R v Joyce - [2002] NTSC 70

The Queen v Joyce [2002] NTSC 70
PARTIES:THE QUEEN

v
JOYCE, ANTHONY THOMAS

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL
FILE NO:No. 20200574
DELIVERED:  17 December 2002
HEARING DATES:  9–13 December 2002, 16–17 December 2002
RULING OF:  ANGEL J
CATCHWORDS:

CRIMINAL LAW – Admissibility of Evidence – whether DNA of accused found on complainant’s clothing admissible – alternate hypothesis for DNA’s presence consistent with innocence existed – DNA presence by secondary transfer – no reliable foundation for jury to properly assess the explanation for presence of DNA – DNA of no probative value and inadmissible
Legislation:

Evidence Act (NT) s26L

Cases:
R v Juric
[2002] VSCA 77, approved

R v Stokes
[2000] NTSC 12, approved

R v Swaffield
(1998) 192 CLR 159, R v Lucas (1992) 2 VLR 109, referred to

R v Percerep
(1993) 2 VLR 109, referred to

R v Van Hung Tr
an (1990) 50 A Crim R 233, referred to

R v Jarrett
(1994) 62 SASR 443, referred to
CRIMINAL LAW – Admissibility of Evidence – whether school counsellor’s report was a protected as a confidential communication by the Evidence Act (NT) – Evidence Act (NT) protects communication between counsellor and alleged victim of sexual assault – counsellor must have some substantial skill acquired by training or experience – school counsellor held bachelor’s degree in social work – assessment of victim’s emotional condition fits within broad definition of treating – treatment need not be from first interview through to cure – report was protected by the Evidence Act (NT)
CRIMINAL LAW – Practice and Procedure – subpoena of confidential communication – leave of the court is needed before a confidential communication is subpoenaed – leave must be sought only after the commencement of the hearing or trial – leave can only be granted in respect of evidence that has substantial probative value – a statement made out of court between two parties in the absence of the accused can only be of substantive probative value by some admission against interest or the like – a confidential communication related to an issue of credit cannot be the subject of leave
Legislation
:

Evidence Act (NT) s 56, 56A, 56B, 56C, 56D, 56E

Cases
:
R v Lee
(2000) 50 NSWLR 289, referred to

Atlas v DPP
(2001) 3 VLR 211, distinguished

Words and Phrases:
“confidential communication”

“counselling”

“treating”

“to adduce evidence”

“to produce evidence”

CRIMINAL LAW – Practice and Procedure
– amendment of indictment – indictment charged accused with committing an offence in private – evidence disclosed that another person was present asleep at the time of the alleged offence – at law the alleged offence was done in public – at a late stage in the proceeding Crown sought to amend indictment to change “private” to “public” – Crown sought to amend indictment to reflect a new charge – under s 312 it is permissible to substitute an old charge for a new charge – there was no issue between the parties as to the differences between public or private – the changes did not materially change the allegation – the accused had known throughout the nature of the charges – there was no prejudice to the accused – amendment allowed – accused was re-arraigned on the amended charge in the presence of the jury

Legislation:

Criminal Code (NT) s 126, 127, 128, 312
Cases:

Go v R
(1990) 73 NTR 1, followed

Fahey, Solomon and A
(2001) 121 A Crim R, approved

Johal v Ram
(1972) 56 CAR 348, referred to

Maher v R
(1987) 163 CLR 221, referred to

Texts:

Halsbury’s Laws of Australia, paragraph 130-12630
REPRESENTATION:
Counsel:
Crown:R Wild QC
Accused:M Shaw QC
Kormilda College  S Gearin
Solicitors:
Crown:Director of Public Prosecutions
Accused:NT Legal Aid Commission
Kormilda College  Solicitor for the NT
Judgment category classification:           B
Judgment ID Number:  ang200214
Number of pages:  23

