F-Troop’s Sgt O’Rourke and Cpl Agarn under defence!

I’ve heard from colleagues that in some summary case conferences at court or contest-mentions they’re facing declarations that the courts won’t permit defence by ambush, and that their accused client is required to disclose any defence they wish to advance.

I guess this might arise from the provisions dealing with summary-case conferences and contest-mentions, ss 54 and 55 of the Criminal Procedure Act 2009.

Section 54 provides for a conference between the prosecution and accused to manage the “progression of the case”, including identifying issues in dispute, and for any purpose provided by the Rules of the Court. And the Magistrates’ Court Criminal Procedure Rules 2009 r 21 indeed provide:

21 Summary case conference

The parties to a summary case conference shall engage in meaningful discussion relating to pre-trial disclosure, issues in dispute and the prospects for resolution of charges.

Section 55 requires the parties to provide estimates of time and witness numbers, notice of facilities that might be required, and relevantly to indicate the evidence that party proposes to adduce and to identify the issues in dispute, and anything else for the case management of the proceeding.

Similar provisions apply also to trials in the County and Supreme Courts. Section 179 provides for directions hearings (and applies only for trials, though I see the Magistrates’ Court has recently purported to rely on this provision to conduct yet more special mentions of matters heading to hearing), and s 183 provides for defence responses to the prosecution openings. (At least that provision expressly states the accused is not required to divulge the identity of any witnesses, or if they will testify themself.)

But none of these provisions expressly state that an accused person must divulge their defence prior to a hearing.

And it seems a little, well, odd to suggest that the prosecution — which brings the charge before the court — might somehow be surprised or ambushed by the accused pleading not guilty and then actually being able to point to a flaw in the prosecution case. After all, that’s the whole point of pleading not guilty.

The common law position

An accused is legitimately entitled to put the prosecution to its proofs, and to rely upon any deficiency, without notice to the prosecution.

A criminal trial is the prime example of an adversarial proceeding. Its adversarial character is substantially unrelieved by pre-trial procedures designed to limit the issues of fact in genuine dispute between the Crown and an accused. The issues for trial are ascertained by reference to the indictment and the plea and, subject to statute, the Crown has no right to notice of the issues which an accused proposes actively to contest. The Crown bears the onus of proving the guilt of an accused on every issue apart from insanity and statutory exceptions. The Crown must present the whole of its case foreseeing, so far as it reasonably can, any “defence” which an accused might raise, for the Crown will not be permitted, generally speaking, to adduce further evidence in rebuttal on any issue on which it bears the onus of proof. The Crown obtains no assistance in discharging that onus by pointing to some omission on the part of an accused to facilitate the presentation of the Crown’s case or to some difficulty encountered by the Crown in adducing rebuttal evidence which an accused could have alleviated by earlier notice. Even where an accused proposes to raise an alibi, there is no common law duty to give the Crown notice of the alibi. It was necessary to legislate to require notice of an alibi to be given to the Crown before trial, although a failure to give notice of an alibi might result in the Crown being permitted to call evidence in rebuttal if the alibi is first set up during the defence case. In a criminal trial, an accused is entitled to put the Crown to proof of any issue the onus of which rests on the Crown without giving prior notice of the ground on which he intends to contest the issue. If the ground be some matter of fact, an accused is entitled to abstain from giving notice of the ground until a witness is called during the trial to whom the matter of fact can and should be put: Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 at 108 per Brennan J.

This is a manifestation of the right to silence, closely related to the principle that the prosecution must prove guilt beyond reasonable doubt.

Nevertheless, the right of an accused to refrain from disclosing his defence until an appropriate stage of the trial, the scope of the right of silence and an accused’s freedom to abstain, without prejudice to the conduct of his defence, from cross-examining a witness on committal proceedings are questions of such importance to criminal practice and procedure that special leave must be granted…: Petty v The Queen; Maiden v The Queen (1991) 173 CLR 95 at 111 per Brennan J.

