Paterson v The Queen
[2004] WASCA 63 (S)
•5 APRIL 2004
PATERSON -v- THE QUEEN [2004] WASCA 63 (S)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASCA 63 (S) | |
| COURT OF CRIMINAL APPEAL | 05/04/2004 | ||
| Case No: | CCA:128/2003 | 12 NOVEMBER 2003 | |
| Coram: | MALCOLM CJ STEYTLER J MCKECHNIE J | 16/12/03 | |
| 11/06/04 | |||
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Order for new trial | ||
| B | |||
| PDF Version |
| Parties: | AARON PAUL PATERSON THE QUEEN |
Catchwords: | Appeal and new trial Conviction quashed Whether new trial should be ordered |
Legislation: | Criminal Code (Cth), s 147.1(1) Criminal Code (WA), s 689(2) |
Case References: | Boxer v The Queen (1995) 14 WAR 505 Bull v The Queen (2000) 201 CLR 443 Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443 Clemesha v The Queen [1978] WAR 193 Crofts v The Queen (1996) 186 CLR 427 Graham v The Queen (1998) 195 CLR 606 Ibbs v The Queen [2001] WASCA 129 Longman v The Queen (1989) 168 CLR 79 Maxwell v The Queen (1996) 184 CLR 501 McGrath v The Queen (1916) 18 WALR 124 Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141 Paterson v The Queen [2004] WASCA 63 R v Bailey [1956] SASR 153 R v Main (1999) 105 A Crim R 412 Rabey v The Queen [1980] WAR 84 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PATERSON -v- THE QUEEN [2004] WASCA 63 (S) CORAM : MALCOLM CJ
- STEYTLER J
MCKECHNIE J
DECISION : 11 JUNE 2004 FILE NO/S : CCA 128 of 2003
- CCA 129 of 2003
- Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : COMMISSIONER REYNOLDS
File Number : IND BUN 2 of 2003
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Catchwords:
Appeal and new trial - Conviction quashed - Whether new trial should be ordered
Legislation:
Criminal Code (Cth), s 147.1(1)
Criminal Code (WA), s 689(2)
Result:
Order for new trial
Category: B
Representation:
Counsel:
Appellant : Mr S P Pallaras QC
Respondent : Mr D W L Renton
Solicitors:
Appellant : Max Owens & Co
Respondent : Commonwealth Director of Public Prosecutions
Case(s) referred to in judgment(s):
Boxer v The Queen (1995) 14 WAR 505
Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443
Clemesha v The Queen [1978] WAR 193
Crofts v The Queen (1996) 186 CLR 427
Graham v The Queen (1998) 195 CLR 606
Ibbs v The Queen [2001] WASCA 129; 122 A Crim R 377
Longman v The Queen (1989) 168 CLR 79
Maxwell v The Queen (1996) 184 CLR 501
McGrath v The Queen (1916) 18 WALR 124
Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141
Paterson v The Queen [2004] WASCA 63
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R v Bailey [1956] SASR 153
R v Main (1999) 105 A Crim R 412
Rabey v The Queen [1980] WAR 84
Case(s) also cited:
Nil
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1 MALCOLM CJ: On 16 December 2003, the Court, by a majority, allowed the appellant's appeal against his conviction of an offence of attempting to cause harm to a public official contrary to s 147.1(1) of the Criminal Code (Cth). It was then stated that the reasons for judgment would be published later.
2 The appellant had been convicted after trial before a jury in the District Court at Bunbury on 5 August 2003 and on the same date had been sentenced to imprisonment for 2 years with eligibility for release after serving a period of 10 months of his sentence, upon his entering into a recognisance to be of good behaviour for a period of 14 months in the sum of $5000.
3 At the conclusion of my judgment in par [214], I said:
"Given that the appellant was sentenced on 5 August 2003 to imprisonment for 2 years with eligibility for parole after serving 10 months of that term, and has served more than 4 months of the sentence, there remains a question whether there should be a retrial. This is an issue on which I would be prepared to hear counsel."
4 When the decision was pronounced, the Court indicated that it wished to hear submissions on the question whether there should be a retrial. Consideration of that question was adjourned to a date to be fixed pending the publication of the reasons for judgment. In the meantime, it was agreed by counsel for the Commonwealth Crown that the appellant should be discharged from custody on his undertaking that he remain in the jurisdiction pending the outcome of the proceedings.
