R v Ayles
[2007] SASC 82
•8 March 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v AYLES
[2007] SASC 82
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice David)
8 March 2007
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE OR IN WHICH MISCARRIAGE NOT SUBSTANTIAL - OTHER IRREGULARITIES
Appeal against conviction - the appellant contends that the Judge erred in law by ordering an amendment to a count of the charge at the time she delivered the verdict and published her reasons - question of whether the Judge had the power to make the order - question of whether there had been a miscarriage of justice having regard to the manner in which the Judge exercised the power to make the order - consideration of the ambit of s 281 of the Criminal Law Consolidation Act 1935 (SA).
Held: appeal dismissed.
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN GRANTED - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal against sentence - the appellant contends that the sentence was manifestly excessive in that the Judge did not properly consider the appellant's good conduct in the 30 year period since the time of the offence - consideration of seriousness of the offence - consideration of community attitudes towards the offending.
Held: appeal dismisssed.
Criminal Law Consolidation Act 1935 (SA) s 49(1), s 49(3), s 69(1)(b)(iii), s 69(1)(c), s 69(2), s 70(1)(c), s 70(2), s 281, s 281(2), s 281(3); Director of Public Prosecutions Act 1991 (SA); Indictments Act 1915 (UK) s 15; Juries Act 1927 (SA) s 33, referred to.
R v Martin [1962] 1 QB 221; Maher v The Queen (1987) 163 CLR 221; Johal and Ram (1972) 56 Cr App R 348; Radley (1973) 58 Cr App R 394; R v Fyffe [1992] Crim LR 442; R v Street [1960] VR 669; R v Clarkson [1987] VR 962; Go v The Queen (1990) 102 FLR 299; R v Joyce (2002) 173 FLR 322; R v B [1999] SASC 403; R v West [1948] 1 KB 709; Ismail (1991) 92 Cr App R 92; Ryan v The Queen (2001) 206 CLR 267, considered.
R v AYLES
[2007] SASC 82Court of Criminal Appeal: Doyle CJ, Gray and David JJ
DOYLE CJ. Mr Ayles was tried before a District Court Judge, sitting without a jury, on an Information alleging offences of indecent assault of a male person and buggery. The offences were allegedly committed between 1971 and 1975. The complainant in each case was T, a boy aged between 12 years (in May 1971) and 16 years (in May 1975).
Mr Ayles pleaded guilty to count 7 and count 8, which were charges of indecent assault. He pleaded not guilty to counts 1 to 6 inclusive. The Judge found him guilty on count 1, and not guilty on counts 2 to 6 inclusive. Count 1 was a charge of indecent assault on a male person.
For the three offences of indecent assault the Judge sentenced Mr Ayles to imprisonment for four years, and fixed a non-parole period of two years.
Mr Ayles now appeals against the conviction on count 1. He sought leave to appeal against the sentence. A single judge refused leave to appeal. Mr Ayles has requested that his application for leave to appeal be considered by the Full Court. The application for leave to appeal against sentence was heard with the appeal against conviction.
The appeal against conviction raises the question of whether the Judge erred in law in ordering the amendment of count 1 when she delivered her verdict and published her reasons for the verdict. The issue is whether the Judge had power to make the order. The appeal raises the further question of whether, if the Judge had the power, there has been a miscarriage of justice having regard to the manner in which she exercised the power. Mr Ayles complains that the Judge made the order without any application for the order being made by the prosecutor, and that it was made without him being heard on the matter.
The application for leave to appeal against sentence raises the question of whether the sentence is manifestly excessive. In particular, did the Judge make adequate allowance for the good life that Mr Ayles had led for some 30 years after his relationship with T ended, and for the impact on Mr Ayles of the fact that these matters came to trial so long after the event? Mr Ayles also complains about the use made by the Judge of the victim impact statement.
The Information and the trial
At the time of the offences Mr Ayles was a priest of the Anglican Church of Australia. Mr Ayles was 26 years old in 1971. From about 1971, when he was 12 years old, T attended the Church in Mr Ayles’ parish. T was involved in a number of Church activities. T became friendly with Mr Ayles, and discussed various personal problems with him. Over time T came to discuss sexual matters with Mr Ayles. At trial T described how the relationship developed. He described the first sexual contact between himself and Mr Ayles, which involved Mr Ayles rubbing T in the area of his groin, removing his clothing and masturbating him. This incident was the subject of count 1.
