Ayles v The Queen

[2007] HCATrans 622

[2007] HCATrans 622

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A40 of 2007

B e t w e e n -

RAYMOND FREDERICK AYLES

Applicant

and

THE QUEEN

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HEYDON J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON TUESDAY, 23 OCTOBER 2007, AT 2.44 PM

Copyright in the High Court of Australia

MR A.L. TOKLEY:   May it please the Court, I appear for the appellant.  (instructed by Townsends)

MR C.J. KOURAKIS, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MR S.A. McDONALD, for the respondent.  (instructed by Director of Public Prosecutions (SA))

GLEESON CJ:   Yes, Mr Tokley.

MR TOKLEY: Thank you, your Honours. Your Honours, the central question in this appeal concerns the proper construction of section 281(2) of the Criminal Law Consolidation Act (SA). Your Honours will find that section in the slim volume of papers which have been provided to your Honour from the appellant. But before I take your Honours to that subsection, may I say that it will be my contention that the central question is whether that section empowers a trial judge to amend an information if the effect is to substitute a new charge and new particulars pertaining to that charge and, if that can be done, could the amendment in this particular case be made without causing an injustice either because the accused was not re‑arraigned or because he had lost the opportunity to plead to a lesser offence?

The third question in the case is whether section 353, otherwise known as the proviso, applies or whether the failure to re‑arraign the accused constitutes a fundamental departure from what is called one of the presuppositions of the criminal trial. 

Your Honours, in my submissions this afternoon I am going to adopt the following structure. First, I would wish to take your Honours to some of the factual matters which are relevant to the questions. Secondly, to then look at the trial judge’s reasons and, in particular, those parts of her reasons where she was dealing with the amendments to count 1 of the information, to then take your Honours to section 281 and to make some brief submissions in relation to that and also the question of injustice.

Your Honours, could I first of all turn to some of the factual matters that are important in this matter and I wish to take your Honours to these facts to make a particular point and if I could just outline that point to begin with.  At the start of the prosecution case or at the start of the trial in this matter when the accused was arraigned and he pleaded not guilty the particulars in count 1 alleged dates between 24 October 1971 and 2 May 1972.  The complainant in this particular case was born on 2 May 1959 so that 2 May 1972 was his 13th birthday. 

When the prosecutor applied for and was given permission to amend the particulars – and that was done by consent and I will take your Honours to the relevant passages and also to the amendment of the information itself – the date was extended from 2 May 1972 to 1 May 1973. So that then took it out to the 14th birthday of the complainant. When her Honour the trial judge amended the information, she not only amended it so as to delete section 70, which was the section with which the accused was originally charged, and substituted section 69 but she also amended the particulars to the 31st day of October 1973.

GLEESON CJ:   Mr Tokley, there is a statement of fact made by the trial judge in her sentencing on the top of 283 in the second complete sentence.  Was the offer there referred to formal or what is the, as it were, evidentiary basis for what she is saying there?  Is that something that went on before her or what?

MR TOKLEY:   Your Honour, I do not think there is any evidence of a formal offer being made to that effect.  It may have been something mentioned in the accused’s counsel’s closing addressing at the trial at the stage of sentencing.  There is certainly nothing in the appeal book that I have seen which indicates that there was a formal offer to plead guilty to the charge if it had identified a date in October 1973.  I may be correct on that, your Honour, but can I take the opportunity to perhaps, while my learned is on his feet, to check that point?

GLEESON CJ:   Certainly.

MR TOKLEY:   I am grateful to your Honour for bringing it to my attention.  Your Honours, could I ask the Court to take up the appeal book.  If I could take your Honours to page 1 of the appeal book first of all.  Your Honours will see on page 1 of the appeal book the statement of the offence and it is the first count that we are concerned with and only the first count that we are concerned with.  Your Honours will see there are some handwritten notations in relation to the first count.  Perhaps if I could ask your Honours first of all to go to the particulars of the offence and you will see that “2nd day of May 1972” had been crossed out and above that there were written the words “1^st day of May 1973”. 

That amendment occurred on 6 June 2006 and in the bottom right‑hand corner of the information your Honours will see a printed handwritten note amended by consent by her Honour Judge Simpson on 6 June 2006 and signed by her Honour. Then, going straight above that, your Honours will see another handwritten note amended by her Honour Judge Simpson on 16 June 2006 and again signed by her Honour. That was the amendment made on the day that her Honour delivered her judgment and it seems only to recognise that the words the “31st day of October 1973”. No amendment was made to the actual statement of claim in the sense that section 70(1)(c) remains there and was not amended on the information.

Your Honours will find the plea of not guilty to count 1 on page 16 of the appeal books.  Could I take your Honours then to page 80 of the appeal book and, your Honours, between line 10 to line 25, this is part of the prosecution opening, and the prosecution opening I think I can summarise in this way, that counts 1 and 2 related to a particular occasion complained to the court and it involved the touching of the complainant on his penis, lines 20 through to 23.  It is alleged by the prosecution at lines 24 and 25 that it occurred when the complainant was 12 years of age.  So that fixes the date around about 1971 because the complainant was born on 2 May 1959 and he was 12 in 1971. 

After the complainants gave evidence, there was an application by the prosecution to amend particulars to accord with the complainant’s evidence.  Your Honours will find that beginning on page 77 of the appeal book at line 19 where the prosecutor indicates that she wishes to make an application.  That then continues over the page, page 78, where your Honours will see the prosecutor saying, “My application is to amend the particulars in relation to counts 1, 2, 3, 4 and 5” beginning at lines 1 and onwards and it is that application to change the outer date of the particulars from the 2nd day of May to the 1st day of May 1973.  The reason for that application is stated in line 8:

The basis of that is Mr Tolley gave evidence he believed he was 13 years of age at the time that the occasion charged as counts 1 and 2 occurred and, therefore, I seek leave to make that amendment.

At line 26 her Honour says, “Was the amendment of count 2 the same as that for count 1?”  Although in this particular case the amendments never seem to have travelled through to count 2 although counts 1 and 2 were said to have been on the same occasion.

GUMMOW J:   What is the status of these annotations on the information?  Because I notice that on 6 June there is an indication that the DPP made an application to amend, it was not opposed and that the judge amended, et cetera.  There is no notation for the 16th that is relevant.  That is the date of delivery of judgment.

MR TOKLEY:   That is correct, your Honour, because strictly speaking there was no explicit application by the prosecution to amend count 1 on 16 June.  That only occurred when her Honour amended the ‑ ‑ ‑

GUMMOW J:   But to what earlier date was the Full Court referring when it said there had been an informal application?

MR TOKLEY:   I will take your Honours to that passage.

GUMMOW J:   Yes, I know, but on what date of the trial was that meant to happen?

MR TOKLEY:   That was the third day of your trial, your Honour.

GUMMOW J:   Which would be the 7th, would it?

MR TOKLEY:   I think so.

GUMMOW J:   Looks like it.  Anyhow, there is no notation on the 7th of any application.

MR TOKLEY:   That is correct, your Honour.  It was the third day of the trial, 7 June, and your Honour is quite correct, there is no notation. 

GUMMOW J:   Is there anything in South Australian procedure that indicates these notations on the information have a formal significance?

MR TOKLEY: Your Honour, so far as I know, there are no rules referring to such notations. There is a requirement under section 281(3).

GUMMOW J:   It says, “a note of the order for amendment shall be endorsed”.

