conviction. The appellant married in New South Wales in 1872 and

[10.1920]

JURISDICTION

913

allegedly married bigamously in St Louis, United States of America in 1889. The trial and conviction were in New South Wales. Their Lordships advised that the conviction be set aside. The Board advised (at 458): All crime is local. The jurisdiction over the crime belongs to the country where the crime is committed.

Where a crime has extraterritorial effect, the principle or saying that all crime is local is of little help. In Strassheim v Daily 221 US 280 (1911) Holmes J delivering the judgment of the court said (at 285): Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if (the actor) had been present at the effect.

The aphorism of Holmes J has been quoted by many courts. Examples are DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909; (1977) 65 Cr App R 192 (HL) per Lord Edmund-Davies at 83; 930; 222; Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207 per Gaudron, Gummow and Hayne JJ at 512; 24; 223 [65]. In DPP v Doot [1973] AC 807; [1973] 1 All ER 940; (1973) 57 Cr App R 600 (HL) Lord Wilberforce said (at 817; 943; 605): In the search for a principle, the requirement of territoriality does not, in itself, provide an answer. To many simple situations, where all relevant elements occur in this country, or conversely, occur abroad, it may do so. But there are many “crimes” (I use the word without prejudice at this stage) the elements of which cannot be so simply located. They may originate in one country, be continued in another, produce effects in a third.

In Australia a criminal act with ramifications in different states may be tried in any of those states: Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207. Each of the above cases concerned a conspiracy. Note also that in R v Bazley (1986) 21 A Crim R 19 (Vic CCA) the defence did not take a jurisdiction objection. Where there is a counselling or procuring out of the jurisdiction of a crime that occurs within it, the court within the jurisdiction can hear the case against the counsellor and procurer: R v Robert Millar (Contractors) Ltd [1970] 2 QB 54; [1970] 1 All ER 577; (1970) 54 Cr App R 158 (CA); Rajalingam Sivaprahasam v The Queen [1972] WAR 137; (1971) 20 FLR 393 (CCA). In a case alleging a substantive offence without interstate ramifications, even on the balance of probabilities, the court must be in the jurisdiction where the offence occurred: R v Kron (1995) 78 A Crim R 474 (NSW CCA). John Stonehouse MP left England in 1974 and faked his death in Miami United States of America. He then went to Australia. He had life insurance of £125,000. His sham was to enable his wife to claim under the policy. He was convicted in England with attempting to obtain property by deception. Held: the charge was properly laid in England: DPP v Stonehouse [1978] AC 55; [1977] 2 All ER 909; (1977) 65 Cr App R 192 (HL). See also G Moore, “Proving State Borders” (2006) 80 ALJ 587–601. Conspiracy at [3.6500].

[10.1920] Legislation Legislation enables the prosecution of a crime committed partly in one place and partly away from that place. Qld: Criminal Code s 12;

914

ROSS ON CRIME

[10.1925]

WA: Criminal Code s 12; Tas: Criminal Code s 9 (instigation); NT: Criminal Code s 15 (generally); s 16 (counsel or procure); ss 43BY–43CD (geographical nexus); NSW: Crimes Act 1900 s 10C (geographical nexus); Vic: Crimes Act 1958 s 9 (murder and manslaughter); SA: Criminal Law Consolidation Act 1935 s 5G; ACT: Crimes Act 1900 s 3A. See also Libman v The Queen [1985] 2 SCR 178; (1985) 21 DLR (4th) 174; 21 CCC (3d) 206 (SCC); R v Keech (2002) 5 VR 312; 132 A Crim R 86 (CA).

[10.1925] Crime on the high seas R v Olney [1996] 1 Qd R 187; (1995) 121 FLR 30; 79 A Crim R 411 (Thomas J) involved a murder on a ship in the Gulf of Carpenteria within 200 miles of Queensland. It was held that the charge was justiciable in Queensland and under the Criminal Code.

[10.1930] Crime on a State boundary Mr Ward was charged with murder. He was accused of shooting his victim on the banks of the Murray River, which forms the border between Victoria and New South Wales. Mr Ward was in Victoria. The victim was below the high water mark. (Note: There is no diminished responsibility defence in Victoria, but there is in New South Wales). In Ward v The Queen (1980) 142 CLR 308 it was held that the northern boundary of Victoria is the top of the southern bank of the river. The appeal was allowed.

[10.1935] Interstate conduct A cheque was drawn in New South Wales and cashed in Victoria. An offence under s 173 of the Crimes Act 1900 (NSW) is justiciable in New South Wales: R v Lawson (1996) 86 A Crim R 111 (NSW CCA). A man made phone calls and sent letters from Queensland to a woman in the Australian Capital Territory. Held: the man was properly convicted of stalking in the Australian Capital Territory: Longfield v Glover (2005) 191 FLR 332 (ACT, Connolly J).

[10.1940] Commonwealth places See Commonwealth (Commonwealth land) at [3.3710].

[10.1945] Jury Where jurisdiction is raised, a special verdict should first be obtained from the jury on that issue: Thompson v The Queen (1989) 169 CLR 1; 86 ALR 1; 41 A Crim R 134. The jury must, of course, be properly instructed: R v Graham [1984] VR 649 (CCA).

[10.1950] Conspiracy Conspiracy in more than one State is triable in either: R v Skewes (1981) 7 A Crim R 276 (Vic CCA); Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207.

[10.1960]

JURISDICTION

915

See also Conspiracy at [3.6500].

[10.1955] Judicial power and its exercise In Nicholas v The Queen (1998) 193 CLR 173; 151 ALR 312; 99 A Crim R 57 Brennan CJ said (at 188; 320; 65 [23]): The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure.

[10.1960] Inherent jurisdiction The power In R v Forbes; Ex parte Bevan (1972) 127 CLR 1 Menzies J said (at 7): “Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorising provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorising provision. Courts of unlimited jurisdiction have “inherent jurisdiction”.

An elusive concept In DPP v Shirvanian (1998) 44 NSWLR 129; 102 A Crim R 180 (CA) Mason P said (at 132; 183): The expression “jurisdiction” was described by Frankfurter J as “a verbal coat of too many colours”: US v LA Tucker Truck Lines Inc 344 US 33 (1952) at 39.

In Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618, Dawson J, giving the leading judgment, said (at 16; 628; 193): Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See Yale Law Journal, vol 57 (1947) 83 at p 85, cited by Jacob, “The Inherent Jurisdiction of the Court”, Current Legal Problems, vol 23 (1970) 23 at p 27. But it is the general responsibility of a superior court of unlimited jurisdiction which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate’s court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest).

Example: In Martin v Trustum (No 3) (2003) 12 Tas R 131 (Slicer J) his Honour held that the court’s inherent power to punish for contempt was not confined by sentencing legislation.

916

ROSS ON CRIME

[10.1965]

[10.1965] Crimes at sea Legislation gives the jurisdiction to try crimes committed at sea. Cth: Crimes at Sea Act 2000; Qld: Crimes at Sea Act 2001; WA: Crimes at Sea Act 2000; Tas: Crimes (Offences at Sea) Act 1979; NT: Crimes at Sea Act 2000; NSW: Crimes (Offences at Sea) Act 1980; Crimes at Sea Act 1998; Vic: Crimes at Sea Act 1999; SA: Crimes at Sea Act 1998. See also R v Olney [1996] 1 Qd R 187; (1995) 121 FLR 30; 79 A Crim R 411 (Thomas J). K Mason QC, “The Inherent Jurisdiction of the Court” (1983) 57 ALJ 449; M Goode, “The Tortured Tale of Criminal Jurisdiction” (1997) 21 MULR 411-459; D Lanham, Cross Border Criminal Law (John Libby & Co, 1997); M Hinton and C Lind, “The Territorial Application of the Criminal Law – When Crime is not Local” (1999) 23 Crim LJ 285-299; D Lanham, “Crime and Conflicting Duties Across Borders” (2001) 25 Crim LJ 19-27. Stay at [19.5900].

[10.1970] International law defence to domestic charge In Limbo v Little (1989) 65 NTR 19; 98 FLR 421; 45 A Crim R 61 (CA) Martin J, giving the leading judgment, said (at 45–46; 447; 86–87): Application of international law in Australia I refer briefly to various authorities of the High Court of Australia which indicate to me that if a defence to a domestic criminal charge is said to arise under international law then, absent competent legislation, such a defence will not be recognised in Australian courts. First, Polites v Commonwealth (1945) 70 CLR 60. Although “every statute is to be interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations, or with the established rules of international law … all the authorities in English law also recognise that courts are bound by the statute law of that country, even if that law should violate a rule of international law” (per Latham CJ at 68). “The law of nations, as I understand it, considers that all persons or things within the territory of a State fall under its territorial supremacy and are subject to its jurisdiction, legislative, administrative and judicial” (per Starke J at 75). See also McTiernan J (at 79). In Chow Hung Ching v The King (1948) 77 CLR 449 at 478, Dixon J adopted the opinion, with certain exceptions which do not apply here, that a treaty has no legal effect upon the rights or duties of the subjects of the Crown. Barwick CJ and Gibbs J did not dissent from that view in Bradley v Commonwealth (1973) 128 CLR 557 at 582; and it was adopted by Stephen J in Simsek v MacPhee (1982) 148 CLR 636 at 642: … it is for Parliament, and not for the Executive to make or alter municipal law.

[10.2105]

JURY

917

JURY Meaning ..................................................................................................................................... Why the jury system has lasted so long .................................................................................. Guardian of liberty .................................................................................................................... Assumptions .............................................................................................................................. Details of panel to accused ...................................................................................................... The jury panel must be randomly or impartially selected ...................................................... Challenge to the array .............................................................................................................. Insufficient jurors ...................................................................................................................... Substitution of a juror ............................................................................................................... Foreperson ................................................................................................................................. Excuses ...................................................................................................................................... Discharge of individual juror ................................................................................................... Challenge for cause .................................................................................................................. Peremptory challenge ................................................................................................................ Swearing and separating ........................................................................................................... Jurors should not question witnesses ....................................................................................... Grounds for discharge or appeal .............................................................................................. Discharge ................................................................................................................................... Failure to discharge jury: appeal is against conviction ........................................................... Misconduct by court official ..................................................................................................... Disclosure of accused’s bad character ..................................................................................... Length of trial ........................................................................................................................... Bias of a juror or jury .............................................................................................................. Embracery ................................................................................................................................. Change of plea of one accused ................................................................................................ Appeal ....................................................................................................................................... Jury problems ............................................................................................................................ Confidentiality of deliberations ................................................................................................ Obtaining information extrinsic to jury deliberation ............................................................... Reserve jurors ........................................................................................................................... Information about potential jurors’ convictions given to prosecutor ...................................... Provision of writing materials .................................................................................................. Jury unable to agree .................................................................................................................. Articles ......................................................................................................................................

[10.2100] [10.2105] [10.2110] [10.2115] [10.2120] [10.2125] [10.2130] [10.2135] [10.2140] [10.2145] [10.2150] [10.2155] [10.2160] [10.2165] [10.2170] [10.2175] [10.2180] [10.2185] [10.2190] [10.2195] [10.2200] [10.2205] [10.2210] [10.2215] [10.2220] [10.2225] [10.2230] [10.2235] [10.2240] [10.2245] [10.2250] [10.2255] [10.2260] [10.2265]

[10.2100] Meaning In a criminal case, a jury is 12 laypersons who listen to the evidence. At the end of the case the trial judge directs them on the law to apply. The jury then delivers a verdict of guilty or not guilty, meaning that the prosecution has proved its case beyond reasonable doubt or that it has not. The jury is selected from a panel of laypersons randomly chosen. Rarely, a jury will be convened to give verdicts at a coroner’s inquest.

[10.2105] Why the jury system has lasted so long In United States ex rel McCann & Adams 126 F (2d) 774 (1942), Learned Hand J said (at 775): The institution of trial by jury – especially in criminal cases – has its hold upon public favour chiefly for two reasons. The individual can forfeit his liberty – to say nothing of his life – only at the hands of those who, unlike any official, are in no wise accountable, directly or indirectly, for what they do, and who at once separate and melt anonymously in the community from which they came. Moreover, since if they acquit their verdict is final, no one is likely to suffer of whose conduct they do not morally disapprove; and this introduces a slack into the enforcement of law, tempering its rigour by the mollifying influence of current ethical conventions. A trial by any jury, however small, preserves both these fundamental elements and a trial by a judge preserves neither, at least to anything like the same degree.

918

ROSS ON CRIME

[10.2110]

In Kingswell v The Queen (1985) 159 CLR 264; 19 A Crim R 65; 62 ALR 161 Deane J said (at 300–301; 187–188; 89): Trial by jury also brings important practical benefits to the administration of criminal justice. A system of criminal law cannot be attuned to the needs of the people whom it exists to serve unless its administration, proceedings and judgments are comprehensible by both the accused and the general public and have the appearance, as well as the substance, of being impartial and just. In a legal system where the question of criminal guilt is determined by a jury of ordinary citizens, the participating lawyers are constrained to present the evidence and issues in a manner that can be understood by laymen. The result is that the accused and the public can follow and understand the proceedings. Equally important, the presence and function of a jury in a criminal trial and the wellknown tendency of jurors to identify and side with a fellow-citizen who is, in their view, being denied a “fair go” tend to ensure observance of the consideration and respect to which ordinary notions of fair play entitle an accused or a witness. Few lawyers with practical experience in criminal matters would deny the importance of the institution of the jury to the maintenance of the appearance, as well as the substance, of impartial justice in criminal cases: cf Knittel and Seiler, “The Merits of Trial by Jury”, Cambridge Law Journal, vol 30 (1972), pp 320-321. The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury’s verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury’s deliberative processes, the jury’s isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob.

In Brown v The Queen (1986) 160 CLR 171; 64 ALR 161; 19 A Crim R 136, Deane J said (at 202; 181; 156): [R]egardless of the position or standing of the particular alleged offender, guilt or innocence of a serious offence should be determined by a panel of ordinary and anonymous citizens, assembled as representative of the general community, at whose hands neither the powerful nor the weak should expect or fear special or discriminatory treatment. That essential conception of trial by jury helps to ensure that, in the interests of the community generally, the administration of criminal justice is, and has the appearance of being, unbiased and detached.

[10.2110] Guardian of liberty In Brown v The Queen (1986) 160 CLR 171; 64 ALR 161; 19 A Crim R 136, Brennan J said (at 197; 178; 152–153): Trial by jury is not only the historical mode of trial for criminal cases prosecuted on indictment; it is the chief guardian of liberty under the law and the community’s guarantee of sound administration of criminal justice. The verdict is the jury’s alone, never the judge’s. Authority to return a verdict and responsibility for the verdict returned belong to the impersonal representatives of the community. We have fashioned our laws governing criminal investigation, evidence and procedure in criminal cases and exercise of the sentencing power around the jury. It is the fundamental institution in our traditional system of administering criminal justice.

His Honour made these remarks before some jurisdictions allowed criminal trial by judge alone. See Trial (By judge alone) at [20.2545].)

[10.2115] Assumptions In Gilbert v The Queen (2000) 201 CLR 414; 170 ALR 88; 109 A Crim R 580 Gleeson CJ and Gummow J said (at 420; 92; 584 [13]):

[10.2130]

JURY

919

The system of criminal justice, as administered by appellate courts, requires the assumption that, as a general rule, juries understand, and follow, the directions they are given by trial judges. It does not involve the assumption that their decision-making is unaffected by matters of possible prejudice.

[10.2120] Details of panel to accused NT Criminal Code s 351A provides: (1) Subject to subsection (3), a person who is to be tried on indictment (the accused) must be given a list of the persons on the jury panel for the trial containing: (a) the full name of each person; and (b) if requested by the accused – a description of each person. (2) The list must be given to the accused at least 2 days before the accused is called on to plead to the indictment. (3) The court may, if it considers it appropriate, refuse to give the list to the accused.

[10.2125] The jury panel must be randomly or impartially selected In Cheatle v The Queen (1993) 177 CLR 541; 116 ALR 1; 66 A Crim R 484 the court said, in a joint judgment, (at 560; 12; 495): The relevant essential feature or requirement of the institution was, and is, that the jury be a body of persons representative of the wider community. It may be that there are certain unchanging elements of that feature or requirement such as, for example, that the panel of jurors be randomly or impartially selected rather than chosen by the prosecution or the State.

Followed: Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66; 166 ALR 159 per Gaudron, Gummow and Callinan JJ (at 65; 172; 80 [51]).

[10.2130] Challenge to the array See O’Connell v The Queen (1844) 5 St Tr (NS) 1: The only ground upon which the challenge to the array is allowed by the English law is the unindifferency or default of the sheriff.

In R v Grant and Lovett [1972] VR 423 McInerney J said (at 424): [T]he cases will be found on analysis to be cases where the sheriff has proceeded, in disregard of the provisions of a statute or of the law, to summon a panel which is not made up in the manner required by the law or cases where the sheriff is shown to have been related to one of the parties or to have been affected – in his selection of the panel – by some bias or prejudice, either in relation to the parties, or, in some cases, in relation to the political views or religion of the accused or one or other of the parties.

The challenge was refused, but a challenge to the array succeeded in R v Diack (1983) 19 NTR 13 (Nader J). Twice the number of summonses were issued (150) than were jurors required (75). Summonses were served until the required number were obtained. There were twice as many women as men. The challenge should be in writing and made before the jury is empanelled and sworn: R v Grant and Lovett [1972] VR 423 at 425.

Legislation Qld: Jury Act 1995 s 40;

920

ROSS ON CRIME

[10.2135]

WA: Criminal Procedure Act 2004 s 104(1): no challenge to whole panel; Juries Act 1957 s 40; Tas: Jury Act 1899 s 52; NSW: Jury Act 1977 s 41; NT: Criminal Code s 353 and Juries Act s 42; NZ: Juries Act 1981 s 25. See also Greer v The Queen (1996) 84 A Crim R 482 (WA CCA); R v Walker [1989] 2 Qd R 79; (1988) 38 A Crim R 150 (CCA). Arraignment at [1.5800].

[10.2135] Insufficient jurors Where a jury is summoned and found to be insufficient in number, the judge is empowered to award a tales de circumstantibus, that is, to command the sheriff to return so many other persons duly qualified as shall be present or can be found, to be taken first from those summoned on the common jury panel. If the deficiency is of special jurors, and if there are not enough common jurors, then any persons who are present in court or can be found and pressed into service. The jurors so added are called talesmen. (Tales is the plural of Latin talis meaning of such kinds.) There cannot be a complete jury of talesmen: R v Solomon [1958] 1 QB 203: [1957] 3 All ER 497; (1957) 42 Cr App R 9 (CA). In R v Bush (1992) 2 NTLR 72 the panel of jurors was exhausted after peremptory challenges. Asche CJ ordered talesmen to be found. The entitlement to pray a tales has even crept into legislation: Qld: Jury Act 1995 s 38; WA: Juries Act 1957 s 52; Tas: Jury Act 1899 s 44; NT: Juries Act s 51.

[10.2140] Substitution of a juror In R v Searle [1993] 2 VR 367; (1993) 67 A Crim R 567 (CCA) 12 jurors had been selected and seated in the jury box (but not sworn). One juror was known to the accused’s solicitor who should have told the prosecution so she could be stood aside. The judge ordered a person to be balloted from the remainder of the panel. There was no challenge and that person replaced the other as a juror. The appeal against conviction dismissed.

[10.2145] Foreperson Duties: A foreperson is a juror chosen by the other jurors to speak for the jury when asked for their verdict. The foreperson is normally expected to act as a chairperson when the jury has retired and is deliberating on its verdict. Change: In Ng v The Queen (2003) 217 CLR 521; 197 ALR 10 McHugh J said (at 528 [17]):

[10.2155]

JURY

921

There is nothing to stop the jurors changing their foreperson as often as they like.

And later Kirby J said (at 542–543 [75]): Under the Victorian legislation the foreperson may be changed by the jury. They may decide to select a replacement during the course of their trial.

The foreperson was changed in the following cases: R v Petroulias (No 32) (2007) 179 A Crim R 1 (NSW, Johnson J) [applying the extracts from Ng v The Queen, above]. R v Lonsdale [1915] VLR 269 (Madden CJ).

[10.2150] Excuses When the panel of jurors is in court, a judge will often address them: • to explain briefly the prosecution case; • give the names of expected prosecution witnesses; • to estimate the duration of the trial. The judge will then call for excuses. Jurors will be excused for any reason that would or might make them partial. Where appointments or commitments of a juror would be compromised he or she will often be excused, eg forthcoming examinations. A juror will be excused for infirmity, even though it be temporary. Deafness, illness, drunkenness, neurasthenia and a claimed inability to concentrate are reasons for excuse. In R v Burns (1883) 9 VLR (L) 191 a juror was excused for drunkenness. In R v Cullen [1951] VLR 335 (FC) Gavan Duffy J said (at 339): It is, however, plain that it is the duty of the Judge on the trial of a criminal issue, even without challenge by the Crown or on behalf of the prisoner, to refuse to allow to be sworn any juror who from physical or mental infirmity, temporary or permanent, is incapable of duly attending to the evidence–see Mansell v The Queen (1857) 8 E & B 54 at pp 81 and 109; R v Burns (1883) 9 VLR (L) 191; R v Gillen [1914] SALR 196; Halsbury’s Laws of England (2nd ed) vol 19, pp 308–9; Profatt, Trial by Jury, s 170, p 190.

In R v Searle (1993) 67 A Crim R 567 (Vic CCA) Marks and McDonald JJ made a thorough study of principle and authority on a judge’s power to substitute one juror for another (at 570–576).

[10.2155] Discharge of individual juror A juror can be discharged for death of a family member, illness, disability or other good cause.

Legislation Qld: Jury Act 1995 s 56; WA: Criminal Procedure Act 2004 s 115; Tas: Criminal Code s 367; NT: Criminal Code s 359; NSW: Jury Act 1977 ss 22, 53A; Vic: Juries Act 2000 s 43; SA: Juries Act 1927 s 56;

922

ROSS ON CRIME

[10.2155]

ACT: Juries Act 1967 s 8(2).

Judge’s discretion The trial judge has discretion to discharge a juror. Examples include when a juror’s wife died (R v Kalman [1957] NZLR 904) or attempted suicide and was in hospital (R v Tortomano [1981] VR 31 (CCA)). In Carr v R [2015] NSWCCA 186 a juror was not dicharged for bringing newspaper clippings relating to the offence in question into the jury room. The juror had not made internet inquiries into the matter. Where the matter is urgent such as death of a spouse the judge can discharge the juror outside court hours and not in the presence of the parties or in open court: R v Richardson [1979] 1 WLR 1316; [1979] 3 All ER 247; 69 Cr App R 235. In R v Allan (1886) 12 VLR 341 Higinbotham J had discharged a drunk juror. The Full Court said (at 342): There can be no doubt that drunkenness can make a man so ill as to be incapable of discharging any duty. A similar effect may be produced by excessive indulgence in smoking.

Bias of a juror is determined in the same way as bias of a judge: Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258.

Mode of determination A judge can hear from an individual juror. In R v Ousley (1996) 87 A Crim R 326 (Vic CA) the court said in a joint judgment (at 339): His Honour indicated that he proposed to ask the juror to come into court and explain in court what she had told his tipstaff that morning. In doing so he took the approach implicitly approved in Stretton [1982] VR 251.

Any question of intimidation of a juror shall be investigated in the absence of the other jurors: R v Stretton and Storey [1982] VR 251 at 256 (CCA). In R v Tortomano [1981] VR 31 (CCA) the court said (at 34): The section is silent as to the manner in which the trial Judge should satisfy himself of the matters referred to in the section. In the absence of such statutory requirement we are of opinion that the trial Judge should regulate his own procedure.

Effect of discharge of a juror At common law the discharge of a juror had the result of the whole jury being discharged: R v Ousley (1996) 87 A Crim R 326 at 343 (Vic CA). Legislation now permits a verdict of fewer than 12 jurors. Qld: Jury Act 1995 ss 57 and 58; WA: Criminal Procedure Act 2004 s 115; Tas: Criminal Code s 378(5); NT: Criminal Code s 373; NSW: Jury Act 1977 s 22; Vic: Juries Act 2000 ss 43 and 44; SA: Juries Act 1927 s 56; ACT: Juries Act 1967 s 8(3).

[10.2165]

JURY

923

An individual juror can be discharged in a Commonwealth prosecution and the verdict of fewer than 12 received: Brownlee v The Queen (2001) 75 ALJR 1180; 180 ALR 301. That is because there is no conflict between Constitution s 80 and the State Act permitting discharge of a juror and a verdict by fewer than 12.

Orders A judge who discharges a juror should make two unmistakable orders. First, an order should be made discharging the juror. Secondly, an order should be made that the trial proceed with the remaining jurors: Wu v The Queen (1999) 199 CLR 99; 166 ALR 200; 108 A Crim R 252.

[10.2160] Challenge for cause For the history of challenge for cause, see R v Manson [1974] Qd R 191 (CCA). In Murphy and Murdoch v The Queen (1989) 167 CLR 94; 86 ALR 35; 40 A Crim R 361, Mason CJ and Toohey J, with whom the others agreed said (at 103–104; 41–42; 368): It is beyond question that some foundation must be laid before an application to challenge for cause will succeed. Ordinarily this will take the form, at least initially, of an affidavit relating to the disposition of a particular juror or jurors. There may be cases where a reading by the trial judge of offending material, where it has been published in circumstances that justify an inference that members of the jury are likely to have read it and to have been influenced against the accused, will be enough to justify acceding to an application to question potential jurors. But they are exceptional cases. There is still a need to provide a sufficient foundation of fact to justify acceding to the application.

Legislation Qld: Jury Act 1995 s 47; WA: Criminal Procedure Act 2004 s 104(5); NT: Criminal Code s 354; NSW: Jury Act 1977 s 46; Vic: Juries Act 2000 ss 37 and 40; SA: Juries Act 1927 s 68; ACT: Juries Act 1967 s 36A; See also (On adverse publicity): Connell v The Queen [No 6] (1994) 12 WAR 133 (CCA); Ian Bush v The Queen (1993) 43 FCR 549; 115 ALR 654; 69 A Crim R 416 at 555–558, 658–660, 420–422 (FCA). A challenge to all women on the religious ground that the accused was entitled to be tried by men is not a good challenge for cause: R v Judge of District Courts at Brisbane and Shelley; Ex parte Attorney-General (Qld) (1990) 48 A Crim R 139 (Qld FC). The procedure set out in the Juries Act must be strictly observed. In R v Hall [1971] VR 293 (CCA) there had not been such compliance. A change of plea to guilty did not waive the irregularity and the appeal was upheld.

[10.2165] Peremptory challenge A peremptory challenge to a juror is a challenge for which no reason need be given. The juror must be challenged before taking a seat in the jury box, or being sworn whichever first

924

ROSS ON CRIME

[10.2170]

happens. The number of peremptory challenges is fixed by legislation. The right to a peremptory challenge requires that the accused has sufficient time and opportunity to view the face of each prospective juror and the process of empanelling the jury must facilitate this: Theodoropoulos v The Queen [2015] VSCA 364 (18 December 2015). Qld: Jury Act 1995 s 42(3): eight peremptory challenges; WA: Criminal Procedure Act 2004 s 104(4): five; Tas: Jury Act 1899 s 54: six; NT: Juries Act s 44: 12 in a capital case, otherwise six; NSW: Jury Act 1977 s 42: three, or more by agreement; Vic: Juries Act 2000 s 39(1): six, but fewer in a joint trial; SA: Juries Act 1927 s 61: three; ACT: Juries Act 1967 s 34: eight. In R v Cherry (2005) 12 VR 122 (CA) the trial judge made a mistake about the number of peremptory challenges left. Appeal allowed. Johns case (below) followed. In Johns v The Queen (1979) 141 CLR 409; 25 ALR 573 counsel challenged for the accused who complained that his instructions were not followed. The High Court struck down the conviction. The practice followed in Western Australia of allowing counsel to exercise for the accused the right of challenge is permitted by the law. However, counsel’s authority is not irrevocable. It does not authorise the withdrawal of the accused’s personal challenge when made, nor is it to be understood to displace the accused’s ability personally to challenge. If the accused’s challenge was improperly disallowed or not given effect, the subsequent proceedings could not yield a lawful conviction: they were absolutely void. The conviction would therefore be set aside. Counsel assisting accused with challenges may stand near the dock. In Johns v The Queen (1979) 141 CLR 409; 25 ALR 573 Barwick CJ said (at 421; 581): I do not believe it is in the least undignified, demeaning, or undesirable for counsel to be proximate or to be seen to be proximate to an accused when assisting him with the challenge. But I do think that a practice of the exchange of signals between the bar table and accused in the course of the challenge lacks dignity and is far less acceptable than the presence of counsel near the dock when assisting the accused in the challenge.

[10.2170] Swearing and separating The strict rules must be followed in swearing a jury and in allowing them to separate: R v T (1996) 86 A Crim R 293 at 301–303 (Vic CA); R v Clarke (2002) 5 VR 480; 135 A Crim R 368 (CA). But the jury need not give an undertaking on every separation: R v Patton [1998] 1 VR 7; (1996) 88 A Crim R 365 at 10–12; 368–369 (CA).

[10.2175] Jurors should not question witnesses If a juror wants a question asked of a witness it should be mentioned to the judge. Jurors must not be permitted to ask questions directly of a witness. In R v Lo Presti [1992] 1 VR 696; (1991) 58 A Crim R 304 (CCA) the court said in joint judgment (at 702; 308):

[10.2180]

JURY

925

1. Juries should not be told of any right possessed by them to question a witness. 2. A juror who wishes to put, or have put, a question to a witness has a right for that to be done provided that the question or questions is or are limited to the clarification of evidence given or the explanation of some matter about which confusion exists. 3. It is not essential that the question asked be formulated by the foreman. 4. It is highly desirable that the question sought to be asked first be submitted to the judge so that he may consider its relevance and admissibility. 5. If the judge allows the question it is immaterial whether it is actually asked by the juror or the judge. However, if the judge puts the question there will be removed the risk that exists when a layman is the questioner of the generation of spontaneous exchange of questions and answers in the course of which improper material may emerge. However, these propositions can be no more than guidelines. This court cannot in advance fetter the discretion a judge must exercise in the determination of what course is that best to be adopted in the given circumstances of the moment so as to ensure justice between the parties and the avoidance of unacceptable prejudice to the accused. The judge has the right and obligation to control the proceedings in his court in a manner that will enable the ends of justice to be met.

Other cases R v Pathare [1981] 1 NSWLR 124 at 125 (CCA); R v Sams (1990) 46 A Crim R 468 at 472–473 (NSW CCA).

[10.2180] Grounds for discharge or appeal Juror speaking to a police witness R v Hodgkinson [1954] VLR 140 at 141–147 (CCA); R v Boland [1974] VR 849 at 865–867 (CCA) (appeal dismissed); R v Minarowska (1995) 83 A Crim R 78 (NSW CCA) (appeal dismissed); R v Fielding [1993] 1 Qd R 192; (1991) 54 A Crim R 390 (CCA); R v Edwards [2002] 1 Qd R 203; (2000) 116 A Crim R 522 (CA).

Defence solicitor speaking to jurors R v Pearson (2000) 114 A Crim R 80 (NSW CCA).

One juror telling others information about accused learned out of court R v Coombs [1985] 1 NZLR 318 (CA); R v Bates [1985] 1 NZLR 326 (CA).

Juror making own inquiries In R v Domican [No 3] (1990) 46 A Crim R 428 (NSW CCA) Kirby ACJ said (at 446): Not every irregularity will result in the quashing of a conviction: see, for example, Twiss [1918] 2 KB 853; Riley [1982] 1 NZLR 1 at 10. A conviction may be quashed where a jury has been shown to have gone outside the evidence in a way that may reasonably be suspected to cast doubt on the integrity of the verdict: see; for example, Bates [1985] 1 NZLR 326 at 328 and Gillespie (unreported, Court of Appeal, NZ, 7 February 1989). In the last-mentioned case, after the verdict, counsel became aware that the foreman of the jury had visited the place of the alleged crime to test the explanation given by the accused. Another juror had also later visited the scene to make his own inspections. These were duly reported to the fellow jurors. Richardson J, delivering the

926

ROSS ON CRIME

[10.2185]

judgment of the court said, referring to Bates [1985] 1 NZLR 326, that “the occasion would be rare indeed when the court could say that notwithstanding a jury’s extrajudicial inquiry on a vital issue, the jury undoubtedly would have reached the same conclusion without it” (at p 4). It was held that the jury should have kept itself to the photographs tendered in evidence. The conviction was quashed.

In R v Skaf (2004) 60 NSWLR 86 (CCA) two jurors returned to the scene and conducted experiments. Appeal allowed. The court could not be satisfied that the information had not affected the verdict (at 104 [274] – [277]). See also R v Myles [1997] 1 Qd R 199; (1995) 83 A Crim R 519 (CA).

Non-exhibits in the jury room In Barker v The Queen (1994) 54 FCR 451; 127 ALR 280; 78 A Crim R 1 (FCA) the court held (at 465; 290; 12): The presence in the jury room of material relating to a subject of the jury’s deliberations and not in evidence constitutes an irregularity: Domican v The Queen (No 3) (1990) 46 A Crim R 428 at 447–8; R v Rinaldi (1993) 30 NSWLR 605. Each verdict of that jury must be set aside unless the court is satisfied that the jury would have returned that same verdict if the irregularity had not occurred: R v Marsland (SC (NSW), 17 July 1991, unreported); R v Rinaldi, (1993) 30 NSWLR 605. And “[i]t is for the Crown to make it clear that there is no real possibility that justice has miscarried”: Mraz v The Queen (1955) 93 CLR 493 at 514 (per Fullagar J).

See also R v Martinez [2015] QCA 169. In R v Forrester [1985] 2 NZLR 85 (CA), a juror found a lighter, believed lost, in the pocket of an exhibit jacket. The accused was convicted and the appeal was allowed.

Jury locked up: juror unaccompanied Where a jury has been locked up (sequestered) they are not to go out unaccompanied. If a juror does go out alone, a judge may discharge the juror or the jury. Where there is a conviction an appeal will be upheld. R v Chaouk [1986] VR 707; 23 A Crim R 463 (CCA); R v Edwards [2002] 1 Qd R 203; (2000) 116 A Crim R 522 (CA).

[10.2185] Discharge Principles The test for discharge of the jury is one of necessity or a high degree of need: R v Boland [1974] VR 849 at 866 (CCA). In Crofts v The Queen (1996) 186 CLR 427; 139 ALR 455; 88 A Crim R 232, the decision in R v Boland [1974] VR 849 was approved. Toohey, Gaudron, Gummow and Kirby JJ went to to say (at 440; 464; 241): No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues, the stage at which the mishap occurs, the deliberateness of the conduct, and the likely effectiveness of a judicial direction designed to overcome its apprehended impact.

In Webb v The Queen (1994) 181 CLR 41; 122 ALR 41; 73 A Crim R 258 Mason CJ and McHugh J reviewed authority and said (at 53; 49; 265): [T]he test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the

[10.2195]

JURY

927

incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially.

In R v Pearson (2000) 114 A Crim R 80 (NSW CCA) Foster AJA delivering the leading judgment said of the Webb test (at 87 [32]): It must be noted that the test as so propounded is an objective one and does not depend upon the actual effect that the incident might have had upon the juror in question.

In R v Matthews (1999) 1 VR 534; 102 A Crim R 269 (CA) Callaway JA delivering the leading judgment said (at 537; 272 [9]): In my opinion the test is still whether there is a high degree of need, but a reasonable apprehension of bias is one of the circumstances that constitutes a high degree of need. See R v Holt and Merriman (1996) 87 A Crim R 82 at 86.

In R v Punnett [2006] 1 NZLR 133 (HC, Laurenson J) his Honour discharged the jury in a joint trial because of the incompetence of one of the defence counsel. In R v Goodall (2007) 15 VR 673; 169 A Crim R 440 (CA) the trial judge had discharged a juror who was upset by the evidence. It was a sexual case and the juror had been a past victim in similar circumstances. Held: appeal dismissed. The remaining jurors were not contaminated. The upset juror should not have been discharged because there was no bias.

See also Zhu v The Queen [2013] VSCA 102; H M v The Queen [2013] VSCA 100; R v Burgess [2014] QCA 290; R v PAR [2014] QCA 248.

Legislation Qld: Jury Act 1995 s 60; WA: Criminal Procedure Act 2004 s 116; Tas: Criminal Code s 378; NT: Criminal Code s 371(2); Vic: Juries Act 2000 s 43; NZ: Crimes Act 1961 s 374(1).

[10.2190] Failure to discharge jury: appeal is against conviction In Maric v The Queen (1978) 52 ALJR 631; 20 ALR 513 Gibbs J said (at 634–635; 520): However, in my opinion, it must be remembered that when a trial judge has refused an application to discharge a jury. and the accused has been convicted, the appeal then brought to the Court of Criminal Appeal is not against the failure to discharge the jury but against the conviction. In those circumstances, I cannot see any justification for deciding appeals in such cases on any different principle from that which applies in relation to criminal appeals generally.

[10.2195] Misconduct by court official The words of Starke J in R v Stretton and Storey [1982] VR 251 (CCA) at 254 should be heeded:

928

ROSS ON CRIME

[10.2200]

Nevertheless, it must be from now on made clear that no tipstaff, nor any other person, nor any other keeper may conduct a conversation with any juryman in respect of matters relating to the trial during the course of the trial.

In R v GAE (2000) 1 VR 198; 109 A Crim R 419 (CA) the tipstaff wrongly told the jurors that only a majority verdict was required. The matter was raised in court soon after, and corrected. The appeal was dismissed because the irregularity was cured (at [111]) and did not relate to a matter relevant to verdict (at [112]). Other cases R v Tang Seng Kiah (1999) 150 FLR 470; 106 A Crim R 276 (NT CCA): sheriff’s officer told jury that accused would be executed if returned to Singapore. R v Briffa (unreported, Vic CA, 21 April 1997): exhortation by jury keeper to return verdict soon and that guilt was glaringly obvious. R v Jackson [1995] 1 Qd R 547; (1994) 71 A Crim R 444 (CA): bailiff telling jury about sentencing principles. R v Davies (1991) 53 A Crim R 122 (NSW CCA): drunkenness with jurors during lock-up of jury. R v Emmett & Marsland (1988) 14 NSWLR 327; 33 A Crim R 340 (CCA). R v Willmont (1914) 10 Cr App R 173 (CA). Costa v The Queen [2013] VSCA 5 (improper communications between tipstaff and jurors).

[10.2200] Disclosure of accused’s bad character The wrongful disclosure of an accused’s bad character may cause a jury to be discharged, or an appeal to succeed. R v McLachlan [2000] VSC 215 (Vic, 24 May 2000, unreported) was a murder retrial. It emerged that an internet site referred to the conviction of the accused and recited the facts wrongly. Hampel J discharged the jury. In R v Knape [1965] VR 469 (CCA) an accused’s witness said, unresponsively, that he had met the accused in Bendigo Training Prison. The appeal was allowed. The court said (at 473): However, if evidence of bad character is inadvertently and improperly given there is undoubtedly a discretion in the trial judge to determine whether or not the jury should be discharged, a discretion to be exercised according to the circumstance of the particular case. An examination of the authorities leads us to the view that unless it can be said, upon the evidence, that the irregular disclosure could not in any way affect the judgment of the jury in coming to their decision of guilty or not guilty, the trial judge would exercise his discretion in favour of the accused.

Other cases R v Booth [1983] 1 VR 39; 8 A Crim R 4 (CCA) per Lush J (at 42–44; 7–9) with whom the others agreed; R v Harmer (1985) 28 A Crim R 35 (Vic CCA) in a joint judgment (at 40). See also Character (Bad character of accused accidentally admitted) at [3.1345].

[10.2205] Length of trial The length of a trial should have no bearing on whether a jury should be discharged. In R v Johnson (1979) 22 SASR 161 (CCA) Mitchell J and Williams AJ said (at 182):

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Nor should the expense or inconvenience caused by the dismissal of a jury after a trial has proceeded for a long time have any weight in causing a judge to refuse to dismiss a jury, notwithstanding application by the accused, where such refusal may cause an injustice to the accused.

In R v Boland [1974] VR 849 (CCA) the court said in a joint judgment (at 866): It is one thing to say that the principles relating to the exercise of discretion are the same whether the trial be a long one or a short one. It is an entirely different thing to say that in the application of those principles a judge may not, in the particular case, bear in mind the duration and expected duration of the trial. Much depends in every case on the nature and degree of the alleged prejudice, the body of evidence already heard and yet to be heard, how far the prejudicial matter may be submerged and pushed into the background by the totality of the evidence, and whether in all the circumstances a clear warning to the jury will be sufficient to avoid or dispel any prejudice and enable a fair trial to be held.

[10.2210] Bias of a juror or jury See Bias at [2.1800].

[10.2215] Embracery An attempt to persuade a jury other than by counsel’s argument or evidence constitutes the crime of embracery, or attempt to pervert the course of justice, or contempt of court. See also Embracery at [5.700].

[10.2220] Change of plea of one accused In a trial of more than one accused if, during the trial, one accused changes his plea to guilty, the discharge of a jury is generally not warranted for the other accused: R v Coates (2002) 136 A Crim R 252 (NSW CCA); Grakalic v The Queen (2002) 27 WAR 19; 130 A Crim R 219 (CCA); R v Cowell (1985) 24 A Crim R 47 (NSW CCA); R v McKitterick [1982] 2 VR 637 at 641–642 (CCA); R v Chee [1980] VR 303 (CCA). Note that in these circumstances, the jury verdict is still necessary for the accused who has pleaded guilty, for that accused has been put in charge of the jury. The judge will direct them to return the verdict of guilty: R v Willer (1986) 83 Cr App R 225.

[10.2225] Appeal There is no appeal from the discharge of the jury: R v Gorman [1987] 1 WLR 545; [1987] 2 All ER 435; (1987) 85 Cr App R 121. The refusal to discharge a jury is not a ground of appeal in itself. The ground is that a miscarriage of justice has occurred: Maric v The Queen (1978) 52 ALJR 631; 20 ALR 513 (HC) at 634; 520 (Gibbs J).

[10.2230] Jury problems There may be internal and external jury problems. A suggestion on the proper approach is found in R v Orgles [1994] 1 WLR 108; [1993] 4 All ER 533; (1993) 98 Cr App R 185 in which the Court of Appeal held (at 112–113; 538–539; 189–190):

930

ROSS ON CRIME

[10.2230]

(a) Each member of a properly constituted jury has taken an individual oath to reach a true verdict according to the evidence; or have made an affirmation to the like effect. (b) Circumstances may subsequently arise that raise an inference that one or more members of a jury may not be able to fulfil that oath or affirmation. (c) Normally such circumstances are external to the jury as a body. A juror becomes ill; a juror recognises a key witness as an acquaintance; a juror’s domestic circumstances alter so as to make continued membership of the jury difficult or impossible–so far, we give familiar, inevitably recurring circumstances. Less frequent, but regrettably not unfamiliar, is the improper approach to a juror, alternatively a discussion between a juror and a stranger to the case about the merits of the case–in short, that which every jury is routinely warned about. (d) Occasionally, as in the instant case, the circumstances giving rise to the jury problem are internal to such as a body. Whereas the duty common to all its members normally binds the 12 strangers to act as a body, such cannot always occur. From time to time there may be one or more jury members who cannot fulfil the duty, whether through individual characteristics or through interaction with fellow jury members. (e) However the circumstances arise, it is the duty of the trial judge to inquire into and deal with the situation so as to ensure that there is a fair trial, to that end exercising at his discretion his common law power to discharge individual jurors (to a limit of three, see s 16 of the Juries Act 1974), or a whole jury (see R v Hambery [1971] QB 924). (f) The question arises as to whether and in what circumstances that duty should be exercised by the trial judge in the absence of the jury as a body. As to this, first, there is no doubt but that the judge’s discretion enables him to take the course best suited to the circumstances (see R v Richardson, [1979] 1 WLR 1316 for an extreme course) and frequently it is appropriate to commence and continue the inquiry with the juror concerned separated from the body of the jury. Such a course cannot readily be faulted if the circumstance giving rise to the inquiry is external to the jury as a body; indeed if the problem is an approach to a juror, alternatively some external influencing of a juror, only such a course is feasible. The “infection”, actual or potential, of one juror must be prevented if possible from spreading to the rest of the jury, and it is common form to have the individual juror brought into open court with the rest of the jury absent so that the trial judge may make an inquiry in the presence of the accused and counsel without jeopardising the continued participation of the rest of the jury. (g) However, in our judgment, such separation of a juror for the purposes of an inquiry cannot be justified if the circumstances are internal to the jury. It may be that just one member of the jury is complaining about all or some of the rest–or, as here, two members–but the problem is not the capacity of one or more individuals to fulfil the oath or affirmation, but the capacity of the jury as a whole. When this type of problem arises, then the whole jury should be questioned in open court through their foreman to ascertain whether, as a body, it anticipates bringing in a true verdict according to the evidence. It will be a matter for the judge’s exercise of discretion as to how he reacts to the response, that is whether he makes no order, whether he discharges the whole jury, or whether he discharges individual jurors up to three in number. (h) That which the recorder eventually did, we cannot fault; what we regard as irregular was the initial separation and questioning of the individual members which, given the nature of their respective complaints, should not have happened. The point can be tested. Let it be supposed that one or both had individually intimated an inability to return a verdict, having regard to friction within the jury - what should follow? It could not be right to discharge one or both and leave the rest of the jury to continue – arguably the wrong person or persons would then be discharged, namely those who did heed the nature of the duty. In our view the inquiry could only be with the jury as a whole.

Approved: R v Roberts [2005] 1 Qd R 408; (2004) 149 A Crim R 102 (CA); R v Blackwell [1995] 2 Cr App R 625 (CA).

[10.2240]

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Other cases I v Western Australia (2006) 165 A Crim R 420 (WA CA) per Steytler P (at 426 [15] – [16]) with whom the others agreed; R v Goodall (2007) 15 VR 673; 169 A Crim R 440 (CA) per Redlich JA (at 682–684; 450–451 [43] – [52]) with whom the others agreed.

[10.2235] Confidentiality of deliberations The deliberations of the jury must not be revealed or sought.

Legislation Qld: Jury Act 1995 s 70; WA: Juries Act 1957 ss 56A–57; Tas: Criminal Code Appendix D Forms I and II: Juror’s oath or affirmation; NT: Juries Act s 49A; NSW: Jury Act 1977 ss 68A and 68B; Vic: Juries Act 2000 s 78; SA: Criminal Law Consolidation Act 1935 s 246; ACT: Juries Act 1967 s 49A.

Cases R v Minarowska (1995) 83 A Crim R 78 (NSW CCA); R v Laws (No 1) (2000) 50 NSWLR 96; 116 A Crim R 63 (NSW, Wood CJ at CL): In England the offence is a contempt: Contempt of Court Act 1981 s 8.

[10.2240] Obtaining information extrinsic to jury deliberation General principle Once the verdict is delivered a juror cannot later impugn it: Nanau v The State [1986] AC 860; 3 All ER 248; 83 Cr App R 292 (PC). In R v Zampaglione (1981) 6 A Crim R 287 (Vic CCA), the court said (at 298): There is abundant authority for the proposition that the court will not receive evidence of what takes place in the course of deliberations of a jury or of the reasons for its decision. See Box [1964] 1 QB 430 citing Thompson (1961) 46 Cr App R 72 where many of the earlier cases are referred to, particularly Ellis v Deheer [1922] 2 KB 113; Hood [1968] 1 WLR 773; Re Donovan’s Application [1957] VR 333. No doubt the same principle is applicable to anything which passes between members of the jury in private.

In Re Portillo [1997] 2 VR 723; (1996) 88 A Crim R 283 (CA), Callaway JA gave the leading judgment. His Honour said (at 726; 286): The common law rule as to non-disclosure by a former juror of what occurred in the course of the jury’s deliberations serves a valuable public purpose that has often been explained. See, for example, R v Zampaglione (1981) 6 A Crim R 287; R v Medici (1995) 79 A Crim R 582 and R v Young [1995] QB 324 and the cases there cited. The better view is that it is not confined to the jury room but extends to anything that may truly be described as deliberations by the jury: cf Re Matthews & Ford [1973] VR 199 at 209. References to the jury box or jury room are to be

932

ROSS ON CRIME

[10.2240]

explained on the basis that that is where most or all deliberations by the whole jury take place: cf Ellis v Deheer [1922] 2 KB 113 at 117–118, 119–120 and 121 and R v Young [1995] QB 324 at 331–332. The rule does not, however, prevent a court from considering evidence from former jurors on matters extrinsic to their deliberations. See R v Medici (1995) 79 A Crim R 582 at 590 and R v Young [1995] QB 324 at 331. That is so even of extrinsic conduct occurring in the jury room. See R v Emmett & Masland (1988) 14 NSWLR 327, especially at 334 and 335. In that case not only were affidavits received but oral evidence was given both by two former jurors and by the sheriff’s officers whose conduct was impugned.

The rationale for the rule is set out by Martin CJ in Smith v Western Australia [2013] WASCA 7 as follows: [29] A number of public policy considerations have been advanced in support of the exclusionary rule, including the promotion of free and frank discussion among jurors, protecting the privacy of jurors including protecting them from harassment and victimisation, the encouragement of full and candid participation by jurors in deliberations, ensuring the finality of the verdict of the jury, and the maintenance of public confidence in the jury system (see Shrivastava [63] (Buss JA)). Some of the rationales for the rule are stronger than others. For example, it is difficult to contend that finality is preferable to justice in a context in which provision is made for appeals from the verdicts of juries on a variety of grounds, including the ground that the verdict is unsafe and unsatisfactory (M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63). Similarly, it is open to debate whether the decision of the Privy Council in Nanan enhanced or diminished public confidence in the integrity of the justice system. However, whatever the strengths or weaknesses of the differing rationales advanced in support of the exclusionary rule, it is clear that the rule is so well established that any significant modification to the rule should be undertaken by the legislature or the ultimate appellate court and not by an intermediate Court of Appeal such as this.

In Smith v Western Australia (2014) 88 ALJR 384; [2014] HCA 3 the Court held that a note found in jury room, after a jury convicted an accused, suggesting that suggested a juror was coerced into changing his or her verdict, should have resulted into an inquiry into the circumstances relating to the note. In Smith v The Queen (2015) 89 ALJR 698; 322 ALR 464; [2015] HCA 27, the High Court affirmed the principle that the jury deliberations should remain confidential in order to maintain confidence in the jury system and protect the finality of the jury verdict. As a result, it was held that interim jury votes should not be disclosed, however, if they are disclosed, a failure to inform the accused of the votes does not constitute a denial of a fair trial. Other cases R v K (2003) 59 NSWLR 431; 144 A Crim R 468 (CA); R v Connor [2004] 1 AC 1118; [2004] 1 All ER 925; [2004] 2 Cr App R 112 (HL); R v Pan; R v Sawyer [2001] 2 SCR 344; 200 DLR (4th) 577; 155 CCC (3d) 97 (SCC); R v Qureshi [2002] 1 WLR 518; 1 Cr App R 433.

Principle and exception In R v Smith [2005] 1 WLR 704; [2004] 2 All ER 29 (HL) Lord Carswell, with whom the others agreed, said (at 707; 33 [7]): My Lords, the institution of jury trial, with all its imperfections, is still trusted by the public as a method of determining the guilt of persons charged with criminal offences. Two important factors in retaining that trust are concerned in this appeal. The first is the maintenance of the sanctity of the jury’s deliberations, so that its members will continue to feel confident that they can discuss the issues in the case before them with complete candour. Their individual views or arguments will not be revealed to the court, which will be informed simply of the jury’s laconic verdict. This encourages the collective and cohesive deliberation and reconciliation of differing views which

[10.2245]

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Lord Hobhouse of Woodborough described in R v Mirza [2004] 1 AC 1118, 1171 para 143 as an important feature of the jury’s work. It also protects individual jurors from exposure to pressure to explain the reasons which had actuated them individually to arrive at their verdicts: see Ellis v Deheer [1922] 2 KB 113 at 121, per Atkin LJ. The second factor is that in those fortunately rare cases where the court is informed that there has been some misconduct on the part of jurors or irregularity in the way in which their deliberations have been carried out, it should have as effective means as the circumstances will permit of ascertaining what has gone wrong and taking steps to rectify it. The present appeal concerns the second of these factors and the way in which such investigation can be carried out while preserving the first factor intact.

(and later at 712; 38–39; 169–170 [16]): The principles of the common law relating to inquiry into the verdicts of juries and matters which may affect the propriety of the manner in which they reach their verdicts have been rehearsed in R v Mirza [2004] 1 AC 1118, particularly in paras 94 to 107 of the opinion of Lord Hope of Craighead, at pp 1155–1159, and it is unnecessary for me to repeat what their Lordships have said there. It may nevertheless be helpful if I set out in a series of brief propositions how the law stands, prior to considering how a judge should approach a situation such as that encountered in the present case. (1) The general rule is that the court will not investigate, or receive evidence about, anything said in the course of the jury’s deliberations while they are considering their verdict in their retiring room: Ellis v Deheer [1922] 2 KB 113, 117–118, per Bankes LJ; R v Miah [1997] 2 Cr App R 12, 18, per Kennedy LJ; R v Mirza [2004] 1 AC 1118, at p 1156, para 95, per Lord Hope of Craighead. (2) An exception to the above rule may exist if an allegation is made which tends to show that the jury as a whole declined to deliberate at all, but decided the case by other means such as drawing lots or tossing a coin. Such conduct would be a negation of the function of a jury and a trial whose result was determined in such a manner would not be a trial at all: R v Mirza [2004] 1 AC 1118, at pp 1164–1165, para 123, per Lord Hope of Craighead. (3) There is a firm rule that after the verdict has been delivered evidence directed to matters intrinsic to the deliberations of jurors is inadmissible. The House so held in R v Mirza [2004] 1 AC 1118, affirming a line of cases going back to Ellis v Deheer [1922] 2 KB 113 and R v Thompson (Timothy Morgan) [1962] 1 All ER 65. (4) The common law has recognised exceptions to the rule, confined to situations where the jury is alleged to have been affected by what are termed extraneous influences, eg contact with other persons who may have passed on information which should not have been before the jury: see such cases as R v Blackwell [1995] 2 Cr App R 625 and R v Oke [1997] Crim LR 898. (5) When complaints have been made during the course of trials of improper behaviour or bias on the part of jurors, judges have on occasion given further instructions to the jury and/or asked them if they feel able to continue with the case and give verdicts in the proper manner. This course should only be taken with the whole jury present and it is an irregularity to question individual jurors in the absence of the others about their ability to bring in a true verdict according to the evidence: R v Orgles [1994] 1 WLR 108. (6) Section 8(1) of the 1981 Act is not a bar to the court itself carrying out necessary investigations of such matters as bias or irregularity in the jury’s consideration of the case.

[10.2245] Reserve jurors Legislation allows a larger number than 12 jurors to be sworn. The excess will be discharged before the jury retires to consider its verdict.

Legislation Qld: Jury Act 1995 s 34; WA: Juries Act 1957 s 18;

934

ROSS ON CRIME

[10.2250]

Tas: Jury Act 1899 s 39; NT: Juries Act s 37A; Vic: Juries Act 2000 s 41; SA: Juries Act 1927 s 6A; ACT: Juries Act 1967 s 31A. In New South Wales there is no provision for reserve jurors: Jury Act 1977 s 19.

Cases Ah Poi Wah v The Queen (1995) 15 WAR 404; 126 FLR 281; 132 ALR 708; 82 A Crim R 402 (WA CCA); Papas v The Queen (2002) 27 WAR 67; 133 A Crim R 200 (CCA); R v Ng (2002) 5 VR 257; 136 A Crim R 299 (CA). Approved: Ng v The Queen (2003) 217 CLR 521; 197 ALR 10.

[10.2250] Information about potential jurors’ convictions given to prosecutor Mandatory provisions of a State’s Jury Act must be complied with. So in Victoria the provision of a potential juror’s convictions is unlawful: Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66; 166 ALR 159. But where there are no mandatory provisions such a practice is not unfair. In R v Mason [1981] QB 881; [1980] 3 All ER 777; 71 Cr App R 157 (CA). Lawton LJ reading the judgment of the court said (at 887–888; 781; 161): For centuries the law has provided by enactment who are qualified to serve as jurors, and has left the judges and the parties to criminal cases to decide which members of a jury panel were suitable to serve on a jury to try a particular case. To this extent the random selection of jurors has always been subject to qualification … In our judgment, the practice of the past is founded on common sense. A juror may be qualified to sit on juries generally, but may not be suitable to sit on a particular case.

Further (at 891; 783; 164): We would expect [prosecuting counsel] to act responsibly and not to request a stand by unnecessarily. Cases may occur when it would be fair for prosecuting counsel to disclose his information to the defence … What should be done must be left to the discretion of prosecuting counsel.

In conclusion (at 891–892; 784; 165): The practice of supplying prosecuting counsel with information about potential jurors’ convictions has been followed during the whole of our professional lives, and almost certainly for generations before us. It is not unlawful, and has not until recently been thought to be unsatisfactory. We have not been concerned in any way with, and make no comment upon, the giving to prosecuting counsel of information other than that relating to convictions, or with the desirability of making other inquiries about members of a jury panel.

The same conclusion was reached in: R v Robinson [1989] VR 289; (1988) 38 A Crim R 1 (CCA) (O’Bryan and Marks JJ); R v Su (1997) 1 VR 1; 129 FLR 120 at 11–21, 128–129 (CA).

[10.2405]

JUSTICE

935

For discussion of offences concerning interference with jury see Embracery at [5.500]. See also Verdict at [22.500].

[10.2255] Provision of writing materials In R v Sandford (1994) 33 NSWLR 172; 72 A Crim R 160 (CCA), Hunt CJ at CL said (at 182; 192): It is of course a matter of discretion as to whether in any particular case the jury should be supplied with writing materials … but it is difficult to imagine any legitimate basis upon which a specific request could be denied. It is now common practice for writing materials to be offered to jurors without waiting for a request.

[10.2260] Jury unable to agree See also Black direction at [2.2500]. Papadopoulos direction at [16.100].

[10.2265] Articles P Robertshaw, “Responding to Bias Amongst Jurors” (2002) 66 J Crim L 84-95; A Simpson and M Wood, “A Puny Thing Indeed – Cheng v The Queen and the Constitutional Right to Trial by Jury” (2001) 29 FL Rev 95; S Lloyd-Bostock, “The Effects on Juries of Hearing About the Defendant’s Previous Criminal Record: A Simulation Study” [2000] Crim LR 734-755.

JUSTICE Justice endures .......................................................................................................................... Justice must be seen to be done ............................................................................................... Not a cloistered virtue .............................................................................................................. Justice delayed is justice denied .............................................................................................. Judge not to apply abstract justice ........................................................................................... Case management not to supplant justice ................................................................................ Not a game or a sport ............................................................................................................... Justice and mercy ...................................................................................................................... Justice and common sense ........................................................................................................ Brevity and simplicity are the handmaidens of justice ........................................................... Convenience and justice ........................................................................................................... Justice and robber bands .......................................................................................................... Definition ...................................................................................................................................

[10.2400] [10.2405] [10.2410] [10.2415] [10.2420] [10.2425] [10.2430] [10.2435] [10.2440] [10.2445] [10.2450] [10.2455] [10.2460]

[10.2400] Justice endures In Marsland v Taggart [1928] 2 KB 447; [1928] All ER Rep 51 (KBD) Shearman J said (at 450; 53): Justices come and go, but justice itself should endure.

[10.2405] Justice must be seen to be done Lord Hewart CJ in R v Sussex JJ; Ex parte McCarthy [1924] 1 KB 256; [1923] All ER 233 said (at 259; 234): Justice should not only be done but should manifestly and undoubtedly be seen to be done.

936

ROSS ON CRIME

[10.2410]

And the corollary in R v Cambourne JJ, ex p Pearce [1955] 1 QB 41; [1954] 2 All ER 850 at 52, 855: While indorsing and fully maintaining the integrity of the principle reasserted by Lord Hewart, CJ, this court feels that the continued citation of it in cases to which it is not applicable may lead to the erroneous impression that it is more important that justice should appear to be done than that it should in fact be done.

[10.2410] Not a cloistered virtue In Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322; [1936] 1 All ER 704 (PC) Lord Atkin giving the advice of the Board said (at 355; 709): Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.

[10.2415] Justice delayed is justice denied Magna Carta (1215) 40: “To none will we sell, to none deny or delay, right or justice”. Since then the sentiment has been used often. In R v Lawrence [1982] AC 510; [1981] 1 All ER 974; 73 Cr App R 1 (HL) Lord Hailsham said (at 517; 975; 3): My Lords, it is a truism to say that justice delayed is justice denied.

Of a justice’s appeal where, nearly a year had elapsed before hearing, Muirhead ACJ said in Jambajimba v Dredge (1985) 33 NTR 19; 81 FLR 180 (at 23; 183): Delay in resolution of such matters does nothing for justice.

A charming alternative to Magna Carta comes from Lord Bacon: Justice is sweetest when it is freshest.

(Quoted in Kenny’s Outlines of Criminal Law (17th ed, Cambridge University Press, London 1958, [745] and referred to by Brennan J in Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 at 45 (CLR).

[10.2420] Judge not to apply abstract justice In R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (CCA) Fullagar J said (at 430; 21) In my opinion, once the courts of law, properly so-called, begin to decide cases according to the judge’s own view of abstract justice or of current standards of honesty or morality, respect for the courts will be calculated to decline, with dire consequences of a most fundamental character. Justice would no longer be seen to be done, and a judge would be no better qualified than anyone else to decide the cases.

Dixon CJ said in National Insurance Co of New Zealand Ltd v Espagne (1961) 105 CLR 569 at 572: Intuitive feelings for justice seem a poor substitute for a rule antecedently known, more particularly where all do not have the same intuitions.

[10.2425] Case management not to supplant justice In Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; 71 ALJR 294; 141 ALR 353 Dawson, Gaudron and McHugh JJ said (at 154; 357): Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always to be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.

[10.2460]

JUSTICE

937

[10.2430] Not a game or a sport In R v Thompson (2002) 130 A Crim R 24 (NSW CCA) Ipp AJA said (at 32 [41]): We have long since departed from the “game” or “sporting” theory of justice: see the remarks of Hope JA in Bassett v Host [1982] 1 NSWLR 206 at 207 and Mahoney JA in GIO (NSW) v Glasscock (1991) 13 MVR 521 at 530.

[10.2435] Justice and mercy In Yardley v Betts (1979) 22 SASR 108; 1 A Crim R 329 (CCA) King CJ said (at 122; 333): But public concern about crime, however understandable and soundly based, must never be allowed to bring about departure by the courts from those fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations

[10.2440] Justice and common sense In Overton v Loukides [1970] VR 462 Mclnerney J followed Ex parte Toohey’s Ltd; Re Butler (1934) 34 SR (NSW) 277 and ruled (at 465): [W]here a statute directs a specific proceeding in any court the proceeding must be according to the practice of that court, but where there is no practice specially applicable it is competent for the tribunal to deal with the matter as justice and common sense alike call for.

[10.2445] Brevity and simplicity are the handmaidens of justice In R v Novac (1976) 65 Cr App R 107 (CCA) Bridge LJ said (at 119): In jury trials brevity and simplicity are the handmaidens of justice, length and complexity its enemies.

[10.2450] Convenience and justice In General Medical Council v Spackman [1943] AC 627; [1943] 2 All ER 337 (HL) Lord Atkin said (at 638; 341): Convenience and justice are often not on speaking terms.

[10.2455] Justice and robber bands And so if justice is left out, what are kingdoms except great robber bands? For what are robber bands except little kingdoms? St Augustine, The City of God, Book iv, ch iv, trans WM Green, 1963.

[10.2460] Definition Justice, n. A commodity which in a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service. A Bierce, The Devil’s Dictionary. Volume VIII The Collected Works of Ambrose Bierce (Neale Publishing Co, New York, 1911) (first published 1906 as The Cynic’s Word Book).

938

ROSS ON CRIME

[10.2600]

JUVENILE Definition ................................................................................................................................... Legislation ................................................................................................................................. Not identifying juvenile ............................................................................................................ Construction of the legislation ................................................................................................. Sentencing ................................................................................................................................. Juvenile offences: sentencing an adult ..................................................................................... Sentences for various offences .................................................................................................

[10.2600] [10.2605] [10.2610] [10.2615] [10.2620] [10.2625] [10.2630]

[10.2600] Definition By statute, a juvenile is one who is older than 10 years but is under the age of 18. The only exception is Queensland where the upper limit is 17. Most jurisdictions call such a young person a child (Queensland, Western Australia, New South Wales and Victoria). Tasmania and South Australia use the term “youth”. In the Northern Territory it is “juvenile”.

[10.2605] Legislation Qld: Juvenile Justice Act 1992 Sch 4: Dictionary: child; WA: Children’s Court of Western Australia Act 1988 s 3: child; Tas: Youth Justice Act 1997 s 3: youth; NT: Juvenile Justice Act s 3: juvenile; Youth Justice Act; NSW: Young Offenders Act 1997 s 4: child; Vic: Children, Youth and Families Act 2005 s 3: child; SA: Young Offenders Act 1993 s 4: youth; ACT: Children and Young People Act 1999 ss 7, 8 and 9; NZ: Children, Young Persons, and Their Families Act 1989.

[10.2610] Not identifying juvenile Most jurisdictions have legislation which prevents the publication of the name of the juvenile. Northern Territory is an exception. Yet in MCT v McKinney (2006) 18 NTLR 222 (CA) the court prohibited the name of the juvenile because some offences were relatively minor, the juvenile was young and without prior convictions and other personal matters.

[10.2615] Construction of the legislation The relevant legislation is generally strictly construed: Bynder v Gokel (1998) 8 NTLR 91; 125 NTR 1; 147 FLR 221; 103 A Crim R 81 (CA); R v T [1995] 2 Qd R 192; (1994) 74 A Crim R 526 (CA).

[10.2620] Sentencing General principles R v BWP [2006] 1 SCR 941; (2006) 267 DLR (4th) 385; 209 CCC (3d) 97 (SCC): general deterrence should not apply. In Curtis v Sidik and Najar (1999) 9 NTLR 115; 119 A Crim R 1 Mildren J said (at 123; 6 [22]):

[10.2630]

JUVENILE

939

Generally speaking juveniles who are first offenders are not given actual custodial sentences unless the offence is a particularly serious one, such as a murder, a rape, or armed robbery.

In Simmonds v Hill (1986) 38 NTR 31 Maurice J said (at 33): In the Juvenile Court the retributive aspect of sentence is, at best of secondary importance. Even lower in the scale, if, indeed, it has any place at all, is deterring others. The overwhelming concern is the young offender’s development as a law-abiding citizen. The court should be at pains to ensure that its sentences do not alienate its young clients. Particularly is this so in the case of a first offender.

Rehabilitation is the dominant consideration S, JC v Police (2007) 96 SASR 432 (CCA); H, RJ v Police (2005) 93 SASR 62 (White J); WO (a child) v Western Australia (2005) 153 A Crim R 352 (WA CA); R v KLH (2004) 148 A Crim R 515 (NSW CCA); Lynch v Dixon (2004) 148 A Crim R 472 (NT, Olsson AJ); R v PP (2003) 142 A Crim R 369 (Vic CA); R v Bui (2002) 137 A Crim R 220 (SA CCA); KBS v Police (2001) 122 A Crim R 477 (SA, Gray J); Stewart v Collins (1992) SASR 291 at 293 (Bollen J); Lahey v Sanderson [1959] Tas SR 17 (Burbury CJ); Mentally impaired juvenile: R v T (1999) 109 A Crim R 162 (SA, Nyland J).

[10.2625] Juvenile offences: sentencing an adult Sentencing an adult for offences committed as a juvenile R v Watkins (2001) 120 A Crim R 565 (Qld CA): as a 15-year-old raped a 27-year-old intellectually impaired woman. R v Kama (2000) 110 A Crim R 47 (NSW CCA): 17 years and 8 months at time of inflicting grievous bodily harm. Sentenced a year later and prosecution appeal judgment another year later.

Sentencing an adult with juvenile prior convictions Crimes committed as a juvenile will be given less weight than those committed by an adult: R v Piercey [1971] VR 647 at 648 (CCA); Duca v Police (1999) 73 SASR 15 (Lander J). Generally the legislation determines whether juvenile prior convictions can be used in sentencing: Re Davidson Ex parte Attorney-General (Qld) (1999) 105 A Crim R 142 (Qld CA); R v Malayta [2001] 2 Qd R 427; (2000) 116 A Crim R 99 (CA).

[10.2630] Sentences for various offences Murder R v SLD (2003) 58 NSWLR 589; 142 A Crim R 503 (CCA): 13 years old, 20 years imprisonment, non-parole period 10 years. G v The Queen (1997) 96 A Crim R 162 (WA CCA): 16 years old, eight years imprisonment.

940

ROSS ON CRIME

[10.2630]

Attempted murder Six counts. R v E (a child) (1993) 66 A Crim R 14 (WA CCA): 16 years old; total of six years imprisonment.

Manslaughter R v Green [1986] 2 Qd R 406; (1986) 22 A Crim R 196 (CCA): 17 years old, five years imprisonment, parole after 18 months.

Armed robbery R v SDM (2001) 51 NSWLR 530; 127 A Crim R 318 (CCA): 17 years old, four and a half years imprisonment. C (a child) v The Queen (1995) 83 A Crim R 561 (WA CCA): 17 years old, two years imprisonment. B (a child) v The Queen (1995) 82 A Crim R 234 (WA CCA): 15 years old, non-custodial Youth Supervision Order. See also R v Govinden (1999) 106 A Crim R 314 (NSW CCA) at 317 [18] – [19]. See also Age at [1.3200]; Child at [3.1800]; Confession (Confession by a child) at [3.5405]; Doli incapax at [4.4400]; Young person at [25.100].

K KIDNAPPING Introduction ................................................................................................................................. Legislation ................................................................................................................................... History ......................................................................................................................................... Common law offence .................................................................................................................. Not a continuing offence ............................................................................................................ The common law offence survives ............................................................................................. No claim of right ........................................................................................................................ Kidnapping of a spouse .............................................................................................................. Minors or children ...................................................................................................................... Sentencing ................................................................................................................................... Sentence .......................................................................................................................................

[11.100] [11.105] [11.110] [11.115] [11.120] [11.125] [11.130] [11.135] [11.140] [11.145] [11.150]

[11.100] Introduction Kidnapping is a statutory offence. Some jurisdictions which have legislation on kidnapping also enforce the offence at common law.

[11.105] Legislation Cth: Criminal Code Act 1995 s 71.9; Qld: Criminal Code ss 354, 354A; WA: Criminal Code s 332; Tas: Criminal Code s 191A; NT: Criminal Code ss 194, 195; NSW: Crimes Act 1900 s 86; Vic: Crimes Act 1958 s 63A; SA: Kidnapping Act 1960; ACT: Crimes Act 1900 s 38; NZ: Crimes Act 1961 s 209; Eng: Common law; Can: Criminal Code s 279.

[11.110] History In Davis v The Queen [2006] NSWCCA 392 (NSW CCA 11 December 2006, unreported) Howie J, with whom Basten JA and Whealy J agreed made a thorough study of the history of the offence, both at common law and by New South Wales legislation (at [23] – [67]).

[11.115] Common law offence The offence is defined as the stealing and carrying away of any person of any age or either sex against the will of such person.

942

ROSS ON CRIME

[11.120]

In R v D [1984] 1 AC 778; [1984] 2 All ER 449; (1984) 79 Cr App R 313 (HL) Lord Brandon said (at 800–801; 453; 318–319): From this wide body of authority six matters relating to the offence of kidnapping clearly emerge. First, the nature of the offence is an attack on, and infringement of, the personal liberty of an individual. Second, the offence contains four ingredients as follows: (1) the taking or carrying away of one person by another, (2) by force or by fraud, (3) without the consent of the person so taken or carried away and (4) without lawful excuse. Third, until the comparatively recent abolition by statute of the division of criminal offences into the two categories of felonies and misdemeanours, the offence of kidnapping was categorised by the common law as a misdemeanour only. Fourth, despite that, kidnapping was always regarded, by reason of its nature, as a grave and (to use the language of an earlier age) heinous offence. Fifth, in earlier days the offence contained a further ingredient, namely that the taking or carrying away should be from a place within the jurisdiction to another place outside it; this further ingredient has, however, long been obsolete and forms no necessary part of the offence today. Sixth, the offence was in former days described not merely as taking or carrying away a person but further or alternatively as secreting him; this element of secretion has, however, also become obsolete, so that, although it may be present in a particular case, it adds nothing to the basic ingredient of taking or carrying away.

In R v Cort [2004] QB 388; [2004] 4 All ER 137 the accused drove to bus stops and told women wrongly that the bus had broken down. He offered them a lift. Many refused but two accepted. He otherwise acted properly. Held this was kidnapping and attempted kidnapping. The consent was obtained by fraud.

[11.120] Not a continuing offence In R v Reid [1973] 3 WLR 395; [1973] QB 299; [1972] 2 All ER 1350; (1972) 56 Cr App R 703 (CA) Cairns LJ, giving the judgment of the court, said (at 302; 1351–1352; 705): We can find no reason in authority or in principle why the crime should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as was urged by counsel, as a continuing offence involving the concealment of the person seized.

[11.125] The common law offence survives In R v Nguyen [1998] 4 VR 394; (1997) 99 A Crim R 151 (CA) Kenny JA giving the leading judgment said (at 411; 169): It has not been said in any of the jurisdictions where the common law continues to define criminal offences that the common law offence of kidnapping has been abolished by the statutory offence of kidnapping for gain. On the contrary, in this State as in New South Wales, the common law offence has continued to be applied.

[11.130] No claim of right In Williams v The Queen (2006) 160 A Crim R 151 (NSW CCA) the appellant was owed some thousands of dollars. He kidnapped to try to recover the money. The trial judge refused to direct on claim of right. The Judge was correct said the appeal court. Claim of right does not apply to kidnapping. Appeal dismissed.

[11.135] Kidnapping of a spouse This is an offence if the victim is treated with hostile force which results in being away from the place where the spouse wants to remain. The fact that they were cohabiting at the time is immaterial: R v Reid [1972] 3 WLR 395; [1973] QB 299; [1972] 2 All ER 1350; (1972) 56 Cr App 703 (CA); R v C (1981) 3 A Crim R 146 (NSW CCA) at 148.

[11.305]

KILBY WARNING

943

[11.140] Minors or children It is not kidnapping to take a child contrary to the will of friends or guardians. Such an act may be child stealing: R v Hale [1974] 1 QB 819; [1974] 1 All ER 1107; (1973) 59 Cr App R 1. However, a child can be kidnapped by a parent: R v D [1984] 1 AC 778; [1984] 2 All ER 449; (1984) 79 Cr App R 313 (HL).

[11.145] Sentencing In R v Spence (1983) 5 Cr App R (S) 413 (CA) Lord Lane CJ said (at 416): At the top of the scale of course, come the carefully planned abductions where the victim is used as a hostage or where ransom money is demanded. Such offences will seldom be met with less than eight years’ imprisonment or thereabouts. Where violence or firearms are used, or there are other exacerbating features such as the detention of the victim over a long period of time, then the proper sentence will be very much longer than that. At the other end of the scale are those offences which can perhaps scarcely be classed as kidnapping at all. They very often arise as a sequel to family tiffs or lovers’ disputes, and they seldom require anything more than 18 months’ imprisonment, and sometimes a great deal less.

[11.150] Sentence R v Cowie [2005] 2 Qd R 533 (CA): sentence of 12 years for kidnapping and torture; Payne v The Queen (2002) 131 A Crim R 432 (WA CCA); R v Edigarov (2001) 125 A Crim R 551 (NSW CCA); R v Radloff (1996) 6 Tas R 99; 88 A Crim R 26 (CCA); Deane v The Queen (1996) 88 A Crim R 36 (Tas CCA); R v Hudson (1985) 8 FLR 228; 63 ALR 257 (FCA). The victim was kidnapped, assaulted and held for two days by the five accused. Sentences ranged from eight years to two years imprisonment; R v Ogden (1974) 58 Cr App R 457. Kidnapping for ransom. Eight years imprisonment; R v Boland [1974] VR 849. See also Abduction at [1.300]; False imprisonment at [6.100].

KILBY WARNING Meaning ....................................................................................................................................... Origin ........................................................................................................................................... Qualifications ............................................................................................................................... Principles of directions on delay and fairness ........................................................................... Delay without prejudice affects duty to warn ............................................................................

[11.300] [11.305] [11.310] [11.315] [11.320]

[11.300] Meaning A Kilby warning refers to the direction to be given by a judge to a jury on the effect of delay in complaint in sexual offences.

[11.305] Origin The expression comes from a paragraph in the judgment of Barwick CJ in Kilby v The Queen (1973) 129 CLR 460; 1 ALR 283. The warning is about lack of timely complaint in a rape case. Barwick CJ said (at 465; 286):

944

ROSS ON CRIME

[11.310]

It would no doubt be proper for a trial judge to instruct a jury that in evaluating the evidence of a woman who claims to have been the victim of a rape and in determining whether to believe her, they could take into account that she had made no complaint at the earliest reasonable opportunity. Indeed, in my opinion, such a direction would not only be proper but, depending of course on the particular circumstances of the case, ought as a general rule to be given.

So in R v Omarjee (1995) 79 A Crim R 355 (Vic CCA) where no complaint was made and the judge failed to give the jury a Kilby warning, the appeal against conviction was allowed. The same result occurred in R v McKellin [1998] 4 VR 757; (1997) 99 A Crim R 464 (CA). In R v WEB (2003) 7 VR 200; 142 A Crim R 264 (CA) at 209; 272–273 [26] – [28] the trial judge had failed to give the jury a proper warning and further undermined it by giving reason for delay in complaining. Appeal allowed.

[11.310] Qualifications In Crofts v The Queen (1996) 186 CLR 427; 139 ALR 455; 88 A Crim R 232, the majority said (at 451–452; 472–473; 250–251): Two qualifications to the duty to provide the warning suggested by Kilby (1973) 129 CLR 460; 1 ALR 283 may be accepted. The first is where the peculiar facts of the case and the conduct of the trial do not suggest the need for a warning to restore a balance of fairness (R v Murray (1987) 11 NSWLR 12 at 18; M v The Queen (1994) 181 CLR 487 at 514–515). The second is that the warning should not be expressed in such terms as to undermine the purpose of the amending Act by suggesting a stereotyped view that complainants in sexual assault cases are unreliable or that delay in making a complaint about an alleged sexual offence is invariably a sign that the complainant’s evidence is false. So long as the purpose of the legislation, to rid the law of such stereotypes, is kept in mind, and the terms in which the legislation is expressed are followed, judges striving to assist juries in their consideration of the facts are unlikely to fall into the kind of error that occurred in this case.

[11.315] Principles of directions on delay and fairness In R v Johnston (1998) 45 NSWLR 362 (CCA) Spigelman CJ delivering the judgment said (at 375): (i) Wherever it appears to a trial judge that delay, whether occasioned by delay in reporting a crime or otherwise, may have affected the fairness of a trial, he or she should make such comments and give such warnings as will ensure that the trial is fair. (ii) A comment or warning is required if it appears to the trial judge that a jury may not, from its own experience, fully appreciate the effects of delay on the ability of the accused to defend himself or herself whether by testing prosecution evidence or adducing evidence in his own case, to establish a reasonable doubt about his or her guilt. (iii) The need for, and content of, any comment will depend on the circumstances of the case. (iv) Whether or not there is a need for any, and if so what, warning will also depend on the circumstances of the case. (v) Where it appears from the course of evidence, including cross-examination, or the conduct of the trial, including submissions, that specific difficulties were encountered by the accused in testing the evidence of the prosecution or adducing evidence in defence, then those specific difficulties should be highlighted in the summing up in such a way as makes it clear that delay, for which the accused had not been responsible, had created those difficulties. (vi) Where the summing up identifies difficulties pursuant to (v), the trial judge should indicate to the jury how they should approach their task of determining whether the prosecution has proven its case beyond reasonable doubt. There is no universally applicable formula but some reference to the additional care or caution with which they should approach the prosecution evidence is usually appropriate.

[11.515]

KLINEFELTER’S SYNDROME

945

(vii) In some cases a warning which uses terminology such as “dangerous” or “unsafe” to convict will be required. The reasons for the warning must be explained, generally by relating the danger to the specific difficulties of the character referred to in (v).

Other cases R v BJC (2005) 13 VR 407; 154 A Crim R 109 (CA); R v T (1999) 74 SASR 486 (CCA).

[11.320] Delay without prejudice affects duty to warn In R v Williams (1999) 104 A Crim R 260 (NSW CCA) Wood CJ at CL delivering the leading judgment said (at 267): Nothing emerged, in the evidence led in this trial, to suggest that the appellant was in fact prejudiced by delay. On the contrary, he was able to date the relevant weekend by reference to documents, and both he and his wife professed to have a clear and consistent recollection of what had occurred … Mere delay without more is not in my view enough. Each case will need to be considered upon its merits.

See also Complaint in sexual cases at [3.4300]; Delay at [4.1100]; and Longman warning at [12.2100].

KLINEFELTER’S SYNDROME Description of the syndrome ...................................................................................................... First analysis ............................................................................................................................... Frequency .................................................................................................................................... Some cases ..................................................................................................................................

[11.500] [11.505] [11.510] [11.515]

[11.500] Description of the syndrome Klinefelter’s syndrome describes a condition of some males. The symptoms are enlarged breasts (gynecomastia), small testes and an inability to produce sperm. Often there is sparse facial and body hair, a rounded body type, and a tendency to be overweight and tall. Occasionally there is language impairment and mental retardation. All these symptoms result in a genetic misfunction (chromosome 47 XXY instead of 46 XY), but not all those who possess the misfunction exhibit the syndrome. The effects of the syndrome are not noticed until puberty.

[11.505] First analysis The syndrome was first described in 1942 by a group of medical researchers at Massachusetts General Hospital. The name of the syndrome derives from the first researcher in the report of the condition: Harry Fitch Klinefelter (b 20 March 1912).

[11.510] Frequency The incidence of Klinefelter’s syndrome in the general population is said by statisticians to be 0.1%.

[11.515] Some cases In R v Miller (1995) 2 VR 348; 81 A Crim R 278 (Vic CCA) the applicant had pleaded guilty to murder. The court said (at 281): We should add some observations about Klinefelter’s syndrome so far as it might be regarded as affecting the applicant’s moral culpability for his crime and the danger he poses to the community.

946

ROSS ON CRIME

[11.700]

Dr Bartholomew, in a written report and in oral evidence upon the plea, dealt at some length with this rare syndrome – there is increased frequency of mental retardations; behavioural problems and anti-social behaviour are common. The rate of confinement in mental institutions for males suffering from this disorder is about three times that of normal males. The physical effects are likely to cause some mental anguish. They include small testes, a lack of sperm, somewhat enlarged breasts and general clumsiness. It is not difficult to image that a schoolboy so suffering would not have an easy time of it at school, and the history discussed by Dr Lewis suggests that the applicant had a miserable time at school, which he was permitted to leave when he threatened to burn it down.

See also R v Pfitzner (1996) 66 SASR 161; 85 A Crim R 120 at 166; 125 (CCA).

KNOWLEDGE Having a pretty good idea is not knowledge ............................................................................. Knowledge of possession ........................................................................................................... Misprision of felony – accessory after the fact ......................................................................... Aiding and abetting ..................................................................................................................... Knowledge of possession of an offensive weapon .................................................................... Knowledge of possession of minute amount of drug ................................................................ Knowledge of licensee or restaurateur ....................................................................................... Knowing goods are stolen: receiving .........................................................................................

[11.700] [11.705] [11.710] [11.715] [11.720] [11.725] [11.730] [11.735]

[11.700] “Having a pretty good idea” is not knowledge In R v Woods [1969] 1 QB 447; [1968] 3 All ER 709; 53 Cr App R 30 (CA) Phillimore LJ giving the judgment of the court said (at 452; 712; 35): “Knowing” is not the equivalent of “having a pretty good idea”.

[11.705] Knowledge of possession Where possession of some item is an offence, the prosecution must still prove that the accused knew of the item. In Sweet v Parsley [1970] AC 132; [1969] 1 All ER 347; (1969) 53 Cr App R 221, Miss Sweet leased a house. When she went to Oxford she let the rooms but kept one for herself for her occasional visits. In her absence drugs were found at the house and she was convicted by a magistrate of being concerned in the management of premises used for the purpose of smoking cannabis. The magistrate found as a fact that she had no knowledge. Miss Sweet made unsuccessful appeals up the hierarchy until the House of Lords found that the offence was not absolute, and no knowledge meant no crime. The appeal was allowed. An early case is McMillan v Lynch (1983) 26 NTR 37; 11 A Crim R 69 (NT, Nader J). Crocodile skins were found in Mr McMillan’s shed and the magistrate convicted him of their possession. The skins could have been left there by a friend without Mr McMillan’s knowledge. The appeal was allowed with a verdict of acquittal entered. Knowledge by the accused of all relevant facts will have to be proved by the prosecution where such knowledge is an element. In R v Cioc (1992) 16 Crim LJ 430 (NSW CCA) the accused had been convicted of offences arising from possession of heroin. The drug was found in a pocket of his suit hanging in his wardrobe. At trial he claimed no knowledge, that the drug must have been planted perhaps by police. Others had access to the wardrobe. Hunt CJ held that the trial judge should have directed on exclusive physical control. Enderby and Allen JJ found also that the jury should have been directed on intention, knowledge and awareness. Appeal allowed.

[11.715]

KNOWLEDGE

947

In Atkins v DPP [2000] 1 WLR 1427; [2000] 2 All ER 425; [2000] 2 Cr App R 248 (QBD) the prosecution failed to prove that the accused knew he had child pornography on his computer. See also Possession at [16.2700]; Wilful blindness at [23.500].

[11.710] Misprision of felony – accessory after the fact In R v Stone [1981] VR 737 Crockett J ruled that the prosecution had not made out its case because of failure to prove knowledge. His Honour referred to many authorities but held that he was bound by R v Tevendale [1955] VLR 95 (CCA). He said (at 739–740): [A]s I understand it, the learned Chief Justice Sir Edmund Herring and Sholl J were certainly of the view that what must be proved by way of knowledge on the part of the accessory is knowledge of all the relevant facts or acts that establish the precise felony with respect to which the Crown alleges the accused was an accessory.

The same standard of actual knowledge in such cases has been applied in: R v Wozniak (1989) 40 A Crim R 290 (NSW CCA); R v Lovegrove and Kennedy (1983) 33 SASR 332; 9 A Crim R 226 (CCA).

[11.715] Aiding and abetting In Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641, a case concerning sending out a driver in a truck with poor brakes, Wilson, Deane and Dawson JJ said (at 504–505; 664; 186): Intent is an ingredient of the offence of aiding and abetting or counselling and procuring and knowledge of the essential facts of the principal offence is necessary before there can be intent. It is actual knowledge which is required and the law does not presume knowledge or impute it to an accused person where possession of knowledge is necessary for the formation of a criminal intent. Secondly, although it may be a proper inference from the fact that a person has deliberately abstained from making an inquiry about some matter that he knew of it and, perhaps, that he refrained from inquiry so that he could deny knowledge, it is nevertheless actual knowledge which must be proved and not knowledge which is imputed or presumed.

It is in the importation and possession of drugs that the concept of knowledge has most serious application. Friends and relatives and even strangers have been favoured by an accused person bringing an innocuous item into Australia with drugs secreted inside. He Kaw Teh brought in an exchange suitcase from Malaysia, as did Mrs Zakaria from Lebanon. Bahri Kural brought a samovar from Turkey. In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Gibbs CJ (with whom Mason J agreed) said (at 539; 460; 213): [W]here a statute makes it an offence to have possession of particular goods, knowledge by the accused that those goods are in his custody will, in the absence of a sufficient indication of a contrary intention, be a necessary ingredient of the offence, because the words describing the offence (“in his possession”) themselves necessarily import a mental element. In such a case it is unnecessary to rely on the common law presumption that mens rea is required.

Brennan J said (at 589; 497; 251): On a count of possession under par (c) the onus is on the prosecution to prove that an accused, at the time when he had physical custody or control of narcotic goods, knew of the existence and nature, or of the likely existence and likely nature, of the narcotic goods in question and that onus is discharged only by proof beyond a reasonable doubt. Again, dependent on the circumstances, proof that narcotic goods are in the physical custody or control of an accused may be sufficient to discharge the onus of proving the knowledge which is an element of the offence.

948

ROSS ON CRIME

[11.720]

Dawson J said (at 602; 506; 260–261): In my view, it comes to this. A person cannot, within the meaning of par (c), possess something when he is unaware of its existence or presence. But he will, since possession is used in its barest sense, possess something if he has custody or control of the thing itself or of the receptacle or place in which it is to be found provided that he knows of its presence. He need not know what it is (other than to the extent necessary to know of its presence) nor its qualities. Thus a person will possess narcotic goods if he has, to his knowledge, custody or control of something which is in fact a narcotic substance, even if its packaging prevents him from knowing what it is and even if he does not know its quality as a narcotic substance.

In Kural v The Queen (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 Mason CJ, Deane and Dawson JJ said (504–505; 659; 13): Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct.

On the same day the same judges used the same words in their judgment in Saad v The Queen (1987) 61 ALJR 243; 29 A Crim R 20; 70 ALR 667 at 244, 668, 21. In Pereira v DPP (1988) 63 ALJR 1; 82 ALR 217; 35 A Crim R 382 (HC) cannabis resin was posted to Mrs Pereira at her address in Sydney. She took delivery of it though it was addressed to Mrs Caulfield. The resin was in cricket balls and a jewellery case sent from Bombay. She did not open the parcel. When police arrived she said she had no knowledge of its contents. The High Court dismissed the appeal. The court said (at 3; 219–229; 385): Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or, a necessary element of the guilty mind required for the offence, it must be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge … It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that what might be postulated of a hypothetical person in the position of the accused, although of course that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter.

Other cases R v Lee, Tan and Ong (1990) 1 WAR 411; 47 A Crim R 187 (CCA); R v Zakaria (1992) 62 A Crim R 259 (Vic CCA); R v Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 (CA).

[11.720] Knowledge of possession of an offensive weapon The prosecution must prove such knowledge: R v Cugullere [1961] 1 WLR 858; [1961] 2 All ER 343; 45 Cr App R 108.

[11.735]

KNOWLEDGE

949

[11.725] Knowledge of possession of minute amount of drug In Williams v The Queen (1978) 140 CLR 591; 22 ALR 195 a minute quantity of cannabis was found in the applicant’s coat pocket. He was convicted of possession. The High Court quashed the conviction. Aickin J said (at 610; 209): It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused.

[11.730] Knowledge of licensee or restaurateur A licensee or restaurateur must be proved to have knowledge of what occurs on the premises or is said to “suffer” to occur. In Csomor v Haberman [1960] VR 153 the defendant was found on appeal not to have suffered prostitutes to assemble at his Red Tulip restaurant. On the case stated Herring CJ found that the chairman was correct. His Honour said (at 156): The keeper of the house does not offend against the section, unless he knows that prostitutes are assembling in his refreshment house in their capacity of prostitutes, and allows them to do so.

In Douglas-Brown v Commissioner of Police (1995) 13 WAR 441 (FC) the appellant was the liquidator of the Castle Hotel. Contrary to the Liquor Licensing Act 1988 (WA) four young ladies, immodestly dressed, danced in a lewd manner. The appeal was allowed. Kennedy J, giving the leading judgment, said (at 446): [A]ctual knowledge, or at least constructive knowledge, must be found to have been present on his part before the appellant could properly be said to “suffer” something to be done. Constructive knowledge in this context means either shutting one’s eyes to the obvious, or failing to do something or doing something, not caring whether a contravention takes place or not: see James & Son Ltd v Smee [1955] 1 QB 78 at 91; Piro v Boorman [1958] SASR 226 at 230; Brown v Julius [1959] Qd R 385; Csomor v Haberman [1960] VR 153 at 156; Earl v Jakus [1961] VR 143 at 146; Grays Haulage Co Ltd v Arnold [1966] 1 WLR 534 at 536–537; [1966] 1 All ER 896 at 897–898; R v Sanewski [1987] 1 Qd R 374 at 378. See also the American cases cited in Words and Phrases (1964, permanent ed), Vol 40A, p 103.

[11.735] Knowing goods are stolen: receiving For a person to be convicted of receiving (or handling) goods knowing them to be stolen, the prosecution must prove actual knowledge or belief. Suspicion or wilful blindness is not sufficient. See also Property Offences (Receiving) at [16.6525]; and Wilful Blindness at [23.500].

L LATENT AMBIGUITY Definition ..................................................................................................................................... Application .................................................................................................................................. Other cases of latent ambiguity .................................................................................................. Cases of no latent ambiguity ......................................................................................................

[12.100] [12.105] [12.110] [12.115]

[12.100] Definition The expression comes from Dixon J in Johnson v Miller (1937) 59 CLR 467. The defendant had been charged with sly grogging by selling from his hotel after hours. The evidence consisted of the leaving of many persons from the premises. He said (at 486): But, if the complainant were to prove that many persons unknown issued from the hotel during the period given in the particulars on the day, at the place and in the circumstances mentioned in the complaint, it is evident that it would become quite uncertain which of them was the person unknown to whom the complaint referred. In other words, the facts or the alleged facts disclosed a latent ambiguity in the complaint. The latent ambiguity might have been removed by making an amendment or by giving particulars selecting one instance or person to the exclusion of the others.

In Walsh v Tattersall (1996) 188 CLR 77; 88 A Crim R 496; 139 ALR 27 Kirby J said (at 112; 52; 523): This court should adhere to its longstanding insistence that, save for statutory warrant and for the exceptional cases of continuing offences or facts so closely related that they amount to the one activity, separate offences should be the subject of separate charges.

Latent ambiguity is different from duplicity, as it refers to the evidence which is led on a charge. Duplicity occurs when the charge itself refers to more than one offence. It is difficult to tell in advance of a trial whether there will be latent ambiguity: Binkworth v Dendy (2007) 169 A Crim R 425 (SAFC). See also Drugs (Duplicity) at [4.5325].

[12.105] Application The phrase, or at least its sentiment, has been used to set aside convictions where evidence has been given of more than one criminal act in one count, or where confusion exists about which acts apply to which counts. In Kailis v The Queen (1999) 21 WAR 100; 107 A Crim R 195 (CCA) Malcolm CJ said (at 116; 208 [49]): [W]here it is uncertain as to which of two or more possible offences the accused has been convicted, there must necessarily have been a fundamental flaw in the proceedings which necessarily involves a miscarriage of justice.

His Honour repeated the proposition in Rippingale v The Queen (1999) 109 A Crim R 304 at 308 [22] (WA CCA).

952

ROSS ON CRIME

[12.110]

In R v Trotter (1982) 7 A Crim R 8 (Vic CCA) there was evidence of more than one act of indecent assault on one count alleging the same. Appeal against conviction allowed. In Tyson v The Queen (2005) 16 NTLR 161; sub nom JT v The Queen 192 FLR 387 (CCA) there were three acts of rape in an indictment containing only one count. Appeal allowed. S v The Queen (1989) 168 CLR 266; 45 A Crim R 221; 89 ALR 321 also concerned sexual acts. In the absence of any act or acts being identified as the subject of an offence charged in an indictment, the prosecution cannot lead evidence that is equally capable of referring to a number of occasions, any one of which might constitute an offence the legal nature of which is described in the charge, and invite the jury to convict on any one of them. Johnson v Miller (1937) 59 CLR 467 applied. In R v Suckling (1998) 104 A Crim R 59 (Vic CA) the accused was convicted of one count of property damage. Two separate incidents of damage were referred to in evidence. The appeal was allowed. See also R v Brown (1983) 79 Cr App R 115.

[12.110] Other cases of latent ambiguity In R v Hoessinger (1992) 107 FLR 99; 62 A Crim R 146 (NT CCA) the prosecution put three possible ways or acts of the accused which caused the victim to fall from a roof to his death. Lapthorne v The Queen (1990) WAR 207; 40 A Crim R 142 (CCA) concerned evidence of more than one act of sexual intercourse on a single count of carnal knowledge of a girl under the age of 13 years. Jones v The Queen [1980] WAR 203 (CCA) was similar in detail to Lapthorne v The Queen (1990) WAR 207; 40 A Crim R 142 (CCA). Carcosa Pty Ltd v Czerwaniw (Dept of Health) (1997) 93 A Crim R 287 (NSW CA): six discrete offences of tobacco advertising in one charge.

[12.115] Cases of no latent ambiguity In R v Eades (1991) 57 A Crim R 151 (Vic CCA), on one charge of trafficking in amphetamines, the prosecution led evidence of the finding of more than one bag of the drug in his house. Eades was approved in R v Hamzy (1994) 74 A Crim R 341 at 346 (NSW CCA). R v Robinson [1996] 1 VR 402 (CA) concerned six counts of indecent assault. The victim referred to numerous other acts of the same sort. No objection was taken. It was held, dismissing the application, that it was probable that the similar fact evidence was admitted for the reason that counsel for the accused felt that the credibility of the complainant could be more easily attacked if the evidence were to be admitted. In these circumstances, having regard to the failure of counsel for the accused to object to the admission of that evidence and the failure to seek any redirection from the judge about the use that could be made of that evidence, it could not be said that the admission of the now impugned evidence created a fundamental flaw in the trial or otherwise led to a miscarriage of justice. R v Giretti (1986) 24 A Crim R 112 was an appeal against conviction for trafficking in heroin. A number of incidents had been given in evidence. The appeal was dismissed. Because “traffick” can include the business of trafficking, there was no latent ambiguity in leading the evidence complained of.

[12.500]

LAW

953

See also Drugs (Duplicity) at [4.5325].

LAW The word ..................................................................................................................................... The present .................................................................................................................................. Other references .......................................................................................................................... Law is an ass ..............................................................................................................................

[12.300] [12.305] [12.310] [12.315]

[12.300] The word The word law comes from the old Norse word lög. Both words have the same pronunciation and the same meaning. The word would have been introduced into English during the so-called Viking Age (733–1066).

[12.305] The present Law now comes from two places. The first place is the parliament. The legislation of parliament is supreme. The second is what the wise judges say. They say what the legislation means. They also set down what is fair and just in a criminal case and in other cases. A lower court has to follow what a higher court says.

[12.310] Other references See also Interpretation at [9.3300]; Justice at [10.2400]; Parliament at [16.500]; Precedent at [16.3100]; and Rule of law at [18.4200].

[12.315] Law is an ass In Oliver Twist (1838) Charles Dickens (1812-1870) wrote (in Ch 51): “If the law supposes that,” said Mr Bumble, “the law is a ass, a idiot”.

LEADING QUESTION Definition ..................................................................................................................................... Practice ........................................................................................................................................ Uniform Evidence Acts .............................................................................................................. Effect of leading questions in examination-in-chief .................................................................. What is not a leading question ...................................................................................................

[12.500] [12.505] [12.510] [12.515] [12.520]

[12.500] Definition Ellenborough LCJ said in debate in the House of Lords, quoted in Wigmore on Evidence, Vol 3, p 188: I have always understood, after some little experience, that the meaning of a leading question was this, and this only: That the judge restrains an advocate who produces a witness on one particular side of a question, and who may be supposed to have a leaning to that side of the question, from putting such interrogatories as may operate as an instruction to that witness how he is to reply to favour the party for whom he is adduced.

Approved: R v Cunningham (1992) 61 A Crim R 412 at 423 (Vic CCA). In Uniform Evidence Acts there is the following entry in the Dictionary:

954

ROSS ON CRIME

[12.505]

“leading question” means a question asked of a witness that: (a) directly or indirectly suggests a particular answer to the question; or (b) assumes the existence of a fact the existence of which is in dispute in the proceeding and as to the existence of which the witness has not given evidence before the question is asked.

NZ: Evidence Act 2006 s 4 has this definition: Leading question means a question that directly or indirectly suggests a particular answer to the question. In Aronson and Hunter, Litigation: Evidence and Procedure (6th ed, 1998, Butterworths, Sydney) the authors say (at p 901): There is no glib formula that can be applied to determine what constitutes a leading question. There have been some suggestions that a leading question is one that elicits a “yes/no” response. Such a simplistic test does not have any accurate predictive value: see R v Saunders (1985) 15 A Crim R 115 at 118, 122. The overriding concern is the degree of suggestion which the questioning gives to the witness, and the significance of that direction, not the form of the response.

[12.505] Practice One’s own witness should not be asked leading questions on contentious matters. Leading questions may be asked in cross-examination. In R v Coventry (1997) 7 Tas R 199; 98 A Crim R 46 Slicer J in a ruling said (at 202; 48): A leading question is one which suggests or contains the answer. In many cases such questions are permitted (sub silento) since no party objects and they are designed to facilitate responses not in issue. A court has a discretion to permit leading questions in examination-in-chief: Gordon v Carroll (1974) 6 ALR 579. The right of a party to put leading questions to his or her witness was affirmed by the English Court of Appeal in R v Thompson (The Times, 20 November 1976), a case noted in the addendum to R v Thynne [1977] VR 98. Leading questions may be put in cross-examination almost as of right, although there remains a discretion to prevent them (Mooney v James [1949] VLR 22), or to limit the scope of such questioning: Wakeley v The Queen (1990) 93 ALR 79. But there remains a distinction between cross-examination and the use of a leading question.

His Honour’s last point is well made. Many of the best and most effective crossexaminations have a significant component of non-leading questions.

[12.510] Uniform Evidence Acts Leading question Uniform Evidence Acts s 42 deals with leading questions.

Examination-in-chief and re-examination Uniform Evidence Acts s 37(1)provides: A leading question must not be put to a witness in examination in chief or in re-examination unless: (a) the court gives leave; or (b) the question relates to a matter introductory to the witness’s evidence; or (c) no objection is made to the question and (leaving aside the party conducting the examination in chief or re-examination) each other party to the proceeding is represented by a lawyer; or (d) the question relates to a matter that is not in dispute; or

[12.700]

LEGAL PROFESSIONAL PRIVILEGE

955

(e) if the witness has specialised knowledge based on the witness’s training, study or experience—the question is asked for the purpose of obtaining the witness’s opinion about a hypothetical statement of facts, being facts in respect of which evidence has been, or is intended to be, given.

NZ: Evidence Act 2006 s 89 has similar rules.

[12.515] Effect of leading questions in examination-in-chief Leading questions to one’s own witness or to a witness sympathetic to the case may have the result of the evidence not being accepted. In the undefended divorce case of Moor v Moor [1954] 1 WLR 927; [1954] 2 All ER 458 (CA) the petition was dismissed. The reason was that all the evidence was given in response to leading questions. Moor v Moor [1954] 1 WLR 927; [1954] 2 All ER 458 was applied in R v Shaw [1996] 1 Qd R 641; (1995) 78 A Crim R 150 (CA) per Fitzgerald P (at 644; 154).

[12.520] What is not a leading question In examination-in-chief a prosecutor can ask a complainant in a rape case “Did you consent?” Such a question is not leading: Saunders v The Queen (1985) 15 A Crim R 115 (WA CCA); R v Shaw [1996] 1 Qd R 641; (1995) 78 A Crim R 150 (CA). See also Cross-examination at [3.10400]; Examination-in-chief at [5.2100]; and Re-examination at [18.2000].

LEGAL PROFESSIONAL PRIVILEGE Nature .......................................................................................................................................... Rationale ...................................................................................................................................... The test ........................................................................................................................................ Claimant bears the evidential onus ............................................................................................ Legal Aid Commission ............................................................................................................... Form of the communication is irrelevant .................................................................................. Without prejudice letter .............................................................................................................. Communications in furtherance of a fraud or crime not privileged ......................................... Presence of a third party ............................................................................................................ Waiver ......................................................................................................................................... Subpoena of privileged documents in a criminal trial defence ................................................ Death of the client ...................................................................................................................... Statutory abrogation of privilege ................................................................................................ Solicitor restrained from acting for another .............................................................................. Lawyer acting for more than one person ................................................................................... Uniform Evidence Acts ..............................................................................................................

[12.700] [12.705] [12.710] [12.715] [12.720] [12.725] [12.730] [12.735] [12.740] [12.745] [12.750] [12.755] [12.760] [12.765] [12.770] [12.775]

[12.700] Nature The privilege extends to documents and other materials brought into existence for the sole purpose of obtaining legal advice or for contemplated legal proceedings. Thus it covers communication between: • lawyer and client; • lawyer and client’s agent; • lawyer and third party for contemplated litigation;

956

ROSS ON CRIME

[12.705]

• client (or agent) and third party for contemplated litigation.

[12.705] Rationale In AM & S Europe Ltd v Commission of the European Communities [1983] QB 878; 1 All ER 705 (CJEC) Advocate General Sir Gordon Slynn said (at 913; 732–733): Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks.

Approved: Carter v Northmore, Hale, Davy & Leake (1995) 183 CLR 121; 81 A Crim R 19; 129 ALR 593 at 127–128, 145 (CLR). In Attorney-General (NT) v Kearney (1985) 158 CLR 500; 61 ALR 55 Dawson J said (at 532; 77): The policy which lies behind the doctrine views unrestricted communication between lawyer and client upon professional matters as being necessary for the proper functioning of our legal system. If inroads could be made upon the privilege in individual cases by involving a “higher public interest”, its application would become uncertain and the policy behind it would be effectively undermined.

See also Esso Australia Resources v Dawson (1999) 87 FCR 588; 162 ALR 79 (at 596; 87 [26]) (FCA).

[12.710] The test In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at 552; 564 [9]): It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings.

[12.715] Claimant bears the evidential onus The party claiming legal professional privilege has the evidential onus, that is the burden of establishing the facts that give rise to the privilege. In Grant v Downs (1976) 135 CLR 674; 11 ALR 577 Stephen, Mason and Murphy JJ said (at 689; 589): It is for the party claiming privilege to show that the documents for which the claim is made are privileged. He may succeed in achieving this objective by pointing to the nature of the documents or by evidence describing the circumstances in which they were brought into existence. But it should not be thought that the privilege is necessarily or conclusively established by resort to any verbal formula or ritual. The court has power to examine the documents for itself, a power which has perhaps been exercised too sparingly in the past, springing possibly from a misplaced reluctance to go behind the formal claim of privilege. It should not be forgotten that in many instances the character of the documents the subject of the claim will illuminate the purpose for which they were brought into existence.

[12.735]

LEGAL PROFESSIONAL PRIVILEGE

957

Followed: National Crime Authority v S (1991) 29 FCR 203; 100 ALR 151 (FCA).

[12.720] Legal Aid Commission Legal professional privilege exists between an accused and the Legal Aid Commission. Secrecy provisions also prevent the Commission from divulging correspondence. The accused of course can waive the privilege: R v Batiste (1994) 35 NSWLR 437; 77 A Crim R 266 (CCA).

[12.725] Form of the communication is irrelevant In Commissioner AFP v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 McHugh J said (at 553; 584; 491): The privilege attaches whenever the communication or material is made or recorded for the purpose of confidential use in litigation or the obtaining of confidential legal advice. The protected communication or material may be a telephone conversation between a solicitor and client, a research memo of the legal adviser on an issue pertinent to the client’s affairs or, as in the present case, the collection and collation of material and documents for the purpose of litigation or obtaining legal advice. As long as the communication was made or the material recorded for the sole purpose of legal advice or pending litigation and was intended to be confidential, the actual form of the communication or recording is irrelevant.

[12.730] “Without prejudice” letter In Hoefler v Tomlinson (1995) 60 FCR 452; 133 ALR 625 (FCA), the respondents to a civil appeal moved that it be dismissed for want of prosecution. The affidavit in support exhibitedwithout prejudice a letter from the appellant’s solicitors offering to settle. Spender J, delivering the leading judgment, said (at 455; 627–628): The purpose of exhibiting the letter in this case was to establish that Mr Hoefler was aware of the hearing of this application to strike out his appeal. That could have been done by referring to the fact and the date of the letter and the first sentence of it, and perhaps to the suggestion that the appeal should be adjourned. It was not necessary to exhibit the letter, in particular the contents of the offer, for that purpose. To do so is contrary to the provisions of the Evidence Act 2001. It offends the very important principle of public policy which underpins those provisions. It should not have been done.

[12.735] Communications in furtherance of a fraud or crime not privileged In Commissioner AFP v Propend Finance Pty Ltd (1997) 188 CLR 501; 141 ALR 545; 91 A Crim R 451 McHugh J said (at 556; 587; 494): Communications in furtherance of a fraud or crime are not protected by legal professional privilege because the privilege never attaches to them in the first place. While such communications are often described as “exceptions” to legal professional privilege, they are not exceptions at all. Their illegal object prevents them becoming the subject of the privilege (Carter (1995) 183 CLR 121 at 163). A mere allegation of illegal purpose or fraud is not, of itself, sufficient to displace a claim of legal professional privilege. A person who alleges that legal professional privilege does not apply to a communication tenders an issue for decision and has the onus of proving it. Subject to any statutory provisions to the contrary, any evidence tendered in a court of justice to prove an issue must comply with the ordinary rules of evidence. Legal professional privilege is a legal right. Its prima facie application to a communication can only be displaced by admissible evidence. That evidence does not have to prove that the communication was made in furtherance of a crime or the commission of a fraud, but it must establish a prima facie case that the communication was so made.

958

ROSS ON CRIME

[12.740]

In Clements, Dunne & Bell v AFP (2001) 48 ATR 650; 188 ALR 515 (FCA, North J) his Honour held that documents did not attract privilege because they were part of the implementation of fraudulent conduct. His Honour made a long examination of the degree of proof of illegal purpose. There was the same result for the same reason in R v Dunwoody (2004) 212 ALR 103; 149 A Crim R 259 (Qld CA). See also Beazley v Steinhardt (1999) 106 A Crim R 21 (FCA, Dowsett J); Clements, Dunne & Bell v AFP (2001) 48 ATR 650; 188 ALR 515 at 521–526 [29] – [44] (ALR) (FCA, North J).

[12.740] Presence of a third party The presence of a third party in the communication between lawyer and client may indicate a lack of confidentiality. In R v Braham & Mason [1976] VR 547 Lush J ruled (at 549): [E]ach case must be examined to see whether the communication was one which should be classed as confidential. The fact of the presence of a third party should be examined to see whether that presence indicates that the communication was not intended to be confidential, or whether the presence of the third party was caused by some necessity or some circumstances which did not affect the primary nature of the communication as confidential.

In that case Lush J allowed a co-accused to lead evidence that an accused, while in the presence of police, had spoken to his solicitor on the telephone admitting the crime.

[12.745] Waiver The common law applies to waiver of privilege and confidentiality. The Evidence Act 1995 (Cth) ss 118 and 122 apply to adducing evidence, not to waiver: Mann v Carnell (1999) 201 CLR 1; 168 ALR 86. In Mann v Carnell (1999) 201 CLR 1; 168 ALR 86 Gleeson CJ, Gaudron, Gummow and Callinan JJ said (at 13; 94 [28]): At common law, a person who would otherwise be entitled to the benefit of legal professional privilege may waive the privilege. It has been observed that “waiver” is a vague term, used in many senses, and that it often requires further definition according to the context. Legal professional privilege exists to protect the confidentiality between lawyer and client. It is the client who is entitled to the benefit of such confidentiality, and who may relinquish that entitlement. It is inconsistency between the conduct of the client and maintenance of confidentiality which effects a waiver of the privilege. Examples include disclosure by a client of the client’s version of a communication with a lawyer, which entitles the lawyer to give his or her account of the communication, or the institution of proceedings for professional negligence against a lawyer, in which the lawyer’s evidence as to advice given to the client will be received. Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of confidentiality which the privilege is intended to protect … What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large.

R v Meninga (1992) 66 A Crim R 199 (Qld CCA) was an appeal against a murder conviction. On diminished responsibility the defence called a doctor who referred to data obtained from another doctor who had been retained by the defence legal advisors. He was cross examined on that data. The appeal was dismissed. The privilege was waived. In Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31 Gibbs CJ said (at 481; 34):

[12.755]

LEGAL PROFESSIONAL PRIVILEGE

959

[W]here there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production.

Deane J said (at 493; 43): Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.

There is no waiver if a document is sent to the wrong person by mistake. In DPP (Cth) v Kane (1997) 140 FLR 468 the prosecution mistakenly sent a confidential paper on the case to the solicitors for each person charged. Hunt CJ at CL held that confidentiality does not depend on the continuation of the privilege. There was no waiver. Privilege was not lost. Orders were made to restrain the use of the document and ordering its delivery up to the prosecution. According to the note in (1999) 73 ALJ 28 “the document and its copies were shredded in the judge’s presence”. In Goldberg v Ng (1995) 185 CLR 83; 132 ALR 57 Deane, Dawson and Gaudron JJ said (at 95–96; 64): Imputed waiver The circumstances in which a waiver of legal professional privilege will be imputed by operation of law cannot be precisely defined in advance. The most that can be done is to identify a number of general propositions. Necessarily, the basis of such an imputed waiver will be some act or omission of the person entitled to the benefit of the privilege. Ordinarily, that act or omission will involve or relate to a limited actual or purported disclosure of the contents of the privileged material. When some such act or omission of the person entitled to the benefit of the privilege gives rise to a question of imputed waiver, the governing consideration is whether “fairness requires that his privilege shall cease whether he intended that result or not”. That does not mean, however, that an imputed waiver must completely destroy the privilege. Like an express waiver, it can be limited so that it applies only in relation to particular persons, materials or purposes.

See also John Tanner Holdings Pty Ltd v Mortgage Management Ltd (2001) 182 ALR 201 (FCA, Conti J); Re Doran Constructions Pty Ltd (in liq) (2002) 194 ALR 101 (NSW, Campbell J).

[12.750] Subpoena of privileged documents in a criminal trial defence Documents subject to legal professional privilege which is not waived are not to be produced over objection. That is so even though the documents may establish the innocence of a person charged with a crime or materially assist his defence: Carter v Northmore, Hale, Davy & Leake (1995) 183 CLR 121; 81 A Crim R 19; 129 ALR 593.

[12.755] Death of the client Where privilege attaches to a document that privilege survives the death of the client: Bullivant v Attorney-General (Vic) [1901] AC 196; [1900–1903] All ER Rep 812 at 206, 816–817 (HL) per Lord Lindley; Prus-Grzybowski v Everingham (1986) 44 NTR 7; 87 FLR 186 at 12, 191 (Kearney J); Dunesky v Elder (1992) 35 FCR 429; 60 A Crim R 459; 107 ALR 573 (FCA, Foster J). The principle has been affirmed by the United States Supreme Court: Swidler & Berlin & James Hamilton v United States (1998) 141 L Ed 2d 379.

960

ROSS ON CRIME

[12.760]

In R v Molloy (deceased) [1997] 2 Cr App R 283 (CA) the court held that the personal representatives or successors in title have the right to waive legal professional privilege of a deceased in the running of the deceased’s appeal. This principle may not apply outside England. The reason is that there an appeal can be mounted on behalf of a deceased. In Australia, a criminal appeal abates on the death of the appellant. See also HL Ho, “Legal Professional Privilege after Death of Client”: (1999) 115 LQR 27–30.

[12.760] Statutory abrogation of privilege Only the express words or necessary implication of a statute can abrogate legal professional privilege. In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543; 192 ALR 561 Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at 553; 565 [11]): Legal professional privilege is not merely a rule of substantive law. It is an important common law right or, perhaps, more accurately, an important common law immunity. It is now well settled that statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities in the absence of clear words or a necessary implication to that effect.

In Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 the privilege was not abrogated by a search warrant issued under s 10 of the Crimes Act 1914 (Cth). In Worrell v Woods (1999) 90 FCR 264; 163 ALR 195 (FCA) Finn J held that the privilege was not overridden by the Bankruptcy Act 1966. A solicitor had acted for a man who later became bankrupt. The trustee in bankruptcy was held not entitled to the solicitor’s file.

[12.765] Solicitor restrained from acting for another Bolkiah test A solicitor, or more likely a large firm, can be restrained from acting for another who has an adverse interest. In Bolkiah v KPMG [1999] 2 AC 222; [1999] 2 WLR 215; [1999] 1 All ER 517 (HL) Lord Millett said (at 234–235; 224–225, 526): A man cannot without the consent of both clients act for one client while his partner is acting for another in the opposite interest. His disqualification has nothing to do with the confidentiality of client information. It is based on the inescapable conflict of interest which is inherent in the situation.

Further (at 237; 226; 528): Whether founded on contract or equity, the duty to preserve confidentiality is unqualified. It is a duty to keep the information confidential, not merely to take all reasonable steps to do so. Moreover, it is not merely a duty not to communicate information to a third party. It is a duty not to misuse it, that is to say, without the consent of the former client to make any use of it or to cause any use to be made of it by others otherwise than for his benefit. The former client cannot be protected completely from accidental or inadvertent disclosure. But he is entitled to prevent his former solicitor from exposing him to any avoidable risk; and this includes the increased risk of the use of the information to his prejudice arising from the acceptance of instructions to act for another client with an adverse interest in a matter to which the information is or may be relevant. … the court should intervene unless it is satisfied that there is no risk of disclosure. It goes without saying that the risk must be a real one, and not merely fanciful or theoretical. But it need not be substantial.

Followed: Styles v O’Brien (2007) 16 Tas R 268 (Crawford J); Newman v Phillips Fox (1999) 21 WAR 309 (Steytler J).

[12.775]

LEGAL PROFESSIONAL PRIVILEGE

961

Spincode test In Spincode Pty Ltd v Look Software Pty Ltd (2001) 4 VR 501 (CA) a firm of solicitors acted for a company. When disputes arose among shareholders the firm continued to act for the company but covertly advised two shareholders. The primary judge restrained the firm from acting, and the appeal was dismissed. Brooking JA with whom the others agreed said (at 521–525 [52] – [58]) that when a solicitor acts against a former client the danger of misuse of confidential information is not the only ground for intervention. One basis is a breach of a duty of loyalty, which will often survive the termination of the retainer. Another is the need for officers of the court to be brought to heel if their conduct calls for it.

Application in a criminal matter In Rothschild v Mullins (2002) 135 A Crim R 407 (Tas FC) a legal aid lawyer acted for the appellant. The lawyer then joined the Hobart office of the DPP for six months, but did not discuss the continuation of the case with anyone there. At committal the magistrate forbad any appearance by anyone at the DPP during the lawyer’s time at the DPP. Held: the magistrate had such a power. See also Marks and Spencer Plc v Freshfields [2004] 1 WLR 2331; 3 All ER 773 (Ch D Lawrence Collins J); McVeigh v Linen House Pty Ltd [1999] 3 VR 394 (CA); L Aitken, “Chinese Walls, Fiduciary Duties and Intra-Firm Conflicts” (2000) 19 Aust Bar Rev 116–134; Hollander and Salzedo, “Conflicts of Interest and Chinese Walls” (2002) 26 MULR 241; Cth: Corporations Act 2001 ss 1002M and 1002N.

[12.770] Lawyer acting for more than one person In Yunghanns v Elfic Pty Ltd [2000] 1 VR 92 Warren J held (at 99 [22]): If two or more persons seek and obtain the advice of a lawyer then the privilege that attaches to the communications passing between them or one or other of them and the lawyer is joint privilege: Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 at 608.

See also SB McNicol, The Law of Privilege (The Law Book Co Ltd, Sydney, 1992); SB McNicol, “Client Legal Privilege and Legal Professional Privilege: Considered, Compared and Contrasted” (1999) 18 Aust Bar Rev 189–213; S Laycock, “Client Professional Privilege” (1997) 35 Law Soc J 38; J Auburn, Legal Professional Privilege: Law and Theory (Hart Publishing, Oxford, 2000); C Hollander, Conflict of Interest and Chinese Walls (Sweet & Maxwell, London, 2000).

[12.775] Uniform Evidence Acts In the Uniform Evidence Act jurisdictions, legal professional privilege is called client privileged and is governed by ss 117 – 126. It operates similary to that at common law. The privilege has two limbs: the “advice limb” (s 118) and the “litigation limb”: s 119. The privilege attaches to “confidential communications” by a lawyer for the “dominant purpose” of providing legal advice to a client (s 118) or professional legal services to clients relating to legal proceedings in which he or she is or might be a party to: s 119.

962

ROSS ON CRIME

[12.800]

The advice limb applies to confidential communications (i) between the client and lawyer; (ii) or between two or more lawyers acting for the client; or (iii) the contents of a confidential document prepared by the lawyer, client or third person. The litigation limb applies to confidential communications (i) between the client or the client’s lawyer and another person; or (iii) the contents of a confidential document. In Aouad v The Queen [2013] NSWSC 760 it was held that the Director of Public Prosecutions is a client and the Deputy Director is an Australian Lawyer. Accordingly, privilege applied to a memorandum from the latter to the former setting out reasons in support of the entry of a nolle prosequi. This was not waived when one page of the memoramdum was accidentally handed up to the court with the document entering the nolle prosequi: the dominant purpose test is the same as at common law.For a case where the dominant purpose test was not satisfied, see Buzzle Operations Pty Ltd v Apple Computer Australia Pty Ltd.

Also, as at common law, the privilege belongs to the lawyer, not client and hence can be waived by the client: s 122. A client is a person who with the consent of the lawyer has a relationship of trust entailing an obligation to promote the lawyer’s interest. In order for the privilege to apply, there is no need for the lawyer to have a practising certificate, nor to charge for his or her advice. The privilege can also apply to (private or government) in-house lawyers where their capacity to provide independent legal advice is preserved and the nature of the advice in question, and in particular whether the advice or document was confidential: Commonwealth v Vance (2005) 158 ACTR 47; 224 FLR 243; [2005] ACTCA 35. A significant departure from the common law is that the privilege under the Act applies to self-represented parties: s 120. The privilege can be lost in similar circumtances to that at common law: ss 122 – 125.

LEGALITY The principle of legality ............................................................................................................. [12.800]

[12.800] The principle of legality In X7 v Australian Crime Commission [2013] HCA 29, at [158], Kiefel J succinctly and clearly set out the principle in the following terms: The requirement of the principle of legality is that a statutory intention to abrogate or restrict a fundamental freedom or principle or to depart from the general system of law must be expressed with irresistible clearness. That is not a low standard. It will usually require that it be manifest from the statute in question that the legislature has directed its attention to the question whether to so abrogate or restrict and has determined to do so.1

See also, Monis v The Queen [2013] HCA 4, at [20]; Lee v New South Wales Crime Commission [2013] HCA 39, at [29]; Coco v The Queen [1994] HCA 15; 179 CLR 427; Australian Crime Commission v Stoddart [2011] HCA 47, at [51]; Lacey v AttorneyGeneral of Queensland [2011] HCA 10, [20]; and DPP (Cth) v Galloway (a pseudonym) [2014] VSCA 272; R v OC (2015) 298 FLR 203; 108 ACSR 80; [2015] NSWCCA 212.

1 X7 v Australian Crime Commission [2013] HCA 29, at [158]. See also, Monis v The Queen [2013] HCA 4, at [20]; Lee v New South Wales Crime Commission [2013] HCA 39, at [29]; Australian Crime Commission v Stoddart [2011] HCA 47, at [51]; and Lacey v Attorney-General of Queensland [2011] HCA 10, at [20].

[12.905]

LIBERATO DIRECTION

963

LIBERATO DIRECTION The term ...................................................................................................................................... [12.900] Application .................................................................................................................................. [12.905] Preferable formulation ................................................................................................................ [12.910]

[12.900] The term The term “Liberato direction” comes from Liberato v The Queen (1985) 159 CLR 507; 61 ALR 623 in which Brennan J said (at 515; 629–630): When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.

Deane J agreed with Brennan J and both would have allowed the appeal. But the majority refused special leave to appeal. Notwithstanding errors at trial, the SA Court of Criminal Appeal had properly applied the proviso.