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Joyce [2002] NTSC 70
No. 20200574
THE QUEEN

v

ANTHONY THOMAS JOYCE

CORAM: ANGEL J

EX TEMPORE REASONS FOR RULINGS

The following are my ex tempore reasons for certain rulings made during the trial of the accused.
11 December 2002
The Admissibility of DNA Evidence
This is an application pursuant to s 26L of the Evidence Act to determine the admissibility of certain DNA and other forensic evidence upon the trial of the accused charged on the first count of unlawful sexual intercourse without consent and the second count of doing an act of gross indecency in public with a boy under the age of 14.
The offences are alleged to have occurred at the residential premises occupied by the accused when the complainant and another youth were sleeping there. It is common ground that forensic examination disclosed the presence of some DNA material compatible with that of the accused on the complainant’s shorts, underpants and shirt. It is also common ground that the presence of DNA material could be explained by process of secondary transfer, whereby the clothing of the complainant had come into contact with furniture, floor or carpets in the accused’s place of residence, thereby attracting the DNA material of the accused likely to be present at his premises. Furthermore, secondary transfer may also taken place where one garment containing DNA material came into contact with another.
The Crown allege that DNA on the complainant’s clothing is probative of facts in issue and is consistent with guilt. The complainant gave evidence that he slept clothed on the floor of the accused’s premises, changed clothes after undressing and showering and handed a mixed bag of his clothing to police. The investigating police officer, Sergeant Lade, gave evidence that the complainant’s clothing was handed to him bundled together in a knapsack. It is common ground therefore, that there was ample opportunity for secondary transfer of the accused’s DNA to the clothing of the complainant.
It is clear that there exists an alternate hypothesis for the presence of the accused’s DNA on the clothing of the complainant consistent with innocence. The accused’s DNA may have made its way onto the complainant’s clothing by secondary transfer, rather than, as the Crown assert, during the commission of the alleged offence. Furthermore, the Crown has not lead expert evidence to counter this hypothesis, nor laid any scientific basis for preferring one hypothesis over another.
Defence counsel objected to the DNA on three broad bases. First, it was submitted that the DNA results were unreliable on the basis that the forensic laboratory carrying out the tests was not accredited and that the tests were not carried out in accordance with testing procedure and were sub-standard. Secondly, it was submitted that there was no proper scientific basis which could be left to the jury to explain the presence of the accused’s DNA on the complainant’s clothing. Thirdly, it was further submitted that the DNA results were not probative of any fact in issue and were in any event prejudicial to the accused, such prejudice outweighing any probative value.
I do not accept the first ground of objection. The Crown witness, the forensic scientist Ms Hibble, struck me as a careful, professional and credible witness. The differences between her evidence and that of the defence’s expert Dr McDonald on the aspects of standards, procedures and validity of the test results are eminently matters for a jury to weigh and resolve.
However, the second ground for the objection to the DNA evidence is made out. The Crown have not excluded the exculpatory explanation of secondary transfer for the presence of the accused’s DNA, or DNA compatible with the accused, on the clothing of the complainant. It would be wrong for a jury to rely on the DNA evidence as proof of guilt. Further no evidence was called by the Crown to lay a scientific foundation for the conclusion that the presence of the DNA on the clothing of the complainant was explicable on an inculpatory rather than exculpatory basis. There is no reliable foundation upon which a jury could properly assess the explanation for the presence of the accused’s DNA on the complainant’s clothing. The DNA results were open to competing hypotheses, one inculpatory the other exculpatory, neither of which could be preferred to the other on any scientific basis in evidence. I agree with the recent decision of the Victorian Court of Criminal Appeal in R v Juric [2002] VSCA 77 at paragraph 18:
“The profiling of bodily fluid to obtain DNA ‘typing’, and the comparison of that ‘typing’ with the known DNA profile of the accused, is clearly a proper subject for expert evidence. But, as in the case of all expert evidence, the opinion expressed is only as strong as the factual or scientific foundation upon which it is based. In a criminal trial where the Crown proposes to lead expert opinion evidence which, if accepted, is of critical importance to the case which it is making, the jury must be able to evaluate the strength of that evidence by reference to its factual or scientific basis. Whether it can properly do so is a matter initially for the judge in determining whether that evidence is admissible. The evidence will not necessarily become inadmissible simply because experts express differing opinions upon the factual or scientific bases in respect of which their opinions are expressed. However, the admissibility of such evidence must depend upon the judge's satisfaction that the jury can, on the basis of material put before them, properly and reasonably evaluate the differing opinions expressed and make a responsible determination as to which of them is to be preferred.”

