Alfarsi (a pseudonym) v The Queen
[2021] VSCA 283
•15 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0126
| SALEH ALFARSI (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]So as to prevent any risk of prejudice to the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | PRIEST and KAYE JJA and LASRY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 October 2021 |
| DATE OF JUDGMENT: | 15 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 283 |
| JUDGMENT APPEALED FROM: | DPP v [Alfarsi] [2021] VSC 576R (Tinney J) |
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CRIMINAL LAW — Interlocutory Appeal — Application for review of refusal to certify that interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal — Indictment for murder — Whether defence response to summary of prosecution opening inadequate — Review granted — Appeal allowed — Criminal Procedure Act 2009 ss 182 and 183.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Sheales and Mr A V Chernok | City Group Legal |
| For the Respondent | Ms E Ruddle QC with Ms K Churchill | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
KAYE JA
LASRY AJA:
Introduction
An indictment filed in the Supreme Court charges the applicant with the murder of Marius Kato[2] (‘Kato’) on 9 August 2017.[3] It is the sixth indictment filed against the applicant in relation to the killing.
[2]A pseudonym.
[3]Indictment No. C1912447.5.
The prosecution case, as currently formulated, is set out in a Revised Summary of Prosecution Opening for Trial (‘Revised Opening’), filed at the same time as the current indictment, on 24 May 2021. In essence, the prosecution alleges that, late in the evening of 8 August 2017, the applicant, with Eshan Hansen[4] (‘Hansen’) and Haidar Odom[5] (‘Odom’), drove in a stolen Toyota Camry motor car to the vicinity of Kato’s family home, located in a northern Melbourne suburb. Shortly afterwards, at about 12.30 am on 9 August 2017, Kato arrived home. Armed with baseball bats, the applicant and Hansen got out of the Camry and immediately set upon Kato, who fled. The applicant and Hansen chased Kato on foot, whilst Odom followed, driving the Camry. Kato ran to the front doorway of a house about 300 metres from his home, seeking refuge. The applicant, who had a firearm, then shot Kato three times, causing his death. Both the applicant and Hansen then returned to the Camry, and the three hurriedly left the scene.
[4]A pseudonym.
[5]A pseudonym.
As we have said, the present indictment is the sixth filed against the applicant in relation to Kato’s killing;[6] and the Revised Opening — a document of some 125 paragraphs — is the fourth iteration of the ‘summary of the prosecution opening’ contemplated by s 182 of the Criminal Procedure Act 2009 (‘CPA’ or ‘the Act’).[7]
[6]First, on 30 October 2019, the prosecution filed Indictment No C1912447, alleging that Odom was guilty of murder at common law — or, alternatively, ‘statutory murder’ or ‘3A murder’, pursuant to s 3A of the Crimes Act 1958 — and the applicant and Hansen were guilty of 3A murder. Secondly, on 23 December 2019, the prosecution filed over Indictment No C1912447.1, in which the prosecution charged the applicant with common law murder and Hansen with 3A murder. Thirdly, on 2 June 2020, the prosecution filed over Indictment No C1912447.2 in which the prosecution charged the applicant with common law murder and Hansen with 3A murder, and also charged both with attempting to pervert the course of justice. Fourthly, on 10 December 2020, the prosecution filed over Indictment No C1912447.3, in which the prosecution charged the applicant with common law murder and Hansen with intentionally causing injury (effectively withdrawing the murder charge), and both with attempting to pervert the course of justice. Fifthly, on 5 February 2021, the prosecution filed over Indictment No C1912447.4, in which the prosecution charged the applicant with common law murder and attempting to pervert the course of justice. Finally, the current indictment, charging the applicant with common law murder, was filed on 24 May 2021.
[7]The first was a ‘Summary of Prosecution Opening’, dated 30 October 2019; the second, an ‘Updated Summary of Prosecution Opening for Trial’, dated 12 December 2019; and the third, a ‘Revised Summary of Prosecution Opening for Trial’, dated 10 December 2020.
The applicant’s counsel have, on three different occasions, filed versions of ‘the response of the accused to the summary of the prosecution opening’ (‘defence response’) contemplated by s 183 of the CPA.[8] There is also a fourth defence response in existence — ‘Amended Defence Response to Revised Summary of Prosecution Opening for Trial’, dated 6 September 2021 — upon which the applicant’s counsel seek to rely. Importantly, although that fourth defence response has not yet formally been filed, the judge proceeded as if it had been. Thus, the judge dealt with the case as if the relatively confined amendments it was intended to effect to the third defence response had in fact been made.
