Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ellis v R [2015] NSWCCA 262 Hearing dates: 13 August 2015 Date of orders: 25 September 2015 Decision date: 25 September 2015 Before: Bathurst CJ; R A Hulme J; Garling J Decision: 1. Extend the time for lodging an application for leave to appeal up to and including 15 May 2015. 2. Grant the applicant leave to appeal. 3. Allow the appeal and quash the sentence imposed on the applicant by the District Court on 3 July 2012. 4. Remit the matter to the District Court for resentencing of the applicant by a Court differently constituted. Catchwords: CRIMINAL LAW – appeal – conduct of judge – sentencing – procedural fairness - questioning by judge – whether questioning of witness by judge led to a miscarriage of justice Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Cases Cited: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Galea v Galea (1990) 19 NSWLR 263 Jones v National Coal Board (1957) 2 QB 55 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Pham v R [2010] NSWCCA 208 O'Neil-Shaw v The Queen [2010] NSWCCA 42 R v Baleisuva [2004] NSWCCA 344 R v Capaldo [2015] SASCFC 56 R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 R v Vachalec (1981) 1 NSWLR 351 Ratten v The Queen [1974] HCA 35; 131 CLR 510 Yuill v Yuill [1945] P 15 Category: Principal judgment Parties: Blake Geoffrey Ellis (Applicant) Regina (Respondent) Representation: Counsel: S Buchen (Applicant) M Cinque (Respondent) Solicitors: G Goold (Applicant) Solicitor for Public Prosecutions (Respondent) File Number(s): 2011/152935 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 3 July 2012 Before: Norrish QC DCJ File Number(s): 2011/152935 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Blake Geoffrey Ellis, plead guilty to the offence of manufacturing a large commercial quantity of 3,4-methylenedioxyamphetamine (MDA) in the District Court. The applicant was sentenced to 9 years imprisonment with a non-parole period of 6 years, backdated to the date of his arrest. Early in the sentencing hearing, the sentencing judge was alerted to the reluctance by the applicant to identify his co-offenders. Shortly after the commencement of the applicant's evidence in chief, the sentencing judge asked the applicant to identify a person in a photograph that had been tendered by the Crown. After the applicant stated that he was not prepared to identify the persons in the photograph, as he did not want to place his family or himself in danger, the sentencing judge intervened by making comments such as, "you will not tell me in this court who you'll give evidence about and what you'll give evidence about" and "if you're going to get in the witness box to give evidence about your role in this matter you're going to tell me the whole truth and you're going to tell me the whole story and not be selective about it because otherwise what's the value of your evidence with respect?". The sentencing judge subsequently questioned and criticised the applicant's solicitor regarding the refusal of the applicant to identify persons in the photograph. This culminated in the applicant discontinuing his evidence and withdrawing that which he had given thus far. The applicant's solicitor tendered a police report concerning damage suspiciously caused to the applicant's mother's car and a threatening note that had been left in her letterbox two days later saying "If B talks you're next bitch". In his remarks on sentence, the sentencing judge made a number of comments regarding the refusal by the applicant to give evidence. He stated that the reason the applicant had fears for his safety "was not made clear" and the fact that one of the applicant's co-offenders could give evidence in his sentence proceedings without identifying certain persons was not a matter that would assist the sentencing judge in conducting the proceedings. The sentencing judge also referred to a number of areas where, in the absence of evidence from the applicant, he could not accept submissions favourable to him, both in relation to the objective seriousness of the offence and the applicant's subjective circumstances. For example, the involvement of the applicant in the commission of the offence and the applicant's motive for committing the offence. The applicant sought leave to appeal on two grounds. First, that he was denied procedural fairness and the sentencing proceedings miscarried by reason of the sentencing judge's intervention during his evidence and insistence that the applicant identify the persons in the photograph. Second, that he had a justifiable sense of grievance when his sentence was compared with the sentences passed upon his co-offenders. An extension of time to apply for leave to appeal was required. As the Court found merit in the first ground of appeal, with the result that the matter was remitted to the District Court for rehearing, the Court considered that it was unnecessary to deal with the second ground. Held (Bathurst CJ, RA Hulme and Garling JJ), extending the time for lodging an application for leave to appeal, granting leave to appeal, allowing the appeal and remitting the matter to the District Court for resentencing: As there was a miscarriage of justice, an extension of time to grant leave to appeal should be granted. [5] Kentwell v The Queen [2014] HCA 37; 252 CLR 601 It is not the function of a judge to perform an inquisitorial role, as distinct from adjudicating on issues raised by the parties. There are a number of risks to a fair trial which may occur as a result of excessive intrusion by a trial judge, including the inability of a judge who has descended into the arena to properly assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. The ultimate question will be whether the intervention was unjustifiable and resulted in a miscarriage of justice. A miscarriage of justice will occur where the conduct of the judge prevents a party from properly presenting his or her case. [57], [65] Yuill v Yuill [1945] P 15; Jones v National Coal Board (1957) 2 QB 55; Ratten v The Queen [1974] HCA 35; 131 CLR 510; Galea v Galea (1990) 19 NSWLR 263; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; R v Capaldo [2015] SASCFC 56 The sentencing judge's intervention was unwarranted, deprived the applicant of the opportunity to properly present his case and led to a miscarriage of justice. This was due to a number of reasons. First, the question about the photograph which led to the exchange was of doubtful relevance. Second, the timing of the question early on in the applicant's examination in chief and before evidentiary issues had crystallised, particularly given that there are good reasons for drug offenders to