lbr 3/00 evidence amendment bill 2000 · aggravating facts, ... are also directed to the relevant...

LBR 3/00 Evidence Amendment Bill 2000

The Queensland Court of Appeal decided in Morrison that thestandard of proof for fact finding on sentence for disputedaggravating facts, would be the criminal standard of beyondreasonable doubt. The Evidence Amendment Bill 2000 amendsthe Evidence Act 1977 to restore the law on fact finding to itsoriginal position prior to the Morrison decision, and require thecourts to find contested facts that are of an aggravation on thebalance of probabilities.

Wayne Jarred

Legislation Brief 3/00May 2000

© Queensland Parliamentary Library, 2000

LEGISLATION BRIEFISSN 1443-7910ISBN 0 7242 7877 X

This Legislation Bulletin was prepared to assist Members in their consideration of the Bill in theQueensland Legislative Assembly. It should not be considered as a complete guide to the legislationand does not constitute legal advice.

The Bulletin reflects the legislation as introduced. The Queensland Legislation Annotations,prepared by the Office of the Queensland Parliamentary Counsel, or the Bills Update, produced bythe Table Office of the Queensland Parliament, should be consulted to determine whether the Bill hasbeen enacted and if so, whether the legislation as enacted reflects amendments in Committee. Readersare also directed to the relevant Alert Digest of the Scrutiny of Legislation Committee of theQueensland Parliament.

Copyright protects this publication. Except for purposes permitted by the Copyright Act 1968,reproduction by whatever means is prohibited, other than by Members of the Queensland Parliament inthe course of their official duties, without the prior written permission of the Parliamentary Librarian,Queensland Parliamentary Library.

Inquiries should be addressed to:

Director, Research Publications & ResourcesQueensland Parliamentary LibraryParliament HouseGeorge Street, Brisbane QLD 4000Director: Ms Mary Seefried. (Tel: 07 3406 7116)

Information about Research Publications can be found on the Internet at:

http://www.parliament.qld.gov.au/parlib/research/index.htm

CONTENTS

1 INTRODUCTION .............................................................................................1

2 THE DIFFERENCE BETWEEN THE TWO STANDARDS OF PROOF.....2

2.1 BEYOND REASONABLE DOUBT........................................................................2

2.2 ON THE BALANCE OF PROBABILITIES.............................................................3

3 RECENT JUDICIAL EXAMINATION OF FACT FINDING ONSENTENCE........................................................................................................5

4 THE DECISION IN MORRISON ...................................................................6

5 POSSIBLE NEGATIVE EFFECTS OF THE MORRISON DECISION ......10

6 DISPUTED FACTS OF MITIGATION AND AGGRAVATION ................12

6.1 CIRCUMSTANCES OF MITIGATION................................................................12

6.2 CIRCUMSTANCES OF AGGRAVATION............................................................12

6.3 AGGRAVATING AND MITIGATING ISSUES – PRE-SENTENCE REPORTS ............13

6.4 AGGRAVATING ISSUES -VICTIM IMPACT STATEMENTS.................................15

6.5 PREVALENCE OF THE OFFENCE.....................................................................16

7 ISSUES IN SUPPORT OF THE MORRISON DECISION...........................18

8 CONCLUSION ................................................................................................18

BIBLIOGRAPHY...................................................................................................20

Evidence Amendment Bill 2000 Page 1

1 INTRODUCTION

The Evidence Amendment Bill 2000 was introduced into the Parliament on 12 April2000. The objective of the Bill is to return the law relating to fact finding on sentence tothe situation that existed in Queensland before the June 1998 Court of Appeal decision inMorrison.1

By its decision in Morrison the Queensland Court of Appeal overturned what had beenregarded as the law for the standard of proof of contested facts at sentence hearings.The Government’s concern with the decision is based on the ramifications for sentencehearings in the future.

The Explanatory Notes accompanying the Bill indicate that the Government isconcerned with a number of difficulties that could arise with the introduction of the newtest as formulated in Morrison. The perceived difficulties are:

• Victim impact statements may be more closely scrutinised or examined under thenew standard of proof, leading to the probability of more victims being cross-examined on the information contained in their impact statements in order that thenew standard of proof be satisfied;

• A similar concern with pre-sentence reports as there is with victim impactstatements;

• That mitigating and aggravating factors impacting on the severity of sentence willbe dealt with by the courts under two different standards of proof;

• The probability that sentence hearings will take longer and will be more costly tothe State and the parties involved.2

Proof on the balance of probabilities for facts at sentence hearings had, prior to theMorrison decision, existed for many years in Queensland. It was regarded by manyQueensland legal practitioners as a workable process that had served the criminal justicesystem well.

As indicated in the Attorney-General’s Second Reading Speech in the House, thedecision of the Appeal Court to overturn the existing law was not unanimous. It was asplit decision of 3 to 2 and the issue was regarded as important enough to warrant theattention of the Full Court of the Court of Appeal.

