Supreme Court New South Wales Medium Neutral Citation: R v Pratten (No 2) [2012] NSWSC 1665 Hearing dates: 28 February 2012, 09 March 2012, 12 March 2012, 14 March 2012, 21 March 2014 Decision date: 21 March 2012 Jurisdiction: Common Law Before: Rothman J Decision: 1. Jury is discharged Legislation Cited: Criminal Law Consolidation Act 1935 (SA) Criminal Procedure Act 1986 Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427 Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210 R v Hansen [2002] SASC 208; (2002) 84 SASR 54 R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148 Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 Category: Procedural and other rulings Parties: Regina (Crown) Timothy Charles Pratten (Defendant) Representation: Counsel: K. Chapple SC (Crown) B. Hatfield (Crown) M. Leighton-Daly (Defendant) File Number(s): 2010/315475 EX TEMPORE JUDGMENT 1. The Court is faced with an usual application by the Crown, being to discharge the jury on the basis of the unfairness of the opening statement by counsel for the accused. To say it is unusual is probably an understatement. The openings of the Crown and the accused have only just concluded. No evidence has been adduced. 2. There are some trials in which the Crown has in the past applied for a discharge of the jury. Normally they related to what I will call general administration of justice issues. There is, for example, the situation described by the High Court in Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, in which the Court dealt with an appeal from the Court of Appeal in the Supreme Court of Victoria, in turn dealing with an appeal from a judge of that court. 3. Dupas, supra, the circumstances of which were significantly different from the current circumstances, was being heard by a very experienced criminal judge, his Honour Justice Cummins of the Victorian Supreme Court, and the Crown had applied, it seems, for a discharge of the jury on the basis of pre-trial publicity. The counter application by the accused was for a permanent stay of proceedings. An application of this kind by the Crown is extremely rare. 4. The Crown in the present proceedings quite properly informed the Court, for which I am grateful, that in his 30 years of criminal law practice he has never heard of the Crown applying for a discharge of the jury, at this point in the trial or on this basis, and I have to say it is a most unusual course. Nevertheless, it seems to me that the principles are similar; I doubt frankly that they are quite the same, but they are similar to the situation where an accused applies for discharge. 5. The principles were set out in the judgment of the High Court in the Crofts v The Queen [1996] HCA 22; (1996) 186 CLR 427. His Honour Justice Dawson, who was presiding said: "[432] Whether or not a jury should be discharged by reason of some incident which occurs during the course of a trial is a matter within the trial judge's discretion. But it is a discretion which is to be exercised in favour of a discharge only when that course is necessary to prevent a miscarriage of justice. It is in that sense that it has been said that the underlying principle is that of necessity and that, 'a high degree of need for such discharge' must appear before a discharge will be ordered." 1. When a trial judge's refusal to discharge a jury is called in question, it must be borne in mind that he or she is ordinarily in a better position than an appeal court to assess whether, having regard to the course which the trial has taken, and the atmosphere in which it has been conducted, any prejudice may be dispelled by a clear warning to the jury. 2. To similar, if not identical, effect, is the statement of the plurality in Crofts v The Queen. The passage at 440 in the plurality judgment is to the following effect: "No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the Court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript." 1. I am not sure that that qualification applies particularly well to the situation in the current circumstances, but the principles embodied in the statements by the High Court in Crofts must be applied generally to an application for a discharge of the jury. 2. It must be said that one of the main functions of a trial judge in proceedings before a jury is to ensure the fairness of the trial process. Generally that means that particular attention must be paid to what is fair to the accused, and to ensure that the accused, who is facing a criminal conviction and the consequences of that conviction, has a fair trial. However, the rule as to fairness is a rule that applies to all parties, not only in criminal cases, but throughout the judicial system which operates in this country. 