[2008] HCA 8
CB v Director of Public Prosecutions [2013] NSWSC 618
Dansie v The Queen [2022] HCA 25
(2022) 92 ALJR 728
Dean v R [2019] NSWCCA 27
DL v The Queen (2018) 266 CLR 1
[2018] HCA 26
Filippou v R (2015) 256 CLR 47
[2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250
Source
Original judgment source is linked above.
Catchwords
[2008] HCA 8
CB v Director of Public Prosecutions [2013] NSWSC 618
Dansie v The Queen [2022] HCA 25(2022) 92 ALJR 728
Dean v R [2019] NSWCCA 27
DL v The Queen (2018) 266 CLR 1[2018] HCA 26
Filippou v R (2015) 256 CLR 47[2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
Ghamrawi v R (2017) 95 NSWLR 405[2017] NSWCCA 195
Hamilton v Director of Public Prosecutions [2020] NSWSC 1745
Holland v The Queen (1993) 68 A Crim R 176[1993] HCA 43
Hopgood v R [2019] NSWCCA 246
Kalbasi v Western Australia (2018) 264 CLR 62[2018] HCA 7
M v The Queen (1994) 181 CLR 487[1994] HCA 63
Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560[2019] HCA 32
Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221
R v BA [2021] NSWCCA 191
R v Beckett (2015) 256 CLR 305[2015] HCA 38
R v BK [2022] NSWCCA 51
R v Chai [2002] HCA 1276 ALJR 628
R v Lazarus [2017] NSWCCA 279270 A Crim R 378
R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep)
Shepherd v The Queen (1990) 150 CLR 573
[1990] HCA 56
Trevascus v R (2021) 104 NSWLR 571
[2021] NSWCCA 104
W v R [2014] NSWCCA 110
Wade v R [2018] NSWCCA 85
Weiss v The Queen (2005) 224 CLR 300
Judgment (5 paragraphs)
[1]
The application of the proviso
In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, the High Court made the following observations about the proviso to the common form criminal appeal statute at [42]:
It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration.
In deciding whether a substantial miscarriage of justice has actually occurred, an appellate court often asks whether it is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence. As the Court explained in Weiss, the proviso cannot be engaged unless the appellate court is "persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty": at [44].
In this case, three matters warrant emphasis. First, the parties had agreed on the elements of each offence, and the primary judge was conscious of this at trial. Secondly, the central issue between the parties at trial was whether the complainant's account of events was accepted to the criminal standard, particularly in light of the appellant's contradictory evidence to the court. Thirdly, the primary judge's findings as to credibility of witnesses, and therefore her acceptance of the complainant's evidence, has not been challenged in this appeal. No other question of fact or law has been raised aside from the narrow question as to whether there was a breach of s 133(2).
Those matters are to be borne in mind when asking whether this Court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence. Effectively, in the context of this case, the question is whether the primary judge's reasoning is such that it makes clear that her Honour was satisfied of each factual matter needed to establish the agreed elements of each offence.
The answer to that question is affirmative, in relation to both counts. Everything needed to satisfy the elements of count 2 was contained in the complainant's evidence. Once that evidence was accepted by the primary judge, it was sufficient to make out count 2 as there was no evidence beyond his account bearing upon this offence.
In relation to count 1, the CCTV footage showing the appellant using violence on the complainant and the photographic evidence establishing that the appellant had taken the appellant's ANZ card, in conjunction with the complainant's evidence of the events leads once again to the conclusion that the evidence established to the criminal standard that the appellant was guilty.
But while the proviso cannot apply unless the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence, it does not follow that there has been no substantial miscarriage of justice. This was explained by Gummow and Hayne JJ in AK at [53], with reference to the High Court's decision in Weiss:
In Weiss, the Court identified one circumstance in which the proviso to the common form criminal appeal statute cannot be engaged. The Court said that the proviso cannot be engaged "unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty". This negative proposition (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred. (Emphasis in original.)
With this in mind the appellant submitted that the proviso could have no application in a case where the primary judge failed to include the essential elements of an offence, as this was a fundamental error that went to the "root" of the proceedings such that there was a substantial miscarriage of justice. This submission was said to be supported by analogy with a failure to direct a jury regarding the elements of an offence, which has been observed as being a "necessary ingredient of a fair trial": Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]; Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [71].
It may be accepted that a necessary ingredient of a fair trial is that proper directions be given to the jury as to the elements of an offence. But a failure to direct a jury on the elements of an offence does not preclude the application of the proviso. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 is an example. That is so notwithstanding what was said in the joint judgment at [13]:
The influence of an error on the deliberations of a jury can never be known. The stipulation of the negative proposition as a condition of the engagement of the proviso recognises that the conviction of a person whose guilt has not been proved, beyond reasonable doubt, on admissible evidence, will always be a substantial miscarriage of justice. On the other hand, the appellate court's satisfaction that guilt has been proved to the criminal standard on the admissible evidence will in many instances support the conclusion that there has been no substantial miscarriage of justice notwithstanding a wrong decision on a question of law (under the second limb, here s 30(3)(b)) or a miscarriage of justice (under the third limb, here s 30(3)(c)). This is to recognise and give effect to the evident purpose of the enactment of the proviso to do away with the formalism of the Exchequer rule. (Footnotes omitted).
Where as here there has been a trial by Judge alone, and the findings of guilt are justified by extensive reasons, there is less reason to preclude the availability of the proviso. What matters is an evaluation of the nature and effect of the particular error, as the Crown submitted.
In AK, Gummow and Hayne JJ, at [55], identified two features of the error which were important to concluding that there was a substantial miscarriage of justice: first, that the statutory provision required the reasons to articulate the connection between the relevant legal principle and the relevant findings of fact, but secondly that the "particular failure that was identified related to the central issue in the appellant's trial". The central issue in that case was identification, and the trial judge accepted the evidence of the complainant who believed the perpetrator was the appellant but said nothing as to why the evidence was accepted. This led to the conclusion that there was a "complete failure" to meet the requirements of the equivalent of s 133(2).
The central issue in this case was whether the account of the complainant was accepted, having regard to the evidence of the appellant. The primary judge accepted the former and rejected the latter, and gave detailed reasons as to why they did so. The error complained of was failing to identify the legal elements. That was not even an issue at trial, let alone the "central issue", for the parties agreed on the legal elements of the offences, and the written form of their agreement was provided to her Honour on the first day of the trial.
Accordingly, it cannot be said that there has been a "complete failure" to meet the requirements of s 133(2) in the circumstances of this case, or anything like a complete failure. To the contrary, there has been no substantial miscarriage of justice in this case. The proviso is applicable, and authorises dismissing the appeal from the finding of guilt on count 1 even if, favourably to the appellant, there was a contravention of s 133(2). Were I wrong about the absence of any contravention of s 133(2) in relation to count 2, the proviso would likewise authorise dismissing the appeal from the finding of guilt on that count.
[2]
Conclusion and orders
I am of the view that the primary judge did not breach s 133(2) in respect of count 2. While I prefer not to offer a view on whether s 133(2) was breached in respect of count 1, I am satisfied that the proviso applies in respect of both counts.
For those reasons, I propose that the appeal be dismissed.
WILSON J: I agree with Leeming JA.
DHANJI J: I have had the considerable advantage of reading the reasons of Leeming JA in draft. I agree with the orders his Honour proposes but would prefer to state my own reasons. I adopt his Honour's statement of the relevant background and the argument in this Court. His Honour has also set out the relevant legislative provisions.
The appellant was tried on indictment. He had a right to trial by jury. He gave up that right by his (successful) application that he be tried by judge alone: s 132 of the Criminal Procedure Act 1986 (NSW). In exchange, the appellant received the benefit of a requirement to give reasons in accordance with ss 133(2) and (3) of the Criminal Procedure Act: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]ff. A failure to observe the requirements of s 133(2) or s 133(3) will be a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27]. In each case, it is necessary to consider the application of the proviso to s 6(1) of the Criminal Appeal Act.
[3]
Failure to include the essential elements in the reasons
The ground of appeal complains that in the present case her Honour "erred in the failing to include in the reasons for judgment fundamental principles of law to be applied - namely, the essential legal elements of each offence".
The process of reasoning towards guilt or a failure to prove guilt of a criminal charge begins with identifying what it is the Crown must prove. The relevant principles of law and any necessary warnings are then applied to the evidence led in support of the charge in a process of reasoning from the evidence to a conclusion. In expressing the matter in this way, I do not intend to suggest that identification of what needs to be proved is not included within the ambit of the "principles of law" within s 133(2) of the Criminal Procedure Act. The issue of what must be proved may involve detailed analysis of legal principles. More fundamentally, the terms of s 133(2) do not set out the full extent of the trial judge's obligation to give reasons for the verdict: Fleming v The Queen at [28]. In AK v Western Australia, Gummow and Hayne JJ (at [44]), adopting part of what was said in that paragraph of Fleming v The Queen put the matter as follows:
"[the Western Australian equivalent to s 133(2)] requires that the judge's reasons include the principles of law that he or she has applied. The principles of law that are relevant will be identified by reference to the issues in the case. Usually, then, a trial judge will be obliged to identify and record in the reasons what are the elements of the offence in question and which of those elements were in issue. Resolution of the issues in the case will then require not only statement in the reasons of both the principles of law that are applied and the findings of fact the judge makes, but also statement of "the reasoning process linking them and justifying the [findings of fact] and, ultimately, the verdict that is reached".
As has been set out in the reasons of Leeming JA, in the present case the trial judge did not set out the elements of either offence as a discrete aspect of the reasoning process. Rather, her Honour set out the charges and referred to a number of relevant principles, they being the onus and standard of proof and related directions with respect to a case relying on a single witness and the effect of the rejection of the appellant's evidence. Reference was also made to the use to be made of complaint evidence. Her Honour then set out the evidence and applied those directions in a manner not suggested to be deficient.
[4]
The proviso
The appellant submitted that, if error as a result of non-compliance with s 133(2) of the Criminal Procedure Act, was established, the proviso could not be applied. No submission was made that non-application of the proviso would result from this Court's lack of satisfaction of the guilt of the appellant. In this regard, it was effectively conceded that any doubt this Court might have experienced was capable of being explained by the natural advantage held by the trial judge, having seen and heard the witnesses, in particular, in this case, the complainant: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63; Filippou v The Queen at [12]; Dansie v The Queen [2022] HCA 25; (2022) 92 ALJR 728 at [15].
The nature of the error is relevant to the application of the proviso. The proposition that a criminal charge is established by proof of the elements of the charge is so fundamental, I would hesitate, in the absence of an indication to the contrary, to conclude that a judicial officer entrusted to hear a trial on indictment would not apply the principle. Whether that is sound or not is unnecessary to consider here, as her Honour, in concluding that she was satisfied of the essential elements, clearly appreciated the requirement. Moreover, as has been discussed, it is clear that her Honour had been provided with a document setting out the elements of the offences and, in light of the manner in which the proceedings were conducted it is apparent there was no issue as to what those elements were. I am therefore satisfied that her Honour correctly understood what the elements were and understood the need for each of those elements to be proved beyond reasonable doubt. No submission was made to the contrary. In other words, the error established in the present case is limited to a failure to "include" a relevant principle of law, not a failure to take a relevant principle of law into account: see Fleming v The Queen at [30] (set out above at [103]); AK v Western Australia at [48]. It is in this context that the operation of the proviso falls to be considered.
As Leeming JA has observed, complaints based on inadequacy of reasons most commonly tend to relate to the failure to articulate the reasoning process leading to the conclusion of guilt, or a failure to take into account a warning which would have been necessary, had the matter been before a jury (s 133(3)). AK v Western Australia is an example of the former. Fleming v the Queen is an example of the latter.
[5]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 21 April 2023
HEADNOTE
[This headnote is not to be read as part of the judgment]
The appellant, Mr Brett David Schoffel, was tried by the District Court constituted by a Judge sitting alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). He pleaded not guilty to one charge of robbery with the use of corporal violence and one charge of perverting the course of justice.
The robbery offence occurred on 13 February 2020 when the complainant attended an ATM at Kingswood in the company of the appellant and two other persons. The complainant withdrew $150 from his bank account, and then handed $100 to one of those present in satisfaction of a debt. The appellant then grabbed the complainant and demanded his bank card. After the complainant refused, the appellant dragged the complainant down an alleyway and assaulted him. The complainant acceded to the appellant's demands and threw away his bank card after the appellant had threatened to stab him. The appellant was shortly thereafter apprehended by the police, with the complainant's bank card being found nearby.
The events concerning the perverting the course of justice offence occurred approximately two months after the robbery offence. The complainant saw the appellant near the same ATM in Kingswood where the original robbery had occurred. The appellant told the complainant that he would pay the complainant if he dropped the charge against him.
