R v D, WD
[2013] SASCFC 32
•3 May 2013
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v D, WD
[2013] SASCFC 32
Judgment of The Court of Criminal Appeal
(The Honourable Justice Anderson, The Honourable Justice Peek and The Honourable Justice Nicholson)
3 May 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - OTHER MATTERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE - GENERALLY
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - GENERALLY
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - UNCERTAINTY, DUPLICITY AND AMBIGUITY
The appellant was convicted after a trial by judge alone of three counts of unlawful sexual intercourse contrary to s49(3) of the Criminal Law Consolidation Act 1935 (‘the Act’) (counts 1,3, and 4), and one count of common assault contrary to s 39 of the Act (count 2).
Section 49(3) was amended twice and took three different forms during the period particularised for two of the counts (counts 3 and 4). The trial judge was satisfied that count 3 and 4 were established. However, no findings as to which of the different forms of the offence was committed were made nor, on the state of the evidence, would it have been possible to do so.
The primary issues on appeal were: (1) whether the Judge erred in fact and in law in accepting the complainant’s evidence such as to render the finding of guilt for each of the counts 1 to 4 a miscarriage of justice; (2) whether counts 3 and 4 as pleaded were duplicitous or uncertain; (3) whether the power conferred on the Court of Criminal Appeal by s354(2) to substitute a conviction for a lesser offence upon setting aside a conviction following trial by jury also extends to a conviction following a trial by judge alone; and (4) whether, in the circumstances of this case, the power to substitute convictions for unlawful sexual intercourse should be exercised.
Held: Appeal allowed in part. (1) the appeal with respect to count 1 is dismissed; (2) the appeal with respect to count 2 is dismissed; (3) the appeal with respect to count 3 is allowed in part with the verdict of guilty of unlawful sexual intercourse quashed but a verdict of guilty of indecent assault entered in substitution; (4) the appeal with respect to count 4 is allowed in part with the verdict of guilty of unlawful sexual intercourse quashed but a verdict of guilty of indecent assault entered in substitution.
Criminal Law Consolidation Act 1935 s13A, s14,19B, s24, s25, s39, s49, s56, s75, s274, s277, s352, s353, s354, Rule 4 of Schedule 3; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 s11, s12; Statutes Amendment (Justice Portfolio) Act 2006 s15; Juries Act Amendment Act 1984 s5; Statutes Amendment and Repeal (Aggravated Offences) Act 2005 s26; Acts Interpretation Act 1915 (SA) s21, s22; Criminal Appeals Act 1924 s7; Evidence Act 1929 (NSW) s9(4), s12A, s13, s13A, s13B, s21, s34CA, s34CB, s34KC, s34L, s34M, s34N, s34R; Criminal Procedure Act 1986 (NSW) s32, s33; Criminal Appeal Act 1912 (NSW) s6, s7, s8; Summary Procedure Act 1921 s5; Criminal Appeal Act 1907 (UK) s4; Statutes Amendment and Repeal (Aggravated Offences) Bill 2005 (SA); Statutory Interpretation in Australia (5th ed, 2001) DC Pearce & KS Geddes at 250, referred to.
R v D, WD [2012] SASC 154; R v Wilson (No 2) [2007] SASC 129; Maxwell v Murphy (1957) 96 CLR 261 at 267; R v Greenaway [2000] NSWCCA 368; R v ADW [2002] SASC 331; R v O [1997] SASC 6213; R v Jongewaard [2009] SADC 90; R v Kari [1997] SADC 3585; W, AJ v Police [2011] SASCFC 185; R v Spanos (2007) 99 SASR 487; R v Barendregt [2008] SADC 35; W, JD v Police [2005] SASC 87; (2005) 91 SASR 189; Amalgamated Society of Engineers v Adelaide Steam Ship Co. Ltd (1920) 28 CLR 129; Project Blue Sky Inc. & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461; Coco v The Queen (1994) 179 CLR 427; Ex parte Purcell (1907) 7 SR(NSW) 432; Ex parte Zietch; Re Craig (1944) 44 SR(NSW) 360; Tuck v Priester (1887) 19 QBD 629; R v Adams (1935) 53 CLR 563; Waugh v Kippen (1986) 160 CLR 156; P v Police Unreported SASC Full Court, Cox, Perry and Lander JJ, 19 July 1996, S5677, Butterworths Cases 9603154; R v Haak [2012] SASCFC 19; R v Bakhuis [2012] SASCFC 55; R v Kurtic [1996] NSWSC 326; Markou v R [2012] NSWCCA 64; Spies v R [2000] HCA 43; (2000) 201 CLR 603; R v Wilkes [2001] NSWCCA 383; Fleming v The Queen (1998) 197 CLR 250; Calabria v The Queen (1983) 151 CLR 670; R v B [1999] SASC 403; Kailis v The Queen (1999) 21 WAR 100; R v Phan (2010) 106 SASR 116; R v Gould (1995) 184 LSJS 424; Calabria v The Queen (1983) 151 CLR 670; R v Salmon [1969] SASR 76; Hartley v R Unreported 6 September 1994, SAFC (Prior, Olsson and Perry JJ); R v Liddy (2002) 81 SASR 22; R v Pople [1924] SASR 448; Saraswati v The Queen (1991) 172 CLR 1; F, BV v Magistrates Court of South Australia and Anor [2013] SASCFC 1, considered.
R v D, WD
[2013] SASCFC 32Court of Criminal Appeal: Anderson, Peek, Nicholson JJ
Appeal against conviction
ANDERSON J.
I agree with the orders proposed by Nicholson J for the reasons he gives.
PEEK J.
I agree with the orders proposed by Nicholson J and with his reasons.
NICHOLSON J.
Introduction
This is an appeal against conviction following a trial by a Judge sitting alone in this Court. The appellant was convicted of three counts of unlawful sexual intercourse contrary to s49(3) of the Criminal Law Consolidation Act 1935 (the Act) and one count of common assault on a family member contrary to s39 of the Act.[1]
[1] A certificate that the matter was a fit case for appeal in accordance with the requirements of s352(1)(a)(ii) of the Act was given by the trial Judge on 16 November 2012.
The material parts of the Information at the commencement of the trial were in the following form.
First Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] between the 22nd day of March 2003 and the 23rd day of March 2004 at Beverley, had sexual intercourse with [C], a person of the age of 12 or 13 years, by inserting his fingers into her vagina.
Second Count
Statement of Offence
Common Assault. (Section 39 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] between the 1st day of January 2005 and the 1st day of January 2006 at Beverley, assaulted [C], and [C] was at the time of the offence, a family member of [the appellant].
Third Count
Statement of Offence
Unlawful Sexual Intercourse. (Section 49(3) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
[The appellant] between the 1st day of January 2005 and the 1st day of January 2006 at Beverley, had sexual intercourse with [C], a person of the age of 13 or 14 years, by causing her to perform an act of fellatio upon him.
Fourth Count
Statement of Offence
Unlawful Sexual Intercourse. (Ibid.)
Particulars of Offence
[The appellant] between the 1st day of January 2005 and the 1st day of January 2006 at Beverley, had sexual intercourse with [C], a person of the age of 13 years or 14 years, by inserting his penis in her vagina.
After the completion of the evidence, the prosecution was granted leave to amend the particulars referable to counts 2, 3 and 4. The amendment to count 2 assumes no significance for the appeal.[2] However, the amendments made to counts 3 and 4 are of the utmost significance. These two offences, as alleged, were said to have taken place on the same day, in fact, as part of the same event. The amendments to the particulars for counts 3 and 4 were in identical terms. The date range for the commission of each alleged offence of “between the 1st day of January 2005 and the 1st day of January 2006” was expanded to read “between the 1st day of January 2005 and the 1st day of March 2007”. In addition, the reference to the complainant as being “of the age of 13 or 14 years” was amended to read “under the age of 17 years”.
[2] The date range particulars were replaced by the single date “on the 1st day of October 2004”.
The particulars, as amended, when considered in conjunction with the inconsistent evidence as to the time of occurrence of the alleged offences, given by the complainant, has meant that the convictions for counts 3 and 4 must be set aside and the appeal allowed at least in this respect. The Director of Public Prosecutions has conceded as much.
It will be necessary to descend into a little detail later in these reasons to explain why, in my view, the Director’s concession in this respect was properly given. However, the Director submits that verdicts of indecent assault, as a statutory alternative to the offence of unlawful sexual intercourse, should be substituted pursuant to s354(2) of the Act. For reasons to be explained, this submission should be accepted.
The difficulty for the prosecution in pleading counts 3 and 4, bearing in mind the nature of the evidence given by the complainant on this topic, could not be rectified. The complainant’s evidence was accepted, as truthful and reliable, by the trial Judge. However, it was inevitable that the lack of certainty (as to the timing of the incident) in the complainant’s evidence would present, through no fault of the complainant, a problem for the Crown case. This came about as a direct result of the fact that the statutory formulation of the offence of unlawful sexual intercourse was amended twice during the newly particularised period.
Grounds of appeal
During the hearing of the appeal leave was granted to the appellant to add six new grounds of appeal to the original four grounds. The 10 grounds are as follows.
1. The Learned Trial Judge erred in law in allowing the amendment of count 3 on the Information after the close of the respective cases for Prosecution and Defence.
2. The learned Trial Judge erred in law in allowing the amendment of count 4 on the Information after the close of the respective cases for Prosecution and Defence.
3. Count 3 on the Information as amended was duplicitous or otherwise fundamentally defective so as to render the finding of guilt in relation to it a miscarriage of justice. (Original ground 1).
4. Count 4 on the Information as amended was duplicitous or otherwise fundamentally defective so as to render the finding of guilt in relation to it a miscarriage of justice. (Original ground 2).
5. The Learned Trial Judge erred in law in finding count 3 to have been proven on the evidence.
6. The Learned Trial Judge erred in law in finding count 4 to have been proven on the evidence.
7. The finding of guilt on count 3 is otherwise unreasonable and/or cannot be supported on the evidence.
8. The finding of guilt on count 4 is otherwise unreasonable and/or cannot be supported on the evidence.
9. The Learned Trial Judge erred in fact and in law in accepting the evidence of the complainant beyond reasonable doubt “in relation to all elements of all charges” such as to render the finding of guilt in relation to count 1 a miscarriage of justice. (Original ground 3).
10. The Learned Trial Judge erred in fact and in law in accepting the evidence of the complainant beyond reasonable doubt “in relation to all elements of all charges” such as to render the finding of guilt in relation to count 2 a miscarriage of justice. (Original ground 4).
I am satisfied that the appeal should be allowed with respect to counts 3 and 4 on the basis of appeal grounds 3 and 4 respectively. These verdicts of guilty are to be set aside. As such, it is unnecessary to deal at any length with grounds 1 and 2. However, in my view, the reasons which underpin the allowing of the appeal pursuant to grounds 3 and 4 also demonstrate that the amendments to counts 3 and 4 on the information should not have been permitted (grounds 1 and 2).
As far as grounds 5, 6, 7 and 8 are concerned, an attack on the trial Judge’s reasons for judgment in these respects concerning counts 3 and 4 was barely pressed by the appellant in either his written or his oral submissions.
The appellant also appeals against his convictions for counts 1 and 2. These counts are not directly affected by the problem of particularisation that beset counts 3 and 4. The only ground of appeal relied on by the appellant with respect to counts 1 and 2 is that the trial Judge erred in fact and in law in accepting the evidence of the complainant beyond reasonable doubt such as to render the finding of guilt in each case to be a miscarriage of justice (grounds 9 and 10).
As far as grounds 5-10 inclusive are concerned, counsel for the appellant did not direct the Court to any specific criticisms of the Judge’s reasons. The complaint remained at the level of abstraction, reflected in grounds 9 and 10, that the Judge erred “in accepting the evidence of the complainant beyond reasonable doubt in relation to all elements of the charges”.
