R v Sq (No 5)
[2021] ACTSC 145
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SQ (No 5) |
Citation: | [2021] ACTSC 145 |
Hearing Date: | 9 July 2021 |
DecisionDate: | 9 July 2021 |
ReasonsDate: | 22 July 2021 |
Before: | Burns ACJ |
Decision: | See [8] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application in Proceeding – Application by defence to appoint alternative judge during jury trial – where trial judge sustained injuries and not able to continue – where five days of evidence already heard by jury – application not opposed – consideration of categories of cases where a judge may take over proceedings commenced by another judge |
Legislation Cited: | Crimes Act 1900 (ACT) ss 60(1) and 54(1) |
Cases Cited: | Bakarich v Commonwealth Bank of Australia (No 2) [2012] NSWCA 390 |
Parties: | The Queen (Crown/Respondent) SQ (Accused/Applicant) |
Representation: | Counsel R Christensen (Crown/Respondent) S Whybrow (Accused/Applicant) |
| Solicitors ACT DPP (Crown/Respondent) Aulich Law (Accused/Applicant) | |
File Number: | SCC 217 of 2020 |
BURNS ACJ:
On 28 June 2021 the applicant was arraigned before Elkaim J on an indictment alleging one count of engaging in sexual intercourse without consent contrary to
s 54(1) of the Crimes Act 1900 (ACT) (the Crimes Act) and three counts of committing an act of indecency without consent contrary to s 60(1) of the Crimes Act. The applicant entered pleas of not guilty to all charges and a jury was empanelled. The Crown case commenced on Monday 28 June 2021 and continued through to the afternoon of Friday, 2 July 2021. The trial was due to continue on
Monday, 5 July 2021.
Over the weekend of 3 and 4 July 2021, Elkaim J was involved in an accident in which his Honour sustained injuries such that he was unable to continue to preside in the trial on 5 July 2021. At that time, it was unclear for how long his Honour would be incapacitated. In my capacity as Acting Chief Justice I adjourned the further hearing of the trial until 10:00am on 12 July 2021.
By an application dated 8 July 2021, the applicant sought orders that I, in my capacity as Acting Chief Justice, appoint another judge to continue to preside at the applicant’s trial as Elkaim J was medically unfit to continue to preside and was likely to remain unfit for the foreseeable future. The application came before me on
Friday, 9 July 2021. At that time, based upon the information available to me, it seemed unlikely that Elkaim J would recover from his injuries to the extent that his Honour would be able to resume presiding over the trial on 12 July 2021. Counsel for the applicant and for the Crown urged me to make the orders sought by the applicant. I directed that if Elkaim J remained incapacitated to the extent that his Honour could not resume presiding over the trial on 12 July 2021, that the trial would continue before me and the jury empanelled by Elkaim J. Over the weekend of 10 and 11 July 2021 it became clear that his Honour would not be able to resume presiding in the trial on 12 July 2021, or at any reasonable date following. The trial continued before me and the jury empanelled by Elkaim J on 12, 13 and 14 July 2021, with the jury returning verdicts of not guilty on all charges on 14 July 2021. When I directed that the trial would continue before myself on 12 July 2021 if Elkaim J remained incapacitated, I indicated that I would provide written reasons at a later date. These are those reasons. As there is now no prospect of an appeal, these reasons will be brief.
The applicant referred me to the decision of the New South Wales Court of Appeal in Bakarich v Commonwealth Bank of Australia [2012] NSWCA 390 where the Court considered whether it had the power to reconstitute the Court for the making of orders in an appeal that had previously been heard by a differently constituted Court. The Court of Appeal (Basten, Campbell and Macfarlan JJA) comprehensively reviewed the authorities relating to the power of a court to continue to hear a proceeding after the bench has been reconstituted. With regard to first instance tribunals, the Court said, at [34] to [49]:
First Instance Tribunals
There is a significant line of authority concerning the circumstances in which it is permissible for one first-instance judge or tribunal to make a decision concerning proceedings that another judge or tribunal has commenced to hear, but has been unable to continue to hear. Even though the present case concerns reconstitution of an appellate court, the cases concerning reconstitution of first-instance tribunals can illuminate what, if any, limitations on reconstitution there are simply by virtue of being a court.
Concerning reconstitution of first-instance tribunals, if a statute specifically required the same judges to be present during the whole of the proceedings, that provision must be complied with: Munday v Munday [1954] 2 All ER 667. Conversely, if a statute permitted substitution of one judicial officer by another in certain circumstances, if a case begun by one judge has become part-heard, a different judge can complete the case in the circumstances permitted by such a statute: Chua Chee Chor v Chua Kim Yong [1962] 1 WLR 1464.