The evidence is thus of no probative value and therefore inadmissible as proof of guilt.
In any event I am of the view the prejudicial effect of the DNA evidence would outweigh any probative value, even if admissible as circumstantial evidence (see, for example R v Swaffield (1998) 192 CLR 159; R v Lucas (1992) 2 VLR 109; R v Percerep (1993) 2 VLR 109; R v Van Hung Tran (1990) 50 A Crim R 233; cf R v Jarrett (1994) 62 SASR 443). On that basis I agree with the reasons given by Mildren J in the unreported case of R v Stokes [2000] NTSC 12, particularly at paragraphs 12-14.
In relation to the second count there remains a question of the admissibility of alleged semen stains which are said to be present on a pillow used by the complainant within the premises of the accused. The evidence was that certain tests on the pillow disclosed a semen stain. Further tests disclosed DNA on the pillow, but an identity from that semen could not be established.
The admissibility of the pillow evidence was objected to on the basis that it was simply speculative. There was evidence given at the committal both by the witness T, and also by the complainant, as to each masturbating within the premises. That is, each accused the other of masturbating. Each denied the other’s allegation.
In concurrence with the submissions of Mr Wild QC for the Crown, the evidence of semen stains is a matter which should be left to the jury. The jury may well accept the denials of each of the witnesses and find that no masturbation took place at the premises. The semen stains are in a completely different category from the other DNA evidence. There is no innocent explanation, innocent in the sense of non-sexual activity, to explain the presence of semen stains in a place where, according to the complainant, sexual activity by the accused did take place. There was some evidence given on the voir dire of false positives for the test for semen. There was evidence that certain things give rise to false positives in the test for semen, that is, certain other substances (such as hair gel, certain vegetables, vaginal secretions) may also give a reading similar to that of semen. However, in the present case there is no evidence that gives an alternative explanation for the presence of semen on the pillow case. It seems therefore, the semen stain is admissible and should be left for the jury to decide what to make of it.
12 December 2002
The Application to Inspect the School Counsellor’s Report
The defence sought and subpoened a number of the complainant’s school records. Initially the complainant’s primary school, was subpoenaed but later having learnt his records had been transferred to a high school, the defence subpoenaed Kormilda College. It was only after the trial had commenced, that the defence learned of a school counsellor’s report contained within the school records. Amongst those school records brought to Court by the College’s principal was a sealed document containing what was described as a confidential communication between the school counsellor and a student of the College, the complainant in the present case.
The defence sought to inspect the counsellor’s report on a number of bases. Counsel for the College opposed such inspection on the grounds that the report fell within a category of those confidential communications protected by operation of Part 6A of the Evidence Act. The relevant parts of the Act provides:
56.     Definitions
In this Part –
…
"confidential communication" means –
(a)a communication, whether oral or written, made in confidence by a victim to a counsellor or to a victim by a counsellor in the course of the relationship of counsellor and client and includes –
(i)a communication that is not made in connection with the sexual offence or alleged sexual offence or a condition arising from the sexual offence or alleged sexual offence; and
(ii)a communication made in the presence of a parent or carer of the victim or any other person who is present to facilitate communication between the victim and the counsellor or to otherwise further the counselling of the victim;
(b)a communication, whether oral or written, made about the victim to the counsellor by the parent, carer or other person referred to in paragraph (a)(ii) or by the counsellor to the parent, carer or other person;
(c)a communication referred to in paragraph (a) or (b) that is made before or after the acts constituting the sexual offence committed against the victim occurred or are alleged to have occurred;
(d)a record (including an electronic record) kept by a party to a confidential communication or any other person of the confidential communication or of any observation, opinion, advice, recommendation or other matter relating to the confidential communication; or
(e)    part of a confidential communication;
"counsellor" means a person who is treating a victim for an emotional, psychological or psychiatric condition;
…
"party to a confidential communication" means –
(a)the victim to whom the confidential communication relates;
(b)the counsellor to whom or by whom the confidential communication is made; or
…
"victim" means a victim or alleged victim of a sexual offence.

