Director of Public Prosecutions v SC
[2012] ACTCA 30
•June 15, 2012
HUMAN RIGHTS
DIRECTOR OF PUBLIC PROSECUTIONS v SC
[2012] ACTCA 30 (15 June 2012)
APPEAL – Reference appeal – Jurisdiction, practice and procedure – Supreme Court Act
s 37S – Applicant must identify question of law – Question of law must arise at or in relation to proceeding subject to reference appeal – Court’s role in reference appeal – Jurisdiction does not extend to considering error of law – Jurisdiction not invoked – Application dismissed.
Human Rights Act 2004 (ACT), s 24
Supreme Court Act 1933 (ACT), ss 37S, 68B, 68C
Federal Court of Australia Act 1976 (Cth), s 30A
Jurisdiction of Courts Legislation Amendment Act 2002 (Cth), sch 1 item 6
Supreme Court Act 1970 (NSW), s 101A
Attorney-General (NSW) v X (2000) 49 NSWLR 653
Attorney-General’s Reference 1 of 1993 [1994] TASSC 113
Chamberlain v The Queen (No 2) (1984) 153 CLR 521
Director of Public Prosecutions v G (1999) 85 FCR 566
Director of Public Prosecutions Reference No 1 of 1992 (1992) 60 A Crim R 109
Director of Public Prosecutions Reference No 1 of 1999 (1999) 8 NTLR 148
Director of Public Prosecutions Reference No 1 of 1999 (2000) 10 NTLR 1
Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241
Mellifont v Attorney-General (Qld) (1991) 173 CLR 289
MR (2000) 116 A Crim R 23
R v Hillier (2007) 228 CLR 618
R v J (1987) 9 NSWLR 615
R v Keenan (2009) 236 CLR 397
REFERENCE APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 10 of 2011
No. SCC 224 of 2010
Judges: Refshauge, Penfold and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 15 June 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 10 of 2011
) No. SCC 224 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND:
SC
Interested Party
ORDER
Judges: Refshauge, Penfold and Lander JJ
Date: 15 June 2012
Place: Canberra
THE COURT ORDERS THAT:
The application be dismissed.
IN THE SUPREME COURT OF THE ) No. ACTCA 10 of 2011
) No. SCC 224 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND:
SC
Interested Party
Judges: Refshauge and Lander JJ
Date: 15 June 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE AND LANDER JJ:
THE APPLICATION
This is an application by the ACT Director of Public Prosecutions (DPP) for the Court of Appeal to hear and decide questions of law said to arise in relation to a trial in which the Chief Justice of this Court made a finding that the interested party, SC, was not guilty of murder, which was the only count on the indictment. The application is made pursuant to s 37S of the Supreme Court Act 1933 (ACT).
The application sets out the grounds for the reference appeal, which are:
a)In making findings on intermediate issues of fact His Honour erred in considering evidence in isolation and in failing to consider and weigh all of the circumstances established by the evidence relevant to that intermediate issue
b)His Honour failed to consider and weigh all of the circumstances established by the evidence in deciding whether there was an inference consistent with innocence reasonably open on the evidence
c)His Honour erred in failing to include in his judgement applicable principles of law concerning circumstantial evidence and self defence.
d)His Honour erred in not stating:
the reasoning process he undertook linking the principles of law he applied and the finding of facts which he made on the issue of self defence; and
his justification for the findings of fact and conclusion reached on the issue of self defence.
e)His Honour erred in failing to consider the issue of the proportionality of the accused’s attack on the deceased or her failure to retreat in relation to the issue of self defence.
The questions of law to be decided are identified in the application as follows:
a)In making a finding on an intermediate issue of fact, is a trial judge obliged to consider and weigh all of the circumstances established by the evidence relevant to such issue?
b)Is a trial judge obliged to consider and weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence?
c)Does section 68C(2) of the Supreme Court Act 1933 require a trial judge to state the principles of law applied by the judge in determining that the Crown had not proved beyond reasonable doubt that an accused was not acting in self-defence?
d)Does section 68C(3) of the Supreme Court Act 1933 require a trial judge to direct him/herself on the issue of “proportionality” and “failure to retreat” when determining the issue of self-defence?
For the reasons that follow, the application has not engaged the jurisdiction of this Court and should be dismissed.
