McCreed v The Queen
[2003] WASCA 275
•14 NOVEMBER 2003
McCREED -v- THE QUEEN [2003] WASCA 275
| (2003) 27 WAR 554 | |||
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 275 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:71/2002 | 1 OCTOBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J MILLER J | 14/11/03 | |
| 30 | Judgment Part: | 1 of 1 | |
| Result: | Application for leave to appeal refused | ||
| A | |||
| PDF Version |
| Parties: | WILLIAM SAMUEL McCREED THE QUEEN |
Catchwords: | Criminal law and procedure Whether reasonable apprehension of bias in trial Judge sitting when he had prosecuted accused person 11-1/2 years beforehand Test to be applied Whether directions to the jury fair and balanced Whether direction in relation to recent complaint correct Whether Black direction given at an inappropriate time Whether direction in relation to majority verdicts given at appropriate time Whether verdicts unsafe and unsatisfactory |
Legislation: | Evidence Act 1996, s 36BD |
Case References: | Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 Black v The Queen (1993) 179 CLR 44 Cleland v The Queen (1982) 151 CLR 1 Commonwealth v Darush, 459 A 2d 727 Del Vecchio II 115 S Ct 1404 (1995) Del Vecchio II, 31 F 3d 1363 (7th Cir 1994) Dhanhoa v The Queen [2003) 77 ALJR 1433 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Gavin v R (1992) 6 WAR 195 Hoy & Ors v The Queen [2002] WASCA 275 Johnson v Johnson (2000) 201 CLR 488 Kilby v The Queen (1973) 129 CLR 460 King v The Queen (1986) 161 CLR 423 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 Minister for Immigration v Jia (2001) 205 CLR 507 Mitchell v Class, 524 NW 2d 860 R v Lucas [1973] VR 693 R v Russell (Judge); Ex parte Reid (1984) 35 SASR 417 R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Lusink; Ex parte Shaw (1980) 55 ALJR 12 Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78 Re Watson; Ex parte Armstrong (1976) 136 CLR 248 S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358 State v Dominguez, 914 P 2d 141 State v Neeley, 748 P 2d 1091 Turner v State, 926 SW 2d 843 Vakauta v Kelly (1988) 13 NSWLR 502 Vakauta v Kelly (1989) 167 CLR 568, Webb v The Queen (1994) 181 CLR 41 WI v State, 696 So 2d 457 Cameron v The Queen (2002) CLR 339 Cheatle v The Queen (1993) 177 CLR 541 Dietrich v The Queen (1992) 177 CLR 292 Duff v R (1979) 28 ALR 663 Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684 Jago v District Court of New South Wales (1989) 168 CLR 23 Leary v R [1975] WAR 133 Mraz v The Queen (1955) 93 CLR 493 Newell v The Queen (1936) 55 CLR 707 Pearmine v R [1988] WAR 315 R v Appleby (1996) 88 A Crim R 456 R v Hamitov (1979) 21 SASR 596 R v Harrison (1997) 68 SASR 304 R v Hodgkinson [1954] VLR 140 R v Ireland (1970) 126 CLR 321 R v Rose (1987) 31 A Crim R 52 R v Creasey (1953) 37 Cr App R 179 R v Rusovan & Anor (1994) 62 SASR 86 Shoukatallie v The Queen [1962] AC 81 Wilde v The Queen (1988) 164 CLR 365 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- STEYTLER J
MILLER J
- Applicant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Whether reasonable apprehension of bias in trial Judge sitting when he had prosecuted accused person 11-1/2 years beforehand - Test to be applied - Whether directions to the jury fair and balanced - Whether direction in relation to recent complaint correct - Whether Black direction given at an inappropriate time - Whether direction in relation to majority verdicts given at appropriate time - Whether verdicts unsafe and unsatisfactory
Legislation:
Evidence Act 1996, s 36BD
(Page 2)
Result:
Application for leave to appeal refused
Category: A
Representation:
Counsel:
Applicant : In person
Respondent : Mr D Dempster
Solicitors:
Applicant : In person
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411
Black v The Queen (1993) 179 CLR 44
Cleland v The Queen (1982) 151 CLR 1
Commonwealth v Darush, 459 A 2d 727
Del Vecchio II 115 S Ct 1404 (1995)
Del Vecchio II, 31 F 3d 1363 (7th Cir 1994)
Dhanhoa v The Queen [2003) 77 ALJR 1433
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Gavin v R (1992) 6 WAR 195
Hoy & Ors v The Queen [2002] WASCA 275
Johnson v Johnson (2000) 201 CLR 488
Kilby v The Queen (1973) 129 CLR 460
King v The Queen (1986) 161 CLR 423
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451
Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577
Minister for Immigration v Jia (2001) 205 CLR 507
Mitchell v Class, 524 NW 2d 860
R v Lucas [1973] VR 693
(Page 3)
R v Russell (Judge); Ex parte Reid (1984) 35 SASR 417
R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272
Re JRL; Ex parte CJL (1986) 161 CLR 342
Re Lusink; Ex parte Shaw (1980) 55 ALJR 12
Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78
Re Watson; Ex parte Armstrong (1976) 136 CLR 248
S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358
State v Dominguez, 914 P 2d 141
State v Neeley, 748 P 2d 1091
Turner v State, 926 SW 2d 843
Vakauta v Kelly (1988) 13 NSWLR 502
Vakauta v Kelly (1989) 167 CLR 568
Webb v The Queen (1994) 181 CLR 41
WI v State, 696 So 2d 457
Case(s) also cited:
Cameron v The Queen (2002) CLR 339
Cheatle v The Queen (1993) 177 CLR 541
Dietrich v The Queen (1992) 177 CLR 292
Duff v R (1979) 28 ALR 663
Goktas v Government Insurance Office of New South Wales (1993) 31 NSWLR 684
Jago v District Court of New South Wales (1989) 168 CLR 23
Leary v R [1975] WAR 133
Mraz v The Queen (1955) 93 CLR 493
Newell v The Queen (1936) 55 CLR 707
Pearmine v R [1988] WAR 315
R v Appleby (1996) 88 A Crim R 456
R v Hamitov (1979) 21 SASR 596
R v Harrison (1997) 68 SASR 304
R v Hodgkinson [1954] VLR 140
R v Ireland (1970) 126 CLR 321
R v Rose (1987) 31 A Crim R 52
R v Creasey (1953) 37 Cr App R 179
R v Rusovan & Anor (1994) 62 SASR 86
Shoukatallie v The Queen [1962] AC 81
Wilde v The Queen (1988) 164 CLR 365
(Page 4)
1 MALCOLM CJ: This was an application for an extension of time within which to appeal against the applicant's convictions for aggravated sexual assault after a trial in this Court which were recorded on 26 March 1996. The application for the extension was made on 22 April 2002 and was made some six years out of time.