1 Queen v Phillip John Morrison (1999) 1 Qd. R 397 (Decision delivered 26 June 1998).

2 Evidence Amendment Bill 2000, Explanatory Notes, p 2.

Evidence Amendment Bill 2000

In September 1998 a Discussion Paper was published calling for professional and publiccomment on whether the decision of the Court of Appeal should be allowed to stand orwhether legislation should be enacted to overturn that decision.3

2 THE DIFFERENCE BETWEEN THE TWO STANDARDS OF PROOF

Standard of proof is defined as an objective measure for determining whether or not afact or issue has been proved.

In the 1938 High Court case of Briginshaw which concerned a petition for divorce underthe Marriage Act 1928 (Cth), counsel for the respondent submitted that there was nodifference between a preponderance of probability and proof beyond reasonable doubt.4

Latham CJ deliberated that the difference between the civil standard of proof (balance ofprobability) and the criminal standard of proof (beyond reasonable doubt) had beenexamined and explained in the High Court before. He went on to say that he was notprepared to accept the view that was submitted, that the difference between the civilstandard and the criminal standard was merely a matter of words.5

2.1 BEYOND REASONABLE DOUBT

‘Beyond reasonable doubt’ is the standard of proof that is applied to criminalproceedings at trial. To comply with this standard a court must not find an accusedperson guilty unless it is satisfied beyond reasonable doubt that the accused committedthe offence. What amounts to reasonable doubt is to be determined by the jury in thecircumstances.6

An authorative English case clarified beyond reasonable doubt in the following way:

Proof beyond a reasonable doubt does not mean proof beyond the shadow ofa doubt. The law would fail to protect the community if it admitted fancifulpossibilities to deflect the course of justice. If the evidence is so strongagainst a man as to leave only a remote possibility in his favour, which canbe dismissed with the sentence ‘of course it is possible but not in the least

3 Department of Justice and the Attorney-General, Fact Finding on Sentence, Discussion Paper,August 1998.

4 Briginshaw v Briginshaw and Another(1938) 60 CLR 336 at 339.

5 Briginshaw v Briginshaw and Another (1938) 60 CLR 336 at 344.

6 Green & Murrells v R (1971) 126 CLR 28.


probable’ the case is proved beyond reasonable doubt, but nothing short ofthat will suffice.7

2.2 ON THE BALANCE OF PROBABILITIES

The ‘balance of probabilities’ is the standard of proof that is used in civil cases. Underthis standard, a verdict is reached by the weighing up of competing possibilities. A fact istaken as being true if its existence is more probable than not, or it is established by apreponderance of probability that it is true.8

In another English case the civil standard of proof was clarified as:

It must carry a reasonable degree of probability, but not so high as isrequired in a criminal case. If the evidence is such that the tribunal can say:‘We think it more probable than not’, the burden is discharged, but if theprobabilities are equal it is not.9

In Queensland, prior to the Morrison decision, the use of the probability standard for factfinding at sentence allowed the sentencing courts to satisfy themselves of contested factsto a standard less than that required under reasonable doubt. The probability standardmanifests itself in judicial comments such as:

You have probably participated in the offence to a degree more than youadmit.10

The facts stated represent a reasonable inference.11

The appellant seemed to be the ringleader.12

What the courts are doing when they find a fact to be what it is, on the balance ofprobabilities, is to satisfy themselves of a prescribed level of probability.13

7 Miller v Minister of Pensions (1947) 2 All ER 372 at 373-374.

8 Rejfek v McElroy (1965) 112 CLR 517.

9 Davies v Taylor (1974) AC 207 at 219.

10 R v Flewell-Smith & Ors (Q.C.A. No 7 of 1979, 28 February 1979).

11 R v L.J. Byrne (Q.C.A. No 100 of 1978, 17 August 1979).

12 R v Carson and Ors (Q.C.A. No 296 of 1978, 5 February 1979).

13 J D Heydon, Cross on Evidence, Butterworths, 5th Australian Edition 1996, p 238 [9015].


Clause 4 of the Bill inserts a new s 132C(4) into the Evidence Act 1977. This newsubsection prescribes that the sentencing court will be required to satisfy itself of the truthof the matter to a degree in accordance with the adverse consequences to the offender.This represents a ‘sliding scale’ of the level of satisfaction to be held by the court.

For example, if the prosecution informs the court that the offender has had a previousconviction for a similar offence but this is challenged by the defence, the degree ofsatisfaction on the balance of probabilities that the court would be required to exhibitwould be high. This is because previous convictions would be more likely to result in ahigher penalty than if there were no previous conviction.

