Potts v The Queen

[2019] ACTCA 17

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

Potts v The Queen

Citation:

[2019] ACTCA 17

Hearing Date:

16 April 2019

Decision Date:

5 July 2019

Before:

Burns J

Decision:

See [48]

Catchwords:

APPEAL – Application for leave to appeal out of time – issues raised by applicant – setting of time limits and the validity of the Court Procedures Rules 2006 (ACT) – whether an order was made by the trial judge from which an appeal may lie – whether a conviction was recorded for the purposes of the Court Procedures Rules 2006 (ACT) – the effect of the Human Rights Act 2004 (ACT) – consideration of the proposed grounds of appeal – self‑induced intoxication – verdict of guilty to statutory alternative

Legislation Cited:

Court Procedures Act 2004 (ACT) s 7(1)

Court Procedures Rules 2006 (ACT) Ch 5; Divs 5.4.4, 5.4.7; subdiv 5.4.7.2; rr 5000, 5402, 5500, 5510(3)

Crimes Act 1900 (ACT) s 20, 23, 25

Criminal Code 2002 (ACT) Pt 2.3; ss 33(3), 34, 58(2)

Federal Court of Australia Act 1976 (Cth)

Human Rights Act 2004 (ACT) ss 21, 22(4)

Supreme Court Act 1933 (ACT) ss 37E, 37J(1)

Cases Cited:

Cobiac v Liddy (1969) 119 CLR 257

Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9

Doney v The Queen (1980) 171 CLR 207

Duff v The Queen (1979) 29 FLR 315

Griffiths v The Queen (1977) 137 CLR 293

Hinton v The Queen [2000] FCA 1019; 115 A Crim R 74

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Irving v Askew (1870) 5 QB 208

Maxwell v The Queen (1995) 184 CLR 501

Musgrove v McDonald (1905) 3 CLR 132

Parker v The Queen [2002] FCAFC 133

Perejmibida v Skelcher [2002] WASCA 2; 127 A Crim R 549

R v Prasad (1979) 23 SASR 161

The Queen v Collins [2004] ACTSC 48

The Queen v Meyboom [2012] ACTCA 2; 256 FLR 450

Viro v The Queen (1978) 141 CLR 88

Parties:

Bradley Lyle Leslie Potts (Applicant)

The Queen (Respondent)

Representation:

Counsel

J Masters (Applicant)

K McCann (Respondent)

Solicitors

Marjason & Marjason Solicitors (Applicant)

ACT Director of Public Prosecutions (Respondent)

File Number:

ACTCA 7 of 2019

Decision under appeal:

Court/Tribunal:                Supreme Court of the ACT

Before:              Murrell CJ

Date of Decision:         22 October 2019

Case Title:     R v Potts

Court File Numbers:   SCC 229 of 2017; SCC 230 of 2017

BURNS J

1.          On 24 July 2018, a jury returned verdicts of guilty to charges of making a threat to kill, unlawfully causing grievous bodily harm and assault occasioning actual bodily harm against the applicant. The charges arose out of an incident at the Alexander Maconochie Centre (the AMC) on 15 January 2017, when the applicant assaulted his cell-mate, Marshall Steen, and then assaulted Corrections Officers. The applicant was initially charged with recklessly inflicting grievous bodily harm on one of the Corrections Officers, however the jury returned a verdict of not guilty on that charge, but guilty of a statutory alternative charge of unlawfully causing grievous bodily harm. On 22 October 2018 the applicant was sentenced to terms of imprisonment.

2.          On 13 November 2018, the Crown filed an amended notice of appeal against the sentences imposed on the applicant, the original having been filed on 29 October 2018. On 29 November 2018, the day the Crown sentence appeal (ACTCA 61 of 2018) was first listed for preparation of the appeals index, the representative of the Office of the Director of Public Prosecutions (DPP) was provided, by the applicant’s lawyers, with a sealed copy of a purported notice of cross-appeal on behalf of the applicant, seeking that the convictions be quashed and that acquittals be substituted.

3.          The DPP correctly took the position that the purported notice of cross-appeal was invalid as it sought to challenge the findings of guilt when the Crown appeal related only to sentence. An email to this effect was forwarded to the applicant’s lawyers by the DPP on 29 November 2018.

