Wilson v The Queen
[2016] ACTCA 56
•18 October 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Wilson v The Queen |
Citation: | [2016] ACTCA 56 |
Hearing Date: | 30 September 2016 |
DecisionDate: | 18 October 2016 |
Before: | Refshauge J |
Decision: | 1. The application for a stay of sentencing and for bail be dismissed. 2. The parties be heard as to consequential orders. |
Catchwords: | APPEAL – CRIMINAL LAW – Sentencing – multiple historical child sexual assault and indecency convictions – stay of sentencing proceedings – bail – continuation of bail pending the hearing of the appeal – alleged inconsistencies of the verdicts – interventions by the trial judge – principles allowing interventions by the trial judge – consideration – poor health of the accused – serious medical condition – exceptional circumstances leading to a delay of sentencing |
Legislation Cited: | Bail Act 1992 (ACT) s 9E Corporations Act 2001 (Cth) s 588G(2) Corrections Management Act 2007 (ACT) s 53 Court Procedures Rules 2006 (ACT) Workplace Relations Act 1996 (Cth) s 298P(3) |
Cases Cited: | ASIC v Edwards [2005] NSWSC 1278; 56 ACSR 290 Cook v The Queen [2016] VSCA 174 Costa v The Queen [2013] VSCA 5 Construction, Forestry, Mining and Energy Union v Hamberger Industrial Advocate [2001] FCA 1442 Galea v Galea (1990) 19 NSWLR 263 Jones v National Coal Board [1957] 2 QB 55 Lockwood v Police (2010) 107 SASR 237 MacKenzie v The Queen (1996) 190 CLR 348 Masoud v The Queen [2000] FCA 435 Michael v Western Australia [2007] WASCA 100 Michel v The Queen [2010] 1 WLR 879 Nafranec v Nicol [2012] WASC 436 Nona v The Queen (No 3) [2012] ACTCA 60 Osland v The Queen (1998) 197 CLR 316 R v BJW (2000) 112 A Crim R 1 R v Brdarovski (2006) 166 A Crim R 366 R v Damic [1982] 2 NSWLR 750 R v Davies [1984] 3 NSWLR 572 R v De Marchi [1983] 1 VR 619 R v DM [2010] ACTSC 137 R v Esposito (1998) 45 NSWLR 442 R v Johnson [2015] QCA 270 R v Martin [2012] NSWSC 801 R v Mawson [1967] VR 205 R v Matthews (1984) 78 Cr App R 23 R v Meyboom (2012) 256 FLR 450 R v Samani [2016] ACTCA 48 R v T, WA (2014) 118 SASR 382 R v WR [2009] ACTSC 93 Ratten v The Queen (1974) 131 CLR 510 RPS v The Queen (2000) 199 CLR 620 Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290 Singleton v Police [2009] SASC 41 Stott v The Queen [2016] ACTCA 36 Wright v The Queen [2016] NSWCCA 122 Yuill v Yuill [1945] P 15 |
Parties: | Brian Christopher Wilson (Appellant) The Queen (Respondent) |
Representation: | Counsel Mr B Buckland (Appellant) Ms M Jones (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | ACTCA 48 of 2016 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 29 August 2016 – 9 September 2016 Case Title: R v Wilson Court File Number: SCC 213 of 2015 |
REFSHAUGE J:
The applicant, Brian Christopher Wilson, was charged with 16 sexual offences against children said to have been committed between 1973 and 1999.
On 29 August 2016, he was arraigned and pleaded guilty to three of the charged offences and not guilty to the remaining 13.
He was thereupon tried before Elkaim J and a jury on the 13 charges and, on 5 September 2016 was acquitted of one charge by direction. On 9 September 2016, he was found guilty by the jury on nine of the remaining offences and acquitted of three.
Elkaim J granted Mr Wilson bail until 8 October 2016 when he was required to surrender thereupon himself to ACT Corrective Services being then remanded in custody. The proceedings were listed for sentence on 9 November 2016.
Mr Wilson has now commenced an appeal against his convictions and has applied for a stay of the sentencing proceedings and for a continuation of his bail.
The law
The Court Procedures Rules 2006 (ACT) permit an appeal to be commenced against the conviction of an accused person prior to sentence being imposed. See R v Meyboom (2012) 256 FLR 450 at 454; [15], 455-6; [30]. That, however, does not determine whether the appeal should be heard before sentence or that the sentencing proceedings should be stayed until the appeal against conviction is heard.
