Landsman v The Queen
[2014] NSWCCA 328
•19 December 2014
Court of Criminal Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Landsman v R [2014] NSWCCA 328 Hearing dates: 25 August 2014 Decision date: 19 December 2014 Before: Beazley P at [1];
Hidden J at [90];
Fullerton J at [91]Decision: The question submitted by Blanch J, Chief Judge of the District Court, pursuant to the Criminal Appeal Act 1912 (NSW), s 5B is answered "No".
Catchwords: CRIMINAL LAW - stated case - Criminal Appeal Act 1912 (NSW), s 5B - whether stated case raises a question of law
CRIMINAL LAW - Appeal in the District Court against conviction in the Local Court by way of rehearing - Fresh evidence - Crimes (Appeal and Review Act) 2001 (NSW), s 18(2) - whether adducing fresh evidence in the "interests of judgment" - post-conviction admission made to Corrective Services Officer during interview to assess applicant's suitability for intensive correction order - interview conducted pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW) - whether applicant denied common law right of silence
WORDS AND PHRASES - "interests of justice"Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Crimes (Sentencing Procedure) Regulation 2010 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)Cases Cited: Andrews v The Queen [1968] HCA 84; 126 CLR 198
Australian Gas Light Co v Valuer-General (1940) 40 SR NSW 126
Banner [1970] VR 240 at 252
BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400
Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358
Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
Clyne v Wrigley [1980] 1 NSWLR 599
Coco v The Queen [1994] HCA 15; 179 CLR 427
Dietrich v R [1992] HCA 57; 177 CLR 292
Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627
D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1
Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302
Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58; 63 WN (NSW) 45
Gerakiteys v R [1984] HCA 8; 153 CLR
Hall (1970) 55 Crim App R 108
Hammond v R [2013] NSWCCA 93
Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601
Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1
King v the Queen [1986] HCA 59; 161 CLR 423
Landsman v DPP [2013] NSWCA 369
Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 56
Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196
Lee v The Queen [2014] HCA 20; 88 ALJR 656
McDermott v The Queen [1948] HCA 23; 76 CLR 501
Mickelberg v R [1989] HCA 35; 167 CLR 259
Mraz v R (No 1) [1955] HCA 59; 93 CLR 493
R v Bikic [2001] NSWCCA 537
R v De-Cressac [1985] 1 NSWLR 381
R v Dunlop [2007] 1 WLR 1657
R v FE [2013] NSWSC 1692
R v Gudgeon (1995) 83 A Crim R 228
R v Laird (1893) (1893) 14 LR (NSW) 354
R v McCarthy; R v Ryan (1993) 71 A Crim R 395
R v Miell [2008] 1 WLR 627
R v Pitts (No 1) [2012] NSWSC 1652; 229 A Crim R 387
R v Taufahema [2007] HCA 11; 228 CLR 232
R v Zamagias [2002] NSWCCA 17
Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326
Reid v The Queen [1980] AC 343
Rice v Connolly [1966] 2 QB 414
Rogers v The Queen [1994] HCA 42; 181 CLR 251
Ryan v Marshall [1965] Tas SR 1
Sorby v Commonwealth [1983] HCA 10; 152 CLR 281
Stafford (1976) 13 SASR 392
Talay v R [2010] NSWCCA 308
TDP v R; R v TDP [2013] NSWCCA 303
The Queen v Lee [1950] HCA 25; 82 CLR 133
Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439
Weiss v R [2005] HCA 81; 224 CLR 300
Williams v R [1986] HCA 88; 161 CLR 278
X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92Category: Principal judgment Parties: Warren Brent Landsman (Applicant)
Regina (Respondent)Representation: Counsel:
P Lange (Applicant)
V Lydiard (Respondent)
Solicitors:
File Number(s): 2011/347713
Stated Case
Court/Tribunal: District Court
Before: Blanch J, Chief Judge of the District Court
Court File Number(s): 2011/347713
Judgment
BEAZLEY P: This matter concerns a question submitted to the Court of Criminal Appeal by the Chief Judge of the District Court, Justice Blanch, pursuant to the Criminal Appeal Act 1912 (NSW), s 5B. Section 5B provides, relevantly:
"5B Case stated from District Court
(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit."
The question submitted to the Court was as follows:
"1. Factual Background
1A. On 18 October 2012, at the Downing Centre Local Court the Applicant was found guilty, after a summary hearing, of two counts of Assault Occasioning Actual Bodily Harm. The Applicant neither gave nor called evidence at the Local court hearing but contended that the identification evidence called by the prosecution was not capable of satisfying Her Honour beyond a reasonable doubt that he was the assailant in relation to either offence.
1B. Having found the Applicant guilty of each offence Her Honour ordered that, prior to being sentenced, the Applicant undergo an assessment by an officer employed by the Department of Corrective Services to determine his suitability to serve any sentence imposed by way of an intensive correction order.
1C. For the purposes of conducting the assessment, the officer interviewed the Applicant on 8 November 2012. The Applicant was counselled by the Corrective Services Officer to tell the truth during the assessment. The officer has subsequently made a statement, dated 29 March 2013, in which he states that he asked the Applicant, 'In your own words tell me what happened on the night of the offence'. The Applicant replied, 'I was at a dress up party. I bumped into two other guys. There was a verbal altercation with these two other guys which became physical, I hit each of the males once'.
1d. The Applicant was subsequently sentenced in the Local Court to serve an intensive correction order and lodged an appeal against his convictions to the District Court.
2. Determination
2A. On 2 May 2013, the Respondent sought leave, pursuant to section 18(2) of the Crimes (Appeal and Review) Act 2001, to call in the District Court Appeal proceedings fresh evidence from the Corrective Services officer as to the contents of the statement set out above. I determined that it was in the interests of justice to allow the Respondent to adduce that fresh evidence at the appeal and made such an order. At the same time I also granted leave to the Applicant to call fresh evidence, should he wish to raise self-defence in his appeal proceedings.
3. Questions of Law for Determination
3A. On the hearing of an appeal against conviction under s. 18 Crimes (Appeal and Review) Act 2001, is it capable of being in the interests of justice to grant the prosecution leave to adduce as fresh evidence an admission made by [the applicant] to a Corrective Services Officer, after a finding of guilt in the Local Court, the admission being made in the course of the preparation of an 'ICO' assessment report for the purpose of sentencing [the applicant]?"
