REGINA v REID [2004] NSWCCA 301 | Case summary

Wednesday 25 August 2004 REGINA v Craig Anthony REID Judgment 1 SPIGELMAN CJ: On 5 July 2004 Craig Anthony Reid pleaded guilty to a charge that on or about 7 August 2002 he murdered Samantha Meredith. The matter came before Justice Hulme for sentencing. His Honour was asked to refer the matter to a different judge for sentencing. 2 This application was based on the fact that on 13 May 2004 Justice Hulme had sentenced Sharon Louise Ward for being an accessory after the fact to the murder of Samantha Meredith. Counsel for Mr Reid asked that Justice Hulme disqualify himself from sentencing the Applicant on the basis of his remarks on sentence in the case of Ward. In a judgment of 23 July 2004 Justice Hulme refused to disqualify himself. 3 Before this Court is an application under s5F of the Criminal Appeal Act 1912 for leave to appeal from the decision of Justice Hulme. The Applicant submits that his Honour made an interlocutory judgment or order, within the meaning of s5F. 4 It is necessary to set out some sections of the remarks on sentence of Justice Hulme on 13 May 2004 in the case of Sharon Louise Ward: "[42] So far as the Prisoner's demeanour during the course of her evidence is concerned she was upset and seemed genuine. … [46] … Although the deceased was wrapped in a coat belonging to the Prisoner, there is no evidence how this came about and I am not persuaded to the requisite standard that the Prisoner was involved in the wrapping of the body or in the placing of it in the boot. Nor am I satisfied that when she drove the vehicle to 'Greg Greg' that the body was in the boot or, if it was, the Prisoner knew that. … [48] Undoubtedly, insofar as her actions were the result of threats by, and fear of Craig Reid, her subjective criminality is lessened. However it is not avoided. Very commonly if not almost universally, participation in offending by accessories after the fact is inspired by some emotional relationship with a principal offender, e.g. love, affection, loyalty or fear. Such offending commonly represents a choice to place the interests of the principal offender ahead of those of the victim and/or the public generally. [49] It did so in this case. It is implicit in the Prisoner's actions that she preferred to help Mr Reid, who she knew had bashed one woman with a hammer and slit her throat, to avoid detection and to remain in the community where he could do the same again, as he, to her knowledge, seemed willing to contemplate, than to either tell the truth when asked or remain silent. ( I do not of course, suggest that, at least so far as the offence of being an accessory after the fact is concerned, the Prisoner was obliged to speak, either to the relatives or friends of the deceased or the police.) … [51] It seems likely that the Prisoner's past experiences of violence predisposed her to acquiesce in Mr Reid's demands. Her inherent or acquired nature as revealed by her willingness, however reluctantly, to continue relationships in which she was subjected to violence was probably a reinforcement in that regard. … [53] Nevertheless, there remains the fact that, on the evidence before me , the prisoner had no reason to clean up the murder scene unless it be the threats she said were made by Mr Reid. Once implicated of course, that provided a reason for lying in the interview of 23 November although the probability is that at that time and at the time of her second interview, both those threats and the decision to help Mr Reid, were still operative. [Emphasis added] [54] Her ability and failure to inform the authorities prior to and on 23 November argues in 2 directions. On the one hand it may indicate the force on her of Mr Reid's threats. On the other hand, it argues for her willingness not to do the right thing. And even when, in her statement of 22 January she did implicate Mr Reid, her lies on that occasion mean that that statement could by no means be regarded as an unequivocal attempt to redeem herself. … [58] Notwithstanding that I accept the Prisoner's actions were at least to a substantial extent inspired by fear, it seems to me that an appropriate starting point in the determination of the final sentence is imprisonment for 7 years. But for that factor of fear, that starting point would have been higher. I draw attention also to the fact that 7 years is only marginally more than one quarter of the 25 year maximum for which Parliament has provided and that, as a general proposition, once regard is had to the impact on offenders' lives, imprisonment for a longer period is more than proportionately severe than that for shorter periods." 