The Queen v Gahani - [2020] NTCCA 12

CITATION:The Queen v Gahani [2020] NTCCA 12
PARTIES:THE QUEEN

v
GAHANI, Tatenda

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  RESERVATION OF A QUESTION OF LAW by the SUPREME COURT exercising Territory jurisdiction
FILE NO:CCA 11 of 2020 (21900849)
DELIVERED:  13 November 2020
HEARING DATE:  7 September 2020
JUDGMENT OF:  Grant CJ, Southwood & Kelly JJ
CATCHWORDS:

CRIMINAL PROCEDURE – Admissibility of admissions
Whether evidence of a plea of guilty entered during the course of committal proceedings is admissible at trial as an admission by the accused – Offence punishable by life imprisonment – Evidence inadmissible.
Criminal Code 1983 (NT) s 408
Evidence (National Uniform Legislation) Act 2011 (NT) s 87, s 90, s 138
Local Court (Criminal Procedure) Act 1928 (NT) s 109, s 110, s 134, s 141, s 142

Em v The Queen (2007) 232 CLR 67, Keighran v Lowndes & Anor (unreported, NTCA, 22 May 1997), Maxwell v The Queen (1996) 194 CLR 501, Parker v Comptroller-General of Customs (2009) 83 ALJR 494, Reg v Bamford [1972] 2 NSWLR 261, R v Broadbent [1964] VR 733, R v D [1999] VSCA 148, R v D’Orta-Ekenaike [1998] 2 VR 140, R v Radic [2001] NSWCCA 174, R v Rimmer [1972] 1 WLR 268, The Queen v Rustum [2005] VSCA 142, referred to.
REPRESENTATION:
Counsel:
Crown:M Nathan SC with S Lapinski
Accused:S Robson SC
Solicitors:
Crown:Office of the Director of Public Prosecutions
Accused:Direct brief
Judgment category classification: B
Number of pages: 36

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Queen v Gahani [2020] NTCCA 12
CCA 11 of 2020 (21900849)
BETWEEN:

THE QUEEN

AND:

TATENDA GAHANI

CORAM: GRANT CJ, SOUTHWOOD & KELLY JJ

REASONS FOR JUDGMENT

(Delivered 13 November 2020)

THE COURT:

The following question of law has been reserved for the consideration by the Court of Criminal Appeal pursuant to s 408 of the Criminal Code 1983 (NT):
Is evidence of the entry by the accused of a plea of guilty to the charge of sexual intercourse without consent, which was entered during the course of committal proceedings on 9 August 2019, admissible at trial as an admission by the accused?
The facts and circumstances on which the question arises
The accused was charged by Information for an Indictable Offence taken on 7 January 2019 with the offence of having sexual intercourse with the complainant without her consent, knowing or being reckless as to the complainant’s lack of consent, contrary to s 192(3) of the Criminal Code. During the course of the committal proceedings conducted on 9 August 2019 the accused pleaded guilty to that charge in the following manner and circumstances:
MR DOOLEY:   I understand your Honour may have taken on the matter of Gahani.
HIS HONOUR:   Yes.
MR BETTS:   Betts appearing on behalf of Mr Gahani. He’s present in the court, your Honour.
HIS HONOUR:   Thank you.
MR DOOLEY:   And Dooley for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Gahani

Details

AGLC: The Queen v Gahani [2020] NTCCA 12
Case: [2020] NTCCA 12
Decision Date: 13 November 2020

CaseChat Overview and Summary

The Court of Criminal Appeal of the Northern Territory considered a question of law reserved pursuant to s 408 of the Criminal Code 1983 (NT) in *The Queen v Gahani*. The dispute concerned the admissibility at trial of a plea of guilty to sexual intercourse without consent, which the accused had entered during committal proceedings. The accused was charged with sexual intercourse without consent, contrary to s 192(3) of the Criminal Code.

The central legal issue before the court was whether evidence of the accused’s guilty plea, entered during committal proceedings, constituted an admissible admission at his subsequent trial. This question arose because the Crown sought to adduce this evidence, leading to the accused’s original legal representative ceasing to act for him and the vacation of trial dates. The accused contended that the evidence was inadmissible under s 90 or s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (ENULA).

