Berrigan v The Queen

[1995] HCATrans 332

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney   No S159 of 1994

B e t w e e n -

WILLIAM GRAEME BERRIGAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J
TOOHEY J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 23 NOVEMBER 1995 AT11.03 AM

Copyright in the High Court of Australia

MR R.F. GREENWOOD, QC:   May it please the Court, I appear with my learned friend, MR B.W. CROSS, for the applicant.  (instructed by Hovan & Co)

MR K. MASON, QC, Solicitor-General for the State of New South Wales:   If the Court pleases, I appear with my learned friend, MR P.G. BERMAN, for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

DAWSON J:   Yes, Mr Greenwood.

MR GREENWOOD:   May it please your Honours, I refer to the applicant’s summary of argument filed in this matter and rely on it as it stands, with some amplifications we ask to be taken into account.  We respectfully draw the Court’s attention very briefly to the legislative history in relation to matters which can be referred to under the old language as rape trials.  Legislature has intervened in what was perceived to be an unsatisfactory situation as far as justice is concerned in three principal ways.  One is to amend the various Justices Acts of the States whereby it is now uncommon for an opportunity to be granted to representatives of the defendant to cross‑examine a complainant at all in committal.

TOOHEY J:   But you have a section and you have to bring yourself within that section, do you not?

MR GREENWOOD:   That is right.

TOOHEY J:   Or take yourself out of it, depending which way you look at it.

MR GREENWOOD:   That is right, yes.  This is as far as the Justices Act amendments are concerned before magistrates on committal.  I am not talking yet about the subject matter of this appeal.  I am just, with your leave, sketching a bit of an historical background as to how the way in which these matters are litigated has been affected.

DAWSON J:   You are setting the scene.

MR GREENWOOD:   In this particular case the defendant represented himself before the magistrate, sought to cross‑examine the girl, was denied - that is not unexpected.  Recent amendments to the laws of evidence, coupled with the advance of the common law, have vastly affected the question - the the shield corroboration which has traditionally been......

The third legislative intervention is the provision such as section 409B of the New South Wales Crimes Act which is the subject matter, the linchpin, of this application.  That section we say undoubtedly restricts cross‑examination of the complainant, but not according to a criterion of strict relevance tempered by a discretion to prohibit if relevance is only marginal - not that sort of approach but by a blanket prohibition - with only very, very limited exceptions.

The Court will see that there are two bases advanced for the application.  The first basis is that the Court of Appeal were in error in upholding the proposition that the evidence in question was correctly excluded.  That, on more mature reflection, is not the part of the argument which we would expect your Honours to act upon.  For our own part, we concentrate on the second which is that it was argued before the Court of Criminal Appeal that the trial was unfair, the verdicts were unsafe and unsatisfactory by reason of the operation of section 409B in this particular case.  We say that it is in that area that your Honours will find such manifest error in the Court of Appeal that you would be prepared to give leave.

TOOHEY J:   But we should be clear about this, Mr Greenwood.  Are you saying that the prohibition in section 409B was applicable in the circumstances of this case?

MR GREENWOOD:   That is our view, your Honour.

TOOHEY J:   So we start with the proposition that the proposed cross‑examination was properly excluded?

MR GREENWOOD:   Yes, your Honour.  I move then to what position a court of appeal following conviction can take and properly should take.  Your Honours, the special leave point that we wish to urge in particular concerns the need to clarify that the courts can and must act to rectify a miscarriage of justice, if one has occurred, even though that miscarriage may have been the direct result of a proper application of a rule of exclusion of evidence; here the rule of exclusion of evidence prescribed by the Parliament.

McHUGH J:   That is really a staggering proposition.  How can a trial be unfair if it is conducted in accordance with the law?

MR GREENWOOD:   If as a result of its conduct there is a real risk that an innocent person has been convicted.

McHUGH J:   The legislature has said that this sort of evidence is not admissible.  I mean, then to say you cannot convict anybody because of this,  it would put the courts in an intolerable position in total conflict with the legislature.

MR GREENWOOD:   No, with respect.  The question begins with the proposition that where a miscarriage has resulted in the opinion of an appellate court, then an appellate court can and should review that.

McHUGH J:   But miscarriages do not exist up there in the air somewhere.

MR GREENWOOD:   No.

McHUGH J:   The framework of reference is the law.

MR GREENWOOD:   But a miscarriage can occur as a result of a trial proceeding in a certain way.  We say that just because the trial proceeded in a particular way because of the operation of the statute, that does not matter at the end of the day if there has been a miscarriage.

McHUGH J:   But supposing the legislature said hearsay evidence is admissible in all criminal trials and it does not matter how removed the hearsay is.  Could a court then say there is a miscarriage of justice because an innocent man may have been convicted; he has been convicted entirely on hearsay evidence; nobody has had a chance to cross‑examine the person who is the source of this hearsay material?

