Appellant v Respondent

1 After a summary trial at the Latrobe Valley Magistrates' Court, the respondent Graeme Leslie Dyke was acquitted of the following charges:

(1) theft of six heifers contrary to s 74 of the Crime Act 1958 (Vic);

(2) wounding four heifers contrary to s 9(1)(a) of the Prevention of Cruelty to Animals Act 1986 (Vic); and

(3) removing National Livestock Identification System tags from the ears of four heifers contrary to s 9A(2) of the Livestock Disease Control Act 1994 (Vic).

2 In brief, it was alleged at trial that the respondent stole some heifers and tried to conceal the fact that they were stolen by cutting off parts of their ears, thereby removing identifying features, including tags.

3 At trial, the prosecution sought to rely on certain evidence as evidence of alleged incriminating conduct by the respondent. First, the prosecution relied on evidence that four heifers found in his possession (which could have been four of the six stolen heifers) had recently had parts of their ears cut off. Second, the prosecution relied on evidence that the respondent had allegedly falsified the birth records in relation to those four heifers. Third, the prosecution relied on evidence of the respondent's behaviour and remarks when police, whilst in his company, discovered those four heifers.

4 The learned magistrate was of the view that the evidence was capable of being incriminating conduct but accepted the respondent's submission that as no notice of incriminating conduct had been served pursuant to s 19 of the Jury Directions Act 2015 (Vic) ('JD Act'), the evidence was inadmissible as incriminating conduct. The prosecution submitted that the notice requirement only applied in jury trials. Consistent with that position, the prosecution did not seek a dispensation from the notice requirement.

5 The appellant submits the learned magistrate erred in law, first, in holding that the s 19 notice requirement applies to summary trials and, second, in excluding the evidence of incriminating conduct for lack of a notice. The appellant seeks orders setting the acquittals aside and remitting the case to the learned magistrate to be decided according to law. No order for costs is sought.

6 The parties to this appeal referred to various sections in the JD Act, the Criminal Procedure Act 2009 (Vic) ('CP Act') and the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('Charter'). I set out the relevant sections below (underlining added).

1 Purposes

The purposes of this Act are -

(a) to reduce the complexity of jury directions in criminal trials; and

(b) to simplify and clarify the issues that juries must determine in criminal trials; and

(c) to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and

(d) to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and

(e) to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible; and

(f) to provide for simplified jury directions in relation to specific issues; and

(g) to re-enact the Jury Directions Act 2013 with amendments; and

(h) to amend the Evidence Act 2008 in relation to corroboration directions; and

(i) to make consequential and other amendments.

...

3 Definitions

In this Act -

trial judge has the same meaning as in the Criminal Procedure Act 2009.

...

4A Application of Act to criminal proceedings without juries

(1) This section applies to -

(a) a summary hearing or committal proceeding under the Criminal Procedure Act 2009; and

(b) an appeal or case stated under the Criminal Procedure Act 2009; and

(c) an appeal or case stated under Part 5.4 of the Children, Youth and Families Act 2005; and

(d) a special hearing under Division 3 of Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and

(e) an appeal under section 24AA or 38ZE of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

(2) The court's reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 makes provision -

(a) must be consistent with how a jury would be directed in accordance with this Act; and

(b) must not accept, rely on or adopt -

(i) a statement or suggestion that this Act prohibits a trial judge from making; or

(ii) a direction that this Act prohibits a trial judge from giving.

5 Guiding principles

(1) The Parliament recognises that -

(a) the role of the jury in a criminal trial is to determine the issues that are in dispute between the prosecution and the accused; and

(b) in recent decades, the law of jury directions in criminal trials has become increasingly complex; and

(c) this development -

(i) has made jury directions increasingly complex, technical and lengthy; and

(ii) has made it increasingly difficult for trial judges to comply with the law of jury directions and avoid errors of law; and

(iii) has made it increasingly difficult for jurors to understand and apply jury directions; and

(d) research indicates that jurors find complex, technical and lengthy jury directions difficult to follow.

