Brady v The Queen

[1988] HCATrans 305

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S59 of 1988

B e t w e e n -

WILLIAM GORDON BRADY

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

WILSON~

BREN~!AN J

DEANE J

DAWSON J- - -

Brady

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT 'CANBERRA ·oN TUESDAY, '6 DECEMBER. 1988, AT 10. 23· AM:

Copyright in the High Court of Austra1.f!'I

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MR P.J. HIDDEN, QC:  May it please the Court, in this matter

I appear with my learned friend, MS V.M. BELL,

for the applicant.	(instructed by ·the Legal Aid Commission
of New South Wales)

MR M.F. GRAY, QC:  May it please the Court, I appear with

my learned friend, MS M. LATHAM, for the respondent.

(instructed by .the Solicitor for ·Public P-rosecutions

and Clerk of the Peace)

WILSON J:	Mr Hidden.
MR HIDDEN:	Your Honours,we have prepared an outline of

argument, might we hand that up?

WILSON J:  Thank you. Yes, Mr Hidden.

MR HIDDEN: If the Court pleases. Your Honours, on

20 November 1987 the Court of Criminal Appeal allowed

an appeal by the applicant against his conviction upon

a charge of sexual intercourse without consent and

directed that there be a new trial. It is in relation

to that direction that this application is brought.

It needs to be said at the outset, Your Honours,

that the application is out of time, the reasons

for that being set out in paragraph 6 of the affidavit

of our instructing solicitor, Beverley Schurr,

appearing at pages 165 and 166 of the application

book. I do not believe there is anything we can

add to the material that appears there, Your Honours,

but we do seek - - -

WILSON J: What is the extent of the delay?

MR HIDDEN:  It is about six months, Your Honours, the judgment

being 20 November 1987, the application being lodged

on 23 May 1988. I am informed, Your Honours, and I

am grateful to my learned friend,. the Crown does

not oppose the enlargement of time.

WILSON J:  Well, the Court will leave the date of that

application open, Mr Hidden, and ask you to go to

the merits.

MR HIDDEN:	If the Court pleases.
BRENNAN J:	Could I just ask you one question before you proceed,

with respect to time? The judgment of the Court of

Criminal Appeal was published on 20 November, is that

correct?

MR HIDDEN:  Delivered on 20 November, Your Honours, but not

available in print for some time after that apparently.

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BRENNAN J: Is that the situation in New South Wales?

MR HIDDEN: Very commonly the case, Your Honours. If the judgment is given extempore there is commonly a

delay of some months before it becomes available

from the registry, in print.

BRENNAN J:  I see.

WILSON J: ls there a transcript available earlier?

MR HIDDEN:  There is not, Your Honours. The transcript of

argument, as far as we are aware, is fairly sketchy.

Indeed, I have never seen one, Your Honour.

WILSON J: That may be a blessing but what about - - -

MR HIDDEN: Yes, indeed. But, Your Honours, we assume that

what happens is that the judgment, when transcribed,

for checking and revision before it is published	is referred to the jud~es comprising the bench
but certainly until the registry makes it available
it ju~t cannot be obtained; Your Honours. That
seems to be the situation.

Your Honours, reducing the point of this

application to its bare bones, it is this: we

submit that the application raises the question

of the duty of the Court of Criminal Appeal, having

determined that an appeal should be allowed, to

exercise its discretion whether or not to grant

a new trial.and to consider the matters relevant
to that exercise and, in particular, in the context

of this case where one of the grounds of appeal

is a ground that the verdict is unsafe and

unsatisfactory, whether there is a duty upon the

court even though the appeal.has already succeeded

on another ground to consider that ground with

a view to determining whether the evidence is

sufficiently cogent to justify the conviction.in

turn with a view to determining whether or not

· there should be a new trial.

It is our submission, Your Honours,.that from

the judgment it would not appear that the Court
of Criminal Appeal indulge in that exercise at
all.and, indeed, we would submit, Your Honours,
if we may be so bold, the court appears from the

judgment, in effect, to have delegated that decision

to the Director of Public Prosecutions, a decision

which it ought, itself, to have considered ..

Your Honours, shortly, the factual background

is this and perhaps a short chronology of the

proceedings may be of assistance bec&use it does

go to part of the discretion which it is submitted

the court ought to have exercised.

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MR HIDDEN:	Your Honours, the indictment related to events occurring on 24 June 1984, in Glebe in Sydney.
This applicatit together with a man Stokes, who did not appear in the subject triai and the man
Sterry, who did, was committed for trial on
22 August 1984. The three men, the applicant and Sterry and another man, Clayton, who had turned up in the meantime, went to tri~l on 28 July 1986. That jury was discharged on the second day because
of certain cross-examination of the complainant;
a new trial was begun on 13 October 1986, in the
district court in Sydney on each occasion, and
that led to the conviction the subject of this
application.

In the meantime,·Your Honours, and we regret

our omission that no reference was made to this

in the outline, the man Stokes, who had apparently

been missin~ was found and he went to trial on

11 May 1987. The only significance of all that,

Your Honours, is, apart from the question of overall

delay, the complainant has now given evidence in

relation to these proceedings four times.

Now, Your Honours, very shortly, the

indictments - - -

WILSON J: That question is properly a matter for the

prosecuting authority rather than for the Court,

is it not?

MR· HIDDEN:  Both, we would submit, Your Honours. We would

submit, on the authority of the Privy Council in

REID, which- has been consistently adopted by this

Court in cases to which we will turn in a moment,

the length of time between the· matters complained

of and the likely new trial is a relevant factor

in determining whether there ought be a new trial,

we would submit, Your Honours.

WILSON J:  The length of time - but you are speaking of

the number of occasions on which a particular

complainant has been required to give evidence.

(Continued on page 5)

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MR HIDDEN:  Yes, well, Your Honours, we would submit that also

is properly a matter which ought 'be considered in

the exercise of discretion. In that regard we wiLL

take Your Honours to some New South Wales authority

on the point - not directly on the point, but perhaps of some analogous weight. Your Honours, very shortly, the indictment charged the applicant with a count

of sexual intercourse without consent, one of the
statutory offences under the New South Wales CRIMES

ACT; with a charge of inflicting:

actual bodily harm with intent to

have sexual intercouse.

And with a charge of threatening to do so, that is

threatening to inflict actual bodily harm with intent

to have sexual intercourse. And, Your Honours, very

briefly, which may be all that is necessary at this

stage, the allegation was that the complainant met

with a group of men, including this applicant, in a

hotel in Glebe. She and the man Stokes left the

hotel with a view to going to some premises which -

WILSON J:  We have read the papers .. so that you can proceed with

such reference to the facts as you find necessary to

make your submissions.

MR HIDDEN:  Thank you, Your Honours. Well if I might then turn

to the judgment of the Court of Criminal Appeal which

commences at page 151 of the application book.

Your Honours will see that in effect the court allowed

the appeal on the basis of the first ground of appeal

filed. That related to the fact that evidence was

admitted, and indeed was not objected to, that this applicant had anal intercourse with the girl. That

act was not the subject of any count in the indictment

but the defence sought to cross-examine the girl to

the effect that she had disclosed: ·a predilection for

that form of sexual activity.

WILSON J: And this was the ground that was successful in

the Court of Criminal Appeal?

MR HIDDEN~: This was the ground that succeeded, yes,

Your Honours. Now the significant part, Your Honours,

is that His Honour the Chief Justice, having considered

that ground and having determined that it should be

resolved in favour of the applicant, then said this

at page 156 at line 17:

(Continued on page 6)

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MR HIDDEN:(continuing):

I·see no alternative, in the interests

of justice, to quashing the conviction

and directing that there be a new trial

on the single count of sexual intercourse

without consent of which the jury found

him guilty. How the Director of Public

Prosecutions proceeds in any such new trial is a matter for determination by

that authority, equally as is the determination

as to whether a prosecution case can be

presented without eliciting this prejudicial

material -

referring to the anal intercourse -

which may or may not be able to be handled by eliciting evidence such as was rejected

in this case in the cross-examination.

I leave all of those questions open~

Your Honours, Mr Justice Lee agreed with the

Chief Justice but added nothing in that regard,

as did Mr Justice Campbell in the short statement

of his agreement.

Your Honours, our first submission is

that from the judgment it would appear that

the question whether there ought be a new trial

or no, was simply not considered. Certainly,

if that discretion were exercised there is nothing

in the judgment to disclose that it was or to

disclose any reasons for its exercise in this

case.

We would submit, Your Honour, that the

exercise of that discretion had to be considered,

particularly in the light of the fact that one

of the grounds of appeal, ground 5, was a ground

that the verdict was unsafe and unsatisfactory,

a ground which, we would submit, had considerable

substance and, if needs be, we will take Your Honours

to some aspects of the evidence to indicate

that it was certainly anything but a frivolous

ground of appeal.

Your Honours, in REID V REG, a decision of the Privy Council, (1980) AC 343. Their Lordships

considered the undoubted discretion whether

or not to grant a new trial. There they were

dealing with a provision in the Jamaican Judicature
Appellate Jurisdiction Act which seems, in
aTl relevant respects, . t0 be s ;11'.; 1 ri= to sect ion 8
of the CRIMINAL APPEAL AC1 of New South Wales, which

is the section with which we deal here.

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MR HIDDEN (continuing): At page 346 Their Lordships

say, just above letter D, if I could start

in the middle of a sentence:

any consideration of.what the interests

may call for a balancing of a whole of justice requie in a particular case

variety of factors, some of which

will weigh in favour of a new trial

and some against, and not all of

which are necessarily confined to the

interests of the individual defendant

and the prosecution in the particular case. Their Lordships ·warn against--anything 'they say

being considered an exhaustive category of

factors to be considered.

At page 348 Their Lordships express a

basic principle which has since been adopted

by this Court and indeed had previously been

expressed by this Court. In the second complete

paragraph, below letter D, their Lordships say:

It would conflict with the basic

principle that in every criminal trial it is for the prosecution to prove its

case against the defendant, if a new
trial were ordered in cases where at the
original trial the evidence which the
prosecution had chosen to adduce was

insufficient to justify a conviction by

any reasonable jury which had been

properly directed.

WILSON J: There probably is no contest about that

proposition, Mr Hidden.

MR HIDDEN:  Yes.

WILSON J: And if there was no ground of appeal on the

unsafe and unsatisfactory basis, you could

have no objection to the judgment of the

Court of Criminal Appeal, which said,in

upholding an appeal on the basis of the

wrongful exclusion by the trial judge of

evidence, that there should be a new trial.

MR HIDDEN:  Yes, Your Honour, that - - -

WILSON J: You do not expect the Court to go in every

case where it is a question of either wrongful

exclusion of evidence or misdirection by the

trial judge that the appropriate order in the	interests of justice is a new trial? Ordinarily,
it would be.

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MR HIDDEN: Well, Your Honour, we do make that submission,

although, for the purpose of this application it

is not necessary because there was herea ground

that the verdict was unsafe and unsatisfactory.

WILSON J:  Yes, I was just trying to identify the real issues

in this case.

MR HIDDEN:  Yes. We would submit, with respect, however,

Your Honours, that in any case, whether that ground

is present or not, having determined that an appeal

should succeed, the Court is required then to consider

whether there ought be a new trial and to consider in

that context whether the evidence is sufficiently

cogent to justify a conviction, even if that ground

has not been filed.

WILSON J: There is no suggestion that that was not considered

here; the Chief Justice expressly said, "in the interests

of justice, the appropriate order is a new trial."

You are going further and saying it must set out its

reasoning which leads to that conclusion and I find

that somewhat surprising.where it is a simple case

of evidence having been wrongly excluded. It does

not throw any doubt on the sufficiency of the case

on which the jury found a verdict of guilty.

MR HIDDEN:  Of itself, Your Honour, no. The difficulty here is that_

there were other grounds including the ground that the

verdict was unsafe and unsatisfactory.

WILSON J: Yes. You have been putting it more broadly and that is

what has led me to seek to limit the issue to the

relevant question.

MR HIDDEN: Well, Your Honours, we are most certainly content to so

limit. Your Honours, that being so it is probably

unnecessary but to remark in passing that this Court,

of course, espoused the principles of REID in the

DIRECTOR OF PUBLIC PROSECUTIONS FOR NAURU_V FOWLER,

(1984) 154 CLR 627; in KING V REG, (1986) 161 CLR 423; as indeed it had, Your Honours, in GERAKITEYS V REG -

BRENNAN J: 153 CLR.

MR HIDDEN:  Yes. It is probably unnecessary to refer to it

specifically, Your Honours. Yes, 153 CLR 317.

(Continued on page 9)

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MR HIDDEN (continuing): Your Honours, as we have said, the

substantial complaint here is that there were other

grounds relating to His Honour's directions but,
more significantly, there was a ground that the
verdict was unsafe and unsatisfactory and that

was a ground with considerable substance we would

submit, Your Honours, and .if. it is necessary

to consider whether it was one of substance, we

are in a position to take Your Honours shortly

to some aspects of the evidence.

WILSON J: What order do you seek if your argument is accepted?

MR HIDDEN:  Your Honours, ideally, that this Court would

enter a verdict and judgment of acquittal but

Your Honours may feel it more appropriate to remit

the matter to the Court of Criminal Appeal to consider

what order should be made.

WILSON J:  On the basis that it ought to have considered

that ground of appeal before concluding as

to what course should be taken?

MR HIDDEN:  Yes, Your Honour. Your Honours, shortly on

evidentiary matters, perhaps if we could just point

out some. of the more salient matters which might
have gone to the unsafe and unsatisfactory issue.
Perhaps the most salient, Your Honours,is this:

as Your Honours will recall the complainants gave

evidence that the applicant had had anal intercourse
with her which was not itself the subject of any

charge; she complained that later he had had vaginal

intercourse with her; she agreed, however,

Your Honours, that at the committal proceedings she had said that there was only one episode of

vaginal intercourse and that that had occurred

with a man who was not then at court. This appears

at page 56 of the application book in the cross-

examination of the applicant.

Your Honours, it was common ground, of course,

that this applicant was at court and she had specified

him in various ways in relation to part of the
episode and it would seem, Your Honours, that the

·reference to a man "not then at .court" appears

to have been a reference to the man Clayton rather
than the fifth unidentified man because she had

earlier given evidence that he had had vaginal

intercourse with her and Clayton apparently was

not around for the committal proceedings.

WILSON J:  The committal of Clayton did not proceed at the

same time as the applicant's?

MR HIDDEN:  That is so, Your Honour.

WILSON J: Although the trial did?

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MR HIDDEN:	Yes.	Your Honours, we are, in fact, unclear

as to what had had happened to Clayton; we assume

he had simply refused to answer bail and was later

apprehended. Of course, that was a significant

inconsistency going to the first count in the
indictment and directly to it. Perhaps taking
them one by one, Your Honours, in the trial the
effect of the complainant's evidence was that the

accused Sterry had done nothing to her by way of

any sexual misconduct or any preparation for it
and yet she agreed that at the committal proceedings -
this is at page 40 of the application book - she

had identified Sterry as the man who had removed

her clothing.

Her account at the first trial as to the

removal of her clothing was significantly different
from that given in the relevant trial. In the

relevant trial she had described herself as being

handcuffed, of the handcuffs then being removed

and then this applicant removing all of her clothes

except for her socks. That appears at pages 11

and 12 of the application book. At page 40 she

agreed that at the first trial she said that this

applicant had removed her clothes from the waist

down while she was still handcuffed.and she further
agreed at page 41 that the person who put the
handcuffs on her - and it was not suggested that

that was the applicant - removed the rest of her

clothing.and removed her handcuffs.

(Continuing on page 11)

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MR HIDDEN (continuing):  One of the counts against the

applicant, of course, was the third count threatening

to inflict actual bodily harm with intent to have

intercourse. Your Honours might recall ,:that related

to an incident where she said that he threatened her

with an iron bar when she was complaining and

protesting at the conduct of one of the other

men. Cross-examined about that at the first trial

she said that that threat with the iron bar was

made before the handcuffs were removed whereas in

this subject trial she puts the removal of the

handcuffs at a very early stage, well before that

threat was said to have been made.

DEANE J:  Mr Hidden, am I right, that at the trial it was

common ground that your client had intercourse with

the complainant?

MR HIDDEN:  Yes, Your Honour, by consent, that he had vaginal

intercourse, yes.

DEANE J:  Yes, so that on this the only issue was whether

she consented?

