B v The Queen

[2004] HCATrans 244

[2004] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B25 of 2003

B e t w e e n -

B

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 23 JUNE 2004, AT 12.21 PM

Copyright in the High Court of Australia

MR A.J. RAFTER, SC:   May it please the Court, I appear for the applicant with my learned friend, MR B.G. DEVEREAUX.  (instructed by Legal Aid Queensland)

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   You need an extension of time, do you not?

MR RAFTER:   Yes I do.  I understand that is not opposed, your Honours.

GUMMOW J:   Is that right, Mrs Clare?

MRS CLARE:   Yes, it is.

GUMMOW J:   Yes, you have the extension.

MR RAFTER:   Yes, your Honours.  The first question concerns whether or not the Court of Appeal is entitled to take into account the failure of an accused person to give evidence when the court is considering a ground of appeal that the verdict of the jury is unreasonable or unsafe and unsatisfactory.

HAYNE J:   Assume that you are right to say that the Court of Appeal may not properly take that into account, in the particular circumstances of this case would that point be in play?

MR RAFTER:   It would, in my respectful submission, so far as count 1 is concerned.  It would not have any bearing on count 4, because the way Justice Davies approached the point at page 66 of the application book, paragraph [33], his Honour focused upon the failure to give evidence so far as it bore upon the defence of honest and reasonable but mistaken belief, which pertained only to count 1.  On that subject, the President differed from the reasoning of Justice Davies.  Her Honour expressly did not follow that reasoning, and one sees that at page 61 of the application book, paragraph [2] in the final sentence.  Her Honour said:

I am not, however, persuaded that the appellant’s failure to give evidence supporting the defences raised in his interview with police can be regarded, in the circumstances of this case ‑ ‑ ‑

GUMMOW J:   Her Honour may well have been correct there, but she nevertheless agreed with the result.

MR RAFTER:   She agreed with the outcome, but the third member of the court, Justice Philippides, agreed with Justice Davies, and insofar as ‑ ‑ ‑

GUMMOW J:   This is a special leave application.

MR RAFTER:   Yes.

GUMMOW J:   Well, why can it not be supported on the basis of what the President did?

MR RAFTER:   In my respectful submission, the applicant gave his account to police, which triggered the defence of accident.  There was nothing more he could have said.

GUMMOW J:   Why can the outcome not be supported, as it was supported by the President?  Why, therefore, is there a special leave case?

MR RAFTER:   Well, the court has erred in - the majority justices, so far as this point is concerned, had regard to the failure to give evidence.

GUMMOW J:   It is a hypothetical question, is it not?

MR RAFTER:   Not necessarily, since it did feature as an important factor in the reasoning of Justice Davies which ‑ ‑ ‑

HAYNE J:   But you would have to say the President was wrong.  Now, why is the President wrong?

MR RAFTER:   Well, the state of the evidence was such, in my respectful submission, that there was a real ground for believing that the Crown could not eliminate the defence of honest and reasonable but mistaken belief.  The evidence which her Honour sets out in her judgment demonstrates that, in my respectful submission.  If I cannot make that proposition good, then what your Honours are putting to me is valid, I accept that.  But at the heart of the case itself is the approach taken ‑ ‑ ‑

HAYNE J:   And you have to go so far as to say, do you not, that the jury must have entertained a reasonable doubt.

MR RAFTER:   Yes, I would have to go that far as to say that.  So far as this point is concerned, it has been discussed in Dyers v The Queen 210 CLR 285, particularly in the judgments of Justice Kirby and Justice Callinan. At page 308 paragraph 60 in Justice Kirby’s judgment under the heading “The unreasonable verdict issue” his Honour discusses the point and expressly agrees with Justice Callinan, and just above paragraph 61 his Honour says:

The reasoning of the Court of Criminal Appeal –

from New South Wales –

in this case, and in Gordon and Gordon upon which it depended, incorrectly imposed upon the appellant, in effect, an obligation to give sworn evidence that was not required by law, or to suffer a significant burden in the consideration of the reasonableness of the jury’s verdict.

His Honour expressly said that, and the relevant passage from Justice Callinan’s judgment can be found at page 328 to page 329 in paragraph 124 and following.  His Honour expressly disavowed the point that it was a matter that could be taken into consideration in looking at whether or not a verdict was unsafe and unsatisfactory.

The other judgments in that case did not expressly look at that point.  There is the dissenting judgment of Justice McHugh and the joint reasons as well.  So the point has not been clarified by this Court.  When one considers that a large number of cases are brought to State appellate courts on the ground that verdicts are unsafe and unsatisfactory or unreasonable, then it is an important point to have decided whether or not it is proper for the Court of Appeal to have regard to the failure to give evidence.  That is perhaps all I can say on that point, your Honour.  The other point concerns whether or not a propensity warning was required in the circumstances of the case.

The judge treated an admission that had been made as a confession.  The trial judge had directed the jury that it was necessary, in order to act upon that confession, to be satisfied that it was made and it was true.  It was a direction in accordance with Byrnes v The Queen, and obviously quite correct.  But the confession included an admission that the applicant had been playing with the child, and in context that can be regarded as some sort of sexual interference.  When the person to whom he spoke asked for clarification as to what he meant, he said that he had been having sexual intercourse with the complainant.  Now, on no view of the Crown case was that being put forward.  The directions to the jury at page 136 relate to that point.

The argument for the applicant is that in the circumstances the admission was in a sense meaningless because it related to something that even on the Crown case had not been alleged.  The jury may well have been troubled as to exactly what use they might make of an admission to an offence that was not alleged against the applicant, and there was, therefore, a risk of the jury using the evidence as some sort of propensity evidence and, therefore, in the circumstances required a warning.

I acknowledge, of course, that the jury did bring in different verdicts.  They acquitted on counts 2 and 3 and convicted on counts 1 and 4, and it has to be acknowledged that no direction of the type now contended for was sought at trial.  That is not necessarily a fatal omission, though.  Those are my submissions, your Honours.

GUMMOW J:   Thank you.  We do not think we should call on you, Mrs Clare. 

We are of the view that the reservation stated by the President of the Court of Appeal in the last sentence in the penultimate paragraph of her Honour’s reasons was correctly made.  Nevertheless, there are insufficient prospects of success in disturbing the outcome in which the President otherwise agreed in the Court of Appeal.  Accordingly, special leave is refused. 

AT 12.30 PM THE MATTER WAS CONCLUDED