DPP v Burgess [2001] VSCA 135

DPP v Burgess [2001] VSCA 135 - VSCA 2001 case summary — Zoe

[13]

The power of this Court generally to receive further evidence on appeal is to be found in s.574 of the Crimes Act 1958. Subject to one qualification, s.574 is essentially still in the form in which it was first introduced in 1914, having been copied form s.9 of the Criminal Appeal Act 1907 in England: see s.9 of the Criminal Appeal Act 1914 which became in turn s.600 of the Crimes Act 1915, s.600 of the Crimes Act 1928 and s.570 of the Crimes Act 1957. Such legislation is found too in similar terms in other States: see for example the local legislation discussed in R. v. Beldan, ex parte Attorney General[1] (Queensland), in R. v. Cartwright[2] (New South Wales) and in R. v. J.[3] (South Australia). Section 574(b) authorises the appellate court (formerly the Full Court and since 1995 the Court of Appeal) to order the taking of evidence from a witness who is compellable, while s.574(c) authorises the appellate court to receive evidence from a witness (including the appellant) who is a competent witness though not compellable; and so the power of this court to receive further evidence on appeal generally cannot be doubted. Until s.574 was amended by Act No. 109 of 1994, s.574(f) also authorised the appellate court, on a criminal appeal, to exercise any other powers that the Court might exercise on appeals in civil matters and many an affidavit was doubtless received in consequence: R. v. Cox[4], R. v. Kane[5]. In anticipation of this court's commencing in June 1995, s.574 was amended to replace references to the Full Court with references to the Court of Appeal, and at the same time paragraph (f) was repealed, although, I must say, for a reason which is not at all clear to me. But the repeal of paragraph (f) of s.574 cannot be taken to inhibit or deny the power of this Court to receive on affidavit evidence which otherwise it must order to be taken viva voce[6]; so much can surely be justified by reference to this court's inherent power over its own procedures. It is consistent with that approach that no objection was taken to this Court's receiving the three affidavits tendered on this occasion.

[41]

That would be sufficient without more to justify concluding in this case that the proviso does not stand in the way of our re-sentencing the respondent by increasing the sentence imposed below. There is in Victoria, however, another solution to the problem apparently posed by the proviso - and again it is a solution which was at least suggested in Kane. In Victoria, unlike the position elsewhere, s.574 is expressly extended and applied to a Crown appeal by s.567A(5), as I have said, but that extension and application of s.574 is itself expressly qualified. It is extended and applied only "so far as ... applicable and with such modifications and adaptations as are necessary". I have said already that there is, at least at first glance, an obvious tension between the admission of the further evidence on a Crown appeal against sentence, as authorised by s.574 when applied by s.567A(5), and the proviso to s.574 if that operates to limit the powers of the appellate court to re-sentence. But if there is such tension, surely it must give way in view of the words directing adaptation and modification. I see no reason why one of the necessary "modifications and adaptations" should not be that the proviso must not be taken, in a case like the present where fraud by the respondent is alleged, to preclude re-sentencing to the disadvantage of the respondent. At least in part the proviso may be reflective of the common law, given what was said by the High Court in Dimozantos (No. 2)[25] and in particular the reference there made to the judgment of Mason, C.J. and McHugh, J. in Radenkovic[26], as cited by Brooking, J.A. in WJW[27]. The respondent is ordinarily not to be prejudiced by some change in circumstances after sentence was passed, whereas here re-sentencing is authorised in order to correct the deception practised on the sentencing judge - and surely in such a case the sentence can be increased. The proviso must thus far give way to commonsense. In the parlance of s.567A(5), s.574 is then being applied with such modification or

[79]

It does not appear to be suggested that the expression "the trial" in the proviso should be read literally so that the proviso is inapplicable where an accused person pleads guilty, and that was not the ground on which proviso was held inapplicable in Beldan, where the respondent to an Attorney-General's appeal had pleaded guilty. I am prepared to assume that the words "at the trial" are to be understood as meaning "at first instance".[39] Section 574 is widely expressed, its powers being given "[f]or the purposes of this Act", not merely for the purposes of Part VI, let alone the purposes of appeals and applications under s.567. It cannot, in my view, be said that the proviso to s.574 has no application in a Director's appeal on the ground that s.567A, authorising such an appeal, was inserted in the Act much later and by implication repealed or excluded the proviso as regards Director's appeals. This is because s.567A(5) expressly picks up s.574, which is, at any rate with modifications and adaptations, applicable, and the proviso is part of s.574 and, in any case, qualifies its empowering provisions. McPherson, J. in Beldan[40] certainly considered that the proviso ordinarily applied to a Director's appeal, as by implication did Olsson, J. in the South Australian Court of Criminal Appeal in R. v. J[41] and the New South Wales Court of Criminal Appeal in Chan Nghia Ly[42]. The view which I have just expressed is subject, in the case of this State, to a possible qualification arising from the words "with respect to procedure" in s.567A(5). I agree with the appellant that the sub-section is inelegantly expressed. There are several difficulties of interpretation relating to the expression quoted. The Second Reading Speech for the Bill for the Criminal Appeals Act 1970, which inserted s.567A, is of no help, merely stating that procedural provisions are contained in proposed sub-s.(5). There is a question whether the expression applies to all the provisions enumerated or only to the last three sections mentioned. Even if the former view is correct (as I think, for as a matter of syntax[43] the expression qualifies "the provisions") it is not necessarily the case that each provision is not entirely procedural. I consider that s.574 is entirely procedural. Clearly paragraph (g) is procedural, but the evidentiary powers also are, in my view: the law of evidence, being adjectival, is often treated as part of the law of procedure as opposed to substantive law, and, after all, s.574 is found in a Division headed "Procedure", that heading being part of the Act: Interpretation of Legislation Act 1984, s.36(1)(a). Indeed all the provisions enumerated in s.567A(5) are procedural.[44] This leads me to think that the expression quoted is not definitive ("those provisions of sections ... that relate to procedure"), and that it does not denote extent ("so far as the provisions of sections ... relate to procedure"), but rather that it is merely a descriptive parenthesis ("the provisions of ..., which relate to procedure", the commas being critical, i.e., "the procedural provisions consisting of sections ..."), a device found more frequently in English statutory drafting than Victorian. In short, Parliament is simply pointing out that all the provisions enumerated are procedural. The proviso is integral to, and qualifies the body of, s.574[45]. If, as I think, s.574 applies to a Director's appeal, so, subject to its proper interpretation, does the proviso. I do not accept the appellant's submission to the contrary[46]: fresh evidence in the ordinary acceptation of that term may by leave be adduced by appellant or respondent, but the respondent is protected as a matter of high principle by the proviso from suffering an increase[47] in sentence by reason of the fresh evidence, as opposed to by reason of correction of error made on the evidence and other material that was before the sentencing judge.

