Elliott v Min for Transport for WA & Anor
[2000] HCATrans 253
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S233 of 1999
B e t w e e n -
ALAN JAMES CRAMPTON
Appellant
and
THE QUEEN
Respondent
GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 25 MAY 2000, AT 10.25 AM
Copyright in the High Court of Australia
MR P. BYRNE, SC: If it please the Court, I appear with my learned friend, MS M.A. MARTY, for the appellant. (instructed by MacMahon Associates)
MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear with my learned friends,
MR S.J. GAGELER and MR A.M. BLACKMORE, for the respondent. (instructed by S.E. O’Connor, Solicitor for Public Prosecutions)
MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth: If the Court pleases, I appear with my learned friend, MR A.S. BELL, for the Attorney‑General for the Commonwealth intervening. (instructed by the Australian Government Solicitor)
Your Honour, two questions arise as to the order of addresses. The first is that it has been agreed by the parties, subject to the views of the Court that the interveners should go before the appellant in any event. They are both intervening in the interest of the appellant. The second matter is that we would ask your Honours to deal with the constitutional question in which the appellants are interested first. In other words, that after we have concluded our argument, your Honours would hear the parties on that issue alone and our replies, rather than hear the whole of the case. That has the advantage that if your Honours are of the view that the issue raised by the respondent succeeds and your Honours are of that view at this stage, that of course would shorten the hearing of the appeal. The other matter, of course, is that it would render it unnecessary for our learned friends from South Australia and ourselves to be here for the whole of the appeal.
GLEESON CJ: That would only have the effect that you mention in the event that we formed a concluded view on that subject today.
MR BENNETT: Yes, your Honour, that is so.
GLEESON CJ: No, we will just hear counsel in the ordinary order.
MR BENNETT: If your Honour pleases.
MR B.M. SELWAY, QC, Solicitor‑General for the State of South Australia: If it please the Court, I appear with my learned friend, MS I.K. HAYTHORPE, for the Attorney‑General for South Australia, who seeks to put submissions on the special leave application in support of the applicant. Your Honours, if it is necessary, we seek leave to intervene to put those submissions. (instructed by the Crown Solicitor for South Australia)
GLEESON CJ: Since both of the interveners are supporting the appellant and the applicant, we will hear argument from the appellant and the applicant and the interveners and then from the respondent. Yes, Mr Byrne.
MR BYRNE: May it please the Court. Can I ask your Honours whether your Honours wish me to address first the matter in which special leave has been granted or ‑ ‑ ‑
GLEESON CJ: Yes, go first with your appeal and then with the matter in which you need leave.
MR BYRNE: Your Honours, the issue raised by the appeal is the adequacy of directions given by the learned trial judge in relation to the issue of delay in a complainant in a sexual case, bringing the complaint to the attention of the authorities and the consequences of that delay.
Can I take your Honours directly to the directions that were given by the learned trial judge in the course of her summing up. The relevant passages in the summing up of the learned trial judge are contained in the appeal books, firstly at page 225, where her Honour commences her directions to the jury on this aspect of the case. At approximately line 46, final paragraph on page 225, her Honour says:
Clearly you have to look carefully at the circumstances in which there has been no complaint at the time. But those matters to which I referred are also matters which you must take into consideration and give some thought to. You had the chance to observe both young men in the witness box and to assess their level of sophistication, even now in their early thirties.
Going on to the commencement of the next paragraph:
Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential.
Just going further down the page to line 32:
Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross‑examination of them. It may also, of course, explain some errors in the recollection.
There was, following those directions, an issue raised by counsel for the appellant in the trial proceedings relating to the adequacy of those directions. That issue is referred to at page 236 of the appeal book where counsel raised the decision of this Court in Jones’ Case which was another case which dealt with a relatively lengthy delay in the bringing of a complain in a sexual matter. There were further directions given by the learned judge in the light of issue raised by counsel and they are at page 245 of the appeal book. At line 40 her Honour said this:
You will be aware that in the circumstances of a twenty year delay that clearly those are all matters which you are going to consider. You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused.
The essential matter, of course, as I said to you is the witnesses for the Crown because it is on that evidence, that is two witnesses for the Crown, it is on that evidence, and that evidence alone, the Crown bearing the burden of establishing the case against the accused that you could be satisfied beyond reasonable doubt and obviously the matters which have been raised in the defence case are matters which you will use to test that evidence.
GLEESON CJ: Mr Byrne, you passed over page 236 before I had just picked up the point on that page where there was the application for redirection.
MR BYRNE: I am sorry, your Honour, it was at page 236 line 40.
GAUDRON J: The redirections are at page 245. I think you said 235.
MR BYRNE: I apologise, your Honour. Thank you – 245 is quite correct.
GLEESON CJ: Line 40?
KIRBY J: That is just a reference to Jones. Is the reason for taking us to 236 that this was the page on which the accused made a complaint through his counsel?
MR BYRNE: Your Honour, the reason for taking your Honours to that passage was to simply note that counsel for the appellant at his trial did raise with the learned judge the question of the giving of a warning about the danger of convicting without supporting evidence.
GLEESON CJ: It is really at line 45 or line 46, is it not?
MR BYRNE: Yes, your Honour.
GLEESON CJ:
His Honour suggested…..that an adequate warning about the difficulty of establishing the defence case after a lapse of four years, a direction which your Honour did give, was necessary.
