Schoffel v R

1. [1]

   LEEMING JA: The appellant, Mr Brett David Schoffel, was tried by the District Court constituted by a Judge sitting alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW). He pleaded not guilty to one charge pursuant to s 95(1) and one charge pursuant to s 319 of the Crimes Act 1900 (NSW) on an indictment drafted in the following terms:

2. [2]

   The trial occupied parts of Monday to Thursday 13-16 September 2021, and Monday to Wednesday 20-22 September 2021. It took place entirely by audio-visual link, because of the pandemic, and doubtless would not have taken so long if it had been conducted with all participants present in the courtroom. As will be seen, it was a straightforward trial. The primary judge reserved and delivered judgment on 6 October 2021. Her Honour concluded that she was satisfied beyond reasonable doubt that the Crown had established the essential elements for each offence and found the appellant guilty on both counts.

3. [3]

   On 16 December 2021, the primary judge sentenced the appellant to imprisonment for a term of four years and one month, backdated to 11 June 2020, with a non-parole period of two years and eight months. The appellant became eligible for parole on 10 February 2023. A notice of appeal was not filed until 21 December 2022. By the time this appeal was heard, on 15 March 2023, the appellant had been granted parole.

4. [4]

   The single ground on which the appellant appeals is:

5. [5]

   The parties proceeded on the basis that the appeal lay as of right because it involved a question of law alone within the meaning of s 5(1)(a) of the Criminal Appeal Act 1912 (NSW). That accords with the statement, albeit for the purposes of the proviso, that a failure to comply with s 133(2) is “to make a wrong decision on a question of law”: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27], and with the course taken by this Court in Wade v R [2018] NSWCCA 85 at [6]. The central issue on this appeal was whether there was a breach of s 133(2) of the Criminal Procedure Act by the failure to identify the legal elements of each offence in the course of her reasons. If the answer to that question is “yes”, a further issue arises as to whether the proviso in s 6(1) of the Criminal Appeal Act applies.

6. [6]

   It is necessary to summarise the factual background of this appeal, because the issues at trial and the nature of the evidence adduced bear directly upon whether s 133(2) was breached and upon the availability of the proviso.

Factual background

1. [7]

   The Crown’s case in relation to the first count was that the complainant, Mr Adam Maher, attended an ATM at Kingswood at around 4am on 13 February 2020 in the company of the appellant and two other persons, Mr Jeff Groves and Ms Danielle McGuire. The complainant withdrew $150 from his ANZ bank account using his ATM card (I shall follow the language of the indictment and refer to it as the “ANZ card”) and handed $100 to Ms McGuire. Subsequently, the appellant was alleged to have grabbed the complainant and demanded his ANZ card. After the complainant refused, the appellant dragged the complainant down an alleyway and assaulted him. The complainant reached into his back pocket and threw his wallet, which included the ANZ card, away from his body only after the appellant threatened to stab him. The appellant was shortly thereafter apprehended by the police, with the complainant’s ANZ card being found nearby.

2. [8]

   The Crown’s case in relation to count 2 was that, in around April 2020, the complainant saw the appellant near the same Kingswood ATM where the alleged original robbery had occurred. It was said that the appellant told the complainant that he would pay the complainant if he dropped the charge against him.

3. [9]

   The primary judge found that the complainant was an “honest and reliable witness”. This was central to her Honour’s finding that the Crown had established the essential elements for each of the offences. It is necessary to summarise his evidence in some detail.

4. [10]

   The complainant said that on 12 February 2020, the day before the incident, he received a telephone call from Ms McGuire saying that he owed her $100, which he agreed that he did. Telephone records of three calls between him and Ms McGuire formed part of the reasons relied on by the primary judge for rejecting Ms McGuire’s evidence.

5. [11]

   Ms McGuire went to collect the money that evening from “Bob’s” garage where the complainant resided, but the complainant told her he would not have the money until 4am the next morning when he would receive funds. Ms McGuire returned the following morning, accompanied by Mr Groves and the appellant. The complainant said that the four of them walked to the ATM at Kingswood at around 4am. When they reached the ATM, he withdrew $150 from his ANZ bank account using his ANZ card. A bank statement was tendered which showed money being deposited into the complainant’s account by Centrelink and then a $150 withdrawal from the Kingswood ATM, each on 13 February 2020. CCTV footage captured the complainant walking behind the appellant and Mr Groves, but Ms McGuire was not in the footage. The complainant said this was because she was standing about 10 metres away.

6. [12]

   After withdrawing the $150, the complainant said that he handed the $100 he owed to Ms McGuire and put the other $50 in his wallet. Ms McGuire then walked away. In cross-examination, when it was put to the complainant that he gave Ms McGuire only one $50 note, he said that he did not recall doing so, nor did he recall Ms McGuire or the appellant asking him to repay more money. The complainant said that thereafter the appellant grabbed him by his throat and demanded his ANZ card, saying “give me your ATM card”. After refusing to do so, the complainant was dragged down an alleyway where he was assaulted whilst demands continued to be made for his ANZ card. In cross-examination, the complainant denied provoking the appellant by calling him a paedophile, and further denied hitting the appellant in any manner other than in self-defence.

7. [13]

   The complainant said he was dragged further into a car park behind a pharmacy, where the majority of the assault took place. The assault comprised punches to the face, kicking, as well as the appellant picking the complainant up and slamming him into the ground. CCTV footage captured the majority of the assault. The complainant said that he did not hand over his ANZ card until the appellant threatened to stab him, and that when this occurred he reached into his back pocket, took out his wallet and threw it away from his body towards the carpark. When it was put to him in cross-examination that the ANZ card fell from his pocket, the complainant said he was certain that it was inside his wallet.

8. [14]

   The appellant demanded that complainant provide his PIN while the appellant continued to restrain him. The complainant said that he was able to escape and ran up the alleyway, across the Great Western Highway and called triple-0 from his mobile phone. Both a recording of the triple-0 phone call and a transcript of that call were in evidence before the primary judge. The call was made at 4.18am, and the transcript recorded the complainant saying that “They just mugged me and took me wallet, and bashed me”, that “he was gonna stab me if I didn’t give him me PIN number” and that he “threw me wallet”.

9. [15]

   The events giving rise to the perverting the course of justice offence was said to have occurred around April 2020. The complainant said that he saw the appellant at the same Kingswood ATM where he was robbed, where he told the complainant that he would pay the complainant money if he dropped the charge against him. The complainant said that he agreed in order to get the appellant to leave him alone. When it was put to the complainant that he was making up this evidence, he said he was “telling the truth”, and that:

10. [16]

    The complainant only informed the police of this exchange at a later date, when the officer-in-charge called to provide an update on the case. That officer gave evidence that this discussion occurred in the first week of July. CCTV footage was not obtained in respect of the interaction the subject of count 2.

11. [17]

    The primary judge found Mr Groves to be a witness whose evidence was of “no assistance”, and Ms McGuire to be “not a reliable witness”. It is not necessary to outline their evidence, or the bases on which the primary judge rejected it, as no challenge was made to her Honour’s findings.

