BDO v The Queen

[2022] HCATrans 184

[2022] HCATrans 184

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B8 of 2022

B e t w e e n -

BDO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 21 OCTOBER 2022, AT 11.30 AM

Copyright in the High Court of Australia

KIEFEL CJ:   In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR S.C. HOLT, KC appears with MR Z.G. BRERETON for the applicant.  (instructed by Legal Aid Queensland)

MR C.W. HEATON, KC appears for the respondent.  (instructed by the Office of the Director of Public Prosecutions (Qld))

KIEFEL CJ:   Yes, Mr Holt.

MR HOLT:   Yes, may it please the Court.  We require an extension of time, which I am authorised to say to the Court is not opposed.  I am sorry, your Honour Chief Justice, we cannot hear you at present.

KIEFEL CJ:   Yes, I see that the objection on the ground of futility has therefore been withdrawn, has it?

MR HOLT:   I understand that to be so.  I think of the extension is now not opposed, your Honour.

KIEFEL CJ:   Yes.  The extension is granted.  Thank you.

MR HOLT:   Yes, may it please the Court.  This application, in our submission, raises two questions of general and public importance.  The first is whether the statement of principles on the law of doli incapax at common law in this Court in RP v The Queen apply to section 29 of the Criminal Code (Qld), and so, by necessary extension, to the Criminal Codes of the other Code states; and second, whether, and if so when, a failure to direct the jury as to an element of the offences – here, consent – could be saved by the proviso, in particular, when it might be said that a defence was live, such that the proviso could save it.

Before turning to each of those, can I deal with what, in our submission, is a startling feature of this case and the way in which it was run, and that is the nine-year timeframe that underpinned all bar one of the counts in the indictment.  That is, each of the counts alleged a specific offence.  There was no maintaining or representative charge, or anything of that kind, but a specific incident said to have occurred on one occasion, but said to have occurred at some point within a nine-year time frame.

That is not unheard of in historical cases, but we are here at the beginning of that time frame; the defendant was a prepubescent boy of 10, and at the end, he was a man of 19.  That carried real significance both in and of itself, but particularly for the two issues upon which the application is founded.

Equally, the charges in the indictment were not, as the Court will have appreciated, chronological.  That is, one could not even say that they sat as a sequence, and they were identified in terms of timing by very vague time frames, “early primary school”, “mid-primary school” and the like, and some in fact with no reference to time frames at all.

That created two major issues for the case. One relates to doli incapax, or the section 29 equivalent to doli incapax; that is, obviously, if any of the conduct was found by the jury to have occurred when the applicant was less than 14, then the incapacity presumption had to be rebutted. Secondly, that the law of consent changed in Queensland over that period of time, about midway through. That should have been an issue at trial but was missed by both counsel and by the trial judge and so the jury was not directed to consider what was, in truth, an element of the offence, probably given the vagueness of the way in which the indictment was framed necessarily on all charges.

Can I deal then with the first issue, which is the section 29 issue. The essence of the ground of appeal and why we say there is a question of general and public importance is that our submission is that the principles outlined by this Court in RP v The Queen in relation to the common law principle of doli incapax – the rebutting of the presumption of capacity for children – applies and should have been applied here both in the directions to the jury and upheld as having not been so applied by the Court of Appeal in relation to section 29.

RP was cited to the Court of Appeal but not referred to in the judgments, and that means, in our submission, that Queensland is out of step – if our fundamental submission about section 29 is correct – with this Court on equivalent doctrine on what is a critical question; that is, how one deals with the criminal liability of children aged between 10 and 13.

GORDON J:   Mr Holt, is the principal difference between you on the application of RP v The Queen one which shifts focus from the circumstances of the offending to attention directed to the intellectual and moral development of the child?

MR HOLT:   I think that is the primary basis upon which we put it, your Honour, yes.

GORDON J:   Thank you.