be reluctant to identify co-offenders. Third, the reaction of the sentencing judge after the applicant had denied answering the question, namely, the suggestion that the applicant was not prepared to tell the truth. Fourth, in making the comment that the applicant must tell the whole truth otherwise "what's the value to your evidence", the sentencing judge misapprehended his role. Fifth, the judge should have considered the police report and threatening note relevant to the applicant's reluctance to identify his co-offenders. Sixth, the refusal to entertain any submission regarding the circumstances in which the applicant's co-offender was not required to give similar evidence in his sentence proceedings. [66]-[72], [74] Pham v R [2010] NSWCCA 208; R v Baleisuva [2004] NSWCCA 344; Jones v National Coal Board (1957) 2 QB 55 Judgment 1. THE COURT: Blake Geoffrey Ellis (the applicant) applied for leave to appeal against the sentence imposed by a judge of the District Court (the sentencing judge) on 3 July 2012 for one count of manufacturing a large commercial quantity of 3,4-methylenedioxyamphetamine (MDA). 2. The offence is contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty is imprisonment for life and/or a fine of 5000 penalty units. There is also a standard non parole period of 15 years: s 33(3)(a) Drug Misuse and Trafficking Act; Div 1A of Pt 4 Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The applicant was sentenced to imprisonment for 9 years with a non-parole period of 6 years, which was backdated to the date of the applicant's arrest (10 May 2011). The sentence was said to reflect a 25 per cent discount for the utilitarian benefit flowing from the applicant's early plea of guilty. 4. The applicant sought leave to appeal on two grounds: 1. "The applicant was denied procedural fairness and the sentence proceedings miscarried by reason of the learned sentencing judge's intervention during the applicant's evidence and his Honour's insistence that the applicant identify the persons depicted in exhibit E". 2. "The applicant has a justifiable sense of grievance when his sentence is compared with the sentences passed upon his co-offenders". 1. An extension of time to apply for leave to appeal was required. The Crown accepted that if the Court came to the view that there was a miscarriage of justice, an extension of time to grant leave to appeal should be granted. This undoubtedly was correct: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [30]. 2. We have found merit in the first ground of appeal, with the result that the matter is to be remitted to the District Court pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) for rehearing. In those circumstances, an extension of time should be granted. Moreover, having regard to the applicant's success on the first ground, it is unnecessary to determine the second ground. Facts 1. The charge to which the applicant pleaded guilty alleged that 19.275 kilograms of MDA (the prescribed "large commercial quantity" is 500 grams) was manufactured at a property at Werris Creek (the Werris Creek property) between 24 November and 15 December 2010. 2. A 15 page "statement of facts" was tendered by the Crown in the sentence proceedings. There was no dispute about its contents, but a single paragraph at the end of the document identified three issues which remained in dispute. 3. The judge expressed concern during the sentence hearing and referred to this again in his reserved judgment, that the source of the information contained in the statement of facts was not apparent on its face. Why this was a concern in relation to facts which were not disputed is not apparent. 4. Where there is no dispute, it is preferable that a "statement of facts" actually states the facts rather than summarises the evidence, with it being left up to the judge to work out what the evidence establishes. Regrettably, the statement of facts in this case was a very poorly prepared document, comprising, in large part, a summary of evidence, not all in chronological order. It included a substantial amount of pedantic detail of no relevance. It was a document that may have tested the patience of any judge presiding in a busy court. However, based upon that document, the following facts may be discerned, at least as sufficient for present purposes. 5. There was a joint criminal enterprise involving the applicant and more than six other participants to manufacture MDA at the Werris Creek property between the dates mentioned above. 6. MDA is found in tablets that are sold as "Ecstasy". That drug is supposed to contain 3,4 methylenedioxymethylamphetamine (MDMA), but is sometimes found to contain other components, including MDA. 7. The applicant and three of the participants in the enterprise had lived in the same area of Sydney and had known each other for years. 8. A number of the participants were involved in the acquisition of chemicals and laboratory equipment on about 21 or 22 November 2010 and on prior occasions. The acquisitions were financed by one of the applicant's co-offenders, a Mr Yazdani. 9. In relation to the applicant, on 1 November 2010, he and another participant attended a large hardware store in Caringbah and purchased a substantial quantity of items for use in the manufacturing process. On 4 November 2010, he paid for and collected further items on special order from the same store. 10. On or about 2 November 2010, the applicant and another participant ordered a large quantity of hosing from an auto parts store, which was collected and paid for two days later. 11. The offenders involved in the acquisition of the materials on 21-22 November drove to a location in Yowie Bay where glassware items were transferred to a vehicle of which the applicant was an occupant. Various chemicals and equipment were stored at a property in the Nowra area in the ensuing day or so. 12. On 24 November 2010, one of the participants in the enterprise travelled to Werris Creek where he met with the owner of the Werris Creek property in the area and arranged for the use of a shed on the property in exchange for a promised payment of $50,000. Three vans arrived shortly after and were directed to the Werris Creek property by the owner of the property. The applicant was a passenger in one of the vans and, when they arrived at the property, he assisted with the unloading of chemicals and laboratory equipment. 13. Some of the occupants of the vans then left, while others remained, including the applicant. The statement of facts included that "it was during the next three weeks that the men manufactured a large commercial quantity of … MDA", but it was later noted that the applicant's involvement in the process was a matter of dispute. 