T described how over time this led to regular mutual masturbation, other acts of indecency and, he said, anal sexual intercourse.
Mr Ayles left the parish in January 1975, and moved to a parish in Queensland. For a time he wrote regularly to T. In about March 1975 T’s mother saw one of the letters, and learned of the sexual relationship. T’s parents raised the matter with Church officials, but no complaint was made at the time to the police.
It was only many years later that the police became involved.
Mr Ayles gave evidence. He was 61 years of age at trial. In his evidence he admitted to engaging in a relationship with T which included touching of a sexual nature and mutual masturbation. He did not dispute that, from the time of the first incident, sexual activity involving him and T occurred frequently. He denied any anal intercourse.
Mr Ayles agreed that the first sexual contact between him and T occurred on the occasion described by T, and as described by T. But he disputed when it occurred. That dispute is the origin of the appeal against conviction.
Count 1 was a charge of indecent assault contrary to s 70(1)(c) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The particulars alleged that Mr Ayles indecently assaulted T between 24 October 1971 and 2 May 1972, T’s 13th birthday. In evidence, I gather, T said that he was 13 years old or 14 years old when this first incident occurred. There was some uncertainty in his evidence about the date, which is not surprising.
On the second day of the trial the prosecutor applied to substitute 1 May 1973 for 2 May 1972, thus extending the period within which the indecent assault was alleged to have occurred to the day before T’s 14th birthday. The amendment was not opposed. The Judge made an order for amendment of the Information, and a note of the order was endorsed on the Information.
When Mr Ayles gave evidence, he admitted the incident but said that it occurred in mid to late October 1973, outside the period alleged in the amended particulars. In her reasons the Judge accepted this evidence. Mr Ayles was able to relate the incident to other events and records, making his evidence as to the time of count 1 more reliable than T’s evidence.
In her published reasons the Judge ordered that count 1 be amended as follows:
Indecent Assault. (Section 69(1) (b) (iii) of the Criminal Law Consolidation Act1935)
Particulars of Offence
Raymond Frederick Ayles between the 24th day of October 1971 and the 31st day of October 1973 at Para Hills, indecently assaulted T.
It should be noted that the effect of the amendment was to refer to a different section of the CLCA and to extend the period within which the offence was alleged to have occurred to 31 October 1973.
For reasons not explained, the Information has been amended to substitute “31st day of October 1973”, but the reference to s 70(1)(c) of the CLCA has not been changed to s 69(1)(b)(iii).
The submissions of appeal
Mr Tokley, who argued the appeal against conviction, argues that the Judge had no power to make the amendment.
Mr Tokley submits that the Judge made the amendment without any application being made by the prosecutor. He submits that by virtue of the Director of Public Prosecutions Act 1991 (SA) the Director is responsible for the conduct of the prosecution, and that by her decision (to order the amendment without an application being made) the Judge has entered into an area that is the Director’s responsibility, namely, deciding the charge to be prosecuted. He submits further that the effect of the purported amendment is to substitute a new charge, because the charge and conviction are based on a section of the CLCA not previously pleaded. He submits that an Information cannot be amended to substitute a new charge.
Mr Tokley further submits that if the power to amend exists, it was exercised unfairly giving rise to a miscarriage of justice. He submits that counsel at trial for Mr Ayles was deprived of the opportunity to put submissions on the exercise of the power. He further submits that Mr Ayles should have been re‑arraigned, if the amendment was to be made, and that Mr Ayles could then have pleaded guilty to a lesser offence under s 69(1)(c) of the CLCA, an offence of committing an act of gross indecency. Mr Ayles has been unfairly prejudiced because he lost the opportunity to do so.
I will deal separately with each of these submissions.
Power to amend – general remarks
The Judge acted under s 281 of the CLCA, which provides as follows:
281 Objections to informations, amendments and postponement of trial
(1)Every objection to any information for any formal defect apparent on the face thereof shall be taken by demurrer, or motion to quash the information, before the jury is empanelled and not afterwards.
(2)When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.
(3)When an information is so amended, a note of the order for amendment shall be endorsed on the information and the information shall be treated, for the purposes of the trial and all proceedings in connection therewith, as having been presented in the amended form.
