Christov in agreement"
The foregoing note is Exhibit A on the appeal.
42 As earlier stated, there is no clear recollection of all of the events that had occurred and there has been, quite understandably, a degree of reconstruction based upon the notes. Ms Nash has no record, in her diary, of the conference on 22 August 2006. Each of Ms Nash and Ms Havryliv take the view that Mr Christov, notwithstanding the words "Christov in agreement", did not agree, on 22 August 2006, to a Judge alone trial and the document (by this time created by Ms Havryliv's office) was not executed by Mr Christov at that time. Ms Havryliv was adamant that she did not have the Election Form document with her at the conference with Mr Christov, and understood the note "Christov in agreement" as being an agreement that the document would be prepared.
43 On the other hand, Mr Howard is definite that, at the time he affixed his signature to the Election Form, Mr Christov had signed the document and, as is clear from the Election Form itself, Mr Howard signed the document on 23 August 2006.
44 The records disclose that there was a further conference between Ms Havryliv and Mr Christov at MRRC on 24 August 2006. This conference occurred without the presence of Ms Nash, which, I hasten to add, is not a criticism of either Ms Nash or Ms Havryliv.
45 On 23 August 2006, Ms Nash handed Mr Howard the Election Form. According to Ms Nash it was a blank form that had been downloaded from "a criminal lawyer's" computer. Ms Havryliv gives no evidence as to the state of the Election Form, but attests to Mr Christov signing the Form on the morning of 28 August 2006, prior to the hearing. Mr Howard is adamant that the Form provided to him on 23 August 2006 was signed by Mr Christov, but not dated, and that his dating of the document, he considered, overcame the problems associated with the lack of date otherwise on the document.
46 On 24 August 2006, Ms Havryliv wrote to the Legal Aid Commission in relation to fees. The letter referred to a three-hour conference with the Director of Public Prosecutions on 21 August 2006, subpoenas that had been issued by the Crown returnable on 22 August 2006 and the level of preparation required. The letter also referred to a two-hour conference that Ms Nash and Ms Havryliv had with the Director of Public Prosecutions on 22 August 2006. The letter in part reads:
" An application for a Judge Alone Trial has been made and the Crown has agreed. This will result in what was to be a four week trial being significantly reduced, therefore saving the Commission and the State a long drawn out trial.
Ms Havryliv is currently on yet another conference with Mr Christov this afternoon, but will be available to discuss all these issues tomorrow." [Emphasis added.]
47 As already stated, on 24 August 2006, Ms Garrett, Kirby J's Associate, informed the Sheriff that the trial would be by Judge alone. Ms Garrett is of the view that the information she gave to the Sheriff's Office was given to her by the Crown. On 25 August 2006, the Criminal Registry caused the jury panels to be discharged.
48 There is no doubt that there were some pages of documents seen by and signed by Mr Christov on the morning of 28 August 2006. It is uncontroversial that, on that morning, Mr Christov signed the admissions as to fact upon which the trial proceeded and specific instructions to proceed to trial, notwithstanding the advice of counsel that he should plead guilty.
49 Each of the counsel involved in the proceedings was aware that the Election Form was required to be filed with the Court at least on a date earlier than the date fixed for trial. Neither of them expressed any concern at the time that, as earlier stated, Mr Howard tendered the Election Form. There is some inconsistency between the evidence given by Mr Howard, the Crown Prosecutor at the time, and Mr Hammond, his instructing solicitor. Mr Howard testifies that he gave specific instructions to Mr Hammond to file the executed Election Form. Mr Hammond denies those instructions and, indeed, testifies to his "panic" at the thought that it had not been filed.
50 Ultimately, the issue of fact is resolved by the determination of which of the various accounts is reliable. I reiterate that there is no suggestion that any of the witnesses is untruthful. Mr Christov bears the onus of proof, on the balance of probabilities, but the issue, in my opinion, does not depend upon onus.
51 In my view, the general thrust of the testimony of Mr Howard is to be preferred. Mr Howard's evidence is consistent, on the view I take, with the documentary evidence before the Court. I consider that the evidence of Ms Nash as to the initial opposition by Mr Christov to a Judge alone trial, while true, related to the conference on 15 August 2006, which Ms Nash had forgotten. I read the note of Ms Havryliv of the conference of 22 August 2006 quite differently from the reconstruction by either Ms Havryliv or Ms Nash.
52 The Election Form had been created on the morning of 22 August 2006. This was the Tuesday of the week prior to the trial commencing. Ms Nash was aware of the rule relating to the filing of the Election Form on a date earlier, at least, than the date for trial. If the document were not to have been signed on the Tuesday (in preparation for the conference with the Crown on the Wednesday), it would have been difficult, if not impossible, to file the document prior to the day that the trial was set for hearing.
