DL v The Queen

[2017] HCATrans 215

[2017] HCATrans 215

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A45 of 2016

B e t w e e n -

DL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

NETTLE J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO ADELAIDE

ON TUESDAY, 24 OCTOBER 2017, AT 9.32 AM

Copyright in the High Court of Australia

MS M.E. SHAW, QC:   May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the applicant.  (instructed by Town & Country Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR B. LODGE, for the respondent.  (instructed by Director of Public Prosecutions (SA))

NETTLE J:   We have had the argument in this previously and the matter was stood over pending the decisions in Chiro and Hamra.  It was hoped at the time, I think, that those judgments, whichever way they went, would resolve this matter but it appears not to be the case.  We wanted to ascertain that it is the position that there is only one ground of appeal, namely, ground 1, that the Court of Criminal Appeal erred in failing to hold that the judge’s reasons were inadequate in not identifying the underlying acts of sexual exploitation.

MS SHAW:   We confirm that, your Honour.

NETTLE J:   Thus, 1(b) and 1(c) are really particulars of or submissions in support of 1(a).

MS SHAW:   That is correct.

NETTLE J:   Thank you.  Perhaps I could hear from Mr Bleby.  Mr Bleby, in view of the decisions in Chiro and Hamra, is it still the Crown’s contention that the reasons in this matter given by the trial judge were adequate?

MR BLEBY:   Yes, your Honour, it is.

NETTLE J:   Thus, the matter will have to proceed to an appeal – to hearing?

MR BLEBY:   Not, your Honour, if my submission that the matter does not raise a question of general importance is accepted.

NETTLE J:   Yes.  Perhaps we had better hear it, please.

MR BLEBY:   Your Honours will recall on the previous occasion your Honour Justice Nettle asked my learned friend that what would be – that whether or not this matter would be dealt with by the result in Chiro and my friend said – and in Hamra – this is the transcript [2017] HCATrans 77, page 3 from line 31. My friend answered your Honour and said:

Yes, because DL is the same issue in Hamra.  In Hamra his Honour holds you do not have to differentiate between two occasions, you can simply allege generalised illegitimate sexual conduct.  In DL that is what the judge did and the Court of Appeal upheld it.

Your Honour then asked:

If we were to grant special leave in Hamra, there would be no need to grant special leave, at least for the time being, in DL, would there?

My friend answered:

As long as we were not prejudiced by that, your Honour.  It is just that the trial judge in DL did not make any findings at all in relation to sexual offences.  So, we would submit that if we are correct in our application in Hamra then the result in DL would follow in our favour.

The point of the adjournment, with respect, was to see if the appellant in Hamra was successful, then my friend’s contention was that success ought then follow in DL ‑ ‑ ‑

NETTLE J:   Yes.

MR BLEBY:   ‑ ‑ ‑ but there was no other basis or premise for the adjournment.  The claim that the conviction is now uncertain or unsafe, unreasonable, is, in my respectful submission, untenable on account of the decisions in Hamra and Chiro, and that is for the reasons that we give in paragraphs 4 through 7 of our further submissions in response.

Here, the information identified the period of the acts and the conduct constituting the acts.  Your Honours will see that at page 4 of the application book.  Then, as this Court then said in Hamra at paragraph 46 – and we reproduce this at paragraph 5 of our further submissions:

it would be sufficient if the jury (or judge in a trial by judge alone) were to accept that acts which could be the subject of a charge of a sexual offence occurred every night, or every weekend, over a period of two months without any further differentiation of the particular occasions of the offending.

It follows, in my respectful submission, that if specific delineated acts are not specified in the trial judge’s reasons that cannot be productive of an uncertain or an unsafe conviction.  Equally, in Chiro the jury’s failure to identify the acts of sexual exploitation was not productive of uncertainty of the conviction.

