AG v Director of Public Prosecutions & Anor

[2016] HCATrans 50

[2016] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S164 of 2015

B e t w e e n -

AG

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS (NSW) - SYDNEY

First Respondent

DISTRICT COURT OF NEW SOUTH WALES (NSW) - SYDNEY

Second Respondent

Application for special leave to appeal

FRENCH CJ
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 MARCH 2016, AT 9.32 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appeal for the applicant with MR B.K. LIM.  (instructed by Greg Walsh & Co Solicitors)

MR J.H. PICKERING, SC:   Your Honour, I appear for the respondent. (instructed by Solicitor for Public Prosecutions (NSW))

FRENCH CJ:   There is a submitting appearance for the second respondent.  Yes, Mr Game.

MR GAME:   If the Court pleases.  Could I take the Court directly to page 89 of the application book?  Now, that is the legislation in its current form and for your Honour the Chief Justice, although Justice Bell would be aware of this, these provisions are the end of the road subject to Kirk and jurisdictional error and there a privative clause in the District Court Act but separately you can appeal to the Supreme Court on a question of law alone.

Now, originally in the Justices Act there was no question but that this was - shall I say a full rehearing.  In 1998, the question was visited.  There were some amendments but there was no intention to create an error‑based regime.  In 2008, it was revisited and what you see here is the result of that review.  It is clear from the review itself that it was not intended that it be error based and there were lots of reasons for that including the fact that the Legal Aid Commission and the DPP would have to be resourced to set up an appeal section and there are between 1,000 and 1,500 conviction appeals to the District Court every year.  So, we say that Justice Simpson is clearly correct in saying it was not intended to be error based.

FRENCH CJ:   It was run before the District Court almost as though it were, was it not?

MR GAME:   Yes, your Honour, but ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ pre‑judgment, not dispassionate, inadequate exposure of reasons.

MR GAME:   Quite, yes, but finding error would actually be irrelevant completely, I will come back to this ‑ ‑ ‑

BELL J:   Can I just ‑ ‑ ‑

MR GAME:   Yes.

BELL J:    ‑ ‑ ‑ inquire one thing?  Do I understand from your submissions that the analysis that President Mason made in Charara is consistent with the view that the nature of the appeal did not require the demonstration of error?

MR GAME:   Yes, but there is one thing that his Honour said that was contentious.

BELL J:   Yes.

MR GAME:   What it was contentious about was you could have regard to the reasons for the purposes of demeanour findings.  Now, in the review – it is a kind of weird thing, but in the review in 2008 an attempt was made to pick up that recommendation of Justice Mason, and the attempt to pick it up can be seen, if you go back to page 66, I have not actually taken you to the provisions anyway, if you go back to page 66, you can see in paragraph 99 the report in the first paragraph says:

Similarly, other material such as the reasons given by the magistrate, that does not constitute evidence, are not included in the transcripts of evidence.

The words were “transcripts of evidence” in the 1998 legislation and contentiously President Mason had taken the view that the transcripts of evidence included the reasons, but the critical thing was, if you look at the next paragraph you will see:

It was, accordingly, recommended that the Parliament:

“. . . a rehearing on the basis of the transcript of the proceedings and other material –

Well, those were the words that were, shall I say, Delphically intended and kind of – there were so many people involved with this process that it was quite Delphic but that was an intent to pick up the reasons, but it did not happen and the Parliament did not use those words and that it just said on the basis of evidence.  So, if you come back to the provisions at 89, section 18:

An appeal against conviction is to be by way of rehearing on the basis of evidence given –

Now, one cannot construe from this an adoption of the recommendations of the committee because the critical words were left out.  If you look at section 19, that came in in the 1998 legislation which went into the Crimes (Appeal and Review) Act and that is about calling witnesses.  It has got nothing to do with the magistrate’s reasons.  It is about whether or not – the nature of the evidence and the position of the witness. 

Those provisions are lifted from provisions relating to whether or not you can get witnesses at a committal hearing except they do not talk about anybody in particular saying who the special – there is no onus on the defendant to show substantial or special reasons.  Then if you look at the words “fresh evidence”, it says “in addition to or in substitution for”.  Those words came in in 2009 and they were not there in the 1998 thing. 