The sliding scale rule has been used since the 1938 High Court case of Briginshawwhere it was stated by Dixon J:

Reasonable satisfaction is not a state of mind that is attained or establishedindependently of the nature and consequence of the fact or facts to beproved. The seriousness of an allegation made, the inherent unlikelihood ofan occurrence of the given description, or the gravity of the consequencesflowing from a particular finding are considerations which must affect theanswer to the question whether the issue has been proved to the reasonablesatisfaction of the tribunal. In such matters ‘reasonable satisfaction’ shouldnot be produced by inexact proofs, indefinite testimony, or indirectinferences.14

In the New South Wales case of Sutherland Shire Council, Mahoney JA deliberated:

“Probability” is a term which may have several different meanings… One ofthese refers to the subjective confidence of the person in question in thecorrectness of a particular judgment or proposition and, in particular, suchconfidence based on reasonable grounds… According to this meaning,something is probable, if that person has the appropriate degree ofconfidence in its existence or correctness, based on or judged according toreason.15

14 Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363.

15 Jones v Sutherland Shire Council (1979) 2 NSWLR 206 at 227-228.


3 RECENT JUDICIAL EXAMINATION OF FACT FINDING ONSENTENCE

There is background to the appropriate standard of proof that should apply at the time ofsentencing. In 1993 the matter was examined by the High Court in Anderson.16 TheAnderson appeal to the High Court was from a decision of the Appeal Court of SouthAustralia. The situation in South Australia at that time was summed up by Brennan andDawson JJ of the High Court in the following passage:

It has been the practice in South Australia for the prosecution on sentence tocarry the onus of proving beyond reasonable doubt contested factsunfavourable to an offender which have not been established by the verdictor plea of guilty.17

The practice in other States and Territories is not uniform. The approach inSouth Australia has been followed in New South Wales, in Tasmania, in theAustralian Capital Territory and perhaps in Western Australia. However, adifferent view has been taken in Victoria and in Queensland.18

The High Court in Anderson confirmed that the prosecution in criminal trials bore an onusof proving, beyond reasonable doubt, facts that would amount to circumstances ofaggravation leading to a higher penalty for the offender. There was to be some differenceof opinion as to whether this decision of the High Court in Anderson was binding on alllower courts in Australia.

The West Australian Court of Appeal in Langridge19 interpreted the High Court decisionin Anderson as a determination that was to be followed by the courts in all Australianjurisdictions and not just South Australia from whence the appeal originated:

…the general rule should be that it is for the Crown to prove beyondreasonable doubt the facts going to sentence and which, if found, would belikely to result in a more severe sentence than would otherwise be the case.

The rule which I favour accords with the preponderance of authority and theapproach appears to me to be correct in principle. In particular, it accords Ibelieve, with the majority of the view in the High Court in Anderson v TheQueen. I do not consider that Deane, Toohey and Gaudron JJ were limitingtheir observations to the position in South Australia.

16 Anderson v R (1993) 177 CLR 520.

17 Anderson v R (1993) 117 ALR 1 at 5.

18 Anderson v R (1993) 117 ALR 1 at 5 and footnote 10.

19 R v Langridge (1996) 17 WAR 346.


It should certainly not be the case that different rules should continue to beapplied as between the various States and Territories.20

By its decision in Langridge the West Australian Court of Criminal Appeal overturned itsprevious decision in Liu v The Queen.21

The interpretation of the Anderson decision was initially different in Queensland. The firsttime the Court of Appeal examined the Anderson decision was in the case of Nardozzi.22

It was held in Nardozzi that the High Court in Anderson did not hand down a decisionthat was binding on all Australian jurisdictions. Queensland Chief Justice Macrossan said:

I believe that their Honours were merely stating that law which the SouthAustralian judges had in this respect applied…

I do not consider that in their reference to standard of proof in the context offact finding for the purpose of sentencing, they were intending to lay down aproposition of general application in other jurisdictions…

Until an authoritative determination to the contrary is made, the lawapplicable in Queensland on this matter should be taken to be as expressed inJobson.23

Through its decision in Nardozzi the Queensland Court of Appeal reaffirmed that thestandard of proof for disputed facts on sentence would remain as the balance ofprobability. There was however, the qualification that the trial judge was to have regardto the significance of the facts put before the court in respect of their aggravating ormitigating effects. This was the established law in Queensland until the decision inMorrison.

4 THE DECISION IN MORRISON

Morrison pleaded guilty to two offences of the possession of dangerous drugs, namelyheroin and cocaine. On the charge of possessing heroin the sentencing judge ordered asentence of ten years imprisonment with a recommendation that the offender be eligiblefor parole after serving 3.5 years. On the charge of possessing cocaine the offender was

20 Langridge v The Queen (1996) 17 WAR 346 at 367 per Kennedy J. The issue of whether it wasdesirable to apply different rules between States was a point argued by the President of theQueensland Court of Appeal in Morrison.

