A PAPER FOR THE 2008 CONFERENCE OF THE NORTHQUEENSLAND LAW ASSOCIATION
Developments in Criminal Law in the District and Children’s Court
I would like to introduce this topic by briefly summarising some recent and not so recent changes to the Criminal Code.
In 1992 the O’Regan Committee was appointed to examine the Criminal Code to see if it needed amendment. The Committee produced a comprehensive report which lay in abeyance. In 1997 another committee was set up to review the Criminal Code. I was a member of that Committee with the Honourable Peter Connolly who was then a retired Supreme Court judge. Significant amendments were made, many of which reflected recommendations of the O’Regan Committee. Probably one of the amendments of most practical effect was the 590A amendment allowing for pre-trial hearings. This was significant because it was meant to avoid the position where a jury was selected and then sent away for hours, days and even weeks while legal argument took place. The idea of pre-trial hearings took a while to take hold with the profession but now seems to have been accepted and understood with, perhaps one exception which I will discuss later.
Further significant changes were made in 2003 with provisions such as the extended meaning of rape.
In addition, the practice of criminal law has been substantially affected by the provisions of the Evidence Act relating to the pre-recording of evidence of children. I will return to that issue later.
The Criminal Code and other Acts Amendment Bill of 2008 was introduced on the first of May this year, by Attorney-General Mr Kerry Shine. The Bill seeks to modernise the existing provisions of the Criminal Code in some respects, and, it seems to me, captures some of the work of the O’Regan Committee which was not covered by the 1997 Review.
The Bill which presently exists contains over 120 amendments. I have chosen to speak about a number of amendments, not all, to reflect those matters where I think there might be a practical impact for practitioners, particularly in the District Court.
Section 61 of the Criminal Code presently provides that when three or more persons with intent to carry out some common purpose, assemble in such a manner or being assembled conduct themselves in such a manner as to cause persons in the neighbourhood to fear on reasonable grounds that the persons so assembled will tumultuously disturb the peace, or will by such assembly needlessly and without any reasonable occasion provoke others persons tumultuously to disturb the peace, they are an unlawful assembly. The proposition is that the riot provisions should be redrafted in a more modern form, largely based on the UK and NSW provisions. The offence of unlawful assembly is to be transferred to the Summary Offences Act and a new riot provision which increases from three to twelve the number of people needed to constitute a riot, and which substitutes the phrase ‘tumultuously disturb the peace’ with the concept of ‘violence to a person or damage to property’ is what is suggested in the new Bill. The maximum penalty of three years is to be retained but with the option of adding a circumstance of aggravation to capture a rioter who causes grievous bodily harm to a person or causes an explosive substance to explode. There is a further circumstance of aggravation suggested which would result in a seven year maximum to apply to a rioter who is armed with a dangerous or offensive weapon, instrument or explosive substance.
In all the sections in which it appears it is proposed to redraft and substitute the phrase ‘intellectually impaired person’ with the phrase ‘person with impairment of the mind’. The reason given is that an intellectually impaired person is defined as a person with a disability attributable to an intellectual, psychiatric, cognitive or neurological impairment that results in a substantial reduction of the person’s capacity for communication, social interaction or learning, and the person needing support. Given that the definition includes disabilities other than intellectual impairment, the term is to be replaced with what is considered a more accurate and comprehensive phrase.
There are presently a number of offences relating to endangering the safety of persons travelling by railway, aircraft or vessel. It is proposed to amalgamate the provisions by creating a general offence which applies to all vehicles.
Section 364 is the present provision relating to cruelty to children under 16. It is proposed that a new section 364B be created which makes it an offence to leave a child under 16 unattended for an unreasonable time without making reasonable provision for the supervision and care of the child during that time, and which would attract a maximum sentence of three years imprisonment. Whether the time is unreasonable depends on all the relevant circumstances. The section appears to be designed to apply to people who leave children unattended at home, or in a vehicle or while they are at the casino or shopping. One difficulty which can be identified by the proposed section is that it would open the possibility of parents being charged with a criminal offence in circumstances where there are legitimate differences in opinion as to the appropriate way to raise children.
The maximum sentence for fraud over $30,000 has been increased to 12 years. The monetary value has been lifted from $5000. In the past, for frauds of great value, for example, in the millions, cumulative sentences have been imposed where the previous 10 year maximum seemed inadequate to reflect the magnitude of the fraud: See R v Daswani [2005] QCA 167.
