R v Walker [2004] VSC 411

3 The accused before me was charged on a presentment filed in the County Court that contained two counts. The first count was of rape. The second count was of taking part in an act of sexual penetration with a child under the age of 16. Both counts related to the same alleged act of digital penetration. On Wednesday, 1 September 2004, the trial commenced before an experienced County Court judge. Whilst the jury was selecting its foreperson, the judge asked the prosecutor whether Count 2 was in the alternative to Count 1. The prosecutor said that it was. The case was opened to the jury on the basis that count 2 was an alternative to count 1. On Thursday, 2 September, after the complainant and one other witness had given evidence, Mr Chadwick of counsel, who appeared for the accused, applied for the discharge of the jury without verdict. Mr Chadwick put to the judge that the second count was not capable of being an alternative count, and that the prosecution could not lay two separate counts. He referred to R v Fisher, Marshall & Mitchell (1969) 2 QB 114, to passages in Heath's "Indictable Offences in Victoria", and to passages in Bourke's Criminal Law. In the last book, at p 5291, the commentary on s.425 of the Crimes Act says: "The alternatives set out in s.425 should be regarded as exclusive". The commentary then refers to Fisher and to eight other cases: R v Bostock (1893) 17 Cox CC 700, R v McIntyre (1896) 3 ALR 85, R v Brady (1976) 14 SCR (NSW)(L) 468, R v McCready [1967] VicRp 36; [1967] VR 325, R v Ball [1948] St R Q 212, Harald v R [1941] St R Q 290, R v McGee (1983) 6 QLJ 151 and R v Buzzard (1884) 5 LR (NSW) L 419. After hearing further submissions, the judge said that he accepted that the second count was not an alternative to the first because of the different elements to be proved by the prosecution. He referred to passages in R v Sessions (1998) 2 VR 304, and to the terms of s 425 of the Crimes Act. He noted the different alternatives to different offences provided for in the section, and the potential for duplicity and inconsistent verdicts. He expressed a concern as to the potential for the jury being confused. He discharged the jury.

4 Although the judge was willing to start a re-trial, on Friday 3 September, the Director of Public Prosecutions applied to this court under s.359(1) of the _Crimes Ac_t for an order that the trial be transferred to the Supreme Court. The application, heard by Justice Smith, was opposed. After hearing submissions, Justice Smith noted that Count 2 was neither a statutory nor a common law alternative, but what was described as a count laid as an alternative. He noted further that, while the judge in the County Court had not been asked to sever the presentment, the accused now wished to apply for that to be done. He said that he had been informed that it had been the practice for many years to include the two counts contained in the presentment where it is alleged that a rape was committed on a person under the age of 16 years. Accepting that the argument sought to be raised by the accused would challenge a long-standing practice, and that the argument was likely also to involve consideration of the order in which the two counts and their statutory alternatives should be considered by a jury, and that it was not disputed that a significant number of cases were pending which raised the same issues, he concluded that important questions affecting the administration of justice had been raised and granted the application. The trial was set down to start before me on Monday 6 September.

5 On Monday 6 September, to accommodate Mr Tehan of Senior Counsel who was briefed with little notice to appear before me, and who already had a commitment to appear that day in the Court of Appeal, I provided to him a list of statutory provisions and authorities that I had prepared over the weekend. When the matter was argued on the Tuesday, Mr Tehan took me to those authorities (including Fisher and the other eight referred to in Bourke's Criminal Law) and to several others.

6 Mr Tehan put to me that severance of Count 2 should be ordered because s.425 had created an exclusive code for alternative sexual offences. He argued that cases like Fisher and the other cases referred to in Bourke's Criminal Law showed that the issue of whether alternatives were properly left in sexual offence cases was governed by statute. He noted that the propriety of the practice of charging both rape and sexual penetration had never been specifically challenged, although cases like R v Broadbent [1964] VR 734 had involved such a practice. Noting the inclusion in my list of two "drug" cases, he argued that what had been said in such cases had little relevance as in such cases there was usually but one issue, that of knowledge. He argued that the charging of the two different offences would unnecessarily complicate the trial, and reduce the chances of an acquittal.