Indeed, in Nona v The Queen (No 3) [2012] ACTCA 60, I considered that, ordinarily, a stay of sentence should not be ordered merely because an appeal against conviction has been commenced.
That follows a line of cases commencing with R v De Marchi [1983] 1 VR 619, where the Full Court of Victoria had to consider whether to grant leave to appeal against a conviction before sentence had been passed. That was a slightly different situation from that here but the principles were appropriate.
The Court held at 622-4 that it was undesirable, inconvenient and wrong as a matter of policy for the application for leave to be heard before sentence had been passed.
This approach was followed in a non-criminal, but analogous, situation where proceedings for a penalty to be imposed following findings that conduct breaching regulatory provisions of a relevant enactment were sought to be stayed pending appeal against the findings of breach. In the industrial jurisdiction, the Full Court of the Federal Court of Australia in Construction, Forestry, Mining and Energy Union v Hamberger Industrial Advocate [2001] FCA 1442, Lee, Finn and Mirkel JJ refused to grant leave to appeal from findings of the Trial Judge who had made declarations that certain unions and union officials had contravened s 298P(3) of the Workplace Relations Act 1996 (Cth), following the decision in R v De Marchi.
In a corporate context, Barrett J followed both decisions in ASIC v Edwards [2005] NSWSC 1278; 56 ACSR 290, when declining to stay penalty proceedings following the making of declarations as to contraventions of s 588G(2) of the Corporations Act 2001 (Cth) which the defendant had challenged on appeal.
A similar situation arose in Masoud v The Queen [2000] FCA 435 where, prior to the erection of the Alexander Maconochie Centre, convicted persons were transferred to prisons in New South Wales and removed from the Belconnen Remand Centre. In that case, an application by the accused, who had been found guilty by a jury and remanded in custody for sentence, was made to restrain his removal from Canberra to New South Wales. Miles J declined to make such an order relying on, inter alia, what had been said in R v De Marchi.
To interfere with the ordinary processes of the criminal law where sentence ordinarily follows from a finding of guilt is to fragment those processes which, as I explained in R v WR [2009] ACTSC 93, is highly undesirable. As Miles J said in Masoud v The Queen at [11], there are “powerful reasons of policy” why an appeal against conviction should not proceed without sentence having been passed.
All these cases, however, acknowledge that there may be “most unusual circumstances” (Masoud v The Queen at [11]), “exceptional cases” (R v De Marchi at 622) where “injustice will be done” (ASIC v Edwards at [16]) in which it would be appropriate to proceed with an appeal against conviction prior to sentence and, in some cases, with sentencing proceedings being stayed.
Indeed, in R v De Marchi, the Court was prepared to proceed with the appeal itself in that case because “the points involved in this appeal were in very narrow compass.” It heard the appeal and dismissed it.
There are other circumstances. For example, in Costa v The Queen [2013] VSCA 5, there was an obvious “serious departure from the prescribed processes of the trial” caused by alleged improper communications between court staff and jurors such that it was appropriate to proceed with the appeal immediately.
In Nona v The Queen (No 3), it was held that, as the sentence date had been delayed and was unlikely to be able to be re-set prior to the appeal, it was appropriate to stay sentencing until after the appeal had been heard. I note that no question of the strength of his prospects of success on the appeal was relevant to that decision, despite it possibly being suggested during the hearing of this application.
The grant of a stay pending appeal has recently been considered in R v Samani [2016] ACTCA 48 at [8]-[10]. In large part, the grant of a stay will depend on whether the stay is necessary to preserve the subject matter of the litigation. Such a decision is a matter of discretion and, while special or exceptional circumstances may not be required (though they will under s 9E of the Bail Act 1992 (ACT), if bail is sought following the imposition of a term of imprisonment), the Court will carefully consider the balance of convenience and the rights and interests of the parties. The principles relating to the grant of bail following such a stay have been set out in Sherd v The Queen [2011] ACTCA 17; 5 ACTLR 290.
The application
Ordinarily when a person has been convicted of a serious offence for which a sentence of imprisonment is inevitable or even highly likely, an accused person will, following the finding of guilt by a judge alone or a jury, will be remanded in custody pending sentence.
In this case, Elkaim J delayed Mr Wilson being remanded in custody for one month so that he could arrange his affairs prior to incarceration and to obtain a mental health report from a nominated psychiatrist in Sydney.
