CRIMINAL LAW UPDATE PUBLIC DEFENDERS CONFERENCE 2015

Transcription

1 CRIMINAL LAW UPDATE PUBLIC DEFENDERS CONFERENCE Thankyou very much to Public Defenders for inviting me back. Last year, I concluded the paper that I gave by speaking briefly about the High Court s decision of Bugmy v The Queen [2013] HCA 37; 249 CLR 571 ( Bugmy ). The over-representation of Indigenous Australians is the single most important issue confronting the criminal justice system. The Productivity Commission s Overcoming Indigenous Disadvantage Report released in November 2014 concluded that justice outcomes for Indigenous persons had continued to decline, with adult imprisonment rates worsening and no change in the high rates of juvenile incarceration or family and community violence. 1 On 30 June 2013, Indigenous Australians made up only 2.3% of the population but 27.4% of the adult prison population. Between , the imprisonment rate for Indigenous Australians increased by 57.4% while the non-indigenous imprisonment rate remained fairly constant. 2 In , the daily average detention rate of Indigenous young people was around 24 times that for non-indigenous. Community based supervision rates were the lowest since for young people. In 2011, it was estimated that the largest Indigenous population lived in NSW (31%) Legal practitioners representing Indigenous Australians are the voice of Indigenous people facing incarceration. What can we do to improve their representation when they are at the coalface, about to be sentenced? What can prosecutors do to assist the courts to impose a just result? I wish to revisit the end of the lecture I was giving last year as I did not complete speaking about the important decision of Bugmy. Mr Bugmy s matter has now been back to the Court of Criminal Appeal where the Crown appeal was dismissed in the exercise of the residual discretion: R v Bugmy (No 2) [2014] NSWCCA 322. I do not intend to discuss that decision as Chief Justice Bathurst noted that any 1 Productivity Commission, Overcoming Indigenous Disadvantage Report Productivity Commission, Overcoming Indigenous Disadvantage Report 2014, Chart 4.12, p.25 3 Productivity Commission, Overcoming Indigenous Disadvantage Report 2014, p.4 1

2 guidance as to the relevant sentencing principles will have been given by the High Court decision (at [21]). 3. The High Court decision directs attention to a sentencing court having evidence of the social difficulties faced by the offender and his own community, rather than simply recognising that Aboriginal Australians are disadvantaged across a range of indices. However the indices remain important as they help us find the evidence, so it is important to know them. Health, life expectancy, mortality rates, suicide and self-harm, educational attainment, home-ownership and homelessness and employment all have far worse indicators for Indigenous Australians than non Indigenous Australians. Practitioners have a responsibility to know these indicators and to look further, dig deeper and to ensure that evidence of the particular circumstances of the offender within the context of his/her community are before the Court if seeking to rely on a background of social deprivation. 4. I intend to show you from the evidence that we had in the High Court proceedings in Bugmy how drilling down on the key indicators of disadvantage may help you to draw out the evidence related to your client in a manner that should place the material facts on disadvantage before the Court in a powerful way. We only had time to look at one of two of these last year, so bear with me if you have heard some of this before. I believe it is important to have the whole picture to see how the evidence, drawn out, can impact on a judicial decision, perhaps more powerfully than simply reciting the indices. Annexure A has a copy of the slides extracted directly from Mr Bugmy s High Court submissions. 5. The criminal history of your client may reveal a history of separation- has he/she been held a long way from community while in custody as a child? Searching old psychological reports, obtaining a new one or delicately gaining instructions may disclose a life marred by domestic violence. Always ask about drug and alcohol historythis may also be apparent from the criminal history. If your client is institutionalised or at risk of this, who was responsible for his/her parenting, including schooling when he was younger? Is there a history of self-harm? Again this may be independently sought out from old psychological records and/or Justice Health files. What is the level of education that has been reached? Is there a history of employment? What is the history of the 2

3 community where your client is from? Understand this and place the individual in the context of the community. Is there any evidence of the history of policing of indigenous persons in that community that may have directly impacted on your client? What is the life expectancy in the community and how has this translated in your client s family? Are there physical health issues? What about mental health issues other than self-harm? Has your client been incarcerated, against Royal Commission recommendations, in segregation? Are there rehabilitative services available? 6. Taking Mr Bugmy s case and the indices, the High Court has held that to recognise, for example, life expectancy rates are far worse for Indigenous Australians for than non Indigenous Australians (eg years for Indigenous males and 78.7 years for non- Indigenous males; 72.9 years for Indigenous females compared to 82.6 years, based on combined data from : Cth, Productivity Commission, Overcoming Indigenous Disadvantage 2011) says nothing about Mr Bugmy s circumstances. It does however, direct our attention as practitioners to this indicator. Looking at the evidence pertaining to him and his community in this context we could see that: Mr Bugmy was 31 years at the time of his sentence and life expectancy for a Wilcannia man in 2005 was 36.7 years (Wilcannia Community Working Party Community Action Plan 2005). Not surprisingly, given this state of affairs, Mr Bugmy had experienced significant loss of life in his immediate family: his mother (in her 40s), brother (while in custody) and sister (cancer) had all died. The inter-relationship between grief from frequent deaths in the Wilcannia community, alcohol use and lack of local mental health, grief counselling and substance abuse services is well documented: Jumbunna at pp In fact, seeking out the evidence in relation to the individual on the broader statistic did say more, for example, in Mr Bugmy s case, about the individual, than recognition of the broader statistic would have done. Bail Act What are contributors to high rates of Indigenous incarceration? Factors include changes to judicial processes, including the imposition of strict bail or supervision conditions which are more difficult for persons with unstable living arrangements and those living in poverty. That brings me to the new Bail Act 2013, that is, the Bail Act 3

