D'Arcy v The Queen

[2002] HCATrans 257

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B74 of 2001

B e t w e e n -

WILLIAM THEODORE D’ARCY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 3.34 PM

Copyright in the High Court of Australia

MR A.J. RAFTER:  Your Honours, I appear with, MR A.F. MAHER, for the applicant.  (instructed by Forest Lake Lawyers)

MR B.G. CAMPBELL:  May it please the Court, I appear for the respondent.  (instructed by the Director of Public Prosecutions (Queensland))

McHUGH J:   Yes, Mr Rafter.

MR RAFTER:   Your Honours, the application for special leave is one day out of time.  The circumstances are explained in the affidavit in the book.

McHUGH J:   Yes, well, I do not think you need worry about that.  You might go to the merits of your application.

MR RAFTER:   In addition, there is an amended application for special leave that was filed on 24 June.  The amended application adds one ground, that is, ground (v).  I understand there is no opposition by my learned friend to that.

In my respectful submission, the case raises two points of general principle that are of significant importance, that is, ground (i) the Jury Act point and ground (v), the new point added in the amended application for special leave.  The three remaining points relate to the interests of justice in this particular case.  Now, can I deal with ground (i) then move to (v) and then perhaps deal with grounds (ii), (iii) and (iv) together.

So far as the Jury Act point is concerned, the trial judge’s decision to disallow the questioning of jurors selected to try the case and the reserve jurors, is at pages 5 to 8 of the application book.  The essential reasons for refusing the application, although the Crown did not oppose it, the trial judge considered that the nature of the media criticism of the applicant was that often made of members of Parliament and often diminished over time and the publications here were over a significant period of time, and moreover the media criticism was unrelated to the actual charges, and the trial judge was of the view that the nature of the proposed questions would only serve to remind the jury of the criticisms that had been made.

HAYNE J:   What is the consequence of the complaint you now make, that the accused did not have a trial before a properly constituted jury?

MR RAFTER:   He did not have a trial where the jury was selected in accordance with a procedure that was available to him and that was open in the circumstances of this particular case, thereby rendering the proceedings a miscarriage of justice.

HAYNE J:   The trial not being before a jury therefore properly constituted?

MR RAFTER:   Yes.  The Jury Act provision itself is section 47.  Can I pass copies of the provision to your Honours?  The provision states in subsection (1) that if the judge presiding at the trial is satisfied on an application by a party that:

there are special reasons for inquiry under the section, the judge may authorise the questioning of persons selected to serve as jurors and the reserve jurors when the court reaches the final stage of the jury selection process.

Now, there follows after subsection (1) an example, and this case is as good a vehicle to ventilate the point, in my submission, because the example actually given is:

Prejudicial pre-trial publicity may be a special reason for questioning persons selected as jurors or reserve jurors in the final stage.

HAYNE J:   It is not just captious questioning, Mr Rafter.  What is the status of an example given in an Act?

MR RAFTER:   In Queensland?

HAYNE J:   Yes.

MR RAFTER:   In section 14D of the Acts Interpretation Act.

HAYNE J:   It is something we can take to account, is it?

MR RAFTER:   It is something to be taken into account.  If the example and the statutory provision are in conflict, the statutory provision naturally prevails.  An example can extend the meaning and that may well be the upshot here.  The section says:

If an Act includes an example of the operation of a provision:

(a) the example is not exhaustive; and

(b) the example does not limit, but may extend, the meaning of the provision –

and then subsection (c) says what I said earlier, if they are inconsistent.  So, as I say, this case falls within the example actually given.               So far as the actual questions are concerned, in subsection (3) it provides that:

the applicant may suggest –

as occurred here –

the form of questions –

and the judge may decide, questions that are to be put to persons selected to serve as jurors or reserve jurors.

Here the questions were put forward.  The judge thought that they would serve only to remind the jury of the adverse matters that have been the subject of media criticism of the applicant.  But subsection (4) says:

The judge must put the questions in a way decided by the judge.