14. A photographic identification procedure with the owner of the property revealed that the applicant (and others) had been at the Werris Creek property from 24 November to 15 December 2010, but it was not asserted that the applicant had been there every day in this period. It was accepted by the Crown that he had, at least, been away in Sydney on 3-4 December. 15. On the morning of 15 December 2010, the offender and other participants packed up chemicals, equipment and the finished drug and left the property. The offender had travelled from Sydney very early that morning in his father's van and arrived back in Sydney that evening. The owner of the property found that a small amount of equipment had been left behind. 16. In the afternoon of 15 December, a van containing two of the applicant's co-participants in the enterprise was pulled over by a police officer at Quirindi for a random breath test. The officer's suspicions were aroused and he searched the van. He found laboratory equipment and arrested the men for possession of implements used in the manufacture of prohibited drugs. Specialist police attended the following day and an examination of the items seized detected chemicals relevant to the manufacture of MDA and MDMA. A further examination of the van uncovered 16 vacuum sealed plastic bags of powder which, upon later analysis, was found to be 19.275 kg of MDA. 17. Subsequent examination and analysis established that various items recovered from the van had been used in the manufacture of MDA. The applicant's fingerprints were on some of them. 18. The applicant and another participant in the enterprise, Mr Freeman, were travelling back to Sydney at the time of the arrests at Quirindi. They met with Mr Yazdani and another participant at a hotel in Darling Harbour. They asked Mr Yazdani for money to enable them to leave the country immediately. 19. The following day (16 December), the applicant, Mr Freeman and others met with Mr Yazdani at the latter's apartment at Elizabeth Bay. The NSW Crime Commission had the premises under surveillance. The applicant and Mr Freeman were given money by Mr Yazdani and they immediately went to the airport and, paying cash for tickets, boarded a flight to Hong Kong. They subsequently travelled to Bangkok. 20. Various items were seized from Mr Yazdani's apartment a few days later, including a reaction flask, upon which was found material containing a DNA profile consistent with being the applicant's. 21. Police did not locate the site of the manufacturing process at Werris Creek until March 2011. A search uncovered items associated with the manufacture of MDA, as well as detecting fingerprints and DNA profiles of various participants. The applicant's fingerprints or DNA profile were found on a toaster, cigarette butts (including in a room where the manufacturing was carried out) and a remote control device. 22. The applicant returned to Australia on 18 January 2011. He was arrested on 10 May 2011. 23. After summarising the evidence from which the foregoing has been derived, the statement of facts concluded with a summary dealing with the following matters: ● The offender was part of a joint enterprise to manufacture a large commercial quantity of prohibited drug. ● The earliest involvement of the offender was on 1 November 2010, with the purchase of items from a large hardware store. ● The manufacture was of an amount of MDA of just over 19 kilograms. ● At least seven other persons (potentially more) were involved in the joint enterprise. ● The manufacturing process took place between 23 November and 15 December 2010 at the Werris Creek property. ● Prior to the manufacture itself, the offender was involved, as referred to above, in receiving the glassware and obtaining material to be used in the manufacture. ● The offender travelled with others to the Werris Creek property on 24 November 2010. He remained at the property for some time after 24 November. He travelled to Sydney between 3 and 4 December 2010. ● The offender left the Werris Creek property on 15 December 2010 after being involved with packing up the following: a) the large commercial quantity of MDA; b) glassware; c) the remaining chemicals and other equipment. ● The offender left Australia on 16 December 2010 and returned on 18 January 2011. 1. The statement of facts concluded by setting out the matters that remained in dispute: 1. The offender's involvement with what was unloaded from the vans that attended the Werris Creek property on 24 November 2010. 2. The offender's role in the joint criminal enterprise to manufacture. 3. The amount of time the offender was present at the Werris Creek property between 23 November and 15 December 2010. The sentence proceedings 1. Early in the sentence proceedings, there was a discussion between the sentencing judge and the solicitor for the applicant, Mr Goold, concerning the role that the applicant played in the manufacture of the MDA. The solicitor said that the applicant's "role was as a transporter and a purchaser of goods" and he was not, "in the vernacular, the cook or participating in assisting in the chemical process that produced the prohibited drug". He also said that evidence would be drawn from the applicant as to his contemplated profit from the enterprise. The following exchange then took place: "HIS HONOUR: I mean the cook might only get $100,000 out of it if it's worth $5 million. … GOOLD: We're not contending we're getting that much but that will be evidence drawn from the offender in relation to what his anticipated profit was. But certainly we are contending a minor role your Honour. HIS HONOUR: Well I take it your client is going to be able to give evidence of the roles everyone had in the matter? GOOLD: I'm not – well I anticipate he'll be able to identify his role. HIS HONOUR: No but he'll be able to identify other people's role wouldn't he? GOOLD: He will. He's- HIS HONOUR: Well I mean if you're going to talk about the role of somebody in a particular criminal enterprise and the person's present when other people are participating in that criminal enterprise, you'd think they'd be a position to inform a third party as to what the role of the others was, as- GOOLD: One of the other parties has already identified his role. He's been sentenced for that. HIS HONOUR: No, not but there's lots of parties identified and presumably your client is going to give evidence of his knowledge of those people and their role in the matter as he understood it. GOOLD: Well I have an understanding of the evidence he will give. As to the identification of those persons, the main reasons will be put before your Honour as to why they will not be identified by the- HIS HONOUR: Yes, all right, well let's talk about the people that I know about from the facts." 