The trial was heard in September 2021. The primary judge reserved and delivered judgment the following month, concluding that she was satisfied beyond reasonable doubt that the Crown had established the essential elements of each offence and found the appellant guilty on both counts.
The appellant relied on a single appeal ground against his conviction, which led to two primary issues on appeal (i) whether, in breach of s 133(2) of the Criminal Procedure Act, the primary judge erred in failing to include the essential legal elements of each offence in her reasons for judgment, and (ii) if her Honour did so err, whether the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW) applied.
The Court (Leeming JA, Wilson and Dhanji JJ agreeing) held, dismissing the appeal:
As to issue (i), per Leeming JA (Wilson J agreeing):
There was no breach of s 133(2) of the Criminal Procedure Act for the perverting the course of justice offence as the elements were included in the primary judge's reasons, at least by necessary implication, by stating the count in full at the beginning of her Honour's reasons: [63]-[70].
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68, Wade v R [2018] NSWCCA 85, R v Chai [2002] HCA 12; 76 ALJR 628, considered.
It was unnecessary to decide whether there was a breach of s 133(2) in relation to the offence of robbery with the use of corporal violence as the Court did not receive full argument on the construction of s 133(2), and the proviso applied to this offence in any event: [75]-[78].
Whether or not s 133(2) is breached in circumstances where a judge sitting in a Judge alone trial fails to identify the legal elements of the offence, it is preferable for those judges to clearly set out the essential legal elements of an offence in every case, even if the essential legal elements are not in dispute and even if the reasoning of the judge makes it clear by implication that the elements have been made out: [74], [79].
W v R [2014] NSWCCA 110, R v BK [2022] NSWCCA 51, considered.
As to issue (i), per Dhanji J (dissenting):
In this case, the primary judge's statement that the essential elements of the offence were proved is meaningless without a statement of what those elements are. Further, the failure to take the step from proof of the elements to proof of the charges, leaves unconnected the charges stated at the outset and the (assumed) conclusion of guilt at the end. Thus, the primary judge's reasons for both offences did not "include" either expressly or by necessary implication what it was her Honour found proved: [8]-[11].
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered.
While the content of what is required to be provided by way of reasons will be informed by the issues in the particular case, the narrowing of the issues between the parties cannot obviate the need for a statement of the starting point and the end point connected by the necessary process of reasoning. Nor can principles be said to be included by other matters outside the reasons themselves, such as the fact that her Honour is an experienced criminal lawyer: [12].
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, considered.
As to issue (ii) per Leeming JA (Wilson J agreeing):
In relation to both counts, the primary judge's reasoning is such that it made clear that her Honour was satisfied of each factual matter needed to establish the agreed elements of each offence: [82]-[85].
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, considered.
The availability of the proviso is not precluded in a case where a primary judge fails to include the essential elements of an offence: [87]-[88].
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221, Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104, distinguished. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7, considered.
Arguments in this Court
Section 133 of the Criminal Procedure Act provides as follows:
133 Verdict of single judge
(1) A Judge who tries criminal proceedings without a jury may make any finding that could have been made by a jury on the question of the guilt of the accused person. Any such finding has, for all purposes, the same effect as a verdict of a jury.
(2) A judgment by a Judge in any such case must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
(3) If any Act or law requires a warning to be given to a jury in any such case, the Judge is to take the warning into account in dealing with the matter. (Emphasis added.)
The appellant argued that s 133(2) was breached by the primary judge as the essential legal elements of either offence "were never set out in the judgment; or otherwise discussed, considered and/or analysed in the judgment".
A solicitor within the office of the NSW Director of Public Prosecutions sent an email to the Associate to the primary judge dated 13 September 2021 (which was the first day of the trial) attaching an "elements document" which had been agreed between the parties. The agreed elements document noted the elements of each offence as follows:
SEQUENCE 1: s 95(1) Crimes Act 1900; Aggravated robbery
1. The accused, with intent to steal;
2. Took property;
3. From the victim's immediate control or presence;
4. By the use of violence or by putting the victim in fear;
5. In circumstances of aggravation, which involved the accused at the time of the robbery,
i. Using corporal violence on the victim.
SEQUENCE 2: s 319 Crimes Act 1900; pervert the course of justice
1. The accused did any act (or omissions);
2. With intent in any way to pervert the course of justice.
- "perverting the course" is a reference to obstructing, perverting or defeating the course of justice or the administration of law; s 312
Counsel for the appellant who appeared in this Court had not appeared at trial, and his written submissions appear to have been drafted without knowledge of that document (which had not been marked or tendered). Counsel accepted in oral address that the document reflected the agreed positions between the parties as to the elements making up each offence that arose during the course of the trial. But it was said that it did not alter the fact that s 133(2) had been breached because, irrespective of the agreed position of the parties, the primary judge failed to identify the elements of each offence in her reasons for judgment. Counsel for the appellant accepted that the primary judge may have applied the correct legal elements. But the issue was that without, at the minimum, a bare statement of those elements in the judgment, whether that had occurred became a matter of "speculation". Reliance was placed on several decisions of the High Court discussing the requirements for a judge sitting in a Judge alone trial, including Fleming, AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 and DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, to each of which I shall in due course return.
Section 133(2) of the Criminal Procedure Act
The requirements of s 133(2) were explained by the High Court in Fleming, where the Court considered an identically worded predecessor provision (s 33 of the Criminal Procedure Act). Relevantly for the purposes of this appeal, the Court said at [28]:
[W]hilst 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.
Likewise, the joint judgment in DL at [33] explained that "[o]rdinarily it would be necessary for the trial judge … to apply the law found to the facts found." And it was said, to similar effect, by this Court in R v Lazarus [2017] NSWCCA 279; 270 A Crim R 378 at [141] that:
A judge who tries criminal proceedings without a jury is not required to express all of the matters which would necessarily have to be stated to a jury unfamiliar with basic principles of law: Markou v R [2012] NSWCCA 64 per Macfarlan JA (R S Hulme and R A Hulme JJ agreeing) citing R v Winner (1995) 79 A Crim R 528 at 531. However, s 133(2) requires that the trial judge expose his or her reasoning process by linking the relevant principles of law to the facts as he or she finds them to be: Fleming v R (1998) 197 CLR 250; [1998] HCA 68 cited by Bathurst CJ in W v R [2014] NSWCCA 110 at [108]- [110].