2 In my opinion, the application should be dismissed for the reasons to be published by Steytler and Miller JJ with which I agree. There is nothing that I could usefully add to those reasons. I am particularly grateful to Steytler J for his comprehensive review of the relevant authorities, including those in the United Kingdom and the United States, as well as the Australian cases.
3 STEYTLER J: I have had the advantage of reading the judgment of Miller J. Save that I would prefer to express my own views in respect of grounds 1 and 2 of the grounds of appeal, which deal with the trial Judge's refusal to disqualify himself from presiding over the applicant's trial upon the ground that a fair-minded observer might entertain an apprehension of bias on his part, I agree with all that Miller J has said.
4 As will be apparent from the judgment of Miller J, grounds 1 and 2 rely upon the fact that the trial Judge, when Crown Counsel for Western Australia, had prosecuted the applicant in November 1984 on an indictment for wilful murder. When it came to his Honour's attention, in March 1996, that he was to be the trial Judge in a jury trial to be conducted in respect of the two counts of aggravated sexual assault with which the applicant was then charged, he brought the fact of his prior prosecution of the applicant to the attention of the applicant's counsel. That led to the filing of a notice of motion, on behalf of the applicant, asking his Honour to withdraw from presiding at the trial. The motion was heard on 22 March 1996, a few days before the trial was due to commence. By then some 11½ years had passed since the time of the applicant's prosecution for murder. The trial Judge informed counsel for the applicant that, until he had looked at the file relating to the earlier matter, he had no recollection of it. Having heard submissions from the applicant's counsel and from the Crown prosecutor (who said that he did not have "any strong view either way"), his Honour elected not to disqualify himself as he considered that his prior involvement was not such as to cause "the reasonable informed observer to take the view that … [he] may be biased in a way which would preclude … [him] from properly performing … [his] duties as the trial judge" when the trial took place in the next week.
(Page 5)
5 The need for disqualification in a case of apprehended bias rests, of course, upon the fundamental requirement that "justice should not only be done, but should manifestly and undoubtedly be seen to be done": R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259, per Hewart LCJ. That principle, in turn, follows from the need to ensure that the parties will have their case tried by a Judge who is independent of them and also the need to ensure that confidence in the judiciary will not be lost. In S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd (1988) 12 NSWLR 358Kirby P (as his Honour then was) said, at 360:
"But independence, with integrity, is the very heart of the matter. It is the reason why, in hotly contested disputes involving liberty, status, reputation, power and vast funds, our society entrusts decisions to judges and accepts their orders. Independence, and the manifest appearance of independence, are thus highly prized judicial qualities. At stake is not just the acceptance of a judge's decision by the litigants but also the acceptance by the community of the administration of justice by judges."
6 (See also Re Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 293 - 294; Johnson v Johnson (2000) 201 CLR 488 at 492 - 493 and Minister for Immigration v Jia (2001) 205 CLR 507 at 547).
7 Justice can only be done if there is in fact no bias. It can only be seen to be done if there is no appearance of bias. As Lord Denning MR said, in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599, "[j]ustice must be rooted in confidence; and confidence is destroyed when right-minded people go away thinking: 'The judge was biased'". Right-minded, or fair-minded, people might well think in this way in a case in which there is only the appearance of bias, assuming that the appearance reflects reality. Also, actual bias (which will almost always be disclaimed) is notoriously difficult to prove. Consequently, as Gleeson CJ and McHugh, Gummow and Hayne JJ recognised in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (quoting what had been said by the Court of Appeal of England in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 at 475), in practice, the most effective guarantee of the fundamental right to a hearing before an impartial tribunal is not afforded by rules which provide for disqualification on grounds of actual bias, nor by those which provide
(Page 6)
- for automatic disqualification on grounds of personal interest, but by that which provides for the case of disqualification of a Judge in the case of a reasonable apprehension of bias.
8 The test to be applied in Australia in determining whether a Judge is disqualified by reason of the appearance of bias is well established. It is that of whether a fair-minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide: Johnson, above, at 492; Re Lusink; Ex parte Shaw (1980) 55 ALJR 12; Livesey, above, at 293 - 294; Vakauta v Kelly (1989) 167 CLR 568; Webb v The Queen (1994) 181 CLR 41; Re Polites; Ex parte Hoyts Corporation Pty Ltd (No 2) (1991) 173 CLR 78 at 85 and Ebner, above, at 350.
9 What kind of person this fair-minded lay observer is, and how much he or she knows, has been the subject of some discussion in the cases. In Johnson, at 507 - 508, Kirby J referred to the many ways in which "the hypothesised bystander" is described. He said:
"Phrases that have been used include the 'lay observer' (Vakauta v Kelly (1989) 167 CLR 568 at 573, 574)), 'fair-minded observer' (Livesey (1983) 151 CLR 288 at 300; Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 87), 'fair-minded, informed lay observer' (Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 92), 'fair-minded people' (Watson (1976) 136 CLR 248 at 263), 'reasonable or fair-minded observer' (Vakauta v Kelly (1989) 167 CLR 568 at 585), 'reasonable and intelligent man' (Watson (1976) 136 CLR 248 at 267), the 'parties or the public' (Re Media, Entertainment & Arts Alliance and Theatre Managers' Association; Ex parte Hoyts Corporation Pty Ltd (1994) 68 ALJR 179 at 182; 119 ALR 206 at 210), a 'reasonable person' (Vakauta v Kelly (1989) 167 CLR 568 at 576), or (as has sometimes been favoured in England (Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 599) and Canada (Committee for Justice and Liberty v Canada (National Energy Board) [1978] 1 SCR 369 at 394; R v S (RD) [1997] 3 SCR 484 at 505, 507)) the somewhat quaint and circular phrase, a 'right-minded' person. Obviously, all that is involved in these formulae is a reminder to the adjudicator that, in deciding whether there is an
(Page 7)
- apprehension of bias, it is necessary to consider the impression which the same facts might reasonably have upon the parties and the public. It is their confidence that must be won and maintained. The public includes groups of people who are sensitive to the possibility of judicial bias. It must be remembered that, in contemporary Australia, the fictitious bystander is not necessarily a man nor necessarily of European ethnicity or other majority traits (R v S (RD) [1997] 3 SCR 484 at 508).
The attributes of the fictitious bystander to whom courts defer have therefore been variously stated. Such a person is not a lawyer (Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd [No 9] (unreported; Court of Appeal (NSW); 27 November 1990) at 20, cited in Spedley Securities (1992) 26 NSWLR 411 at 419). Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided (R v George (1987) 9 NSWLR 527 at 536, per Street CJ). Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances."