5 The reasons for judgment were published on 5 April 2004: Paterson v The Queen [2004] WASCA 63. The Court then heard submissions on the question whether there should be an order for a retrial. These submissions were made on the basis that the appellant had succeeded on grounds (1), (2), (3) and (4) of the grounds of appeal, namely that:
"(1) The manner in which the Crown case was conducted gave rise to a real risk of improper influence over the jury and caused a miscarriage of justice.
(2) The learned Commissioner erred in not directing the jury in sufficiently strong terms that the case was not to be decided by resolution of the issue whether the police were telling lies or 'trying to do something untoward'.
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- (3) The learned Commissioner erred in not directing the jury to ignore a submission by the Crown prosecutor not to 'tar these honourable people [the prosecution witnesses]' with what the jury may have read about in the Royal Commission into Police Corruption.
(4) The learned Commissioner erred in not directing the jury regarding what conclusions could properly be drawn from the apparent failure of defence counsel to comply with the rule in Browne v Dunn (1893) 6 R 67."
6 In Rabey v The Queen [1980] WAR 84, Wickham J considered the circumstances in which the Court, having quashed a conviction, should exercise the discretion under s 689(2) of the Criminal Code. After commenting that, at that time, all the criteria for exercising the discretion to order a new trial, as distinct from simply directing a judgment and verdict of acquittal, had not yet been worked out, his Honour went on to say at 95 – 96:
"Where the case is strong and the error is a procedural one only, there is much to be said for the proposition that the matter should be retried in a proper manner. There are, however, other considerations. A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal. I think that a properly directed jury would be unlikely to convict on the issue of 'intent', and 'possession' would only have been triable summarily. Some of the criteria for exercising the discretion to order a new trial are referred to in R v Bailey [1956] SASR 153; R v Leak [1969] SASR 172 at 175 et seq; in R v Hanias (1976) 14 SASR 137 at 145, 157, and in the authorities therein mentioned. To these I would add the consideration that in this case the circumstances of the charged offence were comparatively venial.
In Peacock v R (1911) 13 CLR 619 at 675, O'Connor J said that where the facts proved at the first trial would have been sufficient to support the conviction if the jury has been properly
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- directed, in general a new trial may be granted to enable the faulty direction to be remedied, providing that no injustice is done to the accused.
In considering the discretion to grant a new trial, that is the view which is expressed in R v Leak, supra, with the added condition 'if the jury could reasonably convict and might not improbably convict'. In considering the discretion not to grant a new trial, the view adopted was that where the case is weak and the jury properly directed 'would probably acquit' then, the court may properly incline towards refusing a new trial. In a particular case there will be various considerations, but I would respectfully adopt as a starting point the dicta of Griffiths CJ in Peacock v R, at 641, as follows: 'I do not think it was intended that a new trial should be granted as of course in every case where there has been an irregularity. I think the proper rule is that where there was evidence to go to the jury and the error was of such a nature that, if it had not been committed, the verdict would probably have been the same, a new trial may be granted. On the other hand, if, on the whole case, it is reasonably probable that, but for the error complained of, the verdict would or might have been different, a new trial should not be granted.' "
7 In Boxer v The Queen (1995) 14 WAR 505 at 540 – 541 in my judgment (with which Franklyn and Owen JJ agreed), consideration was given to the question whether a new trial should be ordered in a case where the conviction was quashed because the trial Judge had failed to direct the jury that comments made by counsel for the prosecution on the failure of the accused to give evidence breached the prohibition against such comments in s 8(1)(c) of the Evidence Act1906 (WA). The basis of the comments was that various suggested facts were put to prosecution witnesses in cross-examination by counsel for the defence. In that case, the seven accused were convicted of the offence of riot contrary to s 64 of the Criminal Code (WA). Their appeals against conviction were allowed and the convictions quashed.
8 In his closing address, counsel for the Crown made comments which were held to be comments on the failure of the accused to give evidence. The basis of the comments was that various suggested facts were put to prosecution witnesses which they had not only denied, but there was not " … one skerrick of evidence from any of the accused". In my judgment at 535 – 536 (with the agreement of Franklyn and Owen JJ) I said:
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- "Counsel for the appellants contended that if counsel for the Crown had said '… and in respect of which there is no evidence' instead of '… and in respect of which that is the only evidence', such a comment would be capable of being a breach of s 8(1)(c). I accept this contention. Propositions of fact or suggested facts put by counsel to a witness are not evidence. Where a proposition of fact is denied, however, the denial is evidence that the alleged fact did not occur. It follows that it is permissible to say: 'The evidence on the relevant point was X, Y and Z and there is no evidence to the contrary'."