3. The other issue of principle to which I will refer is that which is contained in the statements of the High Court in Dupas, supra, to which reference has already been made. As I made clear earlier, that was a case relating to what was said to be abuse of process and an application for permanent stay. In the joint judgment of his Honour the Chief Justice French, and Justices Gummow, Hayne, Heydon, Crennan, Kiefel and Bell, their Honours said: "[12] The stay application made to the trial judge and the appeal to the Court of Appeal invoked the power of the Supreme Court to prevent abuse of its processes and in particular to prevent the prosecution of a criminal proceeding which would result in an unfair trial. [13] In this Court, the appellate contends that pervasive pre-trial publicity attributed guilt to the appellant in respect of the crime with which he is charged and that evidence in the trial revived that pre-trial publicity with the effect that the pre-trial publicity, particularly as to the appellant's guilt in respect of other crimes and the crime charged, could not be dismissed from the jury's consideration when deciding the guilt or innocence of the appellant. The appellant submits that an accused's right not to be tried unfairly includes a right to be tried without a significant likelihood that the jury will be affected by substantial prejudice and prejudgment as a consequence of pre-trial publicity." 1. Further, from the joint reasons of Chief Justice Gleeson and Justices Gummow, Hayne and Crennan in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 there appear, or are foreshadowed, several propositions which bear upon the application now before the Court. In Batistatos, supra, their Honours referred to the statement of Lord Blackburn in Metropolitan Bank Ltd v Pooley (1885) 10 App Cas 210, that from early times the courts had inherent power to see that their processes were not abused, and that the power existed to enable the courts to protect themselves, and thereby safeguard the administration of justice. 2. In Dupas, supra, the High Court went on to explain that the power of the Supreme Court, which was relied upon for the purpose of the application, and in my view which is relied upon for this application, is the inherent power of the Court. Their Honours referred to a passage from Batistatos, supra, which in turn recited a passage from the joint judgment of his Honour Chief Justice Mason, Justices Dawson, Toohey and McHugh in Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509. It is a well-known passage referring to the public interest in the administration of justice, which requires that the Court protect its ability to function as a court of law, by ensuring that its processes are used fairly by state and citizen alike. The High Court in Dupas, supra, made clear that that expression of principle applied to civil cases and criminal cases alike. 3. The only other passage to which I would refer, in terms of principle and matters to be considered, is the passage at [32] of Dupas, supra, which refers to a reliance upon the High Court reasons in Glennon v The Queen [1994] HCA 7; (1994) 179 CLR 1 in terms of a jury trial, and commented that the reference in that case to "impermissible prejudice and prejudgment" gives insufficient effect to the policy of the common law respecting the efficacy of the jury system. InDupas, at [35], their Honours said: "Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'." 1. Their Honours go on to say there is nothing remarkable or singular about extensive pre-trial publicity, which was not a matter their Honours considered could be remedied in the trial with which they were dealing. However, their Honours made clear that it is a further consideration of the Court that what they needed to take into account was substantial public interest of the community in having those who are charged with criminal offences brought to trial. The social imperative was the difference or distinction between a permanent stay on the one hand, which amounted to a continuing immunity from prosecution, against the public interest to ensure that criminal offences are prosecuted. Their Honours said in Dupas, supra, at [37]: "Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether the trial should proceed." 1. It is probably appropriate at this point to deal with the context of the application and the complaint that is made by the Crown. The Crown lists what are in effect eight matters about which it complains. One of them is a matter of factual contention as to whether or not there are prior criminal convictions of the accused. Because it is a matter of factual context, I do not deal with it at any length. 2. Essentially, the Crown says that there are eight separate matters addressed by counsel for the accused, which create an irremediable unfairness to the Crown. It is said, by the Crown, that the accused in the opening address suggests, in eight different particulars, an unfairness by the Crown, an unfairness by the Crown Prosecutor or prosecutors, and/or an unfairness by the State, using that term in its generic sense, in the charging of the accused. They relate to a number of matters. I will give examples. 3. The first of them is a suggestion that there was evidence arising from an audit by the Australian Taxation Office (hereinafter, "ATO"), which the Crown has deliberately or otherwise, though it seems deliberately, denied the jury in terms of its deliberation. I add that some of the material arising from that audit was the subject of objection by the accused. 