Further, the reasons for verdict following a Judge alone trial "must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached": Hopgood v R [2019] NSWCCA 246 at [47]. In assessing whether a judgment has met that threshold, the reasons of the primary judge must be read "fairly and as a whole": Hopgood at [47].
Significantly for the purposes of this appeal, whether or not the principles of law have been applied to the facts may be discerned from the reasons "expressly or by implication": Fleming at [30], see also Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [52] and W v R [2014] NSWCCA 110 at [110]. As the Court explained in Fleming at [30]:
Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded.
Finally, as RA Hulme J has noted, "the question of whether there has been a departure from the statutory imperative will depend, at least in part, upon the nature of the evidence and the issues in the case at hand": Wade at [123], referring to AK at [84].
No contravention in relation to count 2
It is convenient to begin with count 2. The Crown candidly and correctly acknowledged that the position in respect of s 133(2) was stronger in relation to this count than in relation to count 1. It will be recalled that the agreed elements document identified the relevant offence as containing two elements: first, "the accused did any act (or omission)", and secondly "with the intent in any way to pervert the course of justice". That agreement reflected the position confirmed by the joint judgment in R v Beckett (2015) 256 CLR 305; [2015] HCA 38, holding that there were two elements (with Nettle J, alone on this point, considering that there was a third element, namely, that the act or omission had a tendency to pervert the course of justice).
Counsel for the Crown submitted that the primary judge's recitation of count 2 at the beginning of the judgment itself amounted to a bare statement of the legal elements. That count, which is reproduced in full above, stated that the appellant "did an act, namely, made a statement offering to pay Adam Maher money to withdraw charges intending thereby to pervert the course of justice". Thus, it was said:
[T]he terms of count 2 actually contain the elements. If one were going to create a document and create individual paragraph numbers, the terms of count 2 actually contain the necessary elements and there is nothing more that needed to be done in a case like this in terms of explaining the elements.
I accept that submission. Immediately after stating count 2, her Honour said that "the Crown bears the onus of proof at all times" and "the standard of proof in each count is proof beyond reasonable doubt". Taking the appellant's construction of s 133(2) at its highest, it required no more than that the reasons include the two elements comprising count 2 and that the Crown had to establish each beyond reasonable doubt. The sole evidence supporting count 2 was the testimonial evidence of the complainant. Her Honour stated that for this count "there is no evidence beyond the account of the complainant", she set out the complainant's evidence which extended to both elements, she stated that she was "satisfied beyond reasonable doubt that [the complainant] was an honest and reliable witness" and concluded that she was "satisfied beyond reasonable doubt that the Crown has established the essential elements for each of the offences".
Given what the reasons contained, there was little that could be said in relation to this conviction, save for the failure explicitly to identify the two elements. This was raised during the hearing:
if immediately after reading out count 2 her Honour had said, "And just by the way there are two elements to this count, one is did an act, and the other is with the intent to pervert the course of justice", then the submission you're now making couldn't be made.
The difficulties in the application of s 133(2) to count 1
Count 1 is less straightforward. Unlike count 2, it cannot be said that the primary judge's reproduction of the count at the beginning of her reasons amounted to a statement of the essential legal elements of the offence. That is because saying the appellant "did rob" the complainant, as count 1 does, does not outline all the elements, including the taking of property with an intention to deprive the complainant of it permanently.
Counsel for the Crown nonetheless maintained that a bare statement of the elements could be implied and that there was no breach of s 133(2), on the basis of the way the primary judge addressed the evidence and the absence of any issue being taken as to the elements of the offence. The Crown's ultimate position on whether s 133(2) was breached was captured by the following exchange:
WILSON J: You're saying, Mr Crown, if one reads her Honour's judgment carefully while she hasn't given the bare statement going through her processes of reasoning it is clear she has applied the evidence to the elements to come to the conclusion she reached?
SCULLY: Yes. By necessary implication.
Because the parties agreed on the legal elements of the offence, and because there was nothing in issue before the primary judge aside from the competing accounts of the complainant and the appellant, there is force to the Crown's submission that the requirements of s 133(2) were met by implication from the primary judge accepting the complainant's evidence. That evidence sufficed to establish each of the elements of the offence, and indeed no submission that it was not adequate was made.
However, regard must also be had to the purposes served by the statutory minimum requirements of reasons in Judge alone trials. As Bathurst CJ noted in W v R, the need to provide adequate reasons for verdict, which includes identification of the essential legal elements of the offence, is not only to enable a party to exercise appeal rights, but to enable justice to be seen to be done: at [145]. The purposes achieved by giving adequate reasons were also summarised by Johnson J in R v BK [2022] NSWCCA 51 at [138]-[139]:
A purpose of the requirement to give reasons is to enable the accused person to understand why there has been a conviction, or the prosecution to understand why there has been an acquittal and to enable "close appellate scrutiny of the trial judge": AK v Western Australia at [108]; Toohey v R at [203]. Provisions such as s 133 replace the peculiar discipline of a jury trial with the safeguard of the discipline of giving reasons which is a vital technique for ensuring accurate fact finding, correct inferential reasoning and sound application of the law to the facts: AK v Western Australia at [208] [sic].
The provision of reasons for a decision is, amongst other things, an expression of the open justice principle. The centrality to the judicial function of a public explanation of reasons for final decisions has long been recognised: Wainohu v NSW [(2011) 243 CLR 181; [2011] HCA 24] at [54]-[58].
Her Honour then concluded:
"Having given careful consideration as required for a case based largely or exclusively on a single witness, I am satisfied beyond reasonable doubt that [the complainant] was an honest and reliable witness.
I am satisfied beyond reasonable doubt that the Crown has established the essential elements for each of the offences."
As already noted, her Honour did not, at least explicitly, indicate in her reasons what those elements were. Nor did her Honour indicate at the conclusion of her reasons that, based on her satisfaction of the elements, she was satisfied that the appellant was guilty of the offences charged. That is, her Honour made no statement, as would ordinarily be expected following the extract set out above to the effect of, "I therefore find the accused guilty of each of the charged offences" or even "I find the accused guilty of each offence". I pause to note that no complaint was made by the appellant with respect to the trial judge's failure to expressly state in her reasons her satisfaction of the appellant's guilt of the offences charged. It appears to have been assumed by all that her Honour's satisfaction beyond reasonable doubt of the elements was a finding of guilt of each of the offences within s 133(1) of the Criminal Procedure Act. That is, it was assumed it was a finding of guilt, being a finding that a jury could have made, but which was able to be made by the trial judge pursuant to s 133(1). In the absence of the issue being raised and any argument as to it, it is not for this Court to take a different view. The question is, potentially, a difficult one.
