Mackay v R [1977] HCA 22; (1977) 136 CLR 465 (4 May 1977)

HIGH COURT OF AUSTRALIA

MACKAY v. THE QUEEN [1977] HCA 22; (1977) 136 CLR 465

Criminal Law

High Court of Australia
Barwick C.J.(1), Gibbs(1), Mason(1), Jacobs(2) and Murphy(3) JJ.

CATCHWORDS

Criminal Law - Practice - Rape - Separate acts - Indictment - Two accused charged in indictment with committing separate offences - Court of Criminal Appeal - Power to dismiss appeal if no substantial miscarriage of justice appears to have occurred - Criminal Code (Q.), ss. 568 (6), 668E (1) proviso*.

* The proviso to s. 668E (1) of the Criminal Code (Q.) states: "Provided that the Court may, notwithstanding it is of the opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

HEARING

Sydney, 1976, August 13.
Melbourne, 1977, May 4. 4:5:1977
APPLICATION for special leave to appeal from the Supreme Court of Queensland.

DECISION

1977, May 4.
The following written reasons for judgment were published: -
BARWICK C.J., GIBBS AND MASON JJ. The applicant, Robert Thomas Mackay, and an indictment whose words,so far as material, were as follows: "that on 11th December 1974 at Brisbane Robert Thomas Mackay and Larry Dwyer committed rape upon one Gloria Noelene Teat." Both were convicted. The applicant, having unsuccessfully appealed to the Court of Criminal Appeal, sought special leave to appeal to this Court. (at p467)

2. The evidence presented at the committal proceedings and the case presented by the Crown at the trial, so far as relevant for present purposes, was as follows. The prosecutrix accepted an offer by the applicant to drive her to her home from a hotel where they had been drinking. Two other youths were in the car - Dwyer and one Brugle who was the driver. As the car was about to move off, or was just moving off, one of the youths said that they would go and have a hamburger. The prosecutrix said that she didn't want a hamburger, she just wanted to go home, and attempted to get out of the car but Dwyer pulled the door shut and held it closed. The car was driven into the bush. There the other two youths got out of the car and walked away leaving the applicant and the prosecutrix together in the car. It was then that the applicant raped the prosecutrix. The other two youths returned. The applicant got out of the car and Brugle got in and attempted, unsuccessfully, to rape the prosecutrix. Then Dwyer took Brugle's place in the car and committed the rape of which he was convicted. Thereafter the prosecutrix was driven home in the car. (at p467)

3. The Crown case was that the two accused persons had committed separate offences; notwithstanding the form of the indictment, it was not the Crown case that a joint offence had been committed. The learned trial judge summed up accordingly and at no time suggested that either accused could be found guilty because he had done an act for the purpose of enabling or aiding the other to commit the offence of rape, or because he had aided the other in committing the offence or because he had counselled or procured the other to commit the offence (see s. 7 of the Criminal Code (Q)). The jury can have had no doubt that a conviction was sought against each accused because he had actually done the act which constituted the offence of rape. (at p468)

4. At the trial no objection was taken to the form of the indictment although both accused were represented by counsel. Having regard to the evidence at the committal proceedings, counsel evidently throughout treated the indictment as charging separate offences and not an offence jointly committed. The defence was conducted on that basis. However, on appeal to the Court of Criminal Appeal it was contended that the indictment as framed charged a joint offence and that it was not open to the jury to consider separate acts of rape by the two accused. The Court of Criminal Appeal did not find it necessary to decide whether the indictment was capable of being read as laying joint and several charges. It was conceded before them that if the accused had been charged with separate offences they could have been tried together under the provisions of s. 568 (6) of the Code, and it was held that in those circumstances it was clear that no substantial miscarriage of justice had occurred. The Court therefore applied the proviso to s. 668E (1) of the Code and dismissed the appeal. Their Honours however added that it would be desirable as a general rule that offenders should be charged separately and not jointly if it were desired to take advantage of the provisions of s. 568 (6). (at p468)

