Regina v Taylor [2002] NSWSC 610 (30 April 2002)

Last Updated: 9 July 2002

NEW SOUTH WALES SUPREME COURT

CITATION: Regina v Taylor [2002] NSWSC 610



CURRENT JURISDICTION:

FILE NUMBER(S): 70074/01

HEARING DATE{S): 29/04/02, 30/04/02

JUDGMENT DATE: 30/04/2002

PARTIES:
Regina v Michael James Taylor

JUDGMENT OF: Whealy J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
Mr T. Hoyle SC - Crown
Mr Scragg - Accused

SOLICITORS:
S.E. O'Connor - DPP
Legal Aid Cimmission of NSW - Accused


CATCHWORDS:


ACTS CITED:
Criminal Procedure Act 1986
Crimes Act 1900
Crimes Amendment Self-defence Act (2001)

DECISION:
I accept the Crown submission that the Crimes Amendment Self-defence Act 2001 has no application to this trial.


JUDGMENT:


IN THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION


WHEALY J


TUESDAY 30 April 2002



70074/01 - REGINA v Michael James TAYLOR


JUDGMENT


1 HIS HONOUR: The facts relating to the present issue are not in dispute. The trial against the accused has reached the stage where it is now in its sixth week. Shortly addresses will be given by counsel. It is imperative that a decision be given quickly on this issue.

2 On 5 October 2001 the accused came before the Court at what is commonly described as an arraignment hearing. This hearing was conducted by Justice David Kirby. Mr Peter Dare appeared for the Crown. He presented an indictment to the Court, and the accused was thereupon arraigned. The accused was asked whether he pleaded guilty or not guilty to a charge that on 25 July 2000 at Prospect in the State of New South Wales, he did murder Adam Scott.

3 This charge is set out in a document headed Indictment, which bears the date 26 September 2001, and is signed by Mr Peter Dare on behalf of the Director of Public Prosecutions.

4 The accused pleaded not guilty. Accordingly, the accused was put on the country for trial, pursuant to the terms of s 88 of the Criminal Procedure Act, and a date was fixed for the hearing of the trial of 11 March 2002, with an estimate of three weeks.

5 The parties were asked to address the Arraignments Judge about the issues, and to indicate whether there would be a need to have pre-trial issues determined. The note that has been kept by the Judge's Associate indicates that Mr Elks and the Crown agreed that there were no pre-trial issues, and the jury were to be called the first day. There was a query however over the possible issue of provocation. His Honour continued bail on the same terms as were applicable as at that date.

6 My first involvement with the matter was on 27 February 2002. As I had been nominated as the judge who was likely to hear the case, I arranged to have the matter mentioned on that date. Mr Hoyle of Senior Counsel appeared for the Crown, Mr Scragg for the accused.

7 As the notes kept by the solicitor instructing the Crown indicate, on that day Mr Scragg indicated some concerns that the trial might not be ready to proceed on 11 March 2002, and he indicated that the defence would prefer to delay the start for approximately four weeks, in order that certain evidence could be garnered.

8 There were two further mentions, one on 5 March 2002 and one on 7 March 2002. I am not certain at which it was, but at one of those mentions I gave a ruling that the trial should proceed, and that it should not be adjourned. However, for practical and administrative reasons it was indicated that the trial would probably not be ready to start until later in March, thereby conferring on Mr Scragg and his client the de facto benefit of at least some further period in which the accused could gather together the additional material he had earlier indicated he desired to obtain.

9 In any event, the trial came on for hearing before a jury on 25 March 2002. On that date the Crown presented the indictment. The indictment differs from the indictment which had been presented before his Honour Justice David Kirby at the arraignment hearing in two respects only; namely that it now bore a different date, 25 March 2002, which I take to have been inserted in the hand of the present Crown; and it is signed by Mr Hoyle SC as Crown Prosecutor on behalf of the Director of Public Prosecutions. Those are the only two differences. In all other respects the document handed up to the Court on that day charged that Michael James Taylor on 25 July 2000 at Prospect in the State of New South Wales did murder Adam Scott.