The applicant submits that the answer to this question is "no". The primary submission of the Crown is that the Court should decline to answer the question because the question as posed is a question of fact. If the Court considers that it has jurisdiction, the Crown submits that the question for determination should be answered in the affirmative.
Relevant legislation
The applicant appealed against his conviction in the Local Court pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (the Act), s 11. Section 11 relevantly provides:
"11 Appeals as of right
(1) Any person who has been convicted ... by the Local Court may appeal to the District Court against the conviction ..."
Section 18 of the Act provides:
"18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings ...
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence."
"Fresh evidence" is defined in the Crimes (Appeal and Review) Act, s 3 as meaning, in relation to appeal proceedings, "evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen". In a conviction appeal pursuant to s 18, the District Court "may exercise any function that the Local Court could have exercised in the original Local Court proceedings": Crimes (Appeal and Review) Act, s 28.
Submissions of the applicant
The applicant submitted that the question posed by Blanch J was suitable for a stated case under the Criminal Appeal Act, s 5B because it had been posed in a way such that there can only be one answer to it. The applicant contended that the question should be answered in the negative because it was not capable of being in the interests of justice to grant the prosecution leave to adduce as fresh evidence the applicant's admission in the circumstances of this case. He submitted that this was because it cannot be in the interests of justice for the Crown to be in a position to supplement its case in circumstances where it failed to adduce sufficient evidence at first instance.
The applicant was not able to find any authority for this submission in relation to the Crimes (Appeal and Review) Act, s 18(2) but submitted that an analogy could be drawn with appeals on indictment. The applicant placed emphasis on the proposition that if a conviction appeal is successful where the evidence at first instance was insufficient, an acquittal, rather than a retrial should be ordered: Andrews v The Queen [1968] HCA 84; 126 CLR 198 at 211; Gerakiteys v R [1984] HCA 8; 153 CLR 317 at 322 per Gibbs CJ, 331 per Deane J; King v the Queen [1986] HCA 59; 161 CLR 423 at 433 per Dawson J; R v Taufahema [2007] HCA 11; 228 CLR 232 at [52] per Gummow, Hayne, Heydon and Crennan JJ.
The applicant submitted that this principle is grounded not only on notions of fairness to the accused person, but on the principle of double jeopardy. This principle, he contended, was dictated by the interests of justice which was the basis for determining whether a re-trial or an acquittal should be ordered: see Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; 154 CLR 627 at 630, where the High Court observed:
"The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case." (emphasis added)
The applicant submitted that where a person successfully appealed against conviction on the basis of the insufficiency of the prosecution evidence, the interests of justice did not permit a balancing of other factors so as to permit the Crown to proceed against the person a second time: see Reid v The Queen [1980] AC 343 at 347-348.
The applicant contended that the same reasoning applied by analogy to the application to adduce fresh evidence in this case. The applicant submitted that on the conviction appeal, he will contend that the evidence before the magistrate was insufficient to convict him. In those circumstances, the applicant submitted that the prosecution should not have the benefit of an opportunity to supplement its case and remedy any defect that the Crown case had at first instance, by adducing the evidence of the appellant's post-conviction statement. It should be noted that the question of the admissibility of the evidence has not been determined.
As the applicant recognised, there is no limitation in s 18 which prevented the Crown from seeking to adduce further evidence on a conviction appeal. The applicant submitted, however, that to the extent that the Crown could seek to adduce fresh evidence, it must never be permitted to do so if its purpose was to supplement its case against the accused at first instance. The applicant submitted that his argument derived support from the proposition that post-conviction admissions were not material to the question whether the proviso in the Criminal Appeal Act, s 6 should be applied: R v De-Cressac [1985] 1 NSWLR 381.
The applicant also placed emphasis upon the particular circumstances of this case which, he submitted, meant that the interests of justice would not be served by the evidence of his post-conviction statement to the Corrective Services Officer being allowed to be adduced in evidence against him. The applicant's post-conviction statement was made during the preparation of a report assessing his suitability to serve a sentence of imprisonment in the community by way of an intensive corrections order. Such an order may only be made where the court has determined to impose a custodial sentence: Crimes (Sentencing Procedure) Act 1999 (NSW), s 7. If the court has made that determination, it may refer the person for an assessment as to suitability for an intensive corrections order: Crimes (Sentencing Procedure) Act, s 69(1). The applicant pointed out that the magistrate, at the time of referring him to the Commissioner of Corrective Services, must have already determined that the applicant was to be sentenced to a term of imprisonment: R v Zamagias [2002] NSWCCA 17.
In those circumstances, the applicant submitted that he had a very real incentive to accept responsibility for the actions the subject of the charges as part of the assessment process and that there was a very real question whether the statement was voluntary or, even if voluntary, was the product of a powerful inducement. In this regard, the applicant placed emphasis on the fact that the Corrective Services Officer conducting the assessment instructed him "to tell the truth during the assessment". The applicant submitted that it cannot be in the interests of justice to encourage an offender to admit his guilt of an offence for the purposes of assessing the offender's prospects of rehabilitation, while at the same time depriving the offender of the possibility of challenging a conviction on the basis of a lack of evidence.
The applicant also contended that if fresh evidence could be adduced in circumstances such as those that arose here, an anomalous position would arise whereby evidence of a post-conviction statement could be adduced on an appeal under the Crimes (Appeal and Review) Act, s 11, but that such evidence could not be given on an appeal under s 53 of that Act. Pursuant to s 53(1)(b), a person convicted of an offence in the Local Court may seek leave to appeal to the Supreme Court on a ground that involves a question of mixed fact and law. On such an application, there is no provision analogous to s 18(2), which means that an applicant would not be exposed to the risk that a post-conviction admission might be led in evidence against him.
Crown submissions
The Crown's primary submission was that the question as framed by Blanch J was not a question of law. The Crown recognised that if on the facts found only one conclusion is open, a question of law would arise: Hope v Bathurst City Council [1980] HCA 16; 144 CLR 1 at 9; Australian Gas Light Co v Valuer-General (1940) 40 SR NSW 126. However, the Crown pointed out that the phrase "interests of justice", which is not defined in the Act, are words of the widest import. As Kirby J, in a different context, observed in Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613:
"Those words 'in the interests of justice' are plainly words of the widest possible reference. Indeed, there could scarcely be a wider judicial remit. They enliven a discretionary judgment ..."