21 Liu v The Queen (1998) 40 A Crim R 468.

22 R v Nardozzi (1995) 2 Qd. R 87.

23 R v Nardozzi (1995) 2 Qd. R 87 at 90 per Macrossan CJ.


sentenced to 9 months imprisonment. The two sentences were ordered to be servedconcurrently. The appeal to the Court of Appeal was that the sentence received on theheroin charge was manifestly excessive. The issue in contention that contributed to theten year sentence was whether the offender possessed the heroin for his own use or forthe purpose of selling to others on a commercial basis.

The circumstance of aggravation for the offence was that possession of the dangerousdrugs in excess of 2 grams carried a higher term of imprisonment. With respect to theheroin charge, the offender was found in possession of 10 times that amount.

The sentencing judge found that the offender had possession of a large amount of heroinfor commercial purposes. The appeal centred on the argument that the sentencing judgeshould not have made such a finding on the information put before him by the prosecutionand that the offender should have been sentenced on the basis that he possessed theheroin for his personal use only.

The Court of Appeal determined that since the intention or reason for possessing theheroin was disputed by the offender, the sentencing judge should have ensured that thepoint was proven beyond reasonable doubt before accepting it as a factor in determiningthe severity of the sentence. The Court of Appeal held that the information before thesentencing judge did not support a finding beyond reasonable doubt that the drugs werepossessed for commercial purposes by the offender.

The 10 year sentence was replaced by a 5 year sentence with a recommendation that theoffender be eligible for parole after serving 18 months.

By a majority decision of 3 to 2 the Queensland Court of Appeal in Morrison overturnedwhat had previously been regarded as law as to the standard of proof required for thefinding of facts during sentence.24 Prior to this decision a court needed only to satisfyitself on the balance of probability, provided the degree of probability was in keeping withthe gravity of the issue raised and its consequences for the offender.

The Court of Appeal (by majority Williams J, Fitzgerald P and Davies JA) held:

Where it is sought to prove an issue which is adverse to an offender in thesense that, if proved, it would be likely to result in a heavier sentence, andthat issue is disputed, it must be proved beyond reasonable doubt. Where onthe other hand, a disputed factual issue, if proved, would favour the accusedin a sense that it would be likely to result in a less heavy sentence, the

24 Queen v Phillip John Morrison (1999) 1 Qd. R 397.


sentencing judge need be satisfied of that proof only on the balance ofprobability.25

The minority view of Pincus JA and Fryberg J was:

…that the application of different rules to different issues will lead to anexcessive degree of uncertainty, since in some areas of practical significancethe classification of an issue going to aggravation rather than mitigation, orvice versa, will be in essence arbitrary; that preservation of the presentmeans of acquiring sentencing information…cannot stand comfortably orindeed convincingly with the imposition of a strict standard of proof ofadverse facts.26

The minority judgment referred to sentencing as a ‘loose fact finding process’ that doesnot lend itself to the application of the new rule decided in the majority decision. Supportfor this point of view may be found in:

• s 15 Penalties and Sentences Act 1992 (Information on Sentence) whichempowers the courts to receive information that is considered appropriate toenable it to impose sentence.

• s 14 Criminal Offence Victims Act 1995 (Information on Impact of Victim)where the prosecution is authorised to inform the court of appropriate details inrelation to harm suffered by the victim.

• s 109(3) Juvenile Justice Act 1992 (Sentencing Principles) authorises the courtssimilarly to s 15 Penalties and Sentences Act 1992.

The Morrison decision, which requires the criminal standard of proof to be applied todisputed aggravating facts when determining the appropriate sentence, broughtQueensland into line with other Australian jurisdictions as well as New Zealand27 andCanada. The Supreme Court of Canada in R v Gardiner held:

If the facts are contested, the issue must be resolved by ordinary legalprinciples governing criminal proceedings, including relevant doubt infavour of the accused. At sentencing the standard of proof remains thatbeyond a reasonable doubt, rather than the civil standard of proof on abalance of probability.28

25 Queen v Phillip John Morrison (1999) 1 Qd. R 397 at 422 per Williams J.

26 Queen v Phillip John Morrison (1999) 1 Qd. R 397 at 408 per Pincus JA and Fryberg J.

27 GG Hall, Hall on Sentencing in New Zealand, Butterworths, 1987, p 333.

28 R v Gardiner (1982) 30 CR 289.


The context within which fact finding for sentencing is located was summed up in theVictorian case of Storey:

The law is settled in this State that an appropriate sentence is arrived at by‘instinctive synthesis’ of the relevant factors. The facts must be found beforethe process of instinctive synthesis begins, but it is only facts as to whichthere is an issue that presents a problem. Other facts will be either commonground or they will be uncontroversial and the judge will be satisfied of themfrom the evidence, depositions or other material properly before the court.29

29 R v Storey (1998) 1 VR 359 at 374-375.


5 POSSIBLE NEGATIVE EFFECTS OF THE MORRISON DECISION

There have been concerns raised about the negative impact of the Court of Appeal’sdecision in Morrison:

• A major objection raised, concerns the presentation of victim impact statementspresented during sentence hearings. There is a concern that the prosecution maydiscourage the use of such statements due to the higher probability that victimsmay be cross-examined. There is also a concern that cross-examination may leadto the ‘re-victimisation’ of the victim who provides a victim impact statement.30

• A combination of the above two arguments leads to a concern that if theMorrison decision is allowed to stand there is the potential that the legitimateplace of the victim in the criminal justice process will be eroded.31

• Sentence hearings in Queensland have made extensive use of unsworn material.Altering the law from the balance of probability for contested issues adverse tothe offender, to that of proof beyond reasonable doubt may alter the way inwhich the courts receive information contained in victim impact statements andpre-sentence reports.

