Ajs v The Queen

[2006] HCATrans 337

[2006] HCATrans 337

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

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 16 JUNE 2006, AT 2.25 PM

Copyright in the High Court of Australia

MR C.B. BOYCE:   If the Court pleases, I appear with my learned friend, MS F.L. DALZIEL, for the applicant.  (instructed by Victoria Legal Aid)

MR P.A. COGHLAN, QC:   If the Court pleases, I appear with my learned friend, MRS C.M. QUIN, for the respondent.  (instructed by Solicitor for Public Prosecutions)

CALLINAN J:   Mr Coghlan, there are some matters we want to raise with you.  Your letter of 9 June 2006 – do you have a copy of that letter, Mr Boyce?

MR BOYCE:   I do, your Honour, yes.

CALLINAN J:   We wish to know whether you would be prepared to give an undertaking to the Court in terms of your statement of intention.

MR COGHLAN:   Absolutely, your Honour.

CALLINAN J:   So that there is an unequivocal undertaking in terms of your intentions.  May we take it that that undertaking is an undertaking for all times, that it is something that in absolute terms the prosecution will not do?

MR COGHLAN:   It is, your Honour, and I understand the caution with which my friend was approaching the case, but it did not ever occur to me that anyone would think that I would ever try and present this man for ‑ ‑ ‑

CALLINAN J:   No, it is simply much better that these things are put on the public record, Mr Coghlan.  It is not a reflection upon your integrity in any way at all.

MR COGHLAN:   No, I follow that, your Honour, but the matter having been raised is the reason that we wrote the letter and I am perfectly happy to have it all put on the public record and happy to do so.

CALLINAN J:   Yes, and, of course, you are not speaking for yourself when you speak here.  You are speaking for the Executive, in effect.

MR COGHLAN:   I am, your Honour.

CALLINAN J:   So it needs to be absolutely clear.

MR COGHLAN:   And I suppose all Directors for all time in relation to this case.

CALLINAN J:   Thank you, Mr Coghlan.  Yes, Mr Boyce.

MR BOYCE:   Your Honours, the court below in this case was asked to determine whether the jury’s verdict of guilty on the single count ‑ ‑ ‑

HEYDON J:   But, Mr Boyce, it would not be just for your client to be the beneficiary of an acquittal and to be free of prosecution on the indecent act count, would it?

MR BOYCE:   No.

HEYDON J:   One sees the point of your special leave application and argument, but now that the Director has, in effect, taken away the primary vice of the Court of Appeal’s order, is there anything left in your special leave application?

MR BOYCE:   Well, only this, your Honour.  I concede it takes a great amount of the wind out of the sails of the argument, and I am most gratified that the Director has taken the course he has, but the point still remains that it is submitted that the applicant was entitled as of right to an acquittal to the offence upon which he was presented before the jury.  Now, it seems, if one reads between the lines ‑ ‑ ‑

HEYDON J:   Is not the permanent stay, for all practical purposes, as good as an acquittal?

MR BOYCE:   For practical purposes it may be.  The acquittal, it is submitted, has a number of aspects.  The first is it would prevent the Director from prosecuting the applicant on the same count again, but that is no longer an issue because of the undertaking.  The second is, however, that the applicant has with an acquittal something that he can use or something he can treat as a verdict or judgment of innocence.  Now, I concede that there is some difference of terminology used as between the cases of this Court in the case of Darby, for instance, or Garrett and Storey on the other hand.

If I could take up the cases of Garrett and Storey.  Were it ever suggested against this applicant, were the facts ever alleged against him in another forum whereby he was not being asked to be convicted of it but certain inferences were being asked to be drawn, if the evidence was admissible in another forum for another purpose, the jury would need to be told that he had been acquitted and that he was entitled to the full benefit of that acquittal and that meant – what does full benefit mean?  It means he is innocent of the offence.  So it is more than merely something prevents, as it were – the acquittal is more than merely something that prevents the Director from pursuing him should the Director choose to do so for the same charge again.  It is a judgment.  The State has put this man on his trial.  He is entitled, it is submitted, as of right once it is determined that the evidence will not support the charge, to be acquitted of the charge.

HEYDON J:   Assuming leave were granted, what order would you ask the Full Court to make?

MR BOYCE:   We would ask that ‑ ‑ ‑

HEYDON J:   Acquittal of incest?

MR BOYCE:   Yes.

HEYDON J:   And anything else?

MR BOYCE:   That matter, may I say, your Honour ‑ ‑ ‑

HEYDON J:   Would that not just preclude a new trial on indecent act?