12. [18]

    Evidence was also given by three police officers. The evidence given by the first officer on the scene, and that given by the officer-in-charge of the offence, is of little relevance to this appeal, and need not be summarised. The evidence of the third, Senior Constable Pignone, bears upon the issues to which the first count gave rise.

13. [19]

    Senior Constable Pignone was on patrol when a radio report of the alleged offence and a description of the offender was broadcast at approximately 4.20am. He saw a man wearing a red cap and black clothes walking south on Parker Street towards Great Western Highway. When the police vehicle stopped, the appellant started running north on Parker Street and was chased by the officer. The police officer said that as he caught up to the appellant on Barber Avenue and was about to grab him, “[the appellant] has thrown his hat and a bankcard into the front yard of 16 Barber”. In cross examination, he denied that he did not see the appellant throw the items into the garden of 16A Barber Avenue. The officer said he took a mental note of the location, then continued to chase the appellant who ran into a thick bush.

14. [20]

    Shortly after the appellant was arrested, Senior Constable Pignone said that he returned to the front yard of 16A Barber Avenue and took photographs of the hat and the ANZ card before collecting them. The ANZ card was in the complainant’s name. The red Nautica cap was identified as the one the appellant threw away while being chased. DNA consistent with being from the appellant was identified on both items.

15. [21]

    The photographs taken by the Senior Constable were admitted into evidence. In the form reproduced in the appeal books the items cannot be seen, and that seems also to have been true of the photographs which were tendered at trial. The timestamps are legible and show that they were taken at 4.58am.

16. [22]

    In cross-examination, Senior Constable Pignone explained that it was his general practice to take photographs in situ. However, he accepted that it was possible that he took the photographs after retrieving the items, but he denied that a female officer had come up to him with the items remarking that she had found them. In re-examination, the officer clarified that he took the photos to show where the items were found and to identify the premises where they were thrown.

17. [23]

    Police CAD (Computer Aided Despatch) records were produced which provided time stamps for certain events that occurred on the morning of the 13 February 2020. The records disclosed that:

    1. (1)

       the foot pursuit of the appellant started at 4.36am;

    2. (2)

       the appellant ran into a unit complex at 4.38am;

    3. (3)

       the appellant was arrested by Senior Constable Pignone at 4.50am;

    4. (4)

       the officer took the photographs outside 16A Barber Avenue at 4.58am, and

    5. (5)

       the appellant was searched at 5.00am before he left for the police station at 5.08am.

18. [24]

    The appellant participated in an electronically recorded interview shortly after the alleged offence. In it, he denied being in the company of anyone, denied going up to Great Western Highway, denied being anywhere near the Kingswood shops that morning, denied knowing the other two persons involved (ie, Mr Groves and Ms McGuire) and denied being involved with the allegations at all when the police detailed them to him. Further, when he was shown a photograph of the red cap which the police recovered, he denied owning such a cap, stating that he only had one blue and two black caps. The appellant said that he had won close to $2,000 at Tattersalls the previous day and had $100 in his wallet. He said he was on his way to buy ice from his dealer when he was caught by the police, and that he ran because he heard someone saying words to the effect of “I’ll shoot you”.

19. [25]

    The appellant gave evidence at trial, and retreated from this version of events in his testimonial evidence. He said he lied in his electronically recorded interview because he did not want to name the people he was with, and that he was high on ice during the interview and didn’t “really remember even giving an interview”. He said that he denied going to the ATM because he thought he was being set up with a robbery as he was shown a bankcard that was not his.

20. [26]

    In his testimony, he said that he went to Bob’s house (the house where the complainant resided downstairs in the garage) where numerous people were gathered, including the complainant, Mr Groves and Ms McGuire. He said that people, including himself, were using the drug ice while there. He referred to the complainant as “Mahery” (or “Marie”), and in cross-examination he noted that he had seen the complainant around 15 times at Bob’s house.

21. [27]

    The appellant gave evidence that he, Mr Groves, Ms McGuire and the complainant went to the Kingswood shops an initial time. He said that he was relieved to leave the garage because someone there had called him a paedophile. The four of them then returned to the garage and sat around for approximately an hour, before walking back to the Kingswood shops after Ms McGuire said they had to go get some money.

22. [28]

    On this occasion, the appellant said that the complainant and Ms McGuire were discussing money on the way to the ATM. The complainant then used the ATM and went back to Ms McGuire, where an argument ensued between those two regarding money. The appellant said that this is when he got involved, telling the complainant to “Just give her the fucking money”. It was the appellant’s evidence that the complainant then begun antagonising him in an aggressive way and called him a “paedophile”, which led to a physical altercation breaking out.

23. [29]

    The appellant said he could not remember who hit who first, but he indicated that it was a back and forth affair, saying that “we were sort of pulling at each other”, “I was telling him to let me go” and “I hit him … he [then] tried to hit me and fell over”. He insisted that when the complainant went to the ground in the CCTV footage that it was because he threw a punch and missed, and denied that he threw the complainant to the ground. He also gave evidence that the complainant continued to antagonise him, such as calling him a “fucking spider”. In cross-examination, he agreed that he was at times actively pursuing the complainant during the altercation, but denied ever running after him. When shown CCTV footage of him running after the complainant, he did not agree that he was chasing after him.

24. [30]

    The appellant further said that he never asked the complainant for his ANZ card or for a PIN. When the fight stopped, he said that he went to pick up the items that fell out of his pocket during the fight, which included the ANZ card that he presumed to be his as his card always fell out of his phone cover. In cross-examination he clarified that he did not actually recall picking up the ANZ card, but he presumes that he did. The primary judge recorded that the CCTV footage showed the appellant bending down twice to pick up items from the ground.

25. [31]

    The appellant left the scene as he was concerned that people would come after him. He said he heard the screech of tyres while he was walking down the street and instantly ran away assuming it to be “Bob and the rest of them”. While he was running he recalled hearing someone saying “Stop running or I’m gonna fucking shoot”. The appellant said he continued to run away through some residential housing and jumping over a gate, and shortly thereafter the police arrived and he was arrested. He said that he did not throw his cap away and did not throw the ANZ card away while he was being chased. When the police arrived, he said that a female officer had the two items and said “Look what I found. Is this yours?”

26. [32]

    In cross-examination, the appellant denied owning a red Nautica cap, and denied that the police had shown him a red cap and asked if it was his during the interview. He tried to justify this upon the basis that he only owned an orange cap, and the cap that he was shown by the police was red, before ultimately agreeing that he had lied to the police about the cap because he thought he was being set up.

27. [33]

    In relation to count 2, the appellant admitted to seeing the complainant a few times after he was arrested, but he denied asking him to drop the charges or offering to pay him.

The primary judge’s reasoning

1. [34]

   The primary judge commenced her reasons by reciting each of the two counts on the indictment verbatim, and by giving herself relevant directions. No complaint was made about the latter, while the Crown placed reliance on the former as going to the satisfaction of the obligation in s 133(2) of the Criminal Procedure Act.

2. [35]

   Some 30 pages of the transcribed reasons given by her Honour outlined in considerable detail the evidence before the Court. After briefly summarising the addresses of counsel, the final six pages of the transcript of her reasons were directed to the determination of the case. Most of this was directed to the credibility of witnesses, which after all was the central issue at trial.