MR GREENWOOD:   With the greatest respect, that is not a terribly good example because then you would say that should have been excluded in the exercise of a discretion because it was dangerous.

TOOHEY J:   Take the present case.  Is it the proposition that, although evidence of soliciting or conviction for soliciting was properly excluded from cross‑examination, nevertheless the Court of Criminal Appeal should have taken the existence of that conviction into account in deciding whether there had been a miscarriage of justice in the conduct of the trial?

MR GREENWOOD:   That is the proposition.  The Court of Appeal acted consistently with the correctness of that proposition, which I will come to in a minute.

McHUGH J:   I must say:  I know you have given up your first point.  I would have thought your first point was your strongest point.  I would have thought the fact that she was convicted went to her credit, for a start.  The judge said it went to no issue in the case.  The accused’s defence was that she was in effect a prostitute there.  Why was it not an issue and why did the judge’s discretion not miscarry, quite apart from considering the question that this woman has been convicted of these two offences?

MR GREENWOOD:   I am sorry, he purported to exercise a discretion but he did not have one.  The statute does not give him one.  It says, “You either fit in here or you don’t”.

McHUGH J:   I thought it did, Mr Greenwood.

MR GREENWOOD:   No, except if the acts sought to be adduced are acts of a connected nature or occurred at about the time of the act in question.

TOOHEY J:   There is a discretion of a sort in the tail end of the section, is there not?

MR GREENWOOD:   Yes, your Honour, but only if you satisfy that.

TOOHEY J:   That is right.

MR GREENWOOD:   We, with respect, have difficulty in arguing that one event six months after the event and one event eleven months after the event of themselves come within that category.

McHUGH J:   I understand that.  I am obviously in error here somewhere, but what about subsection (4)?  Am I looking at a wrong copy of the Crimes Act?

TOOHEY J:   Subsection (4) is really directed at cross‑examination, is it not?  Subsection (3) is directed at evidence.

MR GREENWOOD:   Yes, but does that not mean that you have got to go back to (3) and decide ‑ ‑ ‑

McHUGH J:   Yes.

MR GREENWOOD:   So I am caught.

McHUGH J:   Yes, you have to come within (3) and then the judge has got a discretion even after that.

MR GREENWOOD:   Yes, your Honour, and this is the strength of the argument in a sense, that we are forced to abandon this interpretative argument.

McHUGH J:   Yes, I follow.

MR GREENWOOD:   That illustrates how Draconian or how unfortunate the result can be in an individual case.  These things do not arise very often and this is a rather novel sort of situation.  We say that two methods have been resorted to to try and obviate the difficulty that arises here.  One is seeking to stay proceedings.  That is not this case but that is on its way to this Court in a New South Wales matter of PJE where the question of stay.....will be aired.

The second method which has been adopted is to seek to challenge these matters on the basis that the verdict is unsafe and unsatisfactory, a miscarriage has occurred, whatever language one wishes to use.  Of course, that has the disadvantage that you have to wait until you get before the Court of Appeal in order to get that result.  The complaint here is not that the court rejected the availability of the remedy - it did not - but that it used completely, we say, inappropriate reasoning, the reasoning being the traditional sort of reasoning that one has come to expect in unsafe and unsatisfactory arguments, in other words, a consideration of the evidence that the jury had rather than a detailed consideration of the consequences of the evidence that the jury did not have.

We say that in so far as the judgment deals with this, it provides - and we plead this in Part 4, paragraph (c) - a dangerous precedent, we would add, because the reasoning is totally misconceived and inappropriate.  We respectfully ask the Court to refer to pages 13 to 15 of the judgment of the Court of Criminal Appeal which is at page 162 of the application book.  This is the judgment of Justice Newman with whom the other two justices agreed.  It reiterates the view of Mr Justice Mahoney which is in accordance with what we were propositioning before, that section 409B errors can be rescued in this way, if I can use that shorthand terminology.  Then at the next page, 163 of the application book, he says this:

Let me say this:  if the convictions for prostitution had occurred, say, a month prior to the events which were the subject of the trial.....in such a case I would think a very serious question would arise as to whether the court should set aside the verdict as being unsafe or unsatisfactory.

TOOHEY J:   Do you have Morgan’s Case there, Mr Greenwood?

MR GREENWOOD:   Yes, your Honour.  It is on your Honours’ list and should have been supplied.  It is 67 A Crim R.

McHUGH J:   On our list there is a statement that copies would be provided.

MR GREENWOOD:   We seek to move on from Morgan and deal with ‑ ‑ ‑

McHUGH J:   With great respect to Justice Mahoney, if the legislature says that a trial is to be conducted without this evidence, it is obviously the legislative judgment that such a trial is not unfair.  How can a court say it is unfair?