That is to say, the applicant put forward the questions that he wanted asked of the members of the jury, but the judge was entitled to revise those and ask different questions or modified questions if he decided that that was what ought to happen.

HAYNE J:   Now all of this being directed, as subsections (5) and (6) reveal, to determining whether the juror is impartial?

MR RAFTER:   Impartial.

HAYNE J:   Now, in empanelling a jury in Queensland, does the judge customarily, and in this case, did the judge speak to the panel telling them the nature of the trial, the accused, et cetera, witnesses to be called, and then asking any juror who felt that he or she was unable to render a true verdict according to oath, to indicate?

MR RAFTER:   The answer to your Honour’s question is that is standard practice in Queensland and it was followed in this particular case and no juror came forward to say that they were unable to be impartial as between the applicant and the Crown.

HAYNE J:   They are all then sworn?

MR RAFTER:   That is right – well, by that stage ‑ ‑ ‑

HAYNE J:   Why should we go behind that course of events?

MR RAFTER:   The reasons are these; this is a specific statutory provision that allows for this type of case whether as being significant adverse publicity to an accused person.  The usual procedure that is followed has limitations in that it is addressed to the group of jurors, the group of 12 plus the reserves, 14 in total in this particular case, including the two reserve jurors.

HAYNE J:   Well, it is usually addressed to the panel?

MR RAFTER:   Sorry, in Queensland, it is ordinarily done after the jury has been chosen, and I think that is the way it was done in this particular case, although there are some instances where the judge will have the prosecutor read the names to the entire panel.  By far and away the procedure that is followed in most cases is to address the people actually selected and if one of them indicates they are unable to be impartial they are discharged and a replacement juror selected, and after that process is gone through, then the accused person is put in the charge of the jury to try the case.

If one addresses the whole panel or the group selected to try the case, each individual does not have to confront these important questions individually.  There is a risk in the collective approach that a person may not confront the actual questions.

HAYNE J:   Practices vary State to State, Mr Rafter.

MR RAFTER:   Well, that may be.  The mechanism in section 47(1) is a little bit different to the provisions in New South Wales and Victoria that do allow challenge for cause.  The Queensland Jury Act has set up this procedure that is allowed to be followed for cases and prejudicial pre-trial publicity is one of the examples given.  If the procedure is not to be utilised in a case like this then it is hard to see that it would ever have any application and it must be there for a reason, in my respectful submission.

McHUGH J:   It is a matter for the judge’s discretion.  You have to show the judge’s discretion miscarried.

MR RAFTER:   The argument is that the conclusion was incorrect and that demonstrates the miscarriage, and the reasons for that are – the statutory example given fits this case.  The Crown did not oppose the application, and it was not disputed that it was one involving prejudicial pre-trial publicity.  That is all I have to say on the first point.  Could I go to ground (v).  The direction actually given is at page 31 of the application book.

Now, it is important before I go to that to emphasise that this is a case where the Crown did not put up similar fact evidence.  The Crown urged the trial judge to direct the jury to consider the case of each count separately, or at least the case involving each complainant separately.  So there was no case put forward by the prosecution that complainants two, three and four ‑ that their evidence was admissible when considering complainant number one.

Now, against that background, the judge told the jury, at application book page 31, line 9:

there are a number of factors I want to point to that you must look at when considering and weighing up the evidence of the complainants, bearing in mind that warning I have just given you.  There is no suggestion of any collusion between any one of them.  There is no suggestion they got their heads together.  The complaints were only made when the police approached them.

And I interpolate there, that the Crown had led that from each complainant in-chief that they had given their statements when approached by the police:

It is not for you to engage in conjecture as to why the police may have approached them but the fact remains only when approached did they make these serious complaints against the accused independently of each other.

My submission is that that direction had the effect of bolstering each of the complainant’s cases by reference to the fact that the complaints were made independently of one another, and that the police had first approached each individual complainant.

Now, that sort of reasoning might have some substance in a similar facts case but this was not put forward as such.  The direction seriously undermined the nature of the case put forward by the Crown which was that the cases were to be considered separately, and that direction at page 31 followed very shortly after the Longman warning at pages 29 to 30 and had the potential to undermine that direction as well.  In the Court of Appeal, the President, at page 71 ‑ ‑ ‑

HAYNE J:   I just wonder whether the premise of that aspect of your argument is right, to tell the jury, “Listen, these people only complained when the police solicited a complaint from them” may be seen as perhaps cutting against the evidence of the complainant rather than as going in favour of the complainant, may it not, or am I just being unduly cynical?

MR RAFTER:   Well, not necessarily.  I suppose both are open, but in the manner in which this was put forward, that is, that each had made a statement and each made serious complaints independently of one another, and the absence of a suggestion they had got their heads together, the overall effect of the summing up in that section is in favour of the Crown, in my respectful submission – the overall effect of it.

HAYNE J:   And this case stood or fell, did not it, on whether the jury accepted the complainants’ evidence?

MR RAFTER:   It did.  The case was largely uncorroborated, so it did stand or fall on each individual complainant’s evidence.

HAYNE J:   And you got a very strong Longman direction?

MR RAFTER:   There was a Longman warning given, but my submission is, this direction at page 31, commencing at line 9 had the effect of undermining all of that because it really invited a collective approach to say, “Well, four people came forward when approached by the police, independently of one another, no suggestion had been made of collusion” and in that way the Crown case was somewhat bolstered, and that direction seriously undermined the separate consideration direction that had been elsewhere given by the trial judge.

In Queensland, there is no provision in the Evidence Act similar to that in New South Wales relating to evidence of coincidence.  So it was, in my submission, either admissible as similar fact evidence or not, and in the circumstances here, where the Crown did not put it forward as such, then it was incorrect to invite the jury to approach the matter in that way.  In the Court of Appeal at page 71 of the application book, paragraph [18], the direction is set out, and the President at paragraph [19] regarded the use of the word, “must” as unfortunate, but was not satisfied that the direction was otherwise erroneous.

My submission is, having regard to the special dangers inherent in the conduct of sexual cases, that the error in this particular case was, indeed, erroneous.  I was going to hand up to your Honours a further extract from the appeal record book from the court below.  It is not reproduced in the application book itself.  Can I hand pages 510 to 512 from the trial transcript to your Honours just to attempt to reinforce the point that I am attempting to make.

The jury had retired on day seven of the trial and this extract comes from day eight.  At the top of page 510 the trial judge indicated the jury had a question which was indicative of the fact that they were experiencing some difficulties with the separate consideration of the various complaints.  The question was is that set out at about line 5:

“Your Honour, could you please explain in more detail how to separate into four trials when we have heard all the evidence as a whole.  What can be used from each” . . . then a PS, “We are having extreme difficulty trying to eliminate what is and what is not available.”

Now, the confusion may have stemmed from the “uncharged acts” direction that the trial judge had given the jury which was perhaps a little confusing.  I am not complaining that it is wrong because the direction was, in terms, correct but it was perhaps a little confusing, and difficulties obviously arise where there are multiple complainants and evidence in most cases, as there was here, of uncharged incidents.

The jury was directed, and the judge reinforced, on their return on page 511 at about line 48 that:

There is no suggestion that the police, for instance, told Rich of what Salmon had said or what Bury had said or what Eves had said.  As I told you yesterday, you’re here dealing with four independent complaints made by four different people.  Two police officers ‑ only when they were asked by the police officers and there is no suggestion of any collusion or getting together by those four people.

Now, the absence of a suggestion of collusion does not necessarily mean that that is not in fact what has happened.  As a defence strategy, it would be unlikely the defence would mount a case based on the suggestion of collusion if the defence was unable to make that suggestion good because it would undermine the defence ‑ ‑ ‑

HAYNE J:   There might be a few ethical rules that stood in the way, too, might there not?