5. The only grounds of appeal which it was sought to argue before us were the following:

"1. That the said Court of Criminal Appeal erred in law in
holding that it was competent on an indictment
alleging a joint act of rape by the Applicant and one
LARRY DWYER on one GLORIA NOELENE TEAT and
where the evidence purported to establish two several
acts of rape for the Applicant to be convicted of the
offence of rape.
2. The said Court of Criminal Appeal erred in law in
holding that it was an appropriate case to apply the
proviso contained in s. 668E of the Criminal Code." (at p468)

6. Mr. Townsley, who appeared for the applicant, candidly admitted that the only way in which the applicant could have suffered any prejudice as a result of what occurred at the trial was in being deprived of the possibility of being tried separately from Dwyer. He withdrew the concession that the case fell within s. 568 (6) and submitted that if the offenders had been charged with separate offences they could not properly have been tried together. Since Dwyer had made a confession to the police, and the applicant had not, it was in his submission prejudicial to the applicant to be tried together with Dwyer. (at p468)

7. The questions whether a person jointly charged with another with an offence can be convicted on a finding that he committed the offence independently, and whether separate offences may be tried together, in Queensland depend not on the common law but on the provisions of the Code. The governing rule is stated in the introductory words of s. 567: "Except as hereinafter stated, an indictment must charge one offence only, and not two or more offences". To that rule the Code provides exceptions. That which is material to the present case is provided by s. 568 (6) which reads as follows:

"Any number of persons charged with committing different
or separate offences arising substantially out of the same
facts or out of closely related facts so that a substantial part
of the facts is relevant to all the charges may be charged in
the same indictment and tried together."

Before 1964 it was not permissible to try jointly persons alleged to have committed separate acts of rape even though the offences arose out of closely related facts: Reg. v. Potter and McKenzie (1959) Qd R 378 ; Reg. v. Warry and Kelly (1959) Qd R 486 . Under the practice then prevailing the victim of a mass rape was subjected to the ordeal of repeated cross-examination, which tended to increase in length from trial to trial, since at every trial there would be available to counsel one more transcript of evidence given by the prosecutrix to be explored for inconsistencies. There were other disadvantages as well: see Reg. v. Phillips and Lawrence, per Hart J. (1967) Qd R 237, at p 277 . However, in 1964 the Code was amended by adding subs. (6) to s. 568, and since that time it has been common in cases of mass rape to try the offenders together. Of course that is only permissible if the conditions stated in the section are fulfilled. In the present case there can be no doubt that the separate offences of the applicant and Dwyer arose out of closely related facts; to use the words of Reg. v. Russell, Szann and Patterson (No. 2) (1965) Qd R 334, at p 337 , "they were related in time, place, the nature of the crime, the identity of the victim and the circumstances in which the offence was allegedly committed". It is equally clear that a substantial part of the facts out of which each offence arose, which have been outlined above, was relevant to both charges. It was therefore competent to join charges against both accused in the one indictment and to try them together. If the trial judge had been requested to order separate trials it would have been a proper exercise of his discretion to refuse such application, but of course he was never asked to do so. (at p469)

8. In these circumstances it is apparent that the Court of Criminal Appeal was correct in thinking that no substantial miscarriage of justice had occurred. The accused were properly tried together and there was no room for any misapprehension on the part of the jury as to the nature of the Crown case against each. If the indictment was defective the defect was no more than a technicality. The contention that the Court of Criminal Appeal was wrong in applying the proviso cannot be made out and it would therefore have been a futility to grant special leave to appeal. (at p470)

9. Once this conclusion is reached it is not necessary to consider whether the indictment was correct in form or to discuss the conflicting decisions in Reg. v. Sperotto (1970) 92 WN (NSW) 223 and Reg. v. Merriman (1973) AC 584 . (at p470)

