Ak v The State of Western Australia

[2007] HCATrans 299

[2007] HCATrans 299

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P1 of 2007

B e t w e e n -

AK

Applicant

and

THE STATE OF WESTERN AUSTRALIA

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO PERTH

ON FRIDAY, 15 JUNE 2007, AT 10.39 AM

Copyright in the High Court of Australia

MR R.W. RICHARDSON:   If the Court pleases, I appear for the applicant.  (instructed by Aboriginal Legal Service of Western Australia (Inc))

MR R.E. COCK, QC:   If the Court pleases, I appear with MS F.M. CLARE for the respondent.  (instructed by Director of Public Prosecutions for Western Australia)

KIRBY J:   Yes, Mr Richardson.

MR RICHARDSON:   Your Honours, the application, as you will note from the application book was filed 25 days late.  Do your Honours wish to hear me at this stage?

KIRBY J:   Is there any difficulty with that, Mr Cock, the extension of time?

MR COCK:   There is none, your Honour.  There is no difficulty with that.

KIRBY J:   Yes, thank you very much.

MR RICHARDSON:   May it please the Court.  This application concerns the operation of the proviso in circumstances where a judge’s, sitting alone, reasons have been held to be inadequate.  In the circumstances of this case the applicant submits that they were not only inadequate, they were, in effect, no reasons at all. 

While this Court in Weiss has explained the relationship between the exchequer principle and the proviso, it did not decide whether or in what circumstances an appeal may be allowed even though the Court is persuaded of guilt, although there were suggestions there that it related to issues of procedural fairness, nor did it decide whether some errors or miscarriages may amount to such a serious breach as to deny the application of the proviso.  It is submitted that the first draft ground of appeal raises both of these issues. 

It is further submitted that there will be circumstances, and it would not be inconsistent with Weiss, where an examination of the record which was undertaken by the court below here is not always necessary.  That certainly was the position of the majority in Wilde, which adopted what Justice Gibbs, as he then was, said in Quartermaine that is that:

The proviso has no application where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings.  If that has occurred, it can be said, without considering the effect of the irregularity upon the jury’s verdict, that the accused has not had a proper trial –

While Weiss has certainly effected the application of that principle in terms of what the true test is, it is the applicant’s submission that it did not touch the proposition in Wilde that there will and may be circumstances where the error is so substantial that it is unnecessary, in fact, to examine the whole of the record.  An example of that, in my submission, would be where the accused was chained to the railing outside the court and not permitted to hear the trial.  It would be irrelevant, in those circumstances, whether or not the evidence adduced satisfied guilt beyond reasonable doubt because the person was not permitted to hear the trial. 

That has been adopted by the Court of Appeal in New South Wales recently this year in the case that was delivered, hopefully, to your Honours yesterday of Swansson where Chief Justice Spigelman and the other judges of that court did not actually undertake a review of the evidence and nevertheless found that the proviso should be applied in those circumstances – if your Honours have had an opportunity to look at the headnote, at least – were in circumstances where there are two indictments.

KIRBY J:   Let us assume.  There possibly is room for difference and the submission and consideration by this Court but Weiss itself referred to the fact that there are still cases where it will not be correct to apply the proviso.  I mean, it is in the very nature of the proviso.  It is not a mandatory decision.  So let us assume that there is in some circumstances and let us even assume that where a judge does not give adequate reasons that that is one such circumstance but what do you say about the facts of this case, because if we get concrete for a moment – I mean, this is the case of cousins who are on a mattress and the theory that your client, rather belatedly I think, propounded was that the person who did this was his brother, is that not correct?

MR RICHARDSON:   Not correct in this sense, it was the applicant did not give evidence but the ‑ ‑ ‑

KIRBY J:   Yes, it had not been excluded that it could have been someone else and the only other male who was on the mattress – there were two boys and two girls – was the brother but, according to the evidence as I read it, they were boys of different height, different complexion, body size and it seems very unlikely that the complainant would have got them wrong.