1. It can be seen from that exchange that there was at least an early indication to the sentencing judge of reluctance by the applicant to identify his co-offenders. 2. The Crown called a police officer, Detective Senior Constable Gary Adams. During the course of his evidence, a photograph was tendered. The photograph was said to have been taken on 16 December 2010 at a property at Elizabeth Bay where Mr Yazdani was said to be residing. Notations on the photograph identified two of the persons shown as the applicant and Mr Yazdani. The Crown did not attempt to lead evidence from Detective Adams identifying the four other persons in the photograph. 3. Detective Adams also gave evidence that Mr Yazdani was the financier of the enterprise the subject of the charges and that the applicant was a long-time associate of Mr Freeman. 4. It was not challenged in the cross-examination of Detective Adams that the applicant and Mr Yazdani were two of the persons who appeared in the photograph. 5. The applicant was called to give evidence. Shortly after the commencement of his evidence in chief, the following exchange occurred: "HIS HONOUR Q. Just tell us there's the photograph you might as well tell us who the people were shown in the photograph? You might tell me who the people are in the photograph because I'm not familiar with the people and it's very hard for me to work out? A. Your Honour I'm not prepared to say who anyone is. Q. Why are you giving evidence for if you're not prepared to tell me the truth? A. Because I'm not put my family in danger for the sake of myself or for the Court to give these people up- Q. Have you been told- A. because the people involved- Q. Excuse me, no let me just give you a lesson in giving evidence. You get in the witness box and give evidence. If you refuse to give evidence you could be in contempt of court do you understand that? A. Yes. HIS HONOUR: You can claim privilege against self-incrimination but if it's not a privilege against self-incrimination you can't tell me and you will not tell me in this court who you'll give evidence about and what you'll give evidence about. I don't know whether it's been explained to you if you're going to get in the witness box to give evidence about your role in this matter you're going to tell me the whole truth and you're going to tell me the whole story and not be selective about it because otherwise what's the value of your evidence with respect? I ask that rhetorically of you, your counsel and the Crown Prosecutor. Mr Goold what's the, did you know your client was going to get in the witness box and then just be selective about what he was going to tell me? GOOLD: I knew he was going to have concerns about identifying people on the basis of his concerns. I can hand you a document which-" 1. It was not disputed that the document to which Mr Goold was referring was a Police report relating to a report of malicious damage to a motor vehicle owned by the applicant's mother, which occurred on 20 January 2012, and a report of a note in the applicant's parents' letterbox stating, "If B talks you're next bitch". At the hearing of this application, the Crown accepted that it was open to infer that Mr Goold attempted to show this document to the sentencing judge in support of the fact that the applicant had genuine concern for his family. 2. The exchange continued as follows: "HIS HONOUR: I'm not worried about you handing me a document. I am concerned about the basis upon which he's been called to give evidence. GOOLD: He's been called to give evidence on the basis of his role in this enterprise. HIS HONOUR: How is he going to explain to me his role if he's not going to tell me the whole truth, Mr Goold? You assist me in that regard. GOOLD: He accepts- HIS HONOUR: May I just pause for a moment, how is the Crown going to test his version of events if he doesn't disclose relevant information? How can his version be properly tested if he does not disclose the relevant information that goes to explaining his role which would of necessity I would have thought be concerned with identifying particular people. You think about it because you're the one who has called him. GOOLD: I am thinking about it. HIS HONOUR: I mean it's just treating this Court with a very real disrespect if it could be thought that someone could just get in the witness box and just be selective about what they're going to tell the Court. I'm going to close the Court. I'll close the Court. If you want me to make non-publication orders I'll make non-publication orders but I'm not just going to be treated this way and allow my Court to be treated this way with respect. GOOLD: I'm not intending any disrespect and I make that clear and perhaps if I could adopt this course if I could take him to firstly some non-contentious matters and if your Honour would allow me having done that and not wasted the Court's time to have a short conference with him at the end of the day. HIS HONOUR: Just pause for a moment. The Crown has got rights of cross-examination remember that. GOOLD: I'm not seeking to- HIS HONOUR: They can't cross-examine him on a limited basis. GOOLD: What I'm considering is that having taken the box he is there for all purposes. I accept that and he is open to cross-examination and that will proceed in due course. HIS HONOUR: Subject to relevant rulings upon Evidence Act matters and all the rest. GOOLD: Indeed, I would seek your indulgence at some stage when these contentious matters we've just been raised now for him to get some advice as to his obligations and responsibilities because if they're unclear he should in my submission have that opportunity before he continues his evidence and is then cross-examined. HIS HONOUR: I don't mean this disrespectfully to you but he should have been told all this before he got in the witness box. GOOLD: There's been discussions about it. HIS HONOUR: Imagine if we had a jury here and we're having this discussion in front of the jury, what would the tribunal of fact think of them? GOOLD: With respect I think he was misled to a certain extent by what occurred in Mr Haynes' proceedings where people- HIS HONOUR: I'm not interested in, I've got no idea what happened in his proceedings. All I've got is a judgment. I haven't got a transcript. GOOLD: I've had the benefit of a transcript. HIS HONOUR: I'm not concerned with how other proceedings are run with the greatest respect. It might have been a boat race for all I know. GOOLD: It may well be that he wants to avail himself because of fears and because of the