[8]The first is a ‘Defence Response’, dated 20 November 2019; the second, a ‘Further Defence Response’, dated 29 January 2020; and the third, a ‘Defence Response to Revised Summary of Prosecution Opening for Trial’, dated 9 August 2021.
It is the adequacy of the third defence response (as notionally amended), dated 9 August 2021, which is in issue in these applications. By a ruling dated 14 September 2021, the trial judge held that ‘the third defence response filed in this case does not comply with the requirements of s 183 of the Act’, and ordered that ‘the defence file and serve, forthwith, a further defence response which complies with the law’ (‘the ruling’ or ‘the interlocutory decision’).[9] Further, by a ruling dated 15 September 2021 (‘the certification decision’), the trial judge refused to certify under s 295(3)(b) of the CPA that the interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
[9]Ruling, [103]–[104].
Pursuant to s 296 of the CPA, the applicant seeks to review the judge’s certification decision; and, if successful in that application, seeks leave to appeal against the interlocutory decision, relying on ten separate grounds, the first of which contends that the judge
erred in concluding that neither the third defence response nor the fourth defence response complied with s 183(2) of the CPA in that they did not:
a. identify the acts, facts, matters and circumstances enunciated in the Prosecution Opening with which the accused takes issue; and
b. the basis on which issue is taken.
For the reasons that follow, both applications should be granted, and the interlocutory decision should be set aside.
Provisions governing review of the trial judge’s decisions
Before turning to the merits of the applications, it is necessary to recognise salient aspects of the legislative regime governing their disposition.
Section 295(2) of the CPA provides that a party to a proceeding in the Trial Division of the Supreme Court for the prosecution of an indictable offence may only appeal to the Court of Appeal against an interlocutory decision by leave. If, as in the present case, the interlocutory decision does not concern the admissibility of evidence, s 295(3)(b) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) ‘that the interlocutory decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Should the judge, as occurred in this case, refuse to certify under s 295(3), s 296 provides a process by which the party who requested certification may apply for a review of that decision. Upon such a review, s 296(4) requires the Court to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’.
By virtue of s 297, the Court may grant leave to appeal if ‘satisfied that it is in the interests of justice to do so’ having regard to several enumerated criteria, including whether the determination of the appeal against the interlocutory decision may ‘resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial’ or ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial’, and ‘any other matter that the court considers relevant’.
For the reasons that follow, we consider that the ruling is in error. It would be contrary to the interests of justice to permit it to stand.
The defence response in issue
The first of the three defence responses, dated 20 November 2019, was filed when the applicant was charged with statutory — not common law — murder. It occupied eight paragraphs in total, four paragraphs being of particular relevance:
1. On the material disclosed, the deceased was shot dead on 9 August 2017 in circumstances beyond the accused’s knowledge.
2. The accused denies any involvement in the incident.
3. That is, the accused denies: being present; and in any way being involved on an inchoate liability basis with offenders responsible for the murder.
4. The accused denies that there was an agreement, arrangement or understanding between him and the co-accused or that he assisted in, encouraged or directed the commission of the foundational offence of intentionally causing injury.
When the second defence response, dated 29 January 2020, was filed, the applicant was facing common law — not statutory — murder. The second defence response was nine paragraphs in length, four being of relevance. It will be noticed that, apart from the sentences emphasised below, its relevant parts reflected those of its predecessor:
1. On the material disclosed, the deceased was shot dead on 9 August 2017 in circumstances beyond the accused’s knowledge.
2. The accused denies any involvement in the incident. The central issue in the trial will be the account given by the witness [Haidar Odom]. His reliability and credibility are squarely in issue.
3. That is, the accused denies: being present; and in any way being involved on an inchoate liability basis with offenders responsible for the murder.
4. The accused denies that there was an agreement, arrangement or understanding between him and the co-accused or that he assisted in, encouraged or directed the commission of the foundational offence of intentionally causing injury.