MR RICHARDSON:   In answer to that, specifically in relation to the evidence, firstly, the evidence was it was so dark that the complainant could see nothing in the room, not a thing.  If you compare the evidence in relation to the second incident – which I have provided a copy – at page 23 of the transcript where an incident some 13 months later occurred where the complainant alleged the applicant came into her room.  She specifically said, “I could see him” which she did not in relation to the first incident, “I could see him in the door”.  The light was behind the door.  “I could see his curly hair”.  She gave a complete description, a visual description, which enabled her to identify and specifically identify the person. 

In relation to the first incident in which this appeal relates she gave evidence she could not see, she did not hear and there was no body touching and they were both in bed on the mattress in a prone position.  The only touching that occurred was touching by the applicant, she alleges, placing his hand on her hand and directing it towards his penis.  So it cannot be said that there was any evidence of the normal incidence of identification.  In fact, it is submitted that, on the evidence, what the complainant did was draw an inference or make an assumption that because when she got into bed to go to sleep that the applicant, on her evidence at trial, was in bed next to her, followed by the sister, followed by the brother and when she woke up she assumed it was him.

HAYNE J:   Those are not arguments that are directed to questions about error going to the root of the trial.  Those are arguments that are directed to the proposition that when you look at the transcript without having the benefit of seeing the complainant give her evidence, the transcript does not reveal a case which inevitably or necessarily would persuade, or should have persuaded, the Court of Criminal Appeal that the offence was established beyond reasonable doubt.

MR RICHARDSON:   I agree with that, your Honour, but I was simply answering his Honour Justice Kirby’s question.

HAYNE J:   I understand that, but it seemed to me in the end that that may be the proposition upon which you stand or fall.  You have, I think, perhaps to consider two alternatives.  One, when you read the transcript, the Court of Appeal was rightly persuaded that there could be no doubt on that evidence of guilt.  The alternative is, when you read the transcript, the Court of Appeal without seeing the witnesses could not be persuaded beyond reasonable doubt of guilt.  Now, in the former case the question becomes why not apply the proviso?  In the latter case no proviso question arises because the precondition is not satisfied.  So we do not ever quite get to this proposition of root of the trial or fundamental departure from requirements.

MR RICHARDSON:   Save this, your Honour, in Fleming the Court there unanimously was of the view that in similar legislative framework the failure to identify and heed a warning in written reasons by a judge alone was fatal.

HAYNE J:   Yes.

MR RICHARDSON:   That Court did not go on and consider whether it went to root.  It accepted that that was a fundamental error, that it was not a trivial breach of the failure to give reasons and, in my submission, the facts in Fleming fall far short of the facts in this case where his Honour gave his reasons in 15½ lines that this person was guilty and did not address, in any respect, the manner in which he found beyond reasonable doubt that it was the complainant who committed these acts; not one reason, nor did he do, in my submission, what he was required to do under those provisions, notwithstanding the lack of express direction from the legislature, to also indicate and give effect to the warnings necessary, as propounded by this Court in Alexander and Domican, of the dangers of identification evidence.

This was not a trivial breach.  This was an absolute abrogation of a legislative imperative to give reasons.  In my submission, the principle that applies firstly is that there has been a complete denial of natural justice in the sense that the accused person has no idea why he was convicted and, secondly, because of the principle taken from other arguments that convictions cannot be obtained at too high a price, the public policy considerations ‑ ‑ ‑

KIRBY J:   Can you remind what the actual evidence of the complainant was that, as it were, pinned the guilt on your client?

MR RICHARDSON:   I am sorry, your Honour?

KIRBY J:   What was the actual evidence of the complainant that pointed at your client?

MR RICHARDSON:   They were in bed together.

KIRBY J:   What did she say before the trial judge?

MR RICHARDSON:   What she said before the trial judge was, in effect, “I woke up and the applicant was touching me”.  When that was gone into detail or subject to cross‑examination ‑ ‑ ‑

KIRBY J:   She said the applicant was touching her. 

MR RICHARDSON:   Yes.

KIRBY J:   Then it was put to her that she could have been mistaken about that, about his identity.

