SUTHERS v. DIRECTOR OF PUBLIC PROSECUTION & ANOR [2003] NSWSC 570

1 HIS HONOUR: On 14 August 2002, I delivered judgment on the claim for principal relief in the proceedings and for the reasons given in that judgment, ordered that the conviction of the plaintiff and the sentence passed upon him be quashed. This judgment should be read in conjunction with that. 2 The appropriate further order to be made in consequence of that decision remained the subject of argument. The outstanding matter came before me for hearing on 15 May 2003 following the parties filing extensive written submissions. 3 It was contended on behalf of the plaintiff that I should enter a verdict of acquittal or dismiss the information and on the part of the defendant, that the matter should be remitted to the original magistrate to re-hear. 4 To determine what course should now be taken, it is necessary that I have regard to the nature of the proceedings as they were before me and as they were before the magistrate. Although I have dealt with those matters in my previous judgment, it is necessary I refer shortly to the context. 5 The proceedings before me were brought by way of an appeal to the Supreme Court under Part 5 of the Justices Act 1902 from the determination of a magistrate in the Local Court convicting the plaintiff of an offence of aggravated indecent assault. That offence is an offence under s.61M(i) of the Crimes Act 1900 capable of being dealt with on indictment and when dealt with on indictment is punishable by a maximum sentence of imprisonment for seven years. 6 Since it is an indictable offence, there is no statutory or legal bar to the informant laying a fresh information and proceeding to the prosecution of the matter anew, the conviction having been quashed, unless an order having the effect of an acquittal or a dismissal of the information upon its merits occurs, even in the absence of my making an order remitting the proceedings. 7 It is that consideration which underlies the submission of the plaintiff that an acquittal or its equivalent, a dismissal of the information (which order is applicable to matters dealt with summarily in the Local Court) should be entered. 8 The appellant succeeded before me on the basis that the learned magistrate had erred in law in taking an approach to the consideration of the evidence at the hearing which was contrary to that approach the High Court had held in Robinson v. The Queen (1988-89) 180 CLR 531 was necessary. I held that the magistrate had inverted the onus of proof contrary to that provided for by s.141(1) of the Evidence Act 1995. In addition, I held, that the magistrate had erred in reasoning upon a basis that attributed to the plaintiff's daughter and the defendant a high motivation to lie said to have arisen from his and her awareness of the consequences of a finding of his guilt. 9 I did not determine that there was no or insufficient evidence to support the conviction. 10 Section 109 of the Justices Act 1902 provides the powers that I might exercise sitting as the court in determining the appeal. Section 109 is as follows:- "The Supreme Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following:- (a) confirming, quashing, setting aside or varying the conviction, order or sentence appealed against or any part of it, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it things just, (d) remitting the matter to the magistrate who made the conviction or order, or imposed the sentence, to hear and determine the matter of the appeal." 11 It becomes necessary to consider whether s.109(a) or s.109(c) is so wide as to permit in the circumstances that I will refer to shortly, the making of the order sought by the plaintiff or whether the matter as sought by the defendant should be remitted in accordance with s.109(a). 12 In that regard, I turn at this point to consider whether, if a remitter is to be ordered, s.109(d) requires the matter to be remitted to the magistrate who made the conviction. On its face and considered on its own, it does so. However, s.114 provides:- If the Supreme Court remits a matter to a magistrate under this Part and the magistrate who made the original conviction or order, or imposed the original sentence, has ceased to hold office as a magistrate or is for any other reason unable to continue to hear and determine the remitted matter, the matter is to be dealt with by another magistrate nominated by the chief magistrate." 13 It is clear that s.114 is sufficiently wide as to embrace the circumstance in which a magistrate is unable to continue to hear and determine the matter as the magistrate has already made findings which have to be set aside, as this magistrate has, such that the magistrate would be unable to come to the case without a reasonable observer concluding the magistrate had pre-judged the questions of fact it was necessary to determine. In Noble v. DPP & Ors (2000) 118 A. Crim. R. 305, Smart, AJ. concluded, in similar circumstances, that a matter required re-hearing before a different magistrate and posed the relevant test as follows:- "On the basis that both the appellant and fair minded members of the public might reasonably apprehend or suspect that the magistrate had pre-judged or might pre-judge the case, given that: the magistrate had already found the offence proved; such finding entails the acceptance of the evidence of the main Crown witness to a high degree and proof of each of the elements of the offence beyond reasonable doubt; …" 14 His Honour referred to the decision of the High Court in Webb v. Hay (1994) 181 CLR 41. 15 In Downes v. DPP [2000] NSWSC 1054, Studdert, J. declined to make an order remitting the matter for hearing before another magistrate holding that the matter should be returned to the magistrate before whom it had originally come to as "it has not been suggested that the magistrate from whose decision this appeal has been brought … is for any reason unable to continue to hear and determine these matters upon their being remitted". Contrary to the submission of the respondent, I see nothing in that decision which cuts down the effect of what was referred to by Smart, AJ. in Noble (supra). 