Dean v R

HOEBEN CJ at CL: I agree with the reasons and analysis of Fullerton J.

FULLERTON J: By a notice of appeal dated 4 June 2018 the applicant sought leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal an effective sentence of 13 years imprisonment with a non-parole period of 8 years and 6 months imposed by Sides QC DCJ on 13 June 2017 after he pleaded guilty on 4 April 2017 to seven offences on an amended indictment filed with leave in the District Court that day.

All seven offences were committed at various times on 12 July 2015 in the context of the applicant learning that his estranged wife had entered into a relationship with a person who had been a friend of his and his wife during their marriage.

A comprehensive statement of agreed facts was tendered on sentence, together with a record of interview in which the applicant participated on his arrest. The applicant was arrested close to his wife's home at 8:40pm on 12 July 2015 in possession of a .22 calibre self-loading rifle. The rifle was later revealed to be in working order and capable of immediate discharge. A bullet bearing the applicant's DNA was in the chamber of the weapon.

When interviewed by police the applicant admitted to possessing the rifle and threatening his former wife with it, intending to intimidate her. The applicant gave evidence in the sentence proceedings convened on the day sentence was imposed in which he confirmed that it was his intention to frighten his wife but not to kill her. A pre-sentence report was also tendered in the sentence proceedings, together with a report from a clinical psychologist and a testimonial from the applicant’s former employer.

Six of the seven counts on the indictment were State offences variously laid contrary to the Crimes Act 1900 (NSW) and the Firearms Act 1996 (NSW). Counts 3, 6 and 7 concerned various breaches of the Firearms Act, all involving the .22 calibre self-loading rifle. A further offence (being Count 2 on the indictment) was laid contrary to s 474.15(1) of the Criminal Code Act 1995 (Cth). It concerned the applicant’s use of a carriage service, being a mobile telephone network, to threaten to kill his wife. Of the three Crimes Act offences, Counts 1 and 5 involved breaches of s 93G(1)(b) and s 93G(1)(a)(i), respectively discharging a firearm in a public place and possessing a firearm in a public place (in each case the same .22 calibre self-loading rifle).

Count 4 (objectively the most serious offence) alleged a breach of s 33B(1)(a) of the Crimes Act. It concerned the applicant’s possession of an offensive weapon (the same rifle the subject of Counts 1, 3, 5, 6 and 7) with intent to commit an indictable offence. The Crown did not nominate the indictable offence it alleged the applicant intended to commit by his possession of the weapon in the framing of that count. It was the Crown case, however, that the applicant intended to murder his wife. It was the applicant's case, consistent with the account he gave to police on his arrest, that he only intended to intimidate her.

That issue was ultimately resolved adverse to the applicant by Sides QC DCJ as a "preliminary issue" in what his Honour described as a "preliminary hearing". That hearing was convened on 4 April 2017. Despite his Honour’s express misgivings at the potential unfairness in a sentencing court being invited to resolve the issue of the applicant’s intent where a breach of s 33B(1)(a) is alleged and despite the Crown being unable to provide authority which would sanction that approach, his Honour resolved to convene a preliminary hearing largely at the urging of the parties. The evidence adduced at the preliminary hearing was limited to the Crown’s tender of a statement of agreed facts, a transcript of the ERISP and three photographs. The applicant did not give evidence.

After hearing submissions from the parties his Honour was satisfied beyond reasonable doubt that the indictable offence the applicant intended to commit was murder. He delivered ex tempore reasons for that finding.

At the sentencing hearing convened on 13 June 2017, an aggregate sentence of 10 years imprisonment with a non-parole period of 5 years and 6 months was imposed for the six State offences. As required by s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicative sentences were nominated for each of them. His Honour indicated a sentence of 8 years imprisonment for Count 4 considering that it fell in the upper range of objective seriousness for a breach of s 33B(1)(a). The aggregate sentence was partially accumulated on a sentence of 6 years with a non-parole period of 3 years and 6 months for the Commonwealth offence the subject of Count 2. A number of other offences on a s 166 certificate attracted concurrent sentences.

Four grounds of appeal were to be agitated at the hearing of the appeal:

The applicant and the Crown filed detailed submissions dealing with each of the grounds.

As concerns the first ground in the notice of appeal (as filed), the applicant submitted that his Honour’s finding that the applicant intended by his possession of the rifle to murder his wife was not a finding open to him and that the aggregate sentence should be quashed for that reason.

At the hearing of the appeal the applicant was granted leave, without objection from the Crown, to file an amended notice of appeal in two respects: first, to allow the applicant to appeal his conviction on Count 4 and, second, to amend the first ground of the sentence appeal. After hearing brief argument, including a submission from the Crown that the approach taken by the sentencing judge to resolving the question of fact latent in the way the Crown had framed Count 4 was with the consent of the applicant’s legal representatives thereby foreclosing on his right to challenge that approach on appeal, the Court was of the view that the sentencing judge’s approach to and determination of that issue was productive of both a procedural and substantive unfairness to the applicant and that he should be permitted to challenge his conviction on Count 4 pursuant to s 5(1)(b) of the Criminal Appeal Act for that reason. Leave was granted to amend the notice of appeal accordingly.