MR HOLT:   It is perhaps more the second than it is the first in the sense that what RP v The Queen does, in our submission, respectfully correctly, is that it focuses on the fact that there is a presumption of capacity which is being rebutted and the way in which one rebuts that presumption – the Crown rebuts that presumption – is primarily by reference to the moral and intellectual development of the child in issue, and that is what is ‑ ‑ ‑

GORDON J:   So, can I just tie that back to where you started?  Is that why you emphasise the nine‑year timeframe, because the capacity question may very well differ by reference to that criteria over that period?

MR HOLT:   Precisely so, and there is a significant additional problem with the nine‑year timeframe as well, which was not the matter of the direction to the jury because there was no focus on this question of development; that is, some of the matters that were pointed to as being part of and surrounding the offences – so the “don’t tell anyone”, it is “our secret” – those sorts of issues which were also live in RP, the jury would also need to have been satisfied that they were things said and done by the applicant before he turned 14, otherwise, of course, they could not logically have any bearing on whether or not his presumed incapacity at less than 14 had been rebutted.  And so that is why ‑ ‑ ‑

KIEFEL CJ:   Mr Holt, as I understand, what is put against you is the Queensland practice arising from a series of cases of it being open to a jury to find the presumption of capacity can be rebutted by inferences drawn from the acts constituting the offending. 

MR HOLT: That is so. And our respectful submission is that there is no meaningful difference between the expression of the test to rebut the presumption of capacity in section 29 and the way in which that has been put at common law, including in RP, such that there is no good reason why the content of the test to rebut the presumption would be any different in either.  Such that ‑ ‑ ‑

KIEFEL CJ:   Well, there are two aspects to that, are there not?  One is saying that there is no difference between what was said in RP v The Queen about the child knowing it was seriously wrong, and the question of capacity; that knowledge and capacity are much the same for the reasons you outlined earlier.

MR HOLT:   Yes, precisely so, your Honour.

KIEFEL CJ:   But the other is what the jury can have regard to in determining the question of capacity or the knowledge that informs the question of capacity; the knowledge of the child and their development.  Is there not then a difference between the consideration that RP says is necessary – namely, as to the child’s circumstances – and inferences drawn from the acts constituting the offending, which is the Queensland approach?

MR HOLT:   Yes, exactly so.  And our respectful submission is there is no warrant for that difference following RP.

KIEFEL CJ:   And is one of the limbs upon which you base your application for special leave the holding of the Court of Appeal in Rye v State of Western Australia, which seems to combine the common law and the Code approaches?

MR HOLT:   Your Honours put it in exactly the way I was going to respectfully, and that is precisely what Rye seems to do.  There may be some merit in that, Rye – some aspects of Rye, with the greatest of respect to the court.  It is difficult to discern where there is a difference between those two approaches, which has been preferred.  But, fundamentally, what the Court has done in Rye is to take the principles in RP as being the basis, and appear to overlay some of those historical principles that have developed through the Queensland cases.  That difference, effectively, where we have Queensland presently sitting consistent with its historical position, WA having gone through something of a hybrid position – I might not be putting that fairly – and then the common law principles clearly expressed by RP as precisely why in our submission this is an appropriate case for special leave.

KIEFEL CJ:   And what would you say about the Western Australian approach if leave were granted on the appeal?

MR HOLT:   I think, your Honour – as succinctly as I can, we would say that fundamentally the correct approach is that which is in RP, and it needs not supplementation.  So, to the extent that the Western Australian Court of Appeal has supplemented it with some of those historical Queensland notions, particularly those which place emphasis on the circumstances of the offence per se that Rye would be said to be wrong.  So if we were arguing that proposition, that is the position we would take.

I might, if the Court pleases, on that basis just very briefly address – if it would assist the Court – why we say that there is no difference between the common law test and the test in section 29, and it is really thought for two reasons. The first, of course, is that both are ways of rebutting the same presumption; and that is a presumption of incapacity by a child aged under the age of 14 years. So, it is seeking to undo the same thing which is a question of – or a presumption – of “capacity”. So, to the extent that one of the tests use the word “capacity” and the other – that is, common law uses knowledge of the “wrongness of the act”. They are achieving the same thing to get from – to use the Latin – incapax to capax.