There are some provisions to create special case circumstances for serious wilful damage involving the destruction or damage of premises by explosion and actually endangering life. Such an offence will carry a maximum of life imprisonment.
Section 544 which relates to accessories after the fact to crimes presently reads that “Any person who becomes an accessory after the fact to a crime is guilty of a crime, and is liable, if no other punishment is provided, to imprisonment for 2 years.” In R v Shales [2005] QCA 192 the Court of Appeal commented on the inadequacy of two years’ imprisonment under s 544 for an accessory after the fact to the crimes of manslaughter and attempted murder. The proposed amendment to s 544 and s 545 provides that an accessory after the fact to an offence punishable by mandatory life carries life, and that an accessory after the fact to an offence punishable by life imprisonment carries 14 years. Otherwise the accessory is liable to a punishment equal to one half of the greatest punishment to which an offender convicted of the offence is liable.
Section 538, Reduction of Punishment is to be amended.This section relates to the situation where a person is convicted of attempting to commit an offence, but it is proved that the person desisted of the person’s own motion from further prosecution of the offence without its fulfilment and where the offence was not prevented by circumstances independent of the person’s will. The section provides that the person is liable to one half only of the punishment to which the person would otherwise be liable. The Bill suggests that the punishment should be amended to raise it to 14 years. The amendment, in my view, contains no benefit for a person who desists of their own accord in committing the offence.
There are proposed amendments to those sections related to the limitation on disclosure of sensitive evidence. It is proposed that the section be extended to include s.93A statements.
There are proposed amendments to other Acts.
There is a proposed amendment to s 9(2) of the Penalties and Sentences Act, adding that a relevant fact that the court must have regard to in determining the appropriate sentence in any case is (1) the physical and emotional harm to any victim and (2) the effect of the offence on any child under 14 who may be directly exposed to or a witness to the offence.
The further amendment to the Penalties and Sentences Act is in respect of those cases relating to offences against the Classification of Computer Games and Images Act, the Classification of Films Act, and the Classification of Publications Act. In sentencing an offender, the court must have regard primarily to the nature of any image of a child that the offence involved, including the apparent age of the child and the activity shown. The amendment also requires the court to have regard to the need to deter similar behaviour by other offenders to protect children, the prospects of rehabilitation including the availability of any medical or psychiatric treatment to cause the offender to behave in a way acceptable to the community, the offender’s antecedents, age and character, any remorse or lack of remorse of the offender, any medical, psychiatric, prison or other relevant report relating to the offender, and anything else about the safety of children under 16 the sentencing court considers relevant.
The Penalties and Sentences Act is to be amended to solve the problem which emerged in R v Miller (2005) 157 A. Crim. R. 104, so that a person can be dealt with for offending during the term of an extended operational period of a suspended sentence.
The Criminal Law (Sexual Offences) Act is to be amended so that not only is itprohibited to publish material which would identify the complainant in a sexual offence but it will be an offence to do so.
WHAT TO DO WITH PRE-RECORDINGS AND 93A STATEMENTS
Since the introduction of pre-recordings in 2005 various problems have emerged in practice and I am not speaking about the chronic equipment problems.
One of the issues that has arisen and which has not had a consistent approach from the District Court judges, is the question of whether the prosecution at the pre-recording was entitled to lead further evidence over and above the s93A tape. Some judges took the view that the s 93A tape provided the evidence in chief and sometimes allowed some clarification, other judges allowed the prosecution to effectively lead the evidence in chief of the child again on the pre-recording. I have to confess to being one of those people who took the view that the s 93A tape provided the evidence in chief.
This aspect has been clarified in Gately v The Queen [2007] HCA 55, where Haynes J in paragraphs 89 to 91 said as follows:
“The whole of the oral evidence of an affected child, adduced by the prosecution at a relevant proceeding, is pre-recorded. (In this and in other important respects the Evidence Act differs from some generally similar provisions made in other jurisdictions.) The record is then played before the jury and the jury both hear and observe the child giving evidence. The evidence that the affected child gives, although given at a “preliminary hearing”, is given subject to all applicable rules governing relevance and admissibility. It is pre-recorded in accordance with, and for the achievement of the purposes described in, s21AA — to preserve the integrity of the evidence and to limit the distress and trauma that the child might otherwise experience when giving evidence. None of these considerations suggests that the record itself is to be treated as an item of real evidence. All point only to the conclusion that the evidence is what the child says, and that the record itself is not evidence. Those conclusions are reinforced by the fundamental characteristics of a criminal trial that have been mentioned earlier.”