3. [36]

   As noted above, the primary judge did not take into account Mr Groves or Ms McGuire’s evidence in determining the issues in the trial, as she found the former not to be a credible witness and the latter to not be a reliable witness. Her Honour found Senior Constable Pignone to be a credible witness, and, accordingly, that the appellant had discarded the red cap and ANZ card which he had collected. The primary judge observed that the timing from the CAD records was consistent with his evidence and sequence of events, and that although the items were not clearly visible in the photographs, the fact that he had gone to the effort of taking the photographs showed that he understood the significance of the ANZ card being in the complainant’s name.

4. [37]

   Turning to the complainant’s and the appellant’s evidence, the primary judge set aside the appellant’s evidence on the basis that he was not a credible witness. Her Honour found that the appellant would lie to gain an advantage, this was demonstrated by several matters, including the appellant denying matters that were clearly shown in the CCTV footage (for example, denying that he threw the complainant to the ground), as well as him lying about owning the red cap and his efforts to justify his denial of owning a red cap by saying that the cap he owned was orange.

5. [38]

   The primary judge noted, at the outset of her reasons and several times throughout, that the case turned on accepting the complainant as a witness of truth: “The [appellant] cannot be found guilty unless I am satisfied that the evidence of the complainant is both honest and reliable”. Her Honour was so satisfied, noting that she was of the opinion “that the complainant was a witness of truth who was doing his best to give an honest account of events and that his evidence was honest, accurate and reliable evidence”. This was based on various matters including his demeanour, and the consistency between his description of events and those shown in the CCTV footage and his account in the triple-0 call (which supported the credibility of his account given at trial). While some matters could not be established, such as the CCTV footage not showing the complainant throwing his wallet, the primary judge found that the poor quality of the CCTV recording was such that it did not cast doubt upon the complainant’s version.

6. [39]

   Having set aside the evidence of Mr Groves, Ms McGuire and the appellant, and having found the complainant to be a credible witness and his evidence honest and reliable, then primary judge turned to her conclusion:

7. [40]

   Two points may be noted. First, the evaluation of the evidence, and how it bore upon her Honour’s assessment of the credibility and reliability of the testimonial evidence, was careful and fully reasoned and not subject to any complaint. Secondly, the final words of her Honour’s reasons were the first time any reference had been made expressly to the legal elements of each offence at any stage of the judgment.

Arguments in this Court

1. [41]

   Section 133 of the Criminal Procedure Act provides as follows:

2. [42]

   The appellant argued that s 133(2) was breached by the primary judge as the essential legal elements of either offence “were never set out in the judgment; or otherwise discussed, considered and/or analysed in the judgment”.

3. [43]

   A solicitor within the office of the NSW Director of Public Prosecutions sent an email to the Associate to the primary judge dated 13 September 2021 (which was the first day of the trial) attaching an “elements document” which had been agreed between the parties. The agreed elements document noted the elements of each offence as follows:

4. [44]

   Counsel for the appellant who appeared in this Court had not appeared at trial, and his written submissions appear to have been drafted without knowledge of that document (which had not been marked or tendered). Counsel accepted in oral address that the document reflected the agreed positions between the parties as to the elements making up each offence that arose during the course of the trial. But it was said that it did not alter the fact that s 133(2) had been breached because, irrespective of the agreed position of the parties, the primary judge failed to identify the elements of each offence in her reasons for judgment. Counsel for the appellant accepted that the primary judge may have applied the correct legal elements. But the issue was that without, at the minimum, a bare statement of those elements in the judgment, whether that had occurred became a matter of “speculation”. Reliance was placed on several decisions of the High Court discussing the requirements for a judge sitting in a Judge alone trial, including Fleming, AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 and DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, to each of which I shall in due course return.

5. [45]

   The Crown accepted that a judgment in a trial by Judge alone must include, expressly or by implication, the principles of law to be applied by the judge, including the essential elements of the offence. But that did not mean that the primary judge had breached s 133(2). Two propositions were relevant to this. First, it was permissible to look at whether the primary judge’s reasons included the essential legal elements to the two offences by implication for the purposes of s 133(2), relying on the High Court’s observations in Fleming at [30] (which is reproduced below). Secondly, consistently with the approach adopted by the High Court in AK, the requisite content and detail of the reasons for judgment varied depending upon what issues of fact and/or law were in dispute in a particular case.

6. [46]

   The Crown submitted that when those two propositions were accepted, the primary judge’s reasons did not breach s 133(2). That was because the primary judge’s reasons contained everything necessary to satisfy all the elements of both offences, in circumstances where there was no dispute between the parties as to what they were.

7. [47]

   By way of fallback, the Crown’s maintained that if there were a breach of s 133(2), then the proviso in s 6(1) of the Criminal Appeal Act would apply. Section 6(1) is as follows (with the proviso emphasised):

8. [48]

   It was said that in a case such as this — where there was a narrow factual basis for each count which was not challenged by the appellant — the error was not one which was so serious as to go to the root of the proceedings.

9. [49]

   The appellant submitted that the proviso should have no application. It was said that a failure to include the essential legal elements of an offence — much like the failure to direct a jury in open court regarding the legal elements of an offence — was such a fundamental failure that it resulted in a serious miscarriage of justice.

The issues in dispute and the limited scope of appeal

1. [50]

   As noted above, the parties agreed as to the essential legal elements of both counts. This was recorded in the agreed elements document that was provided to the court on the first day of the trial. The transcript recorded this:

2. [51]

   All that was in dispute on the first count was a narrow factual issue: was violence done towards the complainant in the context of a robbery, or was it done because the complainant had antagonised him. The essential issue was whether the complainant was to be believed, and if so whether his evidence was sufficient to establish the elements of the offences to the criminal standard, or whether the appellant’s evidence raised sufficient doubt as to what had occurred.

3. [52]

   In relation to the second count, it stood or fell on the basis of the complainant’s testimonial evidence, which the appellant denied. As noted above, the primary judge accepted the former and dismissed the latter.

4. [53]

   No challenge has been made in this Court to any of the findings of primary fact or as to the credibility and reliability of the witnesses.

Section 133(2) of the Criminal Procedure Act

1. [54]

   The requirements of s 133(2) were explained by the High Court in Fleming, where the Court considered an identically worded predecessor provision (s 33 of the Criminal Procedure Act). Relevantly for the purposes of this appeal, the Court said at [28]:

2. [55]

   Likewise, the joint judgment in DL at [33] explained that “[o]rdinarily it would be necessary for the trial judge … to apply the law found to the facts found.” And it was said, to similar effect, by this Court in R v Lazarus [2017] NSWCCA 279; 270 A Crim R 378 at [141] that:

3. [56]

   Further, the reasons for verdict following a Judge alone trial “must be such as to enable a proper understanding to be gained of the basis upon which the decision has been reached”: Hopgood v R [2019] NSWCCA 246 at [47]. In assessing whether a judgment has met that threshold, the reasons of the primary judge must be read “fairly and as a whole”: Hopgood at [47].

