The Queen v Tr & Vg [2004] ACTSC 10 (19 March 2004)

Last Updated: 23 April 2004

THE QUEEN v TR and VG [2004] ACTSC 10 (19 March 2004)

CRIMINAL LAW - application for pre-trial ruling - whether discretion to exclude evidence not exercisable until evidence tendered - whether prior indication of likely view appropriate.

Evidence Act 1995 (Cth), s 137

TKWJ v The Queen [2002] HCA 46

The Queen v Frank Fischetti and Maria Caggiano [2003] ACTCA 5

No SCC 68 and 69 of 2003

Judge: Crispin J

Supreme Court of the ACT

Date: 19 March 2004

IN THE SUPREME COURT OF THE )

) No. SCC 68 and 69 of 2003

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

TR

and

VG

ORDER

Judge: Crispin J

Date: 19 March 2004

Place: Canberra

THE COURT DIRECTS THAT:

1. the matter be listed before the Registrar for allocation of a date for the further trial of both accused;

2. there be no publication of the names of the accused in the context of the reasons for judgment herein.

1. In this matter the accused have been committed for trial on serious criminal charges. A jury has not yet been empanelled and it is necessary to avoid any description of the case that might prejudice a fair trial of the accused.

2. Counsel for both accused foreshadowed objections to the admissibility of certain evidence which the learned prosecutor submitted was of crucial importance to the Crown case. It was agreed that I would need to hear the evidence on the voir dire in order to rule upon the objections. It was also agreed that it would be inconvenient to defer any ruling until the evidence was actually tendered by the Crown. Accordingly, I acceded to the application to hear the evidence on the voir dire and heard the competing arguments of counsel.

3. It is now clear that the evidence is admissible but that there are strong grounds for contending that it should be excluded pursuant to section 137 of the Evidence Act 1995 (Cth) which provides as follows:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

4. On the basis of the evidence adduced on the voir dire I have formed a view as to the manner in which the discretion arising under s 137 should be exercised.

5. However, whilst rulings as to admissibility of evidence may be made even during pre-trial proceedings, it appears that a judge may not be entitled to make any ruling as to whether evidence should be excluded on discretionary grounds until the evidence in question is actually tendered at the trial. In TKWJ v The Queen [2002] HCA 46 the High Court of Australia dealt with an appeal in which it was argued that a judge of the District Court of New South Wales should have given an advance ruling that, if the Crown tendered certain evidence in rebuttal of character evidence adduced by the accused, it would be excluded on discretionary grounds. Gaudron, Gummow and Hayne JJ stated that a judicial discretion can only be exercised when the occasion for making the relevant decision arises or, to adopt the phrase employed by Gaudron J at [40], "if and when [the discretion] is invoked".

6. The rationale for this approach can be readily understood. Any judicial discretion must obviously be exercised in the context of the other evidence that has already been adduced in the trial and, if exercised in advance, a judge would be dependent upon an assumption that counsel have been able to adequately anticipate the nature and extent of the evidence and/or an assumption that the evidence at trial would prove to be the same as that adduced during the earlier committal proceedings. Neither of these assumptions may prove to be well-founded and the judge who gave an advance ruling could find that, when the occasion for exercising the discretion actually arose, the foreshadowed decision no longer seemed appropriate.

7. On the other hand, there are some cases in which substantial inconvenience, expense and perhaps even unfairness might ensue if there were to be no indication as to the likely exercise of discretion. Such an approach may require counsel to prepare for trial and make tactical decisions without knowing whether a substantial body of evidence is likely to be admitted, the Crown may be unable to make any sensible assessment as to the prospects of obtaining a conviction, counsel for the accused may be unable to offer any sensible advice as to the appropriate plea and the opening addresses may have to omit any explanation of the relevance of evidence subsequently admitted. Furthermore, if the trial judge subsequently rules that the evidence should be excluded in the case of one accused but not the other, it may be necessary to then discharge the jury and order that the accused be tried separately. That would involve a substantial waste of time and money, create unnecessary risks of prejudice to both the Crown and the accused and leave jurors with the feeling that their time had been wasted.