56A.    Application of Part
(1)     Subject to subsection (2), this Part applies in relation to a confidential communication whenever made.
(2)     This Part applies in relation to the following criminal proceedings:
(a)     committal proceedings in respect of a sexual offence;
(b)     the hearing of a charge for a sexual offence;
(c)     a trial in respect of a sexual offence,
where those proceedings are commenced after the commencement of this Part, regardless of when the offence is alleged to have been committed.
(3)     For the purposes of subsection (2) –
(a)committal proceedings commence on the committal mention date;
(b)the hearing of a charge commences on the taking of a formal plea from the accused; and
(c)     a trial commences on the arraignment of the accused.

56B.    Protection of confidential communications
(1)     A confidential communication is a privileged communication to the extent provided by this section.
(2)     Evidence that discloses a confidential communication –
(a)is not to be subject to discovery or any other form of pre-hearing or pre-trial disclosure or inspection;
(b)     is not admissible in committal proceedings; and
(c)is not to be adduced or produced as evidence at the hearing of a charge or at a trial except with the leave of the Court.

56C.Notice of intention to apply for leave to adduce or produce evidence of confidential communication
A party to criminal proceedings who intends to apply for leave to adduce or produce evidence of a confidential communication must give reasonable notice in writing of that intention to –
(a)     the Court;
(b)     each other party to the proceedings; and
(c)each party to the confidential communication who is not a party to the proceedings.

56D.    Procedural matters relating to application for leave
(1)     An application for leave to adduce or produce evidence of a confidential communication is to be heard in the absence of the jury (if any).
(2)     A party to the confidential communication may appear at the hearing of the application for leave if the party –
(a)is not also a party to the criminal proceedings in which the evidence is sought to be adduced or produced;
(b)     is unlikely to be a witness in those proceedings; and
(c)     is given leave by the Court to appear at the hearing.
(3)     If the evidence to which the application for leave relates is a document or record, the Court may order that the document or record be produced to it and may inspect the document or record but the Court must not make the document or record available to, or disclose its contents to, the applicant for leave.
(4)     For the purposes of determining the application for leave, the Court may order the counsellor –
(a)     to provide written answers to questions;
(b)to produce documents or records relating to the confidential communication; or
(c)     to appear for oral examination.
(5) Evidence that is not to be adduced or produced in a criminal proceeding because of section 56A(2) is not admissible in the hearing of an application for leave.

