November 2021 - Recent Cases in Australian Criminal Law
A collection and summary of some of October's interesting cases.
Happy new year everyone! Like many of you, 2021 was an intense year and the last few months of it even more intense, which has meant a later newsletter this time. We will try to make it up with a bumper edition next month, so we are back on track.
Thank you again to @mchlftzgrld1977, @jeremy_gans, @fchralph, @BabbyUnit, Erik Dober and @juliakretz for collating and summarising this month’s judgments.
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When reading the post, please be mindful that many of these cases deal with difficult subject matters and serious crimes, so they can be difficult reading at times.
Commonwealth
High Court of Australia
Conviction
Hamilton (a pseudonym) v The Queen [2021] HCA 33
The High Court (Kiefel CJ, Keane and Steward JJ; Edelman and Gleeson JJ dissenting) dismissed an appeal from a decision of the Court of Criminal Appeal of NSW, dismissing an appeal against conviction on ten counts of aggravated indecent assault contrary to s 61M(2) of the Crimes Act 1900 (NSW) (a provision which has since been repealed). The appeal to the High Court was brought on the ground that the trial miscarried because the trial judge did not give the jury an anti-tendency direction, which would have instructed the jury that it is impermissible to reason that guilt in respect of one charge permits a conclusion of guilt for other charges on the basis that the accused was the kind of person to commit them.
The ten counts were for offences committed against one girl and two boys, in separate incidents. The prosecution adduced evidence of uncharged acts and applied to rely on them as tendency evidence - that is, as evidence “demonstrating the appellant's tendency to have a sexual interest or inappropriate interest in his male children under the age of 13, and to act on that interest” (at [10]). The trial judge rejected this application, noting in particular that the giving of a tendency direction could mislead the jury about how evidence is to be used. Instead, the trial judge directed the jury explaining that the evidence was context and character evidence. The appellant did not apply for, and the trial judge did not give, a direction against using the evidence as tendency evidence. The trial judge did, however, give a “Murray direction” to the following effect: where there is only one witness to a serious offence, the evidence of that witness should be carefully scrutinised (see [73]).
The majority held that an anti-tendency direction is not required “in every case where multiple counts of sexual offences against several complainants involving similar fact evidence are tried together” (at [42]). Noting that the defence case had been that the allegations were concocted, their Honours explained that this created “a stark contest of credibility” (at [45]), which, in light of the Murray direction, made tendency reasoning otiose. Their Honours further referenced how the prosecution case had “invited the jury to follow an orthodox path of reasoning to conviction, which made the risk that the jury might instead detour into tendency reasoning distinctly remote” (at [48]) and “a theoretical risk only” (at [57]). Their Honours also emphasised that the appellant had specifically not sought the anti-tendency direction at trial, viewing this as a deliberate forensic tactic (see [49] to [57]). The majority’s orders were to dismiss the appeal.
The minority (Edelman and Gleeson JJ) would have quashed the convictions and ordered a retrial. Their Honours referenced Director of Public Prosecutions v Boardman [1975] AC 421, in which Lord Cross described a trial involving multiple complainants required the jury to “perform mental gymnastics” by excluding their knowledge of similar allegations when considering any one allegation (see [63]), and referred to other similar cases in which anti-tendency warnings had been said to be “particular important” or “almost certainly … required” (see also [66]). The minority differed from the majority in their assessment of the risk of impermissible tendency reasoning, noting that the “separate consideration direction … failed to convey what evidence was relevant to each count and what evidence was not to be used” (at [72]). Their Honours said that the Murray direction “did not address, explicitly or implicitly, the risk of tendency reasoning” (at [74]). Holding that an anti-tendency direction was required, their Honours said that the appellant’s decision not to seek one during trial did not relieve the trial judge of the obligation to give it.
Hofer v The Queen [2021] HCA 36.
The High Court (Kiefel CJ, Keane and Gleeson JJ, Gageler J agreeing; Gordon J dissenting) dismissed an appeal from a decision of the Court of Criminal Appeal of NSW in which that Court dismissed an offender’s appeal against conviction. The appellant argued that there had been a miscarriage of justice for two reasons: alleged incompetence of counsl, and impermissible and prejudicial questioning of the appellant by the prosecutor in cross-examination.
The appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW). There were two victims. When the appellant gave evidence, he made assertions that defence counsel had not put to the victims in their earlier evidence. In cross-examination, the prosecutor put to the appellant that the victims had not been examined on these matters. (That failure of defence counsel was described as a contravention of the rule in Browne v Dunn (1893) 6 R 67.) The appellant agreed and suggested that his barrister should have done so. The prosecutor also stressed defence counsel’s failure to put this to the victims in his closing address. The trial judge gave no directions in this regard.
At [31], the majority (Kiefel CJ, Keane and Gleeson JJ) cited Gleeson CJ’s observation in R v Birks (1990) 19 NSWLR 677 that “it is one thing for the cross‑examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed.” At [33], citing King CJ’s judgment in R v Manuanta [1989] SASC 1628, their Honours explained that there may be many reasons for the omission to put those matters to the victim - for example, because the barrister considered it was unlikely to assist their case. Accordingly, “there is no proper basis for a line of questioning directed to impugning the credit of an accused” and “the potential for prejudice to an accused is obvious” (at [34]), and the trial judge should have warned the jury about these matters (at [37] and [47]). The majority considered that there had been a miscarriage of justice (at [49]) but applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW), dismissing the appeal on the basis that no substantial miscarriage of justice had occurred. The majority explained (at [59]) that it was following Weiss v The Queen [2005] HCA 81 which required the Court to make its own assessment of whether it satisfied of the appellant’s guilt beyond reasonable doubt. Their Honours opined that “[t]he appellant's evidence in support of his belief that each complainant was consenting to having sex with him was so glaringly improbable that it was not capable of raising a doubt in the mind of a reasonable jury”.
Gageler J agreed with the majority’s conclusion that there had been no substantial miscarriage of justice (at [80]). His Honour explained his reservations about Weiss reframing the task of an appellate court to encompass a determination of guilt (at [84] and [85]), before explaining his duty to follow it (at [95] to [97]). His Honour further explained how the central inquiry regarding whether there had been a miscarriage of justice was not concerned with any distinction between errors of law and procedural irregularities (at [116]), but was instead concerned with whether the error or irregularity “had the meaningful potential or tendency to have affected the result of the trial” (at [118]).
Gordon J dissented. Her Honour did not accept “that the Court can conclude from the written record made available to it that the evidence properly admitted at trial proved, beyond reasonable doubt the appellant’s guilt”. Her Honour saw the proviso as preventing the Court from applying it the Crown discharges the onus of so persuading the Court (at [131]), and noted that the Crown had not sought to discharge that onus (at [138]). Her Honour criticised the majority’s characterisation of the appellant’s evidence as “glaringly improbable”, noting that probability is not the criminal standard of proof (at [140]). Further, her Honour noted that this conclusion “treat[ed] the appellant’s evidence and his credibility as a single, undifferentiated whole when the inquiry must be about individual, separate counts and about the elements of each count”.
Sentence
Park v The Queen [2021] HCA 37.
The High Court (Kiefel CJ, Gageler, Keane, Edelman and Gleeson JJ) unanimously dismissed an appeal from a decision of the Court of Criminal Appeal of NSW in which that Court dismissed an offender’s appeal against his sentence. The appeal concerned the correct interpretation of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which (a) requires a court, when sentencing an offender who pleaded guilty, to take certain matters into account, and (b) permits the court to “accordingly impose a lesser penalty than it would otherwise have imposed”. The question was whether the reference to the penalty that the court “would otherwise have imposed” referred to what the court would have done having regard to its jurisdictional limit (in this case, s 168(3) of the Criminal Procedure Act 1986 (NSW), which subjected the District Court to “the same restrictions and procedures as the local court”). The High Court held that it was not.
The Court conceived of the jurisdictional limit as relating “to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence” (at [19]). The Court also noted that in this way a jurisdictional limit was distinguished from the maximum penalty, which can exceed a jurisdictional limit. The Court emphasised that the provisions dealing with the task of identifying the appropriate sentence, and the factors to be weighed in doing so, did not refer to the jurisdictional limit (at [18] to [21]).
The appellant had argued that such a construction was contrary to the purpose of s 22, which was to acknowledge the utilitarian benefit of a guilty plea. The High Court held that this was not true of the appellant’s case because the lack of a guilty plea could have led to the case proceeding on indictment, where the jurisdictional limit would not have applied (at [22]).
Question of Law
The Queen v Rolfe [2021] HCA 38.
