Monday, December 17, 2007

... the verdict of you all?

It is easy to agree with one, then the other, of two opposing views of a case. In WGC v R [2007] HCA 58 (12 December 2007) the first two judgments (Gummow CJ and Kirby J) come to the same conclusion and for similar reasons, and they seem entirely convincing. But they are dissenting judgments. The next judgment in the case, by Hayne and Heydon JJ, in its turn seems entirely convincing, although it comes to the opposite conclusion. By the time I get to Crennan J’s judgment – and she now has the disposition of the appeal under her command – I am not surprised to see her agreement with Hayne and Heydon JJ, since that is the judgment freshest in my mind.

How can two opposite conclusions seem viable? When this occurs it may be because the difference is over a fundamental point of interpretation. This indeed was the case here, where the statutory definition of an offence raised issues over what was an element of the offence and what was a mere particular, and how the obligation placed on the defence to prove certain matters affected the identification of the elements of the offence.

At a slightly lesser level of abstraction, a question in the case involved whether the verdict of the jury may not have been unanimous. Was this a case where guilt may have been proved by two separate and independent theories, so that the jury had to agree on which one they accepted, or was this a case where the defence had to prove more than one issue, and the jury may have had different reasons for deciding that the defence had failed overall?

The offence was the sort of sexual offending that is defined variously in different jurisdictions, but broadly it was having sexual intercourse with a girl aged of or above 12 and under 17 years. The charge specified a period over which the particular offending was alleged to have occurred. The majority held that this range of dates was not an element of the charge, but was merely a particular of the offending that did not have to be proved. The minority held that the date on which the offending was alleged was an element of the charge and so had to be proved beyond reasonable doubt. The statute provided a defence if the accused proved that at the time of the intercourse the girl was aged of or over 16 and that he believed on reasonable grounds that she was of or over 17.

In this case the accused admitted having intercourse with the complainant but said it occurred several years after she claimed it did, and that at the time she was aged 16 and he had the belief necessary for the defence.

Did the accused’s stance at trial make the date of the occurrence of the intercourse an element of the offence, for the prosecution to prove? Or was his stance at trial an allegation that he made that was purely a matter of defence?

Gummow CJ held (para 7) that an accused does not make allegations. This position thus coloured his interpretation of the definition of the offence, and Kirby J’s approach was similar. In particular, Kirby J pointed out (para 92), that jurors could not reach the verdict of guilty by some members concluding that the intercourse occurred when she was under 16 (so that the statutory defence did not apply) and others concluding that it occurred when she was 16 but the accused failed to establish that he believed she was 17 and that this belief was reasonable. If the jury held such differing views they were not unanimous on when the intercourse occurred. Since, for the minority, the time of the offence was an element that had to be proved beyond reasonable doubt, the accused should have been acquitted and a new trial should have been ordered.

The majority reasoning involved a focus on what were the elements of the offence as distinct from particulars provided to assist the accused in identifying the conduct that was impugned. On the view that the accused was alleging a different date than the prosecution (Hayne and Heydon JJ at para 116), and that this allegation was simply a part of endeavouring to establish the defence, the way was clear to concluding that the date on which the offending was alleged was not, in law, an element for the prosecution to establish. What the prosecution did have to establish beyond reasonable doubt was that, at whatever time the intercourse occurred, the complainant was of or over 12 and under 17 years of age.

An important reason advanced by Hayne and Heydon JJ for this interpretation was the procedural difficulty that would arise if the date of the intercourse was an element of the offence. As there was no evidential basis for alleging intercourse at the date claimed by the accused, until the accused gave evidence, an alternative charge could not have been laid at the outset. Once the accused gave evidence, there would be a basis for alleging intercourse with a girl aged 16, but if the indictment was amended by adding that count, the accused would have to be given the opportunity to plead to it and, more significantly, to cross-examine prosecution witnesses again. That muddle (which, it must be said, seems to be an overstatement of the difficulties in how the situation could have been managed: the accused, always aware of his case, would be expected to put it to the witnesses as they gave their evidence the first time: see the rule in Browne v Dunn, blogged here 12 December 2005 and 23 March 2007) is avoided if the count in the indictment is read as not specifying the date as an element and as capable of covering both versions of the facts.

As to the opacity of the verdict point (how could the basis for the jury’s verdict be ascertained for sentencing purposes?), the majority held that this is not an unusual situation: there may be different reasons for the failure of the defence, and the Judge could make his own assessment of the facts on sentencing.

So, it all came down to a difference over whether the date was an element of the offence. The minority interpretation was that the date was an element because it had particular legal consequences: if intercourse occurred when the complainant said it did, the statutory defence relied on here did not apply, but if it occurred when the accused said it did, then the defence did apply. This was a matter on which, in the minority view, the jury needed to be unanimous. Kirby J reviewed the law in New Zealand (para 87 et seq), Canada (88 – 89) and England (90), emphasising the need for the members of a jury to agree on the theory of guilt (or, the factual basis for guilt).

I have discussed this case without quoting the statutory provision which was in issue, s 49(3) and (4) of the Criminal Law Consolidation Act 1935 (SA), because it is the consequences for the shapes of arguments that arise from each alternative interpretation that is of interest here. Depending on what the elements of the offence are, there may be difficulties with jury unanimity.

No comments: