R v Ayles

Case [2007] SASC 82

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 82

Court of Criminal Appeal:  Doyle CJ, Gray and David JJ

  1. 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).

  2. Mr Ayles pleaded guilty to count 7 and count 8, which were…

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R v Ayles [2007] SASC 82
Case
[2007] SASC 82
Decision Date

CaseChat Overview and Summary

In the case of R v Ayles, the appellant challenged his conviction, alleging that the trial judge had erred in ordering an amendment to a count of the charge at the time she delivered the verdict and published her reasons. The central legal issues were whether the judge had the power to make the order and if there had been a miscarriage of justice due to the manner in which the judge exercised this power, considering the provisions of section 281 of the Criminal Law Consolidation Act 1935 (SA).

The court examined the authority of the judge to amend the charge and concluded that the judge had indeed exercised the power conferred by section 281(2). The court held that the requirement to note the order for amendment under section 281(3) was administrative and did not invalidate the amendment made. The court relied on the precedent set in Ismail (1991) 92 Cr App R 92, where the Court of Appeal found that the failure to note the order for amendment did not affect the validity of the amendment. Consequently, the appeal against conviction was dismissed as the judge had the power to make the order, and no injustice was caused to the appellant in the circumstances of this case. The court also highlighted the importance of addressing amendments to the charge promptly and properly to avoid potential issues.

The court further addressed the sentencing aspect of the appeal, noting the serious nature of the offences committed by the appellant. The judge considered the ongoing nature of the offences, the vulnerability of the victim, and the appellant's misuse of his position as a priest. Despite the appellant's later contributions to the community, the court emphasised that the serious nature of the offences and the community's expectations warranted a substantial sentence. The court dismissed the appeal against sentence, affirming the original sentencing decision.

The final orders of the court were to dismiss both the appeal against conviction and the appeal against sentence, upholding the original decision of the trial judge.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

DOYLE CJ GRAY J (dissent) DAVID J (dissent)
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.

Ratio Decidendi

Legal Principle Established

Established by: DOYLE CJ,

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.