Farshchi v The King
[2024] VSCA 235
•14 October 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2024 0033 |
| SEYYED ABDOLZADEH FARSHCHI | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | PRIEST, NIALL and TAYLOR JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 October 2024 |
| DATE OF JUDGMENT: | 14 October 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 235 |
| JUDGMENT APPEALED FROM: | CDPP v Farshchi [2024] VCC 24 (Chief Judge Kidd) |
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CRIMINAL LAW – Appeal – Conviction – Forced labour offences – Proof beyond reasonable doubt – Whether error to direct that a reasonable doubt is not an unrealistic possibility – Whether direction diminishes the criminal standard of proof – Whether direction inconsistent with Criminal Code (Cth) – Whether direction inconsistent with s 80 of the Constitution – Leave to appeal refused.
Jury Directions Act 2015 (Vic), ss 63 and 64; Constitution (Cth), ss 80 and 109; Criminal Code (Cth), s 13.2.
CRIMINAL LAW – Appeal – Sentence – Forced labour offences – Total effective sentence 3 years and 6 months’ imprisonment with 18 months non-parole – Whether too little weight given to family hardship – Whether sentence manifestly excessive – Leave to appeal refused.
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| Counsel | |||
| Applicant: | Mr D Gurvich KC with Mr M Stanton SC and Mr P Smallwood | ||
| Respondent: | Ms R Sharp KC DPP (Cth) with Mr T Wood and Ms J Wang | ||
Solicitors | |||
| Applicant: | Galbally & O’Bryan Lawyers | ||
| Respondent: | Commonwealth Director of Public Prosecutions | ||
PRIEST JA:
Introduction
An indictment filed against the applicant in the County Court by the Commonwealth Director of Public Prosecutions charged the applicant with causing a person to remain in forced labour (charge 1), and conducting a business involving forced labour (charge 2). The charges were laid under ss 270.6A(1) and (2) of the Criminal Code (Cth) (‘Code’) respectively, which (so far as relevant) provide:
270.6A Forced labour offences
Causing a person to enter into or remain in forced labour
(1) A person commits an offence if:
(a) the person engages in conduct; and
(b) the conduct causes another person to enter into or remain in forced labour.
Penalty:
…(b) in any other case—imprisonment for 9 years.
Conducting a business involving forced labour
(2) A person commits an offence if:
(a) the person conducts any business; and
(b) the business involves the forced labour of another person (or persons).
Penalty:
…(b) in any other case—imprisonment for 9 years.
On 30 October 2023, a jury empanelled to try the applicant found him guilty of both charges.
Following a plea, on 30 January 2024 the trial judge sentenced the applicant to three years and six months’ imprisonment, with a non-parole period of 18 months, in accordance with the following table:
Charge Offence Sentence Cumulation State sentences 1 Causing a person to remain in forced labour 3 years and 6 months Base 2 Conducting a business involving forced labour 3 years and 6 months — Total effective sentence: 3 years and 6 months’ imprisonment Other relevant orders: Reparation order in the amount $42,989.92
The applicant now seeks leave to appeal against the conviction and his sentence.
With respect to conviction, the applicant relies on two grounds, which contend that the trial judge erred by:
1 … directing the jury that a reasonable doubt is not an unrealistic possibility.
2 … failing to direct the jury that the complainant’s evidence may be unreliable because of a combination of factors including the significant matter of his use of opium and prescription medications at the time of the alleged offending and when giving his evidence in chief interviews.
As to sentence, the applicant’s proposed grounds are:
1 The learned sentencing judge erred when finding that the hardship to the applicant’s family was significant, but not so significant that it should result in a discernible reduction to the sentences imposed.
2 The sentences imposed on charges 1 and 2 are manifestly excessive.
In my view, both applications should be refused. My reasons follow.
The alleged offending
Before turning to the grounds of appeal, it is necessary to summarise what the evidence at trial revealed.
‘RA’, his wife and daughter, are from Iran. They fled Iran in 2013, fearing for their personal safety. With the assistance of people smugglers, they reached Australian shores aboard a boat from Indonesia in the latter part of 2013 and sought asylum. After spending time in immigration detention on Christmas Island and in Darwin, they were granted bridging visas which allowed them to reside in the community. In early January 2015, they arrived in Melbourne, where there was an established Iranian community.
Shortly after arriving in Melbourne, RA saw a job advertisement on Facebook. The advertisement, which was posted to a page operated by an Iranian community group, was for Candoo Confectionary (‘Candoo’), a shop which specialised in Persian sweets and confectionary. Candoo was a business conducted by the applicant, who also practised as a general medical practitioner and chiropractor (among other things).
Candoo operated from premises in Box Hill and Lalor. In order to apply for a job at Candoo, RA visited the Box Hill store and left his contact details with one of the employees. Later that day, the applicant contacted RA and asked him if he was interested in working at Candoo as a baker. RA said that he was, and the applicant suggested that, in order to determine his suitability for the role, RA complete a one week unpaid trial under the instruction of an experienced baker. RA agreed to undertake the trial, commencing mid-January 2015.
The applicant offered RA a job after completion of the trial period, conditioned upon RA satisfactorily completing a three-month training program to be performed in-house at Candoo, with RA being taught and supervised by other bakers. RA was not to be paid for participating in the training program.