The third defence response, dated 9 August 2021, which the trial judge held did not comply with s 183 of the CPA, occupies four paragraphs, and, as notionally amended,[10] is in the following terms:
[10]As we have indicated, on 6 September 2021 counsel for the applicant gave notice that they sought to amend the defence response by substituting for the heading appearing immediately before paragraph 3 the words underlined. The heading in the defence response as initially filed was:
Matters alleged within the PO that are not admitted
1. This Defence Response is filed in response to the ”Revised Summary of Prosecution Opening for Trial” (PO) dated 24th May 2021 and no other document.
Matters alleged within the PO that are admitted
2. The contents of paragraphs 8, 13, 14, 20, 22, 23, 25, 26, 27, 28, 37, 54, 62 – 72, 80 – 83, 104 – 107, 109 and 118 – 125 are admitted.
The acts, facts, matters and circumstances alleged within the PO that the defence takes issue with are the entirety of paragraphs:
3. The contents of paragraphs 1 – 7, 9 – 12, 15 – 19, 21, 24, 29 – 36, 38 – 53, 55 – 61, 73 – 79, 84 – 103, 108 and 110 – 117 are not admitted.
Basis on which issue is taken
4. The accused says:
a.that the witness [Odom] is wholly untruthful as to material matters;
b.that he is not criminally responsible for the death of [Kato].
Provisions governing prosecution opening and defence response
So far as relevant, ss 182 and 183 of the CPA provide:
182 Summary of prosecution opening and notice of pre-trial admissions
(1) Unless the court otherwise directs, at least 28 days before the day on which the trial of the accused is listed to commence, the DPP must serve on the accused and file in court—
(a) a summary of the prosecution opening;
(b) a notice of pre-trial admissions
(2) The summary of the prosecution opening must outline—
(a) the manner in which the prosecution will put the case against the accused; and
(b) the acts, facts, matters and circumstances being relied on to support a finding of guilt.
…
183Response of accused to summary of prosecution opening and notice of pre-trial admissions
(1) After being served with a copy of the documents referred to in section 182, the accused must serve on the prosecution in accordance with section 392 and file in court, at least 14 days before the day on which the trial of the accused is listed to commence—
(a) a copy of the response of the accused to the summary of the prosecution opening;
(b) a copy of the response of the accused to the notice of pre-trial admissions.
(2) The response of the accused to the summary of the prosecution opening must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken.
...
It will be appreciated that s 182(2) requires the prosecution opening, first, to outline the manner in which the prosecution will put its case; and, secondly, to outline the acts, facts, matters and circumstances relied on to support a finding of guilt. In turn, s 183(2) requires the defence response, first, to identify the acts, facts, matters and circumstances with which issue is taken; and, secondly, to identify the basis upon which issue is taken.
We pause to note that, on its face, the third defence response (as notionally amended) identifies the acts, facts, matters and circumstances with which issue is taken by reference to various paragraph numbers of the Revised Opening — making clear that issue is taken with the ‘entirety’ of acts, facts, matters and circumstances set out within the paragraphs referred to — and further makes clear that issue is taken on two bases: first, that Odom — whose evidence is essential to establishing the critical acts, facts, matters and circumstances with which issue is taken — is ‘wholly untruthful’ on material matters; and, secondly, that the applicant is not ‘criminally responsible’ for Kato’s death. In that way the defence response clearly identifies the acts, facts, matters and circumstances set out in the Revised Opening with which issue is taken.
The interlocutory decision
Having entertained full argument on its adequacy, the judge ultimately decided
that the third defence response filed in this case does not comply with the requirements of s 183 of the Act. The same can be said of the fourth defence response as well, insofar as [the applicant’s counsel] made it clear that it was not intended to modify the effect of the third defence response.[11]
[11]Ruling, [103].
The judge then made an order
that the defence file and serve, forthwith, a further defence response which complies with the law.[12]
[12]Ibid [104].
In the course of his ruling, the judge briefly discussed the facts of the alleged murder[13] and set out a chronology of the several prosecution openings and defence responses that had been filed (and intended to be filed).[14] The judge then set out the text of ss 182, 183, 184, 224 and 225 of the CPA, and made reference to ss 181(2)(f), 189 and 190,[15] before setting out the submissions of the parties concerning the adequacy of the third defence response (as notionally amended by the fourth).[16]
[13]Ibid [3]–[6].
