Ajs v The Queen

[2006] HCATrans 536

[2006] HCATrans 536

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M2 of 2006

B e t w e e n -

AJS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 29 SEPTEMBER 2006, AT 12.03 PM

Copyright in the High Court of Australia

MR C.B. BOYCE:   If it please the Court, I appear for the applicant.  (instructed by Victoria Legal Aid)

MR P.A. COGHLAN, QC:   May it please the Court, I appear with my learned friend, MS C.M. QUIN.  (instructed by Solicitor for Public Prosecutions)

KIRBY J:   Yes, thank you, Mr Boyce.  Now, gentlemen, this matter was previously listed on the application for special leave before a court constituted by Justices Callinan and Heydon and you were given some very helpful judicial advice and sent away in the expectation that we would never see you again, at least on this application, but here you both are.

MR BOYCE:   I apologise for that, your Honour, in one sense.

KIRBY J:   Why have you not been able to deal with it in the very sensible manner that Justice Callinan suggested on the last occasion?

MR BOYCE:   The heart of the reason, your Honour, is that the procedure that was suggested which I gave my qualified support to, upon reflection and after obtaining full instructions, is not one that would, with respect, do justice to the case, and the reason for this is really the fear that my learned friend cites in his supplementary outline of submissions, namely, the operation of the cases of Storey and Garrett.  The heart of the reason why we are back here, your Honours, is this ‑ ‑ ‑

HAYNE J:   Can I just understand one thing?  I come to this with a perhaps slate a bit cleaner.

MR BOYCE:   Yes.

KIRBY J:   So do I.

HAYNE J:   Do you dispute that there should now be a trial of the indecency offence?

MR BOYCE:   No.

HAYNE J:   Your complaint is that you should have an acquittal on the incest offence?

MR BOYCE:   Yes.

HAYNE J:   What would be against us granting leave, treating the appeal as instituted and heard instanter, setting aside the orders of the Court of Appeal to the extent necessary only to enter a verdict of acquittal on the incest and directing a retrial on the alternative count?

MR BOYCE:   Sorry.  Perhaps only the terms of section 568(2) which are in the following terms:

Subject to the special provisions of this Part, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial to be had.

KIRBY J:   So you say that means new trial on the count which was the subject of the acquittal, as you would postulate?

MR BOYCE:   Well, it is open to be interpreted that way.

KIRBY J:   But you would accept that that leaves it open to the prosecutor within the prosecutor’s discretion to bring a subsequent presentment ‑ ‑ ‑

MR BOYCE:   For the alternative.

KIRBY J:   ‑ ‑ ‑ on the basis of the indecent dealing and you accept that you could not raise in answer to such a second count or second presentment any defence of estoppel or any defence of res judicata by reason of the entry of the verdict of acquittal in the incest charge?

MR BOYCE:   Based upon what this Court has said in Island Maritime there would appear to be no basis for making that argument.

KIRBY J:   Yes, all right.  Well, what is ‑ ‑ ‑

MR BOYCE:   May I simply elaborate why it is little further?  If indeed on the retrial of the lesser offence the complainant gives evidence, let us say, of penetration or in much the same way as the evidence was given in the last trial, and it is left open to the jury to convict of the alternative offence of indecent act upon the basis of that evidence, unless there is an acquittal referable to the pure question of whether there was penetration or not, the applicant would be unable to raise that acquittal based upon the case of Storey in the subsequent trial.  That is why it is submitted the procedure – and we are very gratified that the learned Director has offered it to us.

KIRBY J:   Yes, do not worry about thanking him.  He has not been all that helpful.

MR BOYCE:   Well, he was.  But that is why.  If indeed the evidence of the complainant, as it may well do, strays into the realm of penetration on

the retrial, this particular applicant should be able to raise the fact of his acquittal on the incest count, which of course ‑ ‑ ‑

KIRBY J:   Yes.  Well, you say because the Court of Appeal concluded that the Crown in the first trial had not proved beyond reasonable doubt penetration, which is one of the elements of the offence of incest, that on that basis you were entitled to a verdict and order of acquittal from that court?

MR BOYCE:   Yes.

KIRBY J:   You ask it now and you say acquittal is not a mean thing?  If you were entitled to it you should have had it and it should not have been sent back for retrial in the light of that paragraph of the Court of Appeal’s reasons.

MR BOYCE:   Yes, your Honour.

KIRBY J:   Yes, very well, sit down and we will hear what Mr Coghlan says about that.  Why is that not the correct course and the course that the Crown as a special litigant would agree to, as I think Justice Callinan was hinting?