7 I was and am satisfied that I should not order severance either because obliged to do so or because I have a discretion to do so and ought to exercise it. In short, s.425 is not to be treated as a code. A broader interpretation is more consistent with authority. It better takes account of all the interests that should be taken into account. It does not prejudice the accused unfairly. It preserves a desirable level of flexibility. Moreover, there is available the means of minimising the risk of accused and jury uncertainty.

8 As to both the form of the statutory provision and as to authorities, Mr Tehan was at a disadvantage. If s.425 had been intended to be read as a code, that intention might have been stated, or words indicating that intention might have been used. They are not. Further, Mr Tehan did not put to me any authority which directly supported his position.

9 There are many statutory provisions which bear on how charges of criminal offences are to be presented, interpreted and dealt with by juries. They include s.421, which contains a general provision as to alternative verdicts, and s.51 of the Interpretation of Legislation Act 1984 which I have set out above. They also include, although I have not set them out, the Presentment Rules in s.371 and the Sixth Schedule to the Crimes Act. S.425 was introduced in the Crimes (Sexual Offences) Bill in 1980. In the second reading speech on 5 December 1980, this was said: "Clause 8 of the Bill sets out a new Section 425 of the Crimes Act dealing with the cases where a jury is able to deliver an alternative verdict." Further amendments to the alternative verdict provisions were introduced in the Crimes (Classification of Offences) Act 1981. That Act abolished the division of crimes into felonies and misdemeanours. The sidenote: "Alternative verdicts generally" was then added.

10 The words "Alternative verdicts" have been used somewhat differently in different contexts, as was noted by Justice Smith on the s.359(1) application. Further, it has been suggested that there may be "true" alternatives. In R v Salisbury, [1976] VicRp 45; [1976] VR 452 there is a discussion on alternative verdicts. It is prefaced at 454 by a reference to "what is sometimes for convenience called an alternative verdict." There is reference to the distinction between "statutory provisions as to such alternative verdicts", and to "the common law position." It is noted that the distinction mattered as between felonies and misdemeanours. It is also noted that a further distinction had to be drawn as between a lesser offence which was, or was not "necessarily" included in the offence charged. In separating one from the other, one considered the terms in which the offence was laid, not the evidence led at the trial. In Burr, reference is made to a second offence which is "not truly alternative" to the first. The notion of "true" and "not true" alternatives is not explained.

11 As noted above, there are many statutory provisions which bear on how charges of criminal offences, and alternative charges, are to be presented, interpreted and dealt with by juries. In interpreting those provisions several different interests have to be taken into account. Of prime concern is the interest in securing a fair trial. In the recent case of John Fairfax John Fairfax Publications Pty Ltd & Anor. v District Court of NSW & Ors, [2004] NSWCA 324, Spigelman CJ said at [23]: "There is no aspect of preparation for trial or criminal procedure which is not touched by, or indeed determined by, the principle of a fair trial. He then quoted from Lord Devlin in Connelly v Director of Public Prosecutions [1964] AC 1254 at 1347: "[N]early the whole of the English criminal law of procedure and evidence has been made by the exercise of the judges of their power to see that what was fair and just was done between prosecutors and accuseds."

12 There are a variety of principles designed to minimize, if not avoid, the prospect of unfairness to an accused. It would be unfair for an accused: not to be informed in advance with reasonable precision what charges he had to meet; to be burdened with totally unrelated charges which are lumped together by the prosecutor; or, to be charged later after having earlier been put to trial and either acquitted or convicted with respect to that matter. As to the third of those, in Rogers v The Queen (1994) 181 CLR 251, there was an analysis of the various facets of the different rules and maxims including autrefois acquit. At 278, Deane and Gaudron JJ who formed part of the majority referred to: "...the doctrines that have developed with respect to the unassailable nature of an acquittal and the need for consistency." Those doctrines are aimed in part at preventing a person being prosecuted more than once. The prosecution should not be allowed to make repeated attempts to convict a person. It may be unfair for an accused to be put up for a second trial with lesser charges as to the same matter that could have been heard at the first trial. It is preferable that an accused should have the jury consider such other charges at the first trial. It is preferable that an accused should at one trial rather than multiple trials have alternatives considered. Such a course carries with it a risk that the accused may be less likely to be acquitted on the main charge. It would be unfair for an accused to be punished, and "punished" here includes "convicted" on more than one occasion, or with respect to more than one charge, for what is substantially the same act.