56E.Giving leave to adduce or produce evidence of confidential communication
(1)     A Court must not give leave to adduce or produce evidence of a confidential communication unless satisfied –
(a)that the evidence will, either by itself or together with other evidence that has been or will be adduced or produced, have substantial probative value in respect of a fact in issue;
(b)that other evidence of a similar or greater probative value in respect of the matters to which the confidential communication relates is not available; and
(c)that the public interest in preserving the confidentiality of confidential communications and protecting the victim from harm is substantially outweighed by the public interest in admitting into evidence information, or the contents of a document or record, that is of substantial probative value.
(2)     Without limiting the matters the Court may take into account for the purposes of subsection (1)(c), the Court must take into account the likelihood, nature and extent of the harm that could be caused to the victim if the evidence is adduced or produced.
(3)     In giving leave to adduce or produce evidence of a confidential communication, the Court may –
(a)allow evidence of part only of the confidential communication to be adduced or produced; or
(b)specify the manner in which the evidence is to be adduced or produced.
(4)     The Court must state its reasons for giving or refusing to give leave to adduce or produce evidence of a confidential communication.
Counsel for the accused argued that the Act did not apply to the relevant document. Argument turned on the definition in s 56 of the term “counsellor”. Defence counsel argued that the school counsellor was not a counsellor pursuant to the definition in the Act, and therefore the document was not a confidential communication protected by the Act.
The term “confidential communication” is defined in s 56 to mean communication whether oral or written, made in confidence by a victim to a counsellor or to a victim by a counsellor in the course of a relationship of a counsellor. Victim is defined in s 56 as a victim or alleged victim of a sexual offence. In the present case the complainant is a victim as defined. The term “counsellor”, found within the definition of confidential communication, is separately defined to mean a person who is treating a victim for an emotional, psychological or psychiatric condition.

In support of her argument Mrs Shaw QC for the defence relied on the New South Wales Court of Criminal Appeal decision of R v Lee (2000) 50 NSWLR 289, and in particular in a passage of the judgment of Heyden JA at pages 295-296:
“Turning then to the difference between the defendant and the complainant in relation to the second argument propounded by the defendant, it seems to me that the meaning of “counselling, giving therapy to or treating the counselled person for any emotional or psychological condition” must depend significantly on the meaning of “any emotional or psychological condition”. An emotional condition is a state of consciousness turning on emotions like pleasure, pain, desire, aversion, surprise, hope, joy, sorrow, fear or hate (as distinct from cognitive and volitional states of consciousness) which reveals or reflects some defect or illness or disease or abnormality. Similarly, a psychological condition refers to a particular condition of health - a state of health which is poor or abnormal or diseased or otherwise defective from the emotional or psychological point of view. Psychology is the science of mind and of mental states and processes; a psychological condition is a state of mind in which there is some defect or illness or disease or abnormality in the victim's mental states and processes. Therapy is the curative medical or psychiatric treatment of diseases, disorders and defects and is administered by a therapist, being a person trained to give therapy by physical, psychological or psychiatric methods. To treat an emotional or psychological condition is to deal with it by examination, diagnosis, application of remedies, care and otherwise in order to relieve or cure it. While “counselling” can have quite wide meanings, and the argument propounded on behalf of the complainant appealed to them, in this context the word means advising with a view to relieving or curing an emotional or psychological condition from which the counselled person is suffering. In this sense a counsellor must possess some substantial skill acquired by training or experience. Accordingly, the expression “counselling, giving therapy to or treating the counselled person for any emotional or psychological condition” refers to the provision of expert advice and procedures by persons skilled, by training or experience, in the treatment of mental or emotional disease or trouble. The expression does not include persons who merely seek to assist others suffering from an emotional or psychological condition. A confidante or friend or relative does not, by reason of those circumstances alone, fall within s148(4)(a).”
While “counselling” can have quite a wide meaning I note that word does not appear in our legislation. In this context, the word “counselling” means advising with a view to relieving or curing an emotional or psychological condition from which the counselled is suffering. In this sense the counsellor must have some substantial skill acquired by training or experience. The admitted facts before me are that the person involved in the present case was employed by Kormilda College as a school counsellor and held a Bachelor’s degree in Social Work.
It seems to me that the word “treating” in the definition of counsellor in s 56 ought to be given a broad meaning and certainly includes an assessment of the emotional condition of the student. The document involved in this case, which records a confidential communication between counsellor and the student is a document which discloses an assessment of the emotional condition of the complainant. In my opinion an assessment of emotional condition fits within the broad definition of treatment. Treatment of course does not have to mean from A to Z, that is, from first interview right through to cure. It can be any step along the way. It seems to me that an initial assessment of the problem is certainly included in the word ‘treating’. I therefore rule that the Act applies.
The second part of the argument turned on what is meant by s 56B(2) which relevantly reads:

56B. Protection of confidential communications
(1)     A confidential communication is a privileged communication to the extent provided by this section.
(2)     Evidence that discloses a confidential communication –
(a)is not to be subject to discovery or any other form of pre-hearing or pre-trial disclosure or inspection;
(b)     is not admissible in committal proceedings; and
(c)
is not to be adduced or produced as evidence at the hearing of a charge or at a trial except with the leave of the Court.
Particular notice should be paid to words in the expression “evidence that discloses a confidential communication”. In my opinion, although the section is poorly worded, what is at issue here is the contents of a confidential communication including any evidence relevant to a case constituted thereby. The evidence that the section is addressing is evidence of the contents of a confidential communication that may or may not constitute evidence in a case. Section 56B is itself dependent on the requirements of s 56E(1)(a) which provides:
56E.Giving leave to adduce or produce evidence of confidential communication
(1) A Court must not give leave to adduce or produce evidence of a confidential communication unless satisfied –
(a)that the evidence will, either by itself or together with other evidence that has been or will be adduced or produced, have substantial probative value in respect of a fact in issue;
It is quite clear that the intention of the legislation is to restrict leave which could be granted. Leave can only be granted in respect of evidence that has substantial probative value in respect of a fact in issue in the case. In this case there is a statement made out of Court between two parties in the absence of the accused. The only way that such a statement can become evidence of substantive probative value in respect of a fact in issue is by some admission against the interest or the like. In other words a confidential communication related to an issue of credit cannot be the subject of leave.
During argument I was referred by counsel to the Victorian decision of Bongiorno J in Atlas v DPP (2001) 3 VLR 211. That case discussed the operation of similar Victorian legislation. At page 218-221 Bongiorno J said:
“Section 32 (of the Evidence Act 1958 as amended by the new Victorian provisions) provides that evidence is not to be adduced in a legal proceeding if it would disclose a confidential communication, or the contents of a document recording a confidential communication, unless the court grants leave.
…
The prohibition contained in s32C is a prohibition on adducing evidence of a particular kind. Thus the prohibition is concerned only with evidence, not with information which is not evidence but which is nevertheless collected, exchanged or processed in the course of a legal proceeding …
… for present purposes, the phrase “adduced in a legal proceeding” is completely inapt to describe the production of documents to a court in response to a subpoena for production or, for that matter, the production of documents to a party for inspection following discovery (including pre-action or preliminary discovery, and significantly, third party discovery).
…
Although a subpoena for production is defined by reference to documents produced “for evidence” (r 42.01 of the Rules of Civil Procedure) persons producing documents pursuant to a subpoena will often not be witnesses and the documents they produce will not be tendered or, to use the words of s32C, not “be adduced in a legal proceeding’ unless that phrase has a much wider meaning than the words suggests.”
In my opinion the argument based on Atlas is misconceived. That case dealt with Victorian legislation that only referred to the “adducing of evidence”. That case drew a distinction between evidence adduced in court and pre-trial discovery of documents which had the potential to be adduced as evidence. However, the Evidence Act (NT) speaks of adducing or producing evidence. To adduce evidence means to call the evidence at trial, to tender it by way of documents (as in Atlas). In contrast, to produce the evidence is something different. To produce includes production on subpoena, or some other form of pre-trial disclosure. Section 56B(2) prevents the issuing of subpoenas or discovery or any other form of pre-hearing or pre-trial disclosure or inspection of documents at all. It is simply not available. The document is inadmissible at committal proceedings. The only way a document can come before the Court and be inspected is by leave after the commencement of the hearing or at trial, which commences on the arraignment of the accused. Thus an accused person is protected. If it becomes apparent to those advising an accused that a complainant in a sexual offence had been receiving counselling, the appropriate course would be to seek leave of the court to issue subpoenas.
It is apparent that the intention of the legislation is to give the Court full control of the confidential communication, both as to when it is subpoenaed and then to whom access should be granted, and ultimately whether it should find its way into evidence.
Those advising the accused ought not have subpoenaed this document without leave of the Court. I note s 56C also uses the expression “adduce or produce” and provides that notice to the Court, to the parties to the proceedings and to each party to the confidential communication must be given before leave to issue a subpoena may be granted.
In these circumstances, the Evidence Act applies to the document in question for the above reasons. Further, the production of the document to the Court must be by leave and at present a proper application for leave has not been made. Furthermore, having inspected the document myself pursuant to s 56D(3) it is clear that the document has no substantive probative value in respect to any fact in issue and that an application for leave to produce or adduce would in any event inevitably fail. For these reasons the application is dismissed.
17 December 2002
Application to Amend Indictment Pursuant to s.312
This is an application to amend the indictment pursuant to s 312 Criminal Code (NT), which provides:
312.   Order for amendment of indictment
(1)     Where, before trial or at any stage of a trial, it appears to the court that the indictment is defective or that there appears to be a variance between the indictment and the evidence, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case if it is shown that the required amendment can be made without injustice.
(2)     Where an indictment is so amended a note of the order for amendment shall be endorsed on the indictment and the indictment shall be treated for the purposes of the trial and for the purposes of all proceedings in connection therewith as having been presented in the amended form.
Towards the completion of defence counsel’s closing address to the jury, the Crown sought to amend count two of the indictment. The second count upon which the accused was arraigned at the outset of the trial was on a charge that:
On 13 January 2002, at Darwin in the Northern Territory of Australia, he committed an act of gross indecency in private with M who was not then an adult and further that M was under the age of 14 years, contrary to section 128(1)(b) and (2) of the Criminal Code. [emphasis added]
During the course of evidence it became apparent that another person T, apart from the accused and the complainant, was present albeit asleep, in the room in which the offence is alleged to have occurred. The offences contained in the indictment are drawn from Part V of the Criminal Code entitled “Acts injurious to the public in general”. The phrases “in public” and “in private” are defined in s 126:

126. Definitions
In this Division –
"in private" means with only one other person present and not within the view of a person not a party to the act and "in public" means with more than one other person present or within the view of a person not a party to the act;
In light of the evidence and given the definition of “in public”, as a matter of law according to the Crown case the offence was committed in public. The Crown applied to amend the charge to read that the act of gross indecency with the complainant occurred in public, rather than in private, and that the charge should now read that it is contrary to section 127(1)(b) and (2) of the Criminal Code, rather than contrary to s 128(1)(b) and (2).
Sections 127 and 128 are similar offences. Section 127 makes it a crime for a male to do an act of gross indecency to another male in public, regardless of whether the other male is an adult. Section 128 makes it an offence for a male to do an act of gross indecency to another male not yet an adult whilst in private. Both sections are aggravated if the other male is less than 14 years old. The penalties for both sections are the same. In this case it is common ground that the accused is a male adult and the complainant is a male who had not yet reached the age of 14 years at the time of the alleged offence.
The application to amend is opposed by defence counsel who, amongst other grounds, submitted that the effect would not be an amendment but rather a substitution of a new charge altogether, a result which it was submitted was not permitted by s 312.
The operation of s 312 Criminal Code was explained by the Northern Territory Court of Criminal Appeal’s decision in Go v R (1990) 73 NTR 1, where Asche CJ said at 5:
“Section 312 of the Criminal Code, which is modelled on s 5(1) of the English Indictments Act 1915 gives wide powers of amendment and, inter alia, permits the amendment of defective indictments "at any stage of the trial". The power to amend is very wide: Johal v Ram (1972) 56 CAR 348.”
In the same case I said at 25-26:
“I agree with the learned Chief Justice that s.312 of the Criminal Code is not, as was submitted, to be read down by reference to other sections of the Criminal Code … but rather is to be read as conferring a wide power of amendment exercisable at any time during the trial, subject always, of course, to there being no injustice as a consequence … The power to amend may be resorted to, it seems to me, however wanting the indictment.”