9 In a later passage quoted in the judgment, counsel for the Crown, commenting on other facts, referring to a specific incident alleged, contended that:
"… for no apparent reason – and there's no evidence to the contrary to suggest there was another reason. No evidence has been produced. Not a skerrick – Frank Boxer ran in and king hit … ."
10 It was held that this was a comment on the failure of the accused to give evidence. There was a further reference by counsel later in his address to another incident when he said:
"Bear in mind there's not a skerrick of evidence to the contrary."
11 In Boxer (supra), it was held that while these various comments infringed the relevant prohibition, standing alone they did not result in a substantial miscarriage of justice, but taken into account with a number of other matters, they contributed to a result which did constitute a substantial miscarriage. These included the fact that the learned Judge gave the standard direction to the jury that the accused were not obliged to give evidence and said:
"However, in a case such as this where in addition to some direct evidence from the Crown witnesses as to acts of the accused, and you have heard that, the Crown ask you to draw inferences, for example, as to the intent of the various accused, then such facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence, obviously from the Crown, and in a situation where when the accused elects not to give evidence of relevant matters which you might think may well have been within their own knowledge.
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- In that situation you may more readily find the facts proved and draw inferences from them in that situation. Put another way there are two things, first, the silence of the accused cannot be equated with guilt, but on the other hand if in relation to a particular element of the charge which is required to be proved you find the evidence that you have heard from the Crown establishes a fact, the absence of any acceptable evidence to the contrary from the accused may lead you to find those facts more readily and in turn to find the inferences based on those facts." (My italics)
12 It was held that it was a misdirection to tell the jury that "'facts upon which the inferences can be drawn may be more safely found where there is uncontested evidence' and when the accused elects not to give evidence of relevant matters which the jury considers may well have been within their own knowledge, they 'may more readily find the facts proved and draw inferences from them'". The various matters to which I have referred were held to have contributed to a substantial miscarriage of justice, with the result that the appeals were allowed and the convictions quashed.
13 In the context of determining whether to order a retrial in Boxer (supra), it was noted at 540 that in Clemesha v The Queen [1978] WAR 193 at 201, Wickham J (with whom Lavan SPJ agreed) adopted the following passage in the judgment of Napier CJ, Reed and Ross JJ in R v Bailey [1956] SASR 153 at 161:
"The governing consideration is, of course, that justice should be administered according to law, but we are not disposed to say that the interests of justice would be served by laying down the rule that a new trial will be ordered, as a matter of course, where there was evidence upon which the jury could have convicted on an adequate direction. A second trial is seldom an entirely satisfactory solution, and we think that it would be inadvisable to give any encouragement to the idea that a new trial will be allowed, however the case is presented at the first trial. When justice has once miscarried we think that there is some risk that 'truth, like all other good things, may be loved unwisely – may be pursued too keenly – may cost too much'."
14 In my opinion, the present case was one in which the prosecution had a reasonable prospect of success, but a conviction was not inevitable. There were some significant discrepancies in the evidence given by the
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- prosecution witnesses. There was also a major question whether the appellant, when in his vehicle with the engine running, his dog barking and the radio on, did in fact hear Agent Harrison call out, "Stop. Police". It was crucial to the prosecution case that the jury be satisfied beyond a reasonable doubt both that those words were called out by Agent Harrison and that the appellant in fact heard them. The appellant denied that he heard them. In this respect, the evidence of the appellant that the engine in his vehicle was running, the radio was on and his dog was barking was not contradicted, but, at least to a significant extent partly corroborated by the video which recorded the barking of the dog. Reliance was placed upon the words, "Stop. Police" because the prosecution accepted that it had to prove that the appellant knew that Agent Harrison was a public official and that what he was doing at the time was engaging in his capacity as a public official.
15 In these circumstances, acknowledging that a conviction was certainly not inevitable, I do not consider that the prosecution case was so weak that a verdict of acquittal should be entered. It follows that the appropriate order for the Court to make is that there be a retrial.