(4)When before trial, or at any stage of a trial, the court is of the opinion that the postponement of the trial of a person accused is expedient as a consequence of the exercise of any power of the court under this Act to amend an information or to order a separate trial of a count, the court shall make such order as to the postponement of the trial as appears necessary.
(5)When an order of the court is made for a separate trial or for the postponement of a trial -
(a) if the order is made during a trial, the court may order that the jury be discharged from giving a verdict on the count or counts the trial of which is postponed or on the whole information, as the case may be; and
(b) the procedure on the separate trial of a count shall be the same in all respects as if the count had been presented as a separate information and the procedure on the postponed trial shall be the same in all respects (if the jury has been discharged) as if the trial had not commenced; and
(c) the court may make such order as to admitting the accused person to bail and as to the enlargement of recognisances and otherwise as the court thinks fit.
(6) Any power of the court under this section shall be in addition to and not in derogation of any other power of the court for the same or similar purposes.
The following points can be made about this provision.
The provision is modelled on, and similar to, s 15 of the Indictments Act 1915 (UK).
As the Court of Criminal Appeal said in R v Martin [1962] 1 QB 221 at 227, the legislation was passed for the purpose of doing away with “technicalities and redundancies of pleading”. It is clear that Parliament’s intention was that the powers of amendment should be extended. The Court went on (at 228) to doubt whether, after arraignment:
… a new count can be added at all as the defendant will not have pleaded to it nor, if the trial has started, have been put in charge of the jury on it; and if it were made, injustice … would almost certainly be caused.
As will appear, later English cases have not accepted that the addition of a new count is beyond the power.
There are two points worth noting about the South Australian provision. The power conferred by subs (2) may be wider than the English equivalent, which applies only to an indictment that is defective. Second, and this is relevant to the power to add a new count, the English equivalent of subs (3) provides only that once a note of the order for amendment has been endorsed on the indictment, it is to be treated for all purposes “as having been signed by the proper officer in the amended form”. The South Australian provision provides that the information as amended is to be treated “as having been presented in the amended form”. On its face that means that the trial is to proceed as if the Information was in the amended form from the outset, when it was first presented: see s 275(1) of the CLCA. However, I recognise that the power to amend operates within the context of well-established rules of criminal procedure, and assumes their existence.
The other point to be made is that the equivalent provisions in other States are not always in the same terms as is the South Australian provision. For example, the Queensland equivalent that was considered in Maher v The Queen (1987) 163 CLR 221 permits an order for amendment only if the “variance, omission, or insertion, is not material to the merits of the case …”. That is a restriction that does not appear in the South Australian provision: see Maher at 230 and at 232-233.
The power to amend arises if an Information is “defective” or if there is a variation between a particular and the evidence. The Court must satisfy itself that one of these conditions is satisfied, before the power arises.
The power to amend is clearly intended to be a wide one. The Court is able to make such order “as the Court thinks necessary to meet the circumstances of the case”, subject only to that causing injustice, usually in the form of prejudice or unfairness to the accused.
As the submissions in this appeal have identified, there is an issue as to whether the power can be exercised so as to substitute or add a new charge, as distinct from amend an existing charge. For reasons which will appear, it is not necessary to determine how far a court can go, for the purposes of the present appeal. It should also be said that even my formulation of the issue is question begging. It is not easy to draw a clear line between a change (to use a neutral term) to a count on an Information which is merely an amendment, and a change to a count which brings on to the Information a new charge.
As the editor of Archbold, Criminal Pleading Evidence and Practice (2003 ed, Sweet and Maxwell, 2003) states at para 1-149, the English courts:
… have shown an increasing willingness to allow amendments of substance to be made, and the more recent decisions cannot be reconciled with certain of the earlier ones.”
In Johal and Ram (1972) 56 Cr App R 348 the Court held (at 353), not accepting restrictions stated in earlier cases, that after arraignment an amendment can be made which has the effect of substituting another offence for that originally charged, or the effect of adding a further charge, provided that there is no injustice to the accused. The Court said that there is no rule of law which precludes such an amendment. I do not suggest that it follows that any amendment at all is permissible, provided there is no injustice. But on the approach of the Court in Johal and Ram, it is not fatal to an amendment to establish that it has added a new charge, or substituted a new charge. It appears that this decision continues to be followed in England.
In Radley (1973) 58 Cr App R 394 the indictment contained one count of conspiracy involving three men. After the prosecutor’s opening address the prosecutor obtained leave to add three further counts of conspiracy, based on the same facts, but now splitting the conspiracies up, in one case alleging a conspiracy involving the same three men, and in the other two cases alleging a conspiracy involving two of the three men only. The Court described it (at 404) as “really the splitting up of the omnibus allegation in the original count”. The Court held that this was within power. The Information was defective because it failed to allege an offence disclosed by the depositions, and would have been defective if it alleged an offence not disclosed by the depositions. Second, the Court was of the opinion that a new count could be added after arraignment. The Court went on to say (at 404) that in such a case it was permissible and desirable, if the amendment was “of a substantial character”, for the accused to be re‑arraigned, although it was not necessary for the accused to be put in charge of the jury a second time, or to have a new jury empanelled. The Court said that if the amendment did not introduce “a new element into the trial”, a second arraignment was not required. As it happened, in Radley the accused were re‑arraigned.
With reference to that last point, I repeat my earlier reference to the fact that s 281(3) of the South Australian provision appears to be wider than the English provision.
In R v Fyffe [1992] Crim L R 442, at the close of the prosecution case 11 counts were subdivided into 27 counts (in response to an argument as to duplicity) and the trial then proceeded. On appeal the Court held that the indictment had not been bad for duplicity. The Court went on to say, according to the note, that the substituted 27 counts “added no new allegations and charged no new offences”, and so were matters of form rather than substance. The amendment had been within power, and the fact that the accused were not re‑arraigned did not matter.
Australian decisions dealing with similar provisions appear to be to much the same effect. In R v Street [1960] VR 669 an indictment was amended at the close of the prosecution case. This was held to be within power (at 671), the Court apparently treating the amendment as not altering the substance of the charge, and being satisfied that the accused was not prejudiced. The charge was one of obtaining credit by false pretences, and the amendment related to the amount of credit obtained. That decision was followed in R v Clarkson [1987] VR 962 at 981. One of the amendments allowed there appears to be a matter form rather than of substance, but the other amendment appears to me to have remedied a material defect in the charge, although the Court described it as particularising “with greater clarity essential elements in the charge of theft by deception”.
In Go v The Queen (1990) 102 FLR 299, the Court of Criminal Appeal of the Northern Territory was concerned with a Northern Territory provision which is in much the same terms as s 281(2). There the indictment as originally framed charged the accused with robbery, but omitted an essential element that had to be proved to establish robbery, that is, the use of violence to prevent or overcome resistance (see Asche CJ at 305). On the sixth day of trial, although the defect had been noted earlier, the charge was amended to cure the omission. On appeal the complaint was that the charge as originally framed amounted to a charge of stealing only, and that the amendment brought on to the indictment for the first time a charge of robbery, a more serious offence. The Court considered English and Australian case law, and held that the amendment was within power. The Court referred to, and apparently relied on, the decision in Johal and Ram. Asche CJ said (at 308) that the power was “sufficiently wide to allow an amendment of the sort permitted by the learned trial Judge, provided that it could be made without injustice”. Angel J (at 325) also treated the power to amend as a wide one. He rejected (at 325) a submission that the power could not be used to substitute a more serious offence for a lesser offence. It should be noted that in Go the accused was not re-arraigned, his counsel at trial taking the view that this was not necessary. The Court did not accept that this invalidated the verdict, or gave rise to a miscarriage of justice: see Asche CJ at 304.
In R v Joyce [2002] NTSC 70; (2002) 173 FLR 322 Angel J followed the decision in Go, after reviewing the case law and noting differences between the relevant Northern Territory provision and its Queensland equivalent.
In R v B [1999] SASC 403 the appellant was charged with offences that included an offence of unlawful sexual intercourse contrary to then s 49(1) of the CLCA, that provision referring to a person under the age of 12 years. During the course of the defence case counsel for the prosecution was permitted to amend this count by extending the period within which the offence was alleged to have occurred, and by particularising the offence as one contrary to s 49(3) of the CLCA, which dealt with sexual intercourse with a person above the age of 12 years and under the age of 17 years. Lander J noted at [121] that this amounted to the laying of a fresh charge. The appellant had not been re‑arraigned. No complaint was made about that on appeal. The Court of Criminal Appeal in that case appears to have proceeded on the basis that the amendment was within power, provided that no injustice was caused to the appellant, and the Court found that no injustice was caused.