• Requiring proof beyond reasonable doubt may require the calling of expertwitnesses to give evidence to ensure that the standard of proof is satisfied. Forinstance in the case of prevalence of the type of offence, rigorous examination ofstatistical information may require the assistance of expert witnesses whendisputes arise. This is the situation in Canada where in R v Petrovic it was heldthat the court wrongly took into account statistics without proof beyondreasonable doubt by not informing itself by way of expert interpretation.32

• The minority judgment of Pincus JA and Fryberg J in Morrison argued that achanging of the standard of proof to beyond reasonable doubt was an openinvitation to longer and more costly sentencing hearings if the new rule was to beappropriately applied. Anything less would be a sham where only lip service waspaid to a more precise standard of proof.33

30 Mark Thomas, Sue Curry, and Sally Kift, ‘Morrison and Sentencing Justice: Look What TheyDone to My Song, Ma’, National Law Review Internet Site, NLR 4, 1999, para 21.http://www.nlr.com.au/archive/morrison/morrisontxt.htm

31 Thomas, Curry, Kift, para 26.

32 R v Petrovic (1984) CR 275.

33 Queen v Philip John Morrison (1999) 1 Qd R 397 at 403.


• If the use of the criminal standard of proof at sentencing results in such hearingsbecoming longer and more expensive there will be a disastrous effect for legal aidfunding due to increased demand.34

• When the concept of fairness is extended to the offender it is often at the expenseof the victim and there is a failure to recognise the difference between personswho only stand accused and those who have been convicted.35 The more precisecriminal standard of proof is applicable to an accused person as opposed tosomeone who has been found guilty of an offence.

• Any rule insisting that individual aggravating facts that are contested must beproven beyond reasonable doubt will be in contrast to mitigating facts in favour ofthe offender that will only have to be proven on the balance of probabilities.Mitigating facts are likely to be successfully argued because they seem plausible.36

• Even at the criminal trial stage there is no need to prove every adverse factbeyond reasonable doubt, only ultimate facts and those facts which go toward afinding of the ultimate facts.37 This is also applicable at sentence hearings.

Further criticism of the Morrison decision is that it cannot be applied in practical terms,as in the sentencing stage, there are no elements that correspond to the elements of theoffence in the trial stage, that have to be proven. There are only pieces of ‘information’that are presented to the court.38 There is also the additional criticism explicitly stated inthe minority judgment in Morrison that practical application of the new rule will bedifficult to apply because the classification of a circumstance as being either aggravatingor mitigating, will be arbitrary.39




37 Queen v Phillip John Morrison (1999) 1 Qd. R 397 at 405.


39 Queen v Phillip John Morrison (1999) 1 Qd. R 397 at 405 per Pincus JA and Fryberg J.


6 DISPUTED FACTS OF MITIGATION AND AGGRAVATION

A major criticism of the majority judgment in Morrison contained in the minorityjudgment was that it would in practical terms, be difficult to apply two different standardsof proof to the finding of aggravating facts and mitigating facts. Aggravating facts arethose which would go toward increasing the severity of the sentence. Mitigating facts arethose that would go toward decreasing the severity of the offender’s sentence.

6.1 CIRCUMSTANCES OF MITIGATION

Circumstances of mitigation are factors that may reduce punishment after conviction.Mitigating circumstances may include such issues as age of the offender, health of theoffender, antecedents of previous behaviour of the offender and the seriousness of theoffence committed. The defence in a criminal trial will at sentence submit facts such asthese in expectation that the court will impose a more lenient sentence than it wouldotherwise have done.

In the case of Morrison the Court of Appeal considered a number of mitigatingcircumstances that worked in favour of the offender with respect to the appropriatequantum of sentence:

• the offender was a drug dependent person;

• the possession was for his own use;

• an early plea of guilt had been entered;

• the offender supplied names of drug sellers from whom he had purchased drugs;

• the offender had not been sentenced to significant jail terms for previous drugoffences.

Other mitigating issues that the courts are at liberty to consider are:

• whether a term of imprisonment may cause family hardship;

• whether the offender has no previous convictions;

• the offender’s character, intellectual capacity and age;

• time already spent in custody for the offence.