[14]Ibid [7]–[21].
[15]Ibid [22]–[26].
[16]Ibid [27]–[60].
Under the heading ‘Analysis’, the judge cited cases dealing with statutory interpretation,[17] and referred to s 14(2) of the Interpretation of Legislation Act 1984, also setting out the text of s 35 of that Act. The judge then discussed the provisions of the (repealed) Crimes (Criminal Trials) Act 1993 (‘CCTA 1993’) and Crimes (Criminal Trials) Act 1999 (‘CCTA 1999’) — the forerunners of (among others) ss 182 and 183 of the CPA — and set out parts of the second reading speeches relating to those Acts.[18] He then turned to the statement of compatibility, and the second reading speech, made by the then Attorney-General concerning relevant parts of the Criminal Procedure Bill.[19]
[17]Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503 (French CJ, Hayne, Crennan, Bell and Gageler JJ); Douglas v Harness Racing Victoria [2021] VSCA 128.
[18]Ruling [61]–[71].
[19]Ibid [72]–[81].
The judge then said:[20]
[82] That ss 182 and 183 of the Act effected a fundamental alteration to the accusatorial system of criminal justice has been recognised by the High Court.
[83] In X7 v Australian Crime Commission and Another,[21] the High Court in a case stated pursuant to s 18 of the Judiciary Act 1903 (Cth), considered the question whether the Australian Crime Commission Act 2002 (Cth) (‘the ACCA’) empowered an examiner to conduct an examination of a person charged with a Commonwealth indictable offence where that examination concerned the subject matter of the offence charged. The majority[22] considered, inter alia, the process of criminal justice, the accusatorial nature of a criminal trial, the privilege against self-incrimination and the right to silence. They observed that if the relevant provisions of the ACCA were to permit the compulsory examination of a person charged with an offence about the subject matter of the pending charge, ‘they would effect a fundamental alteration to the process of criminal justice’.[23]
[84] Their Honours continued:
This is not to decide that statute can never effect fundamental alterations to the process of criminal justice. As explained earlier, it is not necessary to decide whether there is any relevant constitutional limitation to legislative power that would preclude such an alteration. But such an alteration can only be made if it is made clearly by express words or necessary intendment.[24]
[85] The majority observed that from time to time, legislation has been enacted which has qualified the generally accusatorial nature of the process of criminal justice. …
[20]Ibid [82]–[85] (emphasis added; citations as in original).
[21](2013) 248 CLR 92 (‘X7’).
[22]Hayne and Bell JJ, Kiefel J agreeing.
[23]Ibid [118].
[24]Ibid [119].
The judge then cited a passage from XYN v Chief Examiner,[25] and also placed particular reliance on the following passage from the judgment of Mason CJ in Hamilton v Oades:[26]
There are two other matters to be mentioned. The Court of Appeal referred to the respondent’s right not to disclose his defences to the pending charges. Except in the sense that a witness enjoys what is known as the right to silence, the respondent has no relevant right, either at common law or by virtue of statute. The privilege against self-incrimination would not ordinarily protect a person against disclosure of his defence to a criminal charge. The so-called right not to disclose a defence is the result merely of the absence in ordinary circumstances of any statutory requirement that defences be revealed. In some instances there is such a specific requirement, e.g., in relation to alibi defences. And there is implicit in the general words of s. 541 such a general requirement. The possibility of disclosure of a defence is, accordingly, not a matter in respect of which a witness needs to be protected, except perhaps in the most exceptional circumstances. The second matter to be mentioned is Clarke J.A.’s reference to the fact that an accused person is not required ordinarily to submit to pre-trial discovery. Granted that this is so, it is a consideration which must yield to the statutory abrogation of the privilege unless the circumstances of the particular case are so compelling as to call for an exercise of the statutory discretion.
[25]XYN v Chief Examiner [2016] VSC 137, [34] (Riordan J).
[26]Hamilton v Oades (1989) 166 CLR 486, 499–500.
Having observed that the applicant’s position was not supported by Hazelwood,[27] the judge said:[28]
[27]DPP v Hazelwood Pacific Pty Ltd (Ruling 3) [2019] VSC 872 (Keogh J).
[28]Ruling [91]–[100] (emphasis added; citations as in original).