The full bench of the High Court unanimously allowed an appeal from a judgment of the Full Court of the Supreme Court of the NT that answered a series of questions of law referred by the judge presiding over the trial of a police officer charged with murder for shooting a young Aboriginal man. The appeal to the High Court concerned the answer to a question relating to s 148B of the Police Administration Act 1978 (NT), which protects persons from civil or criminal liability for acts and omissions occurring in the exercise of a power or performance of a function under that Act. The issue was whether that provision applied in relation to what s 5(2) of that Act described as “the core functions of the Police Force”, one of which is “to protect life and property”. The NT Supreme Court had held that it did. The High Court held that it did not.
The High Court held that s 5(2) is not a provision that confers powers and functions on individuals; its text and location suggests that it is concerned with the functions of the police force taken as a whole (at [20]). Their Honours also considered the legislative history, noting that s 148B had been inserted along with provisions dealing with blood testing for infectious diseases, done under provisions conferring specific powers (see [23] to [25]). This told against reading the provision as applying to the broad institutional functions set out in s 5(2).
The High Court also commented adversely on the Supreme Court’s reformulation of the question, which resulted in it questioning whether it would be open for the jury to make a particular finding based on assumed facts. Their Honours explained that the question should instead state the question of law that may then be applied to the facts as found by the jury (see [26] to [30]).
Their Honours also commented on how the intervention of the High Court at this stage - when the trial had been ready to commence - should not be expected in every case, given the consequences of fragmenting criminal proceedings in this way (see [31] and [32]).
Federal Court of Australia
Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 5 - Indictment) [2021] FCA 1345
On interlocutory applications seeking the quashing of an indictment and the discharge of several accused, Wigney J ordered the Commonwealth DPP to file and serve a new indictment remedying specified defects and deficiencies that were apparent in an indictment already filed. His Honour also ordered that the CDPP would not be permitted to file any further new indictment, or amend the indictment, without leave of the Court or the consent of all the accused.
The indictment contained 26 charges (see [11]) for cartel offences under the Competition and Consumer Act 2010 (Cth). That indictment was not the original indictment in the proceeding. It was the second indictment, having been filed in August 2021 following an interlocutory application by the accused seeking that the original indictment (filed in February 2021) be quashed for being defective.
Wigney J opined (at [9]) that “It would not be unfair to characterise the situation concerning the state of the indictment as a complete shemozzle.” His Honour reiterated (at [43]) an explanation - first given in the earlier ruling requiring the filing of a fresh indictment - of the Court’s role to ensure that the indictment is clear and comprehensive indictment without compelling the articulation of the charges in a particular way.
His Honour found (at [74], [133] and [219]) formal defects in the latest indictment, including failure to identify the relevant cartel provision, deficiencies in the formulation of what the accused was alleged to have known or intended, and failures for accessorial charges to identify the principal offences to which they relate.
In considering what relief to grant, His Honour weighed several factors. First, His Honour summarised (from [225] to [243]) the tortured history of the proceedings, noting in particular that the offences were first charged in 2018, and that there had already been one occasion on which a fresh indictment was required to remedy defects and deficiencies. Secondly, His Honour acknowledged (from [244] to [248]) the complexity of the facts and the complexity of the offence provisions (the drafting of which was roundly criticised). Thirdly, His Honour described (at [254]) the oppressive nature of being subject to criminal charges for so long, and bearing the (likely unrecoverable) costs of the proceedings thus far. Fourthly, His Honour emphasised (at [255]) the “substantial public interest of the community in having those who are charged with criminal offences brought to trial”, quoting Dupas v The Queen [2010] HCA 20 at [37].
Ultimately, considering (at [265]) that the accused largely “know the case that they have to meet” and “are unlikely to be taken by surprise” by the required remediation, His Honour declined to quash the indictment and discharge the accused, instead ordering that the CDPP file and serve a fresh indictment. (The same result was reached for more finely balanced reasons regarding certain accused - see [276] to [281] - but ultimately the CDPP will not pursue those charges - see [285]).
New South Wales
Court of Criminal Appeal
Conviction
Ozgen v The Queen [2021] NSWCCA 252.
The Court of Criminal Appeal (Leeming JA, Price J and Hamill J) dismissed an appeal against convictions for federal drug importation offences.
The defendant was jointly tried for the federal drug offences and a minor state possession offence, but the jury was directed to return no verdict on the state charge after the prosecutor conceded that the acting federal prosecutor who had signed the indictment was not authorised by the NSW DPP to sign indictments.
The defendant argued that the lack of authorisation to indict on the state offence meant that the trial on the federal offences was invalid. The Court (at [19]-[20]) held that the argument did not fail because the state offence was a minor one (compared to the federal offences) or on whether or not the indictment was a ‘nullity’, but rather turned on whether the trial court had jurisdiction to try the federal offences. Leeming JA noted (at [12]-[17] and [23]-[26]) that, despite a concession to the contrary, it was arguable that the state offence indictment was valid, on the basis of either deeming provisions about acting prosecutors; a prior valid indictment for that offence; or savings provision for some otherwise invalid indictments. Accordingly, this case is not authority that the state offence portion of the indictment was actually invalid.
On the assumption that the state offence portion of the indictment was invalid, the Court held that the trial court still had jurisdiction to try the federal offences on the basis of precedents about severability of indictments (at [41]) and the trial court’s power (not exercised at trial) to amend the indictment to remove the unauthorised charge (at [48]). Basten JA added (at [55]) that it was arguable that the trial court could not have been deprived of its jurisdiction to try federal offences by a state law requirement that was specific to state offences (assuming that, due to a common substratum between the federal and state offences, the entire trial was within federal jurisdiction.)
The Court also rejected an argument that the defendant could only be safely convicted on one of the two federal importation charges, because he may have been unaware that two types of drug were imported, holding (at [67]) that there was compelling evidence that he was aware of all of the drugs that were imported. In addition, the Court held (at [78]) that the trial judge rightly withheld a defence of lack of knowledge of the unlawful importation from the jury, on the basis that the trial evidence was merely neutral on whether or not he knew that the drugs were from overseas.
Greenaway v The Queen [2021] NSWCCA 253.
The Court of Criminal Appeal (MacFarlan JA, Walton J and Wilson J) dismissed an appeal against convictions for child sexual offences.
In relation to evidence of uncharged acts, the Court held (at [38) that the trial judge correctly admitted evidence from one complainant that the defendant had repeatedly ‘groped’ her prior to the charged incidents, because, although otherwise different to the charged abuse, it had the common element of of sexual abuse by a person in authority at a correctional institution. The Court also held (at [54]) that the accused was not prejudiced when a different complainant’s account of ‘vague memories’ of earlier abuse became much more specific in the middle of the trial. Finally, the Court held (at [58]-[67]) that the trial judge correctly directed the jury that the uncharged matters could be considered even if they were not established beyond reasonable doubt.
In relation to cross-admissibility of multiple complainants’ evidence, the Court held (at [73]) that, in contrast to McPhillamy v The Queen [2018] HCA 52 (where there were distinction differences between offences in location, nature and time), the charges in this trial presented a progression of acts from groping in public to more serious misconduct in private, whenever the defendant had female inmates in his care.
Finally, the Court held (at [83]) that the trial judge correctly ruled in advance that the defendant’s proposed evidence that other inmates had successfully complained of physical abuse contemporaneosuly with the alleged sexual abuse was inadmissible as irrelevant to whether or not the complainants would have promptly complained of sexual abuse.
Bazouni v The Queen [2021] NSWCCA 256.
The Court of Criminal Appeal (Bell P, Rothman J and Button J) dismissed an appeal against a conviction for fraud.
The Court held (at [93]) that the trial judge’s direction that the prosecution must prove that the defendant ‘knew or was reckless’ that his conduct was dishonest, although not objected to at trial, was a miscarriage of justice, as recklessness does not suffice for this aspect of dishonesty.
A majority of the Court (Bell P and Button J) held (at [222]-[223]) that the incorrect direction did not cause a substantial miscarriage of justice, as the evidence (including the defendant’s own case) was clear that the defendant knew that his alleged actions (including taking secret commission for loan applications) fell within ordinary notions of dishonesty. Rothman J, dissenting, held (at [37]) that this was not an ‘appropriate miscarriage of justice for the application of the proviso’.
Dadley v The Queen [2021] NSWCCA 267.
The Court of Criminal Appeal (Bell P, Walton J and Bellew J) allowed an appeal against convictions for sexual intercourse without consent and indecent assault.
The Court held (at [94]-[95]) that the jury’s conviction of the defendant on two charges of sexual intercourse without consent in the complainant’s room was inconsistent with an acquittal of the defendant on a charge that was alleged to have occurred immediately before in the accused’s room, given the complainant’s claim that the second incident was a resumption of the first.
