Bandao v The Queen

[2019] HCATrans 228

[2019] HCATrans 228

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S151 of 2019

B e t w e e n -

LOYD BANDAO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 NOVEMBER 2019, AT 11.12 AM

Copyright in the High Court of Australia

MR P.D. LANGE:   Your Honours, I appear on behalf of the applicant.  (instructed by King & York Lawyers)

MR P.J. McGRATH, SC:   May it please the Court, I appear on behalf of the respondent, with MR E. BALODIS.  (instructed by the Director of Public Prosecutions (NSW))

KIEFEL CJ:   Mr Lange, I understand you need an extension of time.

MR LANGE:   That is right, if your Honour pleases.

KIEFEL CJ:   Is that objected to?

MR McGRATH:   No, your Honour.

KIEFEL CJ:   You have the extension.

MR LANGE:   Thank you, your Honour.  Before I start, could I perhaps direct your Honours’ attention to page 90 of the application book in order to frame the argument.  At page 90 your Honours will see the commencement of the Court of Criminal Appeal’s judgments which, at paragraph 4 of that judgment, sets out the various offences which were particularised in the indictment, relevantly for this present argument, of course, counts 1 to 3.  And the Court will observe, of course, that each counts charged and acts committed by a particular individual person.

In my submission, the point of general importance which arises out of the present application is not simply the proper application of those principles which apply to a consideration of a ground of unreasonableness.  It is specifically also the extent to which other matters – that is, going beyond the mere word in the transcript or the exhibits tendered – ought to be taken into account by an intermediate appellate court when considering such grounds.  Specifically, when I say that, in my submission, an intermediate appellate court is required to take into account both the issues at trial and also the directions given by the trial judge at first instance.

I should observe straight away that issue was taken by my learned friends, quite rightly, with my interchanging use of the word “direction”, particularly in respect of what the learned trial judge said about the verdicts that, in his view ‑ ‑ ‑

GORDON J:   This is the “it seems to me” passage.

MR LANGE:   Yes, that is right.  And I accept, without qualification, that ‑ ‑ ‑

GORDON J:   That it is an observation and not a direction?

MR LANGE:   That is right, and we are in no way required to follow it.  And his Honour was at pains to point out, both at the start of the summing‑up and at the conclusion, that any matters of opinion were entirely for him and could be ignored if the jury so thought – a conventional direction.  But I do submit that what his Honour in fact said, when one has regard to the issues in the case, was entirely appropriate and should have operated on the Court of Criminal Appeal’s minds – collectively minds – when it turned its attention to this ground of unreasonableness.

Could I next take your Honours please to application book 142, paragraph 182 of the Court of Criminal Appeal’s judgment.  In that paragraph the court succinctly summarises the case – that is, the case for the alleged co‑offender and this applicant was that they were not inside the toilet room at the time that Alcazar – that is the Crown witness – was assaulting the complainant.

Nevertheless, that was not how, ultimately, the Court of Criminal Appeal dealt with the matter and, instead, as set out at page 154 of the application book, paragraph 208, the court explained how it might be that the jury might have reasons in arriving at acquittals in respect of counts 1 and 2 but, nevertheless, convicting in respect of count 3 or, specifically, the alternative.

As is recognised by the Court of Criminal Appeal on the next page, in paragraph 209, the approach ultimately adopted was not directly in accordance with what they, the jury, were told in the summing‑up by his Honour nor in the opening and closing addresses of the Crown.

Could I next invite your Honours, please, to page 127 of the application book, paragraph 123 of the Court of Criminal Appeal’s judgment.  There, in my submission, it is quite plain that there is an acceptance by the Court of Criminal Appeal, as there was by the judge at first instance in the course of the summing‑up, that the Crown case – this is about halfway through the paragraph:

as to counts 1, 2 and 3 depended on their –

that is, the jury’s acceptance of the Crown’s witness.  And that is replicated at page 37 of the application book, at about line 12:

The Crown’s case, as I have understood it, members of the jury, in relation to counts 1, 2 and 3 and the acts of sexual intercourse of which they are concerned is primarily, if not substantially, dependent on the evidence of Mr Alcazar –

KIEFEL CJ:   Of course, the jury might have thought that there might have been some doubts about his evidence relating to counts 1 and 2, but might have thought that, as the Court of Criminal Appeal held, his evidence concerning the presence of the other two for the purposes of the other count in question was more definite.

MR LANGE:   Yes, and that is ultimately one of the ways in which the court reasoned and I will be taking your Honours to those passages.

KIEFEL CJ:   What is wrong with that approach?

MR LANGE:   In my submission, what the court has done is it has addressed one part of the test.  The Court of Criminal Appeal referred in its judgment to this Court’s decision in MacKenzie, which dealt with inconsistent verdicts, where the majority held there is a really a test which is twofold.  Firstly, one of logic and one of reasonableness.

KIEFEL CJ:   But is it not simply that it was open to the jury to reason in that way and they had an advantage – that is all you need.