The court reasoned that under the Northern Territory legislative framework, a plea to a charge carrying a maximum penalty of life imprisonment cannot regularly be recorded, and if recorded, may be withdrawn without prejudice. The court examined the operation of s 138 of the ENULA, which provides for the exclusion of improperly or illegally obtained evidence unless its desirability outweighs its undesirability. The court noted that "impropriety" in this context refers to conduct inconsistent with minimum societal standards and that "contravention" involves disobedience of a rule of law. The accused gave evidence that he entered the plea to spare his family the ordeal of testifying, suggesting it was not a true acceptance of all elements of the offence, despite his instructions and knowledge of the sentencing consequences.

The court ultimately determined that the admissibility of the guilty plea evidence was a matter to be decided by applying the principles of s 138 of the ENULA, considering the specific circumstances of its entry and the relevant legislative framework governing committal proceedings in the Northern Territory. The court did not make final orders in the provided text, as it was focused on determining the legal question reserved.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

The following question of law has been reserved for the consideration by the Court of Criminal Appeal pursuant to s 408 of the Criminal Code 1983 (NT):Is evidence of the entry by the accused of a plea of guilty to the charge of sexual intercourse without consent, which was entered during the course of committal proceedings on 9 August 2019, admissible at trial as an admission by the accused?The facts and circumstances on which the question arises The accused was charged by Information for an Indictable Offence taken on 7 January 2019 with the offence of having sexual intercourse with the complainant without her consent, knowing or being reckless as to the complainant’s lack of consent, contrary to s 192(3) of the Criminal Code. During the course of the committal proceedings conducted on 9 August 2019 the accused pleaded guilty to that charge in the following manner and circumstances:MR DOOLEY: I understand your Honour may have taken on the matter of Gahani. HIS HONOUR: Yes. MR BETTS: Betts appearing on behalf of Mr Gahani. He’s present in the court, your Honour. HIS HONOUR: Thank you. MR DOOLEY: And Dooley for the prosecution, your Honour. This was originally listed as a part oral committal today with three witnesses for cross-examination, but we’re now proceeding by way of a hand up committal. So I’ll read the charge to Mr Gahani - - -HIS HONOUR: Yes. MR DOOLEY: - - -and start from there. Sorry, your Honour, I’ll just indicate that with the date - - -HIS HONOUR: Yes. MR DOOLEY: - - -it will become on 28 January 2018 for (inaudible). HIS HONOUR: I’ll amend that. MR DOOLEY: Thank you. [CHARGES READ BY MR DOOLEY]MR DOOLEY: That’s the charge. HIS HONOUR: Thank you. MR DOOLEY: Take a seat. In support of that charge, your Honour, I seek to enter the original brief. This brief contains, your Honour, amongst other things, both a recording and also a transcript of the extensive complainant forensic interview done by the complainant, Ms Gahani, which contains a clear allegations of non-consensual penile/vaginal intercourse together, your Honour, with several other civilian and police statements. I’m not sure if your Honour wishes me to take you through them?HIS HONOUR: I’ve read her statement. MR DOOLEY: Yes. HIS HONOUR: I don’t know that you need to point to other matters, do you?MR DOOLEY: I don’t believe I do, your Honour, but I just thought I’d leave that up to your Honour, but if your Honour’s - -HIS HONOUR: No. MR DOOLEY: At this point, I seek to tender that brief. HIS HONOUR: Yes. There was mention of CCTV footage, that’s not part of the brief?MR DOOLEY: It is, your Honour, but it doesn’t disclose anything of great (inaudible). HIS HONOUR: Yes, but that’s in there?MR DOOLEY: Yeah there are just there labelled. I profess your Honour I haven’t watched it. HIS HONOUR: Well clearly