Bounds v The Queen [2006] HCA 39 20 July 2006 P54/2005
ORDER
Appeal dismissed.
On appeal from the Supreme Court of Western Australia
Representation
I L K Marshall with P G Giudice for the appellant (instructed by Moss & Co)
K P Bates with L M Fox for the respondent (instructed by Director of Public Prosecutions for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Bounds v The Queen
Criminal Law – Appeal against conviction – Miscarriage of justice – Appellant presented in District Court on an indictment charging two offences – The first count, possession of child pornography, alleged an indictable offence – The second count, possession of indecent or obscene articles, was a simple offence only and was wrongly joined in the indictment – No objection taken to the indictment at the appellant's trial – Whether there was a substantial miscarriage of justice because of the wrongful joinder of count two – Whether the conviction on count one should be quashed because the jury had before it evidence on count two which, but for the wrongful joinder of count two, would not have been admissible – Whether the whole indictment was a nullity.
Words and phrases – "indictable offence", "simple offence", "substantial miscarriage of justice".
GLEESON CJ, HAYNE, CALLINAN AND CRENNAN JJ. On 28 May 2003, the appellant was presented in the District Court of Western Australia on an indictment charging two offences. The first count alleged that on 28 July 2001 he had in his possession child pornography, in the form of computer data. The second alleged that on the same date he had in his possession indecent or obscene articles, again in the form of computer data.
The first count alleged an offence under s 60(4) of the Censorship Act1996 (WA) ("the Censorship Act") which, in 2001, provided:
"A person who possesses or copies child pornography is guilty of a crime, and is liable to imprisonment for 5 years."
Because s 60(4) identified the offence as "a crime", it created an indictable offence[1].
The second count alleged an offence under s 59(5) and (8) of the Censorship Act which, in 2001, provided:
"(5)A person must not possess or copy an indecent or obscene article.
...
(8)A person who contravenes subsection ... (5) ... commits an offence and is liable to a penalty of –
(a)in the case of an individual, $5 000 or imprisonment for 6 months;
(b)in any other case, $25 000."
Not being designated as a "crime" or "misdemeanour", this was a "simple offence"[2].
[2]Interpretation Act, s 67;
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
Bounds v The Queen [2006] HCA 39
Case
[2006] HCA 39
Decision Date
CaseChat Overview and Summary
The case of Bounds v The Queen concerned an appeal against a criminal conviction in the District Court of Western Australia. The appellant, Mr. Bounds, was indicted on two counts: possession of child pornography, an indictable offence, and possession of indecent or obscene articles, a simple offence. The latter charge was, by law, not capable of being joined in the same indictment as the former. No objection was taken to the indictment at trial.
The central legal issues before the High Court of Australia were whether the wrongful joinder of the second count constituted a substantial miscarriage of justice, and consequently, whether the conviction on the first count should be quashed. This involved determining whether evidence admitted in relation to the second count, which would not have been admissible but for its wrongful joinder, had prejudiced the appellant's trial for the first count. The Court also considered whether the entire indictment was rendered a nullity by the misjoinder.
The Court reasoned that while the evidence against the appellant on the first count was strong, a conviction must be based on a trial that conforms to essential legal requirements. The impermissible inclusion of the second count, which was not an indictable offence and thus improperly joined, meant the jury considered evidence that should not have been before them. This constituted a substantial miscarriage of justice, as it potentially contaminated the jury's assessment of the evidence relating to the more serious charge. The Court applied the principle that an accused is entitled to a fair hearing, even when facing serious charges supported by substantial evidence.