4.          On 6 March 2019, the applicant filed an application to the registrar for leave to appeal out of time against the convictions (the application). This application was accompanied by a draft notice of appeal, and was supported by an affidavit sworn by Henry Longfield Magnus Marjason, the applicant’s solicitor.

5.          The application to the registrar set out the following grounds for seeking leave to appeal:

(a)  the Crown lodged an appeal against sentence on 29 October 2018;

(b)  the applicant needed to seek a grant of legal aid for the purposes of his appeal;

(c)  the applicant attempted to lodge his appeal in the form of a cross-appeal to the Crown’s appeal;

(d)  the applicant is serving a lengthy period in custody because of convictions which may be unlawful. If the Crown is successful with its appeal on sentence, he risks serving a longer period;

(e)  if the appeal had been brought according to law, the applicant had arguable grounds of appeal;

(f)  the appeal raises important questions of law in relation to the judicial discretion to allow the jury to return a verdict on a statutory alternative charge; and

(g) in accordance with s 22(4) of the Human Rights Act 2004 (ACT) (the HRA), the applicant has the right to have the convictions reviewed according to law.

6.          The proposed grounds of appeal are:

(a)  the trial judge erred in law in allowing the jury to return a verdict of guilty to a charge of causing grievous bodily harm as an alternative to the charge of recklessly inflicting grievous bodily harm when the Crown had specifically chosen not to pursue the alternative verdict;

(b) contrary to common law and s 21 of the HRA, by providing the jury with the option of an alternative verdict after the close of evidence, the accused did not receive a fair hearing;

(c)  the trial judge erred in refusing to allow the jury to consider whether the intoxication of the accused was involuntary, and by so doing:

(i)              denied the accused the possibility of an acquittal on all counts on which he was convicted; and

(ii) contrary to common law and s 21 of the HRA, denied the accused a fair hearing;

(d)  in the circumstances the verdicts were unsafe and unsatisfactory.

7.          The affidavit of Mr Marjason contains a brief chronology of events, but does not directly address the reason for the applicant’s delay in instituting an appeal against the convictions. It provides no information concerning the applicant’s instructions to his lawyers, his pursuit of a grant of legal aid, or any information as to the applicant’s proposed grounds and prospects for success of the proposed appeal.

8.          The registrar refused the application for leave to appeal out of time.

9. On 3 April 2019 the applicant applied to this Court for leave to appeal out of time from the convictions (the present application). Such an application is permitted by r 5510(3)(b) of the Court Procedures Rules 2006 (ACT) (the CPR). The application came before me, sitting as a single judge exercising the jurisdiction of the Court of Appeal, on 16 April 2019. After hearing submissions from counsel, I raised a question concerning the date upon which the applicant had been convicted, and sought written submissions from the parties. I received the Crown’s submissions on 8 May 2019, and those of the applicant on 15 May 2019. I will return to those submissions later.

10.       No further affidavits were filed on behalf of the applicant and the present application went forward on the basis of Mr Marjason’s affidavit of 6 March 2019. Before proceeding any further, it is appropriate to provide some information about the charges of which the applicant was convicted. In sentencing the applicant, the learned trial judge said:

On 24 July 2018, a jury found that the offender was guilty of the following offences: One, make a threat to kill Marshall Steen, being reckless as to whether the complainant would fear that the threat would be carried out and in circumstances in which a reasonable person would fear that the threat would be carried out, contrary to section 28(2)(a) of the Crimes Act. The maximum penalty for this offence is 10 years’ imprisonment.

Two, unlawfully cause grievous bodily harm to Aristotle Trickus contrary to section 24 of the Crimes Act [1900 (ACT)]. The maximum penalty for this offence is five years’ imprisonment.

In January 2015, the offender was a sentenced prisoner at the Alexander [Maconochie] Centre AMC. He shared a cell with Marshall Steen. On 14 or 15 January 2017, the offender used methamphetamine, that is ice, and developed psychotic symptoms: hearing voices, experiencing ideas of reference and the like. The offender knew that methamphetamine could cause similar symptoms, although he was unaware that the symptoms might be as extreme as those which overcame him on 15 January.

