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Court of Criminal Appeal 27 November 2017

R v Lazarus

[2017] NSWCCA 279

Also reported as (2017) 270 A Crim R 378
Sexual offences
PRACTICE AND PROCEDURE JUDGES OFFENCES APPEAL WHETHER SUCH MATTERS WERE CONSIDERED OFFENCES

Citation: R v Lazarus [2017] NSWCCA 279
Court: Court of Criminal Appeal of New South Wales
Date: 27 November 2017
Judge(s): Hoeben CJ at CL, Davies J, Bellew J

Background

The respondent was charged under s 61I of the Crimes Act 1900 (NSW) with having sexual intercourse without consent arising from an incident on 12 May 2013. He was first convicted at a jury trial in the District Court in February 2015 and sentenced to five years imprisonment with a three-year non-parole period. The Court of Criminal Appeal quashed that conviction in February 2016 and ordered a retrial: Lazarus v R [2016] NSWCCA 52.

At the retrial, conducted before a judge alone pursuant to s 132 of the Criminal Procedure Act 1986 (NSW), the respondent was acquitted on 4 May 2017. The Crown appealed that acquittal under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) on two grounds.

The appeal also raised a significant procedural issue: after delivering her oral reasons, the trial judge revised them, including inserting the word "not" in a passage dealing with self-induced intoxication. A further revision was later made following correspondence between the respondent's solicitor and transcription services, conducted without notice to the Crown.

  • Whether the trial judge erred by taking into account the respondent's self-induced intoxication when assessing whether he had reasonable grounds to believe the complainant was consenting, contrary to s 61HA(3)(e) of the Crimes Act 1900.
  • Whether the trial judge erred by failing to direct herself to consider any steps taken by the respondent to ascertain whether the complainant was consenting, as required by s 61HA(3)(d) of the Crimes Act 1900.
  • Whether the post-delivery revision of the trial judge's reasons (inserting the word "not") was permissible.
  • Whether a further revision made following one-sided correspondence between the respondent's solicitor and transcription services was permissible.
  • If error was established, whether the interests of justice required that the respondent be tried for a third time.
  • Whether purely subjective perceptions held by an accused could constitute "steps" for the purposes of s 61HA(3)(d).

Decision

Ground 1: Self-induced intoxication and revision of reasons. The majority (Hoeben CJ at CL and Davies J, in agreement with Bellew J) held that the further revision inserting the word "not" following the solicitor's correspondence was not permissible, since the word had not been spoken when the reasons were delivered orally. Despite this, the court found it unnecessary to set aside the judgment on this basis. Read as a whole, the reasons demonstrated that the trial judge had consistently and independently recognised, at multiple points both before and after the impugned passage, that self-induced intoxication could not be taken into account under s 61HA(3)(e). The omission of the word "not" in that one passage was an inadvertent slip, inconsistent with every other statement of principle in the reasons. No error of law was established on this ground.

Ground 2: Failure to consider steps taken to ascertain consent. The court upheld this ground. Section 61HA(3)(d) of the Crimes Act 1900 required the trial judge to have regard to any steps taken by the respondent to ascertain whether the complainant was consenting. The trial judge made no reference to this provision anywhere in her reasons. The court found it was not possible to be satisfied that she had applied it, and her failure to expose her reasoning on this point constituted error.

Whether subjective perceptions amount to "steps". The court considered whether the respondent's internal perceptions could constitute "steps" for the purposes of s 61HA(3)(d). The court accepted that the word "steps" requires some positive or active conduct directed at ascertaining consent, and that purely subjective perceptions of an accused, without more, do not satisfy this requirement.

Whether a third trial should be ordered. Despite establishing error on Ground 2, the court exercised its discretion not to order a third trial. Relevant factors included: neither the first nor the second appeal arose from any fault of the respondent or his legal representatives; a retrial would take place more than five years after the event; the respondent had already served ten months of a custodial sentence; and the principle against double jeopardy, though partially abrogated by statute, remained a weighty consideration. The court concluded that ordering a third trial would be oppressive and unfair, and dismissed the Crown appeal.

Conduct of the solicitor. The court also addressed the respondent's solicitor's conduct in corresponding with transcription services about an alleged typographical error without notifying the Crown. The court noted that the solicitor knew the issue of whether there was a typographical error was directly relevant to one of the Crown's proposed grounds of appeal, of which he had notice. The court emphasised that the fundamental principle requiring that a judge not receive representations from one party without the knowledge of the other applies equally to communications routed through third parties such as transcription services.

Orders Made

  • The Crown appeal is dismissed.
  • Upon publication of the reasons, the suppression order made on 1 September 2017 prohibiting publication of anything identifying the respondent ceases to have effect pursuant to s 111(5) of the Crimes (Appeal and Review) Act 2001 (NSW).

Key Takeaways

  • Where a trial judge revises orally delivered reasons, the permissible scope of revision does not extend to inserting a word that was not spoken at the time of delivery, even where it is apparent the omission was an inadvertent slip.
  • A single erroneous passage in a judgment need not vitiate the whole, provided a full reading of the reasons demonstrates the judge correctly understood and applied the relevant legal principle throughout.
  • Under s 61HA(3)(d) of the Crimes Act 1900, a trial judge in a sexual assault proceeding must explicitly address any steps the accused took to ascertain the complainant's consent; purely subjective perceptions of the accused do not constitute "steps" for this purpose.
  • In dismissing the appeal, the court confirmed that even where legal error is established in an acquittal appeal, the discretion to order a retrial will not be exercised where doing so would be oppressive, particularly where the accused bears no responsibility for the procedural history and has already served part of a custodial sentence.
  • Legal practitioners must not make representations to a trial judge concerning matters in issue in pending proceedings without the knowledge of the opposing party, including where such communications are directed through third parties such as transcription services.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61I, 61HA(3)(d), 61HA(3)(e)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 111
- Criminal Procedure Act 1986 (NSW), s 132
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015

Cases
- Lazarus v R [2016] NSWCCA 52
- R v PL (2009) 261 ALR 365; [2009] NSWCCA 256
- R v PL [2012] NSWCCA 31
- R v Thomas (No 3) (2006) 14 VR 512; [2006] VSCA 300
- Filippou v R (2015) 256 CLR 47; [2015] HCA 29
- Fleming v R (1998) 197 CLR 250; [1998] HCA 68
- Spies v R (2000) 201 CLR 603; [2000] HCA 43
- Gilbert v R (2000) 201 CLR 414; [2000] HCA 15
- Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; [1984] HCA 48
- Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39
- Palmer v Clarke (1989) 19 NSWLR 158
- Spencer v Bamber [2