So, what we say you end up with is  ‑ and I should say historically there were many occasions where the magistrate reasons were not even available.  On our construction, the magistrate’s reasons are of no assistance other than to tell you what the issues were in the case.

FRENCH CJ:   Should not even be looked at – distraction?

MR GAME:   Well, they were a distraction, yes.  So, I will go back to what happened and Justice Basten said it was error based but he pointed out very clearly why it was important to this case because if the thing turns on demeanour findings and you have to look at the magistrate’s reasons, you have got limitations but you cannot look at them, then on our position you have a doubt unless you say look, you have to get the witnesses back.

BELL J:   So, your position does lead to a conclusion that in every instance where the determination turns on an assessment of credibility the District Court must hear the witnesses afresh?

MR GAME:   I would add to that based on demeanour.  But what I do say is this, one gets no joy from looking at Fox v Percy and that line of cases because that is about a section 75A in New South Wales and that is about establishing error but it is a principle of restraint, but there is no principle of restraint here about demeanour because the limitation just exists.  So we say you cannot bring into this discourse another form of error‑based discourse.

BELL J:   The result is somewhat contrary to some of your initial submissions about the drain on resources involved in an error‑based appellate process.  Every appeal where demeanour informs the decision or is capable of to any degree the witness must be ‑ ‑ ‑

MR GAME:   Yes, your Honour, that is true but my point about that is that if you have an error‑based system then you have got to set up in the institutions sections that do grounds of appeal and submissions, identified grounds and the magisterial practice changes, District Court practice changes.

BELL J:   District Court practice would change not inconsiderably on the acceptance of your analysis.

MR GAME:   Yes, but it would change both – it would change either way and the thing is that nobody knows – when I say nobody knows there are at least three possible views about this.  One is that it is error based in the, shall I say, the Warren v Coombes sense, like section 75A.  Two, it is not error based but you can have regard to the magistrate’s reasons which, we say, would be quite anomalous if you do not scrutinise them.  You can just have regard to them for demeanour findings.  Three is they are just there and they might tell you something about the case but that is it. 

They do not inform the – and as I say, if you are not looking for error in them it is very difficult to see how you could rely on them for demeanour based findings because you would have to go into them then to show whether or not they were flawed for the purposes of identifying whether or not they were correctly demeanour based.

So, in this case, for example, the critical complaint and, we say, it would actually be a good one if it was not jurisdictional error question is that the magistrate examines exhaustively what the complainants say but she says nothing about the accused’s evidence.  If it was an error‑based appeal and we say that would be – jurisdictional error gets more difficult.

FRENCH CJ:   Where are we left with the Court of Appeal decision?  We have got one error‑based approach, another non and the same result?

MR GAME:   The third judge says it does not matter.

FRENCH CJ:   Well, that is right.  What is the precedential value of that and related to that question, is this a suitable vehicle therefore?

MR GAME:   Your Honour, it is quite hard to find suitable vehicles, they are mostly jalopies and carts with three wheels, but ‑ ‑ ‑

BELL J:   This has only got two, has it not?  This point was not taken below at all, it first seems to ‑ ‑ ‑

MR GAME:   It was caught by the ground of judicial review and the court below, counsel said you will have to make your own assessment of the evidence and there is a bit at the end where the District Court judge does purport to make his own assessment and says but he is restrained by the demeanour findings.  So, that is at the end of his judgment. 

BELL J:   The matter I am raising is in the Court of Appeal, as I understand it, the point was not argued.

MR GAME:   Well, when one says the point was not argued, if you look at page 57, the second ground for judicial review:

His Honour erred in failing to undertake his own independent assessment and analysis of the evidence . . . thereby failing –

so it is caught by the ground.

BELL J:   But not by the way the matter was run.

MR GAME:   I would admit to this much; that it was not run with the nuances that are now being put. 

BELL J:   The nuance being the point.

