DAO v The Queen

[2011] HCATrans 298

[2011] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S249 of 2011

B e t w e e n -

DAO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 28 OCTOBER 2011, AT 11.05 AM

Copyright in the High Court of Australia

MR D.G. DALTON, SC:   If the Court pleases, I appear with my learned friend, MR S.A. TORPEY, for the applicant.  (instructed by Mark Diggins Solicitor)

MR D.U. ARNOTT, SC:   If the Court pleases, I appear for the respondent with MS M.L. RABSCH.  (instructed by Solicitor for Public Prosecutions (NSW))

HEYDON J:   Yes, Mr Dalton.

MR DALTON:   Thank you, your Honour.  Your Honours, we will require a dispensation as to time.  I have spoken to ‑ ‑ ‑

HEYDON J:   Let us take that as read, as it were – substance of your argument.

MR DALTON:   Thank you very much, your Honour.  Your Honours, this matter brings before the Court the very important and vexed questions of exactly how sections 97 and 101 of the Evidence Act (NSW), and other like legislation in Australia, regulate the admissibility of tendency evidence.  It fundamentally, in the terms of this particular case, deals with what we have coined the impermissible line of reasoning that relates to the use of the sexual interests or attraction to the class of persons in criminal trials. 

It is our submission that significantly more is required to render evidence of this kind to pass the test of sufficiency or significance as dealt with in section 97 to be admissible in criminal proceedings and we submit that the law as established to date has not been changed by sections 97 and 101. 

Your Honours, we will ultimately submit that the true effect of the evidence that has been relied upon that is called a system, or a modus operandi in relation to various aspects of the evidence sought to be relied upon, really only demonstrates a commonality that relates to the applicant’s profession and in ultimate terms relies upon a disparate course of conduct that has no real connection to each other in relation to the three particular complainants, the subject of these proceedings, and most and particularly, MB.

Your Honours, also this matter calls for an important determination in regards to the correct manner in which in this State appeals - appellate review by virtue of section 5F of the Criminal Appeal Act should be dealt with in consideration of interlocutory matters and in these circumstances, a separate trial application, a separate trial application underpinned by considerations of the admissibility of tendency evidence.

Your Honours, we are well aware, as are the practitioners of this State and, no doubt, other States, of the reticence of this Court to intervene in appellate review of interlocutory matters.  Your Honours will, of course, have noted that the confusion and the concern and the importance that has been recognised in relation to this area is demonstrated by the fact that not only was the five Judge bench convened for the purposes of this matter but since then the same has applied in Victoria in KJM v The Queen (No 2).

Your Honours, the underlying principles in respect to these considerations is that it is fundamental and goes to the root of the criminal trial that the indictment be properly formed in the first instance and that the trial commence on the right footing.  That must intrinsically involve, particularly in cases of these sorts of considerations, that there is no joint improper joinder in relation to counts and other complainants.

It is critical that the courts at first instance be able to make the correct decision by application of the correct processes or evaluation of their exercise pursuant to sections 97 and 101 so that a separate trial decision can be properly determined and that the trial commence on the correct footing.  Not only will this stop improper trials or convictions that would be improperly recorded upon evidence otherwise determined to be inadmissible, but also the proliferation of post‑conviction appeals. 

BELL J:   Replace the proliferation of those appeals by the proliferation of appeals at an earlier stage, respecting matters that insofar as they turn on evidentiary issues, could change during the course of the trial.

MR DALTON:   Justice Bell, that is so to one extent, but what happens in relation to tendency evidence is that if there is a change and a trial judge was to reach a different view, that would almost invariably necessitate the discharge of a jury.  That would interfere in the conduct of criminal trials more so than having these matters dealt with before the trial, in fact, starts.  It is also a comity of approach as in an appropriateness in the way that criminal trials would be conducted.  

Your Honours, not only, though, is there now dissent – not only was there a division in relation to the proper manner in which 97 and 101 should be interpreted but now there is, in fact, dissent in the Court of Criminal Appeal about the proper approach to section 5F appeals. 

BELL J:   But that has been settled, has it not, by the five judge bench?

MR DALTON:   With respect, it has not, your Honour.  With respect, there is still a dissent in this regard and that is his Honour the Chief Justice and also the President, with whom Justice Kirby agreed, found that there was a particular restraint that should be applied with respect to interlocutory appeals per se and left extant as such the consideration of these – a proper interpretation of these matters in post‑conviction appeals.