I haven’t as well. MR DOOLEY: There’s CCTV footage, your Honour, from inside and outside of the Juicy Bar. HIS HONOUR: Yes. MR DOOLEY: Efforts were made to obtain CCTV footage from the Convention Centre - - -HIS HONOUR: Yes. MR DOOLEY: - - -and the immediate area outside but because of the lapse of time before the complaint was made, that wasn’t able to be produced. HIS HONOUR: Yes there’s a mention that they only keep them for 3 months. MR DOOLEY: Yes. HIS HONOUR: Yes. All right. Mr Betts any submissions regarding sufficient evidence?MR BETTS: No, your Honour. HIS HONOUR: On the material that’s on the brief, I find that there’s sufficient evidence to place the defendant on his trial for the charge on the information. Yes, what’s the date?MR BETTS: Mr Gahani, first of all your Honour, Mr Gahani wishes to be committed for sentence. HIS HONOUR: Right. MR BETTS: And to enter a plea today - - -HIS HONOUR: Does he?MR BETTS: - - -to the charge. HIS HONOUR: All right, thank you. If the charge could be read again. MR DOOLEY: Stand again Mr Gahani. This time I’ll ask for your plea. [CHARGES READ BY MR DOOLEY]MR DOOLEY: How do you plead to that charge: guilty or not guilty?THE DEFENDANT: Guilty. MR DOOLEY: Thank you. You can take a seat. HIS HONOUR: All right. MR BETTS: And the date would be 18 September. MR DOOLEY: Suitable for the Crown, your Honour.HIS HONOUR: September you said?MR BETTS: Yes.HIS HONOUR: At 8:45?MR BETTS: Yes, your Honour. MR DOOLEY: Yes, your Honour. MR BETTS: And as per the practice direction, your Honour, I would seek to have Mr Gahani excused. He will need to attend the court at some point to sign bail, subject to that being granted today. HIS HONOUR: All right. Now Mr Gahani is on bail and in fact there’s a compliance report here, which I’ll publish - - -MR BETTS: Thank you, your Honour. HIS HONOUR: - - -dated 7 August. The conditions of Mr Gahani’s bail are quite extensive. Mr Dooley, are you consenting to bail on the same terms and conditions?MR DOOLEY: Yes I am, your Honour. Save for my learned friend will inform me of one or two minor amendments - - -HIS HONOUR: Yes. MR DOOLEY: - - - to Mr Gahani to attend in Darwin for purposes of further training in his job. HIS HONOUR: Okay. MR DOOLEY: But I’ll leave that to my learned friend, he’s got those details. HIS HONOUR: Yes. MR BETTS: Yes, your Honour, there’s a training course that Mr Gahani is booked to attend between 19 and 29 August. So in relation to that, I seek a variation to condition 4.HIS HONOUR: Well condition – yes go on. MR BETTS: That on 19 and 26 August - - -HIS HONOUR: Yes. MR BETTS: - - -Mr Gahani report to the Palmerston Police Station. Between 8 am and 4 pm. HIS HONOUR: Okay. MR DOOLEY: No objection. HIS HONOUR: And that’s the only variation?MR BETTS: Yes, your Honour. HIS HONOUR: The bail that I have in front of me was entered by Mr Gahani on 9 May, that is the same bail. MR BETTS: Yes it is, your Honour. HIS HONOUR: Yes, thank you. MR BETTS: And your Honour will see that on that date it was varied also for Mr Gahani to travel to Darwin, but he wasn’t required to report in Darwin on that occasion. It was simply suspended. Given the brevity of that trip, your Honour, it’s a bit longer.HIS HONOUR: All right. Mr Gahani will be released on bail on the same terms and conditions as the bail that he entered on 9 May and the bail that he’s been observing, with the exception that condition number 4 will read, “The defendant will report to the officer-in-charge, Alice Springs Police Station every Monday between the hours or 8 am and 4 pm, except on Monday 19 August 2019 and Monday 26 August 2019 when he will report to the officer-in-charge Palmerston Police Station urging the same hours. Now Mr Gahani is excused if legally represented on 18 September 2019. MR BETTS: Please the court. HIS HONOUR: Is there anything further?MR DOOLEY: Not in this matter. MR BETTS: No, your Honour. HIS HONOUR: All right, thank you. And I’ve noted clearly on the file that he entered a plea of guilty. MR BETTS: Thank you, your Honour.HIS HONOUR: And he’s committed for sentence. Thank you. MR DOOLEY: The court pleases.

