Dyers v The Queen

[1998] HCATrans 315

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S125 of 1997

B e t w e e n -

KENNETH EMANUEL DYERS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 SEPTEMBER 1998, AT 10.02 AM

Copyright in the High Court of Australia

MR I.M. BARKER, QC:   If the Court pleases, I appear with MR H.M. DI SUVERO.   (instructed by Henry Davis York)

MR G.S. HOSKING, SC:   If your Honours please, I appear with my learned friend, MR A.M. BLACKMORE, for the respondent.  (instructed by the Director of Public Prosecutions (New South Wales))

MR BARKER:   Your Honours, the question is should the Crown be permitted to have the applicant retried when errors by the trial judge, largely encouraged by the Crown, deprived the applicant of the chance of an acquittal on all counts.

GAUDRON J:   That is not a question that is known to the law, is it?  Phrased in that way, that does not present a justiciable issue.  It may be if you wish to say whether a further trial would be an abuse of process, maybe that presents - - -

MR BARKER:   Yes, that follows.  If the first question is answered in the light of Walton v Gardiner, in my submission, it would be unfair to have the applicant retried.

GAUDRON J:   Well, you have to go further than that.  You have to say an abuse of process.

MR BARKER:   It would be an abuse of process.  It would be an abuse of process because the conduct of the Crown Prosecutor and errors by the trial judge deprived the applicant of a reasonable chance of an acquittal on all the ll counts for which he was tried.  He was acquitted - - -

GAUDRON J:   Your application would finally deprive him of that chance.

MR BARKER:   I am sorry, your Honour?

GAUDRON J:   And your application, if successful, would finally deprive him of that chance.

MR BARKER:   Yes.  Our application is he should not be put in jeopardy again by being retried, having regard to the circumstances of the first trial.  He was tried on 11 counts; acquitted on three, and the jury disagreed on eight.  The trial was infected by error.  Now, your Honour, we say that fairness to the applicant requires a permanent stay of the indictment, consistently - - -

McHUGH J:   This is a very large proposition.  Is it a consequence of your submission that whenever a jury disagree and, in the course of the proceedings, the trial judge has made some error, that it follows that any subsequent trial would be an abuse of process?

MR BARKER:   No, not at all, but in the peculiar circumstances of this case we say it would be unfair to have him retried.  It is a peculiar case.

McHUGH J:   Well, that means it is not a special leave case then.

MR BARKER:   Your Honour, the interests of justice require this Court to examine this case, with respect.  My starting point is the judgment of the Court of Criminal Appeal, at page 131, line 20, where it was said - and this was accepted by the other two:

I return to the specific application before the Court.  Examination shows that there were several matters as above indicated which were capable of and even likely to have provoked intervention by this Court in the event that there had been convictions.  I am unpersuaded however that any or all of them in combination would have attracted exercise of discretion to decline to order a new trial.

McHUGH J:   Is that not the critical point then in this particular case?  How could it be unfair to put the accused up again if a court would have ordered a new trial even if he had been convicted?

MR BARKER:   Because he would then - in either case, he has been deprived of the real chance of an acquittal.  If he had been convicted the convictions could not stand.

McHUGH J:   That may be so, but what about ordering a new trial.  On your theory, the court could not - it would be oppressive or an abuse of process to order a new trial. 

MR BARKER:   In the exercise of discretion, in the circumstances of this case, it is likely the court would not order a new trial.  The conviction would have been quashed.

McHUGH J:   But his Honour said that he was unpersuaded that that is the case.

MR BARKER:   Hence, the application.  You see, if we look at the errors, your Honours will see what an exceptional case it is.

GAUDRON J:   I am not persuaded that if you look at the errors as distinct from the evidence available to the prosecution.

MR BARKER:   That was inadequate to satisfy this jury beyond reasonable doubt as to the guilt of the applicant and, with respect, we say that had the proceedings been conducted fairly and without error, it is likely he would have been acquitted.  Having not secured convictions, the Crown now proposes that he be retried.

GAUDRON J:   I took you away from the errors, yes.