documents that I- HIS HONOUR: You know what a boat race is of course? GOOLD: Sorry? HIS HONOUR: You know what a boat race is don't you? GOOLD: I know what a boat race is. HIS HONOUR: Yes, it might have been a boat race for all I know. Everyone agreed that the prisoner could give evidence and nobody was going to challenge his version and away it would go on that basis. I don't know. Don't know who appeared. Haven't got a transcript so it's the way sometimes these things happen. There might not be any reason to dispute what his version of events was so he was allowed to give it in a particular way. I don't know. GOOLD: I would like to avail myself of an opportunity to speak to him. HIS HONOUR: Of course you can speak to your client. I'm not going to deny you the chance to speak to your client anymore than I would denied the Crown the chance to speak to MH. I'm just a bit concerned about the fact that it might be thought that your client could just get in the witness box and automatically assume that he could just tell me what he wanted to tell me and not tell me anything else at least in-chief when the Crown has a right to cross-examine him and challenge his version of events if it wishes to. I don't know. It may not. It may hear his evidence and be satisfied with his evidence and not want to ask him any questions. I don't know. GOOLD: It may need then a consideration of a closed court and a non-publication order. HIS HONOUR: Is your client going to provide any more evidence about his relationship with Mr Freeman other than what I've heard thus far? GOOLD: As I understand it it was not his intention to do so but if your Honour is minded to- HIS HONOUR: I'm asking that rhetorically. It's not for me to cross-examine him unless as the tribunal of fact I want to learn something but I don't think I've learnt anything else about the association between the two men from what I've heard thus far. They're friends from the Cronulla area terrific but that doesn't tell me anything. Did they go to school together? How long have they been friends? All these things. I'm not going to draw any inferences adverse to your client because he knows somebody who might have received some publicity or might have a particular reputation or might be the son of a person with a particular reputation. That's not the basis upon which courts operate but it's not to be assumed that it's satisfactorily for him to simply say I know this person. I know him from around the Cronulla area. What dining at Zimzala, going out to the Blue Parrot, meeting up at Northies every Saturday afternoon. What is the nature of the relationship between the two men? Is that going to be explained? GOOLD: On that level, yes, that can be explained. It was in relation to- HIS HONOUR: No, I don't want you to give evidence. Is he going to give evidence about all this? GOOLD: Yes but in relation to the criminal complicity of other persons including Mr Freeman. He was not intending to identify other persons who were involved. HIS HONOUR: He should have got in the witness box and said that from the outset. GOOLD: Perhaps he was led astray by the circumstances under which Mr Haynes' proceedings proceeded and thought that he would be afforded the same indulgence- HIS HONOUR: Why would he be led astray by the circumstances of Mr MH's circumstances of giving evidence? GOOLD: Because his circumstances on the way the matter proceeded on the evidence which was provided to me is the transcript of the remarks on sentence and the circumstances particular to this offender suggest that he would be in a better position to seek that indulgence than what MH was. HIS HONOUR: Yes but just pause for a moment and correct me or don't bother correcting me because I don't know. Did MH give evidence in the context of what was said to be a disputed facts hearing? SPEAKER: Yes. HIS HONOUR: It was a disputed facts hearing? That's something I didn't know. CROWN PROSECUTOR: As to his role he gave some evidence. HIS HONOUR: Was it a disputed facts hearing or was it simply a fellow getting out of the dock, walking over the witness box and giving 15 minutes of evidence as happens in most sentence matters and being asked a few perfunctory questions by whoever was the Crown Prosecutor and wandering back to the dock again." 1. Following this exchange, the solicitor for the applicant sought leave to obtain instructions from his client. The following day, the applicant sought and was granted leave to withdraw his evidence. The remarks on sentence 1. It is only necessary to deal with the remarks on sentence so far as they relate to the first ground of appeal. 2. In his remarks on sentence, the sentencing judge referred to the refusal by the applicant to give evidence. He described the applicant's failure to give evidence which identified particular persons involved as "somewhat absurd, given that the particular people in question were already identified in the facts". If that was the case, one might ask rhetorically why the sentencing judge found it necessary to ask the question which led to the exchange to which we have referred above. 3. The sentencing judge also said that when he was on the verge of directing the appellant to answer questions, the appellant said that he had fears for his safety. The sentencing judge said that "[t]he reason for this was not made clear", although the sentencing judge did state that he was mindful of the police report to which we have referred in par [37] above. 4. His Honour made the following remarks in respect of the failure by the applicant to give evidence: "Although acknowledging there are difficulties for the prisoner in giving evidence, it must be said that it was totally unrealistic to call the prisoner to give evidence that would have been relied upon to establish facts in the case, when the witness, either on advice or of his own motion, was not prepared to give full particulars to enable his version of events to be either challenged, verified or even properly understood. In any event, the choice by him not to continue his evidence – he was granted leave to have his evidence withdrawn the following day – was his, taken on the advice of his counsel. It should be noted that I indicated to his counsel that, short of directing the prisoner to answer the questions, there were various other alternatives. I can compel the witness to answer questions. Or I could close the Court, or I could direct no publication of the evidence, or any one of those combinations. I appreciate that his unwillingness to continue with his evidence was no sign of disrespect for the Court. On the other hand, I do not understand why the way in which the sentence proceedings of his co-accused were conducted could in any way inform the manner in which this prisoner would be allowed to give evidence in these proceedings. That MH could give evidence without disclosing any relevant details or any particular details is a matter for that sentencing judge, not a matter that assist me in any way in conducting these current proceedings. I was not given the benefit of a transcript of what occurred in the sentencing of MH, to whom I will refer shortly. In any event, ultimately, I draw no inference adverse to the prisoner by his failure to complete his evidence" 1. Mr Haynes (sometimes referred to as MH by the sentencing judge) was one of the applicant's co-offenders. The reference to him giving evidence without being required to disclose any particular details was a reference to the fact that the judge who sentenced Mr Haynes rejected questions asked of him in cross-examination concerning the identity of his co-offenders. 