RA gave evidence that he questioned the applicant about whether he should be paid during the training period. RA said that, in response, the applicant told him that it was normal in Australia for an employee to pay for their training or to complete a TAFE course, intimating that he was being offered an opportunity that was hard to come by.
During the training program, RA worked long hours. He would usually commence at about 7.00 am and finish at 9.00 pm, although over the Persian New Year he would work until 3.00 am or 4.00 am.
Following RA’s completion of the training program in April or May 2015, the applicant told him that he would pay him $10.00 an hour. RA gave evidence that, at the time he accepted the offer, he had no knowledge of minimum wage requirements or of workplace rights more generally.
From about July 2015, the applicant and RA had a number of conversations about his pay. RA’s evidence was that he had been speaking with friends about his wage, and they informed him that pay of $10.00 per hour was inconsistent with minimum wage requirements. They also told him that, as his employer, Candoo had to pay tax on his behalf. RA raised these concerns with the applicant on a number of occasions, and received various responses. RA gave evidence that when he first confronted the applicant about the adequacy of his pay, the applicant told RA not to be too concerned with his level of remuneration, because he could assist RA in other ways. RA said that the applicant told him, ‘it’s not about the wage, don’t worry about the wage, … I help you with your visa status, I help you with buying your house, I would buy a house for you and stuff like that’. It was in this context that the applicant told RA that he had connections in the Department of Immigration who could help with his visa application, and told him that he had knowledge of various rules and regulations, which he could use to RA’s advantage.
After this conversation, RA continued to provide labour and services at Candoo, working long hours. He gave evidence of how strenuous the work was, including that he was at the point of exhaustion, and, at times, in physical pain. As to the physical pain RA experienced (including back pain), various Candoo employees gave evidence about the prescription of medication by the applicant and their use of that medication.
Sometime in, or shortly after, July 2015, RA formed the view that the applicant did not intend to fulfil his promises. He approached the applicant again, expressing concerns about both the quantum of pay and the infrequency of payment. On RA’s evidence, that was the first time that the applicant threatened him. The applicant made threats as to what might happen to RA if he did not continue to work at Candoo. He said that he had connections in the Department of Immigration that could be used to jeopardise his visa application and have him placed in immigration detention or deported. On the basis of those threats, RA continued to work at Candoo, believing that he had no other choice.
The threats continued thereafter. RA estimated that the applicant threatened him somewhere between seven and 10 times (although it could have been more). Apart from the underlying threat to have RA deported, the threats included that: the Department of Immigration was looking for a reason to send RA back, because he was a refugee; the applicant had recordings of RA smoking opium; the applicant could have RA placed in immigration detention; the applicant would inform Centrelink that RA was paid in cash and not declaring income; and the applicant would inform people in Iran that RA had converted to Christianity (‘And when they deport you back to Iran I’m gonna let them know that you’re a Christian convert, ah, in Australia then their sentence over there is — for apostasy is death so they’re going to kill you over there’).
RA felt compelled to continue to work at Candoo by reason of these threats. He worked long hours in a physically demanding job, unable to spend quality time with his family. His wage, which was low, was often not paid, not paid in full, or paid late. As a result, his mental and physical health deteriorated, as did his relationship with his wife and daughter.
At trial, there was a dispute about whether RA left Candoo in March 2017 (at the end of the first charged period) because he refused to continue working or because his employment was terminated. RA returned to work at Candoo during the second period before finally leaving on 15 July 2017. He complained to police and gave evidentiary interviews on 8 September 2017, 13 September 2017, 18 September 2017 and 20 December 2017.
Conviction ground 1: Direction that a reasonable doubt is not an unrealistic possibility
Since both charges related to alleged offences against the laws of the Commonwealth, for the purposes of the applicant’s trial the County Court was exercising federal jurisdiction under s 68(2) of the Judiciary Act 1903. As to that, ss 68(1) and (2) provide (so far as relevant):[1]
[1]Emphasis added.
68 Jurisdiction of State and Territory courts in criminal cases
(1) The laws of a State or Territory respecting the arrest and custody of offenders or persons charged with offences, and the procedure for:
…
(c) their trial and conviction on indictment; and
…
and for holding accused persons to bail, shall, subject to this section, apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State or Territory by this section.
(2) The several Courts of a State or Territory exercising jurisdiction with respect to:
…
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State or Territory, and with respect to the hearing and determination of appeals arising out of any such trial or conviction or out of any proceedings connected therewith, shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
With respect to persons ‘charged with offences against the laws of the Commonwealth’, s 68(1) is designed to pick up the laws of a State (or Territory) ‘respecting the … procedure for … their trial and conviction on indictment’. The aim is to ensure that federal criminal law is administered in each State upon the same footing as State law, thereby avoiding the establishment of two independent systems of justice.[2] If s 68(1) is engaged, it operates to apply as Commonwealth law any State law which is properly characterised as a law respecting the procedure for trial and conviction on indictment.[3] As a general rule, if a State law has that character, s 68(1) applies the text of that law without any change to its meaning.[4] One exception to that general rule is that s 68(1) ‘does not apply the text of a State or Territory law to the extent that in so applying as a Commonwealth law it would be inconsistent with the Constitution or another Commonwealth law’.[5]
[2]R v Murphy (1985) 158 CLR 596, 617 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ); AG (Cth) v Huynh and Ors (2023) 408 ALR 684, 694 [42] (Kiefel CJ, Gageler and Gleeson JJ), 717 [143] (Gordon and Steward JJ), 742 [235] (Edelman J) (‘Huynh’).