Her Honour Justice Simpson disagreed with that in explicit terms.  She, without going into a detailed analysis of it, referred to the judicial restraint in appellate circumstances in interlocutory matters should be dealt with on the leave component of section 5F.  Once leave is granted, then the substantive matter should be dealt with.  That is also a reflection of the interplay of sections 5F(3) and 5F(6).  Your Honours will recognise that 5F(6) says that there will be no effect on ultimate appeal in relation to the point after conviction if leave is refused.

BELL J:   Yes.

MR DALTON:   His Honour the then Chief Justice seeks to distinguish that and refers to the process by which interlocutory matters are being dealt with in civil trials and says that that is purely a precautionary measure in 5F(6).  The point that we seek to make, your Honour, is that there is dissent because her Honour Justice Simpson quite explicitly, quite explicitly, says she disagrees with the Chief Justice and the President in that regard and says that the determination of the point, in other words, the section 97(1) and the 101(2) matter should be dealt with as of substance and that will have effects upon any appeal to be brought at the end of the trial, whilst, of course, she reserves the consideration of the miscarriage of justice point that would be preserved under section 6(1) in any event.

BELL J:   Indeed.

MR DALTON:   But as far as the error of law aspect is concerned, with regards to the determination that must be made by a trial judge at the commencement of trials when these matters are dealt with, her Honour says that that matter will be completed.  It will come to finality.  Her Honour Justice Schmidt does not make as succinct – or does not want - determinative comments in that regard, but she simply says that there is likely to be ramifications as far as judicial consistency is concerned and comity, given that the decisions – the reasons for the decision at that particular time. 

Your Honours, that must be right.  Even if her Honour Justice Simpson was found to be wrong and we say this is an important consideration that leave be granted in respect of this matter so that these issues can be set straight, but even if she was wrong as far as a strict interpretation of the leave component of section 5F(3) and the effects of 5F(6), then the practical effect is that, in any event, the influence the decision will have by the court when it originally deals with this matter in the interlocutory stage upon any court considering the matter after trial would be considerable.

Your Honour, as I said, the practical effect of judges – trial judges changing their mind in the course of a trial with respect to these sorts of issues, if evidence were to change, is that there would be a discharge of the jury, almost inevitably.  It would be a very rare circumstance, indeed, where it could be envisaged that a direction could somehow remedy the prejudices that are being caused by permitting what was found to be inappropriate - one complainant’s evidence being admissible – held to be admissible and led in front of a jury with respect to another complainant.  Your Honours, in respect of this matter ‑ ‑ ‑

HEYDON J:   Sorry, Mr Dalton, could I just get one thing straight?  Am I right in thinking that by five votes to nil the Court of Criminal Appeal agreed that a House v The King test should be employed rather than a Warren v Coombes test in determining the question of whether there should have been a joint trial or separate trials.

MR DALTON:   In respect of the question of separate trials, they did.

HEYDON J:   This difference you are pointing to is a difference between the Chief Justice, the President and Justice Kirby on the one hand, and Justice Simpson on the other.  What is the precise subject matter of this difference?

MR DALTON:   The difference is, your Honour, that her Honour Justice Simpson has made the point that the substantive issue in relation to the admissibility of the evidence pursuant to 97(1) and 101(2) should be dealt with on the 5F appeal once leave has been granted.  That will have ramifications upon any post‑conviction appeal insofar as, in other words, it forestalls any further appeal as to error of law pursuant to section 6(1) of the Criminal Appeal Act.  It does not, and her Honour expressly says so as she did in Fletcher, affect the miscarriage of justice appeal point that an accused and, thereafter, an appellant would have post conviction.

BELL J:   Why would the resolution of this issue by this Court at an interlocutory stage be desirable as opposed to consideration of the matter?

MR DALTON:   Your Honours, I know this Court is not a Court of guidance but what has occurred, and that is why a five judge bench has been convened, is to resolve the proper way in which these matters should be dealt with before trial and the proper way in which appellate review should be exercised with respect to these determinations that are made before trial.  These are not issues with respect to post‑trial considerations.  The court could always wait for a conviction and then deal with that matter after the event.  What the courts actually require, and that has been recognised, we submit, by the fact that both New South Wales and Victoria have convened these five judge benches, is guidance as to how the decision should be made before the trial and how the appellate court should review those decisions before the trial.