It’s also legitimate for the accused to put the prosecution to its proofs, and to see if it metaphorically trips over its own feet. In HML v The Queen (2008) 235 CLR 334 at 353, [9], Gleeson CJ noted, “It is important not to overlook the legitimate opportunism that may be involved in the conduct of a defence under the accusatorial system of trial.”

Do case-management rules alter anything?

Those passages from Petty were applied in R v Ling (1996) 90 A Crim R 376, a decision from the SA Court of Appeal. In that case, the accused was charged with offences and acquitted by the Magistrates’ Court after calling two witnesses not previously known by or disclosed to the prosecution.

The Magistrate held the accused had breached the relevant case management rules, and so was not entitled to his full costs. The accused appealed that decision.

The relevant rule was Rule 26 of the Magistrates’ Court Rules 1992 (SA), which provided:

26.01 Prior to any matter being listed for summary trial the parties must have ascertained the precise matters in issue both as to fact (in detail) and law as to:

(a) fully explore the possibility of disposing of the charge other than by way of trial;

(b) enable the duration of the hearing to be estimated as accurately as possible;

(c) determine what evidence if any may be proved by affidavit;

(d) facilitate the course of the trial,

and shall inform the court as to each of the above.

26.02 To the extent necessary to comply with this rule the parties must confer fully and frankly.

26.03 Prior to a matter being set down for hearing the defence must give notice to the prosecution if evidence of alibi may be called. The notice must give details of the proposed evidence including the name and address of the witnesses.

26.04 Insufficient compliance with this rule must be taken into account on the question of costs.

26.05 To ensure compliance with r 8 and this rule the court may on notice to the parties require that they attend a pretrial conference.

On the appeal, he Full Court of the Supreme Court of South Australia held that case management procedures which on their face required an accused person to disclose their defence could not abrogate such a basic and fundamental principle as the right to silence.

That being so, it is my opinion that r 26 is not to be interpreted as requiring that before a matter is listed for trial, or indeed at any time, the defence disclose its case, nor as requiring that the defence disclose whether evidence will be called and if so from whom and what that evidence is.

I reach that conclusion despite the imperative language used in r 26 and despite the reference in r 26.05 to r 8 which deals with case flow management…

At a first glance r 26 is so expressed as to suggest that it does require such disclosure, but in my opinion it is clear upon reflection that r 26 must be interpreted as operating in the context of the right of silence, and not as displacing it. It certainly does not displace the right of silence in express terms, and in my opinion there is no necessary implication from its nature and terms that it does so.

…

The rules of all three courts [Magistrates’, District and Supreme] reflect a new emphasis, found also in the rules of many other courts, upon case flow management and upon the obligation of parties to assist the court in the just and efficient determination of the business before it. Courts today accept a responsibility not simply for the just determination of a criminal trial in accordance with traditional criminal procedure, but also for the prompt and efficient disposition of the business of the criminal courts. But while the rules of the courts of this State require the cooperation of the parties to that end, they do not, as I understand them, infringe upon the fundamental right of silence: R v Ling (1996) 90 A Crim R 376 at 380 per Doyle CJ.

Doyle CJ held that to the extent that case management rules purport to abrogate the right to silence, they are invalid in the absence of clear express contrary legislative intention.

If r 26 were to be construed as abrogating the right of silence it would, in my opinion, be invalid as being beyond the rule-making power conferred upon the court. It would not accord with general principle to interpret a power to make rules regulating practice and procedure as empowering a rule of court which abrogated a fundamental common law right. The relationship between matters of procedure and matters of substantive law is, in our system, a complex one. The regulation of procedure may affect substantive law, and so a procedural rule might be valid although it intrudes into the area of substantive law. But I am of the opinion that a power to make procedural rules does not enable a court to entrench upon fundamental common law rights. This conclusion is consistent with the decision of this Court in Taylor v Guttilla (1992) 59 SASR 361 in which case the court held beyond the rule-making power a rule of court which, in civil proceedings, required the production by a party of a medical report notwithstanding the fact that that report was protected by legal professional privilege: R v Ling (1996) 90 A Crimr R 376 at 381.