(2) The Parliament further recognises that it is the responsibility of the trial judge to determine -

(a) the matters in issue in the trial; and

(b) the directions that the trial judge should give to the jury; and

(c) the content of those directions.

(3) The Parliament further recognises that it is one of the duties of legal practitioners appearing in a criminal trial to assist the trial judge in his or her determination of the matters referred to in subsection (2).

(4) It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, should -

(a) give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and

(b) avoid using technical legal language wherever possible; and

(c) be as clear, brief, simple and comprehensible as possible.

(5) It is the intention of the Parliament that this Act is to be applied and interpreted having regard to the matters set out in this section (to be known as the guiding principles).

...

19 Prosecution notice of evidence to be relied on as evidence of incriminating conduct

(1) The prosecution must give notice of evidence of conduct that it proposes to rely on as evidence of incriminating conduct by serving on the accused and filing in court at least 28 days before the day on which the trial of the accused is listed to commence -

(a) a notice of intention to rely on evidence of incriminating conduct, in the form required by rules of court, if any; and

(b) a copy of the evidence on which the prosecution intends to rely.

(2) A notice under subsection (1) must be served in accordance with Part 8.3 of Chapter 8 of the Criminal Procedure Act 2009.

(3) The trial judge may dispense with the requirements of subsection (1)(a) or (b) if -

(a) during a trial the prosecution first becomes aware of evidence of conduct that it proposes to rely on as evidence of incriminating conduct; and

(b) the prosecution gives oral notice to the court and the accused of its intention to rely on evidence of incriminating conduct; and

(c) it is in the interests of justice to dispense with those requirements.

(4) If under subsection (3) the trial judge dispenses with the requirement of subsection (1)(b), the prosecution must identify orally to the court and the accused the evidence of conduct that it proposes to rely on as evidence of incriminating conduct.

Note

See section 8 for extension or abridgment of time.

20 Evidence of incriminating conduct

(1) The prosecution must not rely on evidence of conduct as evidence of incriminating conduct unless -

(a) the prosecution has given notice in accordance with section 19; and

(b) the trial judge determines that, on the basis of the evidence as a whole, the evidence of conduct is reasonably capable of being viewed by the jury as evidence of incriminating conduct.

Note

A trial judge may make a determination under paragraph (b) even where the evidence of conduct relates only to an alternative offence.

(2) Subsection (1) applies even if the evidence of conduct may be admissible for another purpose.

21 Mandatory direction on use of evidence of incriminating conduct

(1) If the prosecution relies on evidence of conduct as evidence of incriminating conduct, the trial judge must direct the jury that -

(a) the jury may treat the evidence as evidence that the accused believed that he or she had committed the offence charged or an element of the offence charged, or that he or she had negated a defence to the offence charged, only if it concludes that -

(i) the conduct occurred; and

(ii) the only reasonable explanation of the conduct is that the accused held that belief; and

(b) even if the jury concludes that the accused believed that he or she had committed the offence charged, it must still decide, on the basis of the evidence as a whole, whether the prosecution has proved the guilt of the accused beyond reasonable doubt.

(2) In giving a direction under this section, a trial judge need not refer to each act or omission of the accused.

Note

Section 6 provides that a trial judge need not use any particular form of words in giving a direction to the jury. For example, in relation to the direction referred to in subsection (1)(a)(ii), if the evidence concerns an element of an offence, the trial judge could refer to "knew" rather than "believed" to better describe what the incriminating conduct, if accepted, may prove.