10 The indictment which had been handed up before his Honour Justice Kirby and presented before him was in fact contained within the court file; and it bore writing on the back of it, that writing presumably being the writing of the judge and/or his associate.

11 A jury was empanelled on 25 March 2002, but shortly after empanelment, a member of the jury indicated that there were difficulties in continuing because of personal reasons. In the upshot the jury was discharged, and it was decided that a fresh jury would be empanelled.

12 That happened on the next day, 26 March. On that day again the Crown handed up what might be described as a fresh indictment. It related in all respects to the same charge, which I have earlier recited on two occasions. The document handed up however now bore the date 26 March, but it was again signed by Mr Hoyle SC on behalf of the Director of Public Prosecutions. A jury was empanelled on that day and the hearing of the trial before the jury commenced shortly thereafter, following the determination of some preliminary issues.

13 The trial has continued up until the present time. Before the closing addresses of counsel, I invited counsel to indicate to me whether I would be required to leave any matters to the jury that would not be the subject of addresses by counsel. Mr Scragg asked me to leave the issues of self-defence and provocation. The Crown has opposed that, and it will be necessary for me to deal with that matter separately, that is the issue as to whether I will or will not leave those matters to the jury.

14 In the course of that argument it became clear that an issue had arisen as to the status of the relevant law of self-defence to be left to the jury, if that were to happen. This was because of the fact that on 22 February 2001 there came into force new legislation. This is contained in Division 3 of Part 11 of the Crimes Act, ss 418 to 423. The division deals with criminal defences. The particular sections I have identified deal with self-defence.

15 Prior to the enactment of this legislation, in this State the common law dealt with self-defence. One effect of the legislation is that there is now a statutory codification of the law on the topic.

16 This codification has a number of significant features, but there are two that are especially relevant for the present trial. One, there is an emphasis on the assessment of the necessary response to the threatening conduct from the perception of the accused. Two, there is the opportunity for a finding of manslaughter where excessive force has been used involving the intentional or reckless infliction of death.

17 The issue that has arisen may be stated briefly. It is common ground that Division 3 of Part 11 does not apply, and the matter will fall to be determined by the pre-existing Common Law, if proceedings for the subject offence were instituted prior to 22 February 2002.

18 Section 423 is in the following terms:

“423. Offences to which Division applies

(1) This Division applies to offences committed before or after the commencement of this Division, except as provided by this section.

(2) This Division does not apply to an offence if proceedings for the offence (other than committal proceedings) were instituted before the commencement of this Division.”

19 This section makes it clear that the institution of proceedings referred to in the section does not include or extend to the institution of committal proceedings relating to the offence. The relevant institution of proceedings, generally speaking, is to be later than the committal proceedings.

20 When the matter was first raised, both the Crown and Mr Scragg were in agreement that I should take the view that the Crimes Amendment Self-defence Act (2001) has no application to this trial. I had some doubts about that position, and after discussion and argument, Mr Scragg obtained instructions and took the view and argued that the new legislation did in fact apply to this trial.

21 I have heard brief submissions from both Counsel.

22 It is my view that the present proceedings were instituted no later than at the time the indictment was presented before Kirby J and the accused arraigned on 5 October 2001 at the arraignment hearing. That is to say, it is my view that the new legislation does not apply in this trial.

23 My reasons may be stated briefly. First, prior to the enactment of the amendments to the Criminal Procedure legislation that came into force in January 2000, the practice that was usually followed in relation to the presentation of indictments was, as I generally understand it, in line with the practices described by Gleeson CJ in his analysis in R v Hull 16 NSWLR at pages 390 to 391 especially at 391.