PROCEDURAL HISTORY
SC was charged on indictment with the murder of Cameron Paul Anderson. She pleaded not guilty to that charge and elected to be tried by judge alone, pursuant to s 68B of the Supreme Court Act.
The trial commenced on 31 January 2011. It proceeded for approximately four weeks, during which time approximately 50 witnesses were called to give evidence. On Thursday 24 and Friday 25 February 2011, the Crown and the defence delivered their closing addresses. At the conclusion of those addresses the Chief Justice said:
Well, if I had a jury I’d be starting to direct it at some point probably this afternoon. I’ll take this afternoon to give myself directions, they won’t be public. But I’ll make them public on Monday. So 10 am Monday?
On Monday 28 February 2011, the Chief Justice delivered an ex tempore judgment and entered a verdict of acquittal on the count of murder.
Section 37S of the Supreme Court Act provides:
(1)This section applies if a person has been charged on indictment in the court and the proceeding in relation to all or any part of the indictment has concluded.
(2)The Court of Appeal may, on application by the Attorney-General, solicitor-general or the director of public prosecutions (the applicant), hear and decide (by a reference appeal) any question of law arising at or in relation to the proceeding.
(3)An application must be made within 6 weeks after the end of the proceeding, or within any longer period allowed by the Court of Appeal.
(4)Either or both of the following people (an interested party) may be heard in the reference appeal:
(a) a person charged in the proceeding;
(b) a person affected by any decision in the proceeding.
(5)If an interested party is not represented in the appeal, the applicant must instruct counsel to argue the reference appeal on the party’s behalf.
(6)The decision on the reference appeal does not invalidate or affect any verdict or decision given in the proceeding.
On 8 April 2011, the DPP lodged the reference appeal in relation to the decision of the Chief Justice, pursuant to s 37S(2).
A person who is charged in the proceeding, or a person affected by any decision in a proceeding (an interested party), is entitled to be heard on the reference appeal: s 37S(4). Section 37S(5) requires the applicant, in this case the DPP, to instruct counsel to argue the reference appeal on the interested party’s behalf if the interested party is not represented in the appeal. In this case, the interested party was represented by senior and junior counsel and in those circumstances the DPP did not need to instruct counsel to argue the reference appeal on the interested party’s behalf.
Any decision on the reference appeal does not invalidate or affect any verdict or decision given in the proceeding: s 37S(6).
On 18 April 2012, before the appeal was heard, the interested party applied to the Court for an order that the reference appeal be struck out as incompetent. The precise orders sought were:
1.That the Application for Reference Appeal dated 8 April 2011 in these proceedings be struck out pursuant to r 5472(1) of the Court Procedures Rules 2006 as incompetent; and
2.That the hearing date for the appeal in this matter be vacated.
3.That the applicant pay the Interested Party’s costs of the application and of the proceedings; and
4.Any other order(s) that this Honourable Court considers appropriate.
The grounds of the interested party’s application were:
1.The Reference Appeal filed by the Applicant does not raise a question of law to be answered;
2.The Reference Appeal is not a proper proceeding and is incompetent;
3.The Reference Appeal breaches the interested party’s common law and statutory right to autrefois acquit.
The application was said to be supported by affidavits of Kelly Irvine, sworn on 18 April 2012, and SC, sworn on a date unknown. SC’s affidavit was never filed or shown to the Court.
Ms Irvine, a solicitor for the interested party, exhibited to her affidavit an exchange of correspondence between herself and the DPP in which she unsuccessfully sought funding for the interested party on the reference appeal. Also exhibited to the affidavit was a letter to Dr Helen Watchirs, ACT Human Rights and Discrimination Commissioner, in which she complained that the reference appeal denied SC the protection afforded to SC by s 24 of the Human Rights Act 2004 (ACT), which provides that “[n]o-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.”
The letter was apparently written as a notice that a question had arisen that involved the application of the Human Rights Act (see ss 34–36).
The matter came on before Penfold J on 20 April 2012 when the ACT Solicitor-General, appearing for the Attorney-General, raised the question of the Attorney-General intervening. No application had been made by the Attorney-General to intervene.
Justice Penfold made the following directions:
- that [the] Solicitor-General will send a list of questions to Mr Collaery (and Mr Todd) by [close of business 20 April].