MR TOKLEY:   Yes, your Honour.

GUMMOW J:   That never happened here.

MR TOKLEY:   No, your Honour.  That is correct, your Honour.

GUMMOW J:   How can the information be treated as having been presented in amended form?

MR TOKLEY:   That is certainly a point that is open to the appellant to be made, your Honours.  My learned friend, Mr Kourakis, I think argued before the Court of Criminal Appeal that the note can be made at either a later stage or that the ‑ ‑ ‑

GUMMOW J:   Yes, but at some stage.  It has never been made at any stage.

MR TOKLEY:   It has never been made at any stage, your Honours, no.  Your Honour is quite right.

GUMMOW J:   Presumably the judge is functus after that date of the 16th.

MR TOKLEY:    Yes, your Honour.  Your Honours, could I just continue with the chronology.  At page 81 of the appeal book you will see where her Honour the trial judge deals with the making of amendments.  At page 139 of the appeal book beginning at line 33 is the passage that is sometimes referred to I think by his Honour the Chief Justice in the court below, Chief Justice Doyle, and over the page to page 140.  In particular, Chief Justice Doyle in the court below said that the matters referred to on those pages gave the accused’s counsel the opportunity to raise with her Honour the question of whether the accused had any difficulty with the changes but did not do so. 

We respectfully take issue with the learned Chief Justice’s views and say that the matters referred to on pages 139 and 140 of the appeal book do not indicate in the terms expressed by his Honour that the accused’s counsel was in fact given the opportunity that his Honour said he was given.

GUMMOW J:   This was all happening in the District Court.

MR TOKLEY:   Yes, your Honour. 

GUMMOW J:   Is that a court of record for this purpose under the South Australian legislation?

MR TOKLEY:   I think it is, your Honour.

GUMMOW J:   Anyhow, someone will tell us that.  I imagine it is.

MR TOKLEY:   Yes, I am almost certain it is.

GUMMOW J:   That is the relevant record of the court other than this unendorsed information.  These are basic questions.  People used to be hung on this sort of point.

MR TOKLEY:   Yes, your Honour.  I was trying to recall the section which describes the District Court as a court of record.  The information is the record, your Honour, and that is why the handwritten matters are recorded on the back of the information but also a separate copy of the record is kept, so to speak, by way of a transcript of proceedings which is also kept in the court file, but whether the transcript forms part of the official record of the court, I will have to check that point, your Honour. 

GUMMOW J:   Yes, it is quite important really.

MR TOKLEY:   I understand, your Honour.

GUMMOW J:   If you do not start at the foundations of the judicial structure, we will not be able to understand the complaint of the non‑observance of it.

MR TOKLEY:   Thank you, your Honour.  If I could just continue with the chronology.  The point of taking your Honours through this is really to make two points.  One is that there are a number of parts of the judgment of the court below where it seems that his Honour the Chief Justice relied upon matters that occurred.  With great respect to his Honour the Chief Justice, I am not sure if the transcript reflects what his Honour the Chief Justice thought occurred.  That is one point.

The second point and my final submission on this will be that when one looks at what the prosecutor was doing, she was trying to keep the relevant dates between one date beginning October 1971 and the relevant birthday of the complainant. It was her argument to the trial judge that the incidents occurred not as late as the accused said it occurred, which was October 1973, but at a much earlier point in time in 1972 so that at that much earlier point in time, on the prosecution’s case, she was within the operation of section 70 of the Criminal Law Consolidation Act. On the case that she was putting to her Honour the trial judge there was no need for her Honour to go beyond section 70 and to rely upon section 69, although I accept that at one point in time the prosecutor said that she was relying on section 70 or section 69 but that was because the relevant amendment occurred on 9 November 1972 and by particularising a date in May 1973 theoretically it crossed over into the area of section 69.

In fact, all of the learned prosecutor’s submissions were to the effect that the offending occurred at a much earlier date. I make that point, your Honours, because to a certain extent it underpins my submission that when the learned trial judge sought to substitute section 69 for section 70, she did so because she first of all considered that the relevant offending occurred in October 1973. She was not relying upon any application made by the prosecution and she was not relying upon the prosecution’s version of when the relevant offence occurred. She was relying upon her own findings of fact and then, having made a decision about what those findings could be, she then decided to extend particulars and that entailed necessarily a decision as to which section should apply. Her Honour then amended, but only in her judgment, the particular section in the count.

GUMMOW J:   I am sorry to keep going back, but there is an endorsement, square box, “DATA ENTRY”, do you see that?

MR TOKLEY:   Yes, I do, your Honour.

GUMMOW J:   Does that indicate some system of electronic recording as well?

MR TOKLEY:   Yes, there is, your Honour.

GUMMOW J:   The Solicitor will tell us more about that, I am sure, and whether there is any statutory basis for that and what it is that is the record of the court.

MR TOKLEY:   Your Honours, could I just complete the last point I was making by inviting your Honours’ attention to page 179 of the appeal book and to lines 14, 15 and 16.  It was there that the prosecutor put to the complainant when the physical contact commenced and how old the complainant was at that particular point in time.  Given his age and given that he turned 13 on 2 May 1972, the offending would have to have occurred some time in 1972 and some time between his 12th and 13th birthday. 

The prosecutor at page 189 beginning at line 1 said that the dates and the particulars were not material and that is a submission that is repeated by my learned friends in the respondent’s submissions.  In this particular case the dates were not material.  With respect, your Honours, the dates for the particulars were material not only to identify the occasion, but also to identify the ages of the particular persons and also the relevant section to be applied.  Although the authority referred to in line 11 on page 189 does refer to materiality of particulars. and that is one of those authorities that is on my learned friend’s list of authorities, whether a date ‑ ‑ ‑ 

KIRBY J:   The complainant was asked directly at 62 to 63, “how old you were the first time” but that was when he took him flying.  He said, “13, 14”.  So when was that in relation to the sexual events?

MR TOKLEY:   The flying was meant to have occurred just before the sexual offending, your Honour.  Finally, your Honours, to page 196 in relation to the evidence, lines 30 through to 33, the prosecution’s submission:  

In my submission, this supports the conclusion that the touching began at least before that first Flinders Ranges trip in 1972.

The Flinders Ranges trip was in May 1972 and that is apparent from line 16 on that particular page.  Could I then take your Honours to page 250 of the appeal book.  Your Honours will see there that on 16 June her Honour delivered the verdict and then published her reasons.  There is nothing in the appeal book or in the transcript, your Honours, which indicates that at any point in time before this date either prosecution or defence counsel was aware of her Honour’s intention to amend the count.  Could I take your Honours please to appeal book page 262 beginning with paragraph 51 on that page.  Your Honours will see her Honour considered that the first instant:

occurred not as charged in accordance with the particulars to count 1 on the Information but instead, shortly after 6 October 1973.

Her Honour then dealt with the submissions of the prosecution in relation to the materiality of dates and then down towards the very bottom of that page her Honour said:

For the accused to be found guilty of count 1, the particulars on the Information require further amendment, by substituting another date for 1 May  1973, a date some months later.  If this were a jury trial, the jury would have to be directed that it did not matter . . . In the circumstances as I have found them, the relevant section of the Criminal Law Consolidation Act 1935 also requires amendment.