Consideration of submissions
I do not accept the submission that the Judge erred, or lacked power to order the amendment, because no application was made by the prosecutor. First, the prosecutor made an application. Second, no application was necessary.
The trial Judge was alert to the fact that s 70(1)(c) of the CLCA had been repealed with effect from 9 November 1972. Its provisions were re-enacted as s 69(1)(b)(iii) of the CLCA, with effect from the same day.
The amendment made on the second day of trial, extending the period within which the offence was alleged to have been committed to 1 May 1973, meant that the offence (if proved) might have been committed in the period when s 70(1)(c) was in force, or in the period when s 69(1)(b)(iii) was in force.
That meant that the Information was defective, because as the count stood it alleged only an offence against s 70(1)(c).
When the prosecutor closed her case, the Judge called on her to identify the statutory provision upon which she relied. The prosecutor told the Judge, in effect, that the prosecution relied upon each of the provisions just referred to in the alternative, depending upon the Judge’s findings of fact. The Judge then asked defence counsel if that caused any “difficulty” for the defence. Counsel was given the opportunity to raise any difficulty later that day, but did not do so.
The prosecutor should have applied for an order amending the Information, and should have formulated the amendment in precise terms. She did not do so. If that had been done it would have crystallised the relevant issues, and probably would have averted some of the problems that now arise. However, it is clear enough that she wished to have the Information amended as might be required in light of the Judge’s findings of fact. This was a foreshadowed application for an order amending the Information. But as the amendment was not made, the defect in the Information to which I referred earlier continued to exist.
At the close of the defence case the position was that Mr Ayles had admitted the incident the subject of count 1, but had said it occurred in October 1973, outside the period alleged in count 1 as amended. The prosecutor submitted that the issue was whether the relevant incident occurred (something not denied by Mr Ayles) and that the date on which it occurred was not a material matter. That would ordinarily have been correct. However, in the present case the significance of the legislative change was not referred to. No issue was raised by defence counsel at the time. The trial proceeded.
When the Judge published her reasons, and found Mr Ayles guilty on count 1, she made the order that I have set out above.
I am satisfied having regard to the circumstances that the order was made on the foreshadowed application made by the prosecutor at the close of the prosecution case. The order that the Judge made is, clearly enough, the order that the prosecutor intended to seek if the Judge accepted Mr Ayles’ evidence about the timing of the indecent assault the subject of count 1.
In any event, the Judge did not have to wait for an application from the prosecutor. If a trial Judge considers that an Information is defective, or that there is a variation between a particular in the Information and the evidence, the Judge is entitled to raise that matter with counsel, and indeed has a responsibility to do so. A trial Judge has a responsibility for the regularity of proceedings, and authority to act to ensure that they are regular: see R v West [1948] 1 KB 709 at 717. A Judge who takes the initiative in this way should, of course, give counsel an opportunity to put submissions before exercising the power to amend. But the important point is that the Judge is not obliged to stand by and take no remedial action unless and until counsel makes an application for an amendment.
There is no intrusion on the role of the Director of Public Prosecutions by the Judge taking the initiative in this way, and making an order (if called for) after hearing submissions from counsel. There is no such intrusion because of the Judge’s authority over and responsibility for the correct state of the pleadings. Of course, counsel also have a responsibility in this respect.
There was no unfairness in the manner in which the Judge acted.
It was clear, or should have been clear, to counsel for Mr Ayles, at least from the close of the prosecution case, that the prosecutor proposed to seek an order for the amendment of the Information if the Judge found that the indecent assault occurred after 9 November 1972 (the date of the legislative charge). It seems likely that neither counsel was alive to some of the issues raised on appeal, but the fact remains that the prosecutor’s attitude was clear. Counsel for Mr Ayles at trial had an opportunity at the close of the prosecution case, and again at the close of the defence case, to put submissions on the matter on behalf of Mr Ayles. The fact that counsel for Mr Ayles might not have been alive to all of the issues does not give rise to a miscarriage of justice. Even during the defence final address to the trial Judge no point was made about the foreshadowed amendment, or about the change in the legislation.