Ultimately, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
It was to test the consequences of the erroneous inclusion of count 2 on the indictment, and to resolve the differences that had arisen in the Court of Criminal Appeal, that the appellant was granted special leave to appeal to this Court.The facts and legislation The facts: The indictment found by the prosecutor against the appellant was signed on 28 May 2003 by a "Consultant Crown Prosecutor". This was purportedly done pursuant to the Criminal Code (WA) ("the Code") and the Criminal Procedure Rules (WA). The first count charged the appellant that on 28 July 2001 at Esperance he "had in his possession child pornography, in the form of computer data". The marginal note referred to the Censorship Act 1996 (WA), s 60(4). The second count charged him "[f]urther that on the same date and at the same place [he] had in his possession indecent or obscene articles, in the form of computer data". The marginal note referred to the Censorship Act, s 59(5). The facts leading to the presentation of the indictment in the District Court of Western Australia, putting the appellant on trial on the foregoing charges, are set out in the reasons of Gleeson CJ, Hayne, Callinan and Crennan JJ ("the joint reasons"[23]). Also described there are some features of the conduct of the trial; the disposition of the appeal in the Court of Criminal Appeal[24] and the course of argument before this Court[25].[23]Joint reasons at [1]-[5].[24]Joint reasons at [6]-[8], [14].[25]Joint reasons at [9]-[13]. The case presented against the appellant, to establish his guilt of the offence charged in count 1, was extremely strong. In effect, the challenge raised in the Court of Criminal Appeal, and now in this Court, is a technical one; although not entirely so. Technical arguments are no worse for that description if they are well founded in law. Especially so in criminal trials where liberty and reputation are at stake and where these values are commonly protected by insistence on adherence to statutory procedures. Reviewing the trial of the appellant as best one can do on the written record, one might indeed conclude that the evidence against him on count 1 was "overwhelming"[26]. However, even persons facing charges supported by "overwhelming" evidence are, according to our law, entitled to a trial that conforms to law in essential respects. This is what the appellant complains was missing in his case. At the time of the offences charged, he was 20 years of age and an affiliated university student[27]. Clearly, his conviction on count 1, will have serious consequences for his reputation, employment, international travel and future life. These considerations reinforce the importance of ensuring a trial that conforms to law. This means, so far as count 1 was concerned, a trial before a jury uncomplicated by extraneous and legally impermissible considerations.[26]Joint reasons at [29].[27][2005] WASCA 1 at [52]. The legislation: The most important legislation in this appeal is that in which the 'proviso' is stated, as then applicable. Relevantly, at the time of the Court of Criminal Appeal's disposition, s 689(1) of the Code stated:"The Court of Criminal Appeal on any such appeal against conviction shall allow the appeal, if they think that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before whom the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Court may, notwithstanding that they are of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."
This is not a case where the trial judge was able to correct the error of law at the trial by giving accurate instructions to the jury[91]. On the contrary, the impermissible misjoinder was not noticed until after the trial. Consequently, the trial judge gave the jury directions on the legal requirements of the second count. He received their verdict on that count. And he proceeded to enter a conviction on that basis which, it is common ground, was legally invalid.[91]Nudd v The Queen (2006) 80 ALJR 614 at 637 [110]; 225 ALR 161 at 189-190.Conclusion and orders The offence of which the appellant has been convicted is a very serious one for him, a young man who convinced the trial judge that he was not motivated by paedophilic designs[92]. To carry the burden of such a conviction in life demands a trial freed of the errors that occurred here. The trial was fundamentally flawed by the impermissible inclusion of an irrelevant and legally inadmissible criminal accusation. The trial also involved a substantial miscarriage of justice because such inclusion permitted contamination of the evidentiary considerations before the jury by a factor that might have prejudiced the appellant. Ultimately, my conclusion is that stated by Gleeson CJ, and given effect by this Court, in Antoun v The Queen[93]: "Strong as the case against the [appellant] may be, [he was] entitled to a fair hearing." [92]Remarks on sentencing of Muller DCJ, R v Bounds, unreported, District Court of Western Australia, 15 July 2003 at 215.[93](2006) 80 ALJR 497 at 503 [23]; 224 ALR 51 at 57. The appeal should be allowed. The judgment of the Supreme Court of Western Australia (Court of Criminal Appeal) should be set aside. In place of that judgment it should be ordered that the appeal to that Court be allowed; the appellant's conviction quashed; and a new trial ordered.