13 Intermixed with considerations of fairness towards the accused are some other considerations. The public interest in the administration of justice extends to ensuring that the processes of the court are used fairly by State and citizen alike. There is also a public interest in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the processes of the court may lend themselves to oppression and injustice. See Richardson J in Moevao v Department of Labour [1980] 1 NZLR 464 at 481.

14 Priestley JA in R v Oliver (1984) 57 ALR 543 at 547 noted that, in deciding whether separate or joint trials should be held, a court must consider, on the one hand, prejudice to the accused and, on the other hand, the question of the public interest in the efficient despatch of trials, the conserving of costs and the avoidance of any inconvenience to witnesses by having to attend a number of trials. He added that it was also in the interest of the accused and of others that all of the various people allegedly concerned in the one crime are all dealt with by the one litigation "unless positive injustice would be caused by it." In Jago v The District Court of New South Wales and Others [1989] HCA 46; (1989) 168 CLR 23, Brennan J said at 50: "The victims of crime who are not ordinarily parties to prosecution on indictments and whose interests have generally gone unacknowledged until recent time, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances."

15 There has long ago been established a clear division between the functions of prosecutors and those of judges. The court may not interfere with the prosecutor save in strictly limited ways. In Jago at 77, Gaudron J said: "One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and has been seen as involving the exercise of an independent discretion inherent in prosecution authorities, which discretion is not reviewable by the Courts." The integrity of the administration of criminal justice requires that processes of the law must be respected, and complied with by prosecution authorities. There must not be inappropriate over-charging. There must not be vagueness in the framing of the charges. The need for balance is apparent in different aspects. On the one hand, an accused has a right to be fully and precisely informed of the charges. An accused is entitled to have by way of the definition of a charge he is required to face, that the conduct be identified and distinguished from any other: DPP v Lewis [1997] 1 VR 391 at 397. Objection on the ground of vagueness can be taken if the offence charged is not alleged in ordinary language with reasonable clearness. On the other hand, the Presentment Rules have reduced the need for technical precision. It is in the public interest, that an accused should not escape punishment on a mere technicality, such as that the prosecutor has not framed the charge in the most precise way possible.

16 In recent times, in various areas of criminal procedure, measures have been adopted with a view to achieving a better balancing of interests by allowing greater flexibility but with appropriate safeguards. I have referred above briefly to some, including the Presentment Rules and joinder practices. I will elaborate a little further as to both. In R v Renzella (unreported, 7 August 1997, Victorian Court of Appeal) the focus was on the trial judge's decision not to sever the counts on the presentment. They were counts of quite different offences, but they arose out of events at the same location. An argument based on a construction of the Presentment Rules was dismissed as placing a far too narrow construction on the Rules. Winneke P, with whom Tadgell and Charles JJA agreed, pointed out that the Rule in question was introduced "to overcome the rigidity which once existed in criminal pleadings, largely as a consequence of the distinction drawn by the law between felonies and misdemeanours." He went on to say: "The flexibility which was designed to be introduced by the joinder rules would be, in my view, to a large extent set at nought if the rules were to be hedged about with inflexible principles of the type contended for by the applicant in this case. That, of course, is not to say that the rules permitting joinder of counts are intended to work prejudice to an accused person. In a sense, any joinder of counts in a presentment has the capacity to produce prejudice; but it is now a matter for the trial judge, in the exercise of the discretion invested by s.372(3) of the Crimes Act 1958 to ensure that unnecessary embarrassment or prejudice does not arise at trial by ordering severance where the circumstance require it." In R v McLean [2000] VSCA 217; (2000) 2 VR 118 at 128 [23], Tadgell JA said: "As Winneke P observed in R v Renzella, the Rules were designed to have a flexible and not a rigid operation. It could not be otherwise: the Rules were, after all, intended to apply across the board, sensibly and serviceably and with practical adaptability." Although these comments are made as to the Presentment Rules, it seems to me that they apply similarly in relation to the statutory provisions as to alternative verdicts.