MR GAME:   Yes, well, you could say that, yes.  But we say this is a good vehicle because this is all about the credibility findings because you get to page 67 in her Honour’s reasons.  I will take you back, if I have got time, to what the District Court judge said, but page 67 we see:

In respect of the credibility findings concerning the complainants, his Honour was necessarily limited to reliance on the findings of the magistrate –

Then we go over the page to De Costa, confirms that De Costa was overturned by way of rehearing but on appeal:

credibility assessments by the first instance tribunal are to be accorded due weight.

This is made explicit in the passage from Fox v Percy quoted in Charara, so the whole thing falls down, and if you go back to Justice Basten’s judgment at paragraph 27, page 43, you can see that it does matter.  I will take you.  Then, also at page 27, second sentence, and page 36, paragraph 8, the sentence in the middle of the paragraph, “Put negatively”.  So maybe one way of answering your Honour Justice Bell’s point is that if we are right the whole process would be conducted in a different way and everything is wrong from the start.  I mean, these grounds of appeal, if we are right ‑ ‑ ‑

BELL J:   If you are right, each complainant was required to be called in and so was the applicant.

MR GAME:   If the prosecution did not call them then and if the applicant was not ‑ but these words “in addition to” or “in substitution” they also are Delphic.  I mean, how do you work out whether it is in addition to or in substitution?  But as soon as you open the gate to call the witnesses, there is not much you can do with the magistrate’s reasons.  But if I go back to the District Court judge ‑ ‑ ‑

BELL J:   Just come back to one matter here.

MR GAME:   Sure.

BELL J:   When one looks at section 19, and if one looks at 19(1)(a), it singles out those appeals relating to an offence involving violence against the person and then, conformably with the provisions in relation to committal proceedings, requires special reasons in the interests of justice that the person should attend and give evidence but, as I understand your submission, it would be incumbent on the prosecution to call its case on the appeal and that would invariably involve the alleged victim of an offence of violence or a sexual offence.  It would give rather little work for the court to assess the special reasons requirement of 19(1)(a).

MR GAME:   My answer to that is that there are two considerations in that.  One is addressed to the position of the witness, and the other is to the importance of the evidence and you would consider them both, but that may be so what your Honour puts to me.  But they are not concerned with the reasons of the magistrate but one can look at section 19 and see how it cuts both ways but overall if you look at the definition of “fresh evidence” in section 19 it opens the way in a very broad way for the witnesses to be got back in a way that has got nothing to do with the magistrate’s reasons or the freshness of the evidence or anything like that.  I am sorry, I have got a frog in my throat. 

FRENCH CJ:   This is an appeal and although the words of the notice of appeal are in pro forma and are fairly ‑ ‑ ‑

MR GAME:   I am not guilty.

FRENCH CJ:   I am not guilty because I am not guilty.

MR GAME:   That is what the form says.

FRENCH CJ:   I know, that is right, and ‑ ‑ ‑

MR GAME:   That is so they can get bail, sorry.

FRENCH CJ:    ‑ ‑ ‑ the importance of the nature of the process is that it is the applicant or the appellant who seeks an order quashing a conviction.

MR GAME:   Yes.

FRENCH CJ:   Now, the judge does not say right, I have got an appeal so Mr Prosecutor where is your evidence?

MR GAME:   No, but they do in a way because they have to look at the – all they have got is the transcripts and the exhibits and that is so – then you have to ‑ ‑ ‑

FRENCH CJ:   The nature of the process must inform the way in which it is to be done, does it not?

MR GAME:   Yes, quite.  Yes, I accept that, but really these are important questions, in my submission, and it is a question of whether or not they arise, in my submission, whether they properly arise in this case and I just wanted to show you what happened in the District Court to make that good.  Now, there is a passage in one of the judgments where Mr Bellanto is quoted as saying your Honour will have to make up your own mind about this, and my junior will just find that paragraph, but if I just go back to the District Court judge’s reasons.  Now, we start at the bottom of page 5 of the application book, the words actually are at page 54:

“. . . your Honour will have to make your Honour’s judicial mind up in relation to the evidence as a whole anyway.”