On the morning of 15 January 2017, there was an incident between the offender and Marshall Steen which resulted in Marshall Steen activating the cell alarm. Officers responded by attending the cell. Initially they remained outside the cell. They observed that the offender’s behaviour became more agitated. The offender was told to place his hands through the cell hatch to be handcuffed. He did so, but then withdrew them with only one hand cuff attached.

He started punching Marshall Steen and threatened to kill him. He placed the hand cuff chain against Steen’s throat. The officers made a decision to enter the cell and remove the offender, in order to protect Mr Steen’s safety. When the officers entered the cell, the offender resisted. There was a scuffle, the offender swung at the officers, generally, as he attempted to charge through to the cell door exit.

Officer Wiley was struck in the face. Officer Trickus was stuck (sic) in the face and thrown or fell on to a desk at the rear of the cell causing significant injury. Officer Trickus suffered a fracture at the base of skull, fractured nasal bones, facial injuries including nerve damage and spinal injuries including a fracture at the C7 level. Officer Trickus was hospitalized for nine days. He suffers from post-traumatic stress disorder. To date, he has been unable to return to work because of his physical and psychological injuries.

11.       The applicant submitted that I should consider reserving the question of an extension of time to the Full Court to be heard as part of the proposed appeal. He submitted that such a course would be appropriate as the present application raises questions about the operation of the HRA on the “Appellate scheme” in the ACT, raises questions on the operation and scope of provisions of the CPR, and raises the question of whether the decision of the Court of Appeal constituted by a single judge in The Queen v Meyboom [2012] ACTCA 2; 256 FLR 450 (Meyboom) was correctly decided. In my opinion, this suggested course is inappropriate for the reasons that follow.

12.       The issues raised by the applicant in the present application may be summarised as follows:

(a)         whether the setting of “time limits” by provisions of the CPR on the right to appeal found in the Supreme Court Act 1933 (ACT) (the SCA) is a matter of procedure as Refshauge J found in Meyboom;

(b)         if not, whether those provisions of the CPR are valid;

(c)         whether an order was made by the trial judge from which the applicant has a right of appeal;

(d)         whether a conviction was recorded for the purposes of the CPR; and

(e)         what effect, if any, do the provisions of the HRA have on these issues?

Issues (a) and (b) – the setting of “time limits” and the validity of the CPR provisions

13. The entitlement to appeal to this Court from the Supreme Court is found in s 37E(2) of the SCA, which relevantly provides:

(2)        The following matters may be brought before, and heard by, the Court of Appeal:

(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself).

14. Section 7(1) of the Court Procedures Act 2004 (ACT) (the CPA) gives the rule-making committee power to make rules in relation to the practice and procedure of ACT courts, and anything else mentioned in Sch 1. Item 30 in Sch 1 to the CPA permits the rule-making committee to make rules in relation to practice and procedure in the criminal jurisdiction of the Supreme Court, including any appellate jurisdiction.

15.       Division 5.4.7 of the CPR contains the provisions relevant to procedures to be adopted in an appeal to the Court of Appeal on convictions and sentence. Rule 5500 provides:

5500 Definitions—div 5.4.7

In this division:

appeal means an appeal against a conviction recorded, or sentence imposed, by the court.

Note       Conviction and sentence are defined in r 5000 (Definitions—ch 5).

convicted person means—

(a) for a conviction—the person against whom the conviction was recorded; or

(b) for a sentence—the person on whom the sentence was imposed.

out of time, for a conviction or sentence, means more than 28 days after the day the conviction was recorded or sentence was imposed.

16. Subdivision 5.4.7.2 of the CPR sets out the provisions governing leave to appeal out of time by a convicted person; in other words, the subdiv sets out the procedures to be followed with regard to appeals against conviction instituted more than 28 days after the conviction was recorded. Such an application must be made to the registrar in the first instance (r 5506(1)), but if the application is refused by the registrar, the convicted person may apply to the Court of Appeal to have the application decided by the Court of Appeal (r 5510(3)(a)). Such an application may be heard by the Court of Appeal constituted by a single judge: SCA, s 37J(1)(a) or (b). The procedure to be adopted in appeals to the Court of Appeal against conviction, made within 28 days of the recording of the conviction, are found in Div 5.4.4 of the CPR, and provide that an appeal may be started by filing a notice of appeal in the court: r 5402.

