What happened
The appellant, who was both deputy principal and the complainant's mathematics teacher at her secondary school, faced four charges arising from alleged sexual misconduct with a 15-year-old female pupil. The prosecution case was that over a period of approximately six weeks the complainant, who had been visiting the appellant's office almost daily during recesses and lunch breaks to discuss her eating disorder and stressful family situation, met him at arranged locations outside the office where the three counts of aggravated indecent assault (Crimes Act 1900 (NSW) s 61M(1)) and one count of sexual intercourse with a person under authority (s 66C(2)) occurred. The circumstances of aggravation were the complainant's age and the appellant's position of authority. Consent was not in issue; the Crown contended the complainant had been infatuated with the appellant and a willing participant. The case was therefore classically one of oath against oath.
Pursuant to s 32 of the Criminal Procedure Act 1986 (NSW) the appellant elected to be tried by judge alone, the Director of Public Prosecutions consented, and the trial took place before Judge Luland DCJ sitting without a jury. Both the complainant and the appellant gave evidence and were cross-examined at length. The trial judge delivered a reasoned judgment in which he stated that the Crown case relied solely upon the complainant and that if he could not accept her evidence beyond reasonable doubt he must acquit. He went on to make various findings about peripheral matters, including whether the doors to the appellant's office were shut on occasions when the complainant was present. He concluded that the complainant was a witness of truth, accepted her evidence beyond reasonable doubt, rejected the appellant's denials, and convicted on all counts. Sentences of imprisonment were imposed.
The appellant appealed to the New South Wales Court of Criminal Appeal. That Court divided. The majority (Hunt CJ at CL and McInerney J) treated the principal ground as whether the verdicts were unsafe and unsatisfactory, applied the test in M v The Queen (1994) 181 CLR 487, made its own independent assessment of the evidence, and dismissed the appeal. Sully J dissented. The appellant then appealed to the High Court. The High Court (Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ delivering a joint judgment) allowed the appeal on a ground that had not been the central focus below: that the trial judge had failed to comply with the mandatory requirements of s 33 of the Criminal Procedure Act, in particular s 33(3) concerning jury warnings. The Court held that this failure constituted a wrong decision on a question of law under the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and a miscarriage of justice under the third limb. The proviso could not be applied because the miscarriage was substantial. The convictions were quashed and a new trial ordered. The Court also indicated that the unsafe-and-unsatisfactory ground, while not upheld for the purpose of acquittal, raised legitimate concerns about the process by which the trial judge had reached his credibility findings.
Why the court decided this way
The High Court began from the statutory text. Part 9 of the Criminal Procedure Act, inserted in 1990, permits an accused to elect trial by judge alone in indictable matters provided certain conditions are met. Section 33(1) provides that a judge's finding on guilt has, for all purposes, the same effect as a jury verdict. Section 33(2) requires that the judgment "must include the principles of law applied by the Judge and the findings of fact on which the Judge relied". Section 33(3) adds that if any Act or law requires a warning to be given to a jury, "the Judge is to take the warning into account in dealing with the matter".
The Court emphasised that these are legal imperatives, not mere exhortations. Drawing on Pettitt v Dunkley [1971] 1 NSWLR 376 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, it held that the obligation exists both to enable appellate review and, more fundamentally, to ensure that when the safeguard of jury trial is removed, justice is seen to be done. The judgment must expose the reasoning process linking the legal principles (including warnings) to the factual findings and ultimate verdict. A bare recitation is insufficient; the warning must be heeded "in a real sense" and the reasons must demonstrate that this has occurred. Otherwise the obligation in s 33(3) is not discharged.
In this case a warning was required. The Court cited R v Murray (1987) 11 NSWLR 12 and Longman v The Queen (1989) 168 CLR 79 for the proposition that where the prosecution depends on one witness asserting the commission of sexual offences, the evidence must be scrutinised with great care. Additional circumstances—the complainant's age, emotional instability, eating disorder, family stress and infatuation with the appellant—heightened the need for a stronger warning. The trial judge's single sentence that the Crown case "relies solely upon the complainant" and that he must acquit if unable to accept her evidence beyond reasonable doubt did not record or apply that warning. It was, in the Court's words, an "empty incantation".
The Court further illustrated the point by reference to the trial judge's treatment of the evidence about whether the office doors were shut. The judge regarded this as important to credibility, concluded from third-party evidence that there were "a number of occasions" when the doors were closed, found the appellant had not been truthful when he said the doors were never closed, and accepted the complainant's evidence on the point. Yet the complainant's evidence had been that the doors were always shut, while the third-party evidence rose no higher than "a number of occasions". The Court regarded this reasoning as illogical and as demonstrating the very risk that the omitted warning was designed to guard against. The failure was therefore not trivial. It constituted a wrong decision on a question of law and a miscarriage of justice. Given the centrality of the complainant's credibility and the importance the legislature attached to warnings, the miscarriage was substantial and the proviso could not save the convictions.