[3]Huynh, 695–6 [48] (Kiefel CJ, Gageler and Gleeson JJ).
[4]Ibid 697 [57].
[5]Ibid 697 [58]; Putland v The Queen (2004) 218 CLR 174, 179–80 [7] (Gleeson CJ), 189 [41] (Gummow and Heydon JJ), 215 [121] (Callinan J) (‘Putland’).
Among the questions raised by the first ground is the extent (if any) to which ss 63 and 64 of the Jury Directions Act 2015 (Vic) (‘JDA’) applied to the applicant’s trial. In part the question arises since, given that the applicant was charged with an offence against a law of the Commonwealth, s 13.2 of the Code applied:
13.2 Standard of proof—prosecution
(1) A legal burden of proof on the prosecution must be discharged beyond reasonable doubt.
(2) Subsection (1) does not apply if the law creating the offence specifies a different standard of proof.
Although the common law generally deprecated any attempt by a trial judge to explain the meaning of the expression ‘beyond reasonable doubt’,[6] s 63(1) of the JDA now requires a trial judge to give to the jury an explanation of the phrase ‘proof beyond reasonable doubt’ unless there are good reasons for not doing so. Section 64(1), which is in the following terms, sets out the manner in which the mandatory explanation may be given:[7]
[6]See, e.g., Brown v The King (1913) 17 CLR 570, 584; Thomas v The Queen (1960) 102 CLR 584, 587, 595, 604–5; Dawson v The Queen (1961) 106 CLR 1, 8; Green v The Queen (1971) 126 CLR 28, 32–3; La Fontaine v The Queen (1976) 136 CLR 62, 71; R v Dookheea (2017) 262 CLR 402, 407 [1], 416 [24], 424 [37], 426–7 [41].
[7]Emphasis added.
64 How explanation may be given
(1) In explaining the phrase “proof beyond reasonable doubt” under section 63, the trial judge may—
(a) refer to—
(i) the presumption of innocence; and
(ii) the prosecution’s obligation to prove that the accused is guilty; or
(b) indicate that it is not enough for the prosecution to persuade the jury that the accused is probably guilty or very likely to be guilty; or
(c) indicate that—
(i) it is almost impossible to prove anything with absolute certainty when reconstructing past events; and
(ii) the prosecution does not have to do so; or
(d) indicate that the jury cannot be satisfied that the accused is guilty if the jury has a reasonable doubt about whether the accused is guilty; or
(e) indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility.
The applicant faced two trials before the same trial judge, the jury in the first having been discharged without verdict. During the first trial, the trial judge received submissions on the operation and effect of s 64 of the JDA, including how the explanation of the phrase ‘beyond reasonable doubt’ may be given. The applicant opposed the trial judge directing the jury under s 64(1)(e) that a reasonable doubt is not ‘an unrealistic possibility’, submitting (among other things) that the direction diminishes the criminal standard of proof and is confusing, and that it transposes the question from ‘what is a reasonable doubt?’ to ‘what is an unrealistic possibility?’. Counsel for the applicant reserved the position as to whether such a direction is lawful given the minimum guarantees protected by s 80 of the Constitution. Ultimately, the judge declined to give the impugned direction as part of his introductory directions to the jury, reserving the issue for revisitation at the end of the trial. As I have said, however, the first jury was discharged without reaching verdict.
At the second trial, which commenced on 20 September 2023, the trial judge did not give the impugned direction during his introductory remarks to the jury. Prior to closing addresses, however, as part of the discussion contemplated by s 12 of the JDA, the judge entertained further submissions on the issue. Once more, the applicant opposed the giving of the direction, but was unsuccessful. In the result, in his charge the trial judge directed the jury on the standard of proof as follows:[8]
I want to emphasise again, and I think all counsel have done this, but you can probably never say enough on this topic. I want to emphasise again that under our justice system, people are presumed to be innocent unless and until they are proven guilty. Before you may return a verdict of guilty, the prosecution must satisfy you that each of the accused is guilty of the charges in question. ... [W]hen you are considering a charge against an accused you must be satisfied that the prosecution has established the charge in question.
The accused do not have to prove anything. The prosecution must … prove the charge against the accused for each of the charges beyond reasonable doubt. Beyond reasonable doubt is the highest standard of proof that our law demands. It is not enough for the prosecution to prove that the accused is probably guilty or even very likely to be guilty. As I have told you, it is almost impossible – I told you this at the beginning of the trial but it is a long time ago, I know – it is almost impossible to prove anything with absolute certainty when reconstructing past events and the prosecution does not have to do so. A reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility. You cannot be satisfied the accused is guilty if you have a reasonable doubt about whether the accused is guilty. I mentioned to you at the beginning of the trial that these words ‘proof beyond reasonable doubt’ mean exactly what they say, proof beyond reasonable doubt.
Now, the prosecution does not need to prove every fact they allege to this standard. It is the essential ingredients or the elements of the charges that they must prove beyond reasonable doubt and I will come to the elements in a moment. ... It is only if you are satisfied that the prosecution has proved all the elements of the charge beyond reasonable doubt that you may find the accused guilty of that charge. If you are not satisfied that the prosecution has done this, your verdict must be not guilty.
[8]Emphasis added.
