Conn v The Queen

[2005] HCATrans 453

[2005] HCATrans 453

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B80 of 2004

B e t w e e n -

WAYNE TREVOR CONN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON THURSDAY, 23 JUNE 2005, AT 10.19 AM

Copyright in the High Court of Australia

MR M.J. BYRNE, QC:   May the Court please, I appear for the applicant.  (instructed by Burns Lawyers)

MS S.G. BAIN:   I appear for the respondent, if the Court pleases.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Byrne.

MR BYRNE:   As your Honours would be aware, the applicant was indicted on two counts of rape.  He was acquitted on both those counts, also attempted rape, also incest, but was found guilty of attempted incest.  This is a case in which the learned trial judge at application book 7, line 25 properly assessed the case and advised the jury that:

the Crown relies very heavily upon the truthfulness and/or reliability of the complainant’s evidence –

Indeed, due to the nature of the allegations made by the complainant in the course of her evidence, the trial judge in a candid discussion with counsel observed – and this is application book 30 – that the Crown case was really one of “rape or nothing”.  The complainant’s evidence, however, in my submission, was shown to be self‑contradictory, contradicted directly by independent persons to whom she claimed to have complained and quite unequivocal on the issue of penetration.  In that situation it was, in my respectful submission, not appropriate for the Court of Appeal to reason as it did.  If I can take your Honours to application book 76, this is paragraph [39] of the judgment of her Honour Justice Mullins who gave the judgment for the Court of Appeal, in the third sentence of that paragraph her Honour said:

Although the prosecution relied on the complainant’s evidence that penetration did occur, there were discrepancies in the complainant’s evidence as to the degree of penetration and the time for which it lasted on each occasion.

Assuming that to be correct for the purposes of argument, there was no doubt that there was indeed penetration and for a time.  It was not appropriate, in my submission, to reason in that way to say because there were discrepancies about degree and time one could then go to paragraph [41] and say it was open to the jury to be satisfied beyond a reasonable doubt as to attempted incest.

This is a case which we say should have been approached as was suggested in M v The Queen in the passage which has been set out in paragraph 14 of the outline, application book 88, where:

the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force.

In other words, the primary submission is that it is not sufficient for a Court of Appeal to seek to find a basis which is contrary to the clear and rejected evidence of the complainant as to penetration for concluding that a jury could properly have convicted on another lesser count.  Here the court on the demonstrated discrepancies should, it is submitted, have found the verdicts to be unsafe and set aside the convictions.  Apart from that, we rely on the written outline.

GUMMOW J:   Yes, what do you say, Ms Bain, as to the criticism of the judgment at paragraph [39] on page 76, which is then linked to [41]? 

MS BAIN:   The evidence in this case was one where the complainant’s evidence was such that the alternative verdicts that were left were not only left in a technical sense but in a general sense in which the evidence actually fell from the complainant.  The evidence of the complainant which is not referred to in detail in paragraph [39] was such that it would be properly within the scope of the jury to have a reasonable doubt about whether or not penetration had actually occurred, and that is detailed of course more in the evidence of the transcript than it is referred to in the judgment itself. 

In fact, throughout the course of the summing up the trial judge referred the jury in taking the jury to the various alternative verdicts that were open to various parts of the evidence which may or may not have caused the jury to have a doubt about the actual act of penetration itself.  So it was a live issue and a real issue for the jury to consider.  The very fact that those alternatives of attempted rape and attempted incest were left to the jury reflect that the complainant’s evidence with respect to penetration was such that it was properly left to the jury in that way.

GUMMOW J:   Thank you.  Yes, Mr Byrne, is there anything you want to say?

MR BYRNE:   No thank you, your Honour.

GUMMOW J:   Thank you.  There are insufficient prospects of success in this matter to warrant a grant of special leave, and special leave is refused.

AT 10.25 AM THE MATTER WAS CONCLUDED