Set aside the order of the Court of Criminal Appeal of New South Wales. In lieu thereof order that the appeal to that Court be allowed, the convictions be quashed and there be a new trial on all counts on which the appellant was convicted.
On appeal from the Supreme Court of New South Wales
Representation:
C A Porter QC with S Kaur-Bains for the appellant (instructed by Segal Litton & Chilton)
A M Blackmore with R D Ellis for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Mark Fleming v The Queen
Criminal law – Appeal – Trial by judge sitting alone – Failure by judge to include in reasons for judgment a warning required to be given to jury – Whether failure demonstrates a breach of Criminal Procedure Act 1986 (NSW), s 33(3) – Whether failure amounted to a wrong decision on a question of law – Whether, despite failure, no substantial miscarriage of justice occurred.
Criminal law – Appeal under Criminal Appeal Act 1912 (NSW), s 6 – Nature of appeal – Relevance of phrase "unsafe and unsatisfactory".
GLEESON CJ, McHUGH, GUMMOW, KIRBY AND CALLINAN JJ. On 9 October 1998, orders were made allowing this appeal. What follows are the reasons of the Court for the making of those orders.
Introduction
In Soulemezis v Dudley (Holdings) Pty Ltd[1], McHugh JA pointed out that until a century ago the judges of the common law courts trying civil actions were not concerned with deciding questions of fact. Facts were the province of the jury which gave no reasons and could not be interrogated as to the facts they found or the principles they had applied[2]. His Honour continued[3]:
"Speaking generally, neither by way of appeal nor by way of the prerogative writs was there much scope for the common law to raise the question whether the failure by an inferior tribunal to give reasons for its decision was an error of law.
But in the last century the creation of rights of appeal by statute, the enactments of stated case and review procedures, and the transfer to the judges of the power to decide questions of fact have provided a fertile jurisdictional basis for the question to be raised."
[2]Further, there was a practice in Chancery before the enactment of legislation in the mid‑nineteenth century to send issues of disputed legal rights, titles and interests to the common law courts to…
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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Details
AGLC
Fleming v The Queen [1998] HCA 68
Case
[1998] HCA 68
Decision Date
CaseChat Overview and Summary
The appeal concerned Mark Fleming (the appellant) and The Queen. The appellant had been convicted by a judge of the New South Wales District Court, sitting alone, on four charges: three counts of aggravated indecent assault and one count of sexual intercourse with a person under the appellant's authority who was between 10 and 16 years of age. The appeal to the High Court of Australia arose after the Court of Criminal Appeal of New South Wales had dismissed his appeal against conviction.
The central legal issues before the High Court were whether the judge's failure to include in his reasons for judgment a warning that was required to be given to a jury in similar circumstances constituted a breach of section 33(3) of the Criminal Procedure Act 1986 (NSW). This, in turn, raised the question of whether such a failure amounted to a wrong decision on a question of law, and if so, whether a substantial miscarriage of justice had nonetheless occurred. The Court also considered the nature of an appeal under section 6 of the Criminal Appeal Act 1912 (NSW) and the relevance of the phrase "unsafe and unsatisfactory" in that context.
The High Court reasoned that section 33(3) of the Criminal Procedure Act 1986 (NSW) imposed a mandatory requirement on a judge sitting alone to include in their reasons for judgment a warning that would have been required to be given to a jury. The judge's failure to do so in this case meant that the decision was a wrong decision on a question of law. Given the nature of the evidence, which the trial judge himself described as "essentially one of oath against oath," the Court concluded that the absence of the required warning meant that the convictions were unsafe and unsatisfactory, and therefore a substantial miscarriage of justice had occurred.
Consequently, the High Court allowed the appeal, set aside the order of the Court of Criminal Appeal of New South Wales, and in lieu thereof ordered that the appeal to that Court be allowed, the convictions be quashed, and a new trial be held on all counts on which the appellant had been convicted.
Orders
Orders of the court
1.
Appeal allowed.
2.
Set aside the order of the Court of Criminal Appeal of New South Wales. In lieu thereof order that the appeal to that Court be allowed, the convictions be quashed and there be a new trial on all counts on which the appellant was convicted.
Background
Background to the litigation
The appeal requires consideration of the construction of Pt 9 of the Criminal Procedure Act 1986 (NSW) ("the Criminal Procedure Act") and the relationship between Pt 9 and ss 5 and 6 of the Criminal Appeal Act 1912 (NSW) ("the Criminal Appeal Act"). Part 9 was inserted in the Criminal Procedure Act by the Criminal Procedure Legislation (Amendment) Act 1990 (NSW) ("the Amendment Act"). Whilst Pt 9 is headed "Trial by jury on indictment", ss 32 and 33 thereof provide in certain circumstances for the trial of persons on indictment to be conducted by a judge alone and require the judgment to include certain matters. Provisions to similar but not identical effect are made in the law of South Australia[4], Western Australia[5] and the Australian Capital Territory[6].[4]Juries Act 1927 (SA), s 7.[5]Criminal Code (WA), ss 651A, 651B.[6]Supreme Court Act 1933 (ACT), ss 68A‑68C.The facts The appellant was tried at Gosford before a judge of the New South Wales District Court (Luland DCJ) sitting alone. He was convicted on three charges (counts 1, 2 and 3) of aggravated indecent assault contrary to s 61M(1) of the Crimes Act 1900 (NSW) ("the Crimes Act")[7] and on one charge (count 4) of sexual intercourse with a person of or above the age of 10 years and under the age of 16 years, being a person under the authority of the appellant, contrary to s 66C(2) of the Crimes Act[8]. The judge delivered reasons for judgment in which he concluded he was satisfied beyond reasonable doubt that the prosecution had proved each of the offences. His Honour sentenced the appellant on counts 1, 2 and 3 to a fixed term of 12 months imprisonment commencing 18 February 1997 and expiring 17 February 1998, and upon count 4 to a total effective sentence of penal servitude of four years, consisting of a minimum term of two years penal servitude and an additional term of two years, expiring 17 February 2001.[7]Section 61M(1) states:"Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years."[8]Section 66C(2) states:"Any person who has sexual intercourse with another person who:(a)is of or above the age of 10 years, and under the age of 16 years; and(b) is (whether generally or at the time of the sexual intercourse only) under the authority of the person,shall be liable to penal servitude for 10 years." The case for the prosecution had been that the complainant was a 15 year old female pupil at the school where the appellant was Deputy Principal. He also was the complainant's mathematics teacher. She had visited the appellant in his office almost daily during recesses and lunch breaks to discuss her emotional problems arising from an eating disorder and her stressful family situation. Each of the offences had occurred over a period of about six weeks outside the appellant's office, at places where they had met by arrangement or where they had gone together. The circumstances of aggravation were the age of the complainant and the appellant's position of authority. The prosecution did not have to prove any absence of consent by the complainant. Rather, the prosecution case was that the complainant had been infatuated with the appellant and had been a willing participant in each of the offences which were charged. Both the complainant and the appellant gave evidence and were subjected to detailed cross‑examination. As Sully J put it, "this case was essentially one of oath against oath".The appeal