Subject to those matters, whether it is permissible for another judge to complete the part-heard case, rather than starting the hearing afresh, can be influenced by whether the trial is civil or criminal: R v Southwark Crown Court [1993] 1 WLR 764. It can be influenced by whether the trial is before a judge sitting alone, a judge and jury, or some differently constituted form of tribunal. It can be influenced by whether there is a significant conflict in the evidence: Bolton v Bolton [1949] 2 All ER 908; Re British Reinforced Concrete Engineering Co's Application (1929) 45 TLR 186; Brennan v Brennan (1953) 89 CLR 129 at 136-137. It can be influenced by whether the reason why a judge who has embarked on hearing a case does not continue to hear it to its conclusion is because it is impossible for the judge to continue (whether through death, ceasing to hold office as a judge, or other causes such as incapacitating illness) or whether it is a matter of personal or administrative convenience. It can be influenced by the nature of the tasks that remain to be done when the first judge becomes unavailable.
Notwithstanding the greater procedural strictness that usually applies in criminal trials, if the judicial officer before whom a criminal trial that resulted in a conviction has died, it is permissible for a sentence to be imposed by a different judicial officer who has been provided with the shorthand notes of the trial and heard submissions on sentence: R v Pepper [1921] 3 KB 167. That principle has been applied in Australian Securities and Investments Commission v Forge [2007] NSWSC 1489, when White J at [31] imposed civil penalties for contraventions of the Corporations Law on the basis of evidence that had been admitted before Foster AJ, when liability had been found by Foster AJ, and that finding had been upheld in the Court of Appeal and the High Court.
If one judge decides contested questions of fact on the basis of evidence that had been heard by another judge, that has been held to be a circumstance warranting a new trial at least in situations where the parties do not consent: Bolton v Bolton; The Hopemount (1943) 75 LlLR 94; HMS Vanity (1946) 79 LlLR 594. One reason for that is that the appellate court, exercising its obligation to re-hear, can have no confidence in a credit-based finding made by a tribunal the members of which have not fully heard the evidence in question: Whittle v Whittle [1939] 1 All ER 374. However, in Whittle, Sir Boyd Merriman P declined at 376 to say that as a matter of law the court was bound to set aside a decision in which the decision-maker had not heard all the evidence that was given. Thus, notwithstanding the irregularity of a judge making findings of fact on the basis of evidence that he or she has not heard, if the appellate court can be confident about whether the result arrived at at first instance is correct or incorrect it can decline to order a new trial: Bolton v Bolton at 911; Brennan v Brennan. Similarly, it has been held that when a judge dies when part-heard in civil proceedings concerning which there is no real dispute as to issues of fact, it can be permissible for another judge to decide the issues on the basis of the shorthand notes, and with the parties' consent: Re British Reinforced Concrete Engineering Co's Application; Bagshaw v Scott [2005] FCA 104 at [35] per Bennett J. Even if there has been no explicit consent to a second judge continuing with the matter after the unavailability of the judge who had commenced it, acquiescence in the second judge continuing with the matter can deprive the party acquiescing of any right to complain about the procedure: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 at 649 per Kirby P, 653 per Priestley JA (Glass JA agreeing).
In Coleshill v Manchester Corporation [1928] 1 KB 776 a judge died before the evidence was completed in a jury trial of a civil action, and another judge presided over the remainder of the trial. The witnesses who had already given evidence were not recalled, and the replacement judge read the shorthand notes of their evidence. The trial resulted in a verdict for the plaintiff. On appeal, Scrutton LJ at 785-6 made the following inconclusive remarks:
"I can understand that in the unprecedented and painful circumstances it is unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner."
Neither of the other judges in the Court of Appeal (Atkin LJ and Eve J) commented on the procedure that had been followed. The order of the Court of Appeal was that the appeal be allowed and judgment entered for the defendants. That order would not have been possible if the first-instance proceedings had been irretrievably vitiated.
In Brennan v Brennan a judge hearing contested divorce proceedings had died after the evidence was completed, but before he delivered judgment. At the request of the parties, another judge read the transcript. Some, but not all, of the witnesses were recalled before the second judge. Though the case involved contested questions of fact, the High Court (Williams ACJ, Webb and Kitto JJ) did not hold that the resulting decree nisi was one that should be set aside ex debito justitiae. Instead, their Honours declined to make an order for a new trial, and dealt with the appeal on its merits. A factor in their Honours deciding to take that course was that the parties had consented to the procedure adopted by the second judge. In several of the cases referred to at [38] above, the court had also referred to the fact that the parties had consented to another judge continuing with the case as though it was a matter relevant to whether the second judge should have completed the hearing. However, the consent of the parties could not have conferred validity on the proceedings, if it were inherently impossible for a trial begun by one judge to be completed by another.
The explanation for this may well be that, although in Coleshill Scrutton LJ referred to whether the second judge had "jurisdiction" to continue to hear the case, that is probably not the most apposite term. The trial in Coleshill was held at the Manchester Assizes. After the Judicature Act 1873 a judge of assize was part of the High Court of Judicature (Archer, The Queens Courts, 2nd ed (1963) Penguin Books p 140). Thus a judge presiding at Assizes in 1928 was a judge of a superior court. Apart from limitations arising from the constitution (Kable v State of NSW [2012] NSWCA 243), an order of a superior court is valid until it is set aside: Cameron v Cole (1944) 68 CLR 571 at 590-591, Re Macks; Ex parte Saint [2000] HCA 62; 204 CLR 158, and other cases referred to by Gaudron J in Re Macks at 184 [49], fn 80; Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; (2006) 225 CLR 364 at [11]. Further, if the party to whom a procedural law is addressed "chooses to disregard it, the normal outcome is that choice accrues to the other party either to do nothing, or to seek an appropriate order from the court" (Berowra Holdings at [14]). It is not as though any irregularity that there might be in the trial proceeding before the second judge makes it a nullity, at least when the trial is being held in a superior court.
In Wentworth v Rogers (No 3) Cantor J had become ill and unable to continue after deciding a question concerning production of documents on subpoena. Maxwell J then decided how the costs of that application should be borne. On an application for leave to appeal from Maxwell J's decision, Kirby P said, at 646:
"It seems clear that when a judge dies, retires or otherwise loses office in the middle of proceedings, this eventuality will not be permitted to frustrate the completion of those proceedings."
Similarly, Priestley JA (Glass JA agreeing) said at 653:
"The circumstance of the change of judge was made the subject of a submission that Maxwell J had no jurisdiction to make the orders which he did. I do not think this can be right. If a judge is unable through absence to make an order which needs to be made for some proceeding before the court to be completed there must be jurisdiction in the court enabling another judge to make the order."
As Priestley JA observed, at 653:
"In England the only place where the matter is at all fully discussed appears to be in Sir Robert Megarry's A Second Miscellany-at-Law (1973) at 53-58."
Sir Robert began his account at 53 by saying: "Like all human endeavour, the judicial process is subject always to the paramount claims of death."
In Smartec Capital Pty Ltd v Centro Properties Ltd [2011] NSWSC 495, Barrett J considered an application by a member of a company under s 247A(1) Corporations Act 2001 for an order to inspect certain of the documents of the company. In a reserved judgment he decided in principle what sorts of documents could be inspected, and on what terms. The judgment concluded, at [93]-[94]:
"Because I have now entered on long leave, it will be necessary for the final orders to be settled and made by another judge: Wentworth v Rogers (No 3) (1986) 6 NSWLR 642.
The parties therefore have leave to approach the Corporations Judge for the time being for that purpose and for the determination of the costs of the proceedings."
In due course White J made the orders relating to the application, and the costs order: Smartec Capital Pty Ltd v Centro (CPL) Ltd [2011] NSWSC 644. Debate before White J concerned the description of the documents of which inspection would be allowed. His Honour said, at [11]:
"This is the sort of question that is often debated when the court is asked to make orders to give effect to the reasons for decision. I think, consistently with Wentworth v Rogers (No 3) (1986) 6 NSWLR 642, that I can make such orders as appear to me to be appropriate to give effect to his Honour's reasons so as to advance the purpose that his Honour identified as the proper purpose that Smartec was pursuing."
White J also made decisions concerning the identity of the people who should be permitted to inspect the documents ([12]) and the purpose for which the documents inspected could be used ([14]), as well as orders concerning the costs of (inter alia) the hearing before Barrett J.
Similarly, in Lahoud v Lahoud [2006] NSWSC 126 Campbell J decided how costs should be borne concerning some proceedings the merits of which had been decided by Palmer J, who had gone on long leave.
These cases concerning reconstitution of a first instance tribunal show that there are circumstances in which it could sometimes be irregular, to an extent justifying setting aside on appeal, for a first instance decision to be reached by one judge completing a proceeding that had been begun by another judge. Of the cases we have surveyed, the only authorities that bind us are Brennan v Brennan and (subject to leave to reargue being granted) Wentworth v Rogers (No 3), so we would not wish to say anything definitive about what would amount to such circumstances. However, what is of particular relevance for the present decision is that those cases also show that, except when there is a statutory prohibition on adopting such a course, it is not inherently impossible for one judge of a superior court to complete a legal proceeding that has been begun by another judge of that court. That conclusion can be drawn from both Brennan v Brennan and Wentworth v Rogers (No 3). There is no statutory prohibition on a reconstituted bench of this Court completing the appeal that was largely decided by the 2007 Appeal Judgment. Rather, whether we should complete the proceeding depends on whether there would be any procedural inappropriateness in us completing the task.