4. [57]

   Significantly for the purposes of this appeal, whether or not the principles of law have been applied to the facts may be discerned from the reasons “expressly or by implication”: Fleming at [30], see also Filippou v R (2015) 256 CLR 47; [2015] HCA 29 at [52] and W v R [2014] NSWCCA 110 at [110]. As the Court explained in Fleming at [30]:

5. [58]

   Finally, as RA Hulme J has noted, “the question of whether there has been a departure from the statutory imperative will depend, at least in part, upon the nature of the evidence and the issues in the case at hand”: Wade at [123], referring to AK at [84].

6. [59]

   Most if not all of the decisions involving an alleged contravention of s 133(2) have been based on claims that the reasoning of the judge was inadequate. The parties did not identify a decision on all fours with the present, where no complaint is made about the reasoning of the judge, save for the failure to refer explicitly to the elements of the offences.

7. [60]

   As noted above, both the appellant and the Crown were in agreement that s 133(2) required at a minimum that the elements of each offence be contained in the reasons, either expressly or by implication. It is not entirely clear to me that that is so. Section 133(2) does not in terms make it mandatory to include the elements of an offence in the judgment given by a Judge alone trial. Section 133(2) requires the inclusion of “the principles of law applied by the Judge”. Listing the elements of an offence does not naturally fall within the scope of those words. However, one principle which is applied in every criminal trial is that a guilty verdict should only be returned if the Crown has established each element of the offence beyond reasonable doubt (see for example Shepherd v The Queen (1990) 150 CLR 573 at 579-580; [1990] HCA 56). It is principally if not exclusively by that means that the subsection has application to the narrow argument advanced by the appellant in this appeal. I do not intend to convey any criticism, but because of the Crown’s concession, there was less argument about how s 133(2) applied to the present, very straightforward trial where there had at all times been agreement as to the elements of the offences and the issues were entirely factual. I mention this because it affects the approach I take to resolving this appeal.

No contravention in relation to count 2

1. [61]

   It is convenient to begin with count 2. The Crown candidly and correctly acknowledged that the position in respect of s 133(2) was stronger in relation to this count than in relation to count 1. It will be recalled that the agreed elements document identified the relevant offence as containing two elements: first, “the accused did any act (or omission)”, and secondly “with the intent in any way to pervert the course of justice”. That agreement reflected the position confirmed by the joint judgment in R v Beckett (2015) 256 CLR 305; [2015] HCA 38, holding that there were two elements (with Nettle J, alone on this point, considering that there was a third element, namely, that the act or omission had a tendency to pervert the course of justice).

2. [62]

   Counsel for the Crown submitted that the primary judge’s recitation of count 2 at the beginning of the judgment itself amounted to a bare statement of the legal elements. That count, which is reproduced in full above, stated that the appellant “did an act, namely, made a statement offering to pay Adam Maher money to withdraw charges intending thereby to pervert the course of justice”. Thus, it was said:

3. [63]

   I accept that submission. Immediately after stating count 2, her Honour said that “the Crown bears the onus of proof at all times” and “the standard of proof in each count is proof beyond reasonable doubt”. Taking the appellant’s construction of s 133(2) at its highest, it required no more than that the reasons include the two elements comprising count 2 and that the Crown had to establish each beyond reasonable doubt. The sole evidence supporting count 2 was the testimonial evidence of the complainant. Her Honour stated that for this count “there is no evidence beyond the account of the complainant”, she set out the complainant’s evidence which extended to both elements, she stated that she was “satisfied beyond reasonable doubt that [the complainant] was an honest and reliable witness” and concluded that she was “satisfied beyond reasonable doubt that the Crown has established the essential elements for each of the offences”.

4. [64]

   Given what the reasons contained, there was little that could be said in relation to this conviction, save for the failure explicitly to identify the two elements. This was raised during the hearing:

5. [65]

   The appellant accepted as much, although adding that the count did not include the extended meaning reflected in s 312, which provides that “A reference in this Part to perverting the course of justice is a reference to obstructing, preventing, perverting or defeating the course of justice or the administration of the law” and which had been included in the elements document.

6. [66]

   I do not accept that any requirement to identify the elements of an offence imposed by s 133(2) could be breached by merely describing the mental element as an intention to pervert the course of justice, without reciting the statutory extension in s 312. This statutory confirmation of the expanded scope of perverting the course of justice had no application to the facts of this case. It is not the function of the trial judge to expound to the jury (in trials involving a jury) principles of law going beyond those needed to resolve the particular case: R v Chai [2002] HCA 12; 76 ALJR 628 at [18], and the position can be no different in the case of a trial by Judge alone.

7. [67]

   Nor do I accept that s 133(2) although satisfied if the additional words — to the effect “the two elements in that offence are the two matters I have just read out” — were included in the primary judge’s reasons, was breached because of their absence. Necessary implication is sufficient to satisfy the mandatory requirements imposed by s 133(2) of things that must be included in a judgment following a Judge alone trial. This is a clear case of the reasons containing, at least by necessary implication, the elements of the offence.

8. [68]

   Contrary to the appellant’s submission, there was no room for speculation as to how her Honour had reached her finding. Acceptance of the complainant’s account that the appellant would pay him if he dropped the charges, and the rejection of the appellant’s denial of that conversation, makes plain precisely how the finding of guilt was reached.

9. [69]

   It follows that the primary judge did not breach s 133(2) in respect of count 2.

10. [70]

    Lest there be any doubt about it, I should add the following by way of completeness in light of the narrowness of the appellant’s submission. A bare statement of the legal elements is not sufficient in order to satisfy s 133(2). It is necessary to expose the reasoning process linking the principles of law applied and the facts found, in accordance with what was said in Fleming. But the present appeal diverged from the course often taken when it is asserted that that section has been contravened, because there was no suggestion that the reasoning of the primary judge resolving the real issues in the trial was in any way deficient. Her Honour’s reasons attended to the real issues at trial, namely the resolution between the different accounts of what occurred, in light of the contemporaneous documentary and photographic evidence. No complaint is made of the adequacy of that aspect of the reasons, and to be fair it is difficult to see how any complaint could realistically be made. As noted above, the complainant’s evidence was accepted as being honest, accurate and reliable. That included his evidence that he was offered money if he dropped the charges. Her Honour’s acceptance of that aspect of the complainant’s evidence was the reasoning underlying the conclusion that she was satisfied beyond reasonable doubt that the Crown had established the appellant’s guilt on this count.

The difficulties in the application of s 133(2) to count 1

1. [71]

   Count 1 is less straightforward. Unlike count 2, it cannot be said that the primary judge’s reproduction of the count at the beginning of her reasons amounted to a statement of the essential legal elements of the offence. That is because saying the appellant “did rob” the complainant, as count 1 does, does not outline all the elements, including the taking of property with an intention to deprive the complainant of it permanently.

2. [72]

   Counsel for the Crown nonetheless maintained that a bare statement of the elements could be implied and that there was no breach of s 133(2), on the basis of the way the primary judge addressed the evidence and the absence of any issue being taken as to the elements of the offence. The Crown’s ultimate position on whether s 133(2) was breached was captured by the following exchange:

3. [73]

   Because the parties agreed on the legal elements of the offence, and because there was nothing in issue before the primary judge aside from the competing accounts of the complainant and the appellant, there is force to the Crown’s submission that the requirements of s 133(2) were met by implication from the primary judge accepting the complainant’s evidence. That evidence sufficed to establish each of the elements of the offence, and indeed no submission that it was not adequate was made.