10 Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ said, in that case (at 493), that it must be remembered that "the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' (Vakauta v Kelly (1988) 13 NSWLR 502 at 507, per McHugh JA, adopted in Vakauta v Kelly (1989) 167 CLR 568 at 584 - 585, per Toohey J)." They also said (ibid) that, while the fictional observer is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice, the rules and conventions of which are not frozen in time. (See also Callinan J, at 517 - 518).
11 In Webb v The Queen, above, at 74, Deane J identified four overlapping categories of case involving disqualification by reason of the appearance of bias, being interest, conduct, association and extraneous information. These categories were adopted as a convenient
(Page 8)
- frame of reference by Gleeson CJ and McHugh, Gummow and Hayne JJ in Ebner, above, at 348 - 349, although their Honours found it unnecessary to decide upon the comprehensiveness of that categorisation and said that its utility might depend upon the context in which it is employed. They also there said (at 350) that the general principle is to be applied to problems of apprehended bias, whether they arise from any of these categories or from some other circumstance.
12 While the test is reasonably strict (or "Spartan", as Meagher JA described it in Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 448), an objection should not prevail unless based upon a substantial ground as otherwise "the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench": Ebner, at 348, per Gleeson CJ and McHugh, Gummow and Hayne JJ (see also Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 and Johnson, above, at 504). That said, where there is real doubt it will often be prudent for a Judge not to sit, given the cost and inconvenience which might result from a successful appeal: Ebner, at 348.
13 Where the bias is said to arise from a prior relationship between the parties, it is relevant to know what was its duration, intensity and nature and how much time has passed since its existence: S & M Motor Repairs, above, at 369, per Kirby P.
14 Like Miller J, I have not been able to find, and nor have we been referred to, any authority in Australia (or in England) which is directly on point as regards the kind of situation which arose in this case. However, various cases have come before the courts in which a judge has formerly acted for a party. In R v Russell (Judge); Ex parte Reid (1984) 35 SASR 417 the Full Court of the South Australian Supreme Court had to deal with a situation in which a judge of the Industrial Court had, on a number of occasions, acted for one of the parties to an industrial dispute. The Court (King CJ and Walters and Mohr JJ) held that no fair-minded person would have reasonable grounds for apprehending that, because the judge had acted as counsel for the party, he would, on his appointment to judicial office, be unable to bring a fair and unprejudiced mind to the decision of matters involving the party for whom he had formerly acted. Similarly, in S & M Motor Repairs, above, a trial judge was asked to disqualify himself from a case involving a dispute between an oil company, Caltex Oil (Australia) Pty Ltd, and one of its franchisees upon the ground that he had formerly
(Page 9)
- appeared frequently and over a long period as counsel for major oil companies, including Caltex. He refused to do so and, on the appeal, was found (by Priestley and Clarke JJA, Kirby P dissenting) to have acted properly (cf, Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (1986) 6 NSWLR 272 at 275). In Re Polites, above, at 87 - 88, Brennan, Gaudron and McHugh JJ said that a prior relationship of legal adviser and client does not generally disqualify the former adviser, on becoming a member of a court or tribunal, from sitting in proceedings before that court or tribunal to which the former client is a party (unless, of course, the appropriateness or correctness of the advice given is in issue). In Ex parte Reid, above, at 422, Walters J said that it would be "absurd" to suggest, on the appointment of a former officer of the Crown as a Supreme Court Judge, that he would be unable to administer justice with an independent and impartial mind in matters in which the Crown was a party.
15 There is authority in the United States of America which is more directly on point. There, the courts appear generally to have been reluctant to find that a judge is disqualified from trying a case in which the defendant is a person who has previously been prosecuted (in respect of a different and unrelated offence) by that judge when serving as a district attorney or assistant district attorney. Miller J has referred, in this respect, to an article by Peter M Friedman published in (1998) 88 J Crim L & Criminology 683 (and, in particular to the author's summary of the case of Del Vecchio II, 31 F 3d 1363 (7th Cir 1994), where a less rigorous test than that prevailing in Australia appears to have been applied: see the judgment of the majority at 1371). To that reference may be added a reference to four articles which shed some light on the approach to disqualification which has, from time to time, been adopted in the USA: William Kilgarlin and Jennifer Bruch: "Disqualification and Recusal of Judges", (1986) 17 St Mary's LJ 599; David Blanck: "The Appearance of Justice Revisited", (1996) 86 J Crim L & Criminology 887; Sherrilyn A Ifill: "Do Appearances Matter? Judicial Impartiality and the Supreme Court in Bush v Gore", (2002) 61 Md. L. Rev. 606; and Leslie W Abramson: "Appearance of Impropriety: Deciding When a Judge's Impartiality Might Reasonably be Questioned", (2000) 14 Geo J Legal Ethics 55. (See also Turner v State, 926 SW 2d 843, 847 (Ark 1996); Mitchell v Class, 524 NW 2d 860, 863 (SD 1994); State v Neeley, 748 P 2d 1091, 1094 (Utah 1988); Commonwealth v Darush, 459 A 2d 727, 730 - 731 (Pa 1983) and State v Dominguez, 914 P 2d 141, 144 (Wash Ct App 1996)). However, one of the factors which appears commonly to have
(Page 10)
- been looked at in such cases is the amount of time between the past prosecution and the instant case (see Turner, above, at 847, where the gap was one of more than 10 years, Mitchell, above, at 862 - 863, where the gap was one of 15 years; Neeley, above, at 1093, where the gap was one of 20 years and cf WI v State, 696 So 2d 457 (Fla Dist Ct App 1997) where disqualification was ordered in a case involving a gap of about two years).
16 In my opinion, whatever may be the situation in the USA (where different tests have been applied, sometimes as a result of the application of State enactments), in Australia the fact that a defendant in criminal proceedings has previously been prosecuted for a serious criminal offence by the judge who is to preside over his trial on unrelated charges will often be sufficient to result in the judge's disqualification. The test is not one of whether or not the fair-minded lay observer would reasonably apprehend that the judge would not bring an impartial and unprejudiced mind to the resolution of any questions which might arise during the trial or to the imposition of sentence (the jury being the ultimate arbiter of guilt or innocence), but whether that observer might reasonably apprehend that the judge might not do so. The test is, as I have earlier remarked, reasonably strict, for very good reasons. Moreover, particular sensitivity may need to be shown in some cases, including those which are criminal or criminal in nature (cfS & M Motor Repairs, above, at 370, per Kirby P). It is difficult to imagine that a defendant would not have a genuine concern, in a situation in which he or she has previously been prosecuted for a serious criminal offence by the person who is now to be the trial judge in respect of some other offence, that, to use the words of Dawson J in Re JRL at 372, "may well be ineradicable", given the fact that the judge in question will ordinarily have had dealings with the victim or victims of the earlier crime, or perhaps their family members, will have cross-examined the defendant (often forming an adverse view of his or her credibility in the course of doing so) and will have sought to persuade a jury of his or her guilt. In those circumstances, it is not hard to imagine that the hypothetical observer, even if reasonably well informed of ordinary judicial practice, might reasonably share that concern. That being so, the prudent course would, in my opinion, ordinarily be one of self-disqualification in such cases (cf, Ebner, above, at 348).