Some earlier English decisions cast doubt upon the existence of a power to change judges in the middle of a criminal trial being conducted before a jury. In R v Crown Court at Southwark, Ex parte Commissioners of Custom and Excise (1993) 97 Cr App R 266, the Queen’s Bench (Divisional Court) was required to consider whether a different judge to the judge who had heard a preliminary hearing could preside at the substantive trial with a jury. By way of obiter, the Court said, at 273:
[I]t is our firm opinion that in a criminal trial there is no power to change the judge once the jury is sworn until the moment at which the jury returns to give its verdict. It is permissible, if there is a sufficient reason, such as death or illness of the trial judge, for another judge to take the jury’s verdict – this has to our knowledge been done on several occasions – seeing that the mere taking of the verdict cannot possibly be affected, so far as the new judge is concerned and the jury too, by anything which has taken place in the trial up to that time…
The absolute terms in which the Court expressed the opinion set out in the previous paragraph was subsequently doubted in the Court of Appeal (UK) in R v I(C) [2010] 1 Cr App R 138, at [10] to [12]:
In R. v Southwark Crown Court Ex p. Commissioners for Customs and Excise (1993) 97 Cr. App. R. 266 the Divisional Court considered a situation in which after Judge A had conducted a preparatory hearing the case was removed from him and allocated to Judge B by direction of the Presiding Judge of the Circuit, who appears not to have been told that a preparatory hearing had taken place. That direction had been given so that Judge A could be allocated a different case, but he was not committed to it and there was no clash between its timetable and that of the instant case (see 274). The Divisional Court held, unsurprisingly to us, that Judge A must remain with the case.
In so holding, the Divisional Court relied in part upon the fact that the trial had begun with the preparatory hearing. It observed that in its opinion there was no power to change the judge once the jury is sworn, although it recognised an exception for the case in which the trial judge is for some reason such as illness unable to take the verdict, in which event another judge may do so. Whilst the general proposition is undoubtedly right, the exception is in fact somewhat wider, as the recent cases of R. v El-Ghaidouni [2006] EWCA Crim 845; [2006] Crim. L.R. 948 and R. v SJ [2007] EWCA Crim 1313, demonstrate. Both were instances of complications arising from illness of the trial judge. In the first it was held perfectly proper for a different judge to answer questions raised by the jury in retirement, providing the answers were ascertainable and uncontroversial. In the second it was similarly proper for a different judge to discharge for good cause a single juror from amongst those in retirement, so that the trial could continue.
The position after a jury is sworn is clearly radically different from that where it has not been. With very few exceptions, once the jury is sworn a judge who has not been present at the proceedings simply cannot pick the case up. The Divisional Court in R. Southwark Crown Court did not hold that where there has been a preparatory hearing there could never be a change of judge; it did say that mere administrative convenience could not justify such a change and it cited the recommendation of the Roskill report for the proposition that exceptional circumstances would be necessary.
Consideration
In my opinion, the authorities do not suggest that the categories of cases where a judge may take over presiding in proceedings commenced by another judge are settled. There can be no doubt that it is an undesirable procedure and one which should only be adopted as a last resort. In deciding to direct that the trial continue before me because of the incapacity of Elkaim J to continue in that role, I took into account the following matters:
(a)full transcripts of the trial were available to me, together with published reasons prepared by Elkaim J regarding pre-trial applications. This was not a case, as found in some earlier authorities, where the judge taking over the conduct of the proceeding had only the former judge’s notes;
(b)the trial had already taken five days, most of which was taken up with cross examination of the complainant. She had completed her evidence. Most of the evidence had already been taken, with approximately one day’s worth of evidence from the Crown remaining;
(c)discharging the jury and requiring the applicant to be retried would result in significant cost to the applicant and to the Crown. It would also result in continuing uncertainty for the applicant, the complainant and the witnesses;
(d)the jury, as the tribunal of fact, would remain the same throughout the trial;
(e)there was a real possibility of loss of evidence if the trial were to be aborted and the accused retried at a later date. The Crown alleged that three of the offences with which the applicant was charged occurred in the office of a business jointly owned by the applicant and the complainant at a time when other employees of the business were present. None of those employees gave evidence that they had seen or heard anything consistent with the complaint made by the complainant. A view of the office area was conducted by Elkaim J and the jury to give the jury a better understanding of the size of the office and sightlines within the office. The applicant and complainant are parties to Family Court proceedings, and the Family Court has made orders that the business be sold. There is therefore a risk, which was not challenged by the Crown, that the property may be sold and the internal fit out of the office changed before any re-trial could occur;
(f)the issues in the trial were not complicated. The complainant alleged the applicant had sexually assaulted her on two occasions, and the applicant denied those allegations; and
(g)both parties urged me to give the direction.
For these reasons I made the directions to which I have referred.
| I certify that the preceding eight [8] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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Amendments
| 14 October 2021 | Change the word “respondent” to the word “complainant” | Paragraphs: [7(e)] |
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