The Court also held (at [115]) that the convictions were also unsafe given a third party’s evidence that contradicted the complainant’s account of the accused being undressed and of hearing his spoken response to the complainant that supported his account. The Court added (at [127]) that DNA evidence linking the accused to a low vaginal swab of the complainant, which was seemingly critical to the conviction, was contradicted by expert evidence that the evidence could not have survived for the time between the alleged offence and the swabbing, and was also explicable as a secondary transfer by the complainant from the bed or her clothes to her vagina at some point after the alleged assault.
Finally, the Court ruled (at [130]) that the DNA evidence was correctly admitted at the voir dire (‘although finely balanced’) but noted that evidence that later emerged concerning the unlikely survival of DNA derived from the alleged result ‘may well have’ prompted a different view.
Merza v The Queen [2021] NSWCCA 269.
The Court of Criminal Appeal (Basten JA, Price J and Hamill J) dismissed an appeal against convictions for wounding with intent to cause grievous bodily harm and procuring false evidence.
The prosecution evidence included phone calls the defendant made from prison arranging for the victim to either not testify or testify that the defendant was not one of his attackers. The Court held (at [25]) that the trial judge was not required to direct the jury that the accused’s consciousness of his guilt had to be established beyond reasonable doubt before the phone calls could be used as evidence of the wounding, as that use is different to the question of whether the elements of the procuring charge were established beyond reasonable doubt. The Court added (at [29]) that a clear direction on the elements of the procuring charge meant that there was no likely confusion about the standard of proof, and that the suggested direction might have caused such confusion.
The Court, after viewing footage of the ID parade, held (at [235]-[239]) that, while there were undoubtedly difficulties with the victim’s evidence, there was no material basis in his testimony that raised a reasonable doubt about the ID and that the conviction was open to the jury in light of evidence of a prior incident involving a friend of the defendant, CCTV evidence of the leadup to the wounding, another witness’s evidence of the clothing of one of the attackers matching the defendant’s clothing and the defendant’s prison phone calls.
Xue v The Queen [2021] NSWCCA 270.
The Court of Criminal Appeal (Beech-Jones CJ at CL, R A Hulme J and N Adams J) dismissed an appeal against convictions for the state offence of dealing with property reasonably suspected to be proceeds of crime.
The Court held (at [198]) that, because the state offence (in s193C(1) of the Crimes Act 1900 (NSW)) was relevantly similar to the federal offence (in s. 400.9 of the schedule to the Criminal Code Act 1995 (Cth)) the prior ruling in Lin v R [2015] NSWCCA 20 in relation to s 400.9 - that there was no requirement for the prosecution to specify or the court to find that the property was reasonably suspected to be the proceeds of a specific offence - applied to the state offence.
The Court also held (at [202], [203] and [207]) that, because s193C(1) covers ‘indirect dealings’ with property, the defendant was properly convicted even though his conduct (arranging for a third party to receive the property in NSW) occurred outside of Australia and did not involve taking physical possession of the property.
Finally, the Court held (at [218] and [288]-[289]) that the trial judge adequately explained her reasons for accepting that the property was reasonably suspected to be the proceeds of crime and that his conviction was safe.
Ly v The Queen; Ngo v The Queen [2021] NSWCCA 272.
The Court of Criminal Appeal (Gleeson JA, Beech-Jones J and Cavanagh J) allowed an appeal against convictions for muder.
The Court held (at [96]-[97]) that the High Court’s holding in Pell v R [2020] HCA 12, [38] - that the unsafe verdict ground ‘in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable’ - applies to a murder case founded primarily on a prosecution witness (granted an immunity from prosecution) who testified of events leading up to the killings and disposing of a body.
The Court nevertheless held (at [133]-[134]) that the conviction was unsafe, citing the lack of independent evidence linking the defendants to the murders, irreconcilabe differences between the two prosecution witnesses (to the point that the Crown largely abandoned reliance on one of them) and flaws in the main witness’s evidence (including his evidence in chief falsely denying supplying the murder weapon or seeing one of the victims being suffocated.)
Zhou v The Queen [2021] NSWCCA 278.
The Court of Criminal Appeal (Beech-Jones CJ at CL, Davies J and Wilson J) allowed an appeal against a conviction for discharging a firearm with intent.
In light of the ruling in Trevascus v R [2021] NSWCCA 104, the prosecution conceded that the trial judge erred in giving the jury only written, not oral, directions on the elements of the offence.
The Court held (at [23]) that, to the extent that the failure to give oral directions was not a fundamental irregularity, it was nevertheless a miscarriage of justice in this case, because, although the main issue was a factual one about whether or not the defendant discharged the firearm, the fact that the victim was shot from behind meant that there was ‘at least an issue about intention’. The Court noted (at [26]) that the prosecution placed no reliance on the ‘proviso’.
The Court observed (at [25]) that when the jury asked about the meaning of ‘beyond reasonable doubt’, the trial judge (who told the jury he was prevented from discussing it) could have told the jurors that it was a high standard of proof and that the words mean ‘exactly what they state’.
Ahmed v The Queen [2021] NSWCCA 280.
The Court of Criminal Appeal (Bathurst CJ, Garling J and Wright J) allowed an appeal against a conviction for murder.
The Court held (at [47]) that the trial judge’s failure to give herself a direction that the accused’s failure to testify could not be used against him, although not required in every case, was required in this one, because she noted that he had elected not to give evidence despite bearing on the onus of proof on the question of substantial impairment, emphasised the divergent accounts he had given to the police and various experts and described the account he gave to the experts as ‘untested’.
The Court (at [60]) rejected the defendant’s argument that his murder conviction was unsafe in light of expert evidence about his impairment, noting that a further part of the defence - whether or not the impairment was so substantial as to warrant a manslaughter conviction - was a matter of community standards, not expert evidence. The Court therefore ordered a new trial.
In their concurrence, Garling J and Wright J (at [96]) noted that it would make ‘good sense’ for a judge to give an analogous direction to the one previously given about unsworn statements - that such a statement should be given ‘such weight as it appears entitled to in comparison with facts clearly established on the evidence’ - where a real issue arises about the weight to given to accounts made prior to a trial, but observed that the matter was not fully argued and was not necessary to decide in this case.
Purcell v The Director of Public Prosecutions [2021] NSWCA 269
The Court of Appeal (MacFarlan JA, Beech-Jones JA and Simpson AJA) set aside an order dismissing an appeal against convictions for offensive behaviour.
The Court held that the District Court committed jurisdictional error in ruling that it could not grant the defendant leave to appeal because his application was made outside of three months; in fact, the application was lodged on 3 December 2020 (albeit stamped as received on 4 December), which was within three months of his hearing on 3 September 2020 (excluding the hearing day, as required by s. 13(1) of the Interpretation Act 1987.)
The Court also held (at [26]) that, to the extent that the test of jurisdictional error was subject to a materiality requirement, that requirement was satisfied in the case of leave to appeal because, but for the error about timing, his application for leave (based on his claim of a brain injury, incorrect advice about his guilty plea and adverse consequences of his conviction and sentence), could realistically have been granted.
Finally, despite the review application ‘being (ironically) just [indeed, one day] outside the three month time period for the commencement of judicial review proceedings’, the Court granted (at [9]) the defendant leave to seek the review, because his solicitor lodged an affidavit stating that the delay was not the defendant’s fault. The Court ordered the District Court to determine the defendant’s application for leave to appeal the offensive behaviour convictions according to law.
Sentence
Hesketh v The Queen [2021] NSWCCA 262.
The Court of Criminal Appeal (Bell P, Price and Hamill JJ) dismissed an appeal against conviction and a related application for leave appeal against an aggregate sentence. Both the conviction appeal and the sentence application related to offences of discharging a firearm with intent to cause grievous bodily harm, and wounding while being reckless as to causing actual bodily harm. The applicant had pleaded guilty to both offences, which arose out of the same physical act, and was sentenced to an aggregate 11 years’ imprisonment with a non-parole period of 7 years 6 months.
Despite pleading guilty, the applicant challenged his conviction of the wounding offence on the basis that the whole of the criminality of that offence was subsumed by the conviction on the discharge offence. The applicant relied on the decision of the Victorian Court of Appeal in R v Sessions [1998] 2 VR 304; additionally, he pointed to s 21A of the Crimes (Sentencing Procedure) Act 1999, which was submitted to have the effect that the fact of the wounding of the victim was to be dealt with as an aggravating factor of the discharge offence, even though it was not an element of that offence.
Per Bell P, although the underlying conduct was common to both offences they contained different elements: [46]-[47]. Wounding was not an element of the discharge offence, and the wounding offence did not require the discharge of a firearm. Each offence also required a different fault element (although, as Hamill J noted, the specific intent required by the discharge offence wholly subsumed the recklessness required by the wounding offence: [74]). Applying the principles in Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, the conviction for the wounding offence was sound notwithstanding that there were common or overlapping factual elements.
