- Kabir v R  NSWCCA 139
- Higgins v R  NSWCCA 149
Commonwealth sentencing schedules – whether the offender needs to be personally asked
The Court of Criminal Appeal (‘CCA’) has found that requiring an offender to verbally answer whether they want offences taken into account on a s 16BA schedule would be a triumph of form over substance; it should usually be enough in Commonwealth matters (at least) if their lawyer confirms the offender’s wishes.
The applicant was a registered tax agent. As a result of being a franchisee in a network offering taxation and accountancy services, he had access to a client database, and he got financial information from that database to lodge false tax returns and divert the money to himself. Relevantly for this summary, he was also charged for his conduct in having another man open bank accounts, organising for more false tax returns to be diverted to that man, and diverting the correspondence to a PO box opened up in that man’s name. All this latter conduct was taken into account via a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth), which is the Commonwealth equivalent of the Form 1 with which practitioners may be more familiar. When the list judge invited the applicant to come to the microphone to be arraigned, the applicant pleaded guilty. His Honour then identified that there was a further matter to be taken into account on a schedule, and his counsel confirmed that to be the case. The applicant was not asked personally at any stage of the sentencing proceedings whether he wanted the matters on the schedule to be taken into account, although on appeal he did not complain about the way that the list judge had dealt with the matter, and the applicant acknowledged that he had signed the s 16BA schedule document. On the other hand, the fact that the applicant was not asked personally was at least arguably inconsistent with the authority of Purves v R  NSWCCA 227 (‘Purves’) [reported in these pages in December 2019], and the applicant therefore argued on appeal that he must be remitted to be resentenced in the District Court. In Purves, the applicant had been self-represented on the appeal. He did not raise any issue about the s 16BA certificate himself; it was raised by the Crown. The CCA there had held that the appeal must be allowed because the judge did not make the statutory inquiries and therefore the applicant did not state that he wished the additional offences taken into account.
In this case, however, the Crown submitted that Purves had no precedential value. The object of s 16BA (like that of the equivalent NSW-based provision) is to ensure that the offender is aware of what is happening and consents to the procedures that may have a significant impact on his or her freedom. The Crown went on to submit that it does not strain the language of the section to interpret it as allowing a legally-represented person to indicate his or her wish through counsel, as they do with other procedural events in criminal proceedings. The Commonwealth provision is not expressed in mandatory terms (it provides that the Court ‘may’ ask), which is to be contrasted with the NSW-based language (which provides that ‘the court is to ask’).
The CCA here (Harrison J, Hoeben CJ at CL, and Wilson J agreeing) accepted those and other submissions by the Crown (at ). The Court should be slow to encourage the triumph of form over substance. The legislation carries with it the risk of adverse consequences, and it is therefore obviously important that an offender’s admission of guilt and the associated giving of consent should take place with appropriate certainty. The important thing about s 16BA is that the offender has both admitted guilt to the offences on the schedule and wishes them to be taken into account. The section is predicated upon that admission being made and the wish being communicated. There is no reason why the Court cannot legitimately arrive at the appropriate level of satisfaction based upon the words or conduct of an offender’s legal representative (at -). It followed that this (and the other grounds of appeal, not discussed in this summary) were dismissed.
The result appears to be that, at least in the case of Commonwealth s 16BA schedules, there is now normally no reason why an offender needs to be asked personally to acknowledge their guilt. This will probably be a relief to practitioners, since the complexity of the question the judge has to ask seems to cause quite a lot of unnecessary confusion amongst offenders.
Co-conspirators rule – judicial notice
This decision reinforces previous authority in relation to the co-conspirators rule, and particularly the (in)admissibility of certain kinds of admissions made. It also draws specific attention to the test for the taking of ‘judicial notice’ of things, and emphasises the importance of the court giving parties the opportunity to comment before taking things into account based on its own experience.
In 1974 the applicant was a Patrician Brother and a schoolteacher. He was alleged to have committed a number of sex offences against the complainant (a student) in 1974 or 1975. In mid-2019 the applicant faced the third trial of those allegations: the first trial was abandoned when a co-accused died, and the second one was vacated when the trial judge expressed concerns about the applicant’s fitness. As it happens, this third attempt was just as ill-fated as the first two. The matter was heard by a judge alone, and the applicant was convicted. He appealed his convictions upon nine grounds, of which the CCA (Payne JA and Bellew J; Rothman J agreeing though for different reasons in relation to one ground) upheld or partially upheld eight. There is only space to deal with a couple of the grounds here.