The appellant did not give evidence and, as such, this was not a case where the Judge had before him two opposing bodies of evidence. His Honour considered with some care the evidence concerning the alleged unlawful conduct that was before him; that of the complainant. In so doing, his Honour identified a number of criticisms of and inconsistencies in the complainant’s evidence. Counsel for the appellant conceded during argument that the Judge “identified the main ones” and that “the central ones were listed”. No failure by the Judge to have regard to particular problems with the complainant’s evidence was identified. Furthermore, it has not been submitted and cannot be said that the Judge failed to direct himself appropriately as to the burden and standard of proof or otherwise.
His Honour noted that he had “scrutinised the evidence of [the complainant] with great care because without her evidence there is no prosecution case”. His Honour found the complainant’s evidence “on the core issues compelling” and “on the salient matters” he “believed her to be telling the truth”. The Judge accepted the complainant’s evidence “beyond reasonable doubt in relation to all elements of the charges”.[3]
[3] [2012] SASC 154 at [25]-[27].
Bearing in mind the argument heard by his Honour which lead to the amendments to the particulars for counts 3 and 4 and on a reading of his Honour’s reasons as a whole, it is plain that the Judge directed his attention only to two “core” or “salient” issues – was the complainant under 17 (counts 1, 3 and 4) and did the physical actions complained of (counts 1, 2, 3 and 4) in fact take place? Nevertheless, his Honour was aware of the inconsistencies in the complainant’s evidence concerning the timing of the event the subject of counts 3 and 4.[4] His Honour observed that this inconsistency was quite properly stressed by defence counsel in cross-examination and in her address. Whilst his Honour made no finding as to the time when counts 3 and 4 took place and therefore no finding as to the complainant’s age, it cannot be said that he failed to take this inconsistency into account when assessing the credibility and reliability[5] of the complainant’s evidence on the “core” or “salient” issues.
[4] Trial judgment at [22], trial transcript of argument at T81-85.
[5] The Judge did not in his reasons use the term “reliability”. It is trite law that for a criminal prosecution, reliant on the uncorroborated evidence of a complainant, to succeed, the trier of fact must be satisfied of both truthfulness and reliability; truthfulness alone is not enough. The language used by the Judge (particularly in his conclusion) in my view is sufficient to indicate that the issue of reliability was attended to. The appellant raised no criticism in this respect. Nevertheless, in a case where the single issue (for this Judge) was did the acts occur or not, I would not easily find that an experienced criminal trial Judge overlooked the issue of reliability.
His Honour was entitled to accept the complainant’s evidence concerning the appellant’s conduct. There is nothing in the evidence or in the appellant’s submissions that should cause this Court to interfere.
As far as counts 1 and 2 were concerned, the appellant’s oral argument at the appeal was more subtle. It was submitted that should the convictions for counts 3 and 4 fall for duplicity, counts 1 and 2 and should also fall because the same reasoning process by the Judge, exposed as flawed with respect to counts 3 and 4, would have operated for counts 1 and 2 and should be seen as unsafe. As best as I can understand the argument, it was to the effect that, had the Judge adverted to the inconsistencies as to timeframe in the complainant’s evidence and identified the proper legal outcome for counts 3 and 4, this would have caused his Honour to take more seriously this inconsistent evidence when assessing the complainant’s overall credibility and reliability, including with respect to counts 1 and 2.
Counsel conceded that if counts 1 and 2 were considered in isolation, an argument that they were unsafe and unsatisfactory would necessarily fail.[6]
But they shouldn’t be taken in isolation; I submit there was a single body of evidence, there was a compact and generalised finding of facts collectively in relation to that evidence, those findings were erroneous or deficient in respect of two of the counts. I say that it does naturally flow on to the other two counts. That’s the argument.
[6] Appeal transcript p20.
The appellant’s argument does not withstand scrutiny and is rejected. It fails on the facts; the Judge did have regard to this aspect of the complainant’s evidence when assessing her overall credibility and reliability.[7] Furthermore, the fact that the Judge made an error of law with respect to his application of his findings of fact, based on the complainant’s evidence, to the elements of the offences charged in counts 3 and 4 is no reason (by itself) to challenge those findings of fact. His Honour’s error was not a matter going to credibility which could be relied on to undermine the reasoning underpinning the convictions for counts 1 and 2.
[7] Paragraphs [22] and [26].
I would dismiss the appeal, insofar as it relies on grounds 5 to 10 inclusive and now return to grounds 1 to 4.
Summary of the Crown case
The complainant was born on 6 March 1991. The appellant is her step-father. He married the complainant’s mother on 22 March 2003 at which time the complainant had just turned 12. The appellant was a remedial massage therapist.
It was during the process of receiving what the complainant thought was treatment from the appellant that count 1, an act of unlawful sexual intercourse, was said to have occurred. The complainant said that this offence occurred during the first year of her mother’s marriage to the appellant. The complainant was born with a hip abnormality and on the occasion in question her mother had told her to see the appellant in the mother’s bedroom for him to fix her hips. In the bedroom the appellant told the complainant to lie down on the bed. He proceeded to pull her pants and underwear down and put his fingers inside her vagina.
The complainant said that about six months to a year after the count 1 incident occurred the appellant slapped her because he was angry when she, her brother and her mother returned home early from her cousin’s engagement party. This incident, which the trial Judge found to have occurred, was the subject of count 2, the offence of common assault on a family member.[8]
[8] The Crown in its written outline submitted that there may have been an error in the trial Judge’s reasons with respect to count 2. The reasons do not contain an express finding that the complainant was a “family member”. It may be argued that, this is an element of the offence under s39 of the Act as the terms of that section stood during the period particularised for the second count. During the trial, the Judge specifically asked about this issue and was told that it was not an element of the offence. In any event, no ground of appeal has been raised with respect to this issue and the fact that the complainant was “a family member” cannot be doubted, given the uncontested evidence on this topic before his Honour and given his Honour’s findings.
The alleged acts of unlawful sexual intercourse, the subject of counts 3 and 4, were said to have occurred on the one occasion. According to the complainant there was an occasion when she and the appellant were alone in the house after the complainant had returned from school. The complainant was changing out of her school uniform in her bedroom when the appellant came into the room; she was partially undressed. The appellant tried to kiss her and he pulled her down onto the bed. He pinned her arms down and put his penis into her mouth forcibly (count 3); the appellant then took the complainant’s underwear off and put his penis into her vagina (count 4).
The difficulty for the Crown case with respect to counts 3 and 4 is that when the complainant’s evidence-in-chief about this incident is compared with her evidence during cross-examination, the incident (whilst found by the Judge to have occurred) could have taken place within a wider timeframe than that originally particularised.
At one stage during her evidence the complainant said that counts 3 and 4 took place at a time after count 1 which was said to have occurred about one year after the marriage on 22 March 2003. If this aspect of the complainant’s evidence were to be accepted, counts 3 and 4 would have occurred no earlier than March 2004 but probably significantly later. However, during cross-examination the complainant said that the incident the subject of counts 3 and 4 could have taken place about six or 12 months after a particular wedding which other evidence established occurred on 14 January 2006.
As a consequence, and at the close of the evidence, the prosecutor sought and was given leave to amend the particulars for counts 3 and 4 so as to retain the commencement date for the period of the 1st day of January 2005 but to replace the ending date for the period of the 1st day of January 2006 with the 1st day of March 2007.
There was no defence case. The trial Judge found that the acts the subject of counts 3 and 4 did take place and that they took place before the complainant turned 17.[9] However, his Honour made no finding as to whether the complainant was under or over the age of 14 years nor any finding as to when, within the newly particularised timeframe, the incident the subject of counts 3 and 4 occurred.
The varying terms of s49(3) of the Criminal Law Consolidation Act 1935
[9] The complainant turned 17 on 6 March 2008, well outside the period particularised in counts 3 and 4 and well outside the timeframe given by the complainant in her evidence on any analysis of that evidence.
During the particularised timeframe of 1 January 2005 to 1 March 2007 three different versions of s49(3) were in force.
Prior to 15 May 2006, s49(3) provided as follows (the “initial formulation”).
A person who has sexual intercourse with a person of or above the age of 12 years and under the age of 17 years should be guilty of an offence and liable to be imprisoned for a term not exceeding 7 years.
Between 15 May 2006 and 17 January 2007 s49(3) provided as follows (the “first amendment”).
A person who has sexual intercourse with a person of or above the age of 14 years and under the age of 17 years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
Between 18 January 2007 and 1 March 2007 (and thereafter) s49(3) provided as follows (the “second amendment”).
A person who has sexual intercourse with a person under the age of 17 years is guilty of an offence.
Maximum penalty: Imprisonment for 10 years.
Neither of the amending Acts[10] contained a relevant transitional provision. Nevertheless, in R v Wilson (No 2)[11] this Court appeared to accept that amendments to s49(1) similar in nature to the first amendment (to s49(3)) did not operate retrospectively. With respect, I see no reason to doubt the correctness of that decision. Gray J[12] said this.
In the absence of a clear statement to the contrary, it is to be assumed that an Act addressing substantive law will not have retrospective operation:[13]
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past event.
[10] Section 11 of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 effected the first amendment and s15 of the Statutes Amendment (Justice Portfolio) Act 2006 effected the second amendment.
[11] [2007] SASC 129 at [28]-[34].
[12] At [30], and with whom Duggan and White JJ agreed.
[13] Maxwell v Murphy (1957) 96 CLR 261 at 267. See also DC Pearce & KS Geddes, Statutory Interpretation in Australia (5th ed, 2001) at 250.
His Honour drew attention to the fact that the amendments to s49(1) before the Court affected the substantive rights of a defendant. They altered an element of the offence by increasing the age of an alleged victim under s49(1).[14] In addition, the amendment to s49(1) increased the maximum penalty for the offence.[15] Gray J then noted the concession on behalf of the Crown that the amendments to s49(1) were not retrospective and proceeded to deal with the issues before him on that basis.
[14] The offence under s49(1) was amended so that the alleged victim of an offence had to be under the age of 14 years rather than, as previously, under the age of 12 years.
[15] From 13 years to life imprisonment.
The first amendment to s49(3) also altered an element of the offence.[16] It also increased the maximum penalty for an offence under s49(3).[17] Again, the Crown does not challenge the proposition that the first amendment did not operate retrospectively. For the reasons given in R v Wilson (No 2), I am satisfied that the first amendment to s49(3) did not have retrospective operation.
[16] Following the amendment the alleged victim had to have been of or above 14 years and under 17 years of age whereas prior to the first amendment the alleged victim had to have been of or above 12 years and under 17 years of age.
[17] From 7 years imprisonment to 10 years imprisonment.
The position with respect to the second amendment is not quite so straight forward. The second amendment to s49(3) did not change the maximum penalty. However, it did alter an element of the offence. Previously it was necessary to prove not only that a complainant was under 17 but that the complainant was above the age of 14. Following the second amendment it was only necessary for the Crown to prove that a complainant was under 17 years of age.
The practical effect of the second amendment is that it broadened the reach of s49(3) such that persons who engage in sexual intercourse with a person under 17 but who might not have fallen within s49(3) (because the complainant was under 14) will now fall within and be amenable to being charged under that sub-section. Prior to the second amendment, in circumstances where there was uncertainty as to whether a complainant was under or over the age of 14 years, no offence of unlawful sexual intercourse could be charged. Sub-section 49(1) required the Crown to prove that the complainant was under the age of 14 years and s49(3) required the Crown to prove that the complainant was of or above the age of 14 years. The second amendment to s49(3) ensures that cases where there is such an uncertainty in the Crown proofs, do not fall between two stools.