I pause to note that it may be appreciated from the directions set out immediately above that the judge emphasised — ‘you can probably never say enough on this topic’ — the presumption of innocence (see s 64(1)(a)(i) of the JDA), and the prosecution’s obligation prove the charge in question (s 64(1)(a)(i)) and satisfy the jury of the applicant’s guilt. The judge made it plain that the applicant did ‘not have to prove anything’, and that the prosecution had to prove each charge against the applicant beyond reasonable doubt, ‘the highest standard of proof that our law demands’. It was not enough for the prosecution to prove that the applicant ‘is probably guilty or even very likely to be guilty’. And although the judge instructed the jury that ‘it is almost impossible to prove anything with absolute certainty when reconstructing past events’ (s 64(1)(c)(i)) (and that the prosecution does not have to do so: s 64(1)(c)(ii)), and that a reasonable doubt ‘is not an imaginary or fanciful doubt or an unrealistic possibility’ (s 64(1)(e)), the judge made it abundantly clear that the jury could not be satisfied the applicant is guilty if they had a reasonable doubt about whether he was guilty. Importantly, in time-honoured fashion, the judge told the jury that ‘these words “proof beyond reasonable doubt” mean exactly what they say, proof beyond reasonable doubt’. It was only if the jury were satisfied that the prosecution had proved all the elements of the charge beyond reasonable doubt that the jury could find the accused guilty of that charge.
Under cover of ground 1, counsel for the applicant submitted that the judge should not have directed the jury that a reasonable doubt is not ‘an unrealistic possibility’. Counsel submitted that there were three alternative bases upon which the ground could succeed:
· first, consistently with s 63(1) of the JDA, there were no ‘good reasons’ for giving the jury an explanation of the phrase ‘beyond reasonable doubt’;
· secondly, because the direction under s 64(1)(e) of the JDA is inconsistent with s 13.2 of the Code, it constitutes a law of a State which is inconsistent with a law of the Commonwealth — thereby caught by s 109 of the Constitution — so that it is not picked up by s 68(1) of the Judiciary Act 1903 (Cth) and to that extent is invalid; and
· thirdly, the direction under s 64(1)(e) of the JDA is inconsistent with s 80 of the Constitution, and is therefore is not picked up by s 68(1) of the Judiciary Act 1903 (Cth).
In my view, none of these submissions can be accepted.
Asserted absence of a good reason for giving the direction
A premise underlying the submissions advanced by the applicant’s counsel under cover of the first ground is that the direction under s 64(1)(e) — ‘that a reasonable doubt is not … an unrealistic possibility’ — diminishes the standard of proof engendered by the phrase ‘beyond reasonable doubt’. I am not persuaded that this is so.
In the course of his submissions, senior counsel for the applicant drew attention to the following passage from the reasons for judgment of Barwick CJ, McTiernan and Owen JJ in Green:[9]
If during the course of a trial, particularly in his address to the jury, counsel for the accused has laboured the emphasis on the onus of proof to such a degree as to suggest to the minds of the jury that possibilities which are in truth fantastic or completely unreal ought by them to be regarded as affording a reason for doubt, it would be proper and indeed necessary for the presiding judge to restore, but to do no more than restore, the balance. In such a case the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt.
[9]Green v The Queen (1971) 126 CLR 28, 33 (‘Green’). (Emphasis added.)
Counsel also drew attention to the following observations of King CJ in Wilson:[10]
The judge may, in an appropriate case, warn the jury against resorting to fanciful or unreasonable possibilities as affording reasons for doubt, but if he does so, he should be careful, in my opinion, to add that if the jurors, at the end of their deliberations, as reasonable persons are in doubt about the guilt of the accused, the charge has not been proved beyond reasonable doubt.
[10]R v Wilson (1986) 42 SASR 203, 207.
Senior counsel for the applicant also submitted that unreal possibilities and unrealistic possibilities are different species. He submitted:
So ‘unreal’, in our submission, that term, looked at on its own, is one that means and would mean to a jury that it does not exist in reality, does not exist. And that’s the way it was used in Green. It’s an unreal possibility. It’s an impossibility.
‘Unrealistic’ is quite different in our submission. It means unlikely, even highly unlikely to happen in reality; an unrealistic possibility, highly unlikely to be expected, but some chance of happening. And that’s reasonable doubt in our submission. And that’s the crux of our case.
Moreover, counsel submitted that Green recognises that at common law a further explanation of ‘beyond reasonable doubt’ by the trial judge was permissible only where it was necessary to restore the balance consequently upon counsel’s reliance upon ‘unreal possibilities’. In the present case, the applicant had not advanced any unrealistic possibilities to the jury, so there was no occasion for the judge to give any direction under s 64(1)(e) of the JDA to the effect that a reasonable doubt is not an unrealistic possibility.
The Director submitted that the unrealistic possibility in s 64(1)(e) of the JDA does not diminish the standard of proof. In Dookheea, the High Court questioned the soundness of the historical position that held that a judge generally should not attempt to explain ‘beyond reasonable’;[11] but made clear in any event that the undesirability of explaining beyond reasonable doubt does not mean that such an explanation will necessarily be an error.[12] The Director contended that the language in s 64(1)(e) is consistent with the language endorsed in Green.
[11]R v Dookheea (2017) 262 CLR 402, 416 [23] (‘Dookheea’).
[12]Ibid 418–9 [28]–[29], 424 [37].