4. The second is that there is an allegation that two days after the response to the ATO determination by the accused, he was arrested and charged, at least implicitly suggesting that there was an unfairness to the accused in denying him the ability to deal properly with either the ATO determination and/or the charges that were before this Court. 5. The third aspect is the eliding of the proceedings for this criminal offence for a financial advantage by deception, which include the seven counts before the Court today, and the AAT appeal against the determination by the ATO. 6. There are other matters. They go to the issues of the Crown not adducing, at the same time as they adduced evidence relating to receipt of income, material relating to the nature of the equipment that was bought or sold, and seemingly a mistake or misrepresentation of the kind of expenditure that was made by the accused. 7. The last example to which I will refer is the relationship or second aspect of the relationship between the proceeding by the AAT and this Court, namely, that the suggestion was made in the opening that the conduct of the trial was unfair, because the accused could be convicted here and thereafter have the AAT determine that no tax was payable. 8. There is no doubt that counsel for the accused has strayed beyond those matters that are described in s 159 of the Criminal Procedure Act 1986. Section 159 gives the right to an accused person or his legal practitioner to address the jury immediately after the opening of the prosecutor. Hitherto, that is prior to the enactment of a provision of that kind, the general rule was that the accused and/or his counsel would address a jury only in circumstances where evidence was to be called in the defence case, and generally at a time that was after the close of the Crown case. 9. The provisions of s 159, and the manner in which they work, were the subject of comment by the Court of Criminal Appeal in R v MM [2004] NSWCCA 81; (2004) 145 A Crim R 148. His Honour Howie J recited at [153] the terms of s 159 of the Criminal Procedure Act, and reiterated a passage in the Second Reading Speech of the then Minister who introduced the Bill into the Legislative Assembly. 10. He also referred to the report of New South Wales Law Reform Commission at [138], and at [141] his Honour said: "Defence counsel seemed to believe that because the Crown, in a moderate and appropriate opening to which no criticism could attach, referred to the extensive delay in the complaint and the fact that one offence was referred to as 'buggery', he was justified in making an opening address which included that part which is set out in the judgment of Levine J. Even making allowances for apparent transcription errors, I have difficulty understanding the point that counsel was seeking to make in that passage of his address by referring to 'stepping back in time...to the law that existed then', or to the 'sort of morality that existed then even in relation to this offence'. If he were concerned at the use of the term 'buggery' to describe the offence, the proper way to approach the matter was to ask the trial judge to say something to the jury about the use of that term in the charge. But, in my opinion, it was completely inappropriate to introduce the topics of morality or a change in the law in the jury's considerations of the issue before them. The defence case was that the allegations were untrue. Questions of morality, of the nature of the offence, or of the differences between the current law and as it existed at some earlier time were completely irrelevant. In any event, it was not a legitimate matter to be canvassed in the defence opening. With respect, the trial judge should have taken the matter up with defence counsel to see what, if any, legitimate purpose there was in making comments which, so it seemed to me, could only serve to distract the jury." 1. Before leaving that issue of principle, I should refer to the judgment of the Court of Criminal Appeal of the Supreme Court of South Australia, comprising Doyle CJ and Perry and Lander JJ, in R v Hansen [2002] SASC 208; (2002) 84 SASR 54. The majority judgment was delivered by Lander J, with whom Doyle CJ agreed. The case involved facts wholly unrelated to this one. It was about opening by counsel for the defence in which counsel had referred to his client being guilty rather than not guilty of the charges with which he had been charged. 2. At [89], his Honour Lander J referred to the statements as being "not an opening of their client's case". He went on to say: "The purpose of an opening is to bring to the attention of the trier of fact the matters which the party will seek to prove, the evidence which will be led to prove these matters, the witnesses to be called, the issues in the trial and perhaps some matters of law. It is not appropriate for counsel to use the occasion to make what is, in effect, a closing address and an argument." 