BELL J:   But just looking at the position now in light of this decision of the Court of Criminal Appeal, there were inconsistent decisions of that court concerning the question of the resolution of a 5F appeal, whether it was on - respecting a separate trial, whether it was House v The King or Warren v Coombes.  That issue has been determined.  Insofar as the question of the substantive decision that underlay it respecting sections 97 and 101, the approach adopted by the majority does not forestall that issue being revisited at the conclusion of the trial in the event of conviction.  Is that right?

MR DALTON:   That is correct.  Your Honour, we support her Honour Justice Simpson’s interpretation of the effects of section 5F(3) and 5F(6) and with that goes this, your Honour, and that is that his Honour the then Chief Justice and the President have said there is a different category – there is a different manner of dealing with these matters by way of interlocutory applications.  There may well be a different test to be applied with respect to the determination of section 97(1) - on the application of section 97(1) and 101(2) when it is considered in a post‑conviction appeal.  Yes, your Honour?

HEYDON J:   If you are in the middle of something, I will not interrupt, but if it is convenient – in what sense was this difference between the three on the one hand and Justice Simpson on the other determinative?  Was it only dicta?  How would the difference have affected the outcome in this matter?

MR DALTON:   Your Honour, the outcome would have been that the applicant would have been forestalled from bringing an error of law point in a conviction appeal after trial if her Honour Justice Simpson had been supported by majority. 

HEYDON J:   It is a little hard to see how that is in your client’s interest or the interests of accused persons generally.

MR DALTON:   Yes, I understand that, your Honour, but there is a second aspect of it and the second aspect of it is that – and this is an important part of the application here and that is that we say that the substantive test that should have applied is one that should have seen this evidence being ruled to be inadmissible.  You see, their Honours did not – when I say their Honours – the then Chief Justice, the President and Justice Kirby did not go on as such, certainly the President gave some indication of what his views were, I should say, but they did not go on to consider the merits in a substantive way of the admissibility of the tendency evidence pursuant to sections 97(1) and 101(2). 

They said, in effect, the substantive determination of that issue should wait – should await - first of all, the method in which it should be determined and the effect of that determination should await, if there is a conviction, a post‑conviction appeal.  Of course, for the applicant’s part, we are most concerned that evidence of this kind, which we say is based upon impermissible line of reasoning, is being permitted to be led, particularly, for instance, in the overwhelming circumstances related to MB.

The prejudices are great in respect to the – by relative terms, the more minor offences with respect to SM and JC, is likely to be overwhelming.  It would be difficult for a jury to be able to, whatever direction is given, separate out the effects that the MB evidence will have in their determinations with respect to resolving whether the wrestling took place with SM and whether it was of a sexual nature and with respect to JC whether the spitting took place and, indeed, whether the camping event took place.  Your Honours, can I – I know that – I am sure that I am running out of time ‑ ‑ ‑

HEYDON J:   Do not worry about that.  I think it is important we try and understand it.  You have some grounds of appeal – your draft notice of appeal on page 108.

MR DALTON:   Yes, your Honour.  There is supposed to be a letter of correction in relation to - 3 should have read “to the complainant MB”:

was admissible as tendency evidence pursuant to ss 97(1)(b) –

and 4 - “to the complainant JC”:

was admissible as tendency evidence pursuant to ss 97(1)(b) ‑ ‑ ‑

HEYDON J:   Is it the case that behind grounds 3 and 4 there is a difference between the New South Wales Court of Criminal Appeal and the Victorian Court of Appeal that you wish to develop?

MR DALTON:   No, your Honour.

HEYDON J:   So, grounds 3 and 4 are really what you might call just mundane, routine – they are important, no doubt, from your point of view but it is just a routine analysis of whether the particular circumstances of this case fit in with section 97 ‑ ‑ ‑

MR DALTON:   Exactly so.

HEYDON J:   The House v The King and Warren v Coombes controversy – which ground does that relate to?

MR DALTON:   That would relate to 5 and 6, your Honour.

HEYDON J:   This dispute between the Chief Justice, the President, Justice Kirby on one hand and Justice Simpson on the other ‑ ‑ ‑

MR DALTON:   I am sorry, your Honour, it should relate to ground 2, in the first instance. 