4 with the recently commenced amendments. 4 This paper is a criminal law update so I do not intend to address this Act exhaustively. One could do a whole paper on the Bail Act, but I am only able to touch on the highlights. The biggest change is, of course, to introduce a new category called show cause offences. These are designated in s16b Bail Act Flow Chart 1 refers to the Show cause requirement and asks Has the accused person shown cause why his or her detention is not justified? Only if this question is answered Yes does one move on to apply the unacceptable risk test. 8. Section 16A(3) importantly makes clear that the show cause requirements do not apply to juveniles. In accordance with Flow Chart 1, a bail authority must refuse bail for a show cause offence unless the accused person shows cause why his or her detention is not justified : s16a (1). If the accused person does show cause, the bail authority must make a decision in accordance with Division 2 (Unacceptable risk test-all offences). Section 16B sets out the show cause offences. We are waiting for a Supreme Court decision on what show cause why his or her detention is not justified means. 9. In the unacceptable risk test the question is whether the accused person [presents] an unacceptable risk (taking into account s18 matters, including section 18(p)- the bail conditions that could reasonably be imposed to address any bail concerns ). This test remains in all applications for release or variation, including those who have shown cause, apart from those with a right to release. 10. There have apparently been questions raised as to whether the s18 considerations inform the show cause test. This may have arisen because if you have shown cause, that fact is not relevant to the assessment of whether or not there is an unacceptable risk: s19. In my opinion, this simply means that the considerations in s18 must still be taken into account in all matters at the point of determination of unacceptable risk. These matters do not drop out of the unacceptable risk test because they have been taken into account in determining show cause. It does not exclude one or more of these unacceptable risk considerations being taken into account at the show cause stage. Did the legislators intend, for example, that the nature and seriousness of the offence 4 The Bail Act 2013 was amended by the Bail Amendment Act 2014 which commenced on 28 January

5 (s18 (1)(b)) could not be considered in determining whether an accused person had shown cause why his detention was not justified? Nor do any of the s18 matters necessarily have to be taken into account at the show cause stage. There is no exclusive criterion at the show clause stage, indeed there is no defined criterion. 11. A powerful consideration on show cause must surely be the presumption of innocence, which is now in the preamble. Another will be the strength of the prosecution case. Another may be that bail conditions can address any concerns. It is interesting also that for appeals bail in the higher courts, the test remains special or exceptional circumstances, even for show cause offences. Additionally, there is no presumption against bail for show cause offences. This suggests that the show cause requirement is not as stringent as the special or exceptional circumstances test or the prior regime of presumption against. Show cause is simply a way of saying that the onus is on the accused person in the show cause stage whereas in the second stage of a bail determination for show cause offences and the application of the unacceptable risk test in all other matters (apart from right to release) it is on the prosecution to justify detention. In show cause offences, the onus shifts at the unacceptable risk stage to again harmonise with unacceptable risk test for all offences (apart from right to release). In the unacceptable risk test, the s18 considerations are mandatory, at the show cause stage, they are not. Expert evidence Honeysett v The Queen [2014] HCA 29; 88 ALJR One of our favourite professors is back starring in this decision. We last saw him in the CCA decision of Morgan v R [2011] NSWCCA 257; 215 A Crim R 33 [image Prof Henneberg], This professor claims specialisation, amongst his study of skeletal remains of hobbits, in anatomical characteristics and comparisons. This is loosely termed bodymapping, and is also called anatomical identification or forensic identification. He is credited by the Sydney Morning Herald as conducting the first Australian identification of a criminal by his ear. 5 5 Expertise not in evidence, February 25, 2012, Sydney Morning Herald. 5