MR BOYCE:   Well, the matter was thrown into some doubt, if I might say so – I was fairly clear about it until this Court’s decision yesterday in the Island Maritime Case and ,in particular – yes, I do not think your Honour Justice Heydon was party to it, but your Honour Justice Callinan will know ‑ ‑ ‑

HEYDON J:   I was party to a good part of it.

CALLINAN J:   Minds might differ.

MR BOYCE:   My mind is swirling.  I cannot remember exactly.  But the Court will know the judgment of his Honour Justice Hayne in which Justice Gummow joined and, in particular, the comments that their Honours made about whether autrefois acquit could avail an applicant if the verdict were not inscrutable, if it were not a jury verdict.  Their Honours spent a deal of time talking about verdicts and courts of summary jurisdiction where, were there some commonality between the elements of the two offences, where it said that – and if on the initial offence had the offender been acquitted in this court of summary jurisdiction and he was later presented on a similar offence, if a subsequent court knew the reasons for why the initial acquittal was delivered, there would be no autrefois acquit argument.

Now, by parity of reasoning, it might be said – and by applying their Honours’ reasons in this particular case, there is no inscrutability about the court below’s judgment of acquittal in this case.  We know why the applicant was acquitted.  Perhaps to answer your Honour’s question, if the dicta of their Honours ‑ ‑ ‑

CALLINAN J:   How would the fact of acquittal ever become relevant in any subsequent proceedings?  You are talking about some other charge for some other offence.

MR BOYCE:   Yes.

CALLINAN J:   Let us assume a trial on some other offence, how could the acquittal ever become relevant?

MR BOYCE:   The evidence that based the earlier offence might be relevant as propensity or relationship evidence in another trial.

CALLINAN J:   But surely in the exercise of any trial judge’s discretion any evidence adduced in relation to these events in an attempt to establish propensity would be rejected.  It is almost inconceivable to me that it could ever get into evidence.

MR BOYCE:   Well, your Honour, Garrett’s Case is one of those cases where the evidence of the earlier offence was admitted.  There had been acquittal with respect to that evidence.  It was admitted for a different purpose on the subsequent trial and the issue became in Garrett, had the jury been told in terms that the offender was to be given the full benefit of his earlier acquittal?

CALLINAN J:   Yes, but the evidence got in there.

MR BOYCE:   I agree with you.

CALLINAN J:   It seems to me, with all due respect, that a proper exercise of discretion in a case of this kind would almost certainly result in exclusion of evidence.

MR BOYCE:   In most cases it does, but there are cases, and Garrett is one, where exception was taken.  It was admitted.

CALLINAN J:   It is not a very attractive argument to be talking about charges for other offences, is it, what might happen ‑ ‑ ‑

MR BOYCE:   Well, your Honour, I do not want to be taken to be conceding anything.  I am being asked about what more about an acquittal is there ‑ ‑ ‑

CALLINAN J:   Yes, I understand.

MR BOYCE:   ‑ ‑ ‑ other than something that prevents further prosecution.  In my respectful submission, an acquittal is much more than that and the cases of Garrett and Storey are testament to that fact.  It can be treated in certain circumstances as a judgment and verdict of innocence.  Now, all I am seeking to suggest to the Court is, if their Honours’ dicta in the Island Maritime Case is applicable here and it was said that the verdict of the court below as to acquittal was not inscrutable, then if I succeed in persuading the Court that the applicant should have what is his right, an acquittal on the count upon which he was presented, then there would be nothing in any argument as to autrefois acquit to prevent him being presented on an alternative, if that dicta is applicable.

HEYDON J:   Yes.  So is your scenario, as it were, that he ought to be presented on incest by the Director but that the Director should undertake not to tender any evidence on that count and that he should be put up on an alternative count of indecent act and then tried for the ‑ ‑ ‑

MR BOYCE:   No.

HEYDON J:   Well, you are in a rather difficult position, frankly.  It would not be a just outcome if your client were to face no further proceedings.

MR BOYCE:   I am sorry, your Honour may have misunderstood me.  What I am suggesting is the order this Court should make, were leave granted, is that he should be given what is his right, namely, the acquittal on the count of incest.  It would seem that that verdict is not an inscrutable one in the words of their Honours in the Island Maritime Case.  It is not an inscrutable one.  If that dicta is applicable – and it only came down yesterday – what fear that the Court might have that the applicant would never be put up again, to use colloquial terms, on the alternative will be misplaced because we know why it would be that the court has acquitted the applicant in the instant case.  That is that one particular element was not grounded properly in evidence.