17. The kernel of the applicant’s submission is that the provisions of the CPR, requiring him to apply for leave to appeal out of time, are inconsistent with the provisions of s 37E of the SCA and of no effect. The submission is that the provisions of the SCA do not impose time limits upon the exercise of the right of appeal granted by s 37E, and the unfettered right of appeal found in that section cannot be fettered by the provisions of the CPR. The applicant would seek to challenge the decision of Refshauge J in Meyboom in which his Honour, after referring to the decision in Irving v Askew (1870) 5 QB 208 at 211-12, stated that the setting of time limits is a matter of practice and procedure and not inconsistent with a right of appeal, although his Honour acknowledged that the matter is not completely free from doubt. It does not appear that this issue was argued before Refshauge J, and I do not understand his comments to be other than dicta. If there were, in truth, real doubt about whether the provisions of the CPR are inconsistent with the provisions of the SCA, this would be a good reason for referring the matter to the Full Court. In my opinion, there is no such doubt.

18. It is true that the statutory entitlement to bring an appeal against an order of the Supreme Court found in s 37E is not the subject of any time limit or restriction set out in the SCA. The SCA itself does not set out procedures for exercising the entitlement to appeal. These procedures are found within the CPR. The structure of the CPR governing appeals to the Court of Appeal is important. The CPR does not provide that an appeal must be lodged within any specified time of the recording of a conviction; rather, it provides different procedures for appeals commenced within 28 days of the conviction being recorded and those commenced outside that 28 day period. Where an appeal is commenced more than 28 days after the relevant conviction was recorded, it is, for the purposes of the CPR, “out of time”. Such an appeal is subject to the procedures set out in subdiv 5.4.7.2, including the necessity to seek leave to appeal out of time. The provisions of the CPR governing the commencement of appeals to the Court of Appeal do not have the effect of extinguishing the entitlement to appeal given by s 37E of the SCA if that entitlement is not exercised within 28 days of the recording of a conviction. The provisions of the CPR with regard to appeals out of time have the effect that in order to obtain a remedy by way of an order of the Court of Appeal, the appellant must follow a different procedural pathway. This differentiation is intended to balance the interests of the appellant, those of other parties to the appeal and of the public generally.

19.       As the provisions of the CPR do not remove the entitlement to appeal where an appeal against conviction is lodged more than 28 days after the conviction is recorded, but only prescribe the procedures to be followed in such cases, the issue which the applicant would seek to pursue in the Full Court does not arise.

Issue (c) – was an order made by the trial judge from which an appeal may lie?

20. As noted at [13] above, the relevant right of appeal found in s 37E(2) of the SCA is an entitlement to appeal in relation to an order of the Supreme Court. The word “order” is defined in the Dictionary to the SCA, as including a judgment, decree, direction or decision. In turn, and with a degree of circularity, the word “judgment” is defined as including an order or sentence. The question raised by the applicant, is whether there was any order made by the trial judge from which an entitlement to appeal lies. In that regard, it is common ground that after the jury returned verdicts of guilty, the trial judge did not, in so many words, say that she convicted the applicant, and nor did she, in so many words, say that she convicted the applicant at the time that she imposed sentence.

21.       In Meyboom, Refshauge J said at [9] that there was no suggestion that a conviction does not fall within the definition of an order for the purposes of s 37E(2) of the SCA. It is well understood, in this area of legal discourse, that the word “conviction” may carry different meanings depending upon the context in which it is found. In Maxwell v The Queen (1995) 184 CLR 501, Dawson and McHugh JJ said, at 507:

The question of what amounts to a conviction admits of no single, comprehensive, answer. Indeed, the answer to the question rather depends upon the context in which it is being asked. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence following upon the verdict or plea.

