R v BENJAMIN JAMES CHARLES BOWMAN (RULING No. 1)

Supreme Court of the Northern Territory of Australia

Asche C.J.

6 August 1987 at Alice Springs

Evidence Act - S. 27L - power to rule on questions of law or evidence before jury empanelled - does not preclude court from ruling on agreed facts after jury empanelled if counsel so requests and court considers the application otherwise appropriate - court however must take care not to usurp functions of the jury.

Case followed:-

R v Vickers (1975) 2 All E.R. 945

Case referred to:-

R v Phair (1986) 1 Qd. R. 136

Counsel for the Crown Solicitor for the Crown Counsel for the Accused Solicitor for the Accused

J. Karczewski
N.T. Government Solicitor

C. McDonald
.ll.ldermans

asc870090a

asc870090
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA
AT ALICE SPRINGS No. SCC14 of 1987

THE QUEEN

V

BENJAMIN JAMES CHARLES BOWMAN

CORAM:	Asche C.J.

RULING NO. (1)
(Delivered the 6th of August 1987)

Both Counsel are anxious that I should rule on a Statement of Agreed Facts and to this end a jury was empanelled and the accused pleaded not guilty and Counsel then sought in the absence of the jury to have these agreed facts presented to me for a ruling.	That certainly seemed a convenient and sensible approach, although I am conscious that one must always bear in mind that ultimately the questions of facts, at least those which are ruled relevant and admissible, are in the hands of the jury, and once a jury is empanelled the court must be slow to resolve matters of a hypothetical nature in the absence of the jury and I refer to the remarks of the Court of Criminal Appeal in Queensland in R v Phair (1986) 1 Qd.R 136 at 138).

However, the procedure of presenting material in the absence of a jury is of course well known in the voire dire cases, and provided the court is satisfied that it is a convenient course and in no way detrimental to the accused, I see no reason why the course suggested by Counsel should not be employed.	Indeed this is a case which turns on a short point insofar as I read the depositions, and of course that is not meant to restrict the defence in raising matters which may not have been foreshadowed in the depositions; but insofar as it can be seen, the trial itself is within a narrow compass and it may be of assistance to both parties if I were to give the appropriate ruling.

As Mr McDonald points out, if either party wishes to object to that ruling, then that can be done in the proper way and the rights of appeal can be properly preserved.

In the case of R v Vickers (1975) 2 All E.R. 945 admitted facts were presented to the trial judge for a ruling and he gave that ruling.	He did so before the jury were empanelled and the real basis of the appeal was whether or not there could, in fact, be an appeal from that ruling. In the event, the Court of Appeal held that there could still be an appeal because the accused had been called to the bar of the court to answer his name and to the indictment and the ruling had been made by the court and there was therefore, a judgment of the court.

At page 948 Scarman L.J. commented:

"The course taken by the judge offers advantages in cases where the prosecution and defence are able, as here, to agree a statement of the facts.
Plainly time and expense can be saved if a ruling be obtained on agreed facts before a defendant pleads."

His Honour, however, also gave a warning.	He said:

"Convenient though the practice may be, we think it has dangers.	First, it could become a means of avoiding trial by jury, as in truth it did in this case (though, very properly, counsel for the appellant makes no complaint of this consequence since his client pleaded guilty on his advice).
Second, it presents difficulties as to the power of the court to allow an appeal."

His Lordship went on to deal with the second difficulty and determined that the court had the power to allow an appeal.	Then at page, 950, His Lordship said:-

"Notwithstanding our conclusion on the preliminary point, we think the practice of hearing argument and then ruling on agreed facts before plea should be discontinued.	It is better to adhere to the familiar course which was adopted in Doot's case (1973 1 All E.R. 940).		Misunderstandings are less likely to arise, mistakes are more easily avoided if argument is taken after a plea of not guilty - a plea which does reflect			the true attitude of the accused to the indictment.	If a ruling is later given, which in the view of himself and his advisers is fatal to his defence, the accused can then change his plea.	Taking such a course means that the judge is unlikely to usurp the function of the jury, that the defence's rights are protected, and that there can be no difficulty about appeal."

That case, to my mind, establishes therefore, that the course suggested by Counsel is a legitimate course provided that the rights of the accused are properly seen to be protected, as I believe they are, and provided that the court considers that it is a proper course to adopt.

I did have one other difficulty which I discussed with Counsel previously, and that is the wording of s. 26L of the Evidence Act.

That is an amendment to the Evidence Act by Act Number 20 of 1984 which adds the following new section:

"26L. DETERMINATION OF ADMISSIBILITY BEFORE
JURY EMPANELLED
A court dealing with a matter on indictment may, if it thinks fit, hear and determine, before the jury is empanelled, any question relating to the admissibility of evidence and any question of law affecting the conduct of the trial."

I have been unable, in the short time available, to explore exactly why that section was drafted, but I believe Mr McDonald is correct in his suggestion that it allows a court to deal with preliminary matters, particularly voire dire matters, which may take a great deal of time and have a jury, otherwise empanelled, waiting around for several days. The sensible approach then was taken that such a matter could be dealt with before the jury was empanelled.	That

being a rational explanation of the section, it does not, therefore, seem to me to bear the inference which I was at first inclined to place on it, that because a court was given power to deal with such a question before the jury was empanelled, there may have been some inference that it should not deal with such a question after the jury was empanelled.	That, I do not think, is the purpose of the section but rather the convenience which I have already mentioned.

Therefore, I consider it is still within my discretion to approve the course which Counsel has taken and I do so.