So the further submissions of the applicant, as your Honour has, with respect, identified, really directed to the question only of adequacy of reasons but at some level the applicant still looks to bring in the idea of uncertainty or lack of safety of the conviction into that lack of reasons.  We see this perhaps most clearly in my learned friend’s further written submissions at paragraph 20 where it is said that:

The reasons provide little guidance as to which discrete acts were found to have occurred.  Indeed, they create doubt as to whether any discrete acts as testified to by the complainant were found to have occurred (beyond reasonable doubt).

NETTLE J:   Yes.

MR BLEBY:   That submission is, with respect, untenable in light of the decisions in Hamra and Chiro.

NETTLE J:   Do we know from the judge’s reasons in this case which underlying acts of sexual exploitation his Honour found to be proved beyond reasonable doubt?

MR BLEBY:   We do, your Honour, and we approach it in this way.  If we take up the application book at page 7, his Honour frames the question first of all at paragraph 6:

In a practical sense the issue is whether the prosecution has proved the charge beyond reasonable doubt which, in its turn, depends upon whether it has been proved that MGF is both a truthful and reliable witness.

Then at paragraph 7 from about halfway down the paragraph:

Here it is alleged that there were many acts (over the years) of indecent assaults, fellatio upon each other, showing MGF pornography –

I will not read out the whole paragraph, your Honours, but there is essentially a précis of the allegations.

NETTLE J:   Yes.

MR BLEBY:   But from there we then – bearing in mind, of course, that the information is particularised as to the acts in the way that is required by the section as we know in particular from Hamra – the trial judge then at 66, which is page 17 of the application book, held that he accepted the complainant as a “reliable witness” as to what he described as the “core allegations”.

GORDON J:   What do you say are those, Mr Bleby?

MR BLEBY:   Your Honour, what we then do is we refer back to the encapsulation of the core allegations which runs from paragraph 17 through paragraph 27 of the judgment, because you see in paragraph 66 what his Honour does is put some qualifications as to reliability on the complainant’s evidence as to estimates of his age in particular, but the core allegation ‑ ‑ ‑

GORDON J:   I do not think that is right, is it?  I think you have got to deal with paragraph 64 where the Court explains that his evidence has “problems in terms of apparent inconsistencies and implausibility” and “I do not have to accept everything he says to be satisfied”.

MR BLEBY:   Yes, your Honour, but when we then look at how the acceptance of the core allegations is qualified ‑ that is to say, for example – and I read 66 as explicating 64, as it were – for example, some “estimates of his age when events occurred were not reliable”.  But then we go to 67:

Although it is not determinative of the case, having listened to MGF over a number of days, I simply believed him and found him to be reliable.  I had the same view of him at the end of all of the evidence.

And then his treatment of the applicant’s evidence at paragraph 69:

I was unimpressed by the accused’s presentation.  I found his answers to be glib and evasive on some topics, particularly about the number and duration of occasions when MGF and his siblings stayed or the accused was alone with MGF.

And he goes on to explain how he found the evidence to be evasive, emphasising some of the topics.  Through 70 to 72 he noted the forensic disadvantage that the accused was under.  And then, critically, at 73:

I reject the evidence of the accused on substantive issues where he denied the alleged sexual conduct.

And then at 74:

I find that the accused sexually assaulted MGF on numerous occasions over a period of some years.  The sexual assaults mainly took the form of indecent assaults and mutual oral sexual intercourse.

Which are set out, I interpolate, from paragraph 17 through 27 of the judgment.

NETTLE J:   Well, that is the ‑ ‑ ‑

GORDON J:   That is the problem.

NETTLE J:   We are not sure that that in fact is what the judge has found, given his queries about the reliability of the complainant’s evidence.  Is one to understand that notwithstanding those difficulties he has accepted every allegation of underlying sexual act or only some of them?

MR BLEBY:   The acceptance of the accused’s evidence – and I come back to the use the words “core allegations”, that can only mean the acts ‑ ‑ ‑

NETTLE J:   Yes, I see.