The Crown submitted, therefore, that the breadth of the phrase was such that it would be difficult for a court, determining whether a particular matter was in the interests of justice, to find that only one conclusion was open. Accordingly, it contended that the case stated pursuant to the Criminal Appeal Act, s 5B did not submit a question of law. Rather, Blanch J's determination was a discretionary ruling in respect of fresh evidence on a conviction appeal. It pointed out that a discretionary ruling on the admission of evidence could not be a question of law. Nor could the exercise of a discretion raise a question of law, where the question is its exercise in relation to the facts of the particular case: Williams v R [1986] HCA 88; 161 CLR 278 at 302.
The Crown also submitted that the question as formulated required consideration of the facts in the exercise of judicial discretion in determining whether it was in "the interests of justice" to permit fresh evidence. Indeed, the Crown doubted whether the question of what is in the interests of justice could ever solely be a question of law. In this regard, the Crown referred to authority in which emphasis was placed on the particular facts of a case in the interpretation of that phrase: Dietrich v R [1992] HCA 57; 177 CLR 292 per Dawson J at 349 and per Toohey J at 360. The Crown submitted that to determine whether the Court is satisfied that it would or would not be in the interests of justice for the fresh evidence to be given requires a consideration of the facts of each case where the question arises. The Crown submitted that it can only be a question of fact.
If the Court of Criminal Appeal considered that it should answer the question in the stated case, the Crown submitted that the question should be answered in the negative.
The Crown submitted that the Court should reject the applicant's submission that the Crown should not be allowed to supplement its case at trial by relying on the Crimes (Appeal and Review) Act, s 18(2). The Crown submitted that the applicant's argument ignores the fact that an appeal from the Local Court to the District Court is by way of rehearing and that fresh evidence may be given by leave, subject to the question of whether it is in the interests of justice: see ss 18(1) and 18(2). In this regard, the Crown drew the Court's attention to Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39. In Charara, Mason P, with whom Kirby J and Hoeben J (as his Honour then was) agreed, explained, at [17]:
"The appeal is to be by way of rehearing on the Local Court transcripts (s 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s 18(2)."
In the course of his reasons, Mason P observed, at [26], that:
"... receiving any 'fresh evidence' is exceptional (under s 18(2)) ... s 18(2) is not available for the blanket trumping of s 18(1). Subsection (2) is the exception rather than the rule, and the judge must turn his or her mind to the particular 'fresh evidence' whose nature attracts the exceptional grant of leave."
The Crown submitted that there is no barrier to the Crown to applying to lead fresh evidence on an appeal by a convicted person.
The Crown emphasised that whether it is in the interests of justice for the evidence at trial to be supplemented on the appeal is a question for the judge to answer in all the surrounding circumstances and in the exercise of their judicial discretion. In this regard, the Crown referred to the remarks of Blanch J in granting leave to the Crown for fresh evidence to be given in this matter. His Honour stated:
"It appears to me that what has occurred is that the appellant has simply been honest and made a confession that he was the person who committed the assault. I have no doubt that he did that on the basis of cooperating with the probation officer bearing in mind that what was in contemplation was either a gaol sentence or a non full-time custodial sentence and it would have been very much in his interests to try to avoid going to gaol.
...
One thing that does need to be looked at is the circumstances in which it arose, and that is whether there is any unfairness or impropriety in what occurred between him and the probation officer. I see nothing in what occurred to lead to any conclusion about impropriety, it is not a case where the law requires a probation officer to give a warning, the confession seems to have been one that was volunteered in the course of an overall assessment by the probation officer and in my view it is in the interests of justice that the prosecution be allowed to call the material."
His Honour also stated that the applicant would be given leave to call evidence in rebuttal.
The Crown submitted that in granting leave, Blanch J had had regard to the fact that to the extent that the admission is in the nature of a confession, its admissibility is dependent on whether it was made voluntarily: The Queen v Lee [1950] HCA 25; 82 CLR 133 at 149, 150, of which a relevant consideration is whether it was made in consequence to an inducement by a person in authority. The Crown accepted that the Corrective Services Officer may be considered to be a person in authority: McDermott v The Queen [1948] HCA 23; 76 CLR 501. The Crown submitted, however, that there was no impropriety associated with the interview. The Corrective Services Officer was not required by law to give the applicant a warning and the Crown submitted that the confession was seemingly volunteered in the course of the overall assessment of his suitability for an intensive corrections orders. The Crown also submitted that that there is nothing to suggest that there was an inducement by any suggestion of a reduced sentence in the circumstances of this case, in which the applicant knew he was either facing gaol or a non-full time custodial sentence: R v Laird (1893) (1893) 14 LR (NSW) 354 at 358.
The Crown also rejected the analogy drawn by the applicant between this case and those cases considering the relevance of post-conviction admissions in the application of the proviso in the Criminal Appeal Act, s 6(1). The Crown submitted that those cases, considering offences prosecuted on indictment, are not relevant to appeals under the Crimes (Appeal and Review) Act arising from summary convictions. The Crown also referred the Court to the observations of Johnson J in Raumakita v R [2011] NSWCCA 126; 210 A Crim R 326 at [52] ff and TDP v R; R v TDP [2013] NSWCCA 303 at [128].
The Crown also seeks the costs of the appeal before this Court: Clyne v Wrigley [1980] 1 NSWLR 599.
Consideration
Should the Court decline to answer the stated case because no question of law is stated?
On an appeal to the District Court under the Crimes (Appeal and Review) Act, s 18, the Criminal Appeal Act, s 5B provides one of the only means to challenge the determination of Blanch J to grant the Crown leave to adduce the fresh evidence. As Basten JA has explained in Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 568 at [5]:
"There is no appeal from a decision of the District Court in its criminal jurisdiction determining an appeal from a judgment in the Local Court. Apart from judicial review pursuant to s 69 of the Supreme Court Act 1970, the only step available to an aggrieved party in the District Court is to invite the judge to submit for determination by this Court a question of law arising on the appeal to the District Court. That procedure is available under s 5B of the Criminal Appeal Act."
See also Talay v R [2010] NSWCCA 308 [16] per Simpson J (with whom Schmidt J agreed).
The avenue of challenge provided by s 5B is limited. As Basten JA observed in Lavorato, at [6]:
"The absence of any appeal from the District Court in such cases is long standing and deliberate: a case stated is not to be converted into a general right of appeal, or even one limited to error of law. Rather, the subject matter of the proceedings in this Court is identified by the questions submitted by the judge of the District Court."