2. The sentencing judge referred to a number of areas where, in the absence of evidence from the applicant, he could not accept submissions favourable to him, both in relation to the objective seriousness of the offence and the applicant's subjective circumstances. 3. The sentencing judge found that the applicant was present (at the Werris Creek property) for a number of days to contribute to the process of manufacture. The applicant pointed out that one of the issues on which his solicitor indicated he would give evidence was his involvement in the manufacturing process and particularly the fact that the applicant's asthma prevented him from taking any active part in the process. 4. The sentencing judge referred to the evidence given by Mr Haynes at his sentencing hearing concerning the extent of his involvement and pointed out that similar details were not available for "positive conclusion" in relation to the applicant. The sentencing judge noted that it was accepted that Mr Haynes "performed fairly menial tasks", which was presumably the "positive conclusion" to which he was referring. The sentencing judge also emphasised the absence of evidence from the applicant in the following passage: "A great deal of time was spent arguing about what he would have done during the period he was at Werris Creek. It seemed to me a great deal of time was wasted on this topic. The prisoner did not assist me in this regard beyond leaving open the fact that for a lengthy period of time either side of 3 and 4 December he was incommunicado, consistent with him being on the property and deliberately turning his phone off. As the prisoner has not assisted me, primarily because of his concern about his welfare, he has provided no direct evidence other than his admission of being involved in the relevant criminal enterprise and of course the nature of the criminal enterprise." 1. In that context, the ultimate conclusion of the sentencing judge was that the applicant had a greater involvement in the enterprise than Mr Haynes and must have a higher starting point for his sentence than Mr Haynes. 2. The sentencing judge also commented on the absence of evidence in dealing with the applicant's motive for committing the offence and the applicant's subjective circumstances. It was submitted on behalf of the applicant that he was motivated to commit the crime to financially assist his parents, who were in dire financial circumstances. The sentencing judge rejected this submission, stating that in the absence of evidence from the applicant and details of what he was to receive, it was "not possible to conclude that the commission of the crime was for altruistic reasons". In dealing with the consultant psychiatrist's report which was tendered, he noted that most of the psychiatrist's conclusions were based on untested evidence. The parties' submissions 1. The applicant submitted that the sentencing judge's intervention during his evidence forced him to choose between identifying the other persons in the photograph and putting his family at risk of harm, or refusing to do so, thereby facing other adverse consequences. He submitted that it was unfair for him to be put in that position. 2. The applicant submitted that in intervening in the manner referred to above, the sentencing judge crossed the line between excessive and unjudicial intervention and disclosure of matters of concern: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (Chow) at 606. He pointed to the fact that the intervention by the sentencing judge was at an early stage of the applicant's evidence in chief and well before the commencement of cross-examination of the applicant. He pointed to the fact that the Crown did not ask Detective Adams to identify the persons in the photograph and submitted that there was a real doubt about the relevance of the identification evidence in any event. The applicant submitted that in those circumstances, there was a real doubt as to whether the Crown would cross-examine the applicant on that matter. He also submitted that the question asked by the sentencing judge was of doubtful relevance. 3. The applicant submitted that the early intervention by the sentencing judge gave rise to the appearance of unfair pre-judgment, referring in particular to that part of the remarks on sentence to which we have referred in par [43]. 4. The applicant pointed to the fact that the effect of what occurred was that he was unable to give evidence as to the nature of his limited participation in the enterprise, the time of his "first active involvement" and his "motivation to involve himself in the offending". Counsel for the applicant pointed to those portions of the remarks on sentence to which we have referred above in which the sentencing judge referred to evidentiary deficiencies in the applicant's case, stating that what occurred deprived the applicant of the opportunity of remedying those deficiencies. 5. The Crown submitted that as the photograph was tendered without objection, it would have been surprising if someone did not ask the applicant to identify the persons appearing in it. However, at the hearing, the Crown accepted that, in light of the fact that the police officer was not asked to identify those persons, such identification was not a particularly important part of the Crown case. 6. The Crown submitted that what ultimately concerned the sentencing judge was not the identification of the persons in the photograph, but the statement by the applicant's solicitor that his client did not intend to give evidence identifying other persons involved in the offence. The Crown submitted that the sentencing judge was entitled to proceed as he did and was entitled to require a witness to answer a question, unless there was a valid objection. 