The other aspect to why we say there is no meaningful difference is because, of course, section 29 requires that at the time of doing the act the person had the capacity to know that the person ought not do the act, so directed to the time at which the act is being done the question of capacity merges almost entirely with the question of actual knowledge. Practically, if you have knowledge of the wrongness of an act – that is the common law test – then you plainly have capacity to know it is wrong. That follows as a matter of logic. The other way around, if you have capacity – that is, section 29 – to know that the act is wrong at the time you do it, then it would seem certain that you in fact know it is wrong at the time and any distinction is so minor between those as to be meaningless for the purposes of suggesting that a different set of principles or doctrine ought apply ‑ ‑ ‑

KIEFEL CJ:   Is one distinction drawn between the two, one that the common law involves notions of moral wrongness?

MR HOLT: Well, in our submission, to the extent that that is seen to be a difference, it is not a difference which is commanded by the words of section 29, and so the extent to which section 29 has not been interpreted in that way our submission is that it is wrong and so ought be corrected by this Court as a consequence of a grant of special leave.

GORDON J:   One of the reasons why that question might be important is because in Rye it seemed to link this question of moral wrongness to a test which was quite high by reference to, as I read it, “ordinary standards of reasonable adults”.

MR HOLT:   Yes, and that is a modernisation of a phrase used in one of the early Queensland authorities, the ordinary standards of reasonable men, and it is a high standard which, in our respectful submission, does not sit comfortably with the legal policy that underpinned the principles as they are set out at in RP, which explicitly reminded the intermediate appellate courts and those who are reading the judgment what is often meant, which is the fact that we are rebutting a presumption of incapacity; that is, an inability to know right from wrong by children under a certain age.

That must necessarily include more than the simple saying that something is wrong by the standards of adults, it is a much more nuanced question, and one which – as the Court in RP made clear and, indeed, the Court in Rye made clear, correctly, in our submission – the focus will be – and highly relevant, to use the language of the Western Australian Court of Appeal – will be the level of development of the child.  What was conspicuously absent in this case, as it was in RP, was any real evidence about the level of development of the child beyond a very vague statement that he had average or less than average intelligence, and had been diagnosed with dyslexia, and had seen the Harold the Giraffe van in sex education at school, none of which would have been sufficient, in our submission.

Can I deal then with our proposed ground 2 which is simple in this sense, in that everyone accepted in the Court of Appeal that the jury was wrongly directed; that is, that the jury was told that consent was not an issue for the complainant when she was under the age of 12 in circumstances where the law had changed about halfway through the charge period.  But, no one suggests, as we understand it, that the jury would not have received a direction about consent had the law been properly understood. 

So, the question here is whether or not the Court of Appeal was correct in concluding – although the language of “substantial miscarriage of justice”, the proviso language, was not used; Justice Boddice just talked to the miscarriage – it nonetheless appeared, respectfully, to apply the proviso whether that was appropriate in circumstances where an element of the offence had not been led.

We think it is common ground that, following the sequence of cases in this Court – Weiss, Kalbasi, and others – that one cannot simply say, no direction as to element equals the inability of the proviso to apply.  That is, in our respectful submission, settled.  What arises here – and importantly – is the question of when an element will be said not to be live such as to mean that the non‑giving of a direction to it can be saved by the proviso.  We have set out in our reply ‑ ‑ ‑

KIEFEL CJ:   As I understand the respondent, they say that it was not a live issue, not the least because there was no evidence that the complainant consented at any time.

MR HOLT:   There are two responses to that, and they really do, in the way in which I will answer it, I hope, demonstrate why it is actually an important question – the content of the idea of when an element is live for the purposes of determining whether the non‑giving of it can attract a proviso or not – that is two matters.  The first is, of course, everyone was proceeding on the basis that consent was not open if the complainant was under the age of 12, as a matter of law.  So, as a result, of course, a section 24 – that is, honest and reasonable mistake of fact as to the existence of consent – could not then, as a matter of law, be open either.

But the pretext call involved the defendant saying, everything we did was with consent.  It may well be that the jury would have had no difficulty, sensibly, in saying that a seven‑year‑old did not consent in these circumstances.  But the section 24 argument was one that would, unquestionably, have been live.