Section 63(1) of the JDA places a mandatory obligation upon the trial judge to give the jury an explanation of the phrase ‘proof beyond reasonable doubt’ unless there are good reasons for not doing so. Those things that may qualify as ‘good reasons for not doing so’ are, however, not spelled out.
A mandatory obligation to explain ‘proof beyond reasonable doubt’ having been imposed upon the trial judge by s 63(1), s 64 provides a range of matters that the judge may ‘refer’ to or ‘indicate’ in providing the mandatory explanation. Section 64 does not explicitly state whether the judge must refer to or indicate all of the things set out in s 64(1)(a) to (e), or whether he or she enjoys a measure of discretion as to those he or she will refer to or indicate. Presumably, however, the trial judge possesses a degree of discretion as to how he or she tailors a direction on the topic in any given case.
An insurmountable obstacle standing in the way of accepting the applicant’s submission that a direction as to an unrealistic possibility diminishes the standard of proof beyond reasonable doubt is the fact that Parliament has said explicitly that a judge may, in explaining the phrase ‘proof beyond reasonable doubt’, ‘indicate that a reasonable doubt is not an imaginary or fanciful doubt or an unrealistic possibility’. The legislature has therefore unequivocally expressed the view that an unrealistic possibility is not a reasonable doubt. And importantly, it has expressed an intention that a judge be permitted to explain to a criminal jury that an unrealistic possibility cannot be the foundation of a reasonable doubt.
As a matter of ordinary language, a possibility is something that may be true, or something that may exist (or happen). An unrealistic possibility is one that is unreasonable, irrational, illogical, improbable, foolish or similar; and an unreal possibility — as contemplated in Green — is one that is absurd, bizarre, fanciful, fantastic, illusory, non-sensical, preposterous or similar. There may be a semantic difference between the two, although if one exists, it is finely nuanced. Indeed, in my view, there is little or no practical difference between them.
But even if it be accepted for the sake of argument that an unrealistic possibility is not the unreal possibility spoken of in Green, it is impossible to see that any substantial miscarriage of justice was occasioned in this case by the judge’s reference to an unrealistic possibility when giving directions on the standard of proof. Reading the judge’s directions on the topic as a whole, it cannot be concluded that the jury would not have appreciated that ‘these words “proof beyond reasonable doubt” mean exactly what they say, proof beyond reasonable doubt’.[13]
[13]See [27] and [28] above.
Furthermore, given that the applicant at trial had not advanced in his defence a possibility that the prosecutor or judge characterised as unrealistic, it is also impossible to see that the direction could have caused any prejudice to the applicant’s case, or in any way misled the jury as to the applicable standard of proof. The jury would well have appreciated that the applicant had not advanced any unrealistic possibilities in defending the charges.
Thus, even if it be assumed for argument’s sake that a direction of the kind impugned was not called for in the circumstances of this case, it could not be concluded that as the result of an error or an irregularity in, or in relation to, the trial, or for any other reason, there has been a substantial miscarriage of justice. I am far from persuaded that the impugned direction could have affected the jury’s verdicts.
Suggested inconsistency with Commonwealth law
Section 109 of the Constitution provides that when a law of a State is inconsistent with a law of the Commonwealth, the law of the Commonwealth shall prevail, and the law of the State shall, to the extent of the inconsistency, be invalid.
The applicant submitted that, since s 64(1)(e) of the JDA diminishes the criminal standard of proof, it is directly inconsistent with s 13.2 of the Code. Hence, the applicant’s counsel submitted, s 64(1)(e) is invalid.
As already explained, s 68(1) of the Judiciary Act 1903 (Cth) does not pick up and apply State laws that would be inconsistent with another Commonwealth law.[14] Further, s 64(1)(e) of the JDA could not apply in the proceeding as a State law because the Parliament of the State has ‘no power to command a court as to the manner of exercise of federal jurisdiction conferred on or invested in’ a State court.[15] As a result, no question of the operation of s 109 of the Constitution arises.[16]
[14]Huynh, 697 [58] (Kiefel CJ, Gageler and Gleeson JJ); Putland, 179–80 [7] (Gleeson CJ), 189 [41] (Gummow and Heydon JJ), 215 [121] (Callinan J).
[15]Rizeq v Western Australia (2017) 262 CLR 1, 27 [61] (Bell, Gageler, Keane, Nettle and Gordon JJ) (‘Rizeq’).
[16]See similarly Rizeq, 38–9 [92] (Bell, Gageler, Keane, Nettle and Gordon JJ); Masson v Parsons (2019) 266 CLR 554, 579 [43] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Gordon JJ).
The real question is whether s 68(1) of the Judiciary Act1903 (Cth) picked up and applied s 64(1)(e) of the JDA as Commonwealth law. That question is answered by determining whether there is any inconsistency between s 64(1)(e) of the JDA and s 13.2 of the Code. In my opinion, there is no inconsistency between the provisions. Section 64(1)(e) does not provide for a different standard of proof than that contained in s 13.2 of the Code, but simply provides for that standard of proof to be explained. Section 64(1)(e) of the JDA merely permits a jury to be directed that an unrealistic possibility could not be the source of the reasonable doubt provided for in s 13.2 of the Code, and, to that extent, does not attempt to impose a different or inconsistent standard.