Similarly, it was held that the sentencing judge had properly considered the principle of totality and the different elements of the two offences. The relatively small degree of notional accumulation between the two indicative sentences showed that the sentencing judge had been “conscious of the commonality of the act and facts underlying the two offences charged”: [52], see also Hamill J at [76]. Additionally, the sentencing judge had not referred to the victim’s injury when identifying the aggravating features of the discharge offence in accordance with s 21A(2): [53], see also Hamill J at [75].
Veljanoski v The Queen [2021] NSWCCA 255.
The Court of Criminal Appeal (Harrison, Davies and Dhanji JJ) allowed an appeal against an aggregate sentence for sexual and intimidation offences. The applicant had approached the female victims in his car, and had called out to them while masturbating himself. The applicant appealed on the grounds, inter alia, that the sentencing judge had erroneously treated as an aggravating circumstance the fact that one of the victims was a child aged 15.
In respect of that victim, the applicant had pleaded guilty to an age-based offence with a higher maximum penalty than the equivalent offence for an adult. The Court agreed that the sentencing judge had erred in treating the victim’s age and vulnerability as an aggravating circumstance of the offence, as “by virtue of the increased penalty when compared with the same offence involving an adult, the issue of vulnerability may be considered to be an element of the offence where the age of the victim is relied upon as the vulnerability”: [48]. Error was made out and the applicant was entitled to be re-sentenced.
Ah Keni v The Queen [2021] NSWCCA 263.
The Court of Criminal Appeal (Bathurst CJ, Simpson AJA and Bellew J) allowed an appeal against a sentence of imprisonment imposed by the Supreme Court for the offence of being an accessory after the fact to murder. The appellant had driven a van used by two co-offenders (one of whom was her husband) to escape after the murder of a solicitor; however, the prosecution did not allege that she had any knowledge of the murder before or while it occurred. Over the following six weeks to took various steps to relocate with her husband and children to New Zealand. In a police interview she made false and misleading statements in relation to her movements on the day of the murder and her relationships with co-offenders.
The sentencing judge found that it was significant that the appellant “did not go to police at an early stage and provide assistance with the information she had and she lied in her police interview”: [36]. The appellant contended that the sentencing judge erred in taking these facts into account in assessing the seriousness of the offence.
The offence of being an accessory after the fact, under in s 347 of the Crimes Act 1900, was contrasted with the common law offences of misprision of felony and compounding a felony and their statutory successor in s 316 of the Act. The appellant submitted that while those offences involved the failure to supply information to the authorities, it was necessary for accessorial liability that the accessory takes positive steps to assist the offender.
Bathurst CJ held that the statutory accessorial offence reflects the common law offence of being an accessory after the fact: [73]. The difference between these offences and misprision or compounding a felony is that the former involve active assistance, whilst the latter involve failing to inform the authorities of the offence: [76].
Previous cases relied on by the respondent to establish that non-disclosure of an offence could constitute accessorial liability were either wrongly decided, or were to be understood as establishing only that when in the course of providing active assistance the offender remains silent as to the index offence, this could be considered to increase the objective seriousness of the accessorial offence: [77]-[84].
Silence or non-disclosure, when associated with acts of active assistance, can in some cases be taken into account in assessing the objective seriousness of the offence. Further, silence which is calculated to mislead the authorities may constitute the offence, provided that other elements are made out. By contrast, a mere failure to report, which does not occur in the context of active assistance, does not make out the offence: [86]. Error was therefore made out and the appellant was entitled to be re-sentenced.
Xerri v The Queen [2021] NSWCCA 268.
By majority, the Court of Criminal Appeal (Bell P and Price J, Hamill J dissenting dismissed an appeal against a sentence of imprisonment imposed by the Supreme Court for the offence of maintaining an unlawful sexual relationship with a child, under s 66EA of the Crimes Act 1900. That provision had been amended (in effect, repealed and substituted) in 2018. The amendments affected both the substance and definition of the offence, and the maximum penalty – which increased from 25 years to life imprisonment.
The applicant’s offence was constituted by conduct that occurred prior to the amendments, when the maximum penalty was 25 years’ imprisonment. However, as amended s 66EA provided that the offence applied to a course of conduct that occurred wholly or partly before the commencement of the relevant amendments, or of the ‘predecessor offence’ (that is, the section as it was prior to its repeal and substitution by the amending act), provided that the offender’s acts were unlawful at the time.
At issue was whether the sentencing judge had erred in sentencing the applicant on the basis that the maximum penalty for his offence was life imprisonment. The applicant relied on s 19 of the Crimes (Sentencing Procedure) Act 1999, which provided that if a statute increases the penalty for an offence, the higher penalty applies only to offences committed after the commencement of the provision which effects the increase. The applicant submitted that the version of s 66EA which was in force at the time of sentencing should not be considered a ‘new’ offence, but rather a reformulation or re-enactment of the existing offence of the same name. The respondent submitted that the new s 66EA did not merely increase the penalty for an existing offence, but enacted a new offence with retrospective effect.
Price J (with Bell P concurring) reviewed the substantive and procedural differences between the ‘predecessor’ and ‘amended’ versions of s 66EA, and found that there were ‘marked differences in the legislation’, one of which was the provision for retrospective operation: [91]-[92]. Also relevant were the reduction in the defined age of a ‘child’ from 18 to 16 years; the reduction in the necessary number of unlawful sexual acts, from three to two; and the shift in emphasis from proof of specific offences, to a requirement that the jury be satisfied beyond reasonable doubt that an unlawful sexual relationship existed, without the necessity for proof of the particulars of any sexual act: [91]-[96]. Price J held that the current offence was a new offence with retrospective effect, to which s 19 of the Crimes (Sentencing Procedure) Act 1999 did not apply, rather than an re-enacted offence with an increased maximum penalty: [100], [111].
In dissent, Hamill J noted the commonalities between the ‘predecessor’ and ‘amended’ versions of s 66EA, and reasoned that the latter was not an entirely new offence: [146], [156], [164]. In Hamill J’s view, it would have required ‘far clearer language’ in s 66EA to render inoperative s 19 of the Crimes (Sentencing Procedure) Act 1999: [141].
Carrington v The Queen [2021] NSWCCA 257.
By majority, the New South Wales Court of Criminal Appeal (Beech-Jones CJ at CL and R A Hulme J, Dhanji J dissenting) allowed an appeal against an aggregate sentence imposed for incest and related offences. The applicant had pleaded guilty to those offences, and had asked for others to be taken into account on a Form 1. The majority arrived at the conclusion that the sentence was manifestly excessive by reasoning that, firstly, the notional starting-point for each indicative sentence was unjustifiably close to the maximum penalty; and secondly, a comparison of the aggregate sentence with the sum total of all of the indicative sentences suggested a misapplication of the totality principle.
With regard to the first point, it was not in dispute that the features of the offending required a finding of criminality ‘above the mid-range’. However, the starting-points adopted by the sentencing judge in fixing indicative sentences for each of the offences were at, or very close to, the maximum penalty – although none of them were found to be in the worst case category or in the high range of objective seriousness: [68].
With regard to the second point, the sum total of each of the indicative sentences was 22 years and 6 months, whereas the aggregate sentence was 16 years, indicating “a quite significant notional accumulation of the indicative terms”: [70]. The appeal was allowed and the aggregate sentence reduced to 10 years, with a non-parole period of 7 years and 6 months.
Paterson v The Queen [2021] NSWCCA 273.
The Court of Criminal Appeal (Beech-Jones CJ at CL, R A Hulme and N Adams JJ) allowed an appeal against a sentence imposed following a plea of guilty to manslaughter. The sentence of 16 years and 6 months was found to be manifestly excessive, and the Court also held that the sentencing judge had erred in the assessment that the objective seriousness of the offence was at the highest end of the range.
In particular, it was held that this error had resulted from an elision of the ‘separate but related’ concepts of objective seriousness and moral culpability. Matters subjective to the offender can form part of the assessment of objective seriousness, if causally related or materially contributory to it. A determination of moral culpability can involve a wider set of subjective circumstances: [29].
The sentencing judge’s finding, in a part of the remarks on sentence headed ‘objective seriousness’, adopted language which the prosecution had used to characterise the applicant’s moral culpability; that finding – that the offence was at ‘the highest end’ of the range – was more severe than the prosecution’s submission on objective seriousness, and was not reasonably open: [36]-[38], [51].
It was noted that there was no standard non-parole period prescribed for manslaughter, and therefore there was no occasion to consider the hypothetical offence ‘in the middle of the range of seriousness’ for the purposes of applying ss 54A-54B of the Crimes (Sentencing Procedure) Act 1999. In the sentencing proceedings, both parties had made submissions with reference to the hypothetical ‘range’. Noting that offences of manslaughter vary significantly, Beech-Jones CJ at CL observed that “an assessment of where a particular crime of manslaughter is to be placed on some hypothetical range of manslaughters” is unlikely to be of much utility, and is “an analysis that is best avoided”: [33].