17 However, each case must necessarily depend upon its individual circumstances. It is important, in every case, to consider all factors
(Page 11)
- which might be relevant, including such matters as the nature of the offence for which the defendant was previously prosecuted, the nature of that the subject of the current trial, any relevant circumstances attending the prior prosecution, whether there is any connection between the two cases, whether the current trial is or is not to be a jury trial and the amount of time which has passed since the occasion of the prior prosecution by the trial judge.
18 In this case the prior offence was extremely serious, being one of murder. However, the judge has said that he has no independent recollection of the circumstances of the prosecution, or of the facts giving rise to it, something which is hardly surprising given the lapse of some 11½ years between the time of that prosecution and the trial of the later offences. Moreover, the offences the subject of the instant trial (sexual offences) bore no relationship to the murder the subject of the prior prosecution. Also, there appears to have been nothing unusual or untoward which occurred in the course of the prior prosecution. In all of these circumstances, the most important of them being, in this case, the extensive lapse of time, I am not satisfied that this is a case in which the trial Judge was required to disqualify himself.
19 I consequently agree with Miller J that the application for an extension of time within which to appeal should be refused.
20 MILLER J: This is an application for an extension of time within which to appeal against convictions for aggravated sexual assault, which were recorded in this Court on 26 March 1996, following the applicant's trial before Murray J and a jury.
21 The applicant seeks leave to appeal against the convictions on several grounds which are annexed to a notice of application for leave to appeal dated 22 April 2002. The application for extension of time within which to appeal is thus six years out of time.
22 In a lengthy affidavit sworn by the applicant on 22 April 2002 and filed in the proceedings, the applicant sets out the many factors which he contends delayed his filing of the notice of application for leave to appeal the convictions. The essence of the applicant's argument is contained in par 75 of his affidavit which is in these terms:
(Page 12)
- "It has been over six and a quarter years since I was convicted and not having the resources to brief and pay for a Lawyer to mount my Appeal I have been required to become versed in
(Page 13)
- all aspects of the Law and Appeals, I have had to research and prepare all the relevant material to my Appeal myself after finding that there was indeed grounds for an Appeal when Counsel who represented me at trial said that there was none."
23 In a written outline of argument tendered by the applicant to the Court on the hearing of the application, the applicant adds:
"In summarising the reason for the delay in applying:
The Applicant having no money or assets to conduct an appeal and having been informed by Counsel that there was no grounds of Appeal, has had to investigate the case, study - as well as comprehend the law and lodge the appropriate documents for this matter to be heard, as a self represented litigant."
24 There is no doubt that the extension of time sought within which to appeal is extremely long. In this respect it is governed by the principles set out by Malcolm CJ in Gavin v R (1992) 6 WAR 195 at 198 - 199:
"It has also been said repeatedly that in a case of lengthy delay the court requires exceptional circumstances to be shown before an extension of time will be granted, unless it can be shown that there will be a miscarriage of justice if an extension is not granted: see Narkle v The Queen (unreported, Court of Criminal Appeal, WA, Library No 6108, 2 December 1985); Nicolakis v The Queen (unreported, Court of Criminal Appeal, WA, Library No 7184, 30 June 1988); and Chapman v The Queen (unreported, Court of Criminal Appeal, WA, Full Court, Library No 7962, 27 November 1989)."
25 Notwithstanding the applicant's lengthy affidavit in support of the application for an extension of time within which to appeal, there do not appear to me to be any exceptional circumstances which would justify the grant of an extension of time without it being shown that there will be a miscarriage of justice if an extension is not granted. Whatever problems the applicant had in relation to understanding the law and the legal process, it could not have taken six years for him to becomefamiliar with the requirements in relation to the appeal process and/or potential grounds of appeal.
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26 The question then is whether it could be shown that there would be a miscarriage of justice if an extension of time is not granted for the filing of the notice of application for leave to appeal. This requires a consideration of the proposed grounds of appeal.
27 At the hearing of the application, the applicant tendered to the Court a substantial set of written submissions. These, he said, constituted the argument that he would have advanced orally had he been able to do so. He was unable to address the Court orally because of a heart condition which necessitated that he be returned to custody as soon as possible. The applicant was not, however, concerned at his inability to make oral submissions and was content to rely upon the written submissions. In my opinion, those written submissions more than adequately put forward the applicant's argument in support of the proposed grounds of appeal.
28 The Court did direct that counsel for the respondent should have the opportunity of answering in writing the applicant's written submissions and that the applicant should be given the opportunity to respond to any such written submissions. Additional submissions were received from counsel for the respondent on 2 October, in which brief comment was made on the applicant's extensive written submissions. No further submissions were received from the applicant.
Proposed grounds of appeal
Failure of the learned trial Judge to disqualify himself from presiding at the trial
29 Grounds 1 to 4 inclusive of the proposed grounds of appeal contend that Murray J erred in law in declining to disqualify himself from presiding over the trial of the applicant when a fair-minded observer might entertain apprehension of bias on the part of the learned trial Judge in so doing.
30 The history of the matter is that on 12 November 1984 in the Supreme Court at Kalgoorlie, Murray J, then Mr Michael Murray QC, Crown Counsel for Western Australia and formerly Crown Prosecutor for Western Australia, prosecuted the applicant on an indictment for wilful murder. It was alleged that the applicant had, on or about11 August 1984 at Kalgoorlie, wilfully murdered one Mandy Suzanne Mattner.