While such an approach is rare in Australia, so far as I am aware, it appears to be more common in the United States of America, where persons who have been sentenced to imprisonment may be directed to surrender to custody sometime in the future. I saw the fairness of granting some time in the community where there are matters to which a prisoner needs urgently or in fairness to address before serving a term of imprisonment in Stott v The Queen [2016] ACTCA 36.
There were, in this case, two bases on which it was said that the stay sought should be granted. In the first place, Mr Wilson was 75 years old, in poor health, showing signs of brain disease which might suggest the early stage of dementia, so that incarceration would be substantially harder on him than on other prisoners. Secondly, it was said that the prospects of success of the appeal were strong.
These matters were sufficient, it was submitted on Mr Wilson’s behalf, to justify the stay of the sentencing proceedings and his continued bail pending the hearing of the appeal. It was accepted that the appeal could not be heard until the sittings of the Court of Appeal in April 2017.
Mr Wilson’s health
As noted, Mr Wilson is 75. The offences were said to have occurred between 1973 and 1999. They were historical sexual assault cases.
Prior to trial, Mr Wilson was assessed by Associate Professor Tuly Rosenfeld, who advised Mr Wilson’s lawyers:
Mr Wilson’s C.T. scans show signs of brain disease. That suggests the early stages of dementia. It is not advanced enough to impact Mr Wilson’s trial however it may progress in the next few years and if Mr Wilson is found guilty I should see him again before his sentence hearing.
After sentence, further contact was made with Associate Professor Rosenfeld. He advised orally as to Mr Wilson’s current state of health:
He is generally in a bad way. He has signs of brain disease, heart problems and hypertension. He is overweight and doesn’t really look after himself.
If he’s put in gaol he won’t do very well. He may have trouble getting the medical attention he needs. He is not a healthy man.
As to his life expectancy, Associate Professor Rosenfeld advised:
If he has a long sentence his sentence will outlive him. If I was assessing his life expectancy for an insurance claim he is bad enough that I would discount the average by 50%. At 75, statistically he should live for about 5-10 years however I think he is likely to suffer some sort of terminal cardiac event or other terminal event in the next five years.
Prospects of success on the appeal
The Notice of Appeal set out four grounds of appeal. They were:
a)The verdicts of the jury in respect of counts 4, 6, 7, 9, 10, 11, 12, 15 and 16 are unsafe and/or unsatisfactory.
b)The verdicts with respect to counts 5 and 6 on the Indictment are inconsistent and illogical and suggest the jury engaged in impermissible reasoning;
c)
The learned Trial Judge unfairly and inappropriately interfered with the
cross-examination of LT resulting in a miscarriage of justice;
d)The evidence with respect to count 16 is not capable of proving the offence with which the appellant was charged.
Understandably and appropriately, counsel addressed only grounds (b), (c) and (d). It would be only in the rarest of circumstances, on an application such as this, that it would be possible to make a realistic assessment of the prospects of success of a ground that verdicts of guilty on nine counts on an indictment were unsafe and unsatisfactory.
I am reminded of what I said in Sherd v The Queen at 300; [53], that it is neither possible nor desirable to try the appeal on the application for a stay or for bail. See also R v Martin [2012] NSWSC 801 at [20].
Nevertheless, where, as here, a significant reliance is placed on the prospects of success of the appeal as part of the justification for the grant of bail, it is necessary to have regard to these issues.
The first matter dealt with was ground (b). Counts 5 and 6 on the indictment were both counts of assaulting a young girl, DN, who was under the age of 10 and, at the same time, committing an act of indecency on her. The jury acquitted Mr Wilson of count 5 and convicted him of count 6.
The events which constituted those counts were described by DN in her evidence as follows:
What happened this day that you were 10? --- I had been playing outside and I needed to go to the bathroom and there was only two bathrooms in the house. [Mr Wilson] was asleep. He had been working shift work. Somebody was in the main bathroom and I desperately needed to go. So I snuck into [Mr Wilson’s] bedroom, to [Mr and Mrs Wilson’s] bedroom, despite the door being closed and I went to the bathroom.
...