The Court also clarified that the first limb of s 6(1) ("the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence") must now be read through the prism of s 33(1). However, it was unnecessary to decide the precise limits of appellate intervention under that limb because the s 33 point was dispositive. The Court rejected the Court of Criminal Appeal's assimilation of judge-alone appeals to the pre-existing jury-trial jurisprudence without adequate regard to the new statutory requirements in Pt 9.
Before and after state of the law
Before the enactment of Pt 9 in 1990, trials on indictment in the Supreme Court or District Court were by jury except in limited circumstances. The Criminal Appeal Act 1912 (NSW) had been drafted on that assumption. Section 6(1) spoke of setting aside "the verdict of the jury" if unreasonable or unsupported, or setting aside the judgment for wrong decision on a question of law, or allowing the appeal if on any other ground there was a miscarriage of justice. The proviso permitted dismissal if no substantial miscarriage had actually occurred. The case law interpreting "miscarriage of justice" had developed in the jury context (M v The Queen, Davies and Cody v The King (1937) 57 CLR 170, Gipp v The Queen (1998) 194 CLR 106).
The introduction of judge-alone trials required the appellate regime to be adapted. Section 33(1) equates the judge's finding of guilt to a jury verdict "for all purposes", thereby attracting the Criminal Appeal Act machinery. However, the High Court held that the new provisions in s 33(2) and (3) create additional obligations whose breach itself constitutes error of law or miscarriage. Before Fleming, decisions such as R v Kurtic (1996) 85 A Crim R 57 and R v Ion (1996) 89 A Crim R 81 had suggested that an appeal from a judge-alone conviction would be allowed only if there was no evidence to support a finding, the evidence was all one way, or the judge had misdirected himself. The High Court distinguished those authorities. They did not adequately address the consequences of non-compliance with the specific statutory commands in s 33.
After Fleming the law is clear: a judge-alone judgment that does not expressly or by necessary implication demonstrate that a required warning has been taken into account and applied breaches s 33(3). That breach engages both the second and third limbs of s 6(1). The obligation is not satisfied by the judge's presumed knowledge or experience; the reasons must show the warning was heeded. The judgment must also expose the reasoning process linking principles of law (including warnings) to the factual findings. A mere statement of conclusions or an incantation of the warning will not suffice. The first limb of s 6(1) continues to operate but is to be applied to the judge's finding of ultimate guilt. The phrase "unsafe and unsatisfactory" is to be avoided in favour of the statutory language. Where the proviso is invoked, the court must consider whether the particular breach was so fundamental that it cannot be said that the appellant has had a trial according to law.
Key passages with plain-English translation
At [23] the Court sets out ss 32 and 33 in full. Section 33(2) is rendered as requiring that "the judgment must include the principles of law applied by the Judge and the findings of fact on which the Judge relied". Plain English: the written decision cannot be a bare verdict; it must spell out both the legal rules the judge used and the concrete facts the judge decided were proved, and it must show how the one leads to the other.
At [28] the Court states: "whilst s 33(2), when specifying that which a 'judgment' must include, does not use the expression 'reasons for judgment', it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached." Translation: ticking boxes by listing "I accept the complainant's evidence" and "I apply the beyond-reasonable-doubt standard" is not enough. The judge must explain why the evidence was accepted and how the standard was applied to the particular dangers in the case.
At [32]-[33] the Court deals with warnings: "The obligation imposed by s 33(3) 'to take the warning into account' is not only to be discharged but also to be seen to be discharged. ... A mere recording or statement of it, without more, would amount to an empty incantation. If these criteria are not satisfied in a particular case, then the judge is to be taken as not discharging the obligation imposed by s 33(3) that the warning be taken into account." Translation: it is not sufficient for the judge to think, "I know about the Longman warning." The written reasons must prove that the judge actually used the warning to test the evidence and must explain how the warning affected the decision. Otherwise the law has not been followed.
At [38] the Court concludes that the failure "involved a wrong decision on a question of law and the second limb of s 6(1) of the Criminal Appeal Act was attracted. The requirement of s 33(3) being mandatory in the sense discussed earlier in these reasons, there also was a miscarriage of justice within the third limb of s 6(1)." Translation: breaking the s 33 rule is itself a legal mistake that automatically gives the appeal court power to intervene, and it also means the trial was not conducted according to law.
At [39] on the proviso: "given the importance of the subject matter of the warning demanded by this case, the miscarriage of justice was a substantial one. This was not a case for the application of the proviso." Translation: some errors are so serious that you cannot dismiss the appeal on the basis that the result would probably have been the same. The failure to grapple with the dangers in the only witness's evidence went to the heart of the trial.