Once a relevant question of law has been identified, a District Court judge is under a duty to exercise the power under s 5B to submit a question of law unless "the question is so obviously frivolous and baseless that its submission would be an abuse of process": Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58; 63 WN (NSW) 45; Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302 at [8].
The jurisdiction of the Court of Criminal Appeal is limited by the terms of the stated case. In Talay, Simpson J (Schmidt J agreeing) stated, at [17]:
"Strictly speaking, this Court may not have regard to matters outside the stated case: Madden; Thomas v The King [1937] HCA 83; 59 CLR 279. That is one reason that explains the importance of the formulation of the stated case, including, explicitly, the facts found (relevant to the questions of law posed) and the questions of law to be submitted."
See also Lavorato per Schmidt J at [71].
In this matter, the Crown contends that the Court should decline to answer the stated case. That contention should be rejected.
In Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24], Gleeson CJ, Gummow and Callinan JJ, a majority of the High Court, observed that:
"Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way ... whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only." (citations omitted)
Their Honours observed that this is why the test is often expressed in the formulation of Jordan CJ in Australian Gas Light Co v Valuer-General at 138 where his Honour observed that:
"[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law."
In Vetter, Gleeson CJ, Gummow and Callinan JJ commented that the law on this issue had been stated by Mason J, with whom Gibbs, Stephen, Murphy and Aickin JJ agreed, in Hope v Bathurst City Council at 7. Their Honours observed of that case:
"... Mason J pointed out that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour's reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open." (citations omitted)
There are numerous examples where the Court of Appeal and the Court of Criminal Appeal have accepted that a question whether the facts found are necessarily within or necessarily outside a statutory description founds jurisdiction pursuant to the Criminal Appeal Act, s 5B: see, for example, Lavorato v Regina at [13]; Hammond v R [2013] NSWCCA 93 at [24] per Slattery J, with whom Hoeben CJ at CL and Bellew J agreed; Elias v The Director of Public Prosecutions (NSW).
In this case, the question posed by Blanch J is whether, under s 18, it is "capable of being in the interests of justice to grant the prosecution leave to adduce as fresh evidence" evidence of a post-conviction admission made during the course of the accused's assessment for an Intensive Corrections Order.
Blanch J initially refused to state a case pursuant to s 5B on the basis that the applicant had not identified a question of law. The applicant successfully sought relief pursuant to the Supreme Court Act1970 (NSW), s 69 quashing Blanch J's refusal and ordering that the matter be remitted to the District Court to be heard and determined according to law: Landsman v DPP [2013] NSWCA 369.
Macfarlan JA, with whom Simpson J agreed, held, at [22], that during the applicant's stated case application before Blanch J, when he sought to have the question for referral reformulated in the terms now contained in the question submitted to the Court, the applicant raised a:
"... material question of law, that is, whether the uncontested facts before the judge were capable of supporting the judge's view that it was in the interests of justice that the leave sought be given or, to put it as the applicant's counsel did, whether the judge was bound to conclude that it was not in the interests of justice for leave to be given."
Macfarlan JA held, at [25], that this reformulated question was arguable and not futile and enlivened Blanch J's duty to submit the question for the Court of Criminal Appeal's determination.
Leeming JA agreed with Macfarlan JA's orders and expressed substantial agreement with the reasons. His Honour's reasons, although expressing some doubt about the "ultimate question" whether Blanch J was "bound" to conclude that it was not in the interests of justice for leave to the Crown be given (see at [35]-[36]), were consistent with the question as framed being a question of law in accordance with s 5B.
There may, therefore, be a real question as to whether it was open for the Crown to contend before the Court of Criminal Appeal that no question of law had been stated. Although it is accepted doctrine that issue estoppels do not bind in criminal law: see Rogers v The Queen [1994] HCA 42; 181 CLR 251, it would appear incongruous that the Crown is entitled in this Court to contradict a proposition that was necessarily decided by the Court of Appeal.
But in any event, for the reasons given by their Honours, I agree that the question in the stated case raises a question of law. There may be some circumstances where the exercise of a discretion does not give rise to a question of law. Thus, in Williams, Mason and Brennan JJ observed, at 301-302, that:
"An appeal on the ground of the wrongful rejection of evidence by a trial judge in the exercise of a discretion is not an appeal on a question of law alone. The manner in which a discretion is exercised depends upon the judge's appreciation of all the facts of the case, so that an error of law which leads the judge wrongly to hold that he has a discretion is not the only factor which contributes to his decision to reject the evidence ..." (citation omitted)
However, the mere fact that a question a court is required to determine involves a discretion or an evaluation of relevant circumstances does not automatically mean that no question of law is thereby raised. This is apparent not only from the authorities referred to above, but also from the Privy Council's decision in Reid. The Privy Council was there concerned, relevantly, with the question whether the Court of Appeal could properly order a new trial where the only evidence implicating the defendant had been discredited or was manifestly unreliable. This required a determination as to whether "the interests of justice" required a new trial rather than an acquittal.
Their Lordships observed, at 346, that "the interests of justice" required the balancing of various interests which were not only confined to the interests of the applicant and which pointed in different directions, some of which favoured a new trial and some of which did not. Notwithstanding that there were different interests to be considered, their Lordships concluded that it would be an error of principle to order a new trial in circumstances where the evidence at the original trial was insufficient to convict the accused person. In other words, there was only one answer to the question posed as to whether it was in the interests of justice to order a new trial.
Was it capable of being in the interests of justice to grant the prosecution leave to adduce the fresh evidence?
The use that a prosecutor may make of post-conviction admissions has been the subject of judicial comment in a number of cases, although no determinative principle has emerged and none of the cases involved the question in issue here. Nonetheless, it is instructive to consider those decisions to see if any useful guidance can be found. It is convenient to consider the cases chronologically.
In R v De-Cressac, the question for the court was whether the proviso under the Criminal Appeal Act, s 6(1) should be applied where the convicted applicant had made an apparent admission of guilt to a probation and parole officer and which was recorded in a post-trial pre-sentence report. To that extent, the facts are similar to those that apply here. The proviso contained in s 6(1) provides:
"... that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
Street CJ, with whom O'Brien CJ of Cr D agreed, considered that there had been a substantial miscarriage of justice in the trial judge's directions to the jury on the evidence of identification of the accused. Street CJ, at 390, observed that the apparent post-conviction confessional statement of the accused raised a dilemma for the Court in determining whether to apply the proviso. The competing considerations, in his Honour's assessment, were the use of "the resources of the court system by putting up a guilty man for re-trial" on the one hand and the maintenance of the integrity of the substantive and procedural principles governing criminal trials on the other. His Honour, having observed that the deficiency in the trial was not minor, asked:
"Is it, then, open to this Court, where there has been a substantial miscarriage in the established requirements governing a criminal trial to hold, on the basis of later evidence establishing guilt, that there was no substantial miscarriage of justice."
