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7
Court of Criminal Appeal 25 September 2015

Ellis v R

[2015] NSWCCA 262

Drugs
CRIMINAL LAW APPEAL CONDUCT OF JUDGE SENTENCING PROCEDURAL FAIRNESS QUESTIONING BY JUDGE

Citation: Ellis v R [2015] NSWCCA 262
Court: Court of Criminal Appeal (NSW)
Date: 25 September 2015
Judges: Bathurst CJ; R A Hulme J; Garling J

Background

The applicant pleaded guilty in the District Court to manufacturing a large commercial quantity of MDA (a prohibited drug, 3,4-methylenedioxyamphetamine), involving approximately 19.275 kilograms. He was sentenced to nine years' imprisonment with a non-parole period of six years, which included a 25 per cent discount for his early guilty plea.

During the sentencing hearing, the applicant gave evidence but declined to identify persons depicted in a photograph tendered by the Crown. He explained he feared for his safety and that of his family. A police report and a threatening note left at his mother's home (reading "If B talks you're next bitch") were tendered in support of that concern.

The sentencing judge responded to the applicant's refusal with pointed criticism, suggesting the applicant was being selective about the truth. The judge also criticised the applicant's solicitor. The applicant subsequently withdrew from giving evidence altogether. In his remarks on sentence, the judge referred adversely to the applicant's failure to give evidence across several matters, including the objective seriousness of the offence and the applicant's subjective circumstances.

  • Whether the sentencing judge's intervention during the applicant's evidence in chief constituted a denial of procedural fairness amounting to a miscarriage of justice.
  • Whether the applicant had a justifiable sense of grievance arising from a comparison of his sentence with those of his co-offenders (this ground was not decided, given the outcome on ground one).
  • Whether an extension of time to seek leave to appeal should be granted.

Decision

The Court of Criminal Appeal found that the sentencing judge's conduct was unwarranted and caused a miscarriage of justice. The court identified six distinct problems with the judge's intervention.

First, the question about the photograph was of doubtful relevance, and it was asked early in examination in chief before evidentiary issues had crystallised. Second, the judge's immediate reaction to the refusal characterised the applicant as unwilling to tell the truth, which was an unjustified characterisation given that drug offenders have well-recognised reasons to fear identifying co-offenders. Third, the judge's comment that the applicant must tell the "whole story" or else his evidence would have no value reflected a misapprehension of the sentencing judge's role.

Fourth, the judge failed to consider the police report and threatening note as relevant to the applicant's reluctance to name co-offenders. Fifth, the judge refused to entertain submissions about the circumstances in which a co-offender had not been required to give equivalent evidence before a differently constituted court. The combined effect of these matters caused the applicant to withdraw his evidence, resulting in the sentencing judge then drawing adverse inferences from its absence across multiple issues. The court was careful to note that a witness giving evidence in sentence proceedings does not have a general discretion to refuse to answer questions. The miscarriage arose from the specific nature and timing of the questions and, critically, the judge's response to the refusal.

The court allowed the appeal, quashed the sentence, and remitted the matter for resentencing before a differently constituted District Court.

Orders Made

  • Time for lodging the application for leave to appeal extended to 15 May 2015.
  • Leave to appeal granted.
  • Appeal allowed; sentence imposed by the District Court on 3 July 2012 quashed.
  • Matter remitted to the District Court for resentencing by a court differently constituted.

Key Takeaways

  • A sentencing judge must not perform an inquisitorial role. Excessive intervention that prevents a party from properly presenting their case can constitute a miscarriage of justice, even in sentencing proceedings rather than a contested trial.
  • The timing and nature of judicial questioning matters. Pressing a witness to answer a question of doubtful relevance at an early stage of evidence in chief, before evidentiary issues have crystallised, heightens the risk that the intervention will be found unjustifiable.
  • Where a drug offender declines to identify co-offenders during sentencing, a sentencing court is required to consider available evidence of safety concerns (such as police reports and threatening communications) before characterising the refusal as untruthfulness or selective evidence.
  • A miscarriage of justice in sentencing proceedings can support both a grant of leave and an extension of time to appeal, as confirmed by reference to Kentwell v The Queen [2014] HCA 37.
  • Remittal to a differently constituted court is an available and appropriate remedy where the original sentencing proceedings miscarried due to the conduct of the judge.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Yuill v Yuill [1945] P 15
- Jones v National Coal Board (1957) 2 QB 55
- Ratten v The Queen [1974] HCA 35; 131 CLR 510
- Galea v Galea (1990) 19 NSWLR 263
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- R v Vachalec (1981) 1 NSWLR 351
- Pham v R [2010] NSWCCA 208
- O'Neil-Shaw v The Queen [2010] NSWCCA 42
- R v Baleisuva [2004] NSWCCA 344
- R v Capaldo [2015] SASCFC 56
- R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382