Now, I might say the Island Maritime decision caught me somewhat on the hop and, as I say, it only came down yesterday, but it bears upon the issue of whether or not the applicant could properly rely upon any autrefois acquit argument on an alternative count, were he to get what the common law, it would be submitted, suggests is his right.  It is submitted, with respect – and I agree with your Honour Justice Heydon, it would not be a just outcome for him not to be put up on the alternative, but what ‑ ‑ ‑

HEYDON J:   Except that your draft notice of appeal wants judgment and verdict of acquittal on the count of incest and that would imply no further trial.

MR BOYCE:   On the count of incest.

HEYDON J:   On any basis.  You want the appeal to be allowed – that would wipe out any new trial order – and you want a verdict of acquittal on the count of incest.

MR BOYCE:   Your Honour, I concede, given the way in which section 568 is framed – it is framed as an either/or.  The court below had a choice as to order a verdict and judgment of acquittal or order a new trial.  So I concede that were this Court to order an acquittal, given the terms of section 568, there could be no order for a new trial, but if the Island Maritime decision dicta is applicable, that would not avail an autrefois acquit argument below should the Director choose to re‑present the applicant on the alternative in any event.

CALLINAN J:   What about an abuse of process argument?

MR BOYCE:   It is difficult to see how that could arise in this case.  There does seem to be factors that would contribute to such an argument or that could be made – nothing like what was put forward in the Island Maritime Case, delay and so forth.

CALLINAN J:   Yes, thank you.

MR BOYCE:   Thank you.  Those are the submissions.

CALLINAN J:   Mr Coghlan, is there any procedure of which you are aware that by participation or co‑operation by you that would have the result for which the applicant contends?

MR COGHLAN:   I think there is, your Honour, and if I approach it this way.  The difficulty I have with what my friend proposes at the moment is that I think there are difficulties that given there is but a single count at the moment – there is one count on the presentment – and we are talking about a statutory alternative.  An order for acquittal on that count in terms of Storey and other cases would seem in terms to be almost fatal to any future prosecution brought by the Crown.  To give full weight to that acquittal cannot, in my submission, be narrowed to be, “Well, we all understand the basis on which that happened”.  That is not how we have proceeded.

We have in the past in Victoria struck difficulty in circumstances where directed verdicts or verdicts on the base of no evidence being led have come about in cases of sexual offending where there has been insufficient particularity and the Crown says, “Well, we don’t seek to proceed with those”, but in any case where we got a directed acquittal we

could not use that material then for any purpose, not even as an uncharged act, to spell out the relationship between the parties. 

I am quite happy to have my undertaking extended, however, to say at the end of any proceedings arising out of the presentment for the lesser offence that I intend to file, including any appellate proceedings, I am happy to have this presentment brought back on and lead no evidence with respect to it and have a verdict of not guilty entered.  But it is the order in which things occur that matters to me, it is submitted, that if I do it in that order, it seems to me that I accommodate the fear that my friend has of any future difficulty about it.  If I do it in the opposite order, it may give rise to the injustice of the alternative not being tried.

HEYDON J:   Mr Boyce, will you be happy with that suggestion of Mr Coghlan’s?

MR BOYCE:   It would appear to meet the fears.  The only other aspect of the case is – perhaps in the instant case it would appear to meet the fears, but the question is still one of some importance, it is submitted.

CALLINAN J:   This will meet your difficulties if Mr Coghlan proceeds, as I am sure he will, on the basis he said he is prepared to do?

MR BOYCE:   I think it does.

CALLINAN J:   Mr Coghlan, we are indebted to you for that.  For the same reasons as I mentioned before it is obviously desirable that this be recorded in an unmistakable way, and our inclination is to adjourn the matter for mention in order to enable you to formulate a permanent undertaking in terms not only of what we have already discussed but also in terms of this later matter.  If the two of you can agree upon a consent order, then if you sign that we will not have to reconvene, but if there is any problem, and only if there is a problem, we would reconvene.

HEYDON J:   So the form would be on your undertaking to the Court, which might be quite a lengthy piece of prose (1) the application for special leave be dismissed; (2) anything else anyone wants to say.  It does not seem ‑ ‑ ‑

MR COGHLAN:   To be frank, I had thought when arranging for the letter to be sent of having those matters adverted to in the letter and it got a bit too complicated and it seemed easier to have dealt with it in the way that we did, but we will find a formula ‑ ‑ ‑

CALLINAN J:   You have more time now and I have no doubt, in view of the attitude of both parties, which have been very helpful, you will be able to co‑operate in finding a proper formula.  So we will not refuse special leave at this point, but it is our expectation that you will agree upon an order which will include a refusal of special leave, subject to the undertakings along the lines that we have discussed.  If you agree upon that, then there will be no need for us to reconvene and we will only reconvene if there is any difficulty to be resolved.

Court will adjourn now until 2.15 on Monday next in Brisbane.

AT 2.47 PM THE MATTER WAS CONCLUDED