5 Of particular importance is par [4]: "[4] It follows from the Prisoner's plea that, as between the Crown and the Prisoner, all the facts implicit in her plea are established. It follows from the absence of challenge to the Statement of Facts that I am entitled to regard them also as established. Of course, none of those matters are evidence against Mr Reid and the remarks made herein do not represent findings so far as he is concerned… " [Emphasis added] 6 His Honour's judgment in the parts I have emphasised from par [4] and par [53] indicate an awareness on his part, at the time of sentencing Ms Ward, that his Honour was proceeding on a basis of an assumed and agreed set of facts, rather than on the basis that he made independent findings of fact based on contested proceedings. 7 In his Honour's judgment in these proceedings, from which leave to appeal is sought, his Honour made the following observations: "[5] It is necessary to say something more about the sentencing proceedings involving Mrs Ward. The first point which should be made is that Mrs Ward had indicated that she would give evidence for the Crown against Mr Reid and, as commonly happens in that situation, there was no, or no appreciable, dispute about the evidence or the conclusions which should be drawn from it. … [6] In addition Mrs Ward gave evidence and was cross-examined. In chief, she gave evidence of threats and violence towards her by Mr Reid. Asked why she had assisted Mr Reid, she said, 'I didn't have a choice. I had been threatened by Mr Reid. If I didn't do it he would kill my son and then he would kill me'. She said that she remained willing to give evidence against him. This willingness had been first made manifest in January 2003 Mrs Ward after her second interview with police officers investigating Ms Meredith's death. [7] The Crown Prosecutor's cross-examination of her extended over only 2 pages. It included questions directed to obtaining a re-affirmation of her willingness to give evidence and questions whether she had received any threats since Mr Reid's arrest. There were also some questions directed to evidence she had given of a view that the police could not protect her. There was no challenge to her evidence of threats by Mr Reid or as to her having been influenced by them or directed to her having any involvement in Ms Meredith's death otherwise than as an accessory. " [Emphasis added] 8 His Honour also noted at [17]: "[17] … My findings in the proceedings involving Mrs Ward … were on the basis of evidence which was neither contested nor contradicted." 9 His Honour was asked to recuse by applying the test in a form often repeated in the authorities, which was accepted by both parties and in this Court to be the particular formulation in Livesey v New South Wales Bar Association of New South Wales (1983) 151 CLR 288, where the High Court said at 293-294: "The principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." 10 It is agreed that this is the appropriate test to be applied. 11 Before Hulme J the Crown took the position that it agreed to the application, so that some other sentencing judge would proceed to sentence the Applicant. However, in this Court, whilst the Crown remains of that view, it does direct the Court's attention to the fact that there is a very real question as to whether or not this Court has jurisdiction to determine the application now before the Court. 12 The doubt about jurisdiction arises by reason of the Court of Appeal decision in Barton v Walker (1979) 2 NSWLR 740. The reasoning in that case has been applied to s5F of the Criminal Appeal Act 1912 in the case of Rogerson v R (1990) 45 A Crim R 253, especially at 255. The judgment in that case was delivered by Gleeson CJ, with whom Wood and Brownie JJ agreed. The decision in Barton v Walker has been subject to criticism, see Brooks v Upjohn Company (1988) 85 FCR 469 at 472-476. It has been described as "controversial" by Heydon JA, when his Honour was a member of the Court of Appeal, in Witness v Marsden (2000) 49 NSWLR 429 at [96]. A question has also been raised about its continued applicability in the light of the Pinochet case (R v Bow Street Magistrate: Ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119) in Wentworth v Graham [2003] NSWCA 104 at [13]. It is possible to distinguish Pinochet on the basis that the reasoning applies to a final court of appeal because there could be no further appeal. 13 In my view, for reasons I will presently expound, this is not an appropriate case to determine whether or not Barton v Walker, as applied in Rogerson, should continue to be followed. There has been no submission to this Court that Barton v Walker was wrong. Mr Dalton, who appeared for the Applicant, did however submit that Barton v Walker could be distinguished. 14 He put forward two propositions. First he submitted that the case was not applied in the judgment of this Court in Australian National Industries v Spedley Securities Limited (1992) 26 NSWLR 411. However, it is clear that in that case the parties proceeded on the basis that neither would take the point. They were civil proceedings and, as was reasonably clear, there would be substantial costs involved in a long trial, which could be rendered entirely valueless if a judge who should have disqualified himself, proceeded to conduct the entire proceedings. 