MR COGHLAN:   Only, your Honour, that on a retrial in the face of a verdict of acquittal and in accordance with the principle in Storey’s Case and as identified in the case of Young in Victoria, some analysis needs to be made of what the full weight of the acquittal means.  Now, we understand the reasoning of the Court of Appeal which was because a particular element was doomed to failure, the count of incest would fail and therefore the verdict was unsafe and unsatisfactory, but because a statutory alternative was available there would be a retrial.

KIRBY J:   Well, the applicant does not dispute that there can be a retrial if you decide to issue a new presentment, but he says that there is a logical inconsistency in the reasons of the Court of Appeal in saying that you did not prove it at the first trial beyond reasonable doubt, and yet they ordered a rehearing of that count.

MR COGHLAN:   Not of that count, your Honour.  They ordered a retrial on the basis that a statutory alternative is available.

KIRBY J:   Well, they did not say that.

MR COGHLAN:   To make that clear, your Honour, I have ‑ ‑ ‑

KIRBY J:   Their order was an order for a retrial and that would normally be read to mean a retrial of the matter which was the subject of the original presentment.

MR COGHLAN:   Yes, which cannot take place in the face of the view expressed by the Court of Appeal.

KIRBY J:   Well, it cannot, but that is the order of Court of Appeal and that is the inconsistency on the face of the record that we really have to deal with.

MR COGHLAN:   Your Honour, a presentment has been filed for the lesser count.  It has the effect of staying the original presentment because of the operation of the Crimes (Criminal Trials) Act.  So the applicant is not at risk in relation to that first presentment.  I have undertaken to ‑ ‑ ‑

KIRBY J:   I know you undertook it and we have read all that, but your undertakings, with respect - the Crown’s undertakings are not as good as an order of acquittal, and a person who on the reasons of the Court of Appeal was logically entitled to an order of acquittal, that is no mean thing.  That is an important thing for a citizen.

MR COGHLAN:   Your Honour, part of my undertaking is to give him his verdict of acquittal.  It is only the timing of it that matters, and matters to the Crown in the sense that on the retrial, even though it is known what the basis of acquittal based by the Court of Appeal would have been, if full weight is to be given to the verdict of acquittal, does it intrude into all of the factual circumstances including whether there was consent or whether it was accidental or whatever, because one cannot ordinarily look behind the verdict of acquittal.  It is a peculiar ‑ ‑ ‑

HAYNE J:   No, one cannot ordinarily look behind the verdict of a jury.  The proposition is radically different, is it not, Mr Director?  The verdict of acquittal ordinarily the jury has spoken, and you cannot look behind that.  Here you have a speaking verdict.

MR COGHLAN:   Yes, your Honour, I am not sure though that the cases have ever made that distinction.  It is a verdict of acquittal and it is for all purposes.  My concern simply is that that argument be put and some trial judge accepts, consistent with Storey and Young and the other cases, that is so and I am then non‑suited when my position is at the end of the proceedings I am perfectly happy to have a verdict of acquittal on the count under question entered by the court.

KIRBY J:   Well, what are you actually asking this Court to do, to stand over this application for special leave until after the trial on the new presentment?

MR COGHLAN:   Well, that would be one way, your Honour, if my friend wanted to keep it alive, but he has my written undertaking that he shall, irrespective of what happens, have his verdict of acquittal.  He shall have it.  I will go back to the court and lead no evidence on the presentment and there will be an acquittal.

KIRBY J:   Well, why should he not have it now?  If the Court of Appeal had acted logically and correctly in the paragraph of its reasons which says that you did not prove in the first trial beyond reasonable doubt the penetration which was an essential ingredient to the offence of incest, in those circumstances the proper order that followed logically from that reasoning was an order of acquittal and, if that is so, why should the applicant not have that order here and now and let it take its consequences as it shall?

MR COGHLAN:   Because a statutory alternative was available, your Honour, and the court was asked to deal ‑ ‑ ‑

KIRBY J:   But it was not the matter on which he was convicted at the trial, and that that order of conviction was the subject matter of his appeal and had the Court of Appeal acted correctly and in accordance with its own logic, it would have entered a verdict of acquittal of the charge of incest.

MR COGHLAN:   Yes, but the Court of Appeal do not get to the – the question of the statutory alternative is never reached on the first trial because there is ‑ ‑ ‑

KIRBY J:   Exactly.  So you have your second trial to have a go at it, but why should not the first trial be terminated in the proper and logical way that the disposition of the appeal against that order was established on the face of the reasons of the Court of Appeal?