6 13. One of his earlier examples of anatomical identification was when just before the 2009 election, he published his opinion to local rags that he was 99.2% sure that the person depicted in a particular photograph was this person who happened to be running at that time for parliamentary office. He was quoted as saying If I were in court I would say that there is a very high degree of anatomical similarity. 6 Software used by our Customs and Immigration services at that time offered a comparison result of more likely to be Pauline Hanson than not, coming out at between 50-58%. Another software company for law enforcement agencies declared the photograph not to be Ms Hanson, as did Dr Sutisno. 7 In fact, it was not Pauline Hanson at all and ultimately, the Sunday Telegraph paid an undisclosed sum and published a two page apology for libel You may also remember the chk chk boom case following a shooting incident in Kings Cross in Our professor gave evidence in that case as to the anatomical similarity of the accused (who wore a white shirt that evening at the Bada Bing nightclub), with the shooter who had been captured by CCTV wearing a black hoodie. Professor Henneberg told the Court that the images of the black hoodie man and the white shirt man, bore a high degree of anatomical similarity as did an image of a third man in a checked shirt. The case was thrown out at committal. His evidence was described as highly compromised, wrong and discredited. 9 One reason for this was that the man in the checked shirt was seen in other footage walking next to the man in the black hoodie. Another was that the man in the white shirt was seen walking on the CCTV footage 19 seconds before the man in the black hoodie and the man in the checked shirt came into view on the same camera. Ultimately not even the prosecutor supported the reliability of the evidence. Counsel for the defendant in the chk chk boom case, now Justice Peter Hamill SC, questioned Professor Henneberg in the Local Court about his opinion on the fake Pauline Hanson images. Henneberg said I still stand by what I said. Hamill asked Even though the nose is completely different? Hennberg replied It s not are you an anatomist?. Hamill retorted: I can see. Henneberg responded Then I can see better Hanson Photos the Fallout March 22, 2009 The Sunday Telegraph, p Pauline Hanson Photo Fraud March 22, 2009, Sunday Herald 8 AU Sunday Telegraph pays politician for mistakenly publishing fake news photos that hurt her election bid May 20, 2009, imedia Ethics. 9 Expertise not in evidence, February 25, 2012, Sydney Morning Herald. 10 Id. 6

7 15. This brings us to Honeysett v The Queen [2014] HCA 29; 88 ALJR 786; in the High Court last year. There was a robbery captured on CCTV footage. Over objection, the prosecution adduced evidence from Professor Henneberg of anatomical characteristics that were said to be common between the appellant and one of the robbers. The robber wore clothing covering his body, a covering of white material shrouding his head and face, leaving only a narrow slit exposing the eyes. His hands were gloved but there was a small area of skin between his sleeves and his gloved hnads. A white T-shirt was later found in what was probably the getaway car which may have been the head covering. It had DNA inside the neck that was the same as Mr Honeysett s DNA profile. The same profile was also found on a pink hammer left at the scene that had been used by this robber. Mr Honeysett is Aboriginal and evidence was led by the defence of the sharing of clothing among the Aboriginal community at the Block. 16. The evidence of Professor Henneberg was based on viewing the CCTV footage and images of Mr Honeysett taken while he was in custody. The CCA held that his evidence fell within the exception to the opinion rule in s79(1) Evidence Act 1995 (NSW). In the alternative, the CCA held that he was an ad hoc expert from repeated viewing. The evidence, described as forensic identification commenced with a description of the offender as an adult male of ectomorphic body build. This is a way of saying that he was thin or skinny. The description of the appellant commenced in a similar manner. 17. The High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) held: [22] The exception on which the prosecution relied is contained in s79(1) of the Evidence Act: "If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge." [23] Section 79(1) states two conditions of admissibility: first, the witness must have "specialised knowledge based on the person's training, study or experience" and, secondly, the opinion must be "wholly or substantially based on that knowledge". The first condition directs attention to the existence of an area of "specialised knowledge". "Specialised knowledge" is to be distinguished from matters of "common knowledge"[11]. Specialised knowledge is knowledge which is outside that of persons who have not by training, study or experience acquired an understanding of the subject matter. It may be of matters that are not of a scientific or technical kind and a person without any formal qualifications may 7