MR BLEBY:   ‑ ‑ ‑ is unqualified as to the entirety of that which is accepted.

NETTLE J:   No, I think – that does sound the way you put it.

GORDON J:   Yes.  Does that sit with 74 though where he says “The sexual assaults mainly took the form of indecent assaults”?

MR BLEBY:   Yes, your Honour, because it is a wholesale description of that which we see laid out in greater detail in 17 through 27.  The reliability issues are really for the timing and dates.

GORDON J:   So I put it a different way.  If one takes the opening line of 66 what is it that is better to be excluded?  What is it that he has not accepted?

MR BLEBY:   The accused’s recollections or evidence as to precisely how old he was at a particular time, the date when it happened.  Insofar as the acts themselves were the subject of evidence, they can only be the core allegations.  So at 66, for example, which immediately goes on:

Some of his estimates of his age when events occurred were not reliable (for example, when he rode the motorbike or being “stoned”), but they were not sufficient to cause me to doubt either his truthfulness or reliability.  Any exaggeration was not deliberate.  As reflected in cross‑examination, he had trouble remembering the process whereby statements were taken from him –

et cetera.  And then even further at 67:

Even though he said he lied on one occasion, I do not consider that he deliberately told an untruth, rather he was careless in the way he answered; there is a clear difference.

So it is a global assessment of his reliability on the acts that are the subject of the charge with a qualification, in relatively clear terms, as to matters of date and age that sit around that but not such as to cause him any doubt as to the allegations themselves.

NETTLE J:   So one is to understand that the judge has accepted each of the alleged underlying acts of sexual exploitation?

MR BLEBY:   Yes, your Honour, because this is one of those cases where a lot of the acts were relatively discrete in terms of their description and so when we go through – for example, from paragraph 17 onwards, 17 deals with the first occasion, paragraph 18 deals with an incident on Christmas day, paragraph 19 an occasion when he was aged nine, he says – two occasions – at paragraph 21 an occasion when he was 12, at paragraph 24 once when he was about seven and then a period from when he was nine through 12; paragraph 25, an occasion in the apartment on South Terrace, and the occasion at paragraph 27, 28 August 1994, a date which could be precisely located because of other events.

So this is his Honour’s, if you like, global acceptance at the end has no carve out of the specific occasions, and it is the easiest thing in the world to carve them out because they are relatively defined.

NETTLE J:   Yes, thank you.

MR BLEBY:   What then follows, your Honour, of course, is we are simply left with a complaint of adequacy of reasons.  Now, in context, this was not raised within the Hamra/Chiro framework when it was raised in the Court of Criminal Appeal, the judgment which was early 2015.  An adequacy of reasons complaint was made and it was dealt with insofar as the so‑called inconsistencies in evidence were reconciled by the trial judge and the Court of Criminal Appeal ‑ ‑ ‑

GORDON J:   The prism was different.

MR BLEBY:   It was different, your Honour.  It was different because this was not raised.  But while the prism is different, in my submission, because of Hamra and Chiro where there can be no question of the uncertainty or safety of the conviction, all that is left is a challenge to adequacy of reasons.  That is simply, does a generalised acceptance of the core allegations in

circumstances where each of those allegations is set out, that which is found to be unreliable is explained not to impinge on those core allegations.

This is an ordinary case of – or complaint of adequacy of reasons.  In terms, it was answered by the Full Court, not within the prism, I accept that.  There is no question of general importance.  The Full Court was perfectly satisfied that the trial judge explained himself for the purposes which reasons are required.  Your Honours will see that in the Full Court’s judgment from paragraph 132 onwards, that is from page 65 of the application book, and that runs through to paragraph 149 at page 31 of the application book.

Your Honour Justice Gordon points out that back in 2015 the adequacy of reasons was not argued through this prism.  I do still rely on that in the sense that in circumstances where this was not agitated before the CCA and it is now said that there is an error, the CCA was never asked to consider whether the matter now raised on the proposed ground of appeal cannot be said that the CCA therefore erred and the principle of finality in these circumstances, given the delay, militates most strongly against a grant.