I agree with the Crown submission that the second amendment has altered an element of the s49(3) offence and that the alteration affects the substantive rights of a potential accused. As a consequence, and based on the reasoning in R v Wilson (No 2) the second amendment is also to be regarded as not having a retrospective operation.
Are counts 3 and 4 duplicitous or otherwise not maintainable in law?
During the amended particularised period the offence of unlawful sexual intercourse under s49(3) took three materially different forms. The trial Judge accepted the evidence of the complainant “beyond reasonable doubt in relation to all elements of all charges”. His Honour entered verdicts of guilty with respect to all counts as finally particularised. However, there is no finding concerning when the offence took place other than sometime within the extended particularised period. It is not possible to say whether an offence was committed contrary to the initial formulation of s49(3) or to the first amendment or to the second amendment. The reasoning of the New South Wales Court of Criminal Appeal in R v Greenaway[18] would seem to be apposite.
It has become apparent, when one has regard to the Crown’s submissions that it is not possible to fix the occasion upon which the indecent assault alleged is said to have occurred with any greater accuracy that at sometime during the period particularised. It follows that it is not possible to say whether an offence was committed under the repealed provision or under the new provision.
It is common ground that the old offence was abolished and that the new provision creates a new offence. In those circumstances, it has been submitted that the extension should be granted and the appeal allowed. In that regard our attention has been drawn by the Crown to the decision of this court in Page v. The Queen (CCA, unreported, 25 November 1991 at 8-9), and the decision to similar effect of the Court of Criminal Appeal of Western Australia, in Regina V. Kailis [1999] WASCA 29 in particular at paragraphs 8-67 in the judgment of the Chief Justice, with whom Ipp and Anderson, JJ. agreed.
The specification of dates fixing the time of the commission of an offence in an indictment is usually a mere matter of particulars, however, in appropriate circumstances, that mere matter of particulars may achieve importance such as to show that the offence might not be maintainable in law or to reveal a latent duplicity.
It matters not in the present case which mode of analysis one adopts. Suffice it to say that the Crown concedes that the conviction for either of the two offences… cannot be maintained.
[18] [2000] NSWCCA 368 at [9]-[12] (Greg James J with whom Priestley JA and Kirby J agreed).
In fairness to the trial Judge, it would not have been possible to make a more precise finding. As was implicit in the Director’s concession, it would not have been open to a trier of fact, when all of the complainant’s evidence is considered, to find beyond reasonable doubt a time frame for the conduct that falls wholly within only one of the three periods under consideration, so as to identify which form of the offence had been committed. Furthermore, the element concerning age was different for each of the three forms of the offence. The Judge did not make findings in this respect sufficient to establish that the elements of the initial formulation or the first amendment formulation of the offence had been satisfied nor could he have done so.
The prosecution rightly has conceded that the guilty verdicts for counts 3 and 4 must be quashed and there would be little purpose in exploring further the notion of duplicity and its application to the facts of this case.
The alternative offence – indecent assault
The offence of indecent assault under s56 of the Act is a statutory alternative to the offence of unlawful sexual intercourse under s49(3) in whichever form pleaded.[19] It has been submitted by the prosecution that had the problem presented by the amended particulars and the evidence of the complainant come to the trial Judge’s attention before judgment, verdicts of not guilty to counts 3 and 4 as charged and verdicts of guilty to two counts of indecent assault, in the alternative, should have been entered. The prosecution submits that this Court, in disposing of the appeal, also has power to substitute verdicts of indecent assault.
[19] Section 75 of the Criminal Law Consolidation Act.
Whether or not the trial Judge would have had this power to substitute turns on whether or not s75 of the Act, which confers such a power on “a jury”, also applies to a trial by judge sitting alone.[20]
[20] There is an additional consideration dealt with later in these reasons; s56 as it initially stood was “deleted” and replaced with a new s56 during the relevant period.
Similarly, the prosecution submits that the Court of Criminal Appeal hearing an appeal from a trial by judge alone also has this power of substitution by virtue of s354(2) of the Act and notwithstanding that, like s75, it refers only to cases of trial by jury.
Powers of a judge sitting alone to enter a statutory alternative verdict
Section 75 of the Act is in the following terms.
If on a trial for rape, compelled sexual manipulation or unlawful sexual intercourse, or an attempt to commit rape, compelled sexual manipulation or unlawful sexual intercourse, the jury
(a) is not satisfied that the accused is guilty of the offence charged; but
(b) is satisfied the accused is guilty of an indecent assault or a common assault, or an attempt to commit indecent assault or a common assault (the lesser offence),
the jury must find the accused not guilty of the offence charged, but may find the accused guilty of the lesser offence.
Some appreciation of the legislature’s intention can be discerned from the terms of s7(4) of the Juries Act. As originally enacted, s7(4) provided as follows.
Where a criminal inquest[21] proceeds without a jury in pursuance of this section, the Judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision shall for all purposes, have the same effect as a verdict of a jury.
Sub-section 7(4) was amended in 1994 and 2000 and then a new provision substituted in 2005.[22] The form of s7(4) since 2005 has been as follows.
If a criminal trial proceeds without a jury under this section, the Judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
[21] In the Juries Act as originally enacted, the term “criminal inquest” was defined to mean “trial before a court of criminal jurisdiction of any issue joined upon an indictment, presentment or information for any indictable offence”.
[22] Section 26 of the Statutes Amendment and Repeal (Aggravated Offences) Act 2005.
The language of the provision has been modernised over time but throughout its history the apparent intent of the legislature and the effect of s7(4) have been the same. A judge sitting as the trier of fact, in terms of decisions as to verdict,[23] is to be regarded as occupying a position identical to that of a jury. In R v ADW[24] Doyle CJ (with whose reasons Debelle J agreed) said this.
The trial was by judge without a jury. Section 7(4) of the Juries Act 1927 (SA) provides as follows:
“Where a criminal trial proceeds without a jury in pursuance of this section, the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.”
Accordingly, in the present case the Judge’s verdict and finding of guilt has “for all purposes” the same effect as a jury’s verdict.
[23] Ignoring for the present the added obligation of a judge, as trier of fact, to provide reasons for verdict.
[24] [2002] SASC 331 at [12]-[13].
It has never seriously been doubted that a judge sitting alone is entitled to enter a verdict for a statutory alternative offence in the same circumstances in which a jury would be entitled so to do. That this was the legislature’s expectation is made clear in the second reading speech of the then Attorney-General when an amendment to s7(4) was introduced in 2005.[25]
During consultation on the Bill – and there were extensive consultations – it was asked whether the provisions about alternative verdicts were confined to trial by judge and jury or extended to trial by judge alone. The answer is that these provisions apply to trial by judge alone by dint of the Juries Act 1927. Section 7 of the Juries Act governs what happens when an accused in a criminal trial before the District Court or the Supreme Court chooses to be heard by judge alone instead of by judge and jury. Sub-section (4) provides that the judge may make any decision that could have been made by a jury and that this decision will have the same effect as if made by a jury. The provisions of this Bill about alternative verdicts do not need to re-state this, but I am taking this opportunity to update the language in s7(4) by way of this amendment.
[25] Statutes Amendment and Repeal (Aggravated Offences) Bill 2005 (SA), South Australia, Parliamentary Debates, House of Assembly, 3 May 2004, p1954 (Michael Atkinson, Attorney-General).
In R v O[26] Bleby J was sitting in a criminal trial as a judge without a jury. His Honour discussed whether any possible alternative verdicts were open in the circumstances before him. He said this.
The only conceivable alternatives would be raised by s29(2) and 29(3) of the Criminal Law Consolidation Act. However, those sub-sections require different states of knowledge and intention, and do not appear to be of the same character as that of s29(1) in the sense discussed by Cox J in R v McLaren (unreported, 22 January 1997 judgment No S5986). Section 29 comprises a series of statutory offences, and parliament has not directed that they should be considered as alternatives as provided, for example, in ss19B, 24 and 75 of the Criminal Law Consolidation Act.
[26] [1997] SASC 6213.
Bleby J appeared to acknowledge that s75 provided for statutory alternatives which parliament directed should be considered in appropriate circumstances. However, his Honour did not advert to, much less discuss, the issue presently under consideration, that is, whether the use of the word “jury” in each of the sections that his Honour referred to operated to restrict their application.
Section 19B of the Act provides for alternative offences in various circumstances. Again, the section is drawn in terms of “the jury” not being satisfied of guilt of the offence charged but being satisfied of guilt of the alternative.[27] Section 24 of the Act in its present form no longer deals with alternative verdicts. However, s25 in its present form does. Section 25 provides for alternative verdicts to be entered in circumstances where a jury is not satisfied beyond reasonable doubt that the charged offence has been established but is satisfied that the accused is guilty of a lesser offence within Division 7A of the Act (which deals with a series of offences involving the causing of physical or mental harm). It was this provision for alternative verdicts to which the Attorney-General was referring in his second reading speech discussed above. The Statutes Amendment and Repeal (Aggravated Offences) Act 2005 which provided for the amendment to s7(4) of the Juries Act also, by s10, substituted a new provision for s25 of the Act giving rise to the alternative verdict regime available under Division 7A.[28]
[27] Alternative verdicts in reliance on the terms of s19B(3) and without any discussion of the issue have been entered in trials by Judge alone, for example, R v Jongewaard [2009] SADC 90, R v Kari [1997] SADC 3585, W, AJ v Police [2011] SASCFC 185 (on appeal from the Youth Court).
[28] An alternative verdict in reliance on the terms of s25 was entered in a trial by judge alone and without any discussion of the issue in R v Barendregt [2008] SADC 35.
Sub-section 13A(3) also empowers a “jury” to bring in an alternative verdict of manslaughter in the case of a suicide pact where one of the parties involved survives.[29] In addition, there are a number of other sections in the Act the effect and application of which will vary according to the state of satisfaction of the “jury”.[30]
[29] See also s13A(8),
[30] For example, s14.
There is no practical sense to allowing an accused’s decision whether or not to elect for trial by judge alone to be influenced by the fact that differing regimes governing the trier of fact’s powers with respect to a charged offence might apply. To permit this would lack a basis in principle and have the potential to be productive of unfairness.
I return to s75 of the Act itself which is of more direct relevance to the present case. As I have said, it has never seriously been doubted that a judge, sitting alone, conducting a trial of one of the offences referred to in s75, has the power, in appropriate circumstances, to enter a verdict of indecent assault or common assault by way of alternative and notwithstanding that s75 only refers to “the jury”.
W, JD v Police[31] concerned an appeal against a conviction in the Youth Court for indecent assault contrary to s56 of the Act. The information upon which the accused was tried charged two counts; a charge of indecent assault and a charge of rape. According to the particulars provided during the prosecutor’s opening address only the one incident gave rise to the two charges. Vanstone J (with whom Doyle CJ and White J agreed) said this.[32]
[31] [2005] SASC 87; (2005) 91 SASR 189.
[32] At [5]-[7].
In his opening address the police prosecutor made no mention of what conduct was represented by the count of indecent assault. If it was there merely to provide an alternative offence, in case the Judge was left in doubt as to whether penetration had occurred, then it was superfluous. Section 75 of the Act makes available various alternative verdicts on charges of rape and unlawful sexual intercourse for circumstances such as those.
. . . .
The fact that the indecent assault count appeared as count one on the information might suggest that the drafter had in mind that it should apply to other conduct occurring prior to the alleged rape. If that was so then it was necessary for the prosecutor to explain in opening the case what was that particular conduct. As I said, no attempt was made to do so. Indeed, after the evidence had concluded, the Judge asked the prosecutor whether the indecent assault was to be viewed as a separate charge, or merely an alternative to the rape. He indicated that it was not a separate charge. Unfortunately he did not go on to explain how, on the prosecution case, it could come into play. I think he was to be understood as meaning that it was based on the very same alleged conduct as gave rise to the second count, but falling short of penile penetration. If it was to be assigned to any other conduct then he was obliged to make that clear in the opening address, or, at the very latest, when asked to clarify the position. Having not done so the first count must be taken to have been of the same nature as the alternative provided by s 75.