[12.905] Application In Azarian v Western Australia (2007) 178 A Crim R 19 (WA CA) Miller JA, in dissent on the result of the appeal, said (at 48 [110] – [111]): A so-called Liberato direction is not required as a matter of law in every case of “oath against oath”: Salmon v The Queen [2001] WASCA 270; Leyshon v Western Australia [2006] WASCA 132; Koushappis v Western Australia (2007) 168 A Crim R 51. In Leyshon v Western Australia at [13]–[14], Steytler P had the following comments to make about the need for a Liberato direction: In my opinion, in a case in which there is a substantial or significant conflict between the evidence of defence and prosecution witnesses, it must be made plain to the jury that, if they do not believe the defence evidence and prefer that given by the prosecution witnesses, they should not convict unless persuaded of guilt beyond reasonable doubt by the evidence they do accept. It is important, also, that in such a case the jury should understand that evidence that is neither positively accepted nor positively disbelieved might give rise to a reasonable doubt. There is no particular form of words that must be used and these propositions might become obvious to the jury from the way in which the trial judge directs them as regards the onus and standard of proof (as happened in this case). However, it is the responsibility of every trial judge, in a case of the kind to which I have referred, to ensure that these propositions are understood by the jury.

In R v Chen (2002) 130 A Crim R 300 (NSW CCA) the court in a joint judgment approved Salmon v The Queen [2001] WASCA 270. The Court quoted from it (at 328–329 [78] – [79]): McKechnie J, who delivered the principal judgment of the court, and with whom the other members of the court (Malcolm CJ and Kennedy J), agreed on the Liberato point, said, concerning what has come to be described as “the Liberato direction”: [99] It is a counsel of prudence to give a Liberato direction in most, if not all, cases. It is a sensible direction which further emphasises the standard and the burden of proof. [100] The absence of a Liberato direction in an appropriate case will make the drawing of a conclusion that there has been a miscarriage of justice easier.

964

ROSS ON CRIME

[12.910]

[101] Nevertheless, if in Liberato at para 49, Miller J was intending to lay down a principle that a Liberato direction is required as a matter of law, then with great respect, I am unable to agree. I prefer the reasoning of Murray J. [102] The absence of a Liberato direction may give rise to a miscarriage of justice. In each of Liberato and Liberato, the absence of a Liberato direction, coupled with positive directions given by the trial judge in each case, meant that the judges summing-up, overall, constituted a mis-direction. [103] I would not elevate a Liberato direction to the status of a principle of law, the absence of which will inevitably lead to a conclusion that the learned trial judge has erred in law. We respectfully agree with his Honours analysis.

In R v KDY (2008) 185 A Crim R 270 (Vic CA) Redlich JA, with whom the other judges agreed, held (at 278–280 [25] – [30]) that the trial judge had given the jury the proper direction and that it accorded with Liberato. Nevertheless, in Corker v Western Australia (2004) 146 A Crim R 33 (WA CCA) the Court held (at 35–36 [11] – [12]) that the Liberato direction was called for and properly given.

[12.910] Preferable formulation In Johnson v Western Australia (2008) 186 A Crim R 531 (WA CA) Wheeler JA, with whom Martin CJ agreed, referred (at 535 [16]) to a “preferable formulation of the relevant direction” as coming from Kirby J in R v Anderson (2001) 127 A Crim R 116 (NSW CCA). Kirby J said (at 121 [26]): First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?

Approved: Koushappis v Western Australia (2007) 168 A Crim R 51 at 72 [104] (WA CA); Azarian v Western Australia (2007) 178 A Crim R 19 (WA CA) per Miller JA at 49 [114].

LIBERTY Principle ..................................................................................................................................... Court .......................................................................................................................................... Counsel ...................................................................................................................................... Legislation ................................................................................................................................. Police ......................................................................................................................................... Right to liberty by statute ......................................................................................................... Deprivation of liberty ...............................................................................................................

[12.1100] [12.1105] [12.1110] [12.1115] [12.1120] [12.1125] [12.1130]

[12.1100] Principle “Ö liberté! Ö liberté! que de crimes on commet en ton nom!”: “Oh liberty! Oh liberty! what crimes are committed in thy name!”: Mme Roland (Marie-Jeanne Philipon) 1754–1793, French revolutionary, reported in A de Lamartine Histoire des Girondins (1847) Bk 51, ch 8.

[12.1115]

LIBERTY

965

Ambrose Bierce wrote: Liberty, One of Imagination’s most precious possessions.

The Devil’s Dictionary, The Collected Works of Ambrose Bierce (1911 Neale Publishing Co. New York) (first published 1906 as The Cynic’s Word Book). Mason and Brennan JJ said in Williams v The Queen (1986) 161 CLR 278; 28 A Crim R 1; 66 ALR 385 (at 292; 395; 11): The right to personal liberty is, as Fullagar J described it, “the most elementary and important of all common law rights”: Trobridge v Hardy (1955) 94 CLR 147 at p152. Personal liberty was held by Blackstone to be an absolute right vested in the individual by the immutable laws of nature and had never been abridged by the laws of England “without sufficient cause”: Commentaries on the Laws of England (Oxford, 1765), Bk 1, pp120–121, 130–131. He warned: Of great importance to the public is the preservation of this personal liberty: for if once it were left in the power of any, the highest, magistrate to imprison arbitrarily whomever he or his officers thought proper…there would soon be an end of all other rights and immunities.

In Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 the court said (at 555; 8; 118): The courts of this country have been at pains to stress that the right to personal liberty under the law is, in the words of Fullagar J, “the most elementary and important of all common law rights”. Trobridge v Hardy (1955) 94 CLR 147, at 152.

[12.1105] Court In Eshugbayi Eleko v Offıcer Administering The Government of Nigeria (Offıcer Administering) [1931] AC 662; [1931] All ER Rep 44 (PC) Lord Atkin said (at 670; 49): In accordance with British jurisprudence no member of the executive can interfere with the liberty or property of a British subject except on the condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.

Approved: R v Secretary of State for the Home Department, Ex parte Khawaja [1984] AC 74; [1983] 1 All ER 765 (HL) per Lord Scarman (at 110; 781).

[12.1110] Counsel In Walsh v Johnson (1925) 37 CLR 36, Isaacs J said (at 72): I am reminded of Lord Selborne’s observation in Green v Lord Penzance (1881) 6 App Cas 657 at p 663, that the zeal and ingenuity of counsel are never misplaced when exerted for the defence of personal liberty.

[12.1115] Legislation In Olmstead v United States 277 US 438 (1928) Brandeis J said (at 479): Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.

Approved: Hawthorne v Morcam Pty Ltd (1992) 29 NSWLR 120; 65 A Crim R 227 (CCA) at 136; 242–243 per Sully J. In Re Bolton; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225 Brennan J said (at 523):

966

ROSS ON CRIME

[12.1120]

The law of this country is very jealous of any infringement of personal liberty and a statute or statutory instrument which purports to impair a right to personal liberty is interpreted, if possible, so as to respect that right.

In Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 Stephen and Aickin JJ (with whom Barwick CJ agreed) said (at 77–78; 661): The liberty of the subject is in increasing need of protection as governments, in response to the demand for more active regulatory intervention in the affairs of their citizens, enact a continuing flood of measures affecting day-to-day conduct, much of it hedged about with safeguards for the individual. These safeguards the executive, and, of course, the police forces, should not be free to disregard. Were there to occur wholesale and deliberate disregard of these safeguards its toleration by the courts would result in the effective abrogation of the legislature’s safeguards of individual liberties, subordinating it to the executive arm. This would not be excusable however desirable might be the immediate end in view, that of convicting the guilty.

[12.1120] Police Deane J said in Donaldson v Broomby (1982) 60 FLR 124; 40 ALR 525; 5 A Crim R 160 (FCA) (at 126; 526; 161): It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.

His Honour repeated many of these remarks in Cleland v The Queen (1982) 151 CLR 1; 57 ALJR 15; 43 ALR 619 at 26 (CLR).

[12.1125] Right to liberty by statute Some legislation promises a right to liberty by freedom from arbitrary arrest: Vic: Charter of Human Rights and Responsibilities Act 2006 s 21; ACT: Human Rights Act 2004 s 18. Other legislation promises political liberty: Cth: Crimes Act 1914 s 28; Qld: Criminal Code s 78; WA: Criminal Code s 75; NT: Criminal Code s 71; Vic: Charter of Human Rights and Responsibilities Act 2006 s 8(2); ACT: Human Rights Act 2004 s 8(2).

[12.1130] Deprivation of liberty It is a criminal offence for one citizen to deprive another of liberty: Qld: Criminal Code s 355; WA: Criminal Code s 333; Tas: Criminal Code s 182 (assault); NT: Criminal Code s 196; Vic: Crimes Act 1958 s 31(2)(b) (assault); ACT: Crimes Act 1900 s 34 (forcible confinement).

[12.1310]

LIE DETECTOR

967

New South Wales, Victoria and South Australia have the common law offence of false imprisonment. There is a war crime of unlawful confinement under Criminal Code Act 1995 (Cth) s 268.33.

LIE DETECTOR Nature and function of lie detector .......................................................................................... Objection to lie detector evidence ............................................................................................ Inadmissibility ........................................................................................................................... Legislation ................................................................................................................................. Writings .....................................................................................................................................

[12.1300] [12.1305] [12.1310] [12.1315] [12.1320]

[12.1300] Nature and function of lie detector In R v David (1986) 23 A Crim R 159 (NSW CCA) Lee J referred to the second reading speech on the Lie Detectors Act 1983. His Honour quoted (at 161): There are two principal ways in which lie detectors function: by measuring the physiological reactions of the body, or by measuring the level of stress or vibration in the voice. A polygraph is attached to a subject by wires or sensors. Any changes in the subject’s respiration, pulse, blood pressure or muscular activity are recorded as a physiological reaction while a person is being questioned. From the machine’s records of these reactions an examiner purports to evaluate the truth or otherwise of the subject’s replies. The psychological stress evaluator is a device that measures the element of stress in a person’s voice. This may be done with respect to a tape recording, so it can very regularly be used without a person’s knowledge.

[12.1305] Objection to lie detector evidence In Farrell v The Queen (1998) 194 CLR 286; 155 ALR 652 Kirby J said (at 299; 660 [27]): [T]he assessment of credibility is a matter for the tribunal of fact … In the present state of science it may not be usurped by technology (such as polygraphs). Nor may it be assumed by witnesses, including expert witnesses, offering their opinion on the accuracy, consistency and believability of the testimony in question, however derived. On the other hand, the study of human behaviour, including psychology, is an accepted scientific discipline.

[12.1310] Inadmissibility In R v Murray (1981) 7 A Crim R 48 (District Court of NSW) the accused sought to call an operator of a polygraph to show that the accused’s denials of the charge were correct. Sinclair DCJ said that such evidence was inadmissible (at 49): In my opinion it is inadmissible for the following reasons: 1. The sole purpose of the evidence is to bolster the credit of the accused as a witness. However, the veracity of the accused and the weight to be given to his evidence, and other witnesses called in the trial, is a matter for the jury to assess and on general principle such evidence, as counsel seeks to adduce, is excluded. 2. The witness seeks to express an opinion as to ultimate facts in issue, which is peculiarly the province of the jury to determine on facts presented to them by witnesses who perceived them by the exercise of their physical senses. 3. It purports to be expert evidence but the witness is not qualified as an expert, he is merely an operator and assessor of a polygraph. Furthermore the scientific premise upon which his assessment is based has not been proved in this Court or in any other court in Australia. 4. Devoid of any proved or accepted scientific basis, the evidence of Mr. Glare is simply hearsay, which is inadmissible and of no probative value.

In R v Trochym [2007] 1 SCR 239; (2007) 276 DLR (4th) 257; 216 CCC (3d) 225 (SCC) Deschamps J giving the judgment of the majority said (at [62]):

968

ROSS ON CRIME

[12.1315]

Some novel scientific techniques, such as polygraph examinations, that are inadmissible for evidentiary purposes may nevertheless continue to be useful for the investigation of offences. For example, while concerns about oath helping, character evidence and delay may prevent the use of polygraph results in court, these concerns do not preclude police officers from administering polygraph tests as an investigative tool: R v Béland, [1987] 1 SCR 398, 36 CCC (3d) 481, 43 DLR (4th) 641.

Other cases R v Béland [1987] 1 SCR 398; (1987) 43 DLR (4th) 641; 36 CCC (3d) 481 at 409, 649, 489. Mallard v The Queen (2003) 28 WAR 1 (CCA).

[12.1315] Legislation NSW: Lie Detectors Act 1983.

[12.1320] Writings J Edelman“Admissibility of polygraph (lie detector) examinations” (2005) 29 Crim LJ 21–36; Elliott I, “Lie Detector Evidence: Lessons from the American Experience” in Campbell and Waller (eds), Well and Truly Tried (Law Book Co. Sydney 1982); Freckelton and Selby, The Law of Expert Evidence (LBC Information Services, Sydney, 1999) pp 192–196. See also Expert evidence at [5.2700].

LIES Mere denial of guilt is not a lie ............................................................................................... May show consciousness of guilt, or be corroboration ........................................................... Lie to prove guilt must be precisely identified ........................................................................ Prosecutor’s role on lies ........................................................................................................... Does the evidence call for a direction ..................................................................................... Direction to a jury .................................................................................................................... Expert evidence ......................................................................................................................... Twelve points about lies ........................................................................................................... Lucas direction .......................................................................................................................... Last word .................................................................................................................................. Possible lies direction ...............................................................................................................

[12.1500] [12.1505] [12.1510] [12.1515] [12.1520] [12.1525] [12.1530] [12.1535] [12.1540] [12.1545] [12.1550]

[12.1500] Mere denial of guilt is not a lie In R v Gionfriddo & Faure (1989) 50 A Crim R 327 (Vic CCA) Crockett and O’Bryan JJ said (at 332–333): [A] lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.

In R v Mercer (1993) 67 A Crim R 91 (NSW CCA) Hunt CJ at CL said (at 98): Where, however, the lies of the accused upon which the Crown relies are his denials of the complainant’s evidence, those lies cannot be used in order to assist the tribunal of fact to determine whether the complainant’s evidence is to be accepted.

[12.1510]

LIES

969

[12.1505] May show consciousness of guilt, or be corroboration In Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 Deane, Dawson and Gaudron JJ said (at 210–211; 613; 362–363): A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (ie it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of “a realization of guilt and a fear of the truth”. Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect. If the telling of a lie by an accused is relied upon, not merely to strengthen the prosecution case, but as corroboration of some other evidence, the untruthfulness of the relevant statement must be established otherwise than through the evidence of the witness whose evidence is to be corroborated. If a witness required to be corroborated is believed in preference to the accused and this alone establishes the lie on the part of the accused, reliance upon the lie for corroboration would amount to the witness corroborating himself. That is a contradiction in terms.

In R v Ciantar (2006) 16 VR 26; 167 A Crim R 504; 46 MVR 461 (Vic CA) the court said in a joint judgment (at 48; 527; 481 [69]): [A]s the Court of Criminal Appeal said in R v Perera, and reiterated in Woolley, it is folly, if not impossible to attempt to formulate general propositions or rules which will govern the occasions on which lies or conduct give rise to an inference that the accused thereby displayed a consciousness of guilt. Everything depends on the circumstances of the particular case. (citations omitted)

An accused’s denial of the complainant’s evidence cannot be relied on by the prosecution as lies: Barbaro v The Queen (1993) 32 NSWLR 619; 67 A Crim R 91 (CCA); R v Mercer (1993) 67 A Crim R 91 (NSW CCA); R v Zheng (1995) 83 A Crim R 572 (NSW CCA).

[12.1510] Lie to prove guilt must be precisely identified In Zoneff v The Queen (2000) 200 CLR 234; 112 A Crim R 114; 172 ALR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ said (at 244; 7; 121 [17]): [I]f there is a risk of confusion or doubt as to the way in which the prosecution puts its case, the trial judge should inquire of the prosecution whether it contends that lies may constitute evidence of consciousness of guilt and, if so, he or she should require identification of the lie or lies in issue and the basis on which they are said to be capable of implicating the accused in the commission of the offence charged.

In R v Khoosal (1994) 71 A Crim R 127 (Vic CCA), the court said in a joint judgment (at 132):

970

ROSS ON CRIME

[12.1515]

Defence counsel did not require the Crown to define and seek to justify any alleged lies. He ought to have done so. It is implicit from what was said in Edwards (1993) 178 CLR 193; 117 ALR 600; 68 A Crim R 349 that ultimately the judge bears the responsibility for defining and analysing any alleged lies for the jury. However, the primary responsibility must be on the prosecutor to tell the judge what alleged lies the Crown seeks to rely on to prove guilt, and to define those alleged lies, and to seek to justify them in the light of the principles laid down in Edwards (1993) 178 CLR 193; 117 ALR 600; 68 A Crim R 349. Defence counsel should insist that that be done. If tactical considerations might preclude that, then the trial judge must require it.

See also Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 where Dawson, Deane and Gaudron JJ said (at 210–211; 613; 362): [I]n any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest.

Applied: R v Martin (2002) 134 A Crim R 568 at 574–575 [17] – [19] (Qld CA); R v Ray (2003) 57 NSWLR 616 Houghton v The Queen (2004) 28 WAR 399; 144 A Crim R 343 at 424–425; 368–369 [127] – [132] (WA CCA). Penza v The Queen [2013] NSWCCA 21.

[12.1515] Prosecutor’s role on lies A prosecutor must make it clear whether evidence of lies goes to credibility or to consciousness of guilt: R v Baring (2005) 92 SASR 117; 155 A Crim R 326 (CCA); R v Shiers (2003) 7 VR 174 (CA); R v Kumar (2006) 165 A Crim R 48 at [42] (Vic CA). A prosecutor who wants to show that a lie of the accused showed a consciouness of guilt must do so at the outset. In R v Howard (2005) 156 A Crim R 343 (Vic CA) Chernov JA, with whom the others agreed, said (at 351 [25]): When the prosector alleged in his final address that the applicant lied and that the lie amounted to consciousness of guilt, the applicant had no realistic opportunity to meet that claim.

and later (at 351 [26]): Fairness demands that if the Crown intends to rely on consciousness of guilt it should make this known to the court at the outset of the trial. (The appeal was allowed.)

It is not proper for a prosecutor to cross-examine an accused about any motive a prosecution witness might have to lie: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16; R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA). If the issue of a witness’s motive to lie arises in a trial, a prosecutor can make submissions on that issue in the final address: R v PLK [1999] 3 VR 567; (1999) 108 A Crim R 414 at [59] – [61] (CA); R v Geary [2003] 1 Qd R 64; (2002) 128 A Crim R 17 at [25] – [29] (CA).

[12.1520] Does the evidence call for a direction There are times when a direction on lies is not appropriate, and times when it is.

[12.1525]

LIES

971

In R v Ciantar (2006) 16 VR 26; 167 A Crim R 504; 46 MVR 461 (Vic CA) there was prosecution evidence of lies and flight. The court said in a joint judgment (at 48–49; 527–528; 481 [72]): [I]f an innocent explanation of post-offence conduct is so inherently likely that a jury could not properly regard the conduct as evidence of guilt, or if the post-offence conduct is intractably neutral, the judge should refuse to leave the conduct to the jury as evidence capable of demonstrating consciousness of guilt. But where the judge is satisfied that the post-offence conduct, when taken in conjunction with the circumstances and events so identified is capable of demonstrating such a consciousness of guilt, the post offence conduct should be left to the jury to determine whether it has that effect. Similarly, where evidence of consciousness of guilt, which although by itself equally consistent with consciousness of guilt of an included offence or another count on the presentment or another offence disclosed by the evidence, is capable in conjunction with other evidence of sustaining an inference of consciousness of guilt of the charged offence, it must be left to the jury to determine whether it demonstrates consciousness of guilt of the charged offence.

In R v Mitchell (2007) 174 A Crim R 52 (CA) the prosecutor in the final address did not refer to lies. The trial judge directed on lies. Wrongly, said the court. Appeal allowed. Williams JA (at [22] – [23]) referred to other cases where a warning had been given to prosecutors not to rely on lies as a matter of course. The cases were: R v Brennan [1999] 2 Qd R 529; (1998) 101 A Crim R 214 (CA) per McPherson JA at 530; 215; Approved: R v Chevathen (2001) 122 A Crim R 441 at 446 (Qld CA).

[12.1525] Direction to a jury In Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111 (PC) Lord Devlin said (at 457; 119–120): It is very important that a jury should be carefully directed upon the effect of a conclusion, if they reach it, that the accused is lying. There is a natural tendency for a jury to think that, if an accused is lying, it must be because he is guilty, and accordingly to convict him without more ado. It is the duty of the judge to make it clear to them that this is not so. Save in one respect, a case in which an accused gives untruthful evidence is no different from one in which he gives no evidence at all. In either case the burden remains upon the prosecution to prove the guilt of the accused. But if upon the proved facts two inferences may be drawn about the accused’s conduct or state of mind, his untruthfulness is a factor which the jury can take into account as strengthening the inference of guilt. What strength it adds depends, of course, on all the circumstances and especially on whether there are reasons other than guilt that might account for untruthfulness.

His Lordship said, in the next paragraph, that that was: [T]he sort of direction which it is at least desirable to give to a jury.

Approved: Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600. Applied: R v Miletic [1997] 1 VR 593 at 607 (CA). In Zoneff v The Queen (2000) 200 CLR 234; 112 A Crim R 114; 172 ALR 1 Gleeson CJ, Gaudron, Gummow and Callinan JJ said (at 244; 7 [16]): As a general rule, however, an Edwards-type direction should only be given if the prosecution contends that a lie is evidence of guilt, in the sense that it was told because, in the language of Deane, Dawson and Gaudron in Edwards (73), “the accused knew that the truth … would implicate him in [the commission of] the offence” and if, in fact, the lie in question is capable of bearing that character. (The words in italics are ours, and for the sake of clarity, should be included in the statement of principle.)

972

ROSS ON CRIME

[12.1530]

Other cases Nestorov v The Queen (2002) 137 A Crim R 310 (WA CCA); Benedetto v The Queen [2003] 1 WLR 1545; [2003] 2 Cr App R 390 at [50] – [52] (PC); R v Ambrosi (2004) 144 A Crim R 67 (NSW CCA).

[12.1530] Expert evidence In R v Whitbread (1995) 78 A Crim R 452 (Vic CCA) the judge had excluded at trial a psychologist’s evidence that statements claimed by the prosecution to have been lies could have been the result of a state of stress. The appeal was allowed.

[12.1535] Twelve points about lies In R v Renzella [1997] 2 VR 88; 88 A Crim R 65 (CA), the court in a joint judgment approved the judgment of Cooke J in R v Toia [1982] 1 NZLR 555 at 559 and then set forth the following twelve points (at 91–92): 1. Similar issues can arise in relation to conduct other than lies, such as flight or laying a false trail or bribery or attempted bribery of prosecution witnesses. See, for example, R v Tadic and Gibb (unreported, Full Court, 31 August 1993) at 32–33; R v Edwards (unreported. Court of Appeal, 20 December I995) at p 7 and R v Rhodes (unreported, Court of Appeal, 20 December 1995) at 4–5. There can also be an implied admission that one intends to commit an offence or is in the course of committing it: see R v Appleby (unreported, Court of Appeal, 14 June 1996). 2. In most cases, as Cooke J said, lies go only to credit. As his Honour explained, “This is no more than a matter of common sense. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused.” A direction in conformity with Edwards v R (1993) 178 CLR 193 (“an Edwards direction”) is not necessary in such cases. 3. There is a natural tendency for a jury to think that, if an accused is lying, it must be because he is guilty. Although it was said by the Privy Council in Broadhurst v R [1964] AC 441 at 457 that it is the duty of the judge to make it clear to the jury that that is not so, there is no invariable rule of practice in Victoria to that effect where lies go only to credit. That was recently reaffirmed by Hayne JA in Morgan’s case at 6. 4. The court as presently constituted heard argument on Broadhurst’s case and the New Zealand authorities that have followed it in R v Miletic [1997] 1 VR 593. We observed, at 607, that it may be that the need for a warning of the kind referred to in those authorities is to be determined, on a case by case basis, by applying the general principle that a judge should give any direction that is necessary and practical, in the circumstances of the case, to avoid a perceptible risk of miscarriage of justice. Morgan’s case is consistent with that observation. 5. In Edwards v R, Deane, Dawson and Gaudron JJ also pointed out, at 208, that the telling of a lie will ordinarily do no more than affect the credit of the witness who tells it. That is equally true of a lie told by the accused. 6. A lie told by the accused may nevertheless go further. As their Honours explained on the same page, it may amount to conduct which is inconsistent with innocence and thereby constitute “an implied admission of guilt”. In that way the telling of a lie may constitute evidence. It may even amount to corroboration if it is not necessary to rely on the evidence to be corroborated in order to establish the lie. See also at 209. 7. Although the expression “consciousness of guilt” is often used, the critical distinction drawn in Edwards v R is between lies that go to credit and lies that amount to evidence because they constitute implied admissions. They constitute such admissions because they are told from a consciousness of guilt. Most lies are not of that kind and cannot give

[12.1540]

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973

rise to admissions. See, eg, R v Martin (unreported, Court of Appeal, 20 December 1995) at 11. We have already referred to the passages in the joint judgment at 208 and 209. At 210–11, where the substance of an Edwards direction is set out, that is expressly done in the context of a lie constituting “an admission against interest”. See also R v Tadic and Gibb at 33–43. 8. Accordingly it is a misdirection, in a case where lies go only to credit, to tell the jury that they form part of the Crown’s circumstantial case or that the jury may regard them as corroboration or as affording “confirmation” or “support” for the testimony of a witness whose evidence stands in need of a scrutiny warning: see Miletic’s case at 604–5. A lie cannot be part of a circumstantial case or corroboration or afford such confirmation or support unless it goes beyond credit and constitutes an admission against interest. 9. An Edwards direction is required where the Crown invites the jury to use a lie told by the accused in any of those ways or simply as evincing a consciousness of guilt and the lie is of a kind which could found an admission. The requirement for such a direction is distinct from the standard of proof. The direction is required because the lie is relied on as an implied admission, whether or not it is an essential part of the Crown case. 10. The standard of proof, where a lie is relied on as an admission, is explained in R v Edwards (unreported, Court of Appeal, 20 December 1995) at 7–9. The lie and its character as an admission do not have to be proved beyond reasonable doubt unless the lie is the only evidence against the accused or an indispensable link in a chain of evidence necessary to prove guilt: see Edwards v R at 210 and R v Taylor (unreported, NSW Court of Criminal Appeal, 28 March 1995) at 19. 11. There are some cases where, although the Crown does not rely on lies as implied admissions, there is a danger that the jury may regard them in that light. Where that is so, the judge should direct the jury that the lies go only to credit and are not to be used as evidence or implied admissions of guilt. It is not for the judge to put the Crown case in a different way, and accordingly he or she should not follow the alternative course, apparently countenanced in R v Goodway (1995) 98 Cr App R 11 at 15 and 17; [1993] 4 All ER 894, of giving an Edwards direction in case the jury chooses to use the lies as doing more than merely reflecting on the credibility of the accused. 12. An Edwards direction is usually essential if the Crown invites the jury to treat lies by the accused as part of a circumstantial case, as corroboration, as confirmatory or supportive material or simply as evincing a consciousness of guilt, but an imperfect Edwards direction will not inexorably lead to a conviction’s being quashed: see, for example, R v Totivan and Dale (unreported, Court of Appeal, 15 August 1996) at 12–13.

(This case is also reported in (1996) 88 A Crim R 65. It contains the above twelve points (at 68-70) but the authorities in support are expressed quite differently.)

[12.1540] Lucas direction The expression Lucas direction comes from R v Lucas (Ruth) [1981] QB 720; [1981] 2 All ER 1008; (1981) 73 Cr App R 159 (CA). Lord Lane CJ giving the judgment of the court said (at 724; 1011; 162–163): To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness.

This Lucas direction is referred to in all the main cases. Other cases R v Miletic [1997] 1 VR 593 at 604–605 (CA);

974

ROSS ON CRIME

[12.1545]

R v Benfield (1997) 2 VR 491; 89 A Crim R 118 at 500–503; 129–132 (CA); R v Konstandopoulos (1998) 4 VR 381; 99 A Crim R 36 per Callaway JA (CA) at 387-391; 42-47 (with whom the others agreed); R v Ellis (1998) 100 A Crim R 49 (SA CCA); R v Coutts (1998) 126 CCC (3d) 545 (Ont CA); T v The Queen (1999) 73 ALJR 460 (HC). Articles G Lyon and B Walmsley, “Consciousness of Guilt: The Use of Lies Told by the Accused” (1997) (Nov) LIJ 50-54. A Palmer, “Guilt and the Consciousness of Guilt: The Use of Lies, Flight and other “Guilty Behaviour” in the Investigation and Prosecution of Crime” (1997) 21 MULR 95. See also Consciousness of guilt at [3.5900]; Corroboration at [3.7900]; Edwards direction at [5.100]; and Zoneff direction at [26.100].

[12.1545] Last word In R v Tripodi [1961] VR 186 the Full Court said (at 193): The lying statement must of course relate to incriminatory features of the crime; for if it were otherwise any lying statement by the accused might convict him of any crime in the calendar and such result has only to be stated to be at once rejected.

[12.1550] Possible lies direction Where the prosecution relies on a lie told by an accused from a consciousness of guilt and therefore as being evidence of the commission of the offence because it is an admission, the lie must relate to a material issue.2 The proof of the falsity must be provedindependently.3 A judge must require the prosecutor to identify each such lie.4 Where the evidence of lies simply goes to the credibility, a Zoneff direction5 may suffice. If the lie is only part of a circumstantial case no direction at all may be necessary.6 A lie used as corroboration must be the subject of a direction.7 An Edwards direction8 must be given to avoid a perceptible risk of miscarriage9 such as a risk of a jury’s misunderstanding the significance of a possible lie.10 If the lie is the only evidence or an indispensable link in the chain of proof, it must be proved beyond reasonable doubt.11 There is no formula. The following is a possible Edwards direction: 2 Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 at 209 (CLR). 3 Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 at 211 (CLR). 4 R v Khoosal (1994) 71 A Crim R 127 at 132. 5 Zoneff v The Queen (2000) 200 CLR 234; 112 A Crim R 114; 172 ALR 1 at 245 (CLR) (see Zoneff Direction at [26.100]). 6 R v Ibrahim (2003) 7 VR 141. 7 R v Renzella [1997] 2 VR 88; 88 A Crim R 65 at 92 (VR). 8 Edwards v The Queen (1993) 178 CLR 193; 68 A Crim R 349; 117 ALR 600 at 211. 9 Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 at 330 (CLR); R v Konstandopoulos (1998) 4 VR 381; 99 A Crim R 36 at 388 (VR). 10 Dhanhoa v The Queen (2003) 217 CLR 1; 139 A Crim R 41; 199 ALR 547; [2003] HCA 40 at [34]: R v Nguyen (2001) 118 A Crim R 479: R v Chang (2003) 7 VR 236; 140 A Crim R 573. 11 R v Renzella [1997] 2 VR 88; 88 A Crim R 65 at 92 (VR).

[12.1700]

LOGIC

975

1. The prosecution case is that the accused told lies. They say that the lies are an admission that he committed the crime because the lies were told to cover up his guilt. 2. The lies the prosecution relies upon are these (each lie identified). If you are unable to find that the words spoken were lies, that is the end of it. Disregard them. 3. Each lie, says the prosecution was told in the following circumstances (identified). 4. Now I must give you the strongest legal warning about this evidence upon which the prosecution relies. I tell you this as a matter of law which you must accept. 5. The prosecution must prove beyond reasonable doubt that the words of the accused show a knowledge of the offence or some central aspect of it. 6. The prosecution must prove beyond reasonable doubt the ONLY reason for what was said that he realised his guilt and was afraid to tell the truth. 7. There are any number of innocent reasons why a person might not tell the truth, as well you know. Some of those reasons are panic, to escape an unjust accusation, to protect someone else, or because of a wish to conceal something nothing to do with this offence. The person might think that he is just painting the lily. He may be confused. He may simply be mistaken. He may have forgotten something. For a person to be charged with a criminal offence is a frightening thing. You must not reason that only a guilty person would not tell the truth. 8. If you think it is possible that the words were said for the reasons I have just spoken about then the prosecution cannot rely on them as an admission of the connection between the accused and the offence.

LOGIC Generally ................................................................................................................................... Logic and experience ................................................................................................................ Strict logic needed to change common law ............................................................................. Petitio principii .......................................................................................................................... To lift oneself up by one’s own bootstraps ............................................................................. Jury verdict not necessarily based on logic ............................................................................. No logic may mean compromise ............................................................................................. Human misunderstanding .........................................................................................................

[12.1700] [12.1705] [12.1710] [12.1715] [12.1720] [12.1725] [12.1730] [12.1735]

[12.1700] Generally In R v Martin [No 2] (1997) 68 SASR 419; 94 A Crim R 357 (CCA) Doyle CJ said (at 429; 367): [A] distinction must be drawn and is drawn, for the purposes of the law of evidence, between logical and legal relevance.

R v Stephenson [1976] VR 376 at 380 (CCA): Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible.

Followed: R v Priest (2002) 137 A Crim R 133 at 140 [19] (Vic CA). In Noor Mohamed v The Queen [1949] AC 182; [1949] 1 All ER 365 (PC) Lord Du Parcq giving the advice of the Board said (at 194; 371):

976

ROSS ON CRIME

[12.1705]

The expression “logically probative” may be understood to include much evidence which English law deems to be irrelevant. Logicians are not bound by the rules of evidence which guide English courts, and theories of probability sometimes cause a clash of philosophic opinion.

In DPP v Boardman [1975] AC 421; [1974] 3 All ER 887; 60 Cr App R 165 (HL) Lord Hailsham said (at 452; 904; 181): The rules of logic and common sense are not susceptible of exact codification when applied to the actual facts of life in its infinite variety.

Approved: BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101 per Brennan CJ (at 285; 106; 406). In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11 Mason CJ said (at 356; 38): [A]t common law, according to the Australian authorities, want of logic is not synonymous with error of law.

[12.1705] Logic and experience Two celebrated American judges discussed this issue. Oliver Wendel Holmes said: The life of the law has not been logic; it has been experience (The Common Law, Little Brown and Co, Boston, 1881, p 1).

Bejamin Cardozo referred to Holmes’s remark and continued: But Holmes did not tell us that logic is to be ignored when experience is silent (The Nature of the Judicial Process, Yale University Press, New Haven, 1921, p 33).

The same concepts were said to apply to the law of evidence. JB Thayer said: The law of evidence is the creature of experience rather than logic and we cannot escape the necessity of tracing that experience (A Preliminary Treatise on Evidence at the Common Law, Little Brown & Co, Boston 1898 pp 267–268).

In R v G [2004] 1 AC 1034; [2003] 3 WLR 1060; [2003] 4 All ER 765 (HL) Lord Steyn said (at 1063; 792 [57]): The surest test of a new legal rule is not whether it satisfies a team of logicians but how it performs in the real world.

And to the foundation of the common law: In DPP v Majewski [1977] AC 443; [1976] 2 All ER 142; 62 Cr App R 262 (HL) Lord Salmon said (at 482; 156; 276): [T]he common law … is founded on common sense and experience rather than strict logic.

Approved: R v O’Connor (1980) 146 CLR 64; 4 A Crim R 348; 29 ALR 449 per Gibbs J at 92; 469.

[12.1710] Strict logic needed to change common law High technique and strict logic are needed to develop the common law. In Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385 Brennan J said (at 321–322, 404–405, 196): Sir Owen Dixon commended, as the methodology for judicial development of the common law, “high technique and strict logic”. That method guarantees the authority and acceptability of any

[12.1720]

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977

change in the common law made by the courts. The “strict logic” of which Sir Owen Dixon spoke includes, of course, inductive as well as deductive logic for strict logic is part of the methodology of change. The classic example is to be found in Lord Atkin’s speech in Donoghue v Stevenson where, perceiving the theme common to earlier cases, he reasoned to a unifying principle which, once articulated, governed the host of cases that followed. Inductive reasoning leads to the expression of a normative principle which prescribes with some particularity the character of the facts to which the principle applies. The principle must be more precise than a value or concept, else its content is left for contention in later cases. Analogical reasoning is the handmaid of strict logic in developing the common law. When a legal rule or result is attached to certain relationships or phenomena, the perception of similar characteristics in another relationship or phenomenon leads to the attachment of a similar legal rule or result. Unless the analogy is close, the applicability of the legal rule or result to the supposedly analogous relationship or phenomenon is doubtful. It is fallacious to apply the same legal rule or to attribute the same legal result to relationships or phenomena merely because they have some common factors; the differences may be significant and may call for a different legal rule or result. Judicial technique must determine whether there is a true analogy.

[12.1715] Petitio principii Petitio principii is translated from the Latin as begging or taking for granted of the beginning or of a principle. In logic it is the taking for granted a premise which is either equivalent to, or itself depends on, the conclusion. It is begging the question. The use of the Latin was explained in Sent v Jet Corporation of Australia Pty Ltd (1984) 2 FCR 201; 54 ALR 237 (FCA) per McGregor J (at 231; 271): If such particulars provide no further elucidation or state only that the allegations as pleaded are relied on, this can be said to be a mere “begging the question”. See per Windeyer J in National Insurance Co of New Zealand Ltd v Espagne (1960) 105 CLR 569 at 590 and his reference to petitio principii.

In Perry v The Queen (1982) 150 CLR 580; 44 ALR 449 Brennan J said (at 612; 475): To seek to prove a fact in issue by a chain of reasoning which assumes the truth of the fact is, of course, a fallacy, repugnant alike to logic and to the practical processes of criminal courts.

In Sutton v The Queen (1984) 152 CLR 528; 11 A Crim R 331; 51 ALR 435 Brennan J said (at 552; 454; 349): It is a canon of logic, rather than of law, that one cannot prove a fact by a chain of reasoning which assumes the truth of that fact. That canon has a particular application in determining the cogency and hence the admissibility of similar fact evidence.

Approved: Thompson v The Queen (1989) 169 CLR 1; 86 ALR 1; 41 A Crim R 134 at 17, 11, 145 per Mason CJ and Dawson J.

[12.1720] To “lift oneself up by one’s own bootstraps” A frequent example of this verity is to be found in the term “lift oneself up by one’s own bootstraps”. In Ahern v The Queen (1988) 165 CLR 87; 80 ALR 161; 34 A Crim R 175 the whole court said (at 95; 165; 178–179): The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence “hearsay would lift itself by its own bootstraps to the level of competent evidence”: Glasser v United States (1942) 315 US 60 at 75.

978

ROSS ON CRIME

[12.1725]

In R v Connolly [1991] 2 Qd R 171 (CCA) Thomas J said (at 173): A witness may not lift himself by his own bootstraps to enhance his own credit.

In HML v The Queen (2008) 235 CLR 334; 245 ALR 204; 183 A Crim R 159, Heydon J [at 297] approved the above words, and others, of Thomas J in Connolly. In R v Gionfriddo & Faure (1989) 50 A Crim R 327 (Vic CCA). Crockett and O’Bryan JJ said (at 332–333): Then again a lie consisting of a bald denial of guilt made in or out of court (as is we suppose the case in every contested trial) which is only shown to be a lie by proof by the prosecution of the crime charged axiomatically is not a lie that that can assist in proof of guilt. For it to do so would be for the prosecution to lift itself by its own bootstraps.

In Grollo v Bates (1994) 53 FCR 218; 125 ALR 492; 75 A Crim R 271 Einfeld J said (at 238; 289): In my view, the fact that s 464O(6) permits a magistrate to issue a warrant for the arrest and presumably the custody of a person subject to a fingerprint application raises what is usually called a “bootstraps” argument and is insufficient to characterise the law as relating to arrest and custody.

[12.1725] Jury verdict not necessarily based on logic In R v Kirkman (1987) 44 SASR 591 (CCA) King CJ said (at 593): [J]uries cannot always be expected to act in accordance with strictly logical considerations and in accordance with the strict principles of the law which are explained to them… Sometimes juries apply in favour of an accused what might be described as their innate sense of fairness and justice in place of the strict principles of law … Appellate courts therefore should not be too ready to jump to the conclusion that because a verdict of guilty cannot be reconciled as a matter of strict logic with a verdict of not guilty with respect to another count, the jury acted unreasonably in arriving at the verdict of guilty.

Approved: MacKenzie v The Queen (1996) 190 CLR 348; 90 A Crim R 468; 141 ALR 70; per Gaudron, Gummow and Kirby JJ at 367–368; 84; 483.

[12.1730] No logic may mean compromise In MFA v The Queen (2002) 213 CLR 606; 193 ALR 184; 135 A Crim R 361, McHugh, Gummow and Kirby JJ pointed out (at [85]): [C]ases do arise where different verdicts returned by a jury represent “an affront to logic and common sense” and suggest a compromise in the performance of the jury’s duty.

[12.1735] Human misunderstanding “Logic: The art of thinking and reasoning in strict accordance with the limitations and incapacities of the human misunderstanding.” Ambrose Bierce, The Devil’s Dictionary.

LOITER Definition ................................................................................................................................... Legislation ................................................................................................................................. Fail to cease loitering ............................................................................................................... Loitering by sexual offender ....................................................................................................

[12.1900] Definition In Samuels v Stokes (1976) 130 CLR 490; 2 ALR 269 Gibbs J said (at 503; 279):

[12.1900] [12.1905] [12.1910] [12.1915]

[12.1915]

LOITER

979

In my opinion, it cannot be said that the word “loiter” has acquired a fixed “statutory meaning” to be given to it wherever it appears. The meanings suggested in these cases would be obviously inappropriate in certain contexts–eg in the regulation forbidding traffic to loiter which was considered in Fairfoul v Somerville (1895) 23 R (Ct of Sess) (j) 6–and there is in any case no justification for treating “loiter” as a technical word to be construed in a technical sense. It ought normally to be understood in its ordinary sense but its meaning may, of course, be controlled by the context in which it appears. The word “loiter” in its ordinary sense does not connote remaining without a lawful reason. Dictionary meanings of the word include “to linger idly about a place” and “to hang about in an idle manner”; it has other senses not relevant in the present content. In its natural meaning the word may suggest indolence or inactivity but it does not connote either legality or illegality; a person may loiter for a legitimate reason (as s 18(1) of the Police Offences Act recognizes) and an unlawful purpose will not cause activity to become “loitering” if it could not otherwise be so described, eg a prostitute hastening directly on her way to catch a taxi would not be loitering for the purpose of prostitution within s 25(b) of the Police Offences Act, notwithstanding that she was on her way to an assignation.

There is further discussion by Menzies J (at 498–499; 276–277). In Waldie v Koop (1933) NTJ 188 Sharwood AJ said: Loitering connotes idling, merely delaying without indication of substantial occupation.

Other cases Walker v Hayes (1986) 44 SASR 250 (Bollen J); Del Col v Urie (1978) 19 SASR 399 (Bright J); Wynne v Lockyer [1978] VR 279 (Harris J); Power v Huffa (1976) 14 SASR 337 (FC);

[12.1905] Legislation There are a number of offences associated with loitering. Some are connected with prostitution (qv). Others forbid a known or reputed thief or cheat to loiter with crime in mind. These latter are now set forth. Tas: Police Offences Act 1935 s 7(1)(b); NT: Summary Offences Act 1978 s 47A; Vic: Summary Offences Act 1966 s 49B; SA: Summary Offences Act 1953 s 18(1)(a).

[12.1910] Fail to cease loitering In Rice v Daire (1974) 30 SASR 560 Bollen J said (at 574): A person must be loitering before the police officer may make the request mentioned in the section.

Where the defendant was being restrained by bystanders he could not physically comply with the request and thus could not be convicted: Starri v SA Police (1995) 80 A Crim R 197 (SA, Legoe J).

[12.1915] Loitering by sexual offender Legislation Tas: Police Offences Act 1935 s 7A; NT: Summary Offences Act 1978 s 47AC;

980

ROSS ON CRIME

[12.2100]

NSW: Summary Offences Act 1988 s 11G; Vic: Crimes Act 1958 s 60B; SA: Summary Procedure Act 1921 s 99AA (“paedophile restraining orders”). See also DPP v Field (2001) 126 A Crim R 317 (Vic, Ashley J).

LONGMAN WARNING Origin ........................................................................................................................................ Usage ......................................................................................................................................... Warning ..................................................................................................................................... Does not apply to the prosecution ........................................................................................... Uncharged acts .......................................................................................................................... The direction ............................................................................................................................. Judge sitting alone or magistrate .............................................................................................. Possible Longman warning ......................................................................................................

[12.2100] [12.2105] [12.2110] [12.2115] [12.2120] [12.2125] [12.2130] [12.2135]

[12.2100] Origin The expression “Longman warning” comes from the direction to the jury on delay required in Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60. The accused had been charged with indecent dealing with three girls under the age of 14 years. The trial was in 1988. After severance, two counts proceeded concerning one of the complainants. The counts were on a date unknown. One was between dates some 28 years before. The other was between dates some 22 years before. The complainant was the accused’s step-daughter. The accused, now 57, denied indecency and at trial called good character evidence. There was no corroboration of the complainant. At trial Judge Viol declined to warn the jury about acting on the uncorroborated evidence of the complainant. He based his refusal on s 36BE of the Evidence Act 1906 (WA). In the High Court, it was held a warning should have been given, saying that s 36BE(1)(a) dispensed only with the requirement to warn of the general danger of acting on the uncorroborated evidence of alleged victims of sexual offences as a class and did not affect the requirement to give a warning whenever necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case. Brennan, Dawson and Toohey JJ said (at 90–91; 170): The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than twenty years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice. The jury were told simply to consider the relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence. That was not sufficient.

Note that s 36BE of the Evidence Act(WA) has been replaced by s 50. Longman was followed in Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369; Doggett v The Queen (2001) 208 CLR 343; 182 ALR 1; 119 A Crim R 416.

[12.2105] Usage Principles The need for a Longman warning has been the subject of many cases.

[12.2105]

LONGMAN WARNING

981

In Christophers v The Queen (2000) 23 WAR 106; 116 A Crim R 280 (CCA) Owen J with whom the other judges agreed said (at 117 [37]): In my view a number of propositions can be extracted from the judgments in Longman and the discussion about Longman in other cases: 1. The “Longman (1989) 168 CLR 79; 89 ALR 161 direction” is a rule of practice that applies notwithstanding the enactment of s 36BE (now s 50) of the Evidence Act. 2. It is not a conventional corroboration warning. 3. It is borne out of the circumstances of the particular case and not from some general appreciation of the position of particular classes of witnesses or classes of offences. 4. It arises because of the overriding obligation of a trial judge to ensure that there is a fair trial and to avoid a perceptible risk of miscarriage of justice occurring, again because of the circumstances of the particular case. 5. The warning is concerned both with the reliability and the veracity of the testimony given by the witness. 6. There is no prescribed or ritualistic formulation in which the warning is to be delivered: see James [2000] WASCA 100 at [23]. It must be tailored to the features of the case that have dictated that it be given. This is not surprising given that it arises from the circumstances of the particular case. 7. It is important that the trial judge point out to the jury the particular features of the evidence that might have an impact on the reliability of the impugned testimony and the difficulties that this has, or may have, caused for the presentation of the defence. 8. Although the word “dangerous” is used from time to time in the judgments in Longman, the adequacy of the warning in any particular case is not necessarily sensitive to whether that phrase was uttered: Gaulard v The Queen [2000] WASCA 218 at [14]. What must be brought home to the jury is that they need to be “persuaded of the truth and accuracy of the evidence before they may place reliance on it”: see James at [22]. In this context, “truth and accuracy” equates to reliability.

Approved: Crisafio v The Queen (2003) 27 WAR 169; 141 A Crim R 98 at 176; 105 [27] (CCA). In R v Costin [1998] 3 VR 659 (CA) Charles JA said (at 663): The obligation to give a Longman (1989) 168 CLR 79; 89 ALR 161 warning only arises when the trial judge concludes that the circumstances of the particular case would make it unsafe to convict the accused on the uncorroborated evidence of the particular alleged victim: see Longman (1989) 168 CLR 79; 89 ALR 161 at 88–89. This requires something more than that proof of the offence rests on the uncorroborated evidence of the alleged victim.

In M v The Queen (1994) 181 CLR 487; 76 A Crim R 213; 126 ALR 325; [1994] HCA 63 the appellant had been convicted of indecent assault on one of his daughters then aged 13, and of three counts of sexual intercourse with the same daughter. The alleged events occurred on two weekends in September 1990. The complainant gave conflicting accounts. There was no corroboration. The trial judge gave the Longman warning (at 499; 333; 220). Notwithstanding the fresh trial ordered in Longman, in this case a verdict of acquittal was entered. In Liddington v Western Australia (2005) 152 A Crim R 502 (WA CA) the girl complainant was under 10 years old. The delay in complaint after the first offence was just less than two years and after the last, nine months. The trial judge gave no Longman warning. Held: there was no need for the warning. In Tully v The Queen (2006) 230 CLR 234; 81 ALJR 391; 231 ALR 712; 167 A Crim R 192 the complainant alleged sexual abuse by the mother’s then male partner. Two years later the

982

ROSS ON CRIME

[12.2110]

mother and the accused separated and it was then that complaint was made. The trial took place two years after that. Defence counsel did not ask for a Longman warning, but that was a ground of appeal to the High Court. The Court held 3–2 that the trial judge was not wrong in not giving the Longman warning.

[12.2110] Warning The trial judge must give a warning, not just make a comment. In R v Miletic [1997] 1 VR 593 (CA) the court, in a joint judgment, referred to Longman and said (at 604): It will be observed that their Honours distinguished between comment, which would not have been surprising and would have been proper and a warning, which was required. The circumstances that might have been the subject of comment were such as the jury could evaluate for themselves but the factor requiring a warning was one the full significance of which might not have been apparent to laymen unfamiliar with the way in which a criminal trial is prepared and conducted: see also at 95–96 per Deane J.

In R v EO (2004) 8 VR 154 (CA) Coldrey AJA giving the leading judgment said (at 166 [46]): [T]here is no standard strength Longman warning which may be diluted by judicial error or omission. In all cases it will be a matter of degree. However, such warning must be given with the clear authority of the trial judge with the objective of ensuring a fair trial and the avoidance of a miscarriage of justice.

In Robinson v The Queen (1999) 197 CLR 162; 165 ALR 226 the High Court said in a joint judgment (at 168; 230 [19]): Since an accused person could be convicted on the evidence of one witness only, the law was required to address the problem of unreliability. Such unreliability could arise from matters personal to the witness, or from the circumstances of a particular case. The law requires a warning to be given “whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case.”Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 86. See also Bromley v The Queen (1986) 161 CLR 315 at 319, 323–325; Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 at 330 (CLR).

In Carr v The Queen (2000) 117 A Crim R 272 (Tas CCA) the armed robbery trial took place nine years after the offence. It was held that the direction on delay was “too unemphatic” (at 281 [45]). Appeal allowed. It is not a sufficient direction for the trial judge to refer to “the potential for error” caused by the delay in complaint. R v Young [1998] 1 VR 402; (1996) 90 A Crim R 80 at 407–409, 85–87 (CA); R v Jolly [1998] 4 VR 495 at 502 (CA).

[12.2115] Does not apply to the prosecution A Longman warning does not apply to the prosecution. In R v GVV (2008) 184 A Crim R 242 (Vic CA) the court allowed the appeal against conviction for sexual reasons. The trial judge had directed the jury on the effect of delay on prosecution evidence, and to a lesser degree on defence evidence. Lasry AJA, (at 255 [55]), with whom the other judges agreed, described the directions as “little more than an apologia for potential weaknesses in the prosecution case”. In R v Taylor (No 2) (2008) 18 VR 613; 184 A Crim R 77 (CA) much the same directions had been given by the trial judge. Kellam JA, with whom the other judges agreed, said (at 640; 104 [92]):

[12.2125]

LONGMAN WARNING

983

[T]hose remarks diluted the strength of a warning to the jury and detracted from the primacy of the warning which was compelled by the unusual circumstances which put the accused at a disadvantage at trial.

[12.2120] Uncharged acts In a sexual offence evidence is often given of wrongdoing by an accused which is not charged. Where there is a long delay between the uncharged acts and the complaint a Longman warning is necessary: R v RWB (2003) 87 SASR 256 (CCA). See Uncharged acts at [21.100].

[12.2125] The direction In R v BWT (2002) 54 NSWLR 241; 129 A Crim R 153 (CCA) Sully J said (at 273–274; 189–190 [95]): (a) The direction must be cast in the form of a warning. Any form of expression which is thought to have the character of a comment, or even of a caution will not sufficiently comply with what is required by law. It seems to me to follow that any trial judge who is framing a Longman (at 91) direction ought to ensure that the direction is framed, in terms, as a warning. (b) That which is to be warned against is, to return to the majority judgment in Longman (at 91) itself: that, as the evidence of the complainant could not be adequately tested after the passage of [the particular period relevant in the particular trial], it would be dangerous to convict on that evidence alone unless the jury, scrutinising the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, was satisfied of its truth and accuracy. The approach of the majority of Justices in both Crampton and Doggett seems to me to entail that a trial judge who is framing a Longman direction must ensure that the final form of the direction to the jury covers in terms the following propositions: first, that because of the passage of time the evidence of the complainant cannot be adequately tested; secondly, that it would be, therefore, dangerous to convict on that evidence alone; thirdly, that the jury is entitled, nevertheless, to act upon that evidence alone if satisfied of its truth and accuracy; fourthly, that the jury cannot be so satisfied without having first scrutinised the evidence with great care; fifthly, that the carrying out of that scrutiny must take into careful account any circumstances which are peculiar to the particular case and which have a logical bearing upon the truth and accuracy of the complainant’s evidence; and sixthly, that every stage of the carrying out of that scrutiny of the complainant’s evidence must take serious account of the warning as to the dangers of conviction. (c) Not only must the substance of the warning be carefully and correctly focused, but the form of the warning, also, must be carefully and correctly framed. The form of the warning must be such as bears unmistakeably the imprint of the court’s own authority. It must be made clear that the foundation of that authoritative warning of the court itself is the accumulated experience of the courts in dealing with cases characterised by substantial delay in the making of complaint about alleged sexual offences. It will be unwise, and more probably than not will be held upon appellate review to have been erroneous, to frame the warning in a way which suggests that what is being said conveys in essence nothing more than the common sense of the jurors would in any event have indicated.

Followed: R v SJB (2002) 129 A Crim R 572 at 584–588 [49] (NSW CCA); R v GEA (2002) 131 A Crim R 54 at 56–57 [8] (NSW CCA);

984

ROSS ON CRIME

[12.2130]

R v MM (2004) 145 A Crim R 148 at 156 [29] (NSW CCA). In an appropriate case a judge will refer to a “real danger”: Christophers v The Queen (2000) 23 WAR 106; 116 A Crim R 280 at [37] (CCA); Dawe v The Queen (2001) 137 A Crim R 1 at [47] (WA CCA); Crisafio v The Queen (2003) 27 WAR 169; 141 A Crim R 98 at [27] – [31] (WA CCA).

Unmistakable and firm In R v WEB (2003) 7 VR 200 (CA) Winneke ACJ said (at 215 [50]): Where a warning is required, as it undoubtedly was in this case, it must be given in an “unmistakable and firm voice” – a warning which carries the judge’s imprimatur that it would be “dangerous to convict the accused on the unsupported evidence of this complainant, unless etc”. It is “that red flag which must remain aloft”, as Ormiston JA and I said in R v MCG, unless and until the jury is satisfied of guilt after it has thoroughly scrutinised the evidence, considered the circumstances and paid heed to the warning.

[12.2130] Judge sitting alone or magistrate A judge sitting alone must demonstrate in the reasons for decision that the Longman warning has been taken into account: R v Green (2001) 78 SASR 463; 119 A Crim R 75 (CCA). So must a magistrate: Beames v Police (SA) (2002) 135 A Crim R 447 (SA, Bleby J).

[12.2135] Possible Longman warning Where there is substantial delay in complaint in a sexual case the warning must be given.12 It is given in other delay cases to avoid a perceptible risk of miscarriage.13 The warning might be: 1. It was (number of years) before this matter was brought to the attention of the (police). 2. I must warn you about the effect of that delay on this case. 3. Courts throughout the land have dealt with cases where there have been delays like this. Our accumulated experience is that delays can cause injustice. As a matter of law I warn you in the strongest terms about the risks of delay. You must accept what I say about this. 4. There may be good reason for a witness to delay in complaining.14 Nevertheless, courts have found that the effect of the delayed evidence can be that the witness might not have a true memory of events.15 There is also the risk that the evidence is distorted.16 5. Courts have found that there are often special difficulties in defending a case where the complaint has been delayed. These include: 12 R v BWT (2002) 54 NSWLR 241; 129 A Crim R 153 at [95] (3). 13 Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 at 330 (CLR); Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 86. 14 Evidence Act 1906 (WA) s 50; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(5)(a); Criminal Procedure Act 1986 (NSW) s 294; Crimes Act 1958 (Vic) s 61. 15 Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 at 182 [49]. 16 Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 at 182 [49].

[12.2135]

LONGMAN WARNING

985

The loss of a cast iron alibi.17 The difficulty in recalling the events surrounding the alleged charges, where he (or she) was and what he (or she) was doing.18 The difficulty in recalling which witnesses could rebut the allegations. That difficulty increases the greater the delay.19 The evidence of the prosecution cannot be adequately tested.20 In essence the accused has been deprived of the ability to put the prosecution evidence properly in issue. That would put an innocent accused21 at a significant disadvantage.22 6. You can act on the prosecution evidence but only if after the most careful scrutiny you are satisfied of its truth and accuracy.23 If you have any doubt about any one aspect of the (complainant’s) evidence you may use that doubt to assess the overall credibility of the (complainant’s) evidence.24 That is to say, does it give rise to reasonable doubt? 7. Let me warn you as emphatically as I can. With a delay like this it is dangerous to convict.25 ERA v Western Australia [2013] WASCA 163.

17 Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538; 98 A Crim R 107; 143 ALR 52 at 455 (CLR). 18 Doggett v The Queen (2001) 208 CLR 343; 182 ALR 1; 119 A Crim R 416 at [51]. 19 Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538; 98 A Crim R 107; 143 ALR 52 at 455 (CLR). 20 Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 at 181 [45]. 21 Jones v The Queen (1997) 191 CLR 439; 71 ALJR 538; 98 A Crim R 107; 143 ALR 52 at 454 (CLR). 22 Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 at 181 [45]. 23 R v Glennon (No 2) (2001) 7 VR 631 at 666 [84]. 24 R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186 at [186] – [191], [263]; R v S (2002) 129 A Crim R 339 at 349 [29]. 25 R v WEB (2003) 7 VR 200 at 215 [50] (CA).

M MCKENZIE FRIEND Origin .......................................................................................................................................... [13.100] Usage ........................................................................................................................................... [13.105] Factors bearing on representation by McKenzie friend ............................................................ [13.110]

[13.100] Origin The expression comes from an English divorce case, McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034. It applied principles of olden days contained in such cases as Collier v Hicks (1831) 2 B & Ad 663; 109 ER 1290 where Lord Tenterden said (at 669; 1292): Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.

In McKenzie the parties were Jamaican. A young Australian barrister named Hanger was in court. Mr Hanger was at the time working for the firm of solicitors who had acted for Mr McKenzie before legal aid was cancelled. The judge at first instance told Mr Hanger he could not take part in the case. The Court of Appeal held that the judge was wrong.

[13.105] Usage In R v Leicester City JJ; Ex parte Barrow [1991] 2 QB 260; [1991] 2 WLR 974; [1991] 3 All ER 935 (CA) the Lords said that a party was entitled to assistance unless it was not bona fide, was for an improper purpose or operated against the efficient administration of justice. In Australia the matter arose in a special leave application in the High Court. The trial judge had refused a “McKenzie adviser” in a conspiracy trial. In Smith v The Queen (1985) 159 CLR 532; 71 ALR 631 Gibbs CJ said (at 534; 633): The question whether an accused person should be allowed to have a “McKenzie friend” present at his trial is very much a matter of practice and procedure, and within the discretion of the trial judge to decide. It would be far too absolute to say that an application to have a “McKenzie friend” should always be refused. All the circumstances of the case must be considered in deciding upon the application. However, when the accused has been offered legal aid but has refused it, and nevertheless desires to have a barrister appear as a “McKenzie friend”, it would be understandable if the judge regarded his application with some scepticism.

There is also a passing reference to “McKenzie friend” in Dietrich v The Queen (1992) 177 CLR 292; 64 A Crim R 176; 109 ALR 385 in the joint judgment of Mason CJ and McHugh J without criticism (at 313; 398; 189). In Schagen v The Queen (1993) 8 WAR 410; 65 A Crim R 500 (CCA), Malcolm CJ said (at 412; 501): In my opinion, it is within the inherent jurisdiction of the court to determine to what extent a “McKenzie friend” may take part in the proceedings. It would be a rare and exceptional case, however, in which a person other than a duly qualified legal practitioner would be permitted to

988

ROSS ON CRIME

[13.110]

address the court or otherwise take an active part in proceedings. The court was prepared to go further in the present case because the court reporting service had found the appellant virtually incomprehensible and this difficulty of understanding was compounded because he also had a severe hearing problem. In my opinion, the appellant owes a considerable debt of gratitude to the students who assisted him. The court is also grateful to them for their assistance.

In Macartney v The Queen (2006) 31 WAR 416 (CA) Roberts-Smith JA said (at 442-443 [166] – [167]): At the hearing of the appeal … the appellant sought leave to have Mr Tennant appear as his advocate. We allowed Mr Tennant to assist the appellant as a “McKenzie friend” (McKenzie v McKenzie [1971] P 33, 38) for which leave is not required (R v Leicester City Justices; Ex parte Barrow [1991] 2 QB 260, 289-290, 292), but not to speak on his behalf (for which leave is required: R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807). As the appellant was demonstrably capable of speaking for himself and presenting his case with the assistance of Mr Tennant, and having regard to the nature of the issues sought to be ventilated by the appellant and the lack of professional constraints and obligations upon a non-practitioner, this was not that “rare and exceptional case” in which the interests of justice required the Court to exercise its discretion in favour of allowing the appellant to be represented by an unqualified person (Schagen v The Queen (1993) 8 WAR 410, 413; Damjanovic v Maley (2002) 55 NSWLR 149, 151, 162-164).

A McKenzie friend was refused audience on the appeal in R v Marijancevic (1993) 70 A Crim R 272 at 273 (Vic CCA) and Macartney v The Queen (2006) 31 WAR 416 (CA).

[13.110] Factors bearing on representation by McKenzie friend In Damjanovic v Maley (2002) 55 NSWLR 149; 195 ALR 256 (CA) Stein JA, with whom Mason P and Sheller JA agreed, identified the following factors as bearing on the decision of a judge to allow representation by a McKenzie friend (at 162–163; 267–268 [69] – [83]): (a) The complexity of the case. (b) Genuine difficulties of the unrepresented party. (c) The unavailability of disciplinary measures and a duty to the court by lay advocates. (d) Protection of the client and the opponent. (e) Lay advocates in inferior courts and tribunals. (f) The interests of justice.

In R v Bow County Court; Ex parte Pelling [1999] 1 WLR 1807; [1999] 4 All ER 751 the Court of Appeal in England said in a joint judgment (at 1827; 760): We would therefore summarise our conclusions by saying as follows. (1) In relation to proceedings in public, a litigant in person should be allowed to have the assistance of a McKenzie friend unless the judge is satisfied that fairness and the interests of justice do not require a litigant in person to have the assistance of a McKenzie friend. (2) The position is the same where the proceedings are in chambers unless the proceedings are in private. (3) Where the proceedings are in private then the nature of the proceedings which make it appropriate for them to be heard in private may make it undesirable in the interests of justice for a McKenzie friend to assist. (4) A judge should give reasons for refusing to allow a litigant in person the assistance of a McKenzie friend.

[13.300]

MCKINNEY DIRECTION

989

(5) The assistance of a McKenzie friend is available for the benefit of the litigant in person and whether or not a McKenzie friend is paid or unpaid for his services he has no right to provide those services; the court is solely concerned with the interests of the litigant in person.

For other long discussions on the appropriateness of a McKenzie friend see R v Smith (1982) 2 NSWLR 608 (CCA) at 612–614; R v Burke [1993] 1 Qd R 166; (1991) 56 A Crim R 242 (CCA). See also Justice Chesterman, “Commentary on the Law Relating to McKenzie’s Friends” (2001) 21 Qld Lawyer 187. Amicus curiae at [1.4600].

MCKINNEY DIRECTION Origin .......................................................................................................................................... [13.300] Relevance of Uniform Evidence Acts, s 165 ............................................................................. [13.305] Application .................................................................................................................................. [13.310]

[13.300] Origin The expression comes from McKinney v The Queen (1991) 171 CLR 468; 52 A Crim R 240; 98 ALR 577. Mr McKinney and Mr Judge were convicted of breaking and entering and other offences. The prosecution case was based substantially on alleged records of interview uncorroborated apart from signature. The accused maintained the records of interview were fabricated and signed only because of being overborne. Allen J did not warn the jury of the need for care in dealing with the confessions. In the High Court the majority said (at 476; 581–582; 244–245): Thus, the jury should be informed that it is comparatively more difficult for an accused person held in police custody without access to legal advice or other means of corroboration to have evidence available to support a challenge to police evidence of confessional statements than it is for such police evidence to be fabricated, and, accordingly, it is necessary that they be instructed, as indicated by Deane J in Carr (1988) 165 CLR 314; 81 ALR 236; 35 A Crim R 387, that they should give careful consideration as to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for finding that guilt has been established beyond reasonable doubt is a confessional statement allegedly made whilst in police custody, the making of which is not reliably corroborated. Within the context of this warning it will ordinarily be necessary to emphasize the need for careful scrutiny of the evidence and to direct attention to the fact that police witnesses are often practised witnesses and it is not an easy matter to determine whether a practised witness is telling the truth. And, of course, the trial judge’s duty to ensure that the defence case is fairly and accurately put will require that, within the same context, attention be drawn to those matters which bring the reliability of the confessional evidence into question. Equally, in the context of and as part of the warning, it will be proper for the trial judge to remind the jury, with appropriate comment, that persons who make confessions sometimes repudiate them.

In Carr v The Queen (1988) 165 CLR 314; 35 A Crim R 387; 81 ALR 236 Deane J said (at 335–336; 251; 402–403): For my part, I would go further and recognize a prima facie requirement that such specific directions be given in any case where the prosecution relies upon police evidence of disputed oral admissions allegedly made while the accused was under interrogation while in police custody and where the actual making of the admissions is unsupported by video or audio tapes, by some written verification by the accused, or by the evidence of some non-police witness. In addition, I consider that, as a prima facie rule, those specific directions should, in a case where uncorroborated police evidence of the making of a disputed oral confession is the only, or substantially the only, evidence against an accused, include a further warning to the jury pointing to the danger involved in

990

ROSS ON CRIME

[13.305]

convicting upon the basis of that evidence alone. That further warning should be to the effect that, while it is ultimately a matter for them, the members of the jury should give careful consideration to the dangers involved in convicting an accused person in circumstances where the only (or substantially the only) basis for a finding that his guilt has been established beyond reasonable doubt is uncorroborated and disputed police evidence of oral admissions allegedly made by him while he was held in custody by the police. It should be pointed out to the jury that, in such a case, the detention in police custody and the failure of the relevant authorities to institute an appropriate system for the mechanical recording of what is said in the course of police interrogation combine to render an accused peculiarly vulnerable to fabrication of evidence of oral admissions allegedly made while in such custody by effectively precluding any corroboration of his denial that he has made them. Since my views in those regards are not shared by the other members of the Court, I will confine myself to a brief statement of my reasons for them.

[13.305] Relevance of Uniform Evidence Acts, s 165 In R v Lowe (1997) 98 A Crim R 300 (NSW CCA) Hunt CJ at CL said (at 311): The areas of operation of the two warnings are thus very different – the s 165 warning relates to the unreliability of the evidence of a category of suspect witnesses, the McKinney warning relates to the unfair position in which the accused person has been placed rather than to the unreliability of the evidence of police officers generally. The nature of the warnings and the circumstances in which they are to be given do not coincide. The s 165 reliability warning differs from the McKinney warning in two respects – it does not require a warning as to the dangers of convicting upon the evidence, but it is required to be given (if requested) whether or not the admissions form the only the only (or substantially the only) evidence of guilt and whether or not they were made in police custody.

His Honour went on to say that the relationship between the two did not have to be resolved in the appeal. See also R v Beattie (1996) 40 NSWLR 155; 89 A Crim R 393 (CCA).

[13.310] Application The McKinney direction (incorporating Deane J in Carr v The Queen) has been applied in a number of cases since. An excellent example is Foster v The Queen (1993) 67 ALJR 550; 66 A Crim R 112; 113 ALR 1 (HC). Other cases Pelham v The Queen (1995) 82 A Crim R 455 at 463–469 (WA CCA); R v Fuller (1994) 34 NSWLR 233; 74 A Crim R 415 (CCA); R v Pierpoint (1993) 71 A Crim R 187 at 195 (NSW CCA). In R v O’Sullivan (2002) 128 A Crim R 371 (NSW CCA) the appellant had pleaded guilty to local drug offences. He said he was coerced into making admissions to the police. That was the only evidence. He claimed he was not guilty and had been pressured into pleading. It later transpired that the interviewing police had misbehaved. Appeal allowed. Verdict of acquittal entered. In Queensland it has been held that a McKinney warning did not extend to cases where besides the impugned confession allegedly made by the accused while in police custody there was another substantial basis for the finding of guilt. But a warning might be necessary in some such cases to secure a fair trial: R v Lawson [1996] 2 Qd R 567 (CA). In R v Kypri (2002) 5 VR 610; 136 A Crim R 235 (CA) the interview was video recorded and all the rules of questioning complied with. Thus “vulnerability” and “inherent

[13.505]

MAGISTRATE

991

unreliability” referred to in McKinney and the later cases did not apply. The confession was not disputed though the accused said that police pressure caused him to say what was untrue. Held: No McKinney direction had been necessary. See also Confession at [3.5300].

MAGISTRATE Implied powers, generally .......................................................................................................... Powers and discretions and duties ............................................................................................. Must follow precedent ................................................................................................................ Limits to jurisdiction .................................................................................................................. Implied power to require police to produce documents ............................................................ Witness statements ...................................................................................................................... Courtesy to all ............................................................................................................................. Avoid questioning a witness ....................................................................................................... Magistrate should give reasons .................................................................................................. Reasons should show everything taken into account ................................................................ A different magistrate should rehear after successful review ................................................... Supervisory powers of chief magistrate ..................................................................................... Removal from office ...................................................................................................................

[13.500] [13.505] [13.510] [13.515] [13.520] [13.525] [13.530] [13.535] [13.540] [13.545] [13.550] [13.555] [13.560]

[13.500] Implied powers, generally Dawson J delivered the leading judgment in Grassby v The Queen (1989) 168 CLR 1; 41 A Crim R 183; 87 ALR 618 and said (at 16-17; 628): [A] magistrates court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.

[13.505] Powers and discretions and duties A magistrate has the same power, discretion and duties as a judge has with a jury. In Clayton v Ralphs (1987) 45 SASR 347; 26 A Crim R 43 (FC) Olsson J (in dissent on other matters and conclusions) said (at 407; 102): It is clear that, in the case of minor indictable offences, the magistrate is possessed of, and must exercise, the same powers and discretions as a judge presiding over a jury trial: Egan v Bott [1985] VR 787. Presumably the same principle must apply to any prosecution which is capable of disposal as a minor indictable offence, prior to the stage at which the magistrate determines that he will, in fact, dispose of the matter summarily.

Thus the magistrate must self-direct as does a judge sitting alone. That is to say, the magistrate must self-direct as if to a jury: Fleming v The Queen (1998) 197 CLR 250; 103 A Crim R 121; 158 ALR 379. But a magistrate’s powers are limited by legislation. In DPP v Verigos (2004) 145 A Crim R 82 (Vic, Nettle J) a magistrate had exceeded power by hearing an aggravated burglary charge summarily. His Honour granted an order in the nature of certiorari to quash the magistrate’s orders.

992

ROSS ON CRIME

[13.510]

Before a magistrate can hear an indictable matter triable summarily, the magistrate must advise the defendant that the case can be heard by judge and jury or have the case heard by the magistrate sitting alone. The choice is that of the defendant: Birkeland-Corro v Tudor-Stack (2005) 15 NTLR 208; 191 FLR 204 (Martin (BR) CJ). A person charged with an indictable offence and who consents to have the magistrate hear it summarily, can withdraw that consent: Clayton v Hall (2008) 184 A Crim R 440 (Vic, Kaye J). In Burlinson v Police (1994) 75 A Crim R 258 (SA, Nyland J) her Honour found that the magistrate had reduced the fact-finding process to a choice between the prosecution evidence and the defence. Her Honour said (at 261): Such an approach is clearly wrong as it does not give proper weight to the burden of proof and the presumption of innocence.

[13.510] Must follow precedent In Coulthard v Steer (1981) 12 NTR 13 (Muirhead J) a magistrate had not followed Supreme Court decisions. His Honour said (at 17): To speak in the manner attributed to the stipendiary magistrate in this transcript tends only to cause confusion and to undermine respect for the law itself.

See also Precedent at [16.3100].

[13.515] Limits to jurisdiction A magistrate has implied powers. A magistrate can hear indictable offences triable summarily. A magistrate can hear a committal for serious offences. In Megson v The Queen (2006) 17 NTLR 57; 159 A Crim R 594 (FC) the court in a joint judgment analysed the hierarchy of crimes, simple offences and regulatory offences to decide what a magistrate could and could not hear.

[13.520] Implied power to require police to produce documents In Gaffee v Johnson (1996) 90 A Crim R 157 (Vic) Smith J said (at 165): The inherent power (or implied power) which a court possesses, including a magistrates court, is concerned with adjectival law which includes pre-trial procedures and I do not have any difficulty with the proposition that the inherent power of the court would extend in the absence of any other power to requiring the informant to produce documents. That power is to be exercised to achieve justice according to law in the particular case.

[13.525] Witness statements Rice v Chute (1995) 119 FLR 181 (NT, Gray AJ) dealt with the prosecution duty to give witness statements to the defence. The practice should be the same as in trials (at 185): There should be no need for recourse to the summons to produce procedure. The prosecuting officer should in my view, be equipped with copies of the statements of prosecution witnesses so that they can be provided to the defendant or his practitioner upon request. It is true that an accused person does not have a legal right to be provided with statements of prosecution witnesses: R v Charlton [1972] VR 758. But I was informed by counsel, and I confirmed it by my own inquiries, that it is the policy of the Director of Public Prosecutions to provide the defence with a copy of the statement of each intended Crown witness. This occurs at the committal proceedings and, if additional evidence is to be called, at the trial. The policy extends to providing, not only the final statement upon which the evidence of a witness is to be based, but any earlier statement of the

[13.540]

MAGISTRATE

993

witness even if totally inconsistent with the Crown case. This policy is, to my mind, entirely consistent with the sentiments expressed in the cases to which I have referred. Many weighty criminal cases are nowadays dealt with in the court of Summary Jurisdiction and, in my view, it is desirable that the practice in that court should conform to that prevailing in other criminal proceedings. The foregoing remarks are confined to statements by prosecution witnesses. Other documents, such as police notebooks or running sheets are not ordinarily in the possession of the prosecutor. If access to such a document is sought, it will be necessary to resort to a summons under s 23.

[13.530] Courtesy to all In Graham v Atkins (2006) 201 FLR 24 (NT, Martin (BR) CJ) a magistrate had been quite rude to counsel. On appeal, his Honour said (at 26 [9]): The proper administration of justice requires that even in the face of extreme frustration, judicial officers exercise restraint in their language and show courtesy toward counsel, parties and witnesses. While at times firmness and perhaps plainer than usual language by a judicial officer is both justified and required, the wider interest of the administration of justice require that such firmness and language be delivered courteously and without verbal abuse or intimidation.

[13.535] Avoid questioning a witness A magistrate should avoid questioning a witness. Questioning may lead to an apprehension of bias. Rowland v Police (2001) 79 SASR 569 (Perry J). Hoare Bros Pty Ltd v Magistrates Court (Vic) (2003) 142 A Crim R 330 (Vic, Balmford J). See also Bias at [2.1800].

[13.540] Magistrate should give reasons A magistrate has a duty to give adequate reasons for a decision. Failure to give adequate reasons for judgment will constitute error: Winwood v Burk (2002) 132 A Crim R 541 at 545 [15] (Tas, Underwood J); Donnachy v Riegert (2004) 144 A Crim R 260 at 283 [130] (WA, Roberts-Smith J). In Wood v Marsh (2003)139 A Crim R 475 (WA FC) Malcolm CJ with whom the others agreed said (at 485 [41]): It is a fundamental requirement of natural justice that a tribunal of fact, particular one exercising criminal jurisdiction, should ensure that adequate reasons, whether for conviction or for sentence are given at the time the decision is made and properly recorded: cf Harling v The Queen (1997) 94 A Crim R 437 at 443 and 444 per Anderson J; and Ladlow v Hayes (1983) 8 A Crim R 377 at 388 and 389 per Walters J.

In Shams v Clarson (2002) 130 A Crim R 1 (WA) McKechnie J ruled (at 6 [18] – [19]): There are many statements of principle as to the duty of the court to give adequate reasons for its decision and it is not necessary for me to re-state them. They can be found in Lloyd v Faraone [1989] WAR 154; Frichot v Zalmstra (unreported, Supreme Court, WA, No 72 of 1997, 13 May 1998); Garrett v Nicholson (1999) 21 WAR 226; Roman Catholic Bishop of Broome v Watson [2002] WASCA 7; Matsebula v Vandeklashorst [2000] WASCA 141; Underwood v Gayfer [1999] WASCA 56 and many others. As I said in Skerritt v O’Keefe [1999] WASCA 183 at [146] and [147]: The principles are clear. The court must find sufficient facts upon which to rationally base a decision and expose the reasoning which leads to the ultimate conclusion.

994

ROSS ON CRIME

[13.545]

Although the principle is clear, the sufficiency of fact finding and reasoning will vary widely with the exigencies of each case. In the end it is necessary to examine the particular reasons in this case to see whether the principles are satisfied.

In Wood v McDonald (1988) 46 SASR 570; 35 A Crim R 296 von Doussa J said (at 571; 297): A magistrate should as a matter of sound judicial practice give at least a brief explanation for the decision to impose a particular kind of penalty, especially when that decision involves a rejection of the defendant’s principal submission made as to penalty: see Kotra v Kraft (1983) 111 LSJS 23 at 24 and Leech v McCall (1986) 41 SASR 96 at 99-100.

In Stafford v Redmond (1990) 52 A Crim R 173 (Vic) Teague J found that the magistrate had erred in not giving reasons for dismissing a charge of failing to accompany a police officer to a police station for a breath test. Teague J sent the case back to be dealt with according to law. He said (at 177): The subject of the giving of reasons was reviewed by the Full Court in Sun Alliance Insurance v Massoud [1989] VR 8, in which Gray J (at 19) quoted with approval what was said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279-290 by McHugh JA that the giving of reasons for a judicial decision serves at least three purposes. The first is to enable the parties to see the extent to which their arguments had been understood and accepted as well as the basis of a judge’s decision, the second to further judicial accountability, and the third to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future. The general principle cannot be stated without noting, as was noted in Sun Alliance [1989] VR 8, the qualification that in certain situations the reasons need not be given because the foundation for the decision will be indicated as a matter of necessary inference.

In Brooks v McShane (1996) 135 FLR 367; 89 A Crim R 195 (Tas) Crawford J said (at 379–380; 208): The learned magistrate had a duty, as part of the exercise of his judicial office, to adequately state the findings of fact and reasons for his decision for the purpose of enabling a proper understanding of the basis upon which the findings of guilt were reached: see Pettitt v Dunkley [1971] 1 NSWLR 376 at 382. That duty did not require laborious attention to detail and minute explanations of every step in the reasoning process that led to the eventual conclusion that the respective charges were proved. But the duty “at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issues”: see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259.

In R v Harling (1997) 94 A Crim R 437 (WA), Anderson J said (at 443–444): Justices are not required to give extensive or elaborate reasons. However, it is well established that when he or she decides to convict a defendant of a criminal offence, with the serious and perhaps lifelong consequences that entails, the magistrate must state to the best of his or her ability the facts he or she finds and the reasons for his or her decision: Donovan v Edwards [1922] VLR 87 at 88; Ex parte Powter; Re Powter (1946) 46 SR (NSW) 1; De Iacovo v Lacanale [1957] VR 553 at 557-558; Ladlow v Hayes (1983) 8 A Crim R 377 especially at 388.

In Harwood v Police (1998) 71 SASR 300, Duggan J said that the magistrate’s reasons should be coherent, intelligible and comprehensive (following Lawson v Lee (1978) 19 SASR 442 at 446).

[13.545] Reasons should show everything taken into account A magistrate’s reasons should show everything that has been taken into account. Like a judge sitting alone magistrates must direct themselves on essential matters. In Beames v Police (SA) (2002) 135 A Crim R 447 (SA, Bleby J) his Honour held (at 452 [20]):

[13.700]

MAINTENANCE

995

Thus, while a judge or magistrate may not need the type of warning that must be given to a jury, there must be some evidence, usually only to be gleaned from the reasons, that the judge or magistrate has in fact addressed the evidence in the manner that a jury would be required to.

In DPP v Hall (2006) 161 A Crim R 219 (NSW, Hall J) his Honour said (at 233 [63]): Whilst I accept that a busy magistrate is, generally speaking, not required to give a highly detailed decision, there is, however, consistent with authority, an obligation to identify the basis for a decision.

Failure to give reasons is an error of law which requires a conviction to be set aside: Gannon v Police (2005) 93 SASR 289 (White J). See also Reasons at [18.600].

[13.550] A different magistrate should rehear after successful review In Rook v Maynard (1993) 2 Tas R 97; 126 ALR 150; 70 A Crim R 133, Wright J said (at 114; 160; 144): In my opinion, generally speaking, once a magistrate has made an order finally disposing of a case in which his decision depends, even if only in part upon a misconception of the evidence or how it should be characterised, it is not really desirable that he should be required to reconsider the case on any basis which may require him to re-evaluate that evidence or its effect. Accordingly I am of the view that this matter should be sent back for retrial before another magistrate.

[13.555] Supervisory powers of chief magistrate Various supervisory powers of the chief magistrate were examined by Mackenzie J in: Cornack v Fingleton [2003] 1 Qd R 667; (2002) 136 A Crim R 31; Gribbin v Fingleton [2003] 1 Qd R 698; (2002) 136 A Crim R 16.

[13.560] Removal from office Cth: Federal Magistrates Act 1999 Sch 1, 2; Qld: Magistrates Act 1991 s 17; WA: Magistrates Court Act 2004 Sch 1, cl 15; Tas: Magistrates Court Act 1987 s 9; NT: Magistrates Act s 10; NSW: Constitution Act 1902 ss 52, 53; Vic: Magistrates’ Court Act 1989 s 12(b); SA: Magistrates Act 1983 s 11; ACT: Judicial Commissions Act 1994 s 5.

MAINTENANCE Definition ..................................................................................................................................... [13.700] History ......................................................................................................................................... [13.705] Some abolition ............................................................................................................................ [13.710]

[13.700] Definition In Re Oasis Merchandising Services Ltd [1997] 2 WLR 764; [1997] 1 All ER 1009 Gibson LJ said (at 766–767; 1012):

996

ROSS ON CRIME

[13.705]

In English law maintenance (the giving of assistance or encouragement to a litigant by a person with no interest in the litigation nor any other motive recognised by the law as justifying his interference) and champerty (maintenance of a plaintiff bringing an action in consideration of a share in the fruits of the action) are no longer crimes or torts.

[13.705] History In Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 80 ALJR 1441; 229 ALR 58 there was an examination of the history of maintenance, champerty and barratry (at [66] – [82]).

Other cases Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd (1997) 72 FCR 261; 142 ALR 198 (FCA); Re Daniel Efrat Consulting Services Pty Ltd; Ex parte Hawke (1999) 91 FCR 154; 162 ALR 429 (FCA, Branson J).

[13.710] Some abolition Some legislation abolishes maintenance: NSW: Maintenance Champerty and Barratry Abolition Act 1993; Vic: Crimes Act 1958 s 322A; Eng: Criminal Law Act 1967 ss 13 and 14. Yet in Tasmania, maintenance is still a crime: Tas: Criminal Code s 92.

MALICE Legislation ................................................................................................................................... Definition of malice (Latin: malitia) .......................................................................................... Definition of malice aforethought (Latin: malitia praecogitata) ............................................... Definition of maliciously ............................................................................................................

[13.900] [13.905] [13.910] [13.915]

[13.900] Legislation The word malice or maliciously appears in a great many statutes.

Interpretation In R v Cunningham [1957] 2 QB 396; [1957] 2 All ER 412; (1957) 41 Cr App R 155 (CA) Byrne J giving the court’s judgment said (at 399–400; 414; 159): [W]e have also considered, in the light of those cases, the following principle which was propounded by the late Professor C S Kenny in the first edition of his Outlines of Criminal Law published in 1902, and repeated in the sixteenth edition, edited by Mr J W Cecil Turner, and published in 1952 (ibid, at p 186): “… in any statutory definition of a crime, ‘malice’ must be taken not in the old vague sense of ‘wickedness’ in general, but as requiring either (i) an actual intention to do the particular kind of harm that in fact was done, or (ii) recklessness as to whether such harm should occur or not (ie the accused has foreseen that the particular kind of harm might be done, and yet has gone on to take the risk of it). It is neither limited to, nor does it indeed require any ill-will towards, the person injured.” The same principle is repeated by Mr Turner in his tenth edition of Russell on Crime [vol 2, p 1592].

[13.915]

MALICE

997

Approved: Fitzpatrick v The Queen (2004) 146 A Crim R 332 at 337 [20] (WA CA); R v Mostyn (2004) 145 A Crim R 304 at 319 [93] (NSW CCA); R v Grant (2002) 131 CLR 510; 55 NSWLR 80; 131 A Crim R 523 at [60] (CCA); R v Stokes and Difford (1990) 51 A Crim R 25 at 40 (NSW CCA). See also R v G [2004] 1 AC 1034; [2003] 3 WLR 1060; [2003] 4 All ER 765 (HL).

[13.905] Definition of malice (Latin: malitia) Malice requires intention or recklessness. In R v Cunningham [1957] 2 QB 396; [1957] 2 All ER 412; (1957) 41 Cr App R 155 (CA) the definition in Kenny’s Outline of Criminal Law was approved. The court said (at 399–400; 414; 159): In any statutory definition of a crime malice … [requires] either: (1) an actual intention to do the particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should occur or not (ie, the accused has foreseen that the particular kind of harm might be done and yet has gone on to take the risk of it).

Approved: R v Grant (2002) 131 CLR 510; 55 NSWLR 80; 131 A Crim R 523 at [60] (CCA).

[13.910] Definition of malice aforethought (Latin: malitia praecogitata) The common law on malice aforethought was stated in Stephen’s Digest of the Criminal Law: Murder is unlawful homicide with malice aforethought. Malice aforethought means … (a) An intention to cause the death of, or grievous bodily harm to, any person, whether such person is the person actually killed or not; (b) Knowledge that the act which causes death will probably cause the death of, or grievous bodily harm to, some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused;

Approved: Hyam v DPP [1975] AC 55; [1974] 2 All ER 41; (1974) 59 Cr App R 91 (HL) per Lord Cross (at 95; 70; 117); La Fontaine v The Queen (1976) 136 CLR 62; 11 ALR 507 per Gibbs J (at 75; 517).

[13.915] Definition of maliciously In Royall v The Queen (1991) 172 CLR 378; 54 A Crim R 53; 100 ALR 669, Mason CJ said (at 391; 677–678; 62): “Maliciously”, as well as the provisions of s 18(1)(a), link the doing of the act causing death with the requisite intent on the part of the accused. Putting to one side reckless indifference to human life, the intent required by s 18(1)(a) is related to the intended impact of the accused’s conduct on the deceased, that is, an intent to kill or inflict really serious physical harm; the definition does not stipulate that there must be an intent to kill or inflict such harm by means of the accused’s act which causes death. There is, in my view, no compelling reason why the provision should be read more narrowly so as to require an intent to kill or injure by means of such an act.

998

ROSS ON CRIME

[13.1100]

In terms of the moral culpability which is a core element of the offence of murder, the existence of the intent of the kind described should be sufficient without the need to link the intent to the mode in which the death actually takes place.

The reference to statute is the Crimes Act 1900 (NSW). Section 5 of the Crimes Act 1900 contains a definition of maliciously which Fullagar J dismissed as “a mere question-begging definition”: Mraz v The Queen (1955) 93 CLR 493 at 510.

Judge’s direction Probably from the force of Fullagar J’s description in Mraz (above) the practice of trial judges in New South Wales is not to define “maliciously”.

MANDAMUS Origin ......................................................................................................................................... The writ ..................................................................................................................................... Function ..................................................................................................................................... Jurisdiction of the Federal Court .............................................................................................. When mandamus may lie ......................................................................................................... When a judge disqualifies himself or herself .......................................................................... Declaration instead of mandamus ............................................................................................ Form ..........................................................................................................................................

[13.1100] [13.1105] [13.1110] [13.1115] [13.1120] [13.1125] [13.1130] [13.1135]

[13.1100] Origin Mandamus is from the Latin meaning “we command”.

[13.1105] The writ Originally mandamus was a writ in the name of the sovereign directed to some person or body to compel the performance of a public duty where there was no other means of redress. The writ no longer exists. What is now sought is an order in the nature of mandamus under Supreme Court Rules. Note that this is a civil proceeding even though it may arise from a criminal case.

[13.1110] Function In R v Archbishop of Canterbury (1812) 15 East 117; 104 ER 789, Lord Ellenborough said (at 136; 796): [T]his Court, in the exercise of its authority to grant the writ of mandamus, will render it as far as it can the suppletory means of substantial justice in every case where there is no other specific legal remedy for a legal right; and will provide as effectually as it can that others exercise their duty wherever the subject-matter is properly within its control.

Applied by Dixon CJ in R v Cth Court of Conciliation and Arbitration; Ex parte Ellis (1954) 90 CLR 55 (at 64-65). His Honour earlier said (at 64): Mandamus goes to compel the performance of a duty, not simply to enforce a right.

[13.1115] Jurisdiction of the Federal Court The Federal Court has jurisdiction to issue mandamus and prohibition over federal offences. See also Judiciary Act 1903 (Cth) s 39B;

[13.1135]

MANDAMUS

999

Kovess v DPP (1997) 74 FCR 297; 90 A Crim R 579 (FCA, Finn J).

[13.1120] When mandamus may lie A judge may be compelled to conduct a trial which he wrongly ruled he had no jurisdiction to hear: R v Ligertwood; Ex parte Attorney-General (SA) (1981) 26 SASR 443; 9 A Crim R 330 (FC). A judge who refuses to impose a sentence, may be compelled to. In R v Judge Hewitt; Ex parte AG (Vic) [1973] VR 484 (FC) a declaration was held a more appropriate remedy. In R v Judge Bland; Ex parte DPP [1987] VR 225 Nathan J found the remedy appropriate at the suit of the prosecution but refused mandamus in the exercise of his discretion. In Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182; 20 A Crim R 332 O’Brien CJ of Cr D remitted a committal for proper consideration by the magistrate.

[13.1125] When a judge disqualifies himself or herself In Fitzgerald v DPP (1991) 24 NSWLR 45; 56 A Crim R 262 (CA) Samuels JA said (at 51; 267): I think there is considerable room for doubt whether a judge who mistakenly, but bona fide, disqualifies himself or herself, is then compellable by mandamus to sit.

Any doubt was resolved in Re Polites; Ex parte Hoyts Corporation Pty Ltd (1991) 173 CLR 78; 100 ALR 634 (HC). Mr Deputy President Polites of the Industrial Relations Commission was part heard. He then disqualified himself because he had advised Hoyts when in private practice. The High Court granted mandamus.

[13.1130] Declaration instead of mandamus In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 581; 21–22; 265): It does not follow that, because mandamus and certiorari are inapplicable, the appellants must leave this Court without remedy. The law with respect to procedural fairness has developed in spite of the technical aspects of the prerogative writs. Moreover, had the appellants had advance notice of the Commission’s intention to report adversely, its failure to observe the requirements of procedural fairness would have entitled them to relief by way of prohibition … Prima facie, at least, these matters suggest that the appellants are entitled to declaratory relief … It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “[i]t is neither possible nor desirable to fetter …”

[13.1135] Form The usual expression of the order sought is: An order in the nature of mandamus requiring the secondnamed defendant to hear and determine the proceeding according to law.

In Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182; 20 A Crim R 332 the order sought against the magistrate was: An order that the second defendant fulfil his functions according to law and in particular that he exercise his jurisdiction under the Justices Act 1902 (NSW), s 41(6)(b).

See also Prerogative writ at [16.3500].

1000

ROSS ON CRIME

[13.1300]

MANSLAUGHTER Two classes of manslaughter .................................................................................................... Manslaughter as an alternative to murder ................................................................................ Unlawful and dangerous act ..................................................................................................... Criminal negligence .................................................................................................................. Manslaughter by omission ........................................................................................................ Battery manslaughter ................................................................................................................ The merciful verdict of manslaughter ...................................................................................... Sentence .................................................................................................................................... Provocation manslaughter; sentence ........................................................................................ Unlawful and dangerous act manslaughter .............................................................................. Criminal negligence manslaughter ........................................................................................... Manslaughter under the Codes and New Zealand ...................................................................

[13.1300] [13.1305] [13.1310] [13.1315] [13.1320] [13.1325] [13.1330] [13.1335] [13.1340] [13.1345] [13.1350] [13.1355]

[13.1300] Two classes of manslaughter The crime of manslaughter falls into two separate classes. The first is voluntary manslaughter where death or grievous bodily harm is intended. The second is involuntary manslaughter where neither death nor grievous bodily harm is intended. Voluntary manslaughter occurs as follows: • murder reduced to manslaughter because of provocation or excessive self defence; • in Victoria, South Australia and New Zealand: suicide pact (see Suicide at [19.6700]). Involuntary manslaughter is by unlawful and dangerous act, or by criminal negligence. In R v Lavender (2005) 222 CLR 67; 218 ALR 521; 155 A Crim R 458 Gleeson CJ, McHugh, Gummow and Hayne JJ said (at 70; 522; 461 [2]): As this court held in Wilson v The Queen (1992) 174 CLR 313 at 333, there are two categories of involuntary manslaughter at common law: manslaughter by an unlawful and dangerous act carrying with it an appreciable risk of serious injury; and manslaughter by criminal negligence. Involuntary manslaughter is so called because, unlike murder, it involves neither intent to cause death or grievous bodily harm to the victim, nor the other mental elements necessary for murder. In cases of voluntary manslaughter, on the other hand, the elements of murder are present, but the culpability of the offender’s conduct is reduced by reason of provocation, or substantial impairment by abnormality of mind.

[13.1305] Manslaughter as an alternative to murder In R v Kanaan (2005) 157 A Crim R 238 (NSW CCA) the court examined a great many authorities on manslaughter as an alternative to murder. In a joint judgment, the court said (at 262 [75]): The High Court’s present position The following propositions follow from those cases: (1) Manslaughter cannot be left for the determination of the jury as an alternative verdict in a murder trial unless there is evidence to support such a verdict (or unless the case on manslaughter is “viable”). (2) However, if in a murder trial the jury nevertheless returns a verdict of manslaughter where there is no evidence to support it, the judge may request them to reconsider the matter but, if they persist in that verdict, the judge must accept it. (3) If there is evidence to support an alternative verdict of manslaughter, the judge must leave that issue to the jury – notwithstanding that it has not been raised by any party, and even if a party objects (or all parties object) to the issue being left to the jury.

[13.1305]

MANSLAUGHTER

1001

(4) (a) If there is evidence to support an alternative verdict of manslaughter, and if the judge has not left that issue (for whatever reason), there has been an error of law. (b) Subject to the provisions of the Criminal Appeal Rules 1952 (NSW), r 4 (see [99] - [100]), the appellant is entitled to a new trial unless the Crown establishes that no substantial miscarriage of justice has actually occurred. (c) In determining whether there has been such a substantial miscarriage, it is not permissible to reason that the jury’s verdict of guilty of murder at the first trial excludes any consideration of the alternative verdict of manslaughter at the new trial.

In Lane v R [2013] NSWCCA 317, the Court in determining whether manslaughter should be left as alternative to murder set out the elements of the respective offences as follows at [63]:

Murder

Manslaughter by unlawful and dangerous act

Manslaughter by criminal negligence

1. Death of the victim

1. Death of the victim

1. Death of the victim

2. Death caused by the act or omission of the accused

2. Death caused by the act of the accused

2. Death caused by the act or omission of the accused

3. The accused acted or omitted to act with the relevant state of mind that is: • intention to kill; • intention grievous harm;

to do bodily

• reckless indifference human life

3. (i) The accused owed a duty of care to the victim;

3. (i) The act was unlawful (that is, criminal);

(ii) breach of that duty (by act or omission);

(ii) The act dangerous

was

(iii) identity between the act or omission constituting breach of duty, and act or omission causing death

4. The accused intended to do the act that caused death

4. The breach of duty was so grave as to merit criminal punishment

to

5. A reasonable person in the position of the accused would have appreciated that the act was one that, in the circumstances, exposed another or others to risk of serious injury See also Alternative at [1.4200].

1002

ROSS ON CRIME

[13.1310]

[13.1310] Unlawful and dangerous act The recognition of danger is objective. In R v Holzer [1968] VR 481 Smith J ruled (at 482): [T]he circumstances must be such that a reasonable man in the accused’s position, performing the very act which the accused performed, would have realized that he was exposing another or others to an appreciable risk of really serious injury.

This test survived and was followed for almost 25 years. The High Court considered it in Wilson v The Queen (1992) 174 CLR 313; 107 ALR 257; 61 A Crim R 63. The test was approved but the word “really” was to be deleted. The current position is as follows: For a person to be guilty of manslaughter by an unlawful and dangerous act, the circumstances must be such that a reasonable person in the accused’s position would have realized that he or she was exposing another or others to an appreciable risk of serious injury. It is not sufficient that there was a risk of some harm resulting, albeit not serious harm.

Supplying drugs to a person who dies from an overdose of the drugs is not sufficient to constitute unlawful and dangerous act manslaughter: Burns v The Queen [2012] HCA 35.

Intent In R v Haywood [1971] VR 755 Crockett J ruled (at 758): If there is to be mens rea in a case of manslaughter by an unlawful and dangerous act it seems to me that where the unlawful act is said to be an assault and battery, then there must be an intentional assault and battery, and if an act which is said to constitute the assault and battery in question is an involuntary one then I find it difficult to believe such an act can sustain a verdict of manslaughter. If the jury are not satisfied that it was a voluntary act in the sense of being an intentional assault and battery, it is my view that the correct verdict would be one of acquittal.

In R v Besim (2004) 148 A Crim R 28 (Vic, Redlich J) his Honour made rulings and to do so analysed a great many authorities. His Honour held that the act was to be objectively assessed and (at [42]) emotions or state of mind were not relevant to whether the act was dangerous.

[13.1315] Criminal negligence Legislation NT Criminal Code s 43AL (generally), s 160(c) (manslaughter), s 43AT (intoxication); ACT Criminal Code s 21 (generally), s 32 (intoxication). In Nydam v The Queen [1977] VR 430 (CCA) the court said in a joint judgment (at 445): In order to establish manslaughter by criminal negligence, it is sufficient if the prosecution shows that the act which caused the death was done by the accused consciously and voluntarily, without any intention of causing death or grievous bodily harm but in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.

Approved: R v Johnston (2007) 173 A Crim R 540 (SA CCA) at 549 [49]; Omodei v Western Australia (2006) 166 A Crim R 40 at 44 [12] (WA, Johnson J); R v Osip (2000) 2 VR 595; 116 A Crim R 578 (at 600; 583–584 [21]) (CA); Wilson v The Queen (1992) 174 CLR 313; 107 ALR 257; 61 A Crim R 63 at 333, 271, 76

[13.1330]

MANSLAUGHTER

1003

McKenna v The Queen (1992) 7 WAR 455; 63 A Crim R 452 at 461, 457 (CCA); R v Taylor (1983) 9 A Crim R 358 (Vic CCA). Malice is not an element of the offence: R v Lavender (2005) 222 CLR 67; 218 ALR 521; 155 A Crim R 458 (approving Nydam). Other cases Pacino v The Queen (1998) 105 A Crim R 309 at 320–321 (WA CCA); R v Guise (1998) 101 A Crim R 143 (Qld CA); R v Hodgetts [1990] 1 Qd R 456; (1989) 44 A Crim R 320 (CA); Agnew v The Queen [2003] WASCA 188 at [52]ff (WA CCA).

[13.1320] Manslaughter by omission In Jones v United States 308 F 2d 307 (1962) (US Court of Appeals, District of Columbia Circuit) the court said (at 310): There are at least four situations where the failure to act may constitute the breach of a legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid.

This is one of the many cases cited with approval in R v Taktak (1988) 14 NSWLR 226 at 243–244, 250; 34 A Crim R 334 at 351, 358 (CCA). In R v Hall (1999) 108 A Crim R 209 (NSW) Bell J held (at 211–212 [13]): Before a person may be convicted of manslaughter by omission it is necessary to identify a legally recognised duty to act to which the accused was subject. One recognised duty is that of a person who voluntarily assumes the care of another who, by reason of age or incapacity, is unable to care for himself or herself. The failure to provide medical assistance and/or food to that person may expose the carer to liability for manslaughter.

This issue was also raised in R v Lawford (1993) 61 SASR 542; 69 A Crim R 115 (CCA) and R v MR (2000) 116 A Crim R 23 (FCA). In Burns v The Queen [2012] HCA 35, Gummow, Hayne, Crennan, Kiefel and Bell JJ noted that it is only in rare cases that the law will impose a positive duty to act, which is a precondition to liability for manslaughter by omission. Their Honors stated: Criminal liability does not fasten on the omission to act, save in the case of an omission to do something that a person is under a legal obligation to do [144] As a general proposition, the law does not impose an obligation on individuals to rescue or otherwise to act to preserve human life [145] Such an obligation may be imposed by statute or contract or because of the relationship between individuals. The relationships of parent and child, and doctor and patient, are recognised as imposing a duty of this kind. A person may voluntarily assume an obligation to care for a helpless person and thereby become subject to such a duty [146] Outside limited exceptions, a person remains at liberty in law to refuse to hold out her hand to the person drowning in the shallow pool [147].

[13.1325] Battery manslaughter Battery manslaughter no longer exists as a separate form of manslaughter: Wilson v The Queen (1992) 174 CLR 313; 107 ALR 257; 61 A Crim R 63.

[13.1330] The merciful verdict of manslaughter At one time it was argued that in a murder case a jury has a constitutional right to return a merciful verdict of manslaughter. Now the jury has been held to have a power rather than a right to return a manslaughter verdict.

1004

ROSS ON CRIME

[13.1335]

In Stanton v The Queen (2003) 77 ALJR 1151; 198 ALR 41 Gleeson CJ, McHugh and Hayne JJ said (at 1156–1157; 48 [31]): The nature of the power, as distinct from the right, in contemplation was discussed by this court in Gammage v R (1969) 122 CLR 444. The issue normally arises in cases, unlike the present, where an accused is charged with murder, and the trial judge, having formed the view that there is no evidentiary foundation for an alternative verdict of not guilty of murder but guilty of manslaughter, does not leave manslaughter to the jury.

See also Simms v The Queen (2004) 148 A Crim R 433 at 442 [51] (WA CCA).

[13.1335] Sentence Manslaughter convictions can lead to a wide range of sentences. In Tajber v The Queen (1986) 13 FCR 524; 72 ALR 299 (FCA) Gallop J said (at 538; 314): Manslaughter is a crime which encompasses a diverse group of situations ranging in their degree of heinousness from cases akin to murder to those where no sanction, or only a symbolic one, is called for. It is notorious that the circumstances of the commission of the crime of manslaughter can attract widely disparate sentences (R v Williscroft [1975] VR 292 at 299; R v Pellizzeri (1982) 8 A Crim R 31).

In R v Papazisis and Bird (1991) 51 A Crim R 242 (Vic CCA) the court said (at 245): It is in fact notorious that manslaughter is a crime which attracts a wide range of sentences, perhaps a wider range than any other crime. The reason for this is simply that the circumstances in which the crime is committed can vary infinitely. Any reference to statistics of sentences imposed will bear out what we have said.

In R v Syrech (2006) 18 NTLR 160; 204 FLR 22; 165 A Crim R 129 (CA) the principal offender, convicted of murder, had killed the victim and dismembered the body. On a prosecution appeal against the sentence of the main helper, the court held that it was an aggravating circumstance for the respondent to have hit the deceased and help dispose of the body. Appeal dismissed.

[13.1340] Provocation manslaughter; sentence Provocation can reduce murder to manslaughter. The following cases decided the appropriate sentence: R v Sebo; Ex parte Attorney-General (2007) 179 A Crim R 24 (Qld CA); R v Mulhall and Parker (2002) 131 A Crim R 597 (NT, Riley J); R v Morton (2001) 11 NTLR 97 (CCA); R v Bolt (2001) 126 A Crim R 284 (NSW CCA); R v Dimond (2000) 118 A Crim R 188 (NSW, Badgery-Parker AJ); R v Wilson (1995) 81 A Crim R 270 (NT, Kearney J); R v Alexander (1994) 78 A Crim R 141 (NSW, Hunt CJ at CL); R v Kinmond (1982) 5 A Crim R 413 (WA CCA). Note that provocation is abolished in Tasmania and Victoria. See also Causation at [3.700]. In R v Alexander (1994) 78 A Crim R 141 (NSW, Hunt CJ at CL) his Honour said (at 144) that:

[13.1350]

MANSLAUGHTER

1005

[M]atters which have been taken into account in provocation manslaughter cases are: (1) the degree of provocation offered (or, alternatively, the extent of the loss of self-control suffered), which when great has the tendency of reducing the objective gravity of the offence; (2) the time between the provocation (whether isolated or cumulative in its effect) and the loss of self-control, which when short also has the tendency of reducing the objective gravity of the offence; and (3) the degree of violence or aggression displayed by the prisoner, which when excessive has the tendency of increasing the objective gravity of the offence.

These propositions have been followed many times such as: R v Bolt (2001) 126 A Crim R 284 at 286 (NSW CCA); R v Mulhall and Parker (2002) 131 A Crim R 597 at 600 (NT, Riley J). See also R v Kinmond (1982) 5 A Crim R 413 (WA CCA); R v Wilson (1995) 81 A Crim R 270 (NT, Kearney J).

[13.1345] Unlawful and dangerous act manslaughter DPP v McMaster (2008) 19 VR 191; 185 A Crim R 247 (CA); R v McDougall [2007] 2 Qd R 87; (2006) 166 A Crim R 191 (CA); R v Wilson (2005) 62 NSWLR 346 (CCA); GAS v The Queen (2004) 217 CLR 198; 206 ALR 116; R v PP (2003) 142 A Crim R 369 (Vic CA); DPP v Whiteside (2000) 1 VR 331; 114 A Crim R 234 (CA).

[13.1350] Criminal negligence manslaughter R v Johnston (2007) 173 A Crim R 540 (SA CCA); R v George (2004) 149 A Crim R 38 (NSW CCA); R v Osip (2000) 2 VR 595; 116 A Crim R 578 (CA); D’Amico v The Queen (2000) 33 MVR 148 (WA CCA); R v Pesnak (2000) 112 A Crim R 410 (Qld CA); R v Richards [1998] 2 VR 1 (CA); R v Taylor (1983) 9 A Crim R 358 (Vic CCA); Laporte v The Queen [1970] WAR 87 (CCA); R v Watson [1960] Qd R 332 (CCA). See also the exorcism cases: R v Lee [2006] 3 NZLR 42 (CA); R v Mika and Sagato (2000) 116 A Crim R 31 (NSW, Grove J); R v Vollmer [1996] 1 VR 95 at 173–174 (CCA).

1006

ROSS ON CRIME

[13.1355]

[13.1355] Manslaughter under the Codes and New Zealand Qld: Criminal Code s 303; WA: Criminal Code s 280; Tas: Criminal Code s 159; NT: Criminal Code s 163; NZ: Crimes Act 1961 s 171. The Queensland Criminal Code provides: 303. A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of “manslaughter”.

The provisions of the other codes are to the same effect. The New Zealand Crimes Act 1961 (NZ) provides: 171. Except as provided in section 178 of this Act, culpable homicide not amounting to murder is manslaughter.

(s 178 is infanticide).

MAN-TRAP The offence ................................................................................................................................ Legislation ................................................................................................................................. Intent .......................................................................................................................................... Other cases ................................................................................................................................

[13.1500] [13.1505] [13.1510] [13.1515]

[13.1500] The offence Legislation makes it an offence to set a spring gun or man-trap or trap to hurt or kill, or which is likely or intended to do so.

[13.1505] Legislation Qld: Criminal Code s 327; WA: Criminal Code s 305 (setting dangerous things); Tas: Criminal Code s 179; NT: Criminal Code s 185; NSW: Crimes Act 1900 s 49; Vic: Crimes Act 1958 s 26; ACT: Crimes Act 1900 s 28(2)(c); NZ: Crimes Act 1961 s 202; Eng: Offences Against the Person Act 1861 s 31. Can: Criminal Code s 247.

[13.1510] Intent In R v Williams [1958] Qd R 185 (CCA) Stanley J said (at 193): If one has the wrongful intent it does not matter if he chooses a place or manner that would defeat the intent; if one does not have the intent, he is not liable unless he chooses a place or manner of use which makes the unintended result likely.

[13.1705]

MARITAL COERCION

1007

Approved: Hogarth v The Queen (1965) 114 CLR 48.

[13.1515] Other cases R v Cockburn [2008] QB 882; [2008] 2 All ER 1153; [2008] 2 Cr App R 4 (CA); R v Munks [1964] 1 QB 304; [1963] 3 All ER 757; (1963) 48 Cr App R 56.

MARITAL COERCION Common law ............................................................................................................................. [13.1700] Statutory abolition of the presumption of marital coercion .................................................... [13.1705]

[13.1700] Common law At common law, if a married woman established that her criminal act was committed in her husband’s presence, she was presumed to be acting under his coercion. The defence is a special form of duress. The common law was discussed in Ewart v Fox [1954] VLR 699 (FC).

[13.1705] Statutory abolition of the presumption of marital coercion Tas: Criminal Code s 55; NSW: Crimes Act 1900 Sch 3(4); Vic: Crimes Act 1961 s 336; SA: Criminal Law Consolidation Act 1935 s 328A; ACT: Crimes Act 1900 s 289; NZ: Crimes Act 1961 s 24(3); Can: Criminal Code s 18. The statutes do not abolish the defence. At most they abolish the presumption. See also Goddard v Osborne (1978) 18 SASR 481; 21 ALR 189 (FC). In R v Williams [1998] 4 VR 301 (CA) Hampel AJA said (at 305): In order to determine “the degree of dependence whether economic or otherwise”, the question of the accused woman’s vulnerability must be relevant because the degree of dependence may involve the effect of pressure by that husband in that specific relationship on that wife. In determining the degree of dependence of the accused wife the jury is entitled to consider all relevant evidence which bears on the nature and degree of pressure relied upon in the defence as raised. This may include evidence of events within and outside the marriage if they bear upon the question of that dependence. All that becomes part of the circumstances in which she was placed within the meaning of subs (3). Although in one sense the whole of the wife’s background and history may be said to be relevant to the question of the degree of her dependence on her husband, there must, I think, be some limit on what evidence is admissible of the accused woman’s history in the context of the defence under s 336. To be admissible as relevant to the consideration of marital coercion evidence of events prior to and outside the relationship between the husband and wife must, I think, be shown to have a causal connection with the nature and the degree of dependence by the wife within the marriage. In other words, it must be probative of the wife’s dependence in the sense contemplated by subs (4) and so probative of the kind of coercion relied on in her defence. The mere existence of historical facts

1008

ROSS ON CRIME

[13.1900]

such as the wife’s upbringing in a disciplinarian home or prior involvement in overbearing relationships does not of itself provide a basis of admissibility. It is of course not possible to define the nature of the evidence which may be admissible or to limit its categories. Generally speaking, however, questions of the degrees of dependency within a relationship are matters for expert opinion especially when the issue is whether and to what extent prior experiences of the wife create or affect her dependency within the marriage and so lead to coercion.

See also Battered woman syndrome at [2.600]; and Duress at [4.5900].

MEDIFRAUD False claims by medical practitioners ...................................................................................... Purpose ...................................................................................................................................... Nature of the offence ................................................................................................................ The defence under s 129(3) ...................................................................................................... Honest but mistaken belief as a defence ................................................................................. Offences by pharmacists ........................................................................................................... Prosecution proof ...................................................................................................................... Relevant offence ........................................................................................................................ Sentence ....................................................................................................................................

[13.1900] [13.1905] [13.1910] [13.1915] [13.1920] [13.1925] [13.1930] [13.1935] [13.1940]

[13.1900] False claims by medical practitioners Health Insurance Act 1973 (Cth) s 129 False statements etc (2) A person shall not furnish, in pursuance of this Act or of the regulations, a return or information that is false or misleading in a material particular.

Penalty: $10,000 or imprisonment for 5 years. Penalty: $500 or imprisonment for 6 months. (3) In a prosecution of a person for an offence against this section, it is a defence if the person proves that he or she did not know, and had no reason to suspect, that the statement, document, return or information, made, issued, presented or furnished by him or her was false or misleading, as the case may be.

[13.1905] Purpose In R v White [1979] Qd R 248; (1979) 23 ALR 432 (CCA), Stable SPJ said (at 254; 437): The purpose of s 129 is to ensure that the Health Insurance Fund supported largely by the taxpayer, is not made the target of false or misleading claims. It says too that a person shall not furnish (obviously for the purpose of obtaining money from the fund) a return or information that is false or misleading in a material particular. The making of a claim on Form 1C for “services specified in the attached assignment forms” is an activity in the control of the practitioner who signs the form – not by an agent, but personally.

[13.1910] Nature of the offence The offence is one of strict liability: R v White [1979] Qd R 248; (1979) 23 ALR 432 (CCA). In R v Sender (1982) 7 A Crim R 334 (Tas), Everett J ruled (at 343): For these reasons, I propose to direct the jury to the following effect: 1. Mens rea is not an essential element of a charge under s 129(1) of the Act.

[13.1925]

MEDIFRAUD

1009

2. Section 129(1) of the Act contains three elements, each of which the prosecution must prove, to the satisfaction of the jury, beyond reasonable doubt before it can lawfully convict the accused. Those elements are: (a) that the accused issued a document as specified in the particular count of the indictment which it is considering; (b) that the document was misleading in a material particular, in the manner alleged in the count; and (c) the document was capable of being used in connexion with an application for payment of an amount under the Health Insurance Act 1973 (subject to further directions, as matters of law, in respect of that third element).

In R v Giordano (1982) 33 SASR 161; 7 A Crim R 403; 47 ALR 401 (CCA), Mitchell J (with whom Bollen J agreed) said (at 166; 407): I am inclined to believe, however, that the onus of excluding mistake, inadvertence or carelessness in the presentation of the document lies upon the Crown.

Disapproved: R v Ward (1989) 42 A Crim R 56 at 66 (NSW CCA). See also Strict liability at [19.6100].

[13.1915] The defence under s 129(3) See R v Giordano (1982) 33 SASR 161; 7 A Crim R 403; 47 ALR 401 (CCA) (at 166; 407): The onus of proof in relation to knowledge has been reversed. It cannot be a mere evidentiary onus because the onus is fairly and squarely cast upon the accused person of proving that he did not know and had no reason to suspect that the statement was false or misleading as the case may be. If he fails to prove that on the balance of probabilities can it be said that the Crown still has to prove beyond reasonable doubt that the document was false to his knowledge? I do not this that it can.

[13.1920] Honest but mistaken belief as a defence Any mistaken belief must, according to R v Ward (1989) 42 A Crim R 56 (NSW CCA) be both honest and reasonable. Campbell and Allen JJ said (at 71–72): The consequences of the construction which we have placed on s 129 is that it does not suffice for the accused to prove merely that he believed that the statement was true and that he had no suspicion that it was untrue. Nor does it suffice for him to prove that he did not intend to deceive. That is because he must prove that when he made the false statement he had no reason to suspect that the statement was false. If on what the accused knew at the time he made the statement, that is on what was then present in his conscious awareness, a reasonable person would have suspected that the statement was untrue, the accused is guilty of the offence even if he was not in fact suspicious and, accordingly, had no intention to deceive.

[13.1925] Offences by pharmacists National Health Act 1953 (Cth) s 103 Offences (1) An approved pharmacist shall not give, promise or offer, a gift, rebate or reward as an inducement to a person to present, or in consideration of a person’s presenting, a prescription for the supply of a pharmaceutical benefit.

1010

ROSS ON CRIME

[13.1930]

Penalty: $1,000 (2) Except as prescribed, a pharmacist to whom a prescription is presented shall not: (a) supply, in purported pursuance of this Part, anything other than the pharmaceutical benefit as specified in the prescription; or (b) in exchange for the prescription make a payment in money or give any other consideration to the person presenting the prescription.

Penalty: $2,000 or imprisonment for 12 months, or both. (2A) … (3) An approved pharmacist, approved medical practitioner or approved hospital authority shall not permit a person other than a medical practitioner or pharmacist to dispense a pharmaceutical benefit except under the direct supervision of a medical practitioner or pharmacist.

Penalty: $2,000 or imprisonment for 12 months, or both. … 134C. In a prosecution under this Act of a person making a statement, or issuing or presenting a document, that is false or misleading in a material particular it is a defence if the person charged shows that the person did not know and had no reason to suspect that the statement or document was false or misleading as the case may be.

[13.1930] Prosecution proof In Sallur v Garrity (1991) 108 FLR 420 (WA) Commr O’Connor said (at 427): [T]he prosecution has the onus upon it of establishing beyond reasonable doubt that the claim resulted from a mistake, inadvertence or carelessness: R v Giordano (1982) 33 SASR 161; 47 ALR 401; 7 A Crim R 403.

[13.1935] Relevant offence An offence under the National Health Act 1953 (Cth) s 103(2) is not a “relevant offence” as defined in the Health Insurance Act 1973 (Cth) s 124B(1): Minister v Thoo (1988) 78 ALR 307 (FCA).

[13.1940] Sentence Sentencing is pursuant to Crimes Act 1914 (Cth) s 16A. In R v Corbett (1991) 52 A Crim R 112 (NSW CCA) a medical practitioner defrauded the Health Insurance Commission of $560,000 by some 92 false statements. Sentence was seven and a half years imprisonment with a minimum of four years. In R v Zongas (No 60302/97, 31 October 1997, NSW CCA, unreported) an optometrist defrauded the Health Insurance Commission of $61,000 by more than 1000 false and forged claims. Sentence: nine months by periodic detention.

MEMORY Refreshing memory ................................................................................................................... Legislation ................................................................................................................................. Recovered or repressed memory – opinion evidence .............................................................. Recovered memory ................................................................................................................... Accused’s loss of memory ....................................................................................................... Articles ......................................................................................................................................

[13.2100] [13.2105] [13.2110] [13.2115] [13.2120] [13.2125]

[13.2100]

MEMORY

1011

[13.2100] Refreshing memory The memory of a witness may be refreshed either in or out of court. In R v Da Silva [1990] 1 WLR 31; [1990] 1 All ER 29; (1989) 90 Cr App R 233 (CCA) Stuart-Smith LJ giving the judgment of the court said (at 36; 33; 238): In our judgment, therefore, it should be open to the judge, in the exercise of his discretion and in the interests of justice, to permit a witness who has begun to give evidence to refresh his memory from a statement made near to the time of events in question, even though it does not come within the definition of contemporaneous, provided he is satisfied: (1) that the witness indicates that he cannot now recall the details of events because of the lapse of time since they took place; (2) that he made a statement much nearer the time of the events and that the contents of the statement represented his recollection at the time he made it; (3) that he had not read the statement before coming into the witness-box; (4) that he wished to have an opportunity to read the statement before he continued to give evidence.

In R v Pachonic [1973] 2 NSWLR 86 Lee J ruled (at 87–88): There is authority which I think should be followed that it is proper in many circumstances for a prosecution witness to refresh his memory, out of court, from a document made contemporaneously with or soon after the events about which he is giving evidence: R v Richardson [1971] 2 QB 484.

R v Richardson [1971] 2 QB 484; [1971] 2 All ER 773; (1971) 55 Cr App R 244 at 489, 777, 250 (CA), approved Lau Pak Ngam v The Queen [1966] Crim LR 443 at 444 (HK), in which it was said: Testimony in the witness box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a crime closer to the events in question … Refusal of access to statements would tend to create difficulties for honest witnesses but be likely to do little to hamper dishonest witnesses.

The Court of Appeal went on to say (at 490; 777; 251): But there can be no general rule which incidentally would be unenforceable, unlike the rule as to what can be done in the witness box that witnesses may not before trial see the statements they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed one can imagine many cases, particularly those of a complex nature, where such a rule would militate very greatly against the interests of justice.

In R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 (CCA) Zeeman J said (at 30; 176): A witness may use a variety of methods to “refresh” his or her memory many of which methods may not truly result in the memory being refreshed and some of which may result in there being engendered in the mind of the witness a pseudo recollection of events. Before coming to court a witness may refresh his or her memory in any way that the witness considers to be appropriate: King v Bryant (No 2) [1956] QSR 570 at 583-584. The means adopted by a witness with a view to refreshing his or her memory go to weight and not to admissibility.

In Hetherington v Brooks [1963] SASR 321 Travers J said (at 325): It is quite often a convenient method of taking evidence, in the absence of objection, to allow a witness to read his notes, and in many cases, such, for instance, as a doctor giving the medical history which was given to him months before, or a police officer giving a series of measurements he had taken at the scene of the accident, considerations of accuracy make it desirable that he do so, but where the witness is dealing with controversial facts or where objection is made, it seems to me to be highly desirable, unless the witness is prepared to pledge his oath that he is unable to give the real substance of the story without refreshing his memory from the document, that he should proceed to tell his story without the document until he needs to refresh his memory on the aspect of the matter. He should then tell the Court that he has reached such a stage, and that he wishes to refresh the memory, and in that event, recourse may be had to the document to refresh his memory on that particular subject. Having refreshed his memory, by looking at it, he then should tell the

1012

ROSS ON CRIME

[13.2105]

Court what he has to say. A witness’s swearing to the need to refresh the memory is often a very important part of the material upon which the Court may judge his veracity.

See also De Bono v Neilsen (1996) 88 A Crim R 46 at 53 (Vic Coldrey J).

[13.2105] Legislation Legislation refers to refreshing memory.

Australia Under Uniform Evidence Acts s 32 a witness can revive a memory in court by using a document provided the court gives leave. Under Uniform Evidence Acts s 34 a witness may be able to refresh memory out of court.

New Zealand In New Zealand the rules on refreshing memory are quite strict. NZ: Evidence Act 2006 s 90.

England In England a witness can refresh memory from a document or sound recording. Eng: Criminal Justice Act 2003 s 139.

[13.2110] Recovered or repressed memory – opinion evidence In R v Bartlett [1996] 2 VR 687 (CA) Winneke P with whom the others agreed said (at 695): It seems to me, however, that questions of whether there is such a phenomenon as a “suppressed memory” and, if so, whether it is likely to provide accurate recall; or whether recall of events suppressed for many years are likely to be affected or displaced by other similar events, are questions which must surely be outside the ken of the lay person. Quite clearly, as his Honour noted, they have been the subject of much research which has produced a division of expert opinion. The learned judge seemed to think that because there was such a division of opinion it was a matter which could be used to exclude the evidence. In my view, that cannot be right. The fact that experts speaking in a field which is truly an “expert’s field” do not speak with one voice cannot, in my view, assist in determining whether such opinions are admissible in evidence.