4. [74]

   However, regard must also be had to the purposes served by the statutory minimum requirements of reasons in Judge alone trials. As Bathurst CJ noted in W v R, the need to provide adequate reasons for verdict, which includes identification of the essential legal elements of the offence, is not only to enable a party to exercise appeal rights, but to enable justice to be seen to be done: at [145]. The purposes achieved by giving adequate reasons were also summarised by Johnson J in R v BK [2022] NSWCCA 51 at [138]-[139]:

5. [75]

   Whether or not s 133(2) has been breached in respect of count 1 in the circumstances of this case, however, is a question I prefer not to answer. The question is quite important, and might be significant in another case. To be candid about it, I can see arguments pointing in favour of a construction which focusses on the substance of the matter, and also arguments favouring a more formal approach, leading to a breach where the elements of the offences, despite being utterly uncontroversial, have not been stated.

6. [76]

   One reason that I am reluctant to answer the question is that I do not think the Court received full arguments on construction. It was agreed that the elements of the offence had to be contained in the judgment, although that could occur through implication. Precisely how that agreed position was reached from the text of the provision, construed contextually and purposively, was not made clear. As noted at the outset, the elements of the offence do not readily answer the description of “principles of law applied”.

7. [77]

   Another is that, at least to my mind, s 133 is a section which is easy to read but difficult to understand. The section puts together two quite different things. Section 133(1) deems the judge’s finding to have the same effect as a jury’s verdict, while one of the purposes of s 133(3) is to ensure that the judge, rather like a jury, receives and is seen to receive appropriate directions. That is readily explicable: both place the judge in the position of the jury. However, s 133(2) is a radical departure from the approach seen in the preceding and succeeding subsections which equate the judge to a jury, in that it insists that reasons be given for the judgment, and, further, imposes a minimal content to those reasons. The significance of a jury direction when all the jury produces is an opaque verdict is obvious; the significance of a direction made by the judge to the judge who is then required to give reasons is not self-apparent.

8. [78]

   It is not necessary to determine whether s 133(2) was contravened in relation to count 1, because I am very comfortably satisfied that the proviso would apply in any event. It accords with traditional technique of the common law to confine decisions to those which are necessary to resolve the dispute before the court: see Gageler J in Mann v Paterson Constructions Pty Ltd (2019) 267 CLR 560; [2019] HCA 32 at [76].

9. [79]

   While I prefer not to reach a conclusion on the application of s 133(2) to the facts of this appeal, I would emphasise that it is preferable for judges sitting in Judge alone trials to clearly set out the essential legal elements of an offence in every case. That is so even if the essential legal elements are not in dispute and even if the reasoning of the judge makes it clear by implication that the elements have been made out. One reason for this is that it is not unknown for agreed statements of issues (or agreed directions to juries) to have been wrong, leading to a miscarriage of justice. Another is that it is important that the administration of criminal justice be as transparent as possible, as Bathurst CJ and Johnson J emphasised in the passages in W v R and R v BK reproduced above. A third is that the judgment is the product of a trial, usually over a number of days, with serious consequences for the participants, not least the accused. It will not normally add appreciably to the burden and discipline of delivering judgment to include not merely the offences charged, but also their elements.

The application of the proviso

1. [80]

   In Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81, the High Court made the following observations about the proviso to the common form criminal appeal statute at [42]:

2. [81]

   In deciding whether a substantial miscarriage of justice has actually occurred, an appellate court often asks whether it is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence. As the Court explained in Weiss, the proviso cannot be engaged unless the appellate court is “persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”: at [44].

3. [82]

   In this case, three matters warrant emphasis. First, the parties had agreed on the elements of each offence, and the primary judge was conscious of this at trial. Secondly, the central issue between the parties at trial was whether the complainant’s account of events was accepted to the criminal standard, particularly in light of the appellant’s contradictory evidence to the court. Thirdly, the primary judge’s findings as to credibility of witnesses, and therefore her acceptance of the complainant’s evidence, has not been challenged in this appeal. No other question of fact or law has been raised aside from the narrow question as to whether there was a breach of s 133(2).

4. [83]

   Those matters are to be borne in mind when asking whether this Court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence. Effectively, in the context of this case, the question is whether the primary judge’s reasoning is such that it makes clear that her Honour was satisfied of each factual matter needed to establish the agreed elements of each offence.

5. [84]

   The answer to that question is affirmative, in relation to both counts. Everything needed to satisfy the elements of count 2 was contained in the complainant’s evidence. Once that evidence was accepted by the primary judge, it was sufficient to make out count 2 as there was no evidence beyond his account bearing upon this offence.

6. [85]

   In relation to count 1, the CCTV footage showing the appellant using violence on the complainant and the photographic evidence establishing that the appellant had taken the appellant’s ANZ card, in conjunction with the complainant’s evidence of the events leads once again to the conclusion that the evidence established to the criminal standard that the appellant was guilty.

7. [86]

   But while the proviso cannot apply unless the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence, it does not follow that there has been no substantial miscarriage of justice. This was explained by Gummow and Hayne JJ in AK at [53], with reference to the High Court’s decision in Weiss:

8. [87]

   With this in mind the appellant submitted that the proviso could have no application in a case where the primary judge failed to include the essential elements of an offence, as this was a fundamental error that went to the “root” of the proceedings such that there was a substantial miscarriage of justice. This submission was said to be supported by analogy with a failure to direct a jury regarding the elements of an offence, which has been observed as being a “necessary ingredient of a fair trial”: Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [24]; Trevascus v R (2021) 104 NSWLR 571; [2021] NSWCCA 104 at [71].

9. [88]

   It may be accepted that a necessary ingredient of a fair trial is that proper directions be given to the jury as to the elements of an offence. But a failure to direct a jury on the elements of an offence does not preclude the application of the proviso. Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7 is an example. That is so notwithstanding what was said in the joint judgment at [13]:

10. [89]

    Where as here there has been a trial by Judge alone, and the findings of guilt are justified by extensive reasons, there is less reason to preclude the availability of the proviso. What matters is an evaluation of the nature and effect of the particular error, as the Crown submitted.

11. [90]

    In AK, Gummow and Hayne JJ, at [55], identified two features of the error which were important to concluding that there was a substantial miscarriage of justice: first, that the statutory provision required the reasons to articulate the connection between the relevant legal principle and the relevant findings of fact, but secondly that the “particular failure that was identified related to the central issue in the appellant’s trial”. The central issue in that case was identification, and the trial judge accepted the evidence of the complainant who believed the perpetrator was the appellant but said nothing as to why the evidence was accepted. This led to the conclusion that there was a “complete failure” to meet the requirements of the equivalent of s 133(2).

12. [91]

    The central issue in this case was whether the account of the complainant was accepted, having regard to the evidence of the appellant. The primary judge accepted the former and rejected the latter, and gave detailed reasons as to why they did so. The error complained of was failing to identify the legal elements. That was not even an issue at trial, let alone the “central issue”, for the parties agreed on the legal elements of the offences, and the written form of their agreement was provided to her Honour on the first day of the trial.