16 The question whether such a retrial should proceed is in the end a matter for the Commonwealth Director of Public Prosecutions. In Ibbs v The Queen [2001] WASCA 129; 122 A Crim R 377 at [19] I noted a submission by the State Director of Public Prosecutions that this Court should be reluctant to enter a verdict of acquittal where in truth the matters for determination relevant to the question of a new trial rest more with the Director of Public Prosecutions than with the Court. In support of that submission, reliance was placed on Crofts v The Queen (1996) 186 CLR 427 per Toohey, Gaudron, Gummow and Kirby JJ at 452; Graham v The Queen (1998) 195 CLR 606 per Callinan J (with whom Gleeson CJ, Gaudron, Gummow and Hayne JJ agreed) at [47]; and Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443.
17 Crofts v The Queen (supra) was an appeal from the decision of the Court of Criminal Appeal in Victoria which dealt with a question relating to when it was appropriate for a trial Judge to give a warning to a jury in a context of delay by the complainant in making a complaint in a sexual assault case. Their Honours said at 452:
"On 14 August 1996, the Court pronounced the orders stated at the outset of these reasons. The appellant has already served a significant part of the custodial sentence imposed upon him. It
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- is appropriate to repeat McHugh J's closing comment in Longman: [(1989) 168 CLR 79 at 109]
'In all the circumstances of the case, it is arguable that the interests of the public, the complainant and the applicant are best served if the expense and psychological trauma of a new trial are avoided. But that is a matter for the Crown to decide.'"
18 Graham v The Queen (supra) was a decision on appeal from the Court of Criminal Appeal of New South Wales. The appeal concerned the admissibility of the evidence of a complaint made some six years after the last of the acts against the accused. It was held that the admissibility of the evidence under the Evidence Act1995 (NSW) was not inevitable and that the appellant may have lost a significant chance of an acquittal. After concluding at par [36] that there were a number of errors in the conduct of the trial, it was concluded by Callinan J at [47] that the appeal should be upheld, the verdicts of guilty quashed and a new trial ordered. His Honour concluded at [47]:
"Whether such a trial should take place in view of the term of imprisonment served by the appellant will be a matter for the Director of Public Prosecutions."
19 In Bull v The Queen (supra), it was held that certain evidence in a sexual assault case was inadmissible. McHugh, Gummow and Hayne JJ concluded at [131] that the appeal should be allowed, the conviction quashed and a new trial ordered. Their Honours went on to say:
"However, nothing in the materials before this Court makes it an appropriate case to enter an acquittal in favour of the appellants. The ground of appeal which the appellants have made out entitles them to a new trial, not an acquittal. Whether or not they should be re-tried is a matter for the Executive government of Western Australia, which may well take the view that the acquittal of the appellants on so many charges makes it practically, although not legally, impossible to try the appellants fairly."
20 Gleeson CJ at [28] and Kirby J at [151] agreed with the orders proposed. In my opinion, that case can be explained on the basis that there were public interest and tactical considerations which were relevant to the question whether a new trial should take place, which the executive was best placed to consider.
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21 In my judgment in Ibbs (supra), I said at [24]:
"These decisions have been applied in this Court where there are public interest issues which the Director of Public Prosecutions is best placed to decide whether or not to proceed with a new trial. For such cases it may be appropriate to order a new trial, leaving it to the Director to decide whether to proceed: cfMiddleton v The Queen [2000] WASCA 200; and Miles v The Queen [2000] WASCA 364."
22 I also went on to say in [25] that it did not follow from those decisions that, in a proper case, this Court should not proceed to order that a verdict and judgment of acquittal should be entered. While this Court will naturally be guided by decisions of the High Court on the proper construction and application of provisions of the Criminal Code, this is not an appropriate occasion upon which to express any definitive opinion in relation to the question whether and in what circumstances, this Court, having decided to quash a conviction, should exercise its discretion in relation to directing the entry of a verdict and judgment of acquittal or ordering a retrial. For example, in McGrath v The Queen (1916) 18 WALR 124, this Court held that, in a case where the conviction had been obtained on the basis of perjured evidence by a witness for the prosecution, a new trial would not be justified. This is not a case of that kind. In Ibbs (supra), the [State] Director of Public Prosecutions conceded that it was not a case in which it would be appropriate for there to be a new trial. In my opinion, that concession was rightly made. It was for this reason that the Court in that case not only ordered that the conviction be quashed, but directed that a verdict and judgment of acquittal be entered.
23 I also adhere to the further comments which I made in Ibbs (supra) at [26] – [35], with which Wallwork and Wheeler JJ agreed, save that Wheeler J refrained from expressing a view on the issues raised by the judgments in R v Main (1999) 105 A Crim R 412.
24 It is in this context that I would order a retrial. Consequently, it will be a matter for the Commonwealth Director to determine whether such a trial should proceed.
