Barns, Greg --- "Criminal cases review" [2019] PrecedentAULA 46; (2019) 153 Precedent 27

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CRIMINAL CASES REVIEW

By Greg Barns

Over the past six months the High Court, the New South Wales Court of Criminal Appeal (NSWCCA) and the Northern Territory Court of Criminal Appeal (NTCCA) have dealt with topics such as the scope of trial judges’ comments to juries about evidence; sentencing in joint criminal enterprise cases where there is disparity in mental capacity; and whether in cases of sexual offending against children there are public policy considerations for larger reductions in sentence discounts to encourage guilty pleas.

McKELL v THE QUEEN [2019] HCA 5

The High Court’s decision in McKell v The Queen [2019] HCA 5 dealt with the extent to which a trial judge can make comments on the evidence when instructing a jury.

The appellant was tried with a co-accused, McGlone, in the District Court of New South Wales on Commonwealth drug importation offences. The appellant was convicted and sentenced to imprisonment for 18 years and nine months, with a non-parole period of 11 years and nine months. He appealed against his conviction to the Court of Criminal Appeal (CCA) of the Supreme Court of New South Wales. The sole ground of appeal was that ‘[t]he judge's summing-up to the jury caused a miscarriage of justice’. The CCA dismissed his appeal.

The High Court granted leave to appeal on the ground that ‘[t]he CCA erred in finding that the summing up to the jury by the trial judge did not give rise to a miscarriage of justice’.

The appellant was a manager of a transport company. In May 2013 he instructed a driver to collect three consignments, not to record the consignments, and to deliver them to locations which McGlone, his co-accused, had identified.

Subsequently, in the course of a search of the appellant's home, police found $400,150 in cash in a tin box in his bedroom. The appellant gave evidence that the money was gambling winnings.

The appellant's case was that he was an ‘innocent dupe’ in the importation of the prohibited substances by others. He gave evidence denying all knowledge of the contents of the consignments in question.

The trial judge commenced his summing-up with the conventional direction that ‘[i]f I happen to express any views upon questions of fact you must ignore those views’. His Honour referred to his ‘entitle[ment] to express a view’ but noted that he did not propose to try to persuade the jury one way or the other. The trial judge went on to make a number of statements that the appellant argued were distinctly apt to do just that.

The trial judge made comments which suggested to the jury that the first consignment may well have contained drugs, the importation of which was the responsibility of the appellant as part of ‘an organisation of great sophistication’. No such suggestion had been made by the prosecution in its address, or any other point in the trial. The prosecution's reticence in this regard was consistent with a pre-trial ruling by a different judge that while the prosecution could use the evidence of the first consignment to establish context and relationship, to prove the fact of the appellant's agreement with Mr McGlone, and to rebut innocent explanations, the prosecution could not rely on this evidence as evidence of criminal disposition.

The trial judge also said that ‘this was a sophisticated operation; it had to have some certainty about it, otherwise, you waste all the money you spend overseas, you do not make the profits here, and it fails’.^[1] On the issue of the evidence about the gambling winnings, the trial judge made comments about the lack of success of the appellant and invited the jury to calculate the winnings and losses. His Honour also dealt with a text message which the appellant said was about gambling and pointed out that it was obvious it was about tape needed for the boxes. Counsel for the appellant and McGlone applied for a discharge of the jury which was refused.

The Court (Bell, Keane, Gordon and Edelman JJ) upheld the appeal finding that ‘statements by the trial judge during the course of his summing-up were so lacking in balance as to be seen as an exercise in persuading the jury of the appellant's guilt. The statements were unfair to the appellant and gave rise to a miscarriage of justice.’ ‘In addition’, the Court said, ‘it should be clearly understood that the risk of such unfairness is such that a trial judge should refrain from comments which convey his or her opinion as to the proper determination of a disputed issue of fact to be determined by the jury.’^[2]

While the prosecution case here was a strong one, the Court found that ‘the lack of balance in the comments by the trial judge cannot be justified as no more than a reflection of the relative strengths of the arguments made by each side’.^[3]

The Court noted that ‘[w]hat has sometimes been described as the "right" of the trial judge to comment on the facts of a case is not some form of entitlement standing free of constraints imposed by the judge's duty to give the jury accurate and fair instruction to enable them to arrive at a just determination of the matters of which they are the sole arbiters’.^[4]

The Court took the opportunity to ‘clarify’ the issue of trial judges’ comments on the evidence in jury trials. The Court noted that ‘there should be little difficulty in a trial judge refraining from expressions of opinion on the determination of disputed issues of fact. Once it is accepted that the trial judge's "right" to comment is best understood as a judicial power or discretion to be exercised judicially for the purpose of ensuring that the jury have a fair and accurate understanding of what they need to know to do justice in deciding the issues of fact that arise for their determination, any concern about the blurring of what is said to have been previously a "bright line" can be seen to be illusory. The provision by a trial judge of fair and accurate instruction to a jury is not always a matter of "bright lines".’^[5]

Once, the Court said ‘perhaps because of disparities in educational opportunities and attainment within the community, it might have been thought that juries would welcome judicial guidance as to the performance of their function that included indications of the judge's view of disputed facts, but it cannot be assumed that today's juries welcome such gratuitous solicitude on the part of the judiciary. Certainly, insofar as today's judiciary is concerned, the respect due to juries as the constitutional tribunal of fact strongly supports judicial reticence as to the determination of questions of fact.’^[6]

CHARBAJI v R [2019] NSWCCA 28

The New South Wales Court of Criminal Appeal in Charbaji v R [2019] NSWCCA 28 dealt with the issue of parity in sentencing in joint criminal enterprise cases when there is disparity between co-offenders because of significant cognitive disorder.