MR HIDDEN: Yes, that is so, against the backgroundr of course,

that the allegation of anal intercourse, although

not forming the subject of any charge, was not	conceded by the applicant • Your Honours, a matter
of some little significance;.; .at pages 36 and 37 of
the book she was cross-examined to the effect that
she had, to a Dr Fisk, who had examined her, said
that four men had had anal intercourse with her,
three men had had vaginal intercourse with her and
four men had had fellatio. Now, that was significantly
different from the evidence she gave in the trial.

Cross-examined upon that the effect of her

evidence was that she might have said that but she

did not remember, that is, to Dr Fisk. Now,

unfortunately, Your Honours, Dr Fisk was not called

in this trial so that those prior inconsistent

statements, if they were made, were not able to

be proved. But as another matter I suppose,

Your Honours, going to the discretion of whether

or not to grant a new trial, we would submit, would

be the likelihood that Dr Fisk would be called in

the subsequent trial and the very great likelihood
that those significant prior inconsistent statements

would be able to be proved.

general area, at page 55 of the application book, Incidentally, Your Honours, just on that same

she conceded having told police that two men had had

anal intercourse with her, was of course in the trial.

She only claimed that chat had happened on one

occasion.

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DEANE J:  But why would it not be open to any reasonable

jury to take th~ view that they were persuaded beyond

reasonable doubt that she did not consent to the
things she was subjected to, that they were not

prepared beyond reasonable doubt to rely on her

evidence in relation to precisely what happened?

Now, if the jury reached that conclusion it would	find your client guilty of the one offence of which
he was found guilty.

MR HIDDEN:	Your Honours, we could only say upon the basis that her credibility was cast in such serious doubt
by significant prior inconsistent statements. I
.appreciate, Your Honours, that is the only basis
on which we could put it. But they were significant
and, indeed, if the one said to have been made to
Dr Fisk could have been proved, they were most
significant and were suggested, as was put to the
complainant, that the story changed every time she
gave evidence and it was put to her that there was
a substantial degree of improvisation about her account on each occasion. That is the only basis,
Your Honours.
BRENNAN J:	Mr Hidden, her evidence on the material fact

was not- shaken at all, it was conceded.

MR HIDDEN: That the act of intercow::!se happened?

BRENNAN J:	Yes.
MR HIDDEN:	Your Honour, yes, it was.
BRENNAN J:	And the criticisms which are made of her evidence

is not on anything except tih.e order of events and
the kind of sexual indignities to which she was

subjected.

(Continued on page 13)

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MR HIDDEN: Yes, Your Honour, that is so. But, while the

act was conceded the issue was consent so that

her credibility as a witness was central to the

Crown case.

BRENNAN J:  But the confusion to which you have alluded

could, on one view, be taken by the jury as evidence tending to show absence of consent. In other words, the situation was of such a distasteful kind that

confusion is, perhaps, a natural reaction for the

person who was subjected to it.

MR HIDDEN:	It is a view, Your Honour. But the - - -
BRENNAN J:	I am not suggesting that it is one would commend

itself to counsel for the defence.

MR HIDDEN:  No, Your Honour. Certainly that is a view that

must be open, Your Honour, but the submission

obviously made in the trial was that the inconsistencies

were such that confusion is an inadequate explanation.

and that they really go to the credibility of her account and go quite seriously to her credibility.

WILSON J:  But to sustain an unsafe and unsatisfactory ground

you really also have to grapple with the context

of the object provided by the objective circumstances

which may have and, obviously, could have weighed

with the jury: in this. shed at night with

five men and she presented herself at the door
of her neighbour in a distressed condition with

bruises on her fac~ and so on, in the middle of

the night, about midnight. That lends support
to the issue of consent in favour of the Crown,

does it not?

MR HIDDEN:	The evidence of the complainant, Your Honour, and the condition - yes.
WILSON J:	And the general circumstances.

MR HIDDEN~ Yes, Your Honour.

WILSOR-J: And the handcuffs were there. There was a dispute

as to whether they were ever used.I take it.

MR HIDDEN: There was , as far as the applicant was concerned,

certainly, Your Honour. Yes.

WILSON J: '.	They were there.
MR HIDDEN:	That is so, Your Honours.  Of course, Your Honours,

all we are submitting at this stage is that the

""'.•c~.	unsafe and unsatisfactory ground was arguable and ought to have been considered by the court in
determining whether or not to order a new trial.

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WILSON J: Well, you began by saying it was a substantial

argument.

MR HIDDEN: Well, it was one of substance, we would submit,

Your Honour, and we stand by that submission.

WILSON J:  Yes.

DAWSON J: It was argued,was it, in the Full Court?

MR HIDDEN:  Your Honour, my understanding is that all the

other grounds were sought to be argued but the

court, in effect, cut counsel short and was content

to deal with the first ground only. My understanding

also, Your Honours, is that argument was addressed

to the court by counsel upon the consequential

order - whether or not there ought be a new trial,

again briefly, as I understand it, Your Honours.

Here we are at somewhat of a disadvantage,

Your Honours, because neither my learned junior

nor I were in the appeal. However, my learned friend,
senior counsel forthe Crow~ was and may be able

to enlighten the Court a little more on those matters.

But our understanding is, Your Honours, that attempts

to deal with the other grounds and to have the

court consider the option of entering a verdict

of acquittal got fairly short shrift from the court,

Your Honours.

WILSON J:  Would it be the proper approach for this Court,

if it were minded to accept that view of the

circumstances at the hearing,to send it back to the Court of Criminal Appeal but only if it was

satisfied that it did raise, in a real sense, the

possibility that a verdict of acquittal would have

been appropriate had this ground been considered?

(Continued on page 15)

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WILSON J (continuing): In other words, we should not just send it back

because they did not consider it. And we do not have

to go into it in sufficient detail to come to a
conclusion, but we do have to have regard to the

matters you are putting now and be sa·tisfied that there

was material which warranted the serious consideration

of the court that could have led to a verdict of

acquittal?

MR HIDDEN:  Yes, no doubt, Your Honour, this Court would have

to see material warranting the consideration of

the discretion not to order a new trial. We do not

cavil at that,Your Honours. Your Honours, just one

other matter, perhaps worth referring to in relation

to the inconsistencies. At page 50 of the application

book it appears that at the committal proceedings the
complainant identified Sterry as the one who was

doing:

the hitting and the running of the whole

thing.

She said whichever one is:

called Crackers did the hitting and the

running of the whole thing.

And it was common ground that Crackers was the

ni:ckname . applied to Sterry. Now at trial, of course,

or certainly at the subject trial, their evidence

virtually exonerated Sterry of any participation in the

proceedings at all. She said in the trial-this is

perhaps of some significance Your Honours.- that as

they approached the shed, the man Stokes entered the

shed, that Sterry went in immediately after him

and that she was then pushed into the shed by either

this applicant or Clayton or possibly both. Now

she agreed-:--:-this is page 57, Your Honours, of the book -

that at the first trial she had described this

applicant as going into the shed after Stokes, that is

before she was pushed in.

Of course, Your Honours, there was also

cross-examination of her at pages 59 to 62 concerning

certain past convictions of a drug nature. Now,

basically the submission is that the inconsistencies
between the evidence of the complainant and her

statements on prior occasions were such that it would

be difficult to explain them simply by confusion

and was such as to weigh heavily against her

credibility as a witness and her credibility as a witness

was vital to the Crown case. Now, Your Honours, there

is perhaps one other matter to which we should refer

~ ~~ing t~ the other grounds of appeal which were

not considered and that is this: Your Honours will

recall that after a lengthy retirement by the jury

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the applicant was acquitted of all counts but the

first being the actual intercourse count. Now

groun'd 3, in the Court of Criminal Appeal, was one

relating to His Honour's directions on the element of

recklessness which is provided for by statute

relating to offences of this kind or relating to the sexual intercourse without consent count of which he

was convicted. And counsel's written outline of

submissions on ground 3 appear at pages 172 to 175

of the application book. Now suffice-it to-say~ Your Honour

that the thrust of that ground was that His Honour·s

directions were capable of conveying recklessness as

an objective concept to the jury and in any event the

case was not one where any direction on recklessness

was required.

Now, Your Honours, that ground, of course,

receives no consideration in the judgment of the
Court of Criminal Appeal, but in the light of the

acquittals on the two section 61C counts, that is

inflicting actual bodily harm or threatening to do so

with intent to have sexual intercourse,and the

conviction on the sexual intercourse without consent count,

a possible view of how that came about was that the

jury applied the concept of recklessness to find the

applicant guilty of the co.unt of sexual intercourse

without consent.

(Continued on page 17)

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MR HIDDEN (continuing): If that were so, and if

ground 3 had substance, that is, that the

direction on recklessness should never have

been given, then again, we would submit,

Your Honours, there is even more reason to

direct that there be no new trial. Of course,

the difficulty here, Your Honours, is that it

cannot be said - there is, of course, a

rational explanation on the evidence for the

acquittals on the second and third counts and

the conviction on the first, and that is that
the jury were not satisfied that the intent of

the actual bodily harm or the threat was to

have sexual intercourse. That explanation clearly

is open.

Your Honours, we submit also that quite apart

from the question of the sufficiency of the

evidence, there were other factors which the court

ought to have considered in determining whether

a new trial should be ordered, and they are

set out briefly, Your Honours, in paragraph 5 of

the outline.

TOOHEY J:	Mr Hidden, just before:you go to that particular
matter, what was it in the judge's direction to the jury on the matter of recklessness of which
you complain?
MR HIDDEN:	Yes, Your Honours, it is only this - and it is

perhaps sufficient, Your Honours, to refer to

page 173 of the application book. At line·9

there is an extract of part of the summing up

in relation to recklessness, which reads this

way:

In forming a view about this, about whether

a person consents and whether the other

person involved knows whether or no·t

there is consent, you look at ordinary

human -

and that clearly must be "conduct", not "product" -

You ask yourselves: Were the actions of the

complainant, Mrs. Purdy, and the actions of

the persons such as to satisfy you beyond

reasonable doubt, firstly, that there was not

consent and, secondly, that the accused knew

there was not."

The complaint taken, Your Honours, appears to

have risen from the expression, "You look at

o:rdinPi-:-:- •·:- n-1·=m conduct", and the complaint was

that in the light of the - particularly the

decision of this Court in CRABB, but also in the

New South Wales decision of McEWAN, referred to,

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which related to the common law offence of

rape - that may have conveyed to the jury

something of an objective test of recklessness:

that is what a reasonable man ought to have

seen, ought to have understood, rather than

what the accused subjectively did.

True it is, Your Honours, that in other

respects the directions do express recklessness in

subjective terms. There is no doubt about that.

TOOHEY J:	It is a bit hard to read that into the passage
that you have just directed us to.
MR HIDDEN:	It is not of itself the strongest ground,

Your Honour. That clearly was the point counsel was referring to. But Your Honours may feel there was rather more substance in the other complaint which is really referred to at page 174 of the

application book in the first paragraph, (c).	The
submission there was that in any event in the circumstances of this case a direction on
recklessness was not required at all.	I mean, as

the complainant gave her account, it was to be
argued/ there was no room for any consideration

of recklessness whatsoever because, on her account,

she was subdued and submitted to violence

consistently throughout the whole epsiode, and:.

if that happened, the question of what the accused

might have believed as to the question of consent

we would submit, perhaps had more substance and	just did not arise. That complaint, Your Honours,
was worthy of consideratio.n.,.

