Ayles v The Queen [2008] HCA 6 28 February 2008 A40/2007
ORDER
Appeal dismissed.
On appeal from the Supreme Court of South Australia
Representation
A L Tokley for the appellant (instructed by Townsends)
C J Kourakis QC, Solicitor-General for the State of South Australia with S A McDonald for the respondent (instructed by Director of Public Prosecutions (SA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ayles v The Queen
Criminal law – Practice and procedure – New statutory offence provision in period particularised on the information – Need for amendment – No formal application by prosecutor to amend.
Criminal law – Practice and procedure – Admission by accused to offence outside dates particularised on the information – Trial judge's findings follow admission.
Criminal law – Practice and procedure – Whether trial judge has power to amend statutory provision without application by parties – Criminal Law Consolidation Act1935 (SA), s 281(2) – Distinct functions of judge and prosecutor – Whether amendment conformed to prosecutor's intention.
Criminal law – Practice and procedure – Procedural fairness – Whether amendment without opportunity for accused to make submissions.
Criminal law – Practice and procedure – Correct offence not noted on information – Order for amendment incompletely noted on the information – Whether affects amendment of information – Whether administrative task.
GLEESON CJ. In accordance with the limited grant of special leave to appeal, the grounds of appeal in this matter are as follows:
1.The court below erred in law in holding that the trial judge had power pursuant to s 281 of the Criminal Law Consolidation Act 1935 (SA) to amend the charge in count 1 of the information.
2.The court below erred in law in holding that the trial judge had power to amend count 1 of the charge on the information because the power to lay the charge lies with the Director of Public Prosecutions under s 7 of the Director of Public Prosecutions Act1991 (SA).
3.The court below erred in law in considering that the trial judge could amend the information as it is not part of the responsibility of the trial judge to determine which charge the appellant should stand trial for.
The relevant facts, and the events at trial, are set out in the reasons of Kiefel J, with which I agree. That the trial judge exercised, or purported to exercise, the power of amendment conferred by s 281 of the Criminal Law Consolidation Act 1935 (SA) is accepted in the grounds of appeal and is, in any event, clear from the record of proceedings. Sub-section (3) of s 281, in its opening words, indicates that the amendment of which the section speaks is made by the judicial order referred to in…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ayles v The Queen [2008] HCA 6
Case
[2008] HCA 6
Decision Date
CaseChat Overview and Summary
This case concerned an appeal by the appellant against his conviction for an offence. The central dispute revolved around the trial judge's power to amend an information without a formal application from the prosecutor, and whether such an amendment, made without affording the appellant an opportunity to make submissions, complied with the requirements of procedural fairness. The High Court of Australia was required to determine the validity of the amendment and its impact on the conviction.
The legal issues before the High Court included whether the trial judge possessed the power under s 281(2) of the Criminal Law Consolidation Act 1935 (SA) to amend the information without an application from the prosecutor, the distinct functions of a judge and a prosecutor in this regard, and whether the amendment, as made, conformed to the prosecutor's intention. Furthermore, the Court had to consider whether the amendment, made without providing the appellant an opportunity to make submissions, breached the principles of procedural fairness, and whether the incomplete notation of the amendment on the information affected its validity.
A majority of the High Court found that the trial judge's purported amendment was defective on two grounds: firstly, because no application had been made by counsel, the judge lacked the power to make the amendment; and secondly, the amendment to the statement of the offence was not properly noted on the information itself. The Court held that the trial judge had misconstrued her powers of amendment, leading to a "wrong decision on a question of law." However, applying the proviso, the majority concluded that no substantial miscarriage of justice had occurred because the appellant had admitted his guilt to the substance of the offence through his own testimony, and no prejudice had accrued to his defence.
The appeal was dismissed by a majority of the High Court, with Gleeson CJ, Heydon and Kiefel JJ forming the majority, and Gummow and Kirby JJ dissenting.
Orders
Orders of the court
Appeal dismissed. (By the majority in individual judgments, Gummow and Kirby JJ dissenting)
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
GLEESON CJ
GUMMOW AND KIRBY JJ
HEYDON J
KIEFEL J
Quite aside from these concerns about institutional integrity and the distinct role of prosecutor and judge, the requirements of procedural fairness apply no less to the amendment of informations than to any other aspect of the criminal trial[33]. Where the judge realises that there is a defect in the information, the proper course is to draw the defect to the parties' attention and to indicate that it is for the prosecutor to apply for an order that the information be amended. Such a course would allow the prosecutor to seek the amendment should she or he so wish, and would allow the defence to raise any submissions about the injustice or otherwise of the amendment. In this way, the requirements of procedural fairness and institutional integrity would be upheld. This procedure was not adopted in the appellant's trial.[33]cf R v West [1948] 1 KB 709 at 717.Conclusions The purported amendment made by the trial judge was defective in two respects: first, because her Honour had no power to make it as no application had been made by counsel; and secondly, in the case of the statement of the offence (but not the particulars), because there was no notation of the purported amendment on the information itself. Because the trial judge misconstrued her powers of amendment, the appellant's conviction was therefore attended by a "wrong decision on [a] question of law" within the meaning of sub‑s (1) of s 353 of the CLCA, and subject to consideration of the proviso his appeal should be allowed. The precise significance of the defective amendment caused some confusion in the submissions to this Court. On the one hand, the appellant submitted that, being an order of a superior court of record[34], the order for amendment made by the trial judge (or the appellant's conviction of the count as amended) stood unless and until set aside. However, while its status as an order of a superior court would bind an inferior court and also preserve the order from attack in collateral proceedings, the order was liable to be set aside, and could be so set aside in appellate proceedings. The applicable principles were detailed by McHugh J in Ousley v The Queen[35].[34]District Court Act 1991 (SA), s 5.[35](1997) 192 CLR 69 at 99. For that reason, the respondent properly and correctly submitted that if (as has turned out to be the case) the judge's order was made without power, the appellant stood convicted of count 1 as amended on the second day of trial and not otherwise. That is to say, he was convicted of indecent assault contrary to s 70(1)(c) of the CLCA between 24 October 1971 and 1 May 1973. Accordingly, the appellant was convicted of an offence that was not known to the law at the time he was found to have committed it, namely in October 1973. The proviso The respondent submitted that notwithstanding these irregularities in the appellant's trial no miscarriage of justice occurred in the particular circumstances of the case, as the appellant was convicted upon his own testimony for an offence the substance of which he admitted. The respondent pointed to R v DD[36] as a case in which, notwithstanding the accused had been convicted of a statutory offence that was not in force at the time of the alleged offending, the Victorian Court of Appeal held that no substantial miscarriage of justice had occurred. This was said to be so because an equivalent offence continued to exist at common law and "no prejudice in the form of misinformation, lack of information or embarrassment in presentation of defence accrued" to the accused by reason of the misdescribed offence[37]. In the present case, a substantial miscarriage of justice was also said by the respondent to be absent on like grounds, and in addition because the appellant never denied his guilt and was convicted upon his own testimony.[36](2002) 5 VR 243.[37](2002) 5 VR 243 at 254.
Ratio Decidendi
Legal Principle Established
Established by:
GLEESON CJ,
GUMMOW AND KIRBY JJ,
HEYDON J,
KIEFEL J