Crozier v The Queen

[1996] HCATrans 362

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S68 of 1996

B e t w e e n -

JOHN BARRY CROZIER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ
TOOHEY J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 2 DECEMBER 1996, AT 10.26 AM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant with my learned friend, MR S.J. ODGERS.  (instructed by T. Murphy, General Manager, Legal Aid Commissioner of New South Wales)

MR G.S. HOSKING, SC:   May it please, your Honours, I appear for the respondent with my learned friend, MR A.M. BLACKMORE.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales)

BRENNAN CJ:   Yes, Mr Norrish.

MR NORRISH:   If your Honours please, the special leave issues in this application raise for consideration by this Court, in our submission, two important issues.  Firstly, application is sought to clarify the proper principles applicable where it is said that verdicts are unreasonable because of inconsistency with other verdicts returned by the same jury and, secondly, to ask this Court to consider whether the principles set down in M v The Queen require refinement to meet the special circumstances that arise when a Court of Criminal Appeal is considering whether a verdict is unsafe and unsatisfactory by reason of inconsistency.

If I could take your Honours to M v The Queen (1994) 181 CLR 487. There the Court was considering the operation of section 6 of the Criminal Appeal Act 1912, and the proper tests to be applied when determining a verdict as unsafe and unsatisfactory by reason of it being unreasonable, or not available on the evidence. At page 493, the Court posed the proper question to be applied by a Court of Criminal Appeal when considering an appeal of this nature, and it said at the beginning of the last paragraph of the judgment at page 493:

Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

In our submission, a separate question arises when it is said that a verdict is unsafe and unsatisfactory by reason of inconsistency.

TOOHEY J:   What is the inconsistency relied up here, Mr Norrish?  Is it twofold; the acquittal of the other accused and the acquittal of your client on one of the two charges?

MR NORRISH:   Solely on the acquittal of the co‑accused.  It was open to the jury, in relation to the matter, to acquit the accused on the kidnapping charge, but still find him guilty on the other charge.  By that I mean, of course, there was no inconsistency between the returning of those two verdicts.  The principle issue in this particular matter was whether, by reason of the verdict of not guilty in relation to the co‑accused, the jury ought to have returned a verdict of not guilty in relation to the applicant.

In our submission, the question that the Court of Criminal Appeal should have asked was whether the verdict of not guilty in respect of one count - that is, the count relating to the co‑accused ‑ necessarily meant that it was not reasonably open to return a verdict of guilty on the other count.  In our submission, putting that test in another way, given a verdict of not guilty, was there a reasonable explanation for the verdict of guilty?  In our submission, this issue has not been fully considered by the Court of Criminal Appeal.       The leading judgments dealing with the issue of “unsafe and unsatisfactory” generally turn upon either the reasonableness of the verdict, having regard to the evidence, or, alternatively, whether there has been some irregularity in the trial such as to render the verdict of guilty unsafe and unsatisfactory.

TOOHEY J:   How do you put this case as in some sort of different or special position?

MR NORRISH:   Well, because is raises for the Court’s consideration the issue of the proper test or question to be asked where the issue turns upon what is said to be clear inconsistency of verdict, having regard to the evidence in the trial.  In our submission, Justice Grove asked the wrong question.  What he asked was whether it was rationally open to be satisfied as to the guilt of the applicant, but a doubt exist in relation to the guilt of the co‑accused.  In our submission, that question turns the test in M on its head and leaves, for the Court of Criminal Appeal, the wrong issue to address in determining whether the verdict is unreasonable by reason of inconsistency.

BRENNAN CJ:   Why does it do that?

MR NORRISH:   Because the unreasonableness of the verdict of guilty is dependent upon the verdict of the jury of not guilty in relation to the co‑accused.  That of itself, in a case where the evidence, as in this case, is substantially the same against both accused, requires the Court to determine the reasonableness of the verdict of guilty; not to determine the reasonableness of the verdict of not guilty, which is what the Court of Criminal Appeal did in this particular case.  The appeal to the Court of Criminal Appeal comes forward on the basis that the verdict of guilty is unreasonable, and it is unreasonable because of what the jury had determined in relation to the guilt of the co‑accused.

BRENNAN CJ:   But if the acquittal of the co‑accused has a rational foundation, then why does that acquittal throw the slightest doubt on the validity of the conviction of the accused?

MR NORRISH:   In our submission, this is a case where there was no rational explanation for the different verdicts, notwithstanding what the Crown has put in its submissions.

