BJS v The Queen

[2013] HCATrans 318

[2013] HCATrans 318

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S120 of 2013

B e t w e e n -

BJS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 DECEMBER 2013, AT 1.04 PM

Copyright in the High Court of Australia

MR G.A. WALSH:   May it please the Court, I appear for the applicant.  (instructed by Greg Walsh & Co)

MS M.M. CINQUE:   May it please your Honours, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW)

BELL J:   Yes, Mr Walsh.

MR WALSH:   Yours Honours, at the outset I acknowledge that there are probably too many grounds but I would just like to firstly take your Honours to ground 7 which is the complaint in respect of the issue of what assistance the learned trial judge ought to have given to the jury when they sought assistance as to beyond reasonable doubt. 

Your Honours, if I could take you to application book at page 91.  I have to concede that the jury had returned with verdicts of guilt, you will see at page 90, in respect of counts 5, 6 and 11.  His Honour then at page 91 in the second paragraph introduced a concept which became, in my respectful submission, relevant, namely reluctant agreement.  The next day, your Honours, if you go to page 99, the jury asked a question of his Honour seeking assistance as to clarifying the meaning of “reasonable doubt”:

Can you suggest some examples to assist us in this regard.  For example is there a probability weighting or threshholding that we might apply.

On the next page, page 100, learned senior counsel for the Crown and also Mr Boulten, senior counsel for the applicant, reminded his Honour of the principles of this Court such in Green’s Case.  His Honour acknowledged himself the principles in Green’s Case.  On the bottom of the next page at 101, your Honours, he said to the jury:

Unfortunately, I am not permitted by law to give you any examples –

The learned trial judge then at 102 proceeded to do, with the greatest of respect, the very opposite that he said he would not do in that sense and gave two particular examples - one was a loan given possibly to your son or daughter and if you gave that loan even though you did not want to give the loan that could amount to a reluctant agreement.  The other example was the interstate trip or trip to Bundaberg and, again, if you did not want to go and you reluctantly agreed then that would be nevertheless an agreement.  On page 103, his Honour again gave directions to the jury in relation to – towards the bottom of the page:

If even though reluctantly, you think I have got to agree he is guilty, you find him guilty.  If the reluctance is on the other side –

and so on.  Now, at page 104, learned senior counsel for the applicant took issue with the directions given by the learned trial judge and gave explanations as to why they were inappropriate, and I think that those reasons given by learned senior counsel were very apposite.  Shortly thereafter because the jury was out, they came back with verdicts of guilty in respect of all but two of the remaining counts.

BELL J:   Mr Walsh, your difficulty is this, is it not, if you go to application book 196, paragraph 205, the Court of Criminal Appeal noted, unsurprisingly, that it would have been better not to introduce the concept of “reluctant agreement”, but their Honours found that, looked at as a whole, the appellant had not been disadvantaged and their Honours concluded that the directions that were given did sufficiently emphasise the requirement of unanimity of agreement. 

MR WALSH:   Could I just make one point in response to your Honour’s comment?  In the decision of FP, the learned trial judge, who I understand was Judge Hock, my recollection was that she gave the direction that these words were words of ordinary grammatical meaning which was completely different to what Judge Finnane did, with respect, and all I can argue is and submit that, having regard to the nature of the directions that he gave, that there was a miscarriage of justice, but if your Honour is against me, your Honours are against me, with respect.

The next point is the grounds 5 and 6, which is the hypnosis point.  Your Honours, I am not going to go into a great deal of detail about this on the facts, but what occurred was this, that one of the complainants, namely, MG, she had been in attendance on five occasions upon a therapist known as Mr L and during the course of that therapy in 1999 she had been administered techniques which, your Honour, amounted to hypnosis. 

Now, the situation was complicated on the voir dire because the person who administered the hypnosis, your Honours - and Justice Hoeben has summarised this at 153 to 163 - Mr L, according to his police statement, his initial evidence‑in‑chief, could not even recall whether he had administered hypnosis during the course of the sessions but in the course of cross‑examination admitted that he had administered hypnosis.  At the first session there was a technique known as “Rossi Hands” technique.  The second session he had induced a trance.  At another session he had used another technique involving age regression in which a trance had also been induced.

Now, the problem that I just want to raise with the Court was this.  The notes that were produced were bereft of significant detail, and in those circumstances, Dr Roberts, who gave evidence on the voir dire, gave expert evidence that the administration of hypnosis had the effect or could have had the effect of distorting or concreting memories of the complainant. 

Now, ultimately that view or that evidence was rejected by the learned trial judge and the Court of Criminal Appeal approached that issue on the basis, “Well, Mr Walsh, the learned trial judge took into account reliability.  How can you then complain that the incorrect test was applied?”  I recognise that.  But then Justice Hoeben approached the task of the Court of Criminal Appeal on the basis of JG and 137 of Justice Basten in that case.  In doing so, his Honour used the term that really the test that was being urged upon the Court in these circumstances usurped the function of the jury.

BELL J:   I am sorry, where in the judgment are you at the moment?

