Casey v The Queen

[1995] HCATrans 109

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P6 of 1995

B e t w e e n -

ROBERT STANLEY CASEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON FRIDAY, 5 MAY 1995, AT 1.55 PM

Copyright in the High Court of Australia

MR T.F. PERCY:   May it please your Honours, I appear in this matter for the applicant.  (instructed by Gunning)

MR J.R. McKECHNIE, QC:   May it please the Court, I appear in this matter for the respondent, with my learned friend, MS J A GIRDHAM.  (instructed by the Director of Public Prosecutions (Western Australia))

BRENNAN CJ:   Thank you.

MR PERCY:   Your Honour, the first ground of appeal in this matter involves the nature and scope of the discretion afforded to a trial judge to exclude relevant evidence if its prejudicial value outweighs its probative value, and what precisely governs the proper exercise of that discretion.

It is submitted on behalf of the applicant in this case that the Court of Criminal Appeal was in error in holding that it was open in this case, on the facts of the case, to call such evidence as the Crown saw fit to prove the accused’s culpability.  What we would say simply in that regard is that in order to ensure a fair trial when considering questions of this nature, the trial judge must determine to what extent and what evidence can properly be led.  As your Honours will be aware, this concerned evidence that was sought to be adduced by the Crown in rebuttal of a specific defence.  Unfortunately, that particular evidence had various other characteristics in this case and what we would say is that it was incumbent upon the learned trial judge, rather than simply giving the Crown a free hand as to what evidence it proposed to call, to evaluate that and assess it before it was allowed to be called, and to weigh that against the nature of the defence - in particular the strength of the defence - and the strength of the evidence that was proposed to be called on behalf of the Crown in rebuttal of the specific defence.

TOOHEY J:   What are you saying, Mr Percy, that if the only evidence available to the Crown of previous sexual conduct involved the apparent commission of an offence, that that evidence should not have been available to the Crown?

MR PERCY:   No, we would say if that was the only evidence available then obviously it would go to the jury but with a strong warning.  Here we say it was a different situation.  There was other evidence which would quite clearly have rebutted the defence but did not have the offensive character of that which the learned trial judge subsequently allowed.

TOOHEY J:   Does that other evidence appear from the material before us?

MR PERCY:   Yes, it does, your Honour.  There was evidence of a doctor who examined the applicant when he was in prison who was able to say that in his view there was no doubt that he was capable of the offences in question.

BRENNAN CJ:   That is an opinion though as distinct from the fact that it was proved by the other evidence.

MR PERCY:   In addition to that, your Honour, there was evidence called at the preliminary hearing from the applicant’s wife at the time who said that he was capable of full sexual intercourse at any given time during the period of the alleged offences and that again would not have had the serious offensive characteristics of bad character, propensity which went to the jury in this case by the calling of the other daughters.

BRENNAN CJ:   Was she compellable?

MR PERCY:   At that stage she was compellable, yes.

BRENNAN CJ:   Why, is a wife compellable against a husband, is she?

MR PERCY:   There have been changes to the Evidence Act in this State which would have made it so at the time that this trial was heard.  She was named on the back of the indictment as well.  I am not sure that that forms part of the materials here, but I do have a copy of the indictment and, in addition, she was called at the preliminary hearing.  That evidence does appear in the supplementary materials which are attached to the affidavit of my instructing solicitor which was filed in this matter some time after the original materials.

So what is said in this case is that it was excessive to call four daughters, all of whom could give this evidence, in rebuttal of a specific defence which it appeared from the submissions that were made to the judge before the trial actually started was going to be unsupported by any real medical evidence of his own and the evidence that could have been called was the doctor, the applicant’s wife and that would have sufficed to effectively and completely extinguish the specific defence raised by the applicant.  We would say to go further made it extremely unfair in all the circumstances of the case and that there was a duty on the learned trial judge to regulate what evidence he was going to allow rather than to simply allow the Crown to call whatever evidence they wanted and, indeed, that was, in fact, his ruling.  More particularly, that ruling appears to have been adopted by Mr Justice Scott at page 31 of the application book in his judgment when he was dealing with the question and he in fact said this:

Whilst it may be thought excessive for the Crown to have called so many witnesses to testify to the same point, the difficulty from the Crown’s point of view was that if the jury did not accept all, or some of the witnesses that the Crown called, then it was necessary for the Crown to put before the jury some evidence which the jury accepted as to the applicant’s capabilities of having sexual intercourse.  As such, in my opinion -

this is the offensive part in the applicant’s respectful submission -

it was open to the Crown on the facts of this case to call such evidence as the Crown saw fit to prove the accused’s capability -

I think that should read “culpability”, or it may be capability -

in that regard.

So what we would say is that in a case where there was no other evidence other than the evidence of previous sexual offences, then so be it:  a strong warning could be given.  There was no other way it could be tackled.  But in a case where there is other evidence which has the same effect and same probative value, we would say, without the additional highly prejudicial evidence of the four defiled daughters, we would say that that course ought to be adopted and that the problem, in so far as the Court of Criminal Appeal and the trial judge was concerned, was that they simply gave the Crown a free hand.  They did not exercise any regulatory function in relation to what evidence could be called.

TOOHEY J:   I take it your challenge is to the calling of the evidence?  The evidence having been called, do you challenge the judge’s direction as to how the jury should treat that evidence?

MR PERCY:   We say that the judge’s direction would appear to have been appropriate, but the damage at that stage had been done.  We would say it is one of those circumstances where no direction could ever have cured the terribly prejudicial value of those four extra witnesses.  We do not say there is anything in the judge’s direction; he certainly gave the correct direction.  It was simply his ruling to allow the Crown a free hand in calling them at all.