BRENNAN CJ:   Well, you may say that, but, I mean, if the fact is that there was a rational explanation, then there is no question of law involved, is there?

MR NORRISH:   With respect, this application proceeds on the basis that there was no rational explanation, having regard to the evidence in the trial.  If I could just briefly take your Honours to the application book and ‑ ‑ ‑

TOOHEY J:   Are you speaking of the complainant’s evidence in particular?

MR NORRISH:   Of the complainant’s evidence in particular, as it was presented to the jury and the issues that the jury had to decide.  The Crown, in its submissions, puts the proposition that there was open to the jury a rational basis to acquit the co‑accused on the basis that he may not have known that the complainant was not consenting.  In our submission, that was not a real issue in the trial, as the summing up made plain.  If I could just briefly take your Honours to that portion of the summing up at page 13 of the ‑ ‑ ‑

TOOHEY J:   But you have to do that, I think, Mr Norrish, in the context that the jury’s verdict of acquittal may amount to no more than of reasonable doubt.

MR NORRISH:   Yes, but this was a case where the Crown case was dependent upon the credibility of the complainant alleging two separate acts committed by the two accused whilst in company, that is, in the same car, in which the complainant alleged against both accused the same act having been performed and she, the complainant, resisting similarly in respect of both accused.

TOOHEY J:   But that is not all that uncommon, is it, in sexual assault cases where there is more than one accused involved, that a jury will return a verdict of guilty against one and not against the other?

MR NORRISH:   Well, when there are separate accused, of course there may transpire to be separate factual issues that arise in the case.  We say, in this particular matter, that there were not separate factual issues to be determined in the case, as the judge made plain in his summing up.  He told the jury that the issue in the case for them to determine was whether the complainant was capable of acceptance, bearing in mind both accused denied the act that she alleged against both of them.  That appears at page 13 of the application book.

BRENNAN CJ:   But the denials were in different terms, were they not?

MR NORRISH:   Yes, but the credibility of the complainant, in our submission, was not bolstered by the weight the jury would give to the respective denials of the applicant, and we say that that was an error on the part of the Court of Criminal Appeal to perceive the issue.

BRENNAN CJ:   It may not have been bolstered by it, but the injection of a doubt in the mind of the jury may have been affected by the terms in which the denials were made.

MR NORRISH:   Well, the denials were made in similar terms.  Both accused were interviewed by police.

BRENNAN CJ:   Not quite.  The co‑accused asked a specific question with respect to his shoes.

MR NORRISH:   Yes, because he denied having been in the back of the car.

BRENNAN CJ:   That is right, having denied it continually.  And the jury might have thought, “Well, if at the time that he asked that question he is looking for them to find some forensic evidence to support it and he knows very well that they cannot find it, then we would have a reasonable doubt about him.”

MR NORRISH:   Your Honour, in our submission, that was the error that the Court of Criminal Appeal showed in its judgment, because this was a case that did not depend, in our submission, upon the weight to be given to the denial; it depended upon the credibility to be given to the complainant given the evidence that she gave in support of the two separate counts against each of the accused.

BRENNAN CJ:   But there would have been a direction by the trial judge to consider each case against each accused separately.

MR NORRISH:   He did, your Honour, and, in fact, he told the jury that, in fact - I think it is at page 9 of the application book - that there was, indeed, in common sense no reason for them “to return the same verdict in respect of each individual accused.”

TOOHEY J:   That is part of the difficulty, is it not?  If the two accused had been charged each of being an accessory to the other, an argument of inconsistency might be stronger.  But when you have got two accused who are charged separately and by virtue of their own separate conduct, it is not all that hard to see that a jury might have some doubt in relation to one of them and not the other.

MR NORRISH:   Well, except that in so far as the evidence in relation to each count was, in our submission, identical, the issues for the jury to consider in relation to both accused was identical, albeit that the co‑accused had the opportunity of being able to say that, “I was not in the back of the car,” whereas the applicant admitted that he was in the back of the car, and that the co‑accused had invited the police to find some information or evidence that might link him to the rear of the motor vehicle.          At page 14 of the application book, if I could just briefly refer your Honour to one aspect of the summing up, at line 10, the trial judge said this in his summing up:

The Crown asks you to infer from other facts which it has set out to prove that he, or they, and each of them did indeed know, that is, that they and each of them must have known.

And I add the words “she was not consenting”.  This is the alternative basis upon which the Crown submits it was open to the jury to acquit the co‑accused.  His Honour went on to say, however, at line 16:

If you find beyond reasonable doubt that she struggled, to use a broad term for the evidence, you would be entitled to conclude this was such an obvious sign of the absence of consent that he -

and that “he” refers to both accused -

could not have helped but know it and that applies both the second and third counts.