In R v Salmon [1969] SASR 76, 81 the Court of Criminal appeal addressed the relationship, in terms of the facts alleged, between a charge of rape and the alternative of indecent assault provided by s 75 of the Act. The Court (comprising Bray CJ, Hogarth and Mitchell JJ) said:
In our view, the proper rule should be that the jury can convict of an indecent assault where they are not satisfied that the facts alleged to constitute the rape, attempted rape, carnal knowledge, or attempted carnal knowledge of a girl under the age of consent amount to any of these offences but are satisfied that those facts constitute indecent assault. Normally this will be so when the jury are not satisfied that there was penetration or attempted penetration, but are satisfied that there was some force used on the girl, accompanied by circumstances of indecency towards her during the period of the alleged intercourse or attempted intercourse … They should be told that they cannot convict of indecent assault in relation to any act clearly separable in time, place or circumstance from the alleged intercourse or attempted intercourse.
I think what flows from this statement of principle in terms of J’s trial is that there could only be a conviction on indecent assault if the Judge accepted that a transaction such as alleged by the complainant occurred, but that it fell short of rape or attempted rape and amounted to indecent assault.
The tenor of the judgment and the reasoning in this case is that s75 operated to provide a statutory alternative offence notwithstanding that the trial before the Youth Court was conducted (as is always the case) by a judicial officer sitting without a jury.
In the present case the trial Judge had the power pursuant to s75[33] to enter a verdict of indecent assault for each of counts 3 and 4 had he first found the accused not guilty of the charged offences of unlawful sexual intercourse.
[33] Subject to the issue dealt with below concerning amendments to s56 enacted during the particularised period.
Does the Court of Criminal Appeal enjoy a power of substitution?
Given the trial Judge did have such a power, the question arises whether or not the Full Court, sitting as the Court of Criminal Appeal, also has power to substitute verdicts of indecent assault in the circumstances of this case. If it does have the power the further question would arise whether or not it should exercise the power.
The first question requires consideration of the terms of s354(2) of the Act. Section 354 is in the following terms.
(1)If it appears to the Full Court that an appellant, although not properly convicted on some count or part of the information, has been properly convicted on some other count or part of the information, the Court may either affirm the sentence passed on the appellant at the trial or pass such sentence in substitution therefore as it thinks proper and as may be warranted in law by the verdict on the count or part of the information on which the Court considers that the appellant has been properly convicted.
(2)Where an appellant has been convicted of an offence and the jury could, on the information, have found him guilty of some other offence and, on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity.
(3)Where on the conviction of the appellant the jury has found a special verdict and the Full Court considers that a wrong conclusion has been arrived at by the court before which the appellant has been convicted on the effect of that verdict, the Full Court may, instead of allowing the appeal, order such conclusion to be recorded as appears to the Court to be in law required by the verdict and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law.
It can be seen that the power under s354(2) given to the Full Court (sitting as the Court of Criminal Appeal) to substitute, arises where the jury could, on the information, have found the accused guilty of some other offence and that on the finding of the jury, it appears to the Full Court that the jury must have been satisfied of facts which proved the accused guilty of that other offence. In these circumstances, the Full Court has power to enter a verdict of guilty for the alternative offence in substitution for the verdict of the jury. There is no express reference to such a power in the Full Court in the case of a trial by a judge sitting alone. Nevertheless, in my view, such a power is in any event to be implied.
Sub-section 354(1) deals with the situation where a need to adjust a sentence arises consequent on an appeal as to conviction being allowed in part. It is in general terms which can be read as applying to both trials by jury and judge sitting alone. However, this cannot have been the intention of the framers of the sub-section because it pre-dates any concept of trial by judge alone in this State at least where the accused has been charged with an indictable offence on information.[34]
[34] Section 354 expressly refers to trials on information.
Sub-section 354(3) deals with the position where a jury has found a “special verdict”. Special verdicts are a creature of the common law and are peculiarly referrable to trials by jury.[35] Sub-section 354(3) would seem to be of little, if any, assistance when considering the statutory context within which s354(2) is to be construed.
[35] See the discussion by Debelle J in R v Spanos (2007) 99 SASR 487 at [2]-[4].
At the time that s354(2) was drawn there was no alternative in this State of trial by judge alone for an indictable offence in the higher courts. This, of itself, provides a complete explanation and justification for why the legislature referred only to convictions following trials by jury in s354(2). However, once the alternative became available (in 1984 as discussed below) the fact that s354(2) was not then amended but remained confined to convictions following a trial by jury, becomes of potential significance. Might this disclose an intention by the legislature to distinguish between its approach to the mischief dealt with in s354(1) as compared with its approach to the mischief dealt with in s354(2)?
The fact that, once the alternative mode of trial became available, the legislature retained the word, and only the word, “jury” presents an immediate problem for the interpretation of s354(2) propounded by the prosecution, particularly if a literal approach were to be adopted.
Some principles of statutory construction
A commonly accepted formulation of the literal approach was provided by Higgins J in Amalgamated Society of Engineers v Adelaide Steam Ship Co. Ltd.[36]
The fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded according to the intent of the parliament that made it; and that intention has to be found by examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.
With reference to these propositions, Professors Pearce and Geddes have made the following observation.[37]
Stated in this uncompromising form, the possibility of applying any other approach to interpretation was excluded, however unsatisfactory the result. Later it was accepted that this approach complimented the purposive approach. “The natural and ordinary meaning of what is actually said in the Act must be the starting point” Cooke J said in Reid v Reid [1979] 1 NZLR 572 at 594. Although the literal approach had a simplicity about it that was attractive, it suffered from a major defect. The defect was that it assumed that a word or phrase, read in its textual context, always has just one meaning. In fact, there may be no single, unambiguous, ordinary meaning.
[36] (1920) 28 CLR 129 at 161-2.
[37] DC Pearce and R Geddes, Statutory Interpretation in Australia 6th ed, LexisNexis Australia 2006 at [2.3].
In Project Blue Sky Inc. & Ors v Australian Broadcasting Authority[38] the authors of the plurality judgment[39] said this.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. … “[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed.
[38] (1998) 194 CLR 355 at [69] (citations omitted) and see generally [69]-[71].
[39] McHugh, Gummow, Kirby and Hayne JJ.
The modern approach to statutory interpretation which focuses on context and the purpose of the Act or the particular provision in question at the expense, where appropriate, of the literal approach is encapsulated in s22(1) of the Acts Interpretation Act 1915 (SA) and the decisions of this Court which have considered and applied it.[40] Sub-section 22(1) provides as follows.
Subject to sub-section (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[40] For example, R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [78]-[86].
It is not necessary on this occasion to consider further the question whether or not, in this State, there must first be more than one construction of the statutory provision in question that is “reasonably open”, before s22 requires or permits resort to the purposive approach of construction.[41] As will become apparent, I am satisfied that the terms of s354(2) readily admit of more than one construction both of which are “reasonably open”. Is the word “jury” where it occurs throughout s354(2) a reference to the 12 persons selected and a particular mode of trial or is it a reference to the trier of fact ultimately responsible for the verdict whichever mode of trial might apply?
[41] See the discussion by Gray J in R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [80]-[83].
In Project Blue Sky, the plurality judgment contained the following observations.[42]
[T]he duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction[43] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[42] At [78].
[43] The example given in the plurality judgment of such a cannon of construction was the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities, Coco v The Queen (1994) 179 CLR 427 at 437.
In the present context attention will also need to be directed to s21 of the Acts Interpretation Act.
Every Act will be considered as speaking at all times, and every enactment, whether expressed in the present or future tense, will be applied to the circumstances as they arise, so that effect may be given to each Act and every provision according to its spirit, the true intent and meaning.
The approach to the interpretation of s354(2) would be rendered more complicated if it were to be regarded as a “penal” provision. It is arguable that s354(2) can operate against the interests of an accused as well as to the benefit of an accused.[44] However, its most common application, as is proposed in the present case, will be to substitute a conviction for and to sentence for an offence of lesser gravity than the one with respect to which a defendant was convicted at trial. The substitution will take place in lieu of what otherwise would have been orders to allow the appeal and to either order a re-trial or an acquittal.
[44] It appears to empower the Court of Criminal Appeal to substitute a lesser alternative offence also in lieu of dismissing a conviction appeal.
Furthermore, what is not to be forgotten in this context is that s22(1) of the Acts Interpretation Act is to be read “subject to” and is thereby expressly qualified by s22(2). Sub-section 22(2) would appear to be a legislative recognition of an aspect of the common law approach to the construction of penal provisions. It provides that “[s22] does not operate to create or extend any criminal liability”.
An early statement in this country of one approach to be taken with respect to the interpretation of a penal statute is that in Ex parte Purcell.[45] Cohen J adopted the following statement of Lord Esher MR in Tuck v Priester.[46]
If there is a reasonable interpretation which will avoid the penalty in any particular case, we must adopt that construction. If there are two reasonable constructions we must give the more lenient one. That is the settled rule for the construction of penal sections.
Even if one were to apply that earlier approach, a focus on the qualifier “reasonable” might, in any event, lead to a conclusion that the word “jury” where it appears in s354(2) ought be given a meaning broader than its literal meaning. In any event, the modern and now typically adopted approach, at least insofar as the criminal law is concerned, is that stated by the High Court in R v Adams.[47]
No doubt, in determining whether an offence has been created or enlarged, the court must be guided, as in other questions of interpretation, by the fair meaning of the language of the enactment, but when that language is capable of more than one meaning, or is vague or cloudy so that its denotation is uncertain and no sure conclusion can be reached by consideration of the provisions and subject matter of the legislation, then it ought not to be construed as extending any penal category.
Back to s354
[45] (1907) 7 SR(NSW) 432, see also Ex parte Zietch; Re Craig (1944) 44 SR(NSW) 360 at 365.
[46] (1887) 19 QBD 629 at 638.
[47] (1935) 53 CLR 563 at 567-8 (Rich, Dixon, Evatt and McTiernan JJ); and see also Waugh v Kippen (1986) 160 CLR 156 at 164 (Gibbs CJ, Mason, Wilson and Dawson JJ).
Section 354 was enacted in its present form in 1924.[48] The alternative of trial by judge alone for major indictable offences (at an accused’s election) only became available in this jurisdiction in 1984.[49] However, at no time since then has the legislature seen fit to amend the terms of s354 and, in particular, the terms of s354(2) of the Act. It might be inferred from this lack of legislative activity that parliament did not intend s354(2) to have an expanded reach such as also to empower the Full Court to substitute in cases of trial by judge alone. Alternatively, it might be inferred that the legislature has seen no need to make express what should be interpreted as implicit in the existing formulation of s354(2).
[48] Criminal Appeals Act 1924, s7. For the original enactment, see 7 Edw VII c 23,s5.
[49] Section 5 of the Juries Act Amendment Act 1984 repealed the existing s7 of the Juries Act 1924 and replaced it with a new s7 providing for the right to elect to have a trial by judge sitting alone.
Some assistance can be gained from a consideration of s353 of the Act which sets out the powers available to the Court of Criminal Appeal when determining appeals in “ordinary cases”. There is an analogous problem with the statutory language employed in s353(1). Sub-section 353(1) is in the following terms.