7. At the hearing, counsel for the Crown accepted that there was nothing available to contradict the inference that the applicant declined to answer questions because of a genuine concern for his family. She also agreed that if the Court came to the view that the applicant was prevented from properly presenting his case, there would be a miscarriage of justice. Consideration 1. There have been many cases in which appellate courts have warned of the risk to a fair trial resulting from excessive intrusion by a trial judge in adversarial proceedings. The dangers which have been said to result include the inability of a judge who has descended into the arena to properly assess the demeanour of a witness and the possibility of creating the impression of pre-judgment. However, the ultimate question must always be whether the intervention was unjustifiable and resulted in a miscarriage of justice. 2. In Yuill v Yuill [1945] P 15 at 20, Lord Greene MR referred to the difficulty of the assessment of demeanour by a judge who descends into the arena and assumes the role of an advocate. His Lordship made the following remarks: "A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge from what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue." 1. The position was considered by the England and Wales Court of Appeal in Jones v National Coal Board (1957) 2 QB 55. In that case, a judgment in favour of the respondent, in a claim brought against it for damages for personal injuries, was set aside and a new trial ordered on the basis that excessive interference by the trial judge in cross-examination led to a miscarriage of justice. Denning LJ who delivered the judgment of the Court made the following remarks at 63-65: "… In the system of trial which we have evolved in this country, the judge sits to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large … So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it on himself lest by so doing he appear to favour one side or the other: … And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost … The judge's part in all this is to hearken to the evidence, only himself asking questions of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points that the advocates are making and can assess their worth; and at the end to make up his mind where the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an advocate; and the change does not become him well. ... That is what has happened here. A judge of acute perception, acknowledged learning, and actuated by the best of motives, has nevertheless himself intervened so much in the conduct of the case that one of the parties - nay, each of them - has come away complaining that he was not able properly to put his case; and these complaints are, we think, justified." 1. The complaint in that case was similar to the complaint made in the present case, namely, that the appellant was unable to properly present her case. 2. In Ratten v The Queen [1974] HCA 35; 131 CLR 510 at 517, in determining whether a trial judge should have intervened when the accused did not lead certain evidence, Barwick CJ described the role of the judge as follows: "It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he wiII call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not." 1. In Galea v Galea (1990) 19 NSWLR 263 at 281-282, Kirby A-CJ, with whose reasons Meagher JA agreed, stated a series of principles concerning excessive judicial intervention. Of particular relevance are the following (at 281): "1. The test to be applied is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so, the judgment must be set aside: see E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146. … 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626; see discussion (1976) ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (NSW) (Pt 1) 427; [1970] 1 NSWR 654. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier(at 117)." 1. Chow involved an application of these principles to a sentencing hearing. Although the Crown had accepted a plea of guilty from the accused, the sentencing judge continued to question the prosecution in a manner indicating that he believed that the accused was guilty of a more serious offence. The sentencing judge sought and accepted the tender of committal depositions, over the accused's objections, in regard to the more serious offence. The accused sought declaratory relief prior to the sentence being handed down. While the Court of Appeal found that a sentencing judge was entitled to seek further detail regarding the facts on which the accused was to be sentenced, the court held that the sentencing judge had exceeded the limits of proper judicial questioning and departed from neutrality, giving rise to a reasonable apprehension of bias. Kirby P stated at 608: "I fully acknowledge his Honour's right in law to go beyond the statement of facts tendered by the parties. In protection of the public interest, he was entitled, for the performance of his sentencing function, to seek more detail about the acts for which the claimant was to be punished. The parties' agreement, and subsequent conduct, could not confine his Honour. However, in pursuing what he conceived to be his obligation, Ducker DCJ, in my respectful opinion, crossed the line which divides permissible judicial questioning from prosecutorial accusation and criminal inquisition. He contested the wisdom and justification of the prosecution's acceptance of the lesser charge. He doubted the existence of the defence to that charge, notwithstanding reference to R v Love (1989) 17 NSWLR 608. He expressed not too subtle disagreement with the approach of the prosecutor by stating that: '… Sometimes it needs an experienced eye to see these things'. He repeatedly stated (although there was no evidence to support this conclusion) that the case 'smacked of' 'organised crime'. He insisted on more than one occasion that: 'There is an aroma about this matter and I want to know what it is about'. With every respect, there is missing from the transcript the elements of dispassion and neutrality that are appropriate in the performance of the judicial function, particularly in criminal matters where passion is too easily raised. The exchanges, of growing intensity and insistence on the part of his Honour, betray no inclination to accept the prosecutor's function in determining the charge and the accused's right, having pleaded to it, to have the matter dealt with upon that basis only. His repeated reference to the seriousness of the matter and indication that the accused was looking at a custodial sentence would have left an observer with a sense of real disquiet. Instead of dealing with the matter in the manner conventional to our criminal justice system, his Honour's interrogation appears much closer to that of an investigating magistrate in a civil law country. Perhaps we should have such a system. Perhaps judicial officers should be empowered to protect the public interest by an energetic, zealous pursuit of the 'real facts', over-riding and even reversing the judgments of prosecutors. But that is not our system or our convention. Although the line is a fine one, I am satisfied that it was crossed in this case. A reasonable apprehension of bias required the disqualification of the sentencing judge." 