MR RICHARDSON:   What happened then was an investigation as to why she held that view and it became apparent that it was because that was their position when they got into bed to go to sleep.  That seemed to be the only factual matter underpinning her conclusion that it was him.  She did not say as she said in the second incident, “I could see him.  I could see his hair.  I could see that he was different”.  There was absolutely nothing of that.  The only factual matter that she identified was that they were in bed together and next to each other.

That, of course, was subject to attack in cross‑examination because it was different from what she told the police.  That was the essence of it.  It was clear, in my submission, that her evidence, when compared to what was said in the second incident, was purely an inference or an assumption or a speculation that she had engaged in because of how they got into bed together, but in terms of the incident when it was occurring there was no identification, visually, orally or by sense of touch, as the majority held.

CRENNAN J:   In paragraph 6 on page 19 of the application book Justice Roberts‑Smith deals with this issue and it is suggested there that the complainant maintained throughout that she knew immediately who was interfering with her and she was never in any doubt about that and that she had asserted consistently on that basis she knew him and she knew that it was him.  Does that reflect the evidence that was given at trial, that summary of the evidence?

MR RICHARDSON:   There is no doubt on the evidence that she believed it was him in the sense that she honestly believed it was him.  There is no doubt about that and his Honour, of course, accepted her as a truthful witness so that is something that cannot be contradicted.  But when one examines the evidence, the only time, I suppose, that her belief became a little bit shaky on that point was at page 30 of the application book at 10 where in cross‑examination this question was asked:

“So could it have been, say, [the appellant’s brother] that was touching you?---I don’t think it could have been.  I’m - - I’m pretty sure it was [the appellant].

But that was the only time that I suppose that there was a slight ‑ ‑ ‑

HAYNE J:   Go on.  It is the next answer that is the real sting.

MR RICHARDSON:   I accept that, your Honour.  That is what I am saying, but that was the only part, that first part, where she at least resiled slightly from the so-called certainty.  But the fact that a person is certain that they have identified someone does not prove that they are right and, particularly when one investigates why she held that belief, indicates why the failure of the trial judge’s obligation to give reasons was so critical because he did not deal with the issue of reliability at all; not at all.

The suggestion by the prosecution that one can look at exchanges between counsel and the Bench prior to is contrary to the express provisions or the express findings of Fleming where it is held that you can only look at the reasons for decision to determine whether or not a matter has been considered or not.  In my submission, the certainty does not resolve this problem.  The lack of warning, the Alexander or Domican warning, was not present.  It cannot be assumed that it was, based on what Fleming says.  This was an imperative that had not been dealt with.

What the Court of Appeal did was to look at Wilde and say,  well, this does not go to root of the proceedings because it is not part of the trial.  In my submission, that is just clearly wrong because the reasons by legislation are made part of the trial process but, more importantly, even getting back to the example I gave earlier, if the person is not permitted to see the trial that does not affect the evidence either, so his Honour has applied the wrong test there.

In relation to the second ground, Justice Hayne has identified, in my submission, the point there and I do not really need to take you to that other than to say that we adopt the reasoning of Justice Buss, it was impossible, in our submission, for the Court to undertake the task of determining guilt due to the natural limitations that existed and the lack of the findings, any findings, in relation to the issue of credibility and, in relation to the third ground, that the three judges of the Court of Appeal could not even agree on what basis the identification was made. 

One said the identification was by touch.  There is no evidence that it was by touch.  That was Justice Pullin.  The other judge, Justice Roberts‑Smith, said, no, it was not by touch, it was because she sensed it.  It was because of presence, but there was no evidence of that, either.  Neither of those inferences, with respect, could be drawn in the circumstances.  The third judge, Justice Buss, said, you cannot tell, it is impossible to tell.  Justice Buss, notwithstanding that, still came to the view that a jury could have convicted.  In my submission, based on his finding that the method of identification could not even be established, in my submission that it would be unsafe and unreasonable to convict on that evidence.  They are my submissions.