Victoria
Court of Appeal
Conviction
Henderson v The Queen [2021] VSCA 312.
The Court (Priest, Kyrou and T Forrest JJA) allowed an application for leave to appeal and allowed a conviction appeal for offences of sexual assault and sexual penetration of a child under the age of 12 on the basis that a jury, acting rationally should have had a reasonable doubt as to the applicant’s guilt.
The Court said that in respect of the first charge, the circumstances of the offending were highly improbable (at [76]). Most significantly, the Court said that the circumstances in which the complainant changed her version of events as to what happened were disturbing (at [77]–[80]). The Court said that this suggested contamination (if not concoction or collusion) by virtue of an inconsistency having been pointed out to the complainant who then changed her version of events, it seemed at the suggestion of her father (at [80]–[81]). The Court said in isolation, the improbability of the circumstances did not necessarily render the complainant’s version of events implausible, however that each case turns on its own facts and that here there was evidence that if the offending had occurred in the way described, the detection of the alleged offending would have been virtually inevitable (at [82]).
The Court said that in respect of the second charge, there was no proper basis upon which the jury could have rejected the evidence of another witness, who saw the complainant and applicant, gave evidence that she was there the whole time and did not hear the applicant tell the complainant to close her eyes, or see the applicant pull his pants up or down and did not see the applicant put anything in the complainant’s mouth (at [83]–[86]).
Allison (a pseudonym) v The Queen [2021] VSCA 308.
The Court of Appeal (T Forrest and Walker JJA, Macaulay AJA) granted leave to appeal but dismissed an interlocutory appeal on the basis that the trial judge did not err in refusing to stay two charges.
The applicant was charged with three charges:
(a) accessing child pornography using a carriage service between 30 July 2017 and 20 September 2019 contrary to sub-s 474.19(1) of the Code (charge 1);
(b) accessing child abuse material using a carriage service between 21 September 2019 and 23 February 2020 contrary to sub-s 474.22(1) of the Code (charge 2); and
(c) possessing material, being child abuse material, on 26 February 2020, in the form of data held in a computer or contained in a data storage device, obtained or accessed using a carriage service, contrary to sub-s 474.22A(1) of the Code (charge 3).
The applicant had indicated that he would plead guilty to charge 3, however he applied for a permanent stay of charges 1 and 2 on the basis that they were duplicitous with charge 3, as the applicant would be double punished if they were not stayed. The prosecution opposed the stay and the trial judge refused to stay the charges.
The Court said that charges 1 and 2 were not duplicitous with charge 3, so as to require a permanent stay (at [33]). The Court accepted that in order for a stay to be granted, the elements of the offences did not need to be identical, however said it was unclear whether they needed to be ‘substantially similar’ (at [38]). The Court said that what had to be determined was the extent to which the charges overlapped and whether the offences were directed at distinct and separate forms of criminality (at [38]).
The Court said while the material the subject of the charges underpinning the possession charge was the same as the material that underpinned the access charge, the elements of those offences were not the same(at [39]–[40]) and that there was a distinct and separate criminality involved in each offence (at [41]).
DPP v Myles (a pseudonym) [2021] VSCA 342.
The Court of Appeal (Priest, T Forrest and Walker JJA) refused leave to appeal in an interlocutory appeal brought by the Director of Public Prosecutions. The trial judge had ruled that admissions made to a Drug Court case worker were excluded pursuant to s 90 of the Evidence Act 2008 (Vic).
The Court referred to Em v The Queen [2007] HCA 46 and made some observations in respect of s 90 (at [22]–[30]), including that ‘unfairness’ was necessarily fact-specific, focus must be on the circumstances in which the admissions were made and how those circumstances render the use of the admissions ‘unfair’, and that the provision was a ‘safety net’ provision.
The Court said that the trial judge’s decision was not in error and was well open (at [34]). The Court said that the following circumstances meant it would be unfair for the admissions to be relied upon (at [36]):
Shortly before the admissions were made, the respondent made it clear he was reluctant to talk about his ‘pending legal issues’ and despite this the Drug Court case worker continued to encourage him to talk so that she could help and support him;
The respondent had a condition of his Drug Treatment Order (which the Court said had no legislative basis) that he waived all rights to confidential communication between him and Drug Court workers’
At the beginning of their relationship, the Drug Court case worker said that the respondent had to be honest, otherwise he might be sanctioned;
The respondent had been told that he was required to follow all lawful directions and the Drug Court case worker agreed that she exercised a degree of authority over the respondent and that when she ‘encouraged’ him to talk, he would have felt obliged to do so.
It was therefore open to the trial judge to find that, even though it was not the intention of the worker to compel the respondent to make disclosures, the respondent would have felt coerced into surrendering his right to silence and give up his privilege against self-incrimination (at [37]).
Sentence
Staples v The Queen [2021] VSCA 307
The Court (Maxwell P, Kaye and Emerton JJA) refused a sentence appeal for a tragic case of child homicide. In doing so, the Court made useful comments regarding findings about rehabilitation, the utility of s 6AAA declarations in appeals and the proper use of comparable cases in the sentencing exercise.
Rehabilitation: The sentencing judge found the offender’s prospects of rehabilitation guarded but positive. On appeal, it was alleged the judge had no evidential basis to conclude the prospects were ‘guarded’. The offender was 35, had no priors, family support, positive work history and the sentencing judge had concluded he was unlikely to reoffend in a similar way. At [47], the Court held that the concepts of ‘prospects of reoffending’ and ‘prospect of rehabilitation’ are related but distinct. Prospects of rehabilitation includes prospects of reoffending but is a broader concept involving the capacity of the offender to successfully reintegrate into society. It was therefore not inconsistent to find the offender was unlikely to reoffend while also finding that his prospects for rehabilitation are guarded but positive.
Section 6AAA: The Court also took the opportunity to again express the limited use that can be made of a s 6AAA declaration – being a declaration of what sentence the judge would have imposed had the offender not pleaded guilty – in a sentence appeal (at [84]-[86]). The Court has taken a number of opportunities in recent times to describe 6AAA declarations as artificial and unlikely to be evidence of sentencing error: see also e.g. Dunford v The Queen [2021] VSCA 304 [40]-[42]; DPP v Howard (a pseudonym) [2021] VSCA 298 [56]
Comparable cases: At [88]-[89], the Court summarised the state of the law on the use of comparable cases. The following propositions can be gleaned:
Current sentencing practices are only one of a number of considerations in the sentencing synthesis
The appropriate sentencing range turns on the facts and circumstances of an individual case
Comparable cases can be used to promote consistency, but the purpose is not some mathematical or numerical equivalence of sentences
Comparable cases are not precedents
Comparable cases can assist in providing a guide to a range or pattern of sentences, but it cannot be assumed that the range or pattern revealed by those cases is necessarily correct, nor that they represent an upper or lower limit of the sentences that can be imposed
Konidaris v The Queen [2021] VSCA 309
The Court (Emerton and Osborn JJA) allowed a sentence appeal where, after the plea hearing, the sentencing judge obtained a copy of an earlier expert report that was not in evidence.
At the plea, it was in issue whether the offender had insight into the effects of his drug use on further offending. Reference was made to an earlier court decision, which had relied on a psychiatric report. That report was not tendered by either party in the immediate proceeding.
After the plea hearing, the sentencing judge made inquiries to obtain a copy of the report. Once he had reviewed it, he provided it to the parties and invited them to make submissions. Neither party did so.
In his sentencing reasons, the judge made findings about insight into the effects of drugs based on the report. The successful ground of appeal was that the offender had not been accorded procedural fairness.
The Court held that the sentencing judge ‘stepped outside the judicial role’ by acting ‘not as an adjudicator, but an investigator’ (at [89]). Even so, the judge only provided the parties with a copy of the report after he had received it and asked, in a vacuum, whether the parties wished to make submissions, providing no indication of how the judge saw it as relevant to the sentencing exercise (at [87]).
Phongthaihong v The Queen [2021] VSCA 317.
The Court of Appeal (Kyrou and T Forrest JJA) allowed a sentence appeal for the offences of culpable driving causing death, negligently causing serious injury and reckless conduct endangering life on the basis that the sentence was manifestly excessive and the orders for cumulation did not give sufficient effect to the principle of totality.
The Court said that the total effective sentence and the non-parole period was manifestly excessive (at [34]). The Court said that where an offender is sentenced for multiple offences, the totality principle interacts with the proportionality principle (at [35]) and that the total criminality must be reflected in the sentence (at [36]).
In this case, the Court said that there was no reason why the sentences on charges 2, 3 and 4 should not be cumulated on the base sentence and upon each other in a sensible way (at [38]). However, balancing the serious offending and the mitigating circumstances the total effective sentence and non-parole period offended the totality principle (at [38]).