(References omitted)

22.       In Meyboom, Refshauge J, said that “[t]he conviction itself, however, much less the verdict of the jury, does not trigger any right of appeal”. This is consistent with authority. In Hinton v The Queen [2000] FCA 1019; 115 A Crim R 74 (Hinton), the appellant Hinton was found guilty of certain offences by a jury in the Supreme Court of the Australian Capital Territory. The trial judge discharged the jury and adjourned the matter to a later date for sentence. At the time of adjourning the matter, the trial judge stated that he would not, at that time, “enter any judgment” with regard to the charges. Before the date allocated for the sentence preceding, the appellant filed a notice of appeal appealing from “the whole of the judgment” of the trial judge. The Crown moved to have the appeal dismissed as incompetent. The Full Federal Court (Miles, Madgwick and Weinberg JJ) said that the trial judge plainly intended to convey that he had not at that stage recorded a conviction on any of the counts on which Hinton had been found guilty. The court went on to say, citing Duff v The Queen (1979) 29 FLR 315 (Duff), that a jury verdict is the act of the jury, not the court, and that a jury verdict is not a “judgment” from which an appeal may be brought under the Federal Court of Australia Act 1976 (Cth). The Full Court in Hinton stated that the decision in Duff was supported by the earlier High Court decision of Musgrove v McDonald (1905) 3 CLR 132.

23.       In Griffiths v The Queen (1977) 137 CLR 293 at 301, Barwick CJ described the “traditional position” as that in a trial by jury, the return by the jury of a verdict of guilty both establishes guilt and amounts itself to a conviction. However, even in that case, the conviction will have no effect in law until judgment is given by the court: Cobiac v Liddy (1969) 119 CLR 257 at 273 per Windeyer J. Similarly, with regard to the effect of a guilty plea, in Perejmibida v Skelcher [2002] WASCA 2; 127 A Crim R 549, Robert-Smith J said, at [26]-[27]:

A plea of guilty and a conviction in consequence of that plea are two separate steps in criminal procedure. A clear and unambiguous plea of guilty is an admission of all the facts essential to prove the charge: O’Neill [1979] 2 NSWLR 182; (1979) 1 A Crim R 59; Sagiv (1986) 22 A Crim R 73 at 81. Such a plea however, admits no more than the essential ingredients of the offence: Di Camillo v Wilcox [1964] WAR 44; Slater v Marshall [1965] WAR 222.

A plea of guilty does not by itself amount to a conviction. It is no more than a formal admission by the defendant. It is an admission which neither the Crown nor the court is obliged to accept. Conviction is the act of the court, not that of the defendant: Collins [1996] 1 Qd R 631; (1994) 76 A Crim R 204. There is no conviction until there is an acceptance of the plea amounting to a determination of guilt by the court: Maxwell (1996) 184 CLR 501; 87 A Crim R 180. The judge or magistrate must take some further step, either by formal announcement of a conviction or indirectly, by words or conduct, such as proceeding to deal with the issue of sentence: Griffiths (1977) 137 CLR 293; Cole [1965] 2 QB 388; (1965) 49 Cr App R 199. It is not correct to say that a defendant has not been convicted until sentenced – a conviction is a finding of guilt by a court and if not announced expressly, such a finding will ordinarily be implicit in the court embarking upon the sentencing process: Robertson and Golder [1987] QB 920; (1987) 85 Cr App R 304.

24.       An order of the court, in the sense of a judgment by way of conviction, did not occur in the present case, when the jury returned verdicts of guilty. Judgments by way of conviction occur when the trial judge does something which unequivocally demonstrated acceptance of the verdicts. In the present case, that was no later than the date sentence was imposed, being 22 October 2018. This conclusion is based upon well settled law and no purpose would be served in reserving the question for consideration by the Full Court.

Issue (d) – was a conviction recorded for the purposes of the CPR?

25. The definition of “conviction” found in r 5000 of the CPR indicates that, for the purposes of the application of the provisions of Ch 5 of the CPR, a simple jury verdict of guilty to an offence is not sufficient to constitute a conviction. The conviction must be recorded. The applicant submitted that convictions in the present matter had never been recorded because the trial judge had never, in so many words, said that she convicted the applicant of the offences. For the reasons that I have set out above, I am satisfied that convictions were imposed by the trial judge. Even if something further was required by way of entry of the conviction into the records of the court, this was satisfied when the judgment of the court by way of sentence was entered on to the court record. On the evidence, this occurred no later than 22 October 2018.

26.       I am therefore satisfied that no purpose would be achieved in reserving this issue for consideration by the Full Court.