Evidence

Evidence Before The Court

Shortly before that application came on for hearing, the parties came jointly to the conclusion that the accused could not be bound to the guilty plea as the charge was one carrying a penalty of life imprisonment. That was because s 109 of the Local Court (Criminal Procedure) Act provides (emphasis added):Procedure on completion of the evidence for the prosecution(1) When all the evidence offered upon the part of the prosecution has been taken, the Court must consider whether it is sufficient to put the defendant on trial for any indictable offence.(2) If the Court is of the opinion that the evidence is not so sufficient, it shall forthwith order the defendant, if in custody, to be discharged as to the information then under inquiry.(3) If the Court is of opinion that the evidence is so sufficient, the Court may:(a) if the charge is one that may be heard and determined summarily under Division 2 – proceed in the manner directed and under the provisions in that behalf contained in Division 2; or(b) unless the defendant is charged with an offence punishable by imprisonment for life, ask the defendant whether the defendant wishes to plead to the charge as provided in Division 3, and proceed as thereby directed; or(c) proceed with the examination as provided in the next succeeding sections. On the Crown’s concession that the accused was not bound to the guilty plea, the Court confirmed that the trial was to commence on 10 August 2020. On 6 August 2020, which was one clear business day before the trial was scheduled to commence, the Crown advised of its intention to adduce evidence of the accused’s entry of the guilty plea as an admission against interest. As a consequence, the accused’s then legal representative, who had also appeared for the accused at the committal proceedings, was forced to cease to act for the accused. That consequence followed from the fact that the accused required separate legal advice concerning the admissibility of that evidence, and that the determination of any objection to admissibility would involve a consideration of the circumstances in which the guilty plea had been entered. As a further consequence of the Crown’s untimely indication, the trial dates were vacated. The accused engaged a new legal representative who subsequently advised the Court that the defence objected to the receipt at trial of evidence of the guilty plea. The accused contends that the evidence is inadmissible by operation of s 90 and/or s 138 of the Evidence (National Uniform Legislation) Act 2011 (NT) (“the ENULA”). On 20 August 2020, the Supreme Court took evidence from the accused and the accused’s former legal representative about the circumstances in which the plea of guilty was entered. The accused gave evidence to the effect that he had entered the plea of guilty in the Local Court in order to save his brother, who is the complainant’s father, and members of his brother’s family, the ordeal of giving evidence about highly sensitive matters. If that explanation was to be accepted, while the plea was entered in accordance with the accused’s wishes and instructions at the time, and in full knowledge of the consequence that he would be sentenced to a lengthy period of imprisonment, it did not constitute a true acceptance that he had committed all the essential elements or ingredients of the offence.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under the legislative scheme in force the Northern Territory, there is no statutory provision for warnings to be given at the time the plea is entered[22]; for the reasons already described, no plea to a charge carrying a maximum penalty of life imprisonment may regularly be recorded; and if a plea may be regularly recorded, it may also be withdrawn without prejudice. The contention that the evidence is inadmissible by operation of s 90 and/or s 138 of the ENULA falls to be determined having regard to that statutory framework and the protective purposes of ss 109(3), 134, 141and 142 of the Local Court (Criminal Procedure) Act which have been described above. The operation of s 138 of the ENULA Section 138(1) of the ENULA provides:Exclusion of improperly or illegally obtained evidence(1) Evidence that was obtained:(a)improperly or in contravention of an Australian law; or(b)in consequence of an impropriety or of a contravention of an Australian law;is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained. The burden is on the party seeking exclusion of the evidence to establish that it was improperly or illegally obtained.[23] Although s 138(2) goes on to pay particular attention to actions of law enforcement officers in relation to confessional evidence, the exclusionary provisions are not limited to evidence obtained in those circumstances. So much is apparent from the fact that the agreed provision applies to civil as well as criminal hearings, and to evidence procured by anyone, not just law enforcement officers. In that latter category of case, the focus of the enquiry into impropriety is whether the conduct in question is inconsistent with the minimum standards which society should expect and require of those entrusted with powers of law enforcement. However, the broader purpose of the provision is to afford courts the power to protect the integrity of their processes from subversion by impropriety or illegality. The ENULA contains no general or specific definition of "impropriety". The method or conduct by which the evidence has been obtained will be “improper” in the ordinary sense if it is "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong".[24] Having made that observation, French CJ went on to state:Without essaying an exhaustive definition, the core meaning of “contravention” involves disobedience of a command expressed in a rule of law which may be statutory or non-statutory. It involves doing that which is forbidden by law or failing to do that which is required by law to be done. Mere failure to satisfy a condition necessary for the exercise of a statutory power is not a contravention. Nor would such a failure readily be characterised as “impropriety” although that word does cover a wider range of conduct than the word “contravention”.