MR COGHLAN:   Because the statutory alternative is available, your Honour.

KIRBY J:   Well, it is available, but it is available post – it is ex post; it is something new.

MR COGHLAN:   It is not something new, your Honour.  It only comes about because the Court of Appeal makes the decision that it makes.  It is always there.  The statutory alternative is always there.

KIRBY J:   Exactly.  It follows the Court of Appeal order.

MR COGHLAN:   But it does not arise because there was verdict on the principal count.

KIRBY J:   You are not being your usual helpful self, Mr Coghlan.

MR COGHLAN:   For once, your Honour, I am trying not to be unhelpful, I should say.  It is just a perception I have of how the case operates on retrial.  It is a purely practical consideration; it is nothing else.  If I am faced with an argument on a retrial, the full weight has to be given to the verdict of acquittal.  Does it intrude into the issues other than the simple issue identified by the Court of Appeal and if there is a risk of that, I seek to avoid it.

KIRBY J:   Yes, well, I understand that.

MR COGHLAN:   But I seek to avoid it in circumstances where a verdict will in the fullness of time be recorded.

KIRBY J:   If you want to have your day in court on this arcane issue of Victorian legal procedure, then it may be that the proper course for us to do is to grant special leave in the ordinary way and bring the matter up and sort it out and hear your arguments on Storey and hear your arguments on the Victorian Act and send you away with a final order.  I speak only for myself, but I would not send the applicant away today just with your undertaking.  Before he goes on his second trial, someone – and that means this Court – has to determine the preliminary question of whether he was entitled to an acquittal with whatever consequences that has in law for the second presentment.

MR COGHLAN:   I am certainly not in a position to do anything other than say I abide by any view expressed by the Court.  But we left here on the previous occasion proceeding on the basis that such undertaking as made by me as would produce this result would suffice in the circumstances.  I am still in the position of wanting to give that undertaking.  It is not accepted by my friend.

KIRBY J:   Yes, your undertaking is not enough.  He wants an acquittal.

MR COGHLAN:   He will have his acquittal, your Honour.  It is only a question of when.

KIRBY J:   Well, he will have it, he says, by force of law, not in due course when it suits the Crown.

MR COGHLAN:   It will still be by force of law, your Honour.

HAYNE J:   Can I just ask you this, Mr Coghlan?  You refer to Storey, you refer to Young.  Do you refer to any case comparable to the circumstances now presented?

MR COGHLAN:   Well, we did refer the Court on the earlier occasion to the New South Wales case of Murrell where a verdict of acquittal was not entered and it was taken that it was not necessary to do so, your Honour.

HAYNE J:   No, where a Court of Appeal enters a verdict of acquittal on one count and remits for retrial the statutory alternative.

MR COGHLAN:   Yes, well, in Murrell the New South Wales Court of Criminal Appeal took the view that it was unnecessary to enter an acquittal in those circumstances, your Honour, and the practice that is observed here in Victoria is exactly the same  The last thing I want to do in relation to what might happen to this matter is delay it further.  If the Court is of the view that the appropriate way is to dispose of it as suggested, I will not be heard to argue to the contrary, because it seems to me that the fear that I have has now, at least by virtue of the discussion that is taken here, a good deal more weight than it might otherwise have had.  It would be very difficult for somebody to argue that the acquittal can carry more weight than is anticipated in the way that the Court now says, but ‑ ‑ ‑

KIRBY J:   This matter has been before the Full Court of this Court twice.

MR COGHLAN:   That is so, your Honour.

KIRBY J:   Both parties have had their chance of oral submissions.  Would you have any objection to a course being adopted of the Court dealing with the application for special leave as a full appeal and putting in any written submissions that you want to in support of your arguments and the Court dealing with the matter on written submissions?

MR COGHLAN:   None, your Honour.

KIRBY J:   It is a relatively short and technical point, but it would seem to me that might be one way to deal with it to save yet a third hearing before the Court.

MR COGHLAN:   There is none, your Honour, and I make it clear then the position would become, unless I am able to convince the Court to the contrary, it would follow that a verdict of acquittal would be entered.  I follow that.

HAYNE J:   Your direction for a new trial to be had on the statutory alternative count of indecent act with a child.

MR COGHLAN:   Yes, your Honour, and section 582 has to be read in those terms, that if there are statutory ‑ ‑ ‑

KIRBY J:   But can we do that in the light of that section?  That section is addressed to the order the subject of the appeal.

MR COGHLAN:   Yes.