Her Honour then refers to the amendment in the next paragraph.  Her Honour says in paragraph 58, “I amend count 1 on the Information as follows”, although, as your Honour Justice Gummow mentioned, there was nothing done to the information itself.  In paragraph 59, “I find the accused guilty of the charge in count 1 on the Information as amended.”

GUMMOW J:   She did not amend count 1 on the information.

MR TOKLEY:   No, your Honour, she did not.

GUMMOW J:   She indicated an intention to do so.

MR TOKLEY:   Your Honours, although her Honour the trial judge does not refer to section 281 of the Criminal Law Consolidation Act, the appeal before the court below was argued on the basis that the relevant section concerning the amendments of informations was section 281.

GLEESON CJ:   Presumably, what appears on page 263, paragraph 58, if it is to be read conformably to the statute, was that that was an order for amendment.

MR TOKLEY:   Yes, your Honour, that is the argument that is put against us. 

GLEESON CJ:   She took the view, as expressed on page 263, line 4, that she had an obligation to make the amendment or, more accurately, she took the view that she had a statutory obligation to make an order for amendment.  She said, “the relevant section . . . requires amendment”.

MR TOKLEY:   Yes, your Honour.

GLEESON CJ:   I presume that means the relevant section requires the making of an order for amendment.

GUMMOW J:   We have got to section 281(2), have we not?

MR TOKLEY:   Yes, your Honour.

GUMMOW J:   She had made an order for the amendment, right?

MR TOKLEY:   Yes, your Honour. 

GUMMOW J:   That seems to appear at page 263 but that is not the end of the story because it is only effective if 281(3) is followed.

MR TOKLEY:   Yes, your Honour, that is correct.  That is certainly one of the arguments that we have put, your Honour.  Could I just answer your Honour the Chief Justice’s question though.  Your Honour, the relevant section I think that her Honour is referring to there follows immediately in the next paragraph and it is section 69.  So her Honour is not referring to the relevant section of the Criminal Law Consolidation Act which requires the amendment but ‑ ‑ ‑

GLEESON CJ:   I see, that is, “I am required to amend the identification of the section of the” – yes, I see that.

MR TOKLEY:   Yes, in count 1, your Honour.

GLEESON CJ:   Yes, that seems right.

MR TOKLEY:   Because the words “also requires”, yes. Thank you, your Honour. Your Honours, it is probably appropriate if I come to section 281 as we have been dealing with it. It is fairly clear this section has its origins in the United Kingdom Indictments Act 1915 and section 5 has very similar provisions and section 281(2) may in fact have been derived from the even earlier, I think, Jervis’ Act 1876 or thereabouts.

HEYDON J:   It is 1848.

MR TOKLEY:   Yes, your Honour is quite correct, there was an 1848 version and then an 1876 version. In particular, section 281(2) bears substantial similarities between those two sections. Your Honours, in my respectful submission, and it is made at length in the written submissions, the proper construction of section 281(2) has to take into account not only its history but the subsequent changes in the law that have occurred, for example, the introduction of the Director of Public Prosecutions Act and the responsibility the Director has imposed upon him under that Act for the laying of charges. As well as section 281 of the Criminal Law Consolidation Act there are in the book that has been handed up other sections referring to section 281(2), for example, 274 and 275 of the Criminal Law Consolidation Act which allows for the filing of informations by the Director of Public Prosecutions and says that in so filing them the Director may comply with what is required to comply with the ordinary rules regarding filing of informations.

Section 281(2) ought not to be construed as if it stood alone and apart from not only the other subsections that appear here, but also the other sections within the Act.  One of the arguments that we advance is that the end result of what her Honour the trial judge did here was to, in effect, usurp the role of the prosecutor and by substituting a new charge lose the mantel of the impartial umpire that she was supposed to be.

GLEESON CJ:   Just before you come to that, again in relation to section 281, it is more accurate to say, is it not, that what happened under subsection (3) was a partial note of the order for amendment?

MR TOKLEY:   Yes, correct your Honour.

GLEESON CJ:   If the order for amendment is that which appears on page 263, paragraph 58, then what appeared on the information was a note of a part of that order, that is to say, the part of it that appears under the heading, “Particulars of Offence”.

MR TOKLEY:   Yes, your Honour, that is certainly an argument that can be put. Your Honours, could I just take up your Honour the Chief Justice’s point and your Honour Justice Gummow’s point and the point, in particular, your Honour Justice Gummow was making about the information having been presented in the amended form. One of the complaints that was made was that the amendment appears only at judgment itself. The verdict of her Honour is pronounced and then her reasons are published so it is only at the very end of the proceedings is notification given. At that point in time, for all intents and purposes, the trial is at an end save for the question of sentencing and, in my respectful submission, section 281(3) seems to proceed on the assumption by use of the words “as having been presented in the amended form” that there will be continuation of the trial once the amendment has been made. It certainly uses the words “for the purposes of the trial and all proceedings in connection therewith” including presumably sentencing.

GLEESON CJ:   By the way, the trial judge made a report.

MR TOKLEY:   Yes, she did, your Honour.

GLEESON CJ:   Was she asked to do this or was that volunteered?

MR TOKLEY:   No, there is provision under the Criminal Appeal Rules, your Honour, for reports to be obtained from the trial judge.

GLEESON CJ:   And they asked for a report?

MR TOKLEY:   They asked for it.  It is customary to ask for a report, your Honour.

GLEESON CJ:   Customary?

MR TOKLEY:   Customary, yes, your Honour. 

GLEESON CJ:   And did her report deal with this question of what went on in relation to the physical matter of amendment?

MR TOKLEY:   No, your Honour, it did not.  What her Honour covered in her report were the applications of the amendment.  She did not say how the change physically was made on the information.  She did not cover that if that is what your Honour’s question was directed towards.

GLEESON CJ:   Yes.

MR TOKLEY:   Her Honour did not mention in her report physically how these matters occurred, at least not in my recollection.  Her Honour’s report begins at page 305 of the appeal book.  In paragraph 3 you will see her Honour, the trial judge says, “On the second day of trial, the Crown prosecutor applied for leave to amend the particulars”, et cetera, and those are the parts of the transcript that I have already taken your Honours to, those referred to in paragraph 3.  I have also taken your Honours to the transcript references for paragraph 4 of her Honour’s report as well. 

KIRBY J:   What do you say in relation to that report?

MR TOKLEY:   Your Honour, it is an accurate report, save and except that her Honour in paragraph 8 states that:

The appellant’s counsel was given an opportunity to raise with me, either at that time or later, any difficulty arising in respect of which section might apply to the charges, including count 1.

With great respect to the learned trial judge, your Honours, the counsel for the defence was dealing with the matter in the context where the prosecution were talking about the offending having occurred around about the complainant’s 12th birthday and not at some later date in October 1973.  That is point number one.  Point number two, I have taken your Honours to the relevant part of the transcript and, with respect, that does not clearly indicate that that is a correct summation of the position.

GLEESON CJ:   By the way, there is the answer to the question I asked you earlier in paragraph 11 on page 307.  It is some information that came to her during the sentencing proceedings.

MR TOKLEY:   Yes, your Honour is quite right, thank you.  I knew I had read it somewhere, your Honour, but not quite where. 

HEYDON J:   Mr Tokley, of what significance is it that the plaintiff’s counsel did not have an opportunity to raise any difficulty, which is your submission?  What is the significance of it?  Is not your argument sort of naked, clear argument about power?

MR TOKLEY:   Yes, your Honour, it is.

