Dunrobin v The Queen

[2013] HCATrans 23

[2013] HCATrans 023

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B64 of 2012

B e t w e e n -

SHANNON ROBERT DUNROBIN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 12.00 PM

Copyright in the High Court of Australia

MR P.J. CALLAGHAN, SC:   May it please the Court, I appear with MR J.J. ALLEN for the applicant.  (instructed by Legal Aid (Qld))

MR M.R. BYRNE, SC:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Qld))

FRENCH CJ:   Yes, Mr Callaghan.

MR CALLAGHAN:   The applicant’s contention is that the judgment of the Court of Appeal is so flawed that it cannot escape the attention of this Court.  Two fundamental flaws are conceded by the respondent to exist, but the applicant submits that the Court would not have its attention diverted from the case by the “confess and avoid” approach suggested by the respondent.

The court’s treatment of count 3 betrays a failure to perform an independent assessment of the evidence.  The affirmation of count 4 by reference to the wrong evidence is not something which can be sanctioned on the basis suggested by the respondent who says that you can affirm the conviction because the evidence which ought to have been reviewed was of the same quality, in effect, applying some sort of proviso to a judgment in which the Court of Appeal has not discharged the duty cast upon it by this Court.

There are two problems with attempting to quarantine the court’s errors in that way.  The first is that the errors which are conceded to exist had an interactive effect with each other and infect other parts of the judgment.  The second problem is that these errors reflect only part of a wider concern about the approach of the court to the question of whether these verdicts were unreasonable.

HAYNE J:   Assume for the purposes of debate that the general proposition you make has weight.  What would we do about counts 1 and 2?  Counts 1 and 2, at least on one possible point of view, would appear to stand apart from count 3 on one side, but counts 4 to 7 on the other?

MR CALLAGHAN:   I can see why your Honour would say that, but our complaint is about the whole process by which the court reviewed these convictions and our submission is that you could not be confident that the whole of the evidence had been reviewed as it was required to be.  I can illustrate that by the first of the propositions which I was about to make, that is to say the way that the errors relate to each other and infect other parts of the judgment. 

Perhaps the best point in response to your Honour’s query might be made by reference to application book page 66, line 48 paragraph [30]

because there we see the assessment by the court of the evidence and of its conclusion that the evidence was of variable quality.  This paragraph really underscores just how deeply flawed this judgment is.  It is said, at the commencement of paragraph [30]:

The prosecution case on counts 6 and 7, like that on count 4, was not as strong as on counts 1, 2 and 3.

Counts 6 and 7, for which Mr Dunrobin is serving 14 years imprisonment, were proven by a prosecution case, which is said there by the court not to be as strong as the case on counts 1, 2 and 3, which are equated in strength to each other.  We now know, of course, that the case on count 3 did not exist at all.  Now, we submit no one should have to remain incarcerated on the basis of reasons like that.  It is not in the interests of justice that such perversity be allowed to endure in the authorities when a case which did not exist is equated to the ones that your Honour was just asking me about, counts 1 and two.

HAYNE J:   But really what I am asking you, Mr Callaghan, is, it is conceded against you count 3 cannot stand.  I understand the way in which you put your argument about counts 4 to 7.  Two questions then emerge (a) can we, (b) should we treat 1 and 2 separately?

MR CALLAGHAN:   The answer to the first question is no, if only for the passage that I have just taken you to where the court has equated 1 and 2 with 3.  You cannot be satisfied, therefore, that the court has properly considered 1 and 2.  So the whole of the judgment is vitiated, we would say, really by reason of that line alone but by a number of other factors as well. 

FRENCH CJ:   Are there logical connections between the defective reasoning you assert in relation to the other counts and that in relation to 1 and 2, or is it simply a matter that the whole well is poisoned, as it were?

MR CALLAGHAN:   It is a matter that the whole well is poisoned, but to answer the first part of your Honour’s question, I think I have made the best point in terms of a direct relationship and that is in that sentence at the beginning of paragraph [30].  The effect of the conceded errors relates really to each other and to the balance of the counts and the assessment of the evidence as a whole.

FRENCH CJ:   We might stop you at this point and hear from the respondent.

MR CALLAGHAN:   If it please the Court.