It might have been desirable for the Judge to hear submissions before making the order that she made in the course of her reasons, but having regard to what had gone before that does not give rise to a miscarriage of justice.
Mr Tokley submits that if the prosecutor had applied to amend count 1 at the close of the prosecution case, or even at the close of the defence case, and had formulated the amendment as a charge in the alternative under s 69(1)(b)(iii) of the CLCA, Mr Ayles should then have been re-arraigned on that count. I will return later to the issue of re-arraignment. Mr Tokley submits that had Mr Ayles been re-arraigned, he could have pleaded not guilty as charged, but guilty to the lesser offence of committing an act of gross indecency with another male person, contrary to s 69(1)(c) of the CLCA, which also came into force on 9 November 1972. He submits that the loss of this opportunity gives rise to a miscarriage of justice.
I do not agree. I doubt whether a charge of committing an act of gross indecency is a common law alternative to a charge of indecent assault. Proof of an act of gross indecency might require proof of something more than is required for the proof of an indecent assault. But in any event, while the Court cannot speculate about what would have happened if Mr Ayles had been re‑arraigned, the theoretical possibility that Mr Ayles might have pleaded guilty as suggested, and that the prosecutor might have accepted that plea, is not a sufficient basis for the Court to find that there has been a miscarriage of justice.
I come now to the question of whether the Judge had power to order the amendment. Did the amendment ordered add to the Information a new charge, or substitute a new charge, and if it did, is that beyond the power conferred by s 281(2) of the CLCA?
I accept that there are limits on the power conferred by s 281(2). An amendment that has the effect of substituting a new count that is (to put it generally) unrelated to the subject matter of an existing count, may be beyond power, even if that involves no injustice to the accused.
But in the present case the subject matter of count 1 was at all times an alleged indecent assault committed as the first act of sexual contact between T and Mr Ayles, at Mr Ayles’ home, when T was cleaning Mr Ayles’ home to earn pocket money. Throughout the case the incident in question was that incident. Although Mr Ayles’ plea of not guilty to count 1 put all matters in issue, the real issue in the case was when the event the subject of count 1 happened. There was no suggestion that the conduct might have occurred at a time when T was, by law, capable of consenting to the assault. I mention this because by s 70(2) no male person under the age of 17 years could consent to an indecent assault, but by s 69(2) a male person was not capable of consenting to an indecent assault by another male person unless he had attained the age of 21 years. In that respect the scope of the defence of consent varied as between the two provisions, but the availability of that defence was never an issue.
It can also be said that despite the repeal of s 70, and its replacement by s 69, the elements of the offence were unchanged. The offence remained an offence of indecent assault. That was to be given its meaning at common law under each provision.
For present purposes I accept that the amendment ordered by the Judge had the effect of substituting or adding a new count.
It did so because although the offence charged remained one of indecent assault, the count (as amended) rests on a statutory provision other than the statutory provision appearing on the Information and, in light of the Judge’s findings, a conviction for the offence as originally charged could not have been recorded, even if the date of the offence was treated as a mere particular, not of itself calling for an amendment. A conviction for the offence as originally charged could not have been recorded, because on the Judge’s findings of fact, when the indecent assault was committed s 70 of the CLCA was no longer operative.
But I consider that the cases to which I have referred above support a conclusion that the power conferred by s 281(2) extends to a case like this.
As pointed out in Johal and Ram, the statutory provision does not limit the power to amend so as to exclude the addition of a new charge. The line between an amendment that does not add or substitute a new charge, and one that does, will often be difficult to draw. There is no reason why that subtlety should be introduced as an absolute limit on what is a general power to deal with a defect in an Information, or with a variation between a particular and the evidence offered in proof. The new and substituted charge did not involve the determination of any new issue. The substance of the case (I recognise that this expression is imprecise) did not alter. The findings that the prosecutor needed to secure a conviction did not change.
For those reasons I conclude that Her Honour had power to make the order for amendment, even though the result of that was to substitute for the charge appearing on the Information a new charge, being a charge under s 69(1)(b)(iii) of the CLCA. She had that power because the Information as it stood was defective; because the substitution of the new charge was an amendment of the kind permitted by s 281(2), and because, in the circumstances, the making of that amendment gave rise to no injustice to Mr Ayles. His counsel had had the opportunity to be heard on the matter. And, in any event, in the circumstances of the case there is no basis for a submission that any injustice resulted.