See also R v Eishauer (unreported, NSW CCA, 19 September 1997). Child (Accommodation syndrome) at [3.1835]; and EMDR at [5.900].

[13.2115] Recovered memory In R v Bartlett [1996] 2 VR 687 (CA) Winneke P, with whom the others agreed, said (at 695): The question of “suppressed memory” arose in the recent case of R v Thorne (unreported, Court of Criminal Appeal, 19 June 1995). In that case the accused had been charged with a number of counts of sexually abusing the complainant many years before complaint was made. The complainant denied that she was recalling “forgotten” events, but there was evidence to show that she had only complained years after the events occurred and had done so after she had received “therapeutic counselling” … Ashley J pointed out:

[13.2125]

MEMORY

1013

It should be added, for sake of completeness that there is controversy whether early childhood memories of sexual abuse can be recovered by therapists. Believers refer to “repressed memory syndrome”; non believers to “false memory syndrome”. There is a great deal of literature on the subject. It does not speak with one voice. Different responses of courts to aspects of the problem are revealed by R v Norman (1993) 87 CCC (3d) 153 at 168-169 (Ontario Court of Appeal) and R v The Queen (1994) 11 CRNZ 402 (Tipping J High Court of New Zealand).

Where recovered memory is an issue the jury should be directed on the subject: Christophers v The Queen (2000) 23 WAR 106; 116 A Crim R 280 (CCA). Recovered memory will be subject to a Longman warning.

[13.2120] Accused’s loss of memory A judge should give a proper direction where an accused says he has no memory of the events in question. In Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111 (PC) Lord Devlin, giving the advice of the Board, said (at 459; 121): No astute man, if he were considering what sort of lies to tell, would think that a story about loss of memory was the most convincing that the circumstances permitted. This is a case in which it is just as easy to say that the accused’s defence was impeded by loss of memory as that it was assisted by it. In Russell v HM Advocate (1946 SC(J) 37) the Lord Justice-Clerk said (at p 48): Loss of memory in a person otherwise normal and sane plays its full part, if it is sufficiently proved, in increasing the onus on the Crown, and in raising doubts to which it may be the duty of the jury to give effect in a verdict of acquittal after investigation of the whole case. In referring to this dictum in R v Podola [1960] 1 QB 325 Lord Parker CJ said (at 356) that it did not mean that strictly the onus was any greater, but that: A judge should point out to a jury that they must take into consideration carefully the fact that the accused cannot remember the events. Just as a faked loss of memory may make it easier for a jury to draw the inference of guilt, so a genuine loss of memory may make it more difficult, for a jury must then reflect that by the force of circumstances they have heard only one side of the case. Their lordships consider that the learned Chief Justice should have pointed this out to the jury and that he did not hold the balance even in this respect.

In R v Arnold (2003) 40 MVR 488 (SA CCA) Mullighan J, with whom the others agreed, said (at 499 [68]): Clearly there are cases where the accused has suffered a genuine loss of memory and the jury must be directed to take that matter into consideration carefully, for example Broadhurst v The Queen [1964] AC 441; [1964] 1 All ER 111; [1964] WLR 38; R v Richards 64 SASR 42; (1994) 77 A Crim R 1 and R v Singh (2003) 86 SASR 473 at [135]-[137]. However, that is not the present case.

[13.2125] Articles S Armstrong, “Memory Syndrome under Scrutiny” (1995) Law Soc Bulletin (SA) (No 1) 20; C Thompson, “Memory Repression in Child Sex Abuse Cases” (1994) 68 Law Inst J 1162; N Hampton, “Recovered Memory Syndrome v False Memory Syndrome” [1995] NZLJ 154; I Freckelton, “Repressed Memory Syndrome: Counter Intuitive or Counter Productive” (1996) 20 Crim LJ 7; KR McConley, “The Subconscious on the Stand: Comments on the Reporting of Recovered Memories” (1996) 69 Reform 19;

1014

ROSS ON CRIME

[13.2300]

R Guilliat, Talk of the Devil: Repressed Memory and the Ritual Abuse Witch-hunt (1996 Text Publishing); M Redmayne, “A Corroboration Approach to Recovered Memories of Sexual Abuse: A Note of Caution” (2000) 116 LQR 147.

MENS REA There must be an act, not just a thought ................................................................................. Meanings ................................................................................................................................... The beginning of wisdom ......................................................................................................... Nature of the offence ................................................................................................................ Presumption that mens rea is an element ................................................................................ Imputed by statute .................................................................................................................... Cannot be the subject of opinion or belief .............................................................................. Concept of mens rea does not apply under the Codes ............................................................ Where mens rea does not apply ............................................................................................... Writings ..................................................................................................................................... Other references ........................................................................................................................

[13.2300] [13.2305] [13.2310] [13.2315] [13.2320] [13.2325] [13.2330] [13.2335] [13.2340] [13.2345] [13.2350]

[13.2300] There must be an act, not just a thought In 1477 Brian CJ said: The thought of man is not triable, for the devil himself knows not the thought of man (Year Book 17 Ed IV 1).

Approved: Greene v The Queen (1949) 79 CLR 353 per Latham CJ at 357. (In the Law French in which the Year Book is written, the words are car comen erudition eft q’ l’entent d’un home ne ferr trie, car le Diable n’ad conufrance de l’entent de home.) (Note also the Latin maxim cogitationis poenam nemo patitur – no one is to be punished for thoughts.)

[13.2305] Meanings In a bigamy case Stephen J said in R v Tolson (1889) 23 QBD 168; [1886-90] All ER Rep 26 (CCR) (at 185; 36): My view of the subject is based upon a particular application of the doctrine usually, though I think not happily, described by the phrase non est reus, nisi mens sit rea. Though this phrase is in common use, I think it most unfortunate, and not only likely to mislead, but actually misleading, on the following grounds. It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a mens rea, or “guilty mind”, which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. Mens rea means in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention to have forcible connection with a woman, without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name.

R v G [2004] 1 AC 1034; [2003] 3 WLR 1060; [2003] 4 All ER 765 (HL) was an arson case. In his leading judgment Lord Bingham said (at 1055; 784 [32]): [I]t is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause

[13.2315]

MENS REA

1015

the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another.

James Fitzjames Stephen said of actus non facit reum nisi mens sit rea: “not so much a maxim as a minim” A History of the Criminal Law of England (London: Macmillan, 1883) vol II, 94.

[13.2310] The beginning of wisdom In the rape case R v Morgan [1976] AC 182; [1975] 2 All ER 347; (1975) 61 Cr App R 136 (HL) Lord Hailsham said (at 213; 361; 150): The beginning of wisdom in all the “mens rea” cases to which our attention was called is, as was pointed out by Stephen J in R v Tolson (1889) 23 QBD 168; [1886-90] All ER Rep 26, that “mens rea” means a number of quite different things in relation to different crimes. Sometimes it means an intention, eg in murder, “to kill or to inflict really serious injury”. Sometimes it means a state of mind or knowledge, eg in receiving or handling goods “knowing them to be stolen”. Sometimes it means both an intention and a state of mind, eg “Dishonestly and without a claim of right made in good faith with intent permanently to deprive the owner thereof”. Sometimes it forms part of the essential ingredients of the crime without proof of which the prosecution, as it were, withers on the bough. Sometimes it is a matter, of which, though the “probative” burden may be on the Crown, normally the “evidential” burden may usually (though not always) rest on the defence, eg “self defence” and “provocation” in murder, though it must be noted that if there is material making the issue a live one, the matter must be left to the jury even if the defence do not raise it. In statutory offences the range is even wider since, owing to the difficulty of proving a negative, Parliament quite often expressly puts the burden on the defendant to negative a guilty state (see per Lord Reid in Sweet v Parsley [1970] AC at 150) or inserts words like “fraudulently”, “negligently”, “knowingly”, “wilfully”, “maliciously” which import special types of guilty mind, or even imports them by implication by importing such word as “permit” (cf Lord Diplock [1970] AC at 150 , in the same case) or as in Warner v Metropolitan Police Comr [1969] AC [ at 256, prohibit the “possession” of a particular substance, or as, in Sweet v Parsley [1970] AC at 132, itself, leaves the courts to decide whether a particular prohibition makes a new “absolute” offence or provides an escape by means of an honest, or an honest and reasonable belief. Moreover of course, a statute can, and often does, create an absolute offence without any degree of mens rea at all.

In Kural v The Queen (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 Mason CJ, Deane and Dawson JJ said (at 504; 659; 13): Because the mental elements in different crimes vary widely it is impossible to make a statement which is universally valid for all purposes about the essential elements of a guilty mind. Depending upon the nature of the particular offence the requirement of a guilty mind may involve intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence. Where the offence charged is the commission of a proscribed act, a guilty mind exists when an intention on the part of the accused to do the proscribed act is shown. The problem then is one of proof. How does one prove the existence of the requisite intention? Sometimes there is direct evidence in the form of an admission by the accused that he intended his conduct to involve the forbidden act. More often, the existence of the requisite intention is a matter of inference from what the accused has actually done. The intention may be inferred from the doing of the proscribed act and the circumstances in which it was done.

In Kural the majority acknowledged that there was “degree of divergence between the majority judgments in He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449” at 504; 659;13 (CLR).

[13.2315] Nature of the offence In R v Sault Ste Marie [1978] 2 SCR 1299 (SCC) Dickson J, delivering the judgment of the Court, said (at 1325–1326):

1016

ROSS ON CRIME

[13.2320]

[T]here are compelling grounds for the recognition of three categories of offences rather than the traditional two: 1. Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge, or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence. 2. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault. Offences which are ciminal in the true sense of the first category. Public welfare offences would prima facie be in the second category. They are not subject to the presumption of full mens rea. An offence of this type would fall into the first category only if such words as “wilfully”, “with intent”, “knowingly”, or “intentionally” are contained in the statutory provision creating the offence. On the other hand, the principle that punishment should in general not be inflicted on those without fault applies. Offences of absolute liability would be those in respect of which the Legislature had made it clear that guilt would follow proof merely of the proscribed act. The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category.

Approved: He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 at 533–534 (CLR) per Gibbs CJ with whom Mason J agreed at 546.

[13.2320] Presumption that mens rea is an element In Sherras v De Rutzen [1895] 1 QB 918; [1895-99] All ER Rep 1167 (QBD) Wright J said (at 921; 1169): There is a presumption that mens rea, an evil intention, or a knowledge of the wrongfulness of the act, is an essential ingredient in every offence; but that presumption is liable to be displaced either by the words of the statute creating the offence or by the subject-matter with which it deals, and both must be considered.

Applied: Lim Chin Aik v The Queen [1963] AC 160; [1963] 2 WLR 42; [1963] 1 All ER 223 at 173 (PC); R v Warner [1969] 2 AC 256 at 272 (HL); Cameron v Holt (1980) 142 CLR 342 at 346, 348. In Gammon Ltd v Attorney-General (Hong Kong) [1985] 1 AC 1; [1984] 2 All ER 503; 80 Cr App R 194 (PC), Lord Scarman delivering the advice of the Judicial Committee said (at 14; 508; 199): (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is “truly criminal” in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.

[13.2325]

MENS REA

1017

Approved: He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 at 528, 530 (CLR) (Gibbs CJ), 566 (Brennan J). Jordan CJ described the mens rea of an offender in R v Turnbull (1943) 44 SR (NSW) 108 (CCA) (at 109): [A]ssuming his mind to be sufficiently normal for him to be capable of criminal responsibility, it is also necessary at common law for the prosecution to prove that he knew that he was doing the criminal act which is charged against him, that is, that he knew that all the facts constituting the ingredients necessary to make the act criminal were involved in what he was doing.

Approved by Windeyer J in Iannella v French (1968) 119 CLR 84 at 108–109. In Kural v The Queen (1987) 162 CLR 502; 70 ALR 658; 29 A Crim R 12 Mason CJ, Deane and Dawson JJ said (at 505; 13): As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasize that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.

The same judges repeated the same words on the same day in Saad v The Queen (1987) 61 ALJR 243; 29 A Crim R 20; 70 ALR 667 at 244 (ALJR), 21 (A Crim R), 669 (ALR) Other cases R v Kumar [2005] 1 WLR 1352; [2005] 1 Cr App R 566 (CA); R v K [2002] 1 AC 462; [2002] 1 Cr App R 121; [2001] 3 All ER 897 (HL); B (a minor) v DPP [2000] 2 AC 428; [2000] 1 All ER 833 (HL).

[13.2325] Imputed by statute In Ex parte Falstein; Re Maher (1948) 49 SR (NSW) 133; 66 WN 52 (FC) Jordan CJ said (at 142): There is no doubt that in respect of a thing which is criminal by the common law, a person is not criminally liable unless he does the thing himself or is an accessory, aider or abettor, or accomplice of someone else who does it, and, if he does the thing himself he is not criminally responsible in the absence of mens rea, that is, if he did not know that all the facts constituting the ingredients necessary to make the act criminal were involved in what he did. Prima facie, these rules are applicable also to things which are not criminal by the common law but have been made penal and criminal by statute. But in the case of offences of the latter type the law has been greatly obscured by a readiness on the part of judges to assume the role of legislators and discover in penal statutes implications of intention to impose vicarious liability and to penalise acts done in the complete absence of guilty knowledge, notwithstanding that the legislature has abstained from expressly excluding the rules of the common law. In the result it is seldom possible to know with any degree of certainty whether by a penal statute vicarious liability is imposed or mens rea is excluded, unless the particular point in the particular statute has been the subject of an authoritative decision.

In R v Wampfler (1987) 11 NSWLR 541; 34 A Crim R 218 (CCA) Street CJ, with whom Hunt and McInerney JJ agreed, examined He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 and said (at 546; 222):

1018

ROSS ON CRIME

[13.2330]

He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 is authority for the proposition that for the purpose of considering criminal intent, statutory offences fall into three categories: (1) Those in which there is an original obligation on the prosecution to prove mens rea. (2) Those in which mens rea will be presumed to be present unless and until material is advanced by the defence of the existence of honest and reasonable belief that the conduct in question is not criminal in which case the prosecution must undertake the burden of negativing such belief beyond reasonable doubt. (3) Those in which mens rea plays no part and guilt is established by proof of the objective ingredients of the offence.

Followed: Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25 at 37 [70] – [71] (NSW CCA).

[13.2330] Cannot be the subject of opinion or belief In R v Cahill [1998] 4 VR 1 (CA) the applicant was convicted of (inter alia) assault with intent to rape. The complainant said in evidence, “I believed he was going to rape me or worse”. The appeal was allowed. Ormiston JA said (at 4): [T]he intention of the accused, his mens rea, cannot ordinarily be established by opinion evidence and must be established by objective facts from which such an inference can be drawn upon the appropriate standard of proof beyond reasonable doubt.

[13.2335] Concept of mens rea does not apply under the Codes In R v English (1993) 10 WAR 355; 68 A Crim R 96 (CCA) Scott J said (at 367; 107–108): One of the most fundamental distinctions between the common law and the provisions of the Griffith Code is that under the latter mens rea is not required. This has been so since the inception of the Code and has been recognised in case law since 1907 (see Widgee Shire Council v Bonney (1907) 4 CLR 977) which has been commonly applied throughout the history of the Griffith Code.

See also Intent at [9.2700].

[13.2340] Where mens rea does not apply Driving offences: Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641. Bankruptcy offences: Morley v The Queen (1999) 152 FLR 13; 166 ALR 487; 107 A Crim R 538 (WA CCA). Knowledge of duty to report financial transaction: R v Taib; Ex parte DPP (Cth) [1999] 2 Qd R 649; (1998) 147 FLR 273; 158 ALR 744; 105 A Crim R 10 (CA).

[13.2345] Writings Article: J Horder, “Two Histories and Four Hidden Principles of Mens Rea” (1997) 113 LQR 95–119.

[13.2350] Other references See also Intent at [9.2700]; Mistake at [13.2900]; Strict liability at [19.6100]; and Transferred malice at [20.1900].

[13.2515]

MERCY

1019

MERCY Petition of mercy: definition ..................................................................................................... Legislation ................................................................................................................................. Form of petition ........................................................................................................................ Function of the court on hearing petition ................................................................................ Court to act on ordinary legal principles ................................................................................. Fresh evidence .......................................................................................................................... No appeal ground to be readjudicated unless necessary or desirable .................................... Petition after plea of guilty ...................................................................................................... Refusal to remit petition to the court ....................................................................................... Want of prosecution of petition ................................................................................................ Mercy in sentencing .................................................................................................................. Mercy in literature .................................................................................................................... Counsel’s submissions of merciful sentence ...........................................................................

[13.2500] [13.2505] [13.2510] [13.2515] [13.2520] [13.2525] [13.2530] [13.2535] [13.2540] [13.2545] [13.2550] [13.2555] [13.2560]

[13.2500] Petition of mercy: definition In R v Davies and Cody [1937] VLR 150 (FC), the court said in a joint judgment (at 152): Under that section the Attorney-General has power to refer the whole case to the Full Court and the case shall then be heard and determined by that Court as in the case of an appeal by a convicted person.

[13.2505] Legislation Cth: Crimes Act 1914 s 21D; Qld: Criminal Code ss 18, 672A; WA: Sentencing Act 1995 s 140; Tas: Criminal Code s 419; Sentencing Act 1997 s 97; NT: Criminal Code s 431; Sentencing Act s 115; NSW: Crimes Act 1900 ss 474B–474N; Vic: Criminal Procedure Act 2009 s 327; SA: Criminal Law Consolidation Act 1935 s 369; NZ: Crimes Act 1961 s 406; Can: Criminal Code s 690(b). In New South Wales there can be a petition (inquiry) on conviction for a summary offence: Re Application of Pearson (1999) 46 NSWLR 148; 149 FLR 342; 162 ALR 248; 104 A Crim R 282 (Wood CJ at CL).

[13.2510] Form of petition In White v The King (1906) 4 CLR 152 Griffith CJ said (at 159): I do not think the word petition … is a technical word, meaning that the request must be in the form of a petition.

[13.2515] Function of the court on hearing petition The legislation calls for an appeal court to hear a petition of mercy on the whole case as if it were an appeal. In Mallard v The Queen (2005) 224 CLR 125; 157 A Crim R 121; 222 ALR 236; [2005] HCA 68 Gummow, Hayne, Callinan and Heydon JJ said (at 131; 240; 126 [10]):

1020

ROSS ON CRIME

[13.2520]

[T]he explicit reference to “the whole case” conveys no hint of any inhibition upon the jurisdiction of the Court of Criminal Appeal on a reference. Indeed, to the contrary, the words “the whole case” embrace the whole of the evidence properly admissible, whether “new”, “fresh” or previously adduced, in the case against, and the case for the appellant. That does not mean that the Court may not, if it thinks it useful, derive assistance from the way in which a previous appellate court has dealt with some, or all of the matters before it, but under no circumstances can it relieve it of its statutory duty to deal with the whole case. The history, as we have already mentioned, points in the same direction. The inhibitory purpose and effect of the words “as if it were an appeal” are merely to confine the Court to the making of orders, and the following of procedures apposite to an appeal, and further, and perhaps most relevantly, to require the Court to consider whether the overall strength of the prosecution case requires the Court to apply the proviso contained in s 689(1) of the Criminal Code.

[13.2520] Court to act on ordinary legal principles In Ratten v The Queen (1974) 131 CLR 510; 4 ALR 93 Barwick CJ said (at 514; 96–97): As the Full Court was required to treat the reference to it under s 584 as an appeal, it was bound in dealing with it to act upon legal principles appropriate to an appeal. Thus, although all the material supporting the applicant’s petition formed part of the whole case to be considered by the Court, the ordinary principles as to admissibility of evidence must be applied in the consideration of that material, so much of it as would be inadmissible being ineffective to influence the resolution of the matter.

[13.2525] Fresh evidence In R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574; 49 A Crim R 79 (CCA) Thomas J, giving the leading judgment, said (at 579; 82): [P]rima facie the usual rules governing the reception of fresh evidence should be followed, but there is a residual discretion in the court to receive such evidence (even if it fails to satisfy the usual tests) where to refuse to do so would lead to a miscarriage of justice.

Cases where fresh evidence was received and appeal allowed include: Mallard v The Queen (2005) 224 CLR 125; 157 A Crim R 121; 222 ALR 236; [2005] HCA 68; R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574; 49 A Crim R 79 (CCA); Re Knowles [1984] VR 751 (FC); R v Young (No 2) [1969] Qd R 566 (CCA). Cases where fresh evidence was not believed and the appeal dismissed include: Re GAM (2005) 12 VR 177; 156 A Crim R 134 (CA); Re Smith (1989) 42 A Crim R 372 (Vic CCA); Re Matthews and Ford [1973] VR 199 (FC). Tognolini v The Queen [2015] VSCA 222.

[13.2530] No appeal ground to be readjudicated unless necessary or desirable In R v Gunn (No 2) (1942) 43 SR (NSW) 27 (FC) Jordan CJ said (at 29): I am of opinion that the court, in the case of a reference such as the present, is not called upon to readjudicate upon any ground of appeal which has been already heard and disposed of, unless some new matter has come to light which makes a reconsideration of the ground necessary or desirable.

[13.2550]

MERCY

1021

The petition can be heard after an unsuccessful appeal: Re O’Connor and Aitkin (No 2) [1953] NZLR 776 (CA).

[13.2535] Petition after plea of guilty A petition of mercy can be referred to the court after a plea of guilty. The reference would be continued to an examination of the sentence: Re MJB [2001] 1 VR 119 (CA).

[13.2540] Refusal to remit petition to the court A judge has power to review the refusal of the Attorney-General to refer a petition of mercy to the Full Court. Judicial review will be granted in an appropriate case: Burt v Governor-General [1992] 3 NZLR 672 (CA); Von Einem v Griffın (1998) 102 A Crim R 51 (SA, Duggan J); R v Secretary of State for the Home Department; Ex parte Bentley [1994] QB 349; [1993] 4 All ER 442; R v Secretary of State for the Home Department; Ex parte Hickey (No 2) [1995] 1 WLR 734; 1 All ER 490 (QBD). However, in Von Einem v Griffın (1998) 72 SASR 110 the Full Court held that a decision of the Attorney-General not to refer a petition to the Full Court cannot be subjected to judicial review.

[13.2545] Want of prosecution of petition Delay in complying with directions about filing affidavits or drawing additional grounds will not necessarily result in the petition being struck out for want of prosecution: Mickelberg v The Queen; Ex parte Attorney-General (1996) 90 A Crim R 126 (WA CCA).

[13.2550] Mercy in sentencing In R v Osenkowski (1982) 30 SASR 212; 5 A Crim R 394 (CCA), King CJ said (at 212–213; 394): [P]rosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended, even to offenders with bad records, when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

Followed and approved often, such as in the following: R v Lane (2007) 176 A Crim R 471 (Vic CA); Western Australia v Marchese (2006) 163 A Crim R 363 at 376 [44] (WA CA); R v Powell (2001) 126 A Crim R 137 at 140 (SA CCA); In Cobiac v Liddy (1969) 119 CLR 257 Windeyer J said (at 269): The whole history of criminal justice has shewn that severity of punishment begets the need of a capacity for mercy. The more strict a rule is made, the more serious become the consequences of breaking it, the less likely it may be that Parliament would intend to close all avenues of exception. Especially when penalties are made rigid, not to be reduced or mitigated, it might seem improbable that Parliament would not retain a means of escaping the imposition of a penalty which must follow upon conviction, that it would abolish it, not directly but by a side wind. This is not because mercy, in Portia’s sense, should season justice. It is that a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice.

1022

ROSS ON CRIME

[13.2555]

In R v Rowe (1991) 52 A Crim R 196 (WA CCA) Wallace J said (at 201): Public concern about a crime must never be allowed to bring about departure by the courts from the fundamental concepts of justice and mercy which should animate the criminal tribunals of civilised nations: Yardley v Betts (1979) 22 SASR 108 at 112-113; 1 A Crim R 329 at 333. Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely to do so: Webb v O’sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 324.

In R v Carmody (1998) 100 A Crim R 41 (Vic CA) Tadgell JA said (at 45): We can, however, show some mercy, tempering the wind to the shorn lamb.

(The remark is derived from Laurence Stern, A Sentimental Journey (1768): “God tempers the wind … to the shorn lamb.” However, Stern, then in France, would have taken it from Henri Estienne who recorded in his collection of epigrams (1594): “Dieu mésure le froid à la brebis tondue” (God tempers the cold to the shorn lamb).)

[13.2555] Mercy in literature In William Shakespeare, The Merchant of Venice, Act 4 Scene 1, Portia says: The quality of mercy is not strained, It droppeth as the gentle rain from heaven Upon the place beneath: it is twice blessed; It blesseth him that gives and him that takes: ’Tis mightiest in the mightiest: it becomes The thronèd monarch better than his crown; His sceptre shows the force of temporal power, The attribute to awe and majesty, Wherein doth sit the dread and fear of kings; But mercy is above this sceptred sway, It is enthronèd in the hearts of kings, It is an attribute to God himself, And earthly power doth then show likest God’s When mercy seasons justice.

John Milton wrote in Paradise Lost, Book 10, 1: … Yet I shall temper so Justice with mercy.

[13.2560] Counsel’s submissions of merciful sentence In R v Miceli [1998] 4 VR 588; (1997) 139 FLR 309; 94 A Crim R 327 (CA) Tadgell JA, delivering the leading judgment, said (at 592; 313; 331): A more accurate way of putting counsel’s point, and perhaps a more attractive way of putting it as a matter of advocacy, was to say that a proper consideration and evaluation of all the relevant extenuating circumstances conduced to clemency such that a merciful sentence should be imposed.

[13.2715]

MISPRISION

1023

MISPRISION Common law offence ................................................................................................................ Silence is not misprision .......................................................................................................... Survival of the offence ............................................................................................................. Related offences ........................................................................................................................

[13.2700] [13.2705] [13.2710] [13.2715]

[13.2700] Common law offence In A v Hayden (1984) 156 CLR 532; 56 ALR 82 Mason J said (at 552; 93): From the early days of the common law it was the duty of the citizen to disclose any treason or felony of which he had knowledge: R v Crimmins [1959] VR 270 at 272. Failure to perform the duty constituted the offence of misprision of felony which was a common law misdemeanour punishable by imprisonment. In Crimmins [1959] VR 270 the Full Court of the Supreme Court of Victoria rejected the dictum of Lord Westbury in Williams v Bayley [1866] LR 1 HL 200 at 220-221, that an essential element in the crime was the offender’s making his concealment of the crime a source of profit to himself. And despite suggestions to the contrary it was accepted as late as 1962 that misprision of felony was not obsolete: Sykes v DPP [1962] AC 528. The compounding of a felony was also a common law misdemeanour. An agreement not to prosecute a felon or to stifle the prosecution of a felony for consideration amounted to compounding a felony. There was, however, no common law offence of misprision of misdemeanour and the existence of the offence of compounding a misdemeanour was doubtful.

In R v Collie (1991) 56 SASR 302; 55 A Crim R 139 (CCA) one of the persons tried with the appellants had been charged and convicted of misprision of felony.

[13.2705] Silence is not misprision In Petty v The Queen (1991) 173 CLR 95; 102 ALR 129; 55 A Crim R 322 Mason CJ, Deane, Toohey and McHugh JJ said (at 99; 131; 323): Even if it be assumed that that common law offence still exists in at least some Australian jurisdictions … it is, in our view, clear that silence about an offence on the part of a person liable to be suspected of being criminally involved in its commission cannot constitute misprision of felony.

[13.2710] Survival of the offence The offence may survive in Victoria: see Crimes Act 1958 ss 337 (married person not guilty of misprision). In the other common law States misprision has been abolished. NSW: Crimes Act 1900 s 341; SA: Criminal Law Consolidation Act 1935 Sch 11.

[13.2715] Related offences In the Code States the related offence is compounding. As to the common law States the related offences are: NSW: Crimes Act 1900 s 316 (concealing); Vic: Crimes Act 1958 s 326 (concealing); SA: Criminal Law Consolidation Act 1935 s 241 (impeding investigation or assisting offenders). See also Accessory at [1.1200]; and Compounding crime at [3.4500].

1024

ROSS ON CRIME

[13.2900]

MISTAKE Introduction ............................................................................................................................... Mistake of fact legislation ........................................................................................................ The difference between a mistake of fact and of law ............................................................. Evidence .................................................................................................................................... Defence must raise the issue of mistake .................................................................................. Prosecution has onus of disproof ............................................................................................. Mental impairment: language problems ................................................................................... Sexual cases .............................................................................................................................. Driving ...................................................................................................................................... Drugs: possession ...................................................................................................................... Consent ...................................................................................................................................... Other cases where defence applies .......................................................................................... Where defence does not apply ................................................................................................. Mistake and experience ............................................................................................................

[13.2900] [13.2905] [13.2910] [13.2915] [13.2920] [13.2925] [13.2930] [13.2935] [13.2940] [13.2945] [13.2950] [13.2955] [13.2960] [13.2965]

[13.2900] Introduction If a person does an act under an honest mistake of fact, that mistake shows no intention to commit an offence arising from that act. In a statutory offence where intent is not an element, the mistake may have to be reasonable. A mistake of law is no defence. In CTM v The Queen (2008) 236 CLR 440; 185 A Crim R 188; 247 ALR 1 Gleeson CJ, Gummow, Crennan and Kiefel JJ said (at 982; 193; 5 [7]): Honest and reasonable mistakes of fact do not cover the whole field of risk of criminal liability to which a person may be exposed by making an error. Mistakes of law are not a ground of exculpation: ignorance of the law is no excuse … The concept of mistake itself is protean. The state of mind that, in a given set of circumstances, will qualify as a mistaken belief in a fact or state of affairs may be a matter of difficulty. An honest and reasonable belief in a certain fact or state of affairs may be very different from an absence of concern.

[13.2905] Mistake of fact legislation Cth: Criminal Code Act 1995 ss 9.1–9.4; Qld: Criminal Code s 24; WA: Criminal Code s 24; Tas: Criminal Code s 14; NT: Criminal Code s 32; ACT: Criminal Code 2002 ss 35–37.

[13.2910] The difference between a mistake of fact and of law In Thomas v The King (1937) 59 CLR 279 Dixon J said (at 306): [I]n the distinction between mistakes of fact and of law, a mistake as to the existence of a compound event consisting of law and fact is in general one of fact and not a mistake of law.

This was a bigamy case. In Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 the respondent had wanted to fish for rock lobster. He checked with the authorities on where to fish, and he took their advice. The advice was wrong, for the regulations forbad him to fish where he did. No defence, said the court. The mistake was one of law.

[13.2925]

MISTAKE

1025

[13.2915] Evidence In Vasquez v The Queen [1994] 1 WLR 1304; [1994] 3 All ER 674 (PC) Lord Jauncey said (at 1309–1310; 679): It will normally be for an accused to raise the matter, either in cross-examination of the prosecution witness or in evidence led on his behalf.

This was a provocation case. In Mackenzie v GJ Coles & Co Ltd (1988) 32 A Crim R 377 (WA FC) the respondent had been discharged over selling contaminated tins of food. The respondent argued s 24. Prosecution appeal allowed because respondent had not discharged its evidential burden. Satisfactory appearance of tins was not enough, and there was no evidence of random sampling or positive inspections. In R v Millar [2000] 1 Qd R 437; (1998) 103 A Crim R 526 (CA) the accused had inserted his finger into the vagina of a sleeping woman. The appeal was dismissed. There was no evidence of mistaken belief of consent. The evidence must be accepted by the fact finder. In Ostrowski v Zaza (1999) 108 A Crim R 350 (WA) Heenan J held that the magistrate was correct in believing the respondent. He did his best to implement a system of measuring rock lobsters but some were undersize.

[13.2920] Defence must raise the issue of mistake Principle In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Dawson J said (at 592–593): [A]t common law, because intent is an ingredient of a crime, it must be proved by the prosecution and a mistaken belief in facts which are inconsistent with the required intent does not have to be based upon reasonable grounds … But the position is different with statutory offences containing no mental element to be proved as an ingredient of the offence … There is … no justification for regarding the defence of honest and reasonable mistake as placing any special onus upon an accused who relies upon it. No doubt the burden of providing the necessary foundation will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities.

Application In CTM v The Queen (2008) 236 CLR 440; 185 A Crim R 188; 247 ALR 1 the accused had been convicted of sexual offences with a girl under the age of 16 years. He told the police that the victim had said she was 16. There was no cross-examination of the victim about this conversation. Held: the defence of mistake had not been raised. In Tabe v The Queen (2005) 225 CLR 418; 221 ALR 503; 157 A Crim R 1 the appellant had been convicted of possessing methylamphetamine. Drugs Misuse Act 1986 (Qld) applied. Appeal dismissed 3–2. The Act seemed to show that an accused must prove absence of knowledge of the drug. Held that under the Act He Kaw Teh did not apply. Gleeson CJ (at [20]) seemed to approve the prosecution submission that under the Act knowledge and mistake of fact cannot co-exist.

[13.2925] Prosecution has onus of disproof Once mistake of fact is raised as an issue the prosecution must disprove it. The standard is beyond reasonable doubt.

1026

ROSS ON CRIME

[13.2930]

R v Lyons (1987) 24 A Crim R 298 at 299 (Qld CCA); He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 per Dawson J at 592–593; McPherson v Cairn [1977] WAR 28 at 31 (Burt J); Brimblecombe v Duncan; Ex parte Duncan [1958] Qd R 8 (FC); Loveday v Ayre and Ayre; Ex parte Ayre and Ayre [1955] St R Qd 264 (FC).

[13.2930] Mental impairment: language problems Mental impairment is relevant to mistake. In R v Mrzljak [2005] 1 Qd R 308; (2004) 152 A Crim R 315 (CA) the accused had been convicted of rape. The defence issues at trial were consent or mistaken belief in consent. On appeal the court allowed fresh evidence of the accused’s mild mental impairment. He also had some trouble with English. Holmes J said (at 330; 335 [92]): The new evidence of intellectual impairment was, it seems to me, relevant to possible excuse from criminal responsibility under s 24, as indeed was the evidence of the appellant’s language difficulties. If the jury accepted that evidence, both those features had the potential to affect the appellant’s appreciation of the situation in which he found himself, and more particularly to inhibit his capacity to recognise R’s condition and to interpret her responses. In those circumstances, a jury might be prepared to accept that a belief which would not be reasonable if held by a native English speaker of normal IQ was honestly held by the appellant on reasonable grounds.

[13.2935] Sexual cases A belief that the complainant consented to the sexual act is a defence. Verdon v The Queen (1987) 30 A Crim R 388 (WA CCA); Attorney-General’s Reference No 1 of 1989; R v Brown [1990] Tas R 446 (CCA); McMaster v The Queen (1994) 4 NTLR 92; 117 FLR 200 (CCA); R v Parsons [2001] 1 Qd R 655 (CA); DPP’s Reference No 1 of 2002 (2002) 12 NTLR 176; 171 FLR 403; 137 A Crim R 158 (CCA – five member bench): approved, dismissing the prosecution appeal in DPP (NT) v WJI (2004) 219 CLR 43; 210 ALR 276. The principle remains the same for a homosexual act: R v Lyons (1987) 24 A Crim R 298 (Qld CCA). The Northern Territory Court of Criminal Appeal held that a mistaken belief that a girl was over 16 years where sexual penetration occurred is not a defence: DPP v Cole (1994) 100 NTR 1; 119 FLR 86; 77 A Crim R 91 (CCA). However, in England the belief that a child is over 14 years is a defence to a charge under the Indecency with Children Act 1966 (UK): B (a minor) v DPP [2000] 2 AC 428; [2000] 1 All ER 833 (HL). It is also a defence to a charge of gross indecency: R v K [2002] 1 AC 462; [2002] 1 Cr App R 121; [2001] 3 All ER 897 (HL). See also Age at [1.3200].

[13.2940] Driving In DPP v Bone (2005) 64 NSWLR 735; 158 A Crim R 215; 44 MVR 354 (Adams J) the respondent drove with 0.095% blood alcohol. His drinks had been spiked without his knowledge. Held: such driving offences are not absolute. Mistake applied. The magistrate had correctly dismissed the charge.

[13.2960]

MISTAKE

1027

Driving not having received suspension order: Ottobrino v Espinoza (1995) 14 WAR 373; 83 A Crim R 435; 22 MVR 511 (Comm Buss QC); Egerton v Taylor (1996) 90 A Crim R 186 (WA, Walsh J); Kelsall v Avins (1997) 25 MVR 57 (WA, Murray J). In Williams v Beverly (1998) 103 A Crim R 326 (WA, Parker J) the applicant retained a lawyer to defend him on driving charges. The lawyer advised him the wrong appearance date. In his absence the appellant lost his licence and twice later was convicted of driving without a licence. All appeals allowed. Dangerous driving, even in an ambulance, does not raise the defence: McLuckie v Williams (1995) 82 A Crim R 118; 22 MVR 265 (WA, Murray J).

[13.2945] Drugs: possession Mistaken belief in possession of drugs may be a defence. But in R v Rohan (1979) 2 A Crim R 38 (Qld CCA) the appeal against conviction for possession of cannabis succeeded because of lack of knowledge. Section 24 was said to have no application. In R v House (1988) 35 A Crim R 96 (Qld CCA) the appeal was dismissed. Andrews CJ said (at 100): If he proposed relying upon some question of mistake or the like within the purview of s 24 of the Criminal Code the onus was upon him to show his honest and reasonable belief in the existence of it. He neither gave nor called any evidence. There is no evidence elsewhere to satisfy s 24 in any way favourable to him.

[13.2950] Consent In R v Ferguson (1994) 75 A Crim R 31 (Qld CA) a male teacher had been convicted of assaulting girl students. The appeals succeeded. Some were for correction or direction by touching. Consent under (Qld) Code s 245 was given an extended meaning. Fitzgerald P said (at 34): Further, an honest and reasonable but mistaken belief that consent existed excludes criminal responsibility for a touching if consent would mean that the touching was not unlawful: Code, s 24. In many circumstances associated with everyday living, such a belief will be readily inferred.

See also Lergesner v Carroll [1991] 1 Qd R 206; (1990) 49 A Crim R 51 (CCA) (assault occasioning actual bodily harm).

[13.2955] Other cases where defence applies DPP v Wille (1999) 47 NSWLR 255; 114 A Crim R 150 (Kirby J): trespass. Pacino v The Queen (1998) 105 A Crim R 309 (WA CCA): belief that his dogs would not endanger anyone. Ostrowski v Zaza (1999) 108 A Crim R 350 (WA, Heenan J): belief of a fisherman that rock lobsters were not undersize. See also Browning v Barrett [1987] Tas R 122; (1987) 31 A Crim R 222 (CA) on undersized fish.

[13.2960] Where defence does not apply The legal effect of a document is not a mistake of fact: Beethem v Tremarne (1905) 2 CLR 582 at 585 being an exchange between counsel and Griffith CJ in argument.

1028

ROSS ON CRIME

[13.2965]

A belief that a company could buy its own shares is not a mistake of fact: Ex parte D (1995) 14 WAR 189 (FC). In Minear v Rudrum (2001) 33 MVR 119 (WA, Miller J) the appellant had his driver’s licence cancelled. He was wrongly told that his licence was valid until collected by a traffic officer. Held that the charge of driving while licence cancelled was made out. The cancellation was a matter of law and no advice could affect it. Mistake did not apply. See also Defence at [4.700]; and Proudman v Dayman at [16.7400].

[13.2965] Mistake and experience Oscar Fingal O’Flahertie Wills Wilde (1854–1900) wrote: Experience is the name every one gives to their mistakes. Lady Windermere’s Fan (1892) act 3

See also Defence at [4.700]; and Proudman v Dayman at [16.7400].

MONEY LAUNDERING The offence ................................................................................................................................ Legislation ................................................................................................................................. Continuing offence .................................................................................................................... Techniques ................................................................................................................................. Proof .......................................................................................................................................... Conspiracy ................................................................................................................................. Sentencing ................................................................................................................................. Sentence .................................................................................................................................... Writing .......................................................................................................................................

[13.3100] [13.3105] [13.3110] [13.3115] [13.3120] [13.3125] [13.3130] [13.3135] [13.3140]

[13.3100] The offence Disguising the profits of crime is called money laundering. It is the technique of using a succession of transfers and transactions to obscure illegally obtained funds. Dirty money appears clean.

[13.3105] Legislation Cth: Criminal Code Act 1995 ss 400.1–400.16; Qld: Criminal Proceeds Confiscation Act 2002 ss 250–251; WA: Criminal Code s 563A; Tas: Crime (Confiscation of Profits) Act 1993 s 67; NT: Criminal Code ss 231A–231F; NSW: Confiscation of Proceeds of Crime Act 1989 s 73; Vic: Confiscation Act 1997 s 122; Crimes Act 1958 ss 193–195A; SA: Criminal Law Consolidation Act 1935 s 138; ACT: Crimes Act 1900 s 114B; Confiscation of Criminal Assets Act 2003; NZ: Crimes Act 1961 ss 243–245, 257A and 344AA; Misuse of Drugs Act 1975 s 12B; Eng: Proceeds of Crime Act 2002.

[13.3120]

MONEY LAUNDERING

1029

Each statute has its own definition. Broadly, some refer to “proceeds of crime” (Commonwealth, Tasmainia, Victoria and Australian Capital Territory). Queenslanld refers to dealing in “tainted property”. Western Australia refers to “proceeds of a major offence”. New South Wales refers to “proceeds of a serious offence”. South Australia refers to “derived from unlawful activity”. New Zealand refers to property derived or realised from the commission of a serious offence.

[13.3110] Continuing offence In Victoria, at least, money laundering can be charged on one count either as a single event or as a continuing offence: R v Beary (2004) 11 VR 151; 151 A Crim R 388 at 160–161; 398 [29] (CA). R v Giretti (1986) 24 A Crim R 112 (Vic CCA) applied. In R v Anwoir [2008] 4 All ER 582; [2008] 2 Cr App R 36 (CA) the four accused had been jointly charged with five counts of money laundering. The Court of Appeal made no adverse comment about the charges being laid in this way.

[13.3115] Techniques In R v Z (2006) 167 A Crim R 436 (NSW CCA) the respondent Israeli national came to Australia to launder money. He laundered $1 million. He then took delivery of more than 30 times the commercial quantity of MDMA. In R v Powell (1999) 108 A Crim R 448 (Qld CA) the accused and his boss put the proceeds of drug sales through the accounts of a real estate agency. In R v Saxon (1996) 86 A Crim R 353 at 355 (NSW, Dunford J) $8 million went overseas to various locations. In Milne v The Queen (2014) 88 ALJR 395; [2014] HCA 4 it was held that the sellingdealing with shares cannot be an “instrument of crime” and hence, cannot form the basis for an offence under s 400.3(1) of the Criminal Code 1995 (Cth).

[13.3120] Proof In R v Zotti (2002) 82 SASR 554; 131 A Crim R 27 (CCA) the charges were under Proceeds of Crime Act 1987 (Cth) ss 81 and 82. Lander J, who alone addressed proofs under s 82, said (at 558; 31 [18]): [T]he prosecution needed to prove two matters. First, that the appellant had disposed of money and secondly, that that money may reasonably be suspected of being proceeds of crime.

and later (at 559; 31 [22]): [I]f the prosecution established the two elements to which I have referred, the onus fell upon the appellant to satisfy the court that he had no reasonable grounds for suspecting that the money referred to was derived from some form of unlawful activity pursuant to s 82(2) of the Act. It was agreed that the standard of proof in that regard was proof on the balance of probabilities.

In R v Montila [2004] 1 WLR 3141; [2005] 1 All ER 113; [2005] 1 Cr App R 425 (HL) their Lordships interpreted the English legislation. They held that an intent to launder illicitly obtained money is not enough. The money must be proved to have been the proceeds of drug trafficking or other criminal conduct. In R v Alison [2006] 1 NZLR 721 (CA) the court said in a joint judgment (at 728 [28]). [T]here is no need for the Crown to prove an antecedent discrete serious offence before an accused can be found guilty of an offence under s 257A(2). What the Crown must prove beyond reasonable doubt is that all or part of the property, the subject of the money laundering transaction, is the proceeds of a serious offence and that the accused either knew or believed that to be the case. Proof that the property was the proceeds of a particular proved serious offence is not necessary.

1030

ROSS ON CRIME

[13.3125]

Nor is it necessary to prove that the accused was involved in the serious offending. Proof that the property is the proceeds of a serious offence can be by inference properly drawn from the evidence.

[13.3125] Conspiracy Charges of conspiracy to launder money may be appropriate. R v McLean (2001) 121 A Crim R 484 (NSW CCA); R v Weininger (2000) 159 FLR 238; 119 A Crim R 151 (NSW CCA); R v Templer (1999) 108 A Crim R 407 (Vic CA). See also R v Saik [2007] 1 AC 18; [2006] 4 All ER 866; [2006] 2 Cr App R 368 (HL).

[13.3130] Sentencing Source and destination of funds are relevant to sentence. In R v Huang (2007) 174 A Crim R 370 (NSW CCA) the court said in a joint judgment (at 380 [32] – [33]): [T]he offender’s belief as to the source of the funds will always be a relevant consideration regardless of whether the offender is charged with an offence concerned with the proceeds of crime or an offence concerned with property being used as an instrument of crime. Where it is the latter, the belief as to the source of the funds or its nature is less relevant because the offence is directed at the use to be made of the funds. The understanding of the offender as to what was to be the destination of the money or the purposes for which it was to become an instrument of crime is also a relevant consideration.

[13.3135] Sentence R v Foster (2008) 183 A Crim R 437 (Qld CA): laundered more than $100,000; prior convictions in three countries; four years six months imprisonment with two years three months minimum. Reparation order of $214.138. In R v Z (2006) 167 A Crim R 436 (NSW CCA): two years imprisonment (together with sentence of possession of MDMA on which prosecution sentence appeal upheld). R v Beary (2004) 11 VR 151; 151 A Crim R 388 (CA): six months imprisonment (together with other sentences for other crimes). R v Capar (2002) 136 A Crim R 564 (NSW CCA): two years imprisonment with a non-parole period of 12 months. Director of Public Prosecutions’ appeal against sentence dismissed. R v McLean (2001) 121 A Crim R 484 (NSW CCA): two counts, five years imprisonment with non-parole period of three years on each, both concurrent. R v Powell (1999) 108 A Crim R 448 (Qld CA): two years imprisonment suspended after 12 months. R v Duff [2003] 1 Cr App R (S) 466.

[13.3140] Writing P Alldridge, Money Laundering Law (Hart, Oxford, 2003).

[13.3325]

MORALITY

1031

MORALITY Meaning ..................................................................................................................................... Mental and moral aspects ......................................................................................................... Social variation ......................................................................................................................... Morality changes ....................................................................................................................... Sentencing ................................................................................................................................. Warning to a judge ................................................................................................................... Further reading .......................................................................................................................... Other references ........................................................................................................................

[13.3300] [13.3305] [13.3310] [13.3315] [13.3325] [13.3330] [13.3335] [13.3340]

[13.3300] Meaning Morality is a proper and ethical standard of conduct generally accepted in a large section of society. Not all criminal acts now involve breach of morals. Morals vary from time to time. This part deals only with morality as it appears in criminal cases.

[13.3305] Mental and moral aspects In R v Kingston [1995] 2 AC 355; [1994] 3 All ER 353; (1994) 96 Cr App R 286 (HL) Lord Mustill said (at 365; 360): [T]here have been few occasions in modern times when the dissociation between the mental and moral aspects has been doubted.

When a person lacks the capacity to make a judgment, what would otherwise be a criminal act is deprived of its moral character. An insane person falls into that class: Sodeman v The King (1936) 55 CLR 192 at 215 per Dixon J. So is a child incapable of crime. That is the meaning of the Latin words doli incapax.

[13.3310] Social variation Morality varies between different social groups in the one jurisdiction. Ferguson v Walkley (2008) 17 VR 647; 180 A Crim R 294 (Harper J) was about using insulting words against police in public. His Honour pointed that what was insulting to some might not be to others. His Honour said (at 648; 295 [2]): [T]he majority should be diffident about imposing its view of morality on others. Behaviour, deemed unacceptable by some, may not trouble others at all. The danger therefore is that legislation which turns offensive conduct into a crime, and punishable accordingly, will be employed as a heavy handed insstrument for the imposition, by one segment of society on another, of the former’s moral precepts.

[13.3315] Morality changes An act may be immoral and a crime in one age but not in the next. In Shaw v DPP [1962] AC 220; [1961] 2 All ER 446; (1961) 45 Cr App R 113 (HL) the appellant had been convicted of a common law conspiracy to corrupt public morals by publishing a prostitutes directory. Viscount Simonds said (at 268; 452; 148–149): To one of your Lordships it may appear as an affront to public decency, to another ... it will seem as a corruption of public morals. Yet others may deem it aptly described as...undermining moral conduct. The same act will not in all ages be regarded in the same way. The law must be related to the changing standards of life, not yielding to every shifting impulse of the popular will but having regard to fundamental assessment of human values and the purposes of society.

[13.3325] Sentencing The offence A court will often assess the moral culpability of the offence when passing sentence.

1032

ROSS ON CRIME

[13.3330]

In R v Koumis (2008) 184 A Crim R 421 (Vic CA) the appellants were charged with drug offences. They had been drug taking from an early age. They rehabilitated themselves after the offences. The court examined moral culpability (at 434–437 [52] – [60]). Appeals allowed with one exception. In Talbot v The Queen (1992) 34 FCR 100; 59 A Crim R 373 (FCA) Jenkinson J said (at 105; 389): [E]valuation of moral culpability remains ... as fundamental to our system of punishment for crime as the evaluation of the degree of harm caused or threatened by the criminal act or actor.

Approved: R v Proom (2003) 85 SASR 120; 138 A Crim R 478 (CCA) at 135; 473 [77] per Gray J; R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149 (CCA) at 383; 183 [184] per Spigelman CJ; Douglas v The Queen (1995) 56 FCR 465 at 479 (a joint judgment).

Prior convictions In Veen v The Queen (No 2) (1988) 164 CLR 465; 33 A Crim R 230; 77 ALR 385 Mason CJ; Brennan, Dawson and Toohey JJ said (at 477; 239): It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case.

Psychiatric illness Serious psychiatric illness will mitigate sentence: R v Verdins (2007) 16 VR 269 (CA). But where the disorder is not serious the onus is on the defence to show mitigation. As was said in R v Chambers (2005) 152 A Crim R 164 at 172 [28] (Vic CA): [B]y establishing that its effect reduced the seriousness of the offence and the moral culpability.

[13.3330] Warning to a judge A judge should not act on a personal view of morality. In R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (CCA) Fullagar J said (at 430; 21): Once courts of law ... begin to decide cases according to the judge’s own view of abstract justice or of current standards of honesty or morality, respect for the courts will be calculated to decline, with dire consequences of a most fundamental character. Justice will no longer be seen to be done, and a judge would be no better qualified than anyone else to decide the cases.

[13.3335] Further reading David Ross QC “Morality in Criminal Cases” (2009) 5 International Journal of Punishment and Sentencing (IJPS) 1.

[13.3340] Other references See also Automatism at [1.7200]; Doli incapax at [4.4400]; Insanity at [9.2500]; Sentencing at [19.1800]

[13.3505]

MOTIVE

1033

MOTIVE Definition ................................................................................................................................... Evidence of motive ................................................................................................................... Beyond reasonable doubt .......................................................................................................... Judge must direct jury on motive where the prosecution relies on it .................................... Absence of motive ....................................................................................................................

[13.3500] [13.3505] [13.3510] [13.3515] [13.3520]

[13.3500] Definition In Hyam v DPP [1975] AC 55; [1974] 2 All ER 41; (1974) 59 Cr App R 91 (HL), Lord Hailsham said (at 73; 51; 100–101): It has been pointed out more than once that “motive” has two distinct but related meanings. I do not claim to say which sense is correct. Both are used but it is important to realise that they are not the same. In the first sense “motive” means an emotion prompting an act. This is the sense in which I used the term when I said that the admitted motive of the appellant was jealousy of Mrs Booth. The motive for murder in this sense may be jealousy, fear, hatred, desire for money, perverted lust, or even, as in so called “mercy killings”, compassion or love. In this sense motive is entirely distinct from intention or purpose. It is the emotion which gives rise to the intention and it is the latter and not the former which converts an actus reus into a criminal act. Thus as Smith and Hogan point out (Criminal Law (3rd Edn, 1973), p 53), “The mother who kills her imbecile and suffering child … is just as guilty of murder as is the man who kills for gain.” (See also the discussion on this used by Viscount Maugham In Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435 at 452). On the other hand “motive” can mean a “kind of intention” (see Glanville WilliamsCriminal Law (2nd Edn, 1961), p 48). In this sense, in his direction to the jury, the judge (quoted above, and in the judgment of the Court of Appeal) has said: “It matters not if her motive was … to frighten Mrs Booth.” See also the discussion of this sense by Lord Wright in Crofter Hand Woven Harris Tweed Co Ltd v Veitch at 469. I agree with the Court of Appeal that it is desirable, to avoid confusion, to use the word “motive” in this context always in the first sense, and I have attempted so to do. It is, however, important to realise that in the second sense too, motive, which in that sense is to be equated with the ultimate “end” of a course of action, often described as its “purpose” or “object”, although “a kind of intention”, is not co-extensive with intention, which embraces, in addition to the end, all the necessary consequences of an action including the means to the end and any consequences intended along with the end … Thus, also, in a Victorian melodrama the villain’s motive – in the second sense – or his “end”, his “purpose”, “object” or “intention” may have been to acquire an inheritance. But this does not exclude, and may involve, the intention to slay the rightful heir, or abduct his sister.

[13.3505] Evidence of motive Evidence of motive is admissible from which intent may be inferred: Plomp v The Queen (1963) 110 CLR 234 per Menzies J at 247–250; R v Murphy (1985) 4 NSWLR 42; 63 ALR 53 at 55–60; 65–70 (CCA). In R v Murphy the court said (at 59; 69): Evidence is always relevant which tends to show that an accused had a motive for doing the act alleged or for doing it with the intention asserted by the Crown. When such proof is given it constitutes “a link in the chain of evidence” led to establish the matter in contention (per Lush J in R v Heeson (1878) 14 Cox CC 40 at 44). In Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311, a case in which the principal question was whether the deceased died accidentally or by his own hand, Griffth CJ (at 317) described evidence of motive as “in the nature of circumstantial evidence as to the main question in issue”. He continued a little later: On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally.

1034

ROSS ON CRIME

[13.3510]

Further, in Plomp v The Queen (1963) 110 CLR 234, in a passage cited by Gibbs CJ and Mason J in Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225 at 535-536 (CLR) , Dixon CJ (at 242) observed: … All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. Finally, in Plomp, Menzies J (at 247) did not accept the argument that to prove a person had a motive for doing an act cannot be relied upon to prove that he did the act. He quoted with approval the dictum of Lord Atkinson during the argument in R v Ball [1911] AC 47 at 68: Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his “malice aforethought”, inasmuch as it is more probable that men are killed by those who have some motive for killing them than by those who have not.

[13.3510] Beyond reasonable doubt Before guilt can be inferred, motive must be proved beyond reasonable doubt. In R v Murphy (1985) 4 NSWLR 42; 63 ALR 53 (CCA) the court said (at 60; 69): Motive is not merely a matter which may explain the accused’s conduct. It is rather a fact directed to proof of the accused’s guilt; as Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225 makes clear, before a jury can infer guilt from motive they must be satisfied that the motive asserted has been proved beyond reasonable doubt.

Approved: Penney v The Queen (1998) 72 ALJR 1316; 155 ALR 605 at [26]. Doubted: R v Koeleman (2000) 2 VR 20 (at 29 [27]) (CA).

[13.3515] Judge must direct jury on motive where the prosecution relies on it In Coombe v The Queen (1990) 101 FLR 466 (NT CCA), Angel J said (at 479): Here, the Crown cross-examined the appellant with a view to proving anger as a motive. Motive was not discussed by his Honour the learned trial judge in his summing up to the jury and I think that together with the general marrying of proven facts said to support the inference from which intention might be proven, in this case it was appropriate and necessary for something to have been said about proof of motive since the Crown sought to rely upon it.

The evidence of motive must be carefully analysed and explained to the jury: R v Price (1982) 8 A Crim R 403 (NSW CCA). In R v Green (2002) 4 VR 471; 128 A Crim R 513 (CA) the prosecution did not rely on motive. The judge directed the jury on motive that amounted to speculation. Appeal allowed.

[13.3520] Absence of motive Evidence pointing to an absence of motive is admissible as showing an absence of intent: Plomp v The Queen (1963) 110 CLR 234 per Menzies J at 250; R v Askerland (1983) 18 A Crim R 102 at 114 (Tas CCA);

[13.3700]

MURDER

1035

R v Neilan [1992] 1 VR 57; (1991) 52 A Crim R 303 at 320–322 (Not reported on that ground in [1992] 1 VR 57). In Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545 Brennan, Dawson and Gaudron JJ said (at 79; 548; 167): In so far as the evidence failed to disclose a motive for the appellant to kill John Apps, it was right to say that the Crown did not have to prove the existence of a motive to kill or to do grievous bodily harm (s 23(3)). However, in this case the evidence pointed to an absence of a motive. That was a factor which was relevant to the jury’s determination of the appellant’s guilt of manslaughter: see R v Sharmpal Singh [1962] AC 188 at 197. But no objection was taken to the summing up on this point. Nor was the point raised on appeal.

In a rare case proven absence of motive might be important. In R v Elwood (1908) 1 Cr App R 181 (CCA) Channell J said (at 182): [T]here is a great difference between absence of proved motive and proved absence of motive.

In De Gruchy v The Queen (2002) 211 CLR 85; 190 ALR 441; 132 A Crim R 453 Gaudron, McHugh and Hayne JJ referred to R v Elwood (1908) 1 Cr App R 181 saying (at 93; 446–447; 459 [29]): Although absence of motive is relevant, the appellant’s argument overlooks a critical distinction between absence of proven or apparent motive, on the one hand, and proven absence of motive, on the other. In the present case, there was no evidence of motive, which is not the same thing as proven absence of motive. [See R v T [1998] 2 NZLR 257 at 266 per Eichelbaum CJ.]

Followed: R v Cavkic (2005) 12 VR 136; 155 A Crim R 275 (CA) at 289 [2] (not reported on that ground in 12 VR 136).

MURDER Four ways of proving murder .................................................................................................. Definition ................................................................................................................................... Legislation ................................................................................................................................. Knowing an act will probably cause death or grievous bodily harm ..................................... Intent: a number of acts one of which causes death ............................................................... A life in being ........................................................................................................................... Unlikely defences of necessity or duress ................................................................................. Reckless murder ........................................................................................................................ Recklessness and attempt ......................................................................................................... Omission and reckless indifference .......................................................................................... Intent of attempted murder ....................................................................................................... Concealment of the body .......................................................................................................... Indictment to contain murder counts only ............................................................................... Common purpose manslaughter ............................................................................................... Sentencing ................................................................................................................................. Sentence: murder ...................................................................................................................... Sentence: attempted murder ..................................................................................................... Murder convictions set aside after an inquiry ......................................................................... Wrongly executed .....................................................................................................................

[13.3700] Four ways of proving murder Murder can be committed in four ways: 1. Killing with intent to kill. 2. Killing with intent to cause really serious injury (grievous bodily harm). 3. Reckless murder.

[13.3700] [13.3705] [13.3710] [13.3715] [13.3720] [13.3725] [13.3730] [13.3735] [13.3740] [13.3745] [13.3750] [13.3755] [13.3760] [13.3765] [13.3770] [13.3775] [13.3780] [13.3785] [13.3790]

1036

ROSS ON CRIME

[13.3705]

4. Killing while committing a crime of violence (felony murder). In R v Aiton (1993) 68 A Crim R 578 (Vic CCA) the court said in a joint judgment (at 589): Simply put, as the mental element of the crime of murder may be established in different ways, the jury must be instructed according to the circumstances and issues of the particular case.

[13.3705] Definition In Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163; 71 ALR 641 Wilson, Dawson and Toohey JJ said (at 661–662): Murder consists of an unlawful killing done with intent to kill or to do grievous bodily harm.

Further (at 664): And, as we have already said, an accused person is not liable to be convicted of murder unless the jury is satisfied beyond reasonable doubt that there was an intention to kill or do grievous bodily harm.

[13.3710] Legislation Qld: Criminal Code s 302; WA: Criminal Code s 279; Tas: Criminal Code s 157; NT: Criminal Code s 156; NZ: Crimes Act 1961 s 167. In R v Powell [1999] 1 AC 1; [1997] 4 All ER 545; [1998] 1 Cr App R 261 (HL) Lord Steyn said (at 14–15; 551–552; 269): In English law a defendant may be convicted of murder who is in no ordinary sense a murderer. It is sufficient if it is established that the defendant had an intent to cause really serious bodily injury. This rule turns murder into a constructive crime. The fault element does not correspond to the conduct leading to the charge, ie the causing of death. A person is liable to conviction for a more serious crime than he foresaw or contemplated.

Approved: Roodal v State of Trinidad and Tobago [2004] 2 WLR 652 at 655 [4] (PC).

[13.3715] Knowing an act will probably cause death or grievous bodily harm In R v Crabbe (1985) 156 CLR 464; 58 ALR 417; 16 A Crim R 19 the accused had driven his road train through the Inlander Motel at Uluru, killing five people. The trial judge had directed the jury that it would be murder if death were a possible result. The Federal Court said that was wrong, it should be probable, and ordered a new trial. The prosecution appealed, and failed. The High Court said in a joint judgment (at 469–470; 421; 23): It should now be regarded as settled law in Australia, if no statutory provision affects the position, that a person who, without lawful justification or excuse, does an act knowing that it is probable that death or grievous bodily harm will result, is guilty of murder if death in fact results. It is not enough that he does the act knowing that it is possible but not likely that death or grievous bodily harm might result. A person who does an act causing death knowing that it is probable that the act will cause death or grievous bodily harm is, as Stephen’s Digest states, guilty of murder although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not or even by a wish that death or grievous bodily harm might not be caused. That does not mean that reckless

[13.3730]

MURDER

1037

indifference is an element of the mental state necessary to constitute the crime of murder. It is not the offender’s indifference to the consequences of his act but his knowledge that those consequences will probably occur that is the relevant element. Of course, not every fatal act done with the knowledge that death or grievous bodily harm will probably result is murder. The act may be lawful, that is, justified or excused by law. A surgeon who competently performs a hazardous but necessary operation is not criminally liable if the patient dies, even if the surgeon foresaw that death was probable.

In England the test is “virtual certainty”. In R v Woollin [1999] 1 AC 82; [1998] 4 All ER 103; [1998] 1 Cr App R 81 (HL) the court approved R v Nedrick (1997) 1 Cr App R 97 at 107. In the Lords, Lord Steyn, with whom the others agreed, repeated the approved part (at 96; 103): Where the charge is murder and in the rare cases where the simple direction is not enough, the jury should be directed that they are not entitled to infer the necessary intention, unless they feel sure that death or serious bodily harm was a virtual certainty (barring some unforeseen intervention) as a result of the defendants actions and that the defendant appreciated that such was the case.

[13.3720] Intent: a number of acts one of which causes death In Meyers v The Queen (1997) 71 ALJR 1488; 147 ALR 440 (HC) the court said in a joint judgment (at 1489; 442): An accused person who unlawfully kills another is not guilty of murder unless he does the particular act which causes the death with one of the specific intents that is an essential element of the crime of murder. The particular act and the intent with which it is done must be proved by the prosecution beyond reasonable doubt. Act and intent must coincide (Ryan v R (1967) 121 CLR 205 at 217–18: Royall v R (1991) 172 CLR 378 at 393, 401, 414, 421, 453). If the circumstances of a fatal altercation are such that the prosecution can prove that some acts were done with the necessary intent but cannot prove that other acts were done with that intent, no conviction for murder can be returned unless there is evidence on which the jury can reasonably find that the act which caused the death was one of those done with the necessary intent.

[13.3725] “A life in being” In R v Martin (1995) 13 WAR 472; 85 A Crim R 587 a pregnant woman was stabbed. The child was born alive but died seven months later. Owen J ruled that the child was capable of being killed and that a charge of murder of the child had been properly laid. (Acquittal of murder, conviction of manslaughter.) Appeal dismissed: Martin v The Queen (No 2) (1996) 86 A Crim R 133 (WA CCA). The House of Lords held that such was not murder: Attorney-General’s Reference (No 3 of 1994) [1998] AC 245; [1997] 3 WLR 421; 3 All ER 936; 1 C App R 351 (HL).

[13.3730] Unlikely defences of necessity or duress Necessity In R v Japaljarri (2002) 134 A Crim R 261 (Vic CA) Eames JA, with whom the other judges agreed, said citing authority (at 270 [48]): It is unlikely that the defence of necessity is available for the crime of murder.

Two cases cited by his Honour were these: R v Howe [1987] AC 417; [1987] 1 All ER 771; (1986) 85 Cr App R 32 (HL); R v Dudley and Stephens (1884) 14 QBD 273; [1881-1885] All ER Rep 61.

Duress The above cases say that there is no defence of duress on a murder charge.

1038

ROSS ON CRIME

[13.3735]

See also Duress at [4.5900]; and Necessity at [14.500].

[13.3735] Reckless murder Legislation Tas: Criminal Code s 157(1)(b); NSW: Crimes Act 1900 s 18(1)(a); ACT: Crimes Act 1900 s 12(1)(b).

Elements and mental state In R v Grant (2002) 131 CLR 510; 55 NSWLR 80; 131 A Crim R 523 (CCA) Wood CJ at CL with whom the others agreed said (at 89–90; 531 [33] – [34]): In order for an accused to be convicted of “murder by reckless indifference to human life”, the Crown needs to show that he or she knew that the probable result of his or her act (or omission), in this case the act of firing the gun, was to cause the death of another, and knowing of that likelihood (which has to be a substantial or real chance as distinct from a mere possibility) he or she went ahead and did the act regardless: R v Crabbe (1985) 156 CLR 464; Royall v The Queen (1991) 172 CLR 378; Boughey v The Queen (1986) 161 CLR 10 (a code case). To prove murder by reckless indifference to human life, an accused need not be shown to have specifically intended or wanted death to result, only that he or she comprehended that there was a real or substantial likelihood of it occurring, and went ahead regardless. As such, it is strictly not a crime of specific intent (see the decisions on the equivalent offence in Code States such as Masnec v The Queen [1962] Tas SR 254 and Vallance v The Queen (1961) 108 CLR 56). The Crown must still however show that the accused intended to do the physical act (or omission) involved, and that such act (or omission) was voluntary. Of importance is the circumstance that an awareness or foresight of the consequence of the act (or omission), on the part of the accused personally, is essential for proof of the offence. It is not sufficient that an ordinary or reasonable person would have foreseen the probability of the occurrence being the death of another: Pemble v The Queen (1971) 124 CLR 107. There is, accordingly, an additional element affecting the subjective mental state of the accused, which is to be established in the case of murder by reckless indifference, and which goes beyond the basic intent to do (or omit) the act which brings about death. The mens rea for this form of offence, as was pointed out in R v Crabbe (at 470-471), is the knowledge of the offender that death is the probable consequence of his or her act (or omission), to which I would add the decision to go ahead regardless of that consequence.

In R v Faure [1999] 2 VR 537 (CA) Brooking JA said (at 546 [29]): The crime requires knowledge that it is probable that death or grievous bodily harm will result from the act.

Thus a judge will often direct a jury on the difference between reckless murder and manslaughter by unlawful and dangerous act: R v TY (2006) 12 VR 557 (CA).

Intoxication Intoxication is relevant to the performance of the act and to the state of mind. R v Grant (2002) 131 CLR 510; 55 NSWLR 80; 131 A Crim R 523 (CCA) per Wood CJ at CL (at 90; 531 [37]ff). R v Peterkin (1982) 6 A Crim R 351 (NSW CCA). R v Solomon [1980] 1 NSWLR 321; (1979) 1 A Crim R 247 (CCA).

[13.3745]

MURDER

1039

See also Intoxication at [9.3800].

Judge’s direction A judge directing a jury must be careful not to confuse reckless murder with criminal negligence manslaughter. The term reckless murder should not be used. In La Fontaine v The Queen (1976) 136 CLR 62; 11 ALR 507 Gibbs J said (at 76; 518): It has become common to describe the mental state of an accused person who acts knowing that his act will probably cause death or bodily injury as one of recklessness or reckless indifference. Judges and textwriters alike have used those expressions … Indeed, the legislature itself has in some places adopted them. However useful those words may be as a compendious description of this mental state, they should not in my opinion be used by a judge when summing up to a jury in States where the legislation does not require it. To tell a jury that they may convict of murder when they are satisfied that the accused acted with recklessness or reckless indifference is to invite confusion between murder and manslaughter resulting from criminal negligence.

Other cases R v Barrett (2007) 16 VR 240; 171 A Crim R 315 (CA); R v TY (2006) 12 VR 557 (CA); R v Aiton (1993) 68 A Crim R 578 at 595 (Vic CCA).

[13.3740] Recklessness and attempt In Alister v The Queen (1984) 154 CLR 404; 50 ALR 41 Gibbs CJ quoted with approval (at 422; 52) R v Whybrow (1951) 35 Cr App R 141 per Lord Goddard (at 146–147): Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm and death does not result, it is not attempted murder, but wounding with intention to do grievous bodily harm. It is not really illogical because, in that particular case, the intention is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intention to do grievous bodily harm.

Gibbs CJ then said: Similarly, a person who explodes a bomb with reckless indifference as to whether it causes death will be guilty of murder if death results but he would not be guilty of attempted murder if death did not result.

[13.3745] Omission and reckless indifference In R v Taber (2002) 56 NSWLR 443; 136 A Crim R 478 the three accused had robbed a woman in her home and left her bound and gagged. Soon after they left they reported her danger to emergency services, but the telephone call was dismissed as a hoax. The victim died of dehydration. Barr J examined the authorities and ruled that murder be left to the jury. His Honour said (at [28]): [A]ny breach of a duty to remove the deceased from danger into which she had been deliberately put is capable of leading to a verdict of guilty of murder if in the case of any accused the jury are satisfied that at any relevant time he acted with reckless indifference, and otherwise to a verdict of guilty of manslaughter by criminal negligence if the Crown proves the objective seriousness of the breach.

1040

ROSS ON CRIME

[13.3750]

[13.3750] Intent of attempted murder In Penney v The Queen (1998) 72 ALJR 1316; 155 ALR 605 the High Court (at [29]) approved the following direction by the trial judge: The crime of attempted murder consists of three elements: you must be satisfied that the prosecution has proved each of them. First, the prosecution must prove a voluntary intention on the part of the accused to kill his wife. Nothing less than a specific intention on his part to kill her is sufficient. Secondly, the prosecution must prove an attempt to execute that intention to kill, that is to say, the prosecution must prove an act or a series of acts which are immediately directed towards fulfilling that intention. The third element which the prosecution must prove is that the act was done without any lawful excuse. That is to say, the accused had no lawful reason for doing what he did.

Knight v The Queen (1992) 175 CLR 495; 63 A Crim R 166; 109 ALR 225 involved a struggle over a firearm. One man died, another was wounded when the rifle discharged. Two counts were laid: murder and attempted murder. Verdict on count one was manslaughter and on count two attempted murder. The appeal on count two to the High Court succeeded on the ground that the verdict was unsafe and unsatisfactory. Mason CJ, Dawson and Toohey JJ said (at 501; 229; 170–171): [A]n accused is not guilty of attempted murder unless he intends to kill; See Alister v The Queen (1984) 154 CLR 404 at pp 421423. An intention to cause grievous bodily harm may constitute the malice aforethought required for murder where death ensues, but for there to be attempted murder there must be an intention to cause the death which is an essential element of the completed crime of murder.

Followed: Cutter v The Queen (1997) 71 ALJR 638; 143 ALR 498; 94 A Crim R 152 (HC). Provocation is not a defence open on a charge of attempted murder: McGhee v The Queen (1995) 183 CLR 82; 130 ALR 142; 79 A Crim R 281.

[13.3755] Concealment of the body Concealment of the body may leave open the inference of consciousness of guilt of a crime, although perhaps not murder: R v Rice [1996] 2 VR 406; (1996) 85 A Crim R 187 (CA) per Brooking J at 411–418; 192–200; R v Weissensteiner (1992) 62 A Crim R 96 (Qld CA) per Pincus JA at 106–107. See also Alternative at [1.4200]; Causation at [3.700]; Grievous bodily harm at [7.1100]; and Manslaughter at [13.1300]. Nevertheless, there has often been conviction for a homicide without a body: Murdoch v The Queen (2007) 167 A Crim R 329 (NT CCA); Thompson v The Queen [1998] AC 811 (PC); R v Smith & Turner (No 2) (1995) 64 SASR 1; 80 A Crim R 491 (CCA); Pfennig v The Queen (1995) 182 CLR 461; 77 A Crim R 149; 127 ALR 99; Weissensteiner v The Queen (1993) 178 CLR 217; R v Middap (1992) 63 A Crim R 434 (Vic CCA);

[13.3765]

MURDER

1041

Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225; R v Kray [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569; R v Onufreyczyk [1955] 1 QB 388; [1955] 1 All ER 247; (1955) 39 Cr App R 1; R v Horry [1952] NZLR 111 (CA); Peacock v The King (1911) 13 CLR 619; R v Burton (1854) Dears 282.

[13.3760] Indictment to contain murder counts only In R v Pollitt [1991] 1 VR 299; (1990) 47 A Crim R 176 Beach J said in his ruling (at 302; 179): [I]n my own view it is highly undesirable to include any other counts on a presentment that contains one or more counts of murder and that course should only be permitted in exceptional circumstances.

In R v Jones [1918] 1 KB 416 (CCA) Lawrence J giving the judgment of the court said (at 417): The charge of murder is too serious a matter to be complicated by having alternative counts inserted in the indictment … the Indictments Act 1915, did not contemplate the joinder of counts of this kind [robbery with violence].

(The report of the case in 13 Cr App R 86 at 87 has a different form of words.) Yet in Connelly v DPP [1964] AC 1254; [1964] 2 All ER 401; (1964) 48 Cr App R 183 (HL) the Lords held that there was no rigid rule to prevent a charge of murder being joined with other charges. A defendant could apply for severance. See also R v Hofschuster (1992) 110 FLR 385; 65 A Crim R 167 (at 387; 169) (NT, Mildren J). Murder counts were held to be properly joined on the one indictment in: Packett v The King (1937) 58 CLR 190; R v Kray [1970] 1 QB 125; [1969] 3 All ER 941; 53 Cr App R 569 (CCA); Miller v The Queen (1980) 55 ALJR 23; 32 ALR 321 (HC) upon appeal from R v Miller (1980) 25 SASR 170; 1 A Crim R 165; 32 ALR 321 (CCA); R v Wright and Haigh [1983] 1 VR 65; (1981) 4 A Crim R 158 (CCA); R v Andrews [1987] 1 Qd R 21; (1986) 22 A Crim R 201 (CCA); R v Surrey [2005] 2 Qd R 81; (2005) 151 A Crim R 547 (Qld CA).

[13.3765] Common purpose manslaughter Where an accused has agreed with a co-accused only that the victim be assaulted but the co-accused goes on to kill, the accused is to be convicted of manslaughter only. R v Barlow (1997) 188 CLR 1; 144 ALR 317; 93 A Crim R 113. Gilbert v The Queen (2000) 201 CLR 414; 170 ALR 88; 109 A Crim R 580. See also R v Cozzi (1999) 73 SASR 374 (CCA). The trial judge must direct the jury on manslaughter if such a verdict is possible on the evidence.

1042

ROSS ON CRIME

[13.3770]

Markby v The Queen (1978) 140 CLR 108; 21 ALR 448 per Gibbs CJ (at 113; 452); R v Collie, Kranz & Lovegrove (1991) 56 SASR 302; 55 A Crim R 139 (CCA) per King CJ (at 315–316; 152); Gillard v The Queen (2003) 219 CLR 1; 202 ALR 202; 139 A Crim R 100. Joint enterprise at [10.500].

[13.3770] Sentencing Treatment of the body after death can aggravate the sentence. In Knight v The Queen (2006) 164 A Crim R 126 (NSW CCA) the accused killed her de facto husband. The sentencing judge had said (at 129 [3]): Thereafter the prisoner, who had for many years worked as a meat slicer in abattoirs, skinned Mr Price’s body. This was carried out with considerable expertise and an obviously steady hand so that his skin, including that of the head, face, nose, ears, neck, torso, genital organs and legs, was removed so as to form one pelt … At some time after Mr Price had been skinned the prisoner hung his pelt on a meat hook on the architrave of the door of the lounge room … As is apparent from the fact that his head and neck were removed as part of one entire skin, Mr Price’s head was in place at the time he was skinned. However at some time between the time when the body was moved into the lounge room and skinned and about a time before 7.30 am on 1 March 2000 the prisoner decapitated Mr Price’s body and at some stage arranged it with the left arm draped over an empty soft drink bottle, and the legs crossed.

Ms Knight was sentenced to life imprisonment (with no minimum term). The appeal against sentence was dismissed. In DPP v England [1999] 2 VR 258; (1999) 106 A Crim R 99 (CA) the court held that defiling the corpse by sexual intercourse and burning were aggravating factors.

[13.3775] Sentence: murder At common law the penalty for murder was death: Jones v Attorney-General of the Bahamas [1995] 1 WLR 891; [1995] 4 All ER 1 (PC). The penalty has now been abrogated by legislation. See also Death at [4.300].

Legislation Qld: Criminal Code s 305: life or an indefinite sentence. Tas: Criminal Code s 158: natural life or such other term. NT: Criminal Code s 157; Sentencing Act ss 53 and 53A: mandatory life; minimum term may be fixed. NSW: Crimes Act 1900 ss 19A, 19B and 442: life or lesser sentence. Vic: Crimes Act 1958 s 3: life or such other term. SA: Criminal Law Consolidation Act 1935 s 11; Correctional Services Act 1982 s 67: life with minimum term. ACT: Crimes Act 1900 s 12(2) and Crimes (Sentencing) Act 2005 s 32(1): life or lesser sentence. NZ: Sentencing Act 2002 ss 102–105: presumption of life but minimum may be fixed.

[13.3785]

MURDER

1043

Cases Yun v The Queen (2008) 185 A Crim R 58 (NSW CCA): sentencing judge erred by starting at midrange and without regard to other factors. Resentenced to 18 years with a balance of six years. Leach v The Queen (2007) 230 CLR 1; 232 ALR 325. Two murders and a rape in 1983. After change in legislation, it was still proper to refuse to fix a non-parole period: Leach v The Queen (2005) 16 NTLR 117; 159 A Crim R 183 (CCA) approved. R v Merritt (2004) 59 NSWLR 557; 146 A Crim R 309 (CCA). A father murdered his three children. Total sentence 34 years with non-parole period 27 years. In R v Harris (2000) 50 NSWLR 409; 121 A Crim R 342 (CCA) the court imposed a life sentence with no non-parole period because of the extreme seriousness of the three murders.

Women murdering husbands (mariticide) R v Whyte (2004) 7 VR 397 (CA). R v Cumberbatch (2004) 8 VR 9 (CA). R v Parsons (2004) 145 A Crim R 519 (Vic CA). R v Osland [1998] 2 VR 636; (1997) 95 A Crim R 479 (CA).

Husbands murdering wives (uxoricide) R v Kalajzich (1997) 94 A Crim R 41 (NSW, Hunt CJ at CL). Bush v The Queen (1993) 43 FCR 549; 115 ALR 654; 69 A Crim R 416 (FCA). Wilson v The Queen (1970) 123 CLR 334.

[13.3780] Sentence: attempted murder R v Witchard [2005] 1 Qd R 428; (2004) 149 A Crim R 554 (CA): 15 years imprisonment. Byfield v The Queen (2002) 133 A Crim R 307 (WA CCA): 12 years imprisonment. R v Kelly (2000) 112 A Crim R 307 (Vic CA): 10 years imprisonment; R v Bird (2000) 110 A Crim R 394 (Qld CA): 16 years imprisonment.

[13.3785] Murder convictions set aside after an inquiry Frederick Lincoln McDermott (1948) 76 CLR 501 was released after the Royal Commission Report of Kinsella J in 1952. Jack Shand KC and Chester Porter appeared for Mr McDermott on the Royal Commission. Alice Lynne Chamberlain (Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225) was convicted of murder. JH Phillips QC appeared for her at trial, MH McHugh QC in the High Court. JS Winneke QC appeared for her in an inquiry by Morling J. She was released and in Re Conviction of Chamberlain (1988) 93 FLR 239 (NTCCA) the findings of the commission of inquiry were adopted and a verdict of acquittal entered. Kelvin Ronald Condren was convicted of murder in Queensland. His appeal failed: (1987) 28 A Crim R 261; 49 A Crim R 79. Later the Attorney General referred the case to the Court of Criminal Appeal: R v Condren; Ex parte Attorney-General [1991] 1 Qd R 574. The court ordered a new trial, but none was held. He served six and a half years in prison.

1044

ROSS ON CRIME

[13.3790]

Edward Charles Splatt was convicted of murder in South Australia. His appeal was dismissed: R v Splatt (1979) 21 SASR 211. Special leave to appeal to the High Court was refused on 12 September 1979. A Royal Commission of Inquiry (Commissioner his Honour Carl Shannon QC) reported in 1984 that he should not have been convicted. He served six and a half years in prison. Douglas Harry Rendell was convicted of murder in New South Wales. He was sentenced to life imprisonment operating from 3 August 1979. The New South Wales Court of Criminal Appeal quashed his conviction on 22 June 1994.

[13.3790] Wrongly executed Some who have been convicted of murder and executed by hanging have later been found not guilty. Timothy John Evans was convicted of murder. His appeal failed: R v Evans [1950] 1 All ER 610; (1950) 34 Cr App R 72 (CCA). He was hanged at Pentonville Prison on 9 March 1950. It transpired that the murders were committed by John Reginald Harold Christie. Mr Evans was pardoned in 1966. Derek William Bentley was alleged to have urged his young colleague to shoot a policewoman in 1952. His appeal failed. He was executed on 28 January 1953. He was feeble minded. He was pardoned in 1993. His conviction was set aside: R v Bentley [1998] EWCA Crim 2516 (unreported 30 July 1998). Colin Campbell Ross was convicted of murdering a 12-year-old girl. He lost his appeals: Ross v The King [1922] VLR 229 (FC); Ross v The King (1922) 30 CLR 246. He was hanged at Pentridge Prison on 24 April 1922. It was later established that the expert evidence was wrong and the confession to a convicted man dubious. He was pardoned on 27 May 2008. See also Re Ross (2007) 19 VR 272 (opinion of three member court).

MURDER (FELONY) Rule of felony murder .............................................................................................................. Definition of felony .................................................................................................................. Felony abolished ....................................................................................................................... The crime at present .................................................................................................................

[13.3900] [13.3905] [13.3910] [13.3915]

[13.3900] Rule of felony murder In R v Jarmain [1946] KB 74; [1945] 2 All ER 613; 31 Cr App R 39 (CCA) Wrottesley J delivering the judgment of the court said (at 80; 616; 46): [T]he object and scope of this branch of the law is at least this, that he who uses violent measures in the commission of a felony involving personal violence, does so at his own risk and is guilty of murder if those violent measures result inadvertently in the death of the victim.

In Ross v The King (1922) 30 CLR 246 Knox CJ, Gavan Duffy and Starke JJ said (at 252): [T]he unintentional killing of one person by another while such other is in the course of committing or acting in furtherance of the purpose of committing a felony that is to say, in the promotion or advancement of the purpose of committing a felony not yet accomplished, is murder.

In Macartney v The Queen (2006) 31 WAR 416 (CA) Roberts-Smith JA, with whom the other judges agreed, said (at 457 [471]): The felony-murder rule at common law did not involve any notion that the relevant act be dangerous to life. Historically, the felony-murder rule was always applied less strictly where death was caused by abortion (Lumley (1911) 22 Cox CC 635), but abortion aside, the rule was that any act of violence causing death, done in the course of furtherance of an offence involving violence,

[13.3915]

MURDER (FELONY)

1045

was murder (Director of Public Prosecutions v Beard [1920] AC 479; R v Ryan and Walker [1966] VR 553; R v Van Beelen (1973) 4 SASR 353). This formulation did not involve any consideration of the likelihood (or even possibility) of death resulting, nor the dangerousness of the act. There were some judicial attempts to incorporate the notion of a dangerous act (eg Jarmain [1946] 1 KB 74, 75, 80; Ryan v The Queen (1967) 121 CLR 205, per Windeyer J at 503, cf Taylor and Owen JJ at 499). However, as Willis points out (J Willis“Felony Murder at Common Law in Australia – The Present and the Future” [1977] 1 Crim L J 231, 235-236) the weight of authority required “an act of violence” for felony-murder and a “dangerous act” was not enough. In Van Beelen (1973) 4 SASR 353 at 400, the South Australian Court of Criminal Appeal expressly rejected the requirement that the act causing death “be of such a nature as was likely to cause death or grievous bodily harm”.

Other cases Griffıth v The Queen [2005] 2 AC 235; 2 WLR 581 (HL): robbery; Khan v The State [2005] 1 AC 374; [2004] 2 WLR 692 (PC): robbery; R v Ryan and Walker [1966] VR 553 (CCA): escape. The felony must be still on foot and not abandoned: R v Grapsas [1973] VR 857 (CCA).

[13.3905] Definition of felony Blackstone 4 Bl 95 defined felony as: [A]n offence which occasions a total forfeiture of either lands or goods, or both, at the common law; and to which capital punishment may be super added according to the degree of guilt.

In R v McHardie & Danielson (1983) 2 NSWLR 733; 10 A Crim R 51 (CCA), after examination of authorities, it was stated (at 743; 61): And so it is that for procedural and other purposes, the old distinction between felony and misdemeanour has now largely passed into history.

[13.3910] Felony abolished The distinction between felony and misdemeanour has been abolished in New South Wales, Victoria, South Australia and the Australian Capital Territory: NSW: Crimes Act 1900 s 580E; Vic: Crimes Act 1958 s 322B; SA: Criminal Law Consolidation Act 1935 s 5D; ACT: Crimes Act 1900 s 9. In the Code States the term “felony” is taken to refer to a crime under the code. NT: Criminal Code s 435A. Qld: Criminal Code s 4(a). Tas: Criminal Code s 4(1) (no reference to “felony”). WA: Criminal Code s 3(1). See also Hulley v Hill (1993) 91 NTR 41; 112 FLR 353; 69 A Crim R 52 (Mildren J).

[13.3915] The crime at present Legislation prescribes the successor to felony murder: Qld: Criminal Code s 302(1)(c), (d);

1046

ROSS ON CRIME

[13.4100]

WA: Criminal Code s 279(3), (4); Tas: Criminal Code s 157(1)(d), (e); NT: Criminal Code ss 162(1)(b), (c) and 162(2); NSW: Crimes Act 1900 s 18(1)(a); Vic: Crimes Act 1958 s 3A; SA: Criminal Law Consolidation Act 1935 s 12A; NZ: Crimes Act 1961 s 168. In Western Australia in Macartney v The Queen (2006) 31 WAR 416 (CA) RobertsSmith JA said (at 448 [473] – [475]): Section 279(2) of the Code clearly modifies what was the felony-murder rule at common law, just as the Code modified murder at common law by requiring an intent to kill (s 278 – wilful murder) or to cause grievous bodily harm (s 279(1) – murder), and so abolished “reckless” murder. The Code further departs from the common law in relation to the test. Whether the act is likely to endanger life is subjective (what the offender knows or believes) or objective. To constitute this element it is enough that the act which caused death was in fact likely to endanger human life, whether or not the offender knew it was dangerous (per Gibbs J in Stuart v The Queen at 438, citing with approval R v Gould & Barnes [1960] Qd R 283, 298; cf Crabbe at 469-470). There is no reason why s 297(2) should not be construed according to its terms, which make the likelihood of a risk of danger to life sufficient, as distinct from the likelihood of death.

In New South Wales the crime is now called constructive murder: R v Jacobs (2004) 151 A Crim R 452 at 486 [188] (NSW CCA). In South Australia it was called felony murder: R v The Queen (1995) 63 SASR 417; 79 A Crim R 191 (CCA); R v Maurangi (2000) 80 SASR 295; 117 A Crim R 446 (Matheson AJ) but now it seems to be called statutory murder: Arulthilakan v The Queen (2003) 78 ALJR 257; 203 ALR 259. Other cases R v Galas (2007) 18 VR 205 (CA); R v Butcher (1986) VR 43; 16 A Crim R 1 (CCA); Moses v The State [1997] AC 53 (PC).

MURRAY DIRECTION Origin ........................................................................................................................................ The case .................................................................................................................................... Uniform Evidence Acts s 164 .................................................................................................. Failure to give a Murray direction ........................................................................................... Other references ........................................................................................................................

[13.4100] [13.4105] [13.4110] [13.4115] [13.4120]

[13.4100] Origin The expression comes from R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (CCA). Its effect is this. Where there is only one witness to a crime the judge should give the jury a warning.

[13.4105] The case R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (CCA) was a rape and abduction case. The girl victim was the only prosecution witness. The accused denied any sexual contact.

[13.4300]

MUTINY

1047

The appeal against conviction was dismissed because the trial judge had given the directions then required by law. Lee J, with whom the other judges agreed, said (at 19; 322): In all cases of serious crime it is customary for judges to stress that where there is only one witness asserting the commission of the crime, the evidence of that witness must be scrutinised with great care before a conclusion is arrived at that a verdict of guilty should be brought in; but a direction of that kind does not of itself imply that the witness’ evidence is unreliable.

[13.4110] Uniform Evidence Acts s 164 Uniform Evidence Acts s 164 deals with corroboration. In R v V (1998) 100 A Crim R 488 (NSW CCA) Smart J, with whom the other judges agreed, said (at 497): Section 164 of the Evidence Act does not dispense with the need for a Murray direction where that direction is appropriate. Section 164 provides that it is not necessary to warn the jury that it is dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect.

[13.4115] Failure to give a Murray direction Failure to give a Murray direction, when it is called for, had caused convictions to be set aside. R v Li (2003) 140 A Crim R 288 at 300 [65] – [69] (NSW CCA); Timberry v The Queen (2007) 180 A Crim R 232 at 245–248 [79] – [97] (NSW CCA).

[13.4120] Other references See also Corroboration at [3.7900].

MUTINY Definition ................................................................................................................................... Legislation ................................................................................................................................. Incitement to mutiny ................................................................................................................. Sentence ....................................................................................................................................

[13.4300] [13.4305] [13.4310] [13.4320]

[13.4300] Definition Mutiny is an overt act of defiance to the armed services authority by persons subject to that authority. Mutiny was more likely to occur on board ship than elsewhere, at least according to folklore. In R v Grant (1957) 41 Cr App R 173 (Courts-Martial Appeal Court) Goddard CJ, Byrne and Devlin JJ said (at 175–176): [M]utiny is a collective offence, that is to say, it cannot be committed by one man.

And later, [T]here is no doubt now that mutiny is an offence which deals with collective insubordination, collective defiance or disregard of authority or refusal to obey authority.

In R v Aston (No 3) [1991] 1 Qd R 443; (1990) 48 A Crim R 109 (CCA) Williams J delivered the leading judgment. He said (at 448; 114): In my view it is the element of challenge to authority which distinguishes a “mutiny” from a “riot”.

1048

ROSS ON CRIME

[13.4305]

[13.4305] Legislation Cth: Defence Force Discipline Act 1982 s 20; Qld: Corrective Services Act 2000 s 92 (prisoner); Vic: Imperial Acts Application Act 1980 s 8 applying Petition of Right 1627 3 Car 1, c 1 [VII].

[13.4310] Incitement to mutiny Unlike mutiny itself, incitement to mutiny can be committed by an individual. Cth: Crimes Act 1914 s 25; Tas: Criminal Code s 62; Corrections Act 1997 s 3 “prison offence”Schedule 1(2); NZ: Crimes Act 1961 s 77.

[13.4320] Sentence R v Kiripatea [1991] 2 Qd R 686; (1990) 50 A Crim R 417 (CCA): prison mutiny.

N NAMES Pronunciation .............................................................................................................................. [14.100]

[14.100] Pronunciation Listed below are some names from England and their accepted pronunciations there. Bethune

Becton

Blount

Blunt

Beauchamp

Beecham

Beaulieu

Bewley

Berkeley

Barkly

Bohun

Boon

Brougham

Broom

Caius (College Cambridge)

Keys

Charteris

Charters

Cholmondeley

Chumley

Clerk

Clark

Cockburn

Coburn

Coke

Cook

Cowper

Cooper

Colquhoun

Ka-hoon

Dalziel

Dalzeel or Dee-ell

De Crespigny

de Crepnie

Derby

Darby

Dilhorne

Dillon

Farquahar

Farquar. More correct but rarely heard is Farker

Featherstonehaugh

Fanshaw, Feerstonshaw, Feston-haw, Feeson-hay or Feather-stone-hoff

Glasscock

Glasgow

1050

ROSS ON CRIME

[14.100]

Gloucester

Gloster

Grosvenor

Grovenor

Harewood

Harwood

Hobart

Hubbard

Holborn

Hoben

Holmes

Homes

Home

Hume

Keynes

Kanes

Leicester

Lester

Linacre

Linnicker

Magdalen (College Oxford and Cambridge)

Mawdlin

Mainwaring

Mannering

Marjoribanks

Marshbanks

Moynihan

Munyan

Pepys

Peeps, Peppis or Pips

Prideaux

Priddux

Raleigh

Rawley or Rahley

Reading

Redding

Ruthven

Rivven (Alan Ruthven, the 1950 Brownlow medallist, pronounced his name Ruth-ven)

Sandys

Sands

Sidebottom

Siddy-ba-tom or Sidebottom

Strawhorn

Strawn

Trebilcock

Tra-BILL-co

Vaughan

Vorn

Warwick

Worrick

Wemyss

Weems

Wodehouse

Woodhouse

Worcester

Wooster

The longest name of a recent judge was England’s James Roualeyn Hovell-Thurlow Cumming-Bruce (1912–2000). Appointed to PDA (later Family Division) April 6, 1964.

[14.305]

NATURAL JUSTICE

1051

Elevated to Lord Justice of Appeal, March 7 1977. He retired April 14, 1985. He was referred to as Cumming-Bruce LJ. (He was prosecution junior counsel in R v Lawson (1952) 36 Cr App R 30.) (The plaintiff in one case before him was Diane Lavinia Macleod-Johnstone Hart: Hart v Aga Khan Foundation Ltd [1984] 1 WLR 994; [1984] 2 All ER 439.) Running a close second to Cumming-Bruce LJ is Sir Christopher Simon Courtenay Stephenson Clarke. He was appointed to the Queen’s Bench Division on 11 January 2005. Neck and neck is Sir Terrence Michael Elkan Barnet Etherton. He was appointed to the Chancery Divsion of the High Court of Justice on 11 January 2001. The given names of the uncrowned King of England Edward VIII (1894-1972) were Edward Albert Christian George Andrew Patrick David. The best Australia has been able to produce in recent times is Christopher John Seymour Metford Carr, a Federal Court judge 1993-2005. He won the Supreme Court prize at the University of Melbourne in 1964.

NATURAL JUSTICE General rule ................................................................................................................................. Fair play in action ....................................................................................................................... Act in good faith ......................................................................................................................... No-one should be judge in his own case ................................................................................... An accuser must not be a judge ................................................................................................. Natural justice before tribunals .................................................................................................. The expression procedural fairness is more apt ........................................................................ Prohibition may be a remedy for denial ....................................................................................

[14.300] [14.305] [14.310] [14.315] [14.320] [14.325] [14.330] [14.335]

[14.300] General rule In Annetts v McCann (1990) 170 CLR 596; 97 ALR 177, Mason CJ, Deane and McHugh JJ said (at 598; 178): It can now he taken as settled that, when a statute confers power upon a public official to destroy or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by the plain words of necessary intendment.

In Mills v Hendriksen (2008) 184 A Crim R 212 (WA, Hasluck J) a magistrate, without notice, had ordered that the defendant be shackled during the hearing. Hasluck J allowed this ground of appeal. His Honour said (at 226 [85]): The rules of natural justice generally require that when an order is made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case against him and be given an opportunity of replying to it.

[14.305] Fair play in action In Wiseman v Borneman [1971] AC 297; [1969] 3 All ER 275 (HL) Lord Morris of Borth-y-Gest said (at 308–309; 278): We often speak of the rules of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analysed and described in many authorities. But any analysis must bring into relief rather their spirit and their inspiration than any precision of definition or precision as to application. We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied which, in any particular situation or set of circumstances, are right and just and fair. Natural justice, it has been said, is only “fair play in action”. Nor do we wait for directions from

1052

ROSS ON CRIME

[14.310]

Parliament. The common law has abundant riches; there may we find what Byles J called “the justice of the common law” (Cooper v Wandsworth Board of Works (1863) 14 CBNS 180 at p 194).

Applied: Tran v MIMIA (2003) 126 FCR 199 at 202 [9] (Finkelstein J). In Furnell v Whangarei High Schools Board [1973] AC 660; [1973] 1 All ER 400 (PC) Lord Morris of Borth-y-Gest repeated some of his earlier metaphor. His Lordship said (at 673; 412): Natural justice is but fairness writ large and juridically. It has been described as “fair play in action”.

[14.310] Act in good faith In Sydney Municipal Council v Campbell [1925] AC 388 (PC), Duff J said (at 343): A body such as the Municipal Council of Sydney, authorised to take land compulsorily for specified purposes, will not be permitted to exercise its powers for different purposes, and if it attempts to do so, the courts will interfere.

Approved: Werribee Council v Kerr (1928) 42 CLR 1 per Knox CJ; R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 per Aicken J.

[14.315] No-one should be judge in his own case Latin: nemo debet esse judex in propria sua causa. In Dickason v Edwards (1910) 10 CLR 243, Griffiths CJ said (at 250): It is, of course, a general rule of natural fair play that a man cannot be judge in his own case. In the case of statutory tribunals that rule is absolute, unless the statute provides, as it does in some cases, that the person who is only formally a party may nevertheless sit on the tribunal.

Thus the judge must not have a financial interest, for example, holding shares in a party: Dimes v Grand Junction Canal (1852) 3 HL Cas 759.

[14.320] An accuser must not be a judge Where a tribunal which judges the case has also laid the charge, its decision is apt to be set aside. Examples are: R v Optical Board of Registration; Ex parte Qurban [1933] SASR 1 at 8, 12-13 (FC); R v Medical Board of SA; Ex parte S (1976) 14 SASR 360 (FC). Refusal to set aside: Re Medical Board (WA); Ex parte P (2001) 24 WAR 127 (Murray J).

[14.325] Natural justice before tribunals In Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) the plaintiff had been warned off racecourses and his trainer’s licence revoked. His civil jury action against the Jockey Club failed. He appealed and lost that too. Tucker LJ said at 118: There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth.

[14.500]

NECESSITY

1053

Approved: R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 112 CLR 546 at 562; NCSC v News Corp (1984) 156 CLR 296 at 311–312; O’Rourke v Miller (1985) 156 CLR 342 at 535; Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 at 613 (CLR) per Brennan J; R v Chairman of Parole Board of NT (1986) 43 NTR 13 (FC).

[14.330] The expression “procedural fairness” is more apt In Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 Mason J said (at 584–585; 346–347): What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting … In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.

See also Penelope Pether, “We say the law is too important just to get one kid” (1999) 21 Sydney Law Review 114-123.

[14.335] Prohibition may be a remedy for denial In Magistrates’ Court (Vic) v Murphy [1997] 2 VR 186; 89 A Crim R 403 (CA) Charles JA said (at 213; 432–433): It is clearly the law that prohibition is available to restrain the continuation of legal proceedings conducted in such a way as to deny natural justice: R v Kent Police Authority; Ex parte Godden [1971] 2 QB 662; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Craig v South Australia (1995) 184 CLR 163 at 175-6. As Sheller JA said in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 618, “A classic case for intervention by way of prohibition is that where a person proposes to sit in a judicial capacity in breach, by reason of partiality, of the rules of natural justice”, in reliance upon R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258-63.

See also Audi alterem partem at [1.7000]; Bias at [2.1800]; Coroner at [3.7500]; Dietrich at [4.2100]; Prerogative writ at [16.3500]; Procedural fairness at [16.5700]; and Prohibition at [16.6100].

NECESSITY Necessity is a defence ................................................................................................................ Cases where the defence has been found not to appear on the facts ....................................... Cases where the defence has been held to apply ...................................................................... Statutory application of the necessity defence ..........................................................................

[14.500] [14.505] [14.510] [14.520]

[14.500] Necessity is a defence According to Young CJ and King J in R v Loughnan [1981] VR 443 (CCA) the defence of necessity at common law involves the following elements (at 448):

1054

ROSS ON CRIME

[14.505]

[T]he criminal act must have been done only in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect … … the accused must honestly believe on reasonable grounds that he was placed in a situation of imminent peril… … the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

The facts constituting the defence must be evident to the actor at the time of the commission of the offence: Limbo v Little (1989) 65 NTR 19; 98 FLR 421; 45 A Crim R 61 at 46–48, 448–449, 87–88 (CA). In R v Rogers (1996) 86 A Crim R 542 (NSW CCA) Gleeson CJ said (at 546): The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

Approved: Mark v Henshaw (1998) 85 FCR 555; 101 A Crim R 122; 155 ALR 118 (FCA) in a joint judgment (at 559; 121; 126). See also, Re A (Children) (2000) 9 BHRC 261; 57 BMLR 1; [2001] Fam 147 where necessity was successfully used as a defence to justify the medical killing of one conjoined twin to save the other.

[14.505] Cases where the defence has been found not to appear on the facts In the following cases, necessity was argued but held not to apply: Police v Bayley (2007) 96 SASR 555; 48 MVR 20 (David J): The respondent drove dangerously to escape a car driven by people with whom he had argued earlier. The appeal was dismissed: Bayley v Police (2007) 99 SASR 413; 178 A Crim R 202; 49 MVR 376 (CA) in which the court said that the defence is a rare one; Clarkson v The Queen (2007) 209 FLR 387; 171 A Crim R 1 (NSW CCA): passports and drivers licences in false names to mask his identity from gangland threats; R v Quayle [2005] 1 WLR 3642; [2005] 2 Cr App R 527; [2006] 1 All ER 988 (CA): ill people produce cannabis to allay pain; R v Japaljarri (2002) 134 A Crim R 261 (Vic CA): murder; R v Latimer [2001] 1 SCR 3; (2001) 193 DLR (4th) 577; 150 CCC (3d) 129 (SCC): father’s second degree murder of daughter with cerebral palsy but not terminally ill; R v Lorenz (1998) 146 FLR 369 ACT, Crispin J: theft from supermarket, battered woman syndrome no defence; R v Rogers (1996) 86 A Crim R 542 (NSW CCA): escape; Limbo v Little (1989) 65 NTR 19; 98 FLR 421; 45 A Crim R 61 (CA): trespass; R v Dixon-Jenkins (1985) 14 A Crim R 372 at 378 (Vic CCA): threatening to cause damage; R v Loughnan [1981] VR 443 (CCA): escape.

[14.705]

NEGLIGENCE

1055

[14.510] Cases where the defence has been held to apply R v Pommell [1995] 2 Cr App R 607 (CA); Woodward v Morgan (1990) 10 MVR 474 (Vic, O’Bryan J): doctor speeding to help a sick patient; White v Christian (1987) 9 NSWLR 427; 31 A Crim R 194 (NSW District Ct., Shadbolt DCJ): exceeding the speed limit when taking a sick son to hospital; In Perka v The Queen [1984] 2 SCR 232 (SCC) a distressed vessel carrying drugs sought refuge in Canadian waters.

[14.520] Statutory application of the necessity defence All of the code jurisdictions in Australia have a statutory verision of the necessity defence, which is in similar terms to the common law. For example, s 41 of the Criminal Code 2002 (ACT) provides that: (1) A person is not criminally responsible for an offence if the person carries out the conduct required for the offence in response to circumstances of sudden or extraordinary emergency. (2) This section applies only if the person reasonably believes that – (a) circumstances of sudden or extraordinary emergency exist; and (b) committing the offence is the only reasonable way to deal with the emergency; and (c) the conduct is a reasonable response to the emergency. Section 10.3 of the Criminal Code (Cth), s 322R(2) of the Crimes Act 1958 (Vic) (which only applies to murder, manslaughter, and defensive homicide), and s 25 of the Criminal Code (WA) and s 25 of the Criminal Code (Qld) is in similar terms. See also, Pt IIAA of the Criminal Code (NT). See also Defence at [4.700] and Duress at [4.5900].

NEGLIGENCE Introduction ................................................................................................................................. Medical negligence ..................................................................................................................... Duty of persons in charge of dangerous things ......................................................................... Negligence causing injury or harm ............................................................................................ Defence proof of no negligence ................................................................................................. Other reference ............................................................................................................................

[14.700] Introduction Negligence gives rise to a number of different criminal offences.

[14.705] Medical negligence Some legislation refers to acts of medical treatment.

Legislation Qld: Criminal Code s 288; WA: Criminal Code s 265.

[14.700] [14.705] [14.710] [14.715] [14.720] [14.725]

1056

ROSS ON CRIME

[14.710]

Each section is the same. They provide: It is the duty of every person who, except in a case of necessity, undertakes to administer surgical or medical treatment to any other person, or to do any other lawful act which is or may be dangerous to human life or health, to have reasonable skill and to use reasonable care in doing such act; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to observe or perform that duty.

Cases The cases that courts apply to these sections derive from the common law. In R v Bateman (1925) 19 Cr App R 8; [1925] All ER Rep 45 (CCA) a doctor delivered a baby which after a difficult labour was born dead. Many eminent doctors said that the actions were proper. He was convicted of manslaughter. The court allowed the appeal. The appeal turned on the proper directions to the jury. Hewart LCJ gave the judgment of the court. His Lordship said (at 11–12; 48): In explaining to juries the test which they should apply to determine whether the negligence, in the particular case, amounted or did not amount to crime, judges have used many epithets such as “culpable,”“criminal,”“gross,”“wicked,”“clear”, “complete.” But, whatever epithet be used and whether an epithet be used or not, in order to establish criminal liability the facts must be such that, in the opinion of the jury, the negligence of the accused went beyond a mere matter of compensation between subjects and showed such disregard for the life and safety or others as to amount to a crime against the State and conduct deserving punishment.

And later (at 16; 51): It is desirable that, as far as possible, the explanation of criminal negligence to a jury should not be a mere question of epithets. It is, in a sense, a question of degree, and it is for the jury to draw the line, but there is a difference in kind between the negligence which gives right to compensation and the negligence which is a crime.

Approved: R v Adomako [1995] 1 AC 71; [1994] 3 All ER 79; (1994) 99 Cr App R 362 (HL); Akerele v The King [1943] AC 255; [1943] 1 All ER 367 (PC); In R v Miller [1962] Qd R 594 (CCA) Sable J (at 599) referred with approval to an earlier unreported decision in which Mansfield CJ had said: [I]t may possibly be better that a direction in the terms given in Bateman’s case be followed in matters of this sort but I do not think it is essential.

In Airedale Hospital Trustees v Bland [1993] AC 789; [1993] 1 All ER 821 (HL) it was held that turning off a life support system was not a crime.

[14.710] Duty of persons in charge of dangerous things Some legislation sets out the duty of a person in charge of a dangerous thing.

Legislation Qld: Criminal Code s 289; WA: Criminal Code s 266. Each section is the same. They provide: It is the duty of every person who has in his charge or under his control anything, whether living or inanimate, and whether moving or stationary, of such a nature that, in the absence of care or precaution in its use or management, the life, safety, or health of any person may be endangered, to use reasonable care and take reasonable precautions to avoid such danger; and he is held to have caused any consequences which result to the life or health of any person by reason of any omission to perform that duty.

[14.715]

NEGLIGENCE

1057

Cases The common law applies to these sections as it did to the ones above. Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545 was about one boy shooting his best friend by accident when they were out hunting. The High Court set the conviction aside. Brennan, Dawson and Gaudron JJ said (at 78–79; 547; 166): In order to establish criminal responsibility for causing a death under s 289, the Crown must prove that an accused was guilty of that degree of negligence which is punishable as manslaughter under the common law: Callaghan v The Queen (1952) 87 CLR 115 at 124; R v Scarth [1945] St R Qd 38.

Omodei v Western Australia (2006) 166 A Crim R 40 (WA, Johnson J) was an appeal from a magistrate’s conviction. A father and son were hunting. The father’s shot hit the son on the hand. The appeal was dismissed. His Honour said (at 54 [134]): [T]he question of foreseeability of serious harm or “accident” is relevant to whether or not criminal negligence is established.

In R v Scarth [1945] St R Qd 38 (CCA) Macrossan SPJ said (at 45–46): [T]he phrases “reasonable care” and “reasonable precautions” should be given the well-established meaning given to them by judges expounding the common law.

Dangerous thing: In R v Clark (2007) 171 A Crim R 532 (Qld CA) the appellant had not properly fixed a harness to a woman who was riding a flying fox between trees. He was an employee of the company running that scheme. The victim fell 20 metres and was badly injured. The trial judge had directed on recklessness. Held: appeal against conviction dismissed. The failure to exercise reasonable care in this dangerous operation. Pacino v The Queen (1998) 105 A Crim R 309 (WA CCA): dangerous dogs. R v Stott and van Embden (2001) 123 A Crim R 359 (Qld CA): heroin injected into a victim. R v Hodgetts and Jackson [1990] 1 Qd R 456; (1989) 44 A Crim R 320 (CCA): meat preservative put in coca cola can be expected to be drunk by a vagrant. He did and died. Non-dangerous thing: In R v DDB [2007] 1 Qd R 478; (2006) 166 A Crim R 543 (CA) a grandmother allowed her seven and nine-year-old grandsons to drive a tiny forklift. Grandfather had earlier given them careful instructions about it. The boys were familiar with vehicles. Held: the trial judge did not instruct the jury properly on recklessness. The forklift was not dangerous. Appeal against conviction allowed. Acquittal entered.

[14.715] Negligence causing injury or harm Legislation recites the offence of negligence causing injury or harm. Their application is often in motor vehicle cases.

Legislation Qld: Criminal Code s 328; WA: Criminal Code s 304; NT: Criminal Code ss 43AL and 174E; NSW: Crimes Act 1900 ss 54 and 212;

1058

ROSS ON CRIME

[14.720]

Vic: Crimes Act 1958 s 24; ACT: Criminal Code 2002 (ACT) ss 21 and 52 (negligence of a corporation).

Cases In R v BBD [2007] 1 Qd R 478; (2006) 166 A Crim R 543 (CA) Philip McMurdo J said (at [50]): In Queensland, where recklessness is not an express element of an offence under s 328, it is unnecessary, and in my respectful view, conducive to unnecessary complication to direct a jury that they must find recklessness. What is essential is that a jury understands that the prosecution must prove that the defendant’s default was so serious that it should be regarded as a crime and deserving of punishment. Accordingly the standard direction according to the benchbook makes the distinction between negligence which supports a civil claim for compensation and that more serious act or omission which warrants criminal punishment. In making that distinction, it is apt to tell juries that the defendant’s conduct must be deserving of moral condemnation. Hence the benchbook direction as to the element of “grave moral guilt deserving of punishment”. But it is unnecessary and undesirable to add recklessness, as if it were a separate element of the offence.

In R v Shields [1981] VR 717; (1980) 2 A Crim R 237 (CCA) the applicant had been convicted of negligent driving causing grievous bodily injury. The court examined authority then in a joint judgment said (at 723; 244): Accordingly the jury may be directed that the Act or omission must have taken place in circumstances which involved such a great falling short of the standard of care which a reasonable man would have exercised, and which involved such a high risk that grievous bodily injury would follow, that the act or omission merits punishment under the criminal law.

In R v Leskinen (1978) 23 ACTR 1; 36 FLR 414 Blackburn CJ ruled that the test of driving causing grievous bodily harm (under legislation then in force in ACT) required the degree of negligence appropriate to manslaughter. In Patel v The Queen [2012] HCA 29 the appellant submitted that offence contained in s 288 of the Criminal Code (Qld) did not apply to the decision whether to proceed with proceed and only applied to the surgery itself. This was rejected by the Court, which stated that it imposed a duty with respect to the decision to proceed with jury. The plurality (French CJ, Haye, Crennan and Kiefel JJ) stated, at [24]: It may be accepted that the word “act” in the phrase “doing such act” refers back to “surgical or medical treatment ... or ... any other lawful act”. The act to which it refers is not, however, restricted to the act of surgery. It refers to surgical treatment, which may readily be understood to encompass all that is provided in the course of such treatment, from the giving of an opinion relating to surgery to the aftermath of surgery. It would be a strange result if the section was taken as intending to impose a duty with respect to the conduct of surgery and its aftermath, but not to require the exercise of skill and care in the judgment which led to it.

[14.720] Defence proof of no negligence It may be that in a public welfare offence the person charged can avoid conviction by proving no negligence. The standard of proof would be on the balance of probabilities. In R v Sault Ste Marie [1978] 2 SCR 1299 (SCC) Dickson J, delivering the judgment of the court, said (at 1312–1313): Public welfare offences involve a shift of emphasis from the protection of individual interests to the protection of public and social interests. See Sayre, Public Welfare Offences (1933) 33 Colum L Rev 55; Hall, Principles of Criminal Law, (1947), ch 13; Perkins, The Civil Offence (1952), 100 U of Pa L Rev 832; Jobson, Far from Clear, 18 Crim L Q 294. The unfortunate tendency in many past cases has been to see the choice as between two stark alternatives; (i) full mens rea; or (ii) absolute liability. In respect of public welfare offences (within which category pollution offences fall) where full mens rea is not required, absolute liability has often been imposed. English

[14.900]

NEMO DEBET BIS VEXARI

1059

jurisprudence has consistently maintained this dichotomy: see Hals. (4th ed.) Vol. II, Criminal Law, Evidence and Procedure, para 18. There has, however, been an attempt in Australia, in many Canadian courts, and indeed in England, to seek a middle position, fulfilling the goals of public welfare offences while still not punishing the entirely blameless. There is an increasing and impressive stream of authority which holds that where an offence does not require full mens rea, it is nevertheless a good defence for the defendant to prove that he was not negligent.

[14.725] Other reference See also Dangerous Act at [4.100]; Driving causing death or injury at [4.5000]; Manslaughter at [13.1300].

NEMO DEBET BIS VEXARI Definition ..................................................................................................................................... Legislation ................................................................................................................................... Conspiracy and substantive offence ........................................................................................... Other cases .................................................................................................................................. Second offence not sufficiently related to first .......................................................................... The principle applies to the Magistrates’ Court ........................................................................

[14.900] [14.905] [14.910] [14.915] [14.920] [14.925]

[14.900] Definition The Latin phrase “Nemo debet bis vexari pro una et eadem causa” translates to “No-one ought to be twice harassed for one and the same cause”. Another version is: nemo debet bis punari pro uno delicto. In Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417 Deane and Gauldron JJ said (at 277; 436; 481): [T]he conclusive aspect of autrefois acquit or that aspect of it which maintains the incontrovertible character of judicial decisions derives from the principle embodied in the maxim res judicata pro veritate accipitur. Its preclusive aspect, or that aspect which prevents the relitigation of matters already determined in favour of the accused, derives from the same principles as issue estoppel, as is the principle embodied in the maxim nemo debet bis vexari pro eadem causa which, in its application to criminal proceedings, has become known as the rule against double jeopardy.

In Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298; 100 A Crim R 521 (FC) Anderson J said (at 314; 537): The common law rule against double punishment is very strong: Johnson v Needham [1909] 1 DB 626; Johnson v Miller (1937) 59 CLR 467; Byrne v Baker [1964] VR 443 at 454-458; Broken Hill Associated Smelters Pty Ltd v Stevenson at 145-146; O’Loughlin; Ex parte Ralphs (1971) 1 SASR 219. I think it would require clear legislative language to displace it.

In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372; 156 ALR 684 Gummow J said (at 625; 695; 384 [54]): The maxim, nemo debet bis vexari pro una et eadem causa (it is the rule of law that a man shall not be twice vexed for one and the same cause), appears in Sparry’s case: (1589) 5 Co Rep 61a; 77 ER 148. The maxim applies not only to res judicata doctrines but also to vexatious litigation and abuse of process: Kersley, Broom’s Legal Maxims, (10th ed, 1969), p 220. In its application to criminal proceedings, it “has become known as the rule against double jeopardy”: Rogers v The Queen (1994) 181 CLR 251 at 277.

1060

ROSS ON CRIME

[14.905]

See also Island Maritime Ltd v Filipowski (2006) 226 CLR 328; 162 A Crim R 409; 228 ALR 1 at 343; 12; 421–422 [41] per Gummow and Hayne JJ.

[14.905] Legislation Some legislation prevents double jeopardy: Cth: Crimes Act 1914 s 50FC; Criminal Code Act 1995 s 71.18; Commonwealth Places (Application of Laws) Act 1970 s 8; Qld: Evidence Act 1977 s 39P; Criminal Code s 17; Tas: Criminal Code s 11; NT: Criminal Code ss 17–21; NSW: Crimes (Sentencing Procedure) Act 1999 s 20; Crimes Act 1900 s 52AA(6); Vic: Charter of Human Rights and Responsibilities Act 2006 s 26; Interpretation of Legislation Act 1984 s 51; Juries Act 2000 s 86; SA: Acts Interpretation Act 1915 s 50; ACT: Human Rights Act 2004 s 24; NZ: New Zealand Bill of Rights Act 1990 s 26(2); Can: Canadian Charter of Rights and Freedoms s 11(h).

[14.910] Conspiracy and substantive offence In R v Hoar (1981) 148 CLR 32; 37 ALR 357 Messrs Hoar and Noble were convicted of conspiracy to fish for barramundi during a prohibited period. The majority said (at 37–38; 361): We are told that, notwithstanding the conviction for conspiracy, there are pending against Hoar charges for summary and substantive offences under the Fisheries Act based on the same transactions as those involved in the offence of conspiracy. The Solicitor-General for the Northern Territory informed this Court that the Crown had not decided whether to proceed with these charges. Twelve of the offences are alleged to be constituted by acts which were overt acts of the conspiracy, and were taken into account by the Federal Court in determining sentence to be imposed for that offence. Further prosecutions would therefore seek further punishment for the same acts. That suggests that the Crown’s advisers have overlooked practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act (see Connolly v Meagher (1906) 3 CLR 682). It has long been established that prosecutions for conspiracy and for a substantive offence ought not to result in a duplication of penalty.

[14.915] Other cases In R v Audino (2007) 180 A Crim R 371 (Vic CA) the lady driver was sentenced for culpable driving by having excess alcohol and for the summary offence of driving with excess alcohol. Appeal against sentence allowed; Davern v Messel (1984) 155 CLR 21; 53 ALR 1 per Gibbs CJ (at 29–30; 5–6); Falkner v Barba [1971] VR 332 (Gillard J): Assault of a building inspector and interference in the course of his duties; R v Donnelly (1920) 14 QJPR 62 (Shand J): Resisting arrest bars a prosecution for assault police in the execution of his duty. Perry J came to the same conclusion in Ingomar v Police (1998) 72 SASR 232;

[14.1100]

NO CASE SUBMISSION

1061

Gould v Sin On Lee (1912) 6 QJPR 15 (Jameson J): Unlawful possession of opium and unlawfully having in opium in his possession.

[14.920] Second offence not sufficiently related to first Connolly v Meagher (1906) 3 CLR 682 and in the Full Court [1906] St R Qd 125; [1906] QWN 23: Supply of liquor to a boy under 14 years and keeping premises open for sale of liquor during prohibited hours. Howard v Pacholi [1973] VR 833 (Anderson J): Aiding and abetting after discharge on conspiracy. This decision should not be followed because of R v Hoar (1981) 148 CLR 32; 37 ALR 357.

[14.925] The principle applies to the Magistrates’ Court In Flatman v Light [1946] KB 414; [1946] 2 All ER 368 (KBD) Lord Goddard said (at 419; 370): When a case is being dealt with by a court of summary jurisdiction I think it is true to say what the court must do is to give effect to the maxim nemo debet bis vexari pro una et eadem causa.

See also Double jeopardy at [4.4600].

NO CASE SUBMISSION The test-magistrate or judge without a jury ............................................................................. Committal .................................................................................................................................. Jury cases .................................................................................................................................. Prasad direction ......................................................................................................................... No case submission in a case based on circumstantial evidence ............................................ No case submission at joint trial .............................................................................................. Submission and ruling in open court in the absence of the jury ............................................ No case submission wrongly rejected ...................................................................................... Ten hints on a no case submission ...........................................................................................

[14.1100] [14.1105] [14.1110] [14.1115] [14.1120] [14.1125] [14.1130] [14.1135] [14.1140]

[14.1100] The test-magistrate or judge without a jury In deciding whether to dismiss information at the close of the prosecution case upon a submission of no case to answer, the test to be applied is whether there is evidence which, if accepted would provide evidence of each element of the charge. Even if there is such evidence, it may be so lacking in weight or reliability that it is open to the court, as a matter of discretion, to dismiss the information. The proper approach to take is discussed in R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060; (1981) 73 Cr App R 124 (CA) (at 1042; 1062; 127): (1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty–the judge will stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence: (a) where the judge concluded that the prosecution evidence, taken at its highest is such that a jury properly directed could not properly convict on it, it is his duty on a submission being to stop the case. (b) where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability or other matters which are generally speaking within the jury’s province and where on one

1062

ROSS ON CRIME

[14.1105]

possible view of the facts there is evidence on which the jury could properly conclude that the defendant is guilty, then the judge should allow the matter to be tried by the jury. There will of course, as always in this branch of the law, be borderline cases. “They can safely be left to the discretion of the judge”.

Other cases Wilson v Kuhl [1979] VR 315 at 319 (McGarvie J); R v Galbraith [1981] 1 WLR 1039; [1981] 2 All ER 1060; (1981) 73 Cr App R 124 was the subject of lively discussion in Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 at 213–214 (CLR). Galbraith would seem to apply still where there is no jury.

[14.1105] Committal The Federal Court in Thorp v Abbotto (1992) 34 FCR 366; 106 ALR 239; 59 A Crim R 208 held that the principle in Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 applies to a magistrate hearing a committal. That is, the defendant must be committed if there is evidence capable of supporting a jury verdict of guilty. Otherwise a magistrate should not commit a person for trial even on the basis that the prosecution evidence lacks credibility: Sedrak v Carney (1999) 108 A Crim R 311 (FCA, Kenny J).

[14.1110] Jury cases In Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 the High Court said (at 214–215; 544; 162): It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

In R v Morris (1997) 98 A Crim R 408 (WA CCA) Ipp J delivering the leading judgment said (at 416–417): [W]hen a no case submission is made at the end of the Crown case, the test is not whether upon the whole of the evidence it would be open for the jury to be satisfied beyond reasonable doubt that the accused was guilty (compare M (1994) 181 CLR 487; 76 A Crim R 213). The test, as I have pointed out, is whether the defendants could lawfully be convicted and the trial judge, at that stage, “is required to take into account all inferences most favourable to the prosecution which could reasonably be drawn from the primary facts”. As Kitto J explained in Zanetti v Hill (1962) 108 CLR 433 at 442-443, there is no reason “why a weakness in the prosecution’s case may not be eked out by something in the case for the defence or why a prima facie inference which by itself would not be strong enough to exclude reasonable doubt may not be hardened to satisfaction beyond reasonable doubt by a failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so”.