More fundamentally, as we have set out at paragraph 7(a) of our reply submissions at appeal book page 119, the question of consent was live

in the sense that it was not conceded, and it was put on the basis that in the event that the jury found that penetrative acts had occurred, then they would doubt whether consent had been demonstrated by the Crown by specific reference to the erroneous 12‑year‑old age mark.  And, in addition, where – as we have noted at 7(b) by reference to the way in which the trial was put – oral penetration was accepted anyway.  So, that would apply to at least one charge.

The fact that it might not have been at the forefront of the defence case does not make it not live for these purposes, and our respectful submission is that unpacking that idea of when an element of a defence is live for the purposes of determining an application of the proviso, is an important question and one that this case provides an appropriate vehicle to deal with.

Unless I can assist the Court further, those are our submissions.

KIEFEL CJ:   Thank you, Mr Holt.  Yes, Mr Heaton.

MR HEATON: It is both necessary and important, in my submission, to appreciate the context in which these matters of law arose in this particular trial. By that, I mean that the directions – firstly, the directions in relation to section 29 were essentially textbook according to the law applicable in Queensland and, indeed – if not in the body of the primary summing up, certainly by the time the judge had responded to the jury’s question – had incorporated that additional quality of “serious wrongness” according to the principles of reasonable people – that is, the concept that was perhaps elucidated in the Rye v State of Western Australia that goes beyond the mere words of our section 29.

KIEFEL CJ:   Does Rye not furnish a basis, though, for the need for this Court to look at the common law and code provisions?

MR HEATON:   Well, even if that were perhaps so as a general proposition, in my submission, this is not the opportunity to do it because in the circumstances of this case – the evidence, the facts, the allegations – do not give rise to a live issue that there was in fact some impact such as it could be concluded that there was a miscarriage of justice.  Can I perhaps illustrate that by turning to the circumstances ‑ ‑ ‑

KIEFEL CJ:   Just before you do, Mr Heaton, I have noticed you said before that generally the directions were textbook in relation to Queensland practice, but did not the trial judge in redirection bring in RP v The Queen?

MR HEATON:   It did.  That is right.  As a further – well, in terms of – without venturing into the concept of “morally wrong” and certainly without venturing so far – which we would say is beyond the scope of the clear legislative language of “knowledge” as opposed to “capacity”.  So, the direction was firmly planted in the requirement for capacity to know that he ought not do the act or make the admission.  And then, in further assisting ‑ or in an endeavour to further assist the jury – brought in that concept of trying to explain what “ought not do” meant, and drawing on what the Court in Rye v State of Western Australia suggested would be a helpful articulation of the pragmatic exercise to the jury to embark upon.  Rather than using ‑ ‑ ‑

KIEFEL CJ:   Does this suggest that there is some doubt or confusion in the minds of trial judges?  It is just a little bit unusual that was on a redirection – it was a redirection sought in those terms.  That is what I perhaps overlooked.

MR HEATON:   The redirection was not sought in any – well, it was not a redirection, per se.  It was a question by the jury to better understand.

KIEFEL CJ:   Yes.  That is right.

MR HEATON:   And so, in that sense, it was the judge offering a pragmatic and perhaps more practical application of that concept of “ought not do” to the question that the jury had to consider.  So, it was in that context of trying to assist the jury to understand the words of our legislative provision and how it might apply in a pragmatic way, rather than there being any confusion as to what the law is or what is required of a jury.

But can I say – or can I set, perhaps, the factual context in which these questions arise for consideration.  Whilst there was, in fact, a very wide date range – I have used the word “cautiously” alleged in the indictment – the evidence did provide more particularity as to when the offences are said to have taken place.  And that additional evidence that identifies when the offences are said by the complainant to have taken place becomes important when considering the actual impact that any question of capacity may have had, and then, feeding into the question, whether or not there was a miscarriage or a substantial carriage, in the way it was handled in this particular case.