I consider that the power conferred by s 281(2) is wider than the power conferred by the Queensland provision considered by the High Court in Maher v The Queen: see at 232-233, and the observations referred to above in Go at 306-308 and in Joyce at 333-334.
I note that in Maher v The Queen, in deciding that the addition of two counts to an Information was not permitted under the Queensland legislation, the Court relied in part on the fact that this occurred after the jury had been empanelled, and had been sworn to try the issues joined on the plea of not guilty by the accused. The High Court took the view that by statute the jury must be sworn to try the issues joined, and the oath that the jurors had taken could not embrace a later added charge. The Juries Act 1927 (SA) contains no provision requiring a jury to be sworn after the jury has been empanelled. By s 33 a juror who attends in obedience to a summons is required to take an oath or affirmation in the form of the sixth schedule to that Act, and that oath or affirmation is an undertaking to try the issues at any trial at which the juror may be required to serve. As a matter of practice the oath or affirmation is taken before the commencement of any trial for the month for which the juror has been summoned.
I note also that in Maher v The Queen (at 232) the Court was of the view that had the power to amend the indictment been enlivened in the circumstances:
It would not have been necessary to empanel a new jury (unless the Court otherwise directed) or to re-swear the original jury to try the issues arising on the indictment.
In that connection the Court referred to a statutory provision to the effect that if an amendment was made the same consequences would ensue “as if the indictment had been originally in its amended form”, a provision similar to s 281(3) of the CLCA.
Is the failure to arraign Mr Ayles on the substituted charge a fundamental defect that vitiates the conviction, or an irregularity that gives rise to a miscarriage of justice? In my opinion, relying on the cases referred to earlier and s 281(3) of the CLCA, it cannot be said that re-arraignment is essential. It may be that if an amendment introduces a new element to the trial, or raises a matter on which issue has not been joined by a plea of not guilty, an arraignment or re‑arraignment is necessary. However, I am satisfied that in the present case the failure to arraign Mr Ayles on the amended count is of no consequence. If Mr Ayles had been arraigned on the charge as amended, and had he pleaded not guilty, there would have been no need to permit him to elect for trial by jury. The trial could have and should have continued before the Judge.
The matters calling for consideration do not end there. Despite the order made by the Judge, count 1 has been amended to refer to the period between 24 October 1971 and 31 October 1973, but has not been amended to substitute a reference to s 69(1)(b)(iii) of the CLCA for the reference to s 70(1)(c) of the CLCA.
A trial judge should ensure that an order for amendment is duly recorded. However, the Judge has ordered that the amendment be made, in exercise of the power conferred by s 281(2). The “note of the order for amendment” required by s 281(3) is an administrative act, and that can still be performed. In Ismail (1991) 92 Cr App R 92 the Court of Appeal held at 95, relying upon a provision similar to s 281(3), that the failure to make a note of the order for amendment did not invalidate the amendment that had been made.
Appeal against conviction – conclusion
For those reasons I would dismiss the appeal against conviction. The Judge had power to make the order that she made, and in the circumstances in which the order was made there is no injustice to Mr Ayles.
This case illustrates the desirability of dealing with an amendment to an Information when the occasion arises, rather than foreshadowing an application and awaiting further events. It also illustrates the desirability of formulating the amendment, and formalising the amendment. If all of that had been done at the close of the prosecution case, presumably by adding an alternative count to the Information, a number of the issues that have arisen would in all likelihood have been identified and dealt with.
Appeal against sentence
The offences for which the Judge sentenced Mr Ayles are very serious. They are viewed seriously by the community. The Courts and the community are now more aware than in the past of how prevalent offending of this kind is. The victim, as in this case, is usually a vulnerable person and often a child. To say this is not to say that the ordinary sentencing principles do not apply. However, courts need to be mindful of the prevalence of particular kinds of offending with which they deal, of the seriousness of the offending, and of community attitudes to the offending.
The offences were committed over a period of about 15 months. Mr Ayles was to be sentenced on the basis that the three offences were not isolated and impulsive acts. They were committed as part of an ongoing course of conduct and an ongoing relationship.
Mr Ayles initiated and continued the sexual relationship with T. Mr Ayles was an older man dealing with a young boy. As a priest he was able to use the complete trust put in him by parents and parishioners.