[91] As I have already noted, the meaning of the words of s 183 is clear enough. On the face of those words, the accused is required to indicate which of the acts, facts, matters and circumstances spelt out in the summary of prosecution opening he takes issue with, that is, challenges or disputes, and the basis or reason for such challenge. That meaning, to my mind, entirely accords with the context of the provisions, including the legislative history and a consideration of the extrinsic materials. It also accords with the purpose or object underlying those sections of the Act. Furthermore, it is supported by what the High Court said in X7.
[92] In my view, there can be no doubt that ss 182 and 183, and their legislative forerunners in the CCTA 1993 and CCTA 1999, were intended to bring about a significant procedural change in the way criminal trials would be conducted in future relative to the way they had previously been conducted. As noted by the High Court, this was a change to the accusatorial process of criminal justice, and had ‘been made directly and expressly’.[29]
[29]X7, [123].
[93] And yet, in the face of that background, and the reality of the changed procedural landscape which has governed criminal trials at least since 1999, if not since 1993, the approach of the defence in this case has been to provide a defence response which is singularly unhelpful in elucidating the true issues in the trial and to advance submissions in justification of the inadequate defence response which, if correct, would reduce to nought the beneficial and remedial effect intended by successive Governments in their legislative efforts over a period approaching three decades.
[94] The third defence response filed by [the applicant’s counsel], quite simply, did not indicate which of the many acts, facts, matters and circumstances set out in the prosecution summary the accused will take issue with, or the basis on which issue will be taken. All the response indicates is that in respect of the vast bulk of the paragraphs contained in the prosecution summary, the content of the paragraphs ‘is not admitted’, the accused maintains that Haidar Odom is a witness who is ‘wholly untruthful as to material matters’, and that the accused is not criminally responsible for the death of the deceased. That approach leaves the prosecution, the Court, and would in future, leave the jury, in the dark about what, specifically, will be in dispute in the trial. By way, merely, of example, will it be in dispute at the trial that the accused:
· was involved in the theft of the Camry in the lead-up to the events?
· was present in the Camry in company with Odom and [Hansen] when the deceased returned to his premises?
· left the vehicle with [Hansen], armed with a baseball bat?
· approached and commenced to assault the deceased?
· pursued the deceased along the street in company with [Hansen], following the deceased into the front yard of a property?
· pulled out a firearm and shot the deceased dead?
· returned to the initial scene in search of the broken portion of the baseball bat?
· fled the scene with the others, and later made arrangements for the destruction of the Camry and for Odom to make a false report to the police?
· was later involved in pressuring Odom to make a false confession of guilt?
[95] In respect of these and many others of the factual contentions advanced in the prosecution summary, the defence response is entirely opaque, to the extent that, as the trial judge soon to embark upon the hearing of this case, I am entirely in the dark about the defence, other than having an understanding of the fact that the finger will be pointed at Odom as an entirely dishonest witness. More important than the uncomfortable position in which I find myself is the fact that the prosecutor, also, does not know what are the actual live issues in this case and is materially impaired in her ability to properly prepare.
[96] And more important than both of those concerns, of course, is the fact that, should the state of affairs remain as it currently is, and should [the applicant’s counsel] actually conduct the trial in the manner he has intimated he will, a prospective jury would be expected to embark upon a trial with no real idea which of the many acts, facts, matters and circumstances making up the prosecution case are actually in dispute until such time, if it ever arrives, as [the applicant’s counsel] is inclined to let them in on the secret. This last proposition is entirely at odds with the way a criminal trial is meant to be conducted.
[97] In my view, whilst such a state of affairs may satisfy [the applicant’s counsel’s] strongly held yearning for and support of the way that trials may once have been conducted, it would be entirely unsatisfactory, would be a recipe for confusion and unfairness, and is not consistent with the rules of criminal procedure which have applied in this State for close to three decades.
[98] Insofar as [the applicant’s counsel] contended that s 183 does not abrogate the common law right to put the prosecution to proof of each element of the crime charged, the privilege against self-incrimination and the right to silence, clearly he is correct as to the first part. Section 183 in no way impinges on the propositions, fundamental in this and all criminal trials, that the burden of proof is on the prosecution, and that it is incumbent on the prosecution to prove, and to do so beyond reasonable doubt, each and every element of the crime charged. Nothing I have said during submissions or in this judgment should leave any doubt that I am acutely aware of those fundamental propositions.
[99] As for the second part, the requirement to indicate what acts, facts, matters and circumstances he takes issue with, and why, does not require the accused to incriminate himself. It requires him to indicate, in effect, what facts are in issue in the case, in accordance with the statutory requirement. If this in any way impinges upon the privilege against self-incrimination, this is because the legislature has seen fit to do so by virtue of bringing about a fundamental alteration to the accusatorial system of criminal justice, as has been recognised by the High Court.
[100] As for the right to silence, as already noted, I doubt the concept is as wide as [the applicant’s counsel] would have it, but if it could in fact be considered that to require an accused, pursuant to a statutory procedural provision, to indicate what acts, facts, matters and circumstances amongst those outlined by the Crown he would take issue with, and why, would be to impinge on the accused’s right to silence, such interference with the right could only sensibly be considered to have been brought about by the deliberate alteration by the legislature of the rules of criminal procedure in this State.
We pause once more to note that (among other things) the following may be drawn from the judge’s ruling. The judge considered:
· first, that ss 182 and 183 had ‘directly and expressly’ brought about ‘a significant procedural change in the way criminal trials would be conducted’;
· secondly, that s 183 in no way impinges on the fundamental propositions ‘that the burden of proof is on the prosecution, and that it is incumbent on the prosecution to prove, and to do so beyond reasonable doubt, each and every element of the crime charged’;
· thirdly, that when requiring the accused person to indicate the acts, facts, matters and circumstances with which issue is taken, the legislature intended to bring about the ‘fundamental alteration to the accusatorial system of criminal justice, as has been recognised by the High Court’, and to impinge upon the privilege against self-incrimination; and
· fourthly, that if s 183 impinges on the right to silence, ‘such interference with the right could only sensibly be considered to have been brought about by the deliberate alteration by the legislature of the rules of criminal procedure in this State’.
The applicant’s submissions
In this Court, counsel for the applicant in written submissions contended that the relevant defence response complies with s 183 the CPA. Section 183, counsel submitted, is ‘procedural’, and does not abrogate the common law right to put the prosecution to proof on each element of the offence, or the privilege against self-incrimination. The requirement to ‘identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’, is for the administrative or court management purpose of narrowing the issues (where possible) and avoiding the wastage of time and resources. Nothing in s 183 requires the defence to make ‘positive disclosures’. Moreover, s 183 does not abrogate the right to silence ‘other than in the very limited scope mandated by the section itself’, and it does not reverse any burden of proof that is upon the prosecution.
The respondent’s submissions
Having discussed various rules of statutory construction, counsel for the respondent submitted in writing that s 183(2) may require some disclosure by the accused. Counsel submitted that the principle of legality does not avail the applicant, since, ‘to the extent that the section does interfere with any rights a defendant may have, it does so in clear words’. The requirements in s 183, counsel submitted, do not curtail the right of an accused to put the prosecution to its proof. Nor does the section curtail the presumption of innocence or compel an accused to testify or confess guilt. What the section does require is the identification of the matters in issue at trial. The impugned defence response, so counsel submitted, failed to do so. If such matters are not identified, then it may lead to difficulties with determining the relevance and admissibility of evidence in the trial.
In oral submissions, senior counsel for the respondent pointed to a suggested inconsistency between part of the defence response and an admission made under s 183(1)(b) in response to a notice of pre-trial admissions made under s 182(1)(b).
Furthermore, senior counsel argued that part of the defence response is internally inconsistent; in particular, the response to paragraphs 117 and 118 of the Revised Opening. Paragraph 117 states that, as part of the investigation, ‘a DNA reference sample was taken from each accused’ and compared with items from the crime scene; and paragraph 118 sets out the results of the DNA testing, including matching the applicant’s DNA profile to the ‘hitting end’ of a baseball bat located in Kato’s vehicle. The defence response, however, admits the contents of paragraph 118 (the DNA results), whilst at the same time purporting to take issue with the contents of paragraph 117 (the DNA collection and comparison), leaving opaque whether the DNA evidence is challenged.
Discussion
In our opinion, the judge erred in holding that the third defence response (as amended) did not comply with s 183(2) of the CPA.