MR GREENWOOD:   No.  What follows is that the legislature has not said that that trial would not be unfair.  It is only said that as a matter of public policy, “We are going to restrict what happens in cross‑examination to complainant girls in sex cases.  That’s what we’re going to do”.  If at the end of the day, we say, there is a miscarriage in a particular case, then the accused has got a remedy.

McHUGH J:   Yes, but ‑ ‑ ‑

TOOHEY J:   What do you mean by “miscarriage”?  That is the problem is it not?

MR GREENWOOD:   Let us look at the facts of this case and an example of miscarriage comes out of the page.

DAWSON J:   But the argument involves saying that the application of the section is unfair.  One cannot - - -

MR GREENWOOD:   In particular instances can lead to an unfair result.

DAWSON J:   What you are saying is the evidence was unfairly excluded.

MR GREENWOOD:   No, your Honour.

DAWSON J:   You must be saying that because you are saying ‑ ‑ ‑

MR GREENWOOD:   Yes, but by operation of the statute.

TOOHEY J:   You are saying it had to be excluded, and as a result the trial is unfair?

MR GREENWOOD:   That is right.  At the end of the day, yes.

TOOHEY J:   That is a pretty broad proposition, is it not?

MR GREENWOOD:   Yes, it is, and it is an important proposition.

TOOHEY J:   Take, for instance, a situation in which an accused lets in his own bad character by reason of attack on the prosecution witnesses.  Is it then open to a court of appeal or court of criminal appeal to say, “Well, the judge should have excluded that evidence, notwithstanding that the statute permits it or, even though the judge had no power to exclude it, in the circumstances of the case there was a miscarriage of justice”?

MR GREENWOOD:   If it overwhelmingly comes to that result, yes.  The reasoning that follows in this judgment, which I will have to move over more quickly than I otherwise would have liked, is directed to the sort of tests that you look at in unsafe and unsatisfactory on what the jury had.  Here we say that an analysis of what the jury did not have was the relevant analysis and it was never addressed.

TOOHEY J:   No, not on what the jury had but what the jury were permitted to have.

MR GREENWOOD:   Yes, that is what the analysis was by the Court of Appeal.  What we say is that the correct analysis is:  does the omission - in other words, the material the jury did not have - render the verdict unsafe and unsatisfactory?  So to talk about “This is a case which involves the credit of the complainant; therefore it much more belongs in the well of the court” is begging the question, because we never had a crack at the credibility of the complainant in a very, very vital particular.

The whole allegation of rape involved what happened in the back of the vehicle between these two people.  The girl ends up knocked about.  The accused says she ends up being knocked about not because she wasn’t consenting to intercourse but “because there was a physical fight over her trying to grab money out of my pocket after I didn’t respond to her requests for money”.  The fact that she was convicted seven days before of offensive language and behaviour and so forth in the Kings Cross police station, and stacked on a turn there, was admitted and he cross‑examined on that.

So the propensity to overreact or react in this sort of way was before the jury.  The Crown Prosecutor said, and the judge in summing up said, “There you are.  You’ve got the complainant, warts and all”.  What they did not have was the very material convictions, certainly after the event, of soliciting for prostitution.  What counsel was not able to do was to say, “Okay, you were convicted then.  Was that the first time that you solicited or was that the first time you were caught?”  The forensic advantage which comes from a cross‑examination once you have got the admission, which you must have because the certificates of conviction were there, for what in fact she had been convicted of.

DAWSON J:   I see your time has expired, Mr Greenwood.  I think we have grasped the point.  Yes, Mr Solicitor.

NEWSPEAKER

MR MASON:   Your Honours, in this case the validity of section 409B was not in issue, nor, it appears, is the correct application of 409B.  So one has the fact that the cross‑examination was correctly excluded at trial.  The decision of the Court of Criminal Appeal turned upon a favourable legal concession, favourable to the applicant, which appears on page 163.  What the court was saying was, “We accept that we have the power in a proper case to declare a conviction unsafe and unsatisfactory, though it occurred according to the law as declared in 409B, but this is not a proper case”.  At the top of 163 in the passage that the Court has had read to it, the court was saying, “If these soliciting convictions had occurred close to the events, they would have been seen as creating a likelihood that this woman was a prostitute at the time”.  These convictions occurred seven and more months after the incident in question.

TOOHEY J:   Does that mean, Mr Solicitor, that you accept the principle for which the applicant contends but argue that it is not applicable in the present case?

MR MASON:   No, I certainly do not accept the principle, but I certainly say that this case is not ‑ ‑ ‑

TOOHEY J:   I think you have gone fairly close to it.