“If the alleged offender is committed for trial then a decision in relation to the further prosecution of the offender falls to be made by the Crown law authorities including Crown Prosecutors and the Attorney-General. Once a person has been committed for trial the relevant papers are sent by the magistrate to the office of the prosecuting authorities. A brief is prepared for consideration by a Crown Prosecutor. On the material contained in that brief the Crown Prosecutor determines whether or not to "find a bill". That is, in effect, a determination whether or not an indictment should be presented against the accused person. If the Crown Prosecutor decides to proceed he will sign the indictment, frequently on the day of the trial, and hand it up at the trial. If the Crown Prosecutor decides that a bill should not be found the case is referred to the Attorney-General with such a recommendation. If the Attorney-General accepts the recommendation that terminates the proceedings, but constitutes no bar to prosecution of the alleged offender for the same offence on some future occasion. Where an alleged offender is not committed for trial there is no bar to the Crown presenting an indictment, and the magistrate's order discharging an accused person is not equivalent to an acquittal. The Attorney-General may issue an ex officio indictment. Additionally, there is power in the Attorney-General to issue an ex officio indictment in relation to an indictable offence even though there have never been any committal proceedings or the committal proceedings have not proceeded to a conclusion. For completeness it should also be noted that if a magistrate, following a committal proceeding, determines to commit a person for trial in relation to an indictable offence, the offence or offences in respect of which there is a committal order need not be identical with the offences that were the subject of the original charge. The magistrate on the basis of the evidence before him, may re-charge the defendant himself.”

24 Division 4 of the Criminal Procedure Act, that is the Division containing ss 50 to 56, came into force in January 2000. This Division affected a reworking of the practice to which I have made reference, and enshrined the new practices in legislative terms. This is particularly to be seen in ss 50, 51, 54 and 56 (2). Section 56(2) and (3) especially are relevant. They are in the following terms:

“(2) The court has jurisdiction with respect to the conduct of proceedings on indictment as soon as the indictment is presented and the accused is arraigned, and any orders that may be made by the court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

(3) If proceedings are held for the purpose of making any such orders after the indictment is presented to commence the trial and before the jury is empanelled:

(a) the proceedings are part of the trial of the accused, and

(b) the accused is to be arraigned again on the indictment when the jury is empanelled for the continuation of the trial.”

25 It is against the background of these new provisions that other sections of the Criminal Procedure Act are now to be understood, notwithstanding that some of these earlier sections were previously contained in the Crimes Act. Without examining the matter exhaustively, it is sufficient to note, for example, s 87 (where a guilty plea may be made to an offence not charged in the indictment); Section 88, (effect of a plea of not guilty - the accused person is taken to have put himself on the country for trial and the Court is to order a jury accordingly); Section 89 (the Court's power to enter a plea of not guilty when an accused is arraigned but refuses to plead) and Section 90, (which requires a plea of autrefois acquit taken upon arraignment to be determined by the Court without the presence of a jury).

26 All these sections in my view lend support to the proposition that where an accused has been arraigned before trial and has pleaded not guilty with the consequent ordering of a trial date as happened here, it could not be said that as at that arraignment date, proceedings for the relevant offence were not instituted for the purpose of the transitional provisions in s 423 of the Crimes Act.

27 This proposition presupposes of course, as was the case here, that the indictment presented before the jury panel at the commencement of the trial relates to the same charge as that contained in the indictment presented at the earlier arraignment hearing.

28 There is further support for the proposition in the powers and procedures contained in other sections of the Criminal Procedure Act generally; see ss 7, 10, 11, 13, 15 and 16.

29 It would be an extremely odd result, for example, if where, at or after the first arraignment, orders were made changing venue or dealing with an election for a judge-alone trial, it were to be subsequently held that the proceedings for the offence had not at that stage been instituted.