That is what Mr Bellanto put, but coming back to page 5, I think it is fair to say that what you see in the paragraph after paragraph 30 is what is said to be identifications of errors.  Then what appears at the bottom is:

The second aspect of the submission was directed to identifying parts of the evidence, in particular the evidence of the two complainants –

Well, that seems to bring in the larger inquiry, but nobody is saying the question is whether the verdict is unsafe, which is what it would be if it was error based.  Then we go on.  We see page 10, about a third of the way down:

Frankly, having seen the interviews of the girls, I see no reason why the matters that her Honour took into account were not available to her Honour as matters persuasive –

We see the same at the bottom of 11:

And it follows from an assessment of the whole of her reasons that there was nothing arising . . . which gives rise to –

Then we see the same at the bottom of 12:

In adjudicating on this appeal, I am acutely conscious of the natural limitations that exist in –

FRENCH CJ:   Well, the whole thrust of the judgment is it is error based.

MR GAME:   Yes, and then we see in the middle of page 13 ‑ ‑ ‑

FRENCH CJ:   The question is, how was it put?

MR GAME:   No, no, what I am saying is this.  It was put as questions of error but it was also put as we just saw, I will just take you to 54.  We see at page – this appeal was dismissed on the basis that he did not just confine himself to error, that he considered the larger question for himself but that he was confined.  So that is why we lost the appeal.  But then at page 13, it says, we are talking at the top of the page:

The submission was made that the Magistrate’s advantage is mitigated –

Then at the bottom, this is at line 30:

The resolution of most of those matters, in particular in connection with the various identified deficiencies of the evidence . . . depends upon the unique benefit the Magistrate had –

So that is the second aspect of the argument and it is a demeanour based rejection and we see again the same on the top of 14.  Then at the top of 16:

whole of the evidence too, appreciating all the limitations I have referred to –

So we lost this case because it was said that the District Court judge had considered for himself but that he was constrained.  So, in a roundabout way, the answer to your Honour Justice Bell’s question is that, yes, it was raised but not as acutely and precisely as it might have been, but it definitely arises squarely on this case and if you took this case then you would have to determine a quite important ‑ ‑ ‑

BELL J:   The only way that you can succeed is if you are right in the contention that the nature of the appeal is such, not only is there no requirement for error but that it is not open to have regard to the magistrate’s conclusions respecting demeanour and it follows necessarily, notwithstanding the terms of section 19, it is incumbent on the respondent to an appeal to call any witness upon whom factual findings affected by demeanour arise.

MR GAME:   Yes, but we say more.  We say section 18 is actually intractable, that you cannot get to the magistrate’s reasons and that the whole history of the thing shows that in the way I outlined. 

FRENCH CJ:   Yes, it depends on what you embed in the word “appeal”, I guess.

MR GAME:   Yes, but it says rehearing on the evidence so it is telling you about ‑ ‑ ‑

FRENCH CJ:   It is whether that adds anything or is confined by it.

MR GAME:   Yes.  Anyway, in a sense, it is a big and important question and it might be a while before another suitable vehicle comes along and there are, as there are conflicting decisions in the Court of Appeal, as you can see, taking different positions.  None of them, on our submission, are right.

FRENCH CJ:   Thank you, Mr Game.  Yes, Mr Pickering.

MR PICKERING:   Can I give your Honours some reasons why we say this is not a suitable vehicle?  One, can I make it clear, as we have put in our written submissions, as we approached in the District Court and we approached in the Court of Appeal, we accept that this is not an error; that error does not need to be demonstrated.  But can I take your Honours back to page 5 of the application book, and in particular at line 30, to actually show in the merits of this case how this developed? 

Your Honour Chief Justice French said that the thrust of the judgment was respective of error, but that was because of the way that the Queens Counsel on behalf of appellant in the District Court sought to show the judge why he should, in his independent discretion, acquit the appellant.  You will see in that paragraph that begins:

The appellant filed extensive written submissions on the appeal and addressed orally, in considerable detail –

That was a decision by the appellant to focus heavily both in the written submissions and orally on aspects of the evidence, but then, as you will in the paragraph:

errors of the Magistrate in the conduct of the hearing –

It was a determination that that was an effective way to have the judge then using independent decision‑making to determine whether they would acquit or overturn the appeal, and it was successful ….. accounts if I can take your Honours to page 15 of the application book.