3 Definitions

In this Act -

trial judge means the judge of the Trial Division of the Supreme Court or the judge of the County Court before whom an accused is tried;

25 Rights in criminal proceedings

(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

(a) to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that he or she speaks or understands; and

(b) to have adequate time and facilities to prepare his or her defence and to communicate with a lawyer or advisor chosen by him or her; and

(c) to be tried without unreasonable delay; and

(d) to be tried in person, and to defend himself or herself personally or through legal assistance chosen by him or her or, if eligible, through legal aid provided by Victoria Legal Aid under the Legal Aid Act 1978; and

(e) to be told, if he or she does not have legal assistance, about the right, if eligible, to legal aid under the Legal Aid Act 1978; and

(f) to have legal aid provided if the interests of justice require it, without any costs payable by him or her if he or she meets the eligibility criteria set out in the Legal Aid Act 1978; and

(g) to examine, or have examined, witnesses against him or her, unless otherwise provided for by law; and

(h) to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses for the prosecution; and

(i) to have the free assistance of an interpreter if he or she cannot understand or speak English; and

(j) to have the free assistance of assistants and specialised communication tools and technology if he or she has communication or speech difficulties that require such assistance; and

(k) not to be compelled to testify against himself or herself or to confess guilt.

(3) A child charged with a criminal offence has the right to a procedure that takes account of his or her age and the desirability of promoting the child's rehabilitation.

(4) Any person convicted of a criminal offence has the right to have the conviction and any sentence imposed in respect of it reviewed by a higher court in accordance with law.

...

32 Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made

10 In 2017, s 4A was inserted in the JD Act by the Jury Directions and Other Acts Amendment Act 2017 (Vic). The explanatory memorandum for the relevant Bill says this:

Part 2 - Amendment of Jury Directions Act 2015

Clause 3 inserts new section 4A of the Jury Directions Act 2015.

New section 4A - Application of Act to criminal proceedings without juries

New section 4A makes provision in relation to how the Jury Directions Act 2015 applies to magistrates and judges, including appellate judges and magistrates of the Children's Court, hearing criminal proceedings without juries.

New section 4A(1) sets out the proceedings to which this section applies, including summary hearings, committal proceedings, appeals and cases stated. For example, the section applies to proceedings in which Court of Appeal judges exercise either appellate or original criminal jurisdiction.

New section 4A(2) provides that the court's reasoning with respect to any matter in relation to which Part 4, 5, 6 or 7 makes provision must be consistent with how a jury would be directed in accordance with the Jury Directions Act 2015. For example, the Act provides that forensic disadvantage to an accused due to delay may only be taken into account if the court is satisfied that the accused has actually experienced a significant forensic disadvantage. It is appropriate that a magistrate hearing a criminal case involving delay and forensic disadvantage uses this same reasoning.

New subsection (2) also provides that the court must not accept, rely on or adopt a statement or suggestion that the Jury Directions Act 2015 prohibits a trial judge from making, or a direction that the Jury Directions Act 2015 prohibits a trial judge from giving. Where the Act specifically prohibits a trial judge making a statement or suggestion, or giving a direction (for example, because it would be incorrect or misleading), it would be inappropriate for a magistrate or judge to reason in accordance with that statement, suggestion or direction.

This section does not impose any additional procedural requirements on magistrates or judges. For example, this section does not require magistrates and judges to comply with the procedural requirements of the Jury Directions Act 2015, such as -

• the jury direction request provisions in Part 3; or
• preconditions to the giving of directions where Part 3 does not apply (for example, section 52(1)); or
• notice provisions (for example, section 19).

By imposing the broad requirement that courts reason consistently with "how a jury would be directed", the section will operate similarly to a hearing in which the parties had requested every direction that it would have been open to request (unless there would have been good reasons not to give a requested direction). (Emphasis and underlining added).