MR LANGE:   In my submission, it goes beyond that in terms of when the court has to apply its own minds and make for itself an independent assessment of the evidence.  In doing that ‑ ‑ ‑

GORDON J:   Did it not do that?  I mean, the way I read the Court of Appeal’s reasons, it identifies first whether or not there was evidence sufficient to reach a verdict that they – reach a conclusion beyond reasonable doubt that they were present in the toilet.

MR LANGE:   Yes.

GORDON J:   That was the bit that was undertaken between paragraphs 182, which you took us to, and 142 and following.  And that goes all the way through to, I think, probably ‑ ‑ ‑

KIEFEL CJ:   Paragraph 188.

GORDON J:   ‑ ‑ ‑ 188, maybe even 190.  That is one question.  Then, having determined that there was evidence sufficient to support that finding, they then turn to the separate question of what is the evidence referable to each of counts 1, 2 and 3, and reason, it would seem at least arguably open to them, that the evidence on counts 1 and 2 was less than sufficient to support a finding of guilty contrary to that in relation to 3, which was admitted.

MR LANGE:   Yes.  Might I take your Honours specifically to passages 188 and 189 which are on pages 143 and 144.  In my submission, what the court there does is analyse the availability of evidence and I say that because, at the bottom of page 143, the Chief Judge at Common Law says:

This lack of precision in evidence, when added to the possibility . . . is able to explain the acquittal –

And then in 189:

There are other ways to reconcile . . . [the] acquittal –

Skipping over a sentence:

That evidence, taken with the possibility . . . was sufficient to explain the jury’s verdict on Count 1.

So that, in my submission, is the logic aspect of it.  There is no contention here that there is a logical inconsistency as between counts 1, 2 and 3 on the other hand, but rather a factual inconsistency when one has regard to the issues.

GORDON J:   What is the factual inconsistency?

MR LANGE:   The factual inconsistency, in my submission, is that the case depended wholly upon the evidence of Mr Alcazar.

GORDON J:   That is not what is borne out, is it, by paragraphs 182 to 189?  That is my point.  What the Court of Appeal does is it recognises that there is a whole lot of other evidence which was available to the jury and which the jury had in front of it.

MR LANGE:   And, in my submission, when one has regard to 182 that evidence was not such as to give rise to the requisite inference that the applicant was present in the bathroom.  I say that because, as the Chief Judge quite rightly recognises, the evidence in support of their cases was, at best, contradictory.  In other words, there was not ‑ ‑ ‑

KIEFEL CJ:   The jury were not obliged to accept or reject his evidence in whole.

MR LANGE:   Of course not.

KIEFEL CJ:   Really, it comes down to this, does it not, that whether or not there was sufficient basis for the jury to accept his evidence as to the presence of the two in the confined space of the toilet.  Once they are there, the joint criminal enterprise and their participation in it is – that is the end of it.

MR LANGE:   I do not say anything to the contrary.  That was a matter advanced ‑ ‑ ‑

KIEFEL CJ:   So that is really the area of argument, is it not?

MR LANGE:   It is in terms of the factual substratum; I accept that.  It was contended on behalf of the co‑appellant before the Court of Criminal Appeal that mere presence was not enough.  But given the dimensions of the bathroom it seems difficult to maintain that argument.  But what I do say is that in considering that aspect of whether or not the applicant was present in the bathroom, first of all, the court was obliged to identify evidence that was capable of lending a support to that conclusion, which I accept it did.  But in my submission, it was then obliged to go to the next stage and consider that evidence independently for itself, bearing in mind the issues in the cases advanced on behalf of the respective parties, which was a stark contrast.

Either the applicant was present, and therefore is, in effect, guilty of all offences, or he was not, in which case he was not guilty of the offences.  But also, in my submission, the court was required to take into account directions given by the learned trial judge and, in my submission, the reasoning of the Chief Judge, with the greatest respect, does not reveal those matters being taken into account.  Might I explain it this way?  Page 143 at paragraph 187, his Honour points to the appropriate warning:

pursuant to s 165 of the Evidence Act ‑

which, of course, became necessary as a result of Mr Alcazar having been criminally concerned in the events the subject of the charges.  His Honour stated:

The jury were entitled to accept his evidence, or part of it, subject to taking the warning into account.

Now, again, that in and of itself is a wholly unobjectionable statement.

KIEFEL CJ:   And in the preceding paragraph, their Honours have noted that his evidence concerning the presence of the two was more definite.

MR LANGE:   Well ‑ ‑ ‑

KIEFEL CJ:   I mean, that is really the point, is it not?  And that, taken together, as Justice Gordon has pointed out, with the other evidence, indicative of presence, even directly as to presence, would have been sufficient for the jury.