FRENCH CJ:   Well, that was Sequence 3.

MR PICKERING:   Yes, by demonstrating that the magistrate did not understand the significance of the alibi evidence was an effective way of then having the judge say, “Well, now I understand and that’s why I‘m going to find you not guilty of that and succeed on that way the appeal”.  So this was not a situation where in any way the transcript was forced on the appellant.  The appellant wanted to use the magistrate’s reasons for their own reasons to demonstrate error, not because jurisdictionally they were forced to have error, not because certainly the prosecution requested them to establish error, and not because the judge requested them to. 

It was a tactic that they wanted to use, and it is not, might I say, an unusual tactic of a way of demonstrating to a District Court judge why it is that they should uphold the appeal to show that something went wrong in the local court.  Irrespective of whether they do not have to, they are not denied the opportunity to do so, so that is how they chose to conduct this appeal. 

So when you look at a suitable vehicle we are going to be, if we were down in Canberra considering this, actually looking at presuming they had the reasons, that the whole basis of how they wanted to conduct their appeal was based on the judge looking at the reasons and examining them.  So that is one aspect.

Can I take a second aspect of why this is not a good vehicle?  Because this, as her Honour Justice Bell has indicated, was not actually argued in the Court of Appeal; the discussion even about the nature of error and some of the aspects of how an all ground runs is really just dicta in this particular matter.  It is not the heart of the decision, which was purely looking at the jurisdictional question about whether the District Court judge actually used his own independent discretion in coming to the decision, as opposed to invoking error. 

That was decided against the appellant, and actually you look at how the appellant has formed their grounds of appeal for this Court, they are not really even challenging that finding.  They are looking more at the aspects of the dicta that was being discussed between – in Justice Basten’s judgment and Justice Simpson’s, and remembering when we get to Canberra on this aspect of error, you will not have a contradictor because we accept that it is not a matter of error.

Can I say one other thing about even looking at this as being a suitable vehicle and considering the potential merits of this?  It is very hard to see how section 19 is now going to have any meaning if one looks at the proposed statutory construction.  Section 19(1)(a) which you see at page 89, and 19(1)(b) which tries to differentiate between special reasons for a matter involving violence and substantial reasons in other ones, if the only issue was demeanour or credit, seemingly there would be no difference between special reasons and substantial reasons, so that difference would become irrelevant.

But also, as Justice Basten himself observed in his judgment, if I could take your Honours to page 43 of the application book at paragraph 28, his Honour noticed that if you went down this path, really you are back to “a de novo hearing”.  This is not a de novo hearing; it is a rehearing.  And when you consider how many of these appeals must involve issues of demeanour and credit, it must be overwhelmingly the vast majority of appeals.  Very few appeals from the local court would not involve fundamental findings of credit for assaults or in these ones indecent assaults or domestic violence matters; that really you completely subvert the legislation.

So we say in the merits of this particular case it is not a suitable vehicle because primarily of the way that the appellant wished to conduct it, the way the Court of Appeal decision was actually argued, the fact that we do not dispute that error does not need to be identified, but we say also that, even looking at the direction that one wants to go to on the statutory interpretation that that is, in our submission, doomed to fail.

FRENCH CJ:   So what does the District Court do?  Does it look at the inferences that were open on the evidence before the magistrate and draw its own inferences?

MR PICKERING:   Is your Honour talking about now findings of demeanour and credibility in drawing inferences?

FRENCH CJ:   Just how you say it works ‑ ‑ ‑

MR PICKERING:   We say that ‑ ‑ ‑

FRENCH CJ:   ‑ ‑ ‑ having regard to your concession about error.

MR PICKERING:   ‑ ‑ ‑ it is not error, that they have to assess the transcript for themselves.  They can be assisted in relation to findings of credit, but they must read the transcript themselves and make their own findings based on that transcript.

FRENCH CJ:   The transcript is logically capable of supporting in terms of findings and what findings there – so there is what is logically open and then the preferred inference or the inference they are prepared to draw.