1. His Honour recites the provisions of the relevant section in South Australia, which is s 288A(2) of the Criminal Law Consolidation Act 1935 (SA). It must be said that the terms of that provision are significantly different from the terms of s 159 of the Criminal Procedure Act and care must be taken in applying that which Lander J said without proper consideration of the differences in the statute. Nevertheless, his Honour went on to say at [98]: "Of course it is a matter for the trial judge how he or she shall conduct the trial. The overriding consideration of the conduct of the trial is to ensure fairness not only to the accused but also to the prosecution. The prosecution is entitled, in my opinion, to put its case fairly and objectively and without it being undermined prior to it having been presented. There may be circumstances where it is in the accused's interests for counsel to indicate to the jury in advance of the prosecution case the issues which need to be decided by the jury. Counsel may indicate some facts are not in dispute so the jury can concentrate on the real matters in dispute by identifying those matters." 1. Having referred, as I have in this judgment, to the provisions of s 159, it must be said, without any criticism of the manner in which criminal trials are conducted in this State, that there are many occasions on which there is not strict adherence to the terms of s 159. That is, there are times when a jury is put on notice, for example, that particular evidence will be the subject of credit worthiness issues, or that there are some aspects of the way in which the Crown case is being put to which the jury should pay attention in terms of the manner in which they say proof will or will not be able to be effected. 2. Having said that, s 159 is the statutory provision by which the court and the parties are bound. The section itself gives some leeway, because it refers to the address being limited generally to an address on those matters set out in s 159(2)(a) and (b) and, as I said, often it is helpful, both to the jury and to the judge, to have matters other than those prescribed in s 159(2)(a) and (b) of the Criminal Procedure Act outlined so that the trier of fact, and indeed the trier of law, can more appropriately look at and deal with the evidence as it is adduced. 3. Earlier in this judgment, I said that there is a slight difference between the interests of the Crown and the interests of the accused in applying the principles. Greater care must be taken in dealing with fairness to the accused than in dealing with fairness to the Crown. I do not mean by that that the trial should be conducted unfairly to the Crown, only that, generally, matters of unfairness to the Crown can be dealt with more easily during the course of a trial, than would be the case in an unfairness to the accused. 4. Nevertheless, the fundamental principles of the rule of law are the provisions of natural justice and fairness in the trial procedure. They mean, amongst other things, two fundamental propositions: firstly, that every party has the opportunity to prepare and to present its case to the trier of fact; and, secondly, that the trier of fact not be influenced either by prejudgment or an apprehension of prejudgment or by extraneous matters that are irrelevant to the issues at trial. That last mentioned matter is the reason that judges sit in criminal proceedings and determine that which may or may not go before the jury in those proceedings. 5. It seems to me that the opening of the accused or on the accused's behalf goes beyond that which should be permitted and beyond that which is countenanced by s 159 even though the provision uses the word "generally". I also accept that there is a significant degree of unfairness associated with some of the remarks made by counsel as to the conduct, it seems, of the prosecuting authorities and of the Director of Public Prosecutions and, to a lesser degree, of the Crown. 6. I hasten to add that counsel has withdrawn, if there were any, any suggestion that the Crown Prosecutor has behaved in a manner that was inappropriate, which withdrawal I accept. I certainly had no feeling and accept that there was no accusation made against counsel or indeed against the solicitor. 7. The issue goes beyond that. Ordinarily one would imagine and I could envisage the giving of directions to the jury that would overcome any unfairness in an opening. The difficulty in this case is if I do that in terms which would deal squarely with the unfairness that may have arisen from the opening, I would have to make comments that may be perceived, even without any intention on my part, as criticism either of the accused or accused's counsel and I make no such criticism. 8. Even in this judgment I make no such criticism and I certainly would not do so in front of a jury. The difficulty in dealing with the principles is while it is theoretically possible to envisage words that would overcome the unfairness and direct the jury in an appropriate way, in doing so I would leave open a real possibility of there being a countervailing unfairness to the accused which also would then have to be addressed. So it is a lose-lose situation on all counts. In essence that means that I consider that there is nothing that I can direct that would overcome the unfairness that has been occasioned. SHORT ADJOURNMENT (Judgment interrupted to allow his Honour to discharge jury - see p 127 of transcript) JUDGMENT CONTINUED 1. I now continue with the comments I wish to make. Some of the comments are of the nature of preliminary issues and are views rather than a concluded view as to the matters that are before the court. Partly that is the case because on some of these issues I have not been addressed. 