6.2 CIRCUMSTANCES OF AGGRAVATION

Circumstances of aggravation are issues that increase the perceived gravity, severity orseriousness of the offence that was committed. In criminal cases, circumstances ofaggravation will attract a penalty that is greater than the penalty that would have beenrecorded for the offence had the aggravation not existed. Being in possession of a


weapon whilst committing the offence, being in a position of trust, or even acting with aparticular intention such as malice are too considered circumstances of aggravation. Theuse of violence, behaviour that results in bodily harm to the victim or the deprivation of aperson’s liberty are also circumstances of aggravation that may increase the severity ofthe sentence imposed.

Some issues of aggravation that sentencing courts must have regard to under Section9(2) Penalties and Sentences Act 1992 are:

• nature of the offence and its seriousness;

• the physical and emotional harm caused to the victim;

• the extent to which the offender is to blame for the offence (as in Carson’s casewhere the offender was the ringleader);

• the prevalence of the offence;

• the offender’s compliance with existing community based orders that may havebeen issued.

6.3 AGGRAVATING AND MITIGATING ISSUES – PRE-SENTENCE REPORTS

Pre-sentence reports may contain information that is prejudicial to the offender. The Billdeals with pre-sentence reports in the following way:

Clause 4 of the Bill inserts new s 132C(5)(a) into the Evidence Act 1977. The effect isto ensure that the information received by a sentencing court contained in a pre-sentencereport that is challenged, is to be proven on the balance of probabilities.

Section 201 Corrective Services Act 1988 authorises the courts to request the ChiefExecutive of the Queensland Community Corrections Board to prepare pre-sentencereports on specified persons. Section 15 Penalties and Sentences Act 1992 authorisessentencing courts to receive information contained in such pre-sentence reports that isappropriate to imposing the proper sentence.

Section 203 Corrective Services Act 1988 establishes the procedure by which a pre-sentence report may be received by the court. The section authorises a communitycorrectional officer to either furnish a written report or make an oral statement to thecourt for the purpose of assisting the court in determining the most suitable method ofdealing with a convicted person.

The leading Queensland case on the receiving of pre-sentence reports is Bowser vBourke where it was deliberated:

The section requires, in accordance with the well recognised principles ofnatural justice, given the adversarial nature of the proceedings, that thecourt make the information known to the person in jeopardy and that such


person be given the opportunity of controverting assertions made therein,before it is acted upon…40

On the provision (s 203(1)) that made the contents of the pre-sentence report prima facieevidence of the matters, the court deliberated:

The sentencing discretion ought not to be fettered by the contents of such areport… The court should always receive the report (following the usualprocedural requirements), and should give such weight to its contents as itconsiders appropriate.

Whilst the court will often be assisted by the contents of the report in arrivingat the appropriate sentence, it should not surrender its duty to make up itsown mind as to the appropriate sentence called for in the light of the materialbefore it.41

In accordance with the decision in Morrison, if there are disputed facts in a pre-sentencereport, the sentencer is bound to resolve the dispute by the application of the principle inthat case.

The minority judgment in Morrison referred to the wording of Section 15 Penalties andSentences Act 1992 (Information on Sentence) in support of the view that sentencing is a‘loose fact finding’ process. Under Section 15 sentencing courts may receive anyinformation considered appropriate to enable the imposition of the proper sentence. Thisis in contrast to the receiving of ‘evidence’ and it was argued by Pincus JA and Fryberg Jthat the wording of Section 15 indicates that there is a clear legislative intent that‘information’ and not ‘evidence’ be received by the court at sentence. The use of lesstechnical language in Section 15 indicates that the technical standards of proof that applyto the trial stage, are of a lesser concern than judicial discretion at sentence.42

Clause 4 inserts a new Section 132C(5)(b) into the Evidence Act 1977, by prescribesthat information received by a sentencing court under s 109(3) Juvenile Justices Act1992 for the purpose of sentencing a child under that Act, must also find contestedaggravating facts on the balance of probabilities. Information under s 109(3) JuvenileJustices Act 1992 may include such things as doctors’ reports and reports ofpsychologists.

40 Bowser v Bourke (1993) 1 Qd. R 43 at 46.

41 Bowser v Bourke (1993) 1 Qd. R 43 at 47.



The new s 132(5)(b) will also ensure that information of aggravation contained in pre-sentence reports submitted under s 110 Juvenile Justices Act 1992 must also be provenon the balance of probabilities if contested or challenged.

6.4 AGGRAVATING ISSUES -VICTIM IMPACT STATEMENTS

Victim Impact Statements (VIS) may contain information that is of an aggravating natureto the offence committed and they are accommodated in the Bill in the following way:

Clause 4 of the Bill inserts new s 132C(1)(5)(c) into the Evidence Act 1977. The effectis that information received by sentencing courts via VIS that is contested is to be provenon the balance of probabilities.