8 acquire specialised knowledge by experience. However, the person's training, study or experience must result in the acquisition of knowledge. The Macquarie Dictionary defines "knowledge" as "acquaintance with facts, truths, or principles, as from study or investigation" [12] (emphasis added) and it is in this sense that it is used in s 79(1). The concept is captured in Blackmun J's formulation [13] in Daubert v Merrell Dow Pharmaceuticals Inc: "the word 'knowledge' connotes more than subjective belief or unsupported speculation.... [It] applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds" [14]. [24] The second condition of admissibility under s 79(1) allows that it will sometimes be difficult to separate from the body of specialised knowledge on which the expert's opinion depends "observations and knowledge of everyday affairs and events" [15]. It is sufficient that the opinion is substantially based on specialised knowledge based on training, study or experience. It must be presented in a way that makes it possible for a court to determine that it is so based [16]. [25] As explained in the joint reasons in Dasreef Pty Ltd v Hawchar, the starting point in determining the admissibility of evidence of opinion is relevance: what is the fact in issue that the party tendering the evidence asserts the opinion proves or assists in proving [17]. It is to be noted that at trial Professor Henneberg's opinion was tendered to prove that Offender One and the appellant shared similar physical characteristics in support of a conclusion of identity. 18. In R v Tang (2006) 65 NSWLR 681 it was held that it had not been established that body mapping constituted an area of specialised knowledge. The High Court drew attention to the Court of Criminal Appeal s criticism in Morgan v The Queen (2011) 215 A Crim R 33 at [138], [146] of the lack of research into the reliability of Henneberg s method and his capacity to detect anatomical similarity when no part of the body of the person depicted was exposed. The High Court held that Professor Henneberg s opinion was not based on his knowledge of anatomy. His knowledge as an anatomist that the human population includes (for example) some people who have oval shaped heads and some people who have round shaped heads did not form a basis for his conclusion that the offender and the appellant each had oval shaped heads. That conclusion was based on Professor Henneberg s subjective impression of what he saw in the images. Even though Professor Henneberg had done a master s thesis on handedness, he inferred the handedness of the offender and of the appellant on the basis of his observations in the CCTV footage not on any specialised knowledge. 19. The Court held: Professor Henneberg s evidence gave the unwarranted appearance of science to the prosecution case that the appellant and Offender One shared a number of 8

9 physical characteristics. Among other things, the use of technical terms to describe those characteristics- Offender One and the appellant are both ectomorphic- was apt to suggest the existence of more telling similarity than to observe that each appeared to be skinny : [45]. 20. The High Court held that Professor Henneberg s evidence was not based on specialised knowledge, it was an error of law to admit the evidence and accordingly Mr Honeysett s conviction was quashed: [4], [49]. The High Court also observed that ad hoc expertise was based on common law decisions. The Crown did not maintain the submission that Professor Henneberg was an ad hoc expert in the High Court. Fitzgerald v The Queen [2014] HCA 28; 88 ALJR 779; 21. In another case turning on expert evidence, the High Court (French CJ, Kiefel, Bell, Gageler and Keane JJ) unanimously and immediately acquitted Mr Fitzgerald after argument was heard in his case. Mr Fitzgerald, who had no criminal record, had been jailed for a minimum of 20 years on the basis of DNA evidence said to prove that he was one of a group of 15 who were party to a common plan to murder one person and cause grievous bodily harm to another. Neither he nor his co-accused Sumner were said to have inflicted a fatal blow or blows that caused injury. 22. The prosecution relied on DNA evidence from a didgeridoo found at the scene of the crime, near where the deceased was left after the attack. Six persons who were present during the attack failed to identify Mr Fitzgerald. He was excluded from DNA results taken from a variety of objects at the crime scene and from four out of five forensic samples taken from the didgeridoo. However, one forensic sample from the didgeridoo contained a mixed DNA profile of major and minor contributors and the appellant s DNA was the major contributor with an unknown source the minor. There were apparent blood stains with the DNA of the deceased and the other victim on the didgeridoo. On this basis he was charged with murder and another count. The Crown case depended on satisfaction beyond reasonable doubt that the appellant s DNA was transferred by him to the didgeridoo at the time of the attack. 23. As to the apparent blood stains of the deceased on the instrument, the evidence at trial was to the effect that even if the stains were blood, the DNA from the deceased may 9

10 have been from under the stain or placed there at an earlier time. The tenant of the house gave evidence that at around 5pm on the night before the attack the deceased had played the didgeridoo. 24. In relation to the appellant s DNA, evidence was given that DNA can be transferred through contact or trace, with such transfer from skin being low compared to the amount transferred in biological fluid. Some people shed contact or trace DNA more readily than others. There were said to be three possible ways of transferring DNA to an object: (1) direct transfer (contact between the two); (2) airborne transfer (eg. blood travelling through the air and landing on an object); (3) passive transfer (eg. blood dripping onto an object). Secondary transfer is where contact or trace DNA is transferred onto an object by an intermediary as a result, for example of a handshake. The evidence was that secondary transfer is usually within a few hours of contact. An intermediary s DNA is not necessarily transferred at the same time. The appellant s DNA was possibly the result of secondary transfer. There was evidence that he had been at a boxing match with the co-accused that night prior to the attack where the two shook hands twice. 25. The evidence was also that in most cases, where there is a mixed profile by secondary transfer the major contributor will be the intermediary and the minor contributor will be the person whose DNA is transferred. The co-accused s DNA was not found on the didgeridoo at all. Additionally, it is not possible to date DNA. Contact or trace DNA could have been there for weeks. There was a dearth of evidence of what had been done with the didgeridoo before the attack. 26. The High Court held that on the basis of such evidence, the contention that the appellant s DNA sample on the didgeridoo derived from the appellant s blood was not made out beyond reasonable doubt. There were two distinct occasions when a secondary transfer could have occurred (after the boxing match when Sumner attended the house and had an altercation near the didgeridoo; and when Sumner returned to the house with the attackers). There was no evidence of the time when or circumstances in which the DNA was deposited onto the didgeridoo. The evidence was therefore not sufficient to establish beyond reasonable doubt presence at and participation in the attack. Mr Fitzgerald was acquitted three years to the day after the attack at the house. 10