His Honour considered that the post-conviction statement ought not be taken into account in determining whether there had been a miscarriage of justice. His Honour paid regard to the principles stated in Mraz v R (No 1) [1955] HCA 59; 93 CLR 493 at 514, that where, because of some failure in the trial process the applicant had lost a chance of acquittal which was otherwise open, there is, in the eye of the law, a miscarriage of justice. Street CJ concluded, therefore, that the proviso should not apply and there should be a new trial. His Honour left open the question of the admissibility of the statement made by the applicant to the probation and parole officer in any retrial.
Hodgson J considered that regard could be had to a post-conviction statement in determining whether there had been a miscarriage of justice. However, his Honour determined not to act upon the statement for a number of reasons, including that there was a question as to whether the statement to the probation and parole officer was voluntary in the sense of whether it have been made in the exercise of a free choice to speak or to be silent. As his Honour was not satisfied that a jury would necessarily have convicted, even had they been properly instructed, he held that the proviso in s 6(1) did not apply.
In R v McCarthy; R v Ryan (1993) 71 A Crim R 395 the applicant Ryan gave evidence on sentence in an attempt to reduce the extent of her culpability for the offence of which she had been convicted. Hunt CJ at CL (Wood J agreeing, Smart J dissenting on this point) considered that, for that reason, the matter was distinguishable from De-Cressac. His Honour concluded that the proviso did not apply because the applicant's evidence did not necessarily constitute a clear admission. Hunt CJ at CL was also inclined to prefer the approach of Hodgson J in De-Cressac rather than the "blanket approach" taken by Street CJ.
In R v Gudgeon (1995) 83 A Crim R 228 the applicant, who was not legally represented, had given evidence at his trial during which he admitted to having committed the conspiracy with which he was charged. MacPherson JA and Thomas J held that the absence of legal representation did not result in a miscarriage of justice such that there should be a new trial. Their Honours observed, at 246:
"In the face of the prosecution evidence against him, he had no realistic chance of acquittal. His testimony at the trial serves to confirm that conclusion. It also shows that the appellant cannot now look towards a further chance of acquittal at a fresh trial in the future. It would be pointless to order such a trial if the only consequence would be that his guilt would be established yet again with the assistance of the evidence he gave at the trial from which the appeal is now brought."
Their Honours observed that there were rules governing the admissibility of evidence of confessions or admissions made out of court relied upon to prove guilt. The fact that a warning had not been given or understood might be a circumstance where a confession or admission of guilt is rejected on grounds of unfairness. However, the case with which their Honours were concerned involved evidence given by the applicant in court during the course of his trial. Their Honours considered, therefore, that the "reception of such evidence at any future trial could ... not be characterised as improper or unfair". Their Honours also commented that if the court was not entitled to act upon evidence given in cross-examination at trial, the effect of the Evidence Act 1977 (Qld), s 15(1) would be nullified. Section 15 provided that an accused person who gave evidence at trial was not entitled to refuse to answer a question put to him or her in cross-examination on the ground that to do so would tend to prove the commission by him or her of the offence of which he or she was charged.
Fitzgerald P, although agreeing with the majority that there had been no miscarriage of justice, did not agree with their Honours' approach to the use of the applicant's evidence at trial. His Honour's concern was that much of the prosecution case was based upon the apparently unlawful or improper activities of the police who had possibly facilitated the drug importation which was the basis of the conspiracy with which the applicant was charged. His Honour considered that in any event, the strength of the prosecution evidence did not affect a person's entitlement to a fair trial.
In R v Bikic [2001] NSWCCA 537, the Court was concerned with the question whether there had been a miscarriage of justice in the applicant's trial by the failure of his counsel to call certain witnesses. The applicant sought to place before the Court new evidence, the effect of which was intended to prove that he was not present and did not participate in certain events when the shootings with which he had been charged occurred. One witness called on the application to adduce new evidence was Mr Mackic.
Mr Mackic objected to answering questions in cross-examination pursuant to the Evidence Act 1995, s 128, which protects a person against giving evidence that may incriminate the person in other proceedings. The objection was taken on the basis that his answers might prejudice any appeal he might bring in relation to his convictions for manslaughter in connection with the same offences for which Mr Bikic was charged. Relying on Street CJ's judgment in De-Cressac, the Court held that a post-conviction confession of guilt could not be taken into account in determining whether the proviso under s 6(1) should apply. Accordingly, the Court held Mr Mackic had not demonstrated that there were "reasonable grounds for the objection" to giving the evidence in Mr Bikic's trial.
In Raumakita, it was not necessary to determine whether a post-conviction admission made to a psychiatrist, who was interviewing the appellant for the purposes of the preparation of a report on sentence, could be used in determining whether to apply the proviso in s 6(1). Johnson J, however, observed, at [54], that having regard to the comments of this Court in De-Cressac, any submission suggesting such an approach would be viewed with considerable caution. His Honour also referred to the remarks of Hayne, Crennan and Kiefel JJ, with whom Heydon J agreed, in Cesan v The Queen; Mas Rivadavia v The Queen [2008] HCA 52; 236 CLR 358 at [131], that no weight could be attached to what was said in a letter to the sentencing judge in determining whether there was no substantial miscarriage of justice for the purposes of the proviso in s 6(1).
The issue also arose in TDP. In that matter, the Crown submitted that if the applicant succeeded on any of his grounds of appeal, certain post-conviction admissions were relevant to the application of the proviso and the Court of Criminal Appeal's determination whether to order a new trial under the Criminal Appeal Act, s 8 rather than direct an acquittal under s 6(2). The relevant admissions in that case were made by the applicant to a psychologist who was preparing a report for the sentence proceedings. That report, which was tendered by the applicant's counsel in the sentence proceedings, recorded that the applicant was advised that the purpose of the assessment was to provide a report to the Court, that he was advised that what he disclosed would not remain confidential and that he had provided written consent for the information given to be used in the report.