The Full Court on any such appeal against conviction shall allow the appeal if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal; but the Full Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
In R v ADW,[50] Doyle CJ (with whose reasons Debelle J agreed) saw no difficulty with applying the statutory language in the context of an appeal from a Judge sitting alone and notwithstanding the use of the term “jury”. After setting out the terms of s353(1) and observing that it was a provision common throughout Australia, the Chief Justice found as follows.[51]
The first of these grounds raises the question of whether, although there is evidence to sustain a verdict of guilty, the jury ought, nonetheless, have entertained a reasonable doubt as to guilt: see M v The Queen (1994) 181 CLR 487 at 492-493 Mason CJ, Deane, Dawson and Toohey JJ; Gipp v The Queen (1998) 194 CLR 106 at 144 Gaudron J, 146-150 Kirby J; Fleming v The Queen [1998] HCA 68; (1998) 197 CLR 250 at [10]-[12] Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
In a case such as this, the first ground, referring to “the verdict of the jury”, directs attention to the decision of the judge on the ultimate finding of guilt, and to the evidence before the judge, and not to the judge’s reasons: Fleming at [26].
In this case it cannot be said that the Judge ought to have entertained a reasonable doubt as to guilt. On the evidence it was open to him to convict. The issue is the significance of the disclosed error in his reasons dealing with the facts and the credibility of M.
[50] [2002] SASC 331.
[51] At [17]-[19].
Whilst the Chief Justice did not find this “first ground” in s353(1) to be made out on the facts before him, his Honour’s reasoning identified the ground as being potentially available notwithstanding that the trial was by judge alone. Furthermore, the discussion occurred under his Honour’s heading “Powers of the Court” and in the context of a discussion of (the earlier referred to) s7(4) of the Juries Act. It is implicit in the reasoning of the Chief Justice that s7(4) and its effect was relevant to the interpretation of the “verdict of the jury” in s353(1) as embracing the verdict of a judge sitting alone.
In P v Police[52] which concerned an appeal from conviction in the Youth Court, Cox J (with whom Perry and Lander JJ agreed) said this.
Section 353 of the Criminal Law Consolidation Act is the common provision in Australia dealing with verdicts and judgments and decisions in jury trials. While there is the obvious difference, in the case of a trial by judge alone, that the judge will have given reasons for his verdict, the Court of Criminal Appeal has on occasions set aside a verdict by judge alone on the grounds that it was unsafe or unsatisfactory. If justification be needed for applying this aspect of the criminal appeal rules to a trial by judge alone it is to be found in s7(4) of the Juries Act 1927 which provides that “the judge may make any decision that could have been made by a jury on the question of the guilt of the accused, and such a decision will, for all purposes, have the same effect as a verdict of a jury.” That was the view taken in New South Wales with respect to similar legislation in R v Kurtic (CCA, 26 February 1996, unreported).
However, his Honour went on to discuss the structure and procedure of the Youth Court and its appeal provisions which he described as “fundamentally different” and more akin to those applicable in the Magistrates Court.
[52] Unreported SASC Full Court, Cox, Perry and Lander JJ, 19 July 2996, S5677 1996, Butterworths Cases 9603154.
There are provisions in the Evidence Act 1929 which expressly refer to the jury and which govern what should or should not be said to a jury in defined circumstances.[53] Most of these sections, by their nature, are predicated on the situation where there are two participants - a judge and a jury - each of which is undertaking its traditional role in a criminal trial. The Court of Criminal Appeal has recently considered the ambit of two such provisions. In R v Haak[54] the Court of Criminal Appeal (Sulan, Kourakis and Stanley JJ) held that s12A (which concerns warnings about uncorroborated evidence of a child) does not apply to trials by judge alone. In R v Bakhuis[55] the Court of Criminal Appeal (Doyle CJ, Kelly and David JJ) held that s34CB (which concerns directions to be given where delay causes a forensic disadvantage) does not apply to a trial by judge alone. In Haak the Court of Criminal Appeal recognised that an ad hoc jury might not be cognisant of the risk or concern in question and should be specifically instructed whereas a judge could be expected to have the required level of knowledge and awareness.[56] In Bakhuis Kelly J, who wrote the leading judgment, recognised that a judge might need to take account of the same matters that a jury would need to be directed about, but was of the view that the language of s34CB did not require a judge sitting alone to expressly warn himself or herself in the terms of the section.
[53] For example, ss9(4), 12A, 13, 13A, 13B, 21, 34CA, 34CB, 34KC, 34L, 34M, 34N and 34R.
[54] [2012] SASCFC 19.
[55] [2012] SASCFC 55.
[56] See Haak at [38]-[39].
Sub-section 354(2) does not purport to address the respective roles of judge and jury in the sense that the Evidence Act provisions do. Sub-section 354(2) is concerned with the ultimate decision of guilty or not guilty once all the evidence is in and once all the required warnings and directions have been given and/or taken into account.
In R v Kurtic[57] the New South Wales Court of Criminal Appeal[58] decided an appeal from a decision of a District Court Judge sitting without a jury. Sub-section 33(1) of the Criminal Procedure Act 1986 (NSW) provided as follows.
A judge who tries a case alone[59] may make any finding which could have been made by a jury on the question of the guilt of the accused person and such finding will, once made by the judge, have, for all purposes, the same effect as a verdict of a jury.
This provision is in materially the same terms as s7(4) of the Juries Act although the New South Wales provision refers to a “finding” whereas the Juries Act provision refers to a “decision”.
[57] [1996] NSWSC 326.
[58] Hunt CJ at CL with whose reasons Grove J and Barr AJ agreed.
[59] Pursuant to s32 of the Criminal Procedure Act.
Hunt CJ at CL, speaking on behalf of the Court of Criminal Appeal, outlined the statutory based powers of the Court of Criminal Appeal as derived from s6 and s8 of the Criminal Appeal Act 1912 for “ordinary cases” (which are analogous to the powers set out in s353 of the Act). His Honour made the following observation, without further discussion and without distinguishing between trials by jury and trials by judge alone.
There are special provisions in s7 which permit the Court to substitute a verdict or a sentence where the appellant could have been found guilty of some other offence than that of which he has been found guilty, but none of the circumstances to which that section applies has any relevance to the present case.
The terms of s7 of the Criminal Appeal Act 1912 are in materially the same terms as s354 of the Act. The inference to be drawn is that the court would have seen no impediment to applying the powers available pursuant to s7 in the case before it (appeal from a trial by judge alone) provided that the circumstances rendered s7 available and appropriate. Cox J (with whose reasons Perry and Lander JJ agreed) in P v Police[60] also accepted that this was the view of the New South Wales Court of Criminal Appeal in Kurtic.
[60] Unreported SASC Full Court, Cox, Perry and Lander JJ, 19 July 1996, S5677 1996, Butterworths Cases 9603154 (and discussed earlier in these reasons).
Markou v R[61] also concerned an appeal to the New South Wales Court of Criminal Appeal following a trial by judge alone. The accused had been found not guilty of recklessly inflicting grievous bodily harm whilst in company but guilty of an alternative offence of assault occasioning actually bodily harm whilst in company. On appeal[62] it was held that there was insufficient evidence to support a finding that the appellant acted in company and the conviction was quashed. However, the Court of Criminal Appeal proceeded to convict of a further alternative offence. In doing so, it purported to exercise the power conferred on the Court of Criminal Appeal by s7(2) of the Criminal Appeal Act and with reference to the High Court decision in Spies v R.[63]
[61] [2012] NSWCCA 64.
[62] Macfarlan JA (with whom on the issue presently under consideration, RS Hulme and RA Hulme JJ agreed).
[63] [2000] HCA 43; (2000) 201 CLR 603.
Macfarlan JA speaking for the Court of Criminal Appeal did not engage in any discussion of the ambit of the power conferred by s7(2) (the equivalent of s354(2)) and, in particular, did not advert to the use of the term “jury” in that sub-section. It would seem that the three members of the New South Wales Court of Criminal Appeal considered it to be beyond argument that s7(2) empowered the Court of Criminal Appeal to enter an, otherwise available, alternative verdict in the circumstances of an appeal from a trial by judge alone as well as from a trial by jury.
R v Wilkes,[64] concerned an appeal following a plea of guilty in the Local Court of New South Wales to an offence of break, enter and steal. The appeal against conviction was based on the submission that the element of breaking into the premises was not supported by the evidence. This was conceded by the Crown. Counsel for the appellant (accused) submitted that the court had power to substitute a conviction for a lesser offence on the basis that there was no doubt as to the guilt of the accused with respect to the lesser offence and that guilt of that lesser offence had been embraced by the plea below. The court was invited to act pursuant to s7(2) of the Criminal Appeal Act which, as has already been noted, is in the same terms as s354(2) of the Criminal Law Consolidation Act.
[64] [2001] NSWCCA 383 (Bell J with whom Powell JA and Sully J agreed).
The Court of Criminal Appeal declined to do so. Bell J, speaking on behalf of the court, said this.[65]
The appellant was not tried on indictment before a judge and jury for the offence of breaking, entering and stealing. He pleaded not guilty to that charge before the Magistrate and was committed for sentencing in accordance with the provisions of s51A of the Justices Act 1902. Section 51A(7) provides that a person sentenced for an offence to which he or she has pleaded guilty in accordance with s51A(1) is deemed to have been convicted on indictment of that offence.
I am not persuaded that the deemed conviction upon indictment serves to admit of this Court substituting a verdict and proceeding to sentence pursuant to the provisions of s7(2) of the CAA.
Mr Button has submitted that it is an odd result to allow that the Court may substitute a verdict for a lesser offence following a trial in which the appellant has put in issue all the elements of an offence but not to allow of a substituted verdict upon a plea of guilty where at all times the appellant has admitted the elements of the lesser offence.
It may be that the result is an odd one but, to my mind, the terms of s7(2) of the CAA are plain and this Court’s powers are circumscribed by the terms of its Act.
The Court of Criminal Appeal went on to find that a miscarriage of justice had occurred, quashed the conviction and remitted the proceedings to the Local Court for further consideration by that court.
[65] At [19] to [22].
The Court of Criminal Appeal in Wilkes found that the power of substitution was not available to it. However, this was on the basis that a “deemed conviction” following a plea of guilty did not fall within the terms of s7(2). However, the fact that the appeal was from a judge sitting alone and that this, of itself, might prevent the application of s7(2) was not raised. It can be inferred that neither the parties nor the court perceived there to be any impediment arising from the fact that, whether or not the conviction was “deemed”, no jury, as referred to in s7(2) of the Criminal Appeal Act, had been involved.
Dicta in two cases in the High Court are of assistance. In Fleming v The Queen[66] the High Court, in the context of an appeal from a trial by judge alone, gave consideration to, inter alia, s33(1) of the Criminal Procedure Act 1986 (NSW) (materially equivalent to s7(4) of the Juries Act in this State) and s6(1) of the Criminal Appeal Act 1912 (NSW) (materially equivalent to s353(1) of the Act in this State). The judgment of the court[67] contained the following.
Several points of construction may be made. First, s33 in any particular case of a trial by judge alone may attract the operation of one or more of the limbs of s6(1) of the Criminal Appeal Act. In all these cases, there will then be the question of the operation of the proviso.
Secondly, the “finding” referred to in s33(1)[68] is not of the same nature as the “findings of fact on which the Judge relied” specified in s33(2).[69] The finding spoken of in s33(1) is one “on the question of the guilt” of the accused and, when made by the Judge the finding has “the same effect as”, that is to say is of a character that would have been expressed in “a verdict of a jury”. Accordingly, a finding in the sense specified in s33(1) is a finding of ultimate guilt or otherwise. The sub-section also encompasses as findings “on the question of the guilt of the accused” such matters as the steps by which s23A of the Crimes Act is applied in cases of substantial impairment by abnormality of mind and s23 is applied in cases of provocation, in each case to require a conviction of manslaughter rather than murder.