HEYDON J:   So what could have been said by any counsel for the accused that might have altered the outcome?

MR TOKLEY:   Your Honour, the relevant subsection has a qualification to it, or at least section 281(2) is conditioned upon the fact that it does not cause any injustice so, presumably, the counsel for the accused could have said, “If you amend count 1 now to plead a different section and we leave the particulars the way they are, that may cause us an injustice”.  You would have to amend both the count and the particulars and give us the opportunity to replead to it. 

HEYDON J:   Replead?

MR TOKLEY:   That is right, yes.

HEYDON J:   How do accused people plead?

MR TOKLEY:   Have the accused rearraigned.

HEYDON J:   To plead guilty or not guilty?

MR TOKLEY:   Yes, your Honour. 

HEYDON J:   And you are saying there could have been a plea of guilty at that stage?

MR TOKLEY:   No, your Honour, on the count as first unamended there was a plea of not guilty and the accused would not have pleaded guilty at that stage.  On the count as first amended by application of the prosecution it still did not cover the relevant dates.  It would only have been when her Honour amended the particulars and amended the section could the accused then properly plead to it.

HEYDON J:   The loss of this opportunity to plead guilty for the third version of the information is a matter of prejudice, are you submitting, is a relevant matter?

MR TOKLEY:   If I am wrong on the argument about power, your Honour, and there was no power to substitute a new charge, assuming I am wrong about that, the question then is, was the amendment defective within the meaning of section 281. If it was defective, the exercise of the power to amend the information depends upon whether it can be done without injustice and then it is to that point that the question of whether the accused should have been rearraigned and should have been able to plead is relevant.

GUMMOW J:   Section 281(2) is expressed in a mandatory form, is it not?  It says, “the court shall . . . unless”.  That is the way it is cast.

MR TOKLEY:   Yes, your Honour. 

GUMMOW J:   And the condition for the arising of the duty is when it appears to the court, right?

MR TOKLEY:   Yes, your Honour.

GUMMOW J:   How does it appear to the court, do you say?

MR TOKLEY:   It is my submission that the court cannot inform itself of its own accord even if it is aware of a potential defect.  It would have to be on the basis that an application is brought by the prosecution to amend and the reason I say that is because in its terms it appears that provided it appeared to the court that it was defective, the court was then obliged to make the order.  If that was the correct construction, it would turn the court, in effect, into an investigative prosecutorial body because it would then require the court to make an amendment alleging a different section and to make amendments to the particulars if it became apparent to the court that the accused was guilty of an offence but that the offence did not occur within the dates alleged by the prosecution.  That is a rather inelegant way of expressing the point but, in my respectful submission, this particular subsection was intended to operate when the prosecution made an application alleging that the information was defective.  I think, in almost all, if not all, of the authorities, the English authorities on my learned friend’s list of authorities, there were applications being made by the prosecution.

GUMMOW J:   Yes, I was going to ask you that.  As you understand it, is there anything in the English authorities to which the Solicitor refers which illustrate the case where the court acted without an application?

MR TOKLEY:   No, your Honour, not in my reading of them.

GUMMOW J:   But they do take a fairly elastic view, do they not, with the phrase “at any stage of a trial”?

MR TOKLEY:   Yes, they do, your Honour.

GUMMOW J:   Do you dispute that?  In other words, that it was not too late to have moved at the time of delivery of reasons if everything else had been equal.

MR TOKLEY:   Yes, your Honour, I have to accept that.  I think there is authority to the effect that the trial only comes to an end upon the recording of the conviction and that had not occurred at that stage.  Your Honours, could I invite you to take up the slim book of papers that have been provided.  Your Honours should have within that slim book, behind tab 9 where you will find a number of sections, but could I ask your Honours to turn to section 275.  Is there a copy of section 275 there?  Your Honours, that is the section which I was referring to earlier about the information may be presented in the name of the Director of Public Prosecutions.

GUMMOW J:   Why does that make any difference?  Assume you did not have a DPP Act in South Australia and these things were done in the old way.

MR TOKLEY:   It would then be in information of the Attorney-General?

GUMMOW J:   Yes.  Why would it make any difference to your construction of 281?

MR TOKLEY:   It should not make a difference as to whether it is the Attorney-General or the Director of Public Prosecutions.  It should make a difference though to define the respective roles of the prosecutorial authorities and the judicial authorities.

GUMMOW J:   Yes, that is a separation of powers point, basically.

MR TOKLEY:   It is, yes, your Honour, and section 275 was relevant to that point. 

GUMMOW J:   I see.

MR TOKLEY:   Your Honours have that point, I do not need to labour it.  The only other part I was going to mention was, and your Honours will be familiar with this, in the schedule to the Criminal Law Consolidation Act, rule 4(3), which is referred to in my submissions, it quotes the relevant rule. It says that if a section is relied upon for the purposes of the offence the section itself must be stated as part of the statement of the offence.

Your Honours, I have mentioned in response to your Honour Justice Heydon’s question the point as to whether, assuming I am wrong about the question of power and there was power to make the amendments here, that it could be done without an injustice and the written submissions refer to the fact that the accused was not rearraigned.  It is implicit in the Criminal Law Consolidation Act that when an accused is arraigned he has the opportunity to plead guilty or not guilty, of course, and that is one of the relevant sections.  Your Honours, one of the authorities that we refer to on our list of authorities is R v Martin, a decision of the English Court of Criminal Appeal, and there it is doubted whether a new count can be added after the arraignment because it is more likely than not to cause injustice to an accused person.

HEYDON J:   What exactly is the injustice?  If your client had pleaded guilty when the amendment was eventually made, what advantage would that have been over and above his conduct in the witness box which indicated a willingness in effect to plead to the acts alleged?  What advantage would there have been in a formal plea a little later?  What advantage, in terms of sentencing gains or anything else?  I am just having trouble seeing where the injustice is.

MR TOKLEY:   I am sorry, I may have misunderstood your Honour’s question.  If there is power to make the amendment and the amendment is made and the accused is given the opportunity to plead to it then no injustice arises because at that point ‑ ‑ ‑

HEYDON J:   Your argument is that he was not given the opportunity to plead to it?

MR TOKLEY:   Yes, your Honour.

HEYDON J:   But where is the injustice?  He could have either maintained his plea of not guilty or he could have pleaded guilty.

MR TOKLEY:   Yes, your Honour.

HEYDON J:   The loss of the opportunity to plead guilty does not seem to carry any particular disadvantage to him.

MR TOKLEY:   It carries injustice in the sense of the loss of opportunity to exercise his right, your Honour, although not necessarily injustice in the sense that it might have had a significant effect on any sentence that was being imposed, so the mere loss of opportunity to exercise the right to plead is an injustice.

HEYDON J:   I understand what you say.  It does not seem to bear much concrete correspondence with reality, as it were.  It is a mere right.

MR TOKLEY:   That is certainly one way in which it can be looked at, your Honour, but I would, with respect, disagree.

GUMMOW J:   It says:

unless, having regard to the merits of the case, the required amendment cannot be made without injustice –

It is not injustice floating at large.

MR TOKLEY:   No, I accept that, your Honour.  Your Honour is quite right.  It does pose a problem for us.

GUMMOW J:   What do you say about paragraph 47 of the Solicitor’s submissions on page 16, you are said to be “misconceived” “factually and legally”, but putting that rough language aside for a minute, what about the sentence:

The amendment reflected the very application to amend that had foreshadowed by the prosecutor.  As a matter of construction, the power . . . does not depend upon an application by the prosecutor.  The power arises when “it appears to the Court –

et cetera.