KIRBY J:   Yes, Mr Cock.  Mr Cock, is this normal in the State of Western Australia?  I ask this just only for myself.  We have a boy of 13 and his cousin of 15, they are put together on a mattress by their families and there are two other children on the mattress and then the boy gets the cousin to touch his penis and he touches a breast and then the whole panoply of the

criminal law is thrown at them.  I mean, if one thinks of evidence of sexual experimentation that is demonstrated in scientific research, if every person of that age who touched a cousin or somebody close was thrown into the criminal justice system, our courts would be even more busy than they are.  I just ask this for myself, is this the normal practice of a child of 13? 

Here you are with three juniors, you have prudently got rid of two of them for the application, the State is here with four barristers and there has been an appeal in the Court of Appeal and then there has been a solemn trial.  I really do raise a question about the wisdom of a prosecutorial discretion in a case of this kind.

MR COCK:   Your Honour will have noted that the matter below proceeded as a prosecution against the applicant in respect of three separate instances, two of which were sexual penetration without consent, one of which was this incident of two offences of a serious nature.

KIRBY J:   On the others the applicant as acquitted.

MR COCK:   Yes, and I suspect, with respect, your Honour, that this particular set of charges would not have proceeded but for the two more serious matters with which they were joined.

KIRBY J:   I do hope so because I only speak for myself but it just seems – if one just thinks in terms of resource allocation ‑ ‑ ‑

MR COCK:   As I say, your Honour, the other two charges were quite serious and I suspect it was because of the existence of those that this particular one was also joined with them.

KIRBY J:   Yes.  We have this one before us and we have that strict rule that the judge has to remind himself or herself about the very strong principles in Domican.  I was reversed in Domican.  I was in the Court of Criminal Appeal of New South Wales and I have never forgotten it but I do think Domican was a correct principle in identity evidence.  There had been so many miscarriages on identity evidence that this Court has laid down a very strict rule and the judge does not say that he gave attention to it.

MR COCK:   No, and his Honour Justice Pullin, your Honour, at page 34 of the application book at about line 17 identified that precisely as the basis upon which he upheld Ground 2 of the appeal before him.  So there is no misunderstanding by the members of the court that the error in the reasoning process was the failure for the judge to correctly identify and consider the identification question.

KIRBY J:   Once you get to that point, there is strength, is there not, in Mr Richardson’s statement, well, then you do not have a common ground between the majority in the Court of Appeal of what it is that identified this applicant as the person who was the toucher.

MR COCK:   I think it is unfair to put it that way, with respect, your Honour.  Justice Roberts‑Smith generally agreed with Justice Pullin but expressed some additional observations.  I take his judgment as expressing agreement with Justice Pullin’s view that there were some circumstantial evidence that was capable, taken with the girl’s oral evidence, of sustaining the conclusion and therefore entitling the court to impose a conviction despite upholding Ground 2.

KIRBY J:   We do not actually have the testimony of the complainant but is what Mr Richardson reported to us correct, that the complainant did not actually say, “I could tell it was the applicant by touch”?  Is it true that she said, well, it was all so dark that you could not tell between them by visual means?

MR COCK:   Justice Pullin extracts all the relevant evidence of the complainant in his judgment, as I think did Justice Buss, and your Honours will find that commencing at about page 25.  Your Honours will see, particularly at page 27 at line 10, “that you were lying next to [the complainant’s sister]”.  Later on she becomes very clear at line 30, for example, on page 28:

He was laying on his left side, facing left?---Sorry, right.  Sorry, I don’t - - I can’t remember.  Mmm, on his  - - sorry.  I was laying on my back.  I can’t remember how he was laying.

You’ve no idea?---No.  All I know is that when I felt his penis his pants were down.  I didn’t even look at him . . . 

Okay.  And you weren’t sure where - - what position you were lying in and you weren’t sure what position [the appellant] was in either?‑‑‑Yes.

That’s about right?---Yes.

But later on at page 30 my friend read you a passage at line 10 ‑ ‑ ‑

KIRBY J:   You move over 29.  On 29 at 35 the question is:

All right.  Dark enough so that you couldn’t see other people?---Yes.  It was dark enough.