- that Mr Collaery is to file and serve his responses by [close of business] Tuesday 24 April.
- that matter be listed at 9:30 on Thursday 26 April before [Penfold J] for directions.
Further, her Honour noted that, at the time of the directions hearing, all parties were of the view that the matter would proceed on 30 April.
As a consequence, on 20 April 2012, the ACT Government Solicitor wrote to Ms Irvine and posed the following questions:
1.How is it alleged that section 24 of the HRA [Human Rights Act], or any other provision of the HRA, is engaged in this matter?
2.In what way is it alleged that section 37S of the Supreme Court Act 1933 (SC Act) is incompatible with section 24 (or any other provision) of the HRA?
3.If section 37S of the SC Act is said to limit any right under the HRA, how is it said to not be a reasonable limit?
4.What interpretation of section 37S does the interested party contend is compatible with section 24 of the HRA?
5.Does the interested party contend that the applicant is a public authority for the purposes of part 5A of the HRA and if so how?
6.Does the interested party contend that the appellant has breached any duty that it may owe as a public authority under section 40B of the HRA? If so:
a. What act or decision by the appellant is said to engage the HRA?
b. What provision of the HRA does the respondent contend has been breached?
c. What is the content of the right said to have been breached?
d. In what way has a provision of the HRA been breached?
7.If a breach of the HRA is established, what remedy or relief is sought by the interested party?
On 24 April 2012, Mr Collaery responded:
We refer to the directions hearing on 20 April 2012 before Justice Penfold and your letter dated 20 April 2012.
To clarify, the writer is the solicitor on record. The writer was Counsel in the original hearing of R v SC in 2011. Ms Irvine was the instructing solicitor at the hearing of R v SC and although now under the employ of another firm, has firsthand familiarity with this matter. Collaery Lawyers as solicitor on the record has engaged Ms Irvine to act as agent and instruct in the Reference Appeal. Please see the affidavit of Ms Irvine dated 18 April 2012.
We refer to the questions posed in your letter of 20 April 2012 and reply seriatim:
1.How is it alleged that section 24 of the HRA, or any other provision of the HRA, is engaged in this matter?
Section 24 of the Human Rights Act 2004 (HRA) is infringed when s37S of the Supreme Court Act 1933 (SCA) is used to pursue an acquitted person in circumstances where:
a. No question of law has arisen in the proceedings; and
b. Both the application and the submissions to the Court of Appeal by the DPP expose an acquitted person to further reputational attack.
2.In what way is it alleged that section 37S of the Supreme Court Act 1933 (SC Act) is incompatible with section 24 (or any other provision) of the HRA?
In the circumstances outlined in 1 above an application under section 37S in relation to the proceedings is too broad and infringes an acquitted person’s rights under section 24 of the HRA.
3.If section 37S of the SC Act is said to limit any right under the HRA, how is it said to not be a reasonable limit?
The words ‘…in relation to’ in section 37S give to [sic] broad a meaning to section 37S in the circumstances outlined.
4.What interpretation of section 37S does the interested party contend is compatible with section 24 of the HRA?
A legitimate question of law arising at or from the proceedings.
5.Does the interested party contend that the applicant is a public authority for the purposes of part 5A of the HRA and if so how?
Yes. As you are aware all parties and interveners in Momcilovic v The Queen [2011] HCA 34 (8 September 2011) including the Australian Capital Territory agreed that the DPP (Victoria) is a public authority within the meaning of s4 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Please refer to the relevant submissions and supplementary submissions by the Appellant, Respondents and, relevantly the ACT.
6.Does the interested party contend that the appellant has breached any duty that it may owe as a public authority under section 40B of the HRA? If so:
a. What act or decision by the appellant is said to engage the HRA?
b. What provision of the HRA does the respondent contend has been breached?
c. What is the content of the right said to have been breached?
d. In what way has a provision of the HRA been breached?
Yes. In the circumstances outlined at 1, above, the misuse of s37S by the DPP constitutes an unlawful act (s40B(1)(a) HRA).
7.If a breach of the HRA is established, what remedy or relief is sought by the interested party?
This is a matter for submissions.
The matter came on before Penfold J again on 26 April 2012, when, apparently, the interested party recognised that the application was not based on the correct rule and the application was reserved to the Court of Appeal to be decided by the Court of Appeal.