MR LANGE:   I have obviously taken issue with that characterisation in the written submissions, and your Honour has the evidence of Mr Alcazar extracted in the Court of Criminal Appeal’s judgment from page 98 onwards.  The Court of Criminal Appeal appeared to have made much of the use of the expression “smoking” but, in my submission, it was quite plain from the context in which he spoke, presumably a witness who spoke colloquially generally as one can see from the description of his own actions, and he talks about being “sucked off” ‑ this is at the bottom of page 100.

There could, in my submission, be no doubt as to what was meant by Mr Alcazar when he gave that evidence, particularly when one also sees at page 101 that he is asked whether anyone had taken his penis out, and what happened thereafter and the penises were put back.  There is no doubt, in my submission, as to what was being said by Mr Alcazar and, in my submission, such a distinction between presence and the action is simply not maintainable.

But what I seek to advance is that the court was required to bring to bear its knowledge and experience of so‑called rollover witnesses, to whom the direction pursuant to section 165 applied and determined for itself whether that was capable of influencing the jury, firstly, and whether it ought to have influenced the jury in its decision.

The second aspect, in my submission, which was not taken into account by the Chief Judge at Common Law, with the greatest respect, is the issue of the inconsistencies in verdicts.  Whilst the court spoke about how they could be reconciled, the court did not, in my submission, ask itself the converse, namely, ought the inconsistent verdicts, as I have suggested they are in written submissions, ought they to have had effects upon the jury and, if so, in what way?  Now, in that respect‑ ‑ ‑

GORDON J:   Do you mean by that that ‑ I do not quite understand that submission.  I had thought that you had accepted upfront that there was no inconsistent verdict?

MR LANGE:   No, logically, or technically, legally inconsistent verdicts, and obviously the common example given is that of a thief and a receiver ‑ ‑ ‑

GORDON J:   Do you now say this is unreasonable?

MR LANGE:   Yes.

GORDON J:   This is the way it is put.

MR LANGE:   Exactly, that it is a matter that needs to be taken into account in considering whether the verdicts were unreasonable.  Now, the learned trial judge at page 27 of the application book, at the bottom of the page ‑ ‑ ‑

GORDON J:   Where he directs them to consider each verdict separately?  Each count separately, he says.

MR LANGE:   Yes, and then his Honour says, in the last three lines, in terms of the Court of Criminal Appeal’s decision in R v Markuleski (2001) 52 NSWLR 82:

If you decide that you have a reasonable doubt about one of the charges and you find the accused not guilty on that charge, you are entitled to consider whether that causes you to have a doubt also about other charges on the indictment.

And, in my submission, that having been a direction given at first instance, it was then incumbent upon the Court of Criminal Appeal to consider that direction and how it bore upon its own assessment, independently of the evidence, and thus the reasonableness of the jury’s verdicts.  And, in my submission, the court, with the greatest respect, failed to turn its mind to the relevance or, rather, the impact that section 165 ought to have had upon the consideration of the question of reasonableness as it did also the fact of the acquittals on counts 1 and 2, and how that ought to have affected consideration of count 3.  And, in my submission, that is the way in which an intermediate appellate court ought to approach a question of unreasonableness, that is, it has to consider the issues and directions in the case.

GORDON J:   So just to take count 1, you do not accept that what is set out at 189, and 189 is, in a sense, that process being undertaken by the court in relation to count 1 where they say, listen, there are ways to reconcile this by looking at evidence on one hand of the complainant, and by the way, she denied it later on, we have got this inconsistency, we have got variations in the evidence.

MR LANGE:   No, in my submission, what is being undertaken at 188 and 189 is the logical aspect, not the reasons.

GORDON J:   What would it say, if it was not dealing also with the reasonableness aspect?

MR LANGE:   In my submission, the court should have gone on to say, bearing in mind the issues in the case, and that is really the difficulty that, in my submission, this case presents.  When one has regard to the issues, it was simply not reasonable for the jury to acquit on counts 1 and 2 and convict on count 3.  But ordinarily when the cases are not quite as stark as in the present one, then the intermediate appellate court would talk about the way in which these processes of reasoning are reconciled with the issues in the case.  And, in my submission, this is a stark case which demonstrates that was simply not possible and, in my submission, the Court of Criminal Appeal recognised as much that this was very different to the issues which had been presented.

It is for that reason that I say 188 and 189 is only half of the equation.  If it had been the case, for instance, that the case put on behalf of the applicant was that he was present for only part of the time, then the court, in answer of your Honour’s question, might in these passages have said, the acquittals are reconcilable because, of course, that was consistent with the way in which the case was put on behalf of the Crown, or as accepted on behalf of the defence.

That is not this case, however, and for that reason I submit this does bring starkly into focus the need to bring to bear other matters other than the mere statement of what is said in evidence and the exhibits, but also the issues and the directions, particularly in this case, section 165 and the Markuleski direction.  Unless I can assist your Honours any further.

KIEFEL CJ:   Yes, thank you.  We need not trouble you, Mr McGrath.

We consider there is no reason to doubt the correctness of the decision of the Court of Criminal Appeal.  Special leave is refused.

AT 11.30 AM THE MATTER WAS CONCLUDED