The first ground of appeal, also amended with leave, read as follows:

After hearing further brief argument from the parties, including the Crown’s further submission that Count 4, as framed, alleged an offence known to law sufficient to invite the applicant to enter a plea of guilty or not guilty on arraignment and, for that reason, the conviction appeal should be dismissed, the following orders were made:

At the time of making those orders the Court indicated that it would reserve its reasons for making orders. What follows are those reasons.

The procedural history which preceded the accused's arraignment in the District Court is confusing to say the least. From the materials available to this Court the following can be discerned:

It is of course technically correct for the Crown to submit as they did on the appeal and at first instance that the terms in which Count 4 was framed disclosed an offence known to law, the elements of which must be proved by the Crown or the subject of admission by the accused if a conviction is to be entered, and that failure to establish to the criminal standard an inessential particular of the charge will not be fatal. However, by the parties identifying the issue in dispute in the Crown’s charging the applicant with a breach of s 33B(1)(a) without identifying the indictable offence it alleged he intended to commit by his possession of the rifle, and inviting the sentencing judge to resolve that dispute to the criminal standard, there is what I consider the clearest indication that a fact essential to the charge should have been particularised.

In CB v Director of Public Prosecutions [2013] NSWSC 618 at [42], that general proposition, as articulated in R v VHP (Unreported, NSWCCA, 7 July 1997) by Gleeson CJ (Handley JA and Studdert J agreeing), was given emphasis by Adamson J in the following passage:

It is clear that the applicant took no issue with Count 4 framed in the way the Crown drafted it both in the indictment and on arraignment on 27 September 2016 when he pleaded guilty to that offence and when he confirmed the plea of guilty when he was further arraigned on 4 April 2017. It must also be assumed that he did so on the advice of his lawyers. Whether he took that approach in order to avoid a jury trial on the issue of his intention in possessing the rifle, or whether he did so for other forensic or tactical reasons, including the risk of a jury convicting him of an offence the objective gravity of which would bind the sentencing judge, is not to the point. The effect of the Crown framing Count 4 without an averment of the indictable offence he was alleged to have intended to commit by his possession of the weapon was to deprive him of the opportunity to litigate, to the full extent, the factual matters inherent in the elements of the offence to which the plea of guilty constituted an admission, an opportunity he was further deprived of because of the way the proceedings were conducted.

It is fundamental to the Crown’s obligation of fairness which underpins its role as the prosecutor of indictable offences pursuant to s 8 of the Criminal Procedure Act that the particulars of a charge contain the description of the conduct said to constitute the commission of the offence in the particular circumstances of the alleged offending. So much is necessary to ensure that the accused is informed of the case he or she has to meet to ensure an accused is afforded natural justice.

One of the complaints the applicant makes on the appeal is that the sentencing judge’s approach to the fact-finding exercise miscarried, in part because evidence additional to that which was adduced in the preliminary hearing emerged in the course of the sentence proceedings which were convened a few weeks later. In particular, the report of the psychologist tendered on sentence included the applicant’s assertion that he did not believe the rifle was loaded. It also referred to his consistently maintained position that he did not intend to physically harm his wife. While that account was a self-serving statement, the applicant gave evidence in the sentence proceedings and was cross-examined by the Crown, albeit after his Honour had found as a fact beyond reasonable doubt that the applicant intended to kill his wife when he was in possession of the rifle. Were the disputed facts resolved in the sentence proceedings and not preliminary to them, the applicant’s out-of-court statements to the psychologist and the interviewing police would have been available to be considered by the sentencing judge, at least as raising a reasonable possibility that his intentions were as he contended. The evidence bearing on that issue, being effectively beyond the consideration of the sentencing judge in the sentencing hearing, was productive of procedural unfairness and is all the more concerning where, in his Honour’s judgment on the preliminary issue, he found that parts of the applicant's interview were inconsistent with the statement of facts which left him “with a reasonable doubt about the credibility of [the applicant’s] denials that he had an intention to kill”. Quite apart from that passage raising a real question as to whether the sentencing judge reversed the onus of proof (he appears to have rejected the applicant's claims to police because he had a reasonable doubt as to their credibility, not because the Crown had persuaded him that they were not objectively reasonably possible), his Honour did not have available to him, at that time, the applicant’s sworn evidence on the issue. Ironically, his Honour had averted to it being a potentially unsatisfactory approach to deal with disputed facts as a preliminary issue in circumstances where there might be evidence that emerges later relevant to the issue the Court is invited to determine, but was persuaded to proceed with the preliminary hearing notwithstanding.

In remitting the matter to the District Court it is for the Crown to frame Count 4 when the applicant is re-arraigned, as he will inevitably need to be. Whether the Crown avers as an essential particular to the offence against s 33B(1)(a) that the applicant possessed the rifle with the intention of killing his wife or whether the Crown accepts the reasonable possibility that he intended to intimidate her and frames the charge accordingly is a matter for the Crown in the exercise of its prosecutorial discretion. I simply note that in the event the Crown elects to prosecute the applicant on the basis of his possession of the rifle with an intention of killing his wife, it would seem a trial on that issue is inevitable.

R A HULME J: The reasons provided by Fullerton J accord with my own for joining in the making of the orders of the Court on 20 July 2018.