MR RAFTER:   Well, there certainly would be, but if there was a suggestion of collusion, and perhaps some slight evidence of it, the defence might not bother running it for fear of it being counterproductive when it was not actually made out but, as your Honour Justice Hayne rightly says, one could not make the suggestion if there was absolutely no evidence of it.  So to then tell the jury that there is no suggestion of collusion, and to point to the oddity of four independent complaints made only when the police approached these individuals, seriously undermined the separate consideration direction that had been correctly given elsewhere.

It would be different, of course, if the Crown mounted a similar facts case.  They did not.  My submission is that the direction is incorrect and capable of producing a miscarriage of justice.  That point alone, in my respectful submission, would warrant a grant of special leave.

Just on the general difficulties with multiple complaints.  In KRM v The Queen 75 ALJR 550, your Honour Justice McHugh at 558 discussed multiple counts at paragraph 38. That is in the second column at about point D, and your Honour said:

In some cases of multiple counts, however, some feature of the evidence may create a risk that the jury will use that particular evidence or a conviction in respect of a count to reason that the accused is the kind of person who would commit the crime charged in another count or in the presentment.  If that risk exists, the judge is bound to direct the jury that they cannot use that evidence or conviction to convict the accused on the other count or unless, of course, the evidence is admissible in respect of that count or counts.  An example of such a risk is the accused being charged on the one presentment with offences against different victims and the evidence in respect of one or more counts being inadmissible in respect of the other counts.  Ordinarily, however, the court should order separate trials where there are different victims, where the evidence in respect of one victim is not relevant to the charge in respect of the other victims and where the joinder of charges creates a risk of prejudice.

And that was recognised in De Jesus v The Queen, and your Honour cites that decision:

But in some cases, an application for the trial of separate counts may be refused on the ground that the convenience of trying the charges together far outweighs any risk of prejudice or, more usually – 

and this is the one applicable here – 

because a separate trial is not sought.  If that occurs a propensity warning will almost certainly be required.

And, indeed, a propensity warning was given, but undermining that was this direction at page 31, in my respectful submission.

So far as the Longman warning point is concerned at ground (ii), can I essentially rely on the written submissions and draw attention to these passages, firstly at pages 29 to 30, that is the direction itself.  Your Honour Justice Hayne said earlier, “It was a strong Longman warning”.  Well, the direction itself is derived almost entirely from the judgments in Longman, from the joint judgment and from your Honour Justice McHugh’s separate judgment.  The direction at 29 is an amalgamation of both judgments, your Honours at page 108 and Justices Brennan, Dawson and Toohey at page 91 from Longman, and then ‑ ‑ ‑

McHUGH J:   It is strongest Longman warning I have ever seen given by a trial judge.  I do not know whether it is standard in Queensland to give a direction in that form but it is certainly a very strong warning.

MR RAFTER:   And it was repeated or emphasised at page 42.  The Court of Appeal dealt with the adequacy of the direction at page 72 in the reasons of the President, over to page 74, and your Honour will see at page 74, paragraph [31] the features that the applicant complained about before the Court of Appeal that were, in his submission, absent from the direction, and those are relied upon here, essentially, factual matters, alterations to the classroom, loss of potential DNA evidence and medical evidence and so forth.

Your Honours, I see my time is up.  I am content to rely on the written submissions for grounds (iii) and (iv).  Ground (iii) concerns an amalgamation of points which the applicant suggested before the Court of Appeal required the discharge of the jury.  The most substantial of those points that were taken was to the effect that the trial judge should have taken it upon himself to order separate trials.  So far as ground (iv) is concerned, the complaint is that the verdicts were unsafe and unsatisfactory.  I accept a point not ordinarily ventilated before this Court.  There were, though, unusual features about the case which the President and Mr Justice Chesterman recognise about the audacity of events of this kind happening in a classroom full of children.  This especially related to the rape complaints concerning the last of the complainants.  Thank you, your Honours.

McHUGH J:   Yes.  The Court need not hear you, Mr Campbell.

We are of the view that special leave, if granted, in this case would bring about an appeal which has no prospects of success. 

The application needs an extension of time which should be granted but the application itself should be dismissed.

AT 3.56 PM THE MATTER WAS CONCLUDED