Section 183(2) of the CPA requires the defence response to identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken. As a matter of ordinary language, to ‘identify’ something is to point it out or to pinpoint it. Again, as a matter of ordinary language, ‘issue is taken’ with an act, fact, matter or circumstance if there is disagreement with it. And the ‘basis’ upon which issue is taken is the reason for disagreement. Thus, s 183(2) requires no more of an accused person than to point out those acts, facts, matters and circumstances in the prosecution opening with which he or she disagrees, and to provide a reason for such disagreement. But the provision does not — expressly or impliedly — require an accused person taking issue with an act, fact, matter or circumstance to make any positive statements of fact in relation to it.
We consider that, upon a sensible reading, the third defence response (as amended) sufficiently pinpoints the acts, facts, matters and circumstances that the applicant disagrees with by reference to the paragraph numbers of the prosecution opening, accompanied by the statement that he disagrees with the entirety of what is contained within them. Significantly, most of the acts, facts, matters and circumstances described in those paragraphs are, in one way or another, concerned with matters which the prosecution will seek to establish through Odom’s evidence (including the applicant’s presence at the scene, and his activities, when Kato was killed; and his later attempts to pervert the course of justice). And importantly, the defence response makes it clear that the reason the applicant disagrees with them, first, is because Odom ‘is wholly untruthful as to material matters’; and, secondly, because ‘he is not criminally responsible’ for the death of Kato. It is plain from the document that the ‘defence’ at trial will involve a concerted attack on Odom’s truthfulness, credibility and reliability. No doubt it will be the defence case that Odom is so unreliable that his evidence will be incapable of satisfying the jury beyond reasonable doubt as to the acts, facts, matters and circumstances identified in the defence response.
Contrary to the observations of the trial judge, we consider that s 183(2) of the CPA does not — expressly or by necessary intendment — make any fundamental alteration to the accusatorial system of criminal justice, nor impinge upon the privilege against self-incrimination. As was observed in R & M v IBAC:[30]
It is because the privilege is so treasured by tradition, and so central to the administration of criminal justice, that its legislative nullification may only ‘be made clearly by express words or by necessary intendment’,[31] and by ‘clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom’.[32]
[30]R and M v Independent Broad-based Anti-corruption Commissioner (2015) 47 VR 148, 160 [34] (Priest, Beach and Kaye JJA) (citations as in original).
[31]X7 (2013) 248 CLR 92, 143 [125] (Hayne and Bell JJ).
[32]Coco v The Queen (1994) 179 CLR 427, 437–8 (Mason CJ, Brennan, Gaudron and McHugh JJ); Lee (2013) 251 CLR 196, 309 [310] (Gageler and Keane JJ).
We note that Hamilton v Oades appears to have influenced the judge’s view that the legislature intended to bring about the ‘fundamental alteration to the accusatorial system of criminal justice, as has been recognised by the High Court’, and to impinge upon the privilege against self-incrimination. In our opinion, however, s 183(2) of the CPA bears no resemblance to the provision considered in Hamilton v Oades (s 541(12) of the Companies (New South Wales) Code, which provided that ‘a person is not excused from answering a question put to him at an examination ... on the ground that the answer might tend to incriminate him’).
Finally, as we have mentioned, counsel for the respondent in oral argument pointed to suggested inconsistencies between part of the defence response and an admission made in response to a notice of pre-trial admissions, and also pointed to parts of the defence response said to be internally inconsistent. Plainly, these matters should be readily capable of resolution by the trial judge in discussion with counsel.
Before parting with this matter, we would make the following observations. The workload of the criminal justice system is constantly increasing, its effective discharge now being further complicated by the effects of the COVID-19 pandemic. The provisions under consideration in these applications are, despite their limitations, intended to enable the conduct of criminal trials to proceed more efficiently and occupy less time in Court. That efficiency will be promoted where frank disclosure can occur without prejudice to the accused in any given case. The conclusion we have expressed in this case should not in any way be regarded as a licence to avoid being candid and co-operative where candour and co-operation can be achieved without compromising the case of the accused. In cases such as this, goodwill and the sensible conduct of counsel is indispensable to the proper conduct of criminal trials.
Conclusion
For the foregoing reasons, the certification decision and the interlocutory decision must be set aside. We will make orders accordingly.
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