We refer at footnote 5 of our submissions in response to the decision of Crampton v The Queen (2000) 206 CLR 161 at 172, 173 per Chief Justice Gleeson, and I will not take your Honours to that but the principle is well understood and I further rely on that. May it please the Court.

NETTLE J:   Thank you, Mr Solicitor.  Ms Shaw, what do you say as to the submission that this point was not raised before the Court of Criminal Appeal?

MS SHAW:   Two things, your Honours.  First of all, as at the time of the Court of Appeal argument Little – the five‑member Bench court ‑ had been handed down the day before but was not referred to, so the holding of our Full Court that we were to apply KBT, namely, that the actus reus did comprise two discrete acts of sexual exploitation that had to be proved was not argued.

That, in our respectful submission, is what is critical coming out of both Chiro and Hamra, that this section is not a course of conduct section.  It does require proof of at least two discrete sexual offences more than three days apart, and Hamra of course was looking at the case to answer stage.  The High Court held if the trial judge in judge alone accepted the allegations of a complainant without qualification, not just the core allegations but all of the allegations, and it was evidence that showed that it was over the relevant period, so logically it followed that the offences were proved.

That is not this case.  In this case, the judge has said quite the opposite.  He only accepts the core allegations.  Now, the complaint about reasons is that we do not know, as the interchange has revealed, what was the actus reus that the trial judge found.  The point of principle about reasons by a trial judge is that this section requires identification of the actus reus.  The trial judge has not identified the actus reus at all.  What he has done is started from a premise at paragraph 6 of the issue is the reliability of the complainant.  Having found that there were concerns about the reliability of the complainant he is reduced to a conclusion he accepts the core allegations.

Now, the appellant on appeal was clearly hampered in endeavouring to address both the unsafe ground but also the inadequate reasons because instead of having to address on the basis here were the underlying offences that the judge found, here was the evidence of the accused about that, here was the evidence of the complainant about that, here was the objective evidence that led to the judge having concerns about the complainant’s credibility.  The reasons do not expose that correct process of reasoning and precluded, in effect, the applicant from arguing that.

If I can just give one example.  My learned friend has referred to paragraph 7 as to the recitation of the allegations.  First of all, one of those allegations is showing MGF pornography.  That was not a sexual offence as at the period of these allegations.  That merely highlights the need for a judge to actually identify the sexual offences that he must find proved in order to satisfy the actus reus.  The second ‑ ‑ ‑

NETTLE J:   I think we follow that – just a minute.  I am sorry, the second, you were about to say?

MS SHAW:   The second point is in relation to my learned friend’s suggestion that the timing is not significant.  The timing was very significant because in relation, for example, to all of the allegations of oral sex, according to the complainant, they commenced when he was nine going on 12 and continued therefore potentially for some three years before the abuse stopped.  According to the ‑ ‑ ‑

NETTLE J:   I take your point about that.  Could I just ask you to look to 132 of the Court of Appeal’s reasons for judgment which purports to set out the basis on which you contended below that the trial judge’s reasons were inadequate.  The point I am driving at is it does not appear that you submitted below that the reasons were inadequate because they failed sufficiently to identify the underlying acts of sexual exploitation.  Was that contended ‑ ‑ ‑

MS SHAW:   As I understand it, no, but as I explained to the court, the law in South Australia was at that time under the rubric of R v NH which this Court held was incorrect, and the five‑member court that did follow – and R v NH held the section was a course of conduct – the court that held that it was indeed an offence comprising underlying sexual offences was not drawn, that is, the Little Case was not drawn to the attention of the court and was not known to counsel because it was only handed down the day before.

NETTLE J:   I understand.