MR TOKLEY:   Yes, your Honour.  For the reasons we have canvassed earlier, your Honour, I would disagree with those submissions.  The first, as to the sentence:

The amendment reflected the very application to amend that had been foreshadowed by the prosecutor.

In my respectful submission, that is not correct. The prosecutor did not make any application to extend the particulars to October 1973. In fact, she argued the contrary. She argued that the matter occurred at a much earlier date and there was certainly no application to do so. The prosecutor said that she relied upon either section 70 or section 69, at least that is the way I am treating it for the purposes of the submissions. She did not apply to have one or the other amendment made to it and for the reasons we have canvassed earlier in argument, your Honour, in my respectful submission, the construction given by the respondent to section 281(2) that the power arises when “it appears to the court that any information is defective” would change the character or nature of the court.

The third point, your Honour, is that - I think it is apparent from my learned friend’s submissions, in particular paragraph 41 of their submissions that they say that the defect that arose was the fact that when the prosecutor amended the particulars to the later date of 1 May 1973 that that straddled the two different sections.  Although that was agreed to by her Honour – noted on the information by her Honour and done by consent, for the purposes of my learned friend’s argument that constitutes the defect but nowhere is that identified as a defect by her Honour.  In fact, it would be inconsistent with her Honour’s earlier ruling to identify that as a defect.

GLEESON CJ:   Just a small technical matter but this document begins life as the prosecutor’s information, and it is in fact signed by somebody from the Director of Public Prosecutions Office.

MR TOKLEY:   Yes, your Honour.

GLEESON CJ:   At some stage is it presented?

MR TOKLEY:   Yes, your Honour, it is filed in the Court.  It is on the Court file.

GLEESON CJ:   Right. When the Court, pursuant to section 281, makes an order for the amendment and then subsection (3) says:

a note of the order for amendment shall be endorsed on the information ‑ ‑ ‑

GUMMOW J:   Endorsed by whom?

GLEESON CJ:   Yes, who does that?  Whose responsibility is that?

MR TOKLEY:   That is a good question, your Honour.  As a matter of practice it has always been the responsibility of the associate.

GLEESON CJ:   Yes.  The associate – you can identify the handwriting, actually, or the printing or type, anyway it is not running writing of the associate here who has done this, but the judge has then signed it.

MR TOKLEY:   Yes, your Honour, to indicate her – not so much acceptance but to indicate that it has been approved by her Honour, that the amendment has been noted and approved.

GLEESON CJ:   Is it because the information has been presented that it is, as it were, out of the hands or out of the control of the prosecutor and in the control of the court?  In other words, why should it not have been the prosecutor who did the amending, it being the prosecutor’s information?

MR TOKLEY:   Yes.  Your Honour’s question is a very good one.

GLEESON CJ:   I mean if the court made an order for the amendment of a statement of claim in a civil action, for example, and we do it all the time when people seek leave to amend their notice of appeal, we always say, “and would you mind filing the amended notice of appeal over the luncheon adjournment”.  We do not do anything ourselves.  It seems to be assumed, and I have assumed that it is because of the act of presentment, that what began life as the prosecutor’s information would then be amended by some court officer.

MR TOKLEY:   Your Honour is correct.  It certainly begins as the prosecutor’s information.  It ends up on the court file.  It ends up being amended by the associates and noted by her Honour but I am not aware of either a rule or section which transforms it into the court’s information, so to speak.  I think as a matter of practice it is filed in the criminal registry.

GLEESON CJ:   Leaving aside your attack on the order, one thing that seems to have gone wrong here is that whoever was responsible for doing it, that is the endorsement, made an incomplete note of the order for amendment on the information.

MR TOKLEY:   Yes, your Honour.

GUMMOW J:   Presumably, all this has to happen before the end of the trial.  When one sees “shall be endorsed” one asks, “By whom?” and one also asks, “Before when?”

KIEFEL J:   If charges are to be withdrawn or a nolle entered in South Australia, does the prosecutor have to ask for the information to be returned to him or her from the court?

MR TOKLEY:   I cannot answer your Honour’s question straightaway.

KIEFEL J:   Who enters the nolle, then?

MR TOKLEY:   The practice may have changed because your Honour may be aware that there was a case which came up to this Court called Director of Public Prosecutions v B and B actually looks at the procedure then prevailing in South Australia with respect to the entry of a nolle prosequi and the withdrawal of the information, but I cannot remember whether that practice is still the present practice and, as was noted by this Court in that case, the particular trial judge commented upon the informality with which those things were being done in South Australia at the time.  I stand to be corrected, your Honour, but my understanding is it is very much a matter of practice. 

Your Honours, I do have some submissions in relation to the English authorities but it can best wait until the reply.  The submissions that we have put in relation to the question of whether there has been an injustice and whether the proviso should apply are dealt with in the written submissions.

GLEESON CJ:   Could I ask you a question about that injustice?  There is an aspect of this that I have not followed, Mr Tokley.  The prosecutor lays this charge, No 1, that is all we are concerned with, and leaving aside whatever complication arose from the information recorded by the trial judge in her sentencing remarks, the accused then gets into the witness box and gives evidence which admits charge 1 except for the date.

MR TOKLEY:   Effectively, yes, your Honour.  It can be considered that way, yes.

GLEESON CJ:   Yes.

MR TOKLEY:   Your Honour, then the accused admitted a number of separate occasions when sexual contact took place between ‑ ‑ ‑

GLEESON CJ:   Yes, but this was the first one, was it not?

MR TOKLEY:   That is the point, your Honour, yes.

GLEESON CJ:   It is the same old story, they picked to prosecute on the first time it happened, the last time it happened and ‑ ‑ ‑

MR TOKLEY:   That is correct, your Honour.  Subject to that qualification, yes, your Honour.

GLEESON CJ:   Yes.  The accused’s account of when the first event occurred was about two years later than the complainant’s account, but apart from that it was identical.

MR TOKLEY:   Yes, your Honour.

GLEESON CJ:   What is happening?  What is going on?  What difference did it make as far as the defence case was concerned whether it happened in 1973, I think it was, instead of two years earlier?  Did it go to the seriousness of the offence or something?

MR TOKLEY:   It can do, your Honour, yes.  Your Honour, I think there was a concern, although it is not apparent from the transcript, I think that underlying the approach of the trial counsel was that there was a concern to get the age of the complainant right because not at the time but certainly now consequences flow from whether a person is under 14 or over 14.  If they are under 14 the maximum penalty is increased by two years because it is now an aggravated offence, so there is a two‑year difference in the maximum penalty that can be applied.

Whether that was exercising the mind of the trial counsel I am not aware. The sections at the relevant time do not seem to have distinguished between an aggravated form and an unaggravated form of the offence. If it was indecent assault under section 70 it was seven years, indecent assault under section 69, seven years.

GLEESON CJ:   So it looks as though it was thought to be relevant or possibly relevant to sentencing.

MR TOKLEY:   Yes, your Honour.  I think that is what was motivating - yes.

GLEESON CJ:   I follow.