Claim that s 80 of the Constitution infringed
Contrary to the submissions of the applicant’s counsel, I consider it to be plain that s 64(1)(e) is not inconsistent with s 80 of the Constitution, which provides:
80 Trial by jury
The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes
In Cheatle,[17] the High Court considered the availability of majority verdicts in State criminal courts trying offences against Commonwealth laws. The Court held that majority verdicts were inconsistent with the notion of trial by jury contemplated in s 80. A central consideration informing the High Court’s reasoning was the method of conducting criminal jury trials at the time that the Constitution took effect. Since, at that point, majority verdicts were not an incident of trial practice, compliance with s 80 required a jury’s verdict in a trial for a Commonwealth offence to be unanimous. The Court drew a distinction between the essential and inessential features of criminal trial by jury at the time of Federation, observing:[18]
It follows from what has been said above that the history of criminal trial by jury in England and in this country up until the time of Federation establishes that, in 1900, it was an essential feature of the institution that an accused person could not be convicted otherwise than by the agreement or consensus of all the jurors. It is well settled that the interpretation of a constitution such as ours is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of the common law’s history. In the context of the history of criminal trial by jury, one would assume that s 80’s directive that the trial to which it refers must be by jury was intended to encompass that requirement of unanimity.
[17]Cheatle v The Queen (1993) 177 CLR 541 (‘Cheatle’).
[18]Ibid 552. (Emphasis added; footnote omitted.)
The High Court revisited s 80 in Brownlee,[19] in which the appellant contended that his trial upon indictment for conspiracy to defraud the Commonwealth, contrary to s 86A of the Crimes Act 1914 (Cth), had not been conducted in accordance with s 80 for two reasons: first, the jury had been reduced from the original 12 members to 10 in number; and, secondly, whilst deliberations were still on foot, jurors were allowed to separate (and return to their homes, thereby potentially being exposed to external influences). There was no question that the trial had been carried out in accordance with the applicable State law, the Jury Act 1977 (NSW), which (generally speaking) permitted the reduction of jurors in a criminal jury trial to no fewer than 10; and, if the court so ordered, permitted the jury to separate after retirement to consider their verdicts. The High Court held that s 68(1) of the Judiciary Act 1903 (Cth) picked up the relevant provisions of the Jury Act 1977 (NSW).
[19]Brownlee v The Queen (2001) 207 CLR 278 (‘Brownlee’).
Gleeson CJ and McHugh J observed that ‘the history of trial by jury before, and up to, the time of Federation is that it shows that the incidents of the procedure never have been immutable; they are constantly changing’.[20] They noted that Cheatle distinguished ‘between essential and inessential features’,[21] and concluded that the requirement of 12 jurors could not be considered an essential element of the meaning of jury trial as expressed by s 80.[22] Gleeson CJ and McHugh J reached a similar conclusion with respect to the jury’s separation, observing that it is ‘not an essential requirement of trial by jury that there be an inflexible general rule forbidding separation during the whole or any part of a trial’.[23]
[20]Ibid 286 [12].
[21]Ibid 287 [17].
[22]Ibid 288 [20].
[23]Ibid 290 [28].
In their joint reasons for judgment, Gaudron, Gummow and Hayne JJ also adopted the distinction drawn in Cheatle between essential and inessential elements of trial by jury; so that, ‘the question becomes whether a reduction in the number of jurors from twelve to no fewer than ten and the permission for the jury to separate after they had been charged to consider their verdict involve changes to the details of the conduct of jury trial mandated by s 80 or destroy an essential feature or fundamental thereof’.[24] Their Honours held that ‘legislation which authorises the discharge of jurors for good cause so that the trial continues with no fewer than ten jurors is not incompatible with s 80 of the Constitution’.[25] Further, since the absolute sequestration of the jury was no longer regarded as an essential element of trial by jury at the time of Federation,[26] they accepted that there was ‘no vice in allowing the members of a deliberating jury being dispersed to go about their lawful occasions and reassembling in traditional privacy’.[27]
[24]Ibid 298 [54].
[25]Ibid 303 [71].
[26]Ibid 302 [64].
[27]Ibid 392 [67], citing the observations of Grove J in R v Brownlee (1997) 41 NSWLR 139, 145–6.
The applicant’s submissions concerning s 80 proceeded on the assumption that a direction under s 64(1)(e) of the JDA diminished the standard of proof expressed by the phrase ‘beyond reasonable doubt’. As I have mentioned, counsel submitted that there is a material difference between an unreal possibility — as contemplated in Green — and an unrealistic possibility — referred to in s 64(1)(e) of the JDA.[28]
[28]See [34]–[35] above.
Assuming that the standard of proof applied in criminal trials in the Australian colonies at the time of Federation was proof beyond reasonable doubt,[29] and that it was an essential feature of the institution of trial by jury at that time, I am unable to see — as the applicant contends — that s 68(1)(e) of the JDA leads to any ‘erosion’ of that standard. Section 68(1)(e) does not diminish the standard of proof. It merely permits that standard to be explained to a jury.
[29]See Richard Glover, ‘Woolmington in Context: The Excavation of a Case’ (2023) 44 Journal of Legal History, 60; cf Brown v The King (1913) 17 CLR 570, 584–6 (Barton ACJ).
Ground 1 cannot succeed.
Conviction ground 2: Failure to give an unreliable evidence warning
Counsel for the applicant at trial sought an ‘unreliable evidence’ direction under s 32 of the JDA with respect to the evidence of RA.