25 STEYTLER J: I have had the advantage of reading, in draft, the judgment of the Chief Justice. The background to the question which now arises, whether or not there should be a retrial, is there fully set out, as are
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- the relevant authorities. I agree with him that the appropriate order in this case is one for a retrial.
26 The prosecution case is, in my opinion, reasonably strong, albeit a conviction on a retrial is by no means inevitable. Moreover, there is nothing in the grounds of appeal upon which the appellant has succeeded which should entitle him to an acquittal, rather than to a new trial: cf Bull v The Queen (supra) at [131]. While I recognise, of course, that, in this case, there is room for debate whether the interests of the public, the complainant and the appellant are best served by another trial, more particularly given that the appellant has served more than 4 months of the sentence imposed upon him, it seems to me that, in all of the circumstances of the case, that is a matter which should be left for the Commonwealth Director of Public Prosecutions to decide: cfLongman v The Queen (1989) 168 CLR 79 at 109 and Crofts v The Queen (1996) 186 CLR 427 at 452.
MCKECHNIE J:
Chronology
27 The events which led to the appeal commenced on 27 March 2002 at Bridgetown when it is said that the appellant attempted to cause harm to a public official. An indictment was presented on 2 December 2002 and the trial took place on the 4 and 5 August 2003 following which the appellant was, upon conviction, sentenced to a period of 2 years' imprisonment with eligibility for release after serving a period of 10 months. Notice of application for leave to appeal was lodged on 25 August 2003. The appeal was heard on 12 November 2003. On 16 December 2003 the Court, by majority, allowed the appeal and quashed the conviction. The appellant was released, having then served some 4 months of sentence. The issue of a retrial was raised and it was agreed that the issue be pursued following the publication of the reasons of the Court. The reasons were published on 5 April 2004 and on that day the Court heard submissions as to whether there should be a retrial and reserved that question for consideration.
The principles
28 In Middleton v The Queen [2000] WASCA 200; 114 A Crim R 141 Miller J, Kennedy ACJ and Wallwork J agreeing, conducted a review of the authorities on the question when a court will exercise its discretion to direct a judgment and verdict of acquittal from [19] to [24], before concluding:
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- "… As it is essentially a question for the Director to decide whether there should be a re-trial, I would order that there be a re-trial rather than enter a verdict of acquittal."
29 I adopt the analysis by Miller J which is unnecessary to set out.
30 Generally, a court will order a retrial. An obvious exception is where an appeal succeeds on the grounds that the verdict was unreasonable or could not be supported having regard to the evidence. That is not this case. Another obvious reason for declining to order a retrial is where a person has served a substantial portion or all of the sentence imposed.
31 The institution of the Office of Director of Public Prosecutions, both Commonwealth and State, and the subsequent publication by the DPP of Prosecution Guidelines, provides a further reason for ordinarily leaving the decision whether the accused should be subjected to a further trial to the DPP. The decision to prosecute and the formation of charges are matters for the Executive: Maxwell v The Queen (1996) 184 CLR 501.
32 Ultimately, however, the exercise of the discretion whether to order a retrial is a determination as to the public interest.
33 As Wickham J noted in Rabey v The Queen [1980] WAR 84 at 95:
"… A new trial ought not to be ordered as a matter of course. Once justice has miscarried it is not always easy to maintain the scales in precise equipoise on a second occasion. The public interest in securing a fair trial of an alleged wrongdoer must be weighed against public inconvenience and expense, and against the possible oppression upon a member of the public who is placed in jeopardy twice for the same offence, has already spend some time in prison and has already been through one trial and an appeal."
Conclusion
34 In the present case, the following matters are relevant to the exercise of the discretion:
• The strength of the prosecution case. The prosecution case is reasonably strong although a conviction is certainly not inevitable.
• The appellant has served 4 months of a sentence of 2 years with eligibility for release after 10 months.
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- • There has been no significant delay in the laying of charges or in the passage of time before trial and appeal.
• The appellant will be put in jeopardy for a second time.
• The conduct of the prosecution was responsible for the conviction being quashed.
• The appellant did not contribute to the miscarriage of the trial.
35 This is very much a borderline case. On balance, I would exercise my discretion against an order for a retrial. The trial having miscarried, by reason of the conduct of the prosecution, and the appellant having served a period in custody, I do not believe that the public interest requires that the appellant be subjected to the stress and expense of a further trial.
2
14
2