Doyle CJ understood the consequence of what he was saying, and that it had the potential to modify the efficiency of the case-management system.

But, he had two answers to that.

The first was to discuss the possible statutory modification of the right to silence to allow for Courts to compel disclosure by an accused. (We already have some such modification of the common law, in Criminal Procedure Act ss 50 & 189 (expert witnesses), and 51 & 190 (alibi).)

I have reached these conclusions about the interpretation of r 26 and the scope of the rule-making power conferred upon the Magistrates Court in the full realisation that my approach may be seen as inhibiting the contemporary emphasis upon case flow management and the view, which is steadily gaining wider acceptance, that the public interest in the just and efficient disposition of criminal proceedings may require that courts be given significant controls over the conduct of such proceedings.

It may be that the time has come for some limits to be placed upon the right of silence and for some obligation to be imposed upon the defence to join in the identification of and limiting of issues in criminal proceedings to an extent inconsistent with the maintenance of the right of silence. It is well known that the criminal courts in Australia and in other countries are struggling to cope with the volume of work coming before them. It is equally well known that the length of trials is tending to increase. These matters are a cause for real concern. It is equally well known that the effectiveness of current methods of case flow management is limited because, among other things, under rules such as those that exist in South Australia, the court has no power to require the defence to disclose the nature and extent of the defence case.

The appropriate balance between the responsibility of the court for the efficient conduct of cases before it, and so the width of its powers of case management on the one hand, and the operation of the right of silence on the other hand, is an important issue. It is an issue which, I believe, will have to be faced by the courts and by Parliament in due course. I am not to be taken as suggesting that the right of silence should be abolished. I merely observe that whether it should be limited is an important issue. The right is, to my mind, so fundamental that if it is to be removed that can be done only by Parliament or by statutory authority clearly conferred, and should be done only in the light of a careful consideration of the desirability of the limitation of the right of silence and of the extent of any limitation: R v Ling (1996) 90 A Crim R 376 at 381 – 2 per Doyle CJ.

The second answer was the effect upon costs. In this case the Court was wrong to conclude the accused was disentitled to costs because of non-compliance with the case-management rules. But, it was open to the magistrate to consider the accused’s non-disclosure of the witness statements under the general discretion to award costs. (There, under Summary Procedure Act 1921 (SA) s 189, here under Criminal Procedure Act 2009 s 401.)

As to that decision to take the prosecution by surprise, the magistrate remarked that “The tactic was highly successful.” But he went on to say that once the defence had pinned the prosecution down by obtaining particulars, it could have produced the statements. That, to me, seems right. The defence was entitled to take the course which it took, but under the circumstances it seems that it had little or nothing to lose and a reasonable prospect of negotiating a withdrawal if it had been more forthcoming. I consider that a more open approach might have avoided the continuation of the prosecution, as the magistrate appears to have concluded. I accept the magistrate’s view, and that of the single judge, that it was not necessary or appropriate to take surprise to the extent that it was taken. In those circumstances it was appropriate to refuse a full award of costs: R v Ling (1996) 90 A Crim R 376 at 388 – 9 per Doyle CJ.

I expect that means though that when the prosecution particularises its case a certain way, it should be obliged to stick with it, and the court should not ‘descend into the arena’ and try to remedy any apparent defects. R v GAS [1998] 3 VR 862 is an example of the prosecution changing tack late in a trial, resulting in a miscarriage of justice, and Robinson v The Queen (2006) 162 A Crim R 88 and Waters v The Queen [2011] VSCA 415 are others, where Benches either re-cast the prosecution case, or allowed it to be put a different way to that originally advanced. Not only can that potentially cause all sorts of legal problems, practically, an accused is just not going to tip their hand if the result is to allow the prosecution to put a different case to overcome any defects in its prosecution. If that’s allowed to occur, it’s hardly surprising the accused will rely heavily on their rights of challenge and opportunism as endorsed in Ling.

But for the time being, it seems when the accused is asked, “What’s your defence?” that they’re lawfully entitled to say, “Not telling.”