13. [92]

    Accordingly, it cannot be said that there has been a “complete failure” to meet the requirements of s 133(2) in the circumstances of this case, or anything like a complete failure. To the contrary, there has been no substantial miscarriage of justice in this case. The proviso is applicable, and authorises dismissing the appeal from the finding of guilt on count 1 even if, favourably to the appellant, there was a contravention of s 133(2). Were I wrong about the absence of any contravention of s 133(2) in relation to count 2, the proviso would likewise authorise dismissing the appeal from the finding of guilt on that count.

Conclusion and orders

1. [93]

   I am of the view that the primary judge did not breach s 133(2) in respect of count 2. While I prefer not to offer a view on whether s 133(2) was breached in respect of count 1, I am satisfied that the proviso applies in respect of both counts.

2. [94]

   For those reasons, I propose that the appeal be dismissed.

3. [95]

   WILSON J: I agree with Leeming JA.

4. [96]

   DHANJI J: I have had the considerable advantage of reading the reasons of Leeming JA in draft. I agree with the orders his Honour proposes but would prefer to state my own reasons. I adopt his Honour’s statement of the relevant background and the argument in this Court. His Honour has also set out the relevant legislative provisions.

5. [97]

   The appellant was tried on indictment. He had a right to trial by jury. He gave up that right by his (successful) application that he be tried by judge alone: s 132 of the Criminal Procedure Act 1986 (NSW). In exchange, the appellant received the benefit of a requirement to give reasons in accordance with ss 133(2) and (3) of the Criminal Procedure Act: AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at [89]ff. A failure to observe the requirements of s 133(2) or s 133(3) will be a wrong decision on a question of law within the second limb of s 6(1) of the Criminal Appeal Act 1912 (NSW) and may also constitute a miscarriage of justice within the third limb of that provision: Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 at [27]. In each case, it is necessary to consider the application of the proviso to s 6(1) of the Criminal Appeal Act.

Failure to include the essential elements in the reasons

1. [98]

   The ground of appeal complains that in the present case her Honour “erred in the failing to include in the reasons for judgment fundamental principles of law to be applied – namely, the essential legal elements of each offence”.

2. [99]

   The process of reasoning towards guilt or a failure to prove guilt of a criminal charge begins with identifying what it is the Crown must prove. The relevant principles of law and any necessary warnings are then applied to the evidence led in support of the charge in a process of reasoning from the evidence to a conclusion. In expressing the matter in this way, I do not intend to suggest that identification of what needs to be proved is not included within the ambit of the “principles of law” within s 133(2) of the Criminal Procedure Act. The issue of what must be proved may involve detailed analysis of legal principles. More fundamentally, the terms of s 133(2) do not set out the full extent of the trial judge’s obligation to give reasons for the verdict: Fleming v The Queen at [28]. In AK v Western Australia, Gummow and Hayne JJ (at [44]), adopting part of what was said in that paragraph of Fleming v The Queen put the matter as follows:

3. [100]

   As has been set out in the reasons of Leeming JA, in the present case the trial judge did not set out the elements of either offence as a discrete aspect of the reasoning process. Rather, her Honour set out the charges and referred to a number of relevant principles, they being the onus and standard of proof and related directions with respect to a case relying on a single witness and the effect of the rejection of the appellant’s evidence. Reference was also made to the use to be made of complaint evidence. Her Honour then set out the evidence and applied those directions in a manner not suggested to be deficient.

4. [101]

   Her Honour then concluded:

5. [102]

   As already noted, her Honour did not, at least explicitly, indicate in her reasons what those elements were. Nor did her Honour indicate at the conclusion of her reasons that, based on her satisfaction of the elements, she was satisfied that the appellant was guilty of the offences charged. That is, her Honour made no statement, as would ordinarily be expected following the extract set out above to the effect of, “I therefore find the accused guilty of each of the charged offences” or even “I find the accused guilty of each offence”. I pause to note that no complaint was made by the appellant with respect to the trial judge’s failure to expressly state in her reasons her satisfaction of the appellant’s guilt of the offences charged. It appears to have been assumed by all that her Honour’s satisfaction beyond reasonable doubt of the elements was a finding of guilt of each of the offences within s 133(1) of the Criminal Procedure Act. That is, it was assumed it was a finding of guilt, being a finding that a jury could have made, but which was able to be made by the trial judge pursuant to s 133(1). In the absence of the issue being raised and any argument as to it, it is not for this Court to take a different view. The question is, potentially, a difficult one.

6. [103]

   In relation to what her Honour did say, namely that the elements were proved beyond reasonable doubt, a statement that the essential elements of an offence are proved is meaningless without a statement of what those elements are. The respondent, however, submitted that a judgment may reveal that a principle of law was applied expressly or by implication. Reference was made in this regard to Fleming v The Queen at [30]. What the High Court said there (by refence to an equivalent provision to s133(2)) was:

7. [104]

   Thus, a judgment may show a relevant principle has been applied by implication despite it not being expressly referred to. A failure to apply a relevant principle will be an error of law (or may also be described as a miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act). Importantly, however, a conclusion that there was no failure to apply the relevant principle is not to deny that a failure to “include” the relevant principle will be in breach of s 133(2) and an error of law on that basis: see also AK v Western Australia at [48].

8. [105]

   In this context, it might also be noted that in Fleming v The Queen, the Court (at [37]), accepted that it is sufficient, where a warning would have been required to be given to a jury, that the judgment shows “expressly or by necessary implication that the warning was taken into account”. This observation was made in the context of the equivalent of s 133(3), which requires the judge, where a warning would have been required, to “take the warning into account in dealing with the matter”. Within the terms of the provision, the warning will have been taken into account if it was done expressly or by necessary implication. Nonetheless, and despite the different terms of s 133(2) which requires a judge to “include” in the judgment “the principles of law applied by the judge and the findings of fact on which the judge relied”, in Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 (at [52]), it was accepted that this may also be done by necessary implication. It is, however, relevant to observe that in Filippou v The Queen, this acceptance was in the context of an asserted failure on the part of the trial judge to warn herself as to the caution to be taken in drawing inferences adverse to the accused. Despite the appellant having framed the matter as a warning, the Court (at [53]) regarded this as a matter within s 133(2), not s 133(3), and concluded that her Honour’s reasons left “no room for doubt that she did take into account the care to be taken”. The complaint dealt with in Filippou v The Queen (which can be understood as an aspect of the onus and standard of proof, principles which were included in the reasons), was such that the accused’s concerns were properly allayed by statements in the reasons demonstrating the principle had been applied.