MR WALSH:   I am sorry, your Honour, I will just – I apologise for this.  If you go to 170, you will see the reference to the approach of the learned trial judge.

BELL J:   Yes.

MR WALSH:   On 171 at the second‑last paragraph, his Honour Judge Finnane made a comment in respect of Dr Roberts not having any pretence of being a child psychiatrist and also that there were no forensic inductions of hypnosis.  Over at page 173, at the bottom of the page:

The difficulty for the Appellant in those submissions is that they depend very heavily upon the evidence of Dr Roberts being accepted.

Then his Honour goes on to refer at page 175 to JG and the approach of Justice Basten in that particular case.  Then over at page 176, his Honour again referred to JG and the observations of Justice Basten in the context of section 137. 

Now, the special leave point that has been sought to be agitated in this application is that there is a significant conflict in the approach as to this area of the law between the Victorian Court of Appeal decision in Dupas and, of course, the approach of the Court of Criminal Appeal in Shamouil and also recently in XY.  Can I just indicate from the Bar table that issues of contamination still arise in these types of cases and the divergence of the views of the Victorian court which found that they would not follow Shamouil and they would apply issues or features of reliability and credibility is in distinct contrast with the approach of the court here in New South Wales in respect of Shamouil. 

GAGELER J:   Your problem there is really in the last sentence in paragraph 156, is it not?  That is, even if you take the more favourable approach on one view, on the view accepted by the Court of Criminal Appeal, you still lose.

MR WALSH:   Yes.  I think I indicated to your Honours that that was something that I took aboard in the application in the Court of Criminal Appeal.  So, your Honours, that is all I can say in relation to the hypnosis point.  The other point, if I could just take your Honours to briefly, is this.  The first complainant was a witness, who I will refer to by the initial PR, and this relates to ground 4.  PR had two brothers, MT, and also another brother whose initial escapes me – LT – and also a sister.

The situation was that before she went to the police in February 2010, she had had an opportunity to discuss with her sibling, the sister, what her sister’s recollection was of the particular incident and in particular that the sister had come through the laundry door and had partially seen what had occurred.  There was discussion about the age of the younger girl at the time of the incident, namely five or six.  This complainant’s brothers were both complainants against this applicant and they had had discussions with the complainant about those matters to a limited extent and one of them had said that the applicant had drugged him. 

Now, there was also some degree of publicity before this complainant went to the police in February 2010 and her younger sister accompanied her to the police to support her but then became a witness in respect of the matter.  The point in relation to this is that neither – well, the trial judge did not deal with this issue at all, your Honours.  There is nowhere in his Honour’s judgment on the voir dire that his Honour dealt with the risk of contamination in respect of PR. 

Justice Hoeben in the Court of Criminal Appeal, with whom the other judges agreed – I made this point – and his Honour approached this issue on the basis that his Honour must have been aware of the risk of contamination – I will just see if I can get the passage – because his Honour had excluded two other witnesses who went to a primary school who really were not the subject of any real contention as to the risk of contamination. 

I will just see if I can get the point.  I am just having difficulty turning up the point but the point I am seeking to agitate to your Honours is this, that what occurred in respect of that particular witness was such that there was no decision by the trial judge as to the risk of contamination at all.

BELL J:   As I understood it from the respondent’s submissions, PR’s younger sister, CT, gave evidence of her observation of part of an incident that was charged.  No question of contamination arises in that context.  She is a witness giving evidence of her observations of the incident the subject of charge, surely.

MR WALSH:   Well, your Honour, the point or my reply to that is that issues of the risk of contamination equally apply, for instance, to an eyewitness as it would be to a tendency witness.  I mean, under section ‑ ‑ ‑

BELL J:   But they are very different considerations, surely.

MR WALSH:   Well, with respect, your Honour ‑ ‑ ‑

BELL J:   If concerned respecting contamination one separates trials involving two or more complainants, but one hardly prevents the prosecution from leading evidence of the happening of the event charged because of that risk.

MR WALSH:   Well, your Honour, my submission is that, for instance, complaint evidence can often be challenged on the basis of the risk of contamination where witnesses ‑ ‑ ‑

BELL J:   This is not complaint evidence.  This is evidence that the younger sister observed part of an indecent assault, if accepted ‑ ‑ ‑

MR WALSH:   Yes, I concede that.  So I have to concede that, your Honour, that is the situation.  Your Honours, in respect of the issues in relation to sentence, I will just rely on my written submissions, your Honours.  May it please the Court.

BELL J:   Thank you, Mr Walsh.

MR WALSH:   Thank you, your Honours.

BELL J:   We are of the view that this application is not a suitable vehicle in which to consider any difference of approach between the New South Wales Court of Criminal Appeal in Shamouil and XY and the Victorian Court of Appeal in Dupas.  In our view, there are insufficient prospects that the applicant would succeed in the appeal and for that reason special leave to appeal is refused. 

The Court will adjourn.

AT 1.20 PM THE MATTER WAS CONCLUDED