Queensland
Court of Appeal
Conviction
The Court of Appeal (Sofronoff P, Mullins JA and Crow J) dismissed an appeal against conviction for indecent treatment of a child under the age of 16 years, finding a prosecutor was entitled to cross-examine the accused about his bad moral character went it added ‘nothing’ to the jury’s perception of that issue.
The accused was a school teacher who engaged in electronic communications with a 14 year old girl in Scotland, some of which was of a sexual nature. He admitted to the communications, but his defence at trial was his knowledge of her age.
He was cross-examined by the prosecutor about his membership of the College of Teachers, which imposed ethical standards on teachers, including regarding communication with students. The prosecutor used that membership to underline the accused’s knowledge of the inappropriateness of his conduct.
The appeal centred on the relevance of that cross-examination and whether it was excluded by s 15 of the Evidence Act 1977 – dealing with bad character evidence of an accused.
The Court found the prohibition was on questions tending to show bad character. This meant ‘tending to reveal’ (at [19]). Because the appellant had already accepted that he knew it was wrong to have the contact, the prosecutor’s cross-examination only emphasised the depth of his admitted lack of moral standards, as opposed to revealing something new. It was the same immoral conduct and, therefore, did not contravene s 15 (at [19] and [37]).
The Court (Holmes CJ, Bond JA and North J) dismissed an appeal against conviction for maintaining a sexual relationship with a child. One of the grounds of appeal was whether the prosecutor had re-examined on matters not arising from cross-examination.
The complainant was cross-examined about her delay in making a complaint about the accused’s conduct. Her first complaint was made to her mother, though evidence of this complaint was not elicited from her in examination-in-chief. It was put to her in cross-examination that the complainant only disclosed the offending when her mother asked her specifically whether such conduct had occurred.
In re-examination, the prosecutor asked the complainant her reasons for not making an earlier complaint. They then asked the complainant about the full circumstances in which she made her complaint to her mother. On the appeal ground, the appellant argued this went beyond the scope of the question in cross.
Holmes CJ (Bond JA and North J agreeing) dismissed the ground, holding that it was permissible for the prosecutor to clarify not only why the complainant had not made the complaint earlier, but why she chose to make the complaint at the time that she did. It was appropriate the complainant be given the opportunity to explain what was different when her mother specifically asked her this question (at [18]).
Sentence
Fraser and McMurdo JJA (Henry J dissenting) upheld an appeal against the imposition of a conviction on a young offender for armed robbery. No issue was taken in the appeal with the finding of guilt or the sentence.
The appellant was aged 16 when he robbed two young girls with a knife, stabbing one of them twice in her legs. Under s 183 of the Youth Justice Act 1992 (Qld), the presumption is that a conviction is not recorded against a child found guilty of an offence (The rationale for the presumption is discussed from [44] of Henry J’s judgment). At first instance, a conviction was recorded.
During the plea hearing, there was an exchange between defence counsel and the bench where the sentencing judge put that the impact of recording a conviction on the child’s prospects of employment – a statutory factor relevant to the decision under s 184 – would be limited because the appellant had an intellectual impairment and would only expect to get employment that would not be compromised by a prior conviction.
The majority held that the proposition that recording a conviction would have no impact was factually incorrect. If anything, the impact would be greater for a person with fewer opportunities than others because of their disability (at [18]-[19] (McMurdo JA)). The sentencing judge made no reference to the statutory factor in his sentencing reasons, so the alternative view is that he failed to reach a concluded view – which was also an error. The appeal was allowed and no conviction was recorded.
While giving leave to appeal, Henry J (in dissent) held that the exchange between counsel and the judge was designed to draw out and test submissions, which did not mean it was the final view taken by the judge (at [63]).
Evidence
F v Crime and Corruption Commission [2021] QCA 244.
F was a journalist who was required to attend and give evidence at a corruption investigation under the Crime and Corruption Act 2001 (CACA). F had been given advanced notice of when and where the arrest would occur of an alleged terrorist. F refused to disclose the identity of their source.
Section 192(2A) of the CACA provided for a witness to refuse to answer a question on the basis of three privileges: legal professional privilege, public interest immunity or parliamentary privilege. It follows that no journalistic privilege applied.
At the first hearing and on the appeal, F argued that public interest immunity is an evolving concept at common law and could include privilege claimed by a journalist from revealing their source – this being in the public interest (subject to a more pressing interest).
Mullins JA (Morrison JA and Boddice J agreeing) rejected the argument, holding that public interest immunity does not protect journalists’ confidential sources, but rather applies only to governmental documents or communications (at [46]).
Supreme Court
Judicial Review
TRKJ v Director of Public Prosecutions (Qld) & Ors; KAY v Director of Public Prosecutions (Qld) & Ors [2021] QSC 297.
This was an application for judicial review for two decisions of the District Court refusing access to protected counselling communications.
While specifically disavowing that the judgment should be treated as a manual for dealing with such applications (see [10]-[12]), Applegarth J’s judgment provides an analysis of how the sexual assault communications privilege applies in Queensland. This summary extracts only parts of that guidance.
The sexual assault counselling privilege is found in Division 2A of Part 2 of the Evidence Act 1977. It provides qualified privilege from disclosure of counselling records relevant to trials. The Court can grant leave for access to the records when the privilege applies.
One of the conditions for leave is that the communications will (as opposed to may) have substantial probative value (s 14H(a), see [22]-[23] of judgment).
In such applications, the practice of prosecutors has been to play a limited or neutral role. Applegarth J considered, however, that this is an area where prosecutors might be expected to offer more assistance to the court than they presently do ([37]-[41], [186])
Those people protected by the privilege may have standing to appear at different aspects of the proceeding according to both statute and common law rules of standing ([42]-[54]).
Views can genuinely differ about whether the parties should be allowed limited access to the communications in order to argue whether leave should be granted, mindful that this may undermine the policy of the privilege ([67]-[69]).
A court hearing an application has an implied power to inspect and consider protected counselling documents ([103]).
In the District Court decisions, the trial judge had refused to inspect the documents before determining whether they had ‘significant probative value’. Applegarth J held that the fact that the power exists does not mean it will be necessary or appropriate for a judge to exercise it in most cases (at [104], [142]-[143]). In fact, too frequent exercise would undermine the purpose of the provisions (at [105]).
Applegarth J said it was not the Supreme Court’s role to make policy recommendations, but noted some difficulties with the legislation as it stands ([188]).
It is useful also to note that since the decisions at trial, the Chief Judge of the District Court issued a Practice Direction concerning applications about protected confidential communications (PD 5 of 2021).
Western Australia
Court of Appeal
Conviction
OTR v Western Australia [2021] WASCA 200.
The Court of Appeal (Buss P, Mazza and Vaughan JJA) dismissed a conviction appeal brought by an unrepresented appellant who had been convicted of sex offences against children in a judge alone trial.
The appellant argued that there were inconsistencies in the evidence of one of the complainants (his daughter) who had previously told a ‘partial lie’ that she was abused, but by someone else. At trial the complainant explained this lie to have been told in order to keep her family together, which was accepted by the trial judge and Court.
The appellant also appealed on the basis that his trial counsel and solicitor were incompetent, which the Court rejected (at [332]). The Court said that the matters the appellant complained of would not have materially advanced the defence’s case and the appellant did not show how particular expert material he says should have been adduced would have adversely affected the complainant’s credibility and reliability (at [333]).
Noormets v Western Australia [2021] WASCA 195.
The Court of Appeal (Buss P, Mitchell and Beech JJA) dismissed a conviction appeal of an appellant who had been convicted at trial of doing an act, with intent to harm, as a result of which bodily harm was caused to the complainant. The relevant act alleged was that the appellant had doused the complainant’s jeans in petrol and ignited the jeans.
The appellant had argued that there was an alternative theory as to how the complainant was burned, being that the complainant was an illicit drug manufacturer and that he could have been injured while manufacturing methamphetamine.
Buss P (with whom Beech JA agreed) said that this argument was based on the assumption that the complainant could only have been burned if the jeans he had been wearing were damaged by fire, but that this was unsound having regard to the evidence (at [87]). Mitchell JA also agreed that this ground should be dismissed, however was concerned that the pants the complainant was wearing had no signs of thermal damage. Mitchell JA said there was an unlikelihood about how the State said the complainant was injured, however the whole of the evidence was capable of excluding that the complainant was injured in another way (at [155]).
Sentence
Lambert v Western Australia [2021] WASCA 199.
The Court of Appeal (Buss P, Mazza and Grant JJA) dismissed an application for an extension of time and a sentence appeal for an appellant who was sentenced for the offence of stealing as a servant.