The introduction of VIS into the criminal sentencing process began a debate over theirrelevance and their admissibility. VIS can affect sentence outcomes as they are nowincluded in legislation in all Australian jurisdictions.43 However, prior to their recognitionin legislation, the view of the courts was one of rejection. For instance, in the case of R vPenn, the Victorian Court of Appeal held that sentencing judges should not act onevidence of sorrow and misery caused to the family of the dead victim for the purpose ofassessing the appropriate level of sentence.44 This decision was handed down just priorto the passing of the Sentencing (Victim Impact Statement) Act 1994 in that State.

Since the passing of the 1994 Act the Victorian Court of Appeal has held that evidenceof the impact of a murder upon the victim’s family is admissible by way of a VIS pursuantto s 95A of the Act.45 Section 95B(2) allows the court to rule as inadmissible the wholeor any part of the VIS. Section 95D(i) provides that the court may, at the request ofeither the defence or the prosecution, call a victim who has furnished a VIS to giveevidence and be cross-examined on the information contained in the VIS.

In Dowlan46 the Victorian Court of Appeal heard an appeal against the severity ofsentence imposed. A ground of the application to appeal was that the trial judge erred inacting on the VIS which described consequences which were not caused as a direct

43 Mallinder v R (1986) A Crim R. 179 at 183.

44 Penn v R (Unreported Court of Criminal Appeal Victoria, No 339 of 1993).

45 R v Miller (1995) 2 VR 348.

46 R v Dowlan (1998) 1 VR 123.


result of the offences. Charles JA regarded this ground as raising the general question ofthe use of VIS in sentencing, and their permissible contents.47

The defence in Dowlan pointed out that VIS furnished to the court contained statementsthat attributed to the offender quite traumatic incidents that had happened to some of thecomplainants over the intervening years. The defence also objected to statements ofemotional and psychological problems not being accompanied by any expert evidence.48

With respect to the acceptance of VIS in Queensland it has been stated:

In Queensland, the practice of tendering victim impact statements on sentenceis increasing but is not, as yet, widespread in all centres and jurisdictions.They are only tended in District and Supreme Court cases involving crimes ofviolence. Of those victims who are consulted and given the option ofproviding a statement, a majority exercise that option. It is more common fora statement to be tendered than adduced through the oral evidence of avictim. Defence objections to the admission of victim impact statements intoevidence and defence submissions disputing the contents of victim impactstatements are uncommon.49

6.5 PREVALENCE OF THE OFFENCE

Section 9(2)(h) Penalties and Sentences Act 1992 prescribes that sentencing courtsmust, have regard to amongst other things the prevalence of the offence with which theoffender is charged.

In R v Joyce the trial judge stated that he ‘was satisfied that offences of the type towhich the applicant had pleaded guilty were of epidemic proportions inQueensland’ and that ‘no suburb could be considered safe from the depredations’ ofpersons like the offender.’50

The court in Joyce clearly regarded prevalence as a fact of aggravation. In that casedocuments containing statistics were presented to the court. In R v Atkinson; Ex parte

47 R v Dowlan (1998) 1 VR 123 at 138 per Charles JA.

48 R v Dowlan (1998) 1 VR 123 at 131 per Phillips CJ.


50 R v Joyce (1986) 1 Qd. R 47.


Attorney-General the court held that sentencing courts were entitled to have regard torecognised community concern as to the prevalence of a particular class of offence.51

These cases occurred before the change of law in Morrison. The courts examined theissue of prevalence based on the balance of probability as the standard of proof. In linewith the Morrison decision proof of the level of prevalence (that would work against theoffender as an aggravating factor) is now to be satisfied beyond reasonable doubt.

In the Tasmanian case of Pavlic v The Queen it was held that prevalence of crime wasrelevant to sentence. Slicer J deliberated:

Extreme caution should be exercised in paying regard to statisticalinformation tended as part of the sentencing process…Prevalence should beestablished by reliable data that is subjected to rigorous analysis.

A court may have regard to prevalence in cases where the rate of criminalconduct might imperil a particular sound structure such as socialsecurity…but that is a different proposition to that of the court making use ofunrefined and unanalysed data.

But it cannot be said that the learned sentencing judge was in error inreceiving the material nor in paying general regard to it…It is less certainthat his conclusion that past sentences have not operated as a sufficientdeterrent to potential offenders is an accurate one to be drawn from thematerial tendered.52

In R v Jabaltjari it was held that ‘a generalised statement by the Crown that aparticular offence is prevalent should be supported by evidence that the type ofoffence is prevalent…’ 53

In accordance with Morrison the onus currently lies with the prosecution when submittingstatements concerning prevalence. The information that is submitted, if disputed, wouldnow need to be accepted by the court as being correct beyond reasonable doubt.Requiring proof beyond reasonable doubt may require the prosecution to call expertevidence to ensure that the standard of proof is complied with. Rigorous examination ofstatistical information may require the input of expert witnesses when disputes arise.