HEYDON J:   Ground 2 is the Warren v Coombes problem.

MR DALTON:   Yes, your Honour.  Your Honour, I beg your pardon, they all, in fact, cover this particular point.

HEYDON J:   Grounds 2, 5 and 6.

MR DALTON:   Yes, I beg your pardon.

HEYDON J:   Does any ground cover the dispute or the possible difference between the Chief Justice, the President and Justice Kirby on the one hand and Justice Simpson on the other?

MR DALTON:   They encompass it as far as the ramifications are concerned.  There is no specific ground there, your Honour, and I could, with leave, seek to amend the grounds of appeal to include a ground that would cover in more specific terms, this matter.

HEYDON J:   All right.Now, I interrupted you. 

MR DALTON:   No, your Honour.  Your Honour, that is all right.  Your Honours, what I wanted to refer to is this in respect to - because obviously we appreciate that the Court will consider the actual merits of the major point and that is the admissibility question pursuant to 97 and 101 with respect to this matter on the aspect of leave and, your Honours, can I, on that subject, contrast this matter and Stubley, and do so in this effect.  Your Honours will see, if your Honours look at the tendency notice, and if I could just do that very quickly, at page 121 of the appeal book your Honours will see that in paragraph 2:

The tendency sought to be proved is his tendency to act in a particular way, namely to

·   Involve himself with male children by leading youth groups, playing sports or taking them camping or other outings

·   To identify male children who are having difficulties at home or at school

·   To give those male children with special attention or counselling

Your Honours, we submit that was part of his professional duties in his parish.  Indeed, I should also note and it is in the appeal book from Judge Bozic’s decision that in fact MB was referred to him by a teacher, not someone that he sought out for counselling because of lack of attention at school.  So there is a difference in the system even in respect of that aspect.

But more importantly, our submission is like the psychiatrist in Stubley, these first three were part of his professional duties.  The Crown do not seek just to call that evidence in relation to those three matters.  What the Crown really wants to seek to call is the fourth aspect of it, that is to “engage in inappropriate sexual contact with those male children”.

BELL J:   Mr Dalton, do I take it that this issue was resolved before Judge Bozic on the basis of the tender of the statements of the young children whose evidence it was intended to lead?

MR DALTON:   They are now men because it was 20 to 30 years ago, but yes, your Honour.  Also there was some evidence from a committal in relation to SM. 

BELL J:   In the way of things, one is not to know until the evidence is called, exactly the cogency, if you like, of the capacity of the evidence to establish the tendency on which the Crown relies.  I understand you want to cut it off at an anterior point but the matter I am raising with you as the reason why this Court, amongst other things, is reluctant to become involved at an interlocutory stage is on the reasoning of the majority your client suffers no detriment if in fact in the way things proceed the evidence is not on a proper analysis.  The evidence actually led at the trial that occurs is not capable of or should not have been admitted for the tendency purpose that it was.

MR DALTON:   I think your Honour addressed a similar question to me earlier in my submissions.  Our response to that, your Honour, is that the net effect of that would lead to a discharge which would be highly detrimental to my client’s position in respect to the furtherance of these proceedings.  This is really a very important aspect of the point, your Honour, and that is that the time has come, we say - and we do not say this lightly and we can see by the attention that five judges in this State or the fact that a five judge bench has been convened, and similarly in Victoria with questions left open - and your Honours will see that in KGM that similar questions that we have been ventilating here today with respect to the finality of these decisions and the effect they have on post‑admission appeals has also been left extant by the decision in Victoria.

These matters have to be dealt with and we say this is the proper vehicle to deal with it because apart from anything else when one looks at the primary facts they are so different and the analogy I wanted to draw before I finish is this, or the contrast, and that is, if one looks at the Stubley situation, the sexual acts that take place, alleged to have taken place, are of a like kind.  Here they are very different indeed.

BELL J:   May I suggest that the Stubley analogy does not run very far, Mr Dalton.

MR DALTON:   Yes.  If the Court please.  I hear your Honour and it is a good time for me just to move on to my final point, if I can, and that is that your Honours will see or to have a particular state of mind, namely to seek sexual gratification from involvement with male children in wrestling and other games, so it is accepted there is a level of ambiguity in that, a matter that needs to be proven because of the nature of the allegations in relation to SM, and indeed, JC, but also, thereafter, your Honours, to have a sexual attraction towards male children.  That is the nub of it. 