· TOOHEY J: But was there anything in the direction to the

jury that invited them to approach the matter

in terms of recklessness? I know there is a

passing reference, as it were, to - well, something
that the crown had put to the jury, but is there

anything in the direction itself which invites the

jury to consider the matter in terms of

recklessness? (Continued on page 19)

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MR HIDDEN: Your Honours, I could not say that it was put

forward to the jury as the livest of issues.

It was put as an alternative basis on which

the element of knowledge of lack _

of consent might be made out. If Your Honours would

bear with me for a moment, I will just find

the relevant part of the summing up. At page 119

of the application book, Your Honours, is perhaps

putting it at its highest.	At line 8, His Honour
said:

One basis upon which the Crown puts

its case is that there was recklessness

as to whether she consented or not. That

is one aspect of it. The Crown was

entitled to put its case alternatively;

namely, the woman's case is there was no recklessness, it was all deliberate and contrived in the first place, a series

of false names thought about before they

got there which may have had some motive
about affecting identification, for example.

That is plainly the way she put the case

and that at no stage did she accept any

of it. It is for you to decide the question .

TOOHEY J: · It is that passage that prompted my question

because it does not appear from that passage

that the judge was inviting the jury to consider

the matter in terms of recklessness.

MR HIDDEN:  Your Honours, it does appear, however, that

the Crown put its case alternatively upon that

basis.

TOOHEY J: Indeed.

MR HIDDEN: Certainly His Honour does seem to say, "Well, on

the complainant's account it is a clear case

of deliberate violence."

TOOHEY J: That is right. He virtually excludes recklessness,

notwithstanding the Crown's submission, by saying,

"Well, the woman's case is that there was no

recklessness. It was all deliberate and contrived

in the first place." And he goes on:

That is plainly the way she put the case

. . . .. It is for you to decide the question.

MR HIDDEN:	Yes, I appreciate that, Your Honour, yes.
Perhaps what was a little unfortunate w~s put t_he ~.a.:=:e", Q/''!i_ne previQusly said, "The
Crown puts it on one basis or the other''. I
do not believe we can take it further than that, Your Honours.

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On the other discretionary matters, as we

have said, Your Honours, at paragraph 5 of the

outline - the other discretionary matters are

there set out with one error in calculation.

On a new trial the complainant would have to

give evidence a fourth time; the applicant

would have to face trial a fourth time.

Your Honours, in very different conditions,

the Court of Criminal Appeal in REG V RIDGEWAY,

(1983) 9 A Crim R 43, de~lined to direct a .new trial

after an appeal on a ground which was clearly

a new trial point. The appeal related to His Honour's

failure to direct the jury as to corroboration

in a homosexual indecent assault case arising

out of a prison incident.	We refer Your Honours
to this by way of analogy only;	we do not suggest

that the situation is in any way analogous.

(Continued on page 21)

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MR HIDDEN (continuing):  But at page 52, Mr Justice tee, giving

the leading judgment, said at about point 7 of the

page:

In the ordinary course of events a new trial would

be ordered but there is a real question in this

case as to whether that course should be taken.

And His Honour then refers to part of the report of the

learned trial judge, who referred to the dreadful ordeal

which this particular complainant had been through

and the obvious pyschologicial effect this incidences

had had upon the complainant which appeared not only

from his evidence in the trial but also from a

compensation application. His Honour, at page 53,

recounts the history of the proceedings. There were apparently a couple of false starts; on one occasion the jury was discharged; on another occasion there were

not enough members on the panel to comprise a jury

and the trial finally got on. In the second paragraph

His Honour said:

It seems to that, considering the victim's

position in the matter, justice and humanity

require that he not be subjected again to

the appalling ordeal of being required to

reliYe again the horror of the experience

which he underwent.

Of course, Your Honours, a very different case, but

simply illustrative of the fact that the Court will

and, indeed should, we would submit, have regard to a

matter such as that in determining whether there ought

be a new trial. Now, certainly, we cannot suggest

in· this appeal that there was evidence before the

Court indicative of great distress at the prospect of

having to give evidence again on the part of this

complainant.

WILSON J: And there was an element here, of course, that the

appellant was already serving several long sentences

that bear on the question of justice - - -

MR HIDDEN: Yes, that is also so, Your Honours. As to the question

of the appellant himself having to face trial a third

time, again, for such analogy as it might provide,

might we refer Your Honours to REG V WARD.

WILSON J: Well, it was barely a third time. The first trial

miscarried on the second day.

MR HIDDEN:  The second day, Your Honours, that is so.

th-:, Court al]ri,:•1"'rl r,-, appe~ 1 . --:,. tht=> qnestion of what	In REG V WARD (1983) A Crim. R 171, there again
it held was the wrongful admission of certain psychiatric
evidence; clearly a new trial point. Again, perhaps,
it is sufficient to refer to the judgment of
Mr Justice Lee on page 195, the Chief Justice having

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said something very similar at page 179. This is a

case where Ward, having been found guilty of murder,
appealed and- while the Court was of the view that the ground of appeal was, strictly speaking, a new

trial point, it determined that the better course

would be·to substitute a verdict of manslaughter.

At page 195, at the bottom of the page in the last

paragraph, Mr Justice Lee said:

In ordinary circumstances when a miscarriage

of justice has occurred through wrongful admission
of evidence,· a new trial will be ordered, but,

in my view, there are compelling circumstances
in this case why that course should not be

followed.	The plaintiff has already faced two
trials for murder.	He has been in custody

for a period of three-years. A third trial in those circumstances should only be ordered if the court is convinced that no other course

consistent with the interests of justice -

meaning thereby the interests of the community

and the interests of the accused - is open.

wruth the facts of this case, but an example of the c.ourt exercising a discretion not to order a new trial

And for that reason the ~ourt a verdict of manslaughter.

simply because of the difficulty of the accused having

to face yet another trial and having been in custody

for some substantial period of time. I pause to

inform Your Honours, for such relevance as it may have,

that it would seem that this applicant had about

four and a half months pre-sentence custody from

25 June 1984 to 9 November 198.4. Thereafter his

parole on an existing sentence was revoked and he

was serving that sentence until 12 December 1985

on which occasi.on he. was allowed bail pending this

appeal by Mr Justice Yeldham.

(Continued on page 23)

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TOOHEY J: When you say "this appeal", Mr Hidden, do you

mean the appeal to the Court of Criminal Appeal?

MR HIDDEN:	I am sorry, the Court of Criminal Appeal, yes.
TOOHEY J:	And has he been on bail• since that time; since

December 1985?

MR HIDDEN: Yes, Your Honour. I am sorry, I think_I ma~ have

misunderstood some notes here. I beg Your Honours'

pardon, he was serving his sentence until

December 1985, he was granted bail by

Mr Justice Yeldham on 8 December 1987 and, of course,

during that period he was serving the sentence

imposed upon him in respect of this matter so

that, in effect, in rough calculations, referable

to this matter, he has served about 17~ months. Your Honours, the other matters we would submit

which would properly go to discretion, the discretion
not to order a new trial, are also set out in

paragraph 5 of the outline.

BRENNAN J: May I just take you to paragraph (c) there.

If paragraph (c) is right and if special leave

is granted and this Court is required to make the

order which the court below ought to have made,

should we consider the question of whether the

Court of Criminal Appeal was right in excluding

that evidence?

MR BIDDEN: No, Your Honour., in our submission.

BRENNAN J:  Why not?

MR HIDDEN: It has been decided, Your Honour. It is not

in any sense the subject of this application.

BRENNAN J: Although having been decided it provides a ground

in your submission for not ordering a new trial?

MR HIDDEN:

Only to this extent, Your Honour - I see what

Your Honour is getting at, yes. To this extent

only·- the (c) and (d), I suppose, go together.

There would be a question as to whether the evidence

of the anal intercourse ought be admitted but

if it were whether the further cross-examination

as to the lady's predeliction for that type of

intercourse ought to be admitted.

Your Honours, we would submit that _that matter has been determined by the Court of Criminal Appeal and that that court, having determined it, ought

to have had regard to it in determining whether

there o ·ugh;,. to be -,, .. - s~ w c-1. i a 1 au u· · ~ _;_ i: h i s Co u r t -

I take it Your Honour is postulating the

possibility of this Court remitting the matter

to the Court of Criminal Appeal?

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BRENNAN J:	I was thinking even more if one took the first view that I understood you were contending for,
namely, it would seem a curious thing to say that
there should be an acquittal on the ground inter
alia of the difficulty of conducting the retrial
having regard to the fact that the accused had obtained what, on one view, might not have been
a legitimate advantage by the decision of the Court
of Criminal Appeal.
MR HIDDEN:	Your Honour, we would submit that the Court of Criminal Appeal's decision on this aspect was
clearly right.
BRENNAN J:	I was only raising the question of whether it

is open for us to consider it.

MR HIDDEN:  We would submit not, Your Honours, the matter

having been determined in the applicant's favour.

The other problem that arises, Your Honours, is

the problem referred to in subparagraphs (e)

and (f) and that is the difficulty arising from

the fact that there have been acquittals on the

second and third counts which relate to the threat

to the complainant by the applicant while sexual

activity was going on with another man and to the

physical violence inflicted upon the complainant

while the applicant himself had intercourse with

her.

(Continuing on page 25)

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MR HIDDEN (continuing):  Now, again Your Honours, the question

would arise as to what ought be done about that

material and it raises the sort of problem that

arose in REG V STOREY, (1978) 140 CLR 364. It

is sufficient to say this, Your Honours, that

a court on a retrial would have to consider -

or perhaps we should say this,',Your Honours. The

evidence may well be admissible at law, even

though there have been acquittals in respect of

it but a court on a retrial would have to consider,

at least as a matter of discretion, whether it ought be admitted and if it were admitted then an appropriate direction would have to be given

to the effect that its admission,.,ddes not entitle
the jury to go behind the acquittals in the previous
trial and to arrive at findings inconsistent with

those acquittals.

It is perhaps sufficient in that regard,

Your Honours, if we could take Your Honours to the judgment of Mr Justice Mason, as he then was, at

page 397 of the report. Your Honours might re~all

this was the case where - the Crown case was that
a girl was abducted from a railway station and

at some later time was raped by a number of men

in a different place. On a first trial the jury

had acquitted of the abduction but could not agree

as to the rape and on a retrial for the rape the

evidence relating to the abduction was admitted.

The majority of the court were of the view that

His Honour's directions in relation to that were

inadequate. But basically each of the Justices

comprising the court were of the view that the

evidence was strictly admissible, notwithstanding

the acquittal, but were concerned with what

directions needed to be given in the light of

it. At page 397 His Honour the Chief Justice

said, after referring to the Privy Council

decision of SAMBASIVAM:

The ground of that decision implicitly

acknowledged that the requirements of res

judicata may be satisfied in an appropriate case

by the admission of evidence of this kind

accompanied by a precise instruction to

the jury that the prior acquittal cannot be

challenged and that the evidence, for what

it may be worth, is to be understood in

this light.

And at page 398 His Honour saidt at about point 3

of the page:

Fairness to the Crown an<l tu t:  .... .:.ccu.-,cu

therefore suggests that the totality of
the prosecutrix's testimony as to the

events occurring at the railway station

C2Tl7/l/MB	25	6/12/88
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should have been led at the second trial

and that it should have been accompanied by

a direction that the respondents' acquittal

on the charge of abduction could not be

challenged and that the evidence must be

understood in this light.

DAWSON J:  I must confess that I have great difficulty

in understanding what that means. I mean you let

the evidence in. Obviously the acquittal means the jury did not accept it. What does it mean,

the second j~y disregard it or does not disregard it? Put that in- the facts of this case.

MR HIDDEN:  Your Honour, might I respectfully confess to

a similar difficultyZ

WILSON J:  The problem is you do not know what the jury

did.

MR HIDDEN:	Well, of course, Your Honour. As I understand the reasoning of Their Honours that is why the
evidence is admissible o:the second ti.-me: round because
we can never know what the basis of the acquittal
was, we can never know what findings of fact led
to it.
WILSON J:	Yes.
DAWSON J:	Because it is impossible truncate the story,

that is why it is admissible. I mean,.if it is

a case of abduction and rape, if you leave out the

evidence of abduction you do not know how the girl -

the others got there.

MR HIDDEN:  Yes.

(Continued on page 27)

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DAWSON J:  But if there was an acquittal on the abduction

count, how do you view that evidence? What does

the direction mean?

MR HIDDEN: ·Yes. Well -

DAWSON J: Or take this case:  if you get a direction of

that sort, is the jury required to conclude that

although the evidence is led to prove the infliction

of bodily harm nevertheless it did not occur.

MR HIDDEN:  Yes, Your Honour. I appreciate that that is

the difficulty. I suppose another way of going

about it, but it would not be consistent with the

decision of this Court in STOREY, is to allow the
evidence to be led and there is to be simply no

reference to the previous proceedings or any

acquittal in respect of it. But clearly, this

Court was of the view that in STOREY that is

undesirable and is unfair to the accused.

BRENNAN J: Well, if evidence of the acquittal is led then

the jury, I suppose, has proffered to it some ground

on which it ought to be cautious about accepting

the same evidence in the trial before it.

MR HIDDEN:  Yes, Your Honour. I suppose the difficulty

though is what reason can be proffered?

WILSON J:  The absence of intent which would form no'part

of the new trial. The blows were simply the narrative

of what occurred during the intercourse and as
going, no doubt, to the issue of consent, but quite

irrelevant to the intent with which the blow was

administered.

MR HIDDEN:  Yes, Your Honour, that is so. But the difficulty,

I suppose, is this, and I assume this was the difficulty with which Their Honours wer~ dealing

in STOREY: the absence of the intent seems like

a reason for the acquittals but we do not know

that it was and there is no way we. will ever know

that it was.

WILSON J:	But you leave it to the jury, apparently?
MR HIDDEN:	Yes. Obviou~fy, Your Honours, on the retrial

no such intent would be suggested. Mr Justice Aickin,

Your Honours, in STOREY at page 424, said this -

at about point 7 of the page, in the middle of the

paragraph:

The giving of full effect to the acquittal

does not in my opinion require that evidence given at the previous trial must necessarily be excluded because it might, in the absence

C2Tl8/l/AC	27	6/12/88
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of explanation, suggest to the jury that the

accused was guilty of an offence of which he had been acquitted. In this respect I

agree with the views expressed by my brother

Mason.

A little later His Honour said:

I respectfully agree that the requirements

of res judicata in this sense are not

inconsistent with the admission of the evidence

so long as it is made clear to the jury that

the prior acquittal cannot be challenged and
that the evidence must not be taken as showing

or proving guilt on that prior charge.

His Honour goes on, in the first complete paragraph

on page 425:

It will in every case necessarily depend

upon the particular circumstances whether

such evidence may be given without the jury

thinking that it is invited to overturn the

previous acquittal. Where the evidence would

involve a risk of prejudice which cannot be

eliminated by a proper direction no doubt

it should be rejected on general grounds.

Now, Your Honours, we refer to this matter as no

more than another difficulty which would have to be faced in the retrial and it cannot be put any

higher than that. A judge on the retrial would

have to determine whether the evidence ought be

admitted at all - the evidence giving rise to

counts 2 and 3 - and in that regard would have~

to determine how much violence would be done to
the narration of the prosecutrix by rejecting it.

Alternatively, having admitted it, it would seem that His Honour would be bound by the decision

of this Court in STOREY to give a direction about

it and a direction which, we would respectfully

submit, must be very difficult for a jury to

Tl8 understand.

Your Honours, those are our submissions,

if the Court pleases.

WILSON J:  Thank you, Mr Hidden. The Court will retire for

a moment to consider,., what course it should take.

AT 11.29 AM SHORT ADJOURNMENT

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UPON RESUMING AT 11.45 PM

WILSON J: The Court need not trouble you, Mr Gray.

MR GRAY:	May it please the Court.
WILSON J:	On the material before the Court it appears to us

that accepting the decision of the Court of Criminal

Appeal in the applicant's favour on the first question of the wrongful exclusion of evidence, the appropriate order was an order that there be a new trial leaving

it to the Director of Public Prosecutions to decide

whether a new trial should actually take place. That

is the order which the Court of Criminal Appeal in

fact made and in these circumstances we do not

consider that special leave to appeal from that

order should be granted. We would grant an extension

of time in which to bring the application, but the

application must nevertheless be refused.

MR GRAY:  May it please the Court.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

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