MR COCK:   Yes, but also, your Honour, at line 20 on 29:

Well, how did you know it was  [the appellant]?---Because it - - he was laying next to me and I knew it was him.

This is the vehemence with which she was giving her evidence that I think impressed Justice Roberts‑Smith in addition to the reasons that Justice Pullin set out.

KIRBY J:   But the whole point of identity evidence and the identity warning or self‑warning is that people make mistakes, they leap to a conclusion, they jump to the view that it was the applicant and not his brother.  Just by the way, what happens if a person like this applicant is convicted of this offence, does he go on some special register as a child sex offender?

MR COCK:   Not at this particular time.  He may subsequently.  As I understand when this offence was committed that was before the register, your Honour, but there is a facility now ‑ ‑ ‑

KIRBY J:   I see.  It certainly would not help him in life to be convicted of a sex offence against an under‑aged complainant.

MR COCK:   With juveniles, your Honour, the registration is only temporary and it actually does not stay with him for his life.

KIRBY J:   Yes.

MR COCK:   Anyhow, your Honour, at 25 on page 29:

Well, did you actually see the person on the other end of the hand that was touching you?---No.  But he was laying next to me.

All right.  So you didn’t see [the appellant] next to you because it was night time, wasn’t it?---Yes, it as night time.

Then, your Honour, she goes on at page 30.  My friend read the first passage.  Your Honour Justice Hayne invited my friend to read the second at line 15:

You don’t think?---No.  I’m - - I’m definitely - - I knew - - I know it wasn’t [the appellant’s brother].

MS BARONE:   Okay?---because he was - - he was in on another side.  He was asleep.

It goes on and on.  She is absolutely dogmatic and definite about that.  I acknowledge that one judge below took the view that this was not an appropriate case to form a view as to the capacity or the proviso to apply.  Two other judges took the contrary view.  My friend has not identified, of course, that the subsequent sexual acts which were admitted, apparently, some 13 months later reveal some sexual interest which does give some additional support or inference to the fact that there was no sexual interest by the brother ever exhibited towards this complainant although, of course, the applicant later took that further.

KIRBY J:   That might be a sexual interest that developed later.  It does not necessarily prove there was a sexual interest a year and a half earlier.

MR COCK:   That is acknowledged, your Honour, and the judge has expressed that almost in similar terms as the way your Honour has put to me but, nevertheless, it does provide some additional support if one seeking it.  Your Honour, I think I and my friend have given you the evidence and the passages that are relevant ‑ ‑ ‑

HAYNE J:   Just before you sit down, then, Mr Cock, other than paragraph 31 of the reasons, which are the reasons of Justice Pullin, where do we find the Court of Appeal directing judges in Western Australia that the authority of this Court in Fleming applies and is to be pursued and it is not good enough for judges to incant the formula so beloved of some courts of summary jurisdiction in years past, “I’ve  heard the evidence of the complainant.  I accept it.  I reject the evidence of the defendant.  I find the accused guilty.”  It is just not good enough, Mr Cock.

MR COCK:   It is found, your Honour, that every judge of the court upheld Ground 2 and Justice Pullin did so clearly, following 31 on 32, acknowledging the court may be a busy court by saying it simply was inadequate and, as I say, all judges upheld Ground 2 and the judge is well reminded, as other judges are, that this is an error with which the court will not put up.

KIRBY J:   Yes.  I was looking at paragraph 86 which is Justice Buss’s.  He simply refers to Fleming but in fact there is a quote from Fleming at paragraph 61 in Justice Buss’s.  Is that on this point of the obligation of the judge to – yes, it is, it is at paragraph ‑ ‑ ‑

MR COCK:   Yes, it is, 28 et cetera from Fleming are the passages that are relevant to that point, yes.

KIRBY J:   Yes.  All right, anything else?

MR COCK:   No, your Honours.

KIRBY J:   Yes, thank you, Mr Cock.  Anything in reply, Mr Richardson?