Azam and Haysem Charbaji were convicted of murder. Azam was sentenced to 32 years’ imprisonment with a non-parole period of 24 years and Haysem received a sentence of 36 years with 27 years non-parole period. The appellant Haysem appealed against conviction and sentence. His argument on the issue of sentence was that he had a justifiable sense of grievance because his sentence was greater than Azam’s sentence. The CCA (Beazley P, Price and Wilson JJ) agreed with the submission of Haysem and resentenced him to 34 years with a non-parole period of 25 years and six months.

The Court found that there was little difference in the brothers’ subjective cases, save for the finding that Azam was suffering from a significant cognitive disorder.

The sentencing judge accepted ‘that, as a consequence of psychiatric disorders, Azam Charbaji is not an appropriate example for general deterrence and has less moral culpability than a person engaging in this conduct without such disorders. Further, the psychiatric illnesses or disorders suffered by Azam Charbaji point, markedly, to the need for a sentence to be imposed that takes account of the real need to protect society.’^[7]

The Court noted that it was ‘clear that in Azam’s case, his Honour found in accordance with well-established sentencing principles where an offender is suffering from a mental condition that Azam’s moral culpability for the murder was reduced as a consequence of his psychiatric disorders and he was an inappropriate vehicle for general deterrence: see DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. On the other hand, his Honour concluded that weight was to be given to the need to protect the public. No such findings were made in Haysem’s case, nor could they have been, as Haysem was not suffering from a mental illness.’^[8]

However the Court found that ‘[n]otwithstanding these material differences, we do not consider that they justify disparity in the sentences of 4 years in the head sentence and 3 years in the non-parole period. The reduction in Azam’s sentence for his lesser moral culpability and the elimination of the need for general deterrence was to be balanced against the increased need for the protection of the public. In our view, such a marked disparity gives rise to a justifiable sense of grievance and should be moderated to some degree.’^[9]

TURLEY v THE QUEEN [2019] NTCCA 4

One interesting policy question in sentencing is whether, given the heightened community awareness of the issue, greater discounts ought to be considered in child sexual assault cases to encourage guilty pleas. The Northern Territory Court of Criminal Appeal examined this issue in Turley v The Queen [2019] NTCCA 4.

The appellant pleaded guilty to three counts of maintaining a sexual relationship with a child under the age of 16. The appellant was sentenced to 15 years’ imprisonment with a non-parole period of ten years six months. The sentence was imposed after a 25 per cent discount for the pleas of guilty was allowed. The offending took place between 2000 and 2006, and involved young girls whom the appellant had met in the context of relationships. The appellant appealed against the sentence and one of the arguments put on appeal was that while a 25 per cent reduction was within the range established by current sentencing practices, in cases of sexual offending against children, there are public policy considerations that should lead the Court to establish, as a principle, that substantially larger reductions should be made in order to encourage guilty pleas. These public policy considerations included the difficulties of proof in child sex cases, and the considerable additional value of a plea in such cases in sparing victims the trauma of having to give evidence.

The Court (Grant CJ, Kelly and Blokland JJ) noted that the submission was ‘very unusual’ in that ‘the applicant is urging this Court to establish, for the first time, a principle that substantially larger reductions should be made in child sex cases in order to encourage guilty pleas, and that this Court should re-sentence the applicant in accordance with that principle’.^[10]

However, the Court refused to take up that invitation noting, ‘We are of the opinion that there is no need to establish any such special principle for child sex cases.’^[11]

Noting that judges in this ‘jurisdiction can and do exercise a wide discretion in according leniency in recognition of the value of a guilty plea,’ the Court rebutted the submission made that there is ‘a need for a special principle to encourage pleas of guilty in child sex cases because of the difficulties of proof in such cases, and the considerable additional value of a plea in such cases in sparing victims the trauma of having to give evidence’.^[12] It said that ‘these are factors which sentencing judges can and do take into account in assessing the value of a guilty plea and there is no reason why they cannot place additional weight upon such factors in appropriate cases. Further, these factors are not unique to child sex cases.’^[13]

This case illustrates to some extent the arbitrariness and artificiality of trying to fix numbers to sentencing ‘discounts’.

Greg Barns is a barrister at Salamanca Chambers in Hobart and Gorman Chambers in Melbourne. PHONE [phone] EMAIL [e-mail].

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^[1] McKell v The Queen [2019] HCA 5, [24].

^[2] Ibid, [4]-[5].

^[3] Ibid, [44].

^[4] Ibid, [45].

^[5] Ibid, [55].

^[6] Ibid, [49].

^[7] R v Charbaji, Azam; Charbaji, Haysem; Jamieson, Lexy May (No 6) [2016] NSWSC 1867, [98] quoted in Charbaji v R [2019] NSWCCA 28, [200].

^[8] Charbaji v R [2019] NSWCCA 28, [202].

^[9] Ibid, [203]-[204].

^[10] Turley v The Queen [2019] NTCCA 4, [20].

^[11] Ibid.

^[12] Ibid, [21].

^[13] Ibid, [31].