17 In R v Assim [1966] 2 QB 249, after an examination of numerous English and Australian authorities, Lord Sachs said at 258 that: "...questions of joinder, be they of offences or of offenders, are matters of practice on which the court has, unless restrained by statute, inherent powers both to formulate its own rules and to vary them in the light of current experience and the needs of justice." In R v Demirok [1976] VicRp 19; [1976] VR 244, it was argued that a trial of more than the one charge, in that case of murder, should not have been allowed to proceed. Reference was made to the possibility that the pleas of autrefois acquit, autrefois convict and issue estoppel might arise at a subsequent trial if severance had been ordered. At 248, the Court noted with approval what had been said in Connelly v DPP [1964] AC 1254, that a previously accepted proposition (as to the impropriety of adding alternative counts where murder was charged) was inconvenient, and ought to be changed; and that it had been changed by statute. The court in Demirok was urged to make a statement in the nature of a practice direction. It declined. At 250, it stated that the joinder of counts in a presentment would remain a matter for decision by the crown prosecutor, who would consider, amongst other things, the relationship between the facts which constitute the essential elements of the various offences. It added: "The problems will necessarily be of infinite variety." I add my comment. Those comments suggest to me that greater flexibility was seen there to be preferable to greater certainty. At 254, the Court listed considerations of public interest to be taken into account in considering whether to order separate trials. All of those considerations are apposite in the instant case.

18 Mr Tehan put to me that little of value as to alternative verdicts in sexual offence cases was to be found in authorities dealing with offences of another kind, including drug offences. I would not be so dismissive of the guidance to be found in other offence cases such as the High Court case of Pereira v The Queen (1988) 35 A Crim R 382. I have also carefully reviewed R v Doan [2001] VSCA 142; (2001) 3 VR 349 and R v Kane [2001] VSCA 153; (2001) 3 VR 542, two cases on alternative verdicts referred to by Mr Tehan. He commended them as being of interest. I see them as containing nothing inconsistent with my conclusions. Indeed, I consider that some dicta are supportive of my conclusions. In Doan, attention was given by Charles JA at pages 357 to 359 to different approaches to the giving of instructions to a jury as to alternative verdicts for lesser offences in cases not involving murder/manslaughter. A key concern was as to the possible harm of distracting or confusing a jury by advising the jury of a verdict which could make no sense. On one view, wherever an alternative verdict fairly arises on the evidence, it had to be left to the jury. On another, a trial would not miscarry merely because it was not left. To me, the analysis makes clearer the importance of flexibility, which would not be available if s.425 was to be treated as if it were a code. I would also note that, in the context of what alternatives were left to the jury, Mustill LJ in R v Fairbanks, [1986] 1 WLR 1202 quoted in Doan at 357 [28], made the point :"...It must be remembered that justice serves the interests of the public as well as those of the defendant..." The reasons in Kane were handed down on the day after those in Doan. In Kane, Ormiston JA analyses many of the cases analysed by Charles JA in Doan. He notes the different approaches. He notes a number of matters potentially affecting fairness in what instructions are give to juries. At 549 [14] he queries whether principles (or practices which have hardened into principles) govern the approach or whether the preferable approach is to focus on the provision of a fair trial. He refers to "considerations which have required a more rigid prescription of practice." The discussion highlights the certainty/ flexibility tension. At 555 [28], Ormiston JA refers to a concern that the doctrine of autrefois acquit could mean that a verdict on the principal charge would clear the accused of any alternative charges that could have been brought. He notes that it was open to the prosecution "...either to include the relevant counts or to open them as alternative charges at the proper time, or otherwise to take the consequences."