MS SHAW:   So the state of law in South Australia has been in a state of flux and that was the very reason for the grant of special leave and it applies ‑ the point of principle here is not only is this a 62‑year‑old man with a 10‑year sentence but, more importantly, in a trial by judge alone the fact of the need to identify two sexual offences requires those at least two sexual offences to be identified; whether it is unqualifiedly accepted as a number of offences or whether it is discrete offences, they must be identified otherwise the accused is denied his ability to argue on appeal that the verdict is unsafe and, more importantly, here there are no reasons which explain and justify what core allegations mean and, therefore, there is no ability to test what ‑ whether core allegations means this is a new Crown case, not the one that the Crown relied on below because the Crown below did not challenge the independent evidence that the slot car, for example, in relation to the oral sex allegations could not have been in place until the complainant was 14 and a half – not nine, not 12.

So, when his Honour found core allegations did he mean that he found the oral sex occurred but four years before or two years before or did he say it was a core allegation of oral sex but it did not happen in the shed number two.  So, in essence, that is the very reason why it was necessary for the trial judge to identify the particular discrete acts that constituted the actus reus and give reasons because this accused essentially does not know insofar as the trial is concerned what his Honour found and cannot agitate before the Court of Appeal whether this is a finding that means his Honour found a subset of the allegations of the Crown when he refers to core or whether he found the essence of the Crown allegations, a variation of different times but different places.

NETTLE J:   Yes.

MS SHAW:   And because that is not identified, because the actus reus is not identified, the incontrovertible evidence, the inconsistencies, could not be brought to bear insofar as they threw light on the sexual offences that needed to be proved.  It was not sufficient simply to refer to, well, there is some acts in all of the allegations that could make out the offence.  That is, in our respectful submission, what is critical from the Court’s holding in Chiro and indeed in Hamra where the Court held that it is necessary to prove that there are discrete acts.

The question of how that is proved or whether there is a case to answer obviously depends on whether the complainant might be accepted, unqualifiedly, which he was not here, and might depend on how the judge disposes of incontrovertible evidence and the inconsistencies in relation to the particular sexual offences that are said to constitute the actus reus.

That issue, in our respectful submission, is a point of principle because the trial judges in the wake of Hamra and Chiro must continue in trial by judges alone, in our respectful submission, and our argument, as the point of principle must identify the sexual offences that do constitute the actus reus so that the accused not only has a fair trial but, more importantly, can access his appeal rights.  In our respectful submission, those matters in accordance with the very principles that were raised at leave do justify a grant of special leave.  We say that here because the trial judge’s acknowledgment of these concerns about the complainant’s evidence highlight the need for his Honour to have identified the actus reus.

It is fundamental, we submit, as a point of principle that this Court hears the argument that on trial by judge alone it is not sufficient to effectively decide or approach the matter, as this trial judge did.  The issue for me at paragraph 6 is whether or not MGF is both truthful and reliable as a witness.  That is not the issue.  The issue is whether the Crown have identified specific acts that constitute sexual offences under section 50, the evidence identifying the evidence that bears upon the proof of those acts, identifying the incontrovertible or evidence that denies it and identifying the accused’s evidence insofar as it might throw doubt on it.

To descend to whether you believe the complainant or you believe the accused, in our respectful submission…..that dangerous trap of choice reasoning and not even here magnified as an issue by not being related to the actus reus and not being related to the necessary offences that must be identified in order to prove the charge.

This man, your Honours, as I said, received a sentence of 10 years’ imprisonment at the age of 62 and we submit that in those circumstances where there is a failure in the reasons at any stage to identify the actus reus, then – and bringing to bear therefore the inconsistencies and the incontrovertible facts, this case is worthy of a grant of special leave.  The issue is not determined by Hamra or Chiro but needs to be determined, in our respectful submission, in the light of Hamra and Chiro, what is the obligation of a trial judge sitting alone to identify the actus reus?  What is

his obligation to identify the offences that he relies on to prove the actus reus?