MR BARKER:   The errors we rely upon are that the court was closed for most of the Crown case, so the trial is in large - - -

GAUDRON J:   How can that affect the likelihood of acquittal or conviction?

MR BARKER:   Because when the court was closed and the proceedings were in secret during the evidence of some seven witnesses, apart from the complainant, and when it was open during the defence case, it was obvious to the jury that something had happened.  There had been a change.  On the one hand, it is in secret; on the other hand, the court was open.  It could not have failed to be prejudicial.  Their Honours said as to that, at page 127 of the application book:

The fourth error concerns orders made by Karpin DCJ closing the court to the public during the giving of evidence by all former members of Kenja. 

There had been a voir dire.  She said:

“Throughout the evidence of persons who had previously been members of Kenja, they stared very intently at those witnesses and in my view produced an atmosphere of pressure, bordering on, if not actually arriving at, intimidation, and I am not prepared to have witnesses give their evidence in those circumstances.

Et cetera.  Their Honours in the Court of Criminal Appeal said:

We were informed that as a result the entire prosecution case with the exception of police and only two non police witnesses was presented in a closed court.  That appears to have been a serious error, and, had there been convictions, it would have provoked grave concern.  There is abundant authority that justice is not to be administered out of the public gaze except in exceptional circumstances or where specifically required or authorized by statute:  see David Syme & Co v General Motors Holdens Limited (1984) 2 NSWLR 294. Clearly the power which a Court should invoke against misconducting members of the public is to deal with them, by charge of contempt if need be, not by removing the hearing from public scrutiny.

Now, that was a serious error and so regarded by the Court of Criminal Appeal.

Secondly, the Crown declined to tender a long record of interview which was exculpatory of the applicant and her Honour refused to admit it into evidence at the tender of the applicant.

McHUGH J:   Correctly, in my view, unless there is something in the Evidence Act which would allow it to get in.

MR BARKER:   Not in the Evidence Act but there is authority which we have referred to.

McHUGH J:   Well, there is authority if the Crown tenders admissions, then they have to take the good with the bad.  Do any cases go so far as to say that you can put any self-serving statement by the accused made out of court has to be tendered by the Crown?

MR BARKER:   Yes.  Well, probably the clearest statement is - going to the English case, firstly, McCarthy (1980) 71 Cr App R 142 at page 145, in the middle of the page:

One of the best pieces of evidence that an innocent man can produce is his reaction to an accusation of a crime.  If he has been told, as the appellant was told, that he was suspected of having committed a particular crime at a particular time and place and he says at once, “That cannot be right, because I was elsewhere,” and gives details of where he was, that is something which the jury can take into account.

In the New South Wales case of - - -

McHUGH J:   Well, yes, but that is a very different case.  It even seems merely very dubious in principle but, in any event, far removed from this case.

MR BARKER:   Well, not so far, your Honour, because this was a product of a three-hour twenty minute interview which took place before the man was arrested and his answers were not to be labelled, with respect, as self‑serving, they were spontaneous, apparently candid and exculpatory and consistent with the case presented at trial.

In Familic, which is a New South Wales case, (1994) 75 A Crim R 229 at 234, at about point 3:

The relevant principle is established in the decisions of this Court in Astill.....and Reeves (See also Keevers).  It is that where an accused person replies to a question put by police officers or responds to an invitation to comment on some matter put to him or her, what he or she says is in general admissible in evidence.

In my respectful submission, this was admissible and should have been admitted and could have had a significant impact on the result.

McHUGH J:   In principle, with great respect to all those judges who have thought to the contrary, it is just plainly wrong, Mr Barker.  On what basis could you possibly admit such evidence in principle?

MR BARKER:   Because it is evidence of his spontaneous reactions to questions going to the issue of guilt.  Now, if he had made some admissions consistent with guilt, then made some exculpatory answers, the lot would have gone in.  If he had made only admissions consistent with guilt, the lot would have gone in, and there is no logical reason, I respectfully suggest, why, because all his answers are exculpatory and given explanation, the lot should not go in.

McHUGH J:   That means, in an ordinary civil action for negligence, what the defendant says to the police at the scene of the accident is admissible in a civil case.

