Facing inevitable defeat

Every barrister knows the difficulty of presenting a hopeless case. Especially so in criminal law, where the likelihood of settling (pleading guilty) is small. Sometimes, dissenting judgments can give clues about how the best possible arguments can be advanced.

A disagreement about whether there had been substantial defects at trial which went to the root of the proceedings occurred in Ayles v R [2008] HCA 6 (28 February 2008). The minority, Gleeson and Kirby JJ jointly took an approach similar to that of the House of Lords in R v Clarke (blogged 7 February 2008), on the issue of whether a requirement for a note on the information or indictment of an amendment to a charge is a mandatory requirement. The dissent also concerned whether a statutory provision allowed the judge to amend the charge without an application for this having been made by the prosecutor.

In Ayles the majority held that in the particular circumstances of this case there had been no unfairness to the accused in the procedure that had been adopted to amend the charge. This indeed seems correct, as the only material factual dispute in the case had been resolved in this judge-alone trial by acceptance of the accused’s version. Also, the difficulty with the charge had been the subject of discussion during the hearing and defence counsel had not taken up an opportunity to object to an amendment which was of the kind that the judge eventually made in the course of her judgment. There had been a change in the statutory provision which needed to be specified, the relevant one depending on what was the date of the offending. Apart from the section number, the change was not relevant to the facts of the case. As Kiefel J (with whom Gleeson CJ and Heydon J agreed) said at para 75, the defence could have had no objection to the amendment during the hearing. The relevant statutory provision, s 281(2) of the Criminal Law Consolidation Act 1935 (SA), did not limit the judge to acting only on an application for amendment, but she could amend the charge on her own initiative. Further, as a matter of interpretation, the particular provision requiring a note of the amendment to be made on the information or indictment, s 281(3), was not a condition for the validity of an order for amendment.

The minority in Ayles held that the noting of the amendment on the information or indictment was imperative, not directory. Since it was fundamental that a person cannot be convicted of an offence that is not alleged against him, there had been a basic defect in the proceedings. R v Clarke [2008] UKHL 8 was approved, particularly its overruling of R v Ismail (1990) 92 Cr App R 92. Further, the judge should not have amended the charge without an application from the prosecutor, because it is necessary to keep separate the functions of judge and prosecutor. Citing Gaudron and Gummow JJ in Maxwell v The Queen [1995] HCA 62 at para 26 for the proposition

“The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”

they continued (para 37):

“The last-quoted sentence is of fundamental importance. It affords a most important principle that lies at the head of the resolution of this appeal. A decision to amend an information so as to add or substitute a new charge is plainly a decision about the particular charge to be laid or prosecuted, yet any suggestion that a court could – let alone should – decide for itself the offences with which a defendant is to be charged would be inimical to the judicial process.”

Applying R v Weiss [2005] HCA 81 (blogged here 16 January 2006) the minority held that these substantial defects went to the root of the proceedings and the proviso could not be applied.

It is surprising that there should be such a sharp difference between the interpretations of the legislation. Here are the relevant subsections of s 281:

“(2) When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.

“(3) When an information is so amended, a note of the order for amendment shall be endorsed on the information and the information shall be treated, for the purposes of the trial and all proceedings in connection therewith, as having been presented in the amended form.”

The majority’s interpretation seems unanswerable: subsection (2) does not require an application to be before the judge before an order for an amendment can be made, and subsection (3) applies upon the information being amended and is not a condition for that amendment. By way of contrast, in Clarke the relevant legislation had provided: “where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly”; that is, the signing is the act that makes the document an indictment and so is an essential condition for the existence of the indictment.

Looking at the case from a distance, I imagine that the real unfairness (although that is not quite the right word) lay in the accused being denied the opportunity to enter, and take sentencing credit for, an early guilty plea to a properly framed charge. That matter could have been sorted out at trial, but defence counsel chose not to make submissions on the point, and there could well be proper reasons for not doing so. Having played the cards that way, it was too late on appeal to ask for another deal.

The minority judgment in Ayles is a lesson in how to endeavour to meet an overwhelming argument: go to the fundamentals (here, procedural fairness and the limits of proper judicial function) and argue that the case is one of substantial miscarriage of justice. This may, as here, involve a retreat into principle and away from the facts and particular circumstances. Although not a victory, it was a dignified defeat.


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