The appellant was sentenced to a total effective sentence of 4 years and 6 months’ imprisonment that and appealed, amongst other things, on the basis that the sentencing judge failed to give proper weight to mitigating matters, erred by failing to impose sentences in accordance with broadly comparable cases.
The Court said that grounds 1 and 2 were misconceived and they would deal with those grounds on the basis that there was a complaint about totality (at [30]–[33]). The Court examined a number of cases with features that were comparable to the appellant’s offending (at [40]–[49]) and said that having regard to the offence and mitigating factors it could not be said that the sentence was unreasonably or plainly unjust (at [52]).
Bail
Gurney v Western Australia [2021] WASCA 204.
Buss P refused bail in an application for bail pending appeal. The appellant had been sentenced to 14 months’ immediate imprisonment for causing grievous bodily harm to the victim. A parole eligibility order was made. The offending involved two young men at the Sovereign Arms Pub in Joondalup. The appellant claimed that there was a verbal dispute whereby the victim called him “faggot”. Further, the victim spat at the appellant through the fence. As a result the appellant ran after the victim for a distance of 30 metres and punched him in the back of the head. The victim fell awkwardly and sustained damage to his occipital lobe and had to wear a moon boot for a number of weeks. There were other injuries as well.
The appellant’s complaint in the appeal was that the sentence was manifestly excessive, the sentencing judge had erred in not finding that the victim had committed a provocative act and there was a failure to accord procedural fairness.
Buss P was not satisfied that exceptional circumstances had been made out and that the appellant had a strongly arguable case that an immediate term of imprisonment was not reasonably open and that even if the errors and lack of procedural fairness was made out, that a different term of imprisonment ought to be imposed (at [17]).
HTN v Western Australia [2021] WASCA 206.
Buss P granted bail to an appellant who had been convicted of two charges of historical sex offences that he had engaged in fellatio in the presence of two children to whom she was related. The appellant was the mother of the children. She was alleged to have engaged in fellatio with her partner, who was the biological father of the children, in the children’s presence. There was no evidence as to whether the children noticed the act.
In granting bail, Buss P was satisfied that there were exceptional circumstances on the basis that there was a strong arguable case that an immediate term of imprisonment was not within range, only a short term of imprisonment was imposed, and the Court would not be able to hear the appeal until March 2022 (at [32]).
South Australia
Court of Criminal Appeal
Conviction
Sindoni v The Queen [2021] SASCA 138.
The Court of Appeal (Livesy P, Doyle and Bleby JJA) granted leave to appeal but refused a conviction appeal. The appellant was convicted of arson and the issue on the appeal was whether the record of interview should have been admitted.
The appellant had argued that the circumstances of the interview rendered the admission unfair, including that he had indicated a desire to have a lawyer present before proceeding, that there was evidence he had consumed alcohol and prescription medication prior to interview and that he was tired.
The Court said that the circumstances did not render the admission of the record of interview unfair, as the appellant was aware of his right to a lawyer and he continued to volunteer information. The Court said that the tiredness and intoxication was of little moment in the circumstances of this case (at [35]–[47]).
Sentence
Davidson v The Queen [2021] SASCA 130.
The Court of Appeal (Doyle and Bleby JJA and Stanley AJA) dismissed a sentence appeal of an appellant who was sentenced to 3 years’ imprisonment with a non-parole period of 18 months for one count of trafficking in a controlled drug.
The appellant had argued that the sentence was manifestly excessive by the sentencing judge choosing a starting point of four years’ imprisonment and that the sentencing judge had erred in not imposing a suspended sentence.
The Court looked at the features of drug offences which determine the seriousness (at [25]) and referred to the sentencing standard of between four and seven years that had been laid down in previous cases (at [26]). The Court said that whilst the standard is not a tariff, but a flexible guideline, the standard needs to be given appropriate weight (at [27]–[29]).
The Court said that a lesser sentence than the standard was only justified where the circumstances were out of the ordinary and in cases of street trading, matters such as previous good character, addiction and relatively small quantities were not out of the ordinary (at [29]).
In the appellant’s case, the Court said that there were no circumstances which required the sentencing judge to have as a starting point a sentence of less than four years (at [38]).
The Court also dismissed the appellant's ground that the sentencing judge ought to have suspended the sentence, or order that it be served as home detention. The Court called the first limb of that argument ‘untenable’ as there was no basis upon which to consider that the sentencing judge had not considered whether there was good reason to suspend (at [42]). In respect of the home detention argument. The Court considered whether the sentencing judge’s reasons in not ordering home detention were sufficient (at [46]–[52]) however ultimately said that it was open to the sentencing judge to decline to order that the appellant serve his sentence in home detention (at [53]).
Tasmania
Court of Criminal Appeal
Conviction
Neill-Fraser v Tasmania [2021] TASCCA 12.
This is the first application made to the Court of Criminal Appeal under the second and further appeal provisions introduced in 2015.
The appellant was convicted of murder by a jury in 2010 for the murder of her partner the previous year. She appealed her conviction and sentence to the Court of Appeal. The appeal against conviction was dismissed. Special leave was refused by the High Court.
She brought this appeal under second or subsequent appeal provisions on the ground that she had fresh and compelling evidence. Leave had earlier been granted for the appeal by Brett J, applying the three limbs for a grant of leave:
The convicted person has a reasonable case to present to the Court of Criminal Appeal
There is fresh and compelling evidence
It is in the interests of justice to grant the appeal
The fresh and compelling evidence relied upon was asserted to establish that the prosecution evidence regarding DNA and Luminol testing was misleading.
To uphold a second and subsequent appeal, the Court must be satisfied that:
there is fresh and compelling evidence; and
after taking into account the fresh and compelling evidence, there has been a substantial miscarriage of justice.
The second and subsequent appeal provisions were analysed in detail at [57]-[100] (Wood J), [514]-[517] (Pearce J), including interpretation of the concepts of ‘fresh evidence’, ‘compelling evidence’ and ‘substantial miscarriage of justice’.
On the appeal proper, Wood and Pearce JJ dismissed the appeal (Estcourt J dissenting). The evidence relied upon by the appellant was held to be neither fresh or compelling. In any event, it did not establish a substantial miscarriage of justice.
Supreme Court
Judicial Review
Greenham Tasmania Pty Ltd v DPP [2021] TASSC 51
Blow CJ upheld, in part, the review of a determination by a magistrate of a contravention of the Work Health and Safety Act 2012. Among other grounds,
Greenham operated an abattoir and one of its employees was crushed underneath a rise and fall platform while performing cleaning duties. Greenham argued on the appeal that the charge was not properly particularised, the magistrate had misstated the law and there was a paucity of evidence regarding risk.
The prosecution had alleged that Greenham failed to take reasonably practicable steps to mitigate the risk, including by failing to have ‘isolation procedures’.
The Chief Justice considered this particular to be ambiguous, because it did not articulate precisely what isolation procedures were required. It was not even clear whether it referred to physical isolation or electrical isolation or both (at [23]).
Blow CJ held that the magistrate erred in law by failing to give adequate reasons for finding the charge proven since Greenham could not know, from the judgment, what measures it was under a duty to implement (at [24]).
Greenham also argued the magistrate had fallen into error by misstating the test they were required to apply under the Act. Blow CJ accepted that the magistrate was required to address both elements of failing to comply with a duty and that the failure exposed an employee to risk. He also accepted that the magistrate only set out the first of these when stating the law. However, the magistrate nevertheless applied the law correctly and addressed both questions. Blow CJ held ‘a decision-maker does not make a material error of law if, having posed the wrong question, he or she then deals with the question as though answering the right one’ (at [28])
Greenham also argued that there was insufficient evidence because expert opinion had not been adduced about whether the alleged failure would or might have made a difference to the level of risk. Blow CJ rejected the argument, finding that the magistrate was entitled to draw inferences about the impact of risk without the need for expert evidence (at [35]).
Australian Capital Territory
Court of Appeal
Conviction
Vunilagi v The Queen [2021] ACTCA 12.
The Court of Appeal (Mossop, Loukas-Karlsson and Abraham JJ) unanimously dismissed a number of appeals against conviction. The appeals were brought by three offenders who had been tried together by judge alone and convicted of various sexual offences. One of the grounds of appeal was that the provision in accordance with which the trial judge had ordered a trial by judge alone was invalid. That ground had a number of bases (at [210]): first, that it offended the limitation identified in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; secondly, that the Australian Capital Territory (Self‑Government) Act 1988 (Cth) did not authorise the enactment of the provision because it would impermissibly qualify the character of the Supreme Court of the ACT in a way that was contrary to both Kirk v Industrial Court (NSW) [2010] HCA 1, and to the historical conception of how trials on indictment were to proceed (i.e. by jury); and thirdly, that trial on indictment by judge alone in an ACT court was contrary to s 80 of the Commonwealth Constitution.
