DPP v John Walker [ACTCA]

• Jurisdiction: Australian Capital Territory
• Judge: Rares J,Mathews,Teague AJJ
• Judgment Date: 03 February 2011
• Court: Court of Appeal of ACT
• Docket Number: No. ACTCA 10 of 2010
• Date: 03 February 2011

[2011] ACTCA 1

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judges:

Rares J, Mathews and Teague AJJ

No. ACTCA 10 of 2010

No. SC 329 of 2008

Between:

Director of Public Prosecutions

Applicant

and

John Walker

Respondent

Counsel for the Appellant: J White, Director of Public Prosecutions

Counsel for the Interested Party: S Whybrow

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 referred to

Attorney-General (NSW) v X (2000) 49 NSWLR 653 applied

Attorney-General's Reference (No 3 of 1994) [1998] AC 245 referred to

Banditt v The Queen (2005) 224 CLR 262 referred to

Beckford v The Queen [1988] AC 130 referred to

Boughey v The Queen (1986) 161 CLR 10 considered

Director of Public Prosecutions Reference (No 1) (1999) 149 FLR 465 referred to

Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 referred to

Fitzgerald v Kennard (1995) 38 NSWLR 184 referred to

He Kaw Teh v The Queen (1985) 157 CLR 523 applied

Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 applied

Papakosmas v The Queen (1999) 196 CLR 297 applied

R v Daly [1968] VR 257 referred to

R v Kitchener (1993) 29 NSWLR 696 referred to

R v Lavender (2005) 222 CLR 67 referred to

R v Lillyman [1896] 2 QB 167 referred to

R v Maddison [2007] ACTCA 18 explained

R v Sieders; R v Somsri (2008) 72 NSWLR 417 considered

R v Sperotto (1970) 71 SR (NSW) 334 referred to

R v Tolmie (1995) 37 NSWLR 660 referred to

R v K [2002] 1 AC 462 applied

Reg v Flitter [2000] EWCA Crim 68 considered

Reg v Khan (Mohammed Igbal) [1990] 1 WLR 813 considered

Reg v Morgan [1976] AC 182 considered

Sims v Drewson (2008) 188 A Crim R 445 applied

The Queen v Crabbe (1985) 156 CLR 464 referred to

Crimes Act 1900 (ACT) s 54, s 60

Evidence Act 1995 (Cth) s 66(2)

Supreme Court Act 1933 (ACT) s 37S

Justice and Community Safety Legislation Amendment Bill (No 2)

Professor Sir John Smith QC (Smith and Hogan: Criminal Law (10 ^th ed; 2002)

Reg v Flitter [2001] Criminal Law Review 328

CRIMINAL LAW — Attorney-General's reference — principles — reference limited to points of law arising in relation to the trial — question referred must be phrased with sufficient precision or appropriately for the Court to hear and decide — s 37S Supreme Court Act 1933 (ACT)

CRIMINAL LAW — offences of sexual intercourse without consent and statutory indecency — mens rea expressed as knowledge or recklessness — whether one or two offences depending on accused's knowledge or recklessness — primary judge required Crown to elect between knowledge and recklessness on charges on an indictment for offences against ss 54 and 60 of the Crimes Act 1900 (ACT) — whether charge framed in terms of knowledge and recklessness duplicitous

Held: only one offence created — Crown need not elect between knowledge and recklessness

ORDER

THE COURT ORDERS THAT:

• 1. The questions of law in the application be answered as follows:

  • 1. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 54 of the Crimes Act 1900 (ACT) (alleged to have occurred on or before 28 August 2008)?

    Answer: ‘No’.

  • 2. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 60 of the Crimes Act 1900 (ACT)?

    Answer:‘No’.

  • 3. Is the test of recklessness applicable to ss 54 and 60 of the Crimes Act 1900 (ACT) the test of recklessness contained in the Criminal Code (ACT)?

    Answer: Inappropriate to answer.

  • 4. Should the standard direction to a jury, where complaint evidence has been tendered, be that the evidence can be used to support credibility and also for a hearsay purpose, unless there has been a ruling that the evidence is inadmissible for the latter purpose?

    Answer: Inappropriate to answer.

REASONS FOR JUDGMENT

1 This is a reference appeal brought by the Director of Public Prosecutions under s 37S of the Supreme Court Act 1933 (ACT) on four questions of law arising out of the trial and acquittal by a jury of the interested party on two counts of sexual assaults alleged against him. The questions of law give rise to three issues.