[14.1115] “Prasad” direction The trial judge’s power to advise a jury to acquit is expressed in R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 (CCA) by King CJ at 163; 47. See also Prasad direction at [16.2900].

[14.1120] No case submission in a case based on circumstantial evidence In Case Stated by DPP (No 2 of 1993) (1993) 70 A Crim R 323 (CCA) King CJ said (at 327):

[14.1130]

NO CASE SUBMISSION

1063

I would re-state the principles, in summary form, as follows. If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the judge might consider such evidence to be. If the case depends upon circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or to put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence.

In Western Australia v Montani (2007) 182 A Crim R 155 (WA CA) the charge was murder based on circumstantial evidence. The trial judge offered defence counsel the chance to make a no case submission. Counsel declined. The judge nevertheless ruled that there was no case to answer. The prosecution appealed successfully. The trial judge had not viewed the evidence as a whole, a totality, taking the prosecution evidence at its highest.

[14.1125] No case submission at joint trial Where one accused makes a no case submission at the close of the prosecution case the question arises should the submission be heard, then or deferred until the co-accused have given evidence. In South Australia the practice is to hear the no case submission when the prosecution case closes: R v Johnson (1979) 22 SASR 161 (CCA) per Mitchell J and Willimans AJ at 182–183; R v Myall (1986) 43 SASR 258 (CCA) per Matheson J at 262 and Olsson J at 265; Ayles v The Queen (1993) 66 A Crim R 302 (SA CCA) per Perry J at 320–321. In Western Australia the same position seems to apply as in South Australia: Prashar v The Queen [1989] 1 WAR 190; 37 A Crim R 70 (CCA) per Rowland J (at 198–199; 77–79). The position is different in Victoria. In R v Faure and Corrigan [1978] VR 246 Young CJ ruled (at 247): It is clearly established in Victoria, by the decision of the Full Court in R v Anthony [1962] VR 440, that on a trial of several co-accused a trial judge should not rule on the submission on behalf of one accused that there is no case for him to answer until the evidence on behalf of the other accused has been given, and the accused so submitting may postpone electing whether to call evidence until such other evidence has been called and the submission ruled upon.

[14.1130] Submission and ruling in open court in the absence of the jury The judge’s ruling should be in open court in the absence of the jury. In R v Wati [1985] 1 NZLR 236 (CA) the court said in a joint judgment (at 240): [T]he appropriate course is to hear such an application in the absence of the jury and preferably in open court for the application is itself a part of the trial at which the accused is entitled to be present.

In Crosdale v The Queen [1995] 1 WLR 864; [1995] 2 All ER 500 (PC) Lord Steyn gave the advice of the Board. His Lordship during a long examination of the subject said (at 873; 508): There is no reason why the jury should be privy to the judge’s reasons for his decision. In order to avoid any risk of prejudice to the defendant the jury should not be present during the course of the

1064

ROSS ON CRIME

[14.1135]

judgment or be told what the judge’s reasons were. If the judge rejects a submission of no case, the jury need know nothing about his decision. No explanation is required. If the judge rules in favour of such a submission on some charges but not on others, or rules in favour of it in respect of some defendants but not others, the jury inevitably will know about the decision. All the jury need then to be told by the judge is that he took his decision for legal reasons. Any further explanation will risk potential prejudice to a defendant or defendants.

Other cases De Four v The State [1999] 1 WLR 1731 at 1735 (PC); Lobban v The Queen [1995] 1 WLR 877; [1995] 2 All ER 602; [1995] 2 Cr App R 503 (at 890; 614; 587) (PC); R v Falconer-Atlee (1973) 58 Cr App R 348 at 354.

[14.1135] No case submission wrongly rejected In R v Salvo [1980] VR 401 (CCA), McInerney J said (at 417): It is settled that if a no case submission is wrongly rejected by a trial Judge the Court of Appeal is not bound to quash the conviction if the evidence from the defence supplies that which was lacking on the part of the prosecution: see R v Power [1919] 1 KB 572.

A similar view was taken in R v Rowley (1986) 23 A Crim R 371 (CCA) per Young CJ and King J (at 375). A more refined approach was recommended in Durovic v The Queen (1994) 4 Tas R 113; 71 A Crim R 33 (CCA). The court said in a joint judgment (at 132; 52): [A]n appellate court considering the sufficiency of the evidence should conclude that there has been appealable error if a no case submission is wrongly rejected at the trial. But we are also of the provisional view that if the appellate court then upholds the relevant ground of appeal, it is entitled to, and should, examine the whole of the evidence given at the trial, including the defence evidence, for the purpose of deciding whether or not the proviso should be applied and the appeal dismissed. Normally, we would think, the provision of incriminating evidence by the accused or his witnesses would justify the appellate court in dismissing the appeal if no other substantial grounds of appeal could be sustained.

Yet in England the defence cannot supply the prosecution’s lack of evidence. In R v Smith [1999] 2 Cr App R 238; [2000] 1 All ER 263 (CA) Mantell LJ said (at 242; 266): What if a submission is wrongly rejected but the defendant is cross-examined into admitting his guilt? Should the conviction be said to be unsafe? We think it should. The defendant was entitled to be acquitted after the evidence against him had been heard. To allow the trial to continue beyond the end of the prosecution case would be an abuse of process and fundamentally unfair.

[14.1140] Ten hints on a no case submission 1. Analyse the elements of the main charge. 2. Analyse the elements of any alternative charge. 3. Collect all the direct evidence on each element of each charge. 4. Collect all the circumstantial evidence on each element of each charge. 5. Is there an absence of direct evidence on any element? 6. Does any circumstantial evidence exclude all hypotheses consistent with innocence? 7. Is all the evidence incapable of proving any element?

[14.1315]

NOLLE PROSEQUI

1065

8. Take the court to the elements. 9. Take the court to the evidence. 10. Refer to any authorities.

NOLLE PROSEQUI Definition ................................................................................................................................... Entry at any time before verdict .............................................................................................. Legislation ................................................................................................................................. Fresh indictment after nolle prosequi ...................................................................................... Judge can refuse the filing of a nolle prosequi ....................................................................... Stay of criminal proceedings after earlier entry of a nolle prosequi is exceptional .............. Form of written nolle prosequi under Codes ...........................................................................

[14.1300] [14.1305] [14.1310] [14.1315] [14.1320] [14.1325] [14.1330]

[14.1300] Definition Nolle prosequi is a Latin term meaning to be unwilling to prosecute. In Victoria it is now called a discontinuance of prosecution. Proceedings on indictment will be stayed on an announcement in court by the Attorney-General, the Director of Public Prosecutions or by a prosecutor of the decision not to proceed together with the filing of a document to that effect. Application for a nolle prosequi is usually made on behalf of an accused by written submission to the Director of Public Prosecutions.

[14.1305] Entry at any time before verdict The prosecution can enter a nolle prosequi at any time before verdict: R v GKA (1998) 99 A Crim R 491 (NSW CCA) per Cole JA at 493–494. In Victoria, a prosecution can be discontinued at any time except during trial.

[14.1310] Legislation Cth: Director of Public Prosecutions Act 1983 s 9(4); Qld: Criminal Code s 563; WA: Criminal Procedure Act 2004 s 87(3); Tas: Criminal Code s 350; NT: Criminal Code s 302; NSW: Director of Public Prosecutions Act 1986 s 7(2); Vic: Criminal Procedure Act 2009 s 177 (in Victoria, a nolle prosequi is called a discontinuance); SA: Director of Public Prosecutions Act 1991 s 7(1)(e); ACT: Director of Public Prosecutions Act 1990 ss 6(1)(i) and 7(6). The entry of a nolle prosequi does not establish the innocence of an accused: Davis v Gell (1924) 35 CLR 275.

[14.1315] Fresh indictment after nolle prosequi The announcement of a nolle prosequi does not bar a fresh indictment and a trial on that fresh indictment: R v Seidler [1986] 1 Qd R 486 (Carter J);

1066

ROSS ON CRIME

[14.1320]

R v Doyle (1987) 30 A Crim R 379 (Qld CCA); R v Breen (1990) 67 NTR 15; 99 FLR 474; 47 A Crim R 298 (Angel J); Richards v The Queen [1993] AC 217; [1992] 4 All ER 807; (1992) 96 Cr App R 268 (PC); R v Swingler [1996] 1 VR 257; (1995) 80 A Crim R 471 (CA) at 265; 478–479; R v Steindl (2002) 2 Qd R 542; 124 A Crim R 520 (CA); Wilson v Police (2003) 85 SASR 422; 141 A Crim R 359 (Perry J).

[14.1320] Judge can refuse the filing of a nolle prosequi A judge has power to prevent the filing of a nolle prosequi where injustice would result for example, where the prosecution has not made out its case or the judge were to give a Prasad Direction: R v YL (2004) 187 FLR 84 (ACT, Crispin J); R v Jell; Ex parte Attorney-General [1991] 1 Qd R 48; (1990) 46 A Crim R 261 (CCA); R v Ferguson [1991] 1 Qd R 35; (1990) 45 A Crim R 258 (CCA); Williamson v Trainor [1992] 2 Qd R 572; (1991) 56 A Crim R 102 (CCA) per Ambrose J (at 581–582; 112); Rona v District Court (SA) (1995) 66 SASR 223; 77 A Crim R 16 (FC) per King CJ (at 228; 21). See also No case submission at [14.1100]. A judge also has the power to refuse the filing of a nolle prosequi where the judge has refused the prosecution an adjournment: R v Lorkin (1995) 15 WAR 499; 82 A Crim R 196 (CCA). In DPP v A (a child) (2001) 23 WAR 331; 117 A Crim R 551 Roberts-Smith J held (at 338; 558 [36]): It is within the inherent power of the court to decline to accept a nolle prosequi even before the trial has commenced if it is necessary to prevent an abuse of process and to avoid unfairness and prejudice to the accused.

The power of a judge to refuse to accept a nolle prosequi is subject to limitations and should be exercised only in rare or exceptional circumstances to promote the integrity of the court: Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450; 88 A Crim R 1 (FC). Where a judge refuses to accept a nolle prosequi before the trial begins there can be no Director of Public Prosecution’s reference or case stated. This is because there has been no question arising out of the trial: DPP (SA) v B (1998) 194 CLR 566; 101 A Crim R 420; 155 ALR 539 (HC). Where a person has been committed for trial but no indictment has been filed, if it is not intended that the person be tried, then in the code States at least, the procedure is by No True Bill.

[14.1325] Stay of criminal proceedings after earlier entry of a nolle prosequi is exceptional In R v Swingler [1996] 1 VR 257; (1995) 80 A Crim R 471 (CA) the court said in a joint judgment (at 265–266; 479–480):

[14.1330]

NOLLE PROSEQUI

1067

[T]he entry of a nolle prosequi is not in law or in fact an official act by the executive amounting to a promise or representation that the accused will not be presented again on the same charge. It is not tantamount to an acquittal: Davis v Gell (1924) 35 CLR 275 at 287 per Isaacs ACJ It is an act “well understood at common law to amount to a termination of proceedings without an adjudication and creating no bar to a subsequent suit”: Broome v Chenoweth (1946) 73 CLR 583 at 599 per Dixon J. Although, as we have been told, it is an act which, at least in Victoria, normally leads to the termination of proceedings, it does not and cannot carry with it a promise or representation of immunity from suit. Compare R v Croydon Justices; Ex parte Dean [1993] QB 769; 3 All ER 198; 98 Cr App R 76 at 206 (All ER). There are many reasons why the prosecuting authority might choose to enter a nolle prosequi which are quite inconsistent with an intention on its part to forego further proceedings for the same charge. Those reasons might have as much to do with the availability or capacity of prosecution witnesses as they do with the formation of a view of the strength of the case against the accused. The decision made by the prosecuting authority to prosecute or to decline to prosecute is a decision made in the exercise of prosecutorial discretion. It is a discretion usually exercised without the publication of attendant reasons. None the less, so far as the entry of a nolle prosequi is concerned, it is a discretion generally exercised upon receipt of an application by or on behalf of the accused … It would, in our view, place an intolerable fetter on the exercise of this valuable power (ie the prosecutor’s power to enter a nolle prosequi) if the court were readily to accede to an application that its processes were being abused for no reason other than that an accused was re-presented on a charge in respect of which a nolle prosequi had previously been entered. We do not say that there can never be a case where the exercise of the power to make presentment on a charge in respect of which a nolle prosequi has previously been entered will amount to an oppressive exercise of prosecutorial power and thus an abuse of the court’s process. The categories of “abuse cases”, as has often been said, are never closed. We are not, however, satisfied that this is such a case. An application of this nature is an application in which the court is asked to exercise its discretion.

See also, R v B, GN [2014] SASCFC 109.

[14.1330] Form of written nolle prosequi under Codes Under the Codes, a nolle prosequi must be in writing. Some forms are set out below.

Western Australia TO: HIS HONOUR (name of judge) THIS IS TO CERTIFY that the Crown declines to proceed further on an indictment dated the (date) day of (month, year) now standing against (name of accused) on a charge of (set out short form of charge). GIVEN under my hand at PERTH (date) (signed) CROWN PROSECUTOR

Northern Territory IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA THE QUEEN v (name of accused)

1068

ROSS ON CRIME

[14.1500]

I (name of DPP), one of Her Majesty’s Counsel and Director of Public Prosecutions for the Northern Territory, pursuant to section 302 of the Criminal Code hereby inform the Court that whereas an Indictment has been presented against the said (name of accused) charging him with the offence set out in the schedule hereunder, it is now not intended further to prosecute the said (name of accused) upon the said Indictment. SCHEDULE On the (date) day of (month, year) at Darwin in the Northern Territory of Australia, the said (name of accused) (set out short form of charge). Dated: (signed) DIRECTOR OF PUBLIC PROSECUTIONS

England THE QUEEN against (name of defendant) Let a Nolle Prosequi be entered in my name in the case of the above named whose trial in the Central Criminal Court on one charge of...presently stands adjourned in order to discharge all further proceedings therein AND FOR DOING SO THIS SHALL BE YOUR WARRANT. Dated this day of Her Majesty’s Attorney General See also A Hands, “No End to the Matter: The Nature, Source of Power and Effect of the Nolle Prosequi” (1996) 70 Law Inst J (No 5) 36. LJ King QC, “The Attorney-General, Politics and the Judiciary” (2000) 74 ALJ 444 at 452.

NO TRUE BILL Meaning and application .......................................................................................................... Grand jury ................................................................................................................................. Survival ..................................................................................................................................... Abolition .................................................................................................................................... Power to find no bill ................................................................................................................. Desirability of an early decision on no bill application .......................................................... No duty to consider an application for no bill ........................................................................ Forms ......................................................................................................................................... Discharge from gaol on finding of no bill ...............................................................................

[14.1500] [14.1505] [14.1510] [14.1515] [14.1520] [14.1525] [14.1530] [14.1535] [14.1540]

[14.1500] Meaning and application The expression “no true bill” derives from an indorsement by a grand jury on a bill of indictment. In more recent times the expression most often used is “no bill”. “No bill” arises in the following way. Where: (1) a person has been committed for trial; and (2) no indictment, presentment or information has been filed; and

[14.1520]

NO TRUE BILL

1069

(3) the prosecution does not want to proceed with a charge. The Attorney-General in the exercise of his prerogative can file a no bill. That power of the Attorney-General is now largely exercisable by the Director of Public Prosecutions. Once there has been a finding of no true bill, it is against the interests of society for a victim to bring a private prosecution: Gilbert v Volkers (2004) 150 A Crim R 553; [2005] 1 Qd R 359 (Holmes J).

[14.1505] Grand jury A grand jury numbered 23, so that a majority verdict could be delivered by 12. The bill of indictment was given to them. Prosecution witnesses were called. If the majority thought that the prosecution evidence had made out a sufficient case, the words “a true bill” were indorsed on the back. If the evidence were insufficient, the indorsement was “not a true bill”. The indictment would later be tried by a petty jury, that is a jury of 12. For a further history of the grand jury see: Re Shaw (2001) 4 VR 103; 127 A Crim R 440 (CA Full Bench); R v Nicola [1987] VR 1040; (1987) 79 ALR 469; 25 A Crim R 467 (CCA) (at 1043–1045; 474–476; 472–474); R v Parker [1977] VR 22 (CCA) especially Gillard J at 31ff.

[14.1510] Survival The grand jury has fallen into disuse in New South Wales. It has been abolished in terms or by implication in other jurisdictions. The New South Wales position is summed up by Dawson J in Grassby v The Queen (1984) 169 CLR 1; 87 ALR 618; 41 A Crim R 183 at 11–14, 624–627, 189–191, in N Cowdery, “Clearing Up The Misconceptions About No Bills” (1995) 33 Law Soc J (No 6) 26–27 and in R v Janceski (2005) 64 NSWLR 10; 223 ALR 580. See also Re Shaw (2001) 4 VR 103; 127 A Crim R 440 (CA Full Bench). MLA Antalfy, Crown Pleas in Victoria (1977) pp 64-69 [50]; E Histed, “The Introduction and Use of the Grand Jury in Victoria” (1987) 8 Journal of Legal History 8 and RG Fox, Victorian Criminal Procedure (Monash Law Book Co-operative Ltd, Clayton, 2005) para 4.5.

[14.1515] Abolition WA: Grand Jury Abolition Act Amendment Act 1883 s 4. SA: Act No 10 of 1852 (“An Act to Provide for the Trial of Offenders without the Intervention of Grand Juries”). Eng: Administration of Justice (Miscellaneous Provisions) Act 1933 s 1.

[14.1520] Power to find no bill The Attorney-General has the prerogative to determine that no bill be found. Some jurisdictions give statutory recognition to the power to find no bill. Cth: Judiciary Act 1903 s 71; Director of Public Prosecutions Act 1983 s 9(4); Special Prosecutors Act 1982 s 8(2).

1070

ROSS ON CRIME

[14.1525]

NT: Criminal Code s 297A (“no true bill”). NSW: Director of Public Prosecutions Act 1986 s 7(2)(a). (See also the remarks of Deane J in Williams v Spautz (1992) 174 CLR 509; 61 A Crim R 431; 107 ALR 635 at 545, 662). Also in Grey v The Queen (2001) 75 ALJR 1708; 184 ALR 593 there is a note (at [13]) that in that case (from New South Wales), there had been a no bill application after committal). In most jurisdictions the discretionary power of the Attorney-General is complemented by the statutory power of the Director of Public Prosecutions to take over and to discontinue actions. That power to discontinue actions seems to be independent of the power to file a nolle prosequi. Qld: Supreme Court Act 1995 s 205. WA: Director of Public Prosecutions Act 1991 s 20(2)(a) (same powers as AttorneyGeneral). Tas: Director of Public Prosecutions Act 1973 s 12(1)(iii). NSW: Director of Public Prosecutions Act 1986 s 7(2)(a). Vic: Public Prosecutions Act 1994 s 3 (“special decision” (b) second part of definition). SA: Director of Public Prosecutions Act 1991 s 7(1)(e). ACT: Supreme Court Act 1933 s 68(6).

[14.1525] Desirability of an early decision on no bill application In R v Scott (1993) 42 FCR 1; 116 ALR 703 (FCA) Miles J said (at 3; 704–705): Similarly, it is desirable that any decision by the prosecuting authority not to proceed further with the prosecution of a person committed for trial be made as early as practicable after the committal. That decision, which takes effect as soon as formal expression is given to it, should be communicated immediately to the person committed in order at the least, to ensure that further costs are not incurred in preparing for trial. If the person is in custody, no doubt the Director of Public Prosecutions will issue a warrant for the release of the person forthwith. The decision not to prosecute should be communicated to the trial court without delay in order to minimise disruption to the court’s lists. In the absence of any established practice, statutory requirement or relevant rule of court, an appropriate course (as was taken in the present case) might be for counsel for the Director of Public Prosecutions to announce the decision not to proceed further and to file a formal notice to that effect in open court.

[14.1530] No duty to consider an application for no bill The Attorney-General does not have a duty to receive and consider an application for no bill: Clyne v Attorney-General (Cth) (No 2) (1984) 55 ALR 624 (FCA).

[14.1535] Forms The following are some of the forms for advising of a desire not to proceed on a charge on which an accused has been committed. NT: Pursuant to Criminal Code s 297A, the certificate is usually in the following form: I, …. Director of Public Prosecutions for the Northern Territory, pursuant to Section 297A of the Criminal Code hereby certify that whereas (name of person) was on (date) committed for trial on the offence/s set forth in the schedule hereunder, it is not now intended to put him upon his trial in respect of that/those offence/s.

[14.1540]

NO TRUE BILL

1071

Schedule (insert offences and Criminal Code references) Dated the .......... day of .......... (signed) NSW: Crimes Act 1900 s 358 provides for a certificate transmitted to the Judges of the Supreme Court. Third Schedule No 1 sets out the form of the certificate. Certificate of Attorney-General or Director of Public Prosecutions This is to certify that I decline to file any information against AB, a prisoner in the Gaol at .......... , under the warrant of RW, Esquire, justice of the peace, upon a charge of .......... . Given under my hand this .......... day of .......... To their Honours the Judges of

LM

The Supreme Court Attorney-General or Director of Public Prosecutions

[14.1540] Discharge from gaol on finding of no bill On a finding of no bill (however called), an accused in custody is to be discharged. Most jurisdictions make statutory provision for such discharge. Vic: Criminal Procedure Act 2009 s 178. See also Attorney-General at [1.6800]; Director of public prosecutions at [4.2600]; and Nolle prosequi at [14.1300].

O OATH Definition ..................................................................................................................................... Intricacies of a particular religion .............................................................................................. Common law ............................................................................................................................... Legislation ................................................................................................................................... Oath of jurors .............................................................................................................................. Affirmation ..................................................................................................................................

[15.100] [15.105] [15.110] [15.115] [15.120] [15.125]

[15.100] Definition In R v Sossi [1986] WAR 163; (1985) 17 A Crim R 405 (CCA), after reviewing the authorities, the court said in a joint judgment (at 166; 408): The essence of an oath, therefore, is an appeal to a Supreme Being in whose existence the person taking the oath believes so as to bind his conscience but the form of taking the oath is not essential to the oath. That seems to be the position at common law.

Applied: Lau v The Queen (1991) 6 WAR 30; 58 A Crim R 390 (CCA).

[15.105] Intricacies of a particular religion In R v Kemble [1990] 1 WLR 1111; [1990] 3 All ER 116; (1990) 91 Cr App R 178 a Muslim witness took the oath on the New Testament of the Bible before he gave evidence. The appeal court heard evidence from an expert that no oath taken by a Muslim was valid unless taken on the Koran written in Arabic. The Court of Appeal held that the oath of the witness was valid (at 1114; 117; 180): We take the view that the question of whether the administration of an oath is lawful does not depend on what may be the considerable intricacies of the particular religion which is adhered to by the witness. It concerns two matters and two matters only in our judgment. First of all, is the oath an oath which appears to the court to be binding on the conscience of the witness? And if so, secondly, and most importantly, is it an oath which the witness himself considers to be binding on his conscience.

In R v T (1998) 71 SASR 265; 102 A Crim R 222 (CCA) a Buddhist witness at trial had taken an oath on the bible. After reviewing the authorities Doyle CJ said (at 271; 228): The significance of these cases is that they demonstrate that an oath may be administered in the traditional form to one who is not Christian. All that is required is that the oath taker regard the oath as binding in conscience, and probably, have a belief in a God and in divine punishment … It is neither here nor there that the witness might regard some other form of oath as more binding or as more appropriate, nor that the form of oath administered does not conform to the religious principles to which the witness adheres.

[15.110] Common law At common law all witnesses were required to take the oath; a witness could not give evidence except on oath:

1074

ROSS ON CRIME

[15.115]

R v VN (2006) 15 VR 113; 162 A Crim R 195 (CA) at 139; 222 [100]; R v Simmons (1997) 68 SASR 81; 93 A Crim R 32 (CCA) per Perry J (at 83; 34); Re Attorney-General’s Reference (No 2 of 1987) (1987) 46 SASR 275 (CCA) per King CJ at 275; R v Tew (1855) Dears 429; 169 ER 792.

[15.115] Legislation Uniform Evidence Acts ss 13 and 21; Cth: Judiciary Act 1903 s 77F; Qld: Oaths Act 1867; WA: Evidence Act 1906 ss 97–105; Tas: Oaths Act 2001; NT: Oaths Act s 25A; NSW: Oaths Act 1900; Vic: Evidence (Miscellaneous Provisions) Act 1958 ss 100–104; SA: Evidence Act 1929 ss 6–12; Oaths Act 1936; ACT: Oaths and Affırmations Act 1984 s 7; NZ: Evidence Act 2006 s 77; Oaths and Declarations Act 1957; Eng: Oaths Act 1978; Can: Canada Evidence Act ss 13–16; Oaths and Declarations Act 1957. A witness who does not understand the oath can give unsworn evidence. Thus an intellectually handicapped adult gave unsworn evidence for the prosecution in Hoogwerf v The Queen (1992) 63 A Crim R 302 (WA CCA). See also Child at [3.1800].

[15.120] Oath of jurors In R v Benfield (1997) 2 VR 491; 89 A Crim R 118 (CA) Hedigan AJA, giving the leading judgment, said (at 499; 127): The critical feature therefore is whether or not it can be concluded that the jurors, the oath being administered to them, used language that denoted the acceptance of the binding of their conscience to try the issue between the Crown and the accused.

When a count is added after arraignment, the jury must be resworn. In Maher v The Queen (1987) 163 CLR 221; 72 ALR 351; 25 A Crim R 261 the whole court said (at 234; 359; 269): The principle is clear. A jury must be sworn to try the issues joined between the Crown and the applicant on a count then appearing in an indictment. Here the jury found the applicant guilty of the offence charged in count 20, though it had not been sworn to try the issues on that count. A conviction founded on that verdict cannot stand. There was a failure to observe the requirements of the criminal process in a fundamental respect.

[15.125] Affirmation Legislation permits a juror or a witness to take an affirmation which is given the same “force and effect” as an oath: R v VN (2006) 162 A Crim R 195 at 223 [103] (Vic CA).

[15.305]

OBSCENE

1075

See also Perjury at [16.1100].

OBSCENE Definition ..................................................................................................................................... Indecent and obscene convey one idea ...................................................................................... Obscene language: a test ............................................................................................................ Obscene language: fuck and cunt .............................................................................................. Obscene exposure ....................................................................................................................... Meaning of person ...................................................................................................................... Indictable offence ........................................................................................................................ Intent ............................................................................................................................................

[15.300] [15.305] [15.310] [15.315] [15.320] [15.325] [15.330] [15.335]

[15.300] Definition Crowe v Graham (1968) 121 CLR 375 concerned whether a magistrate should have found two magazines “obscene” and “indecent”. Windeyer J said (at 390): Let us turn to the words “obscene”, “indecent”. Each is a well-known word. Each has been long used in law. Apart from any definitions given them by statutes, they are both to be understood with the meanings they have for common law; and for present purposes each must be understood with any colour it takes by their collocation. I say this because the adjective “indecent” has long been used in law to describe multifarious forms of offensive or objectionable conduct. In this general sense it sometimes denotes lewd forms of misbehaviour, but not always. Indecent exposure, indecent assaults involve lewdness. Indecent language does not: see eg Norley v Malthouse (1924) SASR 268. Brawling in church, maltreating corpses, grave-snatching have all been punished as indecent. Sometimes indecent conduct was punished at common law because it created a public nuisance. Sometimes simply as, in Lord Mansfield’s words, “against public decency and good manners”. The House of Lords has said that for the common law the list is not closed.

Windeyer J adopted the judgment of Fullagar J in R v Close [1948] VLR 445 (FC) at 463: As soon as one reflects that the word “obscene”, as an ordinary English word, has nothing to do with corrupting or depraving susceptible people, and that it is used to describe things which are offensive to current standards of decency and not things which may induce sinful thoughts, it becomes plain, I think, that Cockburn CJ, in the passage quoted from Hicklin (1868) LR 3 QB 360 at 371, was not propounding a logical definition of the word “obscene”, but was merely explaining that particular characteristic which was necessary to bring an obscene publication within the law relating to obscene libel. The tendency to deprave is not the characteristic which makes a publication obscene but is the characteristic which makes an obscene publication criminal.

See also The discussion in Phillips v Police (1994) 75 A Crim R 480 (SA FC).

[15.305] Indecent and obscene convey one idea R v Stanley [1965] 2 QB 327; [1965] 1 All ER 1035; (1965) 47 Cr App R 175 (CA) was about sending sex films through the mail. Lord Parker CJ, giving the judgment of the court said (at 333; 1038; 180): The words “indecent or obscene” convey one idea, namely, offending against the recognised standards of propriety, indecent being at the lower end of the scale and obscene at the upper end of the scale.

In Moloney v Mercer [1971] 2 NSWLR 207 (Taylor J) Evelyn Louise Mercer was on stage at the Coconut Jungle Strip Palais, Kings Cross, before a paying audience. She was clad only in a G-string which she removed. His Honour (at 210) followed the words in R v Stanley (above) and held that Ms Mercer could be convicted of indecency.

1076

ROSS ON CRIME

[15.310]

See also Indecency (The test) at [9.1420].

[15.310] Obscene language: a test In Police v Drummond [1973] 2 NZLR 263 (CA) it was alleged that the defendant shouted “fuck” and “fuck the police” at an ANZAC Day service. McCarthy J said (at 267): By what standards then should a court determine whether the particular language is sufficiently offensive to decency. The standard which must be taken is the current standard of the community. The statute is not concerned with morality; it is directed towards public behaviour. In any particular case whether it does so offend is not to be decided in the abstract but must be viewed against the circumstances and the setting in which the words were used.

Appeal dismissed.

[15.315] Obscene language: “fuck” and “cunt” “Fuck” is not necessarily obscene: Hortin v Rowbottom (1993) 61 SASR 313; 68 A Crim R 381 (Mullighan J). As an expletive, where there are no sexual overtones or implications the term is not obscene: E (a Child) v Staats (1994) 13 WAR 1; 76 A Crim R 343 (White J). In Police v Pfeifer (1997) 68 SASR 285 (FC) Mr Pfeifer walked through a shopping centre during the Christmas rush. His T-shirt carried the message “Too Drunk To Fuck” – a line from a “Dead Kennedys” song. The Court held (at 293): If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive.

“Cunt” is not necessarily obscene. In Romeyko v Samuels (1972) 2 SASR 529 (FC) Bray CJ said (at 563): [I]n my view, it is equally erroneous to hold that the common four-letter words are necessarily indecent in every context … and hold to that they can never be indecent at all.

In Dalton v Bartlett (1972) 3 SASR 549 (FC) Bray CJ added (at 555): I might add that I would not regard words like this as even offensive, if, though used in a public place, they are used in the course of a friendly conversation and in conversational tones with someone who takes no offence at them, and that whether they are used as intensives or expletives or in their literal significance.

In Saunders v Herold (1991) 105 FLR 1 (ACT, Higgins J) the appellant said “fuck” and “cunt” to police outside the Canberra Workers Club. Held: no offensive behaviour. Appeal allowed. Yet in similar circumstances the appeal was dismissed: Ferguson v Walkley (2008) 17 VR 647; 180 A Crim R 294 (Harper J); R v Jabarula (1983) 14 A Crim R 309 (NT Forster CJ). See also Conners v Craigie (1994) 76 A Crim R 502 (NSW, Dunford J). J H Wootten in the Report of the Royal Commission into Aboriginal Deaths in custody said: Over and over during this commission there has been evidence about Aboriginals using the term “cunts” in relation to police, usually with the result of a charge of offensive behaviour or at all events, strong disapproval. I have often been led to wonder how police could continue to remain offended by a term they heard so often and so routinely.

[15.325]

OBSCENE

1077

The evidence in the present case gives several glimpses of the fact that, as one would expect, it is a term in common use amongst police themselves … It is surely time that police learnt to ignore mere abuse, let alone “simple bad language”. In this day and age many words that were once considered bad language have become commonplace and are in general use amongst police no less than amongst other people. Maintaining the pretence that they are sensitive persons offended by such language … does nothing for respect for the police. It is particularly ridiculous when offence is taken at the rantings of drunks, as so often is the case. Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others – resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily “offended”.

(RCIADIC N19 AGPS, Canberra, 1991, pp 286-287, cited (in part) in the National Report, Vol 3, p 7).

[15.320] Obscene exposure Legislation Legislation on the summary offence: Qld: Summary Offences Act 2005 s 9; Criminal Code s 227; WA: Criminal Code s 202; Tas: Police Offences Act 1935 s 14; NT: Summary Offences Act s 50; Nudity Act s 6; NSW: Summary Offences Act 1988 s 5; Vic: Summary Offences Act 1966 s 19; SA: Summary Offences Act 1953 s 23; ACT: Crimes Act 1900 s 393; NZ: Summary Offences Act 1981 s 27; Eng: Sexual Offences Act 2003 s 66. In some jurisdictions the offence is indictable: WA: Criminal Code s 202; Vic: Common law and Crimes Act 1958 s 320.

Cases There is no need to be seen. In R v Benson; Ex parte Tubby (1882) 8 VLR (L) 2 (FC) the court said in a joint judgment (at 5): It was quite unnecessary to prove that the prisoner was actually seen by anyone on the highway when he was exposing himself; it is sufficient that he was in view and could have been seen by any person there.

See also Public place at [16.8700].

[15.325] Meaning of “person” In Evans v Ewels [1972] 1 WLR 671; [1972] 2 All ER 22; (1972) 56 Cr App R 377 (QBD) Asworth J, with whom the others agreed, said (at 674; 24; 380):

1078

ROSS ON CRIME

[15.330]

It seems to me that at any rate today, and indeed by 1824 the word “person” in connection with sexual matters had acquired a meaning of its own, a meaning which made it a synonym for “penis”.

In R v Eyles [1997] NSWSC 452 (1 October 1997) (CCA) Gleeson CJ, with whom the other judges agreed, referred to the history of the word “person” in old legislation and said: The reference to “his person”, in the light of ordinary principles of statutory construction, preserved the gender neutrality of the offence.

Most legislation now describes the offence as exposure of “his or her person”.

[15.330] Indictable offence Exposure to more than one member of the public is an indictable offence at common law: R v Udod [1951] SASR 176 (Napier J); R v Fonyodi [1963] VR 86 (CCA). In New South Wales the indictable offence is created by s 576 of the Crimes Act 1900. It has there been held that the offence is made out by exposure in private in the presence of witnesses: R v Madercine (1899) 20 LR (NSW) 36; 15 WN (NSW) 235 (FC); R v Black (1921) 21 SR (NSW) 748; 38 WN (NSW) 231 (CCA). See also Crampton v The Queen (2000) 206 CLR 161; 75 ALJR 133; 117 A Crim R 222; 176 ALR 369 per Kirby J at 199; 394; 248 [103]. Ford v Falcone [1971] 1 WLR 809; 2 All ER 1138; 55 Cr App R 372 (QBD).

[15.335] Intent The prosecution must prove an intent to behave obscenely. In R v Towe [1953] VLR 381 (CCA) Lowe ACJ said (at 382): [A]t least there is involved in the commission of the crime an intention on the part of the person charged to behave indecently, to expose himself indecently, and, unless that intention is present, then the conduct would not amount to an offence of the kind charged. When I speak of an intention to behave in an indecent manner, of course I mean behave in a manner which an ordinary person would regard as indecent.

OBSTRUCTION Definition ..................................................................................................................................... Legislation ................................................................................................................................... Police execution of duty ............................................................................................................. Intent ............................................................................................................................................ Mistake ........................................................................................................................................ Examples of no obstruction ........................................................................................................ Examples of obstruction ............................................................................................................. Obstruction of the public ............................................................................................................

[15.500] [15.505] [15.510] [15.515] [15.520] [15.525] [15.530] [15.535]

[15.500] Definition Obstruction here refers to obstructing police in execution of their duty. Goddard LCJ said in Hinchcliffe v Sheldon [1955] 1 WLR 1207; [1955] 3 All ER 406: “Obstructing” means, for this purpose, making it more difficult for the police to carry out their duties.

[15.520]

OBSTRUCTION

1079

Webster J in Lewis v Cox [1985] 1 QB 509; [1984] 3 All ER 672; 80 Cr App R 1 said (at 516; 676; 6): I conclude that, although it may not be unhelpful in certain cases to consider whether the actions of a defendant were aimed at the police, the simple facts which the court has to find are whether the defendant’s conduct in fact prevented the police from carrying out their duty, or made it more difficult for them to do so, and whether the defendant intended that conduct to prevent the police from carrying out their duty or to make it more difficult to do so.

[15.505] Legislation Cth: Australian Federal Police Act 1979 s 64(1); Qld: Police Powers and Responsibilities Act 2000 s 444; WA: Criminal Code s 172; Tas: Police Offences Act 1935 s 34B(1); NT: Police Administration Act s 159; NSW: Crimes Act 1900 s 546C (resists or hinders); Terrorism (Police Powers) Act 2002 s 22; Vic: Summary Offences Act 1966 s 52; Crimes Act 1958 s 31(1)(b); SA: Summary Offences Act 1953 s 6(2) (hinder or resist); ACT: Australian Federal Police Act 1979 s 64(1).

[15.510] Police execution of duty See also Police at [16.2300].

[15.515] Intent In Willmott v Atack [1977] QB 498; [1976] 3 All ER 794; 63 Cr App R 207 Croom-Johnson J said (at 505; 800; 210): [T]here must be something in the nature of a criminal intent of the kind which means that it is done with the idea of some form of hostility to the police with the intention of seeing that what is done is to obstruct, and that it is not enough merely to show that he intended to do what he did and that it did, in fact, have the result of the police being obstructed.

In Moore v Green [1983] 1 All ER 663 McCullough J said (at 665): I do not understand the reference to “hostility” to indicate a separate element of the offence. I understand the word to bear the same meaning as the phrase which Croom-Johnson J used immediately afterwards, namely “the intention of seeing that what is done is to obstruct”.

[15.520] Mistake A mistaken belief that the person obstructed (hindered or resisted) was not a police officer is a defence: R v Reynhoudt (1962) 107 CLR 381; Leonard v Morris (1975) 10 SASR 528 (FC) per Bray CJ at 533–534; Towse v Bradley (1985) 60 ACTR 1; 73 FLR 341; 14 A Crim R 408 at 4, 343, 410 (Blackburn CJ);

1080

ROSS ON CRIME

[15.525]

But a mistaken belief that the police did not have powers under a search warrant is a mistake of law and thus not a defence: Towse v Bradley (1985) 60 ATCR 1; 73 FLR 341; 14 A Crim R 408 at 4, 343, 410.

[15.525] Examples of no obstruction Refusal to do an act, for example, refuse to give information or render assistance, is not obstruction unless the law creates some obligation in the circumstances. Rice v Connolly [1966] 2 QB 414; [1966] 2 All ER 649: refusal to answer questions. Willmott v Atack [1977] QB 498; [1976] 3 All ER 794; 63 Cr App R 207: trying to help police by calming another but in fact obstructing. Mackay v Abrahams [1916] VLR 681 (Hood J): ordering police off one’s premises.

[15.530] Examples of obstruction Lenthall v Curran [1933] SASR 248: warning law breakers of the approach of police; Hills v Ellis [1983] QB 680; 1 All ER 667; 76 Cr App R 217: trying to stop police from arresting a person whom the defendant believed was the wrong man; Lewis v Cox[1985] 1 QB 509; [1984] 3 All ER 672; 80 Cr App R 1: after having been warned not to, opening the door of the police van to ask the defendant where he was being taken; Peach v McCarthy [1919] VLR 342 (Hood J): stopping police from seizing his beer when he came from a hotel after hours.

[15.535] Obstruction of the public Other forms of obstruction prevent the free flow of the public or of traffic. Fitzgerald v Montoya (1989) 16 NSWLR 164; (1990) 40 A Crim R 105 (CA); Roy v Briggs [1987] VR 924; (1987) 25 A Crim R 229; 4 MVR 497 (Crockett J).

OFFENSIVE BEHAVIOUR Legislation ................................................................................................................................... Definition ..................................................................................................................................... Public nature of the offence ....................................................................................................... Mens rea or intent ....................................................................................................................... Belief ........................................................................................................................................... Sentencing ...................................................................................................................................

[15.700] Legislation Qld: Summary Offences Act 2005 s 6; WA: Criminal Code s 74A; Tas: Police Offences Act 1935 s 13(1)(a); NT: Summary Offences Act 1978 s 47; NSW: Summary Offences Act 1988 s 4; Vic: Summary Offences Act 1966 s 17(1)(d); SA: Summary Offences Act 1953 s 7(1)(a);

[15.700] [15.705] [15.710] [15.715] [15.720] [15.725]

[15.705]

OFFENSIVE BEHAVIOUR

1081

ACT: Crimes Act 1900 s 392; NZ: Summary Offences Act 1981 s 4(1)(a). In Coleman v Power (2004) 220 CLR 1; 78 ALJR 1166; 209 ALR 182 Gummow and Hayne JJ said (at 73; 226 [179]): [T]he section is intended to serve public, not private purposes. Why else then would the conduct be made criminal? Why else would it merit, in some cases, the severe punishment of imprisonment? Why else would it be confined to what is done in, or in sight or hearing of, public places?

[15.705] Definition Offensive behaviour must be such as is calculated to wound the feelings and arouse anger, resentment, disgust or outrage in the mind of a reasonable person: Worcester v Smith [1951] VLR 316; Inglis v Fish [1961] VR 607. It must not be taken as covering all conduct which is merely in a broad sense blameworthy and therefore improper, or conduct which is hurtful only in the sense that it may ultimately turn out to be hurtful to another’s future, disposition, or character: Anderson v Kynaston [1924] VLR 214 (FC). In Nelson v Mathieson (2003) 143 A Crim R 148 (Vic, Nathan J) his Honour held (at 152–153 [17]): It is no longer necessary for the Crown to prove that the offender intended to be offensive, but it is still a requirement that the conduct has the effect of wounding the feelings, arousing anger, resentment, disgust or outrage in the mind of the reasonable person who may have or could have viewed, or been the object of that conduct. In my view, the words should be interpreted ejusdem generis. Wounded feelings, anger, resentment, disgust, outrage, all denote immediate and strong emotions or reactions. A reaction to conduct which is merely indifferent or at its highest anguished, is not the same as being offended. Merely being put out, or affronted by conduct, does not warrant the imposition of a criminal penalty upon the actor.

In Ball v McIntyre (1966) 9 FLR 237 (ACT) Kerr J said (at 241): What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend. Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may. This charge is not available to ensure punishment of those who differ from the majority. What has to be done in each case is to see whether the conduct is in truth offensive.

In R v Smith [1974] 2 NSWLR 586 (CCA) Street CJ said (at 588): I find no need to refer to other cases where, in the course of explaining the particular operation of the section on particular sets of facts, courts have used other adjectives or adverbs to indicate the refinement of meaning to be attached to the word “offensive”. It is dangerous, as has been pointed out by Kerr J as he then was in Ball v McIntyre (1966) 9 FLR 237 to substitute glosses put upon this section in other judgments for the words of the section itself. I have no difficulty in concluding that the offence constituted by the words “behaves in an offensive manner” means behaviour of the character generally described within the third of the Oxford English Dictionary’s meanings, that is to say, offensive in the sense of giving, or of a nature to give, offence; displeasing; annoying;

1082

ROSS ON CRIME

[15.710]

insulting. No one of these words in the dictionary is a precise alternative to the word “offensive”. The word has its own meaning, and its own meaning is to be determined by reference to this context in the section.

In Watson v Trenerry (1998) 122 NTR 1; 145 FLR 159; 100 A Crim R 408 (CA) the court held that a political protest and flag burning was not disorderly conduct. Angel and Mildren JJ made an extensive examination of authority. Angel J said (at 5; 163; 411): I am of the view … that “disorderly behaviour” is not a legal conception fixed by judicial decision, but rather is an ordinary and rudimentary expression (like “reasonable doubt”) which eludes a priori definition. It can be illustrated but not defined; it is to be applied to the circumstances of each case by the finder of fact.

[15.710] Public nature of the offence In Anderson v Kynaston [1924] VLR 214 (FC) a man gave a girl money for sweets and arranged to meet her in the pictures. The Court decided that his acts may have been offensive to the minds of right thinking people but it was not offensive in a public place. The Court said that the section “and its associated sections are concerned with the preservation of order and decorum in streets and other public places.”

[15.715] Mens rea or intent Mens rea is an element of the offence. In Pregelj v Manison (1987) 51 NTR 1; 88 FLR 346; 31 A Crim R 383 (CCA) the appellants were engaged in sexual intercourse in a house. The bedroom light was on. There was no curtain on the full length window. An off duty policeman saw them through the window. They were convicted. It was held that mens rea is an element. Appeal allowed. In Daire v Stone (1991) 56 SASR 90 (Legoe J) the defendant had been eyeing off females in a store. The magistrate dismissed the charge. The prosecution appealed. It was held that the case was properly dismissed when no evidence of purpose or intent was given. The prosecution must prove: • deliberate and conscious conduct intended to interfere with the comfort of others; • such conduct is to be tested objectively. In Stone v Ford (1993) 59 SASR 444; 65 A Crim R 459 Bollen J held that intention must be proved by the prosecution. In that case the defendant followed a woman from store to store. Held: intent can be inferred.

[15.720] Belief In Police v Pfeifer (1997) 68 SASR 285 (FC) Mr Pfeifer walked through a shopping centre during the Christmas rush. His T-shirt carried the message “Too Drunk To Fuck” – a line from a “Dead Kennedys” song. The court held (at 293): If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive.

[15.725] Sentencing In Jeffs v Graham (1987) 8 NSWLR 292; 28 A Crim R 211 Yeldham J said (at 296; 215): The offence created is truly criminal in nature; and clearly causes a stigma to attach to any person convicted of it. The penalty, whilst not heavy, is not insubstantial, at least to many of the people who would be caught by the section’s provisions; and I do not regard the subject-matter of the offence as being really within the matter said, in cases such as Sweet v Parsley [1970] AC 132 at 163, to be one involving “potential danger to public health, safety or morals, in which citizens have a choice whether they participate or not”.

[15.900]

OFFENSIVE WEAPON

1083

In Police v Pfeifer (1997) 68 SASR 285 (FC) Doyle CJ, with whom the others agreed, said (at 292): [W]hen one considers the nature of the offences, although one would not say that a conviction for offensive behaviour carries with it serious social stigma, I acknowledge that many people would regard a conviction for such an offence as not without significance. Putting it a little differently, a conviction for such an offence is capable of reflecting adversely on a person’s character. And the maximum penalty of three months’ imprisonment or $1,000 is a significant penalty.

See also T Walsh, “Offensive Language, Offensive Behaviour and Public Nuisance: Empirical and Theoretical Analyses” (2005) 24 UQLJ 124-144.

OFFENSIVE WEAPON Definition ..................................................................................................................................... Use an offensive weapon or instrument ..................................................................................... Aggravated by threatening to inflict actual bodily harm by means of an offensive weapon .... Weapon ........................................................................................................................................ Knowledge and intent ................................................................................................................. Possession and use compared ..................................................................................................... Nature of the instrument and intent (NSW) .............................................................................. South Australia ............................................................................................................................ England ........................................................................................................................................ Sentence ......................................................................................................................................

[15.900] [15.905] [15.910] [15.915] [15.920] [15.925] [15.930] [15.935] [15.940] [15.945]

[15.900] Definition Whether a given implement was a weapon or an offensive weapon depends on the terms of the statute creating the offence. The statute is usually in the following form, or wording to this effect: [F]ound armed with an offensive weapon or instrument unless such person proves to the court a valid and satisfactory reason for being so armed … shall be guilty of an offence.

In Wilson v Kuhl [1979] VR 315 (McGarvie J) Mr Kuhl was in a toilet. When a man in an adjoining cubicle looked in, Mr Kuhl waved a carving knife at him. Mr Kuhl said he carried the knife only for self-protection. The magistrate dismissed the charge. McGarvie J discharged the informant’s orders nisi. McGarvie J held: 1. Within the meaning of the subsection, an article of a kind which is not normally used to inflict or threaten injury is an offensive weapon if it is carried with an intention of using it to threaten injury to another person. 2. A person carrying such an article does not commit an offence unless, before the occasion arises on which the person uses it to threaten injury to another person, he or she has formed an intention to use it for that purpose.

In Victoria that subsection (Vagrancy Act 1966 s 6(1)(e)) has been repealed. It still exists elsewhere. See also NT: Summary Offences Act s 56A(1); NSW: Summary Offences Act 1988 s 27D; Vic: Control of Weapons Act 1990; SA: Summary Offences Act 1953 s 15(1)(a);

1084

ROSS ON CRIME

[15.905]

ACT: Crimes Act 1900 ss 380 and 381; NZ: Crimes Act 1961 s 202A. In Dixon v Seears (1982) 63 FLR 36; 16 NTR 20 (Muirhead ACJ), an Aboriginal man was chasing his wife and carrying a Bowie knife. The appellant’s stated intention was to cut his wife. The appellant was convicted and the appeal dismissed. Flick knife is an offensive weapon per se under the English Act: Gibson v Wales [1983] 1 WLR 393; 1 All ER 869; 76 Cr App R 60. Carrying a knife used in the normal course of employment is not armed with an offensive weapon, under the section. That it is used in self defence is not to the point: Freundt v Hayes (1992) 59 A Crim R 430 (SA Olsson J). A dog is not an offensive weapon: Tomlins v Brennan (2006) 18 NTLR 80 (CA).

[15.905] “Use an offensive weapon or instrument” In R v Hamilton (1993) 66 A Crim R 575 (NSW CCA) a car driven at police to prevent arrest was said to qualify as an offensive weapon.

[15.910] “Aggravated by threatening to inflict actual bodily harm by means of an offensive weapon” R v S (1993) 69 A Crim R 163 (NSW CCA) involved rape under threat of a small pocket knife. It was held that this constituted using an offensive weapon.

[15.915] Weapon [A]ny article fitted with raised pointed studs which is designed to be used as an article of clothing. In Deing v Tarola [1993] 2 VR 163 (Beach J) it was held that a studded belt used to support the trousers was not a “weapon”. (In argument, Beach J said that were the informant’s argument to be accepted, golf shoes worn on the course would be a weapon.) In DPP v Woodward (2006) 164 A Crim R 22 (Vic, Cavanough J) the respondent had committed a burglary. No one was in the burgled home. The respondent had a pocket knife in his shorts. Held: not an offensive weapon. The magistrate had been correct. Director of Public Prosecutions’ appeal on the question of law dismissed.

[15.920] Knowledge and intent In R v Cugullere [1961] 1 WLR 858; [1961] 2 All ER 343; 45 Cr App R 108 (CCA) Salmon J, giving the judgment of the court held (at 860; 344; 110–111): This court is clearly of the opinion that the words “has with him in any public place” must mean “knowingly has with him in any public place”. If some innocent person has a cosh slipped into his pocket by an escaping rogue he would not be guilty of having it with him within the meaning of the section because he would be quite innocent of any knowledge that it had been put into his pocket. In the judgment of this court the section cannot apply in circumstances such as those.

Approved: Lim Chin Aik v The Queen [1963] AC 160; [1963] 2 WLR 42; [1963] 1 All ER 223 (PC).

[15.925] Possession and use compared The weapon need not be offensive in itself. How it is adapted or used is the relevant consideration: Considine v Kirkpatrick [1971] SASR 73 (CA). The dissenting judgment of Bray CJ has often been followed.

[15.945]

OFFENSIVE WEAPON

1085

[15.930] Nature of the instrument and intent (NSW) In R v Hamilton (1993) 66 A Crim R 575 (NSW CCA) a car was driven at a policeman to prevent arrest. Appeal dismissed. Gleeson CJ said (at 577): The question whether an object or article is an offensive instrument raises for consideration the nature of the object, the uses of which it is capable, and the intention of the person who is using it on the occasion in question. An object which in its nature and in its ordinary use is not offensive may become an offensive instrument by reason of the use to which a person puts it, and the intent which accompanies such use.

In R v S (1993) 31 NSWLR 649; 69 A Crim R 163 (CCA), the accused received a directed acquittal of aggravated sexual assault. He had intercourse with a former de facto after holding a small pocket knife to her face. He had not brought the knife for that purpose. The Director of Public Prosecutions submitted questions for the Court of Criminal Appeal. Held: it is sufficient for the prosecution to prove that an accused is using the object in an offensive manner at the time of the commission of the offence. Strangely, neither of these New South Wales cases was referred to in R v Nguyen [1997] 1 VR 551; 87 A Crim R 119 (CA). In R v Hailemariam (1999) 103 A Crim R 426 (SA, Mullighan J) a man had been attacked. He went home, armed himself and returned to the scene. He chased his attackers. Held: he should be convicted. See also Armed at [1.5600].

[15.935] South Australia In Verdiglione v Police (2007) 99 SASR 288; 176 A Crim R 377 (Kelly J) Mr Verdiglione had been found in a stationary car with drugs and a baseball bat. The magistrate held that the baseball bat was an offensive weapon. On appeal, Kelly J agreed with the conviction. The baseball bat was a club. It wouldn’t have been if it had been accompanied by other relevant sporting equipment.

[15.940] England The Prevention of Crime Act 1953 makes it an offence for a person to have with him in any public place an offensive weapon without lawful authority or reasonable excuse. Offensive weapon is there defined in s 1(4) as: [A]ny article made or adapted for causing injury to the person, or intended by the person having it with him for such use by him or by some other person.

The following have been held offensive per se: flick knife: Gibson v Wales [1983] 1 WLR 393; 1 All ER 869; 76 Cr App R 60; R v Simpson [1983] 1 WLR 494; 3 All ER 789; 78 Cr App R 115; butterfly knife: DPP v Hynde [1998] 1 WLR 1222; 1 All ER 649 (QBD).

[15.945] Sentence R v Povey [2009] 1 Cr App R (S) 42 (CA).

1086

ROSS ON CRIME

[15.1100]

ONUS OF PROOF Origin ......................................................................................................................................... General principle: the prosecution has the onus of proof ....................................................... Legislation ................................................................................................................................. Onus is on one party ................................................................................................................. Evidential onus .......................................................................................................................... Defence onus of proof .............................................................................................................. Confession discharging defence evidential onus ..................................................................... Unlawful possession ................................................................................................................. Uniform Evidence Acts s 142 .................................................................................................. Other references ........................................................................................................................

[15.1100] [15.1105] [15.1110] [15.1115] [15.1120] [15.1125] [15.1130] [15.1135] [15.1140] [15.1145]

[15.1100] Origin Onus: Latin, burden.

[15.1105] General principle: the prosecution has the onus of proof In Woolmington v DPP [1935] AC 462; [1935] All ER Rep 1; 25 Cr App R 72 (HL), Viscount Sankey LC said (at 481; 8; 95): Throughout the web of the English criminal law one golden thread is always to be seen – that it is the duty of the prosecution to prove the prisoner’s guilt subject to what I have already said as to the defence of insanity and subject also to any statutory exception. If, at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained.

[15.1110] Legislation Cth: Criminal Code Act 1995 ss 13.1–13.5; ACT: Criminal Code 2002 ss 56–60; NT: Criminal Code ss 43BQ–43BW.

[15.1115] Onus is on one party In King v The Queen (2003) 215 CLR 150; 199 ALR 568 Gleeson CJ said (at 158; 574 [18]): If, by reason of the nature of a given offence, a fact must be established by the prosecution as one of the elements of the offence, then it makes no sense to say that the accused carries the onus of negativing the same fact. In adversarial litigation, both parties cannot bear the ultimate onus of proving or disproving a single fact. The point of an onus of proof is to identify the party who is obliged to establish a fact, and who will bear the legal consequences of failure to do so. There are cases in which an onus may shift; and there is a difference between a legal onus and an evidentiary onus. The onus cannot, at one and the same time, be upon both parties in relation to one and the same factual issue.

[15.1120] Evidential onus Some defences and some statutes place an evidential onus on a defendant if a defence is to be raised. The following are the features of a defence evidential onus: 1. an evidential onus is not an onus of proof: EPA v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553 at 555 (NSW CCA)

[15.1130]

ONUS OF PROOF

1087

2. an evidential onus does not of itself require the giving or calling of evidence by the defence: R v Youssef (1990) 50 A Crim R 1 at 4 (NSW CCA): If the accused is able to point to or produce evidence from which it could be inferred that there is at least a possibility.

See also R v Khazaal [2012] HCA 26 See also Defence at [4.700].

[15.1125] Defence onus of proof Some legislation requires the defence to discharge an onus of proof in order to succeed. Words such as “unless the contrary is proved”, “in the absence of proof to the contrary”, “if the person proves” or “unless evidence is given to the contrary”. In such a case the standard of proof is on the balance of probabilities: R v Carr-Briant [1943] KB 607; [1943] 2 All ER 156; 29 Cr App R 76 (at 612; 158–159; 87) (CCA); Hancock v Catt (1981) 28 SASR 497 at 499 (Matheson J); Proberts v Dulley; Ex parte Dulley [1961] Qd R 1 (FC) per Stanley J (at 7). Nevertheless the prosecution must still prove its case: EPA v Leaghur Holdings Pty Ltd (1995) 80 A Crim R 553 (NSWCCA).

[15.1130] Confession discharging defence evidential onus A statement or confession by an accused will often contain exculpatory parts. Such a confession is sometimes called a “mixed confession”. The jury or magistrate is to consider as evidence the exculpatory parts along with the inculpatory parts. In R v Higgins (1829) 3 C & P 603; 172 ER 563 Parke B said (at 604; 563): What a prisoner says is not evidence, unless the prosecutor chooses to make it so, by using it as part of his case against the prisoner; however, if the prosecutor makes the prisoner’s declaration evidence, it then becomes evidence for the prisoner as well as against him.

Approved: R v Wogandt (1983) 33 A Crim R 31 at 40 (Qld CCA); Melbourne v The Queen (1999) 198 CLR 1; 164 ALR 465 per Gummow J (at 26; 482); Carlin v Thawat Chidkhunthod (1985) 4 NSWLR 182; 20 A Crim R 332 at 204; 20 (NSWLR), 353 (A Crim R) (O’Brien CJ of Cr D); R v Cox [1986] 2 Qd R 55; 24 A Crim R 434 (CCA) per Thomas J (at 64; 442). The exculpatory parts of a confession put in evidence by the prosecution can be accepted as truth, or not. In Lopes v Taylor (1970) 44 ALJR 412 (Qld, Gibbs J) his Honour said (at 421): [W]here one party puts in evidence a statement made by the other the whole of the statement, including self-serving parts, becomes evidence of the truth of what was stated, although the Court is not bound to accept all parts of the statement as true but may give different weight to different parts of the statement: see Higgins v Dorries; Higgins v Donnelly [1965] Qd R 389, at pp 395, 396; State Government Insurance Offıce (Queensland) v Saarinen [1967] QWN 23; Horne v Tweed River Transport Pty Ltd (1967) 61 QJPR 114, at pp 119, 120; Eyre v Nationwide News Pty Ltd (1968) 13 FLR 180, at p 185; and Sharp v Hotel International Ltd [1969] VR 103, at pp 109, 110.

1088

ROSS ON CRIME

[15.1135]

See also Confession at [3.5300].

[15.1135] Unlawful possession “… if such person does not in the opinion of the court give a satisfactory account …” Willis v Bacon (1921) 29 CLR 511 at 514–515: the defendant must give a satisfactory account so the magistrate is not left in doubt whether the goods were honestly come by.

Where the story is reasonable and feasible McDonald v Webster [1913] VLR 506 at 513 (Madden CJ): “His story was reasonable and feasible, and nothing was said to the contrary. Therefore I think that on this ground, as well as on the first ground, the order nisi should be made absolute with costs.”

[15.1140] Uniform Evidence Acts s 142 Uniform Evidence Acts s 142 refers to the burden and standard of proof in criminal proceedings. This section is set out in Beyond reasonable doubt at [2.1600].

[15.1145] Other references See also Beyond reasonable doubt at [2.1600]; Defence at [4.700]; Liberato direction at [12.900]; Murray direction at [13.4100]; Self-defence (Prosecution has burden of disproof) at [19.1315].

ORIGINAL EVIDENCE Meaning ..................................................................................................................................... Principle .................................................................................................................................... Identification .............................................................................................................................. Telephone calls .......................................................................................................................... Intention or state of mind ......................................................................................................... Victim’s reputation for violence ............................................................................................... Duress ........................................................................................................................................ Sexual desires ............................................................................................................................ Uniform Evidence Acts ............................................................................................................ Writing ....................................................................................................................................... Other references ........................................................................................................................

[15.1300] [15.1305] [15.1310] [15.1315] [15.1320] [15.1325] [15.1330] [15.1335] [15.1337] [15.1340] [15.1345]

[15.1300] Meaning Original evidence is what is said out of court only to prove that it was said. Contrast it with hearsay that intends to prove the truth of what was said out of court. Original evidence is admissible if relevant. Hearsay is not. But it is not surprising that many judges compare original evidence with hearsay.

[15.1305] Principle The difference between original evidence and hearsay was pointed out long ago. In Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC) the Board advised (at 970):

[15.1315]

ORIGINAL EVIDENCE

1089

Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made.

In Ratten v The Queen [1972] AC 378; [1971] 3 All ER 801; (1971) 56 Cr App R 18 (PC) the Board quoted Subramaniam then advised (at 387): Words spoken are facts just as much as any other action by a human being. If the speaking of words is a relevant fact, a witness may give evidence that they were spoken. A question of hearsay only arises when the words are relied on “testimonially” ie establishing some fact narrated by the words.

In Subramaniam the speakers had threatened the accused. That was the basis of his duress defence. In R v Frawley (1993) 69 A Crim R 208 (NSW CCA) Gleeson CJ referred to authorities and said (at 219): These cases show that, in certain circumstances, evidence as to, or which reveals, a state of mind, or belief, or intention, may be received as original evidence if such a state of mind, or belief, or intention is relevant. In Ratten the emotion of anxiety or fear was regarded as a fact relevant to a fact in issue, and what the caller said was original evidence of the existence of that emotion.

Approved: R v Clark (2001) 123 A Crim R 506 (NSW CCA) at 559 [93] per Heydon JA, with whom the other judges agreed. In a trial where different counts are joined, an out of court statement may be original evidence on one count but hearsay on another. In R v Moore (1988) 1 Qd R 252; 25 A Crim R 302 (CCA) that was the position. Counts of conspiracy and substantive charges had been wrongly joined. McPherson J, with whom the other judges agreed, pointed out (at 261–262) that the difference between original evidence and hearsay is seldom capable of being explained to a jury. Approved: Tasmania v Green (2007) 16 Tas R 318; 175 A Crim R 511 at [59] (Underwood CJ).

[15.1310] Identification Identification out of court can be the subject of original evidence. In Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289 one of the points was this. A witness said that the police showed him a photo board to see if he could recognise anyone. He did say that he picked someone out but at the time of giving evidence, couldn’t remember which one. The trial court had allowed the police to give evidence of the photograph that the witness had selected. In the High Court, Gibbs CJ, as part of the majority, said at (at 403–404; 295): It is relevant that the witness identified the accused on the earlier occasion, and, since identification is an act of the mind, the evidence of the witness as to his own state of mind on the earlier occasion is original evidence and not hearsay.

Of course the police could not go on to say what words the witness had used at the time of this selection. That would have been hearsay.

[15.1315] Telephone calls A person who overhears another person talking on the telephone may be able to give original evidence. Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 was a murder case. Various witnesses heard the victim talking on the phone apparently to her estranged husband. She said that she would meet him in a certain city centre. One of the issues was

1090

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[15.1320]

whether the evidence of listening to those witnesses was admissible. The appeal was dismissed. Mason CJ said (at 288–289; 63; 279): [W]hen the testimony proffered is not that of the maker of the statement, but that of a person who heard the author make the statement, it is original evidence. It is because the making of the statement has independent evidentiary value in proving the author’s intentions, those intentions being a fact in issue or a fact relevant to a fact in issue, that the witness’s testimony does not infringe the hearsay rule. It is original evidence rather than an exception to the hearsay rule.

In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 people heard a man on the telephone. By the time the murder trial was heard, that man had passed away. The speaker had apparently hired the accused to kill. The conversation was about the accused killing the wrong person. The appeal failed 3–2. Brennan J spent a good deal of his judgment examining the nature of original evidence.

[15.1320] Intention or state of mind As can be seen from Walton (at [15.1315]), a statement out of court evincing intention can be original evidence. So can state of mind.

Victim In R v Hendrie (1985) 37 SASR 581 (CCA) the charge was murder of a woman by a painter and decorator. The death took place in the bedroom. There was no sign of a struggle. The husband of the deceased gave evidence for the prosecution of a conversation between the spouses shortly before the death. They discussed how the accused was going to convert a window into a door in the bedroom. King CJ, with whom the other judges agreed, said (at 585): It is well-established law that a person’s state of mind may be proved by contemporaneous statements made by such person. Such statements are not hearsay because they are not adduced for the purpose of proving the truth of the statements. They are original circumstantial evidence tending to establish the state of mind.

Approved: Walton v The Queen (1989) 166 CLR 283; 38 A Crim R 276; 84 ALR 59 per Wilson, Dawson and Toohey JJ. In R v Matthews (1990) 58 SASR 19 (CCA) a husband was convicted of the rape and murder of his estranged wife. The husband admitted the killing but said he was provoked. He said that the sex was by consent. The trial judge allowed evidence of the wife’s earlier conversations with others. She said that she was frightened of her husband and wouldn’t let him into the house. The appeal court said that her earlier conversations about her fear were original evidence and admissible. In R v Georgatsoulis (1994) 62 SASR 351 (CCA) the accused was charged with the knifing murder of his girlfriend. They had been to a Greek restaurant and argued there. The accused said there was special embarrassment in such an event before his country folk. The witnesses gave evidence for the prosecution of the conversations with the deceased. She told them that she did not want to continue to see the accused, and that she was engaged to be married to a man then out of the country. Of that evidence, King CJ, with whom the other judges agreed, dealt first with relevance and then with the nature of the evidence. His Honour said (at 361): I think that her true state of mind had relevance. It was part of the context in which the jury had to assess the weight to be attached to the appellant’s evidence as to what had occurred at the relevant times and the true nature of the relationship between him and the deceased. The evidence was not hearsay but was original evidence of the contemporaneous statements made by the deceased indicating her then state of mind.

Accused Evidence of the state of mind of an accused can be original evidence.

[15.1330]

ORIGINAL EVIDENCE

1091

R v Pangallo (1989) 51 SASR 254; 44 A Crim R 462 (Prior J) was a murder case tried by a judge sitting alone. The main issue was whether the accused was sane, and whether the account given to the psychiatrist of his hearing voices was admissible. In the end, his Honour found the accused was insane. But on admissibility, his Honour made a detailed study of authority and said (at 271; 479): The accused’s statements to the psychiatrists about his state of mind constitute original evidence. Such statements may be acted upon without the accused affirming them in evidence. The psychiatrists and the court can use what he said as a step in assessing the accused’s mental state on the date of the shootings.

[15.1325] Victim’s reputation for violence A victim’s reputation for violence, told to the accused, can be original evidence. In R v Masters [1987] 2 Qd R 272; (1986) 24 A Crim R 65 (CCA) the accused was charged with murder. His wife told him that the victim had raped her. She was drunk when he had sex with her. The accused wanted to settle it with that other man. He was told that the victim was violent and that he had better take a stick. At the meeting, the accused said that the victim went for what he believed was a gun. That was why he hit the victim with the stick. The trial judge had excluded the evidence of what the accused was told. Wrongly excluded said the appeal court. No wonder that in R v Anderson (2000) 1 VR 1; 111 A Crim R 19 (CA) Winneke P, with whom the other judges agreed, said (at 12 [30]): [I]t would be contrary to reason and common sense to exclude evidence of previous violent acts by the deceased towards the accused person, or others, if such conduct had a relevance to the issues at trial.

In R v PP (2002) 135 A Crim R 575 (Vic, Nettle J) the accused was charged with murder. The defence was self-defence or provocation. The deceased had convictions for violence and for drug offences. Nettle J ruled that the offences for violence were relevant and admissible. But the drug offences were not relevant. Such evidence may be admissible even if the accused knows nothing of it. Re Knowles [1984] VR 751 (FC) was petition of mercy after a conviction for murder. The evidence of previous violence of the victim was admissible although not led at trial. It showed a rare propensity to special forms of violence. An earlier husband gave evidence that the victim was charming. But after a few drinks she became a maniac, with extreme violence and was quite uncontrollable. It was of the same sort that the accused had told the police about and of which he had given evidence. Counsel for the accused apparently thought that the earlier evidence of that propensity was inadmissible. The petition of mercy was allowed.

[15.1330] Duress What the accused was told out of court may give rise to duress. In Subramaniam v Public Prosecutor [1956] 1 WLR 965 (PC) the accused was found with various items on him of a dangerous sort. Guns and explosives were the main ones. He was charged over their possession. He wanted to introduce evidence at his trial that he was set upon by terrorists. They threatened to kill him if he didn’t do what they asked. They seemed to be able and prepared to carry out these threats. The trial judge ruled that the evidence of what the terrorists said was inadmissible because it was hearsay. The accused was sentenced to death. Lucky for him, Malaysia allowed appeals to the Privy Council. The Board advised that his appeal against conviction be allowed. What he was told by the terrorists was not hearsay. It was, in effect, original evidence. And the accused believed it.

1092

ROSS ON CRIME

[15.1335]

In a joint trial one accused can say that he was acting under duress of another accused. In R v Gibb & McKenzie [1983] 2 VR 155; (1982) 7 A Crim R 385 (CCA) three accused were tried together for murder. Mr Gibb’s co-accused said that they were present at the killing and helped Mr Gibb dispose of the body because they were frightened of his reputation for violence. The Court of Criminal Appeal said in a joint judgment (at 171–172; 400–401) that such evidence was admissible. More than that, the co-accused could cross-examine to show the likelihood of their belief being true. That evidence would not be admissible against Mr Gibb. No wonder that the court held that there should not have been a joint trial.

[15.1335] Sexual desires Sexual desires communicated to an accused may be original evidence. In Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 the complainant had indicated to the victim in private correspondence that she expected sexual contacts. McHugh, Gummow and Hayne JJ said (at 472 [100]): Suppose…that the accused wished to tender evidence that on previous occasions the complainant said that she would like to have sexual relations with men like the accused. This would not be hearsay. It would be original evidence of her intention, and would probably be admissible at common law in accordance with the reasoning in Walton v The Queen.

Their Honours went on to say (at 476–477 [113] – [114]) that such evidence would not be excluded as evidence of sexual experience. This was desire. Appeal allowed. In Bolton v Western Australia (2007) 180 A Crim R 191 (WA CA) much the same principles arose. It was a sexual case. The complainant had indicated her desire in private correspondence with the accused. The court followed Bull (above) and held that the correspondence was original evidence. Further it was at odds with her evidence at trial. Appeal against conviction allowed.

[15.1337] Uniform Evidence Acts Consistently with the common law, the hearsay exclusionary rule under the UEA does not exclude original evidence. Section 60 states that the “hearsay rule does not apply to evidence of a previous representation that is admitted because it is relevant for a purpose other than proof of an asserted fact”. However, s 60 constitutes a departure from the common law such that where evidence is admissible for a non-hearsay purpose it can be used as proof of the asserted fact. Section 60 applies to first-hand and even more remote forms of hearsay. This is in contrast to the decision in Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394 which has been expressly overruled by the current version of s 60.

[15.1340] Writing David Ross QC, “Original Evidence in Criminal Law” (2009) 32 Aust Bar Rev 267.

[15.1345] Other references Credit at [3.9600]; Duress at [4.5900]; Hearsay at [8.1300]; and Relevance at [18.2400].

P PAPADOPOULOS DIRECTION Meaning ....................................................................................................................................... [16.100]

[16.100] Meaning In New Zealand, a judge can give a direction to a jury which finds difficulty in reaching a verdict. The term comes from R v Papadopoulos [1979] 1 NZLR 62 (CA) where the trial judge’s direction was approved. That direction was (at 623): Mr Foreman ladies and gentlemen: You have had a very long session of deliberation and I understand from the Registrar that you are having difficulty in reaching a unanimous verdict. I think that I should just say this to you. It is of tremendous importance that a jury should reach a verdict at the end of a trial like this, because if they do not, the case has to be tried again and that of course is a burden on everyone concerned, not the least upon the accused, a tremendous burden upon them. It goes without saying that no one must be false to the oath he or she has taken but it is to be remembered that you have a duty, not only as individuals but also collectively and no doubt you have been trying this, but amongst 12 people in order to reach a collective verdict, the verdict of the 12 of you, there must necessarily be exchanges of views and argument but also a certain amount of give and take and adjustment of views within the scope of the jurors’ oath. After all, a view that is honestly held can equally be honestly changed after free discussion and persuasion from others and having regard to all that I am wondering whether with a little more time it is possible you could reach some agreement.

Approved: R v C [2005] 3 NZLR 92 at 95 [8] (CA). See also Black direction at [2.2500].

PARDON What is a pardon ......................................................................................................................... Formal document required .......................................................................................................... Who may grant a pardon ............................................................................................................ Pardon is not an acquittal ........................................................................................................... Form of pardon ........................................................................................................................... No power to pardon future offences .......................................................................................... Prerogative of mercy .................................................................................................................. Legislation ................................................................................................................................... The plea of pardon ...................................................................................................................... Other references ..........................................................................................................................

[16.300] [16.305] [16.310] [16.315] [16.320] [16.325] [16.330] [16.335] [16.340] [16.345]

[16.300] What is a pardon In Re Therrien [2001] 2 SCR 3; 200 DLR (4th) 1; 155 CCC (3d) 1 (SCC) Gonthier J, giving the judgment of the court, said (at 77; 63; 63 [113]): At common law, a pardon is an expression of the sovereignty of the monarch, the result of the unilateral and discretionary exercise of the Royal prerogative of mercy or clemency. In Canada, a

1094

ROSS ON CRIME

[16.305]

pardon is also derived from the powers of the Crown. Thus, the provisions contained in Canadian statute law, including the Criminal Code, merely prescribe various ways to exercise that prerogative, without limiting its scope.

And later (at 77; 64; 64 [115]): Also, Parliament may legislate regarding pardons in the exercise of its jurisdiction over criminal law.

In R v Milnes and Green (1983) 33 SASR 211; 8 A Crim R 61, Cox J ruled (at 216–217; 66): A pardon … at common law is the solemn act by which the Sovereign, either absolutely or conditionally, forgives or remits for the benefit of the person to whom it is granted the legal consequences of a crime he has committed. If it is conditional, it will not be effective until the condition has been fulfilled (Bullock v Dodds (1819) 2 B & Ald 258; 106 ER 361; Chitty, Criminal Law, vol 1, p 773).

[16.305] Formal document required In Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396; [1995] 1 All ER 93; [1994] 3 WLR 1134 (PC) the Board advised (at 410; 102; 1143): Formerly in England pardons were required in all cases to pass under the Great Seal. They can now be granted in England by warrant under the royal sign manual countersigned by the Secretary of State (see 8 Halsbury’s Laws (4th edn) para 950). That these are the methods of grant indicates the formal nature of a pardon at common law. It is an executive act of the state.

Cannot be informal In R v Milnes and Green (1983) 33 SASR 211; 8 A Crim R 61, Cox J ruled (at 217; 67): [T]here is no such thing as a notional pardon or some more informal executive act that the courts will regard, despite the Crown’s opposition, as serving the same purpose. This is implicit in the requirement with respect to the authentication of the Great Seal or the sign manual. According to Chitty (p 468), “And when it is thus authenticated, it must not only be specially pleaded but brought into court sub pede sigilli, because it is supposed to be in the defendant’s possession …”. In other words, there must be a pardon actually granted. A pardon is also quite different, in my view, from a mere promise not to prosecute.

[16.310] Who may grant a pardon In R v Milnes and Green (1983) 33 SASR 211; 8 A Crim R 61, Cox J ruled (at 216; 66): I have not had time to explore the question, but I have little doubt that a power to pardon with or without limitations, has always been one of the prerogative powers of the Australian colonial and State governors.

[16.315] Pardon is not an acquittal In R v Cosgrove [1948] Tas SR 99 Morris CJ ruled (at 105): A pardon is in no sense equivalent to an acquittal. It contains no notion that the man to whom the pardon is extended never did in fact commit the crime, but merely from the date of the pardon gives him a new credit and capacity.

Approved: Eastman v DPP (ACT) (2003) 214 CLR 318; 140 A Crim R 472; 198 ALR 1 at 350 [98] per Heydon J. Other cases Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396; [1995] 1 All ER 93; [1994] 3 WLR 1134 (PC).

[16.335]

PARDON

1095

Re Royal Commission on Thomas Case [1980] 1 NZLR 602. Thus, after a pardon has been granted, there must be an appeal if the conviction itself is to be set aside: R v Foster [1985] QB 115; [1984] 2 All ER 679; 79 Cr App R 61 (CCA); R v Celep [1998] 4 VR 811; (1998) 100 A Crim 310 at 814–815, 314 (CA). In Australia, the common law position has been modified for federal offences: see Crimes Act 1914 (Cth), ss 85ZM, 85ZS, 85ZV, 85ZW. See also, R v Cannon [2013] QCA 191.

[16.320] Form of pardon R v Foster [1985] QB 115; [1984] 2 All ER 679; 79 Cr App R 61 (CCA): Now know ye that We in consideration of some circumstances humbly represented unto us, are graciously pleased to extend our grace and mercy unto the said Barry Arthur Foster and to grant him our free pardon in respect of the said conviction, thereby pardoning, remitting and releasing unto him all pains penalties and punishments whatsoever that from the said conviction may ensue.

Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396; [1995] 1 All ER 93; [1994] 3 WLR 1134 (PC): I, Joseph Emmanuel Carter, as required of me by the document headed Major Points of Agreement hereby grant an amnesty to all those involved in acts of insurrection commencing approximately 5.30 pm on Friday 27th July 1990 and ending upon the safe return of all Members of Parliament held captive on 27th July 1990. This amnesty is granted for the purpose of avoiding physical injury to the Members of Parliament referred to above and is therefore subject to the complete fulfilment of the obligation safely to return them.

A pardon notice in Victoria was as follows: A reward of fifty-thousand dollars ($50,000) will be paid, at the discretion of the Chief Commissioner of Police, by the Government of Victoria, for information leading to the arrest and subsequent conviction of the person or persons responsible for the murder of … In addition, His Excellency, the Governor will be advised to extend a free pardon to any person involved in the commission of the offence, not being a principal or a person who has aided or abetted counselled or procured any such principal, and who first gives such information.

[16.325] No power to pardon future offences There is no power to pardon in advance of offences: Attorney-General of Trinidad and Tobago v Phillip [1995] 1 AC 396; [1995] 1 All ER 93; [1994] 3 WLR 1134 (PC); R v Stead [1994] 1 Qd R 665; (1992) 62 A Crim R 40 (CCA); R v D’Arrigo [1994] 1 Qd R 603; (1991) 58 A Crim R 71 (CCA); But there may be power to pardon before charges are laid: Phillip v DPP (Trinidad and Tobago) [1992] 1 AC 545; [1992] 2 WLR 211; [1992] 1 All ER 665 (PC).

[16.330] Prerogative of mercy See Mercy at [13.2500].

[16.335] Legislation Cth: Crimes Act 1914 ss 21D and 85ZR; Qld: Criminal Code ss 18, 672A and 677;

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[16.340]

WA: Sentencing Act 1995 ss 137 and 138; Tas: Criminal Code s 13; NT: Criminal Code ss 431 and 433; Sentencing Act s 115; NSW: Criminal Records Act 1991 s 19; Vic: Criminal Procedure Act 2009 s 327; Sentencing Act 1991 s 106; SA: Criminal Law Consolidation Act 1935 s 369; ACT: Crimes Act 1900 s 433; NZ: Crimes Act 1961 s 407; Can: Criminal Code s 748. In Pepper v Attorney-General (QLD) (No 2) [2008] 2 Qd R 353 (CA) the court held that the legislation did not require the Attorney-General to refer a pardon to the court against the Attorney’s advice.

[16.340] The plea of pardon Pardon is a special plea.

[16.345] Other references See also Amnesty at [1.4800]; and Plea at [16.2100].

PARLIAMENT Introduction ................................................................................................................................. Parliament is supreme ................................................................................................................. Parliaments laws are presumed valid ......................................................................................... Power to pass law ....................................................................................................................... Parliamentary laws bind courts .................................................................................................. Statute binds the Executive ........................................................................................................ Functions of courts ..................................................................................................................... Courts do not examine parliament .............................................................................................

[16.500] [16.505] [16.510] [16.515] [16.520] [16.525] [16.530] [16.535]

[16.500] Introduction In Australia there are six States and two Territories. Added to that is the Parliament of the Commonwealth of Australia. Each Parliament passes legislation.

[16.505] Parliament is supreme Not many courts have made specific reference to the supremacy of parliament. Most courts take it as a given. But those judges who have spoken of it do so in unambiguous terms. The formidable Lord Reid traced some history of parliamentary supremacy. He held that parliament had been supreme at least since 1688: Pickin v British Railway Board [1974] AC 765; 1 All ER 609 at 782. More recently, Dawson J said in Kable v DPP (NSW) (1996) 189 CLR 51; 138 ALR 577 (at 73–74): Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testament to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind.

[16.515]

PARLIAMENT

1097

And later (at 76): The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law.

In the House of Lords, Lord Hobhouse saw a different aspect of parliament. His Lordship said in Arthur JS Hall & Co v Simons [2002] 1 AC 615; [2000] 3 WLR 543; [2000] 3 All ER 673 (at 737; 735): Parliament is the primary guardian of the public interest. In most areas of public policy, parliament will be the sole arbiter and courts should not allow themselves to trespass into them.

And in Lewis v Attorney-General (Jamaica) [2000] 3 WLR 1786 (PC) Lord Hoffmann (in dissent) referred (at 1815) to: [T]he gold of legislative power.

[16.510] Parliaments laws are presumed valid The laws of parliament are presumed to be valid. Courts have said that often. One example is Gerhardy v Brown (1985) 159 CLR 70; 57 ALR 472 at 107 (CLR) per Murphy J. But as with so many presumptions, even this one has its limits. In Kable (above) the High Court by majority set aside an Act of Parliament as being invalid. Perhaps it is no surprise, given his statements in the case, that Dawson J would have upheld it. But in other cases courts have set aside Acts. Perhaps the most famous is the Communist Party case where the High Court set aside an Act as being beyond the Federal Governments powers: Australian Communist Party v Commonwealth (1951) 83 CLR 1. It did the same in the Commonwealth v Tasmania (1983) 158 CLR 1; 57 ALJR 450; 46 ALR 625. To complete this part, in the Fox Hunting case the House of Lords said that when it was deciding on the validity of legislation it would not examine whether parliament was properly constituted at the time when the law was passed. There was a presumption that the parliamentary process was proper: R (Jackson) v Attorney-General [2006] 1 AC 262 [2005] 3 WLR 733.

[16.515] Power to pass law Generally In Reyes v The Queen [2002] 2 AC 235; [2002] 2 WLR 1034; [2002] 2 Cr App R 16 (PC) Lord Bingham, giving the advice of the Board, said (at [25]): In a modern liberal democracy it is ordinarily the task of the democratically elected legislature to decide what conduct should be treated as criminal, so as to attract penal consequences, and to decide what kind and measure of punishment such conduct should attract or be liable to attract. The prevention of crime, often very serious crime, is a matter of acute concern in many countries around the world, and prescribing the bounds of punishment is an important task of those elected to represent the people.

Australia Parliament has the power to pass laws. The only constraint on that power is the Australian Constitution for the Federal Parliament and for each state its own constitution.

Canada Canada, like Australia, is a federation. In R v Malmo-Levine [2003] 3 SCR 571; (2003) 233 DLR (4th) 415; 179 CCC (3rd) 417 (SCC) the court said (at [74]):

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[16.520]

Of course Parliament cannot use its authority improperly, eg colourably, to invade areas of provincial competence: Scowby v Glendenning [1986] 2 SCR 226 at 237.

Approved: R v Demers [2004] 2 SCR 489 at 505 [16] per Iacobucci and Bastarache JJ.

[16.520] Parliamentary laws bind courts Courts are bound by statutes passed by parliaments. In Pickin v British Railways Board [1974] AC 765; 1 All ER 609 (HL) Lord Reid said (at 782; 614): The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our Constitution … I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed than an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.

[16.525] Statute binds the Executive A statute must be followed by the courts. It also binds the Executive. In Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495 Dawson, Toohey and Gaudron JJ said (at 446; 514): The reason why a Commonwealth statute extending to the Crown binds the Commonwealth executive is to be found in the supremacy of parliament over the executive, such supremacy being exercised by legislation passed pursuant to power conferred on the Parliament by the Constitution, not the assent of the Crown as part of the parliamentary process.

[16.530] Functions of courts In Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 Gleeson CJ said (at 577; 130 [19]): In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted.

In Reyes v The Queen [2002] 2 AC 235; [2002] 2 WLR 1034; [2002] 2 Cr App R 16 (PC) Lord Bingham, giving advice of the Board, said (at [25]): The ordinary task of the courts is to give full and fair effect to the penal laws which the legislature has enacted. This is sometimes described as a deference shown by the courts to the will of the democratically-elected legislature. But it is perhaps more aptly described as the basic constitutional duty of the courts which, in relation to enacted law, is to interpret and apply it.

In R v PLV (2001) 51 NSWLR 736; 123 A Crim R 194; [2001] NSWCCA 282 (CCA) Spigelman CJ, with whom the other judges agreed, said (at 743; 206 [82]): The task of the courts is to determine what Parliament meant by the words used, not to determine what Parliament intended to say (see the authorities collected in R v Young (at 686 [5])). The task is to interpret the words of the legislature, not to divine the intent of the legislature: see S v Zuma [1995] 2 S Afr LR 642 at 653; Matadeen v Pointu [1999] 1 AC 98 at 108.

And later (at 743; 207 [87]): The process remains one of construction if the words actually used by the Parliament are given an effect as if they contained additional words. That is not, however, to “introduce” words into the Act. It is to construe the words actually used. Interpretation must always be text based. The reformulation of a statutory provision by the addition or deletion of words should be understood as a means of expressing the court’s conclusion with clarity, rather than as a precise description of the actuall process which the court has conducted.

[16.710]

PAROLE

1099

[16.535] Courts do not examine parliament A court will not examine whether parliament is properly constituted when the court is deciding on the validity of legislation: R (Jackson) v Attorney-General [2006] 1 AC 262; [2005] 3 WLR 733 (HL) (fox hunting case). See also Interpretation at [9.3300].

PAROLE Meaning ....................................................................................................................................... Purpose ........................................................................................................................................ Legislation ................................................................................................................................... Parole Board ................................................................................................................................ Setting a non-parole period ........................................................................................................ Sentencing for a crime committed on parole ............................................................................ Legislature can change parole period after sentence .................................................................

[16.700] [16.705] [16.710] [16.715] [16.720] [16.725] [16.730]

[16.700] Meaning Parole is the early release of a prisoner on the promise to be well behaved (and to return to prison if called upon). The word is derived from a French phrase parole d’honneur: word of honour.

[16.705] Purpose In R v Shrestha (1991) 173 CLR 48; 100 ALR 757 Deane, Dawson and Toohey JJ said (at 69; 772): [I]n a society where imprisonment for the punishment of crime is accepted as being sometimes unavoidable, the parole system represents an important influence for the reform and rehabilitation of those in gaol.

[16.710] Legislation Each jurisdiction provides for parole from another jurisdiction. It is the Parole Orders (Transfer) Act 1983 in New South Wales, the Northern Territory, Queensland, South Australia, Tasmania, Victoria, and Western Australia. Other legislation on parole release: Cth: Crimes Act 1914 ss 19AL to 19AZD; Qld: Corrective Services Act 2006 ss 176 to 215; WA: Sentence Administration Act 2003 ss 15 to 46; Tas: Corrections Act 1997 ss 68 to 83; NT: Parole of Prisoners Act; NSW: Crimes (Administration of Sentences) Act 1999 ss 125 to 160; Vic: Corrections Act 1986 ss 61 to 79H; SA: Correctional Services Act 1982 ss 66 to 77; ACT: Crimes (Sentence Administration) Act 2005 ss 117 to 176; NZ: Parole Act 2002.

1100

ROSS ON CRIME

[16.715]

Eligibility for parole varies from jurisdiction to jurisdiction: Leeth v Commonwealth (1992) 174 CLR 455; 107 ALR 672. Providing there is no breach of parole, the sentence continues to run during parole: Inge v The Queen (1999) 199 CLR 295; 166 ALR 312; 108 A Crim R 281.

[16.715] Parole Board Legislation sets up a Parole Board. The functions of the Parole Board are to consider the release of a prisoner, and to consider the return to prison of the parolee for breach of parole. The Parole Board must not contravene the legislation and the regulations: Smiths v Corrective Services Commission (NSW) (1980) 147 CLR 134; 33 ALR 25. The Parole Board must accord natural justice to a parolee which it suspects of breach. Thus the parolee must be given a proper opportunity to meet the allegation: R v Chairman of Parole Board; Ex parte Patterson (1986) 43 NTR 13; 86 FLR 118 (FC). Nor should the Parole Board insist on an admission of guilt before granting parole: Varney v Parole Board (WA) (2000) 23 WAR 187; 117 A Crim R 514 (FC).

[16.720] Setting a non-parole period In sentencing an offender a court may fix a non-parole period. In Bugmy v The Queen (1990) 169 CLR 525; 47 A Crim R 443; 92 ALR 552 Dawson, Toohey and Gaudron JJ said in a joint judgment (at 536; 559–560): The practical effect of fixing a minimum term is that thereafter the Parole Board may, but of course need not, grant the prisoner parole.

In Inge v The Queen (1999) 199 CLR 295; 166 ALR 312; 108 A Crim R 281 Gleeson CJ, Gaudron, Hayne and Callinan JJ said (at 302–303; 315; 284 [12]): The seriousness of the offence which has been committed, and the severity of the mandatory penalty provided by statute, are matters to be taken into account in fixing a non-parole period, but it does not follow, either as a matter of logic, or as a matter of the proper exercise of the discretion considered in Bugmy, that the relative youth of an offender counts against the offender.

A foreign person is entitled to have parole set: R v Shrestha (1991) 173 CLR 48; 100 ALR 757. In DPP v Josefski (2005) 13 VR 85; 158 A Crim R 185; 226 ALR 174 (CA) Callaway JA said (at 94; 194–195; 183 [43]): 1. When a sentencing judge decides to fix a non-parole period that is unusual, reasons for taking that course should ordinarily be given. 2. A non-parole period may be unusual by comparison with other cases or having regard to the facts of the instant case or the course of the plea. Those examples are not exhaustive. 3. Where a non-parole period is unusual, a failure to give reasons does not inevitably betoken error but it invites appellate scrutiny. 4. The purpose of fixing a non-parole period is to provide for mitigation of punishment in favour of the prisoner’s rehabilitation through conditional freedom. 5. The fixing of a non-parole period requires discrete consideration of the factors bearing upon the question when the prisoner should be eligible for release. 6. The non-parole period is the minimum time that the sentencing judge determines that justice requires the prisoner to serve having regard to all the circumstances of the case. 7. It follows from 5 and 6 that a non-parole period cannot be fixed mechanically by some such method as taking two years, or one-third or one-quarter, off the head sentence.

[16.725]

PAROLE

1101

8. All the relevant factors have to be taken into account. They are many and varied, but they include – (a) that a non-parole period has a penal element; (b) that, where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and (c) that the prisoner’s prospects of rehabilitation are almost always a significant consideration.

The nature of parole conditions that can be set is broad and is discussed by the High Court in Wotton v Queensland [2012] HCA 2. For a consideration of the relevance of standard non-parole periods in jurisdictions where such provisions exist (ie New South Wales and South Australia) to the ultimate sanction, see Muldrock v The Queen (2011) 244 CLR 120. For a consideration of the relevance of standard non-parole periods in jurisdictions where such provisions exist (ie, New South Wales and South Australia) to the ultimate sanction, see Muldrock v The Queen (2011) 244 CLR 120. In Muldrock, the High Court held that the approach to sentencing pursuant to standard non-parole periods was too prescriptive. This resulted in a large number of appeals from accused that had been sentenced inappropriately. In response to this, the Court of Criminal Appeal of the Supreme Court of New South Wales, imposed a requirement in Abdul v The Queen [2013] NSWCCA 247 that such appeals should be allowed if the initial sentence resulted in a substantial injustice. This approach was struck down by the High Court in Kentwell v The Queen [2014] HCA 37, where the High Court held, at [4], that: In assessing the prospects that the appellant’s appeal would succeed, it was wrong to determine that the appellant had failed to demonstrate that substantial injustice was occasioned by the sentence. This is best understood as a conclusion that the aggregate sentence did not impress the Court, upon summary review, as excessive. The appellant is entitled to be sentenced according to law.

See also, O’Grady v The Queen [2014] HCA 38. Other cases Moody v French (2008) 182 A Crim R 186 (WA CA, Full Bench); Maxwell v The Queen (2007) 177 A Crim R 498 at 502–504 [19] – [26] (NSW CCA); R v Mitchell (2007) 177 A Crim R 94 at 103 [36] – [37] (NSW CCA); Piccolo v Western Australia (2007) 173 A Crim R 248 (WA CA); Reaburn v The Queen (2007) 169 A Crim R 337 (NSW CCA); Leach v The Queen (2007) 230 CLR 1; 232 ALR 325; De Rosiers v The Queen (2006) 159 A Crim R 549 (NSW CCA); Leach v The Queen (2005) 16 NTLR 117; 159 A Crim R 183 (CCA); R v Reid (2005) 155 A Crim R 428 (NSW CCA); R v Way (2004) 60 NSWLR 168 (CCA); R v Robinson; Ex parte Attorney-General [1999] 1 Qd R 690; (1998) 101 A Crim R 203 (CA).

[16.725] Sentencing for a crime committed on parole If a person breaches parole by committing a crime a sentencing court will deal with the crime in one of two ways. If the Parole Board has not returned the accused to prison for the

1102

ROSS ON CRIME

[16.730]

breach, the sentencing court cannot assume that it will. If the accused has been returned to prison for the breach, the sentencing court must assume that it is for the whole of the unexpired sentence. The court then takes the totality principle into account. Authorities for the above propositions are: DPP v Rongonui (2007) 17 VR 571; 179 A Crim R 114 (CA): no exceptional circumstances; R v Piacentino (2007) 15 VR 501; 209 FLR 439; 169 A Crim R 348 (CA); R v Hunter (2006) 14 VR 336 (CA): no exceptional circumstances; Callaghan v The Queen (2006) 160 A Crim R 145 (NSW CCA). On the principle of totality see Sentencing (Totality principle) at [19.2170].

[16.730] Legislature can change parole period after sentence Crump v State of New South Wales [2012] HCA 20 upheld the validity of legislation which changed parole entitlement after a sentence imposed, which included an eligibility for parole. This legislative change did not impermissibly alter a judicial determination. The High Court stated that sentences do not create rights or entitlements to be released on parole. This is a matter for the executive, as was noted by the High Court in the earlier decision of Power v The Queen [1974] HCA 26. The decision in Crump relied on the decision of Baker v The Queen [2004] HCA 45 where the Court upheld the validity of earlier changes to the parole criteria and where Gleeson CJ expressly stated: legislative and administrative changes to systems of parole and remission usually affect people serving existing sentences. The longer the original sentence, the more likely it is that an offender will be affected by subsequent changes in penal policy.

PARTICULARS Meaning ....................................................................................................................................... Particulars are required before a plea is made .......................................................................... Entitlement of the defence .......................................................................................................... Two aspects of the need for particulars ..................................................................................... Manner of the defendant’s act or omissions .............................................................................. Inadequate particulars ................................................................................................................. Particulars to be as in civil jurisdiction ..................................................................................... Particulars at committal .............................................................................................................. Particulars in different cases .......................................................................................................

[16.900] [16.905] [16.910] [16.915] [16.920] [16.925] [16.930] [16.935] [16.940]

[16.900] Meaning The prosecution must give sufficient details of the charge so an accused will know what case to meet. These details are called particulars.

[16.905] Particulars are required before a plea is made In R v Buckett (1995) 79 A Crim R 302 (CCA) Hunt CJ at CL said (at 305): An indictment is not invalid because it fails to give all particulars as may be required to enable the accused to know the case which he must meet: Ex parte N Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) (NSW) 286 at 290–291; De Romanis v Sibraa [1977] 2 NSWLR 264 at 291–292; John L Pty Ltd v A-G (NSW) (1987) 163 CLR 508 at 519–520; 27 A Crim R 228 at 234–235; Saffron (No 1) (1988) 17 NSWLR 395 at 446; 36 A Crim R 262 at 310; see also Davies v Ryan (1933) 50 CLR 379 at 386; but he is of course entitled to have particulars of the precise case against him before he is required to plead: Johnson v Miller (1937) 59 CLR 476 at 489, 495,

[16.920]

PARTICULARS

1103

501–502; Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 281; Saffron (1988) 17 NSWLR 395; 36 A Crim R 262 (at 447–448).

[16.910] Entitlement of the defence The defence is entitled to particulars of the act, matter or thing alleged as the foundation of the charge. In Johnson v Miller (1937) 59 CLR 467 Mr Johnson was the licensee of a hotel in Adelaide. He was charged with breaking the licensing Act. Particulars were that 30 men were seen leaving the premises between certain hours, and some entering. Further particulars were refused. Dixon J said (at 489–490): In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. For example, if the court in the present case had proceeded with the hearing of the complaint and, after ascertaining what the defence was, had decided that evidence of similar acts ought not to be admitted, how could it have discovered which was the offence charged and which the similar acts?

In Johnson v Miller (1937) 59 CLR 467, Evatt J said (at 498): No plea can be taken, no evidence can be admitted, nothing can be done, an adjournment will be useless, if a prosecutor is set upon a refusal to particularise.

[16.915] Two aspects of the need for particulars In R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418 (CA) Mackenzie J, giving the leading judgment, said (at 452; 421): There are two aspects of the need for particularity. One is the need to eliminate the risk of duplicity. The occasion on which the offence is alleged to have occurred must be sufficiently identified so that it may be differentiated by the jury as a specific event upon which they must focus … The second purpose of particulars is to give the accused person a sufficient indication of what is alleged against him on the occasion when he is said to have committed the offence.

[16.920] Manner of the defendant’s act or omissions In John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; 73 ALR 545; 27 A Crim R 228 the company was charged on information that its advertisement was “false or misleading in a material particular”. The advertisement was “Australia Day Week-end holiday offer! 1000 litres of free petrol! for every customer buying a car over $3000 this week-end.” The particular was never identified. The High Court struck down the information. Mason CJ, Deane and Dawson JJ said (at 521; 553; 236): But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the “manner of the [appellant’s] acts or omissions” (cf per Dixon J, Johnson v Miller (1937) 59 CLR 467) or to provide “fair information and reasonable particularity as to the nature of the offence charged”: per McTiernan J. In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence.

1104

ROSS ON CRIME

[16.925]

For a discussion regarding the circumstances in which an omission to perform an act can constitute the actus reus of an offence, see DPP v Poniatowska [2011] HCA 43.

[16.925] Inadequate particulars If the particulars are inadequate, the trial may be unfair. In Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 Deane J said (at 59): Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.

Not sufficient particulars “rely on the transcript” R v Partridge (1930) 30 SR (NSW) 410 (Ferguson J) (often cited); R v Weaver (1931) 45 CLR 321 at 333, 351; R v Haslett (1987) 50 NTR 17; 90 FLR 233; 31 A Crim R 85 at 30–32, 246–248, 98–100 (Asche CJ); Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 at 671, 30 (CA).

[16.930] Particulars to be as in civil jurisdiction An accused’s entitlement to particulars in a criminal case is the same as a defendant’s in a civil case: R v Saffron (No 1) (1989) 17 NSWLR 395; 36 A Crim R 262 (CCA) per Hunt AJA at 445–448; 311–312.

[16.935] Particulars at committal Particulars may be ordered at committal. Briot v Riedel & Castles (1989) 44 A Crim R 29 at 36–39 (FCA, Einfeld J); Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 at 671, 29–30 (CA); Stanton v Abernathy (No 2) (1991) 53 A Crim R 241 (NSW CA). Otherwise an implied power may extend so far as to justify a dismissal of the complaint as a last resort and in a very unusual case: Johnson v Miller (1937) 59 CLR 467 per Dixon J at 489 as explained in Stanton v Abernathy (1991) 53 A Crim R 241.

[16.940] Particulars in different cases Conspiracy R v Partridge (1930) 30 SR (NSW) 410 (Ferguson J); R v Weaver (1931) 45 CLR 321; Caratti v The Queen (2000) 22 WAR 527; 157 FLR 241 (CCA); R v Hancock [1996] 2 Cr App R 554 at 559 (CA); R v Saffron [No 1] (1989) 17 NSWLR 395; 36 A Crim R 262 (CCA); R v Mok (1987) 27 A Crim R 438 at 441–442 (NSW CCA).

[16.940]

PERJURY

1105

See also R v Whittington (2006) 149 NTR 1; 197 FLR 103; 160 A Crim R 105 (CCA). Conspiracy at [3.6500];and Manslaughter at [13.1300].

Perjury Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 (CA); R v Traino (1987) 45 SASR 473; 27 A Crim R 271 (CCA); R v Haslett (1987) 50 NTR 17; 90 FLR 233; 31 A Crim R 85 (Asche CJ). See also Perjury at [16.1100].

Sexual offences In R v W [1998] 2 Qd R 531; (1997) 101 A Crim R 453 (CA) Pincus and Muir JJ said (at 537; 459): [I]t may be a prudent course, in a case of this sort, for the prosecution to give the best written particulars it can to identify the charged incidents, whether particulars are requested or not.

The case turned on “uncharged acts” as did R v S [2000] 1 Qd R 445; (1998) 102 A Crim R 418 (CA); DPP v Judge Lewis [1997] 1 VR 391 (CA). In R v Baker; Ex parte Attorney-General [2002] 1 Qd R 274 (CA) the indictment charged a “first occasion”. The conviction was set aside. The court held that there was no identifying feature to which the event could be related. It was a case where the alleged offence was in the distant past and the period in which it was said to have occurred was lengthy. See also Sexual offence at [19.3000].

Indecent language Dalton v Bartlett (1972) 3 SASR 549 (FC). See also Relationship at [18.2200]; Sexual offence at [19.3000]; and Uncharged acts at [21.100].

PERJURY Definition ................................................................................................................................... Legislation ................................................................................................................................. Form of oath and religious belief not relevant ........................................................................ Materiality ................................................................................................................................. Mistaken certitude is not perjury ............................................................................................. One count for each false statement .......................................................................................... Perjury charge on evidence at earlier trial ............................................................................... Corroboration is required .......................................................................................................... Sentence .....................................................................................................................................

[16.1100] [16.1105] [16.1110] [16.1115] [16.1120] [16.1125] [16.1130] [16.1135] [16.1140]

1106

ROSS ON CRIME

[16.1100]

[16.1100] Definition In R v Traino (1987) 45 SASR 473; 27 A Crim R 271 (CCA) King CJ said (at 475; 273): The crime of perjury consists in giving upon oath, in a judicial proceeding, before a competent tribunal, evidence which was material to some question in the proceeding and was false to the knowledge of the deponent, or was not believed by him to be true: WO Russell, Crime: a Treatise (12th ed, 1964), Vol 1, p 291. The crime consists in the making of a deliberately false statement in the postulated circumstances.

[16.1105] Legislation Cth: Crimes Act 1914 s 35; Criminal Code Act 1995 s 6.1; Qld: Criminal Code s 123; WA: Criminal Code s 124; Tas: Criminal Code s 94; NT: Criminal Code s 96; NSW: Crimes Act 1900 s 327; Vic: Crimes Act 1958 s 314; Evidence (Miscellaneous Provisions) Act 1958 ss 141–145; SA: Criminal Law Consolidation Act 1935 s 242; ACT: Criminal Code 2002 ss 700–703; NZ: Crimes Act 1961 ss 108–113; Eng: Perjury Act 1911 s 1; Can: Criminal Code 1985 s 131.

[16.1110] Form of oath and religious belief not relevant The validity of the oath is not affected by an absence of religious belief or a form not binding on conscience.

Legislation Uniform Evidence Acts s 24. Qld: Criminal Code s 123(3). WA: Evidence Act 1906 s 100A. NT: Oaths Act s 24. Vic: Evidence (Miscellaneous Provisions) Act 1958 ss 102, 104. SA: Evidence Act 1929 s 6(2). ACT: Oaths and Affırmations Act 1984 s 22. In R v T (1998) 71 SASR 265; 102 A Crim R 222 (CCA) Doyle CJ said at (271; 228): It is in that context that s 6(2) of the Evidence Act operates. The effect of that provision is that a witness who has given evidence on oath is liable to prosecution for perjury or any other relevant offence, notwithstanding that it later emerges that the witness had no religious belief, or took the oath in a form not binding on his conscience: see R v Deleph Singh (1901) 18 WN (NSW) 81; R v Sossi [1986] WAR 163 at 167; R v Morley [1990] 1 Qd R 54 at 58.

[16.1120]

PERJURY

1107

The relevance of this, for present purposes, is that in the present case the witnesses remained liable for prosecution for perjury, even if it were later to be proved that they had no religious belief, or that the form of oath used was not binding in their consciences.

[16.1115] Materiality In Victoria no question of materiality arises: Crimes Act 1958 s 315. Where materiality is an issue, it is to be decided by the judge first: R v Davies (1974) 7 SASR 375 (CCA) per Wells J at 387 ff. R v Dobos (1984) 58 ACTR 10; 13 A Crim R 306 at 16, 312 (Kelly J). R v Traino (1987) 45 SASR 473; 27 A Crim R 271 (CCA). If the judge thinks the perjury is capable of being material, the issue is to be put to the jury. It must be tested by reference to its bearing on other evidence: R v Hewitt (1913) 9 Cr App R 192. Any statement which goes directly or indirectly to prove an issue is material. See R v Lewis (1914) 10 Tas LR 48 (FC) where it was held that the question of the materiality of the evidence on which perjury is assigned is for the judge, not for the jury. In R v Wheeler [1917] 1 KB 283; 12 Cr App R 159; [1916-17] All ER Rep 1111 a false statement was held to be material which had been made by an accused person who gave evidence after pleading guilty and before he was sentenced. In Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; 57 A Crim R 256; 104 ALR 89 (appeal from Qld CCA) Mason CJ, Deane, Dawson, Gaudron and McHugh JJ said (at 308–309): [T]he issue under s 123 was whether the false testimony pertained or related to a matter which was material to a question then pending in the proceeding and not whether the false testimony itself was material to such a question.

[16.1120] Mistaken certitude is not perjury In MacKenzie v The Queen (1996) 190 CLR 348; 90 A Crim R 468; 141 ALR 70 Dawson and Toohey JJ said (at 356–357; 75; 474): In R v Lowe [1917] VLR 155 at 162 where the appellant was charged with having wilfully made a false statement, Cussen J said that the case should have been left to the jury with a direction to this effect: In order that you should convict the defendant on this indictment you ought to be satisfied beyond reasonable doubt that the statement was not only untrue, but was wilfully false; for if you should think he made it mistakenly, it would not be within the Statute. The direction, in this present case, failed to meet the requirements identified by Cussen J in R v Lowe [1917] VLR 155. This was not because of a failure to address the question of a reasonable or unreasonable mistake, but because of a failure to remind the jury of the need to take into account the possibility of honest mistake.

Gaudron, Gummow and Kirby JJ said (at 373–374; 88–89; 488): [T]he appellant’s repetition … of his conviction of certainty as to the evidence he was giving was equally consistent with the giving of false evidence innocently and mistakenly as distinct from the giving of such evidence dishonestly and with criminal intent. Neither the repetition nor the expressed certainty nor the belated suggestion that the lease as originally seen was a photocopy, are inconsistent with the hypothesis of innocent mistake. Sometimes repeated assertion of false evidence can tend to establish the criminal intention of the witness, especially where the falsity is “inescapable and self-evident” or where it leaves no reasonable cause for a belief that it is true. But honest mistake, inadvertence, carelessness or misunderstanding leading to evidence shown to be false will not constitute perjury for which a criminal intention must always be proved.

In R v Liristis (2004) 146 A Crim R 547 (NSW CCA) the court followed MacKenzie v The Queen. Although the facts were different the court applied the principles. The court held (at 570–571 [132] – [137]) that the trial judge’s directions were not adequate.

1108

ROSS ON CRIME

[16.1125]

[16.1125] One count for each false statement In R v Traino (1987) 45 SASR 473; 27 A Crim R 271 (CCA) King CJ said (at 475; 273): It follows that if more than one false statement is made in the course of the evidence of a witness in a particular case, each such false statement is a separate crime of perjury. Thus in Sweet-Escott (1971) 55 Cr App R 3l6 the accused was charged with five counts of perjury in respect of the denial in evidence of five prior convictions. Each statement to which perjury is assigned is a separate crime and must therefore be made the subject of a separate count. It is not always easy to know when a number of answers in evidence amount to a single false statement or when they constitute separate false statements. As with charges in relation to other areas of criminal activity, it is a question which must be answered “by applying common sense and by deciding what is fair in the circumstances”: DPP v Merriman [1973] AC 584; 56 Cr App R 766 at 593 (AC), 776 (Cr App R) per Lord Morris. Lord Diplock pointed out in the same case (at 607; 796) that the rule against duplicity “has always been applied in a practical, rather than in a strictly analytical, way for the purpose of determining what constituted one offence”. I have no difficulty in envisaging a situation in which the cumulative effect of a number of false statements, perhaps each chargeable as a separate perjury, may amount to a single compendious lie which is chargeable as such in a single count. Thus, for example, a number of false statements as to various disabilities may amount to a compendious statement that the witness is incapable of performing heavy work or is incapable of performing remunerative work or is incapable of undertaking physical exercise or is incapable of engaging in active sporting activities. I see no reason why such a compendious false statement should not be charged as a single assignment of perjury in a single count of an information. Whether that course is proper in a particular case must depend upon the circumstances.

Particulars are to be provided R v Haslett (1987) 50 NTR 17; 90 FLR 233; 31 A Crim R 85 (Asche CJ); R v Traino (1987) 45 SASR 473; 27 A Crim R 271 (CCA); Stanton v Abernathy (1990) 19 NSWLR 656; 48 A Crim R 16 (CA). See also Particulars at [16.900].

[16.1130] Perjury charge on evidence at earlier trial Where a person has previously been tried and a verdict returned it is generally not proper to charge perjury based on the same evidence as was given at the first trial: R v Carroll (2002) 213 CLR 635; 194 ALR 1; 136 A Crim R 167; Garrett v The Queen (1977) 139 CLR 437; 18 ALR 237; Storey v The Queen (1978) 140 CLR 364 at 372; R v El-Zarw [1994] 2 Qd R 67; (1991) 58 A Crim R 200 (CCA). See also Double Jeopardy at [4.4600].

[16.1135] Corroboration is required Ordinarily there must be corroboration of perjury.

Legislation Uniform Evidence Acts s 164(2); Qld: Criminal Code s 125; WA: Evidence Act 1906 s 35 (corroboration not necessary);

[16.1140]

PERVERT THE COURSE OF JUSTICE

1109

Tas: Criminal Code s 96; NT: Criminal Code s 98; Vic: Common law; SA: Criminal Law Consolidation Act 1935 s 242(4) (corroboration not necessary); ACT: Common law; NZ: Crimes Act 1961 s 112; Can: Criminal Code s 133.

Cases R v Fish (2002) 131 A Crim R 172 at 181 [39] (NSW CCA); R v Hoser [1998] 2 VR 535 at 541 (CA); R v Townley (1986) 24 A Crim R 76 (Vic CCA); R v Sumner [1935] VLR 197 (Gavan Duffy J); R v Linehan [1921] VLR 582 at 588 (CCA); R v Cleland (1901) 20 NZLR 509; R v Allsop (1899) 24 VLR 812 at 816 (CCA);

[16.1140] Sentence R v WLP (2005) 158 A Crim R 151 (Qld CA); R v Fish (2002) 131 A Crim R 172 at 201–208 [143] – [183] (NSW CCA); McClelland v The Queen (2001) 33 MVR 259 (WA CCA). It is within discretion to suspend the sentence: R v Wacyk (1996) 66 SASR 530 (CCA). In July 2001 Lord (Jeffrey) Archer was convicted of perjury and perverting the course of justice and sentenced to four years imprisonment. He was released in July 2003 after serving two years. See also Oath at [15.100].

PERVERT THE COURSE OF JUSTICE Definition ................................................................................................................................... Forms of the charge: attempt, conspiracy ................................................................................ The attempt is the completed offence ...................................................................................... Legislation ................................................................................................................................. Intention, act and motive .......................................................................................................... The course of justice ................................................................................................................ Judge’s direction on elements .................................................................................................. Mens rea .................................................................................................................................... Impossibility does not apply .................................................................................................... The Last Act theory is not a condition precedent ................................................................... Examples of the offence ........................................................................................................... Sentencing ................................................................................................................................. Sentence ....................................................................................................................................

[16.1300] [16.1305] [16.1310] [16.1315] [16.1320] [16.1325] [16.1330] [16.1335] [16.1340] [16.1345] [16.1350] [16.1355] [16.1360]

1110

ROSS ON CRIME

[16.1300]

[16.1300] Definition In R v Murphy (1985) 158 CLR 596; 16 A Crim R 203; 61 ALR 139 the court said in a joint judgment (at 609; 143; 205): The gist of the offence was described by Pollock B in Reg v Vreones [1891] 1 QB 360 at 369, as “the doing of some Act which has a tendency and is intended to pervert the administration of public justice”.

[16.1305] Forms of the charge: attempt, conspiracy The charge is generally laid as an attempt to pervert the course of justice or as a conspiracy. In New South Wales and Tasmania it can be an act etc, “intending … to pervert the course of justice”.

[16.1310] The attempt is the completed offence McHugh J in R v Rogerson (1992) 174 CLR 268;107 ALR 225; 60 A Crim R 429 said (at 297–298; 244; 447): As the English Court of Appeal pointed out in R v Rowell [1978] 1 WLR 132, at 138, however, the “use of the word ‘attempt’ in this context is misleading”. The essence of the offence is “the doing of some act which has a tendency and is intended to pervert the administration of public justice”, R v Vreones [1891] 1 QB, at 369; R v Murphy (1985) 158 CLR; 16 A Crim R 203; 61 ALR 139, at 609 (CLR). An attempt to pervert the course of justice is a substantive and not an inchoate offence, R v Machin [1980] 71 Cr App R 166 at 170. In Machin [1980] 71 Cr App R 166, the Court of Appeal pointed out that the word “attempt”: [I]s convenient for use in the case where it cannot be proved that the course of justice was actually perverted but it does no more than describe a substantive offence which consists of conduct which has tendency and is intended to pervert the course of justice.

Thus in Question of Law Reserved (No 1 of 2008) (2008) 102 SASR 398; 190 A Crim R 599 (CCA) the court held that attempting to pervert the course of justice is a substantive offence, not an incohate offence. Hence there may be an offence of conspiracy to attempt to pervert the course of justice.

[16.1315] Legislation Cth: Crimes Act 1914 s 43; Qld: Criminal Code s 140; WA: Criminal Code s 143; Tas: Criminal Code s 105; NT: Criminal Code s 109; NSW: Crimes Act 1900 ss 312 and 319; Vic: Crimes Act 1958 s 320; SA: Criminal Law Consolidation Act 1935 s 256; ACT: Common law; NZ: Crimes Act 1961 ss 116 (conspiring to defeat justice); Eng: Common law; Can: Criminal Code s 139; The sections do not give a definition. They recite only the offence and penalty.

[16.1330]

PERVERT THE COURSE OF JUSTICE

1111

[16.1320] Intention, act and motive In Meissner v The Queen (1995) 184 CLR 132; 80 A Crim R 308; 130 ALR 547 Dawson J said (at 159; 566–567; 328): The intention required to constitute the offence of attempting to pervert the course of justice is an intention to pervert the course of justice, that is to say, an intention to do something which, if achieved, would pervert the course of justice. The act required is an act which has the tendency to pervert the course of justice. The motive with which such an act is done is irrelevant except to the extent that it may throw light upon the requisite intent.

In Hatty v Pilkinton (No 2) (1992) 35 FLR 433; 108 ALR 149; 61 A Crim R 345 (FCA), Black CJ said (at 441; 157; 353): An intention to do an act that has a tendency to pervert the course of justice, knowing that it has that tendency, is not however necessarily the same thing as an intention to pervert the course of justice. If proof of the offence requires what may be termed a literal intention to pervert the course of justice, proof of the intentional doing of an act that is known to have that tendency may be insufficient because it may leave open the possibility that an actual perversion of the course of justice was not intended. There is a difference between intending interference and risking interference. The classical formulation of the elements of the common law offence by Baron Pollock in Vreones [1891] 1 QB at 369, which has often been repeated, is in terms of an intention to pervert the administration of justice, not an intention to do an act that has a known tendency to pervert the administration of justice: see also Murphy (1985) 4 NSWLR 42 at 49; cf Foord (1985) 20 A Crim R 267 at 268.

See also DPP, Reference under s 639A of Criminal Code; Re Y (1998) 19 WAR 47; 100 A Crim R 166 (FC).

[16.1325] The course of justice In R v Rogerson (1992) 174 CLR 268; 107 ALR 225; 60 A Crim R 429 Brennan and Toohey JJ said (at 280; 230; 434): The course of justice consists in the due exercise by a court or competent judicial authority of its jurisdiction to enforce, adjust or declare the rights and liabilities of persons subject to the law in accordance with the law and the actual circumstances of the case (R v Todd [1957] SASR 305 at 328). The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency in effect any such impairment is the actus reus of an attempt to pervert the course of justice.

Followed: Meissner v The Queen (1995) 184 CLR 132; 80 A Crim R 308; 130 ALR 547 at 142 (CLR). In R v Beckett [2015] HCA 38 held that perverting the “course of justice” pursuant to s 319 of the Crimes Act 1900 (NSW) can occur merely when an accused contemplates the existence of such a course of proceedings and does an act with the prescribed intention.

[16.1330] Judge’s direction on elements A trial judge must give the jury a proper direction on the elements. A failure properly to direct will give rise to a substantial miscarriage of justice: Hugo v The Queen (2000) 113 A Crim R 484 at 497 [51] (WA CCA).

1112

ROSS ON CRIME

[16.1335]

[16.1335] Mens rea A conspiracy to pervert the course of justice requires the prosecution to prove mens rea. In R v Freeman (1985) 3 NSWLR 303; 17 A Crim R 272 (CCA), Miss Freeman had used an accused’s own money to bail him out. She was a young solicitor employed by Christopher Heath Watson. She said she believed that what she was doing was not unlawful and that she was acting under the instructions of her employer. The Court of Criminal Appeal set her conviction aside. Years later, Mr Watson was charged. The proceedings against him were stayed: Watson v Attorney-General (NSW) (1987) 8 NSWLR 685; 28 A Crim R 332 (CA). See also Conspiracy at [3.6500].

[16.1340] Impossibility does not apply In Healy v The Queen (1995) 15 WAR 104 (CCA) Malcolm CJ said at 108: In my opinion there is no room for a defence of impossibility in relation to the offence of attempting to pervert the course of justice.

[16.1345] The “Last Act” theory is not a condition precedent In R v Murray [1982] 1 WLR 475; [1982] 2 All ER 225; (1982) 75 Cr App R 58 (CCA) Lord Lane said (at 479; 228; 62): [T]here must be evidence that the man has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what he has done, without more, might lead to injustice.

It is sufficient that what he has done “without more” has a tendency to produce that result. Approved: R v Allan [1995] 2 VR 468 at 472 (CA).

[16.1350] Examples of the offence R v Beaudry [2007] 1 SCR 190 (SCC): police officer failing to take a breath sample from a fellow officer when the sample was called for. R v Spratt [2007] 3 NZLR 810 (CA): disposing of the blood specimen taken after his driving. Librizzi v Western Australia (2006) 33 WAR 104; 167 A Crim R 26 (CA): trying to persuade a witness not to give evidence. R v Karageorge (1998) 146 FLR 100; 103 A Crim R 157 (NSW CCA): a solicitor speaking to a journalist about the case so that it would be stayed because of publicity. R v Morex Meat Aust Pty Ltd [1996] 1 Qd R 418; (1995) 129 ALR 546; 78 A Crim R 269 (CA): attempting to pay potential witnesses. R v Allan [1995] 2 VR 468 at 472 (CA): policeman preparing a brief wrongly alleging assault and resist arrest to explain baton injuries he had given a motorist. Meissner v The Queen (1995) 184 CLR 132; 80 A Crim R 308; 130 ALR 547: persuading and possibly paying someone to plead guilty. R v Rogerson (1992) 174 CLR 268; 107 ALR 225; 60 A Crim R 429: fabricating evidence to divert a police investigation. (The charge was conspiracy).

[16.1360]

PERVERT THE COURSE OF JUSTICE

1113

R v Murphy (1985) 158 CLR 596; 16 A Crim R 203; 61 ALR 139: trying to persuade the Chief Magistrate to influence a magistrate hearing a committal against a friend of the accused. R v Murray [1982] 1 WLR 475; [1982] 2 All ER 225; (1982) 75 Cr App R 58: tampering with a blood specimen to reduce alcohol reading. R v Vreones [1891] 1 QB 360; [1891-1894] All ER Rep 2058: improving wheat samples expected to be exhibits in an arbitration. Bowden v WA [2013] WASCA 118: (where offence could not have beein committed on the facts, despite the plea of guilty).

[16.1355] Sentencing Relative positions of parties In R v Taouk (1992) 65 A Crim R 387 (NSW CCA) Badgery-Parker J giving the leading judgment, said (at 412–413): [T]he rank or position of the person by whom an offence of attempting to pervert the course of justice is committed is a very relevant matter in assessing the gravity of the criminal conduct involved; so too is the position or rank of any person to whom any inducement, threat or pressure is directed; so too, it is relevant to consider the disparity between the respective positions of the participants.

Approved: R v Karageorge (1998) 146 FLR 100; 103 A Crim R 157 at 119 (FLR), 175–176 (A Crim R) (NSW CCA).

Deterrence In R v Morex Meat Aust Pty Ltd [1996] 1 Qd R 418; (1995) 129 ALR 546; 78 A Crim R 269 (CA) the court said in a joint judgment (at 445; 572; 296): In cases of this kind courts recognise the necessity for imposing a punishment which is to be seen as deterrent both personal to the offender and to the community at large.

Denunciation In R v Nguyen (2004) 149 A Crim R 343 (NSW CCA) Spigelman LJ, with whom the others agreed, said (at 350 [43]): One of the purposes of sentencing is the denunciation of the conduct in which an offender has engaged … In my opinion, the fact that a person, like a police officer, who is directly involved in the administration of justice acts in a way that perverts the course of justice means that the object of denunciation is entitled to greater weight in the sentencing exercise than it is in the case of other offenders.

[16.1360] Sentence A sentence of imprisonment is almost always imposed either at first instance or on a prosecution appeal. In R v Morex Meat Aust Pty Ltd [1996] 1 Qd R 418; (1995) 129 ALR 546; 78 A Crim R 269 (CA) two of the accused were sentenced to 18 months imprisonment wholly suspended. The prosecution did not appeal these sentences. In Librizzi v Western Australia (2006) 33 WAR 104; 167 A Crim R 26 (CA) (above) the sentence held to be proper was one year and three months imprisonment.

1114

ROSS ON CRIME

[16.1500]

See also R v Briggs (2000) 117 A Crim R 114 (Vic CA). Yet in R v Purtell (2001) 120 A Crim R 317 (NSW CCA) the accused had forged a reference which was given to the court on conviction for an offence. On the prosecution appeal the respondent was given a bond.

