R v FAX

The question in this case was whether the trial judge’s failure to properly record the relevant principles of law applicable to a trial under s 23 Childrens Court Act 1992 in his reasons for judgment amounted to a miscarriage of justice. The specific issue arose in relation to the relevance of the appellant not having given evidence at trial. The trial judge recorded that the complainant’s version of the offence was “uncontradicted” but he did not go on to record the fundamental principle that no adverse inference could be drawn from the appellant’s decision not to give evidence. The Court concluded that the failure to properly record that principle supported the conclusion that there had been a miscarriage of justice

Sofronoff P and Boddice and Ryan JJ

26 June 2020

Background

The appellant, aged 14 at the time of offending, was alleged to have committed the offence of rape by digital penetration of the complainant’s vagina. The complainant was his 13 year old cousin. [5]–[7].

The rape was alleged to have occurred at a family party. [10]. The complainant gave evidence that she fell asleep on the couch, next to the appellant, and when she woke up the appellant’s finger or fingers were in her vagina. [21]–[22].

The appellant did not give evidence at trial. [51]. 

The trial judge’s failure to fully address the relevant principles of law

Section 23 of the Childrens Court Act provides:

“23   Issues of law and fact

Issues of law and fact are to be decided by the judge or jury as if the trial were a trial on indictment in the Supreme Court.”

Section 23 does not stipulate the method by which the trial judge is to decide those issues of law and fact [104]. By contrast, s 615C of the Criminal Code 1899 requires a judge in a trial by judge alone to identify in their reasons the principles of law applied by that judge and the findings of fact relied upon in determining the defendant’s guilt. [105]. While s 615C of the Criminal Code 1899 does not apply to a trial on indictment in the Childrens Court, its requirements are consistent with the common law obligation on any judicial officer to give reasons. [104], [106]. Boddice J explained that:

“It is incumbent upon a judge presiding over a trial by judge alone to not only direct himself or herself as to the relevant principles, but to record those relevant principles in the reasons for judgment ”. [110].

It is not necessary however for a trial judge presiding over a trial by judge alone to set out in his or her reasons the principles in the form of a Benchbook direction. This “overstates” the obligation of a trial judge as it proscribes a level of detail “which is not necessary to enunciate in the reasons of a judge alone trial ”. [110], [113].

Boddice J explained that a trial judge’s failure to record the relevant principles of law in their reasons for judgment gives rise to two possibilities: “[f]irst, that the principle was applied but not recorded by the judge; second, that the principle was overlooked by the judge”. [111]. If the principle is a relevant principle the failure to refer to it gives rise to errors that may amount to a miscarriage of justice. [112].

The Court of Appeal (Boddice J with Sofronoff P and Ryan J agreeing) held that the trial judge failed to record as His Honour’s reasons did not to address the following principles of law:

(i)The use to which evidence called by the defence may be considered in determining whether the prosecution had established the appellant’s guilt beyond reasonable doubt;

(ii)That no adverse inference was to be drawn from the fact that the defendant did not give evidence;

(iii)The relevance of the prosecution’s submission of there being no real motive for the complainant to lie; and

(iv)The relevance of evidence to counts which had been abandoned after a nolle prosequi was entered on the first day of trial. [113], [114].

The failure to refer to these principles of law in His Honour’s reasons suggested that the trial judge had not considered those important principles in determining the appellant’s guilt. [115].

More fundamentally however, the trial judge had misdirected himself with respect to the appellant’s failure to give evidence. [115]. In his reasons for judgment, the trial judge noted that “it is, nevertheless, true to say that the complainant’s version as to the offence was uncontradicted ”. [116]. It was considered that this reference “cannot be other” than a reference to the appellant having not given evidence at trial. [117]. Boddice J explained that “[i]t is impermissible for a jury to reason that the absence of evidence from an accused strengthens a Crown case” and therefore the trial judge had misdirected himself. [117]. This conclusion was reinforced by the trial judge’s failure to refer to this principle of law in his reasons. [118].

Ultimately, the Court of Appeal held that the trial Judge’s failure to record such fundamental principles of law in his reasons for judgement resulted in a miscarriage of justice. [119].

A Hughes of Counsel