10. For these reasons the application for special leave to appeal was refused. (at p470)

JACOBS J. Although I agree that special leave to appeal ought to be refused, I think that it is important to make it clear that, if these were independent rapes alleged against each co-accused, there was an irregularity in the form of the indictment. A single charge of rape preferred against two persons is a charge that jointly they committed rape. It is not a charge that each severally committed an independent act of rape. In the latter case two charges, one against each, are the only appropriate form of indictment; s. 568 (6) of the Queensland Criminal Code then allows both accused to be charged in the same indictment and to be tried together provided the conditions exist which are prescribed in the sub-section. The sub-section has nothing to say on the need for separate charges in respect of different or separate or independent acts constituting offences. What was said by Philp J. in Reg. v. Warry and Kelly (1959) Qd R 486 remains correct despite the enactment in 1964 of s. 568 (6). (at p470)

2. It may be a question whether a succession of rapes committed by a number of persons can be regarded as one rape committed jointly or is necessarily a number of independent rapes committed jointly or severally. In approving Reg. v. Fenwick (1953) 54 SR (NSW) 147 and in overruling Reg. v. Holley (1969) 53 Cr App R 519 , the House of Lords in Director of Public Prosecutions v. Merriman (1973) AC 584 implicitly assented to the view that a succession of rapes could be so interdependent as to constitute only one offence in the way which their Lordships there held a succession of stabbings to be capable of constituting one offence of wounding with intent to do grievous bodily harm. In New South Wales in Reg. v. Sperotto (1970) 92 WN (NSW) 223 the New South Wales Court of Criminal Appeal reversed its earlier view. However, even if it be accepted as established by Director of Public Prosecutions v. Merriman (1973) AC 584 that a number of rapes may be so inter-dependent as to constitute one act of rape with which a number of persons may be charged, it remains true that a single charge must relate to an act or series of acts constituting one offence, and not to a multiplicity of independent acts. The facts in Reg. v. Fenwick (1953) 54 SR (NSW) 147 and Reg. v. Holley (1969 53 Cr App R 519 were different from those in the present case and were capable of the interpretation that one offence was committed. There was one continuous incident in each case. See Reg. v. Fenwick (1953) 54 SR (NSW), at p. 156 and generally the facts in Reg. v. Holley (1969) 53 Cr App R 519 . It seems to me that in the present case there were two distinct and independent acts of rape, one committed by each accused in the absence of the other, and a joint count strictly could apply to one only of those acts. Therefore there was an error in the form of the indictment. (at p471)

3. Such an error in the form of the indictment should not occur but it is quite clear that in the present case there was not any prejudice to the applicant. The trial judge would not conceivably have ordered separate trials of the two accused if separate charges had appeared in the indictment. Very importantly, there was no question of the applicant being charged with two offences - with his own act of penetration on the one occasion and with aiding and abetting his co-accused on another occasion. If that had been maintained by the Crown during the course of the trial or even indirectly suggested in any way to the jury the position would be very different. The jury knew precisely what it had to determine, namely, whether the accused on one occasion committed rape and whether his co-accused on a separate occasion raped the same female, the only association between the two acts being proximity of time and place and other closely related facts leading up to the separate acts. In the fullest sense the defect in the indictment was one of form only to which it was quite appropriate to apply the proviso to s. 2 (1) of the Criminal Appeal Act 1968. (at p471)

4. Moreover, it is not correct that on this joint charge, even if it was bad for duplicity because it alleged two distinct and independent acts, the present applicant could not be convicted of the rape constituted by his own act of penetration. If the charge was technically defective for duplicity it is not correct that any conviction on the charge was bad. The prosecution could have been required to elect: Reg. v. Hurse and Dunn (1841) 2 M & Rob 360 (174 ER 316) and in the absence of election the charge must be read as a charge on the happening first in point of time, that is to say, the rape committed by the applicant. R. v. Messingham and Messingham (1830) 1 Moo 257 (168 ER 1263) ; Reg. v. Dovey and Gray (1851) 4 Cox CC 428 . In Reg. v. Scaramanga (1963) 2 QB 807, at p 815 these cases were distinguished as cases on receiving where all the property had been received by one accused and therefore the count against that accused for that receiving was good. But, with respect, this explanation does not explain the right in the prosecutor to elect: Reg. v. Hurse and Dunn (1841) 2 M & Rob 360 (174 ER 316) . See also R. v. Lynn & Debney [1824] EngR 950; (1824) 1 Car & P 527 (171 ER 1302) . I respectfully prefer the temporal explanation of the decisions, an explanation which I take to have been accepted by Lord Diplock in Director of Public Prosecutions v. Merriman (1973) AC at p 608 , in preference to the explanation propounded in Reg. v. Scaramanga (1963) 2 QB 807, at p 815 . This temporal rule applied in R. v. Messingham and Messingham (1830) 1 Moo 257 (168 ER 1263) and Reg. v. Dovey and Gray (1851) 4 Cox CC 428 is an old technical rule but it is apt to answer a wholly technical objection. The applicant would never even in the days of the greatest technicality in the framing of indictments have had his conviction quashed. (at p472)