So tell us what happened? --- So when I went to the bathroom I obviously woke him up, and I hadn’t turned any lights on or anything like that but he asked who it was and I said that it was me and he called me around to his side of the bed, which was around the far side from the en suite door, and he asked me if I had any pubic hair yet and I shrugged. I remember shrugging and saying, ‘I don’t know,’ because I did have pubic hair, just, and I didn’t actually – wasn’t aware that that was normal. So I was embarrassed, I guess. So I just shrugged. So he put his hand down my pants and felt around and said that I surely must have noticed that and then he began fingering me and then he pulled me forward for a kiss and then told me that I could do better than that with the kiss and opened my mouth and used his tongue, all the while with his hand down my pants, and then he was encouraging me with the kiss and asking me if that felt good.
Had anyone kissed you like that before? --- No.
Had anyone touched your genital area like that before? --- No.
On the Crown case, the kiss constituted count 5 and the touching of the pubic hair and the vagina constituted count 6. The acts were said to have occurred in 1984 or 1985.
It was submitted that, in the evidence of DN, all of her references to this incident involved reference to both conduct; one was not mentioned by DN without the other; they were never mentioned by her as separate incidents.
Thus, it was submitted, the acquittal of Mr Wilson on count 5 was inconsistent with the conviction on count 6. If DN was not believed as to count 5, she could not be believed as to count 6.
That the credibility of DN in the trial was in issue can be seen from the cross-examination which included a challenge to the possibility of these events occurring as they were said to have occurred because, it was put to DN, Mr Wilson had, by the time of these events, finished doing shift work as he was transferred to another position in 1981 and was, at the time, not doing shift work when the events were said to have occurred. It was further put to her that, when Mr Wilson was doing shift work, DN was too young to have had pubic hair and that, by the time she had pubic hair, he was not doing shift work. DN agreed that, at the time she had pubic hair, he was not doing shift work. DN also agreed that, at the earlier period she would not have had pubic hair, but that “there might have been periods [after he officially finished shift work] that he did do shift work or overtime”.
Mr Wilson’s evidence was that from the late 1960s, he did work on a shift basis until January 1981. During that time, for some shifts he would be at home and “deliberately stay up until just before ‘the kids came home ... [and] go to bed then’. He denied that his new job thereafter required any shift work.
Further, DN did not give evidence that she consented to the kiss but not to the vaginal touching, which it was submitted, may have explained the different verdicts. I am not at all certain that a young person’s consent will provide a defence to an indecent assault, even though consent in certain circumstances does negate an important element of the offence of common assault. Because there was no such evidence, I do not have to consider the matter further.
DN’s mother gave evidence. This included some evidence of complaint by DN. In that evidence, however, DN’s mother mentions that DN told her that Mr Wilson had:
[p]ut his hand down her pants and said to her, you know, ‘Have you reached puberty yet?’
There was no mention in her evidence of DN mentioning the kiss.
This is obviously a strong submission by counsel for Mr Wilson, that the verdicts on the two counts are inconsistent, in accordance with the principles explained in MacKenzie v The Queen (1996) 190 CLR 348 at 369-70. In this case, it seems the inconsistency asserted is said to be a factual inconsistency.
This requires, however, that the Court must conclude that no reasonable jury properly instructed and whose members have applied their minds to the evidence could have arrived at the two different verdicts: Osland v The Queen (1998) 197 CLR 316 at 357-8; [120]. Thus, if there is a proper way by which the appellate court may reconcile the verdicts, allowing it to conclude that the jury has properly performed its function required at law, then that conclusion will usually be accepted: Mackenzie v The Queen at 376.
In this case, the Crown, ably represented by Ms M Jones, submitted that these were matters that could, in the consideration of a reasonable jury, differentiate the two counts. The first was whether the kissing was indecent, whereas it would be difficult and highly unlikely for a jury to find that the touching of DN’s vaginal area was not indecent.
Whether an act is indecent is a matter of fact inherently within province of the jury unless it could not, in law, be so. Indeed, as I explained in R v DM [2010] ACTSC 137 at [219]-[220], indecency is an expression of community opinion so that the jury must assess the acts by reference to whether the conduct was “so offensive to contemporary standards of modesty and privacy as to be indecent.”
Thus, the jury may have taken the view that, however, inappropriate or unacceptable it may consider the behaviour, the kissing did not rise to the level of indecency as a matter of fact.
The second matter on which the Crown relied was that, while DN’s mother reported DN’s complaint about this event, that complaint only encompassed the touching in the vaginal area and there was no mention of the kissing. The jury may have concluded that, in the absence of such a mention, it was not satisfied beyond reasonable doubt that the kissing occurred as alleged.