PHOTOFIT What is a photofit ..................................................................................................................... Photofit and hearsay .................................................................................................................. Discretion to exclude ................................................................................................................ Judge’s direction to the jury .....................................................................................................

[16.1500] [16.1505] [16.1510] [16.1515]

[16.1500] What is a photofit A photofit or identikit picture of a person to be identified is composed usually by police from the description of appearance made by a witness. In recent times computer images are more often produced. It is the witness who will give evidence of the likeness. The production of an image is almost always done by a police officer trained in that skill. It is produced in the absence of the suspect.

[16.1505] Photofit and hearsay In R v Cook [1987] 1 QB 417; [1987] 1 All ER 1049; 84 Cr App R 369 a ground of appeal against convictions for robbery and indecent assault was that the photofit was tendered. The appellant argued that it was a prior consistent statement and could not be tendered. The appeal was dismissed. After a long judgment on the topic the Court of Appeal concluded (at 425; 1054; 375): As we perceive it the photofit is not a statement in writing made in the absence of a defendant or anything resembling it in the sense that this very old rule against hearsay has ever been expressed to embrace. It is we think sui generis, that is to say, the only one of its kind. It is a thing apart, the admissibility to evidence of which would not be in breach of the hearsay rule. Seeing that we do not regard the photofit as a statement at all it cannot come within the description of an earlier consistent statement which, save in exceptional circumstances, cannot ever be admissible in evidence. The true position is in our view that the photograph, the sketch and the photofit are in a class of evidence of their own to which neither the rule against hearsay nor the rule against the admission of an earlier consistent statement applies.

See also R v Hentschel [1988] VR 362 (CCA) in which Brooking J examined the principles and cases (at 372–377). He said (at 375): It is of interest that in Alexander’s Case (1981) 145 CLR 395 Murphy J (145 CLR at p 434; 34 ALR at p 319) referred to evidence by a person that “he has on some other occasion identified that other, by some representation (such as a photograph) or in person”. This language is wide enough to include a composite drawing. And in the same case the Full Court ([1980] VR at p 580) mentioned “an out-of-court identification, whether from inspection of photographs or of an identi-kit, or at an identification parade”.

Such evidence was given in R v Clune [1982] VR 1; 5 A Crim R 246 at 3 (VR); (1981) 5 A Crim R 246 (CCA) apparently without debate.

[16.1510] Discretion to exclude A judge has a discretion to exclude a photofit, for example, if its production were “tainted with suggestibility”: R v Sparkes (1996) 6 Tas R 178; 88 A Crim R 194 at 193 (Tas SR), 207 (A Crim R) (Underwood J).

[16.1705]

PHOTOGRAPH

1115

See also Bunning v Cross at [2.4300]; and Discretion at [4.3200].

[16.1515] Judge’s direction to the jury A judge should give a direction consistent with the principles that apply to any form of identification. In R v Alexandridis (1994) 76 A Crim R 391 (Vic CCA) the appeal against conviction was allowed because by his comments on the evidence the judge had “eroded the force” of his identification warning. In that case the representation was described as a “constructed portrait” (at 396) and a “photofit” (at 397). (As to the position in England, see R v Constantinou (1990) 91 Cr App R 69 at 76–77; R v Carusi (1997) 92 A Crim R 52 at 63 (NSW CCA).) See also Identification (Photofit) at [9.205].

PHOTOGRAPH Photograph of dead victim ....................................................................................................... Photographs of victim’s sexual organs .................................................................................... Police photographs of suspect .................................................................................................. Photograph of accused shown to witness ................................................................................

[16.1700] [16.1705] [16.1710] [16.1715]

[16.1700] Photograph of dead victim A photograph of a dead victim will be excluded at trial where the prejudicial effect outweighs the probative value or is otherwise unfair. But photographs are not often excluded for that reason. In R v Zammit (1999) 107 A Crim R 489 (NSW CCA) Wood CJ at CL said (at 514): The sensitivity of juries to photographs can too easily be overstated. I can see no reason why a degree of robustness should not be extended in this regard. Nor can I see why the tender of selected photographs, so long as they have a probative value (R v O’sullivan and Mackie (1975) 13 SASR 68 at 74–75), should be regarded as other than another step in the course of a trial in which the fact of violent death is patent for all: Green v The King (1939) 61 CLR 167 at 172; R v Jeffrey [1967] VR 467 at 473 and R v Ames [1964] NSWR 1489.

Other cases on photographs of dead bodies R v Jamieson (1992) 60 A Crim R 68 at 78 (NSW CCA); R v Harbach (1973) 6 SASR 427 at 435 (CCA); R v Stuck [1949] NZLR 108 at 111–112 (CA). See also Exhibit at [5.2300].

[16.1705] Photographs of victim’s sexual organs In R v Telford (1996) 86 A Crim R 427 (Vic CCA) Southwell AJA said of the use of photographs in the murder trial (at 434–435): There were three close-up photographs of the vagina, and one of the anus showing also a tear between the anus and the vagina. In three of the photographs the orifice is opened by the hands of

1116

ROSS ON CRIME

[16.1710]

the pathologist for the purposes of demonstrating the relevant injuries. By that means the apparently large tear on the right side of the vagina is vividly shown. It was conceded by counsel for the applicant that if these wounds had been situated anywhere else on the body no objection could have been taken to them. However, it was said that because the genitalia was displayed then the jury might be distracted from its task by the unpleasantness of the photographs. In my opinion, the photographs were not, comparatively speaking, excessively grisly or horrifying. It is commonplace to see in murder trials photographs likely to be far more upsetting than these. The fact that the applicant’s attack had a sexual content to it and that considerable force was used in injuring the vagina in particular, was, of course, relevant to the proof of the applicant’s intent to cause at least really serious bodily harm. The evidence of both Dr Ranson and Dr Wells would have been much more difficult to follow if the photographs had not been tendered. The judge would not have been entitled to reject the tender unless he was satisfied that the prejudicial content outweighed the probative value, or it was otherwise unfair to the applicant to admit the photographs into evidence. Far from being persuaded that the judge erred in the exercise of his discretion, I am of the respectful opinion that his Honour’s ruling was correct.

[16.1710] Police photographs of suspect At one time police could not take a photograph against the will of a suspect. In R v Ireland (1970) 126 CLR 321 Barwick CJ said (at 333–334): The question is not whether a police officer may take a photograph for the purpose of recording matter which he bona fide thinks may be of assistance at the trial. I would not doubt that he can. The question is whether he can compel a person to submit himself to photography for some purpose other than the identification of that person, that is to say, to establish who he is or to establish his identity with a person known to have committed the crime then under investigation.

That position has largely been changed by legislation. Cth: Crimes Act 1914 ss 3ZJ, 3ZO and 23XV; Qld: Police Powers and Responsibilities Act 2000 s 294ff and Sch 4; WA: Criminal Investigation (Identifying People) Act 2002 s 11; 17; 34 and 47; Tas: Criminal Process (Identification and Search Procedures) Act 1976 s 3; NT: Police Administration Act s 146; Vic: Crimes Act 1958: see ss 464, 464R, 464S, 464T, 464Y and 464Z; SA: Criminal Law (Forensic Procedures) Act 1998 eg s 41; ACT: Crimes Act 1900 s 230; NZ: Police Act 1958 s 57(1).

[16.1715] Photograph of accused shown to witness Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289. See also Identification at [9.100].

PIRACY Meanings ................................................................................................................................... Piracy is a crime by domestic law ........................................................................................... Piracy jure gentium ................................................................................................................... The Jolly Roger ........................................................................................................................

[16.1900] [16.1905] [16.1910] [16.1915]

[16.1915]

PIRACY

1117

[16.1900] Meanings In Chapman v Australian Broadcasting Corporation [2000] SASC 146 (FC) Lander J, with whom the others agreed, said at [121]): Piracy has two quite distinct meanings. It means either robbery, kidnapping or violence at sea or alternatively the unlawful reproduction of some intellectual property.

(This paragraph is not in the report of the case (77 SASR 181)). The rest of this topic deals only with the first meaning.

[16.1905] Piracy is a crime by domestic law Legislation makes piracy a crime: Cth: Crimes Act 1914 ss 51–56; Qld: Criminal Code ss 79–83; WA: No legislation; NT: Criminal Code ss 72–75; NSW: Piracy Punishment Act 1902; Vic: Crimes Act 1958 ss 70A–70D; SA: Criminal Law Consolidation Act 1935 s 174; ACT: No legislation; NZ: Crimes Act 1961 ss 93–97 and 168(2)(c); Eng: Merchant Shipping and Maritime Security Act 1997 s 26.

[16.1910] Piracy jure gentium Piracy is crime jure gentium (by the law of nations). In Re Piracy Jure Gentium [1934] AC 586; [1934] All ER Rep 506 (PC) Viscount Sankey LC said (at 589; 507): But whereas according to international law the criminal jurisdiction of municipal law is ordinarily restricted to crimes committed on its terra firma or territorial waters or its own ships, and to crimes by its own nationals wherever committed, it is also recognised as extending to piracy committed on the high seas by any national on any ship, because a person guilty of such piracy has placed himself beyond the protection of any State. He is no longer a national, but “hostis humani generis” and as such he is justiciable by any State anywhere.

(referred to by Brennan J in Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 at 565, 579). In Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207 Gaudron, Gummow and Hayne JJ wrote in a footnote to paragraph [96] of: [T]he common law position put by Story J in The Marianna Flora (1826) 11 Wheat 1 at 40–41 [24 US 1 at 38] that pirates are “the common enemies of all mankind”.

[16.1915] The Jolly Roger In old times a pirate ship would identify itself by running up the Jolly Roger. That was the name of the flag bearing the skull and crossbones. One version of the name comes from Bartholomew Roberts, a French buccaneer, whose nickname was “Le Jolie Rouge” – the beautiful red. In time the corruption of the name was bestowed on the flag.

1118

ROSS ON CRIME

[16.2100]

PLEA Definition ................................................................................................................................... Plea of not guilty ...................................................................................................................... Plea of guilty to a lesser offence rejected ................................................................................ Plea of a co-accused ................................................................................................................. Plea or confession of principal ................................................................................................. Change of plea of co-accused .................................................................................................. Effect of a plea of guilty .......................................................................................................... Plea of guilty must be unequivocal .......................................................................................... Plea and conviction are separate steps ..................................................................................... Duty of counsel on a plea ........................................................................................................ Judge may allow withdrawal of plea of guilty ........................................................................ Appeal against conviction after a plea of guilty ..................................................................... Judge’s directions ...................................................................................................................... Admissibility at trial of plea of guilty at committal ............................................................... Discretion to exclude ................................................................................................................ Guidelines on acceptance of pleas (England) .......................................................................... Ten hints on a plea in mitigation .............................................................................................

[16.2100] [16.2105] [16.2110] [16.2115] [16.2120] [16.2125] [16.2130] [16.2135] [16.2140] [16.2145] [16.2150] [16.2155] [16.2160] [16.2165] [16.2170] [16.2175] [16.2180]

[16.2100] Definition The word plea has a number of quite different meanings. 1. When the accused is arraigned, or in the Magistrates Court when the charge is read, the answer by the accused of “guilty” or “not guilty” is said to be his plea. That plea is sometimes called a general plea. It is to be contrasted with a special plea which is to the jurisdiction by pleading pardon, or by a plea of autrefois acquit or autrefois convict. 2. Plea is a familiar word for a speech and evidence in mitigation of sentence where a person has been found guilty or has pleaded guilty. See also Counsel at [3.8700].

[16.2105] Plea of not guilty In Griffıths v The Queen (1994) 69 ALJR 77; 76 A Crim R 164; 125 ALR 545 (HC) Brennan, Dawson and Gaudron JJ said (at 79; 547–548; 167): A plea of not guilty puts all elements of the offence charged in issue.

In Thompson v The King [1918] AC 221; [1918-19] All ER Rep 521; (1917) 13 Cr App R 61 (HL) Lord Sumner said (at 232; 526; 78): The mere theory that a plea of not guilty puts everything material in issue is not enough for this purpose. The prosecution cannot credit the defence with fancy defences in order to rebut them at the outset with some damning piece of prejudice.

Approved: Killick v The Queen (1981) 147 CLR 565; 37 ALR 407 per Gibbs CJ, Murphy and Aickin JJ at 571; Perry v The Queen (1982) 150 CLR 580 per Gibbs CJ at 588.

[16.2110] Plea of guilty to a lesser offence rejected An accused may be charged with two offences and plead guilty to the lesser offence. Or the accused may plead guilty to a lesser alternative. The prosecution may decide to proceed with the more serious offence. The following is the procedure.

[16.2125]

PLEA

1119

In R v Broadbent [1964] VR 733 (CCA) O’Bryan J, with whom the others agreed, said (at 736): The most convenient way to deal with the matter is to allow the whole trial to go forward, that is, the trial on both counts. The jury can be told, whether the prisoner does or does not withdraw his plea of guilty to the lesser offence, that having heard him say in effect in open court that he is guilty of the lesser offence, they can use that admission against him considering what the proper verdict should be. That is, if they find him guilty of the more grave charge, there is no necessity for them to consider the lesser charge, but if they find him not guilty of the more grave charge, they may, in considering his guilt of the lesser charge, take into account his plea of guilty. If the court does otherwise and withdraws the lesser charge from the jury and proceeds only with the major offence, it might be supposed that the court had in some way accepted the plea of guilty, and afforded the accused an answer by way of autrefois convict to the major charge.

Approved: DPP v Collins (2004) 10 VR 1; 149 A Crim R 213 (CA) per Winneke P (at 11; 223 [25]), with whom the others agreed; The procedure is different in England. There the accused is arraigned only on the main charge: R v Cole [1965] 2 QB 388; [1965] 2 All ER 29; (1965) 49 Cr App R 199 (CA).

[16.2115] Plea of a co-accused Prosecution evidence that a co-accused pleaded guilty is normally not relevant as going only to credit: R v Windsor [1953] NZLR 83 (CA); R v Gallagher (1986) VR 219; 16 A Crim R 215 at 235, 231 (CCA); Burnett v The Queen (1994) 76 A Crim 148 (WA CCA). The trial judge should give the jury a specific warning not to use such a plea in the slightest degree when determining guilt: R v Cowell (1985) 24 A Crim R 47 (NSW CCA) per Street CJ (at 50). The warning should be “in positive, indeed sometimes mandatory terms”: R v Fountain (2001) 124 A Crim R 100 (Vic CA) per Charles JA (at 110 [28]).

[16.2120] Plea or confession of principal The plea or confession of a principal is not admissible against an accessory whose guilt can only be proved by admissible and not hearsay evidence: R v Welsh [1999] 2 VR 62; 105 A Crim R 448 (CA).

[16.2125] Change of plea of co-accused Two accused plead not guilty on arraignment. During the trial one of them changes his plea to guilty. Can the trial proceed against the other accused? The answer lies in whether the trial can be fair. The decision in R v Chee [1980] VR 303 (CCA) has been savagely dealt with by courts in subsequent cases, but not on this point. It was held there had been no miscarriage by the change of plea by a co-accused. In R v Cowell (1985) 24 A Crim R 47 (NSW CCA) it was held that there had been a miscarriage when combined with another ground. In R v Coates (2002) 136 A Crim R 252 (NSW CCA) the trial was allowed to continue after a late change of plea by a co-accused. Held: No unfairness, appeal dismissed. In Grakalic v The Queen (2002) 27 WAR 19; 130 A Crim R 219 (CCA) a co-accused changed her plea on the third day of the trial and gave prosecution evidence. By majority, appeal dismissed.

1120

ROSS ON CRIME

[16.2130]

[16.2130] Effect of a plea of guilty In R v D’Orta-Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 (CA), Winneke P said (at 146–147; 462): Evidence of an earlier plea of guilty amounts to a formal confession of the existence of every ingredient necessary to constitute the offence: see De Kruiff v Smith [1971] VR 761 at 765; R v Henry [1917] VLR 525 at 526.

[16.2135] Plea of guilty must be unequivocal In Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1 Dawson and McHugh JJ said (at 511; 7; 186): The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered. But otherwise an accused may insist upon pleading guilty.

Examples of a plea of guilty which the magistrate should not have accepted: Joshua v Thomson (1994) 119 FLR 296 (NT Kearney J); R v Bennett (1988) 79 ACTR 1 (Gallop J); Salmon v Chute (1994) 4 NTLR 92; 94 NTR 1; 70 A Crim R 536 (Kearney J); Lim v Bateman (2001) 165 FLR 268; 125 A Crim R 101 (WA FC).

[16.2140] Plea and conviction are separate steps In Perejmibida v Skelcher (2002) 127 A Crim R 549 (WA, Roberts-Smith J) his Honour said (at 553 [26] – [27]): A plea of guilty and a conviction in consequence of that plea are two separate steps in criminal procedure. A clear and unambiguous plea of guilty is an admission of all the facts essential to prove the charge: O’Neill [1979] 2 NSWLR 582; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81. Such a plea however, admits no more than the essential ingredients of the offence: Di Camillo v Wilcox [1964] WAR 44; Slater v Marshall [1965] WAR 222. A plea of guilty does not by itself amount to a conviction. It is no more than a formal admission by the defendant. It is an admission which neither the Crown nor the court is obliged to accept. Conviction is the act of the court not that of the defendant: Collins [1996] 1 Qd R 631; (1994) 76 A Crim R 204. There is no conviction until there is an acceptance of the plea amounting to a determination of guilt by the court: Maxwell (1996) 184 CLR 501; 87 A Crim R 180. The judge or magistrate must take some further step, either by formal announcement of a conviction or indirectly, by words or conduct, such as proceeding to deal with the issue of sentence: Griffıths (1977) 137 CLR 293; Cole [1965] 2 QB 388; (1965) 49 Cr App R 199. It is not correct to say that a defendant has not been convicted until sentenced – a conviction is a finding of guilt by a court and if not announced expressly, such a finding will ordinarily be implicit in the court embarking upon the sentencing process: Robertson and Golder [1987] QB 920; (1987) 85 Cr App R 304.

See also Conviction [3.7300].

[16.2145] Duty of counsel on a plea See Counsel at [3.8700]ff.

[16.2150] Judge may allow withdrawal of plea of guilty A judge has a discretion to allow a plea of guilty to be withdrawn.

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The principles regarding when this can occur are relatively well settled, although the case law provides no firm guidance regarding when a change of plea to not guilty will be permitted. This is because it established that the ultimate consideration is the obscure concept of a miscarriage of justice and the courts have expressly stated that the categories of situations where an accused can change plea are not close. The guiding principle has recently been considered at length by the Court of Appeal in New South Wales and Queensland. The relevant parts of the judgments are now set out in some detail because they usefully refer to other leading authorities. In Lawson v The Queen [2011] NSWCCA 44 (22 March 2011) Hall J (Natham and Price JJ agreeing) stated: [31] In determining whether, as alleged, Bennett DCJ erred in dismissing the application to set aside the pleas of guilty, I set out below the principles that apply to an application of that kind. [32] In Regina v Kouroumalos [2000] NSWCCA 453, Wood CJ at CL (with whom Studdert and Whealy JJ agreed) outlined the approach to be taken to an application to set aside pleas of guilty. In that respect, his Honour referred to the following propositions:(1) Before this Court will go behind a plea of guilty and entertain an appeal against conviction, it must be satisfied that a miscarriage of justice has occurred: Regina v Chiron (1980) 1 NSWLR 218, 231. (2) A miscarriage of justice may occur in circumstances in which, in offering a plea, an accused did not appreciate the nature of the charges, or did not intend to admit his or her guilt, or where the applicant, on the admitted facts, would not in law have been convicted of the offences charged: Regina v Liberti (1991) 55 A Crim R 120 at 121 to 122; Regina v Foley (1963) 80 WN 726 and Regina v Caruso (1988) 37 A Crim R 1. (3) A court may also go behind a plea of guilty where the plea is entered after a trial judge has erroneously decided to admit evidence that would be fatal to the defence (as in Chiron (supra)) or where an accused is induced by threats from a fellow accused or police officer to plead guilty where otherwise he or she would have pleaded not guilty: Regina v Murphy (1965) VR 187 at 190 or where the accused is persuaded to enter a plea of guilty by reason of imprudent and inappropriate advice tendered to him or her by legal representatives: Regina v Favero [1999] NSWCCA 320 and Regina v Whitehead [2000] NSWCCA 400 or by the Court: Regina v Davey (NSWCCA, unreported 3 March 1995). (4) Whilst the above matters do not constitute an exhaustive statement of the circumstances in which pleas of guilty may be set aside, they are to be considered, as relevant, according to the facts of the particular case. [33] In Kouroumalos (supra), Wood CJ at CL also observed (at [19]):What is required, for an exercise of the relevant discretion is the identification of some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt or that otherwise the integrity of the plea is bona fide in question. [34] The onus of establishing that there has been a miscarriage of justice lies on the applicant: Regina v Boag (1994) 73 A Crim R 35 at 36 to 37. [35] In Liberti (supra), Kirby P at 122 stated that, for good reasons:... Courts approach attempts at trial or an appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence ... [36] It is also observed by Lee J in Regina v Sagiv (1986) 22 A Crim R 73 that:The substantial general proposition which emerges from these cases is that it is a matter for the discretion of the judge presiding as to whether a plea of guilty should be permitted to be

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withdrawn and that each case must be looked at in regard to its own facts and a decision made whether justice requires that that course be taken. [37] In addition to applying the relevant principles to an application such as the present, it is also necessary to consider whether or not, for example, a mistake occurred in the events or process leading to the entry of the guilty pleas or other circumstances existed that could be said to have affected the integrity of the pleas as admissions of guilt. On the other hand, if the evidence indicates that the pleas were entered in full knowledge of all the facts and intentionally to the charges is made, then Bennett DCJ was obviously entitled to exercise his discretion against the withdrawal of the pleas. [38] Accordingly, in the analysis below, the relevant facts are identified, and the evidence examined in order to determine whether the applicant was in possession of all the facts and whether he intended to plead guilty by way of admission to all of the legal ingredients of the offences [emphasis added].

This decision was cited with approval in the more recent judgment of Rotner v The Queen [2011] NSWCCA 207 (8 September 2011). In R v Nerbas [2011] QSC 41 the Court permitted an accused to withdraw his plea because his counsel threatened to withdraw from the case if he did not plead guilty. The principles are summarised by Kelly J in R v Stevens [2011] SASC 69 as follows: [14] Before turning to the evidence it is useful to remind myself of the principles which govern an application by a convicted person to set aside a plea of guilty. The relevant principles were discussed by the Full Court in R v Pugh and R v Brooks. [15] The important issue on an application of this nature is whether there has been a miscarriage of justice. [16] Some of the circumstances in which a miscarriage of justice has occurred were summarised by Spigelman CJ in R v Hura: (1) where the appellant “did not appreciate the nature of the charge to which the plea was entered”; (2) where the plea was not “a free and voluntary confession” (3) the “plea was not really attributable to a genuine consciousness of guilt” (4) where there was “mistake or other circumstances affecting the integrity of the plea as an admission of guilt” (5) where the “plea was induced by threats or other impropriety when the applicant would not otherwise have pleaded guilty ... some circumstance which indicates that the plea of guilty was not really attributable to a genuine consciousness of guilt” (6) the “plea of guilty must either be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt” (7) if “the person who entered the plea was not in possession of all of the facts and did not entertain a genuine consciousness of guilt” [17] In R v Liberti [11], Kirby P said: For good reasons, courts approach attempts at trial or on appeal in effect to change a plea of guilty or to assert a want of understanding of what was involved in such a plea with caution bordering on circumspection. This attitude rests on the high public interest in the finality of legal proceedings and upon the principle that a plea of guilty by a person in possession of all relevant facts is normally taken to be an admission by that person of the necessary legal ingredients of the offence: see O’Neill [1979] 2 NSWLR 582; Sagiv (1986) 22 A Crim R 73 at 81. [18] In Pugh [12], Doyle CJ summarised the principles in this way: The powers of the Court are found in s 353(1) of the Criminal Law Consolidation Act 1935 (SA). The relevant part of that provision is the power of the Court to allow the appeal if there has been a miscarriage of justice.

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Early case law, reflecting a formalistic approach, is reflected in the following often cited passage from R v Forde [1923] 2 KB 400; [1923] All ER Rep 477; 17 Cr App R 99 at 403 (KR): A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or that upon the admitted facts he could not in law have been convicted of the offence charged. (footnotes omitted) Later cases emphasise that the issue is whether there has been a miscarriage of justice, and while the principles stated in Forde will cover many cases, those principles are not to be substituted for the statutory jurisdiction: see R v Murphy [1965] VicRp 26; [1965] VR 187 at 188 Herring CJ and Adam J, at 190 Sholl J; Meissner at 141-142; 313-314 Brennan, Toohey, McHugh JJ and at 157; 327 Dawson J. ... There are four matters of particular relevance to this case that need to be borne in mind. The first is that a plea of guilty is an admission by the accused of all of the elements of the offence: Maxwell at 510; 185-186, Dawson and McHugh JJ. The second is contained in the following observations by Brennan, Toohey and McHugh JJ in Meissner at 141; 313: “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”. (Footnotes omitted.) See also Deane J at 148-149; 319-320. The third is contained in the observations made by Dawson J in Meissner at 157; 326-327 that are set out earlier in these reasons. That is, a person may plead guilty, and be held to that plea, although the plea is made “upon grounds that extend beyond that person’s belief in his guilt”. The fourth matter is that the passage from Wilkes on which Mr Whitington relies (it is set out earlier in these reasons) identifies considerations that were considered appropriate to the circumstances of that case, that is, an appeal against a conviction arising from a plea of guilty based on the advice of counsel as to the prospects of successfully defending a charge. But those considerations are not definitive and exhaustive criteria for cases of this kind. In R v Hura [2001] NSWCCA 61; (2001) 121 A Crim R 472 at [33]- [34] Spigelman CJ lists a number of circumstances that have been identified by the Court of Criminal Appeal of New South Wales as providing a basis for the Court to set a conviction aside. They are not limited to the circumstances identified in Wilkes. I respectfully agree with Hulme J (dissenting) in R v KCH [2001] NSWCCA 273; (2001) 124 A Crim R 233 that the ultimate test is whether there has been a miscarriage of justice, and that it would be inconsistent with the observations by members of the High Court in Meissner to hold that a plea not attributable to a genuine consciousness of guilt must be set aside: at [163]. The presence or absence of a genuine consciousness of guilt on the part of the accused may well be relevant, but will not be decisive.

In Guariglia v The Queen [2010] VSCA 343, on the basis that trial judge applied improper pressure on the accused. See also, Bowden v WA [2013] WASCA 118; R v Coker [2013] QCA 315; Singh v The Queen [2014] NTCCA 16. Drawing a common thread through these cases, the relevant principles regarding changing a plea to not guilty are as follows: • An accused can withdraw a plea of guilty where a miscarriage of justice would result if the plea was not withdrawn; • The circumstances in which a plea can be withdrawn have not be an exhaustively stated and are not closed; • Whether an accused is in reality guilty or innocent of the offence is not an important consideration;

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• Two recognised circumstance where an accused can change his or her plea to not guilty are where (i) the accused on the admitted facts would not have been convicted of the offences charged (see especially R v Liberti (1991) 55 A Crim R 120 at 121 to 122 and R v Caruso (1988) 49 SASR 465; 37 A Crim R 1) and (ii) after a plea is entered it is transpires that ‘a trial judge has erroneously decided to admit evidence that would be fatal to the defence’ (Chiron, above). After an extensive analysis of the authorities regarding the circumstances when it is appropriate to change a plea of guilty Redlich JA in Weston v The Queen [2015] VSCA 354 (17 December 2015) set out the following propositions at [109]: General 1 The basis of a plea on arraignment is that in open court an accused freely says what he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt. 2 The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings. 3 To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the applicant were to be held to his plea. 4 The applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage. 5 To impugn the integrity of the plea, whether before or after conviction, the applicant must show an “issuable question of guilt” and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt. 6 It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions. 7 A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution[.]

Integrity of plea challenged before conviction and sentence 8 Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar. Where the applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea. 9 Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant establish that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage. 10 It is for the applicant to identify the grounds which it is claimed establish a miscarriage of justice and adduce evidence that persuades the judge that such grounds exist.

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Integrity of plea challenged only after conviction 11 Where the integrity of the plea is first challenged after conviction, proof of a circumstance, that compromises the integrity of the plea is necessary. Since Meissner, decisions have consistently been to the effect that a miscarriage will only arise where some objective circumstance is established that permits the judge to conclude that the plea was attributable to that circumstance and not to a consciousness of guilt. 12 Evidence that an applicant does not believe himself guilty at the time of the plea is relevant to but not decisive of the issue. Such a belief is relevant because it may inform the question whether there is some circumstance that has compromised the integrity of the plea and whether there has been a miscarriage of justice. But the belief is not decisive because, as the long line of authority since Meissner demonstrates, an accused may be bound by his plea notwithstanding a belief that he is innocent at the time of the plea. 13 The expression “that the plea be attributable to a genuine consciousness of guilt” has been consistently treated, particularly on appeal against conviction, as the conclusion which follows where no circumstance has been established that materially affected the integrity of the plea. Where circumstances are found to exist which compromise the integrity of the admission of guilt, the inference that would otherwise be drawn from the plea, namely that it was made in recognition of guilt, is not then available. The plea is not then to be attributed to a consciousness of guilt but to some other operative cause and a miscarriage of justice may have been established. Where it has not been shown that anything has occurred that affected the integrity of the plea, no miscarriage of justice will ordinarily arise from a refusal to allow the withdrawal of the plea.

Withdrawal of guilty plea rejected: Woods v The Queen (2008) 184 A Crim R 108 (NSW CCA); R v Gomez (2007) 1 ACTLR 145 (CA); Day v Police (2005) 92 SASR 1 (Gray J); Glossop v State of WA [2013] WASCA 64; R v BCK [2013] QCA 11. Kennedy v Chief Executive, Offıce of Environment and Heritage [2014] NSWCCA 107.

[16.2155] Appeal against conviction after a plea of guilty Toohey J said in Maxwell v The Queen (1996) 184 CLR 501; 87 A Crim R 180; 135 ALR 1 (at 522; 16–17; 195–196): A defective plea of guilty may be withdrawn and a conviction set aside [fn 80] on various grounds [fn 81]. This is part of the inherent jurisdiction of courts to see that justice is done [fn 82] and some, if not most, of the decisions mentioned are explicable on the footing that, in the view of the court, the accused lacked full understanding of the plea or there was some other mitigating factor. To this end the court may refuse to accept a guilty plea [fn 83] or direct that a not guilty plea be entered [fn 84].

His Honour’s footnotes read: [fn 80] R v Phillips and Lawrence [1967] Qd R 237 at 288–289, per Hart J; Frodsham v O’Gorman [1979] 1 NSWLR 683 at 690, per Mahoney JA. [fn 81] Grounds include: the accused did not understand the charge or did not intend to admit guilt or on the facts admitted on the plea he could not in law have been guilty of the offence: R v Ford [1923] 2 KB 400 at 403; R v Murphy [1965] VR 187 at 188: R v Chiron [1980] 1 NSWLR 218 at 235; R v Clayton (1984) 35 SASR 232; R v Liberti (1991) 55 A Crim R 120 at 121–122; R v Ferrer-Esis (1991) 55 A Crim R 231 at 232–233; R v Lars, Da Silva & Kalanderian (1994) 73 A Crim R 91. Or that the plea was induced by intimidation, improper inducement or fraud: Pilkington v The Queen

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[1955] Tas SR 144; R v Murphy [1965] VR 187 at 190; R v Barnes (1970) 55 Cr App R 100 at 106; R v Inns (1974) 60 Cr App R 231 at 233; R v Chiron [1980] 1 NSWLR 218 at 235. [fn 82] R v Mutford and Lothingland Justices; Ex parte Harber [1971] 2 QB 291 at 298. [fn 83] Marlow v The Queen [1990] Tas R 1. [fn 84] R v Jerome and McMahon [1964] Qd R 595.

See also Queensland R v Tommekand [1996] 1 Qd R 564; (1994) 76 A Crim R 381 (CA). Western Australia Hondema v Carroll (2008) 50 MVR 401 (WA, Hasluck J); Tihanyi v The Queen (1999) 21 WAR 377 (CCA). New South Wales R v Mascaro-Varillas (2005) 157 A Crim R 355 (NSW CCA).; R v Rae (No 2) (2005) 157 A Crim R 182 (NSW CCA); R v KCH (2001) 124 A Crim R 233 (NSW CCA); R v Liberti (1991) 55 A Crim R 120 (NSW CCA); Stanton v Dawson (1987) 31 A Crim R 104 (NSW, Campbell J); R v Schneidas (No 1) (1980) 4 A Crim R 95 (NSW CCA). Victoria R v Vasic (2005) 11 VR 380; 155 A Crim R 26 (CA); R v Parsons (1998) 2 VR 478; 97 A Crim R 267 (CA); R v Tait [1996] 1 VR 662; (1995) 80 A Crim R 374 (CA); R v O’Connor (1992) 59 A Crim R 278 (Vic CCA); R v Pauli (1991) 55 A Crim R 297 (Vic CCA); R v Kardogeras [1991] 1 VR 269; (1990) 49 A Crim R 352 (CCA). Northern Territory Salmon v Chute (1994) 94 NTR 1; 94 NTR 1; 70 A Crim R 536 (Kearney J); Cooper v Pryce (1984) 73 FLR 1; 12 A Crim R 127; 28 NTR 10 (Muirhead J). See also Appeal at [1.5200].

Appeal against conviction after plea of guilty following adverse ruling See Appeal at [1.5200].

[16.2160] Judge’s directions In R v D’Orta-Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 (CA), Winneke P said (at 147; 462):

[16.2175]

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In a case where the Crown was contending that the applicant’s plea of guilty at the lower court was conclusive evidence of his guilt, including the challenged issue of his state of mind, it was the judge’s obligation to give the jury directions, carrying with them the full authority of his office, as to how they should approach such a significant issue. Like in every other case where an alleged confession of guilt has been challenged, his Honour, in my view, was bound to instruct the jury in the circumstances that, before they could use the evidence of the applicant’s guilt, they had to be satisfied beyond reasonable doubt the such plea was, and was intended to be, a true acknowledgment of the applicant’s guilt of the crime charged; and that if, having regard to the evidence, they concluded that it was possible that he had entered the plea not because of a belief in his guilt but because he believed he would receive a suspended or more lenient sentence, then they should discard the plea of guilty from their consideration.

[16.2165] Admissibility at trial of plea of guilty at committal In R v D’Orta-Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 (CA), Winneke P said (at 145; 460): In some Australian States a … procedure exists where, before a plea entered before a Magistrates’ Court can be withdrawn, leave must be obtained from a judicial officer: cf R v Bamford [1972] 2 NSWLR 261. In a paper entitled “The Committal in Australia” by Brereton and Willis presented to the Australian Institute of Judicial Administration in 1990, the authors, having reviewed legislation in all States, made the following comments: In South Australia and the Northern Territory, the fact that a defendant initially pleaded guilty at a committal hearing is not admissible as evidence at a trial. In New South Wales this prohibition applies if, following a change of plea, the presiding judge has directed that committal proceedings be resumed. If, however, the defendant is presented directly for trial, evidence of a change of plea may be admissible. In the ACT, the prosecutor in any case has the power to give in evidence any admission or confession or other statement of the defendant made at any time which by law would be admissible as evidence against that person. In the remaining jurisdictions [including Victoria], the position appears to be that evidence of an earlier plea of guilty is admissible but can be excluded at the discretion of the trial judge, where the perceived effect of this evidence outweighs its probative value. In the State of Victoria the situation has always been, as I understand it, that a plea of guilty entered at the Magistrates’ Court can be changed on arraignment, but the accused is aware from the moment he enters that plea that it is likely to have evidential consequences at the trial.

In R v Broadbent [1964] VR 733 the court said in a joint judgment (at 736): When a prisoner is brought before a justice or justices at the preliminary hearing, he is, after all the evidence has been called, asked, after certain statutory warnings have been given to him, to plead to the charge: see Justices Act 1958, ss 47 and 48. His plea is then taken down in writing. It does happen quite frequently that a prisoner, in the lower court, pleads guilty but when he comes up for trial and is arraigned alters his plea to not guilty. This he undoubtedly may do without the consent of anyone. His trial then proceeds and his plea of guilty in the court below may be used as evidence against him.

Applied: R v D’Orta-Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 at 146, 461 (CA).

[16.2170] Discretion to exclude In R v D’Orta-Ekenaike [1998] 2 VR 140; (1997) 99 A Crim R 454 (CA), Winneke P said (at 146; 461): It is true that it is still a matter for the trial judge to determine, in the exercise of his discretion, whether evidence of the plea should be admitted on the trial.

[16.2175] Guidelines on acceptance of pleas (England) Reported in [2001] 1 Cr App R 425 is the following: ATTORNEY-GENERAL’S GUIDELINES ON THE ACCEPTANCE OF PLEAS

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1. Justice in this jurisdiction, save in the most exceptional cases, is conducted in public. This includes the acceptance of pleas by the prosecution and sentencing. 2. The Code for Crown Prosecutors sets out the circumstances in which pleas to a reduced number of charges, or less serious charges, can be accepted. Where this is done the prosecution should be prepared to explain their reasons in open court. 3. The Court of Appeal has said on many occasions that justice should be transparent; only in the most exceptional circumstances should plea and sentence be discussed in chambers. Where there is such a discussion, the prosecution advocate should at the outset, if necessary, remind the judge of the principle that an independent record must always be kept of such discussions. The prosecution advocate should make a full note of such an event, recording all decisions and comments. This note should be made available to the prosecuting authority. 4. Where there is to be a discussion on plea and sentence and the prosecution advocate takes the view that the circumstances are not exceptional, then it is the duty of that advocate to remind the judge of the relevant decisions of the Court of Appeal and disassociate himself or herself from any discussion on sentence. The advocate should not do anthing or say anything which could be construed as expressly or impliedly agreeing to the particular sentence. If the offence is one to which s 35 of the Criminal Justice Act 1988 applies the advocate should make it clear that the Attorney-General may, if he thinks fit, seek the leave of the Court of Appeal to refer the case for review under s 36 of that Actthat Act. 5. When a case is listed for trial and the prosecution form the view that the appropriate course is to accept a plea before the proceedings commence or continue, or to offer no evidence on the indictment or any part of it, the prosecution should whenever practicable, speak with the victim or the victim’s family, so that the position can be explained and their views and interests can be taken into account as part of the decision-making process. The victim or victim’s family should then be kept informed and decisions explained once they are made at court.

[16.2180] Ten hints on a plea in mitigation 1. Make sure you have all the charges and all the prosecution evidence. 2. What are the elements of the charges. 3. Is the prosecution evidence sufficient to prove the elements and any aggravating circumstances. Watch or listen to the record of interview. 4. Take written instructions. 5. Contact the prosecutor to negotiate a settlement of charges and facts. For any contested facts see R v Olbrich (1999) 199 CLR 270; 108 A Crim R 464; 166 ALR 330. 6. Prepare to call evidence. Consider calling the accused. Beware of giving evidence from the bar table. 7. Hunt out relevant cases on eg, age, tariff. Authorities are a comfort to a sentencer. 8. Prepare the speech in mitigation which may include: • Circumstances of the offence; • Relevant matters personal to the accused; • The evidence you propose to call and its effect;

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• Submissions on any prior convictions; • The relevant sentencing legislation; • The authorities and their effect; • Submissions on proper penalty. 9. Begin the plea by telling the court the headings or outline. Then begin the plea and call any evidence. During submissions, avoid clichés like the plague. 10. Watch the bench constantly. See also David Ross QC, Advocacy (Cambridge University Press, 2nd ed, 2007) Ch 12. Richard Edney, “Literary Concepts and the Plea in Mitigation” (2004) 9 Deakin L Rev 183-195.

POLICE Powers ....................................................................................................................................... Incompetence ............................................................................................................................ Proper behaviour ....................................................................................................................... Disclosure to the Director of Public Prosecutions .................................................................. Mischief ..................................................................................................................................... Police acting illegally–drug importation .................................................................................. Identification procured by a trick ............................................................................................. Not to offer an inducement to confess ..................................................................................... Handwriting ............................................................................................................................... In the execution of duty ........................................................................................................... Police improprieties on other occasions .................................................................................. Police acting upon information received ................................................................................. Not to confront accused with witness ...................................................................................... Name and address: police entitlement to ................................................................................. Spitting at police is assault ....................................................................................................... Assault police: sentence ............................................................................................................ Other references ........................................................................................................................

[16.2300] [16.2305] [16.2310] [16.2315] [16.2320] [16.2325] [16.2330] [16.2335] [16.2340] [16.2345] [16.2350] [16.2355] [16.2360] [16.2365] [16.2370] [16.2375] [16.2380]

[16.2300] Powers In Gardiner v Marinov (1998) 7 NTLR 181 (Martin CJ) his Honour said (at 190): A constable has all the powers and privileges as are by any law in force in the Territory, conferred or imposed upon him: Police Administration Act 1979 (NT) s 25. The powers at common law include those necessarily incident to the discharge of a constable’s functions as a peace officer or conservator of the peace. In the performance of the duties to prevent a breach of the peace, police officers may enter upon private premises. (Authorities omitted.)

Followed: Cintana v Burgoyne (2003) 13 NTLR 130; 176 FLR 420; 143 A Crim R 296 (Mildren J). See also Breach of the peace at [2.3300].

[16.2305] Incompetence Wyatt v The Queen (1991) 28 FCR 61; 99 ALR 490 (FCA) was an appeal against conviction for sexual intercourse without consent. The penetration was digital at a time when the prosecutrix was menstruating heavily. A medical officer said the menstrual blood would

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have stayed under the fingernails and in the cuticle of any penetrating finger. The accused co-operated but no such test or examination was made. Jenkinson J giving the leading judgment dismissing the appeal, said (at 64–65; 493): It may be assumed, without deciding, that a failure by a person in authority to cause to be undertaken some scientific examination of available material by means of which cogent evidence for or against a suspected person’s guilt of a serious crime could reasonably be expected to be obtained might in some circumstances result in the conclusion, before trial, that a fair trial of the suspected person could not be had and, after trial, that he had not had a fair trial. Much would depend, in determining whether either conclusion should be drawn, on the actual beliefs, and on what should have been the beliefs, of the person in authority concerning the availability and the likely cogency of such evidence, and concerning the capacity of other persons–particularly persons acting in the suspected person’s interest–to get the evidence which the person in authority had failed to get.

[16.2310] Proper behaviour Police must act properly to those in their custody. In Lam Chi-Ming v The Queen [1991] 2 AC 212; [1991] 3 All ER 172; (1991) 93 Cr App R 358 (PC) the Board advised (at 220; 178; 363): [T]he rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody.

Approved: A v Home Department (No 2) [2006] 2 AC 221; [2005] 3 WLR 1249; [2006] 1 All ER 575 (HL) per Lord Bingham at [17].

[16.2315] Disclosure to the Director of Public Prosecutions In R v Solomon (2005) 92 SASR 331; 192 FLR 421 (CCA) the police did not make full disclosure to the Director of Public Prosecutions and at trial the defence counsel got an embarrassing answer to a question because of that. The court dismissed the appeal. But Doyle CJ, with whom the others agreed, said (at [116]): It is not appropriate for the investigating officers, or their superiors, to make a decision that potentially relevant and disclosable material will not be disclosed, because there are or may be grounds for resisting that disclosure. That is a decision that should be made by the Director. If the Director makes that decision, the Director can then consider whether anything, and if so what, should be done to inform the legal representatives of the accused that there is material that is being withheld. What happened in this case illustrates the dangers associated with a failure by the police to provide the Director with all the information which should be provided.

[16.2320] Mischief Failure to investigate In R v Greatorex (1994) 74 A Crim R 496 (NSW CCA) Margaret Greatorex was convicted of deemed supply of drugs because of possession of not less than a traffickable quantity. The drugs were in a jar buried in her back yard. She said her confession to the police was fabricated. The trial judge stopped cross-examination of police about what they had been told by the wife of David Arthur that the drugs were his. Mr Arthur had died the next day. The police had not investigated Mr Arthur’s confession to his wife. Simpson J recited the defence position (at 506):

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1131

1. the police had been given information implicating a third person; 2. they had failed to take any steps to investigate the contents of this statement or the accuracy of the information; 3. they had failed to do so because they had fabricated a confession by the appellant. Simpson J went on to say (at 507): [C]ounsel should have been permitted to explore with the police officers, on the issue of their credit, or their bias, their failure (if such it was) to investigate the allegations that a third party had confessed, and I am further of the view that failure to permit that cross-examination resulted in a miscarriage of justice.

Police lies to suspect–confession excluded R v Mason [1988] 1 WLR 139; [1987] 3 All ER 481; (1987) 86 Cr App R 349; R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 (Martin J); Hawkins v The Queen (1994) 181 CLR 440; 124 ALR 366. In McDermott v The King (1948) 76 CLR 501 Dixon J said (at 515): [T]he law may now be taken to be… that a judge at the trial should exclude confessional statements if in all the circumstances he thinks that they have been improperly procured by officers of police, even although he does not consider that the strict rules of law, common law and statutory, require the rejection of the evidence.

Other cases R v Simmons (1995) 79 A Crim R 31 (NSW CCA); R v Mallah (2005) 154 A Crim R 150 (NSW, Wood CJ at CL). Other legislation Such lies are contrary to Uniform Evidence Acts s 138(2)(b). See also Confession at [3.5300].

[16.2325] Police acting illegally–drug importation The positions in Australia and England are in marked contrast. In parallel cases an overseas supplier wanted drugs delivered within the jurisdiction. Police facilitated the importation and delivery. In Ridgeway v The Queen (1995) 184 CLR 19; 129 ALR 41; 78 A Crim R 307 the High Court applied a Bunning v Cross (1978) 141 CLR 54; 19 ALR 641 principle to say that the trial judge should have excluded the importation and delivery evidence because it was illegally procured. An opposite conclusion was reached by the House of Lords in R v Latif [1996] 1 WLR 104; [1996] 1 All ER 353; [1996] 2 Cr App R 92. Ridgeway was not referred to. The Ridgeway judgment has faltered in its application. In the following cases the defence sowing of arguments of police illegality have fallen on barren ground. R v Kokosi (1995) 64 SASR 319; 80 A Crim R 224 (SA): Matheson J ruled that by the Criminal Law (Police Operations) Act 1995 (SA) police actions were deemed not illegal. R v Gudgeon (1995) 128 FLR 221; 133 ALR 379; 83 A Crim R 228 (Qld CA): even if the police importation of drugs from Thailand was illegal, the case was overwhelming and the proviso should be applied.

1132

ROSS ON CRIME

[16.2330]

Medina v The Queen (1995) 126 FLR 368; 84 A Crim R 316 (WA CCA): a controlled delivery of drugs by police was a “reasonable excuse” within s 233B(1)(c) of the Customs Act 1901 (Cth). R v Kapeliotis and Mari (1995) 122 FLR 461; 82 A Crim R 300 (NSW CCA): undercover police activity not raised at trial and thus could not be relied on in appeal. Note Crimes Act 1914(Cth)s 15X: illegal importation evidence is not to be rejected because of unlawful conduct by a law enforcement officer.

[16.2330] Identification procured by a trick In R v Shannon (1987) 47 SASR 347; 29 A Crim R 434 (CCA) a suspect was asked to enter a room. He did and it contained a number of other men. An identifying witness was then brought in and Mr Shannon reacted. He was convicted of armed robbery. King CJ said: [T]he cumulative weight of the public interest consideration of discouraging infringement of a detained suspect’s rights and of the unfairness to the appellant involved in an informal identification occurring without his knowledge in a situation of ambiguity as to the crime to which it related, require the exercise of the discretion to exclude the evidence.

Approved: Festa v The Queen (2001) 208 CLR 593; 185 ALR 394 at 639 [154] per Kirby J. Yet in R v Clune [1982] VR 1; 5 A Crim R 246 (CCA) the police made a number of efforts to secure identification. One of them was by the police leading the accused across Russell Street and having the identifying witness watching, unknown to the accused. Crockett J held (at 9; 255, with whom Starke J agreed) that such identification was within the trial judge’s discretion to admit. Yet other identifications were unfair tricks, and the trial judge did not direct the jury properly. Appeal Allowed.

[16.2335] Not to offer an inducement to confess Police should not offer an inducement to a suspect to confess. The risk is that the confession will be excluded as non-voluntary. See also Confession at [3.5300]. R v Wright (1991) 60 A Crim R 215 (Tas) where Slicer J ruled out an identification made when people were milling about outside a Court of Petty Sessions. R v Ireland (1970) 126 CLR 321 where the accused was required to have a photograph taken. Identification at [9.100]; and Photograph at [16.1700].

[16.2340] Handwriting In R v Knight (2001) 160 FLR 465 (NSW CCA) the Court held that the police are entitled without caution to have a person in custody fill out a form giving particulars of name, address, occupation and other details. That form can be used at trial for handwriting comparison. See also Handwriting at [8.900].

[16.2345]

POLICE

1133

[16.2345] In the execution of duty Legislation Qld: Police Powers and Responsibilities Act 2000 s 790 (assault or obstruct); WA: Criminal Code s 172 (obstruct); Tas: Public Powers (Public Safety) Act 2005 s 26 (obstruct or hinder); NT: Criminal Code s 189A (assault); Police Administration Act s 159 (hinder or obstruct); NSW: Crimes Act 1900 s 546C (resists or hinders); Vic: Summary Offences Act 1966 (assaulting or resisting); SA: Summary Offences Act 1953 s 6 (assault, hinder or resist); ACT: Criminal Code 2002 ss 361 and 363 (obstructs, hinders, intimidates or resists).

Cases In Re K (1993) 46 FCR 336; 118 ALR 596; 71 A Crim R 115 (FCA) the court said, in a joint judgment, (at 340–341; 601; 120): [A] police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.

Approved: Coleman v Power (2004) 220 CLR 1; 78 ALJR 1166; 209 ALR 182 at 57 [117] (CLR) per McHugh J. In Innes v Weate [1984] Tas R 14; (1984) 12 A Crim R 45 (Cosgrove J) a protester against the building of the Gordon-below-Franklin Dam tried to board a barge carrying a bulldozer. A police officer on board the barge forbade him to climb on. Held: no offence. There was no breach of the peace and the police officer was acting in excess of his powers, not in execution of his duty. In Perkins v County Court of Victoria (2000) 2 VR 246; 115 A Crim R 528 (CA) Charles JA said (at 267–268; 550 [44]): If the police officers arresting this appellant had no justification for handcuffing their prisoner, it would in my opinion follow that in attempting to do so, they were not acting in the course of their duty, and the appellant was not guilty of the offence of resisting the police in the course of their duty.

In Cintana v Burgoyne (2003) 13 NTLR 130; 176 FLR 420; 143 A Crim R 296 (Mildren J) the appellant was convulsing in a store. Police got no response from her and as they carried her out she bit them. Held: appeal allowed, convictions set aside. The police were not acting in execution of duty by not complying with Trespass Act (NT) s 10. In R v Conway (2005) 157 A Crim R 474 (Qld CA) McMurdo P, with whom the others agreed, made a study of the law, the evidence and the necessary directions to the jury (at 477–483 [9] – [34]). Other cases R v Reynhoudt (1962) 107 CLR 381; R v Galvin (No 1) [1961] VR 733 at 738 (CCA);

1134

ROSS ON CRIME

[16.2350]

Rice v Connolly [1966] QB 414; [1966] 2 All ER 649 (QBD); Hinchliffe v Sheldon [1955] 1 WLR 1017; [1955] 3 All ER 406 (QBD). Article AJ Ashworth QC “Should the Police be Allowed to Use Deceptive Practices” (1998) 114 LQR 108-140. See also Assault (Assault police in execution of duty) at [1.6440].

[16.2350] Police improprieties on other occasions In R v Polley (1997) 68 SASR 227; 93 A Crim R 325 (CCA) Mullighan J said (at 243; 341): It has long been recognised that, in appropriate circumstances, relevant propensity or disposition on the part of a witness may be proved by independent evidence if relevant to the fact in issue: see Phipson on Evidence (14th ed, 1990), p 265, para 12-34, JD Heydon (ed), Cross on Evidence (Aust ed), para 19065 and ALC Ligertwood, Australian Evidence (2nd ed, 1993), p 135, para 3.67. This rule has been applied in relation to police officers where evidence of this nature goes to a fact in issue such as fabrication of a confession and threatening a witness (R v Busby (1981) 75 Cr App R 79), a previous occasion of unlawful arrest (Knight v Jones; Ex parte Jones [1981] Qd R 98), and assault by police on a previous occasion (R v Harmer (1985) 28 A Crim R 35). See also the discussion by R Pattenden, “Evidence of Previous Malpractice by Police Witness and Edwards” [1992] Crim LR 549. In that case it was not doubted that previous instances of fabrication of a confession could be the subject of cross-examination.

In R v Anderson (1991) 1 NTLR 149; 105 FLR 25; 57 A Crim R 143 Martin J allowed cross-examination of police on the voir dire to show that lies were told to suspects on other occasions. His Honour ruled (at 155; 32; 149): The improper conduct here was not technical or slight nor was it an isolated incident. What Sergeant Smith said to the accused about the blood was deliberate, to his knowledge untrue and in relation to a matter of substantial significance. He admitted that he had used the technique on other occasions. Thus is a case in which the improper conduct complained of is of sufficient seriousness and frequency as to warrant “sacrificing the community’s desire to see the guilty convicted in order to express disapproval of, and to discourage, the use of unacceptable methods in achieving that end. (Dawson J in Cleland v The Queen (1982) 151 CLR 1 at 34.)”

Other cases O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534; [2005] 2 All ER 931 (HL); R v Malik [2000] 2 Cr App R 8; R v Twitchell [2000] 1 Cr App R 373; R v Johns (1999) 110 A Crim R 149 at 166 [43] (NSW CCA); R v Harmer (1985) 28 A Crim R 35 (Vic CCA).

[16.2355] Police acting “upon information received” Police sometimes give evidence that they acted “upon information received”. That evidence is hearsay. In R v Nguyen [1999] 1 VR 457; (1998) 104 A Crim R 169 (CA) the accused had been convicted of heroin trafficking. Over objection the police gave evidence that they attended “upon information received”. Held that the evidence was hearsay and irrelevant. Appeal allowed.

[16.2375]

POLICE

1135

[16.2360] Not to confront accused with witness It is improper for police to arrange a confrontation between the accused and a witness. An identification in such circumstances will certainly be tainted: R v Corke (1989) 41 A Crim R 292 (Qld CCA). In Edwards v The Queen (Jamaica) [2006] UKPC 23 (25 April 2006) the Board advised (at [25]): Confrontations between an identifying witness and a suspect are in general undesirable and should be avoided, lest they undermine the value of the identification evidence.

A confession after such confrontation is liable to be excluded: R v Rowe (1954) NTJ 250 (Kriewaldt J); Van der Meer v The Queen (1988) 62 ALJR 656; 82 ALR 10; 35 A Crim R 232 per Wilson, Dawson and Toohey JJ (at 665; 25; 246).

[16.2365] Name and address: police entitlement to By legislation police can require the name and address of a suspect or a witness. The terms of the legislation determine the police power.

Legislation Cth: Crimes Act 1914 s 3V; Qld: Police Powers and Responsibilities Act 2000 ss 32, 33; Tas: Police Offences Act 1935 s 55A; NT: Police Administration Act s 134; NSW: Crimes Act 1900 s 563; Vic: Crimes Act 1958 s 456AA; SA: Summary Offences Act 1953 s 74A; ACT: Crimes Act 1900 s 211; NZ: Police Act 1958 s 44E; Eng: Police Powers Act 2002 s 50.

Cases In Trobridge v Hardy (1955) 94 CLR 147 Fullagar J said of the earlier Western Australian Act (at 154): [T]he drastic power conferred by s 50 must … be taken to be conferred only for the purposes of the Act in which it occurs. If the power is used wantonly or otherwise than for the purpose of bringing an offender or suspected offender to book, there is an abuse of power which may give rise to a cause of action.

Wheare v Police (2008) 180 A Crim R 396 (SA, Gray J). O’Leary v Daire (1984) 13 A Crim R 404 (SA, White J).

[16.2370] Spitting at police is assault In Doolan v Edgington (1999) 110 A Crim R 19 (NT, Martin CJ) and in Burgoyne v Dixon (2004) 150 A Crim R 1 (NT, Thomas J) spitting at a policeman was held to be an assault.

[16.2375] Assault police: sentence In Wilson v Police (2003) 85 SASR 422; 141 A Crim R 359 (Perry J) his Honour dismissed an appeal against a sentence of one month’s imprisonment suspended on entering a bond of $300 to be of good behaviour for 15 months. His Honour said (at 430; 367 [36]):

1136

ROSS ON CRIME

[16.2380]

Assaults against police officers acting in the course of their duty are rightly treated as serious offences. Police officers are necessarily exposed to the risk of physical injury and when that risk materialises they are entitled to the protection of the courts. Any interference with the discharge by police officers of their duties must be treated seriously.

Other cases Worthington v Western Australia (2005) 152 A Crim R 585 (WACA); Re Attorney-General’s Application under s 37 of Crimes (Sentencing Procedure) Act 1999 (NSW) (No 2 of 2002) (2002) 61 NSWLR 305; 137 A Crim R 196 (CCA).

[16.2380] Other references See also Arrest at [1.6000]; Assault (Assault police in execution of duty) at [1.6440]; Breach of the peace at [2.3300]; Caution at [3.900]; Confession at [3.5300]; Handwriting at [8.900]; Identification at [9.100]; Judges’ Rules at [10.1300]; and Photograph at [16.1700].

PORNOGRAPHY (CHILD) Meaning ..................................................................................................................................... The offence ................................................................................................................................ Legislation ................................................................................................................................. The cases ................................................................................................................................... Not a fit and proper person ...................................................................................................... Sentence .................................................................................................................................... Importation ................................................................................................................................

[16.2500] [16.2505] [16.2510] [16.2515] [16.2520] [16.2525] [16.2530]

[16.2500] Meaning The term pornography comes from two Greek words meaning a writing about prostitutes (or obscene matters).

[16.2505] The offence Production, possession, supply and sale of child ponography are statutory offences. So is importation. In R v Clarke (2008) 100 SASR 363; 183 A Crim R 581; [2008] SASC 100 (CCA) Doyle CJ, with whom David J agreed, said (at 370; 588 [18]): [T]he purpose of the legislation is to protect children from exploitation, degradation and humiliation through child pornography. The aim of the legislation is to reduce, and as far as possible eliminate, possession, production, supply and sale of child pornography.

[16.2510] Legislation Cth: Criminal Code Act 1995 ss 474.19–474.21; Customs Act 1901 s 233BAB; Qld: Police Powers and Responsibilities Act 2000 Sch 4 Dictionary “serious indictable offence”; WA: Censorship Act 1996 s 60; NT: Criminal Code s 125B; NSW: Crimes Act 1900 s 91H; Vic: Crimes Act 1958 ss 69, 70; SA: Summary Offences Act 1953 s 33;

[16.2525]

PORNOGRAPHY (CHILD)

1137

ACT: Crimes Act 1900 ss 64–65; Eng: Sexual Offences Act 2003 ss 47–51; Can: Criminal Code s 161.

[16.2515] The cases In Phillips v Police (1994) 75 A Crim R 480 (SA CCA) the appellant made secret videotapes of boys urinating in a lavatory or dressing and undressing in public changing sheds. The appeal was allowed and the convictions quashed. The films did not constitute pornography. In England the Protection of Children Act 1978 and the Obscene Publications Act 1959 and 1964 were interpreted to make it an offence to produce indecent photographs of children for use on computer: R v Fellows [1997] 2 All ER 548 (CCA). In R v Porter [2006] 1 WLR 2633 (CA) the accused had deleted child pornography from his computer hard drive. Specialists recovered it. Held: appeal allowed. The accused was no longer in possession of the images. Likewise in England the prosecution must prove knowledge of possession: Atkins v DPP [2000] 1 WLR 1427; [2000] 2 All ER 425; [2000] 2 Cr App R 248 (QBD). In Peach v Bird (2006) 159 A Crim R 416 (NT, Southwood J) his Honour found that the magistrate had wrongly dismissed a charge of having a child pornographic image on his computer hard drive. The evidence showed that the downloading was not inadvertent. Approved: Peach v Bird (2006) 17 NTLR 230 (CA).

Pornography In Tasmania v Baker (2006) 15 Tas R 409; 168 A Crim R 148 Crawford J ruled that sending emails to a child containing pornographic material amounted to an indecent act with a young person.

[16.2520] Not a fit and proper person Patrick Power SC was Deputy Senior Crown Prosecutor in New South Wales. Pornography was found on his computer. He was sentenced to be imprisoned for 15 months with a minimum of six months. In Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451 (CA) the court held that Mr Power was not a fit and proper person and removed him from the Roll of Legal Practitioners.

[16.2525] Sentence In R v Clark (2008) 183 A Crim R 1 at 56 [256]–[261] (NSW CCA): attempt to procure a child over age of 14 to be used for pornographic purposes. One year six months plus one year six months. In DPP v OJA (2007) 172 A Crim R 181 (Vic CA) various respondents had been sentenced for many offences. Two years imprisonment for possession of child pornography was approved. In R v Gent (2005) 162 A Crim R 29 (NSW CCA): importation. 18 months imprisonment, 12 months non-parole. R v Liddington (1997) 18 WAR 394; 97 A Crim R 400 (CCA): two years imprisonment fully suspended.

1138

ROSS ON CRIME

[16.2530]

Prior v Malogorski (2005) 156 A Crim R 122 (NT, Thomas J): 119 images on hard drive: 6 months imprisionment suspended after 2 months. Appeal dismissed. R v Jones (1999) 108 A Crim R 50 (WA CCA): 18 months imprisonment. R v Curtain [2001] VSCA 156 (Vic CA): 18 months imprisonment with nine months minimum. Dodge v The Queen (2002) 134 A Crim R 435 (WA CCA): 12 months imprisonment for the supply of child pornography in writing, not in images. R v Coffey (2003) 6 VR 543; 143 A Crim R 235 (CA): six months imprisonment for possession of pornographic images on computer. DPP v VH (2004) 10 VR 234; 149 A Crim R 367 (CA): Downloaded images shown by father to daughter to facilitate incest; two years. In England, the former pop singer Gary Glitter (Paul Francis Gadd) pleaded guilty in 1999 to possession of child pornography by downloading it from the internet. He was sentenced to four months’ imprisonment and released after two months. In R v Bowden [2001] QB 88; [2000] 2 WLR 1083; [2000] 2 All ER 418 (CA) on facts similar to Gadd, the appeal court imposed a non-custodial sentence. In R v Terrell [2008] 2 All ER 1065; [2008] Crim L R 320 (CA): 10 months imprisonment.

[16.2530] Importation Importation of child pornography is an offence.

Legislation Cth: Customs Act 1901 s 233BAB.

Cases In Holland v The Queen (2005) 30 WAR 321; 193 FLR 140; 154 A Crim R 376; 222 ALR 694 (CA) Roberts-Smith JA said (at [268]): It follows that a person cannot be guilty of importing prohibited goods contrary to s 233BAB unless the person: 1. knowingly or recklessly imports goods (that is, intentionally or recklessly brings them into Australia for the purpose of using or consuming them); 2. knowing (or suspecting) that they are goods of a particular kind (here, child pornography) (He Kaw Teh); 3. which are in fact tier 2 goods; and 4. whose importation without permission is prohibited.

Other cases In R v Gent (2005) 162 A Crim R 29 (NSW CCA) the court held that on sentence, good character has little weight. General deterrence is the paramount consideration. Hann v Commonwealth (2004) 88 SASR 99; 144 A Crim R 534 (Gray J).

[16.2705]

POSSESSION

1139

POSSESSION Possession is a passive consequence ........................................................................................ Possession of equipment for crime .......................................................................................... Possession contains a mental element ...................................................................................... Forgetting about possession: no defence ................................................................................. Drugs ......................................................................................................................................... Exclusive possession ................................................................................................................. Joint possession–acting in concert ........................................................................................... Direction to the jury ................................................................................................................. Unlawfully obtained property ................................................................................................... unlawfully obtained is ejusdem generis with stolen ................................................................ Stolen or unlawfully obtained–no duplicity ............................................................................. The item .................................................................................................................................... Reasonable suspicion ................................................................................................................ Charging unlawful possession rather than receiving ............................................................... Presumption of innocence ........................................................................................................ Minute amount (of drugs) ........................................................................................................

[16.2700] [16.2705] [16.2710] [16.2715] [16.2720] [16.2725] [16.2730] [16.2735] [16.2740] [16.2745] [16.2750] [16.2755] [16.2760] [16.2765] [16.2770] [16.2775]

[16.2700] Possession is a passive consequence In R v Grant [1975] 2 NZLR 165 Malcolm J ruled (at 169): But to be in possession or to have an article in possession is neither an act or omission. It represents not an act but the passive consequence of a prior act, namely, the act of acquisition of possession.

Approved: Beckwith v The Queen (1976) 135 CLR 569; 12 ALR 333 at 575 (CLR) per Gibbs J.

[16.2705] Possession of equipment for crime Evidence is frequently admitted in criminal trials to prove that the accused had possession of equipment needed to commit the crime charged. The admissibility generally turns on whether the equipment is or is not capable of being used for the crime in question. The evidence is not admissible if it does no more than show that the accused has a propensity to commit crimes of that sort. In Thompson and Wran v The Queen (1968) 117 CLR 313 the accused were charged with breaking entering and stealing arising out of using explosives to blow a safe. The High Court said that evidence was admissible of the possession of a supply of gelignite, detonators, wires and batteries, suitable for the blowing of safes, but not admissible was the possession of tools that could be used to pick the locks of safes or for burglary. A wig and beanie used in one armed robbery was not admissible on a charge of another armed robbery where a different disguise was used: R v Talbot (1989) 44 A Crim R 70 (NSW CCA). In R v Glen [1973] VR 809 at 817 evidence of the possession of oxyacetylene equipment was held admissible on counts concerning the opening of a safe using that sort of apparatus. Drug cases have seen an active application of this part of the law. Evidence of possession of cannabis seeds has been admitted on a charge of cultivation: R v Taouk (1982) 2 NSWLR 974; 8 A Crim R 349 (NSW CCA). A book on how to grow cannabis has been admitted where the cultivation accorded with the book’s instructions: R v Hofer (1991) 55 A Crim R 225 (Vic CCA). On charges of trafficking cannabis evidence was admitted of the possession of scales and plastic bags: R v Edwards (1993) 67 A Crim R 539 (Vic CCA). A street supplier of heroin

1140

ROSS ON CRIME

[16.2710]

had evidence of the possession of firearms admitted because they would be appropriate to the business of a street heroin dealer: R v Sultana (1994) 74 A Crim R 27 (NSW CCA). It is impossible to say that a given item of evidence will always have a certain character and that it will be absolutely admissible or not admissible. In Thompson v The Queen (1968) 117 CLR 313, for example, if the charge had simply been burglary, the burglars’ tools would have been admissible but not the explosives. In drug cases, cash is a good example. Evidence of possession of a sizeable amount of cash was held not to be admissible on a charge of possession of drugs for the purpose of supply for in the nature of the charge the supply has not occurred: R v Lewis (1989) 46 A Crim R 365 (NT CCA). The conclusion would be otherwise when the charge was actual supply: R v Sultana (1994) 74 A Crim R 27. What would normally be regarded as innocent articles may be admissible as incriminatory provided there is some issue to which their possession is sufficiently relevant: R v Reading [1966] 1 All ER 521; [1966] 1 WLR 836; 50 Cr App R 98. In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Dawson J said (at 599; 504): Possession may be an intricate concept for some purposes, but the intricacies belong to the civil rather than the criminal law. As was observed in DPP v Brooks [1974] AC 862 at 867; 2 All ER 840 at 843; 59 Cr App R 185 at 187–188 (PC)), the technical doctrines of the civil law which separate proprietary and possessory rights in chattels are generally irrelevant for the purposes of the criminal law.

See also Housebreaking (Possession of instruments of housebreaking) at [8.2125]; and Implement of crime at [9.600].

[16.2710] Possession contains a mental element Aickin J said in Williams v The Queen (1978) 140 CLR 591; 22 ALR 195 (at 610; 209): It is necessary to bear in mind that in possession there is a necessary mental element of intention, involving a sufficient knowledge of the presence of the drug by the accused. No doubt in many cases custody of an object may supply sufficient evidence of possession, including the necessary mental element, but that is because the inference of knowledge may often be properly drawn from surrounding circumstances.

Other cases Western Australia v R (2007) 33 WAR 483; 169 A Crim R 206 (CA); Tabe v The Queen (2005) 225 CLR 418; 221 ALR 503; 157 A Crim R 1; Atkins v DPP [2000] 1 WLR 1427; [2000] 2 All ER 425; [2000] 2 Cr App R 248 (QBD).

[16.2715] Forgetting about possession: no defence In R v Martindale [1986] 1 WLR 1042; [1986] 3 All ER 25; (1986) 84 Cr App R 31 the accused had been given cannabis resin in Canada, put it in his wallet and forgot about it. The appeal was dismissed. Lord Lane CJ said (at 1044; 26; 33): [H]e remained in possession, even though his memory of the presence of the drug had faded or disappeared altogether. Possession does not depend upon the alleged possessor’s powers of memory. Nor does possession come and go as memory revives or fails. If it were to do so, a man with a poor memory would be acquitted, he with the good memory would be convicted.

[16.2725]

POSSESSION

1141

[16.2720] Drugs Legislation Qld: Drugs Misuse Act 1986 s 9 (possession); s 57 (evidentiary); WA: Misuse of Drugs Act 1981 s 6(1)(a); Tas: Misuse of Drugs Act 2001 ss 23–25; NT: Misuse of Drugs Act s 9 (possession); s 40; NSW: Drug Misuse and Traffıcking Act 1985 s 10; Vic: Drugs, Poisons and Controlled Substances Act 1981 s 73; SA: Controlled Substances Act 1984 s 31; ACT: Drugs of Dependence Act 1989 s 169(1); NZ: Misuse of Drugs Act 1975 s 7 (possession); s 29 (mistake).

Cases In Davis v The Queen (1990) 5 WAR 269; 50 A Crim R 55 (CCA) Malcolm CJ said (at 279; 64): [P]ossession involves an intention to possess in the sense that it involves custody or control with knowledge.

Followed: Cumming v The Queen (1995) 86 A Crim R 156 (WA CCA). A similar conclusion seems to have been reached in R v Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357 (CA). But where the substance was a drug it was up to an accused to show that possession was innocent. In Tabe v The Queen (2005) 225 CLR 418; 221 ALR 503; 157 A Crim R 1 the High Court by a 3–2 majority held that in Queensland it was not necessary for the prosecution to prove knowledge of the nature of the item. That proposition applied to a person charged with counselling or procuring an attempt to possess. R v Clare [1994] 2 Qd R 619; (1993) 72 A Crim R 357, above, was followed.

[16.2725] Exclusive possession In R v Filippetti (1978) 13 A Crim R 335 (NSW CCA) a large quantity of Buddha sticks was found in a chair in which the appellant’s mother was sitting. All six people who lived in the house had access to the lounge and the chair. The conviction quashed. The prosecution could not prove exclusive physical control in any one of the occupants. In Graham v Tuit (1945) NTJ 275 (Wells J) suspect goods were found in a house and workshop. Mr Tuit had quit the premises four days before, and there was no evidence that he had been in exclusive possession. Prosecution appeal dismissed. In Kitchen v Cox (1996) 85 A Crim R 328 (Vic Hedigan J) the respondent had been charged with unlawful possession of 58 items. He had been arrested and handcuffed. His car was then searched and the suspected items found. The magistrate found that Mr Cox had not been in actual possession at the time when the suspicion was formed. The prosecution appealed and lost. In Ryan v Dimitrovski (1996) 16 WAR 457; 89 A Crim R 155 (FC) the respondents had a gold nugget in a box with two combination locks in a safe deposit in a bank vault. Only the respondents knew the combination. Held: the respondents had exclusive possession.

1142

ROSS ON CRIME

[16.2730]

See also DPP v Miers (1997) 96 A Crim R 408 (Vic, Smith J); DPP v Dahl (1997) 96 A Crim R 502 (Vic, Smith J); R v Wan (2003) 140 A Crim R 513 (NSW CCA).

[16.2730] Joint possession–acting in concert In Moors v Burke (1919) 26 CLR 265 the court allowed an appeal against conviction for unlawful possession of 12 skeins of wool. After saying that the prosecution must prove exclusive possession the court said (at 271): Possession is proved by various acts varying with the nature of the subject matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world.

This dictum has been frequently applied.

[16.2735] Direction to the jury The following direction was approved in R v Maio [1989] VR 281; (1988) 38 A Crim R 25 (CCA) (at 285; 29): The prosecution must also satisfy you beyond reasonable doubt that if the accused did have possession of the heroin he had it intentionally, that is that he had physical custody and control intending to have it or exercise it and also that he had the knowledge that the substance was a narcotic substance, but that knowledge may be reflected in a likelihood or in an awareness of his mind that the substance was a narcotic substance.

In R v Phung (2003) 141 A Crim R 311 at 318 [33] (Vic CA) the following direction was approved: I direct you, as a matter of law, that a person has in his possession whatever is to his own knowledge physically in his custody or under his physical control. If therefore you are satisfied beyond reasonable doubt that the accused knew that the substance was on the land and that the substance was physically in his custody or under his physical control then he was in possession of the substance according to the ordinary principles of the common law.

The courts said that each direction complied with the judgments of Brennan and Dawson JJ in He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449, the only justices who dealt with possession. In R v Dib (1991) 52 A Crim R 64 (NSW CCA) Hunt J said (at 66): What must usually be conveyed to the jury–in additionto the elements of knowledge referred to in He Kaw Teh (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 (see also Baird (1985) 3 NSWLR 331) is that, at the relevant time when possession is alleged, an accused had (subject to any investigatory and seizure powers given to the police and others) the right to exclude any person not acting in concert with him from interference with the property in question. He must have that property either in his manual possession or in a place to which he (and any person acting in concert with him) may go without physical bar in order to obtain such manual possession of it.

[16.2740] Unlawfully obtained property The offence of possession of property reasonably suspected of being stolen or unlawfully obtained.

Legislation Qld: Summary Offences Act ss 16 and 28; WA: Criminal Code s 428;

[16.2755]

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Tas: Police Offences Act 1935 s 39(1); NT: Summary Offences Act s 61; NSW: Crimes Act 1900 s 527C; Vic: Summary Offences Act 1966 s 26(1); SA: Summary Offences Act 1953 s 41; ACT: Criminal Code 2002 s 324; NZ: Crimes Act 1961 s 246.

Cases In Kitchen v Cox (1996) 85 A Crim R 328 (Vic, Hedigan J) his Honour said (at 330): The section is founded upon suspicion formed in relation to goods in the actual possession of an individual who is, if the criteria are established, then obliged to give an explanation to a court in order to exculpate that person from the offence. It effectively reverses the burden of proof.

In Perna v Police (2007) 99 SASR 151; 174 A Crim R 68 (Doyle CJ) a person had reasonably suspected property in a storage shed. Held: it was in his possession and a conviction was proper. For some history of the provisions see DPP v Pastras (2005) 11 VR 449; 152 A Crim R 234 at 452–454; 238–240 [14] – [21] (Bongioro J). R v Porter (2004) 61 NSWLR 384; 186 FLR 350; 149 A Crim R 112 (CCA) deals with the jurisdiction of a court to hear such an offence when possession was first obtained beyond the jurisdiction. See also Goods in custody at [7.500].

[16.2745] “unlawfully obtained” is ejusdem generis with “stolen” In Nicholls v Young [1992] 2 VR 209 Smith J examined authorities and said (at 214): These authorities directly or indirectly support the view that “unlawfully obtained” should be restricted to cases where the property was obtained in a manner analogous to theft [for example obtaining money by deception or financial advantage by deception].

Approved: Ricciardello v Van Aken (1996) 14 WAR 1; 85 A Crim R 219 where Scott J held (at 10; 227): The words “unlawfully obtained” should be construed ejusdem generis with the word “stolen”.

[16.2750] Stolen or unlawfully obtained–no duplicity A charge that an item was reasonably suspected of having been stolen or unlawfully obtained is not duplicitous: R v Chan (1992) 28 NSWLR 421; 63 A Crim R 242 (CCA).

[16.2755] The item The item in question must be the very thing. In Aldridge v Marks (1944) 44 SR (NSW) 69 (FC) Jordan CJ said (at 71): I think that the section is available only when there is a reasonable suspicion that there has been at least something unlawful in the obtaining of the very thing which the accused had in his custody.

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[16.2760]

Approved: Grant v The Queen (1981) 147 CLR 503. An acquittal was ordered for Mr Grant. He had possession of $10,000 to bail a woman charged over drugs. Even assuming the cash came from the bank account of a Mr Rowe which had been filled with the proceeds of drug sales, the item had lost its identity. The item or thing suspected may include banknotes: R v Dittmar [1973] 1 NSWLR 722 (CCA); Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 (CCA); Gazepis v Police (1997) 70 SASR 121; 98 A Crim R 259 (FC); DPP v Miers (1997) 96 A Crim R 408 (Vic, Smith J). In Morris v Russell (1990) 100 FLR 386 (ACT, Kelly J) the appellant was convicted by a magistrate for the unlawful possession of $11,000 cash. In the house were scales and weights with cannabis adhering. She was on a pension and engaged in home duties. Held: it could be inferred that the money came from drug sales. Appeal dismissed.

[16.2760] Reasonable suspicion In R v Rondo (2001) 126 A Crim R 562 (NSW CCA) the accused had been wrongly stopped and searched simply for driving a sports car. Smart AJ, with whom the others agreed, said (at 576–577 [53]): These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. A reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. (b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be shown. A suspicion may be based on hearsay material or materials which may be inadmissible in evidence. The materials must have some probative value. (c) What is important is the information in the mind of the police officer stopping the person or the vehicle or making the arrest at the time he did so. Having ascertained that information the question is whether that information afforded reasonable grounds for the suspicion which the police officer formed. In answering that question regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.

In Nicholls v Young [1992] 2 VR 209 Smith J held (at 215): It was common ground that several elements of the concept of reasonable suspicion are well established by authority. First, the reasonable suspicion had to be entertained at the time the persons were in possession of the property in question: eg Rowe v Galvin [1984] VR 350 and McDonald v Webster [1913] VLR 506. Secondly, the reasonable suspicion must attach to the property and not merely to the person in possession: O’Sullivan v Tregaskis [1948] SASR 12 and Yeo v Capper [1964] SASR 1. Thirdly, the suspicion must be entertained upon reasonable grounds: Wallace v Hansberry [1959] SASR 20; George v Rockett (1990) 170 CLR 104; 93 ALR 483; 64 ALJR 384; Nicholas v Fleming [1959] Tas SR 165 and Deudney v Paulston (1940) 57 WN (NSW) 40. Fourthly, the mere fact that a man makes an untrue statement as to how he came into possession of goods when questioned is not in itself a ground for believing them to be stolen: McDonald v Webster [1913] VLR 506.

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1145

Other cases Pendlebury v Kakouris [1971] VR 177 (McInerney J); Morris v Russell (1990) 100 FLR 386 (ACT Kelly J); Anderson v Judges of the District Court (NSW) (1992) 27 NSWLR 701; 62 A Crim R 277 (CCA); R v Chan (1992) 28 NSWLR 421; 63 A Crim R 242 (CCA); Neasey v Strickland (1995) 5 Tas R 228 (Zeeman J); Kasprzyck v Chief of Army (2001) 163 FLR 1; 124 A Crim R 217 (DFDAT); Roderick v Police (2004) 88 SASR 47; 144 A Crim R 285 (Besanko J); Mununggurritj v Rue (2007) 19 NTLR 145; 167 A Crim R 371 (Riley J). The phrase appears in s 10A of the Drugs Misuse Act 1986 (Qld). It was considered in Gough v Braden [1993] 1 Qd R 100; (1991) 55 A Crim R 92 (CCA). Mackenzie J said (at 104; 96): “Reasonable 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 inferences can be drawn, but is something which falls short of proof Hughes v Dempsey (19l5) 17 WALR 186.

In Ryan v Dimitrovski (1996) 16 WAR 457; 89 A Crim R 155 (FC) the Police Act 1892 s 69 fell to be construed. The court held by majority that the suspicion was to be held when the defendant was before the justice.

[16.2765] Charging unlawful possession rather than receiving In Simpson v Correia (1995) 14 WAR 525; 77 A Crim R 10 Mr Simpson was convicted by a magistrate of unlawful possession of a compact disc player. He complained on appeal to Parker J that he should have been charged with receiving. The evidence justified receiving and the reverse onus would not apply. Held: no abuse of process. Appeal dismissed.

[16.2770] Presumption of innocence The presumption of innocence and the burden of proof on the prosecution to satisfy the tribunal of fact beyond reasonable doubt remain. The possession of recently stolen goods does not raise any legal or factual presumption: Bond v MacFarlane (1990) 102 FLR 38 (ACT, Higgins J).

[16.2775] Minute amount (of drugs) In Williams v The Queen (1978) 140 CLR 591; 22 ALR 195 Gibbs and Mason JJ (at 600) and for example, Aickin J (at 610) said that possession of an amount of drugs in a coat pocket, not discernible to the naked eye but only by scientific means, was not possession in that there could be no knowledge. Applied: R v Bourke (1993) 67 A Crim R 518 (Qld CA). Other cases Goods in custody at [7.500].

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[16.2900]

PRASAD DIRECTION Meaning ..................................................................................................................................... Origins ....................................................................................................................................... Prasad direction after rejecting no case submission ................................................................ Simple and short direction ........................................................................................................ Judge’s refusal to give a Prasad direction ...............................................................................

[16.2900] [16.2905] [16.2910] [16.2915] [16.2920]

[16.2900] Meaning A Prasad direction is a trial judge’s invitation to a jury to acquit when the prosecution case is weak or flawed. It is not a direction to acquit. The name comes from the case of R v Prasad (1979) 23 SASR 161; 2 A Crim R 45.

[16.2905] Origins In R v Prasad (1979) 23 SASR 161; 2 A Crim R 45 (CCA), King CJ said (at 163; 47–48): 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 exercise the right then or at any later stage of the proceedings, Archbold Criminal Pleading & Practice (39th ed, 1976) p 332. He may undoubtedly, if he sees fit, advise them to stop the case and bring in a verdict of not guilty. But a verdict by direction is quite another matter. Where there is evidence which, if accepted, is capable in law of proving the charge, a direction to bring in a verdict of not guilty would be, in my view, a usurpation of the rights and the function of the jury. I think that there is a clear distinction for this purpose between a trial before a magistrate or other court which is the judge of both law and facts and a trial by judge and jury. I have no doubt that a tribunal, which is the judge of both law and fact, may dismiss a charge at any time after the close of the case for the prosecution, notwithstanding that there is evidence upon which the defendant could lawfully be convicted, if that tribunal considers that the evidence is so lacking in weight and reliability that no reasonable tribunal could safely convict on it. This power is analogous to the power of the jury, as judges of the facts, to bring in a verdict of not guilty at any time after the close of the prosecution’s case. It is part of the tribunal’s function as judge of the facts. It cannot, consistently with principle, exist in a judge whose function does not include adjudication upon the facts.

This dictum has now been applied many times in different States. The High Court did not refer to this part of Prasad in Doney v The Queen (1990) 171 CLR 207; 96 ALR 539; 50 A Crim R 157 at 212 (CLR), only to the earlier part on a judge’s duty to direct a verdict of not guilty where there is no evidence on which a jury could convict.

[16.2910] Prasad direction after rejecting no case submission Where a trial judge rejects a no case submission it is not unusual for a Prasad direction still to be given. An example is Ayles v The Queen (1993) 66 A Crim R 302 (SA CCA).

[16.2915] Simple and short direction In R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 (CCA) Cox J said (at 218; 145): [A]ny Prasad direction should be put to the jury quite simply and shortly. It is not the occasion for any more than a passing glance at the law and a brief reference to whatever feature of the evidence it is that has led the trial judge to give the direction – usually some serious weakness in the Crown case that has emerged during its presentation.

Approved: Seymour v The Queen (2006) 162 A Crim R 576 at 594–595 [61] (NSW CCA).

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[16.2920] Judge’s refusal to give a Prasad direction It is entirely within a trial judge’s discretion on whether a Prasad direction is appropriate: R v Reardon (2002) 186 FLR 1 at 32–33 [151] – [158] (NSW CCA). In R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA). Olsson J said (at 484; 512): Some attempt was also made to criticise the refusal of the learned judge to give a “Prasad” direction to the jury. All that need be said in the latter regard is that the decision as to whether or not to give such a direction is entirely a matter for the exercise of judicial discretion by the presiding judge: Prasad (1979) 23 SASR 161; 2 A Crim R 45. It is virtually impossible to perceive how a refusal to give such a direction could ever constitute a proper ground of appeal.

PRECEDENT Use of authorities ...................................................................................................................... Binding rule .............................................................................................................................. Hierarchy ................................................................................................................................... Binding decision ....................................................................................................................... Ratio decidendi ......................................................................................................................... Privy Council ............................................................................................................................ High Court and State courts ..................................................................................................... House of Lords and State court ............................................................................................... Foreign courts including England Court of Appeal ................................................................ A court overruling itself ........................................................................................................... Single judge .............................................................................................................................. State courts exercising federal jurisdiction .............................................................................. State courts interpreting substantially identical statutes .......................................................... Per incuriam rule ...................................................................................................................... A sentence of imprisonment is not a precedent ...................................................................... If it be against reason, it is of no force ................................................................................... Writing .......................................................................................................................................

[16.3100] [16.3105] [16.3110] [16.3115] [16.3120] [16.3125] [16.3130] [16.3135] [16.3140] [16.3145] [16.3150] [16.3155] [16.3160] [16.3165] [16.3170] [16.3175] [16.3180]

[16.3100] Use of authorities In Re Hallett’s Estate (1880) 13 Ch D 696; [1874–1880] All ER Rep 793 (CA) Sir George Jessel MR said (at 712; 797–798): The only use of authorities, of decided cases, is the establishment of some principle which the judge can follow in deciding the case before him. There is, perhaps, nothing more important in our law than that great respect for the authority of decided cases which is shown by our tribunals. Were it not for that, our law would be in a most distressing state of uncertainty, and so strong has that been my view that where a case has decided a principle, although I myself do not concur in it, and although it has been only the decision of a tribunal of co-ordinate jurisdiction, I have felt bound to follow it where it is of respectable age, and has been used by lawyers as settling the law, leaving to the appellate court to say that case is wrongly decided, if the appellate court should think so.

In Queensland v Commonwealth (1977) 139 CLR 585; 52 ALJR 100; 16 ALR 487 Gibbs J said (at 599; 497): No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.

Other cases R v Chilton [2006] 2 NZLR 341 at [66] – [91] (CA);

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[16.3105]

R v Simpson [2004] QB 118; [2003] 3 All ER 531 at [27] (CCA).

[16.3105] Binding rule In Garcia v National Australia Bank Ltd (1998) 194 CLR 395; 155 ALR 614 Kirby J said (at 417; 630 [56]): It is fundamental to the ascertainment of the binding rule of a judicial decision that it should be derived from (1) the reasons of the judges agreeing in the order disposing of the proceedings; (2) upon a matter in issue in the proceedings; (3) upon which a decision is necessary to arrive at that order. Thus, the opinions of judges in dissent are disregarded for this purpose, however valuable they may otherwise be. Judicial remarks of a general character upon tangential questions or issues not necessary to the decision are likewise discarded, however persuasive the reasoning may appear. In this sense, the rules governing the ascertainment of binding precedent observe principles which are at once majoritarian and precise.

His Honour repeated these words in D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; 214 ALR 92 at [244] – [245].

[16.3110] Hierarchy In Broome v Cassell & Co Ltd [1972] AC 1027; [1972] 2 WLR 645; [1972] 1 All ER 801 (HL) Lord Hailsham said (at 1054; 653; 809): The fact is, and I hope it will never be necessary to say so again, that, in the hierarchical system of courts which exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.

Followed: Coulthard v Steer (1981) 12 NTR 13 at 17 (Muirhead J); In Dalton v Bartlett (1972) 3 SASR 549 (FC) Bray CJ said (at 554): [I]t is necessary for courts of summary jurisdiction to accept loyally and to follow the decisions of this court, whatever they may think of them, unless and until such decisions are reversed on appeal or are overruled by or are inconsistent with later decisions of this court or decisions of the High Court or the Privy Council.

In Fleming v White [1981] 2 NSWLR 719; 7 A Crim R 448 (FC), Street CJ said (at 725–726; 455–456): The administration of justice within the hierarchy of courts is an ordered discipline. Where the Supreme Court decides a point of law on an appeal from a magistrate, that decision is binding on all inferior courts in this State. Reasoned exposure of defects or errors in the decision of a high court is within the province of a judge of a lower court and indeed from time to time this may lead to the overruling by the higher court of its previous decision. But the court which is inferior in the hierarchy and its judges, are not at liberty to regard themselves as not bound by the decision of the higher court. … To countenance any departure from this disciplined order would involve not only the erosion of the integrated nature of a hierarchical court structure but also the introduction of a wholly inadmissible element of uncertainty in the administration of the law. Submission to higher authority is the proper position of all judges and judicial officers from the magistrate up to a judge of an ultimate appellate court when sitting alone. It should, perhaps, be added that … conflicting decisions of single judges of the Supreme Court would leave open to a District Court judge freedom to choose between the decisions.

As if to prove the point Shepherdson J referred to a number of authorities in R v Stipendiary Magistrate at Brisbane; Ex parte Kornhauser [1992] 2 Qd R 150; (1990) 50 A Crim R 366 (FC) (at 158; 374–375): In Jacob v Utah Construction & Engineering Pty Ltd (1966) 116 CLR 240 Barwick CJ in speaking of an earlier decision of the High Court namely Australian Iron & Steel Ltd v Ryan (1957) 97 CLR 89 said (at 207):

[16.3115]

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Unless this case was overruled by the Privy Council, it was binding upon the Court of Appeal of the Supreme Court of New South Wales and that Court ought not to have held that reg 73(2) was invalid. It is not, in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. If the decision of this Court is to be overruled, it must be by the Judicial Committee or by this Court itself. It cannot be treated by a Supreme Court as if it were overruled. The matter is, of course, different where this Court’s decision is not precisely in point and comparison has to be made merely between two lines of reasoning.

In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 (CA) one finds various references to judicial precedent which references are apposite to the present matter. Moffitt P said (at 171): The decision of McGee v Yeomans [1977] 1 NSWLR 273 so defined was and is binding on every other New South Wales court lower in the hierarchy of precedent and hence all New South Wales courts including of course single judges of the Supreme Court. It is binding on these courts unless and until it is overruled by the High Court or Privy Council or departed from by this Court itself for one of the well recognised but entirely exceptional reasons for so doing.

McGee was an earlier decision of the Court of Appeal (New South Wales) which had not been followed and applied by two single judges of the Supreme Court (New South Wales), the Court of Appeal holding that the judges thereby fell into error. Moffitt P further said (at 177): The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However the law concerning precedent based as it is on the need for certainty in the law absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law. The law provides its own rules to admit of flexibility. These laws which are part of the binding law of precedent permit departure from prior erroneous decisions but only in prescribed circumstances. The law binding on all does not include any right of a court to depart from a decision of a superior court and hence one binding upon it upon some basis, such as that some matter is considered to have been overlooked by the superior court or for some other reason it appears to be wrong. It does not permit it to disregard a binding decision of an appellate court on some view based on the reasoning of judges in a decision of an ultimate appellate court which does not overrule the binding decision.

Priestley JA said (at 185): The system of precedent requires that judges apply the law as laid down by courts to which appeals lie from them, mediately or immediately, and whether or not they agree with that law.

[16.3115] Binding decision In TPC v ABBCO (1994) 52 FCR 96; 123 ALR 503 (FCA), Burchett J examined what was a binding decision. His judgment included Great Western Railway Co v Owners of SS Mostyn [1928] AC 57; [1927] All ER Rep 113 (HL) in which Viscount Dunedin said (at 73; 121): Now, when any tribunal is bound by the judgment of another court, either superior or coordinate, it is, of course, bound by the judgment itself. And if from the opinions delivered it is clear-as is the case in most instances-what the ratio decidendi was which led to the judgment, then that ratio decidendi is also binding. But if it is not clear, then I do not think it is part of the tribunal’s duty to spell out with great difficulty a ratio decidendi in order to be bound by it.

The Great Western Railway case was followed in Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 2 ALR 460 by Barwick CJ (at 188; 467). In Re Tyler; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153 McHugh J said (at 37; 165): But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided? It cannot mean that a court bound by that decision is bound only by the precise facts of the case. Stare decisis and res judicata are different concepts.

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[16.3120]

In my opinion, the true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case “are not reasonably distinguishable from those which gave rise to the decision”: Scruttons Ltd v Midland Silicones Ltd [1962] AC 446 at 479 per Lord Reid.

The Latin term stare decisis (pronounced star-ray de-sysis) means literally, to stand by things decided.

[16.3120] Ratio decidendi Ratio decidendi (Latin) means the rationale of judgment. The plural is rationes decidendi. In Povey v Qantas Airways Ltd (2005) 223 CLR 189; 216 ALR 427 McHugh J said (at 216; 445 [76]): Cases are only authority for what they decide. When a court makes a statement that goes beyond the issue it had to decide, the extended statement is dictum and binding on no-one. Later courts commonly treat the material facts of a case as standing for a narrower or broader ratio decidendi than that expounded by the court that decided the case. As I pointed out in Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 at 543 [61]: If later courts take the view that the rule of a case was different from its stated ratio decidendi, they may dismiss the stated ratio as a mere dictum or qualify it to accord with the rule of the case as now perceived.

In Bristol-Meyers Squibb Co v F H Faulding & Co Ltd (2000) 170 ALR 439 (FCA) Finkelstein J said (at 485): [T]he ratio of a case should at least include every ruling on a point of law that is treated by the judge as a necessary step in reaching his ultimate conclusion in a case whether or not that ruling is in favour of or against the party who obtains an order or judgment: see Precedent in English Law, R Cross and JW Harris (4th ed,1991) p 72.

Where the ratio decidendi of a decision cannot be discerned, it is still a precedent in circumstances that “are not reasonably distinguishable from those which gave rise to the decision”: per Lord Reid in Scruttons Ltd v Midland Silicones Ltd [1962] AC 446; 1 All ER 1 (HL) (at 479; 14). McHugh J has applied this sentiment: Re Tyler; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153 at 37 and Re Minister for Immigration and Multicultural Affairs; Ex parte Meng Kok Te (2002) 212 CLR 162; 193 ALR 37 at 187; 55 [87].

[16.3125] Privy Council Since the commencement of the Privy Council (Appeals From High Court) Act 1975 (Cth) the High Court has not been bound by any decision of the Privy Council, nor for that matter the House of Lords: Viro v The Queen (1978) 141 CLR 88; 18 ALR 257. The State courts are bound by the Privy Council only when there is no relevant decision of the High Court. For the effect of the Privy Council in New Zealand, see R v Chilton [2006] 2 NZLR 341 (CA).

[16.3130] High Court and State courts Decisions in the High Court bind all courts below it. Thus a lower court must not distinguish a High Court decision or hold itself bound by a State decision which is at odds with the High Court. In Phillips v The Queen (2006) 225 CLR 303; 158 A Crim R 431; 224 ALR 216 the court said in a joint judgment (at 322; 231 [60]): [I]t is for this Court alone to determine whether one of its previous decisions is to be departed from or overruled: Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at 403 [17].

[16.3145]

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In Coast Securities No 9 Pty Ltd v Bondoukou Pty Ltd (1986) 61 ALJR 285; 69 ALR 385 (PC) the Board advised (at 287; 389): [counsel] is seeking to persuade their Lordships to differ from a decision of the High Court of Australia which, whilst it may not strictly bind their Lordships, does, so far as any future case in Australia is concerned, represent the law of Queensland and will bind the courts of that State.

Curiously enough, the law on another aspect of this case was distinguished by the High Court as being “too narrow”: Sibbles v Highfern Pty Ltd (1987) 164 CLR 214; 76 ALR 13 (at 224–225; 20–21). See also Common law at [3.3300].

[16.3135] House of Lords and State court Decisions of the House of Lords are persuasive in Australia but not binding. In R v Parsons (1998) 2 VR 478; 97 A Crim R 267 (CA), Winneke ACJ said (at 485; 274): A decision of the House of Lords, although not binding on this court, has none the less always been regarded as highly persuasive. However, unless the court is persuaded that they are clearly wrong, it should be prepared to follow its own established authorities and practices even if, by doing so, it might result in a departure from a contrary position of the House of Lords: Cook v Cook (1986) 162 CLR 376 at 390; Britten v Alpogut [1987] VR 929 at 938, per Murphy J; R v Liberti (1991) 55 A Crim R 120 per Kirby P (at 122).

[16.3140] Foreign courts including England Court of Appeal In Cook v Cook (1986) 162 CLR 376; 68 ALR 353 the High Court rejected the notion that the Court of Appeal in England bound Australian courts. Mason, Wilson, Deane and Dawson JJ said (at 390; 363): The history of this country and of common law makes it inevitable and desirable that the courts of this country will continue to obtain assistance and guidance from the learning and reasoning of United Kingdom courts just as Australian courts benefit from the learning and reasoning of other great common law courts. Subject, perhaps, to the special position of decisions of the House of Lords given in the period in which appeals lay from this country to the Privy Council, the precedents of other legal systems are not binding and are useful only to the degree of the persuasiveness of their reasoning.

In Taikato v The Queen (1996) 186 CLR 454; 90 A Crim R 323; 139 ALR 386 Kirby J said (at 484; 410; 348): It is important that Australian judges recognise the intellectual freedom (and responsibility) which is the consequence of the severance of the former institutional links.

[16.3145] A court overruling itself High Court In Jones v Commonwealth (1987) 61 ALJR 348; 71 ALR 497 (HC) six of the seven justices said (at 349; 498): The question therefore is whether the court should reconsider the correctness of its previous decision. There are strong reasons why the court should not do so. The power to overrule a previous decision should be exercised with great caution. Continuity and coherence in the law demand that in this court the principle of stare decisis should ordinarily be applied.

The High Court did however reconsider previous decisions in Zecevic v DPP (Vic) (1987) 162 CLR 645; 25 A Crim R 163; 71 ALR 641 on self defence. Viro v The Queen (1978) 141 CLR 88; 18 ALR 257 was reconsidered.

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[16.3145]

See Shepherd v The Queen (1990) 170 CLR 573; 51 A Crim R 181; 97 ALR 161 on circumstantial evidence. Chamberlain v The Queen (No 2) (1984) 153 CLR 521; 58 ALJR 133; 51 ALR 225 was reconsidered.

State courts In Nguyen v Nguyen (1990) 169 CLR 245; 91 ALR 161 Dawson, Toohey and McHugh JJ said (at 268–270; 177–178): The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself. An example of such a determination is the Practice Statement of the House of Lords in 1966; Practice Statement (Judicial Precedent) (1966) 1 WLR 1234. The arguments in favour of certainty and against rigidity have been rehearsed on numerous occasions and no purpose is to be served by repeating them here: see, eg, Australian Agricultural Co v Federated Engine-Drivers and Fireman’s Association of Australasia (1913) 17 CLR 261, per Isaacs J at 274–9 Attorney-General (NSW) v Perpetual Trustee Co (Ltd) (1952) 85 CLR 237, per Dixon J at 243–4. It should be observed, however, that neither the Court of Appeal in New South Wales nor the Full Courts in Victoria and South Australia regard themselves as strictly bound by their previous decisions: see Bridges v Bridges and Hooper (1944) 45 SR (NSW) 164; Richardson v Mayer [1964–5] NSWR 105; Bennett & Wood Ltd v Orange City Council Board of Fire Commissioners [1967] 1 NSWR 502; Flanagan v H C Buckman & Son Pty Ltd [1972] 2 NSWLR 761; Forster v Forster [1907] VLR 159; Jenerce Pty Ltd v Pope (1971) 1 SASR 204; Raynal v Samuels (1974) 9 SASR 264; R v Barnes (1978) 20 SASR 1. There is no reason to think that the practice in Tasmania is any different, but in Transport Trading and Agency Co of WA Ltd v Smith (1906) 8 WALR 33 there was the suggestion of a contrary practice in Western Australia. In Victoria a procedure is adopted whereby a Full Bench of five or more judges is convened if a decision of a Full Court of three judges is to be reviewed: see Kidd, “Stare Decisis in Intermediate Appellate Courts”, (1978) 52 Australian Law Journal 274. The Full Court of the Federal Court will depart from a previous decision if convinced that it is wrong: Chamberlain v The Queen (1983) 72 FLR 1 at 8–9. Where a court of appeal holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong. The occasions upon which the departure from previous authority is warranted are infrequent and exceptional and pose no real threat to the doctrine of precedent and the predicability of the law: see Queensland v Commonwealth (1977) 139 CLR 585, per Aickin J at 620 et seq. This court has never regarded itself as bound by its own decisions, which is all the more appropriate now that it is a court of last resort for all purposes. There is a point of view that different considerations should govern the situation of an intermediate court of appeal: see Young v Bristol Aeroplane Co Ltd [1944] KB 718; Davis v Johnson [1979] AC 264; Miliangos v George Frank (Textiles) Ltd [1976] AC 443. But even if that view were correct, now that appeals to the High Court are by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. There is no equivalent of s 12 of the Administration of Justice Act 1969 (UK) to authorise “leap-frog” appeals which would by-pass those courts as the Court of Appeal may be by-passed in the United Kingdom. See, however, Sanofi v Parke Davis Pty Ltd (No 1) (1982) 149 CLR 147. In these circumstances, it would seem inappropriate that the appeal courts of the Supreme Courts and of the Federal Court should regard themselves as strictly bound by their own previous decisions. In cases where an appeal is not available or is not taken to this court, rigid adherence to precedent is likely on occasions to perpetuate error without, as experience has shown, significantly increasing the corresponding advantage of certainty.

NSW Court of Criminal Appeal In R v Hamzy (1994) 74 A Crim R 341 (NSW CCA) Hunt CJ at CL, giving the leading judgment, said (at 345): This Court does not regard itself as bound by its previous decisions, and (unlike the Court of Appeal) it does not require the grant of leave before an earlier decision may be re-examined. It has nevertheless departed from previous decisions only with caution, and only when it is satisfied that justice seemed to require the earlier decision to be overturned.

[16.3150]

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Victorian Court of Appeal In R v Tait [1996] 1 VR 662; (1995) 80 A Crim R 374 (CA) Callaway JA, with whom the others agreed, said (at 666; 378): The Court of Appeal would usually follow a decision of the Full Court and convene a Full Bench of five or more judges if the decision were to be reconsidered. Compare Nguyen v Nguyen (1990) 169 CLR 245 at 268-269. There were, nevertheless, exceptional circumstances in which the Full Court constituted by three judges was at liberty not to follow a prior decision. A recent example is Avco Financial Services Ltd v Abschinski [1994] 2 VR 659. It may be that in future we would extend those exceptional circumstances to enable a greater number of Full Court, and in due course some of our own, previous decisions to be reviewed by a court of three. There are some old precedents, and some extempore judgments, where that course might be more in the interests of efficiency and justice than convening a Full Bench. But, where an important point of principle is involved, I would not propose a departure from the existing practice, which is long established and beneficial if properly applied. Compare McKinnon v Gange [1910] VLR 32 at 35.

[16.3150] Single judge A single judge must follow the decisions of the Court of Appeal and Court of Criminal Appeal. In Engebretson v Bartlett (2007) 16 VR 417; 172 A Crim R 304 (Bell J) his Honour held (at 424–430; 315–318 [39] – [64]) that the decisions of the Full Court in banc were precedents which must be followed by a single judge. A single judge will usually follow the decision of another judge. In Nezovic v Immigration and Multicultural and Indigenous Affairs (No 2) (2003) 133 FCR 190; 203 ALR 33 (French J) his Honour said (at 206; 48 [52]): Judicial comity does not merely advance mutual politeness between judges of the same or coordinate jurisdictions. It supports the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges.

In La Macchia v Minister of Primary Industry (1992) 110 ALR 201 (FCA) Burchett J said: (at 204): The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while “deserving of the closest and respectful consideration”, does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that “a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong”: Halsbury, 4th ed, vol 26, para 580.

A single judge will usually follow appellate decisions in other States as a persuasive precedent of great authority: Bassell v McGuiness (1981) 29 SASR 508 (FC). In Carrick v J (1989) 39 A Crim R 235 (Tas) Wright J said (at 250–251): Sitting as a single judge in the Supreme Court of Tasmania, one would normally follow a decision of a Full Court, Court of Appeal or Court of Criminal Appeal in another State where the relevant statutory or common law principles and the factual circumstances under discussion are indistinguishable. This is a rule based upon judicial comity rather than the doctrine of stare decisis as I see it, and, so far as I am aware, neither the Full Court nor the Court of Criminal Appeal of this State has laid down a general rule as to the binding effect (if any) to be attributed to the decisions of appellate courts of other States by a Tasmanian judge sitting alone. Generally speaking however, an appellate court in one State will follow the decision of a court of comparable status in another State, although there are many instances in which this course has not been followed.

In the event, Wright J did not follow the South Australian Court of Criminal Appeal decision.

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[16.3155]

See also R v Winfield (1995) 65 SASR 121; 83 A Crim R 301 at 148, 327 (Lander J).

[16.3155] State courts exercising federal jurisdiction It is desirable that there be a similar approach to federal laws by State courts: In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; 112 ALR 627; [1993] HCA 15 the court said in a joint judgment (at 492; 629): [U]niformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court – and all the more so a single judge – should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.

Followed: DPP v Pastras (2005) 11 VR 449; 152 A Crim R 234 at 452; 237 [12] (Bongiorno J); R v Zotti (2002) 82 SASR 554; 131 A Crim R 27 at [65] (CCA); Joyce v Grimshaw (2001) 105 FCR 232; 182 ALR 602; 102 A Crim R 338 at [45] (FCA). Yet in Lipohar v The Queen (1999) 200 CLR 485; 168 ALR 8; 109 A Crim R 207 Gaudron, Gummow and Hayne JJ said (at 507; 20; 219 [50]): [I]nevitably there will be times when intermediate appellate courts do not speak with one voice on particular questions.

Earlier cases were to the same effect: R v Abbrederis (1981) 1 NSWLR 530; 3 A Crim R 366; 36 ALR 109 (CCA); R v Daher (1981) 2 NSWLR 664; 5 A Crim R 137; 40 ALR 73 (CCA); R v Parsons (1983) 2 VR 499; 71 FLR 416; 53 alr 568 (CCA); R v Hookham (1993) 31 NSWLR 381; 68 A Crim R 129 (CCA).

[16.3160] State courts interpreting substantially identical statutes In Fernando v Commissioner of Police (1995) 36 NSWLR 567; 78 A Crim R 64 (CCA) Clarke JA said (at 589–590; 86): In the light of these decisions the relevant principle should be taken as settled. This Court is not bound by the decision of another Australian intermediate appellate court on a statutory provision substantially identical with the one under consideration but it should follow that decision as a matter of comity unless it is convinced that the earlier decision is clearly wrong or that considerations of justice require the court to decline to apply the decision of the other court. This is, to my mind, a most important principle. It promotes greater uniformity and certainty in the law and avoids the plainly unsatisfactory situation which would arise if particular statutory words are regarded as having different meanings in different parts of the country. In past years, the general acceptance by Australian courts of the principle of law developed and explained in the United Kingdom had led to a degree of uniformity. But the position has changed and, in some respects, quite dramatically. There now is increasing divergence between English law and the body of Australian law, which in the final analysis, is the law developed in the High Court of Australia. It is that Court which Acts as the unifying force of Australian law but where it has not laid down binding principles intermediate appellate courts are free, within the limits of comity, to develop their own principles. In the absence of strict adherence to the principle under discussion, it would be idle to speak of Australian law except where the High Court had intervened. It would more appropriate to speak of the law of a state, territory or the Commonwealth. But if the courts of

[16.3165]

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1155

the States, Territories and Commonwealth are engaged, in general, in developing and applying principles of Australian law, as I believe they are, then a control is necessary to prevent the unbridled development of divergent principles. In these circumstances, it is far preferable that an intermediate appellate court apply principles expressed in an earlier decision of another intermediate appellate court, although, perhaps, doubting its correctness, leaving it to the High Court to lay down the binding rule. In this way the law remains constant and certain throughout the country until, as may occur, the High Court expresses a different view which will, in essence, also bind courts all over Australia.

[16.3165] Per incuriam rule Per incuriam is a Latin term meaning through want of care. In Miliangos v George Frank (Textiles) [1976] AC 443; [1975] 3 All ER 801 (HL) Lord Simon said (at 477; 821): A previous decision of the same appellate court is not binding if it is given per incuriam: Young v Bristol Aeroplane Co Ltd [1944] KB 718; [1944] 2 All ER 293. But this exception to the rule of stare decisis is one which must be most modestly invoked. It is not applicable merely because the authority in question does not mention some relevant rule (judge-made or statutory or regulatory); still less merely because that authority appears to be open to practical or policy objections which have not apparently been envisaged or sufficiently weighed; and least of all, of course, because the judge otherwise bound merely considers the otherwise binding judgment to be wrong. A court should only hold a judgment to have been given per incuriam if it is satisfied, first, that such judgment was given in inadvertence to some authority (judge-made, statutory or regulatory) apparently binding on the court giving such judgment and, secondly, that, if the court giving such judgment had been advertent to such authority, it would have decided otherwise than it did–would, in fact, have applied the authority.

In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 (CA), Moffitt P said (at 177): The per incuriam rule is not available to a court in relation to a decision of a court superior in the hierarchy. It is a rule which applies only to a review by a court of its own decision. An equivalent result cannot be achieved by regarding a binding decision of the superior court as distinguishable on the basis that it did not decide the question which it did by making the order that it did, but that it only decided the question apparently argued before it or on the basis that its reasons were its decision.

Followed: Adler v District Court (NSW) (1990) 19 NSWLR 317; 48 A Crim R 420 at 325 (NSWLR), 426 (CA) per Kirby ACJ. See also R v Gronert (1976) 13 SASR 189 (CCA) per Bray CJ at 191; Tarry v Price (1987) 45 NTR 1; 24 A Crim R 394 at 7, 399–400 (Kearney J); Duke v Reliance Systems Ltd [1987] 2 WLR 1225; 2 All ER 858 at 1228, 860 (CA); Gardenal-Williams v The Queen [1989] Tas R 62; 43 A Crim R 29 (CCA) per Underwood J at 80; 40; R v Young (1999) 46 NSWLR 681; 107 A Crim R 1 (CCA) per Spigelman CJ at 691; 9 [38] – [40]; R v Chan [2001] 2 Qd R 662; (2000) 114 A Crim R 276 (CCA) per Thomas JA at 675; 289 [63]. Alastair MacAdam and John Pyke, Judicial Reasoning and the Doctrine of Precedent in Australia (Butterworths, Sydney, 1998).

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[16.3170]

[16.3170] A sentence of imprisonment is not a precedent In R v Coulston [1997] 2 VR 446 (CA) the court said in a joint judgment (at 461): Sentences are not precedents which must be applied unless they can be distinguished.

[16.3175] If it be against reason, it is of no force Sir Edward Coke (1552–1634) said: “How long soever it hath continued, if it be against reason, it is of no force in law.” (Institutes: Commentary upon Littleton. First Institute, 62a.)

[16.3180] Writing Lord Reid, “Foreign Precedents and Judicial Reasoning: The American Debate and British Practice” (2008) 124 LQR 253–273.

PREJUDICE A trial is not a handicap race ................................................................................................... Exclusion of prejudicial evidence ............................................................................................ Prejudice .................................................................................................................................... Uniform Evidence Acts ............................................................................................................

[16.3300] [16.3305] [16.3310] [16.3315]

[16.3300] A trial is not a handicap race In R v Hulse (1971) 1 SASR 327 (CCA) Bray CJ, Mitchell and Wells JJ said (at 330): If the probative value is high and the evidence is admissible, the fact that its prejudicial effect is also high is nothing to the point. A criminal trial is not a handicap race.

[16.3305] Exclusion of prejudicial evidence A trial judge will exclude evidence whose prejudicial effect outweighs its probative value. In Noor Mohamed v The Queen [1949] AC 182; [1949] 1 All ER 365 (PC), the applicant was convicted of the murder of his second wife. Death was by poisoning by potassium cyanide, which the applicant used in his craft as a goldsmith. Over objection at trial, evidence was admitted that the applicant said “I will get rid of you as I got rid of my first wife.” Appeal allowed. Lord du Parcq delivered the advice of the Board. He said (at 192; 370): [I]n all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.

In R v Gordon (1999) 108 A Crim R 356 (WA, Templeman J) the accused had pleaded guilty to the 1979 manslaughter of a de facto by a great number of blows. In 1999 he was charged with the murder of a de facto wife. Death occurred in much the same way in both. The prosecution wanted to rely on the 1979 death to prove intent. His Honour ruled the 1979 evidence to be inadmissible. His Honour examined authority and gave a number of reasons. The underlying factor was that the prejudice of the evidence outweighed its probative value. In Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289 Gibbs CJ said (at 402–403; 294):

[16.3315]

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However, a trial judge has a discretion to exclude any evidence if the strict rules of admissibility operation unfairly against the accused. It would be right to exercise that discretion in any case in which the judge was of opinion that the evidence had little weight but was likely to be gravely prejudicial to the accused.

[16.3310] Prejudice In R v Duke (1979) 22 SASR 46; 1 A Crim R 39 (CCA) the applicant was convicted of rape. The victim had been wearing a blue dress. The applicant’s car had black mats. Black fibres were found on the dress and blue fibres were found in the car. There was no evidence of the identity of the fibres. King CJ said the evidence was rightly admitted. He said (at 47–48; 40–41): The general principle is that the prosecution is entitled to have placed before the jury all evidence which is legally admissible unless there exists one of the recognised grounds for the exclusion of the evidence in the exercise of the judge’s discretion.

His Honour then referred to Noor Mohamed v The Queen [1949] AC 182; [1949] 1 All ER 365 and continued: The prejudice there referred to must, of course be a prejudice additional to or distinct from the detriment to the accused’s interests involved in the probative force of the evidence. The prejudicial tendency must outweigh the probative value, as Cross on Evidence puts it in the Australian edition (1970) at p 31, “in that sense that the jury may attach undue weight to it or use it for inadmissible purposes”. It was said in this case that the evidence was of such little weight that it was too dangerous to allow it to go to the jury. Generally speaking the fact that the weight to be attached to a piece of evidence is slight does not render its introduction to the jury dangerous. It must be assumed that the jury will give the piece of evidence the weight that it deserves. The danger arises only if there is something in the nature of the evidence or the manner of its presentation which would render it gravely prejudicial in the sense referred to above.

In R v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 (CCA) the court said in a joint judgment (at 553; 407): Relevant prejudice is prejudice consisting of something other than a tendency to show guilt of the crime charged.

In Festa v The Queen (2001) 208 CLR 593; 185 ALR 394 McHugh J said (at 609–610; 406 [51]): And evidence is not prejudicial merely because it strengthens the prosecution case. It is prejudicial only when the jury are likely to give the evidence more weight than it deserves or when the nature or content of the evidence may inflame the jury or divert the jurors from their task.

Thompson and Wran v The Queen (1968) 117 CLR 313 was a case concerning the possession of implements of crime. Barwick CJ and Menzies J said (at 317): Of course, evidence which is admissible because it is relevant does not become inadmissible because it also tends to prove the criminal propensity of a prisoner, although a judge should, in a proper case, in the exercise of his discretion, reject such evidence if its prejudicial effect is out of all proportion to its probative value. Furthermore, when evidence is admitted which is relevant but which also shows criminal propensity, a judge should explain the limited use that can be made of that evidence.

See also Discretion at [4.3200].

[16.3315] Uniform Evidence Acts The relevant sections under Uniform Evidence Acts are ss 135, 136 and 137. In R v BD (1997) 94 A Crim R 131 (NSW CCA) Hunt CJ at CL said (at 139):

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[16.3500]

The prejudice to which each of the sections refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way.

Approved: R v Le (2002) 130 A Crim R 256 at 289 [96] (NSW CCA). Similarly in Doolan v The Queen [2013] NSWCCA 145, Emmett JA, at [57]-[58], stated: It may be, therefore, that the weighing process under s 137 involves considerations that, while distinct and opposing, are not entirely incommensurable. It involves weighing the extent to which impugned evidence is fairly prejudicial, in the sense that it is capable of being properly detrimental to the defendant’s case, against the risk that the impugned evidence will lead the jury, because of its capacity to elicit emotional reactions or impermissible reasoning, to treat it in such a way that is unfairly prejudicial, in the sense that it is improperly detrimental to the defendant’s case. The weighing of the unfair detriment to a defendant’s case against the fair detriment must incorporate consideration of any judicial directions that could be given to minimise the prejudice (see R v Cook [2004] NSWCCA 52 at [37]). Thus, there must be a real risk that the jury will misuse the evidence in some way and that the risk will exist, notwithstanding a proper direction from the court, which it should be assumed will be given. In the present case, the disputed evidence contained a denial by the appellant that he owned the jeep and that he did not know that it was stolen. There was no suggestion that he was facing any charges in relation to the jeep.

PREROGATIVE WRIT Origin of the term ..................................................................................................................... Nature ........................................................................................................................................ Constitutional writ is a preferable term for Commonwealth remedy ..................................... High Court’s original jurisdiction ............................................................................................ In the nature of the prerogative ................................................................................................

[16.3500] [16.3505] [16.3510] [16.3515] [16.3520]

[16.3500] Origin of the term In Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; 176 ALR 219 Gaudron and Gummow JJ said (at 92; 224 [20]): The term “prerogative writ” came to be used in England with respect to prohibition and other writs because they were conceived as being intimately connected with the rights of the Crown and to ensure that the prerogative was not encroached upon by disobedience to the prescribed structure for the administration of justice.

[16.3505] Nature The prerogative writs were issued from superior courts to inferior courts or officials to prevent them from exceeding their powers, compelling them to exercise their powers and to assure all persons the full measure of justice. The writs were: • Habeas corpus; • Certiorari; • Prohibition; • Mandamus; • Quo warranto; • Ne exeat regno or Ne exeat colonia; • Procedendo.

[16.3700]

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See also Individual entries for each: Declaration at [4.500]; Error at [5.1300]; and Privative clause at [16.5100].

[16.3510] “Constitutional writ” is a preferable term for Commonwealth remedy In Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; 176 ALR 219 Gaudron and Gummow JJ said (at 92–93; 224 [21]): The term “prerogative writ” has been used as convenient shorthand, particularly to differentiate in Constitution s 75(v) writs of mandamus and prohibition from an injunction. But it is an inapt description of any remedy granted by a court exercising the judicial power of the Commonwealth. If any shorthand expression is to be used, “constitutional writ” would be preferable.

[16.3515] High Court’s original jurisdiction The Constitution provides: 75. In all matters: (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

[16.3520] In the nature of the prerogative General Jurisdictions have abandoned the prerogative writ. The procedure now is to issue an originating motion seeking relief “in the nature” of certiorari, mandamus, prohibition or quo waranto.

Legislation and rules Qld: Judicial Review Act 1991 s 41; Vic: Supreme Court (General Civil Procedure) Rules 2005 O 56; SA: Supreme Court Rules 1987 r 98.

PRESUMPTIONS Difficulties ................................................................................................................................. Parliament is supreme ............................................................................................................... No presumption that everyone knows the law ........................................................................ Rebuttable presumptions ........................................................................................................... Custody ...................................................................................................................................... Presumption of intention .......................................................................................................... Deliberate destruction of a document ...................................................................................... Presumptions are bats of the law ............................................................................................. Writing .......................................................................................................................................

[16.3700] [16.3705] [16.3710] [16.3715] [16.3720] [16.3725] [16.3730] [16.3735] [16.3740]

[16.3700] Difficulties Professor Morgan began an article with the following words: Every writer of sufficient intelligence to appreciate the difficulties of the subject matter has approached the topic of presumptions with a sense of hopelessness and left it with a feeling of despair.

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[16.3705]

Edmund M Morgan “Presumptions” (1937) 12 Washington Law Review 255.

[16.3705] Parliament is supreme In Kable v DPP (NSW) (1996) 189 CLR 51; 138 ALR 577 Dawson J said (at 73–74; 588–589): Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind.

and later (at 76; 590): The doctrine of parliamentary supremacy is a doctrine as deeply rooted as any in the common law.

[16.3710] No presumption that everyone knows the law In Evans v Bartlam [1937] AC 473; 2 All ER 646 (HL) Lord Atkin said (at 479; 649): The fact is that there is not, and never has been, a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.

See also Ostrowski v Palmer (2004) 218 CLR 493; 206 ALR 422 at [1]. Ignorance at [9.400]

[16.3715] Rebuttable presumptions Of innocence In Khan v State of Trinidad and Tobago [2004] 2 WLR 692 (PC) Lord Bingham of Cornhill, giving the advice of the majority, said (at 700 [14]): The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. But it does not control the ingredients of the offence which the prosecution must prove to establish guilt. Difficult questions can arise where a law provides that, on proof of certain facts, a defendant shall be guilty unless he establishes some ground of exoneration. Depending on the precise statutory context, such a reverse burden may indeed infringe the presumption of innocence. But no such difficulty arises here.

(Lord Steyn gave a separate opinion.) See also Burns v The Queen (1975) 132 CLR 258; 49 ALJR 248; 6 ALR 95; Vic: Charter of Human Rights and Responsibilities Act 2006 s 25(1); ACT: Human Rights Act 2004 s 22(1); NZ: New Zealand Bill of Rights Act 1990 s 25(c); UK & Eur: European Convention on Human Rights Art 6.2; Can: Canadian Charter of Rights and Freedoms s 11(d).

Against wrongdoing Re Peatling [1969] VR 214 at 219 (McInerney J).

[16.3715]

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Of sanity R v M’Naughten (1843) 10 Cl & F 200; R v Layton (1849) 4 Cox 149; R v Falconer (1990) 171 CLR 30; 50 A Crim R 244; 96 ALR 545; Criminal Codes: Qld s 26; WA s 26; Tas s 15; NT s 43D(1).

Of validity of marriage R v Peatling [1969] VR 214 at 222 ff (McInerney J).

Natural and probable consequence See Also Intent at [9.2700].

Of continuance That a person is alive Axon v Axon (1938) 59 CLR 395; Re Peatling [1969] VR 214 at 219 (McInerney J).

Percentage of alcohol in blood There is no presumption of the percentage of alcohol in the blood at the time of driving where the test was taken after the statutory period: Wright v Morton [1998] 3 VR 316; (1997) 95 A Crim R 125; 26 MVR 159 (CA).

Who was the driver In the civil case of Carian v Elton (2000) 31 MVR 421 (NSW CA) a motorcycle crashed. The last time the appellant and respondent were seen the appellant was in control. Because of injuries the appellant had no memory. After the accident the respondent admitted being the driver but gave different evidence at trial. Appeal allowed. The presumption of continuance does not have a status higher than other evidence.

Of regularity (Omnia praesumuntur rite esse acta) The presumption applies to remove the need for the prosecutor to prove that an appointment of an official was valid: R v Cassell (1998) 45 NSWLR 325 (CCA). Still a magistrate who still held his appointment as a prosecutor will have a decision set aside for perceived bias: R v Cavit; Ex parte Rosenfield (1985) 33 NTR 29; 73 FLR 385 (Nader J). In Selby v Pennings (1998) 19 WAR 520 (FC) on a charge of unauthorised entry to a classified area, a defendant is entitled to challenge the classifaction and the presumption of regularity does not apply in such a criminal prosecution. The presumption of regularity does not establish that a breath analysing instrument has been approved: Scott v Baker [1969] 1 QB 659; [1968] 2 All ER 993; 52 Cr App R 566 (at 673–675; 998–1000; 571–575); Impagnatiello v Campbell (2003) 6 VR 416 at 426 [28] (CA).