(Page 14)
31 Transcript of the opening address of Mr Murray QC, the cross-examination of the applicant by Mr Murray QC and the closing address to the jury of Mr Murray QC are all included in the application book. It is unnecessary to go into any of this material in detail but it was the fact that in his closing address to the jury, Mr Murray QC put, by way of submission to the jury, that all of the evidence pointed to the applicant as the person who had killed the deceased lady and that he had killed her unlawfully. It was also put that the jury might well conclude that the only verdict open was wilful murder, that verdict being compelling if the jury was of the view that at the time the applicant had dragged the deceased person over a considerable distance, she was alive. Mr Murray pointed out that any person who took a living person and dragged her behind a truck in the way the applicant was alleged to have done so must have intended to kill the person. Counsel did, however, point out that there were alternative verdicts open on the indictment. They were verdicts of guilty of murder, or of manslaughter. It is perhaps relevant to note that in his very closing words, Mr Murray QC stressed that it was his task only to assist the jury in its deliberations. He said:
"I have endeavoured to assist you with what our views are as to perhaps the way that you might find helpful to approach it and the sort of things you might like to look at. As I say, there may well be matters that I have not mentioned which you would think important …"
32 The transcript of the proceedings of the wilful murder trial reveal nothing other than a proper appreciation by the Crown prosecutor of the role that he was called upon to play and it seems that in every respect he discharged that role in accordance with authority. A Crown prosecutor is called upon to act fairly. A convenient statement of the obligation is contained in R v Lucas [1973] VR 693 per Newton J and Norris AJ at 705:
"It is very well established that prosecuting counsel are ministers of justice, who ought not to struggle for a conviction nor be betrayed by feelings of professional rivalry, and that it is their duty to assist the court in the attainment of the purpose of criminal prosecutions, namely, to make certain that justice is done as between the subject and the State. Consistently with these principles, it is the duty of prosecuting counsel not to try to shut out any evidence which
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- the jury could reasonably regard as credible and which could be of importance to the accused's case. We may add that these obligations which attach to prosecuting counsel apply, in our opinion, to officers in the service of the Crown, whose function it is to prepare the Crown case in criminal prosecutions. We may refer to R v Thursfield (1838) 8 CAR & P 269; R v Puddick (1865) 4 F & F 497; 176 ER 662; R v Banks [1916] 2 KB 621, at p 623; [1916-17] All ER Rep 356, R v Guerin (1931) 23 Cr App Rep 39; R v Sugarman (1935) 25 Cr App Rep 109; Abbott v Refuge Assurance Co Ltd [1962] 1 QB 432 at p 451; [1961] 3 All ER 1074; Boucher v R [1955] Can LR (Supreme Court) 16; R v Meyers [1958] VR 563; [1958] ALR 594; R v Lawson [1960] VR 37 at p 39; R v Hay and Lindsay [1968] Qd R 459, and Kenny's Outlines of Criminal Law, 19th ed, pp 611-2."
33 Although a Crown prosecutor adopts an adversarial role in a criminal trial and is truly an adversary of the accused, it is the prosecutor's responsibility to act fairly and indeed not to struggle for a conviction. This was made clear in King v The Queen (1986) 161 CLR 423 where Murphy J (at 426) said:
"The duty of a prosecutor is to present the case against the accused fairly and honestly; not to use any tactical manoeuvre legally available in order to secure a conviction. In this regard, I adopt the words of Maxwell J in R v Bathgate (1946) 46 SR (NSW) 281, at 283-285.
'It cannot be too strongly impressed that the obligations of the Crown Prosecutor arise not merely by reference to the attitude adopted by the defence "Counsel for the prosecution … are to regard themselves as ministers of justice, and not to struggle for a conviction, as in a case at Nisi Prius - nor to be betrayed by feelings of professional rivalry - to regard the question at issue as one of professional superiority, and a contest for skill and pre-eminence": Reg v Puddick. "But it must be remembered that the whole policy of English criminal law has been to see that as against the prisoner every rule in his favour is observed and that no rule is broken so as toprejudice the chance of the jury fairly trying the true issues. The sanction for the observance of the rules of
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- evidence in criminal cases is that, if they are broken in any case, the conviction may be quashed": Maxwell v Director of Public Prosecutions; and Sugarman's Case.' "
34 In the present case, Mr Murray QC clearly acted in accordance with the high obligations of his office and no criticism could possibly be voiced of the way in which the wilful murder trial was conducted by him.
35 On 22 March 1996 there was a notice of motion brought before Murray J requesting the learned trial Judge to withdraw from the trial of the applicant on the two counts of aggravated sexual assault. It transpired that the learned trial Judge had actually looked at the file in relation to the 1984 wilful murder proceedings and in so doing had discovered that he had been the Crown prosecutor. His Honour brought this to the attention of counsel for the applicant on the sexual assault trial and this in turn led to the notice of motion. There was full argument on the matter on 22 March 1996, at the conclusion of which his Honour ruled that there was no basis upon which he should step aside from performing his duties as trial Judge upon the indictment for sexual assault. His Honour said:
"MURRAY J: All right; thank you. Miss Cleary, I have come to a clear view about it. It would seem to me that the proposition upon which reliance can be placed is my involvement in the case in 1984 as counsel prosecuting and that involvement in my view would be insufficient to cause the reasonable informed observer to take the view that I may be biased in a way which would preclude me from properly performing my duties as the trial judge next week."
36 The applicant in his written argument has rightly appreciated that the question was whether a fair minded observer might entertain an apprehension of bias on the part of the learned trial Judge by reason of his prior involvement with the applicant, in having prosecuted him on a trial for wilful murder in 1984. Put that way, the applicant's submission is a translation of what was said in Webb v The Queen (1994) 181 CLR 41 by Mason CJ and McHugh J, who said (at 47):
"When it is alleged that a judge has been or might be actuated by bias, this Court has held that the proper test is whetherfair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case. The
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- Court has applied the same test to a Commissioner of the Australian Industrial Relations Commission and to a member of the Australian Broadcasting Tribunal. The Court has specifically rejected the real likelihood of bias test. The principle behind the reasonable apprehension or suspicion test is that it is of 'fundamental important that justice should not only be done, but should manifestly and undoubtedly be seen to be done'. Although the role of the juror is not the same as that of the judge, a commissioner or a member of a quasi-judicial tribunal, we do not think that the difference between the role of the juror and the role of those persons warrants any different test for alleged bias."
37 Webb v The Queen was concerned with the question of apprehension of bias on the part of a juror, but the principles expressed in the case are equally applicable to the position of a trial Judge. The principle when related specifically to the position of a trial Judge, was expressed in Livesey v New South Wales Bar Association (1983) 151 CLR 288 by the Court (at 293 - 294) as follows:
"… a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it. That principle has subsequently been applied in this Court (see, eg Re Judge Leckie; Ex parte Felman; Reg v Shaw; Ex parte Shaw and in the Supreme Court of New South Wales (see eg Barton v Walker). Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning."
38 Livesey v New South Wales Bar Association was a case in which two members of the Court of Appeal had expressed adverse opinions about the credit of a barrister who later came before the Court on a motion to be struck off the role of counsel for professional misconduct. In the High Court it was said (at 294):
"… where there is no allegation of actual bias, the question whether a judge who is confident of his own ability to determine the case before him fairly and impartially on theevidence should refrain from sitting because of a suggestion that the views which he has expressed in his judgment in
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- some previous case may result in an appearance of pre-judgment can be a difficult one involving matters 'of degree and particular circumstances may strike different minds in different ways' (per Aickin J in Shaw). If a judge at first instance considers that there is any real possibility that his participation in a case might lead to a reasonable apprehension of pre-judgment or bias, he should, of course, refrain from sitting. On the other hand, it would be an abdication of judicial function and an encouragement of procedural abuse for a judge to adopt the approach that he should automatically disqualify himself whenever he was requested by one party so to do on the grounds of a possible appearance of pre-judgment or bias, regardless of whether the other party desired that the matter be dealt with by him as the judge to whom the hearing of the case had been entrusted by the ordinary procedures and practice of the particular court."