Somewhat curiously, Mr B Buckland, who appeared ably for Mr Wilson, submitted that the evidence of DN’s mother, who was called for Mr Wilson, may have been mistaken in her evidence because DN did not recall speaking to her. He submitted that the evidence of DN’s mother may have been an “artefact” that had been “generated from other sources as opposed to arising as a result of complaint”.
The second matter discussed was then ground (d) which relates to count 16.
Count 16 on the indictment was a count of committing an act of indecency in the presence of a young girl between the ages of 10 and 16 years.
The incident alleged occurred with the child QT, who was taken by Mr Wilson to the backyard some little time after she had arrived at the Wilson house from school. Mr and Mrs Wilson provided after-school care for QT at the time, when QT was about 11 years old.
She described the incident as follows:
What I was asking is, when you got out to the barbeque area and sat down, tell us what happened? --- Okay. He then started talking to me about how men and women make babies.
As – as best you can --- ? --- The mechanics ---
...
As best as you can recall, and I know this is a long time ago, but as best you can recall, can you tell us the words that he used. And if not the words then what it is you recall he told you? --- The most – the description that I can remember is Brian mentioning the penis being inserted in to the vagina, that’s the most I can remember, descriptively.
Okay. So you remember him saying those words ‘penis inserted in to the vagina’? --- And vagina. Yes.
What other things do you recall him saying, if you can’t remember the precise words that he used? --- I just remember him discussing how sex worked and how – that’s how men and women make babies.
It was submitted that this could not constitute an act of indecency as a matter of law. That is, of course, a high test. It is also relevant, however, that no submission was made to the learned Trial Judge that this count should be taken from the jury.
Mr Buckland submitted that there was, on the evidence, only factual information provided about human reproduction, using technical or medical terms without any words of “a foul nature”. It was a biologically accurate discussion, without any innuendo suggesting, for example, that QT should engage in that behaviour herself or without any demonstration or, indeed, any attempt to show QT by engaging in the conduct with her. As Mr Buckland submitted, it was “a clinical explanation which would be consistent with a sex education [class] in school”.
The Crown submitted, however, that whether the conversation was indecent was a question of fact for the jury. That is correct as noted above (at [45]). It was further submitted that the jury would be entitled to have regard to the age of QT at the time as to whether it was consistent with contemporary standards to have even a sex education lesson with a child of that age. Mr Wilson was not a teacher, nor was he QT’s parent; he had no particular responsibility for her sex education. There is no doubt that words can be indecent so that speaking them can be committing an act of indecency: Singleton v Police [2009] SASC 41 at [45].
The final ground was ground (c) in which it was suggested that the learned Trial Judge had improperly interfered with defence counsel’s cross-examination of LT, the complainant for counts 10, 11, 12, 13 and 14.
The issue arose in this way. During examination-in-chief of LT by the Crown, a floor plan of the home of Mr Wilson, drawn by LT, was admitted into evidence and then the Crown prosecutor asked some questions about it. There was a patio shown in the diagram and stairs from the back of the house. An arrow was shown which was explained by LT as indicating that underneath the patio, from which the stairs descended, there was a door that led to an area underneath the house. In that area were tools, work-benches and similar items. LT recalled a lawnmower, a mattress, and a chair. It was in a “hole in the wall space” in this area that some of the offences constituting these counts were said to have occurred.
In cross-examination, LT was shown some photographs which was how the house was when it was alleged that the offences against her had occurred. In particular, her attention was drawn to a part of a photograph; she identified it as showing a dark shadow, about which LT said “I feel like there was a door there. I feel like the opening to the space was smaller when I was younger”.
She did then say that she remembered going down the stairs and underneath the patio and there was a storage room which was what she identified on the photograph.
At the trial an issue was then raised by the Crown which was dealt with in the absence of the jury. It was submitted that the area identified in the photograph was not that area where the offences were said to have taken place and that, by proceeding as she did, defence counsel was unfairly “trapping the witness”. The Crown prosecutor submitted that LT should be permitted to look at all the photographs.
His Honour then said:
I will leave it to you, but it does seem to me that perhaps a fairer way of doing it would be to invite her to look through the photographs and then you ask her some questions.
The transcript then records defence counsel saying, “I’m content with that”.
When the evidence resumed, LT was asked to look at the photographs and “identify any photograph that [she said] is a room inside which there is a hole in the wall space”. She did so. Defence counsel was about to ask another question when his Honour interrupted suggesting that LT should look through the rest of the photographs and identified any other which showed the space; she did so. She then finished looking through all the photographs and the cross-examination then continued.