Of death Death can be presumed after an absence of seven years: R v Broughton [1953] VLR 572 (FC);

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[16.3720]

In the estate of Howard (1996) 30 NSWLR 409 (Cohen J). See also Bigamy at [2.2100].

[16.3720] Custody Rebuttable presumptions do not apply to being in custody. In Dillon v The Queen [1982] AC 484; [1982] 1 All ER 1017; 74 Cr App R 274 (PC) Lord Fraser said (at 487; 1020; 277): [I]t would be contrary to fundamental principles of law that the onus should be on a prisoner to rebut a presumption that he was being lawfully detained, which he could only do by the (notoriously difficult) process of proving a negative.

[16.3725] Presumption of intention In Smyth v The Queen (1957) 98 CLR 163 the Court said (at 166): In this Court disapproval has been expressed on more than one occasion of the use, where a specific intent must be found, of the supposed presumption, conclusive or otherwise, that a man intends the natural, or natural and probable, consequences of his Acts: see Stapleton v The Queen (l952) 86 CLR 358, at p 365; Baily v Baily (1952) 86 CLR 424, at 427; Deery v Deery (l954) 90 CLR 211, at pp 2l9–223; Gow v White (l908) 5 CLR at p 876, per O’Connor J.

In Thomas v The Queen (1960) 102 CLR 584 Kitto J said (at 596–597): This court has disapproved on several occasions of the course of charging a jury in terms of a presumption of intention, pointing out that it conceals the true position.

See also Intent at [9.2700].

[16.3730] Deliberate destruction of a document If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own Act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case. The Ophelia [1916] 2 AC 206 at 229, 230 (PC). Applied: Allen v Tobias (1958) 98 CLR 367 at 375.

[16.3735] Presumptions are bats of the law “Presumptions may be looked upon as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts”: Garfath v Garfath (1959) 59 SR (NSW) 362 (FC) at 363 per Owen J quoting Wigmore who in turn quotes Lamm J in Mockowick v Kansas City etc Ry Co (1906) 196 Mo 550 at 571.

[16.3740] Writing David Ross QC “Presumptions in Criminal Law” (2007) 29 Aust Bar Rev 27-44.

[16.3910]

PRE-TRIAL

1163

PRE-TRIAL General ...................................................................................................................................... Legislation ................................................................................................................................. Queensland ................................................................................................................................ Northern Territory .....................................................................................................................

[16.3900] [16.3905] [16.3910] [16.3915]

[16.3900] General After committal or ex officio indictment, legislation allows a judge to hear and decide pre-trial issues before the jury is empanelled. The judge on pre-trial may be different from the one who presides over the trial. The legislation is quite different in each jurisdiction. Northern Territory Evidence Act s 26L is the oldest, for it came into force in 1983. It has enabled a great many applications. The Queensland Code s 592A came into force on 1 July 1997. It has been applied, amended, interpreted and shifted. I omit from this part the law about disclosure.

[16.3905] Legislation Qld: Criminal Code s 590AA; WA: Criminal Procedure Act 2004 s 98; Tas: Criminal Code s 361A; NSW: Criminal Case Conferencing Act 2008; Criminal Procedure Act 1986 s 130A (sexual offence only); Vic: Criminal Procedure Act 2009 s 199; ACT: Supreme Court Rules O 80 r 24; Eng: Criminal Procedure and Investigations Act 1996 ss 39 and 40; NZ: Crimes Act 1961 s 344A.

[16.3910] Queensland Legislation is too extensive to include.

Cases Stay R v Gesa [2001] 2 Qd R 72; (2000) 110 A Crim R 507 (CA); R v F [2004] 1 Qd R 162; (2003) 140 A Crim R 447 at [15] (CA).

Confession R v Sheehy [2005] 1 Qd R 418 (CA); R v D (2003) 139 A Crim R 509 at 511–512 [9] – [10] (CA); R v Adamic (2000) 117 A Crim R 332 (Holmes J).

Identification of victim R v Scott (2000) 116 A Crim R 15 (Byrne J).

1164

ROSS ON CRIME

[16.3915]

Police operations R v Ellis (2001) 125 A Crim R 419 (White J). The High Court has referred to s 592A in cases from Queensland: R v Carroll (2003) 213 CLR 635; 194 ALR 1; 136 A Crim R 167.

[16.3915] Northern Territory Legislation Evidence Act s 26L A court dealing with a matter on indictment may, if it thinks fit, hear and determine, before the jury is empanelled, any question relating to the admissibility of evidence and any question of law affecting the conduct of the trial.

Cases Indictment Quashed: R v Prior (1992) 91 NTR 53; 112 FLR 388; 65 A Crim R 1 (Mildren J). Insufficient prosecution evidence R v Susak (1999) 105 A Crim R 592 (Riley J).

Evidence DNA: R v Latcha (1998) 8 NTLR 122; 127 NTR 1; 148 FLR 365; 104 A Crim R 390 (CCA); Admissibility should be decided under Evidence Act s 26L; R v Joyce (2002) 173 FLR 322; 136 A Crim R 465 (Angel J).

Confession R v Spencer (2000) 113 A Crim R 252 (Thomas J); R v LLH (2002) 132 A Crim R 498 (Mildren J); Lai v The Queen (2003) 13 NTLR 139; 180 FLR 190; 143 A Crim R 111 at [12] (CCA).

Expert R v Harris (1997) 7 NTLR 1; 94 A Crim R 454 (Bailey J). See also Basha inquiry at [2.400]; and Disclosure at [4.2800].

PRIMA FACIE CASE Meaning ..................................................................................................................................... [16.4100] What is a prima facie case ....................................................................................................... [16.4105]

[16.4100] Meaning Prima facie (Latin) means at first sight or at first instance.

[16.4300]

PRIOR CONSISTENT STATEMENT

1165

In North Ganalanja Aboriginal Corp v State of Queensland (1996) 185 CLR 595; 135 ALR 225 the majority said (at 615–616; 235): The phrase can have various shades of meaning in particular statutory contexts but the ordinary meaning of the phrase “prima facie” is: At first sight; on the face of it; as appears at first sight without investigation. [Oxford English Dictionary, 2nd ed (1989), vol XII, pp 470–471].

[16.4105] What is a prima facie case In May v O’Sullivan (1955) 92 CLR 654, Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said (at 657–658): When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law … After the prosecution has adduced evidence sufficient to support proof of the issue the defendant may or may not call evidence. Whether he does or not, the question to be decided in the end by the tribunal is whether, on the whole of the evidence before it, it is satisfied beyond reasonable doubt that the defendant is guilty. This is a question of fact … A magistrate who has decided that there is a case to answer may quite consistently, if no evidence is called for the defendant, refuse to convict on the evidence for the prosecution. The prosecution may have made “a prima facie case”, but it does not follow that in the absence of a “satisfactory”, answer the defendant should be convicted.

In Considine v Lemmer [1971] SASR 39, Bright J said (at 51): I agree that a prima facie case, uncontradicted by credible evidence, does not lead automatically to conviction. For the prima facie case may do no more than tend to prove guilt: it may or may not if unexplained, satisfy beyond reasonable doubt. It may contain weaknesses which inspire doubt. To say this is to do no more than paraphrase May v O’Sullivan (1955) 92 CLR 654.

In Zanetti v Hill (1962) 108 CLR 433, Kitto J said (at 442): [T]hat is to say, there is with respect to every element of the offence some evidence which, if accepted, would either prove the element directly or enable its existence to be inferred. That is a question to be carefully distinguished from the question of fact for ultimate decision, namely whether every element of the offence is established to the satisfaction of the tribunal of fact beyond a reasonable doubt.

Other cases Morrison v Kiwi (1998) 19 WAR 482 (CA); Environment Protection Authority v Sydney Water Corp Ltd (1997) 98 A Crim R 481 (NSW CCA). No case submission at [14.1100].

PRIOR CONSISTENT STATEMENT Meaning ..................................................................................................................................... General rule of exclusion ......................................................................................................... Exceptions ................................................................................................................................. Complaint in a sexual case ....................................................................................................... Rebutting recent invention ........................................................................................................ Earlier identification of an accused .......................................................................................... State of mind ............................................................................................................................. Other references ........................................................................................................................

[16.4300] [16.4305] [16.4310] [16.4315] [16.4320] [16.4325] [16.4330] [16.4335]

[16.4300] Meaning Prior consistent statement means an earlier account given by a witness which accords with the present evidence of the witness.

1166

ROSS ON CRIME

[16.4305]

[16.4305] General rule of exclusion A prior consistent statement is generally not admissible in evidence-in-chief. In R v Connolly (No 2) [1991] 2 Qd R 171 (CA) Thomas J said of a prior consistent statement (at 193): Only facts in issue should be led in chief.

An out of court excuse by an accused is inadmissible. In Fox v General Medical Council [1960] 1 WLR 1017; [1960] 3 All ER 229 (PC) the appellant was a medical practitioner who was alleged to have had sexual relations with a patient. He was struck off. He had wanted to lead evidence that soon after the allegations he had made a denial. The lower court refused the evidence and properly so said the Board. Lord Radcliffe, giving the advice of the Board, said (at 1024–1025; 230): Generally speaking, as is well known, such confirmatory evidence is not admissible, the reason presumably being that all trials, civil and criminal, must be conducted with an effort to concentrate evidence on what is capable of being cogent and, as was remarked by Humphreys J in R v Roberts [1942] 1 All ER 187 at 191; (1942) 28 Cr App R 102 at 105–106, it does not help to support the evidence of a witness, who is the accused person, to know that he has frequently told other persons before the trial what his defence was. Evidence to that effect is, therefore, in a proper sense immaterial.

[16.4310] Exceptions There are a number of exceptions to the general rule. Some are set out below.

[16.4315] Complaint in a sexual case The prosecution can lead evidence-in-chief from an alleged victim in a sexual case that there was a complaint of the criminal act soon after. That statement is almost always a spoken complaint. The evidence of that complaint is led from the victim and from the person to whom the complaint was made. It shows consistency. Generally, a written statement to police is made after the first complaint and ordinarily it will not be admissible. Yet in Gately v The Queen (2007) 232 CLR 208; 179 A Crim R 77 the victim’s statement to the police was read to the jury with the consent of the defence. Appeal against conviction dismissed. See also R v Place [2015] SASCFC 163.

[16.4320] Rebutting recent invention In cross-examination the defence will sometimes suggest to a prosecution witness that the evidence has been invented in the witness box. In re-examination the prosecutor can ask about any prior consistent statements. That is done to rebut the cross-examination. Uniform Evidence Acts s 108(3)(b) gives statutory recognition to the same principle: Langbein v The Queen (2008) 181 A Crim R 378 at 392–393 [90] – [94] (NSW CCA). Yet in R v Stirling [2008] 1 SCR 272 (SCC) Bastarche J, giving the judgment of the whole court said (at [7]): [A] prior consistent statement that is admitted to rebut the suggestion of recent fabrication continues to lack any probative value beyond showing that the witness’s story did not change as a result of the new motive to fabricate. Importantly, it is impermissible to assume that because a witness has made the same statement in the past, he or she is more likely to be telling the truth, and any admitted prior consistent statements should not be assessed for the truth of their contents. As was noted in R v Divitaris (2004) 188 CCC (3d) 290 (Ont CA) at [28] “a concocted statement, repeated on more than one occasion, remains concocted”.

[16.4500]

PRIOR CONVICTIONS

1167

[16.4325] Earlier identification of an accused A witness who gives evidence at trial may not identify an accused when such identification is in issue. In these circumstances, the prosecution may lead evidence from another witness who was present when the first witness made the identification: Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289.

[16.4330] State of mind In R v Masters [1987] 2 Qd R 272; (1986) 24 A Crim R 65 (CCA) the appellant had been convicted of the murder of a man whom he had been told had raped his wife when she was drunk. When he was setting off to have it out with him, a friend advised him to take a stick because that other man was dangerous. The trial judge had rejected the latter evidence, wrongly. Appeal against conviction allowed. In R v Connolly (No 2) [1991] 2 Qd R 171 (CA) Thomas J said at (193): It is only when a witness’s state of mind or purpose is relevant to the issues in a case that it may be lead in chief, and then at best, except in rare circumstances, it is only the state of mind of a party that may be relevant in this way (eg R v Masters [1987] 2 Qd R 272, 274).

[16.4335] Other references Complaint in sexual cases at [3.4300]; Confession (Defence tender of confession) at [3.5335]; Identification (Folder of photos) at [9.200]; Memory at [13.2100]; Recent invention at [18.1000]; Res Gestae at [18.3000].

PRIOR CONVICTIONS Prosecution witnesses ............................................................................................................... [16.4500] The accused ............................................................................................................................... [16.4505]

[16.4500] Prosecution witnesses Prior convictions of a prosecution witness must be disclosed to the defence, at least where the credit of such a witness might reasonably be expected to be a live issue: R v Collister and Warhurst (1955) 39 Cr App R 100 at 104; R v Thompson [1971] 2 NSWLR 213; R v Paraskeva (1982) 76 Cr App R 162 at 164. In R v K (1991) 161 LSJS 135 (SA CCA) King CJ said (at 140): There is clear authority for the proposition that the prosecution must disclose to the defence any convictions of prosecution witnesses of which the prosecution is aware: R v Paraskeva (1983) 76 Cr App R 162. This obligation must in principle extend, in my opinion, also to any information in the possession of the prosecution which reflects materially upon the credibility of prosecution witnesses. There must be limits, however, to the type of information which must be disclosed. It cannot be that the prosecution is required to disclose every speculative and scurrilous rumour which may have come to the ears of investigating officers concerning a witness. The obligation arises, in my view, only if the information is sufficiently solid to cause reasonable persons conducting the prosecution to think that cross-examination based upon it might elicit answers materially affecting the credibility of the witness.

1168

ROSS ON CRIME

[16.4505]

Approved: R v Lewis-Hamilton [1998] 1 VR 630; (1997) 92 A Crim R 532 at 634–635, 536–537 (CA). See also R v Roughley (1995) 5 Tas R 8; 78 A Crim R 160 at 25, 172 (CCA).

[16.4505] The accused Prior convictions of an accused are relevant in the following ways: 1. When defence counsel contemplates the introduction of the good character of the accused. See also Character at [3.1300]. 2. When defence counsel wants to introduce the bad character of a co-accused. See also Character at [3.1300]. 3. On sentence. See also Sentencing at [19.1800].

PRIOR INCONSISTENT STATEMENT Meaning ..................................................................................................................................... Rationale .................................................................................................................................... Cross-examination and tendering ............................................................................................. Uniform Evidence Acts ............................................................................................................ Credit only ................................................................................................................................ Prior inconsistent statement becoming evidence of its facts .................................................. Re-examination to show prior consistent statement ................................................................ Judge’s direction ....................................................................................................................... Other references ........................................................................................................................

[16.4700] [16.4705] [16.4710] [16.4715] [16.4720] [16.4725] [16.4730] [16.4735] [16.4740]

[16.4700] Meaning Prior inconsistent statement means an earlier account given by a witness that does not accord with the present evidence of the witness.

[16.4705] Rationale In Suresh v The Queen (1998) 72 ALJR 769; 153 ALR 145; 102 A Crim R 18 Gaudron and Gummow JJ said (at [12]): As a general rule, a witness’ prior inconsistent statement is received in evidence only if the witness denies having made the statement in question. That rule is not concerned with the evidentiary significance of a prior inconsistent statement, but with the efficient conduct of litigation. It is designed to prevent the calling of evidence on a matter not in issue.

In R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13 McHugh J said (at 316 [55]): A previous inconsistent statement cannot be proved where the witness admits making the statement: if the witness admits it, the purpose of discrediting the witness has been achieved.

[16.4715]

PRIOR INCONSISTENT STATEMENT

1169

[16.4710] Cross-examination and tendering In R v Moore (1995) 77 A Crim R 577 (CCA) Hunt CJ at CL, with whom the others agreed, said (at 585): If it is intended to establish a prior inconsistent statement by a witness in order to discredit evidence which that witness has given, a document which is the witness’s own document may be shown to him or her in order to obtain from the witness a concession that it contains such a statement. That was obviously the purpose of this cross-examination. If the witness distinctly admits that he or she made that inconsistent statement, the purpose of discrediting the witness by that inconsistency has been achieved, and the document cannot be further proved in evidence unless it is otherwise admissible (North Australian Territory Co v Goldsborough, Mort & Co [l893] 2 Ch 381 at 385–386; Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 509–510). The present case was not one where anything further was required to reflect correctly what the statement said on the point in issue (Cf, eg, the situation which arose in Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458 at 465–466). The mere fact that a witness has been cross-examined as to a previous written statement does not necessarily involve the cross-examiner having to tender the document in evidence, although the other party may have the right to tender it (Alchin v Commissioner for Railways (1935) 35 SR (NSW) 498 at 509–510). Where it is the Crown who seeks to exercise that right, the same discretionary issue would arise.

See also Credit at [3.9600]; and Cross-examination at [3.10400].

[16.4715] Uniform Evidence Acts Uniform Evidence Acts s 43 deals with a prior inconsistent statement. Section 43 provides: 43 Prior inconsistent statements of witnesses (1) A witness may be cross-examined about a prior inconsistent statement alleged to have been made by the witness whether or not: (a) complete particulars of the statement have been given to the witness; or (b) a document containing a record of the statement has been shown to the witness. (2) If, in cross-examination, a witness does not admit that he or she has made a prior inconsistent statement, the cross-examiner is not to adduce evidence of the statement otherwise than from the witness unless, in the cross-examination, the cross-examiner: (a) informed the witness of enough of the circumstances of the making of the statement to enable the witness to identify the statement; and (b) drew the witness’s attention to so much of the statement as is inconsistent with the witness’s evidence. (3) For the purpose of adducing evidence of the statement, a party may re-open the party’s case.

The Dictionary Part 1 contains the following definitions: prior inconsistent statement of a witness means a previous representation that is inconsistent with evidence given by the witness. previous representation means a representation made otherwise than in the course of giving evidence in the proceeding in which evidence of the representation is sought to be adduced.

In R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13 McHugh J, footnoting s 43 and referring to other legislation, said that it had analogues in many common law jurisdictions including all Australian jurisdictions. His Honour said further of the section (at [54]):

1170

ROSS ON CRIME

[16.4720]

It regulates the admissibility of evidence arising out of a common method of impeaching the credit of an opponent, or that person’s witness, in forensic contests – by providing a self-contradiction from that person’s prior inconsistent statement.

The Dictionary in the Act states that a “prior inconsistent statement” of a witness means a previous representation that is inconsistent with evidence given by the witness. The manner in which prior inconsistent statements can be put to witnesses is set out in s 43. Pursuant to s 43(1), witnesses can be cross-examined about alleged prior inconsistent statements even where the particulars of the statement have not been given to the witness. However, if the witness denies making the prior inconsistent statement, the cross-examiner is prohibited from adducing evidence of the statement from other witnesses or documents unless the witness is informed of the circumstances of the making of the statement and the witness’ attention is drawn to the inconsistent parts of the statement: s 43(2). Prior inconsistent statements may be put to witnesses whether they are relevant to a fact in issue or solely to credit.

[16.4720] Credit only In Lee v The Queen (1998) 195 CLR 594; 102 A Crim R 289; 72 ALJR 1484; 157 ALR 394 a witness had told police that the accused confessed involvement in murder. At trial the witness failed to recall that conversation. The prosecution were allowed to cross-examine. The witness denied that the statement to police was his. Police later gave evidence of the statement and conversation with the witness. In a joint judgment the High Court allowed the appeal. The statement by the witness about his confession was hearsay and was only to credit. The trial judge had been wrong to say it was evidence of the fact under the Evidence Act 1995 (NSW). Followed: Klein v The Queen (2007) 172 A Crim R 290 (NSW CCA).

[16.4725] Prior inconsistent statement becoming evidence of its facts A prior inconsistent statement can only be tendered if the witness denies or does not distinctly admit making the statement. But if in cross-examination after the tender the witness admits the truth of that prior statement it can become evidence of the fact. In Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 McHugh, Gummow and Hayne JJ said (at 466; 631; 580 [79]): [W]hen a witness has been declared a hostile witness and admits that he or she has made an inconsistent statement, the contents of the statement are not proof of the facts therein stated: Golder v The Queen (1960) 45 Cr App R 5 at 11; R v Thynne [1977] VR 98 at 100. The matter is different if the witness not only admits that he or she made an inconsistent statement but also deposes that the facts in the statement are true. In that situation, the contents of the statement are evidence of the facts which it contains: Birkett v AF Little Pty Ltd [1962] NSWR 492; R v Thynne [1977] VR 98 at 100.

[16.4730] Re-examination to show prior consistent statement In Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 McHugh J said (at 1030; 379 [36]): Another exception to the finality rule is that sometimes a party may be permitted to tender evidence that a witness has made an earlier statement that is consistent with the witness’ evidence. If the evidence of a witness concerning a material fact is attacked on the ground that the witness has recently invented or reconstructed the evidence, the party calling the witness may tender evidence proving a previous consistent statement of the witness. Nominal Defendant v Clements (1960) 104 CLR 476.

[16.4900]

PRISON

1171

[16.4735] Judge’s direction In R v Schmahl [1965] VR 745 (FC) Winneke CJ pointed out (at 748–749) that a judge’s direction to the jury should: 1. Contain the principle of prior inconsistent statements; 2. Identify them; 3. Relate them to the present evidence; 4. Relate them to the issues in the trial.

In Driscoll v The Queen (1977) 137 CLR 517; 15 ALR 47 Gibbs J, delivering the leading judgment, pointed out (at 536–537; 63–64) that the jury should be told: 1. The previous statement is admitted merely on the issue of credibility; 2. The purpose is to show that the witness is unreliable; 3. In some cases it would be highly desirable, if not necessary, for the judge to warn the jury against accepting the evidence of the witness although this is not an inflexible rule of law.

[16.4740] Other references See also Cross-examination on documents at [3.10600]; Prior consistent statement at [16.4300].

PRISON Nature of prison ........................................................................................................................ Community risk ........................................................................................................................ Gaol code .................................................................................................................................. Prisoners retain rights ............................................................................................................... Duty of prison authorities ......................................................................................................... Directions on evidence of a prisoner .......................................................................................

[16.4900] [16.4905] [16.4910] [16.4915] [16.4920] [16.4925]

[16.4900] Nature of prison In R v Francis [2007] 1 WLR 1021 (CA) Moses LJ, delivering the judgment of the court, said (at 1023 [10]): A police cell is not a home.

In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 McHugh J said (at 614; 45; 231): All accounts of traditional prisons agree that beneath the veneer of law and order imposed by the rules of prison discipline lies a brutal world of fear and sudden, and often irrational, violence where conventional standards of conduct and values such as truth and respect for the rights of others have little relevance.

In R v Dixon (1975) 22 ACTR 13 Fox J held (at 19): [P]risoners are kept in unnatural, isolated conditions, their every activity is so strictly regulated and supervised that they have no opportunity to develop a sense of individual responsibility, they are deprived of any real opportunity to learn to live as members of society, their only companions are other criminals, some of whom are bound to be quite vicious, their sex life must be unnatural, scope for psychiatric treatment is very limited, if not non-existent, and employment is limited and stereotyped. To many this must seem one of the most absurd aspects of the whole matter. They may well ask why the system has to be so anti-social in operation, why it cannot be improved so that people for whom there is a prospect of reformation, and who are not so dangerous that they have to be kept in strict confinement, are given a real opportunity for self-improvement.

1172

ROSS ON CRIME

[16.4905]

[16.4905] Community risk In R v Hollingshed (1993) 112 FLR 109 (ACT) Miles CJ, delivering sentence, said (at 113): It has sometimes been said that offenders are sent to prison not for their own good but for the good of the community, a proposition which involves the paradox that it is hardly for the good of the community that an offender emerge from prison with his or her criminal propensity confirmed. However, that is a risk that the community must run.

[16.4910] Gaol code In R v Asfour (1992) 60 A Crim R 409 (NSW CCA) a prisoner had been knifed in gaol. The victim gave evidence for the defence saying that the accused had not knifed him. But because he lived in gaol he was not able to say who had knifed him. Appeal against conviction dismissed. Hunt CJ at CL, with whom the other judges agreed, referred to the victim’s evidence (at 411) and to: [T]he gaol code that you do not inform on your fellow inmate.

[16.4915] Prisoners retain rights In Muir v The Queen (2004) 78 ALJR 780; 206 ALR 189 Kirby J said (at 784; 194 [25]): Prisoners are human beings. In most cases, they are also citizens of this country, “subjects of the Queen” and “electors” under the Constitution. They should, so far as the law can allow, ordinarily have the same rights as all other persons before this court. They have lost their liberty whilst they are in prison. However, so far as I am concerned, they have not lost their human dignity or their right to equality before the law.

[16.4920] Duty of prison authorities Prison authorities must ensure the safety of prisoners. In New South Wales v Bujdoso (2005) 227 CLR 1; 80 ALJR 236; 222 ALR 663 the prisoner was imprisoned for sex offences on a male under 18 years. He was assaulted in prison because he was a rock spider. Held: the State owed the prisoner a duty of care and was liable in damages for his injuries. See also Haseldine v South Australia (2007) 96 SASR 530 (FC).

[16.4925] Directions on evidence of a prisoner Informers In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 McHugh J said (at 616–617; 47; 233): If accused persons are to be protected against the dangers arising from the evidence of prison informers and the fairness of criminal trials are to be ensured, juries must be directed as to the danger of acting upon such evidence. Ordinarily, that will mean that the jury must be directed that it is dangerous to act on that evidence where the account of the prison informer is not substantially confirmed by independent evidence. Thus, if the informer alleges that the accused has confessed to the crime, it will be dangerous to act on his evidence unless the making of the confession is substantially confirmed by independent evidence. If the informer alleges that he saw or heard the accused do or say something which incriminates the accused, it will be dangerous to act on the allegation unless the doing of the act by the accused or the making of the statement is substantially confirmed by independent evidence. Only in the most exceptional case, if at all, could the evidence of a fellow prisoner be regarded as independent evidence for this purpose. Furthermore, the jury should be warned not only as to the inherent or general danger of acting upon the evidence of a prison informer but, where appropriate, instructed to consider any specific matters which could reasonably be regarded as undermining the credibility of the witness. Finally, the trial judge should draw to the jury’s attention the particular matters which could reasonably be regarded as confirming the evidence of the prison informer.

[16.5300]

PRIVILEGE

1173

In R v Winner (1995) 79 A Crim R 528 (NSW CCA) Kirby ACJ, with whom the others agreed on the point, said (at 540): This Court has confined the need for a Pollitt direction to cases where the informer is in the vulnerable and potentially corrupting environment of a prison or like environment and risk.

Other case R v Bevan [1993] 2 SCR 599; 104 DLR (4th) 180; 82 CCC (3d) 310 (SCC).

Non-informer but observer In R v Ali (No 2) (2005) 13 VR 257; 158 A Crim R 469 (CA) Callaway JA said (at 274 [62]): [T]he jury should be directed to subject the evidence of each prisoner witness to particularly careful scrutiny, because of its potential unreliability, and to consider whether it is supported by other, independent evidence. The judge should identify evidence that is capable of being so regarded but make it clear that, even if there is independent supporting evidence, the evidence of each prisoner witness should still be subjected to particularly careful scrutiny. The jury should also be instructed that, so long as they faithfully comply with those directions, it is their duty to convict the applicant if the evidence led at the trial persuades them, beyond reasonable doubt, that he is guilty.

[16.4930] Uniform Evidence Act The Uniform Evidence Acts may require a warning on prisoner witnesses: s 165(1)(e). In Robinson v The Queen (2006) 162 A Crim R 88 (NSW CCA) the court examined s 165. Spigelman CJ said (at 91 [3]): Cases at common law about potentially unreliable evidence must be treated with considerable caution by reason of the fact that this entire area of the law has been fundamentally altered by s 164 and s 165 of the Evidence Act 1995 (NSW).

Johnson J, with whom the other judges agreed, followed an earlier New South Wales Court of Criminal Appeal case (at 132 [164] – [165]) saying that a trial judge is never under a duty to give a “dangerous to convict” direction. Nor may s 164 require corroboration of the evidence of a prisoner witness: R v Livingstone (2004) 150 A Crim R 117 at 133 [76] (SW CCA).

PRIVILEGE Privilege against self incrimination: eight principles .............................................................. Legislation ................................................................................................................................. Not simply a rule of evidence .................................................................................................. Court must be satisfied that the objection is proper ................................................................ No exception to the privilege ................................................................................................... Statute abrogating the privilege ................................................................................................ Judge’s certificate abrogates privilege ..................................................................................... Examples of privilege abrogated by statute ............................................................................. Legislation to coerce a statement or answer ............................................................................ Privilege does not apply to a corporation ................................................................................ Uniform Evidence Acts ............................................................................................................ Other references ........................................................................................................................

[16.5300] [16.5305] [16.5310] [16.5315] [16.5320] [16.5325] [16.5330] [16.5335] [16.5340] [16.5345] [16.5347] [16.5350]

[16.5300] Privilege against self incrimination: eight principles In Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA) Kirby P set forth eight principles of the privilege against self-incrimination. Each was developed. What follows is the essence. Kirby P said (at 420–424):

1174

ROSS ON CRIME

[16.5300]

1. The principle that a person is exempt from an obligation to incriminate himself or herself is fundamental to a civilised legal system… 2. The basis of the privilege against self-incrimination was explained long ago by Lord Eldon LC in Paxton v Douglas (1812) 19 Ves Jun 225 at 227–228; 34 ER 502 at 503 … The principle is rooted deep in the resistance of our system of law to obliging a person to convict himself or herself by that person’s own testimony; see, eg, Sorby v Commonwealth (1983) 152 CLR 281 at 294, 308. Such a person has ordinarily a right to remain silent in the face of an accusation of a crime or wrongdoing. To the extent that the privilege against self-incrimination is eroded, so are attributes of freedom conventionally regarded as important… 3. Often the suggested derogation from the privilege against self-incrimination arises from the terms of legislation. The rule as to self-incrimination has been described (in relation to a Federal statute) as “a mere evidentiary rule…open like all rules of evidence to Parliamentary regulation”: see Huddert, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 386; see also Hamilton v Oades (1989) 166 CLR 486; R v Scott (1856) Dears & Bell 47; 169 ER 909; Kempley v The King [1944] ALR 249 at 251f. Nevertheless, statutes will be construed, unless their language is clear, so as to prevent or diminish infringement of the privilege: see Hammond v Commonwealth of Australia (at 197); Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 337, 346 … The test traditionally applied is whether the person claiming the privilege genuinely and reasonably apprehends a danger from being compelled to answer the question objected to: R v Boyes (1861) 1 B & S 310; 121 ER 730; 4. A mere statement by a witness that the answer may tend to incriminate that witness is not sufficient to found the claim for the privilege against self-incrimination. The Court must be satisfied that there is reasonable ground and that the objection is taken bona fide: Jackson v Gamble [1983] 1 VR 552 at 556. The test applied is whether there is a “real and appreciable risk of criminal proceedings…being taken against” the witness: see Rank Film Distributors Ltd v Video Information Centre (A Firm) [1982] AC 380 at 441. A remote or slight possibility of legal peril to a witness may not, in a particular case, be sufficient to invoke the privilege if pardoned (as was the case in R v Boyes (1861) 1 B & S 310; 121 ER 730) or if earlier dealt with by law upon the subject said to give rise to the apprehension of jeopardy. If criminal proceedings have been concluded (either by acquittal or by conviction and sentence) a person can stand in no further jeopardy of punishment upon the precise matters already dealt with;… 5. Where a question arises as to whether the claimed privilege is not claimed bona fide or whether the danger apprehended is without substance, it is clear law that “great latitude should be allowed to [the witness] in judging for himself the effect of any particular question”: see R v Boyes (1861) 1 B & S 310; 121 ER 730 (at 311; 730). 6. The foregoing considerations will be reasons for caution in deriving a conclusion that the claim of the privilege against self-incrimination is not made bona fide. There is authority to suggest that a want of subjective bona fides in invoking the privilege will remove the privilege: see, eg, Ex parte Reynolds; Re Reynolds (1882) 20 Ch D 294 at 300; R v The Justices of Armagh (1883) 18 IR LTR 2 at 3; BTR Engineering (Australia) Ltd (formerly Borg-Warner Australia Ltd) v Patterson (1990) 20 NSWLR 724 at 730. However, in my respectful view this is a dubious principle. What is in issue, ultimately is not the subjective fears of the witness claiming the privilege but the objective tendency of the question to expose that witness to the risk of criminal prosecution… One witness may have multiple motives and even mala fides. But if the question is such in fact as to expose him or her to the risk of future prosecution, it is the duty of the judicial officer to uphold the privilege. It will be easier and more reliable to assess the reasonableness of the apprehension than the genuineness of the sentiment. A court can quite readily speculate upon and judge the possible use of demanded oral testimony. The devil himself knoweth not the mind of man [or woman];

[16.5310]

PRIVILEGE

1175

7. It is for the presiding judicial officer to determine whether the objection taken is good and whether there are reasonable grounds for the belief on the part of the witness that he or she is, or may be, in peril of future criminal or like proceedings if the answer is given. Just as the court must protect the privilege, it must also make sure that the rule is not abused; but applied only where its invocation is justified: see Triplex Safety Glass Co Ltd v Lancegaye Safety Glass (1934) Ltd [1939] 2 KB 395 at 403. The proper procedure in a claim for privilege is to object to each question as it is asked: see Ex parte Reynolds (1882) 20 Ch D 294 (at 294); Brebner v Perry [1961] SASR 177 at 180. It is not proper to refuse to be sworn or to decline to answer any questions at all or to claim a global protection from the privilege. Such a refusal may amount to a contempt of court: see Smith v The Queen (1991) 25 NSWLR 1 at 9. Nevertheless, a point will be reached in questioning where it will be unnecessary to persist with an entire cross-examination which is clearly futile by reason of the invocation of the privilege against self-incrimination. To demand a tedious repetition of questions, rebuffed every time by a claim of privilege which is upheld, would be pointless;… 8. The privilege against self-incrimination may be waived in certain circumstances. In this respect it accords with other privileges. This much is clear law: see, eg, JH Wigmore, Evidence in Trials at Common Law (1961) Boston, Little, Brown & Co, vol 8 at 453ff and BTR Engineering (1990) 20 NSWLR 724 (at 727). The presence of a privileged document in the hands of a third party does not necessarily destroy the privilege. The question remains whether the party entitled to the privilege has actually waived it: see Kennedy v Lyell (1883) 23 Ch D 387; Trade Practices Commission v Sterling (1979) 36 FLR 244; Hartogen Energy Ltd (In Liq) v Australian Gaslight Co (1992) 109 ALR 177; cf Giannarelli v Wraith [No 2] (1991) 171 CLR 592 at 604. The extent of possible waiver is, however, disputed. The respondents asserted, with the support of Wigmore, that it was available in two cases only, being the two mentioned by that author, viz, by contract or other binding pledge before trial and by voluntarily testifying in the case. I do not consider that this states the common law of Australia. It is conceptually unsatisfactory. It appears to be inconsistent with the passage of Lord Barker LC in East India Co v Atkins (1719) 1 Str 168 at 176; 93 ER 452 at 457 where it was pointed out that what was involved is “only a privilege, not an actual right”. It also appears to be incompatible with reasoning of the High Court of Australia in analogous cases: see, eg, Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 480. Nevertheless, as with any waiver, it is necessary to define with some precision what is waived. It will be rare that a person is taken to have waived all rights and privileges in respect of any prosecution for any offence arising out of circumstances only generally defined. The point of difficulty will be presented by the definition of the subject matter of the waiver. This will require assessment of the reasonable interpretation to be placed upon the conduct of the witness said to amount to the waiver.

[16.5305] Legislation Some legislation refers to privilege against self incrimination: Uniform Evidence Acts s 128(2)(a) (for discussion, see McCarthy v The Queen [2008] NSWCCA 320; Meiko Australia Pacific Pty Ltd v Hinchliffe [2009] NSWSC 354; Ying v Song [2009] NSWSC 1344). Qld: Evidence Act 1977 ss 10 and 15; WA: Evidence Act 1906 ss 11 and 24; SA: Common Law; NZ: Evidence Act 2006 s 60.

[16.5310] Not simply a rule of evidence Dawson J said in Baker v Campbell (1983) 153 CLR 52; 49 ALR 385 (at 127; 442–443):

1176

ROSS ON CRIME

[16.5315]

[T]he majority in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 … was not prepared to hold that privilege against self-incrimination was inherently incapable of application in non-judicial proceedings, having regard to the view that the rule of the common law nemo tenetur seipsum accusare is too fundamental a bulwark of liberty to be categorized simply as a rule of evidence.

(Nemo tenetur seipsum accusare is a Latin phrase meaning no one is bound to incriminate himself.)

[16.5315] Court must be satisfied that the objection is proper Brebner v Perry [1961] SASR 177 (Mayo J); Jackson v Gamble [1983] 1 VR 552 at 555–556 (Young CJ); Accident Insurance Mutual Holdings Ltd v McFadden (1993) 31 NSWLR 412 (CA) (Kirby P at 422–423).

[16.5320] No exception to the privilege In Reid v Howard (1995) 184 CLR 1; 131 ALR 609; 83 A Crim R 288 Toohey, Gaudron, McHugh and Gummow JJ said (at 14; 618; 297–298): There is simply no scope for an exception to the privilege, other than by statute. At common law, it is necessarily of general application–a universal right which, as Murphy J pointed out in Pyneboard Pty Ltd v Trade Practices Commission (1983) 152 CLR 328 at 346, protects the innocent and the guilty. There is no basis for excepting any class or category of person whether by reference to legal status, legal relationship or, even, the offence in which he or she might be incriminated because, as already indicated, its purpose is the completely general purpose of protecting against “the peril and possibility of being convicted as a criminal”Lamb v Munster (1882) 10 QBD 110 at 111.

[16.5325] Statute abrogating the privilege In Pyneboard Pty Ltd v TPC (1983) 152 CLR 328; 45 ALR 609 Mason ACJ, Wilson and Dawson JJ said (at 341; 618): The privilege will be impliedly excluded if the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification. This is so when the object of imposing the obligation is to ensure the full investigation in the public interest of matters involving the possible commission of offences which lie peculiarly within the knowledge of persons who cannot reasonably be expected to make their knowledge available otherwise than under a statutory obligation. In such cases it will be so, notwithstanding that the answers given may be used in subsequent legal proceedings.

Answers made under compulsion of law are not, on that account involuntary. In R v Zion [1986] VR 609 Murphy J ruled that answers made under compulsion in a bankruptcy examination were admissible in a criminal trial. In R v Azar (1991) 56 A Crim R 414 (NSW CCA) Gleeson CJ said (at 421): [I]t has been held that answers made under compulsion of law are not, on that account, involuntary: Kempley (1944) 44 SR (NSW) 416; Owen [1951] VLR 393; Travers (1957) 58 SR (NSW) 85; Zion [1986] VR 609.

In Reid v Howard (1993) 31 NSWLR 298 (CA) Handley JA delivering the leading judgment said (at 302): Cases dealing with the admissibility of statements made under the statutory compulsion may not be relevant in the present context: see Kempley v The King (1944) 18 ALJ 118; [1944] ALR 249 and Commissioner of Customs and Excise v Harz [1967] 1 AC 760. In my opinion these cases are to be

[16.5335]

PRIVILEGE

1177

explained on the basis that the statutes which impose the duty to answer had to that extent abrogated the privilege: see Cross on Evidence, 4th Australian ed, (1991) at 960–961.

Evidence given to the National Crime Authority is not necessarily involuntary and inadmissible: DPP (Vic) Reference No 2 of 1996 (1997) 141 FLR 414; 96 A Crim R 519; [1998] 3 VR 241 (CA). The body is now the Australian Crime Commission: Australian Crime Commission Act 2002 (Cth). That Act deprives a witness of the privilege against self incrimination. It may give a limited use indemnity: A v Boulton (2004) 146 A Crim R 395; 207 ALR 342 (FCA). In Lee v New South Wales Crime Commission [2013] HCA 39 the High Court by majority held that s 31D of the Criminal Assets Recovery Act 1990 (NSW) enables the Court to exam on oath parties about subject matters that may overlap with criminal proceedings that parties are subjected to. Any potential prejudice to an accused could supposedly be mitigated by orders relating to how the information could be used. See also, X7 v Australian Crime Commission [2013] HCA 29. See also Indemnity at [9.1600]. But where the caution was not properly administered and no advice given on where a refusal to answer questions would be accepted or at least noted, the records of interview were held inadmissible: Workcover Authority (NSW) v Seccombe (1998) 43 NSWLR 390; 101 A Crim R 303 (NSW Indus Rel Comm). See also R v McDonnell; Ex parte Attorney-Gerneral [1988] 2 Qd R 189; (1987) 78 ALR 393 (CCA); R v Hood (1997) 91 A Crim R 526 (NSW CCA); DPP (Vic) Reference No 2 of 1996 141 FLR 414; 96 A Crim R 519; [1998] 3 VR 241 (CA); DPP (NSW) v Alderman (1998) 45 NSWLR 526 (CA).

[16.5330] Judge’s certificate abrogates privilege In some jurisdictions a judge can give a certificate to a witness who declines to answer questions on the ground of self incrimination. The certificate has the effect of an indemnity and abrogates privilege. See also Indemnity (Judge’s certificate) at [9.1615].

[16.5335] Examples of privilege abrogated by statute Police Regulation Act 1958 (Vic): Police Service Board v Morris (1985) 156 CLR 397; 58 ALR 1: requiring answers at police disciplinary proceedings; Income Tax Assessment Act 1936 (Cth) s 264: Deputy Commissioner of Taxation v De Vonk (1995) 61 FCR 564; 85 A Crim R 410; 133 ALR 303 (FCA): examination; Uniform Evidence Acts s 128(5): Bax Global (Aust) Pty Ltd v Evans (1999) 47 NSWLR 538 (Austin J). Australian Crime Commission Act 2002 (Cth), but it does not permit an examiner to conduct an examination of a person charged with a Commonwealth indictable offence if the examination relates to the subject matter of the charged offence: X7 v Australian Crime Commission (2013) 87 ALJR 858; [2013] HCA 29.

1178

ROSS ON CRIME

[16.5340]

[16.5340] Legislation to coerce a statement or answer Quite a number of laws require evidence to be given but make that evidence inadmissible in later proceedings. In Sorby v Commonwealth (1983) 152 CLR 281; 46 ALR 237 it was held that for the privilege against self incrimination to be removed, clear statutory provision to that effect is required. The case concerned a Royal Commission about drug dealings. The court said (at 310–311): When a legislature abrogates the privilege against self-incrimination it often gives compensatory protection to the witness by providing, as s 14(2) does, that an answer shall not be admissible in civil and criminal proceedings other than in proceedings for contempt or for an offence under the Act.

After analysis of the provisions the majority said (at 311): There is no sufficient indication in the Act that a witness is not entitled to that protection if the reason for his refusal is a well-grounded claim to the privilege against self-incrimination.

In R v Carr [1972] 1 NSWLR 608 (CCA) it was held (at 612) that the rule does not apply to a person who incriminates himself by giving fingerprints. It applies only to answers to questions. See also, R v Seller [2013] NSWCCA 42.

[16.5345] Privilege does not apply to a corporation In Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; 118 ALR 392 the High Court held 4–3 that privilege against self incrimination did not apply to a corporation.

[16.5347] Uniform Evidence Acts Section 128 of the UEA governs the privilege against self-incrimination. The privilege under the UEA is narrower than at common law. Under the UEA, a witness can be required to answer incriminating questions where it is in the “interests of justice” and it will not expose them to an imposition pursuant to a law of another country. Where these conditions are satisfied, the witness is compelled to answer the question (under threat of being charged with contempt of court) and is provided with what is known at common law as a “derivative immunity”. Under the Act the witness receives a certificate preventing his or her incriminating answers being used against them in another court hearing.

[16.5348] Prosecution should not be possessed with evidence of accused obtained under compulsion The High Court in Lee v The Queen (2014) 88 ALJR 656; [2014] HCA 20, at [46], stated: It is a breach of the principle of the common law, and a departure in a fundamental respect from a criminal trial which the system of criminal justice requires an accused person to have, for the prosecution to be armed with the evidence of an accused person obtained under compulsion concerning matters the subject of the charges. It cannot be said that the appellants had a trial for which our system of criminal justice provides and which s 13(9) of the NSWCC Act sought to protect. Rather, their trial was one where the balance of power shifted to the prosecution.

[16.5350] Other references See also Corporations at [3.7700].

[16.5700]

PROCEDENDO

1179

PROCEDENDO Definition ................................................................................................................................... [16.5500] Forms of the writ ...................................................................................................................... [16.5505]

[16.5500] Definition Procedendo ad judicium is a Latin phrase meaning by proceeding to judgment. Procedendo is a prerogative writ which issues: • where a judge of an inferior court delays the parties by not giving judgment; • when a cause is removed from an inferior court to a superior court which considers the grounds of removal improper or insufficient and wants to remit the cause to the inferior court: R v Wallace Ex parte O’Keefe [1918] VLR 285 (FC) (Madden CJ at 305–306). Mandamus serves much the same function as the first reason for procedendo.

[16.5505] Forms of the writ Cth: High Court Rules 1952 O 55 r 36 and Form 56 ELIZABETH THE SECOND, &c To [the same persons to whom the writ of prohibition is directed]. Greeting: Whereas by Our writ we lately commanded you [&c, recite writ of prohibition]: We do now command you that you do proceed in the said cause [or as the case may be], with the expedition which to you shall seem right, notwithstanding Our writ so sent to you as aforesaid. Witness, &c This writ was issued by [&c, as in the case of a writ of summons].

WA: Criminal Practice Rules Pt V No 12 Whereas by our writ We lately commanded you, for certain reasons, that you should forthwith send under your hand and seal [or the hand and seal of one of you] before us in our Supreme Court of Western Australia at Perth [or] (etc, recite the certiorari): We now, for certain reasons, command you that you do wholly supercede whatever is to be done concerning the execution of that Our said writ: and that you proceed to the determination of the matters referred to in Our said writ with that expedition which to you shall seem right, notwithstanding Our writ so sent to you as aforesaid.

PROCEDURAL FAIRNESS Procedural fairness is more apt than natural justice ................................................................ Applies where rights, interests or legitimate expectations are involved ................................ The nature of the power is decisive of the duty ..................................................................... Applies to administrative decisions .......................................................................................... Procedural fairness in sentencing ............................................................................................. Application to governmental decision-making ........................................................................ New matter arising after hearing .............................................................................................. Prosecution has same entitlements as other litigants ..............................................................

[16.5700] [16.5705] [16.5710] [16.5715] [16.5720] [16.5725] [16.5730] [16.5735]

[16.5700] “Procedural fairness” is more apt than “natural justice” In Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321 Mason J said (at 584–585; 446–347):

1180

ROSS ON CRIME

[16.5705]

What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting … In this respect the expression “procedural fairness” more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.

[16.5705] Applies where rights, interests or legitimate expectations are involved In Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 Mason CJ, Deane and McHugh JJ said (at 598; 178): It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

[16.5710] The nature of the power is decisive of the duty In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 106 ALR 11; 59 A Crim R 255 Mason CJ, Dawson, Toohey and Gaudron JJ said (at 576 (CLR); 18 (ALR)): It is now clear that a duty of procedural fairness arises, if at all, because the power involved is one which may “destroy, defeat or prejudice a person’s rights, interests or legitimate expectations”: Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 at 178. Thus, what is decisive is the nature of the power, not the character of the proceeding which attends its exercise.

In Teakle v Western Australia (2007) 33 WAR 188; 168 A Crim R 483 (CA) Buss JA said (at 205; 499–500 [63]): Absent a clear legislative intent to the contrary, a statutory power conferred on a court must be exercised with procedural fairness … The rules of procedural fairness are concerned with procedures rather than outcomes, and they are therefore rules which govern what a court must do in the course of deciding how a statutory power should be exercised. In other words, the rules of procedural fairness are to be applied to the procedures by which a decision pursuant to the exercise of the statutory power will be made. (authorities omitted)

[16.5715] Applies to administrative decisions In Kioa v West (1985) 159 CLR 550; 60 ALJR 113; 62 ALR 321, Mason J said (at 584; 346) that the law in relation to administrative decisions: [H]as now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

Approved: Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 at 598, 178.

[16.5720] Procedural fairness in sentencing A judicial officer must accord procedural fairness in sentencing. See also Sentencing at [19.1800].

[16.5725] Application to governmental decision-making In Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; 93 ALR 51 Deane J said (at 653; 53):

[16.5905]

PROCURE

1181

Indeed, the law seems to me to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making.

Approved: Annetts v McCann (1990) 170 CLR 596; 97 ALR 177 at 598, 178 per Mason CJ, Deane and McHugh JJ.

[16.5730] New matter arising after hearing When a new matter arises after the hearing and before judgment the court should reconvene to bring the matter to the attention of the parties and hear any further submissions. In Hoechong Products Co Ltd v Cargill Hong Kong Ltd [1995] 1 WLR 404 (PC) Lord Mustill, giving the advise of the Board, said (at 409): It does, of course, happen from time to time that a court comes to learm of a statute or authority bearing importantly on an issue canvassed in argument but, through an oversight, not then brought forward. The court may wish to take the new matter into account. Before doing so it should always ensure that the parties have an opportunity to deal with it, either by restoring the appeal for further oral argument, or at least by drawing attention to the materials which have come to light and inviting written submissions upon them.

[16.5735] Prosecution has same entitlements as other litigants In R v Lewis (1988) 165 CLR 12; 78 ALR 477; 34 A Crim R 212 the High Court refusing the prosecution’s application for special leave to appeal said in a joint reserved judgment (at 17; 481; 216): The Crown is as much entitled to natural justice as any other litigant.

See also Audi alterem partem at [1.7000]; Bias at [2.1800]; Coroner at [3.7500]; Dietrich at [4.2100]; Natural justice at [14.300]; and Sentencing at [19.1800].

PROCURE Legislation ................................................................................................................................. Definition ................................................................................................................................... Aid, abet counsel and procure .................................................................................................. Attempt to procure ....................................................................................................................

[16.5900] [16.5905] [16.5910] [16.5915]

[16.5900] Legislation Cth: Criminal Code Act 1995 s 11.2; Qld: Criminal Code s 217; WA: Criminal Code s 191; NT: Criminal Code s 131; NSW: Crimes Act 1900 s 91A; Vic: Crimes Act 1958 ss 57 and 58; SA: Criminal Law Consolidation Act 1935 s 63; ACT: Criminal Code 2002 s 45.

[16.5905] Definition In R v Castiglione [1963] SR (NSW) 393; [1963] NSWR 1; (1963) 80 WN (NSW) 537 (CCA) it was held that procure means persuade, induce or influence.

1182

ROSS ON CRIME

[16.5910]

In R v Pikos [1963] VR 89 Smith J ruled that two of the elements in the offence in Victoria were (at 90): [T]hat the accused took some action, whether in the form of pressure, persuasion, inducement, proposal or otherwise, which influenced the mind of the woman and caused her to have the carnal connection in question; and, lastly, that the accused did what he did with the intention of producing that result.

In R v Broadfoot [1976] 3 All ER 753; 64 Cr App R 71 (CCA) Cusack J said (at 755; 74): [T]he learned judge told the jury that the word “procure” was really equivalent to the word “recruit”. Let it be said at an early stage that the word “procure” in the statute is not a term of art. It is a word in common usage and a word which a jury is well able to understand. Each case in which it is alleged that there has been a procurement or attempted procurement must be related to the facts of that particular case. It is essential for a jury to make up their minds, when they have heard the evidence and decided what to accept, whether what they do accept does amount to “procuring”. … this court can see nothing wrong in the judge having suggested to the jury the word “recruited”.

See also Prostitution at [16.7200].

[16.5910] Aid, abet counsel and procure The word “procure” is also used in the context of aid, abet, counsel and procure. In that sense R v Castiglione [1963] SR (NSW) 393; [1963] NSWR 1; (1963) 80 WN (NSW) 537 was approved in passing in Tarzia v The Queen (1991) 5 WAR 222; 52 A Crim R 102 (CCA).

[16.5915] Attempt to procure Legislation makes attempt to procure an offence. Cases that deal with the legislation include the following: attempt to procure an act of gross indecency: R v Harris (1988) 17 NSWLR 158; 35 A Crim R 146 (CCA); Ayles v The Queen (1993) 66 A Crim R 302 (SA CCA); attempt to procure official corruption: Herscu v The Queen (1991) 173 CLR 276; 103 ALR 1; 56 A Crim R 270; R v Bellino [1993] 1 Qd R 521; (1992) 59 A Crim R 322 (CA); attempt to procure another wilfully to damage property: R v Webb [1995] 1 Qd R 460; (1994) 72 A Crim R 142 (CA). See also Attempt at [1.6600].

PROHIBITION Meaning ..................................................................................................................................... Constitution ............................................................................................................................... Denial of natural justice ........................................................................................................... Non-compliance with legislation .............................................................................................. Discretion .................................................................................................................................. Form of application ..................................................................................................................

[16.6100] [16.6105] [16.6110] [16.6115] [16.6120] [16.6125]

[16.6100] Meaning Prohibition is an order by a court of inherent jurisdiction directed to a lower court or official to prevent the excess of power or other improper action.

[16.6125]

PROHIBITION

1183

[16.6105] Constitution In Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; 176 ALR 219 Gaudron and Gummow JJ said (at 101; 231 [41]): It follows that, if an officer of the Commonwealth exercising power conferred by statute does not accord procedural fairness and if that statute has not, on its proper construction, relevantly (and validly) limited or extinguished any obligation to accord procedural fairness, the officer exceeds jurisdiction in a sense necessary to attract prohibition under s 75(v) of the Constitution.

[16.6110] Denial of natural justice In Magistrates’ Court (Vic) v Murphy [1997] 2 VR 186; 89 A Crim R 403 (CA) Charles JA said (at 213; 432–433): It is clearly the law that prohibition is available to restrain the continuation of legal proceedings conducted in such a way as to deny natural justice: R v Kent Police Authority; Ex parte Godden [1971] 2 QB 662; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Craig v South Australia (1995) 184 CLR 163 at 175–6. As Sheller JA said in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 618, “A classic case for intervention by way of prohibition is that where a person proposes to sit in a judicial capacity in breach, by reason of partiality, of the rules of natural justice”, in reliance upon R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258–63.

[16.6115] Non-compliance with legislation Where there has been non-compliance with legislation, prohibition may issue. In Ebatarinja v Deland (1998) 194 CLR 444; 103 A Crim R 535; 157 ALR 385, Roland Ebatarinja was charged with murder. He was deaf and mute with no means of communication. The High Court prohibited a magistrate from hearing a committal. The legislation required the magistrate to tell the person charged “do you desire to say anything in answer to the charge”. The High Court described this as being “meaningless ritual” (at [25]). In Kovess v DPP (1997) 74 FCR 297; 90 A Crim R 579 (FCA, Finn J) the prosecution laid the charges more than five years after their happening. They were Commonwealth charges. Acts required ministerial approval where more than five years had elapsed. That approval had not been given. The Director of Public Prosecutions was prohibited from proceeding without ministerial approval.

[16.6120] Discretion The court has a discretion on whether to grant prohibition: Re Refugee Review Tribunal; Ex parte AALA (2000) 204 CLR 82; 176 ALR 219 at [49].

[16.6125] Form of application A form of application for prohibition can be seen in Ebatarinja v Deland (1997) 92 A Crim R 370 (NT, Mildren J) (at 373). The first application was to the magistrate and the second to the Director of Public Prosecutions. 1. An Order prohibiting the first defendant from further hearing committal proceedings wherein the second defendant is the informant and the plaintiff is the defendant, which proceedings were by order of the first defendant on the 6th day of February 1997 set down for further hearing on the 12th day of February 1997. 2. An Order prohibiting the third defendant from proceeding or further proceeding on any indictment charging the plaintiff with offences alleged to have occurred on the 21st day of February 1995.

1184

ROSS ON CRIME

[16.6300]

See also Certiorari at [3.1100]; Declaration at [4.500]; Habeas corpus at [8.100]; Mandamus at [13.1100]; and Prerogative writ at [16.3500].

PROPENSITY Meaning ..................................................................................................................................... Descriptions ............................................................................................................................... Legislation ................................................................................................................................. Need for judge’s direction ........................................................................................................ Possible propensity direction ....................................................................................................

[16.6300] [16.6305] [16.6310] [16.6315] [16.6320]

[16.6300] Meaning In Pfennig v The Queen (1995) 182 CLR 461; 77 A Crim R 149; 127 ALR 99 Mason CJ, Deane and Dawson JJ said (at 464–465; 101; 150): There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term “similar fact” evidence is often used in a general but inaccurate sense.

[16.6305] Descriptions In R v Handy [2002] 2 SCR 908; 213 DLR (4th) 385; 164 CCC (3d) 481 (SCC) the court approved the appeal against conviction. Binnie J delivering the judgment of the court said (at 944; 415; 509–510 [91]): References to “calling cards” or “signatures” or “hallmarks” or “fingerprints” similarly describe propensity at the admissible end of the spectrum precisely because the pattern of circumstances in which an accused is disposed to act in a certain way are so clearly linked to the offence charged that the possibility of mere coincidence, or mistaken identity or a mistake in the character of the act, is so slight as to justify consideration of the similar fact evidence by the trier of fact. The issue at that stage is no longer “pure” propensity or “general disposition” but repeated conduct in a particular and highly specific type of situation. At that point, the evidence of similar facts provides a compelling inference that may fill a remaining gap in the jigsaw puzzle of proof, depending on the view ultimately taken (in this case) by the jury.

[16.6310] Legislation Some legislation permits the introduction of propensity evidence. Qld: Evidence Act 1977 s 132A (similar fact evidence); SA: Evidence Act 1929 ss 34O–34T (see R v Maiolo (No 2) [2013] SASFC 36 for discussion of this section); WA: Evidence Act 1906 s 31A (propensity and relationship evidence). For a consideration of this section, see Stubley v WA [2011] HCA 7; Uniform Evidence Acts allow evidence of tendency and coincidence (ss 97 and 101). See also Tendency at [20.700].

Propensity evidence is often led in the following settings Similar facts; Joinder of counts;

[16.6320]

PROPENSITY

1185

Joinder of accused; Uncharged acts; Motive; Relationship; Conspiracy; The business of trafficking or supplying drugs; General deficiency; Possession of incriminating articles and implements of crime; Prosecution propensity evidence because of how the defence is conducted; Defence: propensity of accused; Defence: propensity of another; Defence: wrongful acts of police on other occasions; Defence: introducing ones own prior misdeeds.

[16.6315] Need for judge’s direction A judge’s direction to the jury against propensity reasoning is necessary in the following situations, or a combination of them: 1. Where uncharged acts are admissible as relationship evidence. 2. Where there is one complainant but many counts on the indictment. 3. Where there is more than one complainant and many counts but the evidence of each complainant is not admissible on the count about any other complainant. 4. Where there is more than one complainant, many counts and some or all of the evidence of the complainants is cross-admissible as similar facts.

[16.6320] Possible propensity direction Even though propensity evidence has been properly admitted, a propensity direction is not always necessary.1 If such a direction is called for, a judge should not use the word “propensity”.2 The judge, tailoring the direction to the facts of the case, might say: 1. I give you these directions of law which you must accept and apply to the evidence. 2. The evidence (identifying it) is introduced for a limited purpose.3 3. That limited purpose is to show only (relationship, tendency, motive and so on). 4. Before you can rely on such evidence you must first accept it. And before you can accept it you must scrutinise it with great care.4 1 KRM v The Queen (2001) 206 CLR 221; 118 A Crim R 262; 178 ALR 385. 2 R v Vonarx [1999] 3 VR 618 at 624–625 [21] (CA); KRM v The Queen (2001) 206 CLR 221; 118 A Crim R 262; 178 ALR 385 at 259 [113]. 3 R v Vonarx [1999] 3 VR 618 at 625 [22]; Owen v The Queen (2001) 123 A Crim R 183 at 185 [8]. 4 R v Murray (1987) 11 NSWLR 12; R v BWT (2002) 54 NSWLR 241; 129 A Crim R 153 at [32].

1186

ROSS ON CRIME

[16.6500]

5. If you do not accept the evidence you must not reason that the accused was responsible for some other reprehensible conduct.5 6. Rather, if you have any doubt about any one aspect of the (complainant’s) evidence you may use that doubt to assess the overall credibility of the (complainant’s) evidence. That is to say, does it give rise to a reasonable doubt on the offence charged?6 7. If you do accept that evidence, you accept it only for the limited purpose I described. You must not reason from that acceptance that the accused is the type of person likely to commit the offence charged.7 8. I repeat that you can only convict on an offence charged if you are satisfied beyond reasonable doubt and that each count needs separate consideration. If the limited evidence I have referred to is the only evidence you accept, that evidence cannot satisfy you beyond reasonable doubt.8

PROPERTY OFFENCES Complexity ................................................................................................................................ Deception .................................................................................................................................. Larceny ...................................................................................................................................... Stealing ...................................................................................................................................... Theft .......................................................................................................................................... Receiving ...................................................................................................................................

[16.6500] [16.6505] [16.6510] [16.6515] [16.6520] [16.6525]

[16.6500] Complexity The law in this area is complex. It varies between jurisdictions. Nevertheless many concepts overlap. Early recourse should be had to CR Williams, Property Offences (Lawbook Co., Sydney 1999). See also Abandonment at [1.100]; Blackmail and extortion at [2.2700]; Burglary at [2.4500]; Claim of right at [3.2200]; Defrauding at [4.900]; Dishonesty at [4.3400]; Housebreaking at [8.2100]; Recent possession at [18.1200]; and Robbery at [18.3800].

[16.6505] Deception Obtaining property by deception Cth: Criminal Code Act 1995 s 134 (property or financial advantage); Vic: Crimes Act 1958 s 81 (property); s 82 (financial advantage); ACT: Criminal Code 2002 s 326 (property); s 332 (financial advantage); 5 R v Dolan (1992) 58 SASR 501 at 503 (CCA); R v Vonarx [1999] 3 VR 618 at 625 [23]. 6 R v Markuleski (2001) 52 NSWLR 82; 125 A Crim R 186 [186] - [191], [263] (CCA); R v S (2002) 129 A Crim R 339 at 349 [29] (Qld CA). 7 Donnini v The Queen (1972) 128 CLR 114 at 123; B v The Queen (1992) 175 CLR 599; 110 ALR 432; 63 A Crim R 225 at 619; R v J (No 2) [1998] 3 VR 602 at 641 (CA); R v Best (1998) 4 VR 603; 102 A Crim R 56 at 614–615 (CA); KRM v The Queen (2001) 206 CLR 221; 118 A Crim R 262; 178 ALR 385 at 234–235 [38] and 246; R v Juric (2002) 4 VR 411; 129 A Crim R 408 at 450 [78] (CA). 8 R v Best (1998) 4 VR 603; 102 A Crim R 56 at 618 (CA); R v TJB (1998) 4 VR 621; 102 A Crim R 74 at 633 (VR) (CA).

[16.6505]

PROPERTY OFFENCES

1187

NZ: Crimes Act 1961 s 240 (property etc).

“by any deception” In Metropolitan Police Commissioner v Charles [1977] AC l77; [1976] 3 All ER 112; 63 Cr App R 252 (HL) Lord Edmund Davies said (at 192; 122; 268): R v Kovacs [1974] 1 WLR 370;1 All ER 1236: 58 Cr App R 412 correctly decided that, in the words of Lawton, LJ … Section 16(1) does not provide either expressly or by implication that the person deceived must suffer any loss arising from the deception. What does have to be proved is that the accused by deception obtained for himself or another a pecuniary advantage. What there must be is a causal connection between the deception used and the pecuniary advantage obtained.

Approved: R v Clarkson (1987) VR 962; 25 A Crim R 277 at 980, 297 (VR) (CCA); R v Ho (1989) 39 A Crim R 145 at 147 (NSW CCA); Jamieson v The Queen (1993) 177 CLR 574; 67 A Crim R 150; 116 ALR 193 per Gaudron J at 592–593; 205; 162. Issuing a false statement of claim is not an offence under s 178BA of the Crimes Act 1900 (NSW): Jamieson v The Queen (1993) 177 CLR 574; 67 A Crim R 150; 116 ALR 193.

“Obtaining” Whether a valuable thing was obtained may be affected by the nature of the item. In R v Kron (1995) 78 A Crim R 474 (NSW CCA), Gleeson CJ said (at 477): When it is alleged that an accused person has, by deception, obtained a valuable thing, the question of when, and by what means, it may be said to have been obtained, may well be affected by the nature of the thing in question:

Jurisdiction In R v Kron (1995) 78 A Crim R 474 (NSW CCA) Gleeson CJ said (at 476–477): In order to make out the offence, and to establish jurisdiction, it was, therefore necessary for the Crown to show that the appellant obtained the Memorandum of Transfer in New South Wales. This matter only had to be established on the balance of probabilities: “Thompson” (1989) 169 CLR 1.

See also R v Collins (1986) 44 SASR 214; 32 A Crim R 31 (CCA); Cth: Criminal Code Act 1995 ss 15.4, 134.1(10); Vic: Crimes Act 1958 s 81(2); ACT: Criminal Code 2002 ss 62–67.

Dishonesty See Dishonesty at [4.3400].

“Financial advantage” Paying a valueless cheque to gain an extension of time in which to pay is considered a financial advantage: Matthews v Fountain [1982] VR 1045 (Gray J). In Fisher v Bennett (1987) 85 FLR 469 (ACT) Miles CJ approved Matthews v Fountain [1982] VR 1045 then said (at 472):

1188

ROSS ON CRIME

[16.6510]

I do not think that it is necessary to resort to dictionary definitions of the word “financial” or the word “advantage”. I think that it is inescapable that an advantage involves a particular situation which is more beneficial to the person concerned than another relevant situation with which it is compared. A financial advantage involves a situation which from the financial aspect is more beneficial than another situation. When one speaks of obtaining a financial advantage by deception, there is imported in my view the notion of improving a financial situation by means of that deception.

See also R v Vasic (2005) 11 VR 380; 155 A Crim R 26 (CA).

[16.6510] Larceny Larceny is a common law offence in New South Wales (Crimes Act 1900 ss 116 and 117).

Definition In Ilich v The Queen (1987) 162 CLR 110; 26 A Crim R 232; 69 ALR 231 Wilson and Dawson JJ said (at 123; 241; 242): At common law, larceny is committed by a person who, without the consent of the owner fraudulently and without claim of right made in good faith, takes and carries away anything capable of being stolen with intent at the time of such taking permanently to deprive the owner thereof.

Offence against possession, not against ownership In Ilich v The Queen (1987) 162 CLR 110; 26 A Crim R 232; 69 ALR 231 Wilson and Dawson JJ said (at 123–124; 241; 242–243): Because larceny at common law requires a trespass – it is sometimes described as an offence against possession – a person lawfully in possession of something cannot be guilty of larceny of it. “Hence, even if consent to the mere taking of possession was obtained by fraud, but there was then no animus furandi, it is not larceny at common law if the chattel is subsequently permanently misappropriated. A bailee could not be guilty of larceny at common law of the goods bailed, so long as the bailment continued”: R v Ward (1938) 38 SR (NSW) 308 at 314 per Jordan CJ; Slattery v R (1905) 2 CLR 546.

See also R v Davies [1970] VR 27 at 29 (CCA).

An owner can be convicted of larceny of his own goods R v Hough (1894) 15 LR (NSW) 204 (CCA); R v Cameron (1924) 24 SR (NSW) 302 (CCA).

Person in possession cannot commit larceny In Ilich v The Queen (1987) 162 CLR 110; 26 A Crim R 232; 69 ALR 231 Wilson and Dawson JJ said (at 123–124; 241; 242): Because larceny at common law requires a trespass – it is sometimes described as an offence against possession – a person lawfully in possession of something cannot be guilty of larceny of it.

Taking and carrying away (asportation) In Wallis v Lane [1964] VR 293 Herring CJ said (at 295): [I]t is sufficient asportation if there is a removal of the property from the spot where it was originally placed with intent to steal.

[16.6510]

PROPERTY OFFENCES

1189

Followed: Police v Schaffer (1994) 72 A Crim R 242 at 248 (SA Matheson J).

Appropriation In Foster v The Queen (1967) 118 CLR 117 Barwick CJ said (at 121): It involved an intention on the part of the applicant to assume ownership of the gun, to deprive Baker permanently of it, to deprive him of the property in it. I use these three expressions, which are several ways of establishing the same essential element of larceny, namely, the intention to appropriate the goods to himself. To intend to deprive the true owner permanently of the possession of the goods is one form of the requisite intention. An intention to deprive him of his property in the goods is another, that is, an intention to appropriate the goods as distinct from merely to assume possession of them.

Intention to steal The Latin term is animus furandi. The intent to steal must accompany the taking. In R v Davies [1970] VR 27 (CCA) it was stated (at 30): [T]he general statement of the elements of larceny requires that an intention to steal must accompany the taking of the property.

That proposition must be true otherwise every receiver would be guilty of larceny (see R v Davies [1970] VR 27 at 29).

Intention to deprive the possessor permanently Larceny: R v Duru [1974] 1 WLR 2; [1973] 3 All ER 715; 58 Cr App R 151 (CCA): procuring purchasers to supply false information for mortgage applications so employer would part with cheques to purchasers; Lowe v Hooker [1987] Tas R 153; (1987) 35 A Crim R 90 (Cosgrove J): taking goods from a store then returning them for a refund. No larceny: R v Warner (1970) 55 Cr App R 93 (CCA): taking a box of tools intending to use them and then return them; Oxford v Moss (1978) 68 Cr App R 183 (CCA): taking a proof of an exam paper, reading it and returning it; R v Easom [1971] QB 315; [1971] 2 All ER 945; 55 Cr App R 410: taking a handbag to see if it contained valuables, intending to return it and anything not worth keeping.

Intention later to restore the goods Crimes Act 1900 (NSW) s 118 118. Where, on the trial of a person for larceny, it appears that the accused appropriated the property in question to his own use, or for his own benefit, or that of another, but intended eventually to restore the same, or in the case of money to return an equivalent amount, such person shall not by reason only thereof be entitled to acquittal.

In Foster v The Queen (1967) 118 CLR 117 Barwick CJ said (at 121): Thus, if the intention is to deprive the true owner of possession for a limited time, larceny is not made out. But if the intention of the taker is to exercise ownership of the goods, to deal with them

1190

ROSS ON CRIME

[16.6515]

as his own, an intention later to restore the property in the goods will not prevent the original taking being larcenous. Of course, in truth the thief cannot alter the ownership of the goods: but he can have an intention to do so.

Thing capable of being stolen A thing capable of being stolen must be a specific moveable item. In Croton v The Queen (1967) 117 CLR 326 Barwick CJ said (at 330): [A]part from any special statutory provision, larceny can only be committed of property which is capable of physical possession and removal.

R v White (1904) 21 WN (NSW) 104 (CCA): a piece of paper. Trumbich v Weston [1986] WAR 169 (Rowland J): a cheque form. Parsons v The Queen (1999) 195 CLR 619; 160 ALR 531: cheques obtained by false representations.

Prohibited drug A prohibited drug can be stolen from a person who in turn has committed an offence by having it in his possession. R v Waterhouse (1911) 11 SR (NSW) 217 (CCA) (approved (1911) 13 CLR 228): opium. R v Anic (1993) 61 SASR 223; 68 A Crim R 313 (CCA); Vines v The Queen (1993) 11 WAR 517; 70 A Crim R 113 (CCA): cannabis.

Telephone calls Unauthorised telephone calls do not constitute appropriation of property: Akbulut v Grimshaw [1998] 3 VR 756; (1997) 96 A Crim R 599 (Hampel J).

[16.6515] Stealing Legislation Cth: Criminal Code Act 1995 s 131 (theft); Qld: Criminal Code s 391; WA: Criminal Code s 371; Tas: Criminal Code s 226; NT: Criminal Code s 209; NSW: Crimes Act 1900 ss 116 and 117 (larceny at common law); Vic: Crimes Act 1958 ss 72–74 (theft); SA: Criminal Law Consolidation Act 1935 s 134 (theft); ACT: Criminal Code 2002 s 308 (theft); NZ: Crimes Act 1961 s 219 (theft or stealing). For New South Wales see also Property offences (Larceny) at [16.6510]. For Commonwealth, Victoria, South Australia and Australian Capital Territory see also Property offences (Theft) at [16.6520].

Proof that property belonged to a specific person Normally it is not necessary to prove that property dishonestly appropriated belonged to a specific person:

[16.6515]

PROPERTY OFFENCES

1191

Hibbert v McKiernan [1948] 2 KB 142; 1 All ER 860 (CCA); R v Gill [1963] 1 WLR 841; [1963] 2 All ER 688; 47 Cr App R 166 (CCA); Lodge v Lawton [1978] VR 112 (FC); R v King (1978) 19 SASR 118 (CCA); Bromberg v O’Brien (1990) 101 FLR 270; 72 NTR 27 (FC); Police v Schaffer (1994) 72 A Crim R 242 (SA Matheson J); R v McKiernan [2003] 2 Qd R 424; (2003) 138 A Crim R 152 (CA): an old church bell. If ownership by a specific person is needed to prove the theft see Trainer v The King (1906) 4 CLR 126. This was a sheep stealing case in which the theft could not be proved without evidence of who owned the sheep. Griffith CJ said (at 125): If the name of the person is not known and he is dead or gone and the stealing is proved then the charge may be laid as stealing from a person unknown. But if it is not known whether the goods were stolen or not you cannot get over the difficulty by saying the goods were stolen from a person unknown.

See also Castle v The Queen (1990) 50 A Crim R 391 (WA CCA); Burke v The Queen (1997) 96 A Crim R 334 (WA CCA). In Mumford v The Queen (1989) 61 NTR 1; 95 FLR 358 (CCA) Mrs K bought a caravan using a loan from Custom Credit for $6000. The legal owner was Custom Credit. The accused, at the request of Mrs K, sold the van and was supposed to repay the loan money, but didn’t. A conviction of stealing $6000 from Mrs K was upheld.

Money given subject to a direction Money given subject to a direction remains the property of the donor until the direction is complied with: Parker v The Queen (1997) 186 CLR 494; 143 ALR 293.

Money of accused mixed with money of another In Parker v The Queen (1997) 186 CLR 494; 143 ALR 293 the applicant had put the money of another into his own bank account. Appeal allowed. Withdrawals were deemed to be of his own money first. See also R v Balnaves (2000) 77 SASR 433; 117 A Crim R 85 (CCA).

Supermarket cases Switching a lower price label to goods is theft when the lower price is paid: R v Morris [1984] AC 320; [1983] 3 All ER 288; 77 Cr App R 309 (HL). In concealing a cassette down the front of the trousers inside a Coles supermarket Milhouse J found an asportation and intention to steal: Basset v L (1984) 112 LSJS 167 (SA). If it can be proved that a person has no intention of paying for the goods, the offence is complete notwithstanding the person has not yet gone past the checkout: Humes v Townsend (1989) 4 WAR 196 (Pidgeon J) especially at 199.

1192

ROSS ON CRIME

[16.6520]

See also Police v Schaffer (1994) 72 A Crim R 242 (SA Matheson J); Martin v Puttick [1968] 2 QB 82; [1967] 1 All ER 899; (1967) 51 Cr App R 272 (QBD).

Stealing or receiving, theft or handling when the evidence is consistent with both In Gilson v The Queen (1991) 172 CLR 353; 100 ALR 729; 53 A Crim R 344 Mason CJ, Deane, Dawson and Toohey JJ said (at 363; 735; 350–351): In Victoria in R v Bruce [1988] VR 579 at 601, Gray J, with the concurrence of the other members of the court, expressed his agreement with the view now propounded in Archbold that, where an accused is charged in the alternative with theft or handling and the evidence is consistent with either count, he should be acquitted altogether. On the other hand, in Queensland and Western Australia the Criminal Codes provide that where stealing and receiving property are charged in the alternative and the jury find specially that the accused either stole the property or received it knowing it to be stolen, but are unable to say which of those offences was committed, the accused is not entitled to be acquitted, but the court shall enter a conviction of the offence for which the lesser punishment is provided: the Criminal Code, s 568(4); the Criminal Code (WA), s 586(4). The Code provisions provide a satisfactory solution to the problem. It is clearly unsatisfactory to require a jury to acquit an accused entirely when they are convinced beyond reasonable doubt that he was guilty of either theft or receiving, merely because, as a result of being required to apply the same standard of proof, they cannot determine which offence he committed. The law must surely be brought into disrepute if it is so bereft of answers that an accused who is clearly guilty of one offence or the other is allowed to escape conviction altogether.

Gilson v The Queen (1991) 172 CLR 353; 100 ALR 729; 53 A Crim R 344 decided that in South Australia receiving was a lesser offence than stealing and could be left as an alternative. See also R v Marijancevic (2001) 3 VR 611; 127 A Crim R 461 (CA).

[16.6520] Theft The offence Cth: Criminal Code Act 1995 s 131.1; Vic: Crimes Act 1958 s 72(1); SA: Criminal Law Consolidation Act 1935 s 134; ACT: Criminal Code 2002 s 308. The Commonwealth s 131.1 says: (1) A person is guilty of an offence if: (a) the person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property; and (b) the property belongs to a Commonwealth entity. Penalty: Imprisonment for 10 years.

[16.6520]

PROPERTY OFFENCES

1193

(2) For the purposes of this Code, an offence against subsection (1) is to be known as the offence of theft. (3) Absolute liability applies to the paragraph (1)(b) element of the offence of theft.

The Victorian Crimes Act 1958 s 72(1) says: A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.

The section was imported from the English Theft Act 1968 (UK). It came into force in Victoria in 1974. The Australian Capital Territory s 308 is almost the same as the Victorian. The South Australian s 134 says: (1) A person is guilty of theft if the person deals with property – (a) dishonestly; and (b) without the owner’s consent; and (c) intending – (i) to deprive the owner permanently of the property; or (ii) to make a serious encroachment on the owner’s proprietary rights. Maximum penalty: (a) for a basice offence — Imprisonment for 10 years; (b) for an aggravated offence—imprisonment for 15 years. . (2) A person intends to make a serious encroachment on an owner’s proprietary rights if the person intends – (a) to treat the property as his or her own to dispose of regardless of the owner’s rights; or (b) to deal with the property in a way that creates a substantial risk (of which the person is aware) – (i) that the owner will not get it back; or (ii) that, when the owner gets it back, its value will be substantially impaired.

Dishonesty The English decisions have not been followed: R v Salvo [1980] VR 401; (1979) 5 A Crim R 1 (CCA); R v Brow [1981] VR 783 (CCA); R v Bonollo [1981] VR 633; (1980) 2 A Crim R 431 (CCA); Peters v The Queen (1998) 192 CLR 493; 96 A Crim R 250; 151 ALR 51. See also Dishonesty at [4.3400].

1194

ROSS ON CRIME

[16.6525]

Appropriation Consent of the owner In R v Roffel [1985] VR 511; (1984) 14 A Crim R 134 (CCA) Young CJ said (at 513; 136): It follows as a matter of principle that although the Crown does not have to prove that a defendant did not have the consent of the owner to take the property alleged to have been stolen, where it appears that the defendant had the consent of the owner, there can be no appropriation within the section: see R v Morris [1984] AC 320 at 332 per Lord Roskill.

There will be an appropriation where possession was gained by consent if the consent was obtained: • by deception or fraud: DPP v Gomez [1993] AC 442; [1993] 1 All ER 1; (1992) 96 Cr App R 359 (HL); R v Baruday [1984] VR 685; (1984) 13 A Crim R 190 (CCA). • where the owner was too feeble-minded to give proper consent: R v Hinks [2001] 2 AC 241; [2000] 4 All ER 833 (HL). Intent permanently to deprive: R v Dardovska (2003) 6 VR 628; 137 A Crim R 580 (CA). There can be appropriation without loss: Wheatley v Commissioner of Police [2006] 1 WLR 1683 (PC).

[16.6525] Receiving Legislation Cth: Criminal Code Act 1995 s 132; Qld: Criminal Code s 433; WA: Criminal Code s 414; Tas: Criminal Code s 258; NT: Criminal Code s 229; NSW: Crimes Act 1900 s 188; Vic: Crimes Act 1958 s 88 (handling); ACT: Criminal Code 2002 s 313; NZ: Crimes Act 1961 s 246.

The offence It is an offence to receive stolen property knowing it to be stolen. In Victoria the offence is handling. The prosecution must prove a knowledge that the property is stolen; R v White (1859) 1 F & F 665; 175 ER 898. In R v McConnell (1993) 69 A Crim R 39 (NSW CCA) Cripps JA with whom Wood J agreed began his judgment (at 39–40): For the Crown to succeed on a charge of receiving stolen property, it must establish that the property which the accused received was stolen and that the accused believed it was stolen. The Crown is not required to establish that the accused knew for certain about the theft. It is sufficient if it establishes he or she believed the property was stolen. It is important to emphasise it is the accused’s actual state of mind that must be proved and not the state of mind of a hypothetically reasonable person, though doubtless what an ordinary person would have believed in the circumstances is relevant. The Court is concerned with what the accused actually believed not with what he ought to have believed. (authorities cited)

[16.6525]

PROPERTY OFFENCES

1195

In R v Raad [1983] 3 NSWLR 344 (CCA) Street CJ said of “knowing” (at 346): It is a state of mind of a far greater confidence in the truth of that which is believed than the state of mind which could be described more accurately as mere suspicion. The law has been consistently accepted since R v White (1859) 1 F & F 665; 175 ER 898 as involving an actual belief of this degree of confidence in the truth of that which is believed.

Wilful blindness is not sufficient: R v Fallon (1981) 28 SASR 394; 4 A Crim R 411 (CCA); Anderson v Lynch (1982) 17 NTR 21 (Nader J); R v Schipanski (1989) 17 NSWLR 618 (CCA); R v English (1993) 10 WAR 355; 68 A Crim R 96 (CCA). Recklessness or negligence is not sufficient: R v Parker [1974] 1 NSWLR 14 (CCA).

Knowledge that goods stolen must exist at time of receipt The prosecution must prove that the accused obtained possession knowing the goods were stolen. Later knowledge that the goods were stolen is insufficient: R v Patterson [1906] QWN 32 (CCA) (Crown Cases Reserved); R v Parker [1974] 1 NSWLR 14 (CCA). In R v Johnson (1911) 6 Cr App R 218 (CCA) Grantham J said (at 220): [T]he innocent receipt of a chattel, and a subsequent dishonest appropriation of it after knowledge that it is stolen do not constitute the crime of receiving unless something takes place after the guilty knowledge which can be regarded either as a fresh Act of receiving or as completing the original receiving if the latter was in fact incomplete at the time.

Approved: R v Balogh (1955) 72 WN (NSW) 108 (CCA). In Murphy v Porter (1984) 12 A Crim R 38 (SA), R v Johnson (1911) 6 Cr App R 218 was also approved (at 42). Jacobs J said (at 41): [I]t is trite law that the informant must prove that the defendant had a guilty mind at the time of receipt. Innocent receipt followed by guilty knowledge is not enough.

In De Bono v Neilsen (1996) 88 A Crim R 46 (Vic) Coldrey J said (at 52): [T]he onset of any subsequent knowledge or belief on the part of a defendant that goods previously received by him had been stolen, does not create an offence of receiving.

Proof that property is stolen The prosecution must prove that the property is stolen. Proof that property is stolen is also necessary in conspiracy to receive stolen property: R v Barbouttis (1995) 37 NSWLR 256; 82 A Crim R 432 (CCA).

Inferences from circumstances In R v Sbarra (1918) 13 Cr App R 118 (CCA) Darling J said (at 120): The court desires to express the law in the following terms. The circumstances in which a defendant receives goods may of themselves prove that the goods were stolen, and further may prove that he knew it at the time when he received them. It is not a rule of law that there must be other evidence of the theft. We have come to the conclusion that the circumstances here were enough to prove that the goods had been stolen.

1196

ROSS ON CRIME

[16.6525]

Proof by admission R v Gibbons [1971] VR 79 at 8l (CCA). In Mabbott v The Queen [1990] WAR 323; (1989) 40 A Crim R 243 (CCA) Kennedy J said after examining authorities (at 331–332, 251): Although there are suggestions from time to time that admissions made without knowledge of the facts and based only upon hearsay are inadmissible, the accepted Australian view is clearly that they are admissible, although their weight must be considered carefully and they may be regarded as not being of any evidentiary value: see Anglim v Thomas [1974] VR 363 and Brady (1980) 2 A Crim R 42. A contrary view has been taken in New Zealand: Police v Coward [1976] 2 NZLR 86.

Possession The prosecution must prove possession. In R v Cross (1995) 84 A Crim R 242 (NSW CCA). Kirby P said (at 250): In the present case, for the Crown to show that the appellant was in possession of the car, in order to establish the inference that the appellant had received it knowing it to be stolen, it did not have to establish “possession” in the same way as it would for crimes involving possession as part of the definition of the offence (such as possession involving drugs): see McCarthy and Ryan (1993) 71 A Crim R 395 (at 400). What the Crown must show is that, at the time that possession was alleged, the appellant had the ability to control the vehicle to the exclusion of any person, other than other joint possessors, not acting in concert: see Moors v Burke (1919) 26 CLR 265; Saleam (at 114). This ability may be physical, in the sense that the appellant had actual manual control over the vehicle or non physical in the sense that it was in a place where the appellant alone had the right to take actual manual control of it: see Collins (unreported, Court of Criminal Appeal, NSW, 10 December 1992). The circumstances of possession depend on the nature of the property.

In R v McCarthy and Ryan (1993) 71 A Crim R 395 (NSW CCA) Hunt CJ at CL said (at 400): The circumstances in which the possession of recently stolen property can give rise to that inference necessarily vary according to the nature of the property itself. Physical possession of a motor vehicle (in the sense that the accused has Actual manual control over it by driving it) would be sufficient, as would the fact that it was garaged in premises over which the accused alone had the right to take such Actual manual control over it.

See also Recent possession at [18.1200].

Sentencing In R v Park (unreported, Vic CCA, 3 December 1982) McInerney J said of a large burglary by professional criminals: That kind of professional crime cannot succeed unless it is backed up by people who are prepared to undertake disposal of the goods.

In R v Hayblum (unreported, Vic CCA, 2 April 1982) Young CJ said: [O]f course it has been said many times in the past that if there were no receivers there would be very few thieves.

[16.6705]

PROSECUTION

1197

PROSECUTION Prosecution titles ....................................................................................................................... Change in prosecution case to be identified early and precisely ............................................ The Hilton bombing case ......................................................................................................... Conspiracy ................................................................................................................................. Other cases where appeals allowed due to prosecution case change ..................................... Prosecution not to challenge rulings in earlier trial ................................................................ Retrial on changed prosecution case is unfair ......................................................................... Private prosecution ....................................................................................................................

[16.6700] [16.6705] [16.6710] [16.6715] [16.6720] [16.6725] [16.6730] [16.6735]

[16.6700] Prosecution titles Prosecution titles vary according to place and the nature of the proceeding.

Indictable offences Historically all jurisdictions had indictable offences charged in the name of “The Queen”. Now in Western Australia and Tasmania an indictment must be commenced in the name of the state while in Victoria it is in the name of the Director of Public Prosecutions.

Summary offences Most jurisdictions have summary offences charged in the name of the police informant. Thus, in a defendant’s appeal, that police informant will be named. Examples are: Gumbinyarra v Teague (2003) 12 NTLR 226 (Mildren J); Thomas v Campbell (2003) 9 VR 136 (Nettle J); Grbic v Pitkethly (1992) 38 FCR 95; 65 A Crim R 12; 110 ALR 577 (FCA). Yet in Western Australia a prosecution commenced by a police officer is done in the name “WA Police”: Criminal Procedure Act 2004 (WA) Sch 1 cl 3(2)(a). The same position exists in South Australia: Llewellyn v Police (2005) 91 SASR 418 (Gray J).

[16.6705] Change in prosecution case to be identified early and precisely In R v Tangye (1997) 92 A Crim R 545 (NSW CCA), Hunt CJ at CL said (at 556): The obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence. It is also to indicate, in conceptual terms, the nature of the Crown case. This is to assist both the judge and counsel for the accused, more so than the jury. It is essential that any doubt about the nature of the Crown case, conceptually, be removed at that early stage. If it is not done at that stage, or if there had been some change in its nature since the case was opened, it is vital that it be identified with some precision, in the absence of the jury, before counsel commence their final addresses. It becomes very difficult for the judge sensibly to make alterations to directions already given once it is learnt that the issues are different to those which had been assumed to exist.

In King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 436; 68 ALR 27 the trial judge had put an altered case on the prosecutor’s application. The Court of Criminal Appeal allowed the appeal. In the High Court, the real point was whether there should be a retrial. The majority said there should. Dawson J, delivering the leading judgment, said (at 435–436; 338; 444–445): The identity of the killer was not essential to King’s guilt. That was a case which was open upon the pleading because King was simply charged as a principal. It was open on the evidence because it was clearly possible for the jury to find that the deceased was murdered without being able to

1198

ROSS ON CRIME

[16.6710]

identify the killer. It was not the case which was presented by the Crown up to the point at which the redirection was given. While it was open on the evidence and on the indictment, it ought not to have been concealed until the last moment. For that reason King was entitled to have his conviction quashed.

Deane J (in the minority who would not have ordered a retrial) said (at 428–429; 382–383; 439): Because the Crown had adopted the undesirable approach of framing its indictment in the broadest terms it had subjected the applicant to the wide jeopardy of a trial on that indictment. But once the Crown elected at the trial to confine its case against the applicant with the result that the trial was conducted on that basis, it could not legitimately expect that it could, after evidence and addresses had been completed, seek, through the trial judge’s summing up, to obtain a conviction on some other basis if it became apprehensive that the case which it had presented might be rejected by the jury.

[16.6710] The Hilton bombing case R v Anderson (1991) 53 A Crim R 421 (NSW CCA) was an appeal against murder convictions. The prosecution case was as follows. The main witness, Pederick, planted a bomb in a garbage bin outside the George Street entrance of the Hilton Hotel. It was done at the accused’s instigation for a political purpose. The target was Indian Prime Minister Desai, but Sri Lankan President Jayawardene was mistaken for Mr Desai. The explosion was due at soon after 2pm when the dignitaries were arriving. Pederick was present but the bomb did not detonate. It went off next morning when the garbage was collected and three people were killed. Such was the prosecution opening. During the trial, the defence was able to show that Mr Desai arrived not at the George Street entrance but at Pitt Street. Further, Mr Jayawardene had arrived at 8am. In his closing address the prosecutor said that Pederick had been confused by not being asked the correct question in chief. Pederick meant that the bombing was intended for the departure of the group at 5pm. Gleeson CJ was severe in his criticism of the prosecutor. His Honour said (at 449): The Crown was permitted, in an unfair manner, to obscure a major difficulty concerning the reliability of the evidence of its principal witness. In particular, the Crown was permitted to represent that the difficulty was one resulting from a mistake on the part of the prosecuting authorities rather than one inherent in the witness’s story, and it was also permitted to attempt to resolve that difficulty by resort to submissions that should not have been put, and by raising an hypothesis that was not reasonably open on the evidence.

And at 453: The trial of the appellant miscarried principally because of an error which resulted in large part from the failure of the prosecuting authorities adequately to check aspects of the Jayawardene theory. This was compounded by what I regard as an inappropriate and unfair attempt by the Crown to persuade the jury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evidence. I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant.

In Tran v The Queen (2000) 105 FCR 182; 180 ALR 62; 118 A Crim R 218 (FCA) the court said, in a joint judgment, (at 206; 85–86; 242 [147] – [148]): The reasoning in Anderson (1991) 53 A Crim R 421 demonstrates a well-established principle. Inappropriate and unfair conduct on the part of the Crown may result in a miscarriage of justice leading to the quashing of the conviction and the substitution of a verdict of acquittal. In that case the fact that the jury were told by both the prosecutor and the trial judge, that nothing said by counsel in their opening or closing remarks was to be regarded as evidence did not mean that what had been said by the prosecutor had not caused the trial to miscarry.

[16.6735]

PROSECUTION

1199

The same principles must apply to any theory advanced by the prosecutor for the jury’s consideration. Where the prosecution has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: R v Carr [2000] 2 Cr App R 149.

[16.6715] Conspiracy Appeals were allowed in the following conspiracy cases which changed during the trial: R v Wong (1988) 37 A Crim R 385 (NSW CCA); R v Mok (1987) 27 A Crim R 438 (NSW CCA).

[16.6720] Other cases where appeals allowed due to prosecution case change R v H (1995) 83 A Crim R 402 (SA CCA). R v S [1998] 3 VR 862; (1997) 98 A Crim R 80 (CA).

[16.6725] Prosecution not to challenge rulings in earlier trial In a trial in 1989, records of interview with the accused were excluded by the trial judge. There was a verdict of acquittal on armed robbery charges. In later trials for armed robbery, the prosecution sought to rely on records of interview with the same features as those which had been excluded in the earlier trial. The High Court declared that such a course was an abuse of process. See Rogers v The Queen (1994) 181 CLR 251; 74 A Crim R 462; 123 ALR 417 where Deane and Gaudron JJ (with whom Mason CJ agreed) said (at 280; 439; 483–484): [T]he statements which the prosecution wished to tender in the appellant’s forthcoming trial are, so far as voluntariness is concerned, exactly the same as those tendered in the 1989 proceedings. In the circumstances, tender of the records of interview constitutes a direct challenge to the 1989 determination which was a final determination, or became so, once verdicts were returned. The challenge is one which invites “the scandal of conflicting decisions”. And it jeopardises public confidence in the administration of justice: in a context where the onus of proof would be the same and where there is not claim of “fresh evidence” or fraud, a determination that the confessions were made voluntarily would undermine the incontrovertible correctness of the verdicts of acquittal returned in 1989; equally, there would be a shadow over any conviction on the charges in the present indictment if confessional statements are admitted in evidence notwithstanding the earlier judicial determination that the circumstances in which they were made did not support a finding of voluntariness.

See also Abuse of process at [1.1000].

[16.6730] Retrial on changed prosecution case is unfair See Retrial at [18.3400].

[16.6735] Private prosecution In Jones v Whalley [2007] 1 AC 63; [2006] 4 All ER 113 (HL) Lord Bingham said (at [16]): A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing the law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is

1200

ROSS ON CRIME

[16.6900]

no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest.

In Gilbert v Volkers (2004) 150 A Crim R 553; [2005] 1 Qd R 359 sub nom Gilbert v Volkers (2004) 150 A Crim R 553; [2005] 1 Qd R 359 (Holmes J) his Honour refused leave to bring a private prosecution for alleged sexual offences years before by a swimming teacher. The Director of Public Prosecutions had refused to prosecute. His Honour said (at 371; 566 [47]): On a criminal trial, the prosecution should be, and should appear to be, conducted on behalf of society as a whole, without the distracting winds of personal indignation or outrage.

Jim Byrnes claimed that he was defamed by a newspaper article. The Director of Public Prosecutions refused to prosecute. So Mr Byrnes brought his own criminal defamation proceedings against the writer and the newspapaer. Higgins CJ dismissed the charge and ordered costs against Mr Byrnes: Byrnes v Barry (2003) 151 ACTR 1 (Higgins CJ). He appealed and lost: Byrnes v Barry (2004) 150 A Crim R 471 (ACT CA).

PROSECUTOR General duties ........................................................................................................................... [16.6900] Signing the indictment .............................................................................................................. [16.6905] Prosecutors not to be zealots .................................................................................................... [16.6910] Not to take technical points ...................................................................................................... [16.6915] Obligation to act fairly ............................................................................................................. [16.6920] Prosecutor to establish the whole truth .................................................................................... [16.6925] Prosecutor is the adversary of the accused .............................................................................. [16.6930] Where prosecutor must make an election ................................................................................ [16.6935] Prosecutor should read the indictment before opening ........................................................... [16.6940] Evidence to be objected to by the defence .............................................................................. [16.6945] Opening the case ....................................................................................................................... [16.6950] Duty of disclosure ..................................................................................................................... [16.6955] Difference between evidence and statement ............................................................................ [16.6960] It does not matter that the witness has not adopted the statement ......................................... [16.6965] Prior convictions and credit matters ........................................................................................ [16.6970] Prosecution duty to provide statement of witness not proposed to be called ........................ [16.6975] Prosecution has no duty to disclose matters affecting the credibility of defence witnesses .... [16.6980] Duty to call witness .................................................................................................................. [16.6985] Duty to call all available material witnesses ........................................................................... [16.6990] Calling a witness and asking no questions .............................................................................. [16.6995] A prosecutor should not call witnesses needlessly .................................................................. [16.7000] Calling a hostile witness ........................................................................................................... [16.7005] Duty to recall a witness ............................................................................................................ [16.7010] Prosecution must not split its case ........................................................................................... [16.7015] Cross-examination ..................................................................................................................... [16.7020] Not to comment on an answer ................................................................................................. [16.7025] Final address must be temperate and fair ................................................................................ [16.7030] Prosecutor must not put an unsustainable theory .................................................................... [16.7035] Prosecutor not to express opinion in court .............................................................................. [16.7040] Prosecutor’s duty on sentence .................................................................................................. [16.7045] On appeal the prosecution may take a different stance about sentence ................................. [16.7050] Silence by the prosecutor during argument about non-custodial sentence ............................. [16.7055] Must not make public comment after trial .............................................................................. [16.7060]

[16.6900] General duties In R v Smith (2007) 179 A Crim R 453 (Qld CA) the appellant had been convicted of unlawful killing. The court set the conviction aside because of the inflammatory remarks of the prosecutor. McMurdo P, with whom the other judges agreed, set out the duties of a prosecutor. His Honour said (at 463–464 [38]):

[16.6920]

PROSECUTOR

1201

The role of prosecuting counsel is one of institutional significance in the criminal justice system. It differs from that of an advocate representing an accused person in a criminal matter or a party in civil litigation. A prosecutor represents the state. They should make any evidence which could be in the interests of an accused person available to the accused person or their counsel. Their duty is not to obtain a conviction by all or any means. It is to fairly and impartially place before the jury all relevant reliable evidence. They should then address the jury as to how to use this evidence according to the law when they deliberate to consider their verdict so that the jury can carry out their function of administering justice according to law and reaching a true verdict on the evidence...Prosecuting counsel must not adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused person. That does not mean that in properly carrying out the role the prosecutor’s cross-examination and jury address must be bland, colourless and lacking in the advocate’s flourish (citations omitted).

[16.6905] Signing the indictment Legislation in some jurisdictions requires the document initiating the charge to be signed. Cth: Director of Public Prosecutions Act 1983 s 9(2); Qld: Criminal Code s 560(2); Tas: Criminal Code s 310(2); NT: Criminal Code s 298(2); Vic: Criminal Procedure Act 2009 s 159(3); ACT: Director of Public Prosecutions Act 1990 s 7(2). Failure to have the proper signature on the indictment or presentment may invalidate the trial.

[16.6910] Prosecutors not to be zealots In R v Kennedy (1997) 94 A Crim R 341 (NSW CCA) Hunt CJ at CL said (at 353): Crown prosecutors should not let their understandable distaste for the factual situations of the individual case become zealotry in a misguided belief that convictions must be obtained at any cost.

[16.6915] Not to take technical points In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, Griffith CJ said (at 342): It used to be regarded as axiomatic that the Crown never takes technical points, even in civil proceedings, and a fortiori not in criminal proceedings.

Followed: DPP (Cth) v Saxon (1992) 28 NSWLR 263; 63 A Crim R 202 (NSW CCA) per Kirby P (at 267; 206). In King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 436; 68 ALR 27 Murphy J said (at 426; 380): The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manouevre legally available in order to secure a conviction.

[16.6920] Obligation to act fairly In SCI Operations Pty Ltd v Commonwealth (1996) 69 FCR 346; 139 ALR 595 (FCA) Beaumont and Einfeld JJ said (at 368; 613): [I]t is well established that the Crown must act, and be seen to act, as a model litigant.

1202

ROSS ON CRIME

[16.6920]

In Melbourne Steamship Co Ltd v Moorehead (1912) 15 CLR 333, Griffith CJ (at 342) spoke of: [T]he old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects.

In R v Lucas [1973] VR 693 (CCA) Smith ACJ said (at 696): For the purpose of establishing such an allegation of unfairness it is not necessary for the applicant to be able to point to the conduct of an identified person or persons concerned in the prosecution as having been blameworthy. It is sufficient for him to show that the totality of the acts of those concerned on behalf of the Crown in the preparation and conduct of the prosecution has operated unfairly against him … the duty of a prosecutor is to prosecute and not to defend, nevertheless it has long been established that a prosecution must be conducted with fairness towards the accused and with a single view to determining and establishing the truth.

Approved: Subramaniam v The Queen (2004) 79 ALJR 116; 211 ALR 1 in a judgment of the whole court (at 127–128; 16 [54]). In Lucas Newton J and Norris AJ said (at 705): It is very well established that prosecuting counsel are ministers of justice, who ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry, and that it is their duty to assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State. Consistently with these principles, it is the duty of prosecuting counsel not to try to shut out any evidence which the jury could reasonably regard as credible and which could be of importance to the accused’s case. We may add that these obligations which attach to prosecuting counsel apply, in our opinion, to officers in the service of the Crown, whose function it is to prepare the Crown case in criminal prosecutions. We may refer to R v Thursfield (1838) 8 Car & P 269; R v Puddick (1865) 4 F & F 497; 176 ER 662; R v Banks [1916] 2 KB 621; [1916-17] All ER Rep 356 at p 623; R v Guerin (1931) 23 Cr App Rep 39; R v Sugarman (1935) 25 Cr App Rep 109; Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432; [1961] 3 All ER 1074 at p 451; Boucher v The Queen [1955] Can LR ( Supreme Court) 16; R v Meyers [1958] VR 463; [1958] ALR 594; R v Lawson [1960] VR 37 at p 39; R v Hay and Lindsay [1968] Qd R 459, and Kenny’s Outlines of Criminal Law, 19th ed, pp 611-612.

See also Apostilides v The Queen (1983) 11 A Crim R 381 (Vic CCA) at 394–395. In King v The Queen (1986) 15 FCR 427; 161 CLR 423; 21 A Crim R 436; 68 ALR 27 Murphy J said (at 426; 380–381): Duty of Prosecutor The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction. In this regard, I adopt the words of Maxwell J in R v Bathgate (1946) 46 SR (NSW) 281, at 284–285. It cannot be too strongly impressed that the obligations of the Crown Prosecutor arise not merely by reference to the attitude adopted by the defence “Counsel for the prosecution … are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius–nor to be betrayed by feelings of professional rivalry–to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence”: Reg v Puddick. “But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as to prejudice the chance of the jury fairly trying the true issues. The sanction for the observance of the rules of evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed”: Maxwell v Director of Public Prosecutions; and Sugarman’s Case (1935) 25 Cr App Rep 109.

R v Bazley (1986) 21 A Crim R 19 (Vic CCA) at 29;

[16.6935]

PROSECUTOR

1203

R v Shaw (1991) 57 A Crim R 425 (Vic CCA); Randall v The Queen [2002] 1 WLR 2237 (PC); Montgomery v R [2013] NSWCCA 73

[16.6925] Prosecutor to establish the whole truth In Whitehorn v The Queen (1983) 152 CLR 657; 49 ALR 448; 9 A Crim R 107 Deane J said (at 663–664; 452; 110–111): Prosecuting counsel in a criminal trial represents the State. The accused, the court and the community are entitled to expect that, in peforming 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.

Followed: R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 at 465, 493 (CCA). In Livermore v The Queen (2006) 67 NSWLR 659 (CCA) the court in a joint judgment looked at Subramaniam v The Queen (2004) 79 ALJR 116 at 127–128 [54]. The court then said (at 669 [48]): We would add, with emphasis, that the role of the prosecutor must be performed without any concern as to whether the case is won or lost. As the High Court makes plain, the purpose of the prosecutor is to expose the truth which may or may not result in a conviction.

[16.6930] Prosecutor is the adversary of the accused In R v Karounos (1995) 63 SASR 451; 77 A Crim R 479 (CCA) King CJ said (at 465–466; 493): A criminal trial is an adversarial proceeding and prosecuting counsel is in an adversarial relationship with the accused. Prosecuting counsel is not expected to be free of partisanship in the same way as is a judge or juror. His partisanship should be tempered by his duty to act with fairness and detachment, to endeavour to establish the whole truth and to ensure that the trial is fair: Whitehorn v The Queen (1983) 152 CLR 657 at 663–664, per Deane J; R v Berens (1865) 4 F & F 842; 176 ER 815. Nevertheless counsel’s duty is to present the case for one side, namely the prosecution, in the adversarial contest, not to adjudicate impartially upon the issues between the parties.

In Deriz v The Queen (1999) 109 A Crim R 329 (WA CCA) Parker J said (at 339 [66]): [T]he impartial role of the prosecution in our adversarial system does not preclude advocacy which fully tests the defence case and which presents the case for a conviction clearly and forcefully and in the best light which it fairly bears.

[16.6935] Where prosecutor must make an election Sometimes one set of facts comprises more than one charge. In that circumstance, the prosecutor must elect on which charge to proceed. In Johnson v Miller (1937) 59 CLR 467 Dixon J said (at 489): Where an information or complaint is so drawn as to disclose more than one offence and one set of facts amounts to each of the various offences covered by the charge, as was the case in Johnson v Needham (1909) 1 KB 626; 100 LT 493, the proper course is to put the complainant to his election.

Applied: Hoessinger v The Queen (1992) 107 FLR 99; 62 A Crim R 146 at 106, 153 (NT CCA).

1204

ROSS ON CRIME

[16.6940]

See also Sanby v The Queen (1993) 117 FLR 218 at 233 (NT CCA). Duplicity at [4.5700]. Latent ambiguity at [12.100].

[16.6940] Prosecutor should read the indictment before opening It is hard to believe that a prosecutor would not read the indictment, but that is what happened in R v Peckham (1935) 25 Cr App R 125. The accused had pleaded not guilty to two indictments. The jury was impanelled to try one. The prosecutor opened on both. The conviction was quashed (there was another successful ground). The court said (at 129): [C]ounsel for the prosecution should always before opening acquaint themselves with the contents of the indictment by seeing either the actual indictment or a copy thereof.

Counsel for the accused should read the indictment too: R v Olivo [1942] 2 All ER 494; 28 Cr App R 173.

[16.6945] Evidence to be objected to by the defence Where counsel for the accused objects to the admission of evidence, that should be told to the prosecutor before opening. If the prosecutor can open to the jury without reference to that evidence he should, leaving a ruling by the judge to a time just before the witness is called whose evidence is objected to. Where the prosecutor takes the view he must open the evidence, then the judge should be asked to rule before the prosecutor’s opening: R v Cole (1941) 28 Cr App R 43.

[16.6950] Opening the case The prosecutor will outline the evidence on which the prosecution relies and explain the nature of the charge(s). See also Addresses at [1.2200].

[16.6955] Duty of disclosure See Disclosure at [4.2800]; Discovery at [4.3000]; and Subpoena at [19.6300].

[16.6960] Difference between evidence and statement When a witness gives evidence not in accordance with a statement it is the prosecutor’s duty to advise the defence. Where the discrepancy involves detail, such as an identification by description, the statement should certainly be handed over: Baksh v The Queen [1958] AC 167; 2 WLR 536 (HL).

[16.6965] It does not matter that the witness has not adopted the statement In R v Clarkson and Buckingham (unreported, Vic CCA, 19 November 1986) an accomplice named Miles gave evidence that he had seen one applicant hand cash to Mr Buckingham, a Justice of the Peace, so that bail would be granted to Mr Clarkson. The cash was a number of $20 notes, orange in colour, to the value of approximately $200. The accomplice had previously been spoken to by the police, and taped. The tape was transcribed. During that, the accomplice said that it was an envelope, not cash, that had been handed to Mr Buckingham. Mr Buckingham had been convicted of receiving a bribe. The Court said:

[16.6985]

PROSECUTOR

1205

The learned prosecutor, in mistaken belief, took the view that the document was not relevant because it had not been adopted by Miles. That, of course, was not the test because Miles could have affirmed or adopted the contents upon the document being put to him.

[16.6970] Prior convictions and credit matters The prosecutor must disclose to the defence the prior convictions of a witness, and information which may reflect materially on credibility. See also Disclosure at [4.2800].

[16.6975] Prosecution duty to provide statement of witness not proposed to be called See Disclosure at [4.2800].

[16.6980] Prosecution has no duty to disclose matters affecting the credibility of defence witnesses See Disclosure at [4.2800].

[16.6985] Duty to call witness In R v Apostilides (1984) 154 CLR 563; 53 ALR 445; 15 A Crim R 88 the Court said (at 575; 455; 97–98): We have come to the conclusion that the following general propositions are applicable to the conduct of criminal trials in Australia: 1. The Crown prosecutor alone bears the responsibility of deciding whether a person will be called as a witness for the Crown. 2. The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons. 3. Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness. 4. When charging the jury, the trial judge may make such comment as he then thinks to be appropriate with respect to the effect which the failure of the prosecutor to call a particular person as a witness would appear to have had on the course of the trial. No doubt that comment, if any, will be affected by such information as to the prosecutor’s reasons for his decision as the prosecutor thinks it proper to divulge. 5. Save in the most exceptional circumstances, the trial judge should not himself call a person to give evidence. 6. A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice.

These principles were affirmed by the High Court in Diehm v DPP (Nauru) [2013] HCA 42. See also M Hinton, “The prosecutor’s duty with respect to witnesses: pro domina verite” (2003) 27 Crim LJ 260-271.

1206

ROSS ON CRIME

[16.6990]

[16.6990] Duty to call all available material witnesses In Seneviratne v The King [1936] 3 All ER 36 (PC) Lord Roche said (at 49): Witnesses essential to the unfolding of the narratives on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.

Approved: Richardson v The Queen (1974) 131 CLR 116; 3 ALR 115 at 121 (CLR). In Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 Gaudron and Hayne JJ said (at 292–293; 184–185 [11]): If persons are able to give credible evidence about matters directly in issue at the trial, those facts, standing alone, would ordinarily suggest that the prosecution should call them. As has been pointed out in several decisions of this Court, a basic requirement of the adversary system of criminal justice is that the prosecution, representing the State, must 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” (emphasis added). That requires the prosecution to call all available material witnesses unless there is some good reason not to do so. The fact that a witness will give an account inconsistent with the prosecution case is not a sufficient reason for not calling that person. (citations omitted)

In Whitehorn v The Queen (1983) 152 CLR 657 Dawson J said (at 674): In Richardson v The Queen (1974) 131 CLR 116, this Court pointed out that although the choice made by a Crown Prosecutor of the witnesses to be called in support of the Crown case may be said to involve the exercise of a discretion, that means no more than that he is called upon to make a personal judgment bearing in mind the responsibilities of his office. It is not a discretion which he can be compelled to exercise in a particular manner, although his failure to call witnesses who ought to be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial. It is in this context that it is possible to speak of a Crown Prosecutor being bound, or under a duty, to call all available material witnesses. It is not a duty owed by the prosecutor to the accused which is imposed by some rule of law; rather it forms part of a description of the functions of a Crown Prosecutor. Nevertheless, there is good guidance in the cases for what constitutes a material witness. All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include the eye-witnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eye-witness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made. All witnesses whose names are on the indictment, presentment or information should nevertheless be made available by the prosecution in order that they may be called by the defence and should, if practicable, be present at court.

In R v Shaw (1991) 57 A Crim R 425 (Vic CCA) the prosecutor did not call an eye witness to a fight because she would have given evidence different from other Crown witnesses. Young CJ said (at 429): The mere fact that a potential witness has made inconsistent statements will not generally be a reason for not calling the witness but unreliability may be supported by other considerations as well. In this case the learned judge at the outset described Goyen as a crucial witness and so indeed she was. She was present at the time and an eyewitness to the striking of the deceased by the applicant. She was the only one of those present who was not called. Moreover, in an altercation of the kind that occurred, which as Goyen herself said happened so quickly, it is generally speaking important that all eyewitnesses are called …

[16.6990]

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1207

The fact however that a prosecutor makes what the appeal court ultimately thinks is an error of judgment will only lead to a setting aside of the conviction if the court is of opinion that there has been a miscarriage of justice.

The appeal was allowed. In R v Armstrong [1998] 4 VR 533 (CA) the defence told the prosecutor a week before trial that an eye witness, earlier reluctant, would now make a statement and give evidence for the prosecution. The prosecutor refused to see the witness or to call him. The defence called the witness. The appeal was allowed. The court cited Apostilides. In a joint judgment the court said (at 537): [I]n general, the Crown would be expected to call eye witnesses of any events which go to prove the elements of the crime charged even though they give accounts inconsistent with the Crown case.

In R v Kneebone (1999) 47 NSWLR 450 (CCA) the appellant had been convicted of sexual offences against a girl. The girl’s mother made a statement that she was said to be an eye witness, but saw nothing amiss. The prosecution did not call her as a witness. The appeal was allowed. Greg James J said (at 460 [49] – [50]): Since both experience and logic confirm that merely because a witness’ evidence is inconsistent with or contradicts other evidence, it need not be untrue, it is necessary that a prosecutor whose decision is under examination be able to point to identifiable factors which can justify a decision not to call a material witness on the ground of unreliability: see R v Apostilides (1984) 154 CLR 563 at 576): Director of Public Prosecutions Guidelines, at least if the suggestion of attempting to obtain an improper tactical advantage is to be avoided. It is therefore necessary for the prosecutor to take appropriate steps, including, where necessary interviewing witnesses to be able to form the opinion. In reaching a view as to reliability, it is clear that it is not an adequate basis to conclude that the witness is unreliable, merely because the witness’ account does not accord with some case theory which is attractive to the prosecutor. An approach, whereby the witness is not called at all or is left to the defence to call because the witness’ evidence is seen as not fitting the prosecution’s view of the case is likely to lead to a miscarriage of justice.

(and at [51]): The advisability, if not necessity for a conference is reinforced by the decisions in Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; R v Armstrong [1998] 4 VR 533, where the prosecutor refused to interview the witness or to consider notes proffered by counsel for the defence indicating the substance of the evidence it was anticipated the witness would give; and R v O’Brien (1996) 66 SASR 396 particularly in the judgment of Doyle CJ (at 398–399). There the prosecutor had sensibly spoken to and proofed the witness before concluding that there was a clear allegiance on the part of the witness to the accused.

A prosecutor should not tailor the evidence to his theory. In R v Kneebone (1999) 47 NSWLR 450 (CA) Greg James J said (at 460 [50]): A case theory should accord with the evidence. The prosecutor should not espouse a theory and tailor a case accordingly: R v Anderson (Hilton Bombing case) (1991) 53 A Crim R 421.

and later (at 462 [57]): In summary, it is the duty of a prosecutor to determine what witnesses will be called. He has the responsibility for ensuring that the Crown case is properly presented. He also has the responsibility for ensuring that the Crown case is presented with fairness to the accused and to the court. He does not perform that duty by seeking to avoid having placed before the court evidence which he is not entitled to regard as unreliable and yet which ill accords with a theory of the accused’s guilt.

Approved: Dyers v The Queen (2002) 210 CLR 285; 192 ALR 181 per Gaudron and Hayne JJ at 292–293; 184–185 [11].

1208

ROSS ON CRIME

[16.6995]

A prosecutor should not call a witness “so she might be ridiculed thus enabling the prosecutor to pour scorn on the applicant’s defence” R v Alexander [1994] 2 VR 249 at 266 (CCA).

[16.6995] Calling a witness and asking no questions In Apostilides v The Queen (1984) 154 CLR 563; 53 ALR 445; 15 A Crim R 88 the court said in a joint judgment (at 576; 455–456; 98): In most cases where a prosecutor does not wish to lead evidence from a person named on the indictment but the defence wishes that person to be called, it will be sufficient for the prosecutor simply to call the person so that he may be cross-examined by the defence and then, if necessary, be re-examined.

See also Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 per Fullagar J at 292–293.

[16.7000] A prosecutor should not call witnesses needlessly In R v Mok (1987) 27 A Crim R 438 (NSW CCA) Hunt J said (at 443): Twenty-seven witnesses were called by the Crown. Groups of two and three police officers were called to establish identical facts, and little attempt was made by the Crown to shorten their evidence when hardly any challenge of substance was made in the cross-examination of the first called in each such group. The Crown does of course have an obligation to establish its case beyond reasonable doubt, but this amount of time spent on duplicating virtually unchallenged evidence is unnecessary and it is simply not acceptable. Trial judges should take a much firmer control of Crown Prosecutors who fail to exercise any control themselves over such grave extravagances.

In Callander v The Queen (2004) 144 NTR 1; 185 FLR 38 (CCA) the appellant had been convicted of stealing from his employer by false accounting. At trial the prosecutor had not called two witnesses who either started after the appellant had left, or who had nothing to do with these accounts. Appeal dismissed. The appeal claim that the trial judge should have given a Jones v Dunkel direction could not be made out.

[16.7005] Calling a hostile witness In Blewitt v The Queen (1988) 62 ALJR 503; 80 ALR 353 (HC) (on appeal from Queensland) the court said in a joint judgment (at 505; 355): It is established that the calling of a witness known to be hostile for the sole purpose of getting before the jury a prior inconsistent statement which is inadmissible to prove facts against the accused is improper and might well give rise to a miscarriage of justice: see R v Thompson [1964] QWN 25; R v Hall [1986] 1 Qd R 462 at 465–466.

Followed: R v Parkinson [1990] 1 Qd R 382; (1989) 44 A Crim R 177 (CCA). Applied: R v Sekhon (1992) 63 A Crim R 349 at 358–359 (Vic CCA); R v Barbaro (1993) 32 NSWLR 619; 67 A Crim R 456 at 635–636, 472 (CCA).

[16.7010] Duty to recall a witness In R v McDowell [1997] 1 VR 473 (CA) Smith AJA delivering the leading judgment said (at 481–482):

[16.7015]

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1209

[T]he Crown has a duty to act with fairness and with the single aim of establishing the truth. Thus all relevant witnesses should generally be called to give evidence except when there are strong and satisfactory reasons not to do so: R v Lucas [1973] VR 693 at 696–697; 705–706; Whitehorn v R (1983) 152 CLR 657. That principle would apply where the issue arises whether to recall a witness, although, of course, the fact that that is the issue will affect the matters to be considered by the Crown in deciding whether to recall the witness.

[16.7015] Prosecution must not split its case In R v Howard (1957) 42 Cr App R 23 (CCA) the prosecutor cross-examined the accused. He asked him a question based on a psychiatric report which was not in evidence. The appeal was dismissed, but Lord Goddard LCJ said (at 26–27): [I]f an attempt is made to use a psychiatrist’s report by reading from it to a prisoner, that would not be a proper thing to do. If in the opinion of the prosecution or in the opinion of the defence the psychiatrist can give material evidence, the psychiatrist must be called and then the question can be decided whether, if he is called by the prosecution to prove an admission made by the prisoner, the statement can properly be given in evidence or whether it might have been given under the seal of confidence or in consequence of a question which would violate the Judges’ Rules.

In R v Chin (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147 Dawson J said (at 686; 13; 158): If in the course of cross-examination of an accused person or his witnesses, the prosecution asks questions with a view to eliciting evidence for the first time which could and should have formed part of its evidence in chief, then that evidence may be excluded in the discretion of the trial judge if its admission for the first time during cross-examination would unduly prejudice the accused, having regard to the obligation resting upon the prosecution to make its case known before the presentation of the defence case: see Reg v Kane (1977) 65 Cr App R 270.

Followed: R v Soma (2003) 212 CLR 299; 140 A Crim R 152; 196 ALR 421; [2003] HCA 13; R v O’Driscoll (2003) 57 NSWLR 416; 4 A Crim R 348; 200 ALR 283 (NSW CCA). In R v Vonarx [1999] 3 VR 618 (CA) the trial judge had ruled out parts of a confession. At the end of the prosecution case the prosecutor applied to be allowed to cross-examine the accused on the excluded parts should he give evidence. The judge agreed. The accused did not give evidence, and was convicted. In allowing the appeal the Court of Appeal said in a joint judgment (at 629): An accused person is entitled to know all of the evidence which has to be met, in order to have an adequate opportunity to present the defence case as he or she desires, including the manner in which that case is shaped during the course of cross-examining Crown witnesses. Once the trial judge, in the exercise of his or her discretion, has eliminated from the case certain evidence upon which the Crown wanted to rely and the case is thereafter conducted on that basis, it is not to be assumed that the excluded material can, without more, be re-introduced by the Crown into the case during its cross-examination of the accused. Such a course would be in clear contravention of the general rule of practice to which we have adverted, which applies just as much to judicially excluded extra-curial statements as it does to other forms of evidence and just as much in cross-examination of the accused as it would on an application to re-open the Crown case. We do not suggest that this rule is unqualified and that evidence excluded, or not led by the prosecution, can never be introduced after the closure of the Crown case; cf Killick v The Queen (1981) 147 CLR 565. The underlying principle exists to safeguard the interests of the accused and to ensure that such a procedure is not as of right but will occur only in exceptional circumstances: see R v Rice [1963] 1 QB 857; R v Treacy [1944] 2 All ER 229 at 236; R v Kane (1977) 65 Cr App R 270 at 274.

In R v Alexander and McKenzie (2002) 6 VR 53 (CA) the first accused had been tried and acquitted about an earlier incident. The trial judge ruled that interview out of the instant trial but allowed the accused to be cross-examined on it. The appeal against conviction was allowed. Winneke P said (at 76 [46]):

1210

ROSS ON CRIME

[16.7020]

The questions which were asked were selective and were being drawn from answers made to questions which had, of course, nothing to do with the matters in issue. In my view the procedure adopted was both impermissible and unfair. Again I would uphold these grounds.

Other cases Shaw v The Queen (1952) 85 CLR 365 at 379–380; LAB v The Queen (2006) 162 A Crim R 517 at 525–526 [46] – [51] (NSW CCA).

[16.7020] Cross-examination Cross-examination of the accused must be proper. In R v Foley [2000] 1 Qd R 290; (1998) 105 A Crim R 1 (CA) the court said (at 297; 8) that it was not proper to ask a witness whether another witness is telling lies. Later cases say the same: R v Buckley (2004) 10 VR 215; 149 A Crim R 122 (CA) at 218; 125-126 [9]; R v Bajic (2005) 12 VR 155; 154 A Crim R 196 (CA) at 169–171; 210–212 [73] – [82]. Yet in R v HRA (2008) 183 A Crim R 91 (Vic CA) the court held that the prosecutor had cross-examined the accused improperly by asking if the complainant had lied. Experienced defence counsel took no objection to the question nor to the judge’s directions on that evidence. Appeal against conviction dismissed. A prosecutor must not cross-examine an accused on his character or prior convictions without first asking leave of the trial judge: Matusevich v The Queen (1977) 137 CLR 633; 15 ALR 117; R v Kino and Mete [1997] 3 NZLR 24 at 28–29 (CA). See also Character at [3.1300]; and Cross-examination at [3.10400]. Nor is a prosecutor allowed to cross-examine on irrelevant matters particularly if they are prejudicial. In R v Alexander and McKenzie (2002) 6 VR 53 (CA) the prosecutor cross-examined on a confession in a previous case. Winneke P, with whom the others agreed, said (at 76 [46]): The questions which were asked were selective and were being drawn from answers made to questions which had, of course, nothing to do with the matters in issue. In my view the procedure adopted was both impermissible and unfair. (Appeal allowed.)