This is the accepted situation in Canada where in R v Petrovic it was held that the trialjudge wrongly took into account statistics without proof beyond reasonable doubt.54

51 R v Atkinson; Ex parte Attorney-General (1996) 26 MVR 99.

52 Palvic v The Queen (1995) 83 A Crim R 13 at 31-32.

53 R v Jabaltjari (1989) 46 A Crim R 47 at 48.


7 ISSUES IN SUPPORT OF THE MORRISON DECISION

There should be uniformity of application with respect to fact finding on sentence betweenthe Australian jurisdictions as the State courts enforce both Commonwealth and Statecriminal laws. Upholding the Morrison decision will also result in uniformity of legalprinciple in the criminal law whereby ultimate facts at both the trial and sentencing stagewill be proven to the same criminal standard.

It could also be argued that a more scrupulous sentencing procedure will result if thehigher standard of proof (beyond reasonable doubt) is the standard applied.

The High Court has previously commented upon sentencing procedure. In Thompson theHigh Court commented that the procedures of sentencing had been conductedunsatisfactorily by the acceptance of an inadequately prepared pre-sentence andpsychological report. Whilst not commenting directly on the standard of proof in thismatter, the High Court stated

…that it was essential that the procedures observed should be regular andscrupulously thorough and that the materials, including the pre-sentencereports, should be adequate and as complete as fairness to the prisonerrequired.55

8 CONCLUSION

The 1993 High Court decision in Anderson56 confirmed that the standard of proof foraggravated disputed facts at sentence would remain that of beyond a reasonable doubt.The onus of proving that standard of proof rests on the prosecution. The standard ofproof for mitigating facts that were disputed would remain on the balance of probabilitieswith the onus of that standard of proof resting on the defence.

The States of Victoria, New South Wales and Western Australia regarded the HighCourt decision as an authoritative one that they soon followed. Queensland did notfollow the High Court decision as an authoritative decision until the Morrison appeal washeard. The Morrison decision then being binding on the lower Queensland courtsresulted in a change to the standard of proof for contested facts on sentence. TheEvidence Amendment Bill 2000 seeks to overturn the rule decided in Morrison and

54 R v Petrovic (1984) CR 275.

55 Thompson v The Queen (1999) HCA (2 September 1999).

56 Anderson v R (1993) 177 CLR 520.


require the courts to find contested facts that are of an aggravation, on the balance ofprobabilities.


BIBLIOGRAPHY

Monographs

• Queensland. Department of Justice and the Attorney-General, Fact Finding onSentence, Discussion Paper, August 1998.

• Hall GG, Hall on Sentencing in New Zealand, Butterworths, 1987.

• Heydon J D, Cross on Evidence, Butterworths, 5th Australian Edition 1996.

Articles

• Thomas M, Curry S, and Kift S, ‘Morrison and Sentencing Justice: Look What TheyDone to My Song, Ma’, National Law Review Internet Site, NLR 4, 1999.http://www.nlr.com.au/archive/morrison/morrisontxt.htm

Cases

• Anderson v R (1993) 177 CLR 520.

• Bowser v Bourke (1993) 1 Qd R 43.

• Briginshaw v Briginshaw (1938) 60 CLR 336.

• Davies v Taylor (1974) AC 207.

• Green & Murrells v R (1971) 126 CLR 28.

• Jones v Sutherland Shire Council (1979) 2 NSWLR 206.

• Langridge v The Queen (1996) 17 WAR 346.

• Liu v The Queen (1998) 40 A Crim R 468.

• Mallinder v R (1986) A Crim R 179.

• Miller v Minister of Pensions (1947) 2 All ER 372.

• Palvic v The Queen (1995) 83 A Crim R 13.

• Penn v R (Unreported Court of Criminal Appeal Victoria, No 339 of 1993).

• Queen v Phillip John Morrison (1999) 1 Qd. R 397.


• R v Atkinson; Ex parte Attorney-General (1996) 26 MVR 99.

• R v Carson and Ors (Q.C.A. No 296 of 1978, 5 February 1979).

• R v Dowlan (1998) 1 VR 123.

• R v Flewell-Smith & Ors (Q.C.A. No 7 of 1979, 28 February 1979).

• R v Gardiner (1982) 30 CR 289.

• R v Jabaltjari (1989) 46 A Crim R 47.

• R v Joyce (1986) 1 Qd. R 47.

• R v Langridge (1996) 17 WAR 346.

• R v LJ Byrne (QCA No 100 of 1978, 17 August 1979).

• R v Miller (1995) 2 VR 348.

• R v Nardozzi (1995) 2 Qd R 87.

• R v Petrovic (1984) CR 275.

• R v Storey (1998) 1 VR 359.

• Rejfek v McElroy (1965) 112 CLR 517.

• Thompson v The Queen (1999) HCA (2 September 1999).

This Publication:

LBR 3/00 Evidence Amendment Bill 2000 (QPL May 2000)

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