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Court of Criminal Appeal 21 April 2023

Schoffel v R

[2023] NSWCCA 88

Assault & violenceTheft & propertyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST CONVICTION WHETHER PROVISO APPLIED NO SUBSTANTIAL MISCARRIAGE OF JUSTICE APPEAL DISMISSED

Citation: Schoffel v R [2023] NSWCCA 88
Court: Court of Criminal Appeal, New South Wales
Date: 21 April 2023
Judges: Leeming JA (principal judgment); Wilson J (agreeing); Dhanji J (separate reasons, partially dissenting on one issue)

Background

The appellant was tried by a judge sitting alone in the District Court on two charges: robbery with the use of corporal violence and perverting the course of justice. The robbery arose from an incident in February 2020 at an ATM in Kingswood, where the appellant grabbed the complainant, dragged him into an alleyway, assaulted him, and threatened to stab him until the complainant threw away his bank card. The appellant was apprehended shortly afterwards with the card found nearby.

The perverting the course of justice charge arose about two months later, when the appellant encountered the complainant near the same ATM and offered him money to withdraw the robbery charge. The trial ran over parts of two weeks in September 2021, entirely by audio-visual link due to the pandemic.

The primary judge reserved her decision and delivered judgment in October 2021, finding the appellant guilty on both counts. The appellant appealed against conviction on a single ground: that the judge's reasons failed to comply with section 133(2) of the Criminal Procedure Act 1986 (NSW), which requires a judge conducting a judge-alone trial to include in her reasons the legal elements of each offence.

  • Whether the primary judge's reasons breached section 133(2) of the Criminal Procedure Act 1986 (NSW) by failing to identify the essential legal elements of each offence.
  • If a breach of section 133(2) occurred, whether the proviso in section 6(1) of the Criminal Appeal Act 1912 (NSW) applied, meaning that no substantial miscarriage of justice resulted and the conviction should stand.

Decision

On the section 133(2) question (majority: Leeming JA, Wilson J agreeing)

Leeming JA held there was no breach in relation to the perverting the course of justice count. His Honour found that, by setting out the count in full at the outset of the reasons, the primary judge had included the elements of that offence at least by necessary implication. On the robbery count, however, the majority declined to decide the breach question. The Court had not received full argument on the proper construction of section 133(2) in this context, and the proviso resolved the matter in any event.

Dhanji J dissented on this point, concluding that the reasons for both offences were inadequate. His Honour reasoned that a bare statement that the essential elements had been proved is meaningless without identifying what those elements are, and that the reasoning failed to connect the charges stated at the outset with any conclusion of guilt.

On the proviso question (all three judges, for different reasons)

All three judges agreed the appeal should be dismissed on the basis that the proviso applied: no substantial miscarriage of justice had occurred. Leeming JA (Wilson J agreeing) emphasised that the primary judge's reasoning made clear she was satisfied of each factual matter needed to establish the agreed elements of both offences. The error, to the extent there was one, was a failure to identify legal elements that were not in dispute at trial and were not the central issue in the case. The Court confirmed that the proviso is not automatically unavailable merely because a judge sitting alone fails to state the elements of an offence.

Dhanji J reached the same ultimate conclusion by a different path. His Honour accepted that failing to state elements does not of itself preclude the proviso, and that the degree of departure from what the statute requires must be assessed. Given that the parties had proceeded on the basis of an agreed elements document, the deficiency in the reasons did not render speculation about the judge's reasoning inevitable. The reasons addressed the real issue at trial, namely whether the complainant's evidence could be accepted beyond reasonable doubt, and the failure did not impact the Court of Criminal Appeal's capacity to assess guilt. Accordingly, no substantial miscarriage of justice was established.

Orders Made

• The appeal should be dismissed.

Key Takeaways

  • Under section 133(2) of the Criminal Procedure Act 1986 (NSW), a judge conducting a judge-alone trial must include in her reasons the essential legal elements of each offence; the Court of Criminal Appeal confirmed it is preferable for judges to set those elements out expressly in every case, even where they are not in dispute and even where the reasoning otherwise makes them clear by implication.
  • A breach of section 133(2) does not automatically result in a successful appeal. The proviso in section 6(1) of the Criminal Appeal Act 1912 (NSW) remains available, and the appellate court must assess the nature and effect of the particular error to determine whether a substantial miscarriage of justice occurred.
  • In this case, the central dispute at trial was confined to the complainant's credibility. Because the primary judge's reasoning plainly addressed all factual matters needed to establish the agreed elements, the omission of those elements from the reasons did not produce a substantial miscarriage of justice.
  • All three judges agreed, despite differing on whether a breach of section 133(2) existed, that the degree of departure from the statutory requirement must be measured in context; a failure to state elements will not automatically satisfy the threshold for a substantial miscarriage of justice where the reasoning is otherwise sound and the issues were clearly identified.
  • Where parties to a judge-alone trial proceed on the basis of an agreed document setting out the elements of each offence, the existence of that document informs the assessment of whether any deficiency in the judge's reasons caused real prejudice to the accused.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 95(1), 319
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Criminal Procedure Act 1986 (NSW), ss 132, 133

Cases
- AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8
- Dansie v The Queen [2022] HCA 25; (2022) 92 ALJR 728
- DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
- Filippou v R (2015) 256 CLR 47; [2015] HCA 29
- Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
- Kalbasi v Western Australia (2018) 264 CLR 62; [2018] HCA 7
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v BK [2022] NSWCCA 51
- R v Chai [2002] HCA 12; 76 ALJR 628
- Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
- W v R [2014] NSWCCA 110