Thirdly, the first limb of s6(1) which deals with the unsatisfactory quality of “the verdict of the jury” must now be seen through the prism of s33(1). The first limb will address attention to the evidence upon which the trial Judge acted, or upon which it was open to the trial Judge to act, in reaching the finding as to ultimate guilt. Approached on that footing, is that finding “unreasonable” or one which “cannot be supported”? It is unnecessary on this appeal to determine whether, in such cases under the first limb or in cases under the more broadly stated third limb, the appellate court will intervene, as it was put in passages from decisions of the Court of Criminal Appeal set out earlier in these reasons, only where there is no evidence to support a particular finding, the evidence was all the one way or there has been a misdirection, leading to a miscarriage of justice.
[66] (1998) 197 CLR 250.
[67] Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ at [24]-[26], emphasis supplied and citations omitted.
[68] In s7(4) of the Juries Act (SA) the word “decision” is used rather than the word “finding”.
[69] Sub-section 33(2) of the Criminal Procedure Act (NSW) provides “a judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied”.
The High Court did not see any difficulty in applying the first limb of s6(1) (and therefore s353(1)) which refers to “the verdict of the jury [being] set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence”, to a trial by judge alone. It would appear that the High Court has made explicit what is to be inferred, at least, from the decisions of this Court in P v Police[70] and R v ADW[71] as to the application of the first limb of s353(1) of the Act to trials by judge alone, earlier discussed.
[70] Unreported SASC Full Court, Cox, Perry and Lander JJ, 19 July 2996, S5677 1996, Butterworths Cases 9603154.
[71] [2002] SASC 331.
In Spies v R[72] the High Court had occasion to explore the ambit of s7(2) of the Criminal Appeal Act (NSW) (s354(2) of the Act) although only in the context of an appeal against conviction following a trial by jury. The plurality judgment[73] contains the following.
The power conferred by s7(2) and its counterparts in other jurisdictions is a very useful one which in appropriate cases, will result in a saving of time and expense and avoid the inconvenience and worry of victims and witnesses having to testify once again before a jury. But it is a power which must be exercised with great caution, less the effect of s7(2), in cases where the accused has not elected under s16 of the Criminal Procedure Act 1986 (NSW) to be tried by judge alone, is that trial by judge is substituted for trial by jury. Moreover, there is a real question whether, given the terms of s80 of the Constitution, s7(2) of the Criminal Appeal Act and its Australian counterparts apply in respect of the trial on indictment of any offence against the law of the Commonwealth. Section 68(2) of the Judiciary Act 1903 (Cth) “picks up” State laws concerning appeals in respect of Commonwealth offences, but this is expressed to be subject to s80 of the Constitution.
However, once the Court finds that the jury must have been satisfied of the facts constituting the other offence, there is no reason why the power under s7(2) should be used sparingly. The need for caution is directed to the issue whether it really does appear that the jury were so satisfied. In some cases, it may be that, even though the Court is so satisfied, the legal error may have put the appellant at some forensic, as opposed to legal, disadvantage. In such a case, it would be proper not to substitute a verdict.
[72] [2000] HCA 43; (2000) 201 CLR 603.
[73] Gaudron, McHugh, Gummow and Hayne JJ at [47]-[48], citations omitted.
I make the following observations. Whilst there is nothing in this statement that provides direct support for permitting s354(2) to apply to appeals from convictions following trials by judge alone, there is nothing in the statement that would suggest that it is inappropriate to do so. Indeed and to the contrary, the very reason given as to the usefulness of the power – saving of time and expense and avoidance of inconvenience and worry to victims and witnesses having to testify once again – is equally apposite to trials by judge alone. Further, the two concerns expressed as reasons for an appellate court to proceed cautiously with respect to the power of substitution will ordinarily carry no, or at least less, weight in the case of a trial by judge alone. The first concern is that where there has been no election to proceed by judge alone an application by the appeal court of the power of substitution might be seen as substituting a trial by judge for a trial by jury. This concern simply does not arise where there has been an election. The second concern is to the effect that an appeal court needs to exercise caution in finding that the jury “must have been” satisfied of the facts constituting the alternative offence. This is an obvious and very real consideration given the inscrutable nature of a jury verdict. However, it will be of significantly less concern, as a practical matter, given that a trial judge will provide (usually detailed) reasons for the findings of fact arrived at and the extent to and manner by which these findings have informed the guilty verdict.
I turn to the question of principle. The legislature at the time and by virtue of enacting s354(2) expressed a clear intention that the power to substitute should be available with respect to all criminal trials commenced by information[74] in this State. This power, as conferred on an appellate court hearing an appeal from a trial on an information (that is, for an indictable offence) if properly exercised cannot be said to cause any prejudice to an accused. The necessary requirements before the discretion to substitute might be exercised are:
(i)the appellant has been convicted of an offence;
(ii)the jury could, on the information,[75] have found him guilty of some other offence; and
(iii)on the finding of the jury it appears that the jury must have been satisfied of facts which proved him guilty of that other offence.
[74] At the time s354 was introduced, as s7 of the Criminal Appeals Act 1924, the term “information” was defined to mean “information whereby any person is put upon his trial for any crime or offence at any criminal session of the Supreme Court or before any court of Oyer and Terminer and general gaol delivery” (s3). Section 7 of the Criminal Appeals Act became s354 following the consolidation of various Acts relating to the criminal law effected by the Criminal Law Consolidation Act 1935. By s274(2) of that Act “information” was defined to mean “any criminal information presented to the Supreme Court or a Circuit Court. The current form of s274(2) is “information means any criminal information presented at the Supreme Court or the District Court”.
[75] See Calabria v The Queen (1983) 151 CLR 670 at 676 and Spies v R at [25], to the effect that it is a condition precedent to the exercise of the power that the substituted verdict must be one which the jury could have returned at the trial on the information which was in fact presented.
An accused facing a trial on information is always at risk of being found guilty at trial of an available (either at common law or pursuant to statute) alternative offence, in circumstances where the trier of fact is not satisfied, to the requisite standard, of guilt of an offence charged on the information. If, on appeal, the trier of fact has been found to be wrongly so satisfied as to guilt for the charged offence, the accused will be in no different and no worse position should they be exposed to a power of substitution on appeal no different from that available to the trier of fact had it correctly found the accused not guilty of the charged offence.
The protections available to an accused on appeal, encapsulated in (ii) and (iii) of paragraph [90] above, when applied in accordance with the guidance given by the High Court in Spies[76] are no less than those available at the trial. Is there then a material difference between trials by jury and trials by judge alone that would cause one to conclude that, in the latter case, the protections otherwise available to an accused with respect to the s354(2) power of substitution are in some way compromised? Is there something about trials by judge alone that would lead to this power of substitution being broadened or otherwise applied differently to the detriment of an accused? In my view, these questions should be answered in the negative. Indeed, if anything, the contrary will apply for the reasons given during the earlier discussion of Spies.
[76] [2000] HCA 43; (2000) 201 CLR 603, particularly at [22]-[50].
I can discern no reason why the legislature would have intended s354(2) to remain confined to appeals against convictions from trials by jury after the passage of s7 of the Juries Act giving rise to a power to elect for trials on information in the District Court and the Supreme Court to be conducted by judge alone. Why then did the legislature not see the need to amend s354(2) so as to make this clear? One might just as well ask why the legislature did not see the need to amend various other sections of the Criminal Law Consolidation Act which still refer only to trials by jury, such as, for example, s14, s13A, s19B, s25 and s75. The answer lies in s7(4) of the Juries Act.
If a criminal trial proceeds without a jury under this section, the judge may make any decision that could have been made by a jury and such a decision will, for all purposes, have the same effect as a verdict of a jury.
Insofar as s354(2) is concerned, one of the effects of a verdict of a jury is that it is available to be replaced by an alternative verdict in the event that the requirements of s354(2) are otherwise satisfied. Sub-section 7(4) would therefore appear to give the imprimatur to treating a decision of a judge sitting alone, being one that could have been made by a jury, as having the same effect as a verdict of a jury in this respect. If, in reliance on the authority of s7(4), the phrase “substitute for the verdict found by the jury” can be read as “substitute for the verdict found by the judge”, it is but a short step to also replace the word “jury” with the word “judge” in the two preconditions for the exercise of the discretion to substitute the verdict as set out in (ii) and (iii) of paragraph [90] above. Indeed, this becomes necessary if one is to give effect to parliament’s intention as expressed in s7(4) to the effect that the verdict of a judge is to have “for all purposes” the same effect as a verdict of a jury when endeavouring to construe and apply s354(2).
There are two fundamental propositions of statutory interpretation of significance to the present issue. The first is that the duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have.[77] In this respect, s21 of the Acts Interpretation Act requires in this State the application of the approach to statutory construction described in the rubric that an Act is deemed or considered to be speaking at all times. A particular statutory provision may be seen as ambulatory with its application to vary over time. Developments not in place or not in contemplation at the time of the drafting of a provision may nevertheless be regarded as falling within the intended field of operation of the provision.[78] At the time s354(2) was first enacted it was intended to embrace all trials for indictable offences. The construction propounded by the prosecution does nothing to undermine this intention; to the contrary.
[77] Project Blue Sky at [78].
[78] See the discussion by DC Pearce and RS Geddes in Statutory Interpretation in Australia 6th ed, Butterworths LexisNexis at [4.9]-[4.12]. One question to be asked in this context is: would the legislature have intended to include the activity or thing in the expression if it had known about it?
The second fundamental proposition is that the primary object is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute.[79]
[79] Project Blue Sky at [69].
For the reasons given, I am satisfied that these two principles point clearly to an interpretation of the word “jury” where it occurs in s354(2) as being ambulatory and as referring to the entity charged with the obligation to determine the facts and to assume responsibility for any verdict resulting from that determination of facts. The word embraces a “jury” simpliciter or a judge where charged with this function. The authorities which can be said to bear on this issue lend support to or are consistent with this construction. No authority detracts from it.
Furthermore, s354(2) is not, in my view, to be regarded as operating in a penal way; it does not operate so as to “create or extend any criminal liability”.[80] The appellant in the present case was, at all times prior to the conclusion of the trial, exposed to the same criminal liability for his actions. In no practical sense have the offence(s) to which the appellant was exposed by his conduct been created or enlarged as a result of s354(2).[81] Indeed, if the appellant’s construction of s354(2) were to be accepted the appellant, simply by electing for trial by judge alone, would escape criminal responsibility in circumstances where had the trial been in front of a jury he would not have. I cannot countenance that the legislature is to be seen as having intended such an aberrant result.
[80] See the Acts Interpretation Act, s22(2)
[81] See R v Adams (1935) 53 CLR 563 at 567-8.
My finding that this Court, when hearing an appeal against conviction following a trial by judge alone, has power pursuant to s354(2) to substitute is not the end of the matter. A number of other questions arise on the facts of the present case.
(i)Does the fact that s56 (the offence of indecent assault) was deleted and replaced, but in different terms, on the same day (15 May 2006) within the particularised period of the offending, present a problem similar to that which arose with respect to the charged offences?
(ii)Is it correct to say, as s354(2) appears to require, that the appellant “has been convicted of an offence”? Is it the case that the trial Judge, in “convicting” the appellant of counts 3 and 4 (unlawful sexual intercourse) did not convict of an offence known to the law? If so, was there a conviction “of an offence” as required by s354(2)?
(iii)Ultimately, s354(3) provides the Court with a discretionary power. The question will arise, in any event, whether or not the power should be exercised, in the circumstances of this case, bearing in mind the necessary pre-conditions set out in s354(2) and the considerations identified by the High Court in Spies.
The changes to the terms of s56
Prior to 15 May 2006, s56 was in the following terms.
A person who indecently assaults another should be guilty of an offence and liable to be imprisoned for a term not exceeding 8 years or, where the victim was at the time of the commission of the offence under the age of 12 years, for a term not exceeding 10 years.
On 15 May 2006, s16 of the Statutes Amendment and Repeal (Aggravated) Offences Act 2005 “deleted” the then existing s56 and “substituted” a new s56 in the following terms.