MR TOKLEY:   Could I ask your Honours, please, if I may finish by inviting your Honours to pages 321 and 322 of the appeal book?  These are the reasons of the Chief Justice in the court below.  If I could ask your Honours first of all to go to paragraph 44 and in particular to the last sentence in paragraph 44.  I think that is where his Honour the Chief Justice picks up from the comment of the report of the trial judge.  Your Honours may recall we touched upon this matter in the special leave application and, with great respect to the learned Chief Justice, in my respectful submission, the transcript does not reflect what is there is there stated.  In paragraph 45 in the fourth sentence his Honour the Chief Justice says:

However, it is clear enough that she wished to have the Information amended as might be required in light of the Judge’s findings of fact.

That may well have been the intention of the prosecutor but, again, with great respect to the learned Chief Justice, it transforms the court if the court is being expected to identify which section is to apply and thereby then proceed to find the accused guilty, depending upon what findings of fact the trial judge will ultimately make.  Your Honours, I am sure, are very familiar with the case of Johnson v Miller.  It has been cited many times but it is pretty clear from that case that the prosecutors are expected to identify the occasion when the offences occurred.  It is not for the trial judge to decide that for them.  Then on page 322, paragraph 48, the second sentence:

The order that the Judge made is, clearly enough, the order that the prosecutor intended to seek if the Judge accepted Mr Ayles’ evidence about the timing of the indecent assault the subject of count 1.

Again, your Honours, in my respectful submission, that sentence is not supported when one reads the transcript.  By the transcript of submissions it was pretty clear that the prosecutor sought to argue not that Mr Ayles’ evidence about the timing of the assault should be accepted, but rather that the complainant’s evidence as to when it occurred should be accepted so, in my respectful submission, that sentence is not supported by the transcript.

GUMMOW J:   This seems to be a view of trial management, is it not?  It is just as well Justice Callinan is not here.

GLEESON CJ:   Is there anything in the addresses of counsel that bears on this?

MR TOKLEY: Not directly, your Honour, no. There are parts of the addresses of counsel which refer to when the first count is supposed to have occurred and there were a number of references during the prosecution at the closing address as to when it is supposed to have occurred and the preference for the prosecutor that it occurred when the complainant was 12‑years‑old and some time in 1972. In the closing address no one goes back to section 70 or section 69 and mentions the indecent assault sections.

There is a reference to section 69 in the context of one of the other counts which was the count of buggery. It seems, your Honours, reading the transcript of the closing submissions, that the prosecution counsel was principally concerned with the complexities of the law relating to the charges concerning buggery rather than the question of whether it was a section 69 or section 70 indecent assault offence.

GLEESON CJ:   Is it your submission that what should have happened here is that when she reserved or after she reserved her decision, noticed the problem, she should have got counsel back and said, “This is the problem.  What do you want to say about it?”  Then, assuming she had heard everything they said she should have then said, “I make this order for amendment” as in the judgment.  Right?

MR TOKLEY:   Yes, your Honour.

GLEESON CJ:   Suppose that had all happened according to Hoyle, but the incomplete note of the order for amendment that we see before us had been made.  What then?  In other words, I am trying to isolate the significance of that matter.

MR TOKLEY:   It is a good question, your Honour, and a difficult one to answer.  There is nothing in the statute which indicates the consequences of the failure to make the note on the information.  I am not aware of an authority of ‑ ‑ ‑

GUMMOW J:   But there is, is there not?

MR TOKLEY:   I am sorry, your Honour.

GUMMOW J:   You read the subsection.

MR TOKLEY:   I am sorry.  I will now withdraw my comment in that case, your Honour.  Did your Honour mean that if it had been made, subsection (3) would apply?

GUMMOW J:   The question is what would have happened if it had not been made?  You said subsection (3) is indicative of no consequence.  I am just inviting you to read the subsection, that is all.

MR TOKLEY:   Yes, if it had not been made, subsection (3) does not itself spout the consequence of it not having been made.  Does that answer your ‑ ‑ ‑

GUMMOW J:   No.

HEYDON J:   But if it is not endorsed on the information does it not follow that the information cannot be treated as having been presented in the amended form but must stand in its pre‑existing form?

MR TOKLEY:   Yes, that follows.

HEYDON J:   That would mean that the conviction must collapse, must it not, because whatever the accused said he admitted to something that was not charged against him?

MR TOKLEY:   That is correct, your Honour, yes.

GLEESON CJ:   Now, what happens if somebody has had a go at endorsing it on the information and has got it half right?

KIEFEL J:   Is there a distinction between amending the particulars of the offence and the statement of the offence?  The particulars of the offence identify the criminal conduct.  The statement of the offence identifies the statutory source.

MR TOKLEY:   Yes, your Honour.

KIEFEL J:   So if you amend the particulars does it follow you have identified the statute?

MR TOKLEY:   No, your Honour, it does not follow, and the court’s authority to decide the matter depends upon identification of the relevant section of the statute.

GLEESON CJ:   We had a slightly similar problem to this very recently, you know, I am trying to think of the name of the case, concerning the malfunction in the computer of the police that produced - as a misdescription.

KIRBY J:   It was a West Australian case.

GLEESON CJ:   No, I think it was a New South Wales case – as a misdescription.

MR TOKLEY:   It was not Blessington and Elliott, was it, your Honour?

GLEESON CJ:   No.

GUMMOW J:   No, that is another problem.

GLEESON CJ:   It was the police officer - I am sure we have given judgment in the case.  It was the police officer who brought an action for trespass when the search warrant ‑ ‑ ‑

GUMMOW J:   For a firearms offence.

GLEESON CJ:   Yes, a search warrant.

MR TOKLEY:   Yes, I remember.  I seem to remember that the misdescription in that particular case did not matter.

GLEESON CJ:   Yes.  It just might be worth a look overnight by counsel at that decision.  I am not saying it bears on this case, but it was a question of the significance that attached to a document that identified the crime but misidentified the section of the statute.

MR TOKLEY:   Yes, and it was held at the end of the day that the misdescription in the warrant did not affect the validity of the warrant even though the statute was misdescribed.

GLEESON CJ:   Yes.  I take it if from what you say that there is no general statutory provision that covers a situation where, as I said, somebody attempts to make an endorsement under subsection (3) and gets it wrong.

MR TOKLEY:   I am not aware of one, your Honour, and I have checked the Acts Interpretation Act as well.  There may have been a section, I suppose, where there is perhaps an attempt to do something properly that will be presumed – it may be a common law presumption that someone attempts to do something properly it would be presumed to have been done properly.  It is certainly not in the Acts Interpretation Act that I have been able to find.

KIRBY J:   Mr Tokley, these statutory provisions for amendment are written against the background of what has hitherto been regarded as an important constitutional principle that the Executive government charges and the judiciary tries.

MR TOKLEY:   Yes, your Honour.

KIRBY J:   And that judiciary does not charge, Executive government normally does not try.

MR TOKLEY:   Exactly, your Honour.

KIRBY J:   Where is the best – it sometimes comes up in our Court in relation to the disposition of matters where one might be inclined to think that the case should be stopped but it is left to the Director of Public Prosecutions because of the responsibility of the Director.  That is the Court respecting the Director.  Where is the best statement in this Court or elsewhere of that basic principle that the committed Executive brings to trial and that the judiciary is not concerned in the commitment ‑ ‑ ‑

MR TOKLEY:   Your Honour, in the list of authorities, and there should be a copy in your Honours’ book, there is Director of Public Prosecutions v B.

GUMMOW J:   That is in 194 CLR 566.