One of the complaints to the High Court was that the appellant alleged that the trial judge erred, “in permitting the prosecutor to tender written statements (in particular the statement of the complainant, taken pursuant to s 93A of the Evidence Act) in circumstance where the complainant had already given full pre-recorded evidence”. The argument was not made at trial or in the Court of Appeal.
After an examination of the relevant legislation, Justice Hayne said that if the party relying on the account of a child is able to and wishes to have that person give their account orally, as well as in the form of the statement that has previously been made, there is no reason to prevent that beingdone.
The second issue which, in the past, has had an inconsistent approach from the District Court relates to whether or not the tape recording made at the pre-recording should be tendered as an exhibit in the trial.Gately is authority for the proposition that on a trial, where the pre-recorded evidence is played to the jury, the video tape should be marked for identification rather than as an exhibit in the trial, it should be marked with a letter rather than a number and it should not be given to the possession of the jury for the purposes of their deliberations. Further, where the jury requests the re-playing of the videotape this, if permitted, should occur in a reconvened court and, depending on the particular circumstances of the case, it may be necessary to warn the jury of the need to consider the replayed evidence in light of the countervailing evidence or considerations relied upon by counsel. It may be desirable, in some cases necessary, to repeat the instructions required by s 21AW.
One important issue which has been the subject of inconsistent approach by the court is the question of whether the court is closed for the playing of the pre-recording during the trial. I have taken the view that s 21 of the Evidence Act makes it clear that the court is closed while the pre-recording is made, because it talks about support persons being present, etc. I took the view that this did not apply to the playing of the tape during the trial and that the court should be open unless there was clear legislative intent to the contrary. During the discussion of the matter with other judges, I raised the proposition that the policy was concerned with the position of the complainant when giving evidence rather than keeping the evidence private and I pointed out the addresses and openings of an open court are usually given gruesome detail so the evidence becomes public in any event.
Other judges have had a very different view in that they took the view that when the pre-recorded evidence was played that that was the giving of evidence and that the court should be closed.
At the present I understand that a request has been made to clarify the situation with the Attorney-General and I understand that he takes the view that s 21AU recognizes that when an affected child witnesses’ evidence is being recorded the court must be closed so as not to inhibit the child’s ability to relate his or her account of the offence. By contrast when the evidence is played sometimes weeks or months after the recording there is no such impost on the administration of justice by having an open court. There may be an argument that the playing of the child’s evidence has the potential to cause embarrassment to the child because they will know that the public will hear details but he has pointed out that in any event those details will become apparent from counsel and judges during the addresses, summing-up, openings etc. Similarly in sentence proceedings the court will hear detailed accounts of such conduct relating to child witnesses.
This seems to me to be a very important issue which may amount to a fundamental flaw in the trial if the wrong approach is adopted.
I said earlier that I thought the profession had embraced the notion of the pre-trial hearing except in one area. That area is in respect of pre-recordings and trials involving children. In my experience, more attention needs to be given to the consideration of the admissibility of the s.93A statement before the pre-recording takes place.
Similarly, questions relating to joinder etc should be considered before the pre-recording so that, if there is a severance of charges, appropriate care can be taken to isolate the evidence in the pre-recording.
For example, some judges have expressed reservations about non-specific “relationship evidence” and the care with which its characterization, reception and use must be treated.[1]
In R v Nieterink (1999) 76 SASR 56, Doyle CJ pointed out that in many cases of sexual offences against children that the evidence of uncharged acts has several potential uses. The evidence of a particular relationship might be admissible to explain a criminal act, or the circumstances in which it was committed, that might otherwise be surprising, and, on that account, implausible. The evidence may establish a pattern of guilt to explain a child’s submission and silence. The term ‘background’ is unsatisfactory because of its failure to identify the precise manner in which it is suggested that the evidence of the uncharged acts can be used. See also R v Tully (2006) 231 ALJR 391 per Callinan J.
In addition, after the pre-recording, consideration must be given to any need for editing to enable it to be done in a timely way. Some legal representatives give the impression that they have little idea about the mechanisms involved in editing these tapes and little idea of the time involved in that work.
Another area which requires attention from prosecutors and defence counsel is preliminary complaints. Trials have faltered because of the introduction of evidence relating to complaints made after the first formal statement to police. That complaint is not a preliminary complaint; it is merely hearsay and is not admissible.