Issue (e) – the effect of the HRA

27. The relevant provision of the HRA referred to by the applicant is s 22(4), which provides that anyone convicted of a criminal offence has a right to have the conviction and sentence reviewed by a higher court in accordance with law. At common law, there is no right of appeal from a conviction or sentence. Appeals are entirely creatures of statute, which means that the reference to “in accordance with law” in s 22(4) must mean in accordance with the statute or statutes granting the entitlement to appeal. This directs attention to the proper interpretation of s 37E of the SCA and those provisions of the CPR governing appeals to the Court of Appeal. It is entirely consistent with concepts of proportionality, and the need to balance competing rights, frequently referred to in the domain of human rights law, that the entitlement to appeal granted by s 37E(2) should be subject to different procedural requirements depending upon how long after the making of the order appealed from, the appellant seeks to appeal. In other words, the adoption of different procedures by the legislature for exercising the entitlement to appeal granted by s 37E(2) depending upon when the appellant seeks to exercise the right, is consistent with the provisions of s 22(4) of the HRA.

28.       No real purpose would be achieved in reserving this matter for consideration by the Full Court.

The application for leave to appeal out of time

29.       The principals relevant to the present application are not in dispute. In Parker v The Queen [2002] FCAFC 133 (Parker), the Full Court of the Federal Court of Australia (Spender, O’Loughlin and Dowsett JJ), at that time sitting as the Court of Appeal from the Supreme Court of the Australian Capital Territory, citing with approval the decision of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, referred to the following matters as relevant to an application for leave to extend time within which to file a notice of appeal:

1.         applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.         action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.         any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.         however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.         the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

30.       These principles were applied by Refshauge J in Meyboom at [51].

31.       The Full Court in Parker went on to say that the authorities suggest that an attitude of leniency is appropriate to an applicant if it appears that there is merit in the applicant’s appeal.

32.       In the present case, the applicant’s entitlement to appeal from the convictions in question arose no later than 22 October 2018. I am therefore satisfied that the applicant’s entitlement to appeal was exercised more than 28 days after the making of the orders of the court from which he wishes to appeal. As such, his application is out of time for the purposes of the CPR, and is subject to the procedures prescribed for such applications. The attempt by the applicant to file a notice of cross-appeal is an indication that, at least by 29 November 2018, he had instructed his lawyers that he wanted to appeal the convictions. Accepting that the decision to proceed by way of a notice of cross-appeal was an error on the part of the applicant’s solicitor, there is no explanation proffered for the delay in providing the notice of cross-appeal to the Crown, and nor is there any explanation provided for the subsequent delay in commencing the application for leave to appeal out of time. The Crown has, quite properly, conceded that it cannot demonstrate any prejudice to it by reason of the applicant’s delay, but this, of course, is not determinative of the present application. If there is any potential merit to the appeal, as proposed by the applicant, based upon the grounds of appeal set out in the draft notice of appeal, I would nevertheless be willing to overlook the applicants delay and the absence of any reasons for that delay.

33.       I will therefore consider the proposed grounds of appeal.

Proposed ground (c) – intoxication

34.       The applicant submitted that the trial judge had fallen into error in refusing to leave the question of involuntary intoxication to the jury. The applicant submitted that the evidence at trial was only sufficient to establish that at the time of the offences, he was intoxicated “by an unknown substance”. He further submitted that the evidence established:

(a)         that he shared a cell with the complainant (Marshall Steen), an illicit drug user;

(b)         there was an illicit substance found in the cell which he shared with Mr Steen;

(c)         it was not known who owned that substance; and

(d)         the applicant blamed Mr Steen for the circumstances he found himself in.

35. During the trial, the applicant’s counsel sought a direction from the trial judge on the issue of involuntary intoxication. The issue arose in the context of a discussion about self-defence. In the absence of more information, I infer that the issue of self-defence was raised by the evidence at trial. In the course of that discussion, the Crown prosecutor referred to s 33(3) of the Criminal Code 2002 (ACT) (the Criminal Code), which provides that if any part of a defence is based on a reasonable belief, in deciding whether the reasonable belief exists, regard must be had to the standard of a reasonable person who is not intoxicated. In response to that submission by the Crown, the applicant’s counsel referred to s 34 of the Criminal Code which provides that a person is not criminally responsible for an offence if the person’s conduct making up the offence was as a result of intoxication that was not self-induced. In support of his submission that the issue of involuntary intoxication should be left to the jury, the applicant’s counsel identified the following circumstances as, he submitted, raising the issues:

(a)         the evidence established that the AMC was subject to high security, such that it was unlikely that any drug “came in the front door with a visitor”;

(b)         the applicant presented as a person who was always polite and normal in the AMC, and was without a history that showed he was regularly affected by drugs;

(c)         the applicant was sharing a cell with Mr Steen, a known drug user;

(d)         there was evidence that Mr Steen was also intoxicated; and

(e)         when Corrections Officers came to the cell after the offences, the applicant said to Mr Steen words to the effect of “this is all your fault”.