(1)A person who indecently assaults another is guilty of an offence.
Maximum penalty:
(a) for a basic offence – imprisonment for 8 years
(b) for an aggravated offence – imprisonment for 10 years
(2)If the victim of the offence was at the time of the offence under the age of 12 years, the offence is an aggravated offence and it is unnecessary for the prosecution to establish that the defendant knew of, or was reckless as to, the aggravating factor.
It can be seen that, at this point, there had been no change to the elements of the basic offence or to the penalty regime, simply a rewording of the provision.[82] However, on that same day (15 May 2006) and immediately after the Statutes Amendment and Repeal (Aggravated) Offences Act came into operation, Part 3 of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 also came into effect. By s12 of this Act, s56(2) of the Act was amended by the deletion of “12” and the substitution of “14”. In the result, as at 15 May 2006 an indecent assault was aggravated if the victim was under 14 years of age whereas prior to that date it was aggravated if the victim was under 12 years of age. The maximum penalties of 10 years and 8 years imprisonment, respectively, remained unchanged.
[82] Subject to the questions of whether or not there had been a modification of the content of the aggravating feature and of the onus of proof by ss(2) which do not need to be considered here.
On the evidence before the trial Judge it is a reasonable possibility that counts 3 and 4 took place before or after 15 May 2006 during which respective periods s56 was in different terms and the greater maximum penalty applied in different circumstances.
The prosecution submitted that, at all material times, there was the one offence of indecent assault created by the same section of the Act and with the same maximum penalty of 8 years. The prosecution submitted that at all material times the offence comprised the same two elements, that is, an assault, being one committed in circumstances of indecency. According to the prosecution, the fact that there was one offence with these two elements throughout the period of time, as particularised in the final form of the information, was not affected by the fact that the requirements for an already existing circumstance of aggravation were modified.
Section 49 of the Act has been held to create two separate and distinct offences – unlawful sexual intercourse with a person under the age of 14 (s49(1)) and unlawful sexual intercourse with a person under the age of 17 (s49(3)).[83] The prosecution submitted that, in contrast to s49, s56 creates just a single offence of indecent assault with provision for a different penalty in the event that the prosecution can prove a third (aggravating) element (the age of the complainant). Whether or not this is correct does not need to be decided. The question of whether or not a statutorily prescribed circumstance of aggravation will result in a second separate offence[84] (in the context of child pornography offences) has very recently been discussed, inconclusively, by this Court, differently constituted.[85]
[83] R v B [1999] SASC 403 at [15]-[17], [121], cited with approval in R v Wilson (No 2) [2007] SASC 129 at [51], Gray J with whose reasons Duggan and White JJ agreed.
[84] Including a discussion of the proper approach to what will be a question of statutory construction in each case.
[85] F,BV v Magistrates Court of South Australia and Anor [2013] SASCFC 1 at [85]-[98] (Kourakis CJ), [122]-[128] (Gray J) and [164]-[178] (Vanstone J).
For present purposes, it matters not whether s56 creates one offence with a circumstance of aggravation or two separate offences. If attention is confined to the offence of indecent assault in its basic form, there has been no material change to either its elements or its maximum penalty during the whole of the period particularised for counts 3 and 4 on the information. In this respect, the situation is materially distinguishable from that applying to s49(3) of the Act over that same particularised period, as earlier discussed.
The appellant has submitted that the impact of the amendments to s56 might be more significant than as just described. The appellant has drawn attention to s5(3)(a)(iii)C of the Summary Procedure Act 1921. Where the offence of indecent assault is aggravated, that is, the complainant is under 12 or 14 years of age respectively, the offence moves from a minor indictable to a major indictable offence. Certain procedural consequences follow from such a classification including a restriction on the right to elect for a trial by judge alone in the case of a minor indictable offence.[86]
[86] Sub-section 7(2) of the Juries Act.
This may be so. However, we are not concerned with the situation where a person has been charged with the minor indictable offence of (basic) indecent assault or its major indictable aggravated version. Here, the appellant was charged with the major indictable offence of unlawful sexual intercourse and exercised the available right to elect for a trial by judge alone. The fact that this might not have been available had he been charged only with (basic) indecent assault in the first place or the fact that other procedural ramifications might have followed from such a charge, does not call into doubt the power of substitution as the circumstances have developed.
The prosecution has drawn the Court’s attention to the decision of the Western Australian Court of Appeal in Kailis v The Queen,[87] which might be seen as having been decided in a way that belies the reasoning I have just set out. However, I agree with the prosecution’s submission that Kailis, in this respect, is distinguishable.[88]
[87] (1999) 21 WAR 100.
[88] In Kailis, the Court of Appeal held that various counts in an information were bad for duplicity, again, as a result of amendments to the relevant legislation concerning various of the charged offences enacted during the period particularised in the indictment. The objections relied upon by the accused and upheld by the Court of Appeal were more akin to those dealt with earlier in the context of s49(3). With respect to counts 1 and 4 the relevant amendment changed the elements of the offence in question (it was no longer necessary that the child be a female and the age was increased to 16 years – see [10]-[12] of the judgment). As far as counts 6 and 7 were concerned, a new offence of indecent assault was created under a different section of the Act and the maximum penalty was increased (paragraphs [24]-[28] of the judgment). As far as count 8 was concerned, a new offence was created by a new section and the element of age was changed (see [60]-[62] of the judgment).
I see no reason arising out of the amendments to s56 that should preclude the offence of indecent assault in its basic form being substituted for unlawful sexual intercourse pursuant to either the power conferred by s75 of the Act on a trier of fact, or the power conferred by s354(2) of the Act on the Court of Criminal Appeal.
Has the appellant been “convicted of an offence”?
An apparent precondition to the exercise of the power under s354(2) arises from the opening words: “where an appellant has been convicted of an offence”. Can it be argued that given the expanded particulars for counts 3 and 4, the information failed to state an offence known to the law and was to that extent invalid or a nullity rather than merely defective. And if so, is it the case that the appellant will not have been convicted of an offence (known to the law)?
The first question to be considered is whether these opening words operate by way of a precondition to the Court’s jurisdiction or power conferred by s354(2) or whether they are merely descriptive of the occasion when the jurisdiction or power under s354(2) will arise for consideration. In my view, it is the latter. The legislature has given the Court a broad discretion to substitute in circumstances where otherwise a conviction would have to be set aside. By definition, the conviction in question is already under challenge as this is the occasion for the mooted substitution. It would make no sense to distinguish between types of wrongful convictions for the purpose of attracting the power under s354(2). A properly recorded conviction remains valid unless and until set aside on appeal. It is this circumstance that the opening words of s354(2) address. They are scene setting words and used in the same sense as the opening words in s353(1) – “The Full Court on any such appeal against conviction shall…”. The opening words do not call for any enquiry additional or preliminary to the enquiries to be undertaken as part of the exercise of the power conferred by s354(2) itself. If I am wrong in this respect, I nevertheless take the view, for the (brief) reasons that follow, that there has been in this case a conviction for an offence known to the law.
The amendments were allowed notwithstanding the opposition of the appellant, although that opposition was based on grounds different from those now relied on.[89] The amendments should not have been permitted. If they had been refused, presumably the trial would have continued to verdict. The trial Judge most likely would have acquitted the appellant of counts 3 and 4. Almost certainly it would not have been open to the Judge to exercise the power pursuant to s75 of the Act to enter alternative verdicts of indecent assault. His Honour most likely could not have been satisfied that the conduct occurred within the originally particularised timeframe – hence the prosecution application to amend. However, none of that occurred and it would be inappropriate for this Court to operate on the basis of supposition. This Court is obliged to consider the matter only on the basis of the amended information.
[89] At trial the basis of the objection was that as the complainant had not come up to proof on the charge as then particularised and which the appellant had come to meet, it would be unfair and unjust to allow the amendments. This objection was doomed to fail given that the appellant’s defence was that no improper conduct occurred at all.
There is no doubt that counts 3 and 4 as amended referred to an offence known to the law from a time well before the commencement of and throughout the particularised period – unlawful sexual intercourse as proscribed by s49(3) of the Act. However, when read in conjunction with the particulars, the offence as charged only matched the requirements for unlawful sexual intercourse as they stood following the second amendment. The vice is that the evidence does not support a guilty verdict for that offence because it could not be said, beyond reasonable doubt, that the conduct fell within the time frame occupied by that second amendment offence.
Sub-section 277(1) of the Act provides.
Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
Rule 4 of Schedule 3 to the Act provides.
(1)…
(2)A count of an information shall commence with the statement of the offence charged, called the statement of offence.
(3)The statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms, and without necessarily stating all the essential elements of the offence and, if the offence charged is one created by statute, shall contain a reference to the section of the statute creating the offence and, …
(4)After the statement of the offence particulars thereof should be set out in ordinary language in which the use of technical terms shall not be necessary; …
It can be seen that according to Rule 4(3) it will not always be necessary to state all the essential elements of an offence; but this will be subject to the question of any embarrassment or prejudice to an accused.
In the present case, not all of the elements of the offence of unlawful sexual intercourse under s49(3) were set out in the particulars for either count 3 or count 4, insofar as the initial formulation of s49(3) or the first amendment to s49(3) were concerned. In the first case, an element the Crown had to prove was that the complainant was of or above the age of 12 years and in the second case, an element the Crown had to prove was that the complainant was of or above the age of 14 years. However, the particulars (sexual intercourse with the complainant, a person under the age of 17 years) did properly reflect the elements of the offence with respect to the second amendment to s49(3).
Nevertheless, the “statement of offence” in each of counts 3 and 4 properly recorded the offence “unlawful sexual intercourse” and accurately referred to the statutory provision relevant at all material times, that is, s49(3) of the Act. As a consequence, the accused was put on notice of the elements of the offence as they existed from time to time throughout the particularised period. To the extent that the particulars themselves served to omit an essential element, it was otherwise disclosed by way of reference to s49(3). The information described a known offence but with incomplete particulars.
Furthermore, in my view, the terms of the information, as amended, were not such as to mislead or embarrass the appellant. The nature and circumstances of the incident alleged to be the subject of counts 3 and 4 were at all times made plain to the appellant. The appellant knew the case it had to meet.[90]
[90] Cf; R v Phan (2010) 106 SASR 116 at [18]-[36] (Vanstone J with whom Doyle CJ and Layton J agreed) and R v Gould (1995) 184 LSJS 424.
In any event, the Judge found that the complainant was under 17 during the particularised timeframe and that the two acts of sexual intercourse (pertinent to counts 3 and 4) as alleged, occurred. His Honour convicted the appellant of the offence of unlawful sexual intercourse in accordance with the elements of the second amendment. It was this form of the offence (and only this form) to which his Honour directed his attention. His Honour convicted the appellant of an offence known to the law although he did so in error because the evidence was such that he should not have been satisfied beyond reasonable doubt that this form of offence had been committed.
Of course, the convictions for unlawful sexual intercourse must be set aside because the duplicitous or otherwise uncertain nature of the information meant that it was not possible, on the evidence, to reach a finding of guilt beyond reasonable doubt with respect to any of the three forms of the known offence of unlawful sexual intercourse as pleaded. However, in my view, it is still the case that the appellant “has been convicted of an offence” within the terms of and for the purpose of applying s354(2).
Should this Court exercise the power of substitution available to it?
In Spies v The Queen,[91] the High Court considered the ambit and application of s7(2) of the Criminal Appeal Act 1912 (NSW) which is in terms identical to s354(2) of the Act. The plurality judgment[92] referred to Calabria v The Queen[93] to which I have already referred, for the proposition that it is a condition precedent to the exercise of power that the jury could, on the information, have found the accused guilty of some other offence. In other words, the verdict to be substituted must be one which the jury could have returned at the trial on the information which was, in fact, before them. In addition, the authors of the plurality judgment said this.[94]
The words “must have been satisfied of facts” indicate that it must appear to the court that, having regard to the evidence, the conviction on the charge which is quashed necessarily meant that the accused was guilty of acts or omissions which, as a matter of law, constitute another offence. … The court must be able to say that, given the evidence of the trial and what was common ground, the conviction verdict demonstrates that the jury were affirmatively satisfied of those facts which constitute the other offence. …
. . . .
