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Supreme Court 14 August 2002

SUTHERS v. DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

[2002] NSWSC 719

Sexual offences
CRIMINAL LAW PROCEEDINGS BEFORE MAGISTRATE ONUS AND STANDARD OF PROOF ERROR OF LAW

Citation: Suthers v Director of Public Prosecutions & Anor [2002] NSWSC 719
Court: Supreme Court of New South Wales (Common Law Division)
Date: 14 August 2002
Judge(s): Greg James J

Background

The plaintiff had been convicted in the Local Court at Wagga Wagga of aggravated indecent assault under s 61M(1) of the Crimes Act 1900. The alleged victim was a 12-year-old boy. The magistrate delivered a detailed written judgment setting out her findings of fact, the legal principles she applied, and her reasoning process.

The plaintiff brought proceedings in the Supreme Court by summons seeking to quash both the conviction and the sentence. The first defendant was the Director of Public Prosecutions; the second was the informant police officer. Together they were treated as the prosecutors for the purposes of the Supreme Court proceedings.

The central factual dispute at first instance concerned the nature of physical contact between the plaintiff and the complainant near university campus cottages in Wagga Wagga. Much of the surrounding context, including the movements of the parties and the complainant's prompt complaint to his mother, was not in dispute.

  • Whether the magistrate erred in law by misapplying the onus and standard of proof when evaluating the evidence, including the defendant's evidence
  • Whether the magistrate's reasoning displayed the kind of error identified in Robinson (1988-89) 180 CLR 531, namely treating the accused's denial as diminished in weight on the basis that the accused had a strong motivation to lie
  • Whether s 141 of the Evidence Act 1995 (which requires proof beyond reasonable doubt in criminal proceedings) was properly applied
  • What consequential relief, if any, should follow from a finding of legal error (including whether an acquittal should be entered)

Decision

Greg James J found that the magistrate's published reasons revealed a clear error of law in her treatment of the onus and standard of proof. The magistrate had reasoned that the defendant's evidence was tainted by a high motivation to lie, a conclusion that appeared to arise solely from her supposition about his perception of the consequences of a conviction regardless of his innocence or guilt. This reasoning went beyond even the misdirection condemned in Robinson.

The Court found that this approach diverted the magistrate from properly evaluating the prosecution evidence in accordance with the law, and from giving appropriate consideration to the evidence favouring the defence case. The error was characterised as one of law, making it amenable to appeal under s 104 of the Justices Act 1902 without the need for leave.

On the question of what relief should follow, the Court quashed both the conviction and the sentence. However, the further question of what consequential orders should be made, including whether an acquittal should be entered, was stood over for further argument. The plaintiff had initially pressed for an acquittal, but the Court noted this raised questions of some difficulty that required further written submissions from both parties.

Orders Made

  • The conviction of the plaintiff for the offence of aggravated indecent assault was quashed
  • The sentence passed for that offence was also quashed
  • The question of consequential orders was stood over to a date to be fixed
  • The plaintiff was directed to file written submissions on outstanding questions by 27 September 2002
  • The defendant was directed to file submissions in reply by 25 October 2002

Key Takeaways

  • A magistrate's written reasons can themselves disclose an error of law where they reveal that the standard and onus of proof were not properly applied when assessing the evidence, including evidence favourable to the defence.
  • The reasoning error condemned in Robinson (1988-89) 180 CLR 531 applies equally to magistrates sitting alone as it does to jury directions: a fact-finder must not discount an accused's evidence simply on the basis that the accused has a strong personal motivation to lie arising from the prospect of conviction.
  • Under s 141 of the Evidence Act 1995, criminal proceedings require proof beyond reasonable doubt, and a failure to apply that standard consistently throughout the reasoning process constitutes an error of law.
  • Quashing a conviction for legal error does not automatically produce an acquittal. Whether an acquittal should be entered in lieu is a separate question that may raise distinct legal difficulties, as this decision illustrates by standing that question over for further argument.
  • An appeal under s 104 of the Justices Act 1902 on a ground of law alone does not require leave, distinguishing it from appeals on mixed law and fact.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), s 104
- Crimes Act 1900 (NSW), s 61M(1)
- Evidence Act 1995 (NSW), ss 38, 141
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- Robinson (1988-89) 180 CLR 531 (High Court)
- Robinson (1995) 80 A Crim R 358
- Fleming v The Queen (1998) 158 ALR 379
- Gipp v The Queen (1998) 194 CLR 106
- Regina v Giam (1999) 104 A Crim R 406
- Kneebone [1999] NSWCCA 279
- Kennedy [2000] NSWCCA 487
- Brotherton (1993) 29 NSWLR 95
- Stafford (1993) 67 ALJR 510
- Asquith (1994) 72 A Crim R 250
- Reeves (CCA, unreported, 13 September 1993)