Boulattouf v The Queen

[2007] HCATrans 480

[2007] HCATrans 480

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S206 of 2007

B e t w e e n -

ANTHONY BOULATTOUF

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 31 AUGUST 2007, AT 9.37 AM

Copyright in the High Court of Australia

MR I.D. TEMBY, QC:   May it please the Court, I appear for the applicant and my learned friend, MR F.F. SALAMA, appears with me.  (instructed by Conomos & Spinak Lawyers)

MR D.C. FREARSON, SC:   I appear for the respondent, may it please the Court.  (instructed by Solicitor for Public Prosecutions (NSW))

GLEESON CJ:   Yes, Mr Temby.

MR TEMBY:   The applicant was charged on indictment with having committed three offences all against a seven‑year‑old girl; firstly, sexual intercourse with a person under the age of 10 years, in the alternative and on the same date, aggravated indecent assault, the charge being that he assaulted her and at the time of such assault did commit an act of indecency on her, and aggravated indecent assault on a prior occasion which need not concern us, as there was no evidence at trial to support that charge and it was taken away from the jury.

At trial he was acquitted on the first and more serious count and convicted on the second alternative count and has since been sent to prison.  The convicted man appealed and the Court of Criminal Appeal summarised the main argument put on appeal in this way, and I am working from page 90 of the application book in paragraph 42:

The Crown case on the first and second counts depended entirely on the evidence of the complainant.  The first count charged penile penetration –

that is clearly a mistake, I interpolate, and it should be “digital penetration” –

of the vagina and the second an indecent assault constituted by a touching of the vagina with the fingers.  The only relevant distinction between them was penetration, which was a requisite of the first count but not of the second.  The unequivocal evidence of the complainant was of penetration.  The jury had a reasonable doubt about that and acquitted the appellant on the first count.  Yet they convicted him on the second.  Since the jury had a reasonable doubt about penetration, and the complainant described no touching other than a touching during the act of penetration, they were bound also to have a reasonable doubt about the indecent touching.  The verdicts were inconsistent.

GLEESON CJ:   That is a summary of the argument.

MR TEMBY:   That is a summary of the argument, yes.  I am just describing to the Court at this moment what was put principally before the Court of Criminal Appeal.  That court summarised the evidence on the Crown case, which was that, according to the complainant, page 81, paragraph 8:

The appellant put his hand under her clothing, and touched her on the vagina.  He inserted “about two” fingers, and “fiddled around” with her vagina.

She told her mother what had happened in similar terms and then told a police officer that the appellant “took me into the bedroom and played with my private parts”.  That is at page 82, paragraph 11, and that does not include an allegation of intercourse.  And to a doctor the same day, paragraph 13 on page 82, that he “put his finger inside me”.  The doctor conducted a medical examination which produced no abnormal findings.  The appellant denied that he had done anything wrong and denied the specific allegation when put to him.

Accordingly, at trial issue was joined between the Crown and the accused in this way.  The Crown case was that penetration had taken place, and the defence said that nothing of a sexual nature had occurred.  As the Court of Criminal Appeal said at page 91, paragraph 45:

There was nothing equivocal, however, about the complainant’s evidence of the event.

It is indeed the case that from first when she made the complaint to her mother to last when she gave evidence at trial she consistently said that there had been digital penetration of her.  Accordingly, and this is the Court of Criminal Appeal speaking at page 95, commencing at line 3:

But the trial thereafter –

which must mean after arraignment –

was not conducted by the Crown or the defence on any basis that would entitle the jury to distinguish between the two counts.  Putting it in our words, either the jury would be satisfied beyond reasonable doubt that there was a sexual event or they would not.  The elements of the two counts were correctly explained.  The jury were told that the counts were charged in the alternative, but they were never told how to distinguish between the two, on what evidence or on what argument.  That was not done because it could not be done.

Indeed, in charging the jury – and I invite your Honours to go back to page 31 of the application book – the learned trial judge, having described indecency as an act which offends against currently accepted standards of decency, said, page 31 line 19:

so that if you accept what [M] tells you happened, then it would in law constitute an act of –

“indecency” must be the word –

if you need to go to the alternative count.

Here there was, just as the Court of Criminal Appeal said, no distinction drawn between accepting what M tells you happened and convicting on the alternative count, the two ‑ ‑ ‑

GLEESON CJ:   The case was left by the trial judge to the jury on the basis that they could either find on one count or find on the other count?

MR TEMBY:   It was, that is true.  It is also true to say that the jury asked a question concerning the alternative count.  The Court of Criminal Appeal went on to say at page 95 in paragraph  56:

It seems to us that once the trial advanced past the stage of the evidence and the arguments on it, the second count really had no part to play.  The jury were simply left with the evidence of the complainant, whom they obviously believed, and a simple choice between alternatives.

GLEESON CJ:   Mr Temby, I have not checked the direction, but it is a standard direction for trial judges in New South Wales to tell jurors that they can accept the evidence of a witness in whole or in part.  Was that direction given here?

MR TEMBY:   That direction was given, your Honour.  We accept that that direction was given.  The Court of Criminal Appeal said:

Uninstructed about how to exercise that choice, they must have regarded themselves as entitled to convict on either the first or the second count.

There is then some notice to reasons for sympathy for the appellant.  In the next paragraph the Court says:

the most probable explanation for the result is that the jury considered themselves entitled to deal mercifully with the appellant and convict him of the lesser rather than the greater offence and that that is what happened.

GLEESON CJ:   I am wondering whether a possible alternative explanation is not simply that they regarded themselves as being entitled to have a reasonable doubt about the element of the first offence which was not necessary for the second offence.  Indeed, you may only need one member of the jury who was having a reasonable doubt about that, or a doubt about that.

MR TEMBY:   Yes, I understand the point your Honour makes.

GLEESON CJ:   Different people have different ideas about what it takes to make up their minds.

MR TEMBY:   Yes, that is undoubtedly true, but this is a case in which the evidence of the complainant was perfectly unequivocal from not just at trial, but also from the time that the complaint was made, which was of sexual interference involving penetration, nothing less than that.

GLEESON CJ:   But the jury would know that the second charge was there because somebody thought there was a possibility they would not accept the evidence of penetration, or would have a doubt about it.

MR TEMBY:   Perhaps that is right, your Honour, although the matter was unexplained, that is to say, it was simply left on the basis that this is one charge and here is an alternative charge, and the Court of Criminal Appeal were quite clear in saying that the jury were uninstructed as to how they should go about the process of choice.  The complaint we make centres really upon the proposition that the jury’s verdict depends upon them having obviously believed the complainant.  We say that that is by no means obvious and, indeed, it begs the question. 

If what happened is that the appellant was simply dealt with mercifully, then we have no legitimate right of complaint.  We accept that juries have the right to and sometimes do bring in merciful verdicts, that is to say, convict on lesser or fewer counts than the evidence justifies.  But can it be said that the jury obviously believed the question?  Is it not, we ask, equally open and a most disturbing possibility that the verdict returned was a compromised one based on a belief by some jury members that the complainant could be believed as to the only evidence she gave, namely, a sexual assault involving penetration, and a belief on the part of some, one only perhaps, that the Crown had not proved to the requisite standard a sexual offence of any sort and, accordingly, a halfway verdict, guilty on the aggravated indecent assault charge, was seen to meet the circumstances of the case?

Now, merciful verdicts are acceptable in law, compromised verdicts clearly cannot be.  This is, we suggest, a good vehicle for this Court to speak authoritatively as to the unavailability of such compromised verdicts and it is an opportunity which this Court would not wish to miss.  We further submit that there is a separate but also important question which warrants the grant of special leave.  It is whether in a case such as the present where the evidence is unequivocally of penetration and there is a charge of sexual intercourse, can an alternative charge of indecent assault be left to the jury with safety and therefore propriety?  We submit that this is a question well worthy of consideration by this Court.

It should be made clear that there are cases, and we submit that this is one, where the verdict is all or nothing.  She said that he digitally penetrated her, just as she told her mother when she first complained.  He said that nothing untoward had happened, and yet the trial proceeded with the alternative count left open and the jury never told how to distinguish between the two counts on what evidence or on what argument.  What I have just said is taken from what the Court of Criminal Appeal said and that court also said that the second count really had no part to play.  In such circumstances alternative counts should be taken away from the jury as ‑ ‑ ‑

GLEESON CJ:   Just remind us what he actually said had happened?

MR TEMBY:   I am sorry, your Honour?

GLEESON CJ:   Just remind what he said had happened?

MR TEMBY:   The Court of Criminal Appeal said at page 95, the end of paragraph 55 we start with:

The jury were told that the counts were charged in the alternative, but they were never told how to distinguish between the two, on what evidence or on what argument.

GLEESON CJ:   No, I am sorry, you said that your client said that nothing untoward happened.  What did he say had happened?

MR TEMBY:   This was at interview, and he said ‑ ‑ ‑

GUMMOW J:   Page 83.

MR TEMBY:   I am obliged to your Honour.  Page 83:

I not touch anyone . . . I got some lemonade and I felt her stomach.  I did not do anything wrong . . . I’ve not done anything.

And over the page when the specific allegation was put:

No way.  I’d cut my hand if I’d done that.  No way . . . I never done nothing, what is there to say.

In circumstances where, as the Court of Criminal Appeal rightly said, there was no attempt made to explain to the jury how to distinguish between the alternative counts, on what evidence or on what argument and that in such circumstances the second count really had no part to play, it is not just surprising but unsatisfactory, we submit, that the court should not have gone on and declared that in the circumstances that alternative count should have been taken away from the jury so that the case became an all or nothing one depending upon the first count, that of sexual intercourse.  They, in addition to the written submissions, are what we wish to say to the Court.  If it please the Court.

GLEESON CJ:   Thank you, Mr Temby.  Mr Frearson.

MR FREARSON:   Your Honour, Court of Criminal Appeal concluded that the most probable explanation for the alternative verdict was a merciful verdict, application book 95.  That was having regard to the addresses of counsel.  The problem with that is that the jury was not bound to view the matter in light of the addresses of counsel, they were entitled to take their own view of the matter.

Another explanation and perhaps the most obvious one for the verdict was the actual state of the evidence.  The jury had been instructed on accepting or rejecting evidence in whole or in part, application book 8.  The jury had to consider whether areas of obscurity or inconsistency created a reasonable doubt, application book 19.  The initial part of the complaint to the mother was of touching, and she said “tell me what happened” and she went on to describe the ‑ ‑ ‑

GLEESON CJ:   Yes, that is the old problem with these cases.  The complaint is usually likely to be in general terms such as “he touched me wrongly” or “he fiddled me” or whatever she said in the first place, and then people start trying to get the complainant to firm up.

MR FREARSON:   Yes, your Honour.

GLEESON CJ:   It strikes me that it may well be open to a jury to have a reasonable doubt about some of the details that emerge in that way.

MR FREARSON:   Particularly when you view the status of complainant evidence these days and it goes to the truth, so the totality of the evidence

would have included some assertions by the complainant which were in fact not consistent with actual penetration.  But so too was the complaint to Constable Brazel, it was a complaint of touching, at application book 14.  The complainant did complain of penetration to the doctor.  It was a fleeting penetration and you are talking about a description by a seven‑year‑old child.

GLEESON CJ:   Yes, if I can use the expression “the authorities”, the authorities sometimes seem to require very young complainants to be far more clinical about these things than they are likely realistically to want to be.

MR FREARSON:   That is so, your Honour, but the very age of the child and talking about penetration is an area of obvious obscurity, and perhaps the jury would take that view.  But certainly the jury was instructed that sexual intercourse required penetration, obviously, at application book 30.  The touching of the genitalia constituted an indecent assault, application book 31.  There was no challenge to the alternative count during the trial and the precise distinction between the two charges that was given to the jury at application book 56, and that is – obviously, the jury were concerned about the alternative count at that point.  Clearly, in my submission, they had a problem about penetration because of the state of the evidence.  My submission is this, it is not an appropriate vehicle because there was a clear factual basis for the jury to differentiate between the charges.

GLEESON CJ:   Mr Temby.

MR TEMBY:   There is nothing in reply, your Honours.

GLEESON CJ:   We think there are insufficient prospects of success of an appeal in this matter to warrant a grant of special leave and the application is dismissed.

AT 9.57 AM THE MATTER WAS CONCLUDED