The jury returned verdicts of acquittal in relation to some counts.  And indeed, on careful analysis, it becomes apparent that the counts where the jury, subject to one . . . . . the counts where the jury returned verdicts of not ‑ ‑ ‑

KIEFEL CJ:   Mr Heaton, we do not have any sound and visually it is freezing.  Can you hear me?  I think we will have to ‑ ‑ ‑

MR HEATON:   I am happy to continue if it ‑ ‑ ‑

KIEFEL CJ:   Now we have lost you altogether.  We do not have any visual.  But we do have you now.  Are you hearing us?  You are ‑ ‑ ‑

MR HEATON:   Yes, I am.  Thank you.

KIEFEL CJ:   I am sorry about that.  We cut out at some point there.

MR HEATON:   The counts where the jury acquitted the defendant – broadly, accounts where the . . . . . was either that they occurred earlier in time – that is, when the defendant was younger – or where the evidence from the complainant was such that there remained a very real possibility that the offence was committed at a time when he was under 14 years of age, save for one exception, and that is the Hervey Bay holiday where there was greater particularity.  In fact, July 2005 was said to be the date of that offending, and he was 13 at that time.  But in relation to counts 1, 15, 16 and 18 and count 10, they were all occasions when the offending alleged occurred at a time where it was a very real possibility that the defendant child was under 14.

That suggests that the jury diligently applied the task of analysing the circumstances and the evidence in this particular case to that question of capacity and focused their attention then on those allegations where there was evidence to support the conclusion that he was 14 years or more.

In addition to that, in this case there was evidence of the education, the development, the domestic environment, the instruction that had been given to the child throughout his life, in relation to key elements that go to his capacity to know that he ought not to have done the acts, the offences, that were alleged against him.  So, I guess to some extent, we disagree with our learned friends in relation to that submission.

That evidence was set out by the judge in the summing‑up.  Beginning at page 19 of the application book, his Honour went through in some detail the evidence which was said to support and to undermine the question as to whether or not the child had the requisite capacity.  The child’s mother gave evidence of conversations and instruction that she had had on a number of occasions throughout the child’s life, beginning when he was little, as young as a toddler.  She described her approach to that as being overly protective, or “over‑protective”.

The children also grew up in a house where there was domestic discipline; they were held to account for wrongdoing, which is not directly relevant to the nature of the acts but does at least provide an environment – a domestic environment – in which . . . . . for wrongdoing, and in the context of the instructions specifically relating to this type of conduct, adds weight to the capacity question.

GORDON J:   Mr Heaton, do you accept that the direction, even in answer to your question from the jury, though, was not directed to the elements identified in RP v The Queen, directly?

MR HEATON:   It was – well, I guess in answering that question, I say that the directions that were given were appropriate and sufficient to alert the jury to the issues relevant to their consideration as they arose in this case in the context of the law as it applies in Queensland.  Can I just finish off this point by saying that it was also true – and we say properly so – that in this case there was reliance upon the circumstances surrounding the offending to also support the conclusion.  We say, contrary to the issue or in distinction to the issue that arose in RP, in this case it was merely a body of evidence, rather than being the sole body of evidence relied upon.  That is why it is important that there was the additional evidence from inside – behind the domestic environment, the instruction that the child had been given – to support the conclusion of capacity. 

The jury were also reminded of the features that were relied upon by counsel for the defendant; that he had a learning difficulty, that he had been diagnosed with dyslexia, that he was otherwise of below average intellect, that he had a delayed start to school and, indeed, the context of his pretext telephone call wherein he claimed that he was a child himself and he did not know what he was doing.

So when proper regard is had to all of those factors, the directions that were given and the fact that the counts on the indictment that the child was convicted of – the defendant was convicted of – are those where there was a very sound basis for the jury to conclude that he was over 14 at the time that they – I say qualified only by count 4, the Hervey Bay count, where he was clearly 13 – but otherwise the jury’s focus was on those offences where there was evidence that it was when he was older than 14. 

All of those factors, in our submission, conspire to the conclusion that in the circumstances here it cannot be said that there was any miscarriage of justice, that there was any prejudice to the defendant by the way in which the case was put to the jury, the considerations that the jury were invited to, or, indeed, the conclusion that they came to.