The next day, counsel raised the matter again, and submitted that the learned Trial Judge’s intervention had inappropriately interfered with the course of counsel’s
cross-examination or had allowed the Crown to do so. Counsel noted that she had finished the cross-examination and submitted that something should be said in the summing up.
The transcript then records:
HIS HONOUR: Okay. Well, why don’t you do this, Ms Tonkin: if you would like me to say something in particular in my summing up to the jury, why don’t you put it together and hand it up at an appropriate time and I’ll consider it. You know, just to meet whatever – any unfairness that you think may exist.
MS TONKIN: Look, your Honour, I’m content with that.
Defence counsel made some other complaints about interventions made by the learned Trial Judge. The first was that, after LT had identified the second photograph, defence counsel attempted to ask a question and the Crown objected, submitting that the witness should be permitted to look through the other photographs first. She did so and defence counsel returned to asking questions about the second identified photograph.
Secondly, defence counsel asked a question about insulation shown in the photographs and his Honour intervened to point out that the description that LT had given of insulation was different from that in the photograph.
Thirdly, the following exchange occurred:
MS TONKIN: So [LT], do I understand that in 2007 you had no memory of the incident which appears at paragraphs 25, 26 and 27 of your May 2015 statement. Is that correct? --- Anyway I move, I didn’t know how to project it as any form of truth or reality; I’ve got so many memories of everything. I didn’t know how to tell anyone.
So is it fair ---? --- Something I – sorry, go on.
Sorry, ma’am, have you finished? --- I’ve finished.
Just a statement you made, you didn’t know how to tell anyone. You were there in February 2007, you knew you were telling a story to the police, your story to the police, why it is that you say you didn’t know how to tell the police on that occasion?
HIS HONOUR: She hasn’t said that, Ms Tonkin. That’s an unfair question.
MS TONKIN: I did refer ---
HIS HONOUR: Just hold on. You are quite right, [LT]. What she said was she didn’t know how to tell anyone. She didn’t say she didn’t know how to tell anyone when she was sitting in that police station? --- ...
Defence counsel re-formulated the disallowed question as follows:
Why didn’t you tell anyone at the police in 2007 the events that you included in your statement in May 2015 at paragraphs 25, 26 and 27.
LT then answered the question.
Defence counsel did, as I understand it, draft a proposed direction for the learned Trial Judge to give to the jury with his Honour’s final directions and that direction was included in those directions that his Honour did give to the jury.
Mr Wilson says, however, that “the damage had already been done” and, by implication, a direction could not resolve it. It was put that, by “descending into the arena”, his Honour had already impacted on the cross-examination “to such an extent that it had fixed at this witness’ evidence in quite a serious way.”
The Crown submitted that, firstly, it would be important for the Court of Appeal to consider the whole trial and not to descend into unrealistic and microscopic examination of individual lines of evidence. In this case, it was pointed out, the evidence of LT occupied over 14 pages and took over an hour. The challenged passages were, in total, less than a page worth of transcript.
Further, it was submitted that his Honour’s interventions, even if challengeable, were relatively minor.
Then, a direction , to the jury was agreed and with defence counsel delivered in accordance with the draft proposed by defence counsel.
Neither counsel referred me to any authority which was relevant to this issue and which would assist in deciding whether the appeal ground had prospects of success.
The principles upon which appellate courts have decided whether the interventions of a trial judge justify a conviction being set aside have, however, been considered by many authorities. The principles may be summarised as follows:
(i) Under Anglo-Australian law, a criminal trial is not and does not purport to be an inquisition and each of the adversaries, the Crown and the accused, are free to decide the grounds on which the issues will be contested, the evidence to be called, and the questions to be asked of witnesses: Ratten v The Queen (1974) 131 CLR 510 at 517.
(ii) The role of the judge is to preside over the conduct of the trial, to see that the advocates behave themselves properly and keep to the rules laid down by law, to exclude irrelevancies and discourage repetition, to make sure he or she understands the points being made by wise and restrained intervention, and to ensure that the evidence comes out fairly and intelligibly. In doing so, he or she must exercise great care to avoid interfering unduly or unfairly with the course of examination, cross-examination or re-examination: Jones v National Coal Board [1957] 2 QB 55 at 64; R v Damic [1982] 2 NSWLR 750 at 762.