2. The parties will have heard in my discharge of the jury the question of unfairness. I paid particular attention during the course of the earlier remarks to the judgment of the High Court in Dupas, supra, and in particular to the enduring power of the court to ensure a fair trial. If there are allegations of unfairness, even in the way in which the prosecution has acted, or the accused or his counsel have acted, then I would expect that to be raised with the Court and an appropriate application made as a consequence. 3. It seems to me that it is not a matter that is appropriate for address to the jury, who must deal with the matter on the facts that are before them. If there is an unfairness to the accused in the way in which those facts are adduced, then I want to hear about it, and I do not mean that to be critical of anyone. 4. I want to hear about it, because if I take the same view, I will address that unfairness and ensure that it does not occur or is relieved. That comment applies to the Crown as much as it does to the accused, but it particularly applies to the accused, because I am mindful of the acknowledged greater capacity of the Crown to marshal forces in prosecution than is usually available to the accused in defending it. Ultimately a matter of unfairness is a matter for the Court, constituted by the Judge, and not a matter for the jury. 5. The second aspect on which I wish to make comment, again on a preliminary basis (and if the parties want to be heard on this or feel it is necessary for me to make a formal ruling I will do so, but I will do so only if I hear the parties fully and properly on the issue), is the relationship between the AAT proceedings and these proceedings. I preface these remarks with the following hypothetical: let us assume that a taxpayer is earning taxable income, but puts in no tax return and receives no tax assessment. I would suspect, subject to hearing the parties, that such a person, assuming they have received taxable income and assuming you could prove the appropriate intent, could be found guilty of obtaining a financial advantage by deception. It matters not that the ATO has not issued an assessment for that offence to be proved. 6. Likewise, the nature of the assessment, and whether it is a default assessment, may have little or nothing to do with the determination of any criminal charge of obtaining a financial advantage by dishonest deception or by deception. The foregoing is an extreme case; no one is suggesting it is applicable in these proceedings. The question of the amount of tax to be paid or whether tax should be paid may not be an essential ingredient of this charge of obtaining financial advantage by deception. Having said that, as presently informed, I would say that the fact of a tax assessment and its method of calculation could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. 7. I have made clear earlier that I have the distinct impression that the parties are like ships in the night. The Crown has taken the view that it will prosecute this case, and is prosecuting this case, on the basis of a deception, which is the failure to declare, in the personal income tax return of the accused, amounts of money received by the accused, or benefits obtained by the accused, which it says are, in the ordinary sense, income. That is the manner in which the prosecution is proceeding. 8. As a consequence of the manner in which the Crown has chosen to prosecute the charge, it seems to me that the existence of a tax return is relevant, plainly, or clearly. The fact that an assessment has been issued initially on the basis of information provided by the accused is relevant, and the fact that a subsequent assessment issued, which imposed a greater liability, may also be relevant. Whether it can be excluded for other reasons is another issue with which I do not now need to deal. 9. Having said that, the proceedings in the Administrative Appeals Tribunal (hereinafter, "AAT") do not deal with the same issues with which we are dealing in this trial. The AAT, as I recollect, is put in the same position as the Tax Commissioner, and exercises a discretion, which this Court, and no jury, could ever exercise. 10. On one view, the existence of the AAT proceedings may not be relevant, but to the extent that it rationally affects the existence of, or the probability of an existence of a hypothesis inconsistent with guilt, it may be relevant. 11. I have made those comments so that the parties are apprised of my thinking at this stage for the purpose of informing, to the extent they so desire, what it is they wish to say in any proceedings that may arise hereafter. ********** Amendments 29 April 2016 - amended case name in coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2016