The applicant’s trial counsel sought the unreliable witness direction based on RA’s evidence that he had significant issues with his memory and had admitted to using opium and prescription medication at the time of the alleged offending and during the evidence-in-chief interviews recorded in September and December 2017 (played to the jury as his evidence-in-chief). Moreover, there were many examples where, when assessed against potentially corroborative evidence, RA’s account appeared to be wrong, distorted or exaggerated.
In a ruling refusing the direction sought, the judge made the following observations (among others):
In my view, the factors relied upon by the accused to make the argument that the complainant’s evidence is unreliable or potentially unreliable can be fully or sufficiently appreciated by the jury. The unreliability factors need to be considered having regard to the nature of the evidence given by the complainant and the scope of the disputed issues in the case.
…
In some respects, [RA’s] evidence is confusing …, but I would make the following observations about these issues. These have all been readily exposed to the jury through cross examination. There is no latent condition or factor which may have affected his ability to accurately recall and narrate the disputed events.
The jury is quite capable, in my view, of appropriately assessing these matters and the weight to be given to them within their general experience. The jury are more than capable of appreciating and weighing the matters relevant to an assessment of the complainant's reliability and credibility.
…
While [RA] was, on his own evidence, affected by drugs at various times, this is not a case where he was in a constant state of intoxication. Still less is this a case where there is expert evidence concerning how the consumption of these drugs, alone or in combination, may have impacted his capacity to listen, comprehend, observe and recall events and interactions of the kind which he has detailed.
This is not a case where there is any evidence of the risk of confabulation or speculative reconstruction, apparent or latent. Even if it is accepted that [RA] was confused at times and was a poor historian, it does not follow that there is some latent risk of confabulation.
It is one thing to have a poor memory, to forget things, to have a less than adequate grasp of the detail of past transactions. It is quite another to engage in confabulation, which involves the process of substituting false events for what actually occurred.
…
I am not persuaded that the complainant’s evidence is unreliable in the relevant sense, in any event. And even if it is relevantly unreliable, there is good reason for the reasons outlined above for me not to give the direction. I won't be giving the direction. I note that I will provide a forensic disadvantage direction which highlights the difficulties and challenges faced by the effluxion of time and fading memories of witnesses. I will also provide a broad, honest but erroneous memory direction.
I detect no error in the judge’s ruling.
Section 12 of the JDA provides that, after the close of evidence, trial counsel must request the trial judge to give particular directions ‘in respect of … the matters in issue’ and evidence relevant to those matters. By virtue of s 14(1), the trial judge must give the requested direction unless there are good reasons for not doing so. Pursuant to s 32(1) a party may request, under s 12, that the judge direct the jury on ‘evidence of a kind that may be unreliable’ (a non-exclusive definition of ‘evidence of a kind that may be unreliable’ being contained in s 31). The content of the particular direction that must be given by the judge is set out in s 32(3).
The Court in Wade[30] held that
consideration of an application for a s 32 direction requires the judge to undertake a two-stage process. First, the judge must determine whether the impugned evidence is of a kind that may be unreliable,[31] either because it comes within one of the categories specified in s 31, or because of circumstances which have the effect that the evidence is of that kind.[32] Assuming the judge determines the evidence to be of that kind, the judge is then obliged to give the direction unless there are good reasons for not doing so. …
[30]Wade (a pseudonym) v The Queen [2019] VSCA 168, [28] (Priest, T Forrest and Weinberg JJA) (‘Wade’).
[31]R v Stewart (2001) 52 NSWLR 301, 320–321 [95]; R v Flood [1999] NSWCCA 198 [14] (‘Flood’).
[32]See [Hudson v The Queen] [2017] VSCA 122.
In my opinion, each of the matters relied upon by the applicant in seeking the relevant direction ‘involved issues of fact which, quintessentially, fell within the province of the jury.’[33] The jury were adequately equipped to consider any potential effect of the matters raised on RA’s memory and independent account of the events.[34] I consider that the jury were properly able to evaluate RA’s evidence without a direction under s 32. There was, therefore, no error in declining to give the direction.
[33]Danny (a pseudonym) v The Queen [2020] VSCA 8, [108] (Kyrou and Kaye JJA, and Croucher AJA) (‘Danny’).
[34]Ibid [112].
Furthermore, the judge did, in any event, give the jury directions in his charge which were apt to alert them to the potential unreliability of RA’s memory. He said:
In assessing the evidence in this case and in deciding whether you have accepted the Crown case beyond reasonable doubt, you must have regard to the following significant considerations. As I have said, many of the witnesses including the complainant have experienced faded memories. You must take that into account.
Witnesses, including the complainant, are not in a position to recall detailed context and surrounding circumstances of relevant events or some relevant events. You must take that into account. This creates a general forensic disadvantage for the accused. That is, in [the applicant’s and co-accused’s] ability to defend themselves against these charges. You must take that into account.
It has created a forensic disadvantage in testing or challenging some evidence and potentially contradicting evidence. You must bear that in mind. I instruct you, as a direction of law that you must take these disadvantages into consideration when determining whether the prosecution has proved its case beyond reasonable doubt.
Now, staying with faded memories or the effluxion of time. The honest recollections of witnesses about events that he or she believed to have occurred many years ago may be unreliable. You will easily understand that the passage of time may affect any person’s or any witness’s memory. Matter of common sense. While, in some cases, people simply forget things, in other cases their memory may become distorted. That is, they may come to remember things that did not really happen.