19 I earlier referred to the commentary in Bourke's Criminal Law that the alternatives set out in s.425 should be regarded as exclusive. I am troubled by the use of the word "exclusive". It is not clear whether the author contemplated that "exclusive" was used in a way referable to counts in the presentment or counts put before the jury or otherwise. Mr Tehan went through the cases that were referred to in Bourke's Criminal Law. He made the point that such a review indicated that the issue of whether alternatives were properly left to the jury in sexual offence cases was seen by a number of judges to be governed by statute. I am not able to see that what is said in the cases can be taken as contributing much further towards supporting a restrictive position.

20 I could find nothing supportive of such a position in the 2004 edition of Archbold. I did note, under the parts dealing with alternative verdicts, references which I interpreted as tending to go the other way. At 4-453, it is noted that the common law position required that an alternative verdict had to be of an offence of the same degree i.e. felony or misdemeanour, and that that was a matter to be borne in mind when considering older authorities. At 4-454, it is noted that the common law principles have largely been superseded by statutory provisions. At 4-456 it is noted as being preferable to add a separate count rather than for the judge to give an oral direction to the jury as to the possibility of a conviction for a lesser offence (my emphasis). At 4-462, it is noted: "Various statutes which create particular offences contain provisions that permit conviction of the alternative offences there specified" (my emphasis).

21 As Mr Tehan noted, in R v Broadbent [1964] VR 734, although the same procedure (charging rape as count 1 and penetration of a person under 16 as count 2) was used as was used here, it was not challenged there. That point is taken. But the absence of a challenge adds to my having a greater confidence that the position not challenged was the more likely to be seen not to have potentially merited a challenge. I would note that, in the recent Court of Appeal decision in R v Collins [2004] VSCA 179, several of the authorities that were canvassed with me by Mr Tehan were reviewed. Although Broadbent, was specifically quoted and followed, what was said in Collins only indirectly impacts on the issue I am called upon to decide.

22 Proceeding with the two counts has to be seen as a preferable option to proceeding with one and then considering at the end of the first trial whether it is appropriate to proceed with another count which may not be a "true" alternative. The code or exclusive approach seems to me to have little to commend it. The common law developed alternative verdicts. Statutory alternative verdicts were introduced and often amended. Presumably this was because it was the perception of the legislators initially that the common law did not achieve the appropriate balance, and later that the balance could from time to time be improved. The current statutory alternatives are there as a form of guidance to be followed by trial judges. They are not framed, and should not be applied, as a form of code.

23 A vital ingredient of the requirements of a fair trial is the fairness of practices associated with trial by jury. A variety of protections are in place to maximize the prospect that when a jury is put in charge, that the jury will be left to make its decision without being influenced by what a judge may feel about the nature of the charge or charges, the nature of the way in which the charge is, or the charges are, presented, and the evidence which is available to support the charge or charges. In that regard, a practice has developed, whereby, once a jury is put in charge, that jury will be left in charge until either verdict or the jury has to be discharged on the grounds of necessity**.**

24 Of course, as pointed out by Mr Tehan, it would be simpler for the judge and jury to have one count to deal with rather than two. The judge and jury will always have less difficulty with a one count presentment. With each added count there arises a greater burden on the trial judge to explain, and a potential for a less thorough understanding by the jury of, matters like the differences between the elements, the reasons for the differences, the order in which they should be dealt with, and whether the second count need be addressed if there is a verdict on the first. That greater burden is scarcely an unfamiliar one, although the distinctions may be more refined in the case of alternatives. The need to deal with alternative verdicts also imposes a greater burden on the judge to tailor directions to the evidence. There is some guidance in R v Weeding [1959] VicRp 50; [1959] VR 298 as to factors like prejudice and convenience, and as to the order of dealing with charges. Of course, there is the potential for the jury to be confused, and a possible risk of compromise. The trial judge, in giving directions, must aim to maximize the prospect that the jury will understand the elements of each count, and how they relate to the evidence in the particular trial. If there is uncertainty as to retention or order, there can be the usual discussion with counsel in which the evidence can be reviewed. That may mean having regard to the reality or artificiality of dealing with particular charges in the light of scenarios possible on the evidence.

At a glance

Court

Decision date

Before

Source

Judgment (14 paragraphs)

Parties

Cases Cited (8)