MR RICHARDSON:   Your Honour, if I can just assist the Court in relation to some page references in relation to the issue raised.  Page 24, paragraph 30:

“Did you notice - - whilst [the appellant] was touching you did you notice whether anyone else had woken up apart from [the appellant’s mother]?---No, I was just - - it was too dark to see.”

And then at 29 at 25:

All right.  Well, did you actually see the person on the other end of the hand that was touching you?---No.  But he was laying next to me.

KIRBY J:   Can I just ask you on that, if a person is a tall person the feel of a person lying next might be different than if the person is a short and wiry person and maybe that is what the complainant was trying to say there, that the person lying next to her was not a lanky boy like the brother but it was a shorter boy like the applicant.  That is not quite touch.  It is not touch by hand but it is the feeling of the size and length of the body.

MR RICHARDSON:   The evidence was clearly and unequivocally that apart from the touching of the penis there was no contact between the bodies and that was unequivocal.

KIRBY J:   What did she mean by saying, “he was laying next to me and I knew it was him”?

MR RICHARDSON:   In my submission, when one reads the entirety of the evidence that is set out by the two justices in this case, it is clearly an assumption, an inference that she ‑ ‑ ‑

KIRBY J:   The caravan would have to be the black hole of Calcutta that she could not see the length of the person lying next to her.

MR RICHARDSON:   She did not see the person on the other end of the hand.

KIRBY J:   You are looking at it very naturally and properly from the point of view your client has had a sexual offence found against him, he was a very young Aboriginal boy at the time and you are trying to get special leave to have that reversed and we all understand and you put the case very well, if I can say so.  But looked at from the point of view of the High Court of Australia, it is a very fact specific case.  Fleming is mentioned, error is

found, criticism is given and the question is, is it really the role – we are not the super Court of Criminal Appeal of this country, we are not the second level Court of Criminal Appeal, we are a court of principle and error.  What is the reason for our intervention in the case?

MR COCK:   The only offer I could make in relation to principle is that, in my submission, what Justice Pullin said that, if you like, the Wilde principle has no application because this has got – that reasons have nothing to do with the trial.

KIRBY J:   We might well look at Wilde.  The Weiss matter is going to come, I am pretty sure, and already there have been arguments about that.  That is not going to be a difficult one to get to the High Court, I would not have thought, but the issue in this case really seems to get down to there was identity evidence, the judges in the Court of Appeal do not seem to have agreed what it was and, above all, the trial judge did not give himself a warning, but the Court of Appeal says that he has to give a warning and that was a mistake.  But, as Justice Hayne put to you, the trial judge had great advantages over an appellate court.  He saw the complainant give evidence and neither the Court of Appeal nor we would ever do that.

MR RICHARDSON:   In my submission, the statutory imperative to give reasons has been completely ignored by the trial judge.  Public policy, in my submission, demands, as was stated in Fleming, that one of the reasons for this legislation is to ensure that justice is not only done but is seen to be done.  This Court should not countenance circumstances, in my respectful submission, where a judge has completely ignored his obligations and that failure has resulted in the Court of Appeal, the intermediate court, being unable to decide the basis of his decision, that is, the basis of the identification, or for him to understand why he has been convicted.  They are substantial breaches of natural justice.  In my submission they should be addressed by this Court.  May it please the Court.

KIRBY J:   Yes, very well, thank you.  The Court will adjourn, briefly, to consider the course it will take in this application.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.17 AM:

KIRBY J:   The Court grants special leave to appeal in the application of AK.  Mr Richardson, how long would the argument in the case take, would you estimate?

MR RICHARDSON:   Certainly no more than a day and I would hope a morning.

KIRBY J:   Yes.  Do agree that it is a morning?

MR COCK:   Only half a day, certainly.  I cannot see it going more than half a day, your Honour.

KIRBY J:   No.  The case will be listed in the Perth sittings in October and we will note that counsel estimate that it is half a day, perhaps plus, and the parties should be ready for the Perth list.

AT 11.18 AM THE MATTER WAS CONCLUDED