11 27. These cases are an important reminder that understanding the basis of expert evidence and the basics of the evidence itself, understanding the limits of the evidence (that is what it can and cannot prove) is crucial in criminal trials. Both defence and prosecution must understand and expose the limitations of expert evidence. The prosecution and expert witness should fairly present these in accordance with both expert obligations under the expert code of conduct and prosecutorial obligations of fairness. Too often this does not occur and many miscarriages we see on conviction appeals in murder cases surround the giving and use of expert evidence. Lee v The Queen (2014) 88 ALJR Last year we touched on X7 v ACC (2013) 248 CLR 92 and Lee v NSWCC (2013) 251 CLR 196, both concerning the lawfulness of compelled examinations of persons charged with criminal offences where the examination sought to canvass matters including the subject matter of the offences with which he/she had been charged. In Lee v The Queen (2014) 88 ALJR 656, the High Court (French CJ, Crennan, Kiefel, Bell and Keane JJ) considered whether a trial prosecutor being in possession of NSWCC transcripts of interviews of accused persons (one examined after charge and another when charges were imminent) constituted a miscarriage of justice. The High Court held: [32] Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that "no attempt to whittle it down can be entertained" albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice. [33] The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived. [34] The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not 11

12 met in the present case, with the consequence that the appellants' trial differed in a fundamental respect from that which our criminal justice system seeks to provide. 29. The publication to the DPP of the transcripts was considered to be for a patently improper purpose, namely the ascertainment of the appellant s defences, however this was not the critical question. It was whether the prosecution being armed with their evidence meant there had been a miscarriage of justice. Miscarriage of justice does not equate to proof of practical unfairness. The appeal concerned the very nature of a criminal trial and its requirements in our system of criminal justice. The appellants trial was altered in a fundamental respect by the prosecution having the appellant s evidence before the Commission in its possession : [43]. The High Court reiterated that It is the prosecution which has the responsibility of ensuring its case is presented properly and with fairness to the accused : [44]. The possession put the fair trial at risk. The prosecution should have enquired as to how it came into possession, alerted the trial judge and taken steps to ensure the trial was not affected. 30. Since this decision, a five judge bench of the Court of Criminal Appeal heard an appeal from a refusal to order a permanent stay in the matter of X7 v R [2014] NSWCCA 273. Bathurst CJ (Beazley P, Hidden, Fullerton and R A Hulme JJ agreeing) held that none of the cases of X7 or Lee concerned the question of whether a permanent stay should be granted. A stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to protect against its unfair consequences. It is necessary to identify the fundamental defect and the unfair consequences that would be unfairly or unjustifiably oppressive. Regardless of this if there is an abuse of process in that the use of court proceedings would bring the administration of justice into disrepute, a stay may be ordered. 31. Bathurst CJ found persuasive that in Lee (2014) the High Court contemplated that the position may be remedied by a temporary stay. The decisions of X7 and Lee (2014) do not compel the conclusion that an unauthorised examination on its own requires a permanent stay. This would be to grant a stay without regard to the nature and extent of the unfairness which results and the interests of the community in the prosecution of serious criminal offences. At para [110] however, his Honour seems to suggest that on a stay, the very test that was rejected in Lee (2014) (that of proof of practical unfairness, 12

13 now phrased actual unfairness ) is one that should be employed to determine whether or not to grant a stay (by, for example, the trial judge looking at the interview). The CCA refused the permanent stay despite a contempt of court having occurred. They also took into account that the ACC thought what they had done was bona fide in order to reject the stay on other grounds pleading abuse and disrepute. 32. Another useful judgment if applying for a stay in the Local Court on the basis of an employer s compulsory examination is the decision of his Honour Magistrate Buscombe in Edmondson, Barling, Ralph and Lim v Attorney General (NSW) Applications for permanent stays by the police officers charged in the Roberto Curti case were dismissed. The officers had been directed to participate in a non-criminal departmental interview. They were mandated to answer by virtue of Clause 8(1) of the Police Regulation 2008 (NSW) pursuant to a direction by superiors with which police officers are compelled to strictly comply. His Honour held that the evidence did not support a finding that an investigation of a criminal offence was being undertaken at the time that the directed interviews were conducted, or that they were suspected of having committed a criminal offence. The police officers were not suspected of having committed a criminal offence and were not the subject of a criminal investigation at the time of the inquest into Mr Curti s death. As such neither the interviews or the compulsion of their evidence given at the inquest was a fundamental breach of the accusatorial process. He noted that the prosecution took steps to brief a new prosecution team and that the original brief was screened to ensure the new team had no knowledge of the compelled evidence, in compliance with Lee (2014). 33. If you have a client that has been summonsed down to the NSWCC and are contemplating stay proceedings, be aware that there has been a recent amendment to the Crime Commission Act 2012 to insert ss45a - 45C. Section 45C requires a court to consider certain matters when an application for a stay is moved and excludes certain matters from being capable of giving rise to a presumption that there is a fundamental defect in criminal proceedings. The sections do not overturn Lee (2014). 34. Both X7 and Edmondson and ors were decided prior to the High Court handing down its decision in Commissioner of the Australian Federal Police v Zhao [2015] HCA 5 on 12 February This concerned an application for a stay of forfeiture proceedings 13