[86]

This appeal was originally listed before a court constituted by Tadgell and Callaway, JJ.A. and me on 6 December 2000, when it was ordered to be taken out of the list and re-fixed. The principal reason for the court's so ordering was that the solicitor then appearing as counsel for the respondent stated that he desired to file psychiatric (or, it may be, psychological) evidence and evidence to be gathered from Tasmania, New South Wales and Queensland. In the afternoon of 13 June 2001, the day before the re-fixed hearing of the appeal was due to commence, the court received an affidavit sworn that day by the respondent's solicitor to which were exhibited voluminous records relating to the respondent. They were child protection and social welfare records from Tasmania; her medical records from hospitals in Rockhampton, Mackay and Melbourne and from a Shepparton medical practice; records relating to the conviction of the respondent's husband Garry Robert Blake on 7 March 1989 for recklessly causing injury to her on 2 December 1988, for which he was sentenced to three months' imprisonment wholly suspended; records relating to the conviction on 21 February 2000 of Stephen Michael White, the respondent's then de facto husband, for unlawful assault upon her on 25 October 1999 and again on 17 February 2000 and for other offences on the latter date, including breach of an intervention order and threatening to kill her, for which he was sentenced to three months' imprisonment in aggregate, as well as convictions on 5 June 2000 for a later breach of the intervention order and associated offences, for which he was placed on a two year community-based order. (I interpolate that the respondent's record of interview concerning the instant offence shows that White was in the St. Kilda lockup at the time of her interview.) Finally, there was a medical report from Dr. Sneyd of the above-mentioned Shepparton medical practice dated 13 June 2001. All but the last of those exhibits were in existence at the time of the plea and could have been produced on the plea. The last exhibit relates to the respondent's health at the time the appeal was heard. It follows that none of the exhibits can be used to support the orders below, though all may be used on any re-sentencing by this Court.

[106]

I think that a different sentence should have been passed and would allow the appeal. As the President pointed out during argument, the primary consideration must be the nature and gravity of the offending together with the criminality of the offender. The offence of intentionally causing serious injury is a very serious one, as is shown by the maximum penalty provided for it, and ordinarily an immediate custodial sentence of some duration is the only appropriate disposition despite even youth, good prospects of rehabilitation, lack of prior convictions and a plea of guilty (by no means all of which are present here): R. v. Teichelman[61]. The instant offending was, as the sentencing judge observed, a serious example of the offence, involving as it did the use of a knife to stab the victim in the neck, a very vulnerable part of the human body. Whilst the respondent is fortunate that the knife missed vital organs and the laceration was not permanent, the amount of blood lost shows the seriousness of the injury. Moreover the attack, although unpremeditated, was unprovoked. The offence was aggravated by being committed in breach of the undertaking to be of good behaviour, and the applicant had some prior convictions, though only a minor and old one for violence. The mere fact that the respondent was prone to lose control and become violent under the influence of alcohol is not, in my view, a mitigating factor. Nor does the fact that this was in effect the first occasion on which the respondent did real violence to another person reduce her criminality. It merely negates what might otherwise be an aggravating circumstance. The respondent's emotional or mental instability and unfortunate background do go in mitigation, as does the plea of guilty. But, where the psychiatric reports do not show a psychosis or mental illness directly causative of the offending, those factors do not, in my view, moderate[62], or at any rate moderate sufficiently for the respondent, the principal sentencing purposes of general deterrence and specific deterrence, which, along with denunciation of the offence and just punishment, require immediate imprisonment for this offence.[63] Moreover, on the material that I accept, the prospects of rehabilitation are not very strong, though Dr. Vine's concluding remarks offer some hope.

At a glance

Court

Decision date

Before

Source

Judgment (154 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)