In relation to what her Honour did say, namely that the elements were proved beyond reasonable doubt, a statement that the essential elements of an offence are proved is meaningless without a statement of what those elements are. The respondent, however, submitted that a judgment may reveal that a principle of law was applied expressly or by implication. Reference was made in this regard to Fleming v The Queen at [30]. What the High Court said there (by refence to an equivalent provision to s133(2)) was:
"… if the judgment fails to show that the judge applied a relevant principle of law, two possibilities are presented. One possibility is that, notwithstanding such failure, the principle was applied. Upon that hypothesis, there has been a breach of s 33(2) by reason of the omission from the judgment. The other possibility is that the principle was not applied, with the result that, independently of the question of breach of s 33(2), there has been an error of law which may attract at least the second limb of s 6(1) of the Criminal Appeal Act. The obligation imposed by s 33(2) was to ensure that the judgment included all principles of law which the judge applied. Unless the judgment shows expressly or by implication that the principle was applied, it should be taken that the principle was not applied, rather than applied but not recorded."
Thus, a judgment may show a relevant principle has been applied by implication despite it not being expressly referred to. A failure to apply a relevant principle will be an error of law (or may also be described as a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act). Importantly, however, a conclusion that there was no failure to apply the relevant principle is not to deny that a failure to "include" the relevant principle will be in breach of s 133(2) and an error of law on that basis: see also AK v Western Australia at [48].
In this context, it might also be noted that in Fleming v The Queen, the Court (at [37]), accepted that it is sufficient, where a warning would have been required to be given to a jury, that the judgment shows "expressly or by necessary implication that the warning was taken into account". This observation was made in the context of the equivalent of s 133(3), which requires the judge, where a warning would have been required, to "take the warning into account in dealing with the matter". Within the terms of the provision, the warning will have been taken into account if it was done expressly or by necessary implication. Nonetheless, and despite the different terms of s 133(2) which requires a judge to "include" in the judgment "the principles of law applied by the judge and the findings of fact on which the judge relied", in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (at [52]), it was accepted that this may also be done by necessary implication. It is, however, relevant to observe that in Filippou v The Queen, this acceptance was in the context of an asserted failure on the part of the trial judge to warn herself as to the caution to be taken in drawing inferences adverse to the accused. Despite the appellant having framed the matter as a warning, the Court (at [53]) regarded this as a matter within s 133(2), not s 133(3), and concluded that her Honour's reasons left "no room for doubt that she did take into account the care to be taken". The complaint dealt with in Filippou v The Queen (which can be understood as an aspect of the onus and standard of proof, principles which were included in the reasons), was such that the accused's concerns were properly allayed by statements in the reasons demonstrating the principle had been applied.
Returning to the present case, the primary judge set out the offences and said, "insofar as the offences are concerned I give myself the following directions" and then directed herself, as noted above, as to the onus and standard of proof. Her Honour did not articulate that a criminal charge is proved by proof of the essential elements. Nor did she state what those elements were. Further, as already observed, there was no statement at the conclusion of the reasoning to the effect that her Honour's satisfaction that the elements had been proved had the result that the charges were proved. Had her Honour said this as part of her conclusion it may, arguably, have been possible to relate the finding the elements were proved to the charges set out at the commencement of the reasons. In this hypothetical situation, it would have been necessary to consider, in each case, whether the statement of the charge, her Honour's statement that she was satisfied as to each of the elements of that charge and the conclusion that her Honour was therefore satisfied the charge had been proved, read together, provided the necessary implication. The result, for the reasons discussed by Leeming JA, may have been different with respect to each charge. However, in the absence of her Honour having taken this final step in the reasoning process, the reasons do not relate the finding that the elements were proved to the charges themselves. While the relationship between proof of the elements and proof of an offence is, at least to anyone with a passing knowledge of criminal law, trite, the failure to take the step from proof of the elements to proof of the charges, leaves unconnected the charges stated at the outset and the (assumed) conclusion of guilt at the end. I am not satisfied that her Honour's reasons "include" either expressly or by necessary implication what it was her Honour found proved when she said she was satisfied the essential elements of each of offences had been established.
I would not infer the inclusion of the relevant principles on the basis of matters outside the reasons. As noted by Leeming JA, the elements had been supplied to her Honour in a document by the Crown. The document was then subsequently referred to in the proceedings with no issue being taken as to its content by the appellant. The document was not, however, referred to or otherwise in any way incorporated into her Honour's reasons for judgment. The document (and its provision to the appellant) are certainly relevant. The content of what is required to be provided by way of reasons will be informed by the issues in the particular case: see DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33]. The narrowing of the issues between the parties will usually have a significant impact on the reasoning between the statement of what must be proved, and what is proved. Such a narrowing, however, cannot, in my view, obviate the need for a statement of the starting point and the end point connected by the necessary process of reasoning. It is the starting point that is lacking in the reasoning here. Nor would I regard the principles to have been included by other matters outside the reasons, such as the fact that her Honour is an experienced criminal lawyer: cf Filippou v The Queen at [53].
I am of the view that, in the circumstances of this case, the failure to set out the elements of the offences constitutes a breach of s 133(2) of the Criminal Procedure Act and error has therefore been established. The question that then arises is whether the proviso to s 6(1) of the Criminal Appeal Act can be applied. Before considering the proviso, I pause to note that I express no view as to whether any case involving a failure to expressly state the elements of an offence will reveal error.
In AK v Western Australia, Gummow and Hayne JJ observed (at [46]) that "nowhere in the reasons for judgment did the trial judge articulate how the link was made between the legal principle requiring proof beyond reasonable doubt and the findings of fact that the appellant had touched the complainant in the manner alleged". Heydon J (the other member of the majority) described the failure (at [86]) as "almost as complete a failure as could be imagined". The result was that there was a substantial miscarriage of justice, irrespective of the appellate court's satisfaction of guilt of the offence.
In Fleming v The Queen, the failure of the trial judge to give a warning with respect to the evidence of the complainant precluded application of the proviso because it made it impossible for an appellate court to determine whether the complainant's evidence had been given appropriate scrutiny, in circumstances where the credit of the complainant was the central issue in the trial. Thus, in Fleming v The Queen it was not possible to conclude that no substantial miscarriage of justice had, in fact, occurred.