(iii) There is no prohibition on the judge making a proper intervention in the proceedings, such interventions being perhaps somewhat more common now in part because of the greater growth of court lists and increase in litigation without necessarily a concomitant increase in court resources: Galea v Galea (1990) 19 NSWLR 263 at 281-2. Indeed, it has been said that there is a basic right, underlying the adversarial trial, of having an impartial judge to see fair play in the conduct of the case; “one lawyer makes the case against the accused, another his case in response and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure”: Michel v The Queen [2010] 1 WLR 879 at 887; [31].
(iv) Interference or intervention by a judge which is excessive or undue in the conduct of the trial may constitute such a departure from the proper and orderly processes of a fair trial to which the parties are entitled as to amount of a miscarriage of justice: R v Mawson [1967] VR 205 at 207-8. The words “excessive” and “undue” are important The test is whether the trial is unfair so as to cause a miscarriage of justice: Michael v Western Australia [2007] WASCA 100 at [63].
(v) There are a number of ways in which the cause of that unfairness has been described:
(a) the parties must have a proper opportunity to advance the case each of them wishes to make: RPS v The Queen (2000) 199 CLR 620 at 625; [11];
(b) in a criminal trial, it is especially important for the accused to be able to adduce the evidence he or she desires to be adduced in support of his or her case with a minimum of interference: R v Davies [1984] 3 NSWLR 572 at 575;
(c) any questioning or other intervention by the judge must not give the appearance of an identification of the judge with one party or another: Lockwood v Police (2010) 107 SASR 237 at 241; [16]. There must be no perception of bias or that the judge has become an advocate: R v Esposito (1998) 45 NSWLR 442 at 469;
(d) any questioning by the judge must not constitute an egregious departure from the role of the presiding judge so as to compromise unduly the judge’s advantage in objectively evaluating the evidence or the conduct of the trial, sometimes referred to as allowing the eyes of the judicial officer to become “clouded with the dust of conflict”: Yuill v Yuill [1945] P 15 at 20; R v T, WA (2014) 118 SASR 382 at 391.
(vi)
There is, however, nothing wrong with a judge asking questions designed to clarify ambiguity, to rectify inaccuracy or, within reason, to identify matters of concern to himself or herself: R v Esposito at 472. Proper interventions, indeed possibly extensive interventions, may be required because of counsel’s failure to conduct proceedings property: R v Johnson [2015] QCA 270 at [98]. Indeed, the trial judge’s obligation may sometimes require him or her to ask questions of the witness, to require counsel to withdraw, or rephrase, questions and to raise concerns about the length or nature of counsel’s examination or
cross-examination: R v T, WA at 396; [53].
(vii)
On the other hand, it is not part of the functions of a trial judge to endeavour to fill gaps in a Crown case; nor to ask questions of an accused or any other witness in order to raise an issue which the Crown and the accused have left alone; nor to ask leading questions of an accused or any other witness in an endeavour to throw doubt upon the witness’ credit, particularly if the witness is the accused:
R v Brdarovski(2006) 166 A Crim R 366 at 374-5; [25].
(viii) Whether the judge’s intervention has resulted in an unfair trial or a miscarriage of justice will be a question of fact and degree: Nafranec v Nicol [2012] WASC 436 at [13]. It will depend on an assessment of the particular circumstances and will differ according to the facts of each case: Nafranec v Nicol at [14]; Cook v The Queen [2016] VSCA 174 at [30].
(ix) A mere statistical assessment of the judicial interventions may put the appellate court on notice but will rarely of itself suffice for the determination of whether the trial is fair or has produced a miscarriage of justice: R v Matthews (1984) 78 Cr App R 23 at 32-3.
(x) What is essential is to look at the quality of the interventions, the degree of participation by the judge in the context of the proceedings including, matters such as the importance of the witness in the proceedings, a consideration of the whole of the trial, and whether the interventions show a concluded opinion or one that might still be altered: R v Matthews at 32-3; R v Davies at 575; Galea v Galea at 281.
Consideration
I note that, at the beginning of the trial, Mr Wilson pleaded guilty to three counts on the indictment, which were counts of indecent assault on a girl under the age of 16 years.
That is important for those offences would ordinarily attract a sentence of immediate imprisonment. In such cases, general deterrence is of great importance, especially where the offender is in a position of trust to the victim as seems to be the case here: R v BJW (2000) 112 A Crim R 1 at 6; [20].