15 Whatever may be said of the appropriateness of the Court not determining its jurisdiction, I do not regard that to be an appropriate procedure in a criminal trial. I would not follow the option taken in ANI Securities, despite the agreement of the parties. I do not regard ANI Securities as an authority undermining the binding force of Barton v Walker. 16 The second basis on which Mr Dalton submitted that Barton v Walker could be distinguished was on the basis of an underlying principle discernible in Barton v Walker which, he submitted, was that it only applied in a case where there was the possibility of a final appeal in which the issue of bias could in fact be raised. He submitted that that was not possible in a sentencing appeal, by reason of s6(3) of the Criminal Appeal Act and the contrast with s6(1) 17 Section 6 provides: "6(1) The court on any appeal under section 5(1) against conviction shall allow the appeal if it is of opinion that 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, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. (2) Subject to the special provisions of this Act, the court shall, if it allows an appeal under section 5(1) against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered. (3) On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal." 18 This submission turns upon the proposition that s6(3) is a comprehensive statement of the bases upon which the Court will intervene in sentencing proceedings. That is to say it is a statement of a statutory character identifying in a comprehensive way the basis on which this Court will both grant leave and intervene. I do not read s6(3) in that way, notwithstanding the contrast with s6(1). 19 It is true that s6(3) requires the Court to form an opinion that some other sentence is warranted in law. However, the practice of the Court has long been that there is a primary inquiry as to whether or not the exercise of the sentencing discretion has in some relevant manner miscarried. The general principles of when an appellate court will intervene in the exercise of a discretion, set out in House v King (1936) 55 CLR 499, have long been applied to the exercise of the discretion constituted by the task of sentencing. In that respect a number of principles have been identified. A relevant question in a sentencing appeal has always been whether any error in the exercise of discretion has occurred. The fact that s6(3) does not expressly refer to such error does not, in my view, indicate that such are not relevant considerations and, indeed, determinative considerations, subject to the additional factor mentioned in s6(3). These matters are to be found encompassed within the terms of s5(1)(c), as the basis on which a person is entitled to appeal, with the leave of the Court, against sentence. 20 Section 6(3) of the Criminal Appeal Act does not purport to state the grounds on which leave to appeal against sentence may be sought. Those grounds are the traditional grounds involved in an appellate court hearing an appeal from a discretionary decision. One such ground is an error in the nature of a refusal to recuse by a sentencing judge, in circumstances where recusal was the correct and proper course. Accordingly, I am not able to distinguish the line of authority in Barton v Walker and Rogerson in this Court on the basis propounded by Mr Dalton. 21 As I have indicated, I do not regard this to be an appropriate case in which to review Barton v Walker. The High Court has on a number of recent occasions outlined the very special basis upon which factual findings are made for purposes of sentencing. I refer particularly to The Queen v Olbrich (1999) 199 CLR 270, especially at [16]; Weininger v The Queen (2003) 212 CLR 629 at [20]; and GAS v The Queen (2004) 206 ALR 116 at [30]. 22 Amongst these special factors is the recognition that there are limitations on the judge's capacity to find potentially relevant facts, particularly the frequency with which relevant facts are agreed, so that it cannot be said that a sentencing judge has made a finding in respect of any assessment of the facts by the judge. As the High Court said in Weininger at [23]: "… a sentencing hearing is not an inquisition into all matters that bear upon the circumstances of the offence or matters personal to the offender … Some matters will remain unknown to the sentencing judge". 