MURPHY J. Special leave should be granted in order to consider the question whether the trial miscarried because the case actually tried was not that on which the applicant was indicted and convicted and to clarify the judicial differences of opinion on the question of convicting persons of separate offences on an indictment for a joint offence (see Reg. v. Fenwick (1954) 54 SR (NSW) 147 which was overruled in Reg. v. Sperotto (1970) 92 WN (NSW) 223 ; Reg. v. Sekyer (1962) 133 Can CC 98 ; and Reg. v. Merriman (1973) AC 584 which, in relying on Fenwick, did not refer to its overruling in Sperotto). (at p472)

2. It is fundamental to the regular administration of justice that a conviction should accurately reflect the offence for which the accused was indicted and tried. In this case it does not. (at p472)

3. A conviction on one joint count of rape (when two separate rapes are relied upon) does not disclose which rape the accused was convicted of, let alone whether the conviction was as principal offender or as aider. (at p473)

4. The applicant, Mackay, was indicted and, it seems, convicted of the commission of a rape jointly with Dwyer, although the way the trial was conducted and the evidence presented was as if he and Dwyer had been charged separately with separate and distinct rapes, that is, without any participation by one in the rape by the other. (at p473)

5. Suggestions were made that the convictions of Dwyer and Mackay were of two quite separate rapes but there is nothing before us to show that the jury, when giving their verdicts, convicted them of anything but what was charged in the indictment. So far as it appears, the effect of the verdict was that the applicant was found guilty of having raped the prosecutrix, the rape being the same rape as that for which Dwyer was convicted. Yet it was conceded that there was no joint offence. (at p473)

6. This course of procedure is fundamentally wrong. (at p473)

7. If separate and distinct rapes are alleged, there should be separate counts, even when the accused are tried together. Counsel for the applicant contended that the accused should have been tried separately, although s. 568 (6) of the Criminal Code (Q.) permits the joinder in one indictment of charges against more than one accused where the offences arise out of the same circumstances or are reasonably connected. This case was within the scope of s. 568 (6). The question of an application before (or even after the commencement of) the trial for separate trials of charges of the separate offences by the accused did not arise, because they were not charged with separate offences. (at p473)

8. The procedure in this case was similar to that in Fenwick (1954) 54 SR (NSW) 147 , which was overruled (in my opinion, correctly) by the New South Wales Court of Criminal Appeal in Sperotto (1970) 92 WN (NSW) 223 . In Sperotto there was evidence of participation by a number of the accused in the rapes by others. That case illustrated and clarified the fundamental irregularity of the procedure. If a single verdict is given in respect of each accused (which could be arrived at by one or a combination of quite different offences) it is impossible to know of what the accused is actually convicted. (at p473)

9. The Crown contended that under the form of indictment used in this case, it was entitled to have the case conducted as it was. Therefore the irregularity should not be passed over. There should have been two counts, each naming one of the accused. If it was desired to charge each with aiding the other in the rapes, then each count should have included both names but it should have been made clear either in the indictment (or in the particulars) who was charged in the count as the principal offender. If regularity in indictments and convictions is not observed, the protection against double jeopardy (advanced by pleas of autrefois acquit and autrefois convict) becomes difficult to invoke. The basis of sentencing and considerations of parole, probation and executive clemency become unsure. (at p474)

ORDER

Application for special leave to appeal refused.