14 brought by the AFP under the Proceeds of Crime Act 2002 (Cth) at a time when criminal charges were pending against one of two respondents. The second respondent was concerned that if he gave a detailed affidavit or was cross examined regarding the purchase of restrained property and the source of any relevant funds there was a real risk that any such evidence would prejudice his case. If the civil matters were not stayed he would have to make a decision as to whether to waive privilege and his right to silence. The High Court (French CJ, Hayne, Kiefel, Bell and Keane JJ) held that the bringing of criminal charges on its own was not sufficient to stay proceedings, however the risk of prejudice if a stay was not granted were plain. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the evidence did not qualify as a proper reason from departing from the open court principle. Even if the evidence gathered in the forfeiture proceedings could not be used in evidence against the accused in his trial, its possession by the prosecution might affect his defence. The risk of prejudice to the accused in his criminal proceedings was real. It was correct to order a stay of the forfeiture proceedings. The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA X7 and Lee (2014) also had repercussions further afield. In this case, MacFarlan JA (Beazley P and Bellew J agreeing) recognised and applied both the principle of legality and the fundamental right of an accused to a fair trial which included a right to secure the production of relevant documents from third parties to their interpretation of the Children and Young Persons (Care and Protection) Act 1988 (NSW), s29(1)(e). Section 29(1)(e) provides [SLIDE]: (1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director General or to a person who has the power or responsibility to protect the child or young person or the children or young persons: (e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or disclose or give evidence of any of its contents. 36. Prior to his trial for murder, the accused caused subpoenas to be issued to the Department of Family and Community Services for the production of reports. The Court held that the purpose of s29 of the Act is to provide protections to persons who make reports in good faith. It is concerned with protection of the identity of reporters rather 14

15 than precluding disclosure of the contents of the reports as such. The CCA held, applying Brennan J in Alister v The Queen (1984) 154 CLR 404, that the ability of an accused person to seek access to relevant (and potentially decisive) material for the purpose of defending criminal charges brought against him or her is an aspect of the overarching right to a fair trial : [23]. If, as its terms suggest, s29(1)(e) precluded an accused person from compelling the Director General to produce reports at the accused s trial, the outcome of the trial could be significantly influenced by a decision of the Director General; similarly if parties chose to tender reports, other parties would be provided with the reports so the parties with the decision as to whether to tender or not would have the power to significantly affect the rights of the accused: [27]. The section does not exhibit an intention to preclude a person such as the accused from ever coming into possession of relevant reports, the intention is limited to precluding production from being compelled. However this should be read down so as not to interfere with the accused s right to a fair trial. The CCA held that that right relates to the whole course of the criminal process and includes an accused s right to require third parties to produce relevant documents on subpoena duces tecum. The legislature had not expressed its intention to abrogate this right with irresistible clearness : [29]-[30]. 37. The obvious question is whether this judgment can be called in aid in relation to the sexual assault communications privilege in Division 2 of the Criminal Procedure Act That will depend very much on close scrutiny of the legislative purpose, intent and language of Division Two. Division Two is specifically directed at criminal proceedings, permits the compulsion of documents with leave of the court and provides that leave may be granted only after the balancing act in s299d Criminal Procedure Act is undertaken. Section 299D provides that leave cannot be granted unless the court is satisfied that the evidence will have substantial probative value, evidence is not otherwise available of the matter and that the public interest in preserving confidentiality of protected confidences and the confider from harm is substantially outweighed by the public interest in admitting the evidence. On a cursory view, the legislature seems to have turned its mind to specifically legislating as to the procedure to be adopted when such documents are compelled at trial and the protected confider does not consent. Anyone confronted with these provisions should read KS v Veitch (No 2) [2012] NSWCCA 266, recalling that it was determined prior to X7, Lee (2014) and The Application of the Attorney General. You should also read another decision of NAR v 15