And further on the same page I said:
Mr Mildren QC for the applicant submitted that s.312 did not permit an amendment whereby a more serious offence was substituted for a lesser offence. He argued that the indictment in its original form alleged the offence of stealing simpliciter and that the amendment allowed by the learned trial judge impermissibly substituted the more serious offence of robbery. I have already said that I think the indictment as originally drawn charged robbery, but even if the charge had been stealing as contended, there is nothing, injustice to the accused apart, which prohibits such an amendment; in my view, such an amendment is enabled by the wide terms of s.312 of the Criminal Code.

Go’s case has been referred to subsequently by the Queensland Court of Criminal Appeal in Fahey, Solomon and A (2001) 121 A Crim R 390 where Thomas JA at 396-397 said:
In Go v The Queen (a decision of the Northern Territory Court of Criminal Appeal) the court confirmed the correctness of a grant of leave to amend the indictment on the sixth day of a trial. In an intended charge of robbery, the indictment failed to allege the use of violence to prevent or overcome resistance. The decision might at first glance seem inconsistent with McGoldrick, but it is to be remembered that no application was made to amend the indictment in McGoldrick, and the court did not deal with the question whether an amendment might have been allowed. In Go the accused was at material times under the impression that she had been charged with the more serious charge of robbery rather than mere stealing. The court saw no injustice in permitting an amendment to take the charge “up” rather than “down”. The decision appears to have been based essentially upon the fact that “neither the accused nor her counsel was ever under any deception as to what the real allegations were. In many cases it may well be a very important matter bearing on the question of injustice if the charge is amended upward. But I do not think it applies here.” The court also noted that “it took no one by surprise and the evidence upon which the Crown relied had been foreshadowed and then called by the learned Crown Prosecutor.” There are some differences between the relevant provisions of the Criminal Code Act 1983 (NT) and those of the Criminal Code, but I do not think that these would have produced any different result in this State.”

Go is also referred to in Halsbury’s Laws of Australia in paragraph 130-13630, which reads:
“The indictment may be amended at anytime during the trial unless it would cause injustice, although the powers to amend differ between jurisdictions. [footnote 7]”

In footnote 7, after referring to the various State and Commonwealth provisions relating to amendments, there appears the passage:
“The difference between the extent of the powers to amend was referred to in Maher v R (1987) 163 CLR 221, under the Queensland Criminal Code the trial judge could not amend to add a new count after the jury had been sworn: compare Go v R, amendment to substitute a more serious charge without re-arraignment is permissible.”
It is apparent, particularly given the provisions of s 312(2), that it is permissible under subsection (1) to substitute a new charge for an old charge and that the indictment should be treated as if it had been amended from day one. There is nothing in the wording of s 312(1) to support the contention that it only relates and is confined to amending existing charges and does not permit the substitution of one charge for another where the Crown, as here, have got the wrong charge.
Counsel for the accused also submitted that the accused would suffer prejudice if such an amendment was made. It was argued that such an amendment coming at such a late stage in the trial combined with the fact that the accused would need to be re-arraigned on the amended section and that an explanation would need to be given to the jury, would cause undue prejudice. In my opinion there is no prejudice, essentially for the same reasons given by the Court in Go (supra). The accused has known throughout the nature of the allegations against him. The actual allegation of gross indecency in respect of the complainant has been one and the same throughout. The only difference between the charge substituted by the amendment and the old charge is whether it occurred in private or in public, a matter of law upon which I ruled in agreement with the conclusions of both counsel. There is no issue on the facts as to what gives rise to that difference, it is common ground that T was present asleep in the bedroom at the time of the alleged offence. That being so, there is no prejudice to the accused and I will allow the application to amend the indictment. The accused should also be re-arraigned in the presence of the jury on the amended count.