- The Court added (at 294):
"… appellate courts removed from the pressure of a possible need for immediate decision and enjoying the advantages both of hindsight and, conceivably, further material and information, will on occasion conclude that a decision of a judge at first instance that he should sit was mistaken and has resulted in the situation where one of the parties or a fair-minded observer might entertain a reasonable apprehension of bias or pre-judgment".
"Bias in this case is two totally different scopes of the legal process, not a matter of a judge deciding the same legal questions but also a prosecutor trying to put man in prison for life.
Whether the judge is able to bring an impartial and unprejudiced mind the resolution of the matter after previously trying to imprison the applicant for life, is the question that a fair minded observer would be asking.
The answer would be: 'NO",
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- So there has been a miscarriage of justice by reason of a reasonable apprehension of bias."
40 There is a misapprehension on the applicant's part in this submission. As I have pointed out, Mr Murray QC, when acting as Crown prosecutor in the wilful murder trial, was not "trying to put (a) man in prison for life" but was performing fairly and impartially the responsibility cast upon him of Crown prosecutor in those proceedings. Obviously the applicant would not see it that way, but once the role of a Crown prosecutor is understood, it must be said that in this case there is no evidence that Mr Murray QC did other than present fairly and impartially the prosecution case against the applicant at his wilful murder trial.
41 The question is whether, with the expiration of some 11-1/2 years from the time Mr Murray QC prosecuted the applicant for wilful murder to the time Murray J sat as the presiding Judge at the aggravated sexual assault trials, fair-minded people might reasonably apprehend or suspect that his Honour had prejudged or might prejudge the case insofar as he was required to exercise judgment on it. It is, of course, to be appreciated that as presiding Judge at a criminal trial his Honour's role was circumscribed. He was called upon to make any relevant rulings on evidence (and no complaint has been made in relation to any such ruling) and to sum up to the jury at the conclusion of the trial. His Honour was not the decision maker and only if the accused person was convicted would he be required to impose sentence. In this respect, there is no application for leave to appeal against the sentences which were pronounced.
42 Counsel for the respondent advised the Court on the hearing of the appeal that there was no known reported decision on the point at issue in this proposed ground of appeal. However, in the United States of America the question has been the subject of judicial decision at a number of different levels. The cases are collected in Comment: Don't I know you from somewhere?: Why due process should bar judges from presiding over cases when they have previously prosecuted the defendant: Peter M Friedman (1998) 88 J Crim L & Criminology 683. At [698] the author comments upon Del Vecchio II, 31 F 3d 1363 (7th Cir 1994) (en banc) in the following terms:
- "In 1979, George Del Vecchio was tried and convicted of murder, rape, and deviate sexual assault and sentenced to death in Cook County Criminal Court. The presiding judge,
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- Louis Garippo, had successfully prosecuted Del Vecchio on murder charges fourteen years earlier in a highly publicized and sensationalized case. Judge Garippo's participation in the second case was troublesome not only because of his prior prosecution of the defendant, but because as a judge, he ruled on the admissibility of evidence and testimony from the first murder case.
Judge Garippo's level of participation in the earlier prosecution was hotly disputed between the majority and dissenters in the en banc decision (Del Vecchio II). The majority maintained [*699] that Judge Garippo's participation in the prosecution was tertiary, and that the few decisions he made were pro-forma rather than exercises of discretion or judgment. In contrast, the dissenters in Del Vecchio II accused the majority of obfuscating Judge Garippo's role in the first murder trial, instead suggesting he was 'intimately involved' in that trial.
Specifically, the dissent maintained that Judge Garippo, in his previous role as prosecutor, had been involved in every major decision in the case. In particular, Garippo's exercise of prosecutorial discretion in charging Del Vecchio as a minor in the first murder resulted in Del Vecchio's early release from prison, allowing him to kill again. While much in this case turned on which characterization of the facts was accepted, stripped of the factual dispute, the opinions in Del Vecchio II still hold much interest.
One important issue Del Vecchio II addressed was whether the appearance of bias itself created a necessity for recusal. The majority's interpretation of the Supreme Court 'appearance of justice' language was extremely constricted. The Del Vecchio II court found that language to stand for the proposition that 'judges must sometimes recuse themselves when they face possible temptations to be biased, even when they exhibit no actual bias against a party or cause,' rather than the more stringent standard that 'bad appearances alone … require disqualification to prevent an unfair trial.'
Another controversial aspect of the majority opinion suggested that even if Judge Garippo was tempted to be biased, the temptation did not amount to a due process
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- violation because it was not financial. Moreover, the court contended that even if Judge Garippo gave George Del Vecchio a 'clear break' in the first trial, the risk of bias would still be insufficient to mandate [*700] disqualification. While bias may have existed, it was not 'substantial'. The court rejected the notion that an average judge in Garippo's situation would violate his oath of impartiality. Suggesting bias in such a situation would be 'inconsistent with the presumption of honesty and integrity of those serving as adjudicators.' The majority warned against an exaggerated sense of propriety and erecting barriers in the way of Illinois' attempts to give 'an unrepentant and twice convicted murderer … a sentence the people of Illinois deem appropriate' - ie the death penalty.
As for actual bias, the court held that the record showed none. While this conclusion could be interpreted as evidence that Judge Garippo erected a firewall between his previous prosecution of Del Vecchio and the instant case, it does not necessarily prove that he did. Actual bias can be extremely difficult to prove. If the system operates under the premise that fair decision-making is not compromised by Judge Garippo's actions, it will reconcile the facts it sees in front of it with that view. In Del Vecchio I, the court noted that:
If the judge is silent [and there is no obvious bias in the record] there is no proof of actual bias. And if the judge does say things that sound partial, there is still no evidence of bias because [in the mind of skeptics] if the judge were really partial, he would have been smart enough to remain silent.' "
"The few circuit cases that have addressed the issue of whether due process prohibits a judge from siting in a case where he has prosecuted the defendant are in agreement that [*703] no violation of due process has occurred. Courts have found no bias in the records in these cases, despite, at least in one instance, powerful evidence to the contrary, and despite the Supreme Court's admonition that the appearance of
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- unfairness can compromise due process as greatly as manifested bias itself."
44 Leaving aside the important constitutional safeguard of "due process" in the United States of America, it is apparent that American courts favour the view that mere prosecution of an accused person in the past does not disqualify a trial Judge from sitting years later on the trial of that person for another offence. In Del Vecchio II 115 S Ct 1404 (1995) a certificate to appeal to the Supreme Court of the United States was denied.