In R v Waine [2006] 1 Qd R 458; (2005) 157 A Crim R 490 (CA) the accused said she had permits to do what she did. She was cross-examined extensively about whether GST had been paid on the permits. Held (at [33] – [37]) that the cross-examination was irrelevant and prejudicial by alleging fraud on the revenue. Appeal upheld.

[16.7025] Not to comment on an answer A prosecutor who cross-examines an accused or a witness must not comment on an answer. In Randall v The Queen [2002] 1 WLR 2237 (PC) there was the following exchange between the prosecutor and the accused: I am suggesting to you that your dishonesty is only matched by your brazeness?... I would suggest that you are very wrong. Which is it? You are more dishonest than you are brazen or you are more brazen than dishonest?

The Board advised that the appeal be allowed. In Libke v The Queen (2007) 230 CLR 559; 81 ALJR 1309; 235 ALR 517; [2007] HCA 30 the prosecutor made many insulting comments in cross-examining an accused. A good many are set out in the joint judgment of Kirby and Callinan JJ. One example is this. The prosecutor said (at [20]):

[16.7040]

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1211

Oh yes. Look, I’ve heard all that. I’m trying to convey to you that I’m not buying it.

By a majority the Court dismissed the appeal against conviction. They applied the proviso. Yet Heydon J, in the majority, said (at [121]): The most striking characteristic of the cross-examination ... was its wild, uncontrolled and offensive character.

[16.7030] Final address must be temperate and fair See Addresses at [1.2200]; and Xenophobia (Applications) at [24.105].

[16.7035] Prosecutor must not put an unsustainable theory A prosecutor must not invite the jury to proceed upon a theory which cannot properly be sustained. In R v Anderson (1991) 53 A Crim R 421 (NSW CCA) the conviction was set aside for that reason. In Tran v The Queen (2000) 105 FCR 182; 180 ALR 62; 118 A Crim R 218 (FCA) the court said in a joint judgment (at 203; 83; 239 [135]): It is clear that a prosecutor should not invite the jury to proceed upon a theory which cannot properly be sustained. If the prosecutor does so, and a conviction results, the verdict may be set aside.

[16.7040] Prosecutor not to express opinion in court In R v Williams (unreported, Vic CCA, 29 August 1980) the prosecutor did not call a certain witness. In his final address he said: [A]s I understand my obligations, I am obliged only to lead evidence of reliable witnesses. It is my view that O’Geary was not a reliable witness.

In the result the court found that the trial judge had repaired the error and the appeal was dismissed. But Gobbo J, delivering the leading judgment, said at (pp 9–10): In my view it is entirely improper for any Counsel, whether prosecutor or Counsel for the defence, to make a statement to a jury of the kind made here. It amounted to a personal expression of opinion that contained the implication that the prosecutor had satisfied himself that O’Geary was an unreliable witness. It also involved the assertion that that was the reason why O’Geary had not been called. It is not for Counsel to express his own opinion on matters not before the jury. That is not to say that he is precluded from making a comment as to a witness actually called, that having regard to the content of his evidence or his demeanour or like considerations, the jury should treat such a witness as reliable or otherwise. But here the comment was not a comment of this kind but an assertion as to a witness not called.

In R v Callaghan [1994] 2 Qd R 300; (1993) 70 A Crim R 350 (CA) the judgment finishes with the following words (at 306; 356): We observe however that it is not appropriate that Crown Prosecutors use the dignity of their office in order to “tell” a jury something that is not in evidence. It should not be forgotten that whether the address is to a judge or to a jury, counsel’s role is to make submissions, not express personal opinions or enter the fray as a contestant.

In R v Phan (2001) 53 NSWLR 480; 123 A Crim R 30 (CCA) Wood CJ at CL said (at 37 [30]): It is important that the office of prosecutor not be used to tell the jury that which is not supported by the evidence: R v Callaghan [1994] 2 Qd R 300.

(Note: This paragraph does not appear in the report of the case in 53 NSWLR 480.)

1212

ROSS ON CRIME

[16.7045]

See also Marsh v Suleyman [1983] 1 VR 483 at 485 (FC).

[16.7045] Prosecutor’s duty on sentence Duty to assist the court In R v Tait and Bartley (1979) 46 FLR 386; 24 ALR 473 (FCA) Brennan, Deane and Gallop JJ said in a joint judgment (at 489; 477): It remains true that the Crown is required to make its submissions as to sentence fairly and in an even-handed manner, and that the Crown does not, as an adversary, press the sentencing court for a heavy sentence. The Crown has a duty to the court to assist it in the task of passing sentence by an adequate presentation of the facts, by an appropriate reference to any special principles of sentencing which might reasonably be thought to be relevant to the case in hand, and by a fair testing of the defendant’s case so far as it appears to require it. If the proposition that the Crown is not concerned with sentence was ever construed as absolving the Crown from this duty, it cannot be so construed when a Crown right of appeal against sentence is conferred. The Crown is under a duty to assist the court to avoid appealable error. The performance of that duty to the court ensures that the defendant knows the nature and extent of the case against him, and thus has a fair opportunity of meeting it.

In R v Anzac (1987) 50 NTR 6; 88 FLR 465; 31 A Crim R 310 (CCA) the court said in a joint judgment (at 14; 473; 318): [A] Crown Prosecutor has a duty to assist a sentencing judge who invites a submission from him… It is clear that where sentence is imposed following a plea of guilty the Crown is under a duty to ensure that there is placed before the sentencing judge all the facts relating to the commission of the offence charged and necessary to enable the judge to form a proper view of the criminality involved.

Approved: R v Sinclair and McKiddie (1993) 66 A Crim R 284 (WA CCA) per Seaman J at 293 who gave the leading judgment. In R v MacNeil-Brown (2008) 20 VR 677; 188 A Crim R 403; [2008] VSCA 190 the Victorian Court of Appeal (by majority – Maxwell P, Vincent and Redlich JA) held that it is appropriate for a prosecutor to make submissions at sentencing regarding that sentencing range that applied to the case. The court held that this submission is to reflect the view of the Crown, not that of the individual prosecutor. The making of sentencing range submissions is an aspect of the prosecutor’s duty to to assist the court. The sentencing judge can expect the prosecutor to make sentencing range submissions where he or she is requested to do so by the court or there is a significant risk that the court will otherwise fall into error by imposing an inappropriate sentence. The rationale for such submissions is to promote consistency and minimise the risk of sentencing error. The High Court overturned this approach in Barbaro v The Queen (2014) 88 ALJR 372; [2014] HCA 2. The Court held that the prosecution is not permitted to make submissions to a sentencing judge regarding the appropriate sentence nor even an appropriate range. Thus, the High Court turned the practice of the prosecution indicating a sentencing range on its head. Prior to , existing orthodoxy was that in some cases the prosecution had a duty to inform the sentencing judge of the bounds of the appropriate sentence; now the prosecution prohibited from making such a statement. The Court gave several reasons for this profound reassessment of the prosecution function at the sentencinge hearing. The first is that the prosecution’s view of the appropriate bounds of the appropriate sentence is supposedly a “statement of opinion”; not a submission and secondly, a submission on the range of sentence might unduly influence the sentencing judge.

[16.7055]

PROSECUTOR

1213

In Matthews v The Queen; Vu v The Queen; Hashmi v The Queen [2014] VSCA 291 where all members of the Court (the lead judgment is by Warren CJ, Nettle and Redlich JJA; Priest JA and Lasry AJA handed down a separate judgment) held that: (i) If the prosecution does breach the Barbaro proscription, and put forward a submission on range, this does not vitiate sentencing discretion unless it can be shown that the judge was in fact swayed by the prosecution submission; (ii) the limitation on the prosecution only applies in relation to submissions regarding the appropriate range of sentences, not the appropriate type of disposition. The majority of the court (Priest JA and Lasry AJA not deciding this issue) held that (iii) the prohibition against sentencing ranges does not apply to submissions by the defence.

Not to allege unconvicted offences A prosecutor, when addressing the judge on sentence, should not allege that the offender had committed other offences of which he has not been convicted: R v Burrows [1996] 1 Qd R 359; (1995) 79 A Crim R 154 (CA). See also R Fox and A Freiberg, Sentencing, State and Federal Law in Victoria (2nd ed, Oxford University Press, South Melbourne, 1999), pp 78-91.

[16.7050] On appeal the prosecution may take a different stance about sentence In R v Allpass (1993) 72 A Crim R 561 (NSW CCA) the court said in a joint judgment (at 565): The Crown is not debarred, on appeal, from taking a stance different from that taken at first instance, but this Court, in the exercise of its discretion, is entitled to take account of the fact that, at first instance, the Crown acquiesced in the course that was taken by the sentencing judge: Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269; Malvaso v R (1989) 168 CLR 227. The weight to be given to such a consideration depends upon the circumstances of the particular case, but it may be of considerable significance if the respondent was given a non-custodial sentence at first instance. Its weight may also vary with the degree to which the appellate court thinks the sentencing judge fell into error.

Followed: R v Zhen Qi (1998) 102 A Crim R 172 at 178 (NSW CCA). Ultimately it is in the appeal court’s discretion on the weight to be given to the prosecution’s position at first instance. DPP v Shoan (2007) 176 A Crim R 457 (Vic CA); Hales v Jamilmira (2003) 13 NTLR 14; 142 NTR 1; 176 FLR 369 (CA) per Martin CJ at 11 [31]; 379 [30]; DPP v Waack (2001) 3 VR 194; 121 A Crim R 134 at 207; 148 [31] (CA); R v Morton (2001) 11 NTLR 97 at 101, 102 (CCA).

[16.7055] Silence by the prosecutor during argument about non-custodial sentence Where the prosecutor has remained silent during sentence argument, a later prosecution appeal against inadequacy of sentence may still be appropriate.

1214

ROSS ON CRIME

[16.7060]

In R v Morris (1993) 2 VR 192; 61 A Crim R 233 (Vic CCA) the court said in a joint judgment (at 199; 240): The prosecutor’s silence on this question was in the circumstances in conformity with the discharge of his duties as prosecutor. Accordingly, that silence cannot be employed to found an inference that the Crown’s opinion was that a non-custodial sentence alone was appropriate. Were it so the task of prosecutors would, we venture to think, be fraught with, or give rise to, much unnecessary difficulty. See per McHugh JA in Jermyn (1985) 2 NSWLR 194; 16 A Crim R 269 at 203–204; 277–279. The reference to the judge of the authorities to which his attention was drawn was accompanied by the observation by counsel that it must, of course, be borne in mind that the circumstances in each case varied greatly. The assistance that counsel sought to give the court was entirely proper. Nothing in what was done could serve to denote Crown acceptance that a non-custodial sentence was a correct disposition.

Approved: DPP v Bulfin [1998] 4 VR 114; (1998) 101 A Crim R 40 at 124, 121 (CA). However, in R v Wilton (1981) 28 SASR 362; 4 A Crim R 5 (CCA) King CJ said (at 367–368; 10): In my opinion, this Court should allow the prosecution to put to it, on an appeal against sentence, contentions which were not put to the sentencing Judge, only in exceptional circumstances which appear to justify that course … Generally speaking, if the submission is not made to the sentencing judge the prosecution should not be able to advance that contention successfully on an appeal by the Attorney-General.

Approved: Malvaso v The Queen (1989) 168 CLR 227; 43 A Crim R 451; 89 ALR 34 by Deane and McHugh JJ at 240; 43; 461.

[16.7060] Must not make public comment after trial In R v Sheikh (2004) 144 A Crim R 124 (NSW CCA) Sully J said (at 143–144 [114]): [A] Crown prosecutor ought never to make to the media any public comment about a trial which he or she has prosecuted … The reason for the principle lies in the unique role of the Crown prosecutor in ensuring that the machinery of criminal justice functions with a proper objectivity and impartiality.

In R v MG (2007) 69 NSWLR 20 (CCA) the accused had been convicted and had successfully appealed. The prosecutor made a number of public comments about the case contrary to the Bar Rules and the Prosecutors Rules. The court held that the prosecutor was not sufficiently independent. The court ordered a stay until another prosecutor was appointed for the retrial.

PROSTITUTION Definition ................................................................................................................................... Need for bodily contact ............................................................................................................ Sentence .................................................................................................................................... Premises for prostitution ........................................................................................................... Legislation ................................................................................................................................. Nude massage ........................................................................................................................... Soliciting for prostitution .......................................................................................................... Sentencing ................................................................................................................................. Controlling a prostitute (UK) ...................................................................................................

[16.7200] [16.7205] [16.7210] [16.7215] [16.7220] [16.7225] [16.7230] [16.7235] [16.7240]

[16.7200] Definition In R v De Munck [1918] 1 KB 635; [1918-19] All ER Rep 499; 13 Cr App R 113 the girl in question was virgo intacta. Her mother was convicted of soliciting men for acts of prostitution with the girl and taking money for it. The appeal was dismissed:

[16.7220]

PROSTITUTION

1215

The Court is of opinion that the term “common prostitute” is not limited so as to mean only one who permits acts of lewdness with all and sundry or with such as hire her when such acts are in the nature of ordinary sexual connection. We are of opinion that prostitution is proved if it be shewn that a woman offered her body commonly for lewdness for payment in return.

Followed: R v Webb [1964] 1 QB 357; [1963] 1 All ER 177; (1967) 47 Cr App R 265 at 365–366, 178–179, 269-271; Samuels v Bosch (1972) 127 CLR 517 per Gibbs J at 524; R v Mickle [1978] 1 NZLR 720 (SC Bain J); R v Robinson [1978] 1 NZLR 709 (CA). In Samuels v Bosch (1972) 127 CLR 517 Gibbs J said that the ordinary meaning of prostitution is “the offering of the body to indiscriminate lewdness for hire” (at 524). A male can be a common prostitute according to Poiner v Hanns; Ex parte Hanns [1987] 2 Qd R 242; (1986) 22 A Crim R 370 (FC) but cannot in England according to R v Bull [1994] 4 All ER 411; [1995] 1 Cr App R 413 (QBD). Legislation in Australia mostly enacts our common law. An Act involving bodily contact between a nude female and her nude male client not involving sexual intercourse is a “sexual act”. A genuine belief on the part of an accused that such an act is not a sexual act is not reasonable excuse: R v Newcombe [1996] 1 Qd R 323 (CA); Polnibs Pty Ltd v Bankstown City Council (1997) 94 A Crim R 1 (NSW Land and Environment Court, Shehan J). Masturbation and nude massage for money is prostitution: Begley v Police (1995) 66 SASR 514; 78 A Crim R 417 (Lander J).

[16.7205] Need for bodily contact In Begley v Police (1995) 66 SASR 514; 78 A Crim R 417 Lander J held (at 527; 429): I think there must be some contact between the person offering the use of the body and the person paying the fee. That must be so, because otherwise a striptease dancer might be said to be committing an act of prostitution … I do not think that an exotic dancer, without performing more than a dance, would be understood to be performing an act of prostitution. I therefore think that the act of prostitution requires that the offer of the body means an offer to use the body, rather than simply view the body.

[16.7210] Sentence R v Francis (1997) 95 A Crim R 550 (SA, King AJ): fine; Police v Bridges (1998) 100 A Crim R 20 (SA, Bleby J): fine ($100).

[16.7215] Premises for prostitution In Samuels v Bosch (1972) 127 CLR 517 it was held that a place for making assignations is a brothel notwithstanding that no sexual activity occurs there.

[16.7220] Legislation Qld: Prostitution Act 1999; WA: Prostitution Act 2000; Tas: Police Offences Act 1935 ss 8 and 10; Criminal Code s 143; Sex Industry Offences Act 2005;

1216

ROSS ON CRIME

[16.7225]

NT: Prostitution Regulation Act; NSW: Summary Offences Act 1988 s 16; Vic: Sex Work Act 1994; SA: Summary Offences Act 1953 ss 21, 28; ACT: Prostitution Act 1992; NZ: Prostitution Reform Act 2003. In Bell v Stewart (1989) 43 A Crim R 400 (Qld FC) it was held that a woman who uses her residence for prostitution is not keeping premises for this purpose. In Jitjarden v Thompson (1995) 38 NSWLR 611; 85 A Crim R 24 Allen J held that a prostitute who offers her own services as a prostitute to a person attending a massage parlour was using the premises for the purpose of soliciting, notwithstanding she did not pester the prospective client by accosting, importuning or flaunting. In Ferricks v Guzikowski; Ex parte Ferricks [1992] 1 Qd R 150; (1990) 51 A Crim R 78 (FC) it was held that an escort agency office that arranged prostitutes to attend on clients, when the office used telephones, credit card slips, and business records are premises used for the purpose of prostitution.

[16.7225] Nude massage Nude massage offering body to body contact is prostitution: Polnibs Pty Ltd v Bankstown City Council (1997) 94 A Crim R 1 (NSW Land and Environment Ct, Sheahan J). See also Begley v Police (1995) 66 SASR 514; 78 A Crim R 417 (Lander J).

[16.7230] Soliciting for prostitution It is an offence to solicit for prostitution. Qld: Prostitution Act 1999; WA: Prostitution Act 2000; Tas: Police Offences Act 1935 s 8(1)(c); NT: Prostitution Regulation Act s 10; NSW: Summary Offences Act 1988 s 19; Vic: Sex Work Act 1994 s 13; SA: Summary Offences Act 1953 s 25; ACT: Prostitution Act 1992.

Solicit: a definition In Coleman v DPP (2000) 49 NSWLR 371; 114 A Crim R 298 O’Keefe J held (at 379; 306 [41] – [42]: [S]olicit involves a personal approach, for the purpose of, or which is accompanied by, or which constitutes or conveys, an offer that some form of sexual activity will be engaged in by the person making the approach in return for monetary gain. It is unnecessary, according to the ordinary meaning of the word solicit, when used in the context of prostitution, for there to be any element of aggressive persistence, pestering, pressure, or

[16.7400]

PROUDMAN V DAYMAN

1217

harassment or annoyance to the person approached. Nor is there a need for distress or embarrassment to be caused by or result from the approach or offer … The mere approach by a prostitute to a person who is a potential customer, when she is dressed in a suggestive manner, perhaps with appropriate gestures or words, or is presented in a particular way is sufficient to constitute an offer of services as a prostitute.

See also Public place at [16.8700].

[16.7235] Sentencing A magistrate must pay no regard to his personal views of the propriety of the offence or its prosecution. Such considerations are not relevant to the exercise of the sentencing discretion: Police v Bridges (1998) 100 A Crim R 20 (SA, Bleby J). Recruiting prostitutes for brothel work: R v Hickey (2001) 119 A Crim R 68 (Vic CA). Attempt to cause a child under 14 to participate in prostitution: R v Peckover (2002) 135 A Crim R 400 (NSW CCA).

[16.7240] Controlling a prostitute (UK) In the United Kingdom there is no longer an offence of living off the earnings of prostitutes. Its replacement is the Sexual Offences Act 2003 s 53(1) (controlling prostitutes). The legislation was interpreted in R v Massey [2008] 1 WLR 937; [2008] 2 All ER 969 (CA).

PROUDMAN V DAYMAN Proudman v Dayman ................................................................................................................ [16.7400] Application ................................................................................................................................ [16.7405]

[16.7400] Proudman v Dayman The usual expression is “Proudman v Dayman defence”. It is shorthand for: [A]n honest and reasonable belief in a state of facts which, if they existed, would make the defendant’s act innocent affords an excuse for doing what would otherwise be an offence.

The words are from Dixon J in Proudman v Dayman (1941) 67 CLR 536 at 540. Mrs Proudman had permitted an unlicensed driver to drive. The court held it was not necessary for the prosecution to negative her belief that the driver was licensed, but rather the appellant had to establish such belief on the evidence. If that evidential onus were discharged Mrs Proudman would have had a defence. The magistrate, the South Australian Full Court and the High Court found she had not led such evidence. Those words of Dixon J have been extensively applied in Australia and also in the House of Lords, for example, Sweet v Parsley [1970] AC 132; [1969] 1 All ER 347; (1969) 53 Cr App R 221. In Jiminez v The Queen (1992) 173 CLR 572; 106 ALR 162; 59 A Crim R 308 six of the justices held (at 582; 168; 314): If honest and reasonable mistake is not excluded in the case of a statutory offence, it will afford an excuse for what would otherwise be an offence, although the burden of establishing the excuse will in the first place be upon the defendant. The burden on the defendant is evidentiary only, and the prosecution retains the burden of proving guilt by establishing beyond reasonable doubt that the defendant did not honestly believe on reasonable grounds in the existence of facts, which, in the circumstances, would take his act outside the operation of the statute.

1218

ROSS ON CRIME

[16.7405]

In CTM v The Queen (2007) 171 A Crim R 371 (NSW CCA) Howie J, with whom the other judges agreed, said (at 385 [67]): The defence operates where the statutory offence does not require full mens rea to prove an element of the offence. The defence arises where the offence being considered would otherwise be an offence of strict liability generally or in regard to a particular element of the offence.

The above proposition seems not to be faulted in the High Court appeal: CTM v The Queen (2008) 236 CLR 440; 185 A Crim R 188; 247 ALR 1.

[16.7405] Application Proudman v Dayman usually provides a defence to an offence of strict liability. In Director-General of Department of Land and Water Conservation v Greentree (2003) 140 A Crim R 25 (NSW CCA) the court in a joint judgment examined the words of Gibbs CJ in He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449. The court then said (at 37 [69]): The Chief Justice went on to say that there had in the past been a tendency in Australia to regard this presumption as only a weak one, at least in the case of modern regulatory statutes: Proudman v Dayman (1941) 67 CLR 536 at 540; Bergin v Stack (1953) 88 CLR 248 at 261. At 532–533; reference was made to Dixon J’s statement in Proudman v Dayman (1941) 67 CLR 536 (at 540–541) that even where the statute excludes the necessity for positive knowledge on the part of the accused, honest and reasonable mistake of fact will still be a ground of exculpation. The Chief Justice observed (at 533) that the cases established that if it was held that guilty knowledge was not an ingredient of an offence, it did not follow that the offence was an absolute one. A middle course, between imposing absolute liability and requiring proof of guilty knowledge or intention, was to hold that an accused will not be guilty if he acted upon an honest and reasonable mistake as to the existence of facts, which, if true, would have made his act innocent.

See also Belief at [2.800]; Intent at [9.2700]; Mens rea at [13.2300]; Mistake at [13.2900]; and Strict liability at [19.6100].

PROVISO Definition ................................................................................................................................... Legislation ................................................................................................................................. Should the proviso be applied .................................................................................................. False line of reasoning .............................................................................................................. No exception taken at trial ....................................................................................................... Irregularity in form of indictment ............................................................................................

[16.7600] [16.7605] [16.7610] [16.7615] [16.7620] [16.7625]

[16.7600] Definition Proviso is the pet name for the rider in appeal statutes which says that notwithstanding the success of a ground, the appeal will be dismissed if there has been no substantial miscarriage of justice. In Driscoll v The Queen (1977) 137 CLR 517; 15 ALR 47 Barwick CJ said (at 527; 55): If it were otherwise, and every irregularity of summing up, admission of evidence or in procedure warranted a new trial, the basic intent of the court of criminal appeal provisions would be frustrated and the administration of the criminal law plunged into outworn technicality.

[16.7605] Legislation Qld: Criminal Code s 668E(1A); WA: Criminal Appeals Act 2004 s 30(4);

[16.7610]

PROVISO

1219

Tas: Criminal Code s 402(2); NT: Criminal Code s 411(2); NSW: Criminal Appeal Act 1912 s 6(1) (2nd sentence); SA: Criminal Law Consolidation Act 1935 s 353(1); Vic: Criminal Law Consolidation Act 2009 s 276; ACT: Supreme Court Act 1933 s 37O (by implication only); NZ: Crimes Act 1961 s 381(1) (last para); Can: Criminal Code s 686(1)(b)(iii). For example, this phrase appears at the end of s 6(1) of the Criminal Appeal Act 1912(NSW), provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. The proviso has been abolished in Victoria. Instead, for an appeal to be successful, an appellant must demonstrate a substantial miscarriage of justice. See s 277 of the Criminal Procedure Act 2009. Pursuant to Federal Court of Australia Act 1976 (Cth) the Federal Court has power to hear an appeal from a Territory (s 24). Its judgment powers are given by s 28. There is no reference to a proviso. But because of s 28(1)(f) the proviso power is imputed: Conway v The Queen (2002) 209 CLR 203; 186 ALR 328. In England the Criminal Appeal Act 1995 s 2(1) provides: (1) Subject to the provisions of this Act, the Court of Appeal – (a) shall allow an appeal against conviction if they think that the conviction is unsafe; and (b) shall dismiss such an appeal in any other case.

[16.7610] Should the proviso be applied In Weiss v The Queen (2005) 224 CLR 300; 233 ALR 662; 158 A Crim R 133 the court said in a joint judgment (at 317; 674–675; 146–147 [43] – [45]): There are, however, some matters to which particular attention should be drawn. First, the appellate court’s task must be undertaken on the whole of the record of the trial including the fact that the jury returned a guilty verdict. The court is not “to speculate upon probable reconviction and decide according to how the speculation comes out”. But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present and that the standard of proof is beyond reasonable doubt. Next, the permissive language of the proviso (“the Court … may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal …”) is important. So, too, is the way in which the condition for the exercise of that power is expressed (“if it considers that no substantial miscarriage of justice has actually occurred”). No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. But one negative proposition may safely be offered. It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty.

1220

ROSS ON CRIME

[16.7615]

Likewise, no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt. What can be said, however, is that there may be cases where it would be proper to allow the appeal and order a new trial, even though the appellate court was persuaded to the requisite degree of the appellant’s guilt. Cases where there has been a significant denial of procedural fairness at trial may provide examples of cases of that kind.

Further explained: AK v Western Australia (2008) 232 CLR 438; 243 ALR 409; 182 A Crim R 262 per Gummow and Hayne JJ at [52]–[55]; Gassy v The Queen (2008) 236 CLR 293; 82 ALJR 838; 245 ALR 613; 184 A Crim R 334 per Kirby J at [58]–[63]; Handlen v The Queen [2011] HCA 51; Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; Cooper v The Queen [2012] HCA 50. Baini v The Queen [2012] HCA 59. Andelman v The Queen [2013] VSCA 25. Tunja v The Queen [2013] VSCA 174. R v Dunn (2006) 94 SASR 177 at 189 [53] (CCA). Other cases R v Howse [2006] 1 NZLR 433 (PC); Shand v The Queen [1996] 2 Cr App R 204 (PC); Fremantle v The Queen [1994] 1 WLR 1437; [1995] 1 Cr App 1 (PC); Stafford v DPP [1974] AC 878; [1973] 3 All ER 762; 58 Cr App R 256 (HL) per Viscount Dilhorne at 873–874; 766; 264.

[16.7615] False line of reasoning The proviso will not be applied where the trial judge’s misdirection or non-direction led the jury into a false line of reasoning. In Prasad v The Queen (1994) 68 ALJR 194; 119 ALR 399 the court said in a joint judgment (at 195; 400): The error was in truth a positive misdirection. Once the misdirection is identified, the possibility that the jury was led into a false line of reasoning cannot be excluded. It is impossible to be satisfied that the accused did not lose a reasonable opportunity of acquittal: Mraz v R (1955) 93 CLR 493.

[16.7620] No exception taken at trial In KBT v The Queen (1997) 191 CLR 417; 99 A Crim R 18; 149 ALR 693, Brennan CJ, Toohey, Gaudron and Gummow JJ said (at 423–424; 697): There are occasions when a provision such as s 668E(1A) of the Code is properly applied where a point was not taken at the trial because, for example, it was not in issue or there was some forensic advantage to be gained by not raising it. In cases of that kind, the provision is applied because, having regard to the defence case, the accused was not deprived of a chance of acquittal that was fairly open, that being the accepted test for the application of a provision of that kind. Thus, if the appellant was deprived on a chance of that kind, the fact that no complaint was made at trial is irrelevant.

[16.7805]

PROVOCATION

1221

[16.7625] Irregularity in form of indictment See Indictment at [9.1800].

PROVOCATION Application ................................................................................................................................ Legislation ................................................................................................................................. The Codes and common law .................................................................................................... Murder to manslaughter ............................................................................................................ Sudden and temporary loss of control ..................................................................................... Triggering incident .................................................................................................................... Proportionality ........................................................................................................................... The ordinary person .................................................................................................................. Attack by deceased on a relative of the accused .................................................................... Ethnicity .................................................................................................................................... The ordinary Aboriginal person ............................................................................................... Ferocity of attack suggests loss of control .............................................................................. Victim not provoking ................................................................................................................ Provocation by partner .............................................................................................................. Provocation by homosexual advance ....................................................................................... Possessiveness and jealousy alone: no provocation ................................................................ Mistake on identity of victim ................................................................................................... Mere words alone ..................................................................................................................... Hearsay provocation ................................................................................................................. Emotions of the provoked ........................................................................................................ Intoxication ................................................................................................................................ Regaining self-control ............................................................................................................... Evidential onus on accused ...................................................................................................... Judge’s duty .............................................................................................................................. Judge’s directions to the jury ................................................................................................... What an ordinary person could have done ..............................................................................

[16.7800] [16.7805] [16.7810] [16.7815] [16.7820] [16.7825] [16.7830] [16.7835] [16.7840] [16.7845] [16.7850] [16.7855] [16.7860] [16.7865] [16.7870] [16.7875] [16.7880] [16.7885] [16.7890] [16.7895] [16.7900] [16.7905] [16.7910] [16.7915] [16.7920] [16.7925]

[16.7800] Application In two common law States (New South Wales and South Australia) provocation applies to reduce murder to manslaughter. In the Code jurisdiction Queensland, provocation reduces murder to manslaughter and is a complete defence to lesser charges. New South Wales is the only common law State with some relevant legislation: Crimes Act 1900 s 23. In New South Wales, South Australia, Northern Territory, the Australian Capital Territory and New Zealand provocation only applies in a murder case to reduce murder to manslaughter. In those jurisdictions it applies to no other charges: McGhee v The Queen (1995) 183 CLR 82; 130 ALR 142; 79 A Crim R 281. In Queensland, provocation is a defence to all charges of violence. Other than rape: R v Stevens [1989] 2 Qd R 386; (1989) 41 A Crim R 60 (CCA). Tasmania abolished provocation as a defence by repealing Criminal Code s 160. Victoria abolished provocation as a defence by enacting Crimes Act 1958 s 3B. Western Australia abolished provocation as a defence by enacting Criminal Law Amendment (Homicide) Act 2008 (WA). See also Criminal Code (WA) s 281.

[16.7805] Legislation Qld: Criminal Code ss 304, 268; NT: Criminal Code s 158; NSW: Crimes Act 1900 s 23;

1222

ROSS ON CRIME

[16.7810]

ACT: Crimes Act 1900 s 13; NZ: Crimes Act 1961 s 169; Can: Criminal Code 1985 s 232.

[16.7810] Queensland and the common law In Stingel v The Queen (1990) 171 CLR 312; 97 ALR 1; 50 A Crim R 186 the court said in a joint judgment (at 320; 6; 190): One finds in the authorities, including some Tasmanian judgments, a perception that, in this particular field of criminal law, the common law, the Codes and other statutory provisions, and judicial decisions about them, have tended to interact and to reflect a degree of unity of underlying notions.

Since the decision in Stingel provocation has ceased to be a defence to murder in Tasmania by the abolition of Criminal Code s 160. The statutory provisions include the Crimes Act 1900 (NSW) s 23.

[16.7815] Murder to manslaughter In Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 Brennan, Deane, Dawson and Gaudron JJ said (at 66; 580; 337): Homicide, which would otherwise be murder, is reduced to manslaughter if the accused causes death whilst acting under provocation. The provocation must be such that it is capable of causing an ordinary person to lose self-control and to act in the way in which the accused did. The provocation must actually cause the accused to lose self-control and the accused must act whilst deprived of self-control before he has had the opportunity to regain his composure.

[16.7820] Sudden and temporary loss of control The phrase comes from a string of English decisions recently collected in: R v Ahluwalia [1992] 4 All ER 889; 96 Cr App R 133 (CA); and R v Thornton (No 2) [1996] 1 WLR 1174; [1996] 2 All ER 1023; [1996] 2 Cr App R 108. Without going through the line of authority, the generally accepted modern starting point is R v Duffy [1949] 1 All ER 932. In Code States the sudden and temporary concept received recognition in AttorneyGeneral’s Reference (No 1 of 1992) (1993) 1 Tas R 349; 67 A Crim R 415 (CCA). In the common law States it has been held that a specific triggering incident is not a precondition to provocation: In R v Muy Ky Chhay (1994) 72 A Crim R 1 (NSW CCA) Gleeson CJ said (at 13–14): It will probably remain the case that, for many people, loss of self control is a concept that is most easily understood, and distinguished from, a deliberate act of vengeance in the factual context of a sudden eruption of violence. However, times are changing, and people are becoming more aware that a loss of self control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident. The presence of such an incident will assist a case of provocation, but its absence is not fatal.

In Pollock v The Queen [2010] HCA 35 the Court held that, at [52], “sudden provocation” in s 304 is concerned with the temporary loss of self-control excited by the provocation’. There is no need for the loss of self-control to immediately follow the provocation.

[16.7825] Triggering incident Some incident may trigger a loss of control. There may even be a time gap between the incident and the charged act. In R v Shea (1988) 33 A Crim R 394 (Vic CCA) the accused

[16.7835]

PROVOCATION

1223

was beaten in a hotel. He went home, told his wife, got a boning knife and returned to the hotel. He plunged the knife into his assailant’s chest. In R v Caine (1990) 48 A Crim R 464 (Vic CCA) there was a series of arguments between the accused and the deceased in a nightclub. They began at 11:30 pm. The fatal attack was more than three hours later. The court held (at 473–475) that the judge should have directed the jury that the resentment in the nighclub was relevant to provocation. When the parties have known one another for a long time a last straw might be sufficient provocation. The expression “last straw” has been referred to in the provocation cases of Moffa v The Queen (1977) 138 CLR 601; 13 ALR 225 at 616; 235 per Gibbs J; Roche v The Queen [1988] WAR 278; (1987) 29 A Crim R 168 (CCA) at 281; 170 per Burt CJ; R v Thornton (No 2) [1996] 1 WLR 1174; [1996] 2 All ER 1023; [1996] 2 Cr App R 108 at 1181; 1030; 116 (CCA). Other examples R v Dincer [1983] 1 VR 460 at 464 (direction of Lush J) (a Turkish Muslim father and his straying daughter) and Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 (an Italian man killed his cheeky son-in-law who was insolent, a gambler and violent to the accused’s loved daughter). There may not need to be a triggering incident after lengthy abuse. A battered wife is the prototype. In R v Muy Ky Chhay (1994) 72 A Crim R 1 (NSW CCA) Gleeson CJ with whom the others agreed said (at 13): However, times are changing, and people are becoming more aware that a loss of self-control can develop even after a lengthy period of abuse, and without the necessity for a specific triggering incident.

Neither the accused nor the victim need be a woman. In R v Mulhall and Parker (2002) 131 A Crim R 597 (NT, Riley J) the prosecution offered a plea of guilty to manslaughter by provocation. The murder trial had already begun. The two accused shot the sleeping victim who had previously been violent to them and their families for an extended period.

[16.7830] Proportionality Retaliation must be proportionate to the provocative incident. In Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 Brennan, Deane, Dawson and Gaudron JJ said (at 67; 581; 337–338): It has been said on a number of occasions that it is an element of provocation that the retaliation should be proportionate to the provocative incident. For example, in Mancini v Director of Public Prosecutions [1942] AC 1 at 9 Viscount Simon LC said: “In short, the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.” However, it is now well established that the question of proportionality is absorbed in the application of the test of the effect of the provocation upon the ordinary person. As Lord Diplock said in Phillips v The Queen [1962] 2 AC 130 at 137 Viscount Simon’s remark was “an elliptic way of saying that the reaction of the defendant to the provocation must not exceed what would have been the reaction of a reasonable man.” And as Barwick CJ pointed out in Johnson v The Queen (1976) 136 CLR 619 at 639 in considering whether an ordinary person could have reacted in the way in which the accused did, it is the formation of an intent to kill or do grievous bodily harm which is the important consideration rather than the precise form of physical reaction.

In Verhoeven v Ninyette (1998) 101 A Crim R 24 (WA, Wheeler J) the female victim called the female Aboriginal appellant “a dog”, “a gin”, “a fucking boong” and a “fucking nigger”. The punches caused actual bodily harm. The reaction was held proportionate to the insult and the assault conviction set aside.

[16.7835] The ordinary person This is sometimes called the objective part of provocation.

1224

ROSS ON CRIME

[16.7840]

In Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 Brennan, Deane, Dawson and Gaudron JJ said (at 66–67; 581; 337): The test involving the hypothetical ordinary person is an objective test which lays down the minimum standard of self-control required by the law. Since it is an objective test, the characteristics of the ordinary person are merely those of a person with ordinary powers of self-control. They are not the characteristics of the accused, although when it is appropriate to do so because of the accused’s immaturity, the ordinary person may be taken to be of the accused’s age. However, the gravity of the conduct said to constitute the provocation must be assessed by reference to relevant characteristics of the accused. Conduct which might not be insulting or hurtful to one person might be extremely so to another because of that person’s age, sex, race, ethnicity, physical features, personal attributes, personal relationships or past history. The provocation must be put into context and it is only by having regard to the attributes or characteristics of the accused that this can be done. But having assessed the gravity of the provocation in this way, it is then necessary to ask the question whether provocation of that degree of gravity could cause an ordinary person to lose self-control and act in a manner which would encompass the accused’s actions.

In Green v The Queen (1997) 191 CLR 334; 148 ALR 659; 97 A Crim R 307 the appellant’s past history included a special sensitivity to sexual interferences because his father had sexually abused the accused’s sisters. In R v Curzon (2000) 1 VR 416; 114 A Crim R 472 (CA) Chernov JA delivering the leading judgment said (at 427; 483 [37]): The applicant was entitled to have the jury assess as a preliminary to the objective test the gravity of the provocation by reference to her personal characteristics including her mental state, her lack of verbal skills, her state of health and her past sexual and other relationships with the deceased.

See also SMH Yeo, “Sex, Ethnicity, Power of Self-control and Provocation Re-visited” (1996) 18 Syd LR 304. Filippou v The Queen [2013] NSWCCA 92 at [92].

[16.7840] Attack by deceased on a relative of the accused An attack by the deceased on a relative of the accused, in the accused’s presence, may amount to provocation: R v Terry [1964] VR 248 (Pape J).

[16.7845] Ethnicity Ethnicity is a factor to be taken into account in assessing the gravity of the conduct said to be provocation. Examples R v Dincer [1983] 1 VR 460 (ruling and charge of Lush J); R v Tuncay [1998] 2 VR 19; (1987) 94 A Crim R 287 (CA); R v Abebe (2000) 1 VR 429; 114 A Crim R 398 (CA). In R v Yasso (No 2) (2004) 10 VR 466; 148 A Crim R 369 (CA) provocation should have been left where the victim spat at her Iraqi husband. In New South Wales the phrase “in the position of the accused” in the Crimes Act 1900 s 23(2)(b) has been interpreted or applying only to the gravity of the conduct: R v Baraghith (1991) 54 A Crim R 240 (NSW CCA). Special leave to appeal to the High Court was refused: Baraghith v The Queen (1991) 66 ALJR 212.

[16.7860]

PROVOCATION

1225

See also SMH Yeo, “Ethnicity and the Objective Test in Provocation” (1987) 16 MULR 67.

[16.7850] The ordinary Aboriginal person In Mungatopi v The Queen (1991) 2 NTLR 1; 105 FLR 161; 57 A Crim R 341 (CCA) the court held in a joint judgment (at 6; 166; 346): In the Northern Territory, the concept of “an ordinary person” has been held by Kearney J, in relation to that expression as it appears in s 34(2)(d) of the Criminal Code and for the purposes of that expression as it appears in the definition of “provocation” in the Code, to include an ordinary Aboriginal male person living today in the environment and culture of a fairly remote Aboriginal settlement, such as Milikapati: Jabarula v Poore (1989) 68 NTR 26; 42 A Crim R 479. Kearney J went on to observe (at 34; 488), in relation to such an ordinary person: He is neither drunk nor affected by intoxicating liquor, does not possess a particularly bad temper, is not unusually excitable or pugnacious, and possesses such powers of self control as everyone is entitled to expect an ordinary person of that culture and environment to have. He possesses such of the appellant’s general cultural characteristics as might affect [his] reaction to the [insult]. It was not argued by the Crown that the law as stated by Kearney J in Jabarula v Poore (1989) 68 NTR 26; 96 FLR 34; 42 A Crim R 479 was incorrect.

Approved: Verhoeven v Ninyette (1998) 101 A Crim R 24 (WA, Wheeler J). Followed: Doolan v Edgington (1999) 110 A Crim R 19 at 25 (NT, Martin CJ). [Note: NT Criminal Code s 34 has been repealed. Provocation now reduces murder to manslaughter under s 158 and has no other application.]

[16.7855] Ferocity of attack suggests loss of control In R v The Queen (1981) 28 SASR 321; 4 A Crim R 127 (CCA) the victim husband was attacked by an axe-wielding wife. He had raped his daughters who told their mother. She was convicted of murder. On appeal it was held that the trial judge was wrong not to leave provocation. King CJ said (at 327; 133): The ferocity of the attack and the words and actions which accompanied it, as described by the appellant, are suggestive of loss of control.

The High Court approved King CJ’s judgment. In Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 the majority said (at 68): There was ample evidence from which a jury might conclude that the appellant lost self-control as a result of the deceased’s conduct. Apart from his statement to the police that he lost self-control, the very ferocity of his actions in stabbing the deceased repeatedly in the presence of a number of onlookers suggests a loss of self-control: R v The Queen (1981) 28 SASR 321 at 327, per King, CJ.

[16.7860] Victim not provoking In R v Kenney [1983] 2 VR 470 Brooking J charged the jury (at 473): Provocation cannot be relied on unless the victim either was responsible for it or was believed by the accused to be responsible for it. A victim is responsible for provocation if he either does the provocative act himself or helps or encourages someone else to do it or acts in concert with someone else who does it. Here, you have two victims and you must consider in relation to each victim what acts of possible provocation there may have been.

1226

ROSS ON CRIME

[16.7865]

The relevant acts as regards each victim are those which you think it was possible (a) were done by the victim himself, or (b) were mistakenly believed by the accused to have been done by the victim himself, or (c) were done by someone else but with the help or encouragement of the victim or as part of a concerted action by the victim and someone else, or (d) were mistakenly believed by the accused to have been done by someone else with the help or encouragement of the victim or as part of a concerted action by the victim and someone else.

The case was applied in R v Tumanako (1992) 64 A Crim R 149 (NSW CCA). Badgery-Parker J said (at 155): [P]rovocative conduct which may sustain a defence of provocation need not necessarily be conduct of the deceased personally if it is conduct in the presence of the deceased by a person so closely associated with the deceased that it is reasonable for the jury to attribute the conduct of that person to the deceased. See Kenney [1983] 2 VR 470.

In R v Timoti [2006] 1 NZLR 323 (SCNZ) the court analysed s 169 and R v McGregor [1962] NZLR 1069 and concluded that if provocation did not come from the victim then accident or mistake were the only ways provocation could be used. Other cases Hart v The Queen (2003) 27 WAR 441; 139 A Crim R 520 (CCA); R v Pangilinan [2001] 1 Qd R 56 (CCA); R v Paniani [2000] 1 NZLR 234 (CA); R v McGregor [1962] NZLR 1069 (CA).

[16.7865] Provocation by partner Where a partner has provoked the accused by sexual words or conduct and the accused in a state of loss of control went on to kill another, provocation has been held to lie: Hutton v The Queen [1986] Tas R 24; (1986) 20 A Crim R 315 (CA); R v Gardner (1989) 42 A Crim R 279 (Vic CCA). Even if the accused is deluded, provocation still lies: in R v Voukelatos [1990] VR 1 (CCA) the accused wrongly thought his wife was unfaithful and killed her.

[16.7870] Provocation by homosexual advance An unwanted homosexual advance can amount to provocation: Green v The Queen (1997) 191 CLR 334; 148 ALR 659; 97 A Crim R 307; Lindsay v The Queen [2015] HCA 16. See also Santo De Pasquale, “Provocation and the Homosexual Advance Defence” (2002) 26 MULR 110-143.

[16.7875] Possessiveness and jealousy alone: no provocation Possessiveness and jealousy alone may not be provocation. Especially if the accused is male. In R v Smith [2001] 1 AC 146; [2001] 1 Cr App R 5; [2000] 4 All ER 289 (PC) Lord Hoffmann referred to Stingel v The Queen and said (at 169; 53; 309): Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover.

[16.7885]

PROVOCATION

1227

Approved: R v Conway (2004) 149 A Crim R 206 at 209 [7] (Vic CA). Nor may it be self induced: Edwards v The Queen [1973] AC 648; [1973] 1 All ER 152; 57 Cr App R 157 at 658; 158; 168 (PC); R v Allwood (1975) 18 A Crim R 120 (Vic CCA) per Crockett J at 132–133.

[16.7880] Mistake on identity of victim A person who is provoked may attack the wrong victim by mistake and still be able to rely on provocation. In Jabarula v Poore (1989) 68 NTR 26; 96 FLR 34; 42 A Crim R 479 Kearney J held (at 32; 40; 485–486): [A]n honest and reasonable, though mistaken, belief by an accused that his victim had done the act which provoked him (an act which was in fact done by another), renders the excuse of provocation under s 34(1) of the Code open to the accused who, provoked by that act and under that mistaken belief, misdirects his retaliation. See in general the observations of Brennan J on the effect of mistaken belief, in He Kaw Teh v R (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 at 573-576 (CLR).

In R v Abebe (2000) 1 VR 429; 114 A Crim R 398 (CA) Charles JA giving the leading judgment said (at 445; 415 [55]): It would, I think, be wrong for me to express more than a preference for the view that a mistaken belief, to be available as provocation, must be reasonable mistake. During the trial the Crown was content to have the matter put before the jury, in the chart, on a basis that was not subject to any limitation that the belief (if mistaken) should be a reasonable one (see the third paragraph). The matter has not been fully argued before this court in the written submissions of the parties.

Other cases R v Timoti [2006] 1 NZLR 323 (SCNZ); R v Porritt [1961] 1 WLR 1372; [1961] 3 All ER 463; 45 Cr App R 348 (CCA). An accused relying on such mistake bears an evidential burden: R v Wogandt (1983) 33 A Crim R 31 at 34 (Qld CCA).

[16.7885] Mere words alone In the murder case of R v Kumar (2002) 5 VR 193; 133 A Crim R 245 (CA) O’Bryan AJA with whom Batt JA agreed said (at 231; 284–285 [171] – [173]): This is a case where the objective test must be applied to “mere words alone”. In my opinion, the law on provocation has developed to the stage where, as a matter of principle, it may be stated that words which are merely insulting, hurtful and offensive, but are not of a “violently provocative character” cannot satisfy the objective test. Into the equation, account must be taken of the context in which the words were used and the degree of reaction produced by the words. In the present case, the words were no more than insulting, hurtful and offensive, but the applicant’s reaction, whether or not attributable to the words, was both extreme and of great ferocity, his intention being to kill and mutilate the deceased. In my opinion, if the applicant was angered and offended by the deceased’s words, no ordinary person could then and there form the necessary murderous intent and no reasonable jury properly instructed could find otherwise. It is the law that “violently provocative words”, in very exceptional circumstances, are capable of causing an ordinary person to lose self-control and act as ferociously as did the applicant, but I have never experienced such a case in my lengthy experience with the criminal law.

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[16.7890]

Eames JA delivered a long dissenting opinion. Yet in the murder case of R v Allwood (1975) 18 A Crim R 120 (Vic CCA) Crockett J said (at 130): I am prepared to assume for the purposes of the present case that words alone, at least words in combination with an attitude of mockery or scorn or spoken in a sneering manner or with such truculence that they are intended to and do have the effect of belittling or deriding him to whom they are spoken, can now amount to provocation sufficient to reduce murder to manslaughter.

See also Hart v The Queen (2003) 27 WAR 441; 139 A Crim R 520 (CCA) at [83] – [97].

[16.7890] “Hearsay” provocation In R v The Queen (1981) 28 SASR 321; 4 A Crim R 127 (CCA) King CJ said (at 325; 131): Words or conduct cannot amount to provocation unless they are spoken or done to or in the presence of the killer (R v Fisher (1837) 8 Car & P 182; 173 ER 452; R v Mouers (1921) 57 DLR 569; R v Terry [1964] VR 248; R v Arden [1975] VR 449) although, of course, such words or conduct may be important as part of the background against which what is said or done by the deceased to the killer is to be assessed.

In R v Quartly (1986) 11 NSWLR 339; 22 A Crim R 252 (CCA) the accused was told, reliably enough, that the victim had given heroin to Quartly’s former girlfriend, then raped her. Quartly found the victim and shot him dead. It was held that the trial judge was right in not leaving provocation. Appeal dismissed. (For a comment see 11 Crim LJ 179). The correctness of R v Quartly was questioned by McHugh and Hayne JJ when refusing special leave to appeal in Davis v The Queen (1998) 73 ALJR 139. The case was said to be “not a suitable vehicle to determine the correctness of R v Quartly (1986) 11 NSWLR 339; 22 A Crim R 252” (per McHugh J). Nevertheless R v Quartly has since been applied. Provocation is still no defence when the victim acts or speaks in the absence of the accused and where the accused kills on what was passed on by a third person: R v Davis (1998) 100 A Crim R 573 (NSW CCA); R v Dib (2002) 134 A Crim R 329 (NSW, Hulme J).

But see R v Kenney [1983] 2 VR 470 (Brooking J). Queensland adheres to its plain provisions that the provocation must occur in the presence of the accused. Qld: Criminal Code ss 268(1), 268(2) and 269. See for example Tough v Kay (1996) 87 A Crim R 278 (WA, Heenan J); R v Major [2013] QCA 114.

[16.7895] Emotions of the provoked In Van Den Hoek v The Queen (1986) 161 CLR 158; 69 ALR 1; 23 A Crim R 98 Mason J said (at 167; 7; 104): [P]rimarily anger is a feature of provocation and fear is a feature of self-defence.

Mason J went on to say (at 168; 105): The doctrine extends to a sudden and temporary loss of self-control due to an emotion such as fear, panic, anger or resentment.

[16.7915]

PROVOCATION

1229

In R v Chhay (1994) 72 A Crim R 1 (NSW CCA) Gleeson CJ said (at 14): Emotions such as hatred, resentment, fear, or the desire for revenge, which commonly follow ill-treatment, and sometimes provide a motive for killing, do not of themselves involve a loss of self-control although on some occasions, and in some circumstances, they may lead to it. What the law is concerned with is whether the killing was done whilst the accused was in an emotional state which the jury are prepared to accept as a loss of self-control.

[16.7900] Intoxication Intoxication of the accused is relevant only to the question of whether the accused lost self-control. In R v Cooke (1985) 39 SASR 225; 16 A Crim R 304 (CCA) King CJ said (at 235–236; 314): Provocation, for the purpose of reducing what would otherwise be murder to manslaughter, is as available to an intoxicated accused as to a sober accused. If an intoxicated accused has in fact lost his self-control, it becomes a question of fact for the jury whether that loss of self-control was caused by the deceased’s words or conduct or solely by the inflammatory effects of drink or drugs. If it has been caused by the deceased’s words or conduct, there is the further question whether an ordinary sober person might have reacted to the deceased’s words or conduct by doing what the accused did; but that question is objective in character and the answer must be unaffected by the fact that the particular accused was intoxicated at the time.

Other cases R v Hughes (1994) 76 A Crim R 177 (Qld CCA); R v Cowton (1993) 69 A Crim R 92 at 101 (NSW, Hunt CJ at CL); R v Croft (1981) 1 NSWLR 126; (1981) 3 A Crim R 307 at 149, 330 (CCA).

[16.7905] Regaining self-control Regaining self-control or composure is not tested by reference to the ordinary person. In Masciantonio v The Queen (1995) 183 CLR 58; 80 A Crim R 331; 129 ALR 575 Brennan, Deane, Dawson and Gaudron JJ said (at 69–70; 583; 339): The associated question whether, in the sequence of events, an accused, having lost his self-control, had regained it so that the continued infliction of injury was in fact no longer provoked, is not a question to be answered by reference to the ordinary person. It is to be answered by reference to the conduct of the accused himself and to common experience of human affairs. It is the nature and extent–the kind and degree–of the reaction or the precise physical form which that reaction might take. And in considering that matter, the question whether an ordinary person could form an intention to kill or do grievous bodily harm is of greater significance than the question whether an ordinary person could adopt the means adopted by the accused to carry out the intention.

[16.7910] Evidential onus on accused The accused has an evidential onus of raising provocation as an issue: Johnson v The Queen (1976) 136 CLR 619; 23 ALR 573. The evidence was found to be insufficient in R v Parsons (2000) 1 VR 161 (CA). It is not necessary that the accused give evidence of loss of control. Mrs Van Den Hoek denied losing control, yet the High Court held that provocation should have been left to the jury: Van Den Hoek v The Queen (1986) 161 CLR 158; 69 ALR 1; 23 A Crim R 98.

[16.7915] Judge’s duty In Stingel v The Queen (1990) 171 CLR 312; 97 ALR 1; 50 A Crim R 186 the court said in a joint judgment (at 318; 4; 188):

1230

ROSS ON CRIME

[16.7920]

It is common ground that the issue involved in the appeal, namely, whether a defence of provocation should have been left to the jury, falls to be resolved by reference to the version of events most favourable to the accused: see, eg, Lee Chun-Chuen v The Queen [1963] AC 220, at p 230; Parker v The Queen (1963) 111 CLR 610, at p 616; Bedelph v The Queen [1980] Tas R 23, at pp 30, 42; Hutton v The Queen [1986] Tas R 24, at pp 29-30.

Other cases R v Kumar (2002) 5 VR 193; 133 A Crim R 245 (CA) per Eames JA in dissent (at 217; 270 [102] – [103]) but approved in R v Yasso (No 2) (2004) 10 VR 466; 148 A Crim R 369 at 375 [17] (CA) and R v Conway (2004) 149 A Crim R 206 at 209 [6] (Vic CA). In R v Tumanako (1992) 64 A Crim R 149 (NSW CCA) Badgery-Parker J giving the leading judgment said (at 154): It is clear that there is an obligation on a trial judge to leave the jury a matter capable of being relied upon by the accused by way of defence, notwithstanding that he does not expressly seek to rely upon it, and notwithstanding that his counsel has not addressed the jury upon it. The question then is whether there was evidence which, if believed, might reasonably have led the jury to return a verdict of manslaughter on the ground of provocation.

See also R v Pangilinan [2001] 1 Qd R 56 (CA); R v Cowan (2005) 157 A Crim R 345 (Qld CA). Counsel may even persuade the judge not to leave provocation, notwithstanding there is evidence on the issue: R v Koutsouridis (1982) 7 A Crim R 237 (Vic CCA); R v Thorpe [1999] 1 VR 326; (1998) 102 A Crim R 278 (CA). The judge must leave provocation in that event. See also A Reilly, “Loss of Self-control in Provocation” (1997) 21 Crim LJ 320–335.

[16.7920] Judge’s directions to the jury In R v Thorpe (No 2) [1999] 2 VR 719 (CA) the court said in a joint judgment (at 724–725): 1. It is notoriously difficult to explain to a jury that provocation is not an alternative defence but something the Crown must negate, and then to relate that proposition to the facts, without inadvertently suggesting that an onus, however limited, lies on the accused … It is therefore wise to tell the jury that: (a) it is always difficult to give directions about provocation in a way which completely avoids any suggestion that the accused has to prove something; (b) any such suggestion is completely wrong; and (c) provocation is not a defence in the usual sense of the word but something which the Crown must exclude beyond reasonable doubt. 2. The objective test is whether the provocative words or conduct, measured in gravity by reference to the personal situation of the accused, could have caused an ordinary person to lose self-control to the extent that the accused did … Putting recklessness to one side … it is the formation of an intention to kill or do really serious physical injury and the carrying out of that intention which are the important considerations, rather than the precise way in which the accused reacted … In directing a jury, it is acceptable to use “might” rather than “could”, preferably saying that “might” in this context means the same thing as “could”. Experience shows that there is less chance of the judge’s accidentally transposing “would” and “might” or of the jury’s mishearing what the judge says. The corollary of both “could” and “might” is the Crown’s establishing that an ordinary person “would not” have lost self-control.

[16.8105]

PUBLIC HOLIDAYS

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3. All the elements of murder must have been proved beyond reasonable doubt (and self-defence excluded if self-defence is an issue) before any question of provocation arises. If the jury reach that question, the Crown must also prove beyond reasonable doubt that the killing was unprovoked in the relevant sense, for otherwise the offence will be manslaughter and not murder. It follows that they must acquit the accused of murder if there is a reasonable possibility that the killing was provoked … 4. The jury may be told, for example, as part of a charge on provocation in an appropriate case, that they must find the accused not guilty of murder if there is a reasonable possibility: (a) that provocative words or conduct caused him to lose self-control and kill the deceased in the heat of passion; and also (b) that a person with ordinary powers of self-control (of the same age as the accused where age may be relevant) might, in the same circumstances, have lost self-control to the point of forming an intention to kill or do really serious physical injury and carrying that intention out, and that the gravity of the provocation is to be assessed having regard to the personal characteristics of the accused when they are considering both those questions.

[16.7925] What an ordinary person “could” have done A judge must direct a jury that the objective test is what an ordinary person “could” have done: Heron v The Queen (2003) 77 ALJR 908; 197 ALR 81; 140 A Crim R 317 per Gleeson CJ at [4]; per Kirby J at [33]; per Callinan J at [75] ff. In R v Thorpe (No 2) [1999] 2 VR 719 (CA) the court suggested that a judge should use the word “might”. That sidesteps the risk of saying “would” rather than the correct “could”.

PUBLIC HOLIDAYS General ...................................................................................................................................... Holidays .................................................................................................................................... Easter ......................................................................................................................................... ANZAC Day ............................................................................................................................. Labour Day ............................................................................................................................... King’s or Queen’s birthday ...................................................................................................... Melbourne Cup Day ................................................................................................................. Christmas Day (December 25) and Boxing Day (December 26) ........................................... Legislation .................................................................................................................................

[16.8100] [16.8105] [16.8110] [16.8115] [16.8120] [16.8125] [16.8130] [16.8135] [16.8140]

[16.8100] General Time does not run for the filing of court documents when the day for filing falls on a public holiday. Such as in Bailey v AG (Vic) (1998) 101 A Crim R 133 at 135 (Vic CA). For example, High Court Rules 2004 (Cth) r 4.05.3 provides: Each office of the Registry shall be open during office hours on each day except: (a) Saturdays and Sundays; (b) any day observed as a holiday by the Australian Public Service or observed as a public holiday in the State or Territory of that office; (c) the days between Christmas Day and New Years Day inclusive.

[16.8105] Holidays New Year’s Day: 1 January. Where 1 January does not fall on a Monday there is a public holiday on the Monday following.

1232

ROSS ON CRIME

[16.8110]

Australia Day: 26 January. Where 26 January falls on a weekend there is a holiday on the following Monday.

[16.8110] Easter Easter is a lunar festival. The name is derived from the prechristian festival in honour of Eostre, the Germanic goddess of the dawn, which was held on the (Northern hemisphere) vernal equinox. Easter is calculated in the following way. The first equinox of the year falls on 21 March. Easter Sunday is the first Sunday after the first full moon after that equinox. Thus Easter Sunday will be between 22 March and 25 April. The holidays are Good Friday and Easter Monday, that is the weekdays either side of Easter Sunday.

[16.8115] ANZAC Day This day commemorates the landing in Gallipoli in Turkey in 1915 by Australian and New Zealand Army Corps (hence ANZAC). The day was 25 April and that day has been a public holiday everywhere in Australia since about 1920.

[16.8120] Labour Day Labour Day celebrates workers getting a reduction in the length of their daily toil to eight hours. The public holidays vary from place to place, but are always celebrated on a Monday. In Western Australia it is the first Monday in March. In Tasmania it is the second Monday in March: Eight Hour Day. Same date in Victoria. In Queensland and Northern Territory it is the first Monday in May. In the Northern Territory it is called May Day. In New South Wales, South Australia and the Australian Capital Territory it is the first Monday in October. In New Zealand it is the last Monday in October.

[16.8125] King’s or Queen’s birthday The King’s or Queen’s birthday is a public holiday in Australia. Except in Western Australia it is generally agreed to be the second Monday in June. In Western Australia it is the first Monday in October. There is no such holiday in New Zealand. In 1788 Governor Phillip declared a public holiday on the birthday of King George III which was 4 June. Until 1936 there was a holiday for the actual birth date of the reigning monarch. When George V died in that year the Australian authorities decided to retain his birth date as the holiday: 3 June. Now it has been transferred as set out above.

[16.8130] Melbourne Cup Day Victoria has a public holiday for the running of the Melbourne Cup. It is always the first Tuesday in November. It is the only place in the world which has a public holiday for a horse race.

[16.8135] Christmas Day (December 25) and Boxing Day (December 26) Christmas Day and Boxing Day are always December 25 and December 26.

[16.8140] Legislation States and Territories have their own public holidays. Cth: Acts Interpretation Act 1901 s 36; Qld: Acts Interpretation Act 1954 ss 36 and 38; Holidays Act 1983;

[16.8305]

PUBLIC INTEREST IMMUNITY

1233

WA: Interpretation Act 1984 s 61; Public and Bank Holidays Act 1972; Tas: Acts Interpretation Act 1931 s 29; Statutory Holidays Act 2000; NT: Interpretation Act s 28(2); Public Holidays Act; NSW: Interpretation Act 1987 s 36; Vic: Interpretation of Legislation Act 1984 s 44; Public Holidays Act 1993; SA: Acts Interpretation Act 1915 s 27; Holidays Act 1910; ACT: Legislation Act 2001 s 151A; Holidays Act 1958; NZ: Interpretation Act 1999 ss 29 and 35; Holidays Act 2003.

PUBLIC INTEREST IMMUNITY General rule ............................................................................................................................... Legislation ................................................................................................................................. Crown privilege is a misleading description ........................................................................... How the claim arises ................................................................................................................ Sufficiency of affidavit claiming immunity .............................................................................. Onus of proof ............................................................................................................................ Can the judge take a peep at the documents ........................................................................... Class or contents claim for immunity ...................................................................................... Court function is a two stage process ...................................................................................... Public interest immunity upheld .............................................................................................. Public interest immunity not upheld ........................................................................................ Contempt by publication .......................................................................................................... Public interest immunity cannot be waived .............................................................................

[16.8300] [16.8305] [16.8310] [16.8315] [16.8320] [16.8325] [16.8330] [16.8335] [16.8340] [16.8345] [16.8350] [16.8355] [16.8360]

[16.8300] General rule In Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 Gibbs ACJ said (at 38–39; 526): The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer [1968] AC 910 at p 940 as follows: “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done”. It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v Rimmer [1968] AC 910“the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it”. In such cases once the court has decided that “to order production of the document in evidence would put the interest of the state in jeopardy”, it must decline to order production.

[16.8305] Legislation Uniform Evidence Acts s 130 sets out exclusion of evidence of matters of state. For a discussion of the privilege in this context, see New South Wales v Public Transport Ticketing Corp [2011] NSWCA 60; Murdesk Investments Pty Ltd v Secretary to Department of Business and Innovation [2011] VSC 436; Derbas v R [2012] NSWCCA 14; Attorney General (NSW) v Lipton [2012] NSWCCA 156.

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[16.8310]

The party seeking exclusion bears the burden of proof on the balance of probabilities: s 142(1).

[16.8310] “Crown privilege” is a misleading description In Rogers v Home Secretary [1973] AC 388 (HL) the Lords did not agree with the use of the term Crown privilege. Lord Reid said (at 400) it was “wrong and may be misleading”. Lord Pearson stated (at 406) it “is not accurate”. Lord Simon stated that it was (at 406–407) “a misnomer and misleading”.

[16.8315] How the claim arises Generally the claim is made by or on behalf of a minister after a subpoena is received asking for the production of documents thought to be sensitive. In Alister v The Queen (1984) 154 CLR 404; 50 ALR 41 a subpoena was served on the officer in charge of ASIO. See also Subpoena at [19.6300]. However a court can invoke the principle of its own motion. Stephen J said in Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 (at 58–59): A claim to the privilege is not essential to the invoking of Crown privilege. In cases of defence secrets, matters of diplomacy or affairs of government at the highest level, it will often appear readily enough that the balance of public interest is against disclosure. It is in these areas that even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is afoot), a court, readily recognising the proffered evidence for what it is, can, as many authorities establish, of its own motion enjoin its disclosure in court.

[16.8320] Sufficiency of affidavit claiming immunity Mason J said in Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 (at 96): An affidavit claiming Crown privilege should state with precision the grounds on which it is contended that documents or information should not be disclosed so as to enable the court to evaluate the competing interests.

The affidavit to explain the claim more fully may itself be confidential, where the explanation, if made public, would threaten the protection of the public interest for which immunity is claimed: R v Rusmanto (1997) 6 NTLR 68 (Thomas J).

[16.8325] Onus of proof The body claiming immunity must demonstrate the need for that protection. In CJC v Collins (1994) 74 A Crim R 63 (Qld CCA) Macrossan CJ and McPherson JA said (at 66): It will be necessary for the body claiming immunity from disclosure to demonstrate the need for protection which its statutory function requires and establish the strength of that need in the particular case: cf Mason J in Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 (at 96).

[16.8330] Can the judge “take a peep” at the documents The expression comes from Burmah Oil Co Ltd v Bank of England [1980] AC 1090; [1979] 3 All ER 700 (HL) where Lord Edmund-Davies said (at 1129; 721): No judge can profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?

[16.8340]

PUBLIC INTEREST IMMUNITY

1235

(His Lordship did think it right to “take a peep”.) In Alister v The Queen (1984) 154 CLR 404; 50 ALR 41, the judges had a peep and with the exception of Murphy J decided that the ASIO documents about the witness Mr Seary would not have helped the appellant. In Beneficial Finance Corp Ltd v Australian Federal Police (1991) 31 FCR 523; 58 A Crim R 1; 103 ALR 167 (FCA) the primary judge had taken a peep at documents obtained by search warrants. Burchett J, with whom Shepherd J agreed, said that the judge had a discretion to take a peep and (at 551–552; 195–196; 29–30) analysed the law.

[16.8335] “Class” or “contents” claim for immunity In Commonwealth of Australia v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 the majority said (at 616; 413): The classification of claims for public interest immunity in relation to documents into “class” claims and “contents” claims has been described as “rough but accepted” (Burmah Oil Co Ltd v Bank of England, [1980] AC 1090; [1979] 3 All ER 700 at 1111 per Lord Wilberforce). It serves to differentiate those documents the disclosure of which would be injurious to the public interest, whatever the contents, from those documents which ought not to be disclosed because of the particular contents.

The court approved the dictum of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 when he said (at 42): I consider that although there is a class of documents whose members are entitled to protection from disclosure irrespective of their contents, the protection is not absolute, and it does not endure for ever. The fundamental and governing principle is that documents in the class may be withheld from production only when this is necessary in the public interest. In a particular case the court must balance the general desirability that documents of that kind should not be disclosed against the need to produce them in the interests of justice. The court will of course examine the question with especial care, giving full weight to the reasons for preserving the secrecy of documents of this class, but it will not treat all such documents as entitled to the same measure of protection–the extent of protection required will depend to some extent on the general subject matter with which the documents are concerned. If a strong case has been made out for the production of the documents, and the court concludes that their disclosure would not really be detrimental to the public interest, an order for production will be made.

In R v Polley (1997) 68 SASR 227; 93 A Crim R 325 (CCA) Mullighan J said (at 245; 343): There is a heavy burden on any authority which claims class immunity: Rogers v Home Secretary [1973] AC 388 at 400 per Lord Reid and Sankey v Whitlam (at 62–63) per Stephen J. The test is whether withholding of the documents is really necessary for the proper functioning of the State or the public service: see Conway v Rimmer [1968] AC 910 where it was held that only documents relating to decision making at the very highest levels could lay claim to automatic class immunity. Usually such a claim is harder to justify in relation to the documents of the lower levels of government. Indeed, Lockhart J in Zarro v Australian Securities Commission (1992) 36 FCR 40 at 46 expressed the view that the class doctrine is confined to rare cases of documents involving high government policy and decision-making. In Chief Constable of West Midlands Police; Ex parte Wiley [1995] 1 AC 274, the House of Lords rejected the contention that documents of the Police Complaints Authority should not be produced on the basis of a class based public interest immunity: see Lord Woolf at 305–306.

[16.8340] Court function is a two stage process In CJC v Collins (1994) 74 A Crim R 63 (Qld CA) Macrossan CJ and McPherson JA said (at 66): The court’s decision will involve a balancing exercise once it has been decided that a public policy entitlement to protection exists. At this point the policy need for protection of the due functioning

1236

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[16.8345]

of the body’s process will be balanced against the conflicting need to ensure that the demands of justice are served with protection offered to the individual rights involved. This balancing exercise has been described as a two-stage process. At the first stage the concern is to determine whether a valid claim to public policy immunity arises by reason of the intended statutory function of the body on whom the demand for disclosure is made and then, in the particular circumstances of the case, there follows a weighing of the relative strength of that need and the competing need for reasons of justice to give access to the information which is sought: Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505; Alister v The Queen (1984) 154 CLR 404.

In Haydon v Magistrates Court (2001) 87 SASR 448 (FC) Perry J with whom the others agreed said (at 463 [66]): 7. In all cases where the question of public interest immunity arises, it is for the court and not for the executive government to determine whether or not the immunity exists and should be enforced. 8. In determining a claim of public interest immunity, the court undertakes a balancing exercise, weighing on the one hand the asserted public interest against disclosure against the public interest in ensuring that the court has access to all relevant evidence.

[16.8345] Public interest immunity upheld Jarvie v Magistrates Court (Vic) [1995] 1 VR 84 (FC): identity of undercover police. NTIEU v Commonwealth (2001) 111 FCR 583; 188 ALR 614 (Weinberg J): cabinet documents. Haydon v Magistrates Court (2001) 87 SASR 448 (FC): video and transcript of record of interview made by a police informer in the Snowtown murder case. In DPP v Selway (2007) 16 VR 508; 212 FLR 345; 173 A Crim R 369 (Cummins J) the accused was charged with murder. The accused subpoenaed surveillance methodology from the police. The defence hoped to prevent the prosecution from leading evidence of the accused’s statements. The police claimed public interest immunity. His Honour refused access to the material. His Honour (at [4] – [9]) interpreted “on the cards.”

[16.8350] Public interest immunity not upheld Sayer v National Mutual Life Assoc of A’Asia Ltd (1994) 34 NSWLR 132 (CA): the identity of former clients of a solicitors who were trying to recover their money or property from the solicitor’s receiver. Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10; 128 ALR 391: evidence given privately to an arbitrator. CJC v Collins (1994) 74 A Crim R 63 (Qld CA): on an assault police charge, the policeman’s account of the incident to the Criminal Justice Commission. Conway v Rimmer [1968] AC 910 at 952 (HL); Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 at 96 per Mason J: Cabinet documents of purely historical significance.

[16.8355] Contempt by publication A newspaper published documents which a judge had ruled were covered by public interest immunity but were necessary for an appeal subject to restriction. The reporter could not verify the judge’s ruling. It was held there was no contempt: Attorney-General v Newspaper Publishing Pty Ltd [1997] 1 WLR 926; 2 All ER 159 (CCA).

[16.8360] Public interest immunity cannot be waived In DPP, Reference under s 639A of Criminal Code; Re Y (1998) 19 WAR 47; 100 A Crim R 166 (FC) the court said (at 54; 174):

[16.8505]

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1237

There is indeed ample authority that public interest immunity cannot be waived: see, eg, R v Lewes Justices; Ex parte Home Secretary (at 407); Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394 at 436; Science Research Council v Nasse [1980] AC 1028 at 1074. As was observed by Viscount Simon LC, once it is shown that there is a public interest worthy of protection, the court should insist on its protection which is “quite unconnected with the interests or claims of the particular parties in litigation”: see Duncan v Cammell Laird & Co Ltd [1942] AC 624 at 642.

In NTIEU v Commonwealth (2001) 111 FCR 583; 188 ALR 614 Weinberg J held (at 595; 626 [48]): Waiver of public interest immunity is not possible: Rogers v Home Department State Secretary [1973] AC 388 at 406-7; [1972] 2 All ER 1057. Moreover, the rule which permits secondary evidence of a privileged document to be adduced is inapplicable to documents which are the subject of a claim for public interest immunity.

See also Informer at [9.2300].

PUBLICITY Importance of freedom of the press ......................................................................................... Publication of name of accused ............................................................................................... Meaning of publication ............................................................................................................. Publicity and fair trial: appeal ground ..................................................................................... Possibility of juror’s knowledge of prior conviction because of publicity ............................ Publicity about similar offences ............................................................................................... Is an adjournment appropriate – the test ................................................................................. No publicity of sexual charges ................................................................................................. Publication of name of witness ................................................................................................ Possible direction on adverse publicity .................................................................................... Suppression order ......................................................................................................................

[16.8500] [16.8505] [16.8510] [16.8515] [16.8520] [16.8525] [16.8530] [16.8535] [16.8540] [16.8545] [16.8550]

[16.8500] Importance of freedom of the press In Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593; [2004] 3 WLR 1129; [2004] 4 All ER 683 (HL) Lord Steyn with whom the others agreed said (at 607; 1141; 696 [29]): The importance of the freedom of the press to report criminal trials has often been emphasised in concrete terms. In R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977 Lord Woolf MR explained: The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely … Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary. These are valuable observations.

[16.8505] Publication of name of accused In R v Davis (1995) 57 FCR 512; 81 A Crim R 156 (FCA) the court said in a joint judgment (at 514; 157):

1238

ROSS ON CRIME

[16.8510]

In Canberra as elsewhere, the media habitually report pre-trial proceedings, including evidence given in committal proceedings. Whatever their motives in reporting, their opportunity to do so arises out of a principle that is fundamental to our society and method of government: except in extraordinary circumstances, the courts of the land are open to the public. This principle arises out of the belief that exposure to public scrutiny is the surest safeguard against any risk of the courts abusing their considerable powers. As few member of the public have the time, or even the inclination, to attend courts in person, in a practical sense this principle demands that the media be free to report what goes on in them This includes the names of parties to proceedings, which are ordinarily known to everyone in court. There are a few exceptions to this general principle. One exception concerns people claimed to be victims of crime; particularly sexual offences.

and later (at 514–515; 158): However, the position is different in relation to the names of persons charged with criminal offences. In that area there is no general rule or practice in favour of suppression. In some jurisdictions, including the Australian Capital Territory, names may be reported. Of course, this situation comes at a price. In the case of an innocent person, that price may be great. At the same time, publicity has occasionally caused undiscovered witnesses to come forward, a matter which should not be overlooked where names are suppressed, whether of an accused or, indeed, of complainants. In a case where a jury trial follows publicity, nobody could doubt that jurors sometimes come to court with a recollection of a media report naming the accused and a preconceived idea about the case, even about the accused person’s guilt or innocence. This is why judges routinely instruct jurors to put media reports out of their minds and to decide the case only on the basis of what they hear and see in court. We cannot know to what extent jurors heed this instruction, but the system assumes that they do.

The court allowed publication of the name of the accused. It also ordered a permanent stay of proceedings because of prejudice arising from destruction of his records. See also Herald & Weekly Times Ltd v Magistrates’ Court (Vic) [1999] 2 VR 672 (Beach J).

[16.8510] Meaning of publication Roget v Flavel (1987) 47 SASR 402 at 406 (Cox J); Thompson v Lane (2005) 158 A Crim R 292 at 297–299 [28] – [37] (WA, Simmonds J).

[16.8515] Publicity and fair trial: appeal ground In R v West [1996] 2 Cr App R 374 (CA) the accused was charged with many murders. The pre-trial publicity was extensive and hostile to the accused. Lord Taylor CJ said (at 385–386): [H]owever lurid the reporting, there can scarcely ever have been a case more calculated to shock the public who were entitled to know the facts. The question raised on behalf of the defence is whether a fair trial could be held after such intensive publicity adverse to the accused. In our view it could. To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd. Moreover, providing the judge effectively warns the jury to act only on the evidence given in court, there is no reason to suppose that they would do otherwise.

In Attorney-General v MGN Ltd [1997] 1 All ER 456 (QBD) the court found that pre-trial publicity was not contempt. Schiemann LJ said (at 458): The present application focuses, as these applications usually do, on the tension between two desiderata-(1) the desire that a person facing trial should face a tribunal which is not prejudiced against him by reason of matters which have not been proved in evidence, and (2) the desire that newspapers should be free to publish what they please.

[16.8515]

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1239

In Murphy v The Queen (1989) 167 CLR 94; 40 A Crim R 361; 86 ALR 35 Mason CJ and Toohey J said (at 98–99; 38; 364): It is fundamental that, for an accused to have a fair trial, the jury should reach its verdict by reference only to the evidence admitted at trial and not by reference to facts or alleged facts gathered from the media or some outside source. However, the might of media publicity in “sensational” cases makes such a pristine approach virtually impossible. Recognizing this, the courts have used various remedies such as adjournment, change of venue, severance of the trial of one co-accused from that of the others, express directions to the jury to exclude from their minds anything they may have heard outside the courtroom and the machinery of challenge for cause. It may be that in a particular case none of these remedies will be fully effective. But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury.

In Dupas v The Queen (2010) 241 CLR 237; 203 A Crim R 186; 84 ALJR 488; [2010] HCA 20, the High Court considered the scope and application of the right to an impartial hearing in the context of adverse media publicity. It was submitted that the mass adverse media attention received by the appellant meant that he could not receive a fair trial on the charge of murder, necessitating a permanent stay of the charges. Prior to the trial he had received wide-ranging negative publicity. This was in the form of extensive internet and television coverage, more than 100 newspaper articles and four books which extensively related to him. The coverage referred to Dupas as a “monster” and “pure evil”. The High Court set down a general and clear statement of principle, when it expressly stated that the following passage by Mason CJ and Toohey J in R v Glennon (1992) 173 CLR 592; 60 A Crim R 18; 106 ALR 177; [1992] HCA 16 was an “authoritative statement of principle”. It stated, at [18]: [A] permanent stay will only be ordered in an extreme case [20] and there must be a fundamental defect “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences” [21]. And a court of criminal appeal, before it will set aside a conviction on the ground of a miscarriage of justice, requires to be satisfied that there is a serious risk that the pre-trial publicity has deprived the accused of a fair trial. It will determine that question in the light of the evidence as it stands at the time of the trial and in the light of the way in which the trial was conducted, including the steps taken by the trial judge with a view to ensuring a fair trial.

Accordingly, negative pre-trial publicity is capable of leading to a permanent stay where the trial judge cannot relieve against its unfair impact. It rejects the submission that a permanent stay is necessary on the basis the judicial directions can cure juror prejudgment. The Court stated, at [38]: The apprehended defect in the appellant’s trial, namely unfair consequences of prejudice or prejudgment arising out of extensive adverse pre-trial publicity, was capable of being relieved against by the trial judge, in the conduct of the trial, by thorough and appropriate directions to the jury.

Earlier, the Court noted, at [29]: Whilst the criminal justice system assumes the efficacy of juries, that “does not involve the assumption that their decision-making is unaffected by matters of possible prejudice”. [30] In Glennon, Mason CJ and Toohey J recognised that “[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial”. [31] What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

There has been only one occasion in Australia’s history where it has been held that adverse media publicity should result in an acquittal: the 1934 High Court decision of Tuckiar v The King (1934) 52 CLR 335; [1934] HCA 49. In this case, the lawyer for the accused made a statement that his client confessed to the killing with which he had been charged. On appeal

1240

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[16.8520]

it was held that deficiencies in the trial should have led to a retrial, but in light of the publicity given to the defence lawyer’s statement a retrial was not possible and the High Court directed an acquittal. Tuckiar was thus a case of post-trial, rather than pre-trial, publicity but the principles that are relevant to the disposition of the matter are the same as in cases of pre-trial publicity. The High Court in Dupas surprisingly did not seek to overturn Tuckiar. It stated, at [34], that: In Tuckiar, unfairness to the accused at a retrial, which could not be relieved against, was, … “the certain knowledge of his guilt” [46], revealed in open court by his counsel at his first trial. There is a difference between media opinion as to guilt and a public revelation of guilt by an accused’s own counsel. The unfair consequences of the former can be relieved against by direction from the trial judge whereas the unfair consequences of the latter cannot be remedied.

Other cases R v Abu Hamza [2007] QB 659; [2007] 3 All ER 451; [2007] 1 Cr App R 27 (CCA); R v Forbes (2005) 160 A Crim R 1 (NSW CCA); R v Georgiou (2002) 131 A Crim R 150 (Qld CA); R v BWT (2002) 129 A Crim R 153 at 167–173 [54] – [62] (NSW CCA) (This part is omitted in the report of the case 54 NSWLR 241); R v Glennon (No 2) (2001) 7 VR 631 (CA); R v D’Arcy (2001) 122 A Crim R 268 (Qld CA); R v Richards and Bijerk (1999) 107 A Crim R 318 (NSW CCA); R v Simpson (1999) 75 SASR 195; 106 A Crim R 590 (CCA); R v Lewis [1994] 1 Qd R 613; (1992) 63 A Crim R 18 (CA); Bush v The Queen (1993) 43 FCR 549; 115 ALR 654; 69 A Crim R 416 (FCA).

[16.8520] Possibility of juror’s knowledge of prior conviction because of publicity In R v Glennon (1992) 173 CLR 592; 60 A Crim R 18; 106 ALR 177; [1992] HCA 16 Mason CJ and Toohey J said (at 603; 185; 25): The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.

This was endorsed in Dupas v The Queen (2010) 241 CLR 237; 203 A Crim R 186; 84 ALJR 488; [2010] HCA 20.

[16.8525] Publicity about similar offences In R v Thatcher (1985) 37 SASR 597 King CJ ruled (at 599): In general … it would be wrong for courts to postpone trials simply because there has been recent publicity of a general character concerning the administration of justice or concerning crime or concerning crime of the particular type which is charged against the accused person. Indeed it would be virtually impossible for the criminal justice system to operate effectively if the principle were accepted that trials should be postponed simply because there had been recent publicity of that general kind.

[16.8530]

PUBLICITY

1241

[16.8530] Is an adjournment appropriate – the test In R v Long; Ex parte Attorney-General (2003) 138 A Crim R 103 (Qld CA) (the Childers backpacker murder case), Jerrard JA examined many authorities and said (at 141–142 [166]): Those decisions establish that considerations which are relevant on an application for a stay based on pretrial publicity include: 1. The extent and nature of the publicity, when it occurred, and the nature of the offence charged. 2. The legitimate public interest, and legitimate private interest(s) of a person charged with a crime, the witnesses, the victim of the alleged crime and their relatives, in the ordinary and expeditious process of prosecution to verdict of those charges. 3. That in this era of intense commercial publication of information about immediately current events, and easy electronic access to that, there can be no guarantee an individual juror may not have been influenced by pretrial publicity. 4. That recognition of that possibility requires judges to do what can be done to protect the integrity of the criminal process, including but not limited to punishment for contempt, adjourning a trial until the influence of prejudicial publicity subsides, ordering a change of venue for the hearing of the trial, ordering separate trials for different accused persons, and giving express directions to jurors that their verdict must be based on the evidence given before them on the trial and that in reaching that verdict they must disregard knowledge otherwise acquired. 5. That of necessity the law places much reliance on the integrity and sense of duty of jurors to comply with such directions and give a verdict based on the evidence led. Accordingly, it is necessary to show more than the possibility that a juror or jurors would have gained knowledge of prior convictions to support the argument that it was likely those jurors would or did ignore or disobey directions given. 6. That the necessary assumption that jurors understand and follow directions given by trial judges can give way to recognition that jurors’ decision making is affected by matters of possible prejudice, where more is shown than the mere possibility a juror would have gained knowledge of inadmissible and prejudicial matters. It is in these cases that the discretionary exercise of the powers of the trial judge is critical, including the power of ajournment for a lengthy period. 7. That a permanent stay will be ordered only in an extreme case where there has been adverse pretrial publicity of such a nature that nothing a trial judge can do in the conduct of the trial could relieve against its unfair consequences. The need to maintain public confidence in the administration of justice, and the public interest in ensuring that the judicial processes are not abused and that trials are fair to the peopl charged, means that a permanent stay should be ordered when it is impossible to ensure that a fair trial could take place. 8. That the fact that adverse publicity is deliberately generated by those for whom the Crown should properly be held responsible may have the result that justice requires a permanent stay be granted.

Other cases In R v McGee (2008) 102 SASR 318 (CCA) the District Court judge had refused a stay and rightly so said the CA. Relevant factors were the length of time between publicity and trial, the usual screening of the jury panel and that the publicity was about other proceedings and circumstances. In Western Australia v Martinez (2006) 159 A Crim R 380 (WA, EM Heenan J) there had been adverse publicity. Nevertheless his Honour refused to hear the murder case alone and directed that it be heard by judge and jury.

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ROSS ON CRIME

[16.8535]

R v Martin (No 4) (1999) 105 A Crim R 390 (SA, Debelle J). R v Plunkett (1997) 69 SASR 452 (CCA). See also Stay at [19.5900].

[16.8535] No publicity of sexual charges Legislation forbids publication of such details as may identify a complainant in a sexual case. Yet if there is publicity, that may explain the similarities of the evidence of different complainants. In that event the jury must be warned. In R v Glennon (No 2) (2001) 7 VR 631 (CA) Callaway J said (at 689 [159]): [t]he judge might say something to the following effect: You have heard that there was media publicity about allegations levelled at the accused. This is not evidence that those allegations were true. The media publicity is completely irrelevant except for the possibility, as the defence contends, that it influenced the complainants and explains what the Crown says are the similarities between their accounts. You must be satisfied beyond reasonable doubt that media publicity was not the explanation for those similarities and that the complainants’ allegations are truly independent of each other before you use the kind of reasoning that I have just described.

Winneke P and Ormiston JA approved the direction (at 663 [73]). See also Victim impact statement (Sexual offences) at [22.935] and Similar facts (Collusion) at [19.4490].

[16.8540] Publication of name of witness See Witness at [23.700].

[16.8545] Possible direction on adverse publicity The whole of the potential jurors might need to be addressed about adverse publicity before empanelment.9 A judge will need to give a direction to avoid a perceptible risk of miscarriage.10 A judge might say (after arraignment): 1. As you have heard, the accused is charged with (state the offence and any relevant particulars). 2. I know that there has been a good deal of publicity about this case. (That was quite some time ago). I expect that there has also been some talk in the community, and perhaps rumours about what happened. 3. Before any of you can take your place as a juror you must first take an oath or an affirmation. The effect of that solemn promise is that you will listen to the evidence and give a true verdict. 9 R v Von Einem (1991) 55 SASR 199; 52 A Crim R 373 at 218; 392 (Duggan J); R v Martin (No 4) (1999) 105 A Crim R 390 at 395 [18] (SA, Debelle J). 10 Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 86.

[16.8550]

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4. The word “evidence” means what the witnesses say and do in this court.11 5. If you are a juror you must confine yourself to the evidence in this court, and disregard everything else. 6. You will have to put from your mind anything you hear about the case outside court, in the media or anywhere. You will not discuss the case with anyone outside court. 7. You will also have to put from your mind everything you might have heard already about the case. 8. This case is trial by jury, not trial by media12 or by gossip or rumour.13 9. There may be some of you who feel that you are not able to disregard what you believe you already know about this case. That is, you cannot free your mind from prejudice and prejudgment.14 10. If any of you feels so affected by what you have already seen, read or heard about this case that you might not be able to return a true verdict, I will excuse you from sitting as a juror.15 [19] (SA, Debelle J).

[16.8550] Suppression order A court can make an order suppressing publicity about a person facing trial. In Channel Seven Adelaide Pty Ltd v Draper (2004) 90 SASR 160; 151 A Crim R 309 (CA) Mr A had been charged with murder. His notoriety was increased when a female federal politician took him overseas as her “boyfriend” at taxpayers expense. The court ordered that a suppression order remain to stop publicity of Mr A’s charges. In General Television Corporation Pty Ltd v DPP (2008) 19 VR 68; 182 A Crim R 496 (CA) the court approved a judge’s order suppressing the TV programme “Underbelly” until the trials connected with the programme were finished. But in DPP v Williams (2004) 10 VR 348 Cummins J was asked by the prosecution for suppression orders. His Honour made a review of authority and refused to suppress publication. Other cases John Fairfax Publications Pty Ltd v District Court (NSW) (2004) 61 NSWLR 344; 148 A Crim R 522 (CA); Herald and Weekly Times Ltd v DPP (2003) 86 SASR 70 (FC). In Re Prosecutions under the Controlled Substances Act (1987) 26 A Crim R 183 (No 1) (SA, Prior J). Hamzy v The Queen [2013] NSWCCA 156

11 R v Georgiou (2002) 131 A Crim R 150 at 153 [18]; R v Dudko (2002) 132 A Crim R 371 at 375 [22]. 12 R v Glennon (1992) 173 CLR 592; 60 A Crim R 18; 106 ALR 177; [1992] HCA 16 per Brennan J at 614 (CLR). 13 R v Yuill (1993) 69 A Crim R 450 at 454; R v Richards and Bijerk (1999) 107 A Crim R 318 at 327 [52]. 14 R v Glennon (1992) 173 CLR 592; 60 A Crim R 18; 106 ALR 177; [1992] HCA 16 at 624 (CLR); R v Long (2002) 128 A Crim R 11 at 16 [24] (Qld, Dutney J). 15 R v Martin (No 4) (1999) 105 A Crim R 390 at 395.

1244

ROSS ON CRIME

[16.8700]

See also “Prejudicial Pre-Trial Media Publicity” [2000] Alt LJ 1. Venue at [22.300].

PUBLIC PLACE Definition (at common law) ..................................................................................................... Payment to enter ....................................................................................................................... Examples ................................................................................................................................... Proof of public place ................................................................................................................ Sex within view of a public space ........................................................................................... Legislation .................................................................................................................................

[16.8700] [16.8705] [16.8710] [16.8715] [16.8720] [16.8725]

[16.8700] Definition (at common law) “The word ‘place’ is not a word of art and its meaning may be different in different statutes”: Scott v Cawsey (1907) 5 CLR 132 (at 141 per Griffith CJ). In Ward v Marsh [1959] VR 26 (FC) the issue was whether the ground floor of the Myer Emporium was a public place. Lowe J said (at 28): “Public Place” covers every place to which the public qua public may at the relevant time go. It is immaterial that none at such time is present. It is also immaterial how the right of the public to go to such places arises … All that is necessary is that at the time in question members of the public may, because they are members of the public, go to the place if they choose.

Sholl J enunciated two propositions (at 36–37): (a) a “public place” includes a place to which the public generally is in the habit of going in substantial numbers (with or without some limitation of hours) whether by right or not, and whether substantial numbers are actually present at the relevant time or not, provided that is within the limitation of hours (if any) … (b) it includes also a place to which the public is in the habit of resorting as such by reason of its public purpose or character (with or without some limitation of hours), even though not in substantial numbers, whether any of the public are present at the relevant time or not, provided it is within the limitation of hours (if any).

Other cases R v Clark [2005] 1 SCR 6; (2005) 249 DLR (4th) 257; (2005) 193 CCC (3d) 289; Bogdal v The Queen [2008] EWCA Crim 1 (16 January 2008).

[16.8705] Payment to enter The fact that the public has to pay to enter does not prevent its being a public place: Howard v Murphy; Sainsbury v Palmer (1907) 28 ALT (Supp)10; 13 ALR (CN) 3; Airton v Scott (1909) 22 Cox CC 16.

[16.8710] Examples Public place Road: Semple v Howes (1985) 38 SASR 34 (FC); DPP v Jones [1999] AC 240; [1999] 2 All ER 257; [1999] 2 Cr App R 348 (HL); Tram: Milne v Mutch [1927] VLR 190 at 193 (McArthur J); Train: Langrish v Archer (1882) 10 QBD 44; [1881-1885] All ER 913; Shop: Ward v Marsh [1959] VR 26 (FC); Telephone box: R v Chill [1935] NZLR 186 (CA);

[16.8720]

PUBLIC PLACE

1245

Landing of block of flats: Knox v Anderton (1983) 76 Cr App R 156 (DC); Service station: Dowling v Nominal Defendant (1975) 6 ACTR 17 (Connor J); Car park: R v Abrahams [1984] 1 NSWLR 491; (1984) 13 A Crim R 113 (CCA); Car park behind a hotel: Attorney-General’s Reference No 3 of 1983 [1985] 2 WLR 253; 1 All ER 502; R v Annakin (1988) 17 NSWLR 202; 37 A Crim R 131 (CCA); Police station foyer may be: Bethune v Heffernan [1986] VR 417 (Nathan J); Football ground: Cawley v Frost [1976] 1 WLR 1207; 3 All ER 743 (CA); Caravan park: DPP v Vivier [1991] 4 All ER 18 (DC).

Not a public place Police station: E (a Child) v Staats (1994) 13 WAR 1; 76 A Crim R 343 (White J). Inside a car on a road: Hardman v Minehan (2003) 57 NSWLR 390 sub nom Hardman v DPP (2003) 138 A Crim R 560 (CA). Front yard of a house: R v Roberts [2004] 1 WLR 181; [2004] 1 Cr App R 178 (CA).

[16.8715] Proof of public place Archbold, Criminal Pleading Evidence and Practice (Sweet & Maxwell,London 1998) says (at para 24–113 p 1848): Before land can be said to be public, the onus is on the prosecution to prove that the public had access to it,and the best way of doing so is to prove they actually use it: Pugh v Knipe [1972] RTR 286, DC. Where a place is a “public place”, before it can become a private place there must be evidence which shows that after a certain hour or a particular point in time there is some physical obstruction to be overcome, so that anyone entering does so in defiance of the prohibition, express or implied: R v Waters, 47 Cr App R 149, CCA. In Sandy v Martin [1974] Crim LR 258, DC the defendant parked his car in a car park bearing a notice that it was for the use of patrons of the inn only. The defendant remained in the inn until closing time and an hour later was found by the police leaning against his van in the car park, drunk. The court, upholding the justices’ decision to dismiss the information as they were not satisfied that an otherwise private place is public if and so long as the public have access at the invitation of the landowner. Here, there was no evidence that the licensee’s invitation continued an hour after closing time.

[16.8720] Sex within view of a public space In R v Clark [2005] 1 SCR 6; (2005) 249 DLR (4th) 257; (2005) 193 CCC (3d) 289 (SCC) the accused was alleged to be masturbating inside his home. The light was on and there were no curtains. From the street the accused could only be seen from the neck and shoulders up. Held: not a public place. In Pregelj v Manison (1987) 51 NTR 1; 88 FLR 346; 31 A Crim R 383 (CCA) the appellants were having sexual intercourse within their bedroom. The light was on and there were no curtains. An off duty policeman saw them from the street. Both accused said they thought their sex was private and that they couldn’t be seen. Held: appeal allowed and the conviction quashed. Mens rea is an element of the offence.

1246

ROSS ON CRIME

[16.8725]

[16.8725] Legislation Qld: Summary Offences Act 2005 Sch 2 Dictionary; Police Powers and Responsibilities Act 2000 Sch 6 Dictionary; Criminal Code s 230A; WA: Criminal Code s 1(1); Tas: Police Offences Act 1935 s 3(1); NT: Summary Offences Act s 5; Evidence Act s 62; Interpretation Act s 59A; Police Offences Act s 120A; NSW: Summary Offences Act 1988 s 3; Crimes Act 1900 s 8; Vic: Summary Offences Act 1966 s 3; SA: Evidence Act 1929 s 62; Summary Offences Act 1953 s 4(1); ACT: Crimes Act 1900 s 8; Public Place Names Act 1989 s 2; NZ: Summary Offences Act 1981 s 2(1); Eng: Criminal Justice and Police Act 2001 s 16(1); Can: Criminal Code s 150.

Q QUESTION OF LAW RESERVED The nature of the proceeding ..................................................................................................... [17.100] Court confined to facts stated by the judge ............................................................................... [17.105] Treated as an appeal against conviction ..................................................................................... [17.110] Northern Territory: procedure available to the defence only .................................................... [17.115] Order of submissions .................................................................................................................. [17.120]

[17.100] The nature of the proceeding A question of law is one referred by a trial judge to the Court of (Criminal) Appeal. Like the appeal provisions, the power to reserve a question of law is derived only from statute. Thus it is necessary to turn to the statute in different jurisdictions to discern the nature of the power. This proceeding parallels a case stated.

Legislation Cth: Judiciary Act 1903 s 72; Qld: Criminal Code s 668B; Tas: Criminal Code s 387; NT: Criminal Code s 408; NSW: Criminal Appeal Act 1912 s 5A; Vic: Criminal Procedure Act 2009 s 302; SA: Criminal Law Consolidation Act 1935 s 350. The legislation in Commonwealth, Queensland and the Northern Territory is identical other than for designation of the trial judge and of the accused. These jurisdictions make the reservation of the question of law mandatory. Other jurisdictions use the word “may” or “discretion”.

[17.105] Court confined to facts stated by the judge Ordinarily a court should not go outside the facts stated by the judge: Thomas v The King (1937) 59 CLR 279 at 286. But in R v Miller [1990] 2 Qd R 566; (1990) 46 A Crim R 382 (CCA) Macrossan CJ delivering the leading judgment, said (at 567; 383): Strictly, the court is obliged under this procedure to deal only with questions of law. Any additional explanation provided to the court of what took place below but which is not contained in the case stated should not be taken into account by us. However, while we have no power in answering the questions to go beyond the case stated by the learned trial judge and while it is ordinarily not appropriate to annexe the transcript of proceedings below (see R v Clarke [1956] QSR 93) we may usefully take further matters into account when dealing with the broader issue of what should be done once the questions have been answered.

1248

ROSS ON CRIME

[17.110]

In Secretary v The Queen (1996) 5 NTLR 96; 107 NTR 1; 131 FLR 124; 86 A Crim R 119 (CCA) Mildren J, giving the leading judgment, said (at 101; 6; 129; 125): We must therefore confine ourselves to the special facts. Lest it may be thought that this procedure may give rise to injustice, the practice is for the trial judge to settle the special facts and the question of law with counsel for the accused and for the Crown, which we were told was done in this case. However, where the trial judge has given reasons for his ruling, as was done in this case, there is no rule that precludes us from considering those reasons, just as we may consider any other legal materials helpful to the resolution of the question reserved.

[17.110] Treated as an appeal against conviction This procedure is treated as if it were an appeal against conviction: R v Demicoli [1971] Qd R 358 (CCA); Secretary v The Queen (1996) 5 NTLR 96; 107 NTR 1; 131 FLR 124; 86 A Crim R 119 (at 108; 12; 136; 131) (CCA).

[17.115] Northern Territory: procedure available to the defence only In the Northern Territory , the procedure is available only to the defence: R v Hofschuster [No 3] (1994) 94 NTR 45; 121 FLR 76 (Thomas J).

[17.120] Order of submissions The party at whose instance the question was received has the right to begin: R v Roberts (1886) 12 VLR 135 at 138 (FC); R v Shuttleworth (1909) VLR 431 at 433 (FC). The prosecution is entitled to be heard on argument even when there is no appearance for the prisoner: R v Martin (1849) 1 Den CC 398; 169 ER 297 (CCR: six member court); R v Taylor (1863) 2 W & W 153 at 156 (Vic FC). See also Attorney-General at [1.6800]; Case stated at [3.500]; and Director of Public Prosecutions at [4.2600].

QUIDDITY Meaning ....................................................................................................................................... [17.300] Use as essential quality .............................................................................................................. [17.305]

[17.300] Meaning Quiddity means the essence or essential quality of something. (It can also mean something trifling, a quibble).

[17.305] Use as essential quality In R v Robinson [1989] VR 289; (1988) 38 A Crim R 1 (CCA) Nathan J said (at) of the jury system (at 304; 15): [T]he quiddity of the jury system is the random composition of juries, designed to reflect the community and its values.

In Katsuno v The Queen (1999) 199 CLR 40; 109 A Crim R 66; 166 ALR 159; Kirby J agreed. His Honour said (at 89; 100; 191 [114]): Randomness in the selection of the jurors ultimately chosen is, as Nathan J observed in Robinson [1989] VR 289; (1988) 38 A Crim R 1, the quiddity of the jury system as provided by the Act.

[17.515]

QUO WARRANTO

1249

See also Slattery v Bishop (1919) 27 CLR 105 per Gavan Duffy J at 112; Phillips CJ, “Practical Advocacy” (1998) 72 ALJ 340-341.

QUO WARRANTO Meaning ....................................................................................................................................... Prerogative writ ........................................................................................................................... An exceptional remedy ............................................................................................................... Abolition of information ............................................................................................................. Modern remedy ...........................................................................................................................

[17.500] [17.505] [17.510] [17.515] [17.520]

[17.500] Meaning Quo warranto is a Latin term meaning by what authority.

[17.505] Prerogative writ In Liston v Davies (1937) 57 CLR 424 Dixon J said (at 433): There was at common law an original writ issuing out of Chancery for the Crown called a writ of quo warranto. It lay against anyone claiming or usurping any office, franchise or liberty, and its purpose was to inquire into the authority upon which the claim rested and to determine the right to the office, franchise or liberty. An information was devised to take its place and the writ of quo warranto fell into disuse. The information was “properly a criminal method of prosecution, as well to punish the usurper by a fine for the usurpation of the franchise, as to oust him, or seize it for the Crown but hath long been applied to the mere purposes of trying the civil right seizing the franchise, or ousting the wrongful possessor; the fine being nominal only”.

(Blackstone, Commentaries, 5th ed (1773), vol 3, c 17, sec 5, p 263). For the remainder of the history of the writ and the information see the rest of Dixon J’s judgment.

[17.510] An exceptional remedy In Attorney-General (NSW) v Quin (1990) 170 CLR 1; 93 ALR 1 Brennan J said (at 33–34, 23): It is not the function of a court to direct or to affect the selection of judicial officers. A remedy (quo warranto) can be granted only in the exceptional case where the appointment is not authorised by law. It is not to the point that some appointments to judicial office have been made for unworthy purposes or of unworthy people; the responsibility for appointments to judicial office, by constitutional convention if not by constitutional law, belongs to the Executive Government. The courts are not responsible for their own constitution. The calibre of appointments to the judiciary depends solely on the Executive Government and that is a heavy responsibility which the Executive Government alone must bear.

[17.515] Abolition of information The information or writ of quo warranto has largely been abolished. Qld: Judicial Review Act 1991 s 42; Tas: Supreme Court Civil Procedure Act 1932 ss 83 and 84; NSW: Supreme Court Act 1970 s 12; Vic: Supreme Court (General Civil Procedure) Rules 2005 O 38.04; SA: Local Government Act 1934 s 706; Supreme Court Rules 1987 r 98(2).

1250

ROSS ON CRIME

[17.520]

It may continue to exist, however, in the Commonwealth, Western Australia and the Australian Capital Territory. Cth: High Court Rules 1952 O 55 and 47; WA: Supreme Court Act 1935 s 36; ACT: Supreme Court Rules O 55 r 34.

[17.520] Modern remedy Where the information and writ has been abolished the same relief can be obtained by the issue of an originating motion for injuction or declaration: Qld: Supreme Court Act 1995 s 186; NSW: Supreme Court Act 1970 s 70; Vic: Supreme Court (General Civil Procedure) Rules 2005 O 56.01; SA: Supreme Court Rules 1987 r 98(1).

R RAPE Definitions ................................................................................................................................... Legislation ................................................................................................................................... Indictment .................................................................................................................................... Joinder of rape counts ................................................................................................................. Generally the report of proceedings is not to identify the complainant ................................... Penetration ................................................................................................................................... Consent ........................................................................................................................................ Legislation on consent in a sexual case ..................................................................................... Consent must be real .................................................................................................................. Prostitute not paid – no rape ...................................................................................................... Submission by complainant ........................................................................................................ Consent may be reluctant ........................................................................................................... Belief in consent ......................................................................................................................... Direction on consent and belief in consent ............................................................................... Continuing penetration after knowledge of lack of consent ..................................................... Effect of intoxication of accused ................................................................................................ Intoxication of victim ................................................................................................................. Reckless indifference to consent ................................................................................................ Male under 14 years – presumption of impotence .................................................................... Rape of wife by husband ............................................................................................................ Recent complaint ........................................................................................................................ Complainant’s sexual experience ............................................................................................... Duty of counsel ........................................................................................................................... Corroboration .............................................................................................................................. Distressed condition of complainant .......................................................................................... Judge’s directions on consent ..................................................................................................... Forbidden comment: why would a complainant lie? ................................................................ Indecent assault alternative ......................................................................................................... Sentencing ................................................................................................................................... Imprisonment is usual on conviction ......................................................................................... Totality ........................................................................................................................................ Writings ....................................................................................................................................... Other references ..........................................................................................................................

[18.100] [18.105] [18.110] [18.115] [18.120] [18.125] [18.130] [18.135] [18.140] [18.145] [18.150] [18.155] [18.160] [18.165] [18.170] [18.175] [18.180] [18.185] [18.190] [18.195] [18.200] [18.205] [18.210] [18.215] [18.220] [18.225] [18.230] [18.235] [18.240] [18.245] [18.250] [18.255] [18.260]

[18.100] Definitions At common law rape is the unlawful carnal knowledge of a woman without her consent by force, fear or fraud: 1 East PC 434 and see 1 Hale 627 ff. In Papadimitropoulos v The Queen (1957) 98 CLR 249 the court said in a joint judgment (at 261): [R]ape is carnal knowledge of a woman without her consent: carnal knowledge is the physical fact of penetration; it is the consent to that which is in question; such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape.

1252

ROSS ON CRIME

[18.105]

[18.105] Legislation Qld: Criminal Code s 347 (rape); WA: Criminal Code s 325 (sexual penetration without consent); Tas: Criminal Code s 185 (rape); NT: Criminal Code s 192 (sexual intercourse without consent); NSW: Crimes Act 1900 ss 61H (sexual intercourse): 61HA (without consent); Vic: Crimes Act 1958 s 38 (sexual penetration without consent); SA: Criminal Law Consolidation Act 1935 s 34M (rape); NZ: Crimes Act 1961 (sexual violation); Eng: Sexual Offences Act 2003 s 1 (rape).

[18.110] Indictment The drafting of indictment where there was more than one act arose in Kaitamaki v The Queen [1985] AC 147; [1984] 2 All ER 435; 79 Cr App R 251 (PC) at 152; 438; 254: Their Lordships were, however, disturbed by the course taken by the Crown at the trial. The indictment charged one offence of rape. The prosecution case was that there were two rapes. In the event, as could have been anticipated, there developed two different defences. To the first allegation the defence was consent; to the second the defence was that she consented to penetration but not to the subsequent intercourse, which, however, was not sexual intercourse for the purposes of the 1961 Act (see s 127). The Crown well knew that its case was that there were two rapes. In fairness to the accused each should have been separately charged.

Representative counts An indictment containing representative counts was held satisfactory in R v Funderburk [1990] 1 WLR 587; [1990] 2 All ER 482; (1990) 90 Cr App R 466 (CA).

[18.115] Joinder of rape counts In R v Walker (1983) 7 A Crim R 443 (Qld, Connolly J) the joinder of two counts of rape was permitted. The alleged offences were a month apart and on separate women. See also Joinder at [10.300].

[18.120] Generally the report of proceedings is not to identify the complainant Proceedings in camera Crimes Act 1900 (NSW) s 77A.

Publication not to identify the complainant See Sexual Offence at [19.3000].

[18.125] Penetration In rape, there must be penetration. Before significant changes in the law penetration was of the vagina by the penis: see Papadimitropoulos v The Queen (1957) 98 CLR 249. It did not include penile penetration by the victim of the accused’s mouth: DPP’s Reference (No 1 of 1992) (1993) 9 WAR 281; 65 A Crim R 197 (CCA).

[18.135]

RAPE

1253

[18.130] Consent An element of the offence is that the accused penetrated the complainant without consent. The complainant must be capable of consenting. In Question of Law Reserved on Acquittal Pursuant to Section 350(1A) Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214; sub nom Re Case Stated by DPP (No 1 of 1993) 66 A Crim R 259 (CCA) King CJ said (at 220; 265): The law on the topic of consent is not in doubt. Consent must be a free and voluntary consent. It is not necessary for the victim to struggle or scream. Mere submission in consequence of force or threats is not consent. The relevant time for consent is the time when sexual intercourse occurs. Consent, previously given, may be withdrawn, thereby rendering the act non-consensual. A previous refusal may be reversed thereby rendering the act consensual. That may occur as a consequence of persuasion, but, if it does, the consequent consent must, of course, be free and voluntary and not mere submission to improper persuasion by means of force or threats.

Approved: R v Aiken (2005) 157 A Crim R 515 at 519 (NSW CCA); R v Mueller (2005) 62 NSWLR 476 at 479 [36]–[37] (CCA). In R v Shaw [1996] 1 Qd R 641; (1995) 78 A Crim R 150 (CA), Fitzgerald P said (at 643; 152): Capacity to consent raised different issues. Towards the end of the 19th century, the accepted view with respect to women of unsound mind was that of Willes J in Fletcher (1859) Bell CC 63; 169 ER 1168 at 70 (Bell CC), 1170 (ER), that if a woman of unsound mind is in such a state of idiocy as to be incapable of expressing either consent or dissent, and the prisoner has connection with her, he is guilty of rape, but otherwise the consent of such a woman, induced by mere animal instinct, is sufficient to prevent the act from constituting a rape. See also Fletcher (1866) LR 1 CCR 39; Barratt (1873) LR 2 CCR 81; cf Lambert [1919] VLR 205 at 212. At 213 of the latter decision, there is a reference to Lock (1872) LR 2 CCR 10 in terms which seem to suggest that consent could also be given by “a child of tender years” although at 212, and again at the end of Cussen J’s judgment at 214, he says that capacity to consent falls to be determined by all the facts of the particular case. The effect of intoxication on capacity was dealt with in Camplin (1845) 1 Cox CC 220, CCR (in which the female was a 13-year-old girl), and it was held that a sleeping woman could not consent in Mayers (1872) 12 Cox CC 311; Young (1878) 14 Cox CC 114, CCR.

[18.135] Legislation on consent in a sexual case The following jurisdictions have legislation on consent in a sexual case: Qld: Criminal Code s 348 provides: (1) In this chapter, “consent” means consent freely and voluntarily given by a person with the cognitive capacity to give the consent. (2) Without limiting subsection (1), a person’s consent to an act is not freely and voluntarily given if it is obtained– (a) by force; or (b) by threat or intimidation; or (c) by fear of bodily harm; or (d) by exercise of authority; or (e) by false and fraudulent representation about the nature or purpose of the act; or (f) by a mistaken belief induced by the accused person that the accused person was the person’s sexual partner.

1254

ROSS ON CRIME

[18.135]

Vic: Crimes Act 1958 s 36 provides: For the purposes of Subdivisions (8A) to (8D) “consent” means free agreement. Circumstances in which a person does not freely agree to an act include the following– (a) the person submits because of force or the fear of force to that person or someone else; (b) the person submits because of the fear of harm of any type to that person or someone else; (c) the person submits because she or he is unlawfully detained; (d) the person is asleep, unconscious, or so affected by alcohol or another drug as to be incapable of freely agreeing; (e) the person is incapable of understanding the sexual nature of the act; (f) the person is mistaken about the sexual nature of the act or the identity of the person; (g) the person mistakenly believes that the act is for medical or hygienic purposes.

See also, ss 37, 37AA, 37AAA of the Crimes Act 1958. WA: Criminal Code s 319 provides: (2) For the purposes of this Chapter– (a) “consent” means a consent freely and voluntarily given and, without in any way affecting the meaning attributable to those words, a consent is not freely and voluntarily given if it is obtained by force, threat, intimidation, deceit, or any fraudulent means; (b) where an act would be an offence if done without the consent of a person, a failure by that person to offer physical resistance does not of itself constitute consent to the act; (c) a child under the age of 13 years is incapable of consenting to an act which constitutes an offence against the child.

In Michael v Western Australia (2008) 183 A Crim R 348 (WA CA) Miller JA, with whom Steytler P agreed, said (at 384 [161]): The extended meaning of “consent” contained within s 319(2)(a) of the Criminal Code means that the inducing causes of consent can now destroy the reality of consent: if a complainant consents to sexual intercourse in which she perceives what is about to take place, understands the identity of the man in question and the character of what he is doing, there can, nevertheless, be an absence of free and voluntary consent if that consent is obtained by threats, intimidation or deceit. They are the inducing causes.

NSW: Crimes Act 1900, s 61HA provides: (2) A person“consents” to sexual intercourse if the person freely and voluntarily agrees to the sexual intercourse. (3) A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case:

[18.140]

RAPE

1255

(d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) A person does not consent to sexual intercourse: (a) if the person does not have the capacity to consent to the sexual intercourse, including because of age or cognitive incapacity, or (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, or (c) if the person consents to the sexual intercourse because of threats of force or terror (whether the threats are against, or the terror is instilled in, that person or any other person), or (d) if the person consents to the sexual intercourse because the person is unlawfully detained. (5) A person who consents to sexual intercourse with another person: (a) under a mistaken belief as to the identity of the other person, or (b) under a mistaken belief that the other person is married to the person, or (c) under a mistaken belief that the sexual intercourse is for medical or hygienic purposes (or under any other mistaken belief about the nature of the act induced by fraudulent means), does not consent to the sexual intercourse. For the purposes of subsection (3), the other person knows that the person does not consent to sexual intercourse if the other person knows the person consents to sexual intercourse under such a mistaken belief. (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, or (b) if the person has sexual intercourse because of intimidatory or coercive conduct, or other threat, that does not involve a threat of force, or (c) if the person has sexual intercourse because of the abuse of a position of authority or trust. (7) A person who does not offer actual physical resistance to sexual intercourse is not, by reason only of that fact, to be regarded as consenting to the sexual intercourse. (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse.

In O’Sullivan v R [2012] NSWCCA 45, at [124], the court noted that the statutory meaning of consent maintains a subjective component. The element of honest belief in s 61HA(3), however, is to be tested by reference to whether there are reasonable grounds for the belief asserted by the accused. See also, W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275, [80].

[18.140] Consent must be real In R v Mobilio [1991] 1 VR 339; (1990) 50 A Crim R 170 (CCA) the accused was a radiographer, convicted of rape. He introduced an ultrasound transducer into the vaginas of young women. The prosecution contended that the consents were not real because the victims consented to a medical procedure while the accused acted for his sexual gratification. His appeals succeeded. The court said in a joint judgment (at 349–350; 180–181):

1256

ROSS ON CRIME

[18.145]

Convictions of rape have been upheld in cases where, through deception, the woman did not know that the insertion of the man’s penis into her vagina was a sexual act, but believed it to be an act of medical treatment or bodily improvement. Such cases are to be understood on the background of a degree of ignorance and naivety by some women as to sexual matters in earlier days that seems incredible today. If cases such as R v Case (1850) 1 Den 580; 169 ER 381; R v Flattery (1877) 2 QB 410 and R v Williams [1923] 1 KB 340 are to be regarded as consistent with the law stated in Papadimitropoulos (1957) 98 CLR 249 they must be regarded as decided on the basis mentioned above: Glanville Williams, Textbook of Criminal Law, 2nd ed, pp 561-2. There are cases in modern times where a woman, undergoing medical examination and unable to see what was being done, consented to what she believed to be the examiner’s finger or a medical instrument being inserted into her vagina but later realised that the examiner had inserted his penis and was having sexual intercourse. Situations of that type are discussed in the Californian cases of Boro v Superior Court (1985) 163 Cal App 3d 1224; 210 Cal Rptr 122 and People v Ogunmola (1987) 192 Cal App 3d 277; 238 Cal Rptr 300. Under a provision of the Californian Penal Code defining rape as an act of sexual intercourse with a person at the time unconscious of the nature of the act, and this being known to the accused, the courts have treated the women as unconscious of the nature of the act and the examiners as guilty of rape. … In our opinion it is established that for a woman to have the knowledge of a man’s proposed act of inserting his penis in her vagina, sufficient to render her consent a real one, she must understand more than that what is proposed is the physical act of penetration by the penis. She must have some further perception of what is about to take place including the immediate conditions affecting the nature of the act and the character of what he proposes to do: R v Lambert [1919] VLR 205, at p 212 and Papadimitropoulos (1957) 98 CLR 249, at p 261. She needs to understand that the act is one of sexual connection as distinct from an act of a totally different character: R v Morgan [1970] VR 337, at p 341.

See also Staats v The Queen (1998) 123 NTR 16; 101 A Crim R 461 (CCA).

[18.145] Prostitute not paid – no rape In R v Linekar [1995] QB 250; [1995] 3 All ER 69; [1995] 2 Cr App R 49 the accused made off without paying the girl. The Court of Appeal said there was no fraud in the commission of the sexual act as the accused had not personated a husband or done those things which vitiate consent. Papadimitropoulos v The Queen (1957) 98 CLR 249 was relied on. Appeal allowed. But a prostitute can be raped even if she is paid: R v Aden (2002) 162 A Crim R 1 (Vic CA).

[18.150] Submission by complainant In R v Sperotto [1970] 1 NSWR 502; 71 SR (NSW) 334 (CCA – five member court) the court said (at 504; 338): Consent obtained through threats or terror is not a consent to the act of intercourse but merely submission to it, and the law does not require a woman to resist to the utmost of her strength.

Nevertheless, the prosecution need only prove the absence of consent. It is not necessary to prove force, fear of force or fraud: R v Olugboja [1982] QB 320; [1981] 1 WLR 1382; 3 All ER 443; 73 Cr App R 344 (CA).

Consent may be communicated by conduct R v Wilkes and Briant [1965] VR 475 at 477, 480 (CCA); R v Freeman [1980] VR 1 at 14 (CCA); R v Curtis (1991) 55 A Crim R 209 (SA CCA) per Olsson J at 220–221.

[18.160]

RAPE

1257

In R v Millar [2000] 1 Qd R 437; (1998) 103 A Crim R 526 (CA) McPherson JA delivering the leading judgment said (at 439; 529): It is in the nature of things rare for consensual conduct involving intimacy of this kind to be preceded by formal offer and acceptance. In some instances, consent is capable of being inferred from acquiescence in the continuation of the activity.

[18.155] Consent may be reluctant In Holman v The Queen [1970] WAR 2 (CCA) Jackson CJ said (at 6): A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.

Approved: R v Cook [1986] 2 NZLR 93 at 97 (CA). Black v Corkery (1988) 33 A Crim R 134 (NSW, Young J) was an unlawful assembly case which included analysis of “compel”. His Honour said (at 142): Really compulsion is the opposite to consent. With consent I recently said in my Law of Consent (1986), p 17: The mere fact that pressure is put on the person consenting is not of itself sufficient to invalidate the consent or to make it other than a voluntary choice. As has been said in some of the rape cases, a reluctant consent or a grudging consent is none the less a consent: see Holman (1970) WAR 2. However, pressure may get to such a degree that the act will lose its voluntariness. Just where that point is is a question of fact.

[18.160] Belief in consent In R v Saragozza [1984] VR 187; (1983) 9 A Crim R 185 (CCA) the court said in a joint judgment (at 193–194; 192): Once it is accepted that it is an element of the crime of rape that the accused either was aware that the woman was not consenting, or else realised that she might not be and determined to have intercourse whether she was consenting or not, the conclusion is inescapable that a man who believes that the woman is consenting cannot be guilty of the offence; for the existence of this belief is inconsistent with the presence of the mental element of the crime. Logic then insists that the reasonableness of the belief bears only on whether the accused in fact held it. As the Full Court observed in R v Flannery and Prendergast [1969] VR 31, at p 33, the existence of a belief that the woman was consenting necessarily negatives an awareness that the woman was not consenting or a realisation that she might not be and a determination to have intercourse whether she was consenting or not. The decision of the House of Lords in Director of Public Prosecutions v Morgan [1976] AC 182; [1975] 2 All ER 347 marked no new departure so far as the law of Victoria is concerned. Their Lordships first determined that the crime of rape did have the mental element that had been recognized in this State for some years and then went on to accept that it followed as a matter of inexorable logic that a man who believed, reasonably or unreasonably, that he had consent was no rapist. This decision had been anticipated only three months before by the Full Court of South Australia in R v Brown (1975) 10 SASR 139, where the reasoning of Wells and Sangster JJ is essentially the same as that of the majority of their Lordships. Morgan’s Case [1976] AC 182; [1975] 2 All ER 347 was applied in South Australia by the Full Court in R v Wozniak and Pendry (1977) 16 SASR 67 and followed in New South Wales by the Court of Criminal Appeal in R v McEwan [1979] 2 NSWLR 926 in preference to R v Sperotto (1970) 71 SR (NSW) 334.

See also R v Singh (1990) 52 A Crim R 74 (Vic CCA). Under the Criminal Code the prosecution must prove the absence of a genuine belief that the complainant was consenting whether that belief was reasonable or otherwise:

1258

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[18.165]

DPP (NT) v WJI (2004) 219 CLR 43; 210 ALR 276; DPP’s Reference No 1 of 2002 (2002) 12 NTLR 176; 171 FLR 403; 137 A Crim R 158 (CCA – five member bench); McMaster v The Queen (1994) 4 NTLR 92; 117 FLR 200 (CCA); R v Marama (2001) 118 A Crim R 111 (NT, Riley J).

[18.165] Direction on consent and belief in consent Where consent and belief in consent are trial issues, a judge must relate the law to the facts. In Victoria, Crimes Act 1958 s 37 requires such a direction. In R v Yusuf (2005) 11 VR 492; 153 A Crim R 173 (Vic CA) Winneke P looked at the section, then said (at 502; 183 [18]): it seems to me to be tolerably clear that the requirement imposed on the judge is to relate his direction as to the accused’s belief in consent to the relevant facts which have been placed in issue in the proceeding and not to the ultimate issues comprising the elements of the offence. After all, that is the natural meaning of the words contained in the section, and is – in any event – in conformity with the procedural obligation imposed by the common law upon the judge, as made clear by Alford v McGee (1952) 85 CLR 437 at 446.

In R v Zilm (2006) 14 VR 11; 161 A Crim R 149 (CA) the court allowed the appeal against conviction because the trial judge directed the jury wrongly. Callaway JA said (at 13; 151 [2]): The belief of an accused person that the complainant was consenting to a sexual act does not have to be reasonable as a matter of law. The Crown must prove that, in fact, the accused was aware that the complainant was not consenting or might not be consenting. The unreasonableness of his belief does not mean that he is guilty. The direction required by s 37(1)(c) of the Crimes Act 1958, where it is relevant to the facts in issue, makes it more important than ever that the jury understand the true significance of the question whether the belief of the accused person was reasonable.

In the rape case of Banditt v The Queen (2005) 224 CLR 262; 223 ALR 633; 157 A Crim R 420 Gummow, Hayne and Heydon JJ said (at 275; 642; 430 [34]): [A]s Gibbs J emphasised in La Fontaine v The Queen (1976) 136 CLR 62 at 77: The purpose of a summing up is not to endeavour to apprise the jury of fine legal distinctions but to explain to them as simply as possible so much of the law as they need to know in order to decide the case before them.

In R v Alexander (2007) 174 A Crim R 297 (Vic CA) the court held 2-1 that the trial judge properly directed the jury on mistaken belief in consent. Appeal dismissed. See also Judge at [10.900].