MR PICKERING:   Yes, your Honour.  Thank you, your Honours.

FRENCH CJ:   Yes, Mr Game.

MR GAME:   It is very hard to create a rule that says that you can look at them for one thing but not for another, and I do not how that rule would be framed.  It is kind of like bringing Fox v Percy in a non‑error‑based system and it really does not work.  But we do have a contradictor on the critical question.  What was said was not dicta because ground 2 actually specifically raised the question and it is ground 2 on the application before the court.  This submission that it was a tactic, it was not a tactic, everybody made the same mistake.

But there was a second aspect to the appeal, as I have shown you, which is you should assess the whole question for yourself and, as I said, that is why we lost.  So this question of demeanour is the question that arises in this case, and one cannot just leave – when I say “one”, that sounds a bit forceful – but one cannot just leave this kind of appeal process in limbo with unresolved questions and the Court of Appeal coming out with conflicting decisions about what it means, and insofar as they say error is required, clearly wrong, and the Crown is accepting that.  So we say that this case is suitable.  The issues do arise.

FRENCH CJ:   What do you point to as indicators of ultimate success apart from on the process question?

MR GAME:   Well, the question of ultimate success is that it comes down to – if you go the magistrate’s reasons which are in the supplementary – the magistrate examines very closely the credibility of the complainant.  She does not examine at all what the appellant, or applicant here, said in his evidence, and the question is whether or not that raises a doubt.

FRENCH CJ:   He just rejects it and that is the non‑disclosure reasons?

MR GAME:   Yes, and so that is the merits point that lies at the end of this, but if it was an error‑based system, and it sort of was a ground, that is a meaningful ground of appeal, but ultimate merits is, does the judge have a doubt, on our submission.

FRENCH CJ:   One of the complaints to the District Court was that the magistrate had rejected the appellant’s evidence without explaining why.

MR GAME:   Yes, and the other complaint was that right at the beginning of her reasons the magistrate says:

I accept without reservation the evidence of the complainants.

And the judge in the District Court said, well, that was just iterative, but when you do not have an assessment later on of the accused or the appellant, then it really is a problem.

BELL J:   Well, the District Court judge addressed that – it is set out at application book 69, paragraph 114.  He drew an inference about the magistrate’s reasons in that respect.

MR GAME:   Yes, but my ultimate point is that the evidence is capable of raising a doubt, and we have only got the demeanour findings that stop us from having the judge consider the question for himself.

BELL J:   So, to come back to the Chief Justice’s question, your prospects of success, you say, are because inevitably, the resolution of your appeal required that the complainants be caught?

MR GAME:   Or the appeal be dismissed because the question could not be resolved.

BELL J:   Either it is a lay down misere, or the complainants are caught.

MR GAME:   Yes, that is right.

BELL J:   So you have to make that good.

MR GAME:   Yes.  Can I say this; this question about special and substantial reasons – you bring into play two things; the position of the witness and the importance of the evidence.  The position of the witness has more significance in the special reasons, but it can be made to work.  Those provisions point favourably or unfavourably both ways.

If we got leave and if we won, then you would, having given a judgment, remit it to the District Court, because section 37 of the Judiciary Act entitles you to do that.  You would remit it to the District Court, and then the appeal would be heard again on the correct principles, and there really is a trial issue.

The last thing I wanted to say is this, and it is really for the benefit of your Honour the Chief Justice.  The local courts jurisdiction has grown and grown and grown in terms of the seriousness of offences, such as – a case like this would previously have always been heard by a jury.  Decisions like

this are not just, you know, have a fine; this is life‑changing stuff for the people ‑ ‑ ‑

BELL J:   End up on a register.

MR GAME:   Yes, you end up on a register for life with this conviction.

FRENCH CJ:   Yes, thank you, Mr Game.  The Court will adjourn briefly to consider what course it should take.

AT 10.04 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.06 AM:

FRENCH CJ:   The Court is of the view that this is not a suitable vehicle for the grant of special leave.  Special leave will be refused.

AT 10.07 AM THE MATTER WAS CONCLUDED