16 PCC1 [2013] NSWCCA 25, also determined before those decisions. In relation to consent, in NAR v PCC1 it was held that express consent must be given to the material itself and both production and the adducing of evidence, with agreement that both parties may view the material: [53]. The suggestion that such material may be provided to only one party however raises questions of disclosure and fair trial which were not canvassed in the judgment. Tendency and Coincidence Evidence, ss 97, 98, 101, 103, 135 and Now that we are in the area of sexual assault trials, how could I move on before mentioning the monumental disagreement between NSW and Victoria over the meaning and application of ss97, 98, 101, 103, 135 and 137 of the Evidence Act The differences were highlighted in the Victorian decision of Dupas v The Queen [2012] VSCA 328; 218 A Crim R 507 [IMAGE] where a five judge bench (including the freshest appointee to the High Court of Australia- Justice Nettle) disapproved R v Shamouil (2006) 66 NSWLR 228, with consideration also given to the NSWCCA judgment of DSJ v R [2012] NSWCCA 9; 84 NSWLR 758. The big question is whether in determining the probative value of evidence under ss 97,98, 101, 103, 135 or 137 of the Evidence Act, a court should take into account issues of reliability and/or credibility. Shamouil and DSJ are cited for the proposition that a court should not. In Dupas, the Victorian Court of Appeal held that Shamouil had been applied in the past because of both comity requiring a decision of another intermediate appellate court to be followed, and because the Evidence Act had been in place in NSW for more than a decade. However, the Victorian Court of Appeal after a detailed consideration of past cases in both NSW and Victoria went on to hold that Shamouil: - was contrary to a long line of established authority; - was founded on a misapprehension of the role of the judge under the common law; - was contrary to considered dicta of the High Court; - did not give plain effect to the language of the statute, or the context or extrinsic material, which reveal a legislative intention that trial judges should have the power to exclude admissible evidence in order to minimise the risk of wrongful conviction ; 16

17 and - removed an important safeguard which the common law had provided against an unfair trial which was intended to be replicated in the Evidence Act. The Court of Appeal (Vic) held that to the contrary of Shamouil it has always been necessary for a trial judge to have regard to the reliability of the evidence. The judge was to assess what weight it might reasonably be given. This safeguard (removed in Shamouil) was critical to the avoidance of miscarriages of justice and to ensuring that the accused has a fair trial. 39. It did not end there. In Dupas, the Victorian Court of Appeal also rejected the NSW decisions of Peacock v R (2008) 190 A Crim R 454 and RGM v R [2012] NSWCCA 89 at [72]-[73]), holding that contrary to those decisions, under the Evidence Act, credibility encompasses reliability and that there is no distinction between the credibility of the witness and the witness s evidence. This was supported by the dictionary definition of credibility which provides credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence. 40. The NSWCCA countered with the five judge bench decision of R v XY [2013] NSWCCA 121; 84 NSWLR 363 where Basten JA observed that the Victorian Court of Appeal does not stand within the same hierarchy as this Court, that a decision of another court at the same level that a decision is plainly wrong is more likely to appear as a gratuitous insult when applied to another court and that there was a need for restraint when deciding to not follow an earlier decision. Rather than following the Victorian Court of Appeal, he held that the NSWCCA ought to consider Dupas and determine the matter for itself. He held that Shamouil did not exclude all consideration of credibility and reliability and that in some cases reliability may be a factor in applying s137. There was an attempt to reconcile the two judgments, and discussion of Dupas in a manner rejecting some of the findings in that case, with a conclusion that XY raised a different issue. He concluded that there was no compelling reason to depart from Shamouil. In a confusing turn, Hoeben CJ at CL agreed with both Basten JA and Simpson J that in 17

18 relation to s137 that when assessing the probative value of the evidence, the Court should not consider its credibility, reliability or weight, however competing inferences could be taken into account which were objectively plausible. Simpson J held that Dupas was in sharp conflict with decisions of the NSWCCA including Shamouil. She accepted that consistent decisions of the NSWCCA had held that credibility and reliability had no part to play in considering s137 applications. Having considered Dupas, her Honour adhered to Shamouil. Blanch J found that the capacity of the evidence to prove guilt was compromised by competing inferences open on the evidence. Price J found it unnecessary to consider Dupas but stated that enabling the trial judge to consider questions of credibility, reliability or weight when s137 was invoked was likely to enhance the fundamental principle that an accused is to receive a fair trial. Shortly put, all the judges had a very different reading of and approach to Shamouil but it nevertheless remained in place in NSW. 41. Act II came with the decision of the Victorian Court of Appeal in Velkoski v The Queen [2014] VSCA 121 where Justices Redlich, Weinberg and Coghlan considered s97 and held that the NSW position as stated in R v Fletcher (2005) 156 A Crim R 308 and R v PWD (2010) 205 A Crim R 75 ( PWD ), described as a narrow approach should not be followed and rather, as Nettle JA (as he then was) had done in RHB v The Queen [2011] VSCA 295 the approach should be as in the Victorian decision of GBF v The Queen [2010] VSCA 135 ( GBF ) at [25]-[30] (a decision of Nettle and Harper JJA and Hansen AJA which I will come to in a moment). This was said to set a much higher threshold for admissibility than we have in NSW. In NSW, in PWD, the threshold was said to have been lowered by President Beazley s words: under s97 there does not have to be striking similarities or even closely similar behaviour. The Victorian Court of Appeal held that this statement reduces the threshold for admissibility, in relation to tendency evidence, to behaviour that need not even be closely similar : [120] 42. To demonstrate the error of such an approach, the Victorian Court of Appeal commented One only has to consider the recent decision of the NSWCCA in Doyle v The Queen [2014] NSWCCA 4. However, even the critique which followed in Velkoski of the NSW decision of Doyle was not sufficient to get Mr Doyle special leave to appeal to the High Court in December last year. Doyle and PWD remain authoritative in NSW. The Victorian Court of Appeal observed that taking into account the dissimilarity between the 18