Within the first type of complaint, that is complaints with respect to a failure to articulate the reasoning process, there are various sub-species of complaint, such as the failure to deal with particular evidence or a particular defence argument. With respect to issues of this type, questions of degree necessarily arise. What is required as a minimum does not lend itself to a determinative statement: AK v Western Australia at [84]. This, in turn, leads to the need for an evaluative judgment as to whether the particular breach is such that it is properly described as a "substantial miscarriage of justice" (without regard being had to the strength of the Crown case).
The present matter is unusual because, rather than articulating a complaint with respect to the reasoning process, or with respect to the need to give a necessary warning (as part of that reasoning process), the complaint is that the reasons failed at the outset.
As discussed above, the starting point for the necessary process of reasoning, that is what had to be proved, can be described as the identification of the essential legal elements. The submissions for the appellant tended to assume that these "elements" have a binary character such that that they either are, or are not, stated. Implicit in the argument was that the questions of degree that arise in assessing adequacy of reasons between the starting point and the endpoint of a process of reasoning do not arise. A failure to articulate the starting point was therefore submitted to be not only an error of law as a consequence of the failure to comply with s 133(2) but was also "fundamental" or "went to the root of the proceedings" such that the proviso has no application. That is to say it was contended that, irrespective of this Court's view as to whether the offences were proved beyond reasonable doubt, there was, as a result of the failure, a "substantial miscarriage of justice".
The use of the term, "elements" is one of convenience when setting out what the Crown must prove in order to prove an offence. However, the term has no particular independent status. Contrary to, what is at least implicit in the appellant's argument, a statement of "essential elements" does not necessarily lend itself to a binary concept in that the elements, or what must be proved, either is or is not stated. To take an example of an offence removed from the present case, one of break enter and commit a serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900 (NSW), the elements can be stated simply as a requirement of proof that the accused:
1. did break;
2. and entered;
3. a dwelling house or other building;
4. and committed a serious indictable offence therein.
In this example, it can be seen that while, at one level, what must be proved is set out, it leaves open many questions. For example, what must be proved to constitute a breaking? This question is not necessarily straightforward: see Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 and R v BA [2021] NSWCCA 191, an appeal from which is presently reserved before the High Court. Similarly, what is required to prove entry? What is a dwelling house, and what constitutes a building? What is a serious indictable offence? Of course, this last element would ordinarily be particularised: cf Dean v R [2019] NSWCCA 27. To extend the example, taking a commonly charged offence, the last element might be particularised as stealing. In this case, it would be unnecessary to refer to the commission of a "serious indictable offence" as an element of the offence. It would be sufficient (and preferable) to express the fourth element as "did steal". This, in turn, raises issues with respect to a complete statement of what must be proved to prove stealing. In order to prove stealing, it is ordinarily necessary to prove the asportation of property with an intention to permanently deprive. It may be necessary to prove this was done without a claim of right.
There will be many cases involving a conventional breaking, entering, and stealing where is unnecessary to give further instruction as to what constitutes a break, what constitutes entering, and what constitutes stealing. In many cases it will be sufficient to observe that there is no contest; that is, if what is alleged is established, the Crown will have proved a breaking, and entering, and stealing. The extent to which directions are required is framed by the matters in issue: The Queen v Chai (2002) 128 A Crim R 101; [2002] HCA 12 at [18]. As Leeming JA has pointed out, a failure to direct a jury of an essential element of an offence will not necessarily be fatal: Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; Holland v The Queen (1993) 68 A Crim R 176; [1993] HCA 43. While these observations were made in the context of directions to a jury, s 133(2) similarly requires only relevant principles be stated: AK v Western Australia at [44].
The point to be made from the above example is that a failure to state all of the essential legal ingredients of proof of an offence will not, in every case, amount to a breach of s 132(2), let alone a "substantial miscarriage of justice" for the purposes of the proviso to s 6(1) of the Criminal Appeal Act. Conversely, there will be cases where a particular matter (that is, a matter averred in the charge that is not a legal ingredient), will, as a result of the manner in which the trial is run, need to be proved beyond reasonable doubt: see R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep); Hamilton v Director of Public Prosecutions [2020] NSWSC 1745 at [87]-[98]; Dean v R. It is likely that, in such a case, it will be necessary to articulate this as a matter to be proved beyond reasonable doubt in order to comply with s 133(2). Thus, what is required to be stated is to be considered having regard to what is in issue in the case. While in this case, I have found that there was a breach of s 133(2), the observation is relevant to the appellant's submission that the failure to state the elements is so fundamental a breach as to preclude the application of the proviso.
In DL v The Queen, Kiefel CJ, Keane and Edelman JJ said (at [33]), quoting AK v Western Australia (at [85]):
"At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake "a minute explanation of every step in the reasoning process that leads to the judge's conclusion". At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial. In particular:
"Ordinarily it would be necessary for a trial judge to summarise the crucial arguments of the parties, to formulate the issues for decision, to resolve any issues of law and fact which needed to be determined before the verdict could be arrived at, in the course of that resolution to explain how competing arguments of the parties were to be dealt with and why the resolution arrived at was arrived at, to apply the law found to the facts found, and to explain how the verdict followed."" (footnotes omitted)"
While their Honours in the above passage referred to the adequacy of the reasons being assessed in accordance with "their bearing upon the elements of the offence", that was in the context of a complaint about the reasoning process. For the reasons discussed above, I would not understand their Honours as suggesting that in every case it is necessary to articulate every conceivable element of an offence. It should also be noted that their Honour's observations were made in the context of determining whether the reasons were "adequate". The language of "adequate" is to be seen in the context (an appeal from South Australia) where there was no statutory provision equivalent to s 133(2) and thus no question of breach of any such provision.
The observations from DL v The Queen above, do not decide the present case, where there was no articulation of any of the essential elements of either of the offences. But what is clear is that, while falling short of what is required will render reasons inadequate, there will be a further step whereby the degree of departure is measured to determine whether the failing was, without more, a substantial miscarriage of justice. I do not accept that describing a statement of the elements as "fundamental" has the result that the proviso cannot be applied.