MR MASON:   No, I am saying that the Court of Criminal Appeal accepted the principle in favour of the applicant but found on the facts that this was not an unfair trial and therefore it was not unsafe and unsatisfactory.  I contend if I have to - but this is not a proper case for doing so - that the appellate jurisdiction of the Court of Criminal Appeal to rule a conviction unsafe and unsatisfactory does not allow the Court of Criminal Appeal to disregard the proper application of a valid law.

That is for two reasons.  The first is a sort of evidentiary question.  Upon what evidence does the Court of Criminal Appeal operate if 409B validly excludes the evidence?  The second is the more fundamental question of the separation of powers.  If Parliament has declared those are the rules, then, absent a challenge to the validity of that law, the court does not, in my submission, have some overriding discretion to say a trial according to law where evidence was lawfully excluded has miscarried.

TOOHEY J:   That may well be, but there does seem to be a body of authority growing up here, having regard to Morgan’s Case and the present case, that seems to recognise some such principle.

MR MASON:   No, Morgan’s Case went no further, in my submission, than in effect saying “This is a really tough law” and asserting that the Court of Criminal Appeal has jurisdiction to set aside as unsafe a conviction which occurred by the proper application of that law.  I do not accept that principle.

DAWSON J:   In other words, the correct application of the provision cannot of itself result in an unfair trial or an unsafe or unsatisfactory verdict but, taken in the context of other circumstances, it may be that you could conclude that there was an unfair trial or a verdict was unsafe or unsatisfactory, having regard to the result which the application of the provision produced.

MR MASON:   I do not accept that, although I do accept that that ‑ ‑ ‑

DAWSON J:   I perhaps did not put it very well.

MR MASON:   ‑ ‑ ‑ is one way of viewing what the Court of Criminal Appeal was saying in Morgan’s Case and this case.  They are saying, “Though the evidence be validly excluded, we can have regard to what would have been proven either on its own or in conjunction with other material which we do know and say that this trial miscarried”.

DAWSON J:   I am not sure that I was saying that.  I was trying to say that in the context in which one considers whether there was an unfair trial, the absence of this evidence would be one of the factors; no more than that.

MR MASON:   Yes.

DAWSON J:   But of itself it could not provide the basis for a conclusion that the trial was unfair.

MR MASON:   I still seek to take the higher ground that you cannot say evidence was absent if the statutory rules of the game exclude that evidence.  It just is no more evidence in the Court of Criminal Appeal than it is at the trial.

TOOHEY J:   For your purposes, I suppose it is not necessary to go further than to say that the Court of Criminal Appeal was correct here in treating the convictions by reason of the time interval as not giving rise to a miscarriage of justice.

MR MASON:   Yes, and I reinforce it this way:  your Honours will see at page 82 - and, as my friend has informed the Court, the complainant was cross‑examined about prior convictions, and so the extent to which a prior conviction can go to credit was before the jury.  Clearly what was intended by the cross‑examination that was stopped by 409B was cross‑examination to show her sexual proclivities and her willingness to engage in sex for money.  The applicant’s statement at page 116 was that she asked for a loan.  That is an unusual form of prostitution activity but, assuming that that was an attempt to, as it were, show that she had this propensity at the time, the policy and ‑ ‑ ‑

McHUGH J:   If his evidence was truthful, I do not think the parties would have understood that it was a loan that was to be repaid, Mr Solicitor.

MR MASON:   No.  But clearly the policy of the rape shield law, 409B, is to exclude that improper use of a conviction, that under the guise of saying it goes to credit, really to put before the jury material that would go to the issue of consent or no and the Court of Criminal Appeal properly, in my submission, on the facts, and a fortiori on the law, said that there was no unfairness or miscarriage or unsatisfactory conviction flowing from the exclusion of the evidence of these subsequent convictions.

DAWSON J:   Thank you, Mr Solicitor.  Anything in reply, Mr Greenwood.

MR GREENWOOD:   No, your Honour.

DAWSON J:   The Court will take a short adjournment.

AT 11.32 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.44 AM:

DAWSON J:   This application involves a statutory provision concerning the admissibility of evidence relating to sexual experience.  The applicant concedes that the evidence in question was rightly excluded under that provision.  The correct application of the provision cannot of itself found an argument that the trial was unfair or that the verdict was unsafe or unsatisfactory.  The applicant’s argument involves no more than the contrary of this proposition.

In any event, the Court of Criminal Appeal was not persuaded that the exclusion of the evidence in question did lead to the trial being unfair or the conviction being unsafe or unsatisfactory.  The result is that the application raises no point of principle which would warrant the grant of special leave to appeal.  Special leave is accordingly refused.

AT 11.46 AM THE MATTER WAS CONCLUDED