The second ground of appeal, your Honours, concerns the question of whether there ought to have been a permanent stay in this matter.  The history of the matter is set out in the materials and, indeed, it is an unusual one.  In essence it involved a situation where, after his release from prison, some two and a half years afterwards he was arrested again.  The question of a permanent stay was sought on the basis, firstly, that he was unable to locate any historical medical records to support his defence of impotency; and, secondly, that the delay by the Crown in bringing the charge was not simply a question of the mere effluxion of time, but it was a situation where they had in fact known and been apprised of this particular offence at the time the original charges were brought.

That appears to have been addressed incorrectly in the judgment of Mr Justice Rowland who indicated at the time the other matters were brought that these matters were not known.  That in fact is not correct.  From the matters which appear in the supplementary materials in the affidavit of my instructing solicitor, it can be seen that the complaints by the complainant in this matter were known to the authorities before the first set of charges were in fact ever dealt with.

So, we would say it is not simply a question, as it often is in these type of sexual assault cases, of the matters not coming to light for a long time.  We say there is an added difficulty here and a palpable problem for any accused person where he is dealt with for one set of offences, another set of offences is known of but not dealt with until after his release from prison.  It is then sought to deal with him in that regard.

So, what we would say, with respect, in this case, is that it was so inherently unfair that no warning from the trial judge along the lines of Longman could do anything to relieve against the unfair consequences of the second trial.  It was a trial which need not have taken place on its own, apart from the other ones which took place some considerable time before, and we would say that it was a situation that caused many palpable problems from the defence point of view, not the least of which being the gathering and preparation of the medical records.

In essence, what we say is that in Jago’s Case, this Court held that a permanent stay of proceedings may be granted in cases where the applicant suffers actual, if not presumptive, prejudice and where the delay on the part of the Crown would render the trial so unfair as to bring the administration of justice into disrepute.  What we say to that is precisely what has happened in this case.  How could it ever be said to be fair that the trial of a particular set of charges, the complaint for which was made prior to another set of charges involving essentially the same parties, could take place some time thereafter. 

What we would say is that the relevant factors are set out in the judgment of Mr Justice Deane in Jago who says that they include the length of the trial, the reasons given by the prosecution to explain or justify the delay, the accused’s responsibility and past attitude to the delay, and the proven or likely prejudice to the accused.  We would say all of those matters are obviously evident in this particular case.

BRENNAN CJ:   What was the prejudice?

MR PERCY:   The prejudice to the accused?

BRENNAN CJ:   Yes.

MR PERCY:   We would say, your Honour, it was three-fold:  firstly, trying to organise evidence for a defence so long after the event ‑ that is a typical Longman- type situation;  secondly, specifically he was unable to get together his medical records in relation to his defence of impossibility or incapability.  As your Honours can see, he had a vasectomy in 1962 and, trying to muster that type of evidence so long after the fact, was particularly difficult for him.

BRENNAN CJ:   That runs rather counter to your first argument, does it not?

MR PERCY:   The arguments are quite separate, your Honour.

BRENNAN CJ:   It is hard to run the two in tandem.

MR PERCY:   Quite, your Honour.  But what we say is that each of them need to be given proper consideration in the event that one is not successful.  So what we say is, thirdly ‑ ‑ ‑

TOOHEY J:   Could I just put this to you.  In refusing the application for a stay, if you look at page 24 of the application book, Justice White, at about line D, says:

It is not before me as to what those records related to or what significance they might or might not have in relation to the present matter.

These are the records, apparently, that the applicant was complaining had been destroyed.

MR PERCY:   I am not sure what his Honour might have expected from counsel in that regard.  It was made known to him that it would be asserted that there was an operation conducted in 1962.  That was certainly put before him and it appears in the transcript, that as a result of that part of his genitals had been removed which rendered him incapable of the conduct which was complained of and it was sought to contact doctors who would be able to confirm that, or otherwise.  I am not sure quite what his Honour was saying was not put before him.  In our respectful submission, his Honour knew what was sought to be put but it was simply because there was a dearth of any evidence because of the effluxion of time, then he found himself in that position. 

What we say in this matter is that it is a stronger case, in essence, than Jago because the delay not only was the fault of the complainant but the authorities as well, and we say it was the fault of the Crown.  The failure to proceed with a complaint which was known, we would say, is a very serious matter, not only in terms of the repercussions in the event of a conviction.  One may well have expected some degree of totality or concurrency in relation to the sentences which would have been posed rather than to isolate them.  Had he been dealt with these matters back in 1985 and 1986 when the other matters were dealt with, he may well have been ultimately dealt with in a much different way, quite apart from the considerations of the preparation of his case and the other attendant prejudice which we say that he suffered. 

We would say it was not due to his part - he had never left the jurisdiction, for example - and it was nothing to do with his contribution.  We would say that that really was a situation which would have the effect of bringing the general administration of justice into disrepute, if it could be said that this Court was prepared to give its imprimatur to the way in which this prosecution was conducted., that is, that a complaint was quite clearly known about.  In the discretion of the authorities they proceeded with other complaints, let the prisoner serve his time and, in effect, come out, commence his rehabilitation, take him away again for a complaint which they had known about and could have prosecuted without any problem a very long time ago, we would say is an extremely unfortunate situation and the sort, we would respectfully submit, which was envisaged in Jago as being the type that is likely to bring the administration of justice into disrespect.  If it please your Honours, those are our submissions.

BRENNAN CJ:   Thank you, Mr Percy.  We need not trouble you, Mr McKechnie. 

The decision of the Court of Criminal Appeal on the issue of the admissibility of evidence does not raise a question of sufficient general public importance to justify a grant of special leave.  The application for a stay of the proceedings was without prospects of success.  Accordingly, special leave is refused. 

AT 2.13 PM THE MATTER WAS CONCLUDED