If your Honours analyse thereafter, and I know I am out of time, but analyse thereafter that tendency notice - what in fact is taking place here, in our submission, is purely that and that is the Crown is seeking to use this material to demonstrate a sexual attraction towards male children.  I did not want to dwell on the facts and being cautioned by your Honour Justice Bell but I simply wanted to go to the facts to demonstrate that this is the right vehicle for these very important issues in relation to the manner in which the trial judge should determine the original application and thereafter the manner in which – the appropriate manner in which the appeal courts should review these decisions. 

BELL J:   But the manner in which the trial judge should determine the application is surely that if the evidence is admissible as tendency evidence or coincidence evidence, there is no reason not to have a joint trial, whereas if the evidence does not have that capacity then there would be, one would think, strong reasons for an order for separation.  Is that not so?

MR DALTON:   No, that is so, but it is the underlying determination, with respect, to the admissibility of the 97(1) and 101(2) evidence that it requires.

BELL J:   Precisely, and why would this Court not be better placed in an appropriate case to consider that issue on the basis of the evidence led at a trial?

MR DALTON:   Because, your Honour, these decisions are made and if I can say from experience, and I know your Honour has vast experience in these areas, these decisions are made by judges before the trial starts, or rather before the trial starts in front of a jury and rarely does it happen that there is a subsequent changing of the mind by the trial judge.  So what your Honour posits is intellectually correct but in practical terms is of little or no event in our criminal practice as far as I am aware. 

BELL J:   To the extent that this Court is to give guidance which judges called upon to make the decision pre‑trial that you identify are called upon to do, then the matter I am taking up with you, Mr Dalton, is that the guidance would be better in terms of a decision following trial based on evidence led.

MR DALTON:   I hear your Honour, but these decisions have been made by the judges before the trial and the appellate courts are having to review them before the trial starts.  So it is not only guidance in relation to the courts at first instance but also to the appellate courts.  The appellate courts are reviewing interlocutory decisions and, in our submission, yes, your Honour can create a situation after conviction to look back on the appellate review system by the courts of appeal and say that was in error.  There is no doubt about that. 

But the process in its logical terms exists before the trial before the jury.  This Court has not yet considered these matters in these terms with respect to sections 97(1) and 101(2), nor in relation to the interlocutory applications to deal with them, and we submit this is the time.  Thank you, your Honours, and thank you for letting me go over time.

HEYDON J:   We have interrupted you a lot.  If there is anything more you feel ‑ ‑ ‑

MR DALTON:   No, I think I have covered – unless there is anything further.  Thank you, your Honour.

HEYDON J:   Thank you, Mr Dalton.  We will adjourn for a short time.

AT 11.33 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.42 AM:

HEYDON J:   We do not need to trouble you, Mr Arnott. 

This case was said to raise three questions.  The first concerned the test for appellate intervention in decisions to order joint or separate trials.  A five member Court of Criminal Appeal in the Supreme Court of New South Wales adopted the test stated in House v The King (1936) 55 CLR 499 in preference to a test based on Warren v Coombes (1979) 142 CLR 531. That decision settles the law in New South Wales. This is not a suitable vehicle for examining the correctness of the Court of Criminal Appeal’s conclusions because on either test the result in the Court of Criminal Appeal would have been arrived at.

A second point arises from an expression of disagreement by Justice Simpson in the Court of Criminal Appeal, DAO v The Queen [2011] NSWCCA 63 at paragraphs 206 and 207. It was argued that on Justice Simpson’s approach there would be either a narrowing or a removal of any opportunity for appellate review of a decision by the Court of Criminal Appeal in relation to the admissibility of evidence. In our submission, this is not a question which, in the present circumstances, is other than academic and therefore it is an unsuitable one on which to grant special leave to appeal.

The third matter raised by the forceful arguments of Mr Dalton for the applicant concerns the correctness of Judge Bozic’s decision to order a separate trial, but only in limited respects, in view of his opinions as to the admissibility of the evidence on which the Crown proposes to rely.  We do not think this is a case in which the normal practice of this Court of not granting special leave to appeal against interlocutory decisions should be departed from.  For those reasons, special leave is refused. 

The Court will adjourn for a short time to reconstitute.

AT 11.45 AM THE MATTER WAS CONCLUDED