16 However, upon my reading of s.109(d) and s.114 of the Justices Act 1902, I am unable to accept the approach of Smart, AJ. which it seems to me elides impermissibly the interaction of the two sections. Section 109(d) leaves no option but to remit the matter, should it be remitted, to the magistrate "who made the original conviction", although it would seem appropriate that, to avoid the ill to which Smart, AJ.'s judgment in Noble (supra) is directed, that the remitter be accompanied by an order under s.109(c) ordering that magistrate not to hear, re-hear or continue hearing the remitted matter as being unable to continue for the legal reasons given by Smart, AJ. Such an order would have the effect of triggering s.114 to enable the Chief Magistrate to designate another magistrate to hear the remitted matter. Such hearing would be by way of a re-hearing, of necessity. 17 Although it was submitted on behalf of the defendant that s.109(d) envisaged only a remitter to the magistrate who made the conviction and that it only envisaged that the magistrate would continue to hear the matter, it is apparent that the errors of law to which s.104 is addressed might well have so pervaded the entire hearing of a matter as to require that matter to start anew and before another magistrate. This, in my view, should the matter be remitted, is one of those cases, and, indeed, it is for that reason, in particular, that I would be of the view that, were the matter to be remitted, it would require re-hearing before a new magistrate. 18 I do not accept the submissions of the defendant that s.109(d) should be construed so narrowly. There is nothing in the legislative history of the section or its predecessors to warrant such a course. 19 Although the submissions referred to the Parliamentary debates and to various extraneous materials, there is nothing to which my attention has been drawn that assists that submission. Nor is there anything by way of prior authority, directly applicable, nor in the legislative history or the debates or in the extraneous material, which assists on the question of whether an acquittal might be ordered. 20 With that in mind, I return to the plaintiff's submission that an order of acquittal or the like should be made, in lieu of remitting the matter. It was submitted that the power of the court to make "such other order(s) as it thinks just" (s.109(c)) was wide enough to permit of such an order. It was further submitted that the circumstances warranted the making of such an order in the proper exercise of a discretion conferred by that section. It was submitted that in that context the court should adopt an approach analogous to the jurisprudence applied by the Courts of Criminal Appeal in respect of the common form Criminal Appeal Statutes in consequence of the finding of a miscarriage of justice where those statutes grant power to the court to order a new trial. 21 I was referred to the judgment of Kirby, J. in Dyers v. The Queen [2002] HCA 45:- "The view has sometimes been expressed in this court that, following a finding of a material misdirection of law there is only one order that may be made, namely the order quashing the original conviction and providing for a new trial. However, that opinion is incompatible with the sources of this court's powers, its character as a court, and with the practice of the court in particular cases, some of which I have mentioned. An order for a re-trial must be sustained, in the particular case, by the applicable facts and law and by a judicial consideration of justice. If an order for re-trial may be withheld because it would permit the prosecution to present a different case, it may be withheld in other circumstances where justice equally requires that course. In disposing of an appeal such as this, this court is not confined to correcting errors of law. More than 80 years ago, in Hargan v. The King , Isaacs, J. pointed out that the 'greatest innovation' made by the Criminal Appeal Act 1912 (NSW) was to permit scrutiny of criminal convictions by a broader standard than 'error in strict law'. This is not, therefore, a case analogous to appellate correction confined to error of law alone. The court has the whole matter before it. It has large powers under the Constitution and the Judiciary Act 1903 (Cth) that include the ordering of a new trial, where the discretionary considerations suggest that that be done. Where an appellate court has not accepted an argument that a verdict is unreasonable, but has found a material error of law, the proper order is normally to provide for a re-trial. Where the prosecutor's discretion is exercised in favour of a re-trial, such an order permits a verdict to be taken from a jury accepted as representing the community. This is why, normally, it is left to the Director of Public Prosecutions to evaluate the competing considerations for and against a re-trial. This said, an order for a new trial remains 'within limits, a discretionary remedy'. It is no less so in criminal appeals, although the considerations of the public interest involved in criminal proceedings are somewhat different to those in civil cases. It is a judicial act and therefore not an automatic or unthinking one." 22 Those remarks have to be understood in the context of the powers of the High Court under the Constitution and the Judiciary Act 1902 (Cth) and the provisions of the Criminal Appeal Statutes to which I have referred. 