9. [106]

   Returning to the present case, the primary judge set out the offences and said, “insofar as the offences are concerned I give myself the following directions” and then directed herself, as noted above, as to the onus and standard of proof. Her Honour did not articulate that a criminal charge is proved by proof of the essential elements. Nor did she state what those elements were. Further, as already observed, there was no statement at the conclusion of the reasoning to the effect that her Honour’s satisfaction that the elements had been proved had the result that the charges were proved. Had her Honour said this as part of her conclusion it may, arguably, have been possible to relate the finding the elements were proved to the charges set out at the commencement of the reasons. In this hypothetical situation, it would have been necessary to consider, in each case, whether the statement of the charge, her Honour’s statement that she was satisfied as to each of the elements of that charge and the conclusion that her Honour was therefore satisfied the charge had been proved, read together, provided the necessary implication. The result, for the reasons discussed by Leeming JA, may have been different with respect to each charge. However, in the absence of her Honour having taken this final step in the reasoning process, the reasons do not relate the finding that the elements were proved to the charges themselves. While the relationship between proof of the elements and proof of an offence is, at least to anyone with a passing knowledge of criminal law, trite, the failure to take the step from proof of the elements to proof of the charges, leaves unconnected the charges stated at the outset and the (assumed) conclusion of guilt at the end. I am not satisfied that her Honour’s reasons “include” either expressly or by necessary implication what it was her Honour found proved when she said she was satisfied the essential elements of each of offences had been established.

10. [107]

    I would not infer the inclusion of the relevant principles on the basis of matters outside the reasons. As noted by Leeming JA, the elements had been supplied to her Honour in a document by the Crown. The document was then subsequently referred to in the proceedings with no issue being taken as to its content by the appellant. The document was not, however, referred to or otherwise in any way incorporated into her Honour’s reasons for judgment. The document (and its provision to the appellant) are certainly relevant. The content of what is required to be provided by way of reasons will be informed by the issues in the particular case: see DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at [33]. The narrowing of the issues between the parties will usually have a significant impact on the reasoning between the statement of what must be proved, and what is proved. Such a narrowing, however, cannot, in my view, obviate the need for a statement of the starting point and the end point connected by the necessary process of reasoning. It is the starting point that is lacking in the reasoning here. Nor would I regard the principles to have been included by other matters outside the reasons, such as the fact that her Honour is an experienced criminal lawyer: cf Filippou v The Queen at [53].

11. [108]

    I am of the view that, in the circumstances of this case, the failure to set out the elements of the offences constitutes a breach of s 133(2) of the Criminal Procedure Act and error has therefore been established. The question that then arises is whether the proviso to s 6(1) of the Criminal Appeal Act can be applied. Before considering the proviso, I pause to note that I express no view as to whether any case involving a failure to expressly state the elements of an offence will reveal error.

The proviso

1. [109]

   The appellant submitted that, if error as a result of non-compliance with s 133(2) of the Criminal Procedure Act, was established, the proviso could not be applied. No submission was made that non-application of the proviso would result from this Court’s lack of satisfaction of the guilt of the appellant. In this regard, it was effectively conceded that any doubt this Court might have experienced was capable of being explained by the natural advantage held by the trial judge, having seen and heard the witnesses, in particular, in this case, the complainant: M v The Queen (1994) 181 CLR 487 at 494; [1994] HCA 63; Filippou v The Queen at [12]; Dansie v The Queen [2022] HCA 25; (2022) 92 ALJR 728 at [15].

2. [110]

   The nature of the error is relevant to the application of the proviso. The proposition that a criminal charge is established by proof of the elements of the charge is so fundamental, I would hesitate, in the absence of an indication to the contrary, to conclude that a judicial officer entrusted to hear a trial on indictment would not apply the principle. Whether that is sound or not is unnecessary to consider here, as her Honour, in concluding that she was satisfied of the essential elements, clearly appreciated the requirement. Moreover, as has been discussed, it is clear that her Honour had been provided with a document setting out the elements of the offences and, in light of the manner in which the proceedings were conducted it is apparent there was no issue as to what those elements were. I am therefore satisfied that her Honour correctly understood what the elements were and understood the need for each of those elements to be proved beyond reasonable doubt. No submission was made to the contrary. In other words, the error established in the present case is limited to a failure to “include” a relevant principle of law, not a failure to take a relevant principle of law into account: see Fleming v The Queen at [30] (set out above at [103]); AK v Western Australia at [48]. It is in this context that the operation of the proviso falls to be considered.

3. [111]

   As Leeming JA has observed, complaints based on inadequacy of reasons most commonly tend to relate to the failure to articulate the reasoning process leading to the conclusion of guilt, or a failure to take into account a warning which would have been necessary, had the matter been before a jury (s 133(3)). AK v Western Australia is an example of the former. Fleming v the Queen is an example of the latter.

4. [112]

   In AK v Western Australia, Gummow and Hayne JJ observed (at [46]) that “nowhere in the reasons for judgment did the trial judge articulate how the link was made between the legal principle requiring proof beyond reasonable doubt and the findings of fact that the appellant had touched the complainant in the manner alleged”. Heydon J (the other member of the majority) described the failure (at [86]) as “almost as complete a failure as could be imagined”. The result was that there was a substantial miscarriage of justice, irrespective of the appellate court’s satisfaction of guilt of the offence.

5. [113]

   In Fleming v The Queen, the failure of the trial judge to give a warning with respect to the evidence of the complainant precluded application of the proviso because it made it impossible for an appellate court to determine whether the complainant’s evidence had been given appropriate scrutiny, in circumstances where the credit of the complainant was the central issue in the trial. Thus, in Fleming v The Queen it was not possible to conclude that no substantial miscarriage of justice had, in fact, occurred.

6. [114]

   Within the first type of complaint, that is complaints with respect to a failure to articulate the reasoning process, there are various sub-species of complaint, such as the failure to deal with particular evidence or a particular defence argument. With respect to issues of this type, questions of degree necessarily arise. What is required as a minimum does not lend itself to a determinative statement: AK v Western Australia at [84]. This, in turn, leads to the need for an evaluative judgment as to whether the particular breach is such that it is properly described as a “substantial miscarriage of justice” (without regard being had to the strength of the Crown case).

7. [115]

   The present matter is unusual because, rather than articulating a complaint with respect to the reasoning process, or with respect to the need to give a necessary warning (as part of that reasoning process), the complaint is that the reasons failed at the outset.

8. [116]

   As discussed above, the starting point for the necessary process of reasoning, that is what had to be proved, can be described as the identification of the essential legal elements. The submissions for the appellant tended to assume that these “elements” have a binary character such that that they either are, or are not, stated. Implicit in the argument was that the questions of degree that arise in assessing adequacy of reasons between the starting point and the endpoint of a process of reasoning do not arise. A failure to articulate the starting point was therefore submitted to be not only an error of law as a consequence of the failure to comply with s 133(2) but was also “fundamental” or “went to the root of the proceedings” such that the proviso has no application. That is to say it was contended that, irrespective of this Court’s view as to whether the offences were proved beyond reasonable doubt, there was, as a result of the failure, a “substantial miscarriage of justice”.