As none of the applicant's grounds of appeal had been successful, it was not necessary for the Court to determine the Crown's contention. Hoeben CJ at CL, with whom Blanch J and R A Hulme J agreed, however, noted, at [125], a number of preliminary difficulties with the submission, including whether in fact an admission had been made, whether the admissions in fact covered all of the counts and the fact that the "wording of the s 6(1) proviso directs attention to the evidence that was before the jury at trial (Cesan v The Queen at [123]-[129])". Hoeben CJ at CL then went on to observe that the Crown would also have to overcome the observation by Hayne, Crennan and Kiefel JJ, with whom Heydon J agreed, in Cesan at [131], where their Honours observed:
"Finally, some weight was given by the majority in the Court of Criminal Appeal to a letter written by Mr Cesan to the trial judge after the jury had returned a guilty verdict and before sentence was passed. The majority in the Court of Criminal Appeal considered that, in the letter, he admitted his guilt of the offence charged. The letter was written for the evident purpose of mitigating the sentence that was then to be passed upon Mr Cesan. To do other than accept the jury's verdict would have aggravated the sentence. No weight can be attached to what was said in the letter in deciding whether there was no substantial miscarriage of justice" (citations omitted).
Hoeben CJ at CL concluded, at [128], that he had:
"... considerable doubts as to whether an 'admission' such as occurred in this case could influence the application of the proviso in s6(1) Criminal Appeal Act 1912. It may, however, have become significant if there were a real issue as to whether the appropriate order was one for acquittal or for a retrial. That issue, however, does not arise for decision in this case."
Two English cases have considered the use of post-conviction confessions in determining whether to retry a person acquitted of a serious offence pursuant to the Criminal Justice Act 2003 (UK). Part 10 of that Act makes provision in specified circumstances for the quashing of an acquittal and the retrial of a defendant.
In R v Dunlop [2007] 1 WLR 1657 the Crown, on the applicant's second retrial for murder, offered no evidence and a not guilty verdict was entered. Subsequently, whilst serving a sentence in prison for an unrelated matter, the applicant admitted to a prison officer on a number of occasions that he had been responsible for the murder of which he had been acquitted. The Crown made application for the applicant to be retried under the provisions of Pt 10 of the Criminal Justice Act. The Court was of the opinion that there was no injustice in allowing a retrial. The Court concluded that the public:
"... would be rightly outraged were the exception to the double jeopardy rule not to be applied in the present case simply on the basis that Dunlop would not have made the confessions had he appreciated that they might lead to his retrial."
In R v Miell [2008] 1 WLR 627 the Court rejected an application that there be a new trial following Mr Miell's acquittal of the murder charge in circumstances in which he had given evidence at the trial. Whilst in prison in respect of other offences, Mr Miell made a number of statements confessing to the murder and subsequently pleaded guilty to perjury in respect of the evidence he had given at his murder trial. The confessions were made prior to the introduction of Pt 10 of the Criminal Justice Act. The background to the making of the confessions, including one made in a formal interview in which he had been cautioned, was that Mr Miell was studying to become a Jehovah's Witness and needed to clear his conscience before he could be baptised.
Following the introduction of Pt 10, the Crown brought an application for retrial. The Court was not persuaded that the new evidence, being the confessional statements, was reliable and thus refused the application for a retrial. The Court added, relevant to the matter in issue in the case before this Court, that had they not been required to form their own view of the reliability of the confession, they would have held it contrary to "the interests of justice" to require Mr Miell to stand trial again. One reason for that view related to the application of the Police and Criminal Evidence Act 1984 (UK), s 74. The Court considered that the effect of that section was that on any retrial for murder, the conviction for perjury would establish that Mr Miell had committed perjury unless he proved to the contrary. The perjury conviction would thus stand as reliable, substantial and highly probative evidence of the fact that he had committed perjury when he denied committing the murder and thus compelling evidence of the fact that he was the murderer. The Court considered that the effect of the perjury convictions in respect of the evidence he gave at his earlier murder trial would, on any new trial, be to shift the burden of proof to Mr Miell. This would offend the basic principle that the Crown bore the onus of proving that a person was guilty of the offence charged.
Some further observations
In the present case, although the matter before the District Court is an appeal, it is an appeal by way of a rehearing in respect of which "fresh evidence" may be given if the Court is satisfied that it is in the interests of justice that the evidence be given: see the Crimes (Appeal and Review) Act, s 18(1). Accordingly, the authorities discussed above do not apply directly to the issue presently before this Court. However, these cases do demonstrate that there has been a resistance by courts in both Australia and England to using post-conviction statements for the purposes of determining whether the proviso in s 6(1) of the Criminal Appeal Act applies and whether there should be a new trial or an acquittal. However, as in the decision in Dunlop, much will depend upon the circumstances in which a post-conviction statement is made. The decision in Miell indicates that if to allow the post-conviction statement would compromise some basic aspect of the criminal justice system, such as the requirement that the Crown bears the onus of proof of the charge, the "interests of justice" would dictate that the post-conviction statement not be admitted.
This resistance to the use of post-conviction confessional statements in the authorities to which I have referred has been based upon some infringement of legal principle or upon a recognised aspect of the interests of justice. Thus, in De-Cressac, Street CJ pointed out that the principles governing the determination as to whether there had been a substantial miscarriage of justice in a particular case were sometimes conflicting. In that case, the competing principles were the use of the Court system for the re-trial of a person who had, post-conviction, admitted guilt, and the integrity of the substantive and procedural principles governing criminal trials. His Honour found the answer in the principle that a person should not be denied a chance of acquittal that was fairly open to him. That was the language used in Mraz. Whilst that language has fallen out of favour: see Weiss v R [2005] HCA 81; 224 CLR 300, the point is that his Honour found the answer in the principles then understood to govern the operation of the proviso in the Criminal Appeal Act, s 6(1). His Honour found those principles of greater importance than the competing aspect of the public interest that court resources ought not be used for the retrial of a guilty person. Although Hodgson J considered that the post-conviction statement could, as a matter of principle, be taken into account, a reason for not doing so was because there was a question as to the voluntariness of the statement. His Honour thus also found the answer by reference to relevant legal principle.
Statements made in Gudgeon were to like effect. The majority determined the matter by reference to the Evidence Act (Qld), s 15 which, they observed, would be set at nought if the evidence given at trial was not admissible. Their Honours also noted that the rules of evidence governed the admissibility of involuntary statements at trial. Fitzgerald P in his approach considered that evidence obtained through the unlawful or improper conduct of police officers ought not to be a basis for the consideration whether the proviso should apply.