Where the ground for setting aside a conviction is lack of evidence, wrongful admission of evidence, misdirection or failure to direct on an issue in the trial, s7(2) of the Criminal Appeal Act should be taken as applying only where the jury must have been satisfied as to some fact (or facts) underlying the conviction which is (or are) unaffected by the lack or wrongful admission of evidence, misdirection or non-direction, and which constitutes (or constitute) another offence independently of that of which the appellant was convicted. Only then will the Court of Criminal Appeal be able to hold that the jury “must have been satisfied of facts which proved the appellant guilty of that other offence”. It is not enough that the Court of Criminal Appeal thinks that, properly directed, the jury would or might have found the appellant guilty of the other offence, or that the appellant lost the chance of being found guilty on the lesser offence. In cases of convictions quashed by reason of wrongful rejection of evidence, unreasonable verdicts or miscarriages of justice otherwise arising in the course of proceedings, there would seem little scope for the operation of s7(2). Where the Court of Criminal Appeal thinks that the jury’s finding on one element of an offence was unreasonable, it may often be open to find the appellant guilty of a lesser offence. But where the unreasonableness of the verdict depends on the overall quality of the evidence, there seems no room for applying s7(2).
[91] (2000) 201 CLR 603.
[92] Gaudron, McHugh, Gummow and Hayne JJ.
[93] (1983) 151 CLR 670 at 676.
[94] At [27] and [43], citations omitted.
The High Court rejected the English Court of Criminal Appeal approach to the standard of proof required, that is, that the appeal court had to be “sure” that the jury was satisfied of the relevant facts.
[S]ureness of mind is not a standard that this Court has countenanced as expressing proof beyond reasonable doubt. That being so, a Court of Criminal Appeal in this country should not apply a different standard from that which the jury would have applied if they had convicted on the charge intended to be substituted. Thus, s7(2) does not operate unless it appears to the Court of Criminal Appeal to the point of certitude that the jury did find certain acts or omissions and that those acts or omissions, as a matter of law, made the accused guilty of the other offence. … The function of the Court of Criminal Appeal is not to find facts, but to give legal effect to the findings of fact that the jury have expressly made or which are necessarily involved in the verdict of guilty which they have returned.
Moreover, s7(2) only operates where the jury have been satisfied of those facts on evidence properly admitted and where the jury have been properly directed as to the facts which are to be used as the basis for entering a conviction in respect of the other offence… The words “must have been satisfied of facts” mean that the jury must have been properly satisfied of the facts proved by admissible evidence in accordance with proper directions.[95]
[95] Spies at [49]-[50], citations omitted.
It can be accepted with “certitude” based on the reasoning and verdict of the trial Judge in this matter that, insofar as counts 3 and 4 are concerned, his Honour was satisfied beyond reasonable doubt: first, that the complainant was under the age of 17 in each case, second that the appellant caused her to perform an act of fellatio upon him (count 3), and third that the appellant inserted his penis in the complainant’s vagina (count 4). The fact that the complainant was under the age of 17 means that she was unable to consent, in law, to sexual conduct of that nature and, in any event, it can be inferred with “certitude” from his Honour’s reasons that there was no such consent.
It is also clear in my view, and beyond reasonable doubt (but see further below) that the actions of the appellant, in the circumstances as found by the Judge, constituted an assault on the complainant carried out in circumstances of indecency. Therefore, each particularised act amounted to an indecent assault pursuant to s56 of the Act.
It might be argued that cases such as W, JD v Police[96] and R v Salmon[97] stand in the way of such a conclusion. I have set out, earlier in these reasons, the relevant passage from the judgment of Vanstone J in W, JD which includes the relevant passage from the judgment of the Court of Criminal Appeal in Salmon. However, both cases concerned the issue where there was a factual difficulty with whether or not actual penetration occurred and their Honours’ observations must be viewed in this context. This will be the typical case where the substitution of indecent assault might be available, that is, where notwithstanding that penetration has not been established there still has been an assault in circumstances of indecency. As both cases establish, the indecent assault must be part of the “transaction” relied on by the prosecution for the principal charge. A conviction cannot be entered where the indecent assault relied on is clearly “separable in time, place or circumstance from the alleged intercourse”.
[96] [2005] SASC 87; (2005) 91 SASR 189.
[97] [1969] SASR 76.
Neither W, JD nor Salmon stand for the proposition that an act involving penetration (sexual intercourse) can never amount to an indecent assault such that the prosecution must always stand or fall on a charge of unlawful sexual intercourse or rape. Where the problem with such a charged offence is not with an inability to prove penetration but lies elsewhere there is no reason, as a matter of principle, why indecent assault should not be found; the greater act necessarily encompasses the lesser, as illustrated by both Hartley v R[98] and R v Liddy[99] (dealt with below).
[98] Unreported 6 September 1994, SAFC (Prior, Olsson and Perry JJ).
[99] (2002) 81 SASR 22.
In any event, and to put it bluntly, once the acts of fellatio (count 3) and penile vaginal intercourse (count 4) were established, and given the absence of consent (as a matter of law), the appellant must have committed an indecent assault on the way to completing each of the penetrative acts and as part of the same transaction.
A difficulty might arise with substituting indecent assault for a more serious charged offence in circumstances where consent is in issue on the evidence. A difficulty might also arise in circumstances where there is a statutory defence to the more serious offence which has been established on the facts such as, for example, a time limitation within which proceedings for the more serious charged offence must be brought. In the latter situation, the question can arise as to whether the proceedings should be permitted to continue or operate solely as a vehicle to enable a lesser offence to be substituted.[100] Considerations such as these do not apply to the present case.
[100] See, for example, R v Pople [1924] SASR 448, Saraswati v The Queen (1991) 172 CLR 1.
The present case, in many respects, is not dissimilar to the situation which confronted this Court in R v Liddy,[101] an appeal against convictions for multiple counts of sexual offending perpetrated against a number of complainants. Count 15 concerned a charge of unlawful sexual intercourse (penile/anal intercourse). Count 15 was brought pursuant to s49(1) of the Act which, at the time, required proof that the complainant was under the age of 12 years when the incident occurred. The evidence of the complainant was such that a doubt was raised as to whether the incident occurred before he turned 12 or after he turned 12. Mullighan J dealt with the matter in the following way.[102]
[101] (2002) 81 SASR 22.
[102] At [293]-[298], citations omitted. Both Williams and Gray JJ agreed with the reasons of Mullighan J.
However, in my view, this evidence, taken at its highest from the point of view of the prosecution, was not capable of proving beyond reasonable doubt that D was under the age of 12 years when the incident occurred. As that matter is an essential element of the charge, the submission of no case to answer on that ground should have been upheld.
The learned Trial Judge erred in concluding that there was a case to answer which is an error of law. She should have directed the jury to return a verdict of acquittal on this charge at the end of the prosecution case and the appellant should not have been obliged to answer it.
The position is put succinctly by King CJ in The Queen v Prasad at 162:
“The question whether there is a case to answer, which arises in a criminal trial at the close of the case for the prosecution, is a question whether on the evidence as it stands the accused could lawfully be convicted, that is to say, whether there is evidence with respect to every element of the offence charged which, if accepted, would prove that element: May v O’Sullivan; Zanetti v Hill. It is a question of law and if a submission of no case is made it must be ruled upon by the trial Judge: R v George. An erroneous rejection of a submission of no case is an error of law. If there is no case to answer, the judge should direct the jury as a matter of law that there must be a verdict of not guilty and the jury is bound to accept and act on that direction.”
See also Haw Tua Tau v Public Prosecutor and The Queen v Bilick and Starke. I think the law in this State is that upon such an error of law being established upon appeal, a verdict of guilty should be set aside: see The Queen v Johnson. I do not think it is appropriate to look to evidence in the defence case to see if it has made good any deficiency in the prosecution case but I recognise that there are cases where that approach has been adopted. They are set out in the judgment of Perry J in R v Ayles. As no argument to the contrary was addressed to us, I do not think it is appropriate to depart from the decision in Johnson. I mention that this is the approach taken by the Court of Appeal, Criminal Division in England in R v Smith & Ors.
At all events, I do not think there was any evidence in the appellant’s case which was capable of establishing beyond reasonable doubt that the incident occurred when D was under the age of 12 years.
The charge should not have been left to the jury. The verdict of guilty on this count should be set aside.
The learned Trial Judge left the charge to the jury and directed them in clear terms that if they were satisfied of all of the other elements of the offence beyond reasonable doubt but not the element of age, they must return a verdict of not guilty and consider the alternative charge of indecent assault. The verdict of guilty clearly indicates that the jury were satisfied beyond reasonable doubt that anal sexual intercourse occurred on this occasion and accepted the evidence of D. As will be seen, there is no reason to entertain a doubt about the credibility, reliability and accuracy of D’s evidence as to the sexual conduct of the appellant towards him. The act of anal sexual intercourse clearly constitutes indecent assault. No argument was addressed to us that an alternative verdict of indecent assault was not available and no submission was made to the learned Trial Judge to the contrary. There is authority for leaving the alternative verdict to the jury: Hartley v R applying s 75 of the Criminal Law Consolidation Act 1935 in its terms at that time which permitted an alternative verdict of indecent assault. It was not suggested that in its present terms, s 75 alters the position. On Count 15, there should be a verdict of guilty of indecent assault.
It can be seen that his Honour was of the opinion that the charge in question should not have been left to the jury and that a directed verdict of acquittal should have been returned by the jury. Nevertheless, and notwithstanding this error of law by the trial Judge in failing to rule there was no case to answer with respect to count 15, the court was still prepared to accept the jury’s verdict as demonstrating that it was satisfied beyond reasonable doubt that anal sexual intercourse occurred on the occasion in question. In the circumstances, the court entered a verdict of not guilty for the charged offence but proceeded to substitute a verdict of guilty for the alternative offence of indecent assault. Whilst Mullighan J did not expressly state the statutory authority upon which he acted, it can only have been pursuant to s354(2) as was identified by Williams J.[103]
[103] At [463].
If the trial Judge in the present case had been faced with a no case to answer submission at the close of the prosecution case and following the amendment to counts 3 and 4 on the information, such an application should have been allowed. No such application was made and the matter proceeded to determination by the Judge as trier of fact. The fact that an application for no case to answer, if made, most likely would have and should have been granted at trial does not, on its own, prevent this Court from exercising the power under s354(2) to substitute, given the reasoning and approach of the earlier Full Court in R v Liddy where such an application had been made and wrongly refused.
I am satisfied that the appellant will have been caused no prejudice and that there will be no miscarriage of justice by the substitution in this Court of verdicts of guilty of indecent assault with respect to counts 3 and 4 on the information.
Proposed orders
I would make the following orders.
(i)The appeal with respect to count 1 on the information be dismissed.
(ii)The appeal with respect to count 2 on the information be dismissed.
(iii)The appeal with respect to count 3 on the information be allowed in part with the verdict of guilty of unlawful sexual intercourse pursuant to s49(3) of the Criminal Law Consolidation Act 1935 quashed but a verdict of guilty of the offence of indecent assault pursuant to s56 of that Act to be entered in substitution.
(iv)The appeal with respect to count 4 on the information be allowed in part with the verdict of guilty of unlawful sexual intercourse pursuant to s49(3) of the Criminal Law Consolidation Act 1935 quashed but a verdict of guilty of the offence of indecent assault pursuant to s56 of the Act to be entered in substitution.
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