Human recollection is frequently erroneous and liable to distortion in this way. The likelihood of this error increases with delay. The law says that every jury must take this potential unreliability into account when considering evidence that is given after delay. You must take the potential unreliability into account in determining whether you accept [RA’s] evidence at all and if you do accept it in whole or in part, in deciding what weight to give to that evidence. In making this assessment, you must carefully consider not only whether [RA’s] evidence is honest in the sense that [RA] believes it to be true, but also whether it is, in fact, true. While you should use your common sense and experience in assessing the effect of the delay on [Ras] memory, you must also consider the possibility that he honestly believes what he is saying but he is mistaken due to the distortion of memory.
Those directions I give you as a matter of law. At the end of the day, members of the jury, when you are assessing these questions of memory, lack of recollection and the like, you will do so having regard to the evidence. You will do so having regard to the importance of the matters where they have not recollected things or did not have a full recollection. They are matters of fact for you and I say nothing about that.
The directions I am giving you here though, you must take them into account when you are considering those matters and ultimately, when you are asking yourself whether the prosecution has proved its case beyond reasonable doubt.
It may be observed that the directions set out immediately above are not far removed from those that the judge would have been required to give under s 32(3) of the JDA had he determined that an unreliable witness warning was required. Accepting that the directions did not distinctly direct the jury that the RA’s evidence may have been unreliable because of matters personal to him — particularly his illicit (and other) drug use around the time of the alleged offending and the evidence interviews — they did instruct the jury to take into account RA’s ‘faded memories’, and the fact that human recollection ‘is frequently erroneous and liable to distortion’. And the judge specifically directed the jury that they must take the potential unreliability of RA’s memory into account ‘in determining whether you accept [his] evidence at all and if you do accept it in whole or in part, in deciding what weight to give to that evidence’.
As I have said, I am not persuaded that the judge erred in failing to give a direction under s 32.
Ground 2 must fail.
Sentence ground 1: Family hardship?
An important part of the applicant’s plea revolved around the family hardship that would be caused by the imposition of an immediate term of imprisonment, ‘the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants’ being a relevant consideration under s 16A(2)(p) of the Crimes Act 1914 (Cth).
In his reasons for sentence, the judge said:
I have concluded that the hardship likely to be experienced by your family, were you to be sentenced to a period of immediate imprisonment, is significant but not so significant that it should weigh heavily in the sentencing calculus and result in a discernible reduction. In forming that view, I have had regard to the nature and seriousness of your offending, which was protracted and calls for both general deterrence and denunciation.
There was material before the judge to suggest that: the applicant was the sole breadwinner; his absence will cause his wife significant financial distress; his wife was concerned about the effect the applicant’s absence might have on their son’s development in his formative years; the applicant’s wife does not have any other family in Australia, feels isolated and hopeless with her current situation, and is afraid of being alone in the family home without him; and his wife has a number of health issues.
Counsel for the applicant submitted in this Court that, in light of these matters (and injuries that the applicant’s wife incurred post-plea but pre-sentence), it was an error for the judge to determine that there should be no ‘discernible’ reduction of sentence. To the contrary, counsel submitted, there should not only have been some reduction, but it should have been discernible.
I am unable to see that the sentencing judge’s approach discloses error. The fact that the judge was required to take family hardship into account — something that he plainly did — does not carry with it as a necessary implication that family hardship must result in a reduction in sentence. Clearly, the judge was required to consider all relevant factors — family hardship being but one relevant factor — and, in arriving at sentence, synthesise those factors and give them appropriate weight, guided always by the ultimate requirement in s 16A(1) to ‘impose a sentence … that is of a severity appropriate in all the circumstances of the offence’.
In my view, neither the judge’s reasons, nor the sentence imposed, indicate that the judge erred in his approach to the issue of family hardship.
Ground 1 cannot be upheld.
Sentence ground 2: Manifestly excessive sentence?
Notwithstanding that the applicant did not have available the ameliorating influence of a plea of guilty, I regard the individual sentences; the total effective sentence; and the non-parole period; to be stern.
Although the applicant had contested a trial; his moral culpability was found to be high; and his was a serious example of the offence (involving the exploitation of a vulnerable individual over more than a year and a half); it cannot be denied that the delay in finalising the charges against him was truly exceptional: the offending period ended in March 2017; the applicant was charged on 24 January 2018; and the applicant was not sentenced until 30 January 2024. Moreover, the applicant’s capacity to practise as a medical practitioner during much of the delay was severely curtailed — it is to be doubted that he will be able to practise as a medical practitioner in the foreseeable future (if ever at all) — so much constituting significant extra-curial punishment.
Had I been sentencing at first instance, the delay and the extra-curial punishment arising from his loss of profession would have led me to impose a less severe sentence than that imposed by the trial judge. That, however, is not determinative. The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge in the sound exercise of the sentencing discretion. Synthesising all relevant features, I have been unable to conclude that it was.
Ground 2 fails.
Conclusion
Both the application for leave to appeal against conviction, and the application for leave to appeal sentence, must be refused.
NIALL JA:
I have had the advantage of reading in draft the reasons for judgment of Priest JA. I agree with those reasons and that each application for leave should be refused.
TAYLOR JA:
I agree, for the reasons expressed by Priest JA, that the applications for leave should be refused.
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