19 acts forming the basis of each offence and the period of time between those occasions of offending, the evidence in Doyle was unlikely to have withstood a challenge to admissibility in the Victorian Court of Appeal. This division between the States of approaches is, to say the least, an unsatisfactory state of affairs. 43. In the Victorian decision of GBF it was held that there is no need for there to be a striking pattern of similarity between incidents. All that was necessary was that the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged. The Court in GBF held that: One is loath to accept that offending on one occasion is significantly probative of offending on another unless there are significant or remarkable similarities as between previous acts and the act in question, or as between the circumstances in which previous acts were committed and the circumstances in which the act in question was committed or, more compendiously, unless the evidence reveals a pattern of conduct, modus operandi or some other underlying unity, which logically implies that, because the accused committed the previous acts or committed them in particular circumstances, he or she is more likely to have committed the act in issue. 44. The Victorian Court of Appeal noted that the law in Australia was in a state of uncertainty as to the degree of similarity necessary to support tendency reasoning. They considered that the approach currently taken by the NSWCCA to tendency and coincidence goes too far in lowering the threshold to admissibility : [164]. GBF was followed. Further, the finding in any case involving multiple complainants that it is reasonably possible there may have been concoction, collusion, collaboration or contamination among them renders tendency or coincidence evidence inadmissible. There must be a basis beyond mere opportunity and the Crown must negative the possibility: [173]. The relevant principles for coincidence evidence were said to be in many respects the same as those for tendency: [174]-[175]. Dupas was followed, making reliability part of the assessment of admissibility. 45. Following Velkoski, the NSWCCA (comprised of Basten JA, Fullerton and R A Hulme JJ) in Saoud v R [2014] NSWCCA 136 held that the Victorian decision raised an issue of some sensitivity for this Court. There are difficulties in responding to what is 19

20 undoubtedly a thorough and troubling analysis : [36]. However, the Court held that it was not appropriate to consider whether that decision was correct. PWD was correct and the NSWCCA stated that it does not remove any requirement of similarity. 46. The upshot is that appellate lawyers are just waiting for the proper vehicle for special leave as there are clear and substantial differences between NSW and Victoria in the interpretation and application of ss97, 98, 101, 103, 135 and 137 of the Evidence Act Two attempts in the December list were unsuccessful: Doyle and RH (RH v The Queen [2014] NSWCCA 71). Burodeen v R [2014] NSWCCA Question trails are all the go in many Supreme and District Court trials but: Beware! They can be dangerous- entailing a prescriptive form of reasoning - and may even permit bypassing of the central issue at trial. Mr Burodeen, who was unrepresented and had formulated 19 grounds of appeal alleging impropriety against almost everyone involved in the trial (except himself) was very lucky to have the Crown identify a twentieth ground for him involving a more fundamental difficulty which went to the heart of the trial. The question trail included a matter which was not an element of the offence but upon proof of which the accused could be found guilty. This pathway to guilt also managed to entirely bypass the question that was at the heart of the trial which appeared later on down the list. Hoeben CJ at CL, Rothman and R A Hulme JJ held that particular care is needed, including in identifying the elements of the offence. All of Mr Burodeen s grounds were dismissed but the question trail ground was upheld. The conviction was quashed. Goodridge v R [2014] NSWCCA A defence of substantial impairment was rejected in a trial by judge alone even though both parties were agreed that s23a Crimes Act was applicable. The Crown brief of evidence was tendered, the psychiatric reports were tendered and there was seemingly no issue between the parties. The CCA (per Hoeben CJ at CL, Simpson and Johnson JJ agreeing) held that the courts operate on the adversarial system. In such circumstances there is no question of the Crown dealing with matters by consent as there are issues upon which the trial judge had to be satisfied. The trial judge had raised a reservation about the psychiatric material based on her observations of the appellant in his ERISPS 20