1. Similarly, in R v Capaldo [2015] SASCFC 56, the conduct of the sentencing judge in taking over the cross-examination of the offender was found to give rise to an apprehension of bias: see [14]-[15], [34]-[35]. 2. Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case: Jones v National Coal Board. In R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38], Kourakis CJ stated three ways in which a judge's intervention may be excessive and lead to miscarriage of justice: "I would state the grounds on which a judge's intervention might vitiate a conviction a little differently, as follows: (i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground); (ii) the questioning gives an appearance of bias (the bias ground); and (iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground)." 1. Although we have considerable sympathy for the position in which the sentencing judge found himself, having regard to the unsatisfactory statement of facts presented to him, we are of the view that his intervention was unwarranted and deprived the applicant of the opportunity to properly present his case. This is for a number of reasons. 2. The first reason is the nature of the question which led to the exchange. The photograph in question was taken the day after the last day on which the offence was said to have been committed. The question was thus of doubtful relevance. The Crown did not ask Detective Adams to identify the persons in the photograph other than the applicant and Mr Yazdani. 3. The second reason is the timing of the question. The question was asked early on in the applicant's examination in chief and well before any evidentiary issues between him and the Crown had crystallised. Further, it was asked in circumstances where the solicitor for the applicant had already informed the judge that the applicant would be reluctant to identify the other persons involved. In that context, it must be remembered that this Court, on more than one occasion, has indicated that there are good and valid reasons for drug offenders facing terms of imprisonment to be reluctant to identify their co-offenders: Pham v R [2010] NSWCCA 208 at [27]; R v Baleisuva [2004] NSWCCA 344 at [29]. It does not seem to us that the fact that the evidence may have been given in closed court necessarily alleviates the difficulty. 4. Third, and most important, is the reaction of the sentencing judge after the applicant had declined to answer the question. Without giving any consideration of the reason for the refusal, he suggested to the applicant that he was not prepared to tell the truth and that he could be in contempt of court if he declined to give evidence. The sentencing judge did not hear argument as to whether the applicant should be required to answer the question, but threatened the applicant with sanctions if he did not answer questions. 5. Fourth, in making the comment cited at par [36] above, "if you're going to get in the witness box to give evidence about your role in this matter you're going to tell me the whole truth and you're going to tell me the whole story and not be selective about it because otherwise what's the value of your evidence with respect? I ask that rhetorically of you, your counsel and the Crown Prosecutor" (emphasis added), the sentencing judge misapprehended his role. As was stated in Jones v National Coal Board and Ratten, it is not the function of the judge to perform an inquisitorial role, as distinct from adjudicating on issues raised by the parties, although the judge has an entitlement to seek clarification of matters raised in evidence. 6. Fifth, the police report regarding malicious damage to the motor vehicle and the threatening note were matters which the Crown conceded should have been considered. 7. Sixth, the refusal to entertain any submission as to the circumstances in which Mr Haynes was not required to give similar evidence before Judge Payne and instead making a slighting comment about a boat race. 8. It was these matters which caused the applicant to apply to be excused from giving further evidence. Whether or not that was a sensible course to adopt, it was understandable in all of the circumstances. 9. We have identified the areas where the sentencing judge referred to the absence of evidence in rejecting submissions made on behalf of the applicant (pars [45]-[49] above). The applicant was thus prejudiced in the sentencing proceedings. There was a miscarriage of justice. 10. We emphasise that this judgment is not to be taken as suggesting that a witness giving evidence in sentencing hearings has discretion as to whether to answer questions where the answer might prejudice the witness or his or her immediate family. The problem in the present case arises from the nature and timing of the questions asked and, more importantly, on the approach of the sentencing judge immediately following the applicant's refusal to answer questions. 11. There remains the question of the appropriate form of relief. Neither party disputed that the Court's power under s 6(3) of the Criminal Appeal Act was enlivened in circumstances where there was a miscarriage of justice in the sentence proceedings: R v Vachalec (1981) 1 NSWLR 351 at 353. As the Court is not in a position to resentence the applicant, it should exercise its power under s 12(2) of the Criminal Appeal Act to remit the sentence proceedings to the District Court for determination. It is appropriate in the present case that a direction be made that a judge other than the sentencing judge hear the proceedings: O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [33]-[34], [57]-[59]. Orders 1. Extend the time for lodging an application for leave to appeal up to and including 15 May 2015. 2. Grant the applicant leave to appeal. 3. Allow the appeal and quash the sentence imposed on the applicant by the District Court on 3 July 2012. 4. Remit the matter to the District Court for resentencing of the applicant by a Court differently constituted. ********** 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: 25 September 2015