11 The appellant's submissions may be summarised as follows. It is clear from the relevant provisions of the Act (ss 1, 3, 4A, 5, 19, 21) that s 19 of the JD Act only imposes the incriminating conduct notice requirement in jury trials. Section 19 refers to the 'trial judge' (s 19(3)) which is defined as a judge of the trial division of the Supreme Court or a judge of the County Court (JD Act, s 3; Criminal Procedure Act 2009, s 3); s 19 makes no reference to magistrates. The focus of the JD Act - as is plain from the purposes (s 1) and guiding principles (s 5) of the JD Act, if not its title - is jury trials, not summary trials. The heading of s 4A of the JD Act - 'Application of Act to criminal proceedings without juries' - indicates that s 4A delimits the extent to which provisions of the Act apply in summary trials. The opening words of s 4A - 'This section' - indicates that other sections of the Act do not apply to summary trials unless s 4A produces that effect. Section 4A indicates that magistrates are to apply the reasoning described in s 21, not the procedural notice requirements referred to in ss 19 and 20. Had Parliament intended to incorporate the notice requirements in summary trials, it could easily have said so. There is no ambiguity to the relevant provisions of the JD Act that would require or indeed permit recourse to the explanatory memorandum for the Bill which introduced s 4A into the JD Act but, even if there is ambiguity, the explanatory memorandum expressly confirms that the s 19 notice requirements do not apply to summary trials.

12 The respondent's submissions may be summarised as follows. Section 19(1) of the JD Act does not distinguish between jury and summary trials and so must be understood as applying to both. Neither the words 'prosecution' nor 'trial' are defined to exclude the prosecution in a summary trial. Given the unambiguous terms of s 19(1), reference to the explanatory memorandum is not warranted. Section 4A of the JD Act does not deal exhaustively with the application of the Act to summary trials. Given an accused's right to be informed in detail of the reasons for a charge (s 25(2)(a) of the Charter[1]), the respondent's interpretation is compatible with Charter rights whereas the appellant's interpretation is not (the Charter, s 32). Had Parliament intended to dispense with incriminating conduct notice requirements in summary trials, it could easily have said so. The appellant's submission attaches undue emphasis to the use of the term 'trial judge' in s 19(3). 'Trial judge' is also used in s 20, which sets out the test a court must apply in determining whether evidence is admissible as incriminating conduct; acceptance of the appellant's submission would require magistrates to apply the common law test in determining the admissibility of purported incriminating conduct (because 'trial judge' is used in s 20) but apply s 21 reasoning to the evidence once admitted, which could not have been Parliament's intention. In the alternative, if no notice was required, the appeal should still be dismissed because it can 'be clearly said'[2] that the admission of the evidence would not have affected the outcome of the trial.

13 Section 19(1) of the JD Act, if read in isolation from the rest of that section and other relevant sections of the JD Act, gives no indication that the incriminating conduct notice requirement is limited to jury trials, but, significantly, s 19(3) refers to the power of a 'trial judge' to dispense with the notice requirement. As mentioned, 'trial judge' is defined as a judge of the trial division of the Supreme Court or a judge of the County Court; it does not include a magistrate. If the notice requirement applies to a summary trial, it is curious that a magistrate is not also expressly empowered to dispense with the notice requirement in an appropriate case. Hence, the first indication that the s 19 notice requirement does not apply in summary trials is found in s 19 itself. One then turns to s 4A of the Act, which was introduced in 2017. The heading of that section[3] is telling: 'Application of Act to criminal proceedings without juries'. It is s 4A which indicates the extent to which the various provisions of the JD Act apply in summary trials. Given the purposes and guiding principles of the JD Act set out in ss 1 and 5, not to mention the title of the JD Act, it is hardly surprising that a section such as s 4A is required if the JD Act is to regulate summary trials at all. While s 4A expressly indicates that magistrates in summary trials are to apply s 21 reasoning to evidence which has been admitted as alleged incriminating conduct, there is no indication that the notice requirement created by s 19 is also transposed to summary trials. And the application of s 21 reasoning does not necessarily presuppose or require the service of a notice. I consequently accept the appellant's submission that, having regard to ss 1, 3, 4A, 5 and 19, it is clear from the terms of the Act itself that the notice requirement does not apply to a summary trial.

14 Even if I thought that compatibility with s 25(2)(a) of the Charter required the service of an incriminating conduct notice in summary trials - which I do not[4] - the plain terms of the Act do not permit me to give s 19 of the JD Act an interpretation it cannot reasonably bear.