MR TOKLEY:   Yes.  In the decision of their Honours, Justices Gaudron, Gummow and I believe Justice Hayne as well, their Honours quote from Maxwell v The Queen.

GLEESON CJ:   I am sure if it is not ideologically unsound to do so, you will find many judgments of this Court quoting from Connelly v Director of Public Prosecutions and the speech of Lord Hailsham in that.

MR TOKLEY:   Thank you, your Honour.

KIRBY J:   The Chief Justice should not get too sensitive about quoting the House of Lords.

GLEESON CJ:   You will find Lord Hailsham in that case said that one of the reasons judges do not stay prosecutions on the ground that they do not think the prosecution should have been brought is that it is the business of the Executive to decide who should be prosecuted and if judges start doing things like that then people will very quickly assume the prosecutions that are brought are brought with their approval.

MR TOKLEY:   Yes, your Honour, thank you.  Your Honours, I have tried to be very fair in this matter because I have not only got DPP v B on my list of authorities which quotes from their Honours Justices Gaudron, Gummow and Hayne, but I also have on my list of authorities ‑ ‑ ‑

GUMMOW J:   There is quite extensive reference to Connelly by Justice Kirby, actually, in B.

MR TOKLEY:   Yes, your Honour, and there is also Chow which is No 6 on my list.  That is a decision of your Honour Justice Kirby as President of the Court of Appeal in New South Wales and a decision of your Honour the Chief Justice when your Honour was Chief Justice in New South Wales, R v Brown as well and I have quoted the relevant parts from Brown so those three decisions all support the constitutional argument which I put.

KIRBY J:   What is the case in the New South Wales Court of Criminal Appeal?

MR TOKLEY:   It is Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at pages 604 to 605. That is your Honour Justice Kirby’s judgment and his Honour the Chief Justice’s is R v Brown (1989) 17 NSWLR 472 at page 478.

KIRBY J:   Yes, thank you.  What is your short answer to the Chief Justice’s statement in that paragraph where he says there was no unfairness to your client in what was done.  Do you have a short answer to that?

MR TOKLEY:   Yes, your Honour.

KIRBY J:   I am referring to paragraph 51 in his Honour’s reasons at 322.  He says at 50, “There is no intrusion on the role of the Director of Public Prosecutions’ and at 51, “There was no unfairness”.

MR TOKLEY:   Thank you, your Honour.  Your Honour, in my respectful submission, that is not correct because an accused – on one view it may be said that the point that we take is simply a technical one, but on another view these matters are fundamental to the proper criminal process, not only in South Australia but of course throughout Australia, and it is the following of the proper procedures that distinguishes a fair criminal trial from an unfair one.  In this particular case, for the reasons I have canvassed with his Honour the Chief Justice, what should have happened here was her Honour the trial judge should have brought the matter back on, mentioned the difficulty that faced her Honour, invited the prosecution to respond appropriately and given an opportunity to counsel for the accused to respond and then to have made a decision in light of those matters.  That did not occur here, and it follows from that not only that there was unfairness in terms of the procedure adopted, but unfairness in the result as well.

KIRBY J:   So you say what the trial judge should have done when in her chambers she noticed this problem was to order the re‑listing of the matter so that the Director of Public Prosecutions could take the responsibility for any recharging that was made?

MR TOKLEY:   Yes, your Honour.

KIRBY J:   Not her?

MR TOKLEY:   Yes, your Honour.

KIRBY J:   And that your client should be allowed to be heard before any such matter was so‑called amended?

MR TOKLEY:   Yes, your Honour.

KIRBY J:   And be heard on what your client had to say about (a) the making of the amendment and (b) what his answer was to the amended charge?

MR TOKLEY:   Yes, that is correct, your Honour, yes.

GLEESON CJ:   Mr Tokley, what is the order that you say the Court of Appeal should have made?

MR TOKLEY:   That the appeal should be allowed, set aside the conviction on count 1 and remit the matter for the further trial in relation to count 1.

GLEESON CJ:   When the matter was remitted for a further trial in relation to count 1, presumably the procedure that you say should have been followed would have been followed?

MR TOKLEY:   At that point in time, your Honour, new information may have been presented, so that ‑ ‑ ‑

GLEESON CJ:   Whatever happened, would it have been open to the prosecution to tender as evidence the transcript of your client’s evidence before the judge in this case?

MR TOKLEY:   That is a question which I had not prepared an answer for, your Honour.  I think it would have been open to the prosecution to certainly try to do that, yes.

GLEESON CJ:   It could still be done now, could it not?  They could charge your client now under the right section and tender as evidence against him his evidence in this trial?

MR TOKLEY:   That is a difficult question to answer, your Honour.  Obviously, if the conviction stood, which it will not, but if it had, he would have been able to plead it in bar to further prosecution.  If the conviction is set aside, he will not be able to plead it in bar.  So, yes, that would seem to be the way that the prosecution could proceed.  Your Honour, the other aspect of the matter – I press this only faintly ‑ ‑ ‑

GUMMOW J:   This is a point taken up by the Solicitor in paragraph 52 on page 18, paragraphs 52 and 53.

MR TOKLEY:   Yes, your Honour.

GUMMOW J:   I am not sure that was disputed in your reply.

KIRBY J:   What has happened about the serving of the sentence?

MR TOKLEY:   Your Honour, the appellant is in prison at the moment.  He has served a year of his sentence already.  He has another year to go before the non‑parole period expires, so to 6 August 2008.

GLEESON CJ:   I presume there are a number of sentences being served concurrently, is that right?  He pleaded guilty to two offences.

MR TOKLEY:   He pleaded guilty to two.  I think only one four‑year sentence was imposed and with a non‑parole period of two years.

KIRBY J:   What would be the consequence of your success in this appeal, if you were to succeed?

MR TOKLEY:   It is possible, your Honour, that another judge may take the view that the appellant has already served enough time in gaol and that even if a different sentence was to be imposed it would be suspended and for the appellant to have his liberty.  The other option that is canvassed in the submissions is the possibility that the accused could argue that the more appropriate offence was not one that was originally charged of indecent assault, but simply the less serious offence of gross indecency which carries a much less severe penalty.  It is either three to four years compared to the seven years maximum that is available for indecent assault.

I do not seek to downplay the appellant’s offendings, your Honour, but at the end of the day it was simply mutual touching on the part of the accused and the complainant.  There have been much severer penalties imposed in cases for much more serious matters than that.  Your Honours, those are my submissions.

GLEESON CJ:   Thank you, Mr Tokley.  Yes, Mr Solicitor.

MR KOURAKIS:   Your Honours, can I commence by taking your Honours to section 281 to make some submissions about the proper construction of that section and can I deal firstly with subsection (2). Your Honours, subsection (2) empowers the criminal court to make amendments if certain preconditions ‑ ‑ ‑

GUMMOW J:   No, it obliges it.

MR KOURAKIS:   If your Honour pleases, your Honour is quite right, it obliges the court to, if certain preconditions are met, and the preconditions to which I refer are that the:

information is defective or that there is any variation between any particular stated therein and the evidence offered ‑ ‑ ‑

KIRBY J:   That is the particular.

MR KOURAKIS:   Sorry, your Honour?

KIRBY J:   It is not the charge, is it?

MR KOURAKIS:   No, but if there is a variation between a particular of the charge, the statement of offence and the evidence, the obligation to amend in fact extends to that situation and in that respect this provision is wider than section 5 of the Indictments Act 1915 which only oblige the court to make the amendment if the information was defective.