23 In New South Wales, the relevant provision is s.8(1) of the Criminal Appeal Act 1912 which provides as follows:- "On an appeal against a conviction on indictment, the court may, either of its own motion, or on the application of the appellant, order a new trial in such manner as it thinks fit, if the court considers that a miscarriage of justice has occurred, and, that having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order for a new trial than by any other order which the court is empowered to make." 24 A considerable jurisprudence has arisen concerning the application of that provision. It is clear that it confers upon the court the wide discretion to which Kirby, J. refers. It is clear that where there is insufficient evidence at the original trial, there should be no order for a re-trial: King v. The Queen (1986) 161 CLR 423. Nor should there be a new trial if the accused would be tried on a case which is substantially different or of which he had been substantially acquitted at the previous trial: Regina v. Wilkes (1948) 77 CLR 511; Parker v. The Queen (1997) 186 CLR 494. 25 The extent of the discretion was emphasised and the criteria on which it should be exercised examined in DPP (Nauru) v. Fowler (1984) 154 CLR 627. 26 The section specifically requires the court, before determining there should be a new trial, to consider the nature of the miscarriage of justice detected and to consider it in the context of all the relevant circumstances that might speak for or against a new trial. The essential issue turns on whether that miscarriage can be more adequately remedied by an order for a new trial than by any other order. The section casts an onus on the prosecution to persuade the court to make such an order as otherwise s.6(2) would require an acquittal to be entered. These provisions are markedly different from those in Part 5 of the Justices Act 1902. The current state of authority on the application of s.8(1) indicates that in ordinary circumstances, having regard to the public interest in indictable matters being determined by the tribunal of fact, be it judge, magistrate or jury, to which the trial of the issues of fact in such matters has been confided by the legislature, there should be a re-trial: Regina v. Ward (1981) A. Crim. R. 171. 27 Although s.109(c) is in terms which do not reflect s.8 of the Criminal Appeal Act, it is apparent that those terms are very wide and, indeed, appear to me wider in ambit than the provision of the Criminal Appeal Act 1912 although the policy considerations applicable to the application of s.8(1) might apply to the application of s.109(c). 28 But the two sections are different in nature, since the concept underlying s.8(1) and s6(2) favours an order of acquittal unless a new trial is a more adequate remedy, and that concept does not inform or underlie the construction of the Justices Act 1902 provisions. For these reasons, I am not persuaded that I should take an approach to the application of s.109(c) as I would if applying s.8(1) or s.6(2), although I might apply similarly the same policies. However, I consider it will be useful if I proceed to consider the application to the facts of this case the submitted analogy with those policies in mind. 29 It was submitted before me that the evidence given at the hearing was "not sufficiently cogent to justify a conviction". It was, however, conceded that there was a sufficiency of evidence for a case to answer, although it was submitted that any conviction resulting from the re-hearing on similar evidence "would be necessarily unreasonable and would necessitate a further appeal to the District Court". 30 It is not necessary for me to set out in detail what the evidence was. It is apparent that there was evidence which, if considered on the tests appropriate for a no case submission and on the basis of those appropriate to the consideration of whether a verdict found in reliance upon it were to be overturned as incapable of acceptance, would meet those tests. But for my part, I regard the prosecution case, from a reading of the written materials and after having the benefit of the various submissions, as a case that is not at all strong. Indeed, the account of the complainant is one that I find singularly unpersuasive, notwithstanding the fact of the early complaint. 31 The magistrate's rejection of the defence case and the evidence of the defendant and his daughter was explicable on the basis of the error made as to the onus and standard of proof which I detected and explained in my earlier judgment. In my view, putting aside that error, the defendant's case, when one takes into account the onus and standard and the evidence given by the defendant and his daughter, including the cross-examination, was quite strong, but not reasonably incapable of rejection, considering the prosecution evidence. In that circumstance, I do not see that the legislature has confided in me, sitting as the Supreme Court of New South Wales under Part 5 of the Justices Act 1902, a power myself to hear and determine the conflict of evidence upon the transcript and counsels' submissions as might be done by a Court of Criminal Appeal determining whether a conviction is unsafe and unsatisfactory instead of hearing the evidence as a magistrate would. 32 Even in the context of determining whether a matter is unsafe and unsatisfactory, ie., whether a conviction "should be set aside on the ground that it is unreasonable or cannot be supported, having regard to the evidence" (s.6(1) Criminal Appeal Act), it is necessary to have regard not only to the fact that the trial tribunal of fact had been entrusted with the primary responsibility of determining guilt or innocence but also the fact that that body had the benefit of seeing and hearing the witnesses and thus was in a much better position to evaluate the testimony of those witnesses: see M v. The Queen (1984) 181 CLR 487. In that decision, the High Court also held:- "The ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (at 495)." 