MR BYRNE:   If it please the Court, the concession is made that count 3 cannot stand.  It is an error which has been explained in the written outline, as indeed has the error in count 4.  It is an error which is properly attributable simply to oversight.  It is not something which irretrievably taints the whole of the judgment.  The point has been made with my learned friend or discussed as to whether counts 1 and 2 are separable from the rest of the counts and indeed they clearly are, if only for the point that the preliminary complaint evidence which has been related in the judgment of the Court of Appeal commencing at application book 65, paragraph [26] – I beg your pardon, it should be application book 63, paragraph [16] - the accuracy of which is not put in issue by the applicant.  The judgment notes that the preliminary complaint evidence, speaking to the witness who has been given the initials AL, said that:

at a time which is not very clear from the transcript, the complainant told her that the appellant had been raping him and that it had started in the SB house.

Now, the SB house is the house at which AL and TC were residing at the time of the commission of count 1, the very first occasion.  So there is preliminary complaint consistent with that having occurred there.  That is fortified further in that paragraph over on page 64 of the application book in the fourth line:

TC gave similar evidence, also without objection, that when the complainant was living at the SM house –

Now, this is the second house that AL and TC had moved to, so he told them while he was at the SM house -

the appellant was forcing him to have sex with him and that it had started at the SB house -

the house at which they were living at the time of the commission of count 1.  In addition, in respect of count 2, which occurred at a later point in time - count 2 was not chronological in terms of the order on the indictment, but there nonetheless was the evidence from Dr Kamenoff as to the injuries which were noted to have been seen on 12 August and that is recited in paragraph [26], that I erroneously took the Court to just before, commencing at page 65, going over the page to page 66.  Furthermore, there was evidence given at the trial as to the injury in count 2.

Now, the Court has supplementary material which is an excerpt from the Court of Appeal record book.  If I simply refer to the page numbers at the bottom of the page which were those from the Court of Appeal record book - at page 101 the complainant, commencing at about line 25 or shortly thereafter, talks about an incident in a shed, this is count 2.  He talks about at about line 33 being burnt on his right nipple.  He repeats that, the right nipple, and at line 42 talks about a scar underneath the right nipple.

Could I then take your Honours to page 109?  Now, commencing at about line 25 the complainant is shown what is a series of photographs at line 44, talking about photograph 3.  It was a “close up” of the face and also then the next question and answer talking about:

The burn underneath my right nipple.

So there is preliminary complaint evidence in respect of strong – it is submitted, preliminary complaint evidence in respect of count 1.  There is supportive, indeed, I would submit, corroborative evidence in respect of count 2.  It is accepted there is no evidence of penetration in count 3.  It is accepted that the judgment from the Court of Appeal erroneously described the circumstances of count 4, although it must also be said that the judgment itself at application book page 65 in paragraph [22], in the last four lines talks about:

The complainant said that “he’d jump in the shower with us”.  The complainant could not recall if the appellant said anything to him on that particular occasion –

I pause.  The jumping into the shower is the erroneous statement of count 4.  It continues:

in cross‑examination the complainant denied that he had sex with the appellant, saying that “he had sex with me.”  The appellant then drove him to school.

Now, the comment “he had sex with me” is referable to the supplementary material, page 121, line 45, and is a comment made in cross‑examination in reference to the actual count 4.  I bring that to the Court’s attention simply to underline that it was inadvertence in respect of the misdescription of count 4 and not something which so fundamentally destroys the integrity of the process that was undertaken by the court in reviewing the whole of the evidence.

Furthermore, when one looks at page 92 of the supplementary material, we can see the description of count 3 from about lines 22 through to 31.  The misdescribed count 4 immediately follows from line 33 through to the bottom of that page.  The actual count 4 appears on page 94 of the supplementary material from about line 20 or so forth through to about line 30.  It is inadvertence, it is respectfully submitted, which has led to the initial misdescription of count 4.  I nonetheless maintain the written submission made that the evidence is of sufficient and similar quality as to, in effect, mean that there has been no actual miscarriage occasioned by the inadvertent misdescription in respect of that count 4.

HAYNE J:   Can I interrupt you at that point and ask you this?  The applicant had an appeal as of right on conviction?

MR BYRNE:   Yes.

HAYNE J:   He had an appeal as of right in which the intermediate court’s task was to review for itself the evidence and form its view.  Is that right?

MR BYRNE:   Yes.