36.       On the basis of these circumstances, the applicant submitted to the trial judge that it was open to the jury to find that Mr Steen may have drugged the applicant without the applicant’s knowledge. After noting that this suggestion had not been put to Mr Steen in cross-examination, the trial judge dismissed the suggestion that the evidence permitted a finding that the accused’s intoxication was not self-induced as entirely speculative. The trial judge indicated that she would direct the jury that there was no evidence that the applicant’s intoxication was not self-induced. I presume she did so.

37.       In the course of the present proceedings, the applicant referred to the decisions in Doney v The Queen (1980) 171 CLR 207 (Doney), The Queen v Collins [2004] ACTSC 48 (Collins) and Director of Public Prosecutions Reference No 1 of 2017 [2019] HCA 9 (DPP Reference No 1 of 2017). The evident purpose of referring to those decisions was in support of the proposition that “intoxication is a question of fact for the jury”.

38.       The relevant issue which arose in Doney was whether a trial judge had power to direct the jury to enter a verdict of not guilty on the ground that, although there was evidence sufficient to sustain a conviction, a verdict of guilty would be unsafe and unsatisfactory. It was in that context that the judges of the High Court, in a joint judgment, after observing that it is for the jury to determine whether evidence is truthful, said at 214:

It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty.

39.       Collins was a judge-alone trial where the accused was charged with murdering his mother. There were no eye-witnesses and the case against him was circumstantial. The deceased was found dead in the driveway to the house she occupied with the accused. The accused was found near the body, heavily intoxicated. The deceased had been stabbed once with a knife belonging to the accused. In the absence of direct evidence that it was the accused who stabbed the deceased, the issue was whether the circumstantial evidence permitted the reasonable possibility that it was someone other than the accused. The onus of proving that it was the accused who stabbed the victim in Collins fell on the prosecution, to the standard of beyond reasonable doubt. No onus, either legal or evidentiary, fell on the accused in Collins to demonstrate that the evidence established the possibility that a third party had stabbed the victim. Proof by the prosecution that the accused did the act which caused the victim’s death was an essential element in the crime of murder.

40.       The applicant’s reliance on DPP Reference No 1 of 2017 is misconceived. That case addressed the propriety of a trial judge giving a Prasad direction (R v Prasad (1979) 23 SASR 161), informing a jury that it could return a verdict of not guilty at any time after the close of the Crown case. In the course of ruling that it was a practice that should not continue, the High Court considered the test for determination of a no case submission as expressed in Doney, which is to the effect that where there is evidence that is capable of supporting a verdict of guilty, no matter how tenuous or inherently weak, the matter must be left to the jury. The decision in DPP Reference No 1 of 2017 adds nothing to the well-established jurisprudence concerning whether a trial judge should leave an issue to the jury.

41. Section 34 of the Criminal Code, upon which the applicant’s submission to the trial judge was based, falls within Pt 2.3 of that enactment. It is provided in s 58(2) of the Criminal Code that a person who wishes to deny criminal responsibility by relying on a provision of Pt 2.3 has an evidential burden in relation to the matter. It is therefore clear that an evidentiary onus fell on the applicant at his trial to identify evidence raising the operation of s 34; in other words, he held an evidentiary onus to identify evidence that was capable of establishing that his intoxication was not self-induced.