That Mr Wilson is 75 and in poor health is relevant but not determinative of whether a sentence of full-time custody is appropriate. It is not the law that a person with a serious medical condition may not be imprisoned. Mr Wilson has, after all, pleaded guilty and been found guilty of serious and abhorrent crimes. A recent example of where a person in a similar situation to Mr Wilson was imprisoned is seen in Wright v The Queen [2016] NSWCCA 122. There it was clear that the ill-health of Mr Wright was taken into account where it made the custodial environment more of a burden on him by reason of his age and health, but did not mean he could not be imprisoned. See Wright v The Queen at [51].
Indeed, the delay in sentencing caused by a stay may mean that, because of his health the ultimate delayed sentence will be even more burdensome on Mr Wilson than the sentence imposed now.
Under s 53 of the Corrections Management Act 2007 (ACT), the Director-General must ensure that detainees have a standard of health care that is equivalent to that available to other members of the community. There is nothing in the evidence to suggest that Mr Wilson will not receive such care or that his condition is other than amenable to appropriate care in the custodial environment.
I am not satisfied on the evidence before me that Mr Wilson’s medical condition justifies a stay.
As to the prospects of success, Mr Buckland has carefully and persuasively argued for the three grounds of appeal on which reliance is placed in this application.
In relation to the alleged inconsistency of verdicts on counts 5 and 6, there is clearly an arguable, perhaps strongly arguable, case for appellate intervention. The case is, however, by no means certain to succeed. There is evidence on which the jury could have relied to distinguish between the counts. Often such verdicts show that the jury is conscious of the heavy burden imposed on it because of the seriousness of its task. To be satisfied beyond reasonable doubt, when one matter has been mentioned to DN’s mother and the other not, may be seen by the jury to be, a proper basis for making the distinction between the counts
Further, it should not be overlooked that the kiss may not have been found by the jury to been indecent as opposed, for example, to have been merely inappropriate. That is essentially a fact for the jury.
The ground of appeal is by no means unarguable but, by the same token, it is by no means assured of success on the appeal.
As to the argument that the evidence could not sustain a verdict of guilty on count 16, the case for Mr Wilson is again certainly arguable but again he faces a formidable obstacle in that the question is essentially one of fact for the jury.
In the absence of any authority to support the proposition that the incident described by QT could not have been indecent as a matter of law, it is left to a matter of impression which does not seem to me to be a good basis for the success of the ground, especially in the light of the fact that no application to take the count away from the jury was made at the trial. The matters of circumstance in the context of the conversation that were raised by the Crown seem to support the contention that the question was one for the jury.
Again, the ground is by no means unarguable but, again, it is not so assured of success on appeal as to justify a stay.
The final ground argued is that of the interventions by the learned Trial Judge and whether his Honour had rendered the trial unfair by the interventions.
Mr Buckland did not articulate in clear terms how he said that the interventions by the learned Trial Judge had been a problem. The principles set out above (at [76]), require a clearer specification of how the trial had miscarried.
Trial counsel had suggested that the intervention had constrained her
cross-examination but did not articulate clearly how that had allegedly been done and to what effect.
In order properly to evaluate the ground, it is not sufficient merely to point to interventions nor even that they prevented counsel from asking questions she desired to ask. There clearly has to be more in order to appreciate any risk of the interventions adversely affecting the fairness of the trial. Further, the issue has to be evaluated in the context of the whole trial, the whole of the witnesses' evidence and the directions given. None of this was addressed.
Indeed, it is difficult to say whether the ground is arguable without much of this. Given what Mr Wilson’s counsel submitted at trial, when the Trial Judge then agreed to give a specific direction, there may be seen to have been an issue which the Trial Judge may be taken to have recognised, though the direction drafted by counsel and given to the jury may have adequately resolved it.
While not dismissing this ground as unarguable, I certainly have insufficient material before me to be able to say that it is likely to be successful on appeal.
As indicated above (at [13]), the fragmentation of a criminal trial is to be avoided where possible. To justify a stay of sentencing following a finding of guilt by a jury requires exceptional circumstances.
Here, neither Mr Wilson’s health nor the arguable – but not more than arguable – prospects of success on the appeal separately or together rise to the level of exceptional circumstances that justify delaying the sentencing of Mr Wilson pending the hearing and determination of the appeal.
Conclusion
I am not satisfied that Mr Wilson has made out a case for a stay of the sentencing proceedings.
The application must be dismissed.
| I certify that the preceding ninety-nine [99] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 October 2016 |
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