And the second and the third counts were the two counts relating to each of the accused.  In the Crown’s submissions, the Crown suggests that alternative basis which would explain, in a rational way, the difference in the verdicts.  But contrary to what the Crown submits in its submissions, and contrary to the summary that the trial judge made of the evidence in his summing up, the complainant said in relation to the co‑accused that after he allegedly attempted to put his penis into her mouth, her evidence was, and I quote - it is at page 4 of our outline of submissions, in paragraph 2.4:

“(I was) trying to keep my mouth shut and gagging and hitting and pushing”.

That was precisely what the complainant said was her reaction to the applicant, except for the additional evidence she gave that she told the applicant not to do it, and she told the applicant not to do it whilst the co‑accused was sitting in the front of the car.  The reason I take your Honours to that aspect of the matter is that this was a case where the evidence in proof of guilt depended upon the credibility of the complainant.  It was almost identical in relation to both accused, and the real issue for the jury to consider as it was left for the jury was the issue of whether the complainant was sexually assaulted or not; not the issue of whether the applicant knew she was consenting, or whether the co‑accused knew she was consenting or not.

Now, in our submission, the judgment of the Court of Criminal Appeal, at page 44 - and we cited it in the outline of submissions, particularly at line 35 - involves the gravamen of the basis upon which the applicant’s appeal against conviction was defeated, at least in relation to the overall issue.  Their Honours said - this is in the judgment of Justice Grove, at application book page 44, line 35:

It is clear that there was no inconsistency in the acquittal of Fitzgerald and the conviction of the Appellant when it is appreciated that the Crown cases depended upon proof of their separate acts. 

I interpose there by simply saying that separate acts, but evidence given in identical terms, in respect of both matters, dependent upon the credibility of the complainant.

BRENNAN CJ:   By a complainant who was “a bit spun out” as to what was actually going on.

MR NORRISH:   Yes, your Honour.  But that was a matter that applied equally in relation to both accused.

BRENNAN CJ:   Of course, yes.

MR NORRISH:   Well, if I just might briefly read on.  His Honour said:

It was rationally open to the jury to find - particularly having regard to the state in which the complainant was observed by her brother when she returned home - that she could be believed when she claimed she had been the victim of an attack of a sexual nature by the Appellant but a doubt exist as to whether Fitzgerald had done so.

I interpose by saying that reasoning is, in our submission, faulty, because her state, if it be available to the jury as bolstering her credibility, was relevant to her allegations against both accused, and not solely confinable or limited to the allegation against the applicant.  His Honour went on to say:

It can be borne in mind that on her description he remained -

that is the co‑accused -

entirely passive during the attack by the Appellant and they may well have attributed sufficient credibility to his denial in his unsworn statement to raise a doubt about the second event by reason of his unequivocal assertion when first confronted by police that he never

left the front seat and his effective challenge to them to acquire objective evidence that he had ever been in the back.

I say, on behalf of the applicant, two things in relation to that passage.  Firstly, it was the case, on the complainant’s evidence, that the applicant himself was passive during what was alleged to be the second act performed by the co‑accused.  As to the issue of whether there could be greater weight given to the co‑accused’s denial, as we put in our outline of submissions, it was wrong for the court to rely upon the greater weight to be given to a denial as bolstering the credibility of the complainant which was obviously, by reason of the acquittal of the co‑accused, found to be suspect in relation to the evidence she gave alleging sexual misconduct by him.

That brings us back, in our application, to the issue that when one analyses the judgment of the court, the question asked by the court was the wrong question.  The court went looking for reasons for the co‑accused to be found not guilty instead of determining whether, given the verdict of not guilty in relation to the co‑accused, was there a proper or rational basis for finding the applicant guilty.  In our submission, that is the wrong test, and there is an opportunity in this application for the Court to take the issue of proper principle to be applied in a matter of inconsistency further and to, in our submission, state proper principles and proper questions for a Court of Criminal Appeal to apply when considering such a situation.  That is our application, if your Honours please.

BRENNAN CJ:   Thank you, Mr Norrish.  We need not trouble you, Mr Hosking.

The application does not enjoy sufficient prospects of success on appeal to warrant a grant of special leave.  Accordingly special leave will be refused.

MR NORRISH:   As your Honours please.

AT 10.45 AM THE MATTER WAS CONCLUDED