53 The reference in the note of the conference of 22 August 2006 to "VH to prepare document for signature by Crown" is not, on my reading of the note, a reference to what is to occur. Ms Nash was seeking to persuade Mr Christov to agree to a Judge alone trial. Ms Nash has testified that it was difficult to persuade Mr Christov to agree to anything. The matter had been raised with him on 15 August 2006 and he had expressed the view that he was "good in front of a jury". Ms Nash was, as the note makes clear, telling Mr Christov that it was necessary for the defence to prepare a document for signature by the Crown, hence the need to have a decision immediately. That is the context in which the phrase, "VH to prepare document for signature by Crown", occurs in Exhibit A.
54 Mr Christov tested that persuasiveness by questioning his rights of appeal, if there were a Judge alone trial. After Ms Nash assuaged Mr Christov's concerns about his rights on appeal, Mr Christov agreed to the Judge alone trial and signed it. That document (executed as to the signature and witness only) was given to the Crown on 23 August 2006 at the earlier mentioned conference. The Crown completed the execution of the document on 23 August 2006 and dated it.
55 Unless one were prepared to accept that Mr Howard fraudulently entered the date, it must have been signed by Mr Howard on 23 August 2006. The only other alternative, consistent with the election not being prepared as at that date, is that Mr Howard signed an otherwise blank document. While there is some evidence to this effect, it is an unlikely scenario and one that is denied by Mr Howard.
56 Such a finding also accounts for the letter from Ms Havryliv to the Legal Aid Commission to the effect that, as at 24 August 2006, an application for a Judge alone trial "has been made".
57 Further, such a finding explains the cancellation of the jury panel, the communication with the Sheriff's Office, the existence of the stamp on the Election Form, Exhibit A in the trial, and the implied acceptance by all of the Counsel, at the time the document was tendered, that its timing created no issue. It does not explain the recollection of Ms Nash and Ms Havryliv that the document was signed at Darlinghurst on the morning of the trial. However, given that there were other documents signed by Mr Christov on the morning, this may explain the confusion in relation to that aspect. As to the discrepancy between Mr Howard and Mr Hammond as to who, if anybody, delivered the document, the discrepancy is irrelevant and easily explicable. Mr Hammond's recollection is understandably vague. Notwithstanding Mr Hammond's recollection, in my view, on the evidence as a whole, the likelihood is that the Election Form was then filed, either in the Registry or by delivery to the Associate to Kirby J (the stamp on it being one used by both the Registry and the Associate). The cancellation of the jury was confirmed thereafter.
58 Moreover, the explanation, or submission, that the phrase, "Christov in agreement", in the note of the conference of 22 August 2006, was a reference to Mr Christov's agreement to the preparation of the document, is inconsistent with the known fact that the document had already been prepared and had been created at 8.28am that morning. While there is no evidence as to whether the document had been printed at that point, there is also no suggestion that the document created that morning was subsequently modified, which fact would be ascertainable from the document's properties recorded on the computer from which its date of creation was derived.
59 On the basis of the above finding of fact, the Election Form (which is otherwise in the prescribed Form and was endorsed with the consent of the Director of Public Prosecutions, or a person authorised on his behalf) was filed before 28 August 2006, being the date fixed for the trial. As a consequence of that finding, there was compliance with the Rules and the conditions established by s 132 of the Criminal Procedure Act have been satisfied.
Strict Compliance with Conditions
60 Much of the submissions related to the necessity to comply strictly with the conditions prescribed by s 132 and the Supreme Court Rules in relation thereto. Further, there was significant debate on the proper construction of those conditions. Strictly, it is unnecessary, and probably undesirable, for the Court to reach a concluded view as to the necessity for strict compliance, or the proper construction of the legislation.
61 At one stage, Mr Game SC submitted that the provisions of s 132 of the Criminal Procedure Act were jurisdictional. There is support for such a submission, which derives from statements of this Court relating to trials before the District Court of NSW: R v Fisher (Court of Criminal Appeal, Gleeson CJ, 22 May 1995, unreported); R v Perry (1993) 29 NSWLR 589; R v Coles (1993) 31 NSWLR 550. Different issues arise in relation to trials and orders (and verdicts) of the District Court of NSW and of the Supreme Court of NSW, because of the status of the Supreme Court as a superior court of record: see R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 at 240-241. Whether the requirements of s 132 are jurisdictional or not, for a trial to occur in accordance with law, there must be either a trial before a jury or an election that allows a trial by Judge alone. In the case of a trial by Judge alone, in the absence of a valid election, there is no trial in accordance with law: Quartermaine v R [1980] HCA 29; (1980) 143 CLR 595; AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. In those circumstances, there is no occasion for the operation of the proviso.