The Judge accepted that Mr Ayles was emotionally and sexually immature at the time. That does little to mitigate the seriousness of the offences. Mr Ayles must have known that what he was doing was wrong, that he was misusing his position and abusing the trust put in him.
It is true that after Mr Ayles moved to Queensland in 1975 he led a good life, doing much good work for members of the community in which he worked. His substantial contributions to the community were recognised by awards conferred on him. The number of favourable references tendered before the Judge indicate the high regard in which many held him, because of the good that he did. He was, it seems, a good husband and father as well.
In 1992 Mr Ayles was found guilty of attempting to procure two boys to commit an act of gross indecency on his person. He was sentenced to imprisonment for 12 months, but the sentence was suspended.
This led to the breakdown of Mr Ayles’ marriage. But he continued to care for his sons and, it seems, to contribute to the community in various ways.
By the time Mr Ayles appeared in court the offences were some 30 years old. He was 61 years of age.
The Judge noted that in every respect other than his offending conduct, he had led an exemplary life.
His good qualities no doubt explain the support that he still had from his sons and from others whom he had encountered during his life.
According to accepted sentencing principle, he was entitled to some leniency on account of his good character: Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267. That leniency was eroded to some extent by the convictions in 1992, which also resulted from the misuse of his priesthood and his position.
But the seriousness of the offending had to be given considerable weight. Mr Ayles used his position of trust for his own unlawful ends. The victim impact statement provided by T, unsurprisingly, indicates that T has been seriously affected by the offences. His relationship with his parents suffered. He was embarrassed when the relationship was exposed in 1975. His education suffered. He suffered a loss of self esteem. T is still affected by the experience, not withstanding the many years that have passed.
The Judge was entitled to take into account the contents of the victim impact statement. Those contents explain, or put into context, the seriousness of the offences. It is relevant to sentencing that this is offending of a kind which often has lasting effects on the victim. The Judge did not misuse the victim impact statement. She was entitled, in a general way, to take into account the contents of the statement because they indicate that the offences had a significant effect on the victim.
In her reasons for sentence the Judge acknowledges that for many years Mr Ayles had thought that he was not liable to be prosecuted for these offences. In a sense, his life moved on. It was a change in the law, to remove a time limit on prosecutions, that led to him being charged. This also was a material fact, but so was Mr Ayles’ willingness to take the benefit of the failure of the Church authorities to inform the police about the matter in 1975, and to take the benefit of the reluctance of T’s parents to pursue the matter at the time.
Nevertheless, taking all of these matters into account, and bearing in mind that Mr Ayles admitted the offending conduct (despite his plea of not guilty), I accept that an appropriate sentence was a lesser sentence than might ordinarily be expected for the offending in question.
But the Judge had to impose a sentence that reflected the seriousness of the offending, and that would reflect the need for general deterrence.
I do not agree that the Judge erred in considering the significance of the good life that Mr Ayles led after 1975, apart from the offences in 1991. She referred in some detail to the matter. Granted, she said:
However, it is difficult to place a great deal of emphasis on the achievements in your life, when the conduct for which you are to be sentenced was made possible by the position you then held in the community, a position which you abused.
The meaning of what the Judge said is not completely clear. The contribution that Mr Ayles made to the community after 1975 was undeniably in his favour. But I am not persuaded that what the Judge said indicates that she failed to give appropriate weight to the contribution that Mr Ayles had made to the community. I am satisfied that all the Judge meant was that the good that Mr Ayles had done, after the offending conduct ceased, and the credit to be given for that, was somewhat offset by the fact that he had been prepared to abuse his position in the community when he committed the offences in question.
When I turn to the sentence imposed, a single sentence of imprisonment for four years, I can find no indication of error. But for the mitigating circumstances referred to, I would have expected a heavier sentence, although I acknowledge that the sentence that the Judge imposed is, in all the circumstances, towards the upper end of the appropriate range. But there is nothing in the sentence that suggest to me that the Judge did not make due allowance for the matters that pointed towards lenience.
For those reasons I would grant leave to appeal but would dismiss the appeal against sentence.
GRAY J. I would dismiss this appeal. I do not wish to add to the reasons of Doyle CJ.
DAVID J. I agree with the orders of the Chief Justice and concur with his reasons in relation to both conviction and sentence.
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