What fact patterns trigger this precedent
Fleming is triggered whenever an accused person elects trial by judge alone under s 32 of the Criminal Procedure Act and is convicted. The precedent applies with particular force in cases that would have required a jury warning had the trial been by jury. The classic example is a sexual offence prosecution that depends substantially or wholly on the uncorroborated evidence of the complainant. Factors that heighten the need for a warning—youth of the complainant, intellectual or emotional difficulties, delay, motive to lie, previous inconsistent statements, or any relationship of infatuation or dependence—engage the Longman/Murray line of authority and therefore s 33(3).
The obligation extends beyond sexual cases. Any principle of law that would require a warning or direction to a jury (for example, Domican directions on identification evidence, Edwards directions on lies, or warnings about unreliable witnesses under s 165 of the Evidence Act 1995 (NSW)) must be recorded and shown to have been applied. The precedent is not limited to cases in which the judge has made no mention at all of the relevant principle. Even a passing reference will be insufficient if the reasons do not demonstrate that the warning was used to test the evidence and to explain why the judge was satisfied beyond reasonable doubt despite the identified dangers.
Peripheral credibility findings that appear to rest on illogical or incomplete reasoning, as occurred with the office-door evidence in Fleming, are a tell-tale sign that the warning may not have been heeded. The precedent also applies where the judge has correctly stated the law but the reasoning process does not show how that law operated on the facts. Conversely, if the reasons expressly identify the warning, explain its content, and then demonstrate by detailed analysis how the evidence has been scrutinised in light of it, s 33 will be satisfied even if an appellate court might have reached a different view on the facts.
How later courts have treated it
The judgment itself reviews and distinguishes earlier Court of Criminal Appeal authorities. It cites R v Kurtic (1996) 85 A Crim R 57 and R v Ion (1996) 89 A Crim R 81 as having treated appeals from judge-alone convictions as limited to cases of no evidence, evidence all one way, or misdirection. The High Court distinguished those decisions on the basis that they did not grapple with the new statutory commands in s 33. It also cited R v O'Donoghue (1988) 34 A Crim R 397 for the proposition that an appeal under the Criminal Appeal Act is not a rehearing in which the appellate court substitutes its own findings. That proposition is affirmed, but is now subject to the overlay of the s 33 obligations.
The joint judgment approves the reasoning in Pettitt v Dunkley that failure to give adequate reasons can itself constitute error of law because it prevents the appellate court from discerning whether an error has occurred. It also draws on Soulemezis for the historical and policy reasons why reasons are now required. M v The Queen is cited for the unsafe-and-unsatisfactory test but the Court cautions that the phrase itself tends to confuse the distinct limbs of s 6(1). Longman v The Queen and R v Murray are treated as establishing the content of the warning that ought to have been recorded and applied. Krakouer v The Queen (1998) 194 CLR 202 and Wilde v The Queen (1988) 164 CLR 365 are referred to on the limits of the proviso; the Court reiterates that there is no rigid formula but that some errors are so fundamental that the conviction cannot stand.
Within the Fleming judgment itself the majority reasoning of the Court of Criminal Appeal is not followed on the s 33 point, although the High Court ultimately agreed with the majority that the evidence was capable of supporting conviction and that an acquittal was not required. Sully J's dissent is not expressly approved but the High Court acknowledged that the unsafe-and-unsatisfactory ground raised legitimate concerns about the trial judge's process. Thus Fleming both narrows the earlier CCA authorities and supplies a stricter standard against which all subsequent judge-alone judgments are to be measured.
Still-open questions
The High Court expressly left undecided whether, in a case where s 33 has been complied with, an appellate court may intervene under the first or third limbs of s 6(1) only where there is no evidence to support a finding, the evidence is all one way, or there has been a misdirection. That question remains for future decision.
It is also unclear how detailed the recording of a warning must be. The Court states that the reasons must show the warning was taken into account "in a real sense" and must not amount to an empty incantation. Whether a relatively concise paragraph that identifies the danger, states the warning, and then explains in two or three sentences why the evidence is nevertheless accepted will suffice, or whether a more elaborate Longman-style direction is required, is not settled. The Court noted that in some cases an examination of the reasons, even without express reference to a warning, might sufficiently disclose that the judge had regard to it; the limits of that proposition were not explored.
The interaction between s 33(3) and the common-law duty to give a warning in cases not covered by statute also remains open. The judgment assumes that any warning "required" to be given to a jury must be taken into account, but does not catalogue the full range of such warnings. Further, the Court did not decide whether a breach of s 33(2) in respect of principles of law other than warnings would automatically preclude the proviso or whether the proviso analysis differs according to the subject matter of the omitted principle.
Finally, the judgment leaves for "the appropriate authority" the question whether a retrial should be pursued having regard to the time already served by the appellant. That discretionary decision, and the extent to which appellate courts should take account of delay or partial incarceration when ordering retrials after Fleming errors, is not resolved by the reasons. These open questions ensure that Fleming continues to generate litigation about the adequacy of reasons in judge-alone sexual offence trials.