MR BARKER:   That might get in any way under the Evidence Act.

McHUGH J:   Under the new Evidence Act.

MR BARKER:   There is a further argument looming about that.  But that is the different principle.

McHUGH J:   Yes.

MR BARKER:   The New South Wales authority is to the contrary of what your Honour is saying, which it is suggested that point itself ought to be determined by this Court.

GAUDRON J:   Well, you still have to go a little further than that to demonstrate your ultimate proposition, do you not, Mr Barker?

MR BARKER:   I can only do that by referring to the other errors, your Honour.  The further error is that in respect of two counts where a particular day became the essence of the charge, the Crown was permitted to expand the dates when it was shown that the Crown’s date was impossible, and then it was again shown that the Crown’s date was impossible and the matter was left to the jury on the simple basis that the complainant might have been mistaken.  What happened was she said that something had happened on a student-free day when she did not have to go to school and it was demonstrated that in the first date and the date as expanded, within that period, there was no such student-free day.  The Crown was permitted to change its ground.  The summing up is at page 51 in that regard, line 10:

This is the occasion when Georgina Barrow says that she went to Bondi on a student-free day with Serena Lee.

You have heard a good deal about this topic and there is no need for me to belabour the point.  The Crown concedes that on the evidence of Margaret Wood.....The Crown concedes that it couldn’t have been a student-free day, there just isn’t one within this time frame.  Although it has been suggested that is the end of the matter, unfortunately for you, I suggest your decision is not as simple as that.  Because it is agreed that it was not a student-free day, you cannot say ergo if it is a student-free day it didn’t happen.  You have to look at the possibility that Georgina Barrow was mistaken about what sort of a day it was she went there.

Now, the date in an indictment, of course, is not necessarily material but where the Crown opened on the student-free day and where the evidence was a student-free day and where the defence was that it was not a student‑free day, in my respectful submission, that fact became an important part of the charge, and the Crown having failed to show that the offence could have happened on that day, that case should not have gone to the jury.

The further error is this:  there was evidence and cogent evidence in the form of video tapes, letters and cards that the complainant behaved in a manner which, in the circumstances of the case, was entirely inconsistent with her having been subject to the sort of sexual abuse alleged against the applicant.  That was relied on by the defence quite strongly. 

Her Honour said, at page 61 of the application book, at the bottom of the page:

It has been suggested to you by counsel for the accused  that children who are suffering sexual abuse would not have been behaving in a cheerful child-like manner in their ordinary activities and to that end you have been shown a number of videos and photographs depicting the complainants enjoying the activities of Kenja.  You simply have no basis upon which to make what is, in effect, a psychological assessment of these children.  You have no evidence upon which you could come to a determination as to how children behave when they are being sexually abused.  Whatever might be seen as an indication of sexual abuse by a trained observer, we are not in a position, any of us, to make that determination, so you must decide this matter on the evidence which is before the Court and not embarking on some uniformed speculation -

Now, your Honours, it was scarcely a matter which ought to have been the subject of expert evidence.  It was simply evidence - - -

McHUGH J:   But, why?  We heard argument this week in Canberra where it was argued that evidence was admissible, that by reason of the reaction of the complainant one was able to say it was not the accused who had done it but some other person.

MR BARKER:   Yes, but this was evidence of ordinary, happy, everyday behaviour in an organisation run by the accused of which he was present which a jury ought to have been able to access for themselves, with respect.

McHUGH J:   I understand that.  Mr Barker, the problem you have is that the juries are the constitutional tribunals to determine the guilt or innocence of people and it is only in cases where there is either no evidence or it is an abuse of the processes of the court for proceedings to be instituted that courts can or, in my view, ought to intervene and it seems to me this case falls well short of that.

MR BARKER:   I do not quarrel with the principle.  I simply urge upon you the view that this case falls within it.  If the Court pleases.

GAUDRON J:   Thank you, Mr Barker.  We need not trouble you, Mr Hosking.

The Court is of the view in this matter that there is no reason to doubt the correctness of the actual decision of the Court of Criminal Appeal.  The application is therefore refused.

AT 10.22 AM THE MATTER WAS CONCLUDED