45 In my view, the passage of time between the date upon which Mr Murray QC acted as Crown prosecutor in the wilful murder trial and the date upon which he as Murray J presided at the sexual assault trial, is the most telling factor in considering whether a fair-minded person might reasonably apprehend or suspect that his Honour had prejudged or might prejudge the case (accepting that the area for judgment or prejudgment was restricted in its scope). Eleven and a half years between acting as a Crown prosecutor and presiding at a criminal trial is a very long period of time. Whilst in some cases it might properly be argued that a person who had acted as prosecutor one day and presided as trial Judge the next, would be suspected by fair-minded people as likely to prejudge a case, it is the long lapse of time between two roles which, in my view, leads inevitably to the conclusion that no fair-minded person would reasonably apprehend or suspect that his Honour had prejudged or might prejudge the case against the applicant on the sexual assault trial.
46 His Honour's refusal to stand down did not, in my view, constitute or result in a miscarriage of justice.
The direction in relation to complaint
47 The fifth ground of appeal contends that the learned trial Judge erred by failing to warn the jury in regard to the lack of complaint by the complainant at the first opportunity after the alleged offences were alleged to have occurred. However, this was not a case of lack of complaint, but rather one of a complaint. A complaint was made by the complainant to her mother some days later.
48 The evidence established that in the early hours of 13 August 1994 the complainant had been taken by the applicant to his house, and there she complained that he had had sexual intercourse with her without her consent and also inserted his finger in her vagina without her consent.
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- She had awoken at about 5 pm on Saturday 13 August 1994 and was in a daze and very confused. She walked out of the applicant's room into the house where she saw a woman named Ursula, but she had only seen her a couple of times and she did not tell her what had occurred because she did not know what to say or do. About an hour later she went home and the following day (Sunday) she went to a friend's house where she saw her mother and her mother's boyfriend. She did not tell her mother what had occurred and did not want to tell anybody because she was scared that the applicant or one of his associates might get her killed. On the following Tuesday the complainant told her mother, Jennifer Brown, what had happened. She did not tell the police at this time because she was scared that the applicant would get somebody to kill her. It was in January 1995 that she made a formal complaint to the police.
49 Evidence was given to the Court by the complainant's mother, Mrs Brown, of the complaint made to her. The complainant told her that she had been raped by the applicant and that she was scared for her life because he had threatened to kill her if she said something to anybody.
50 It does not appear from the summary of evidence filed by the respondent with the Court that the complainant was cross-examined at the trial to the effect that she had not made a complaint at the earliest opportunity.
51 The applicant's defence at trial was that he did not have sex with the complainant on 13 August as alleged or at all. He contended that on the Friday night/Saturday morning he had been at home at his mother's house and had not seen the complainant at all. It was not until the following day that he saw her and at no time had he ever had sex with her. This evidence was supported by the evidence of Mrs Nancy McCreed, who testified that she was an insomniac and had got up numerous times during the night in question and had seen her son asleep and that nobody else had been in or out of the house.
52 Against this background the learned trial Judge gave the jury a direction as to what use they could make of the evidence of the complaint made to Mrs Brown. His Honour pointed out that the evidence of complaint was admissible when made at the first reasonable opportunity for a particular reason. His Honour said:
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- "The complaint that was made was effectively that to the mother, Ms Brown, on the following Tuesday, as I have understood the evidence.
That is admissible when made at the first reasonable opportunity for this reason: it wouldn't follow, of course, that an account was more true, or more necessarily to be accepted as true, because it was repeated on a number of occasions. That would seem to be commonsense. That is the view that the law takes of it as well. So you may not use that evidence to bolster or directly seek to prove that what she says is true and that it occurred and it occurred without her consent on the occasions charged. It is not evidence which supports directly a conclusion of his guilt in that way.
What she had to say about what occurred is led to show the consistency of her behaviour and to support her credibility and your judgment about it, and is capable of being used by you in that limited way only. If you see that she has behaved in a way which is consistent, in your judgment, then you may be more prepared to accept her as a witness of truth, accurately telling you what occurred to her. That is the basis upon which the material is led. Of course, there may be many reasons for delay or for a complaint not being made or not being carried through."
53 The direction of the learned trial Judge on the issue of evidence of complaint was entirely in accordance with Kilby v The Queen (1973) 129 CLR 460 where Barwick CJ said (at 466 and 472 respectively):
"… evidence of a complaint at the earliest reasonable opportunity is exceptionally admitted only as evidence of consistency in the account given by the woman claiming to have been raped: that is to say, it is admitted as matter going to her credit (see Reg v Lillyman, per Hawkins J; Sparks v The Queen).
…
The admission of a recent complaint in cases of sexual offences is exceptional in the law of evidence. Whatever the historical reason for an exception, the admissibility of that evidence in modern times can only be placed, in my opinion,
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- upon the consistency of statement or conduct which it tends to show, the evidence having itself no probative value as to any fact in contest but, merely and exceptionally constituting a buttress to the credit of the woman who has given evidence of having been subject to the sexual offence."
54 No direction was given in accordance with s 36BD of the Evidence Act 1996, which is a direction that a Judge must give to a jury when evidence is given or a question is asked of a witness which tends to suggest an absence of complaint in respect of the commission of the alleged offence, or where it has been suggested that there has been delay by the complainant in making such a complaint. Then, the trial Judge is required to give a warning to the jury that the absence of complaint or delay in complaining does not necessarily indicate that the allegation that the offence was committed is false and to inform the jury that there may be good reasons why a victim of an offence such as that alleged may hesitate in making or may refrain from making a complaint of that offence. It is complained that the learned trial judge failed to give such a direction in the present case. The learned trial Judge did mention to the jury matters relating to the circumstances in which the complaint came to be made, saying:
"As I have understood, what she says - and it will be for you to see what impact it has upon your judgment about her and about her credibility - is that when she saw the first person she says she saw after the events, Miss Hyslop, she was confused and uncertain and didn't know what to do quite. She felt bad and made no decision about what should occur.
Her next reaction was that she needed to go back home to her mother. She did that. She was unable to make contact with her mother until the Sunday, as I recall her evidence, and I think Mrs Brown's evidence would agree with that as well. She was even then uncertain and unclear in what she should do. So she didn't tell her mother anything about it until a little later again. There is some element of delay there, a matter for you to judge what you think about that."
55 Although the accused had not suggested either absence of or delay in making a complaint, the learned Judge raised himself the question of delay, and it is therefore arguable that he should have given the mandatory direction under s 36BD of the Evidence Act. However, in this case the absence of s 36BD direction cannot have prejudiced the
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- applicant and I can see no miscarriage of justice occasioned by any failure to give the direction. Such a direction could not have affected the verdict of the jury: Dhanhoa v The Queen [2003) 77 ALJR 1433 for McHugh and Gummow JJ at [60].