KIRBY J:   It is not addressed to some other matter which is the subject of your discretion and powers.

MR COGHLAN:   Well, your Honour, I doubt specifically that it is because I think it would follow that by virtue of the entry of the acquittal, that then enlivens the statutory alternative which was always there.  But it was just not enlivened prior to that because the verdict existed to prevent it.

KIRBY J:   That is true but, as Justice Hayne says, it is not a verdict of a jury speaking like the sphinx.  It would be a reasoned order of this Court which would make it clear that that left open, as the applicant concedes, your discretion should you so choose – and you might choose not to, although you presented the new process to put the applicant up on a second trial.

CALLINAN J:   I just observe – I do not know what the answer to this is, but what happens when you are asked to give particulars of the lesser count, if you are, and the Court of Appeal has held that there was no penetration or that penetration could not be proved?

MR COGHLAN:   I am not sure, your Honour, that the court actually goes as far as saying no penetration in a general sense.  It is no intentional penetration.  Now, the facts of the case might not alter much at all in the circumstances of this case.

CALLINAN J:   Well, in any event, I just ask the question to foreshadow what I can see might be a practical difficulty when the matter comes to trial.

MR COGHLAN:   But no part of our case, your Honour, that we by some different guise try to say there was intentional penetration.  We say this is an indecent act in the broader sense, being touching in the vicinity of the genitalia really.

CALLINAN J:   That would be your particular, would it?

MR COGHLAN:   Yes, more or less.

CALLINAN J:   More or less.

KIRBY J:   Yes, we would be minded to take that course that I raised with you, that is to say to deal with the matter as a Full Court hearing the matter as an appeal and then disposing of the remaining issues between the parties on the basis of written submissions which they would have the leave of the Court to file and considering those matters and dealing with it then as a Court of three.  You understand it would be this Court?

MR COGHLAN:   I do, your Honour, and I cannot say that I have researched it absolutely, but I have not yet been able to find any decision that deals with the question of the difference between a verdict of a jury and a verdict by a Court of Appeal and it might be useful to have some ‑ ‑ ‑

KIRBY J:   In the old days, Mr Coghlan, the High Court of Australia used to deal with many difficult and complex questions as a court of three and maybe it is time again to do that.

MR COGHLAN:   Yes, but some authoritative pronouncement on the subject would be very helpful, your Honour, and that is why the course of appeal is so ‑ ‑ ‑

KIRBY J:   It seems a pretty straightforward question to me.  You consent to the course that I have indicated?

MR COGHLAN:   Certainly, your Honour, yes.

KIRBY J:   Well, what does the applicant say about that course?

MR BOYCE:   Your Honour, I confess I am a little unclear as to what is being proposed.

KIRBY J:   Yes, very well.  What we will do would be to simply stand this matter over for judgment and to indicate that the Court will proceed to deal with the appeal and the application for leave to appeal together.  We will give the parties, in the case of the applicant, 28 days, in the case of the respondent, a further 14 days thereafter, to put in any further written submissions, the applicant having the facility of reply of a further seven days after the respondent’s submissions.  This Court will then consider on the papers including the further submissions whether to grant special leave and, if so, if that is the proper course, what orders the Court should make in disposing of the appeal.

MR BOYCE:   Thank you for explaining that.  My solicitor is here, your Honour.

KIRBY J:   You want to get instructions, do you?  You can announce that as soon as you have instructions but, subject to your instructions, they will be the orders of the Court.

MR BOYCE:   Thank you.  Shall I need to mention the matter again, your Honour?

KIRBY J:   Yes, you have leave to mention it at any time in the list.

MR BOYCE:   Thank you.

AT 12.25 PM THE MATTER WAS ADJOURNED
UNTIL LATER THE SAME DAY

UPON RESUMING AT 12.53 PM:

KIRBY J:   Do you consent to that course proposed by the Court earlier?

MR COGHLAN:   I do, your Honour.  If I could indicate to the Court that if in the meantime I am convinced by the matters raised by the Court, I will notify the Court accordingly.

KIRBY J:   Yes, that would be helpful too.

MR COGHLAN:   I would just like a bit of time to reflect on ‑ ‑ ‑

KIRBY J:   Yes, of course, naturally.  We have given a little bit of assistance during the course of the morning.

MR COGHLAN:   Thank you, your Honour.

KIRBY J:   I will indicate to Justice Callinan that both parties consent to the procedure which was envisaged earlier in this matter and the orders will be as the Court then foreshadowed.

AT 12.53 PM THE MATTER WAS CONCLUDED