Although the weight of authority reviewed above is that a post-conviction statement should not be taken into account in determining whether the proviso in s 6(1) applied, none of the authorities have commented in any definitive way as to whether such evidence would be admissible in a subsequent trial. That is understandable, as any such comment would not only be obiter, but the court would unlikely to have been in a position to know all the considerations relevant to the admissibility of such evidence.
This case
It is necessary at this point to return to the terms of s 18. The section provides that fresh evidence may only be given with leave if the court determines it is in "the interests of justice" to do so. Either party may seek leave to give fresh evidence. The applicant's submission that the section does not apply to the prosecutorial authorities must be rejected. The section is not so limited either by its express terms or by any necessary implication. Thus, it is necessary to determine whether it is in the interests of justice that the Crown be granted leave to give the further evidence.
It is apparent from the various contexts in which the phrase "interests of justice" is found that it will involve the balancing of various interests that are in play in the particular context in which the phrase is used. Although the "interests of justice" will include the interests of the parties, the concept will invariably be wider than that and include larger questions of legal principle, the public interest and policy considerations: see BHP Billiton v Schultz [2004] HCA 61; 221 CLR 400.
In some cases, "the interests of justice" will override other recognised legal principles or matters of public policy. Thus, in Mickelberg v R [1989] HCA 35; 167 CLR 259 at [35], Deane J observed that there were circumstances in which "the interests of justice may override the public policy that there should be an end to litigation". That statement was made in the context where the applicant had been convicted on false evidence. The present case does not involve the same circumstances with which the Court was concerned in Mickelberg. However, his Honour's remarks demonstrate that there are occasions when the interests of justice may predominate over other competing legal principles such as the finality of litigation, which is now recognised as a fundamental tenet of our legal system: D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; 223 CLR 1.
Subject to any legislative provision to the contrary, a person is entitled to refuse to answer questions asked by a person in authority. This has been described as being "the whole basis of the common law": Rice v Connolly [1966] 2 QB 414 per Lord Parker CJ. In Stafford (1976) 13 SASR 392 at 399 Bray CJ observed, in relation to questioning by police, that:
"[The] law confers the right of silence upon suspected persons except in so far as any statute takes it away. That right must be respected by the police and enforced by the courts.
The requirement, usually found in statute: see for example, the Evidence Act 1995 (NSW), s 139, that a person be cautioned before answering questions, serves the purpose of making the right to silence more effective: Ryan v Marshall [1965] Tas SR 1 at 13; Hall (1970) 55 Crim App R 108 at 112; Banner [1970] VR 240 at 252; R v Pitts (No 1) [2012] NSWSC 1652; 229 A Crim R 387 at [24]; R v FE [2013] NSWSC 1692 at [64]. The privilege against self-incrimination fulfils a similar purpose.
As the observations of Bray CJ in Stafford indicate, fundamental aspects of the criminal law, such as the right to silence, are such an essential feature of the system of criminal justice that the courts have recognised those rights will not be abrogated except by express statutory provision. In Coco v The Queen [1994] HCA 15; 179 CLR 427 the plurality (Mason CJ, Brennan, Gaudron and McHugh JJ) said, at 437:
"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights ..." (citation omitted)
The same point was made in Lee v The Queen [2014] HCA 20; 88 ALJR 656 (Lee [2014]) the High Court observed, at [32], that the system of criminal justice:
"... reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused."
The High Court identified the relevant principles as being the requirement that the prosecution prove the guilt of an accused person and its "companion rule", as the Court described it, at [33], "that an accused person cannot be required to testify". In its earlier decision, Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 (Lee [2013]) French CJ and Crennan J identified this rule as an aspect of the immunity conferred by the "right to silence". The Court in Lee [2014], at [33], continued that "[t]he prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof". This has been described as "a cardinal principle": Sorby v Commonwealth [1983] HCA 10; 152 CLR 281 at 294; Lee [2013] at [175]. See also X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [102], [104] and [159].
These statements were made in the context of the principle of legality, explained in X7, at [86], by Hayne and Bell JJ as a principle of statutory construction. See also Lee [2013] at [29] per French CJ; see also [126] per Crennan J; [307]-[314] per Gageler and Keane JJ.
This case is not concerned with the principle of legality. However, that principle, in common with the observations of Bray CJ to which I have referred, emphasise the centrality of fundamental principles in our legal system. The question which arises, therefore, in the present case, is whether the "interests of justice" could accommodate the giving of evidence of the applicant's statement to the Corrective Services Officer during the course of an interview for the purposes of the officer preparing a report as to the applicant's suitability for an intensive correction order.
An intensive correction order is an order made by the court directing that a sentence of imprisonment of not more than 2 years imposed on the offender be served in the community: Crimes (Sentencing Procedure) Act, s 7. Part 5 of the Act deals with the sentencing procedures for intensive correction orders. Section 67 specifies the considerations to which the court is to have regard in determining whether to make an order. It provides, relevantly, as follows:
"67 Suitability of offender for intensive correction order
(1) An intensive correction order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied:
(a) that the offender is of or above the age of 18 years, and
(b) that the offender is a suitable person to serve the sentence by way of intensive correction in the community, and
(c) that it is appropriate in all of the circumstances that the sentence be served by way of intensive correction in the community, and
(d) that the offender has signed an undertaking to comply with the offender's obligations under the intensive correction order.
(2) In deciding whether or not to make an intensive correction order, the court is to have regard to:
(a) the contents of the assessment report on the offender (prepared under section 70), and
(b) such evidence from the Commissioner of Corrective Services as the court considers necessary for the purpose of deciding whether to make such an order.
...
(4) A court may make an intensive correction order with respect to an offender's sentence of imprisonment only if the assessment report states that, in the opinion of the person making the assessment, the offender is a suitable person to serve the sentence by way of intensive correction in the community ..."
Sections 69 and 70 are also relevant. They provide:
"69 Referral of offender for assessment
(1) Before imposing a sentence of imprisonment on an offender, the court may refer the offender for assessment as to the suitability of the offender for intensive correction in the community.
(2) A court is not to refer an offender for such an assessment unless satisfied, having considered all the alternatives, that no sentence other than imprisonment is appropriate and that the sentence is likely to be for a period of no more than 2 years.
...