HAYNE J:   What are we to do in face of the concession about count 3 and the concession about misdescription of count 4?  Are we able to conclude otherwise than that the review as a whole miscarried?

MR BYRNE:   Yes, because I have sought to persuade the Court that the reasons for it are both compartmentalised and identifiable as to how they have occurred.  If there was no explicable reason as to how they had occurred, it would be more likely that a finding would be made that there is an unidentifiable taint which has affected the whole of the judgment.  As to the proposition that the court has not thereby, by looking at the errors for counts 3 and 4, undertaken its task, one, it is respectfully submitted, needs only look at the detail in which the evidence has been summarised and applied by the Court of Appeal to show that it did in fact undertake its own independent assessment of all of the evidence. 

These are discrete errors, it is respectfully submitted.  It has resulted in a personal miscarriage, a personal injustice to the applicant.  That is conceded and that count cannot stand.  But I repeat the earlier submission that it does not infect or affect the whole of the integrity of the judgment.

It is very respectfully submitted a very unusual set of circumstances that brings this matter before the Court.  The fact that there was no evidence of penetration to support count 3 was missed by two trial counsel.  It was not recognised, with respect, by the learned trial judge.  It was missed by two appellate counsel and, as is the point of the appeal, it has not been identified by the Court of Appeal.  These are very, it is respectfully submitted, very unusual, indeed, extraordinary, circumstances such as to make this matter an unsuitable vehicle, it is submitted, for a grant of special leave.

The applicant makes a complaint but does not develop the complaint to any great degree, conceding the point not having been taken below about

the manner in which the evidence of consent or lack of consent was adduced in the course of the trial.  The submission is quite simply this, that there is no mandatory requirement that in some formulaic process a complainant be asked after evidence of each act of a sexual offence of which a lack of consent is an element, whether the complainant did in fact consent. 

That is underlined by the factual nature in the allegations in this matter which have been described as being akin to an abusive relationship.  It is in, respectfully submitted, stark contrast to a relationship where there are periods of consensual sexual contact.  This was said to be at no stage of consensual contact and the references are at pages 107 to 109 of the application book dealing with the issue of consent.

Your Honours have heard from the applicant only on the first ground at this stage.  Would it be convenient if I were to briefly touch on grounds 2 and 3 while I am ‑ ‑ ‑

HAYNE J:   Just before that question is asked and answered, if, contrary to your principal submission, we were to form the view that the process in the Court of Appeal had miscarried, at least as to ground 3 and as to the particulars of ground 4, what then should we do, in your submission, as a special leave Bench?  I ask it with this in mind so that you know what the playing field would be.  Would it not be open to us to conclude that because the process has miscarried, leave should be granted, the appeal treated as heard instanter and allowed, direct entry of verdict of acquittal on count 3 but otherwise remit the whole matter to the Court of Appeal to do again?

MR BYRNE:   That is certainly an avenue which is open to the Court.  I cannot argue against that.

HAYNE J:   Is it an avenue on which you would wish or seek to be heard further than by reference to the submissions that you have already made?

MR BYRNE:   No further than those which are already made, your Honour.

HAYNE J:   Yes.

FRENCH CJ:   Yes, we will hear from the applicant in relation to ground 1 of his application.

MR CALLAGHAN:   Your Honours, I had flagged that the errors identified and conceded to be errors were only part of a wider concern about what we say, as your Honour the Chief Justice has described, is a poisoned well.  The court, in our submission, failed to have regard to important evidence, supported their conclusion by reference to the complainant’s consistency in circumstances where it was not open to do so, and made a finding about reliability which was untenable.

As regards the first of those, the failure to take into account important evidence, you have been taken in the supplementary material to the cross‑examination of the complainant at pages 121 and 122, which clearly establishes that mutual oral and anal sex occurred at least several times.  This was really at the cornerstone of the defence case, the fact that anal and oral sex were being given and received by both parties.

If you go to application book page 67, line 50, paragraph [34] in the Court of Appeal’s judgment – and to be fair, the court is there, I think, referring to the submissions of counsel, but nonetheless, there is mention at appeal book 68, line 9, of there being “at least a mutual oral sex”, but no reference to the mutual sexual activity which was conceded by the complainant to exist.