Secondly, if he does not accept the complainant unqualifiedly what is his obligation thereafter?  Does he nevertheless have to say, I accept the core allegations but I decide that it is three years earlier or it is at a different place, I accept the core allegations but I am not happy about his credibility on this offence, then, of course, the appellant is denied reasons that demonstrate how he has brought to bear – that is, the trial judge has brought to bear his concerns about the complainant’s credibility and the inconsistencies in his treatment of the proof of other sexual offences which are required.

So, this error, we submit, is a serious error in approach because it does not focus on what is essential, namely, proof of individual sexual offences and fails to therefore apply proper reasonable doubt in a proper way, namely, if you do have a reasonable doubt about this allegation how does that bear upon your confidence that this allegation is proved, bearing in mind other incontrovertible facts and inconsistencies.

So, in our respectful submission, this is an argument of substance, bearing in mind the prevalence of trials by judge alone in relation to sexual offences, and bearing in mind its importance that is the adequacy of reasons in a composite offence, an area that is not without difficulties, it is an important area in relation to the administration of justice throughout Australia and important that future trial judges hearing these kinds of matters alone do indeed approach this section in accordance with the judgment of this Court in judgments in Chiro and Hamra, namely, you must identify the actus reus, you must identify the sexual offences and you must consider the Crown case and the defence case in relation to those sexual offences and not take ‑ ‑ ‑

NETTLE J:   No, I understand.

MS SHAW:   I am sorry, your Honour?

NETTLE J:   I think we understand the point.  Thank you, Ms Shaw.

MS SHAW:   Thank you, your Honour.

NETTLE J:   Mr Solicitor, briefly, is there any reply?

MR BLEBY:   Just briefly, your Honour.  My friend’s submission puts an awful lot of work on the concept of core allegations, as used by the trial judge, in circumstances where, as I understand the submission, is by use of that generalised term.  There is a disability then to engage on appeal with the specific – or complaint about the rather specific allegations.  The problem with that submission is that we see best of all from paragraph 132 of the Full Court’s judgment every single asserted inconsistency was raised and dealt with relating to each of the allegations as they arose.  There was no disability because the appeal proceeded on the basis of every inconsistency that the appellant could raise was raised as if ‑ ‑ ‑

GORDON J:   Can I ask you one question?  When you identify the core allegations by reference to paragraph 17 and onwards, if you take paragraph 17 do you regard the core allegation there being everything but the last sentence or do you include the last sentence?

MR BLEBY:   I include the last sentence, your Honour.

GORDON J:   You include the last sentence?

MR BLEBY:   I do, your Honour.  That is the – let me qualify that.  We really need to go to the information and read it against that.  The whole point, of course, of this section is to allow the allegation that this happened on many occasions but I cannot now delineate separate occasions.

GORDON J:   Yes.

MR BLEBY:   So that was the applicant’s evidence, so, yes, I certainly include that because that is entirely permitted within, if you like, the information laying regime, the proof regime, and it was not necessary for the trial judge to then tease out the individual identifiable occasions, for the reasons which we now know.

NETTLE J:   Thank you.

MR BLEBY:   May it please the Court.

NETTLE J:   In this matter there will be a grant of special leave.  Ms Shaw, would argument be completed, do you think, within the space of half a day or would it take more?

MS SHAW:   Within half a day, your Honours.

NETTLE J:   Do you agree with that, Mr Solicitor?

MR BLEBY:   I think so, your Honour, yes.

NETTLE J:   Thank you.  The parties will need to consult with the Registrar.  Having regard to the fact that it is a criminal matter and now quite old, it would be desirable if it could be accelerated as much as

possible.  I am not sure whether it could be listed for hearing this year, that is yet to be determined, but if it can be it would be desirable.  Is there anything further?

MS SHAW:   No, your Honour.

MR BLEBY:   No, thank you, your Honour.

NETTLE J:   We are grateful to counsel for their assistance; thank you.  The Court will adjourn.

AT 10.08 AM THE MATTER WAS CONCLUDED