15 If I am wrong as regards the plain meaning of the relevant sections of the JD Act, the JD Act is at the very least ambiguous as to whether incriminating notices must be served in summary trials, justifying recourse to the explanatory memorandum[5] in relation to the introduction of s 4A which indicates expressly that the s 19 notice requirement does not apply to a summary trial.

16 I do not accept the respondent's submission that acceptance of the appellant's submissions will require magistrates to apply the common law when determining the admissibility of incriminating conduct evidence. Given the application of s 21 reasoning to evidence admitted as alleged incriminating conduct, it necessarily follows that magistrates must apply s 20 reasoning when determining the admissibility of evidence of alleged incriminating conduct. That follows from s 4A(2), which requires that a magistrate's reasoning with respect to any matter in relation to which Part 4 makes provision (including the admissibility of evidence of alleged incriminating conduct) 'must be consistent with how a jury would be directed in accordance with' the JD Act.

17 In conclusion, my task is to declare what the law is, not what it should be. Regrettably,[6] ss 4A and 19 of the JD Act, in particular, dictate the conclusion that the learned magistrate erred in concluding that the evidence was inadmissible as incriminating conduct because there had been no s 19 notice.

18 The respondent's alternative argument was that I should dismiss the appeal because, even if the incriminating conduct evidence had been admitted, it is clear that it would have made no difference to the result of the summary trial. I do not share that view. The first two categories of the alleged incriminating conduct[7] are in my view capable of being viewed by the magistrate as an implied admission of the guilt of the charged offences. Whether the magistrate ultimately decides, applying s 21 reasoning, that the conduct is an implied admission of guilt is a matter for him as the trier of fact. But given the capacity of the impugned evidence, it is not possible to be satisfied that its admission into evidence would not have affected the outcome of the summary trial.

19 Accordingly, I set aside the verdicts entered by the learned magistrate and his order as to costs.

20 Pursuant to s 272 of the CP Act, I remit the matter to the Magistrates' Court to be decided according to law. The original magistrate should resume hearing the matter if he is available to do so.[8]

[1] The respondent also relied on the equivalent provision in the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) art 14(3)(a).

[2] Clubb v Edwards [2020] VSC 49, [103].

[3] Headings of sections form part of an Act pursuant to s 36 (2A) of the Interpretation of Legislation Act 1984 (Vic).

[4] Pre-hearing disclosure of the prosecution case pursuant to Division 2 of Part 3.2 of the Criminal Procedure Act 2009 will generally satisfy the requirement that an accused in a summary trial be informed 'in detail' of the reason for a charge.

[5] See, eg, Interpretation of Legislation Act 1984 (Vic) s 35(b)(iii); Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [31]-[34].

[6] In my view, it is regrettable that the notice requirement does not apply to summary trials and, hopefully, the legislature will harmonise jury and summary trials in this regard. Incriminating conduct evidence, which used to be referred to as consciousness of guilt evidence, has a vexed history. Many convictions have been overturned because of the wrongful admission of evidence said to support consciousness of guilt or incriminating conduct reasoning. The notice requirement 'forces' the prosecution to make a timely and considered decision prior to trial as to whether to rely on evidence as incriminating conduct. The notice gives an accused appropriate forewarning of how the prosecution intends to use the relevant evidence, thereby enabling the parties and the court to thrash out the sometimes complex issues surrounding such evidence. Notices would not be unduly burdensome for summary prosecutors; they are accustomed to serving hearsay, tendency and coincidence notices pursuant to the Evidence Act 2008. In my view, the interests of justice would be better served by a notice requirement whenever and wherever evidence is sought to be used as incriminating conduct. To that end, I will have these remarks brought to the attention of the Attorney-General.

[8] I note that the parties agreed that it would be more efficient for the original magistrate to resume the hearing of the matter than for the case to be completely reheard by a different magistrate.