8. However, the approach taken by their Honours in TKWJ was not to affirm the existence of a general principle, which might be seen as subject to an exception when the interests of justice otherwise required, but rather to deny the existence of any power to make an advance ruling as to the exercise of a discretion. Hence, despite the fact that the relevant issues have been fully ventilated during a three day hearing, it appears that I have no power to rule on the competing arguments of counsel.

9. It may be open to a judge to indicate the manner in which he or she might be inclined to exercise a discretion if the evidence unfolds as anticipated but such a course might be seen to involve a circumvention of the underlying principle in TKWJ and perhaps give rise to the appearance of some prejudgment of an issue that the High Court has held should properly be determined at a later stage of the proceedings. It might also lead to real difficulties and perhaps, even an application for the jury to be discharged should counsel conduct the case on the basis of that indication and the judge subsequently make a contrary ruling. Other potential disadvantages include risks that an indication that the judge is inclined to exclude the evidence might inhibit counsel from pursuing a formal ruling on the issue and, in that event, the party adversely affected by tacit acquiescence in the course proposed might be unable to raise the issue on appeal.

10. This case provides a further example of the practical difficulties that may be caused by inflexibility in the law governing criminal procedure. It comes less than twelve months after the Court of Appeal's decision in The Queen v Frank Fischetti and Maria Caggiano [2003] ACTCA 5. In that case there had been a dispute as to whether the offence charged in the indictment could have been constituted by the acts which the accused allegedly committed and their counsel indicated that a directed verdict of acquittal be sought. Such an application is normally made only at the close of the Crown case but in this instance the Crown wished to avoid incurring substantial expense in bringing a number of witnesses from the United States when, if the charges against the accused were held to have been misconceived, that expense would have been wasted. Accordingly, the Crown joined with the defence in asking me to rule on the application for a directed verdict of acquittal upon the arraignment of the accused, but prior to the empanelment of the jury. I heard the argument, found that the charges were misconceived and ordered that a verdict of acquittal be entered. On appeal, it was not argued that the decision was incorrect, but the verdict was set aside on the ground that there had been no power to make the resultant order until a jury had been empanelled. It is now clear that in a case of that kind it will be necessary for the judge to formally empanel the jury, direct that the verdict of acquittal be entered and then presumably explain to the jury that they have no function to perform and have been brought to court only so that the words of the order can be spoken after their empanelment.

11. In many respects the inflexibility of the criminal procedure stands in marked contrast to civil procedure which involves well settled systems of pleading to enable the relevant issues to be defined and permits the Court to grant summary judgment for either party or make advance rulings when appropriate. Courts make every effort to ensure the efficient conduct of all forms of litigation and it is regrettable that unnecessary delays and complications may occur in criminal trials due to the absence of any power to depart from the usual course of proceedings when the interests of justice so require.

12. Difficulties of this kind may ultimately be overcome by rules authorising pre-trial directions and rulings in criminal cases. For the present, I am obliged to accept that I have no power to give an advance ruling. However, despite the concerns previously expressed, I do not think it would be in the interests of justice for me to leave the parties guessing as to the ruling they could expect if the relevant issues fell to be determined on the basis of the evidence I have already heard during the course of the voir dire. Hence, I indicate that, should no further evidence be adduced in relation to these issues prior to the time at which the discretion must be exercised, I would exclude any evidence as to the surveillance of people said to have been one or both of the accused or to have been accompanied by one or both of them prior to 12.10 am on the day of the alleged offences. Since this is not a ruling but merely an indication of a present view, it would be inappropriate to provide a statement of reasons.

13. I direct that the matter be listed before the Registrar with a view to being allocated a date for the further trial of both accused and order that there be no publication of the names of the accused in the context of these reasons for judgment.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 19 March 2004

Counsel for the Crown: Ms J Whitbread

Solicitor for the Crown: ACT Director of Public Prosecutions

Counsel for the accused (TR): Ms J Saunders

Solicitor for the accused: Vandenberg Reid

Counsel for the accused (VG): Mr C Everson

Solicitor for the accused: Baker Deane & Nutt

Date of hearing: 18, 19, 20 February 2004

Date of judgment: 19 March 2004