33 If I were to come to the conclusion that the court of trial acting in accordance with the law, directing itself appropriately, as is required by the general law and the Evidence Act 1995, particularly s.165, and applying the proper standard and onus of proof would be unable to hold that the accused was guilty, then I consider that it would be incumbent upon me to make such other order as the court thinks just and myself to dispose finally of the case. Or, if there was some matter of oppression or some such matter as would warrant a stay of the proceedings, some such order as would have the effect of preventing a re-trial might need to be made. But I do not consider either apply here. 34 Accepting that s.109(c) confides in the court a discretion and assuming that discretion might be so wide as to permit orders as sought to be made in the exercise of discretion, that discretion is to be exercised according to principle and recognising the public interest in the tribunal to which the trial of such issues has been confided determining the facts of such a serious allegation. 35 This is not to say that there are other discretionary considerations that should be taken into account. The plaintiff submitted that there were some 11 such considerations. They are set out in the plaintiff's further submissions as follows:- "1. The unlikelihood of any re-hearing resulting in a conviction due to the weakness of the prosecution's case. 2. The relatively minor nature of the alleged assault being a fleeting touch on the outside of clothing. 3. The public interest in avoiding the need for children to appear in court a second time and to further undergo the ordeal of cross-examination. 4. The impact of delay on memory and accuracy of evidence in circumstances where two major witnesses are children, aged 12 and 10 at the time of the alleged offence, and who will this year turn 15 and 13. 5. The public cost and inconvenience in circumstances of a weak prosecution case. 6. The private cost of a further hearing which is unlikely to be recovered in a matter which is unlikely to succeed. 7. There is no issue of the usurping of jury function. 8. The unfairness in further proceeding with a matter unlikely to be successful which, had it been properly investigated from the outset, would have been unlikely to proceed. 9. Father Dennis Alan, one of the plaintiff's witnesses on character, is now deceased. 10. Whatever the outcome of these proceedings, the allegation will be reviewed by the Department of Eduction and Training and if appropriate evidence were available would result in disciplinary proceedings. 11. It is contrary to a judicial consideration of the interests of justice that this matter should not be finally disposed of in this court." 36 I understand most of the matters to which the plaintiff has referred, although I am unable to understand what is embraced in the matter numbered 11 otherwise than as a general submission that it is open to a judge to exercise a discretion in favour of the plaintiff and that it is contended that the discretion should be so exercised so as to require final disposition in this court. 37 Even recognising that it is submitted that the assault is of a relatively minor nature and the unlikelihood, in my view, of a conviction occurring in the event that the matter were to be re-heard in accordance with the law, I do not consider that the possibility that the matter might be determined against the plaintiff when properly considered to be so negligible as to say, even having regard to the discretionary considerations, that, applying principles analogous to those developed under the jurisprudence as to re-trials applying s.8 of the Criminal Appeal Act, that there should not be a re-trial in this case. 38 However, I take into account in reaching that view the concession by the Director of Public Prosecutions that the Director at a re-hearing would not seek to use s.38 of the Evidence Act in respect of the evidence of the defendant's daughter, and that the Director is prepared to pay the costs of the plaintiff thrown away by reason of the aborted Local Court proceedings, to be agreed by the parties or assessed by the magistrate who hears the matter after remission. I note also that the Director will pay the costs of the plaintiff of these proceedings. 39 I have come to this view with considerable reluctance because I apprehend there are weighty considerations against the re-hearing of the matter, not the least being the delay since the complaint was laid, occasioned by the aborted hearing and the appeal process and that the case concerns what appears to me, on the material before me, to be a weak prosecution case in respect of a matter said to have arisen by a touch on the outside of clothing. I am concerned also as to the effect of the delay on the consideration of the evidence at trial and, that it will in particular, be necessary for any magistrate, should the matter be re-heard, to have regard to the effect of the decisions of the High Court in such matters as Longman v. The Queen (1989) 168 CLR 79; Crampton v. The Queen (2000) 75 ALJR 133 and Doggett v. The Queen (2001) 75 ALJR 1290: see Regina v. WRC [2001] NSWCCA 210. 40 Having regard to all these matters, it is a decision to which the Director might come that no re-trial be sought. That is a matter entirely for the Director. However, in my view, since I am unable to say that a further prosecution, even having regard to the discretionary matters, should not be brought, I would, even applying the s.8(1) test, by analogy allow a new trial. 41 I therefore order that the matter be remitted to the magistrate who made the order and I further order, having regard to the matters to which I have earlier referred, that that magistrate is unable to continue to hear the matter. I order that the defendant pay the plaintiff's costs of these proceedings and the costs thrown away by reason of the original proceedings before the magistrate having had to be set aside. Those latter costs are to be agreed between the parties. 42 In the event that the matter does not proceed for any reason, I reserve leave to the parties to obtain a costs assessment. **********

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