9. [117]

   The use of the term, “elements” is one of convenience when setting out what the Crown must prove in order to prove an offence. However, the term has no particular independent status. Contrary to, what is at least implicit in the appellant’s argument, a statement of “essential elements” does not necessarily lend itself to a binary concept in that the elements, or what must be proved, either is or is not stated. To take an example of an offence removed from the present case, one of break enter and commit a serious indictable offence contrary to s 112(1)(a) of the Crimes Act 1900 (NSW), the elements can be stated simply as a requirement of proof that the accused:

10. [118]

    In this example, it can be seen that while, at one level, what must be proved is set out, it leaves open many questions. For example, what must be proved to constitute a breaking? This question is not necessarily straightforward: see Ghamrawi v R (2017) 95 NSWLR 405; [2017] NSWCCA 195 and R v BA [2021] NSWCCA 191, an appeal from which is presently reserved before the High Court. Similarly, what is required to prove entry? What is a dwelling house, and what constitutes a building? What is a serious indictable offence? Of course, this last element would ordinarily be particularised: cf Dean v R [2019] NSWCCA 27. To extend the example, taking a commonly charged offence, the last element might be particularised as stealing. In this case, it would be unnecessary to refer to the commission of a “serious indictable offence” as an element of the offence. It would be sufficient (and preferable) to express the fourth element as “did steal”. This, in turn, raises issues with respect to a complete statement of what must be proved to prove stealing. In order to prove stealing, it is ordinarily necessary to prove the asportation of property with an intention to permanently deprive. It may be necessary to prove this was done without a claim of right.

11. [119]

    There will be many cases involving a conventional breaking, entering, and stealing where is unnecessary to give further instruction as to what constitutes a break, what constitutes entering, and what constitutes stealing. In many cases it will be sufficient to observe that there is no contest; that is, if what is alleged is established, the Crown will have proved a breaking, and entering, and stealing. The extent to which directions are required is framed by the matters in issue: The Queen v Chai (2002) 128 A Crim R 101; [2002] HCA 12 at [18]. As Leeming JA has pointed out, a failure to direct a jury of an essential element of an offence will not necessarily be fatal: Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7; Holland v The Queen (1993) 68 A Crim R 176; [1993] HCA 43. While these observations were made in the context of directions to a jury, s 133(2) similarly requires only relevant principles be stated: AK v Western Australia at [44].

12. [120]

    The point to be made from the above example is that a failure to state all of the essential legal ingredients of proof of an offence will not, in every case, amount to a breach of s 132(2), let alone a “substantial miscarriage of justice” for the purposes of the proviso to s 6(1) of the Criminal Appeal Act. Conversely, there will be cases where a particular matter (that is, a matter averred in the charge that is not a legal ingredient), will, as a result of the manner in which the trial is run, need to be proved beyond reasonable doubt: see R v VHP (Court of Criminal Appeal (NSW), 7 July 1997, unrep); Hamilton v Director of Public Prosecutions [2020] NSWSC 1745 at [87]-[98]; Dean v R. It is likely that, in such a case, it will be necessary to articulate this as a matter to be proved beyond reasonable doubt in order to comply with s 133(2). Thus, what is required to be stated is to be considered having regard to what is in issue in the case. While in this case, I have found that there was a breach of s 133(2), the observation is relevant to the appellant’s submission that the failure to state the elements is so fundamental a breach as to preclude the application of the proviso.

13. [121]

    In DL v The Queen, Kiefel CJ, Keane and Edelman JJ said (at [33]), quoting AK v Western Australia (at [85]):

14. [122]

    While their Honours in the above passage referred to the adequacy of the reasons being assessed in accordance with “their bearing upon the elements of the offence”, that was in the context of a complaint about the reasoning process. For the reasons discussed above, I would not understand their Honours as suggesting that in every case it is necessary to articulate every conceivable element of an offence. It should also be noted that their Honour’s observations were made in the context of determining whether the reasons were “adequate”. The language of “adequate” is to be seen in the context (an appeal from South Australia) where there was no statutory provision equivalent to s 133(2) and thus no question of breach of any such provision.

15. [123]

    The observations from DL v The Queen above, do not decide the present case, where there was no articulation of any of the essential elements of either of the offences. But what is clear is that, while falling short of what is required will render reasons inadequate, there will be a further step whereby the degree of departure is measured to determine whether the failing was, without more, a substantial miscarriage of justice. I do not accept that describing a statement of the elements as “fundamental” has the result that the proviso cannot be applied.

16. [124]

    As the passage from AK v Western Australia at [44] (set out above at [99]) demonstrates, the articulation of elements ordinarily leads to identification of those which are in dispute, to which the process of legal reasoning is applied. Of course, a charge may fail for reasons other than the matters put in issue by the defence. The possibility of such cases, of course, underscores the desirability of setting out the elements. Here, however, there was no submission that the failure to articulate the elements infected the subsequent reasoning process. In this regard, the present case is very different to the circumstances of AK v Western Australia where it was found that, despite the appeal court’s satisfaction of proof of the offence, the proviso should not have been applied. There, Gummow and Hayne JJ said at [55]:

17. [125]

    The reasons of Heydon J in AK v Western Australia lend greater support to the appellant. His Honour, reviewed in detail the advantages for an accused of trial by jury, the nature of trial by judge alone, the significance of an accused person’s surrender of the right to trial by jury, and the unanimity or near unanimity entailed. His Honour observed that the discipline generated by the need for unanimity or near unanimity cannot be compensated for directly but “by an indirect route the duty to give reasons can operate to safeguard the interests of the accused and the public interest generally” (at [104]). His Honour said (at [108]):

18. [126]

    Quite where the divide is found between trivial and non-trivial breaches is again, not capable of precise delineation. As already observed, Heydon J’s observations were made in the context of what his Honour (at [85]) regarded as “almost as complete a failure as could be imagined”.

19. [127]

    I would hesitate to describe the failure in the present matter as “trivial”. Nonetheless, it remains relevant to consider the potential impact of the failure on the reasons. While the appellant contended it was a “matter of pure speculation as to precisely what her Honour viewed as being the essential legal elements for either offence”, this submission loses its force in the context of the provision of a document setting out the elements and the resulting implied agreement between the parties as to the elements of the offences. Further, despite the submission of the appellant, it is not clear how the deficiency in reasons impacted the appellant’s ability to exercise appeal rights. Rather than rendering opaque the reasons leading to the conclusion of guilt, the deficiency in the reasons served only to create, at least, the prospect of a successful appeal.

20. [128]

    The failure does impact on the importance of the reasons in ensuring that “[justice] be seen to be done”: Fleming v The Queen at [22]; W v R [2014] NSWCCA 110 at [145]. Here, the reasons do not serve as an independent statement setting out the steps involved in the proof of the offences. The deficiencies in the reasons do not engender confidence that the care that would ordinarily be expected in determining a serious criminal charge was exercised. Against that, as has been discussed by Leeming JA, the process of reasoning was not otherwise vulnerable to criticism. It is significant that the appellant was represented, all parties were aware of the issues, and the case was fought on the basis of whether the complainant could be accepted beyond reasonable doubt. The reasons clearly addressed that which had been put in issue. Nor did the failure impact on this Court’s capacity to judge the guilt of the appellant. The circumstances were, therefore, very different from those in cases such as AK v Western Australia and Fleming v The Queen. I would not regard the reasons as falling so far short of what was required such that a substantial miscarriage of justice was occasioned on this basis alone.

21. [129]

    Finally, I note that any doubt I may have had as to the appellant’s guilt is explained by the natural advantage held by the trial judge in seeing and hearing the evidence: Dansie v The Queen [2022] HCA 25; (2022) 92 ALJR 728 at [16]. It follows that I am of the view that no substantial miscarriage of justice has been occasioned and the appeal should be dismissed.