2 The first issue is whether s 54 (in the form it had been for over 25 years until amended in 2008) and s 60 (which has not been amended) of the Crimes Act 1900 (ACT) created one offence or two different offences, based on the accused's intention, in using the words “who knows that that other person does not consent, or who is reckless as to whether that other person consents”. The second issue is whether, ordinarily, the test of recklessness under ss 54 and 60 is that in s 20 of the Criminal Code 2002 (ACT) or remains the common law test. The third issue is whether, when evidence of a complaint made by an alleged victim of a crime is admitted under s 66(2) of the Evidence Act 1995 (Cth), the jury should be given a standard direction that the complaint is not only evidence to support the victim's credibility, but the representations of fact in the complaint are evidence of the truth of those facts.

Jurisdiction

3 Relevantly, s 37S of the Supreme Court Act provided:

‘Reference appeal in relation to proceeding

(1) This section applies if a person has been charged on indictment in the court and the proceeding in relation to all or any part of the indictment has concluded.

Note Indictment includes information (see Legislation Act, dict, pt 1).

(2) The Court of Appeal may, on application by the Attorney-General or the director of public prosecutions (the applicant), hear and decide (by a reference appeal) any question of law arising at or in relation to the proceeding.’

4 The jurisdiction conferred on the Court of Appeal by s 37S(2) of the Supreme Court Act in a reference appeal is to ‘hear and decide any question of law arising at or in relation to the proceeding’ on the indictment that has concluded. The decision on a reference appeal does not invalidate or affect any verdict or decision given in the proceeding below (s 37S(6)).

5 The jurisdiction given to the Court of Appeal under s 37S(2) is that it may hear and decide any question of law, arising at or in relation to the concluded proceedings, that the Director applies to have heard and determined. The purpose of provisions, such as s 37S, that allow the Crown or its representatives to refer questions of law to an appellate court after criminal proceedings against an accused have come to an end, is to correct an error of law that occurred in the proceedings and affected their outcome: Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 at 305 per Mason CJ, Deane, Dawson, Gaudron and McHugh JJ; Attorney-General (NSW) v X (2000) 49 NSWLR 653 at 662 [38], 679 [136] per Spigelman CJ, 699 [226]-[228] per Priestley JA.

6 The legislature can be presumed to have intended that, by conferring jurisdiction on the Court to hear and determine such questions, the Court will exercise judicial power in deciding whether to answer the question of law and, if it decides to do so, in answering it. That presumption is founded on the institutional role of the courts to determine actual legal controversies. The exercise of judicial power does not extend to answering abstract or hypothetical questions or offering general advisory opinions on such questions: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ; Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 at 576-577 [10]-[14] per Gaudron, Gummow and Hayne JJ; Director of Public Prosecutions Reference (No 1 of 1999) (1999) 149 FLR 465 at 470-471 [14]-[15] per Martin CJ and Attorney-General's Reference (No 3 of 1994) [1998] AC 245 at 265C-F per Lord Mustill with whom Lords Goff of Chieveley, Slynn of Hadley and Clyde agreed.

7 The scope of the jurisdiction under s 37S(2) is considerable and may extend to some pre-trial rulings that were made in relation to the charge on the indictment before the commencement of the trial. Critically, s 37S(1) requires that the person must be charged on indictment in the Court before any relevant question of law can arise in relation to that indictment or the proceeding in the Court. Unlike its legislative counterparts in other places, s 37S is not confined to questions of law that arose at the trial (as in B 194 CLR 566) but extends to those arising ‘in relation to the trial’. It is comparable in scope to those provisions considered in DPP Reference (No 1 of 1999) 149 FLR 465 and X 49 NSWLR 653, although in s 5A(2) of the Criminal Appeal Act 1912(NSW) the question of law must be one ‘arising at or in connection with the trial’. However, it is not necessary to consider exhaustively the outer boundaries of the jurisdiction in this application.

8 The Court of Appeal has a discretion whether or not to hear and decide a question of law in an application made under s 37S(2). This is because the question of law may be framed in terms that are not appropriate to the controversy that arose at or in relation to the trial, for instance, the question may be too imprecise, or require a text book length answer because of its complexity, cf: Attorney-General's Reference [1998] AC at 265F-G; X 49 NSWLR at 662-663 [39]-[42].

The questions of law

9 The four questions of law raised by the Director's application for the reference appeal were:

• 1. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 54 of the Crimes Act (alleged to have occurred on or before 28 August 2008)?

• 2. Is the Crown required to particularise between knowledge and recklessness on an indictment charging an offence against s 60 of the Crimes Act?

• 3. Is the test of recklessness...