At the hearing of the appeal, Mr Collaery, junior counsel for the interested party, said that he sought to amend the application to seek an order that the reference appeal be dismissed on the ground that the bringing of the reference appeal was an abuse of process. No particulars were given of the abuse of process; for example, it was not said that the bringing of the reference appeal was an unlawful act or that the reference appeal was brought for a collateral purpose. It was merely asserted that the bringing of the reference appeal was an abuse of process.
After Mr Collaery was pressed, but was unable to particularise the abuse of process, he sought and obtained a short adjournment to confer with his leader, Mr Gross QC. When the hearing of the appeal resumed, Mr Collaery abandoned the application and apologised to the DPP for the unsubstantiated assertion that the reference appeal was an abuse of process.
The claim that the reference appeal was an abuse of process should not have been made by counsel. However, in our opinion, the reference appeal should not be entertained because the DPP has not identified questions of law arising at or in relation to the proceeding and, in those circumstances, has not invoked the jurisdiction of the Court provided for in s 37S(2) of the Supreme Court Act.
THE FACTS
It is only necessary for the purpose of this decision to state the material facts of the trial in the broadest terms.
The deceased, who was seriously intoxicated, was stabbed by the interested party with a knife which the interested party had obtained earlier that night after agreeing to leave licensed premises with the deceased.
She stabbed the deceased eight times. She accepted, under cross-examination, that her conduct constituted a “frenzied attack”. The interested party claimed at the trial that she stabbed the deceased in circumstances where he had raped or was attempting to rape her. The issue at trial was whether the Crown had negatived the defence of self-defence. That issue was to be decided by reference to the body of circumstantial evidence adduced by the Crown.
In his reasons for judgment, the Chief Justice found that the Crown had not established that the interested party did not act in self-defence, and therefore acquitted the interested party.
CONSIDERATION OF THE APPLICATION
The applicant has criticised both the adequacy of the Chief Justice’s reasons and his reasoning process. So much is evident by what are said to be the grounds for the reference appeal. On the hearing of this reference appeal, the DPP elaborated upon those criticisms.
There is no need for the applicant to establish any grounds of appeal for the purpose of enlivening the jurisdiction of this Court to hear a reference appeal on “any question of law arising at or in relation to the proceeding”. What is necessary is for the applicant to identify precisely the “question of law arising at or in relation to the proceeding”. If a question of that kind is identified then the Court may, in the exercise of the Court’s discretion, hear and decide that question of law.
The purpose of s 37S, and similar sections in other jurisdictions, is to enable the Court of Appeal to pass an opinion on any question of law that arises at or in relation to the proceeding. The section is designed to allow the Court of Appeal to answer a relevant question of law so that judges conducting trials or considering similar questions in future proceedings can be guided by the Court of Appeal’s opinion.
Section 37S is wider than similar sections in other jurisdictions. The Tasmanian section under consideration in Attorney-General’s Reference 1 of 1993 [1994] TASSC 113 considered “any question of law that has arisen at the trial”. The Victorian provision considered in Director of Public Prosecutions Reference No 1 of 1992 (1992) 60 A Crim R 109 was similar to the Tasmanian provision. Section 37S is similar to the now repealed s 30A of the Federal Court of Australia Act 1976 (Cth) (which was considered in Director of Public Prosecutions v G (1999) 85 FCR 566), and also to the Northern Territory provision considered in Director of Public Prosecutions Reference No 1 of 1999 (1999) 8 NTLR 148, and on appeal in
Re Director of Public Prosecutions Reference No 1 of 1999(2000) 10 NTLR 1.
Primarily, the Court’s role is to correct an error of law that has arisen in the proceeding by deciding the question of law differently to the court from which the reference appeal is brought, so that the question of law will be applied correctly in the future.
The procedure is designed to allow the Crown in the ACT, through the agency of the Attorney-General, Solicitor-General or the applicant, to seek the correction of a ruling by the trial judge without exposing the acquitted person to the risk of double jeopardy: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ.