42.       It is the obligation of the trial judge to determine whether the evidence fairly supports a matter of defence on which an evidentiary onus falls on an accused. No doubt, where a trial judge is in any doubt on the question, the issue should be left to the jury: Viro v The Queen (1978) 141 CLR 88 at 118 per Gibbs J. In the present case I have no doubt, with respect, that the trial judge was correct to decline to leave the matter of involuntary intoxication to the jury. The issue was simply not raised by the evidence. The fact that the AMC is a secure facility and that it would be difficult for visitors to bring an intoxicating substance into that facility is irrelevant when considering how the accused came to be intoxicated. The fact is that he was. The fact that the other occupant of the cell was a drug user can tell us nothing about how the accused came to be intoxicated. The fact that the accused had a history within the AMC as being polite, and had no history of being drug affected also cannot tell us anything about how he came to be intoxicated. The fact that “an unknown substance” was found in the cell, if that be the case, and that there was no evidence as to who owned the substance, cannot rationally lead to an inference that the accused’s intoxication was involuntary. The evidence that the accused said to Mr Steen “this is all your fault” is extremely vague and could not found an inference that the accused’s intoxication was involuntary. The suggestion that the accused’s intoxication was not self-induced was pure speculation, and not based on the evidence or any legitimate inference that could be drawn from the evidence. It would be futile to extend time for the applicant to appeal against his convictions on this basis.

43. I observe that in her sentencing remarks, set out at [10] above, the trial judge made findings of fact, as she was required to do when sentencing after a jury verdict. Amongst the findings her Honour made were findings that the applicant used methamphetamine on either 14 or 15 January 2017, which is contrary to the assertions upon which the applicant’s submissions concerning involuntary intoxication are based. The proposed grounds of appeal involve no challenge to that finding of fact. In an otherwise appropriate case, this may have been cured by amending any notice of appeal to challenge that finding.

Proposed grounds (a) and (b) – verdict of guilty to statutory alternative charge

44.       The second matter that the applicant proposes arguing before the Court of Appeal concerns the return of a verdict of guilty by the jury to a statutory alternative charge of causing grievous bodily harm after returning a verdict of not guilty to the charge of recklessly inflicting grievous bodily harm (Count 3).

45.       The particulars of the applicant’s complaint, as distilled from the draft notice of appeal, are that the Crown was permitted to seek an alternative verdict to Count 3 after it had chosen not to do so, and that this change in the way in which the Crown presented its case came after the close of the taking of evidence, resulting in the accused not receiving a fair trial.

46. I am satisfied that the applicant has no prospect of success on this ground. The transcript of the Crown’s opening address reveals that the Crown opened upon the availability of the alternative charge under s 25 of the Crimes Act 1900 (ACT) (the Crimes Act), and there is no evidence that objection was taken to that opening by the applicant. The parties returned to the issue before the trial judge gave her directions to the jury at the end of the trial. At that time, the Crown asked the trial judge to direct the jury that there were two statutory alternative charges to the charge of recklessly inflicting grievous bodily harm (contrary to s 20 of the Crimes Act), being the charge of unlawfully causing grievous bodily harm contrary to s 25 of the Crimes Act, and the charge of intentionally or recklessly inflicting actual bodily harm contrary to s 23(1) of the Crimes Act. Counsel for the applicant in the trial told the trial judge that he opposed “the second alternative”. The trial judge, after noting that the Crown had not opened its case to the jury on the basis of the availability of the second alternative charge, asked counsel for the applicant how he would be forensically disadvantaged if that charge were to be left to the jury as an alternative to Count 3. The parts of the transcript annexed to the affidavits relied upon by the parties in this application do not reveal the result of that discussion, nor whether the trial judge directed the jury that a charge under s 23(1) of the Crimes Act was available as an alternative to Count 3. This omission is unimportant, because the jury returned a verdict of not guilty to Count 3, but guilty of the first alternative charge under s 25 of the Crimes Act. This was the alternative charge opened to the jury by the Crown, and which was not the subject of any objection by the applicant’s counsel. There is no evidence of the Crown having abandoned reliance on the alternative charge under s 25 of the Crimes Act, as is alleged in the draft grounds of appeal. To the contrary, the evidence demonstrates a consistent reliance on that alternative charge by the Crown.

47.       During the hearing of the present application, the applicant made it clear that he did not rely upon proposed ground of appeal (d) as a separate ground.

Conclusion

48.       The applicant has no real prospect of success on any of the proposed grounds of appeal. Leave to appeal out of time should be refused.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Associate:

Date: 5 July 2019