Now, I should say also in fairness that that passage of cross‑examination was clarified or was the subject of some re‑examination at page 132, but nonetheless it was still something which ought to have been referred to in any proper analysis of the evidence, given the nature of the defence case, which was that this was a consensual relationship.  The court’s approach to the issue of mistaken of belief generally was flawed and we would point, in that regard – and this would overlap with our complaint about similar fact evidence – to the way in which the court regarded that similar fact evidence which would no doubt have been persuasive if used in the manner suggested to defeat any question of mistake.

We turn to our complaint about the attribution to the complainant of consistency and the affirmation of his evidence as a result, which appears at application book 66, line 50, paragraph [30].  The court refers to the:

complainant’s consistent and apparently persuasive evidence that he did not consent –

Consistency is no doubt a virtue in a witness, but would usually be meaningful only if it is of such a nature that it can be tested.  It certainly cannot be disputed that the evidence as to lack of consent was consistent on counts 4, 6 and 7 at least.  It was identical and consisted of fully 10 words spoken by the complainant at the top of page 109 of the transcript of evidence.  This is not consistency of a kind which underpins reliability and ought not to have been treated by the court in that way.

We also respectfully query the Court of Appeal’s use of the word “persuasive” in that passage.  A jury might be persuaded by a force such as

sympathy.  It says nothing about reliability.  Nevertheless, the court was prepared to assert at application book 69, line 17, paragraph [38], that the complainant’s evidence was apparently “reliable”.  There are at least eight points to be made about that. 

Firstly, as noted the form in which it was given made it impossible to test.  Secondly, it consisted of largely two‑dimensional statements such as, for example, for count 4 “he had anus sex again”.  That was the extent of the evidence.  They were statements devoid of corroborative detail.  Thirdly, as was observed and is acknowledged his evidence contained some exaggerations. 

Fourthly, some of it was described by the Court of Appeal itself as “confusing”.  That is at application book 68, line 18.  Fifthly, there was a complete omission to give evidence in relation to anything about count 5.  Sixthly, there was complete omission to give evidence of the offence which was meant to be count 3.  Seventhly, the Crown Prosecutor was not prepared even to ask a direct question about the lack of consent in the case of counts 4, 6 and 7.  As I have already noted in the passage at paragraph [30], the Court of Appeal itself noted that the evidence was of variable quality.  It is impossible, we submit, in these circumstances for evidence to be certified by a court of appeal as reliable.  That is the extent of our submissions on ground 1.

FRENCH CJ:   Yes.  All right.  We will adjourn briefly to consider what course we should take, Mr Callaghan.

UPON RESUMING AT 12.32 PM:

FRENCH CJ:   I have asked Justice Hayne to deliver the decision of the Court.

HAYNE J:   The respondent concedes that there is no evidence to support the applicant’s conviction on count 3.  The respondent further accepts that the Court of Appeal misstated the circumstances relating to count 4.  Contrary to the respondent’s submissions, we accept that these two considerations require the conclusion that the Court of Appeal has not properly undertaken the inquiry necessary for determining the applicant’s appeal to that court.

The respondent has made all the submissions which it sought to make on this particular question of the sufficiency of the Court of Appeal’s inquiry.  In these circumstances, we consider that it is appropriate to proceed to dispose of both the application for special leave and the substance of the matter without further hearing.

Accordingly, there will be orders as follows:

1.The application for special leave to appeal against so much of the orders of the Court of Appeal of the Supreme Court of Queensland as concerned the applicant’s conviction on count 3 is granted.  The appeal is treated as instituted and heard instanter and allowed and it is ordered that the applicant’s conviction on count 3 is quashed and a verdict of acquittal entered.

2.Subject to paragraph 1, the application for special leave to appeal against so much of the orders of the Court of Appeal as concerned the applicant’s convictions on counts 1, 2 and 4 to 7 is granted.  The appeal is treated as instituted and heard instanter and allowed and the matter remitted to the Court of Appeal for its further consideration. 

It is then necessary to permit the Court of Appeal to consider again the applicant’s application for leave to appeal against sentence.  Accordingly, there will be a third order:

3.The application for special leave to appeal against the order of the Court of Appeal refusing the applicant’s application for leave to appeal against sentence is granted.  The appeal is treated as instituted and heard instanter and allowed and the application for leave to appeal against sentence is remitted to the Court of Appeal for its further consideration.

FRENCH CJ:   They are the orders of the Court.

The Court will now adjourn to reconstitute.

AT 12.35 PM THE MATTER WAS CONCLUDED