In Director of Public Prosecutions v G, the Full Court of the Federal Court (then the intermediate appellate court in this Territory) considered a reference appeal from a judge of the Supreme Court of the Australian Capital Territory under s 30A of the Federal Court Act (later repealed by Jurisdiction of Courts Legislation Amendment Act 2002 (Cth) sch 1 item 6). That section, relevantly, provided:
Reference appeals
(1)Where:
(a) a person has been tried on an indictment in the Supreme Court of the Australian Capital Territory; and
(b) the person has been acquitted in respect of the whole or any part of the indictment;
an appropriate authority may, within 6 weeks after the conclusion of the trial, or within such longer period as the Court, on sufficient cause being shown, allows, submit for the determination of a Full Court any question of law arising at or in connection with the trial.
Section 30A(1) was in a slightly different form to s 37S(2) of the Supreme Court Act. However, the use of the words “arising at or in connection with the trial”, rather than “arising at or in relation to the proceeding” is not such as to make this decision irrelevant to the present reference appeal. The Full Court said (at 578; [54]):
The purpose of provisions of this type is to enable appellate courts to correct errors of law made at the trial of accused persons, without affecting in any way any acquittal in respect of which the reference is made: see Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305. They enable the Crown to obtain the opinion of an appellate court on a point of law which arises in a case in which an accused person is acquitted. They were intended to enable the Attorney-General originally, and now the Director of Public Prosecutions, ‘to seek clarification of a point of law which arose in the relevant trial, and which has led to confusion in the past or is likely to lead to confusion in the future …’: Director of Public Prosecutions Reference (No 1 of 1984) (Vic) [1984] VR 727 at 729.
It may be that a question of law on a reference appeal under s 37S has arisen before the trial, because the question of law only has to arise at or in relation to the proceeding, not necessarily in the trial, although the question cannot have arisen before the person has been charged on the indictment: s 37S(1). However, the Court of Appeal cannot hear and decide that question of law until the proceeding in relation to all or any part of the indictment has concluded: s 37S(1). Therefore, if the question of law relates to a matter antecedent to trial, the reference appeal may only be brought after the proceeding in relation to all or any part of the indictment has concluded. The necessity for the proceeding in relation to the indictment to have been concluded is reinforced by s 37S(3), which requires the application to be made “within six weeks after the end of the proceeding”.
The jurisdiction of the Court does not extend to answering any question of law that might be relevant to the proceeding, but only a question of law “arising at or in relation to the proceeding”. The procedure is not designed to answer hypothetical questions of law, because to do so would be to give an advisory opinion, which is not permitted: Director of Public Prosecutions Reference No 1 of 1992 at 120. If the question did not arise at or in relation to the proceeding the question is hypothetical: Director of Public Prosecutions Reference No 2 of 1996 [1998] 3 VR 241 at 250–1 per Brooking JA; MR (2000) 116 A Crim R 23 at 26; [6].
The jurisdiction does not extend to the Court considering errors of law. If the law is well settled and not a live issue in the proceeding, but the judge who had responsibility for the proceeding makes an error of law by failing to apply the law, this Court does not have jurisdiction on a reference appeal to consider that error and correct it. That would be the task of an appeal court if the appellant had a right of appeal.
In R v J (1987) 9 NSWLR 615, Lee J said (at 616):
At the outset it is to be said that in many cases it will be wholly inappropriate for the Attorney-General to bring before this Court, as a question of law, the question whether there was or was not evidence of a particular ingredient forming part of the charge made against an accused. The purpose of s 5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes.
In the same case, Hunt J said (at 626):
The purpose of the procedure is to provide a precedent by which guidance is furnished in relation to other trials in the future. There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish that the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s 5A(2).
In Attorney-General (NSW) v X (2000) 49 NSWLR 653, the New South Wales Court of Appeal was concerned with the construction of s 101A of the Supreme Court Act 1970 (NSW), which gave jurisdiction to the Court of Appeal to hear and decide a “question of law arising from or in connection with the proceedings”.
Mason P, referring to R v J, said (at 684; [164]):
It is significant that the sections speak of a “question of law”, not an “error of law”. This is in keeping with their obvious function, which is to arm the appellate court with power to “determine” the question, but not to reverse the acquittal.
His Honour continued (at 684–5; [166]):
It follows that it would be inappropriate for the Attorney-General to bring before the Court, as a question of law, whether there was evidence of a particular ingredient of a charge to support a conviction, unless that evidentiary point threw up some point of general principle: R v J; see also R v S (1953) 53 SR (NSW) 460. A fortiori with factual errors.