The argument for invalidity based on Kable consisted of two arguments: an “equal application argument” and a “criteria of operation argument” (at [225]). The former asserted that authority did not permit the enactment of provisions under which relevantly identical cases would be subject to different modes of trial (see [229]); although the provision was designed to address cases that were subject to COVID-related delays it did not require the same result in respect of all such cases. This argument was rejected on the basis that there are a plethora of uncontentious factors that result in differential treatment of similar cases by courts (see [232]). Further, “the mere possibility of different outcomes does not compel the conclusion that the power given by the section substantially impairs the court’s institutional integrity so as to render the power incompatible with that court’s role as a repository of federal jurisdiction” (at [234]).
The “criteria of operation argument” alleged that the conditions controlling the discretion of whether or not to order a trial by judge alone were not capable of judicial application (see [235]). Such a vice had been recognised by a number of High Court judges as being potentially contrary to Kable in Vella v Commissioner of Police (NSW) [2019] HCA 38. It was first said that the statutory criterion of whether the order “will ensure the orderly and expeditious discharge of the business of the court” would be “necessarily satisfied in all cases” (at [236]). The Court of Appeal did not accept this, identifying several reasons why that criterion may not be met from time to time, such as the state of the court lists and the election of accused persons to submit to trial by judge alone (see [239] to [242]). It was then said that the statutory criteria left unclear “whether any matters would ever militate against the making of the order”, and as such the court was being enlisted to enact the legislature’s preferred policy (see [237]). The Court of Appeal rejected this also, noting that the trial judge herself had noted several matters militating against ordering trial by judge alone (including the seriousness of the charge and the centrality of a contest regarding the complainant’s credibility (see [244]).
The argument for invalidity based on Kirk proceeded as follows (see [249]): The Commonwealth legislation that established the ACT Supreme Court had established a court “of the same status and character” as a State Supreme Court referred to in s 73(ii) of the Constitution, and thus a court with defining characteristics that, under Kirk, could not be eroded. It was then said that having trials on indictment dealt with by judge and jury was one such defining characteristic. The Court of Appeal rejected that this was such a characteristic (at [253]). The Court noted that this proposition was inconsistent with the existence of 19th century colonial legislation that authorised summary trials of certain indictable offences. The Court also noted that this would have the bizarre result that other courts that had existed at federation, and that try charges on indictment, would not be subject to the same prohibition. The Court also expressed reluctance to hold that trial by jury was a defining characteristic of a Supreme Court because it was ‘difficult to discover by orthodox judicial technique what characteristics of the jury system as at federation are picked up and constitutionally entrenched by the concept of a “Supreme Court”.’ The court’s reluctance was reinforced by the relative commonality of State and territory legislation permitting Supreme Courts to hold trials by jury.
A related argument was not based on Kirk but nevertheless held that as a simple matter of statutory construction the Commonwealth Parliament ought not be held to have intended to create a Supreme Court of the ACT in which trial by judge alone could be held (see [256]). The appellant sought to establish the requirement to hold trials on indictment before a jury by reference to history and Magna Carta and reasoned that this was one of the “fundamental principles or systemic values” that, consistent with the principle expressed in Bropho v Western Australia [1990] HCA 24, parliament ought not be lightly taken depart from in the absence of express words achieving that result (see [257]). The Court of Appeal held that trial by jury had, in the relevant Australian jurisdictions, a statutory basis, which rather told against it being something from which no departure was permitted (see [259]). The Court took a more minimalist view of what the provision establishing the Supreme Court did - it guaranteed the Court’s existence and its supervisory jurisdiction (see [262]). In order to hold that it also guaranteed trial by jury, the Court would have required more, especially given that the legislation existed in the context of R v Bernasconi [1915] HCA 13, which had held that section 80 did not guarantee trial by jury in respect of Territory offences.
The final argument for invalidity argued that the provision authorising trial on indictment by judge alone was contrary to the guarantee in s 80 of the Constitution that trials on indictment of Commonwealth offences shall be by jury. This argument sought to distinguish Bernasconi. The Court of Appeal explained (at [268]) that Bernasconi had a broad ratio and a narrow ratio. The broad ratio was that the power conferred bys 122 of the Constitution (authorising the Commonwealth Parliament to make laws for the governance of the Territories) was not subject to Chapter III of the Constitution. The narrow ratio was that s 122 is not qualified by s 80’s guarantee of trial by jury. The Court of Appeal explained that the broad ratio is no longer correct in light of cases culminating in North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31, which held that Territory courts are within the scope of s 71 of the Constitution. However, the narrow ratio “remains binding upon the Court” and “compels the rejection of this aspect of the appellant’s argument” (at [268] and [269]). The Court specifically rejected the appellant’s invitation to distinguish between territories surrendered by States and other territories, noting that the Constitution itself does not make such a distinction (see [268]).
Full Court of the Supreme Court
The Full Court of the Supreme Court of the ACT (Mossop J, Collier J and McWilliam AJ) unanimously allowed an appeal against a finding of guilt made by the Children’s Court in respect of one count of minor theft, committed when the appellant was 13 years old. In the Children’s Court, the appellant had submitted that he had no case to answer. This was premised on the proposition that, under the Criminal Code 2002 (ACT), in proceedings where the accused was 10 or older but younger than 14 at the time of the offence, the prosecution bore the onus of proving that the accused knew that their conduct was wrong, and the accused bore no evidential burden in this regard (that is, did not need to present or point to evidence that suggested a reasonable possibility that he had not known his conduct was wrong). The Children’s Court had rejected that submission, but the Full Court held that the accused bore no evidential burden as to whether he had known that his conduct was wrong, and therefore even in the lack of such evidence adduced by the accused, the prosecution needed to prove this knowledge of wrongness beyond reasonable doubt (see [92]). In so doing, the Full Court overruled a contrary decision of a single judge of the Supreme Court - Williams v IM [2019] ACTSC 234.
The question was put succinctly at [6], as how s 58(2) of the ACT Code interacted with s 26. Section 26 resides within Part 2.3, and states that a child of the relevant age “can only be criminally responsible for an offence if the child knows that his or her conduct is wrong.” Section 58(2) provides that “A defendant who wishes to deny criminal responsibility by relying on a provision of part 2.3 … has an evidential burden in relation to the matter.” The question was how this latter section applied in relation to the issue of known wrongness, especially in the context of subsection (3) of s 26, which states that “The burden of proving that a child knows that his or her conduct is wrong is on the prosecution.”
The issue was thus one of statutory interpretation. Accordingly, the Full Court, with considerable detail, set out the relevant legislation (at [5]), set out the relevant common law background (at [13] to [16]), explored the legislative history and context (at [17] to [53]), explained the decision sought to be overruled (at [54] to [60]), and explored relevant authority from another jurisdiction regarding similar provisions (at [61] to [63]).
The Full Court conceded that the language of s 58(2) “provides a strong textual indication that an evidential burden is borne by the appellant” (at [72]). However, the apparent breadth of that clear language was mitigated by several matters. First: other provisions (specifically those relating to mental impairment) contain provisions that are to the contrary of s 58(2), which tells against reading s 58(2) as declaring a matter that does not admit of exceptions (see [73]). Secondly, the presence of s 26(3) (which explicitly imposes the burden of proof on the prosecution) could be viewed as a specific provision excluding a more general one (see [74]). Thirdly, if s58 were to govern the s 26 issue, this would render s 26(3) otiose, as the imposition of the burden of proof on the prosecution would already have been achieved by s 56(2) (see [75]).
Reviewing the explanatory memorandum for the Bill that became the ACT Code (a task which required exploring the position at common law, existing ACT law, and the Commonwealth Criminal Code), the Court discerned “an intention to replicate the existing law which did not impose any evidential burden” (at [82]). The Court explained that structural, textual, and contextual aspects surrounding the ACT Code made it impermissible to characterise this as the author of an explanatory memorandum “simply [getting] it wrong” (at [83]).
The identification of reasonable textual and contextual indicators pulling in multiple directions paved the way for the Full Court to ground its decision as primarily grounded in an application of the principle of legality (see [84]). The Court characterised the imposition of an evidentiary burden on the accused as “a qualification on the defendant’s entitlement to have all aspects of the case against him proved by the Crown beyond reasonable doubt … which involves a corresponding qualification on a fundamental aspect of the criminal process and hence upon his liberty” (see [85]). The Court explained that where the legislature intends to achieve such an effect, “it should do so in a way that is clear enough to indicate that it takes responsibility for, and hence is politically accountable for” that effect. (see [86]). Ultimately, the Court held (at [90]) that if the legislature’s purpose had been to impose an evidential burden on the accused, it had not expressed that purpose with sufficient clarity as to compel an interpretation which secured that purpose.
Excellent reading, some very dodgy lawyer speak, decisions, and behaviour. Thank you for sharing. X