30 There is yet further support for this proposition in the powers of the Court to order pre-trial disclosure in division 2A of part 3 of the Criminal Procedure Act. These powers do not and could not apply to the present trial, because the particular transitional provisions relating to this division specifically restrict their use to proceedings where the accused was committed for trial after 19 November 2001. Their presence however lends support to the proposition that, where an indictment is presented and the accused is arraigned at an early arraignment hearing and pleads not guilty, proceedings have at that stage been instituted in respect of the offence charged in the indictment. Although the Crown in this trial followed a traditional practice of presenting a "new" indictment in the sense of a fresh presentation of the same charge, and did so on both 25 and 26 March 2002 in front of two different jury panels, the proceedings for the offence of murder asserted against the accused remained the same charge as had been the subject of the charge when the not guilty plea was entered at the original arraignment.

31 Section 56(3) of the Criminal Procedure Act contemplates that the accused will be arraigned again when the jury is empanelled. That is what happened in this trial although a "fresh" indictment appears to be commonly presented as a matter of practice albeit dealing with precisely the same charge when that procedure occurs.

32 I have been told by the Crown that it is a practice that commonly occurs. The rationale for it is that the original indictment is with the Court papers. The original indictment often has been written on in some respects and the jury may wish at some stage to have a copy of the indictment shown to them. For that reason the “fresh” indictment is presented and handed up.

33 It is important to note that there was no application here to substitute a new indictment or to amend the old. Nor was there any application to withdraw or terminate the original indictment. (See ss 66(A), 64 and 65 of the Criminal Procedure Act for amendment and substitution; see R v Howard (1992) 29 NSW LR 242 at 247 in relation to the procedure for the termination of proceedings.)

34 The “fresh” indictment was in fact the same indictment but in a new form. It had a different date and was signed by a different Prosecutor but the charge, in all essential respects, remained the same. It was not "an independent and separate indictment" (Munday v Gill & Ors 44 CLR 39) so as to warrant a conclusion that fresh proceedings were instituted at the later date.

35 In my view the situation may be tested in this way: If, after arraignment in the present matter following the hearing on 5 October and after the date for the hearing of the trial had been set, there had been a no bill application made and a no bill was found and communicated to the Court during the present trial, there is no doubt that these present proceedings would terminate. It could not be said the present proceedings could continue on the basis that they were unaffected by the termination of the “no billed” charge.

36 In such circumstances, it would not be open to continue the trial on the basis that the document handed up by the Crown and presented before the jury panel on 26 March was anything other than the subject of the no bill. This is not to say that a "fresh" indictment could not be laid at a later stage if new evidence came to light, but that is not to the point in the example I have given.

37 But in any event, if I be wrong in this analysis, it is necessary to recall that the real question here is not to determine the precise status of the “fresh” indictment but to determine whether proceedings for the subject offence were instituted prior to 22 February 2002.

38 In relation to the legislative purpose of the transitional section I must say it is by no means clear. One would have thought that since the section is plainly favourable to accused persons that it may have been reasonable for the legislature to have provided that the new division applies to offences committed before or after the commencement of the division. But that is not what has happened.

39 The Crown has suggested that there may be reasons for the present transitional scheme. First, it may have been to ensure that where trials had been held before assent was given for the commencement of the legislation, there should be no doubt that the issue of self-defence in those trials should be confined to the pre-existing common law.

40 Secondly, it may have been the case that the legislature took the view that it was desirable to legislate in such a way as to inhibit accused persons and their lawyers from endeavouring to delay trials because of a perceived future benefit contained in the legislation. Both those suggestions are, I suppose, quite possible but looking at the second reading speech, as I have done, one gets simply no assistance whatsoever and one is left at the end with the language in the section.

41 I accept the principle of interpretation that the Crown has very fairly put before me. This is that in criminal legislation of this kind, the Court will normally strive to achieve an interpretation that is favourable to an accused person. But, in my opinion, the language of s 423 is quite clear and the legislative intent, whatever may be the reasons underlying the section, is plainly expressed and without ambiguity.

42 For all those reasons I accept the Crown submission that the Crimes Amendment Self-defence Act 2001 has no application to this trial.



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LAST UPDATED: 08/07/2002