The question of law must have either been argued before or decided by the court from which the reference appeal is brought for the question to be a question of the kind contemplated in s 37S(2), even if the decision which the Court made is based upon an erroneous concession by a party. In Director of Public Prosecutions Reference No 2 of 1996 at 250–1, Brooking JA, with whom Winneke P and Tadgell JA agreed, said:
In my opinion, in order that a point of law may be said to have been decided by the trial judge, and so to have arisen in the case, it is not necessary that the point should have been in contest between the Crown and the accused: it is enough that the judge has determined the point. Various positions are possible. The Crown and counsel for the defence may invite the judge to give different answers to a question of law. On the other hand, the Crown may, where some point of law has been raised, either by the Crown itself or by the judge, invite the judge to determine the point in a certain way and the accused, being unrepresented, or even being represented, may put no submission at all. Or, on the raising of a question of law by counsel for the defence, who submits that it should be answered in a certain way, the Crown Prosecutor may say that the question is a doubtful one and suggest that a ruling be deferred until the Crown has had an opportunity of considering the point and of defining its position and presenting argument. The judge, thinking that a prompt determination is desirable and having formed a clear view that the point taken is a bad one, may think it appropriate to give his ruling at once. To take another example, the Crown may expressly concede that the view put forward by the defence on a point of law is the correct one, or may so conduct itself as tacitly to concede the point. In Director of Public Prosecutions Reference (No. 1 of 1992) at 415 Marks J left open the question whether a concession made by the Crown Prosecutor at the trial would lead the court to decline to correct an error of law under s 450A [of the Crimes Act 1958 (Vic)].
…
In my opinion, a point of law has arisen in the case within the meaning of s 450A if it has been decided by the judge, and it is unnecessary that the point should have been in contest between the Crown and the defence at the trial. Nor is the making of an express or implied concession by the Crown at the trial inconsistent with the judge’s having decided it. The existence of a dispute between the parties at the trial with regard to a point of law is not essential to that point’s being decided by the judge (and so arising). On the other hand, the question whether a position was taken up by the Crown and the defence at the trial with regard to the point may well bear on whether that point was actually decided by the judge.
That decision was followed by the Full Court of the Federal Court in Director of Public Prosecutions v G at 579–80; [57]–[58], and in MR at 26; [6].
The questions of law which have been posed to this Court are not questions of law which arise out of or are in relation to the proceeding that was heard by the Chief Justice. They were not argued before the Chief Justice. Nor did his Honour decide the questions. There was no dispute at the hearing before the Chief Justice that he was bound to proceed in accordance with an affirmative answer to each of the questions. Whether or not his Honour did is not a matter for this Court. An inquiry of that kind would not be a reference appeal, but would be an inquiry into whether the Chief Justice’s judgment discloses error.
There was no issue as to whether the Chief Justice was bound to follow the procedures in the questions identified in paragraphs (a) and (b) in determining whether the prosecution had proved its case.
The law is well settled in relation to both of those matters. A trial judge must, of course, in making any finding of fact, weigh all of the circumstances established by the evidence relevant to the fact to be decided. Moreover, a trial judge must, as is well known, in a circumstantial evidence case, weigh all of the circumstances established by the evidence in deciding whether there is an inference consistent with innocence reasonably open on the evidence: R v Hillier (2007) 228 CLR 618 at 637; [46] per Gummow, Hayne and Crennan JJ; Chamberlain v The Queen (No 2) (1984) 153 CLR 521 at 535 per Gibbs CJ and Mason J. In R v Keenan (2009) 236 CLR 397, Kiefel J, with whom Hayne, Heydon and Crennan JJ agreed, said (at 434–5; [127]–[128]):
The trial judge directed the jury as to the burden of proof and the drawing of inferences. His Honour was not required to go further, having regard to the evidence. The evidence of Jupp, that something like the use of fists was all that was intended, had to be weighed against his evidence of the respondent’s stated intention, that his passenger ‘beat up’ Coffey, of the respondent’s possible knowledge of the intended use of the bat, his motive of vengeance, his degree of hostility towards Coffey and his threats. If this evidence was accepted the jury could not conclude that anything less than serious harm was intended.
The trial judge reminded the jury of Jupp’s evidence and of the evidence to be weighed against it in reaching a conclusion as to what was intended. The approach taken by his Honour is consistent with what was said in R v Hillier, namely that a circumstantial case is not to be considered piecemeal. It is of critical importance to recognise, in considering such a case, that ‘all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence’ (footnotes omitted).
It was not suggested at trial that the Chief Justice should proceed in any other way with respect to both of those matters. If his Honour failed to do so, as is contended in the ground and in the DPP’s written submissions, then that would indicate an error of law but would not be a question of law arising out of or in relation to the proceeding. This Court cannot address such a complaint on a reference appeal.
Section 68C(1) of the Supreme Court Act allows a judge trying a criminal proceeding without a jury to make any finding that could be made by a jury, and any such finding has the same effect as a verdict of the jury.
Section 68C(2) provides that “[t]he judgment in criminal proceedings tried by a judge alone must include the principles of law applied by the judge and the findings of fact on which the jury relied.”
Question (c) in the application asks whether s 68C(2) requires a trial judge to state the principles of law applied by the judge in determining that the Crown had not negatived self-defence. The question posed in paragraph (c) is not, in truth, a question of law at all. It is a question about the content of the provision of a statute. The question does no more than state the obligation imposed upon a judge in a criminal proceeding tried by a judge alone by s 68C(2) of the Supreme Court Act. Of course the judge must include a statement of the principles for deciding that the Crown had not negatived self-defence.
The final question posed in paragraph (d) is, again, not a question that arose in the trial.
Section 68C(3) provides:
In criminal proceedings tried by a judge alone, if a territory law requires a warning or direction to be given, or a comment to be made, to a jury in the proceedings, the judge must take the warning, direction or comment into account in considering his or her verdict.
Section 68C(3) requires a judge when sitting alone in a criminal proceeding, where a law requires a warning or direction to be given, or comment to be made to a jury in a proceeding, to take the warning, direction, or comment into account in considering his or her verdict. If, in a particular case, the question of self-defence arose and the judge needed to give a direction in relation to the proportionality of the conduct of the accused, then the judge would have to take that direction into account in considering his or her verdict. If the question of the accused’s failure to retreat arose in considering a defence of self-defence, then the trial judge would also need to consider a direction as to whether that failure to retreat should be taken into account in considering whether the prosecution had established that the accused had not acted in self-defence.
But, again, that is only to state the requirements that are imposed upon a judge by s 68C(3) of the Supreme Court Act.
It may be that the Chief Justice failed to give himself the directions in relation to the matters raised in paragraph (d) of the questions asked, but again that would indicate an error of law, which this Court cannot entertain.
This Court cannot express an opinion upon any errors of law in a trial where there has been an acquittal because no such power exists. That power would only exist if the Court had jurisdiction to hear a prosecution appeal from an acquittal in a trial conducted by a judge alone in a criminal proceeding. There is no such jurisdiction in the Australian Capital Territory, and s 37S should not be used for that purpose.
In our opinion, the questions in the reference appeal did not arise at and were not related to the proceeding before the Chief Justice. In those circumstances the applicant has not invoked the jurisdiction of this Court.
The reference appeal must be dismissed.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of their Honours Justice Refshauge and Justice Lander.
Associate:
Date: 15 June 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 10 of 2011
) No. SCC 224 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
REFERENCE APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
AND:
SC
Interested Party
Judges: Penfold J
Date: 15 June 2012
Place: Canberra
REASONS FOR JUDGMENT
PENFOLD J:
I agree that the reference appeal in this case must be dismissed, for the reasons set out in the judgment of Refshauge and Lander JJ. The questions set out in the application refer to obligations that were unquestionably applicable in the trial before the Chief Justice. As explained by Refshauge and Lander JJ, no question as to the application of any of those obligations arose at or in relation to the trial. Whether those obligations were met in the particular trial is not a question to be canvassed in a reference appeal under s 37S of the Supreme Court Act 1933 (ACT).
I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.
Associate:
Date: 15 June 2012
Counsel for the Applicant: Ms C Davenport, Mr C Todd
Solicitor for the Applicant: ACT Director of Public Prosecutions
Counsel for the Interested Party: Mr B J Gross QC, Mr B Collaery
Solicitor for the Interested Party: Collaery Lawyers
Date of hearing: 30 April 2012
Date of judgment: 15 June 2012
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