[18.170] Continuing penetration after knowledge of lack of consent Kaitamaki v The Queen [1985] AC 147; [1984] 2 All ER 435; 79 Cr App R 251 (PC) was an appeal from New Zealand. The construction of the relevant statute required conviction where penetration was by consent but intercourse continued after knowledge of lack of consent. Cases referred to by the appellant in the unsuccessful appeal were: R v Salmon [1969] SASR 76 (CCA); R v Mayberry [1973] Qd R 211 (CCA); Richardson v The Queen [1978] Tas SR 178 (CCA); R v Salmon [1969] SASR 76 was distinguished and Kaitamaki [1981] 1 NZLR 527 (CA) followed in R v Murphy (1988) 52 SASR 186; 37 A Crim R 405 (CCA).

[18.180]

RAPE

1259

[18.175] Effect of intoxication of accused In R v Curtis (1991) 55 A Crim R 209 (SA CCA) Olsson J said (at 218): Quite apart from the fact that no specific explanation was given to the jury as to the possible effects of marijuana as an intoxicant in its own right either considered alone or when ingested in addition to alcohol – a state of understanding which could well be foreign to at least some jurors – it was, in the context of a case such as this, vitally important that the trial judge ensure that the jury was left in no doubt that, at all times, it remained incumbent upon the Crown to negative any reasonable possibility that intoxication played any relevant part in the perceptions or understanding of the appellant.

Duggan J said (at 223): The case called for a more extensive direction on how events such as those to which I have referred might have been perceived by a man affected by the consumption of alcohol and marijuana. The possibility of misconceiving the complainant’s attitude should have been raised in this context: Wilson (1986) 42 SASR 203; 22 A Crim R 130.

Tactical considerations can play a part. In R v Ball (1991) 56 SASR 126; 53 A Crim R 461 (CCA), Matheson J said (at 178–179; 473–474): I have anxiously considered the submission that the issues raised on the appeal were not issues at the trial. I can understand why it did not suit the defence to do so. Although I have never thought that the adjectives “partial” and “total” are helpful in a discussion of intoxication, I think the following quotation from the judgment of White J in R v Egan (1985) 15 A Crim R 20 at 41-42 is pertinent: Counsel did not address on partial intoxication. This may have been due to oversight, although this is to be doubted because counsel were experienced, and they raised the point immediately after the summing up was completed. It is more likely that counsel appreciated the fact that the arguments based on partial intoxication were two-edged, like a two-edged sword as it were. There is a favourable or helpful edge which assists accused persons in cases like this, at the first stage of the exercise where the jury is considering the question whether the accused realised she might not be consenting. They get the benefit at that stage of any dulling of his perceptions due to partial intoxication. Once the jury decides that he did realise, notwithstanding partial intoxication, that she might not be consenting, the very fact of partial intoxication may then be used by the jury as the explanation why the accused pressed on with intercourse recklessly indifferent as to her consent. That is the adverse or unhelpful edge of the direction as to partial intoxication. It may be that counsel realised this difficulty and for tactical reasons, did not make too much of the issue. (And see also R v Summers (1986) 22 A Crim R 47 at 48.) The law, however, is clear that a trial judge has to put to the jury any defence that fairly arises on the evidence: see R v Murphy (1988) 52 SASR 186 at 195-197; 37 A Crim R 405 at 414-417 where Cox J reviews the English and Australian authorities.

In R v Morgan (1993) 30 NSWLR 543; 67 A Crim R 526 (CCA) there had been evidence of the accused’s intoxication. No direction on the belief on consent was asked for by the defence at trial, probably because the accused said there was no intercourse. The failure of the trial judge to direct the jury on intoxication was a ground which did not succeed, although the appeal was allowed on other grounds. R v B, MA (2007) 99 SASR 384; 177 A Crim R 268 (CCA) the court analysed the changes to Criminal Law Consolidation Act 1935 s 269. At trial, the defence had not asked for an intoxication direction and none was given. The court made a thorough examination of legislation and authority. Appeal dismissed.

[18.180] Intoxication of victim Generally In R v Bree [2007] 3 WLR 600; [2007] 2 All ER 676; [2007] 2 Cr App R 158 (CA) Sir Igor Judge P giving the judgment of the court said (at [32]):

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ROSS ON CRIME

[18.180]

Drunken consent is still consent.

In C v T (1995) 58 FCR 1; 136 ALR 703 (FCA) Burchett J said (at 17–18; 718–719): The law on this subject is not in doubt. The essential principle is the same, both under the Code of the Northern Territory (which may be applicable: Svikart v Stewart (1994) 69 ALJR 35), and under the modified common law obtaining in New South Wales (which may also be applicable by virtue of s 61 of the Defence Force Discipline Act 1982 (Cth). In McMaster v The Queen (21 March 1994, CA/NT), Thomas and Priestley JJ and Gray AJ, unreported) a strong Court of Criminal Appeal held, in a judgment delivered by Gray AJ: In States where the elements of the crime of rape are governed by the common law, it is clear that it is an element of the crime that the accused intended to have sexual intercourse without consent. This requires proof by the Crown that the appellant knew the woman was not consenting or knew she may not be consenting and proceeded regardless: see R v Saragozza [1984] VR 187; R v McEwan [1979] 2 NSWLR 926 and R v Brown (1975) 10 SASR 139. This means that a jury should be directed along these lines in all cases …The above authorities show that, under the common law doctrine, the belief on the accused’s part that the woman is consenting need not be a reasonable belief. What the Crown must negative is a genuine belief, whether reasonable or not. In my opinion, the same result is reached in the Northern Territory by virtue of s 31(1) of the Code which provides: A person is excused from criminal responsibility for an act, omission or event unless it was intended or foreseen by him as a possible consequence of his conduct. In my opinion, s 31(1) produces the result that the prosecution must prove that it was the intention of the accused to assault the victim without his or her consent This involves the proposition that the accused knew that the victim was not consenting or knew that he or she may not be consenting and proceeded regardless. In R v Francis [1993] 2 Qd R 300 (CA), the Court, decided a case where the evidence suggested consent had been induced by the excessive consumption of alcohol. In their joint judgment, Davies JA and Demack J said (at 305): It is not correct as a matter of law that it is rape to have carnal knowledge of a woman who is drunk who does not resist because her submission is due to the fact that she is drunk. The reason why it is not is that that at least includes the case where the carnal knowledge is consensual notwithstanding that the consent is induced by excessive consumption of alcohol. The critical question in this case was whether the complainant had, by reason of sleep or a drunken stupor, been rendered incapable of deciding whether to consent or not. See also R v Bonora (1994) 35 NSWLR 74 at 80 (CCA). In R v Lambert [1919] VLR 205 at 213, where Cussen J, speaking for the Full Court of the Supreme Court of Victoria, quoted a dictum of Parke B that rape was “committed by violating a woman when she is in a state of insensibility and has no power over her will … the accused knowing at the time that she is in that state”. This is in keeping with the principle affirmed by the High Court in Papadimitropoulos v R (1957) 98 CLR 249, where Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ referred (at 255) toR v Lambert [1919] VLR 205“as to the need of the man’s being aware of the absence of consent”, and said (at 261): To return to the central point, rape is carnal knowledge of a woman without her consent…such a consent demands a perception as to what is about to take place, as to the identity of the man and the character of what he is doing. But once the consent is comprehending and actual the inducing causes cannot destroy its reality and leave the man guilty of rape. That decision of the High Court in Papadimitropoulos has recently been followed by the Court of Appeal in England in R v Linekar [1995] 2 WLR 237, where (at 244) it was described as a “highly persuasive authority”.

[18.185]

RAPE

1261

Evidence Where the prosecution case is that the complainant was so intoxicated that she could not consent, she is still able to give evidence-in-chief that she had no intention or wish to have sexual intercourse. Of course she could then be cross-examined: R v Blayney (2003) 87 SASR 354; 140 A Crim R 249 (CCA). Other cases R v Wilson, Tchorz and Young (1986) 42 SASR 203; 22 A Crim R 130 (CCA); R v Esau [1997] 2 SCR 777; (1997) 148 DLR (4th) 662; 116 CCC (3d) 289 (SCC); R v Green (2001) 78 SASR 463; 119 A Crim R 75 (CCA); R v Pryor (2001) 124 A Crim R 22 (Qld CA); R v Blayney (2003) 87 SASR 354; 140 A Crim R 249 (CCA); R v TA (2003) 57 NSWLR 444; 139 A Crim R 30 (CCA); R v Bree [2007] 3 WLR 600; [2007] 2 All ER 676; [2007] 2 Cr App R 158.

Reliability In R v Salih (2005) 160 A Crim R 310 (Vic CA) the appellant had been convicted of rape. Was there consent? The complainant was heavily intoxicated by alcohol and marijuana. She gave a number of different versions of various events. The court held that the trial judge should have directed the jury on her reliability. Harper AJA, with whom the others agreed, said (at 340 [112] – [113]): Neither side called any experts to speak on the subject, so the jury if they considered the matter at all must of necessity have done so by drawing on whatever experience they or individual jurors may have had. The judge, of course, could not by any direction of his fill the gap left by the absence of expert evidence. The best he could have done was to remind the jury of the evidence about her consumption, and of her own assessment of its effect on her, and warn them that, as that is all they have, it would be unsafe to convict the applicant on the complainant’s evidence unless having very carefully considered that evidence they were satisfied that it was accurate. In my opinion, a direction of that kind should have been given.

[18.185] Reckless indifference to consent Where the accused realised that the victim might not be consenting but nevertheless proceeded to have intercourse, the mental state is called recklessness or reckless indifference. In Banditt v The Queen (2005) 224 CLR 262; 223 ALR 633; 157 A Crim R 420 the court examined this aspect of the law in a New South Wales appeal. One issue was the interpretation of the Crimes Act 1900 s 61R(1): [A] person who has sexual intercourse with another person without the consent of the other person and who is reckless as to whether the other person consents to the sexual intercourse is to be taken to know that the other person does not consent to the sexual intercourse.

There was a joint judgment of Gummow, Hayne and Heydon JJ dismissing the appeal. Their Honours said (at 275; 642; 430 [33]): [I]t may be possible, as is the case elsewhere in the law, to construe the term “reckless” as involving measurement against an objective criterion.

and later (at 276; 642; 430–431 [37]): A direction that “reckless” has the meaning to be given by the jury in the particular circumstances of the case would be erroneous …

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[18.190]

In the present case, the trial judge properly emphasised that it was not the reaction of some notional reasonable man but the state of mind of the appellant which the jury was obliged to consider and that this was to be undertaken with regard to the surrounding circumstances, including the past relationship of the parties.

In Victoria the term recklessness was not used. The direction usually given comes from R v Daly [1968] VR 257 (CCA). Smith J delivering the judgment of the court said (at 258–259): [T]he Crown must establish beyond reasonable doubt that the accused either was aware that the woman was not consenting, or else realized she might not be, and determined to have intercourse with her whether she was consenting or not.

In Banditt v The Queen (2005) 224 CLR 262; 223 ALR 633; 157 A Crim R 420, Gummow, Hayne and Heydon JJ referred to R v Daly [1968] VR 257. As to the quotation they said (at 273; 640; 428 [25]): It will be apparent that between this formulation and the remarks by the trial judge to which the appellant objects there is little, if any, difference in substance.

See also R v Maes [1975] VR 541 at 545 ff (CCA). DPP v Morgan [1976] AC 182; [1975] 2 All ER 347; 61 Cr App R 136 (HL). R v Getachew (2012) 218 A Crim R 372; 86 ALJR 397; [2012] HCA 10.

[18.190] Male under 14 years – presumption of impotence At common law a male under 14 years of age was presumed by law to be incapable of being a principal in an act of rape: R v Groombridge (1836) 7 C & P 105. Evidence was not admissible to rebut that presumption: R v Phillips (1839) 8 C & P 736; R v Jordan and Cowmeadow (1839) 9 C & P 118; R v Waite [1892] 2 QB 600. See also Doli Incapax at [4.4400]. In many jurisdictions that presumption has been abrogated. For example, s 62(1) of the Crimes Act 1958 (Vic) provides: The rule of law whereby a male person under the age of fourteen years is conclusively presumed to be impotent is hereby abrogated.

Section 61S of the Crimes Act 1900 (NSW) provides: 61S

(1) For the purposes of any offence, a person is not, by reason only of age, to be presumed incapable of having sexual intercourse with another person or of having an intent to have sexual intercourse with another person. (2) Subsection (1) does not affect the operation of any law relating to the age at which a child can be convicted of an offence.

[18.195] Rape of wife by husband In PGA v The Queen (2012) 245 CLR 355; 86 ALJR 641; [2012] HCA 21 the High Court by majority (Bell J and Heydon J dissenting) held that the common law in Australia in 1963 when it is alleged that the accused raped his wife did not incorporate the doctrine of spousal immunity to rape.

[18.215]

RAPE

1263

In 2010, the accused was charged a number of offences, including two of rape against his wife. The rapes were alleged to have occurred in 1963. At this time, the elements of rape in South Australia were defined by the common law. In the earlier decision of R v L (1991) 174 CLR 379; 66 ALJR 36; [1991] HCA 48 the High Court stated the concept of a wife giving irrevocable consent to sex with her husband was not a part of the common law – if that in fact was ever the position. In this case, the Court expanded on this analysis and held that if the husband’s immunity to rape was part of the common law, this had changed at least prior to 1935 when the Criminal Law Consolidation Act 1935 (SA) was enacted. Section 48 of this Act criminalised rape – although the elements were still defined by the common law. A husband can also be convicted of attempted rape: R v The Queen [1992] 1 AC 599; [1991] 4 All ER 481; 92 Cr App R 216 (HL). A custodial sentence is warranted in all but the most exceptional circumstances: R v S [No 2] [1991] Tas R 273 (Slicer J).

[18.200] Recent complaint See Complaint in sexual cases at [3.4300].

[18.205] Complainant’s sexual experience See Sexual offence at [19.3000].

[18.210] Duty of counsel Where it is sought to cross-examine or lead evidence on a complainant’s sexual experience, counsel should prepare a detailed written statement of proposed cross-examination or evidence to be led. In R v McGarvey (1987) 10 NSWLR 632; 34 A Crim R 119 (CCA) the court held (at 634–635; 121). Counsel should be vigilant to see that there is made a proper record of the material upon which a ruling is sought pursuant to s 409B. Preferably, a detailed written statement of the evidence proposed to be led or extracted in cross-examination should be handed to the trial judge and marked for identification. In that way, there should be no room for any later argument in the trial or upon appeal as to what had been permitted or rejected pursuant to s 409B.

[18.215] Corroboration The rule of practice which once required victims in sexual cases to be corroborated has been abrogated by statute in most jurisdictions: Uniform Evidence Acts s 164; Tas: Criminal Code s 136; NT: Sexual Offences (Evidence and Procedure) Act s 4(5)(a); Vic: Crimes Act 1958 s 61; SA: Evidence Act 1929 s 34L(5); Eng: Criminal Justice and Public Order Act 1994 s 32(1)(b); Can: Criminal Code s 274. These statutory provisions apply to any trial taking place after the statute came into effect. It matters not that the alleged offence occurred before the statute was passed: Rodway v The Queen (1990) 169 CLR 515.

1264

ROSS ON CRIME

[18.220]

In Queensland corroboration is still required: R v M [1995] 1 Qd R 213 (CA). Other common law rules remain unaffected by the statutes. If a corroboration direction would be required for a reason other than the fact that a sexual offence is involved, that corroboration direction should be given: Longman v The Queen (1989) 168 CLR 79; 43 A Crim R 463; 64 ALJR 73; 89 ALR 161; [1989] HCA 60 at 87–88; 167–168. See also Longman warning at [12.2100]. The corroboration direction is still required where the complainant is a child: R v Pahuja (1987) 49 SASR 191; 30 A Crim R 118 (CCA).

[18.220] Distressed condition of complainant If evidence of distressed condition is relevant, it can be evidence of absence of consent and in Queensland capable of being corroboration, as it was throughout Australia in former times. In R v Redpath (1962) 46 Cr App R 319 (CA), it was held that evidence of an independent bystander that a young girl was in an extremely distressed condition within a few seconds after the time of the alleged attack was capable of amounting to corroboration. In R v Flannery [1969] VR 586 (CCA) the court said in a joint judgment (at 591): In our opinion, evidence of the distressed condition of a prosecutrix may or may not be capable of amounting to corroboration according to the particular facts of each case. In determining whether it is so capable, regard must be had to such factors as the age of the prosecutrix, the time interval between the alleged assault and when she was observed in distress, her conduct and appearance in the interim, and the circumstances existing when she is observed in the distressed condition. Without attempting to enumerate exhaustively the circumstances in which such evidence may amount to corroboration, we are of opinion that if, regard being had to factors of the kind we have mentioned, the reasonable inference from the evidence is that there was a causal connection between the alleged assault and the distressed condition, evidence of the latter is capable of constituting corroboration. If such inference is not open, the evidence is not, in our opinion, capable of amounting to corroboration. We should add that except in special circumstances such as existed in Redpath’s Case (1962) 46 Cr App R 319, evidence of distressed condition will carry little weight and juries should be so warned by the trial judge in the course of his charge.

Note that Mr Flannery was the same man as is referred to in R v Edelsten (1990) 21 NSWLR 542; 51 A Crim R 397 (CCA) and Domican v The Queen (1992) 173 CLR 555; 60 A Crim R 169; 106 ALR 203. In R v Schlaefer (1984) 37 SASR 207; 12 A Crim R 345 (CCA), King CJ said (at 216; 352–353): I suppose that most false complaints of sexual assault, whether fabricated or imagined, would be accompanied by some manifestations of distress. To allow such manifestations to be treated as corroborative, other than in exceptional and compelling circumstances, must have the effect of eroding seriously the rule as to corroboration in sexual cases. I note the comment of Bray CJ in R v Byczko (No 2) (1977) 17 SASR 460 at 462: The vicissitudes of the status of distress on the part of the prosecutrix, as potentially corroborative of her account of an alleged sexual offence committed upon her, would make an instructive footnote to legal history. It is an example of a doctrine comparatively recently introduced and speedily repented, or at least substantially qualified. Two decisions of the Full Court establish that independent evidence of observed indications of distress may in certain circumstances amount to corroboration. R v Yates [1970] SASR 302; Henderson (unreported, Supreme Court, Full Court, South Australia, 24 November 1983). The test to be applied was laid down in Yates, following R v Flannery [1969] VR 586, as being whether an inference which the jury could reasonably draw is that there was a causal connection between the

[18.235]

RAPE

1265

alleged assault and the distressed condition. This test must be properly understood. The Full Court went on to point out that a state of distress cannot be corroborative if it is equally consistent with the case for the prosecution and the case for the defence. Nor, as it seems to me, can it be corroborative if it is consistent with sexual assault complained of being fabricated or imagined. The apparently distressed condition of the complainant can only confirm the story of sexual assault if, in the circumstances of the case, it is reasonably explicable only on the basis of the sexual assault having occurred.

In R v Link (1992) 60 A Crim R 264 (Qld CA). Macrossan CJ. and McPherson J said (at 266): Distress has been recognised as capable in law of constituting a corroborative circumstance fit for consideration by the jury. But it has also been acknowledged that, before it is capable of being so considered, there is an initial question to be determined. It is whether it is a reasonable inference from the evidence that a causal connection exists between the matter of complaint alleged and the distressed condition: Flannery [1969] VR 586 at 591. If the circumstances are such that the causal connection or apparent relationship between the distressed condition and the matter of complaint is “tenuous or remote”, then the duty of the trial judge is to withdraw it from the jury as a circumstance capable of being considered as corroborative: see Roissetter [1984] 1 Qd R 477 at 482; 11 A Crim R 325 at 329; West [1992] 1 Qd R 227 at 231; 51 A Crim R 317 at 321.

See also R v Gulliford (2004) 148 A Crim R 558 at 588 [150] – [151] (NSW CCA); R v Blayney (2003) 87 SASR 354; 140 A Crim R 249 at [87] – [93] (CCA); R v Roach [1988] VR 665; (1987) 31 A Crim R 302 at 668, 305 (CCA).

[18.225] Judge’s directions on consent Where the defence is that the complainant in fact consented, not that the accused believed mistakenly that she consented, the trial judge is not required to direct the jury on mistaken belief in consent: R v Flaherty [1968] 3 NSWR 734; 89 WN (NSW) (Pt 1) 141 (CCA); R v Bourke [1970] 1 NSWR 767; 91 WN (NSW) 793 (CCA); R v Murray (1987) 11 NSWLR 12; 30 A Crim R 315 (NSW CCA).

[18.230] Forbidden comment: why would a complainant lie? A judge must not say “Why would the complainant lie?”: Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 (HC).

[18.235] Indecent assault alternative Generally, where an accused pleads guilty to rape, the indictment should not contain a count of indecent assault preliminary to the rape: R v Slade (1982) 7 A Crim R 43 (Tas, Everett J). Approved: R v Siugzdinis and Mauri (1984) 32 NTR 1; 81 FLR 360; 15 A Crim R 136 (Muirhead J). Where the accused on a charge of rape admits intercourse, he cannot be acquitted of rape and convicted of indecent assault. In Saraswati v The Queen (1991) 172 CLR 1; 54 A Crim R 183; 100 ALR 193 McHugh J said (at 27): [A] man who, on a charge of rape, admits intercourse but asserts consent, cannot be acquitted of rape and convicted of indecent assault unless any indecent assault can be characterised as an episode distinct from the intercourse: R v Redgard [1956] St R Qd 1; R v Touhey (1960) 45 Cr App R 23; R v Coureas [1967] QWN 5; R v Whelan [1973] VR 268; R v Slade (1982) 7 A Crim R 43.

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[18.240]

[18.240] Sentencing Tariff In R v Puru [1984] 1 NZLR 248 (CA, six member court) it was held that there is no statistical or other reason to change the sentencing policy for rape or to suggest that greater severity in punishment would deter future rape offences. An appropriate degree of flexibility must be left to the sentencing judge so that the punishment may be made to fit the crime. In R v Jabaltjari (1989) 64 NTR 1; 46 A Crim R 47 (CCA) Asche CJ said (at 16–17; 63): In fixing maximum rather than minimum penalties for various offences the legislature properly recognises the vast range of criminality involved, extending from the most extenuating circumstances to the most callous and reprehensible actions; and leaves it to the courts to find the punishment to fit the crime. It is not for appeal courts, therefore, to indulge in self denying ordinances which overly inhibit the broad discretion given by the legislature. That is not to say that appeal courts will not adjust sentences which are out of phase with sentences normally given in similar circumstances. That is to prevent injustice either to the accused or the community caused by a misapplication of the discretion invested in an individual judge or magistrate. Reference to “tariffs” is designed to allow some reasonable continuity and predictability in the sentencing process. But appeal courts have always been careful to emphasise that the system should not be applied too rigidly and should allow for the exceptional case. No doubt, as precedent builds on precedent, and new factors come to be recognised as having a bearing on a particular offence, or the circumstances in which it is committed, the “tariff” for that offence or those circumstances will gradually change either upwards or downwards; and an appeal court may be asked to recognise the change and give appropriate rulings. But this is a very different thing from asking an appeal court in an individual case to disturb existing guidelines on a dubiously ad hoc basis.

Approved: R v Raggett (1990) 101 FLR 323; 50 A Crim R 41 at 335, 52 (NT CCA).

Prior sexual relationship In R v Wiren (1996) 5 NTLR 211; 135 FLR 382; 89 A Crim R 356 (CCA) the court in a joint judgment made an extensive examination of authority and concluded (at 215; 385–386; 360): The authorities show that a prior sexual relationship between victim and offender can be an important mitigating factor in sentencing for sexual offences.

And (at 226; 395; 370): The intimate proximity between rapist and victim is a particularly unpleasant aspect of the crime, with concomitant fear or terror on the victim’s part, particularly when the rapist is a stranger. That factor is usually not present to the same degree when the rapist and victim have had a recent prior longstanding non-violent sexual relationship, as here; familiarity with such an offender militates against the fear or terror generated by an unknown assailant.

In R v Harris [1998] 4 VR 21 (CA) on a successful Director of Public Prosecutions’ appeal against sentence Tadgell JA said (at 29): In some circumstances a prior relationship may serve as a factor of mitigation, but it need not, and it may indeed serve to aggravate the offence.

[18.245] Imprisonment is usual on conviction Only in an exceptional case will there not be an immediate custodial sentence for rape: R v Alexander (2007) 174 A Crim R 297 (Vic CA); R v Abela (2007) 17 VR 1; 170 A Crim R 244 (CA); Doolan v The Queen (2006) 160 A Crim R 54 (NSW CCA);

[18.405]

REASONABLE EXCUSE

1267

Williams v The State [2005] 1 WLR 1948; R v Millberry [2003] 1 WLR 546; [2003] 2 All ER 939; [2003] 1 Cr App R 396; R v Boudelah (1991) 28 FCR 176; 100 ALR 93; 53 A Crim R 148 (FCA); R v Billam [1986] 1 WLR 349; [1986] 1 All ER 985; [1986] 8 Cr App R (S) 48; R v Roberts [1982] 1 WLR 133; [1982] 1 All ER 609; (1982) 74 Cr App R 242.

[18.250] Totality A conviction for rape is often part of other sexual offences. Where there are such convictions, the sentencing judge must apply the totality principle. R v Abela (2007) 17 VR 1; 170 A Crim R 244 (CA) per Neave JA (at 19; 363 [87]) with whom the others agreed. See also Sentencing (Totality principle) at [19.2170].

[18.255] Writings Crofts T, “Rape, the mental element and consistency in the codes” (2007) 7 QUTLJJ 1.

[18.260] Other references Complaint in sexual cases [3.4300].

REASONABLE EXCUSE Introduction ................................................................................................................................. Legislation ................................................................................................................................... Meaning depends on statute ....................................................................................................... Drug importation ......................................................................................................................... Drug possession and duress ........................................................................................................ Other cases .................................................................................................................................. Onus of proof ..............................................................................................................................

[18.400] [18.405] [18.410] [18.415] [18.420] [18.425] [18.430]

[18.400] Introduction Legislation occasionally creates the defence of doing an act which would otherwise be a crime if there be a reasonable excuse. Acting with lawful authority may be a synonym. Usually the legislation puts the onus of proving reasonable excuse on the person charged.

[18.405] Legislation A great deal of legislation refers to reasonable excuse. Some of it follows: Cth: Customs Act 1901 s 233(2) [Previously s 233B(1)(c)]: drug importation; Qld: Mental Health Act 2000 s 468; Criminal Code s 299I; WA: Legal Profession Act 2008 s 103; Tas: Sex Industry Offences Act 2005 s 11; NT: Sentencing Act s 15; Terrorism (Emergency Powers) Act s 20L; Vic: Drugs, Poisons and Controlled Substances Act 1981 s 69K;

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[18.410]

SA: Criminal Law Consolidation Act 1935 s 173; Terrorism (Police Powers) Act 2005 s 18; ACT: Legal Profession Act 2006 s 116.

[18.410] Meaning depends on statute In Taikato v The Queen (1996) 186 CLR 454; 90 A Crim R 323; 139 ALR 386, Ms Taikato was carrying a pressurised canister of formaldehyde. She intended to use it if she were attacked. She was charged and convicted under Crimes Act 1900 (NSW) s 535E. (Now s 95FB.) She lost her High Court appeal. Brennan CJ, Toohey, McHugh and Gummow JJ said (at 464; 393; 331): The term “reasonable excuse” has been used in many statutes and is the subject of many reported decisions. But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of “reasonable excuse” is an exception.

The footnote at the end of the first sentence has the following cases and comments: See, eg, Clough v Leahy (1904) 2 CLR 139 (refusal of witness to be sworn without reasonable excuse); Lichaa v The Queen (1980) 3 A Crim R 355 (reasonable excuse for possession of drugs); Controlled Consultants Pty Ltd v Commissioner for Corporate Affairs (1985) 156 CLR 385 (reasonable excuse for failure to produce documents); Ganin v NSW Crime Commission (1993) 32 NSWLR 423; 70 A Crim R 417 (reasonable excuse for refusal to answer question); MacDonald v Australian Securities Commission [No 2] (1994) 48 FCR 210; 120 ALR 515 (failure without reasonable excuse to comply with notices to produce issued under the Australian Securities Commission Act 1989 (Cth)); R v Hill[1995]1 Qd R 182; (1994) 74 A Crim R 59 (found in a place reasonably suspected of being used for the purpose of prostitution without reasonable excuse); Conners v Craigie (1994) 76 A Crim R 502 (reasonable excuse for offensive language).

[This is footnote [27] in the CLR and [18] in the other reports. To this footnote I have added citations that are not in the CLR.]

[18.415] Drug importation In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 the appellant had been convicted of drug importation. He had a bag with a false bottom. Heroin was in that false bottom. He said that he had no knowledge of the heroin. Held: appeal allowed. Importation is not an absolute offence. The judgments deal extensively with the term “without reasonable excuse”.

[18.420] Drug possession and duress In R v Tawill [1974] VR 84 (CCA) the accused was found in possession of illegally imported cannabis. He was charged under Customs Act 1901 (Cth). He gave evidence that a person forced him to take possession. He was acting under duress. The Court of Criminal Appeal dismissed the appeal, saying that the onus of proving reasonable excuse lay on the person charged. But Winneke CJ, giving the judgment of the court, said (at 88): The words “without reasonable excuse” are words of wide import. We see no reason why defences, answers, justifications or excuses recognized by the established principles governing criminal responsibility, such as absence of mens rea, mistake, insanity, infancy or duress, do not fall within the ordinary grammatical meaning of those words.

In He Kaw Teh v The Queen (1985) 157 CLR 523; 15 A Crim R 203; 60 ALR 449 Gibbs CJ, with whom Mason J agreed, expressed reservations about the above proposition in Tawill. Dawson J expressed the same opinion.

[18.425] Other cases The following cases are in addition to those cited in the footnote (at [18.410])

[18.600]

REASONS

1269

Registrar, Court of Appeal (NSW) v Craven (1994) 77 A Crim R 410; 126 ALR 668 (NSW CA): reasonable excuse for refusal to answer some questions because of the risk of self-incrimination. Hopfner v Flavel (1990) 48 A Crim R 149 (SA, Mullighan J): no reasonable excuse for failure to produce books and records of a company after being required to do so. DPP v Jackson [1999] 1 AC 406; [1998] 3 All ER 769 (HL): no reasonable excuse for failure to provide a specimen of blood or urine on a charge of driving under the influence of the same. Mark v Henshaw (1998) 85 FCR 555; 101 A Crim R 122; 155 ALR 118 (FCA): the appellants entered an egg farm without permission. Under the relevant Act, reasonable excuse is to be assessed objectively. Appeals dismissed. Hogan v Comerford (2002) 131 A Crim R 18 (ACT, Crispin J) a director of an aviation company was convicted of failing to have an aircraft inspected. Reasonable excuse called for community standard with which the appellant had complied (at 25 [34]). Appeal allowed.

[18.430] Onus of proof The onus of proof is derived from the legislation. Usually it is on the accused. Some legislation refers to an evidential burden on the accused. Cth: Criminal Code Act 1995 s 13.3; NT: Criminal Code ss 43BT and 43BU; Vic: Criminal Procedure Act 2009 s 72; ACT: Criminal Code 2002 s 58.

REASONS General ........................................................................................................................................ Rulings ........................................................................................................................................ Judicial review ............................................................................................................................ Judge trying a case without a jury ............................................................................................. No delay ...................................................................................................................................... Sentencing ................................................................................................................................... Legislation ...................................................................................................................................

[18.600] [18.605] [18.610] [18.615] [18.620] [18.625] [18.630]

[18.600] General A judicial officer who makes a decision must give reasons. In “Judicial Accountability” (1995) 2 The Judicial Review 117 Gleeson CJ said (at 122): First, the existence of an obligation to give reasons promotes good decision making. As a general rule, people who know that their decisions are open to scrutiny, and who are obliged to explain them, are more likely to make reasonable decisions. Second, the general acceptability of judicial decisions is promoted by the obligation to explain them. Third, it is consistent with the idea of democratic institutional responsibility to the public that those who are entrusted with the power to make decisions, affecting the lives and property of their fellow citizens, should be required to give, in public, an account of the reasoning by which they came to those decisions.

In AK v Western Australia (2008) 232 CLR 438; 243 ALR 409; 182 A Crim R 262, a 13-year-old had been convicted of sexual offences against a 15-year-old girl. The case had to be heard by judge alone. But because of Criminal Procedure Act 2004 (WA) s 120(2), the judge had to give reasons for decision. There were no proper reasons. Heydon J, with whom Gummow and Hayne JJ agreed, said (at [104]):

1270

ROSS ON CRIME

[18.605]

[T]he duty to give reasons can operate to safeguard the interests of the accused and the public interest generally. That is because a move to trial by judge alone causes appeals to operate in a radically different way. It is much easier for an appellate court to detect appellable error where reasons for the verdict at trial must be provided than it is when the appellate court is limited only to the record of the proceedings before a jury. When a trial judge directs the jury on the law, it will be clear what was said. If nothing is said, or something erroneous is said, about decisive questions of law, an appeal will lie. Those possibilities are complete checks against judicial error in propounding the law. The substitution of judge for jury as trier of fact would leave open the risk of judicial errors as to the law unless there were a requirement that the judge state the principles of law being applied, and s 120(2) creates this requirement. Just as a jury trial without a judicial summing up would not really be a trial, a trial by judge alone without a s 120(2) statement of the applicable legal principles would not really be a trial. In this respect s 120(2) preserves an aspect of jury trial; it does not reject it.

In R v M [2008] 3 SCR 3; 297 DLR (4th) 577 (SCC) the judgment of the seven member court was delivered by McLachlin CJ. Her Honour said (at [11] – [12]): [11] The authorities establish that reasons for judgment in a criminal trial serve three main functions: 1. Reasons tell the parties affected by the decision why the decision was made...No less important is the function of explaining to the Crown and to the victims of crime why a conviction was or was not entered. 2. Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done. Thus, it has been said that the main object of a judgment “is not only to do but to seem to do justice”: Lord Macmillan, “The Writing of Judgments” (1948) 26 Can Bar Rev 491 at 491. 3. Reasons permit effective appellate review. A clear articulation of factual findings facilitates the correction of errors and enables appeal courts to discern the inferences drawn, while at the same time inhibiting appeal courts from making factual determinations “from lifeless transcript of evidence, with the increased risk of factual error”: M. Taggart, “Should Canadian judges be legally required to give reasoned decisions in civil cases” (1983) 33 UTLJ 1 at 7. Likewise, appellate review for an error of law will be greatly aided where the trial judge has articulated her understanding of the legal principles governing the outcome of the case. Moreover, parties and lawyers rely on reasons in order to decide whether an appeal is warranted and, if so, on what grounds. [12] In addition, reasons help ensure fair and accurate decision making; the task of articulating the reasons directs the judge’s attention to the salient issues and lessens the possibility of overlooking or under-emphasizing important points of fact or law...Finally, reasons are a fundamental means of developing the law uniformly, by providing guidance to future courts in accordance with the principle of stare decisis ... In all these ways, reasons instantiate the rule of law and support the legitimacy of the judicial system.

[18.605] Rulings Reasons must be given for findings and rulings for the information of the parties. In Brittingham v Williams [1932] VLR 237 (FC) the court said (at 239): [A] judicial officer should state the facts he finds and the reasons for his decision. Such a statement is desirable for the information of the parties, and in order to afford assistance to the Court of Appeal in the event of there being an appeal.

In Perkins v County Court (Vic) (2000) 2 VR 246; 115 A Crim R 528 (CA) Buchanan JA said (at 271; 553 [56]): [T]he provision of reasons for decisions affecting persons’ rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles.

[18.620]

REASONS

1271

A judge will not have to give a formal ruling after extensive debate. In R v Pirrottina (1996) 88 A Crim R 220 (NSW CCA) Hunt CJ at CL, with whom the others agreed, said (at 223): [T]his was a routine application for an adjournment and, provided that the judge’s reasons are made apparent during the debate leading up to his or her decision in a practice matter such as this, it is not necessary for the judge to give formal reasons for such a decision. [cases cited]

A judge will not have to give a ruling if none is sought: Papakosmas v The Queen (1999) 196 CLR 297 at 319 [72] per McHugh J; Vickers v The Queen (2006) 160 A Crim R 195 at 210 [76] (NSW CCA). Other cases Pettitt v Dunkley [1971] 1 NSWLR 376 (CA); Wu v The Queen (1999) 199 CLR 99; 166 ALR 200; 108 A Crim R 252 per Kirby J at [71]; Burnett v DPP (2007) 21 NTLR 39; 180 A Crim R 41 (CA) per Southwood J at [265] – [270];

[18.610] Judicial review A judge should give reasons even for refusing leave. In Roy Morgan Research Centre v Commissioner of State Revenue (Vic) (2001) 207 CLR 72; 181 ALR 307, Gaudron, Gummow, Hayne and Callinan JJ said (at 83–84; 314 [26]): The practice of giving no reasons for refusing leave under s 148(1) of the VCAT Act is unwarranted. There is no basis for departing in such cases from the ordinary rule that reasons should be given. Those reasons need not be extensive. In appropriate cases, little more may be required than a short, perhaps very short, statement of the chief conclusions which the judge refusing leave has reached. The disappointed applicant (and any court asked to review the refusal) must, however, be able to know from the reasons given by the primary judge why the judge reached the decision to refuse leave.

In R (Lynch) v General Dental Council [2004] 1 All ER 1159 (QBD) Collins J held (at 1170 [32]): Where there are inadequate reasons and particularly where an important reason can be shown to have been based on a possible misunderstanding, the court will intervene if persuaded that the result might have been different.

See also Oil Basins Ltd v BHP Billiton Ltd (2007) 18 VR 346 (CA).

[18.615] Judge trying a case without a jury In reasons which he must express, a judge trying a case alone must direct himself as if he were a jury: Fleming v The Queen (1998) 197 CLR 250; 103 A Crim R 121; 158 ALR 379 (HC). There is a clear duty to give reasons: R v Maxwell (1998) 217 ALR 452 (NSW CCA); R v Keyte (2000) 78 SASR 68; 118 A Crim R 463 at [29] – [60] (CCA). Riley v Western Australia (2005) 30 WAR 525 (CA) per Steytler P at 536 [39] and Roberts-Smith JA at 554 [129]. See also Delay (Delay in giving judgment) at [4.1150]; Trial (By judge alone) at [20.2545].

[18.620] No delay A judge trying a criminal case without a jury should give reasons without delay. Where there is a long delay, an appeal court will often set the verdict aside. The reason will usually be that the reasons are defective.

1272

ROSS ON CRIME

[18.625]

In R v Teskey [2007] 2 SCR 267; (2007) 280 DLR (4th) 486; 220 CCC (3d) 1 (SCC) the accused was charged with aggravated assault, break and enter and possession of stolen property. The evidence was circumstantial and contained some contradictions. After four months the judge gave a verdict convicting the accused. He said he would give his reasons later. The reasons were delivered more than 11 months after the verdict. Held: appeal allowed. A reasonable person would apprehend that such late reasons did not reflect the real basis for conviction. Several factors rebutted the presumption of integrity and impartiality. See also R v Maxwell (1998) 217 ALR 452 (NSW CCA). Delay (Delay in giving judgment) at [4.1150].

[18.625] Sentencing A sentencing court must give reasons. In Markarian v The Queen (2005) 228 CLR 357; 79 ALJR 1048; 215 ALR 213, Gleeson CJ, Gummow, Hayne and Callinan JJ (at 373; 223 [36]) referred to: [T]he requirement that a sentencer give reasons for the sentence passed.

In R v Koumis (2008) 18 VR 434; 184 A Crim R 421 (CA) the court said in a joint judgment (at 439; 437 [62]): Accessible reasoning is necessary in the interests of victims, of the parties, appeal courts and the public. Each must be able to understand, from the sentencing remarks, what are the principal factors that have influenced the sentencing decision.

In R v Thomson (2000) 49 NSWLR 383; 115 A Crim R 104 (CCA), Spigelman CJ said (at 394–395; 113–114 [42] – [44]): Sentencing judges are under an obligation to give reasons for their decisions. Remarks on sentence are no different in this respect from other judgments. This is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done. The obligation of a court is to publish reasons for its decision, not merely to provide reasons to the parties: see F Kitto, “Why Write Judgments?” (1992) ALJ 787; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385-386; Public Service Board (NSW) v Osmond (1986) 159 CLR 656 at 666-667; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273, 277-281; Spigelman, “Seen to be Done: The Principle of Open Justice: Part 1” (2000) 74 ALJ 290, especially at 294 and 295.

The statement of reasons performs particularly significant functions in the administration of the criminal law. As Brennan J said in Jago v District Court (NSW) (1989) 168 CLR 23; 41 A Crim R 307; 87 ALR 577; [1989] HCA 46 at 50, 326: The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances.

In DW v The Queen (2004) 150 A Crim R 139 (ACT CA) the court said in a joint judgment (at 147 [27] – [28]): [T]he general scope of the duty should be noted: it is a duty to explain his or her decision; not to write an exhaustive treatise on every aspect of the trial. The reasons need not be lengthy or elaborate … It is necessary to state the essential grounds and, in many cases, the reasons for preferring one conclusion to another … It is not necessary to make explicit findings on every disputed aspect of the evidence if such findings can be clearly inferred: Selvanayagam v University of West Indies [1983] 1 WLR 585 at 588 (though this decision has been criticised: see Soulemezis v Dudley (Holdings) Pty Ltd (at 281) per McHugh JA). There are some cases which might suggest that the duty to give reasons includes a duty on the trier of fact to state expressly the reasons for rejecting the credibility of witnesses … In our view this is

[18.805]

RECALLING A WITNESS

1273

not a necessary consequence of the duty to give reasons. In this regard we agree with the reasons of Perry J (with whom Williams and Bleby JJ agreed) in R v Power (2003) 141 A Crim R 203 at [59] and [63] – [65]. (most citations omitted)

In R v Knight (2007) 176 A Crim R 338 (NSW CCA) the sentencing judge failed to give proper reasons on a plea of guilty by Ms Knight to supplying a large commercial quantity of ecstasy. The prosecution appealed. The court held that the sentence was manifestly inadequate and increased the length of imprisonment. In Francis v Firkins (2008) 224 FLR 8 (WA, Johnson J) her Honour held that a sentencer imposing imprisonment as a last resort needs to include a reason why it is appropriate and that a fine is not. The sentencer need not deal and every sentencing option. In McPherson v Racing Penalties Appeal Tribunal (WA) (1995) 79 A Crim R 256 (WA FC) the tribunal, contrary to statute, failed to give proper reasons for the penalty for racehorse doping. Held: error of law. Matter remitted.

[18.630] Legislation There is legislation requiring a sentencer to give reasons. Some of that legislation follows: Qld: Penalties and Sentences Act 1992 ss 10, 149, 168 (imprisonment); WA: Young Offenders Act 1994 s 120(2); Tas: Sentencing Act 1997 s 17(7) (non-parole); NT: Sentencing Act ss 69 and 110 (indefinite sentence); NSW: Crimes (Sentencing Procedure) Act 1999 ss 5, 22 and 45; Vic: Sentencing Act 1991 s 18G (indefinite sentence); SA: Criminal Law (Sentencing) Act 1988 s 9(1); ACT: Crimes (Sentencing) Act 2005 ss 10(4) and 82 (imprisonment); s 37(2) (reduction for guilty plea); s 78 (periodic detention).

RECALLING A WITNESS Meaning ....................................................................................................................................... Principles ..................................................................................................................................... Curing a formal prosecution matter ........................................................................................... Appeal ......................................................................................................................................... Uniform Evidence Acts .............................................................................................................. Other references ..........................................................................................................................

[18.800] [18.805] [18.810] [18.815] [18.820] [18.825]

[18.800] Meaning Once a witness has given evidence, a trial judge has a discretion to allow a witness to return and give further evidence. This is the recalling of a witness. It cannot be done after the judge begins the directions to the jury. The prosecution is the usual applicant.

[18.805] Principles In Shaw v The Queen (1952) 85 CLR 365, Dixon, McTiernan, Webb and Kitto JJ said (at 380): [T]he prosecution may not split its case on any issue. The Court possesses a power to allow further evidence to be called, but it must be done according to rule and the rule is against reopening the

1274

ROSS ON CRIME

[18.810]

Crown case unless the circumstances are most exceptional … It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. (The court allowed the appeal on that ground.)

In MWJ v The Queen (2005) 80 ALJR 329; 222 ALR 436 Gummow, Kirby and Callinan JJ said (at 339; 448–449 [40]): In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

[18.810] Curing a formal prosecution matter In R v Brown [1985] 2 Qd R 126; (1985) 18 A Crim R 257 (CCA) Ryan J said (at 136; 266): In a decision of the Full Court of Queensland of some years standing, Tierney v O’Connor [1906] QWN 50, the Full Court judgment indicated that a power to reopen (in that case by recalling a witness) after the case for the prosecution had been closed can be exercised in cases where some formal matter has been neglected or some merely technical objection taken.

[18.815] Appeal The judge’s discretion to recall a witness may have resulted in a substantial miscarriage of justice. In that circumstance an appeal court will allow an appeal against conviction. Shaw v The Queen (1952) 85 CLR 365. English cases where the ground failed include the following: R v McKenna (1956) 40 Cr App R 65 (CCA); R v Sulivan [1923] 1 KB 47; (1922) 16 Cr App R 121; [1922] All ER Rep 431 (CCA).

[18.820] Uniform Evidence Acts Uniform Evidence Acts s 46 deals with the recall of a witness. Section 46 provides: 46 Leave to recall witnesses (1) The court may give leave to a party to recall a witness to give evidence about a matter raised by evidence adduced by another party, being a matter on which the witness was not cross-examined, if the evidence concerned has been admitted and: (a) it contradicts evidence about the matter given by the witness in examination in chief; or (b) the witness could have given evidence about the matter in examination in chief. (2) A reference in this section to a matter raised by evidence adduced by another party includes a reference to an inference drawn from, or that the party intends to draw from, that evidence.

[18.825] Other references Browne v Dunn at [2.3900]; Cross-examination at [3.10400]; Cross-examination on documents at [3.10600]; Evidence at [5.1900]; Witness at [23.700].

[18.1005]

RECENT INVENTION

1275

RECENT INVENTION The principle ............................................................................................................................. Limits to the principle .............................................................................................................. Allegation of invention, not of recent invention ..................................................................... Examples ...................................................................................................................................

[18.1000] [18.1005] [18.1010] [18.1015]

[18.1000] The principle Where a witness is alleged to have invented some material fact recently, an early statement consistent with the evidence may be admissible. In Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 McHugh J said (at 1030; 379 [36]): Another exception to the finality rule is that sometimes a party may be permitted to tender evidence that a witness has made an earlier statement that is consistent with the witness’ evidence. If the evidence of a witness concerning a material fact is attacked on the ground that the witness has recently invented or reconstructed the evidence, the party calling the witness may tender evidence proving a previous consistent statement of the witness. Nominal Defendant v Clements (1960) 104 CLR 476.

Nominal Defendant v Clements (1960) 104 CLR 476 was a personal injuries case for a boy who was seven years old at the date of being knocked over by a car. At the trial four and a half years later it was suggested in cross-examination that his father had coached him by giving him answers to learn. Dixon CJ said (at 479): If the credit of a witness is impugned as to some material fact to which he deposes upon the ground that his account is a late invention or has been lately devised or reconstructed, even though not with conscious dishonesty, that makes admissible a statement to the same effect as the account he gave as a witness if it was made by the witness contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that his account is a late invention or reconstruction. But, inasmuch as the rule forms a definite exception to the general principle excluding statements made out of court and admits a possibly self serving statement made by the witness, great care is called for in applying it. The judge at the trial must determine for himself upon the conduct of the trial before him whether a case for applying the rule of evidence has arisen and, from the nature of the matter, if there be an appeal, great weight should be given to his opinion by the appellate court. It is evident however that the judge at the trial must exercise care in assuring himself not only that the account given by the witness in his testimony is attacked on the ground of recent invention or reconstruction or that a foundation for such an attack has been laid by the party but also that the contents of the statement are in fact to the like effect as his account given in his evidence and that having regard to the time and circumstances in which it was made it rationally tends to answer the attack. It is obvious that it may not be easy sometimes to be sure that counsel is laying a foundation for impugning the witness’s account of a material incident or fact as a recently invented, devised or reconstructed story. Counsel himself may proceed with a subtlety which is the outcome of caution in pursuing what may prove a dangerous course. That is one reason why the trial judge’s opinion has a peculiar importance.

[18.1005] Limits to the principle In Humphries v The Queen (1987) 17 FCR 182; 28 A Crim R 133 (FCA) a witness named Channell had been interviewed by police and generally supported the account of the prosecutrix that she was raped. Mr Channell later made a statutory declaration and affidavit exculpating the accused. At trial Mr Channell claimed not to remember. Leave was given to the prosecutor to cross-examine him. Mr Channell said the record of interview was lies and the later document the truth (which thereby were prior inconsistent statements). On appeal it was held that Nominal Defendant v Clements (1960) 104 CLR 476 did not apply to allow the tender of those later documents. In Alexander v The Queen (1981) 145 CLR 395; 34 ALR 289, Mason J did not “think it necessary to resort to the doctrine of recent contrivance to sustain the admission” of an out of court identification of the person who made it (at 427). Aickin J agreed (at 437).

1276

ROSS ON CRIME

[18.1010]

[18.1010] Allegation of invention, not of recent invention In R v Martin [No 2] (1997) 68 SASR 419; 94 A Crim R 357 (CCA) a prosecution witness said that the accused had confessed to patricide. The defence claimed the witness invented the confession because of vindictiveness and a desire to curry favour with the police. The trial judge allowed the prosecution to call other witnesses to whom the witness also related the confession. It was held that the evidence of the other witnesses was wrongly admitted. An allegation of fabrication is not an allegation of recent invention capable of being rebutted by a prior consistent statement.

[18.1015] Examples Examples of allegations of recent invention An allegation that a witness has invented his evidence is equivalent to an allegation of recent invention: R v Boland [1974] VR 849 at 874–876 (CCA). “You’re not making this up as well, as you go, are you?”: R v Fraser (1995) 65 SASR 260; 85 A Crim R 385 (CCA). “You have changed your story to make it a bit easier on yourself.”R v Smith [No 2] (1995) 64 SASR 1; 80 A Crim R 491 (CCA).

Examples held not to be allegations of recent invention A suggestion that the evidence is untrue: R v Tanda (1980) 43 SASR 161; 25 A Crim R 220 (ruling of Johnston J); R v Martin [No 2] (1997) 68 SASR 419; 94 A Crim R 357 (CCA). A cross-examination which is thorough and searching on every aspect of the evidence: R v Burrows (1988) 36 A Crim R 408 (Qld CCA).

RECENT POSSESSION Meaning ..................................................................................................................................... Possession .................................................................................................................................. Recent ........................................................................................................................................ Recent possession in receiving/handling .................................................................................. Directions to the jury ................................................................................................................ Possible recent possession direction ........................................................................................

[18.1200] [18.1205] [18.1210] [18.1215] [18.1220] [18.1225]

[18.1200] Meaning The doctrine of recent possession is a presumption of fact that possession of recently stolen goods implicates the possessor in theft or receiving or associated offences. In Trainer v The King (1906) 4 CLR 126 at 132, Griffith CJ said: It is a well known rule that recent possession of stolen property is evidence either that the person in possession of it stole the property or received it knowing it to have been stolen, according to the circumstances of the case. Prima facie the presumption is that he stole it himself but if the circumstances are such as to show it to be impossible that he stole it, it may be inferred that he received it knowing that someone else had stolen it. This is only an illustration of the rule as to circumstantial evidence.

In Gilson v The Queen (1991) 172 CLR 353; 100 ALR 729; 53 A Crim R 344 Brennan J said (at 367-368; 738; 354): Although it is clear enough that evidence of recent possession of stolen goods is sufficient to support a conviction for either larceny or receiving, the reference by Griffith CJ [in Trainer (1906)

[18.1210]

RECENT POSSESSION

1277

4 CLR 126 (at 132-133)] to a “presumption” may be taken to suggest that some evidential onus passes to the accused and that, prima facie, that onus is to rebut a presumption of larceny. To understand what his Honour said in that way is to mistake the true effect of evidence of recent possession. It is merely circumstantial evidence which is capable of supporting an inference of either larceny or receiving according to all the circumstances of the case but it raises no presumption of guilt and the jury are bound to acquit if, on the whole of the evidence, they entertain a reasonable doubt.

In Bruce v The Queen (1987) 61 ALJR 603; 74 ALR 219 (HC) the court said in a joint judgment: Where an accused person is in possession of property which is recently stolen, the jury is entitled to infer as a matter of fact, in the absence of any reasonable explanation, guilty knowledge on the part of the accused. Such an inference will be drawn from the unexplained fact of possession of such property and not from any admission of guilt arising from the failure to proffer an explanation. It is the possession of recently stolen property in the absence of explanation or explanatory circumstances, which enables the inference to be drawn. Thus the absence of any reasonable explanation must not itself be explicable in a manner consistent with innocence.

[18.1205] Possession In R v McCarthy (1993) 71 A Crim R 395 (NSW CCA), Hunt CJ at CL said (at 400): [T]he Crown does not have to establish “possession” of that property in the same way as it does for crimes involving possession (for example, possession of drugs): compare Crimes Act, s 7. What must be shown is some form of physical possession or dominion (or control) over the property: Saleam (1989) 41 A Crim R 108 at 114. The possession will be sufficient even if the property is in the actual physical possession of a person over whom the accused has sufficient control, or with whom the accused has such a relationship (for example, bailment), that the property will be handed over to the accused at his request: Cottrell [1983] VR 143 at 148-149. The circumstances in which the possession of recently stolen property can give rise to that inference necessarily vary according to the nature of the property itself.

[18.1210] Recent In R v Smale (unreported, NSW CCA, 15 August 1986) Lee J said: [I]n most of the cases that are likely to come before the courts, it will be appropriate to let the question of “recency” go to the jury because it is not a word of any precise significance so far as time is concerned, and it can legitimately mean different things to different people. The jury should therefore rule upon it, not the judge. It is certainly not to be understood as importing the notion of “very recently” except where the nature of the property requires that view.

Followed: R v Saleam (1989) 16 nswlr 14; 41 A Crim R 108 at 113 (NSW CCA); R v Mahoney (2000) 114 A Crim R 130 at 138 [31] (NSW CCA); A horse, within a year: R v Croton and Norris (1911) 5 QJPR 219 (Dickson ADCJ); A dress, nine months after the theft: R v McCaffrey [1911] VLR 92 (FC); Jewellery, six weeks after the theft: McCarthy v The Queen [1985] WAR 84; (1984) 13 A Crim R 13 (CCA); Jewellery, 11 weeks after the theft: R v Beljajev [1984] VR 657 (CCA).

Not recent A flute and case, seven and a half months after the theft: R v Hardy [1924] QWN 26; 18 QTPR 89 (Douglas J); Jewellery, two years after the theft: R v McGowan (1868) 5 WW & A’B (L) 180 (FC).

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ROSS ON CRIME

[18.1215]

[18.1215] Recent possession in receiving/handling In DPP v Nieser [1959] 1 QB 254; [1958] 3 All ER 662; (1958) 43 Cr App R 35 (CCA) Diplock LJ giving the judgment of the court said (at 266; 668–669; 45): It may, we think, be misleading to speak of the “doctrine” of recent possession in cases of receiving. It is a convenient way of referring compendiously to the inferences of fact which, in the absence of any satisfactory explanation by the accused, may be drawn as a matter of common sense from other facts, including, in particular, the fact that the accused has in his possession property which it is proved had been unlawfully obtained shortly before he was found to be in possession of it. The so-called “doctrine of recent possession” is not limited to cases of receiving nor to inferences with regard to the accused’s knowledge or state of mind.

The use of the “doctrine” was disapproved in R v Wanganeen (1988) 50 SASR 433; 38 A Crim R 187 at 188 (CCA) (King CJ). In R v Cross (1995) 84 A Crim R 242 (NSW CCA) Kirby P said (at 248–249): Recent possession therefore, simply describes circumstances in which the unexplained possession by an accused person of property which has recently been shown to have been stolen is a potentially incriminating circumstance which can be taken into account by a jury in deciding whether the accused received the goods knowing them to be stolen.

[18.1220] Directions to the jury In R v Petrie (1946) 47 SR (NSW) 20 (CCA), Jordan CJ said (at 21): There has been a good deal of hair-splitting about the use of the word “presumption” in this connection. The authorities show that it would be clearly wrong to direct the jury that if they find recent possession they should presume the accused to be guilty unless he proves that he came by the property innocently: or to give a direction which might lead the jury to suppose that they were being so directed. But there would be no great, if any, harm in directing them that if they find recent possession they are entitled to infer, or presume, guilt, in the absence of an explanation, which they think may possibly be true, showing that it came into the accused’s possession innocently: Trainer v The King (1906) 4 CLR 126 at 132-133, 138-139. However, in view of the authorities, the wiser course is to avoid the use of the word “presumption” altogether in this connection.

[18.1225] Possible recent possession direction 1. The prosecution relies on the argument that guilt can be inferred from the accused’s possession of items that have recently been stolen. 2. Before you can consider that argument the prosecution must satisfy you of the following things: First: the accused possessed those goods. Second: The goods were stolen not long before they were found in the accused’s possession. Third: There is no explanation for the possession of the goods other than the accused knew that the goods were stolen. 3. I must give you some warnings. Possession means having physical control over the property and intending to have that control. Next, the nature of the goods. Some goods pass quickly from hand to hand. Currency such as a coin or a note may change hands many times in a day. On the other hand the painting of an old master will change hands rarely. If you think these goods pass from one person to another fairly quickly, you cannot conclude any mischief from their possession. 4. Only if you think that the goods were found in the possession of the accused and that they were recently stolen in the way I have already explained, will you need to look at the explanation of the accused for that possession.

[18.1410]

RECKLESSNESS

1279

5. (Where the accused gives an explanation in or out of court). The accused has explained (here review the evidence). If you believe that explanation or if you think that the explanation is reasonably possible, then of course you cannot be satisfied of the prosecution argument beyond reasonable doubt.1 6. If you accept that those self same goods found in the possession of the accused were recently stolen (and the accused gives no explanation or gives an explanation which you reject) that is not an end of the matter. It means you may convict for reason of recent possession, not that you must convict.

RECKLESSNESS Recklessness .............................................................................................................................. Legislation ................................................................................................................................. Where recklessness is not in the legislation ............................................................................ Recklessness by an accessory .................................................................................................. Recklessness in sex offences .................................................................................................... Reckless conduct endangering life ........................................................................................... Recklessly causing personal injury .......................................................................................... Difficulty in judge’s direction ..................................................................................................

[18.1400] [18.1405] [18.1410] [18.1415] [18.1420] [18.1425] [18.1430] [18.1435]

[18.1400] Recklessness A great many statutes refer to recklessness. Variations are “reckless” or “recklessly”. Most jurisdictions proscribe reckless driving. Some jurisdictions refer to reckless murder or to recklessness to consent in rape.

[18.1405] Legislation Cth: Criminal Code Act 1995 ss 5; 11.2; 12.3, 71–73; 82; 101–102; Crimes Act 1914 s 23YDAD; Excise Act 1901 s 117H; WA: Road Traffıc Act 1974 s 60 (driving); Tas: Traffıc Act 1925 s 32 (driving); Criminal Code ss 14A; 108(1)(b); 174; 252A(2); NT: Criminal Code s 174C (endangering life); s 174D (endangering serious harm); Traffıc Act s 30 (driving); NSW: Crimes Act 1900 s 18(1) (murder); s 61R (consent in sex); Road Transport (Safety and Traffıc Management) Act 1999 s 42 (driving); Vic: Crimes Act 1958 ss 17 and 18; SA: Criminal Law Consolidation Act 1935 s 19A; Road Traffıc Act 1961 s 46 (driving); ACT: Crimes Act 1900 s 12(1) (murder); ss 44 and 60 (consent in sex); Road Transport (Safety and Traffıc Management) Act 1999 s 7 (driving). See also NT: Criminal Code s 43AK; ACT: Criminal Code 2002 s 20.

[18.1410] Where recklessness is not in the legislation Where recklessness is not in the legislation, a judge should not use it in directions to the jury. 1 R v Garth [1949] 1 All ER 773; 33 Cr App R 10.

1280

ROSS ON CRIME

[18.1415]

In La Fontaine v The Queen (1976) 136 CLR 62; 11 ALR 507 Gibbs J said (at 76; 518): It has become common to describe the mental state of an accused person who acts knowing that his act will probably cause death or bodily injury as one of recklessness or reckless indifference. Judges and textwriters alike have used those expressions … Indeed the legislature itself has in some places adopted them. However useful those words may be as a compendious description of this mental state, they should not in my opinion be used by a judge when summing up to a jury in States where the legislation does not require it.

[18.1415] Recklessness by an accessory In Giorgianni v The Queen (1985) 156 CLR 473; 16 A Crim R 163; 58 ALR 641 Wilson, Deane and Dawson JJ said (at 506–507; 665; 187–188): There are, however, offences in which it is not possible to speak of recklessness as constituting a sufficient intent. Attempt is one and conspiracy is another. And we think the offences of aiding and abetting and counselling and procuring are others. Those offences require intentional participation in a crime by lending assistance or encouragement. They do not, of course, require knowledge of the law and it is necessary to distinguish between knowledge of or belief in the existence of facts which constitute a criminal offence and knowledge or belief that those facts are made a criminal offence under the law. The necessary intent is absent if the person alleged to be a secondary participant does not know or believe that what he is assisting or encouraging is something which goes to make up the facts which constitute the commission of the relevant criminal offence. He need not recognize the criminal offence as such, but his participation must be intentionally aimed at the commission of the acts which constitute it. It is not sufficient if his knowledge or belief extends only to the possibility or even probability that the acts which he is assisting or encouraging are such, whether he realizes it or not, as to constitute the factual ingredients of a crime. If that were sufficient, a person might be guilty of aiding, abetting, counselling or procuring the commission of an offence which formed no part of his design. Intent is required and it is an intent which must be based upon knowledge or belief of the necessary facts.

[18.1420] Recklessness in sex offences In Banditt v The Queen (2005) 224 CLR 262; 223 ALR 633; 157 A Crim R 420 the High Court considered recklessness under s 61R of the Crimes Act 1900 (NSW). Gummow, Hayne and Heydon JJ referred to R v Morgan [1976] AC 182; [1975] 2 All ER 347; (1975) 61 Cr App R 136 (HL). Their Honours said (at [27]): In Morgan [1976] AC 182; [1975] 2 All ER 347; 61 Cr App R 136, the House of Lords used various expressions when describing the requisite mental element of the offence. Lord Cross of Chelsea said that to his mind rape imported “at least indifference as to the woman’s consent”. Lord Hailsham of St Marylebone identified the mental element of the offence as an intention to commit the act or “the equivalent intention of having intercourse willy-nilly not caring whether the victim consents or not”. His Lordship also said that an intention to have intercourse “recklessly and not caring whether the victim be a consenting party or not” was “equivalent on ordinary principles to an intent to do the prohibited act without the consent of the victim”. Lord Edmund-Davies also said that the man would have the necessary mens rea: [I]f he set about having intercourse either against the woman’s will or recklessly, without caring whether or not she was a consenting party.

Their Honours futher said (at [35]): [T]he following words of Professor Sir John Smith … are in point … If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly. Lord Hailsham in Morgan [1976] AC 182; [1975] 2 All ER 347; 61 Cr App R 136 required an “intention of having intercourse, wily-nilly, not caring whether the victim consents or [no]”. Another way of putting it is to ask, “Was D’s attitude one of ‘I could not care less whether she is consenting or not, I am going to have intercourse with

[18.1430]

RECKLESSNESS

1281

her regardless’.” What, however, of the man who knows that the woman may not be consenting but hopes, desperately, that she is? He could care much less; but is he not reckless?

Their Honours expressed their conclusion (at [38]): [I]n a particular case one or more of the expressions used in Morgan [1976] AC 182; [1975] 2 All ER 347; 61 Cr App R 136 and by Professor Smith, as well as those recorded in the respondent’s submission, may properly be used in explaining what is required by s 61R(1).

In Gillard v The Queen (2014) 88 ALJR 606; [2014] HCA 16, the High Court stated, in the case of rape, “recklessness is a mental state captured by the concept of indifference to the complainant’s consent” (at [26]).

[18.1425] Reckless conduct endangering life Legislation Some legislation creates the offence of reckless conduct endangering life. NT: Criminal Code s 43K (reckless); s 174C (reckless conduct endangering life); Vic: Crimes Act 1958 s 22.

Cases In R v Abdul-Rasool (2008) 18 VR 586; 180 A Crim R 556 (CA) the accused’s daughter had been placed in a refuge. All the accused knew was that her daughter did not come home from school and was still away at the weekend. She went to the daughter’s school. She was distraught. The school officers told her nothing. The accused poured petrol over herself and threatened to burn herself and the school. The court allowed the appeal against conviction. Risk of death was not appreciable. Verdict of acquittal entered. Redlich JA, with whom the other judges agreed, said of the elements (at 591; 562 [19]): The elements of the offence under s 22 as discussed in R v Nuri [1990] VR 641; (1989) 49 A Crim R 253 and as further refined and developed by subsequent case law, leaving aside the element of lawful excuse, are: (1) The accused engaged in conduct; and (2) That conduct placed a person in danger (ie conduct that carried with it an appreciable risk) of death; (the actus reus) (3) The accused engaged in that conduct voluntarily; (4) A reasonable person in the position of the accused, engaging in the very conduct in which the accused engaged and in the same circumstances, would have realised that they had placed another in danger of death; (the objective mental element); and (5) The accused engaged in that conduct recklessly in that they foresaw that placing another in danger of death was a probable consequence of their conduct in the surrounding circumstances (the subjective mental element). [Extensive citations omitted.]

[18.1430] Recklessly causing personal injury Legislation creates the offence of recklessly causing personal injury.

Legislation NT: Criminal Code s 43K (reckless); s 174D (reckless conduct endangering serious harm); NSW: Crimes Act 1900 s 35 (grievous bodily harm); Vic: Crimes Act 1958 s 17 (serious injury); s 18 (injury);

1282

ROSS ON CRIME

[18.1435]

SA: Criminal Law Consolidation Act 1935 s 23(3) (serious harm); s 24(2) (harm); ACT: Crimes Act 1900 s 20 (grievous bodily harm).

[18.1435] Difficulty in judge’s direction In R v BBD [2007] 1 Qd R 478; (2006) 166 A Crim R 543 (CA) Philip McMurdo J said (at 489; 553 [48]): The difficulty with directing a jury that criminal negligence involves an essential element of recklessness is in the fact that recklessness has many meanings, both according to ordinary speech and in law.

The court held that the jury should not have been directed at all on recklessness. It could not be an element of that offence. See also Arson at [1.6200]; and Murder at [13.3700].

RECORD Business record ......................................................................................................................... Police record ............................................................................................................................. Effect of record on sentence ..................................................................................................... Convictions subsequent to offence ........................................................................................... Court record .............................................................................................................................. Other references ........................................................................................................................

[18.1600] [18.1605] [18.1610] [18.1615] [18.1620] [18.1625]

[18.1600] Business record A file of letters from various people is not a record for the purpose of Evidence Acts: R v Tirado (1974) 59 Cr App R 80 at 90; R v Jones [1978] 1 WLR 195; [1978] 2 All ER 718; (1977) 66 Cr App R 246 (CA).

[18.1605] Police record For discussion of the effect of where a police record of an accused is disclosed to the jury: See also Character at [3.1300].

[18.1610] Effect of record on sentence In Veen v The Queen (No 2) (1988) 164 CLR 465; 33 A Crim R 230; 77 ALR 385 the majority said (at 477): [T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind.

[18.1625]

RECORD

1283

[18.1615] Convictions subsequent to offence In R v Rumpf [1988] VR 466; (1987) 29 A Crim R 252 (CCA) McGarvie J gave the judgment of the court. He said (at 475; 261): While the Court has regard to the whole of the offender’s antecedents in making decisions in respect of a minimum term it is not entitled to use convictions occurring later than the relevant offence, for the purpose of increasing the length of the head sentence which would otherwise be imposed: R v Wilson [1956] VLR 199; R v Poulton [1974] VR 716, at p 720. While convictions later than the offence can not be used positively to increase the head sentence which would, in the absence of considerations personal to the offender, otherwise be imposed, they may be used, in my opinion, to negate, reduce or qualify an inference as to the offender’s later conduct which would otherwise arise and operate in mitigation of sentence. In this way they may prevent a reduction of the sentence which would be imposed in the absence of the mitigating inference.

See also Sentencing at [19.1800].

[18.1620] Court record What constitutes the record of the court is important in three ways: (a) for the purpose of amendment of that record by an appeal court: Where the order of the court has not “passed into record”: R v Postiglione (1997) 98 A Crim R 134 (NSW CCA); R v Saxon (1998) 1 VR 503; 92 A Crim R 188 at 505-511 (VR), 190–196 (A Crim R) (CA); R v McNamara (No 2) (1997) 1 VR 257; 86 A Crim R 339 at 266–268 (VR)(CA); R v Lapa [No 2] (1995) 80 A Crim R 398 (NSW CCA); R v Allen [1994] 1 Qd R 526 (CCA); R v Stephens (1990) 48 A Crim R 323 (NSW CCA); R v Piscitelli (1981) VR 50; 6 A Crim R 368 (CCA); R v Billington [1980] VR 625 (CCA). See also Appeal at [1.5200]; and Functus officio at [6.2500]. (b) for the purpose of certiorari: Craig v South Australia (1995) 184 CLR 163; 131 ALR 595; 82 A Crim R 359. See also Certiorari at [3.1100]. (c) to enable re-opening of the issue to correct error or mistake: De L v Director-General NSW Dept of Community Services [No 2] (1997) 190 CLR 207 at 216; 143 ALR 171 at 176–177.

[18.1625] Other references Appeal (Reopening an appeal) at [1.5400]; Slip rule at [19.4900].

1284

ROSS ON CRIME

[18.1800]

RE-ENACTMENT Meaning ..................................................................................................................................... Filmed re-enactments ................................................................................................................ Cautions by police .................................................................................................................... Appropriate re-enactments ........................................................................................................ Inappropriate re-enactments ...................................................................................................... Re-enactment must be accurate and fair .................................................................................. Prosecution must tender the whole recording .......................................................................... View .......................................................................................................................................... Function of appeal court ...........................................................................................................

[18.1800] [18.1805] [18.1810] [18.1815] [18.1820] [18.1825] [18.1830] [18.1835] [18.1840]

[18.1800] Meaning In this topic re-enactment means a repeat performance, a reconstruction of acts central to the crime. Typically the police film the procedure.

[18.1805] Filmed re-enactments Filmed re-enactment must be by consent of the accused and after caution: R v Lowery and King (No 1) [1972] VR 554 at 556–557 (ruling of Smith J); R v Lowery and King (No 3) [1972] VR 939 at 948–949, 952 (CCA). In Li Shu-Ling v The Queen [1989] 1 AC 270; [1988] 3 All ER 138; (1988) 88 Cr App R 82 (PC) the appellant was alleged to have strangled a woman in Kowloon. He took part in a video re-enactment. The Board advised that if a video recording of an accused’s confession was made, including a demonstration using a dummy or person to record how the offence was committed, that recording would be admissible in evidence provided that: • the accused was given proper warning that he need not take part in the video recording; • he voluntarily agreed to do so; • it was made reasonably soon after the confession; and • the accused had been given the opportunity to make and have recorded any comments he wished to make about the film. • On the evidence, as the video recording was voluntarily made two days after the appellant’s oral confession, the trial judge had rightly admitted it in evidence. Appeal dismissed.

[18.1810] Cautions by police Before inviting a re-enactment, the police should warn an accused that there is no compulsion to re-enact the events and that anything done can be used in court against the accused. In R v Maratabanga (1993) 3 NTLR 77; 114 FLR 117 (Mildren J) the prosecution wanted to rely on a videoed re-enactment. His Honour held (at 103) that the police had not given the proper cautions and had not told the accused the purpose of the re-enactment. His Honour ruled out the evidence.

[18.1835]

RE-ENACTMENT

1285

[18.1815] Appropriate re-enactments A re-enactment may properly be admitted even though the accused was wrongly in custody. In R v Heaney [1992] 2 VR 531; (1992) 61 A Crim R 241 (CCA) the accused was interviewed and charged with murder. During the interview she expressed willingness to help find the body of the victim and the weapon. Later the police relied on a section of the Crimes Act, approved by a magistrate to have her released for the re-enactment. The release was not lawful. The re-enactment was filmed. On appeal held that the police had “not engaged in improper or deceptive behaviour”. The discretion to admit the evidence was open, and that ground of appeal failed (at 557; 265).

[18.1820] Inappropriate re-enactments In Li Shu-Ling v The Queen [1989] 1 AC 270; [1988] 3 All ER 138; (1988) 88 Cr App R 82 (PC) the Board advised (at 281; 143; 87): There will of course be crimes when it will be wholly inappropriate to attempt to re-enact them on a videotape. An obvious example would be a killing committed in the course of an affray with many people milling about the victim and the killer. It would be hopeless to expect to reconstruct such a scene and any attempt to do so might indeed be dangerously misleading. It is to be hoped that the prosecution would not attempt anything so foolish, but if they did their Lordships are confident that it can safely be left to the discretion of the trial judge to exclude any such ill judged attempt on the ground that its prejudicial value would far outweigh its probative value.

[18.1825] Re-enactment must be accurate and fair At the trial in Van Den Hoek v The Queen (1986) 161 CLR 158; 69 ALR 1; 23 A Crim R 98 there was a court-room demonstration. The majority said (at 163; 4–5; 101–102): The complaint was also made that the applicant was required to demonstrate the angle at which the knife entered the body of Mr Van Den Hoek by holding a ruler against the back of the court usher, who was standing while the demonstration occurred, whereas on the applicant’s evidence Mr Van Den Hoek was not standing when he was stabbed. That fact was however obvious to the jury, and it was within the discretion of the trial judge to allow the demonstration to be held. If any similar demonstration is sought at a new trial, the trial judge then will no doubt consider the possible danger that it might mislead the jury.

[18.1830] Prosecution must tender the whole recording In Mahmood v Western Australia (2008) 232 CLR 397; 241 ALR 606; 180 A Crim R 142 the accused had done a two hour “walk through” re-enactment which was recorded on video. The defence was able to tender six minutes of it showing the accused pointing out the position of his deceased wife’s body. The prosecution objected to the tender of any more and refused to tender the whole video. In final address the prosecution commented on the coldness of the accused in the six minutes. In fact the accused was highly emotional in other parts. The court held that the prosecution should have tendered the whole video. Appeal against murder conviction allowed.

[18.1835] View A re-enactment is not to be part of a view: Grosser v SA Police (1994) 63 SASR 243 (Prior J). See also View at [22.1500].

1286

ROSS ON CRIME

[18.1840]

[18.1840] Function of appeal court In Collins v The Queen (1980) 31 ALR 257 (FCA) the young Aboriginal accused were convicted of murder. Part of the prosecution case were photographic re-enactments argued at trial and on appeal not to be voluntary or which ought to have been excluded. Muirhead J said (at 267–268): If the finding that the re-enactments were voluntary has insufficient evidence to support it, as the Crown bears the onus of proof, this Court will interfere, just as it will interfere if it is apparent that the trial judge applied the wrong principles in reaching such a finding. His finding that the participation of the appellants in the re-enactment was voluntary was a finding of fact. If that finding or decisions made in the exercise of discretion are plainly wrong, then this Court is compelled to interfere just as it will interfere if it finds the trial judge wrongly exercised no discretion. But the error must be demonstrated by the evidence. The “court will not lightly interfere with the exercise of a discretion validly made by a court at first instance”: R v Austin (1979) 21 SASR 315 at 319.

RE-EXAMINATION Meaning ..................................................................................................................................... [18.2000] Principles ................................................................................................................................... [18.2005] An allegation of recent invention put in cross-examination can be restored by evidence of an earlier consistent story ................................................................................................................. [18.2010] Leading questions only by leave .............................................................................................. [18.2015] Witness hostile in re-examination ............................................................................................ [18.2020] Restoring credit ......................................................................................................................... [18.2025] Must conform to rules and rulings ........................................................................................... [18.2030] Re-examination on a document ................................................................................................ [18.2035] Course of the trial ..................................................................................................................... [18.2040] Ten hints on re-examination ..................................................................................................... [18.2045]

[18.2000] Meaning After cross-examination has finished, the party calling the witness can ask more questions. This is re-examination.

[18.2005] Principles The principles of re-examination are: • there are no leading questions; • it must be confined to matters arising from cross-examination; • new matters can only be introduced by leave of the trial judge. Leading questions may not be put, any more than they may be put in chief. Previous consistent statements can only be put to the witness if rendered admissible by the terms of the cross-examination, or as statements in documents made admissible in civil proceedings by statute. The most important rule is that the re-examination must be confined to matters arising out of the cross-examination, and new matter may only be introduced with the leave of the judge. In R v AJS (2005) 12 VR 563; 159 A Crim R 327 (CA) the court said in a joint judgment (at 575–576; 341 [48]): The basic rule is that re-examination is confined to matters arising out of cross-examination. It is not, however, confined to the clearing up of ambiguities that have arisen in the course of cross-examination, but extends to answers given in cross-examination which, if left unexplained, may not constitute the whole truth or would leave the tribunal of fact with a distorted or incomplete account, to the disadvantage of the side which called the witness. Similarly, a witness

[18.2015]

RE-EXAMINATION

1287

who has been cross-examined as to part of an out-of-court statement made by him or her may be re-examined as to other parts of the statement where that is necessary to explain or qualify those parts of the statement which have been introduced into evidence. Because of the general rule that statements made by a witness out of court and of a self-serving nature are inadmissible, care is called for when a prior consistent statement is proposed to be introduced in re-examination. [Citations omitted]

(this part of the judgment is not affected by the successful appeal: AJS v The Queen (2007) 81 ALJR 1208; 235 ALR 633; 171 A Crim R 436). In R v Clune (No 1) [1975] VR 723 (CCA) the court approved Wojcic v Incorporated Nominal Defendant [1969] VR 323 and then said (at 734): And there is also authority for the view that such explanatory or qualifying evidence may be adduced from a later witness: see Drakos v Smith, [1958] VR 536; and Cross on Evidence Australian Edition, p 275.

Other cases Wojcic v Incorporated Nominal Defendant [1969] VR 323 (FC); R v Clune (No 1) [1975] VR 723 at 734 (CCA); R v Lavery (No 2) (1979) 20 SASR 430 (FC); R v Szach (1980) 23 SASR 504; 2 A Crim R 321 (FC); R v Phair [1986] 1 Qd R 136 (CCA); R v Singleton [1986] 2 Qd R 535; (1986) 24 A Crim R 82 (Qld CCA).

[18.2010] An allegation of recent invention put in cross-examination can be restored by evidence of an earlier consistent story Nominal Defendant v Clements (1960) 104 CLR 476 per Dixon CJ at 479–480. R v Smith & Turner [No 2] (1995) 80 A Crim R 491 (SA CCA) per Mullighan J at 525–526. Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 per McHugh J at 1030; 379 [36]. See also Credit at [3.9600]; Prior inconsistent statement at [16.4700]; and Recent invention at [18.1000].

[18.2015] Leading questions only by leave Generally Leave must be sought to ask leading questions in re-examination. Such leave will be granted only in very exceptional circumstances: Rawcliffe v The Queen (2000) 22 WAR 490; 115 A Crim R 509 (CCA) per Miller J (at 507; 525–526 [54]) with whom the other judges agreed.

Legislation Uniform Evidence Acts s 37(1)(a); NZ: Evidence Act 2006 s 89(1)(c). On the interpretation of the Uniform Evidence Acts, see Hannes v DPP (Cth) (No 2) (2006) 165 A Crim R 151; 205 FLR 217 (NSW CCA) esp at [217]–[226] per Barr and Hall JJ.

1288

ROSS ON CRIME

[18.2020]

[18.2020] Witness hostile in re-examination In Willis v Magistrates Court (Vic) (1996) 89 A Crim R 273 (Vic) Smith J said (at 279) that in principle it may be open to a party who calls a witness to have that witness declared hostile during re-examination.

[18.2025] Restoring credit See Credit at [3.9600].

[18.2030] Must conform to rules and rulings Re-examination must not contravene a judge’s ruling so as to introduce inadmissible evidence. That is what happened in Crofts v The Queen (1996) 186 CLR 427; 139 ALR 455; 88 A Crim R 232. In R v Pektas [1989] VR 239 (CCA) Vincent J said (at 266): If Mr Perry’s re-examination could be said to have a legitimate purpose, it could only serve to reinforce the point which Mr Tovey had made with the witness. I conclude, with regret, that Mr Perry’s real purpose was to introduce evidence prejudicial to Behattin Pektas. He was allowed to achieve this improper purpose because Mr Tovey’s well-founded objection was erroneously overruled by the learned trial judge. In my opinion, this ground has been sustained.

See also R v Lavery (No 2) (1979) 20 SASR 430 (FC); R v Singleton [1986] 2 Qd R 535; (1986) 24 A Crim R 82 (CCA).

[18.2035] Re-examination on a document If a witness is cross-examined on part of a document, the re-examiner may prove the part of the document cross-examined on, together with such other parts of the document which explain or modify it. Meredith v Innes (1931) 31 SR (NSW) 104 (FC – five member court) at 112 per Street CJ; R v Titijewski [1970] VR 371 at 375, 378 (CCA); R v Kehagias [1985] VR 107; (1984) 13 A Crim R 82 at 118–119, 93–95 (CCA).

[18.2040] Course of the trial Re-examination on questions asked on behalf of an accused at committal was allowed at trial by Hunt J. On appeal it was held he had ruled properly. The majority in Petty and Maiden v The Queen (1991) 173 CLR 95; 55 A Crim R 322; 102 ALR 129 said (at 102; 133; 325–326): Maiden’s conduct constituted not an exercise of the right of silence but an adherence, up to the time of trial, to an allegation that Petty had murdered White. It was the making and implied maintenance of that admittedly false allegation of murder by another which the jury was entitled to take into account in determining whether the defence advanced on the trial was spurious. The re-examination was admissible once the suggestion was made by the defence that Maiden had abandoned his assertion that Petty had murdered the deceased in a conversation with a Crown witness before the commencement of the committal proceedings.

[18.2045] Ten hints on re-examination 1. No leading questions. 2. It must arise from cross-examination. 3. No new matters except by leave.

[18.2205]

RELATIONSHIP

1289

4. Explain expressions used by the witness in cross-examination. 5. Explain motives or reasons. 6. Explain the whole of an event or incident. 7. Restore credit or mitigate discredit. 8. Give the whole of a conversation with a central party. 9. Use the whole of a statement to explain a prior inconsistency. 10. Try to finish on a good answer.

RELATIONSHIP Vagueness in the term ............................................................................................................... Propositions ............................................................................................................................... Hostility between accused and victim ...................................................................................... Adult man and woman: murder ............................................................................................... Threats ....................................................................................................................................... Hostility to intruders ................................................................................................................. Previous violence ...................................................................................................................... Sexual offences–generally ........................................................................................................ Sexual offence with a child ...................................................................................................... One incident cannot prove relationship or guilty passion ....................................................... Warnings to the jury on relationship evidence ........................................................................ Propensity reasoning not to be used ........................................................................................ Not to prove the offences charged ........................................................................................... Lapse of time between events ..................................................................................................

[18.2200] [18.2205] [18.2210] [18.2215] [18.2220] [18.2225] [18.2230] [18.2235] [18.2240] [18.2245] [18.2250] [18.2255] [18.2260] [18.2265]

[18.2200] Vagueness in the term In R v Clark (2001) 123 A Crim R 506 (NSW CCA) Heydon JA said (at 562 [99]): There is a blessed vagueness in the expression “relationship evidence”, and it is very widely used, but it is not a satisfactory expression. Accordingly there is force in Gleeson CJ’s preference for considering whether the evidence was direct evidence of any fact relevant to a fact in this issue.

The reference is to R v Frawley (1993) 69 A Crim R 208 (NSW CCA) where Gleeson CJ said (at 222–223): In my view the preferable approach in a case such as the present is not to consider the matter in terms of generality as to “relationship” but, rather, to consider whether the evidence in question is direct evidence of any fact relevant to a fact in issue.

Heydon JA later said in R v Clark (at 581 [160]): The stuff of a “relationship” between two people is the mutual dealings between them and the consequential attitudes each has for the other.

For examples of relationship evidence see KRM v The Queen (2001) 206 CLR 221; 178 ALR 385; 118 A Crim R 262 per McHugh J (at 229–230; 391–392; 268–269 [23] – [24]); BBH v The Queen [2012] HCA 9.

[18.2205] Propositions In R v Gojanovic (No 2) (2002) 130 A Crim R 179 (Vic, Coldrey J) his Honour repeated his conclusions on relationship evidence made in an earlier case. He looked at the authorities and said (at 180 [3]): From these cases the following propositions relating to admissibility emerge:

1290

ROSS ON CRIME

[18.2210]

(1) The evidence of the prior relationship (being a relationship of enmity or antipathy) of the accused and the deceased must be reasonably explanatory of the conduct with which the accused is charged. (2) Such evidence may be adduced to establish motive, or intent, or the fact of the commission of the offence charged. (3) It is not necessary that any particular incident the subject of evidence pertaining to the relationship should singly and of its own force establish a relationship of enmity. It is sufficient if the incident related makes a contribution which is not insignificant or insubstantial to the climate of enmity or antipathy. (4) An incident in a relationship which is isolated or remote in time from the death may be insufficient to have any bearing on the issues of motive or intent or the fact of the commission of the crime charged. (5) Evidence of a prior relationship of enmity or antipathy is not to be led as evidence of bad character or of a propensity towards violence of an accused.

[18.2210] Hostility between accused and victim In R v Bond [1906] 2 KB 389; (1904–1907) All ER Rep 24 (Crown Cases Reserved – seven member court) Kennedy J said (at 401; 30): The relations of the murdered or injured man to his assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment, are properly admitted to proof as integral parts of the history of the alleged crime for which the accused is on his trial.

Approved: Wilson v The Queen (1970) 123 CLR 334 at 338, 344; R v Mackay [1985] VR 623 at 634 (CCA); R v Andrews (1992) 60 A Crim R 137 at 142 (SA CCA); R v Frawley (1993) 69 A Crim R 208 at 218 (NSW CCA).

[18.2215] Adult man and woman: murder In R v Frawley (1993) 69 A Crim R 208 (NSW CCA) Gleeson CJ said (at 220): [I]t is not particularly helpful to begin with an assumption that, in a case of homicide involving a man and a woman, evidence of their relationship is admissible.

In R v Barbour [1938] SCR 465; [1939] 1 DLR 65 (SCC) the accused was convicted of murdering his girlfriend. At trial there was evidence of quarrels and of his assaults on her three times in the three months before her death. The State Supreme Court held that the admission of such evidence was wrong and ordered a new trial. The prosecution appealed to the Supreme Court of Canada. The appeal was dismissed three to two by a five member court. Duff CJ said (at 469; 67): If you have acts seriously tending, when reasonably viewed, to establish motive for the commission of a crime, then there can be no doubt that such evidence is admissible, not merely to prove intent, but to prove the fact as well. But I think, with the greatest possible respect, it is rather important that the courts should not slip into a habit of admitting evidence which, reasonably viewed, cannot tend to prove motive or to explain the acts charged merely because it discloses some incident in the history of the relations of the parties.

Approved in R v Tsingopoulos [1964] VR 676 (CCA) in which the accused was convicted of murdering his wife. There was evidence at trial that between 1957 and 1959 the accused was very unhappy about what he believed was the victim’s lack of virginity on marriage.

[18.2215]

RELATIONSHIP

1291

He wanted to leave her and said she wanted to suicide. They were happy from 1959 until her death in 1963. Held: the evidence was wrongly admitted. Appeal allowed. In Wilson v The Queen (1970) 123 CLR 334 Menzies J said (at 344): Any jury called upon to decide whether they were convinced beyond reasonable doubt that the appellant killed his wife would require to know what was the relationship between the deceased and the accused. Were they an ordinary married couple with a good relationship despite differences and disagreements, or was their relationship one of enmity and distrust? It seems to me that nothing spoke more eloquently of the bitter relationship between them than that the wife, in the course of a quarrel, should charge her husband with a desire to kill her. The evidence is admissible not because the wife’s statements were causally connected with her death but to assist the jury in deciding whether the wife was murdered in cold blood or was the victim of a mischance. To shut the jury off from any event throwing light upon the relationship between the husband and the wife would require them to decide the issue as if it happened in a vacuum rather than in the setting of a tense and bitter relationship between a man and a woman who were husband and wife. Accordingly, in my opinion the evidence in question was properly admitted because it was pertinent to the issues which the jury had to decide.

Relationship evidence can be relevant to rebut or to prove a defence. In R v Anderson (2000) 1 VR 1; 111 A Crim R 19 (CA) Winneke P said (at 12; 30 [30]): [S]uch evidence has been admitted to prove motive or to establish the intent of the accused, or to negative a defence of accident, self-defence or provocation. Such evidence can be admitted either for or against the interests of the accused. It would be contrary to common sense, for example, to exclude evidence which pointed to an entirely harmonious and compatible relationship between the accused person and his wife or partner if such evidence was relevant to the defence of the accused person: Wilson v R at 337 per Barwick CJ.

Other cases R v Raye (2003) 138 A Crim R 355 at 358 [18] (Qld CA). In R v Frawley (1993) 69 A Crim R 208 (NSW CCA) Gleeson CJ said (at 217–218): Mrs Jeacle gave evidence of hearing raised voices and arguments. She said that on occasions the appellant would come over to her house and ask if he could stay because he had had another fight with the deceased. He would refer to the deceased as a “bitch” and a “slut” and he often said that he really hated her. On one occasion he told Mrs Jeacle that he and the deceased had had a fight the night before and he was finally sick and tired of her and had decided to leave her. He asked if he could rent a room in Mrs Jeacle’s house. That evidence was admissible because the nature of the relationship between the appellant and his wife was relevant. The words of Menzies J in Wilson (1970) 123 CLR 334 at 344 are directly applicable.

Other evidence of the deceased’s diaries and of her voiced complaints, fears and opinions about the appellant was inadmissible. Appeal allowed. R v McKnoulty (1995) 80 A Crim R 28 (NSW) (Abadee J). In R v Peake (1996) 67 SASR 297 (CCA) the accused was convicted of wounding his de facto and of attempted murder of her parents. At trial, over objection, prosecution evidence was given of previous assaults on each victim and general evidence of mistreatment of his de facto. The appeal was dismissed. Notwithstanding that the trial judge ought to have directed that each previous incident had to be proved beyond a reasonable doubt, that failure to do so had not resulted in miscarriage because “the appellant admitted that most, if not all of the incidences [sic], took place, even though disputing the details”: Milhouse J at 298. See also 300.

1292

ROSS ON CRIME

[18.2220]

[18.2220] Threats In R v Olasiuk (1973) 6 SASR 255 (CCA) the accused made threats to the lover of his ex-wife. The court said in a joint judgment (at 263–264): Evidence of threats by a person accused of murder against the deceased is admissible, if sufficiently proximate in time, to prove motive and to show the relationship between the parties, and, indeed, to prove the act of killing. Evidence of threats to some other person entirely unconnected with the crime proves, of course, no more than a propensity to violence and is clearly inadmissible.

In R v Mackay [1985] VR 623 (CCA) the accused made a telephone threat to the solicitor acting for the wife in a Family Court case. The court said in a joint judgment (at 635–656): [T]here was a real nexus between the applicant’s telephone threat to Lewenberg and the explosion. The evidence of the telephone conversation was evidence of motive and not of propensity; it was part of the history of events showing the state of relations between the applicant and Lewenberg and there was no evidence that those relations improved or would have been likely to have improved during the two years following the threat. … evidence of the threat was prejudicial to the applicant … Prejudice alone, however, is not a ground for excluding evidence. In this case the prejudicial effect of the evidence did not outweigh its probative value, as establishing the relations between the applicant and Lewenberg and a motive for the later conduct charged.

In R v Porter (2003) 138 A Crim R 581 (SA CCA) Sulan J said of death threats by the accused to his wife (at 599 [91]): A statement by a person that he will carry out an act can be relevant to the issue of whether the act was carried out by that person. The more specific the statement or threat the more probative it will be towards proof of the fact. Evidence of such a statement is admissible going to prove the fact of the crime and the identity of the perpetrator. It is also evidence going to prove the intent of the accused. R v Hissey (1973) 6 SASR 280 at 288-289; Wilson v The Queen (1970) 123 CLR 334 at 349.

[18.2225] Hostility to intruders In R v O’Brien (1884) 10 VLR 242 (L) (FC), Molesworth J, giving the judgment of the court, said (at 248): Evidence was admitted against the prisoner that he had expressed hostility to the bank, and intense resentment at its conduct in dispossessing him, and an intention to be revenged upon any person who should attempt to get an interest in, or to live upon, the lands of which he considered himself wrongfully dispossessed. …This is not like the case of evidence adduced to show that a person is addicted to a certain class of crimes, or has previously committed such crimes. It is a declaration of intention on the prisoner’s part to avenge himself on anybody taking possession of either allotment.

See also R v Fuzzle Ahmed [1929] QSR 222 (CCA); R v Alfred Galway (unreported, Vic CCA, 27 March 1980). In R v Fuzzle Ahmed [1929] QSR 222 the accused was a copper gouger. He told a witness that he would shoot anyone who came to his camp because his copper had been stolen. A new trial was ordered because the trial judge did not direct the jury: [T]hat it only became material in determining whether the killing, if proved to their satisfaction, occurred by accident or design in defence of, or in the belief that he was defending, his property.

R v McKay [1957] VR 560 (CCA): A poulterer’s anger at chicken thieves was properly admitted on trial for murder of one of those thieves.

[18.2235]

RELATIONSHIP

1293

[18.2230] Previous violence Earlier violence by the accused to the deceased child is admissible on trial for manslaughter of the child: R v Mills [1986] 1 Qd R 77; (1985) 16 A Crim R 366 (CCA); R v Bourke (1987) 28 A Crim R 216 (Qld CCA).

[18.2235] Sexual offences–generally R v Ball [1911] AC 47; [1908–10] All ER Rep 111; (1910) 6 Cr App R 31 (HL) was described by Hunt CJ at CL in R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 (CCA) (at 514–515; 421–422): In that case, a brother and sister had been charged with having committed incest upon a particular day. The case was a circumstantial one. Upon the day in question, they were seen together at night in a house which contained only one furnished bedroom. That room had a double bed which bore signs of two persons having occupied it. Evidence was led that, some years earlier (before the Punishment of Incest Act 1908 (UK)), the brother had taken a house to which he brought his sister as his wife. They had lived there for 16 months, during which time the sister gave birth to a child which she registered, describing her brother as the father. The evidence was said (at 71; 47) to have been tendered in order: [T]o establish that they had a guilty passion towards each other, and that therefore the proper inference from their occupying the same bedroom and the same bed was an inference of guilt, or–which is the same thing in another way–that the defence of innocent living together as brother and sister ought to fail. [Emphasis added.] The House of Lords held (at 71; 47) that the evidence of the earlier events was admissible: [T]o establish the guilty relations between the parties and the existence of a sexual passion between them as elements in proving that they had illicit connection in fact on or between the dates charged. Their passion for each other was as much evidence as was their presence together in bed of the fact that when there they had guilty relations with each other. [Emphasis added.] That decision was applied by this Court in Gellin (1913) 13 SR 271 at 275. Its authority has never been questioned since. Many of the cases in which it has been followed were discussed in Chamilos (unreported, Court of Criminal Appeal, 24 October 1985), and again in Zappala (unreported, Court of Criminal Appeal, 4 November 1991). It is unnecessary that I should discuss them again. Ball [1911] AC 47; [1908-10] All ER Rep 111; 6 Cr App R 31 was recently cited with approval by the High Court in B (1992) 175 CLR 599 at 602, 608; 63 A Crim R 225 at 226, 231.

In R v Ball [1911] AC 47; [1908–10] All ER Rep 111; (1910) 6 Cr App R 31 (HL) the following exchange occurred in argument. (It is reported only in the Cr App R at 41–42.) Forrest Fulton for the appellants was led by silk but this part of the argument he did himself: [The Lord Chancellor: At all events, passion is a common ingredient: can no evidence be admitted to shew there was passion?] Proof of passion is not proof of the offence being committed. If the charge was that one man struck another with a poker, it would not be sufficient to shew that there was enmity between them: it would not shew that on a given date one struck the other. [Lord Halsbury: Would it not be evidence to shew that there was ill-feeling? On an indictment for murder would it not be evidence that there was enmity?] It might be admissible to shew malice. There you have to prove the murder, and here you have not proved the carnal knowledge. (The learned counsel then cited Lord Campbell’s judgment in Oddy.) Putting the argument shortly, it is open to the prosecution, not to give such evidence to shew whether a man did the act or not, but having proved that a certain act was committed, they may give such evidence to shew why it was committed. Here there is no question why the act was done, the question is whether or not it was done.

1294

ROSS ON CRIME

[18.2240]

[18.2240] Sexual offence with a child The basis for admissibility of relationship evidence was explained, in R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 (CCA) Hunt CJ at CL said (at 515; 422): The true bases for the admissibility of evidence of sexual activity between the complainant and the accused other than that which is the subject of the charge were analysed in some detail most recently by this Court in Wickham (unreported, Court of Criminal Appeal, 17 December 1991). The evidence is admissible, first, in order to establish a sexual relationship which makes the complainant’s allegation more likely to be true. The “guilty passion” of the adult for the child which such conduct shows may well make more credible the complainant’s evidence that the sexual activity took place upon the particular occasion which is the subject of the charge. In other words, it makes it more likely that the offence charged was in fact committed: Martin v Osborne (1936) 55 CLR 367 at 376 (Dixon J); Harriman (1989) 167 CLR 590 ; 43 A Crim R 221; 88 ALR 161 at 631 (CLR) 251 ( A Crim R) (McHugh J); B (at 602, 609, 610-611, 618; 227, 232, 233, 239-240). Secondly, the evidence is admissible in order to place the evidence of the offence charged into a true and realistic context, in order to assist the jury to appreciate the full significance of what would otherwise appear to be an isolated act occurring without any apparent reason.

Where the act charged could not be understood without evidence of the relationship was discussed in R v Etherington [1982] 32 SASR 230 (CA). Walters J said (at 235): In the second place, I think the evidence of the prior indecent acts was admissible on the ground that it formed part of the circumstances of the offence charged. Without evidence of those acts, the evidence of the prosecutrix relating to the act said to constitute the alleged offence “could not be truly understood and, isolated from [the evidence of the prior indecent acts], could only be presented as an unreal and not very intelligible event” (O’Leary v The King (1946) 73 CLR 566 per Dixon J (as he then was), at p 577). As it seems to me, the evidence in question showed what amounted to something of continuous transaction, namely, the defilement of the prosecutrix by the appellant on a number of occasions since she was eight or nine years old, and it served to explain why she continued to submit to him and why he was able to commit his indecent acts upon her on the occasion charged.

In Gipp v The Queen (1998) 194 CLR 106; 155 ALR 18; 102 A Crim R 299 Gaudron J said (at 112–113; 19–20; 303 [11] – [12]): General evidence of sexual abuse on occasions other than those charged does not have that special probative value which renders evidence admissible as “similar fact” or “propensity” evidence. And in this case, there was no feature of the kind present in R v Ball [1911] AC 47; [1908–10] All ER Rep 111; 6 Cr App R 31 that made it directly relevant to the question whether the appellant was guilty of the offences charged. Thus, unless there was some subsidiary issue in the trial to which it was relevant, the evidence of general sexual abuse was not admissible. In cases of child sexual abuse, the defence case may be conducted in such a way as to raise an issue to which prior abuse is relevant. As pointed out by McHugh and Hayne JJ in this case, evidence of prior sexual abuse may explain lack of surprise or failure to complain. If they are issues in the trial, evidence of general sexual abuse is relevant and admissible. But they can only be made issues by the way in which the defence case is conducted. And they were not made issues in this case. More precisely, they had not been made issues when the evidence of general abuse was given by the complainant in chief and repeated in non-responsive answers in the course of her cross-examination. Thus, that evidence was not admissible.

See also R v Hissey (1973) 6 SASR 280 (CCA).

[18.2245] One incident cannot prove relationship or “guilty passion” In R v Young [1998] 1 VR 402; (1996) 90 A Crim R 80 (CA) the court said in a joint judgment (at 416; 88–89): In this case the evidence of a single incident preceding the events which gave rise to the counts on the presentment was not capable of proving “guilty passion” or any other kind of relevant relationship. Nor could admission of this evidence be justified as part of the necessary narrative required to give context to those later events.

[18.2260]

RELATIONSHIP

1295

Further (at 411; 90): There may, in these circumstances, not be a great difference between propensity and “guilty passion” but, as imprecise as the latter expression may be, it is intended to describe an attraction of a more lasting kind than evidenced by this alleged casual assault. The “passion” or relationship for this purpose must be of the kind and duration which would make it relevant to explain some other event or events which form the subject of the presentment and tend to make it more likely that one or more of them occurred.

[18.2250] Warnings to the jury on relationship evidence See generally BRS v The Queen (1997) 191 CLR 275; 95 A Crim R 400; 148 ALR 101. In R v BJC (2005) 13 VR 407; 154 A Crim R 109 (CA) Osborn AJA, giving the leading judgment spoke about proper directions to a jury. His Honour said (at 428; 132 [73]): It will generally be appropriate for the trial judge to identify the purpose for which evidence of sexual relationship is admitted with the same precision as is necessary to determine its admissibility ... Characterising evidence simply as demonstrating a relationship may be unhelpful and will increase the risk that it will be treated as mere general propensity by the jury.

Approved: R v DD (2007) 181 A Crim R 1 at 18–19 [65] (Vic CA).

[18.2255] Propensity reasoning not to be used In R v Vonarx [1999] 3 VR 618 (CA) (decided in 1995) the court said in a joint judgment (at 625): [W]here evidence of criminal conduct, other than that which is charged, is being introduced into the evidence on the trial, the jury ought to be clearly told that evidence of such conduct can be used by them only if they are satisfied that it occurred and only for the limited purpose of determining whether a sexual relationship existed between the complainant and the accused, thereby enabling the evidence relied upon by the Crown in proof of the offences charged to be assessed and evaluated within a realistic contextual setting. They should be told not to reason that the accused is the kind of person likely to commit the offence charged. The jury should also be clearly instructed that evidence of other sexual activity does not itself prove the offences charged. It is of the utmost importance that the jury be told that the accused can be convicted on any count alleged against him on the presentment only if they are satisfied beyond reasonable doubt that the facts alleged in that count occurred. It is impermissible to convict the accused on the basis that, although the conduct so identified has not been proved to the requisite standard, some other conduct alleged by the victim has occurred (see Dolan (1992) 58 SASR 501 per King CJ at 503).

Followed: R v Grech [1997] 2 VR 609; (1996) 88 A Crim R 489 at 611–612, 492 (CA). Approved: Gipp v The Queen (1998) 194 CLR 106; 155 ALR 18; 102 A Crim R 299 (HC) per Kirby J (at 156; 55; 340; [141]).

[18.2260] Not to prove the offences charged In R v Beserick (1993) 30 NSWLR 510; 66 A Crim R 419 (CCA) Hunt CJ at CL said (at 516; 423): If the judge declines to exercise that discretion to exclude the evidence of such other sexual activity, an explanation should invariably be given to the jury–as soon as the first of that evidence is given and, if necessary, again in the summing up–as to the purpose for which the evidence is admitted, together with a warning to the jury that they must not either substitute evidence of such other sexual activity for the specific activity which is the subject of the offence charged or reason

1296

ROSS ON CRIME

[18.2265]

that, because the accused may have done something wrong with the complainant on some other occasion or occasions, he must also have done so on the occasion which is the subject of the offence charged.

Followed: R v Grech [1997] 2 VR 609; (1996) 88 A Crim R 489 at 612, 493 (CA); R v DCC (2004) 11 VR 129; 151 A Crim R 403 at [12] (CA).

[18.2265] Lapse of time between events Where there is considerable time between acts of violence or threats that evidence may be inadmissible to show motive or relationships, or as similar acts. In Shaw v The Queen (1952) 85 CLR 365, Dixon, McTiernan, Webb and Kitto JJ said (at 377): [S]ome of the evidence of violence and threats of violence relates to a time somewhat remote from the date of the crime, remote enough to make it likely that, had it been objected to, it would have been excluded.

In R v Bara (1998) 106 A Crim R 1 (NT) Kearney J ruled on whether threats made to a victim were admissible on a charge of murder. His Honour said (at 11): [I]t is not some integral part of the history of the alleged crime for which the accused is standing his trial. That is to say, I do not consider that proof that the accused said the words alleged to the deceased in 1992, in their context, is relevant to what the accused is alleged to have done in April of 1997. It is not evidence from which a relevant inference may logically and reasonably be drawn as to what he is alleged to have done at that time. This is because what was said in 1992 is too remote in time. Lapse of time is an important matter in this regard.

In R v Gordon (1999) 108 A Crim R 356 (WA, Templeman J) the accused was charged with the murder of his wife. The prosecution wanted to introduce evidence of the manslaughter of a first wife 20 years before. His Honour ruled (at 362): I accept, that a long time interval between the relevant events will not necessarily render the evidence inadmissible: Perry v The Queen (1982) 150 CLR 580. However, it seems to be a powerful consideration in relation to physical violence by a man who was then in his twenties and is now in his forties.

See also Circumstantial evidence at [3.2000]; Motive at [13.3500]; Sexual offence at [19.3000]; Similar facts at [19.4400]; and Uncharged acts at [21.100].

RELEVANCE Definition of relevant ................................................................................................................ Irrelevant evidence is inadmissible .......................................................................................... Uniform Evidence Acts ............................................................................................................ General concepts of relevance .................................................................................................. Insufficiently or too remotely relevant ..................................................................................... substantial relevance .................................................................................................................

[18.2400] [18.2405] [18.2410] [18.2415] [18.2420] [18.2425]

[18.2400] Definition of “relevant” “Relevant” was defined in Art 1 of Stephen’s Digest of the Law of Evidence 12th ed (1936), p 4 as: [A]ny two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.

[18.2405]

RELEVANCE

1297

Approved: R v Kearley [1992] 2 AC 228; [1992] 2 All ER 345; (1992) 95 Cr App R 88 (HL) per Lord Oliver (at 263; 370; 111–112); Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 per Brennan J (at 571; 11; 198); Palmer v The Queen (1998) 193 CLR 1; 96 A Crim R 213; 151 ALR 16 per McHugh J (at 24; 33; 231). (McHugh J referred to an earlier edition of Stephen which contained the same definition.) In R v Matthews [1960] 1 SA 752 (AD, Supreme Court of South Africa) Schreiner JA said (at 758): Relevancy is based upon a blend of logic and experience lying outside the law. The law starts with this practical or commonsense relevancy and then adds material to it or, more commonly, excludes material from it, the resultant being what is legally relevant and therefore admissible.

Approved (but wrongly cited): R v Harmer (1985) 28 A Crim R 35 at 41 (Vic CCA); R v Fraser (1995) 65 SASR 260; 85 A Crim R 385 (CCA) per Doyle CJ at 267; 392.

[18.2405] Irrelevant evidence is inadmissible In Smith v The Queen (2001) 206 CLR 650; 125 A Crim R 10; 181 ALR 354; [2001] HCA 50 Gleeson CJ, Gaudron, Gummow and Hayne JJ said (at 653–654; 355; 11 [6]): Evidence is relevant or it is not. If the evidence is not relevant, no further question arises about its admissibility. Irrelevant evidence may not be received. Only if the evidence is relevant do questions about its admissibility arise. These propositions are fundamental to the law of evidence and well settled.

And later (at 654; 356; 12 [7]): In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, the question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular. Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly or indirectly) the assessment by the tribunal of fact, there the jury, of the probability of the existence of a fact in issue in the proceedings (Evidence Act 1995 (NSW) s 55(1)).

In Nicholls v The Queen (2005) 219 CLR 196; 213 ALR 1 McHugh J said (at 215–216; 10 [37]): The central thesis of the common law concerning the admissibility of evidence is that it is admissible only when it is relevant, that is: [I]f it tends to prove a fact in issue or a fact relevant to a fact in issue. A fact is relevant to another fact when it is so related to that fact that, according to the ordinary course of events, either by itself or in connection with other facts, it proves or makes probable the past, present, or future existence or non-existence of the other fact. [Footnote omitted] In other words, evidence is relevant “if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.” In a trial, a balance must be struck between considerations of justice and matters of practicality. Consequently, the general rule concerning admissibility is qualified by other rules of evidence. One qualification concerns evidence of matters collateral to the issues in the case.

1298

ROSS ON CRIME

[18.2410]

[18.2410] Uniform Evidence Acts Section 55 of the Uniform Evidence Acts provides: 55 Relevant evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence. 56 Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

In Goldsmith v Sandilands (2002) 76 ALJR 1024; 190 ALR 370 Gleeson CJ said (at 1025; 371 [2]): Evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

In the footnote to this proposition there is the following: This is the definition of relevance in the Evidence Act 1995 (NSW) . It is not materially different from that given by Sir James Stephen in his Digest of the Law of Evidence, 5th ed, 1887, Art 1, p 2, and adopted by McHugh J in Palmer v The Queen (1998) 193 CLR 1; 151 ALR 16 at 24 [55] fn 54 (CLR), 33 fn 37 (ALR).

Gleeson CJ’s proposition was repeated in the joint judgment of the court in Phillips v The Queen (2006) 225 CLR 303; 158 A Crim R 431; 224 ALR 216 (at 319; 229 [50]). See also, R v Smith (No 5) [2011] NSWSC 1459.

[18.2415] General concepts of relevance In R v A (No 2) [2002] 1 AC 45; [2001] 2 WLR 1546; [2001] 3 All ER 1 (HL) Lord Steyn said (at 62; 1557; 11 [31]): Relevance and sufficiency of proof are different things… After all, to be relevant the evidence need merely have some tendency in logic and common sense to advance the proposition in issue.

In DPP v Kilbourne [1973] AC 729; [1973] 1 All ER 440; [1973] 57 Cr App R 381 (HL) Lord Simon said (at 757; 460; 417): Your Lordships have been concerned with four concepts in the law of evidence: (i) relevance; (ii) admissibility; (iii) corroboration; (iv) weight. The first two terms are frequently, and in many circumstances legitimately, used interchangeably; but I think it makes for clarity if they are kept separate, since some relevant evidence is inadmissible and some admissible evidence is irrelevant (in the senses that I shall shortly submit). Evidence is relevant if it is logically probative or disprobative of some matter which requires proof. I do not pause to analyse what is involved in “logical probativeness”, except to note that the term does not of itself express the element of experience which is so significant of its operation in law, and possibly elsewhere. It is sufficient to say, even at the risk of etymological tautology, that relevant (ie logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable. To link logical probativeness with relevance rather than admissibility (as was done in Sims [1946] 1 KB 531) not only is, I hope, more appropriate conceptually, but also accords better with the explanation of Sims [1946] 1 KB 531 given in Harris v DPP [1952] AC 694 at p 710. Evidence is

[18.2420]

RELEVANCE

1299

admissible if it may be lawfully adduced at a trial. “Weight” of evidence is the degree of probability (both intrinsically and inferentially) which is attached to it by the tribunal of fact once it is established to be relevant and admissible in law (though its relevance may exceptionally, as will appear, be dependent on its evaluation by the tribunal of fact). Exceptionally evidence which is irrelevant to a fact which is in issue is admitted to lay the foundation for other, relevant, evidence (eg evidence of an unsuccessful search for a missing relevant document, in order to lay the foundation for secondary evidence of the document). Apart from such exceptional cases no evidence which is irrelevant to a fact in issue is admissible. But some relevant evidence is nevertheless inadmissible. To cite a famous passage from the opinion of Lord Herschell LC in Makin v Attorney-General for New South Wales [1894] AC 57 at p 65.

In R v Chee [1980] VR 303 (CCA) the court said in a joint judgment (at 308): Putting aside exclusionary rules, the test of admissibility of evidence is whether it is probative; ie whether it increases or diminishes the probability of the existence of a fact in issue; DPP v Kilbourne [1973] AC 729 at 757. If evidence offered has this tendency, it may be said to have probative force.

In Pollitt v The Queen (1992) 174 CLR 558; 62 A Crim R 190; 108 ALR 1 Brennan J said (at 571; 11; 198): The first condition of admissibility of evidence is relevance: apart from questions relating to the credit of a witness, a fact which evidence is tendered to prove ( a “fact to be proved”) must be a fact in issue or a fact relevant to a fact in issue. Where a fact to be proved is a fact in issue, admissibility of evidence tendered to prove it depends solely on the manner in which that evidence tends to establish the fact to be proved. Where a fact to be proved is a fact relevant to a fact in issue, admissibility depends first on the manner in which that evidence tends to establish the fact to be proved and secondly, on the relevance of the fact to be proved to a fact in issue.

[18.2420] Insufficiently or too remotely relevant In R v Stephenson [1976] VR 376 (CCA) the accused had been convicted of culpable driving causing death. At trial his counsel had wanted to cross-examine to show that the possible driver of the other car was affected by alcohol (Three of the four occupants had been killed. The survivor could not say which of them was driving). The trial judge had disallowed the cross-examination because it was irrelevant. The Court of Criminal Appeal said the trial judge acted properly (at 380–381): Although logic is the test of relevance, not all evidence which is logically relevant is legally admissible. The logical connection between a fact and the issue to be determined may be so slight that the fact is treated as too remote and evidence of it as inadmissible. In some cases, such evidence is described as being irrelevant, an expression which must he taken to indicate that its weight is so minimal that it does not serve to add to or detract from the probability of the principal issue being established. Such evidence may be more correctly described as insufficiently relevant or too remotely relevant.

R v Stephenson [1976] VR 376 was distinguished in the High Court, not because of the above concept but because cross-examination had been stopped. In Wakeley v The Queen (1990) 64 ALJR 321; 93 ALR 79 (HC) the court said in a joint judgment (at 325–326): Even if cross-examination failed to establish any real connection between ingestion of heroin and the alleged finding of heroin in Wakeley’s shoe, the opening up, by cross-examination, of the general conduct of the detectives on the evening before and the early morning of Horton’s death may well have thrown some light on the reliability of the entire investigation. It was impossible to say, in advance of the cross-examination which counsel sought to conduct, that the logical connection between a fact which might have been elicited and the issue to be determined was “so slight that the fact is treated as too remote and evidence of it as inadmissible”: R v Stephenson [1976) VR 376 at 380.

1300

ROSS ON CRIME

[18.2425]

[18.2425] “substantial relevance” Some legislation provides that a complainant not be asked about sexual activities unless it has “substantial relevance” to the facts in issue. Qld: Criminal Law (Sexual Offences) Act 1978 s 4; WA: Evidence Act 1906 s 36BC(2); Tas: Evidence Act 2001 s 194M; NT: Sexual Offences (Evidence and Procedure) Act s 4(1)(a); Vic: Criminal Procedure Act 2009 s 349. The term has not been defined but there are some references in Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613. See also R v TSR (2002) 5 VR 627; 133 A Crim R 54 (CA). R v C (1991) 59 A Crim R 46 (Vic CCA) per Teague J at 66. Credit at [3.9600]; and Sexual Offence at [19.3000].

REOPENING The rule ..................................................................................................................................... Origins ....................................................................................................................................... A rule of fairness ...................................................................................................................... Judges’s discretion .................................................................................................................... Main applications ...................................................................................................................... Technical proof exception ........................................................................................................

[18.2600] [18.2605] [18.2610] [18.2615] [18.2620] [18.2625]

[18.2600] The rule The rule is that the prosecution case is not to be reopened other than in exceptional circumstances. By reopening is meant the further calling of evidence by the prosecution after it has closed its case.

[18.2605] Origins In Shaw v The Queen (1952) 85 CLR 365 Dixon, McTiernan, Webb and Kitto JJ said (at 78–80): Clearly the principle is that the prosecution must present its case completely before the prisoner’s answer is made. There are issues the proof of which do not lie upon the prosecution and in such cases it may have a rebutting case, as when the defence is insanity. When the prisoner seeks to prove good character evidence may be allowed in reply. But the prosecution may not split its case on any issue. The court possesses a power to allow further evidence to be called, but it must be exercised according to rule and that rule is against reopening the Crown case unless the circumstances are most exceptional.

And at 80: It seems to us unsafe to adopt a rigid formula in view of the almost infinite variety of difficulties that may arise at a criminal trial. It is probably enough to say that the occasion must be very special or exceptional to warrant a departure from the principle that the prosecution must offer all its proofs during the progress of the Crown case and before the prisoner is called upon for his defence.

[18.2610] A rule of fairness In Lawrence v The Queen (1981) 38 ALR 1 (HC) Gibbs CJ said (at 3):

[18.2800]

RESCUE

1301

The rule that the prosecution may not split its case, but must offer all its proofs before the prisoner is called upon for his defence, is not merely technical but is an important rule of fairness. This has recently been reasserted by a majority of this court in Killick v The Queen (1981) 37 ALR 407. The rule cannot be eroded by too ready an acceptance of a suggestion by the Crown that the circumstances are exceptional. Trial judges must give full effect to the rule that the occasion must be very special or exceptional to justify a departure from the governing principle, and that generally speaking an occasion will not suffice for allowing an exceptional course if it ought reasonably to have been foreseen.

[18.2615] Judges’s discretion In Dryburgh v The Queen (1961) 105 CLR 532 Kitto, Taylor and Windeyer JJ addressed the question of whether a trial judge has a discretion to allow the prosecution to reopen. They said (at 535): If he has, it is necessarily a discretion to be exercised with such jealous concern for the obvious possibilities of injustice that only in rare cases can it be right to admit the belated evidence.

In R v Nguyen (1998) 102 A Crim R 577 (NSW CCA) Smart J, giving the leading judgment, said (at 587): My own view is that the court does have a discretion but that it should be exercised sparingly and only in those cases where there would be a manifest injustice if the power were not exercised. One case would be where a witness has given evidence against an accused and seeks to return to the witness box to say that the evidence was false or that he made a major mistake.

[18.2620] Main applications Killick v The Queen (1981) 147 CLR 565; 37 ALR 407 was an appeal against conviction for armed robbery in South Australia. At his trial Mr Killick gave evidence of alibi. The prosecution was allowed to reopen to rebut the alibi. The appeal was upheld (three: two). Mr Killick had earlier given evidence of alibi to a Sydney magistrate on extradition proceedings. Thus the prosecution was on notice. See also R v Langer [1972] VR 973 (CCA); R v Chin (1985) 157 CLR 671; 59 ALR 1; 16 A Crim R 147; Bulejcik v The Queen (1996) 185 CLR 375; 86 A Crim R 467; 135 ALR 517 especially per McHugh and Gummow JJ (at 408; 541; 492).

[18.2625] Technical proof exception The rule against reopening will not be strictly applied when only a formal proof is required. R v Brown [1985] 2 Qd R 126; (1985) 18 A Crim R 257 (CCA); R v CDR [1996] 1 Qd R 183; (1995) 78 A Crim R 572 (CA); Hansford v McMillan [1976] VR 743 at 749–751 (Anderson J).

RESCUE Rescue of person privately attacked ........................................................................................ [18.2800] Rescue of a prisoner ................................................................................................................. [18.2805] Failure to rescue ........................................................................................................................ [18.2810]

[18.2800] Rescue of person privately attacked In R v Duffy [1967] 1 QB 63; [1966] 1 All ER 62; (1966) 50 Cr App R 68 (CA), the victim and the appellant’s sister fought in a Yorkshire hostel. The victim got the sister to the floor.

1302

ROSS ON CRIME

[18.2805]

The appellant hit the victim with a bottle to save her sister. The court quashed the unlawful wound conviction. It held that a stranger was entitled to intervene to restore the peace and do what was reasonable to rescue a person being attacked.

[18.2805] Rescue of a prisoner A person is not entitled to rescue a person in lawful custody: Hans v The Queen [1955] AC 378; [1955] 2 WLR 700 (PC). In R v Dudko (2002) 132 A Crim R 371 (NSW CCA) the accused hijacked a helicopter and forced the pilot to land in the prison yard at Silverwater Gaol. It was to rescue her sweetheart, John Killick. She pleaded guilty to rescue of an inmate in lawful custody by force. On appeal, conviction and sentence affirmed. Nor can a person aid and abet the rescue of a person in lawful custody: R v Kafka [1962] NZLR 351 (CA).

[18.2810] Failure to rescue In R v Taber (2002) 56 NSWLR 443; 136 A Crim R 478 (Barr J) a number of accused jointly robbed a woman in her home. They bound and gagged her before leaving. They then dialled emergency 000 and told the operator where the victim was. The operator thought the call was a hoax. Thus there was no rescue. His Honour held that the failure of emergency to act was not novus actus interveniens. His Honour ruled on directing the jury on murder. In R v Russell [1933] VLR 50 (FC) the wife of the accused said she was going to drown herself and her children. She did. The husband’s failure to rescue them meant he was guilty of aiding and abetting suicide in that he connived of their deaths. See also Escape at [5.1500].

RES GESTAE Origins ....................................................................................................................................... Criticism .................................................................................................................................... Some meanings ......................................................................................................................... Acts prior to the charged act .................................................................................................... Exclusion of prejudicial statements .......................................................................................... Other reasons for exclusion ...................................................................................................... Examples of hearsay admitted .................................................................................................. Statement must relate to the commission of the crime ...........................................................

[18.3000] [18.3005] [18.3010] [18.3015] [18.3020] [18.3025] [18.3030] [18.3035]

[18.3000] Origins Res gestae is a Latin term meaning: “things so close in time or space to the matter being proved as to be inseparable from it” (Butterworth’s Australian Legal Dictionary (1997), p 1015). Approved Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 per McHugh, Gummow and Hayne JJ (at 475–476; 638; 587 [110]). res: (pronounced rays) thing, object, matter, affair, business, event, occurrence, deed. gestae: (pronounced jest-eye or more properly guest-eye) deeds, acts. The singular of the phrase is res gesta. Quintus Horatius Flaccus (Horace) (65-8 BC) used res gestae in the sense of military achievements.

[18.3015]

RES GESTAE

1303

[18.3005] Criticism Lord Blackburn said: “If you wish to tender inadmissible evidence, say it is part of the res gestae” (recorded in Cross On Evidence (Eng) 5th Ed p 43 n13).

In Homes v Newman [1931] 2 Ch 112; All ER Rep 85 (CA), Lord Tomlin said (at 120; 87): I suspect it of being a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied.

Professor Julius Stone described the law as to res gestae as “the lurking place of a motley crew of conceptions in mutual conflict and reciprocating chaos”: “Res Gesta Agitata” (1939) 55 Law Quarterly Review 66 at 67, referred to in Bull v The Queen (2000) 201 CLR 443; 110 A Crim R 562; 171 ALR 613 at [108] per McHugh, Gummow and Hayne JJ. They said (at [109]): Perhaps Professor Julius Stone was right when he complained (at p 71) that the requirement that a fact be part of the res gestae is usually nothing more than a requirement that it be relevant.

[18.3010] Some meanings In Ratten v The Queen [1972] AC 378; [1971] 3 All ER 801; (1971) 56 Cr App R 18 (PC) Lord Wilberforce gave the opinion of the Board (at 388–389; 806; 25–26): The expression “res gestae”, like many Latin phrases, is often used to cover situations insufficiently analysed in clear English terms. In the context of the law of evidence it may be used in at least three different ways: 1. When a situation of fact (eg a killing) is being considered, the question may arise when does the situation begin and when does it end. It may be arbitrary–and artificial to confine the evidence to the firing of the gun or the insertion of the knife without knowing, in a broader sense, what was happening… 2. The evidence may be concerned with spoken words as such (apart from the truth of what they convey). The words are then themselves the res gestae or part of the res gestae, ie are the relevant facts or part