Can I turn to ground 2, then.  Whilst the misdirection is, of course, accepted, again it is important to put this into context.  Again, whilst the indicted period was broad, the complainant gave evidence which narrowed the scope of the time when the offending could have occurred.  Some counts, as I said earlier, remain uncertain as to the timing, so that it remained a real possibility that the offence occurred before 5 January 2004.  Whilst it is true to say that, broadly speaking, 2004 is approximately halfway through the indicted period from 2001 to 2010, on the evidence the reality is that the preponderance of the allegations alleged offending that occurred after January 2004.  There are some exceptions – count 1, count 10, count 15, 16 and 18 – and each of those counts were acquittals.

In this particular case, there might be a number of reasons why the jury acquitted of those counts, and the lack of capacity and the issue around consent may have had some interplay during those offences that the jury acquitted of.  But whether it is because the evidence supported the conclusion that the offences were committed after 2004 – bearing in mind that that was a very real question for a jury to resolve – or whether it was that consent was not, in reality, an issue because of the way the defence case was litigated; or whether it was because it was easily proved because of the young age of the child, that consent was not an issue which could – all of these factors, in our submission, again conspire to the conclusion that this is not a case where it can be said that there was a miscarriage of justice.

Looking at what the Court of Appeal did with these in the face of this challenge to the verdict, the effect of the court’s reasoning is to have analysed the effect of the misdirection in the circumstances of the trial and to conclude that there was no miscarriage of justice.  So, the court looked holistically at the evidence and concluded that the Crown had proved – in spite that misdirection – the guilt of the applicant.

Consequently, in my respectful submission, the Court of Appeal was correct to conclude that there was no miscarriage of justice.  We say, in conclusion, that there was no miscarriage of justice in relation to either of the issues that have been raised on this appeal and, on whatever basis the result is the same, that there are no prospects, such that there is nothing to warrant the intervention of this Court.

Those are my submissions.  Thank you, your Honours.

KIEFEL CJ:   Thank you, Mr Heaton.  Do you have any reply, Mr Holt?

MR HOLT:   Just on one issue, if I may.  That is, the submission if I understand our learned friend to have made which is that, even if the directions were given were inconsistent with RP – and it seems, ultimately,

that that concession was at least almost made, and if so, appropriately – whether this is an appropriate vehicle on a basis that it was not a live issue.  Can I just make three submissions about that.

The first is the fact that it was a live issue is pretty well demonstrated by the fact that the jury asked about it and precisely in terms of the question of wrongness or not.  And so, it seems to have been live for the jury.  Our friend has taken the Court also – this is the second reason – through matters which it might be said, they are contestable, but it might be said pull each way; that is, the pretext call, the lower level of development of this young man and so on, and on the other side, the claim of the mother’s evidence that the defendant had been told on multiple occasions about issues of consent and the like, which obviously simply makes it a live issue, and so an appropriate vehicle.

The question of whether the verdicts can be explained by the jury not being satisfied that the presumption had been rebutted, in our submission, is answered completely – this is the first part of this – by the Hervey Bay charge, and because, given that the question was capacity, it would seem very unusual for there to be any inconsistency in those results.  But much more importantly – and respectfully to our friend – to say that the verdicts can somehow be rationalised in that way, when really the only way in which the timeframes were able to be identified in the evidence was by things as vague as “early primary school”, “mid‑primary school”, or in many, no reference to timeframes at all.  The notion that these could properly be explained in that way is such that this could be said not to have been a live issue ought not be accepted by the Court.

Those are our submissions in reply.

KIEFEL CJ:   Thank you, Mr Holt.  The Court will adjourn to consider the course that it will take.

AT 12.06 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.08 PM:

KIEFEL CJ:   There will be a grant of special leave in this matter.  What is your estimate of time, Mr Holt?

MR HOLT:   Less than half a day, your Honour, certainly no more.

KIEFEL CJ:   Do you agree with that estimate, Mr Heaton?

MR HEATON:   Yes, I do.

KIEFEL CJ:   Yes, thank you.  The Court will now adjourn until 12.30 pm.

AT 12.09 PM THE MATTER WAS CONCLUDED