62 The foregoing does not, however, provide support for the proposition that the Supreme Court Rules require strict compliance. Compliance is required of the conditions in s 132 of the Criminal Procedure Act.
63 The terms of s 132(6) make clear that the legislature intended that the section might operate in the absence of rules of court. Section 132(6) enables the making of rules; it does not compel the promulgation of such rules. In order to comply with s 132 of the Criminal Procedure Act, the accused must elect in accordance with the section and the judge must be satisfied that, before making such election, the accused had received advice in relation to the election from an Australian legal practitioner. The other conditions that require compliance relate to co-accused in one proceeding and/or all offences with which the accused is charged. Lastly, the election may be made only with the consent of the Director of Public Prosecutions and must be made before the date fixed for the accused's trial.
64 The Crown initially submitted, in effect, that an election was made when there was an intention formed for the Judge alone trial to occur. However, the election cannot be made without its publication.
65 It has been said that one of the purposes of the requirements in s 132 of the Criminal Procedure Act is to avoid "judge shopping". If that were a purpose, it is not achieved by the requirements of the Act or the Rules. In the Supreme Court, the practice adopted, in these proceedings, by Kirby J, is universally adopted in relation to criminal trials. In the District Court, if the election has not been filed prior to the date fixed for trial, the device is utilised to adjourn the proceedings to the next day and on that date re-arraign the accused and continue the trial, the election having been filed on the date prior thereto: R v Coles (1993) 31 NSWLR 550.
66 However, one of the other purposes of the requirements of s 132 of the Criminal Procedure Act is the achievement of certainty in the validity or legality of the process adopted. It would defeat the purpose of the provisions for there to be an election that is not communicated to the Court. It is unnecessary to determine how that communication could be effected other than by the filing of a document in the form prescribed by the rules.
67 The foregoing, as earlier stated, is not necessary for the determination of the proceedings. Nor is it inconsistent with the judgments to which reference has been made on the necessity for strict compliance with the provisions of the statute. Compliance with the statute does not import strict compliance with the rules and the form prescribed thereby. In my view it is unnecessary and inappropriate for the Court to embark upon the determination of whether, in relation to a trial in the Supreme Court, the provisions of s 132 of the Criminal Procedure Act are "jurisdictional".
Sentence Appeal: Utilitarian Value of the Manner of the Conduct of the Trial
68 The issue raised in the sentence appeal is that Kirby J did not take into account the utilitarian value in the manner in which Mr Christov conducted the trial. As earlier stated, the trial by Judge alone had benefits in the duration of the trial. Further, Mr Christov made admissions, consented to the tender of a large number of statements and did not cross-examine a number of Crown witnesses. The trial, because it was a trial by Judge alone, could be limited to the issue of substantial impairment and the determination of whether the act amounted to murder or manslaughter. There is no doubt that the effect of these matters saved Court time.
69 In R v Doff [2005] NSWCCA 119, this Court (Wood CJ at CL, Adams and Bell JJ) said at 58(c):
"The efficient way in which the Appellant's trial was conducted, including the making of extensive admissions, which while not demonstrating contrition or remorse, did show a willingness to facilitate the course of justice by refraining from resort to dilatory and technical objections of no merit. We do not see why this should not be taken into account for the purposes of sentencing, particularly in a case where there was a single issue of substance which it was appropriate for decision by a jury."
70 The Crimes (Sentencing Procedure) Act 1999 prescribes, in s 21A thereof, aggravating and mitigating factors that are required to be taken into account in the determination of a sentence. A sentencing judge is not, pursuant to those provisions, required to take into account the utilitarian value of the manner of the conduct of the trial. A plea of guilty is required to be taken into account by a sentencing judge, as is pre-trial disclosure. But the admissions made under s 184 of the Evidence Act 1995 were not pre-trial disclosures: see also s 22A of the Crimes (Sentencing Procedure) Act.
71 If the utilitarian value of the manner in which a trial is conducted were a mandatory factor to be considered in sentencing, then a failure to take such factor into account would be an error of law. But the Act does not so provide. The factor to which this Court referred in Doff, supra, is a factor that may be taken into account by a sentencing judge. But there is no requirement to take it into account. There may be circumstances where the failure to take such a factor into account would be an error that should, and would, be corrected on appeal. But this is not such a case. It is essential that a sentence imposed, regardless of the factors available, not be disproportionate to the offence committed.
72 The submissions of Mr Christov, on this issue, deal with a number of statements by Kirby J in the course of the sentencing proceedings as to his Honour's approach to the factor. Comments by judicial officers in the course of proceedings are not a considered view, and often do not express the view of the judicial officer at all. Such comments may be made to focus the attention of counsel on issues that need to be addressed or to refine the issues that are before the judicial officer. It is only in exceptional circumstances that such comments should be taken into account for the purpose of determining the attitude of a judicial officer to a particular aspect.