70 Assessment of suitability
(1) When an offender is referred for assessment, the Commissioner of Corrective Services is to investigate and report to the court on the matters referred to in section 67 (1) and such other matters as the regulations may require.
(2) An offender's assessment report:
(a) must take into account, and specifically address, the matters prescribed by the regulations, and
(b) may indicate the nature of any conditions that it would be appropriate for the court to impose on an intensive correction order if such an order is made.
(3) The regulations may make provision for or with respect to the conduct of investigations and the preparation of reports for the purposes of this Part."
The Crimes (Sentencing Procedure) Regulation 2010 (NSW), cl 14, provides, relevantly:
14 Assessment reports
(1) An offender's assessment report must take into account, and specifically address, the following matters:
(a) any criminal record of the offender, and the likelihood that the offender will re-offend,
(b) any risks associated with managing the offender in the community (taking into account the offender's response to supervision in the community on previous occasions),
(c) the likelihood that the offender will commit a domestic violence offence,
(d) whether the offender will have suitable residential accommodation for the duration of an intensive correction order,
(e) whether any circumstances of the offender's residence, employment, study or other activities would inhibit effective implementation of an intensive correction order ...
...
(4) An offender's assessment report must also include an assessment of:
(a) factors associated with his or her offending that would be able to be addressed by targeted interventions under an intensive correction order, and
(b) the availability of resources to address those factors by targeted interventions under an intensive correction order, and
(c) any issues relevant to the administration of an intensive correction order in respect of the offender that may be relevant to the court's determination of an appropriate date to be fixed for the commencement of the sentence."
In summary, therefore, the statement of the applicant was made to a person in authority during the course of an interview, conducted pursuant to an order of the court, made pursuant to statute, for the purposes of assessing the applicant's suitability for an intensive corrections order. The question asked by the Corrective Services Officer was not part of the information required by the Act and Regulation. Further, although the applicant was not compelled by law to answer the questions asked by the officer concerned nor was he otherwise required, as a matter of law, to provide information to that officer, there was undoubtedly significant pressure on him to do so, given the circumstances in which he provided the information. Importantly, the statement was made without any warning to the applicant that the information could be used in evidence against him on the question of his guilt, although it should be accepted that the applicant would, or at least ought to, have appreciated that the report of the interview would be provided to the court for the purposes of sentence.
Against that background there are a number of factors that are relevant in determining whether it is capable of being in the interests of justice to grant the prosecution leave to give the post-conviction statement made by the applicant to the Corrective Services Officer. The relevant factors do not all point in the same direction. There is the public interest in bringing a wrongdoer to conviction. There is the consideration to which reference has already been made that a person should be put upon their trial on the available evidence. However, I do not consider that that factor carries much if any weight in this case. The legislature has recognised in the enactment of s 18 that fresh evidence may be given, by leave, including by the Crown, on the appeal. Accordingly, this is not a case analogous to those cases where it has been held that an appellate court should acquit where the ground for quashing the indictment has been an insufficiency of evidence at the trial: see above at [9]-[10].
The post-conviction statement was made in the course of a court ordered process, which was directed to a particular purpose, namely, the assessment of the applicant for a particular sentencing option in circumstances where the magistrate, in accordance with the Crimes (Sentencing) Procedure Act, s 69 must have already determined to impose a custodial sentence. In my opinion, it would not be capable of being in the interests of justice to grant leave to adduce that evidence. The reasons why I consider that this is so relate first to matters personal to the applicant and secondly to broader policy considerations.
As I have already indicated, the applicant made the post-conviction statement in circumstances where he had been ordered to attend upon the Corrective Services officer for an assessment to be undertaken for the purposes of a particular sentencing process, namely, whether the Court should make an intensive correction order. At the commencement of that assessment, the applicant was told by the Corrective Services Officer to tell him what had happened and counselled him to tell the truth. It is likely that the applicant felt obliged to respond to the direction that he tell the Corrective Services Officer what happened. There may have been adverse consequences for the applicant if he did not respond, as the Corrective Services Officer may not have been able to make an assessment, or at least a favourable assessment if the applicant did not co-operate in the interview. The consequence may have been the imposition of a prison sentence: Crimes (Sentencing Procedure) Act, ss 7 and 69.
There was no requirement in the statutory prerequisites for the assessment process being undertaken by the Corrective Services Officer to ascertain the underlying facts relating to the conviction from the applicant. Having determined to do so, the Corrective Services Officer cautioned the applicant, not that anything that he said might be used in evidence against him should the matter be subject to an appeal and possible retrial, but that he should tell the truth. The potential consequence to the applicant of doing so is that the Crown now seeks to prove its case against the applicant out of his own mouth.
Had it not been the requirement, made by court order, that the applicant attend for the purposes of assessment, the evidence the Crown now seeks to use would not have been available. The admission was made in circumstances where, in a real and practical sense, the applicant was denied his common law right of silence. That is a right which our legal system has always considered to be fundamental. The vice, as I see it, was that the admission was obtained in the court ordered process in which the applicant found himself engaged. I do not consider it is capable of being in the interests of justice that the Crown now be allowed to use the applicant's admission as to the commission of the crime, obtained in these circumstances, to be given on the appeal.
Before concluding, there is another matter to which reference needs to be made. Section 18(2) provides that "fresh evidence may be given" (emphasis added) by leave, but only if it is in the interests of justice that the evidence be given. The case under s 5B was stated in terms that leave had been given that the evidence be "adduced". It is not apparent from the case stated whether the Chief Judge of the District Court had granted leave to adduce the evidence subject to any question of admissibility or whether his Honour's ruling was intended to be a grant of leave to give the evidence, that is, a ruling that the evidence was admissible.
The Court was informed by counsel for the applicant that the question of admissibility, as such, had not been determined. The Crown did not dispute this. Assuming that to be so, there would be a question whether the evidence would be excluded under the Evidence Act, s 90 or s 137. It should be emphasised that the "interests of justice" is a wider concept than "unfairness" to the accused person within the meaning of s 90 or "unfair prejudice" within the meaning of s 137. However, it is not necessary to determine those questions.
Conclusion
For the reasons I have given, therefore, I would answer the question submitted by Blanch J, Chief Judge of the District Court, pursuant to the Criminal Appeal Act, "No".
HIDDEN J: I agree with Beazley P.
FULLERTON J: I agree with Beazley P.
**********
Decision last updated: 19 December 2014
33
38
5