As the passage from AK v Western Australia at [44] (set out above at [99]) demonstrates, the articulation of elements ordinarily leads to identification of those which are in dispute, to which the process of legal reasoning is applied. Of course, a charge may fail for reasons other than the matters put in issue by the defence. The possibility of such cases, of course, underscores the desirability of setting out the elements. Here, however, there was no submission that the failure to articulate the elements infected the subsequent reasoning process. In this regard, the present case is very different to the circumstances of AK v Western Australia where it was found that, despite the appeal court's satisfaction of proof of the offence, the proviso should not have been applied. There, Gummow and Hayne JJ said at [55]:
"In every case it will be necessary to consider the application of the proviso (and here s 30(4)) taking proper account of the ground or grounds of appeal that have been made out and which, but for the engagement of the proviso, would require the appellate court to allow the appeal. In the present case there were two features of the error identified as occurring at trial which are important in deciding whether the Court of Appeal could conclude "that no substantial miscarriage of justice has occurred". First, s 120(2) of the Criminal Procedure Act required the reasons to articulate the connection identified between the relevant legal principle (in this case, proof beyond reasonable doubt) and the relevant findings of fact. Second, the particular failure that was identified related to the central issue in the appellant's trial on the counts of indecent dealing and was constituted by the complete failure to articulate any of the reasoning by which the trial judge reached the ultimate conclusion that the appellant was guilty of each of those charges." (Footnote omitted)
The reasons of Heydon J in AK v Western Australia lend greater support to the appellant. His Honour, reviewed in detail the advantages for an accused of trial by jury, the nature of trial by judge alone, the significance of an accused person's surrender of the right to trial by jury, and the unanimity or near unanimity entailed. His Honour observed that the discipline generated by the need for unanimity or near unanimity cannot be compensated for directly but "by an indirect route the duty to give reasons can operate to safeguard the interests of the accused and the public interest generally" (at [104]). His Honour said (at [108]):
"… Non-compliance with [the equivalent of s 133(2)], at least in non-trivial respects, is a departure from an essential legal requirement going to the root of proceedings and from a fundamental assumption on which this hitherto unusual form of justice in serious cases rests."
Quite where the divide is found between trivial and non-trivial breaches is again, not capable of precise delineation. As already observed, Heydon J's observations were made in the context of what his Honour (at [85]) regarded as "almost as complete a failure as could be imagined".
I would hesitate to describe the failure in the present matter as "trivial". Nonetheless, it remains relevant to consider the potential impact of the failure on the reasons. While the appellant contended it was a "matter of pure speculation as to precisely what her Honour viewed as being the essential legal elements for either offence", this submission loses its force in the context of the provision of a document setting out the elements and the resulting implied agreement between the parties as to the elements of the offences. Further, despite the submission of the appellant, it is not clear how the deficiency in reasons impacted the appellant's ability to exercise appeal rights. Rather than rendering opaque the reasons leading to the conclusion of guilt, the deficiency in the reasons served only to create, at least, the prospect of a successful appeal.
The failure does impact on the importance of the reasons in ensuring that "[justice] be seen to be done": Fleming v The Queen at [22]; W v R [2014] NSWCCA 110 at [145]. Here, the reasons do not serve as an independent statement setting out the steps involved in the proof of the offences. The deficiencies in the reasons do not engender confidence that the care that would ordinarily be expected in determining a serious criminal charge was exercised. Against that, as has been discussed by Leeming JA, the process of reasoning was not otherwise vulnerable to criticism. It is significant that the appellant was represented, all parties were aware of the issues, and the case was fought on the basis of whether the complainant could be accepted beyond reasonable doubt. The reasons clearly addressed that which had been put in issue. Nor did the failure impact on this Court's capacity to judge the guilt of the appellant. The circumstances were, therefore, very different from those in cases such as AK v Western Australia and Fleming v The Queen. I would not regard the reasons as falling so far short of what was required such that a substantial miscarriage of justice was occasioned on this basis alone.
Finally, I note that any doubt I may have had as to the appellant's guilt is explained by the natural advantage held by the trial judge in seeing and hearing the evidence: Dansie v The Queen [2022] HCA 25; (2022) 92 ALJR 728 at [16]. It follows that I am of the view that no substantial miscarriage of justice has been occasioned and the appeal should be dismissed.
It is necessary to consider the nature and effect of the particular error in every case to determine whether there has been a substantial miscarriage of justice. In this case, the error was a failure to identify the legal elements of the offences, which was not an issue at trial, let alone the central issue. Thus, it could not be said that there was a substantial miscarriage of justice and the proviso applied to both counts: [89]-[92].
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, considered.
As to issue (ii) per Dhanji J (concurring):
A failure to state all the essential elements of an offence is not so fundamental a breach as to preclude the application of the proviso. While falling short of what is required will render reasons inadequate, there will be a further step whereby the degree of departure is measured to determine whether the failing was, without more, a substantial miscarriage of justice: [16]-[27].
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, considered.
It is necessary to consider the impact of the failure on the reasons. In this case, the provision of a document setting out the elements meant that there was implied agreement between about the elements, such that it was not speculative to consider what her Honour viewed as the essential elements: [31].
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8, considered.
The failure to give reasons does impact on the importance of reasons in ensuring that justice be seen to be done. However, having regard to the how the case was run, and given that the process of reasoning was not otherwise vulnerable to criticism, the appellant was represented, all parties were aware of the issues, and the reasons addressed what had been put in issue, the reasons did not fall so far short of what was required, such that a substantial miscarriage of justice was occasioned on this basis alone: [32].
AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8; Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68; DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, considered.
The Crown accepted that a judgment in a trial by Judge alone must include, expressly or by implication, the principles of law to be applied by the judge, including the essential elements of the offence. But that did not mean that the primary judge had breached s 133(2). Two propositions were relevant to this. First, it was permissible to look at whether the primary judge's reasons included the essential legal elements to the two offences by implication for the purposes of s 133(2), relying on the High Court's observations in Fleming at [30] (which is reproduced below). Secondly, consistently with the approach adopted by the High Court in AK, the requisite content and detail of the reasons for judgment varied depending upon what issues of fact and/or law were in dispute in a particular case.
The Crown submitted that when those two propositions were accepted, the primary judge's reasons did not breach s 133(2). That was because the primary judge's reasons contained everything necessary to satisfy all the elements of both offences, in circumstances where there was no dispute between the parties as to what they were.
By way of fallback, the Crown's maintained that if there were a breach of s 133(2), then the proviso in s 6(1) of the Criminal Appeal Act would apply. Section 6(1) is as follows (with the proviso emphasised):
6 Determination of appeals in ordinary cases
(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.
It was said that in a case such as this - where there was a narrow factual basis for each count which was not challenged by the appellant - the error was not one which was so serious as to go to the root of the proceedings.