The Black direction and the direction on majority verdicts
56 Grounds 6 - 9 inclusive challenge the learned trial Judge's handling of the jury in relation to the so-called Black direction and the direction in relation to majority verdicts.
57 What happened at the trial was that after only two hours of deliberation the jury sent to the trial Judge a message that they were unable to agree unanimously on the verdicts and asked whether there could be any departure from unanimity.
58 The learned trial Judge informed counsel of this message and indicated that he thought he should call the jury in and give them some direction in relation to their deliberations. Counsel for the Crown indicated that he had no difficulty with a Black direction being given at that time and counsel for the applicant was in agreement.
59 His Honour called in the jury and gave a direction which was in accordance with that set out by the High Court of Australia in Black v The Queen (1993) 179 CLR 44 at 51 - 52.
60 The direction given was a variation of the direction set out by the High Court, but contained the essence of it. It is to be borne in mind, of course, that the High Court said in relation to the proposed direction that a trial Judge "should give a direction along the following lines".
61 As I see it, the direction was in general accord with that recommended by the High Court in Black v The Queen. I can see no basis upon which it could be suggested that the direction given caused any miscarriage of justice.
62 The jury retired in the case at 1.08 pm. At 4.36 pm they returned and the learned trial Judge indicated that the time had arrived at which there might be a degree of relaxation from the requirement of unanimity. His Honour said:
"The time has now arrived in which there may be a degree of relaxation from the requirement for unanimity. The position has now arrived where a verdict of either guilty or not guilty
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- in relation to either of the charges which are laid in the indictment may be taken from you if it is a verdict in which at least 10 of you agree, so that is the position. To that degree only may the requirement of unanimity be relaxed.
It doesn't mean that that position having been reached you should abandon the search for unanimity, of course, but if the position was such that the firm views of you respectively then meant that you could not achieve the degree of unanimity above that majority of 10, whether that be for guilty or not guilty in relation to either charge, then that verdict by that majority might now be taken."
63 I am unable to understand how it can be argued that the direction given by the learned trial Judge was given at an inappropriate time in the proceedings. More than three hours had expired from the time the jury began its deliberations: Juries Act 1957, s 41.
64 In the result, the jury returned at 5.02 pm and found the applicant guilty on both counts by majority of at least 10 jurors.
Unbalanced summing up
65 Ground 11 contends that there was a lack of procedural fairness and natural justice during the trial which led to the verdicts of the jury being unsafe and unsatisfactory and therefore a miscarriage of justice. This ground is expanded in the applicant's written argument to basically contend (in combination with the contention that there was bias or a likelihood of bias on the part of the trial Judge) to complain that the learned trial Judge failed to deliver a balanced summing up to the jury.
66 The applicant has fairly set out in his written submissions the requirements of a trial Judge's summing up to a jury in a criminal trial, citing Cleland v The Queen (1982) 151 CLR 1 where (at 10) Gibbs CJ said of the obligation cast upon a trial Judge:
"It is clear in principle that a trial judge, when directing a jury in a criminal trial, must hold an even balance between the cases of the prosecution and the accused and must fairly direct the consideration of the jury to the matters raised by the accused in his defence. In what manner, and in what detail, this should be done must of course depend on the circumstances of each case."
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67 In Hoy & Ors v The Queen [2002] WASCA 275 at [36] - [44], I set out in detail what is required of a trial Judge in charging a jury, citing a number of cases and concluding (at [44]) that there are four matters a trial Judge needs specifically to address.
"(a) the ingredients of the offence alleged;
(b) how the relevant law might be applied to the facts of the case;
(c) a collected resume of the evidence relating to each of the ingredients of the offence;
(d) a brief outline of the arguments which had been put in relation to that evidence."
68 In the same case at [257] et seq I made reference to the need for balance in the trial Judge's directions to the jury:
"257 It is in the end a question of balance. As long as the defence case is properly put, justice will have been done. In Domican v The Queen (1992) 173 CLR 555 the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) put it this way at 561:
'… the requirement of fairness means that ordinarily the respective cases for the prosecution and the accused must be accurately and fairly put to the jury. But that requirement does not oblige the judge to put to the jury every argument put forward by counsel for the accused. This Court has said that it "is hardly necessary to say that as a reason for granting a new trial, after a conviction in a criminal case, it is not enough that the presiding judge has not mentioned to the jury all the matters which were set up on behalf of the accused as affecting probabilities". Whether the trial judge is bound to refer to an evidentiary matter or argument ultimately depends upon whether a reference to that matter or argument is necessary to ensure that the jurors have sufficient knowledge and understanding of the
- evidence to discharge their duty to determine the case according to the evidence. Consequently, the conduct of the case necessarily bears on the extent to which the judge is bound to comment on or discuss the evidence. Discussion or comment which is justified or required in one case may be neither required nor justified when a similar case is conducted in a different way.'
- 258 In RPS v The Queen (2000) 199 CLR 260, Gaudron A-CJ, Gummow, Kirby and Hayne JJ said (at [41]):
'Before parting with the case, it is as well to say something more general about the difficult task trial judges have in giving juries proper instructions. The fundamental task of a trial judge is, of course, to ensure a fair trial of the accused. That will require the judge to instruct the jury about so much of the law as they need to know in order to dispose of the issues in the case. No doubt that will require instructions about the elements of the offence, the burden and standard of proof and the respective functions of judge and jury. Subject to any applicable statutory provisions it will require the judge to identify the issues in the case and to relate the law to those issues. It will require the judge to put fairly before the jury the case which the accused makes. In some cases it will require the judge to warn the jury about how they should not reason or about particular care that must be shown before accepting certain kinds of evidence.' "
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- demonstration of any transgression on the part of the learned trial Judge in the way in which he summed up the case.
Condition of the accused at trial
70 Ground 10 contends that there was a miscarriage of justice because the applicant was depressed at his trial and this was a fact that the learned trial Judge was aware of, yet neither he (nor defence counsel) enquired how the applicant felt and whether he was fit to continue at the trial.
71 All that one can say about this ground is that there is no evidence to indicate that there was anything wrong with the applicant at his trial. There is nothing to suggest that he was incapable of giving evidence (as indeed he did) or that it was not possible for him to cope with the trial process. Had the applicant been suffering in any way it was open to him to make application to the learned trial Judge for the appropriate adjournment of the proceedings, but no such application appears to have been made and I can find no substance in this proposed ground of appeal.
72 I am therefore of the opinion that the applicant is unable to demonstrate any grounds of appeal of substance in the proposed notice of application for leave to appeal. That being so, I do not believe there would be a miscarriage of justice if the application for extension of time within which to appeal was refused. In my view that application should be refused.
11
46
1