The first error related to an error made in allowing evidence of an ‘admission’ made by the (deceased) co-accused to be used against the applicant. The complainant gave evidence that the co-accused had told him to tell his parents that he was late, missed the bus, fell over, and hurt his backside. The complainant’s mother also said that she had been told these things by the co-accused. What had actually occurred, according to the complainant, was that he had been taken into a classroom by the applicant, where the applicant had inserted his penis into the complainant’s anus. They had been interrupted by the co-accused, who had then screamed at the applicant. The imputation being levelled by using the ‘admission’ of the co-accused was that they had conspired to hide the applicant’s behaviour – but there was no allegation in the trial that there had been such a common purpose.
To lead the evidence, the Crown relied upon s 87(1)(c) of the Evidence Act 1995 (‘the Act’), which basically reproduces the common law ‘co-conspirators rule’. The effect of that rule (where it applies) is that if a co-accused makes a statement in furtherance of the common purpose alleged by the Crown, then that statement by the co-accused will be admissible as an admission against the accused (that is, it is used as an admission by them, even though they didn’t make it, and they weren’t there). In this case the problem seems to have been caused by the fact that s 87(1) commences by saying that the court ‘is to admit’ evidence of an admission if it meets one of the relevant criteria – one of which is that it was made in furtherance of a common purpose. However, earlier authority (R v Dolding (2018) NSWLR 314;  NSWCCA 127 – ‘Dolding’) provides that when that section says that a court ‘is to admit’ the evidence, that does not render the evidence admissible in the substantive proceedings (at  of this decision). All it does is make the material admissible on the voir dire, so that the court can then determine whether there was a common purpose, and if so whether the representation was made by the co-accused ‘in furtherance of’ that common purpose (at -). Moreover, it has to be ‘the’ common purpose actually alleged by the Crown, rather than ‘a’ common purpose (at ). Moreover, this decision endorsed the statement in Dolding that where a representation is made in furtherance of a common purpose extraneous to the proceedings, it is difficult to see how it could pass the test for relevance (at ).
The other appeal ground particularly worth highlighting was one alleging that the trial judge had erroneously taken ‘judicial notice’ of three matters. The test for taking judicial notice is to be found in s 144 of the Act. The CCA here drew particular attention to the requirement (both statutory in s 144(4), and found in case law) that the court is to give a party an opportunity to make submissions about anything it proposes to take into account in that way (at -). The trial judge had said that she was applying her common sense to the evidence before her. However, her Honour did not mention the statutory test in s 144, those findings did not meet the statutory test in s 144(1), and her Honour did not give the applicant the opportunity to make submissions as required by s 144(4). A miscarriage of justice was thereby occasioned (at ). One of the three examples should suffice: the trial judge had dismissed as ‘ludicrous’ a claim by the applicant that he had controlled a class of 44 boys aged 10 to 11 years old, in the 1970s, without corporal punishment (except as a last resort). The trial judge referred to the (apparent) mantra of ‘spare the rod, spoil the child’ and said that corporal punishment by teachers continued until it was stopped in approximately 1995. On appeal, the Crown accepted that there was no evidence of these matters. The CCA found that they were not a matter of ‘common knowledge’, and even if they were (or if it was capable of being verified by reference to some ‘document the authority of which cannot reasonably be questioned’), then the applicant was not given opportunity to submit about it.
In this and other decisions particular criticism was levelled at the fact that this ‘judicial notice’ first appeared in the final judgment. It follows that practitioners should be on the lookout for any ‘common sense’ findings that they perhaps should have been asked about.
For those and other reasons, the appeal was upheld. The Court held that in the particular circumstances of this case it was not in the interests of justice to order a retrial, given (amongst other things) the applicant’s age (82 years), the fact that he had been in custody for about 14 months after his conviction at the trial, the fact that this would be the fourth attempt at the trial, and because of the length of time since the events had occurred (46 years).