The appellant submitted that the proviso should have no application. It was said that a failure to include the essential legal elements of an offence - much like the failure to direct a jury in open court regarding the legal elements of an offence - was such a fundamental failure that it resulted in a serious miscarriage of justice.
Most if not all of the decisions involving an alleged contravention of s 133(2) have been based on claims that the reasoning of the judge was inadequate. The parties did not identify a decision on all fours with the present, where no complaint is made about the reasoning of the judge, save for the failure to refer explicitly to the elements of the offences.
As noted above, both the appellant and the Crown were in agreement that s 133(2) required at a minimum that the elements of each offence be contained in the reasons, either expressly or by implication. It is not entirely clear to me that that is so. Section 133(2) does not in terms make it mandatory to include the elements of an offence in the judgment given by a Judge alone trial. Section 133(2) requires the inclusion of "the principles of law applied by the Judge". Listing the elements of an offence does not naturally fall within the scope of those words. However, one principle which is applied in every criminal trial is that a guilty verdict should only be returned if the Crown has established each element of the offence beyond reasonable doubt (see for example Shepherd v The Queen (1990) 150 CLR 573 at 579-580; [1990] HCA 56). It is principally if not exclusively by that means that the subsection has application to the narrow argument advanced by the appellant in this appeal. I do not intend to convey any criticism, but because of the Crown's concession, there was less argument about how s 133(2) applied to the present, very straightforward trial where there had at all times been agreement as to the elements of the offences and the issues were entirely factual. I mention this because it affects the approach I take to resolving this appeal.
The appellant accepted as much, although adding that the count did not include the extended meaning reflected in s 312, which provides that "A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law" and which had been included in the elements document.
I do not accept that any requirement to identify the elements of an offence imposed by s 133(2) could be breached by merely describing the mental element as an intention to pervert the course of justice, without reciting the statutory extension in s 312. This statutory confirmation of the expanded scope of perverting the course of justice had no application to the facts of this case. It is not the function of the trial judge to expound to the jury (in trials involving a jury) principles of law going beyond those needed to resolve the particular case: R v Chai [2002] HCA 12; 76 ALJR 628 at [18], and the position can be no different in the case of a trial by Judge alone.
Nor do I accept that s 133(2) although satisfied if the additional words - to the effect "the two elements in that offence are the two matters I have just read out" - were included in the primary judge's reasons, was breached because of their absence. Necessary implication is sufficient to satisfy the mandatory requirements imposed by s 133(2) of things that must be included in a judgment following a Judge alone trial. This is a clear case of the reasons containing, at least by necessary implication, the elements of the offence.
Contrary to the appellant's submission, there was no room for speculation as to how her Honour had reached her finding. Acceptance of the complainant's account that the appellant would pay him if he dropped the charges, and the rejection of the appellant's denial of that conversation, makes plain precisely how the finding of guilt was reached.
It follows that the primary judge did not breach s 133(2) in respect of count 2.
Lest there be any doubt about it, I should add the following by way of completeness in light of the narrowness of the appellant's submission. A bare statement of the legal elements is not sufficient in order to satisfy s 133(2). It is necessary to expose the reasoning process linking the principles of law applied and the facts found, in accordance with what was said in Fleming. But the present appeal diverged from the course often taken when it is asserted that that section has been contravened, because there was no suggestion that the reasoning of the primary judge resolving the real issues in the trial was in any way deficient. Her Honour's reasons attended to the real issues at trial, namely the resolution between the different accounts of what occurred, in light of the contemporaneous documentary and photographic evidence. No complaint is made of the adequacy of that aspect of the reasons, and to be fair it is difficult to see how any complaint could realistically be made. As noted above, the complainant's evidence was accepted as being honest, accurate and reliable. That included his evidence that he was offered money if he dropped the charges. Her Honour's acceptance of that aspect of the complainant's evidence was the reasoning underlying the conclusion that she was satisfied beyond reasonable doubt that the Crown had established the appellant's guilt on this count.
Whether or not s 133(2) has been breached in respect of count 1 in the circumstances of this case, however, is a question I prefer not to answer. The question is quite important, and might be significant in another case. To be candid about it, I can see arguments pointing in favour of a construction which focusses on the substance of the matter, and also arguments favouring a more formal approach, leading to a breach where the elements of the offences, despite being utterly uncontroversial, have not been stated.
One reason that I am reluctant to answer the question is that I do not think the Court received full arguments on construction. It was agreed that the elements of the offence had to be contained in the judgment, although that could occur through implication. Precisely how that agreed position was reached from the text of the provision, construed contextually and purposively, was not made clear. As noted at the outset, the elements of the offence do not readily answer the description of "principles of law applied".
Another is that, at least to my mind, s 133 is a section which is easy to read but difficult to understand. The section puts together two quite different things. Section 133(1) deems the judge's finding to have the same effect as a jury's verdict, while one of the purposes of s 133(3) is to ensure that the judge, rather like a jury, receives and is seen to receive appropriate directions. That is readily explicable: both place the judge in the position of the jury. However, s 133(2) is a radical departure from the approach seen in the preceding and succeeding subsections which equate the judge to a jury, in that it insists that reasons be given for the judgment, and, further, imposes a minimal content to those reasons. The significance of a jury direction when all the jury produces is an opaque verdict is obvious; the significance of a direction made by the judge to the judge who is then required to give reasons is not self-apparent.
It is not necessary to determine whether s 133(2) was contravened in relation to count 1, because I am very comfortably satisfied that the proviso would apply in any event. It accords with traditional technique of the common law to confine decisions to those which are necessary to resolve the dispute before the court: see Gageler J in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76].
While I prefer not to reach a conclusion on the application of s 133(2) to the facts of this appeal, I would emphasise that it is preferable for judges sitting in Judge alone trials to clearly set out the essential legal elements of an offence in every case. That is so even if the essential legal elements are not in dispute and even if the reasoning of the judge makes it clear by implication that the elements have been made out. One reason for this is that it is not unknown for agreed statements of issues (or agreed directions to juries) to have been wrong, leading to a miscarriage of justice. Another is that it is important that the administration of criminal justice be as transparent as possible, as Bathurst CJ and Johnson J emphasised in the passages in W v R and R v BK reproduced above. A third is that the judgment is the product of a trial, usually over a number of days, with serious consequences for the participants, not least the accused. It will not normally add appreciably to the burden and discipline of delivering judgment to include not merely the offences charged, but also their elements.