KIRBY J:   It is written against the background of the constitutional principle that I referred to?

MR KOURAKIS:   Yes, your Honour, and since everything is written against that background I will come to that in a moment.  But that obligation extends to “any stage of a trial”, as your Honours can see from the first part of subsection (2).  Your Honours, there is an important break on that obligation and that is that the court is not to make the amendment unless having regard to the merits of the case, the required amendment cannot be made without injustice. 

Lord Chief Justice Widgery in Radley’s Case (1973) 58 Cr App R 394, referred to in the judgment below, made the point that the final qualification in subsection (2) suggests a wider reading of the situations and conditions referred to in the first part of the subsection and accordingly it would follow that one would take a wide view of what is meant by “any stage of a trial” and there is no point about that in this case, but similarly one would take a wide view of what a defect was or a “variation between any particular” and the evidence was because there is ultimately that protection. It has been commented on in a number of English cases that the statute was plainly remedial and meant to do away with the technicalities that had been set – criminal pleadings before the Act in the United Kingdom.

KIRBY J:   Is “defective” in subsection (2) a reference back “formal defect” in subsection (1)?

MR KOURAKIS:   No, and it can be wider, in my submission, and subsection (1) deals with the “formal defect apparent on the face” whereas ‑ ‑ ‑

KIRBY J:   One would not normally read that against the background of a long history and constitutional principle as authorising a judge of his or her own motion to make amendments to a charge that a citizen is faced with and to do so privately in their own chambers and not to bring that to the notice of the Director so that the Director could make his or own decision that the citizen could answer.

MR KOURAKIS:   Your Honour, the line of cases in England that are referred to by the Chief Justice below provide examples of cases where an information was found to be defective because there was a variance between the offences disclosed in the depositions and the counts charged in the information and the indictment and, admittedly, in those cases, as has already been observed, the application was made by the prosecutor in those cases but, nonetheless, that was the wide reading that has been given to the word “defective” in the English statute.

KIRBY J:   Yes, but why should we give it a wide reading that overrides a fundamental constitutional principle?

MR KOURAKIS:   Your Honour, the first reason is that there is that protection for the accused in the final condition in subsection (2), but there is another reason, your Honour, and that is the public interest in the maintenance of certainty in criminal pleadings and that is important because pleas might be taken at a later time, such as autrefois acquit or autrefois ‑ ‑ ‑

GUMMOW J:   Yes, that public interest is enforced by complaints against elected officials in the first instance and, secondly, against statutory office holders appointed by those elected officials.  Judges are neither of those.  That is how the public interest is manifested.

MR KOURAKIS:   Your Honour, in my submission, subsection (2) allows for the public interest in the maintenance of certainty in the criminal records of a court to be overseen – some oversight of that certainty – and the state of the pleadings by the trial court and, in my submission, there is nothing that is inconsistent with the separation of powers between prosecutor and judge in giving some responsibility to the trial court to oversee the state of the pleadings.

GUMMOW J:   What happens if the court does not observe that?  It is a duty of imperfect obligation, is it?

MR KOURAKIS:   If the court does not observe it, there is error and that error on an appeal might produce a certain result, but if it does not observe, it does not mean that the proceedings are a nullity and that would be a very surprising result and there need not be a perfect way of enforcement, if you like, in a duty such as this which is given to the courts.

GUMMOW J:   It is much better to begin at the beginning in accordance with traditional ideas and have an application to the court rather than attack it at the other end of the pineapple.

MR KOURAKIS:   Your Honour, that may have been and obviously was one avenue open to the parliaments that have enacted provisions like this.

GUMMOW J:   But, look, Mr Solicitor, it comes to this; if you wanted to have a construction as you say this bears, you would expect plain words to say so and the plain words are not there.

MR KOURAKIS:   If your Honour pleases, it is an argument that is often made but the plain words that one often sees in a provision such as this is on the application of a party or ‑ ‑ ‑

GUMMOW J:   If the plain words were there, you could have a real Kable problem, it seems to me, because the court would not appear to be impartial.  It will be doing someone else’s job, namely, the prosecution’s job.

MR KOURAKIS:   Your Honour, in my submission, it would not.  It would be undertaking a function which is not at all antithetical or repugnant with the duty of a court, particularly in a criminal pleading, to ensure that there is not uncertainty in criminal process.  Your Honours, can I make this point about the way in which the section has been expressed from 1915 and into present day Australian statutes and it perhaps touches on the concern that has been expressed about subsection (3) and the making of the note.

Your Honours, the criminal process when it depended on presentments of the grand jury meant that the indictment in the superior court in fact came from the grand jury and the indictment was the grand jury’s indictment and for that reason it was recognised at common law that the court in which the proceeding the indictment was tried had no power of amendment over that proceeding.  It was not a prosecutor’s proceeding.  It was the grand jury’s indictment.

KIRBY J:   Were there grand juries in South Australia?

MR KOURAKIS:   Until I think about 1854.

KIRBY J:   That is only from 1836 to 1854.  It did not last long.

MR KOURAKIS:   Yes, it was only for a short time.  Your Honours, the reference has already been made to the Sir John Jervis Acts of 1848 and the introduction of committal proceedings and certainly in South Australia trial on indictment has followed a committal proceeding where, following a committal for trial, an information is filed by the Attorney‑General, but the origin of these Acts, steeped as they are in the procedure that was dependent on the presentment by the grand jury, may be an explanation for the form in which the provisions are expressed, that is, imposing a duty on the court where it appears to it that there was a defect and, in my submission, might also explain the reference in subsection (3) to the making of a note of the amendment without specifying who was to make a note and by when. 

In my submission, nonetheless, when one bears in mind the history of presentments by the grand jury, the assumption implicit in subsection (3) is that the note will be made by the court on the criminal process for it, or at least a clerical officer of the court.  Your Honours, can I go back to make some submissions about other matters arising out of subsection (2) before I finalise my ‑ ‑ ‑

GUMMOW J:   Just before you do that, Mr Solicitor, what is the position with this electronic record that appears to be set up?

MR KOURAKIS:   Your Honour, there is no statutory basis for it.  I will do some further research overnight but I do not think there is any statutory basis on it.  There are criminal rules of the District Court that refer to the records of the court that provide no all encompassing definition of what the record of the court in criminal proceedings is.  As a matter of practice, I am informed that a very broad and wide view of what the records of the court are is maintained. 

I can tell your Honours that historically the most important record in terms of the criminal proceedings of the Supreme Court and the District Court when it was established were the calendars and the monthly lists of prisoners tried and it was to those lists that one went to discover the disposition of criminal matters and until the finalisation of all of the matters on that calendar the court retained the power to revisit any of the orders that it had made.  Other than those very general observations, I cannot help your Honours with anything more about the record but I would seek leave and I am happy to provide a note to your Honours about any other matters that affect that question.

GLEESON CJ:   Mr Solicitor, I am only asking you this question for the benefit of people in the special leave applications.  How long do you think you will require to complete your submissions?

MR KOURAKIS:   I think I would be about another 30 minutes, perhaps 45 minutes.

GLEESON CJ:   All right.  We will adjourn now.  This matter will be listed for further hearing at 9.45 am tomorrow following the dispositions of two special leave applications and the two special leave panels that will be sitting following this appeal will be listed for not before 10.45 am.  The Court will adjourn.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 24 OCTOBER 2007