23 Mr Dalton, in his submissions, placed emphasis on the findings of fact and credit about Ms Ward, and particularly those findings that may be seen - whether they do or not is a matter for the sentencing judge - as affecting the applicant's level of criminality, particularly regarding the alleged threats by the Applicant towards Ms Ward. Mr Dalton also submitted that these matters became part of his Honour's published findings and that an independent observer may find some grounds for doubting the independence and impartiality of Justice Hulme from the very fact that they were published findings. Further, such findings may have at least a subconscious effect on his Honour when his Honour comes to sentence the Applicant. 24 Mr Dalton placed particular emphasis on a statement which went beyond the recognition of the agreed facts in the present case, in which Justice Hulme did, from his own observations, draw the conclusion that Ms Ward "seemed genuine". With respect to this matter, the reference "seemed genuine" is hardly a ringing endorsement of Ms Ward's credit, and in any event, it is offset by a number of findings that his Honour made at various times during his reasons to the effect that he found Ms Ward had lied in statements she had made over the period. An independent, reasonable observer would be aware of his Honour's findings in that respect. 25 In my view, Justice Hulme's conclusion was correct. In large measure the findings were based on agreed facts that were put before him. If those issues are to be contested in future sentencing proceedings involving the Applicant, then this experienced trial judge will have no difficulty in proceeding on the basis only of the evidence in the case before him. This is a matter which judges often have to do, and indeed, direct juries from time to time that they have to do, namely, decide the case only on the evidence before the Court in the particular proceedings. 26 A sentencing judge is well able to distinguish the evidence, particularly in the form of an agreed statement of facts, in one sentencing proceeding, and put both those facts and his judgment contained in the remarks on sentence in the prior proceedings out of his or her mind, for the purpose of the subsequent proceedings. A reasonable, independent observer would understand that judicial training does enable that to occur and would not call in question in any manner the proposition that that sentencing judge would bring an impartial and unprejudiced mind to the second sentencing decision making process. 27 I make these observations in the light of the well-known principle that, by reason of issues of parity, it is highly desirable that co-offenders should be sentenced by the same sentencing judge. It often occurs, if there is a time gap between the two sentencing exercises, that it is necessary that the sentencing judge put out of his or her mind the findings of fact made in the first of those sentencing exercises. 28 It may be that this principle does not operate with quite as much force when the Court is dealing with accessories after the fact, particularly to a crime like murder, where the elements of criminality are so different. Nevertheless they still arise in such a case. Issues of parity may still arise and it remains desirable that the same judge sentence all offenders. Where there are findings of credibility based on a contested issue of credit in the first proceedings, it may be the situation is different, but there is nothing of that character in the present case. 29 By reason of the jurisdictional issue, the appropriate order of the Court in this case is that leave to appeal should be refused. 30 WOOD CJ at CL: I agree. 31 HOWIE J: I agree. I wish only to make one observation. There is no material before this Court to indicate the basis upon which the Crown joined in the application that Hulme J should not sentence the applicant. It was unnecessary to call upon the Crown in determining this application, and therefore the reasons are still not apparent. 32 I, for my part, am considerably troubled that the Crown would ask a judge of this Court to disqualify himself from sentencing a co-offender, or joining in such an application. The principles of parity generally require that a co-offender is sentenced by the same judge wherever it is practically possible to do so. I find it difficult to understand in this case or generally, why the Crown should believe that a principle should be set aside, unless there were the clearest reasons in the interests of justice to warrant such a course. 33 If this application was supported merely by the fact that the Crown had joined in an agreement by which Justice Hulme should sentence the co-offender on a particular basis then on the material before this Court, I cannot see any foundation for the Crown to take what in my view was a very serious and significant step in the course of criminal proceedings. 34 Otherwise, I agree with the judgment of the Chief Justice. 35 SPIGELMAN CJ: The order of the Court is that leave to appeal is refused.

REGINA v REID

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (8 paragraphs)

Parties

Cases Cited (10)

Cited By (5)