HAYNE J: The real complaint comes at 237 line 4, does it not?
MR BYRNE: Yes, that is certainly a part of the general objection where counsel for the appellant said:
the jury need, in my submission to be warned that it is essential for them to scrutinise with great care the complainants’ evidence on this aspect. My submission is that your Honour has given them no such direction at all and indeed that the summing up which your Honour gave tended the other way –
Your Honours, the point regarding the adequacy of the directions in relation to the later complaint and, in particular, the consequences of that complaint on the jury’s assessment of the reliability of the complainant was taken, in our submission, in the trial proceedings.
Your Honours, what we would contend are the shortcomings in that summing up are set out in the summary of argument that has been filed on behalf of the appellant at paragraph 2.6 and following. The general contention in relation to the directions given in this summing up is that it merely stated the existence of certain facts without adequately drawing to the jury’s attention the consequences of those facts and, in particular, the consequences of those facts in their assessment of the reliability of the evidence of the complainant and upon their assessment of the disadvantages that the delay had caused to the appellant in bringing a defence to this charge.
I have been referring to the individual complainant and to a single charge because this appeal is, of course, brought against a single conviction in an indictment which charged five separate offences. As your Honours are aware, the other four were the subject of disagreements on the part of the jury.
Your Honours, the specific shortcomings of the summing up are set out in the submissions. There are seven separate basis on which it is submitted that those directions given by the learned judge are inadequate. The essence of the contention on this appeal is that what the learned judge said to the jury was insufficient to alert them to the dangers, and the directions generally did not reach the standard which this Court established in Longman’s Case, and which it has confirmed in subsequent decisions, including Crofts and Robinson.
The decision of the Court in Longman has been considered by courts of criminal appeal in the various States. The general ‑ ‑ ‑
KIRBY J: The delay there was also a very long one, was it not, 20 years?
MR BYRNE: In Longman itself, yes it was, although it should be said that the delay in the case of Jones, a decision of this Court, was between three and four years, and in Crofts’ Case the delay was a period of six years. But the general principles established by the Court in Longman were held to be applicable where the delay was as relatively short as it was in Jones’ Case and in Crofts’ Case. This case is a case where the delay was in the order of 19 years before the complaint was brought to the attention of the police, and some 20 years before the matter was before the Court trial.
Those decisions of the various courts of criminal appeal that have been referred to in the written submissions, in our submission, maintain what we contend is a strict standard established by this Court in Longman, a strict standard which this summing up failed, in our submission, to comply with.
GAUDRON J: There was more than delay, however, in Longman, was there not, Mr Byrne? There were some quite unusual circumstances.
MR BYRNE: There were features in Longman which were indicative of unreliability; in particular the fact that the complainant in that case was said to be waking from sleep at the time the offences were committed. It is also perhaps legitimate to distinguish Longman, at least in one sense, in that the complainant in Longman’s Case was slightly younger than the complainants in this case, but the general principle which we say is established by Longman and has been confirmed by other decisions of this Court and frequently applied by the Courts of Criminal Appeal in the various States applies, in our submission, to the circumstances of this case, notwithstanding that there may not be, in the specific circumstances of this case, the precisely equivalent factors indicating unreliability that existed in Longman. The significant feature of this case was that the delay was very long and that the result of that delay did have significant consequences.
GAUDRON J: Is there another circumstance in this case, namely, that one of the co-complainants was not asked - was said to have been present or was not asked about this?
MR BYRNE: Your Honour, that feature of this case is a matter which needed to be taken into account by the jury. The conflict in the evidence between the two separate complainants was clear. That was before the jury, but it was a matter which should have been the subject of a specific reference by ‑ ‑ ‑
GAUDRON J: No, I was not alluding to the need for a separate reference. I was asking whether that in some way strengthens the need for a Longman‑type warning?
MR BYRNE: Well, it is, in our submission, your Honour, an indicator of unreliability. There is a clear conflict between two witnesses giving evidence about events long ago which, if they had occurred in the manner which one of those people alleges, would, in the normal course of human experience, expect to be remembered by both of them.
GLEESON CJ: Did that apply to the count on which there was a conviction?
MR BYRNE: It did not, your Honour. The ‑ ‑ ‑
GLEESON CJ: No, that applied to the counts on which there was a hung jury.
MR BYRNE: It did, your Honour. That is a point of distinction. The first count, which was the subject of the conviction, was a count which was alleged to have occurred in the presence of a single complainant alone. It was not suggested that the other complainant was present when that offence occurred.
HAYNE J: Now, do you say that Longman requires a judge to instruct a jury about weaknesses and infirmities in the evidence, or does Longman require a judge to instruct a jury about weaknesses or infirmities in the evidence, of which the jury may not be aware or to which they may not advert without express instruction?
MR BYRNE: Your Honour, in our submission, the trial judge should direct the jury in relation to both matters. If there are specific matters raised by the evidence which are indicative of reliability, then they should be brought to the jury’s attention in a specific way in the summing up; but if there are matters as, in our submission, there will always be when there is a delay in the order of 20 years, as there was in this case, then those matters of which a jury would not necessarily ordinarily be aware should also be drawn to their attention.
HAYNE J: What invited the question was the statement in Longman 168 CLR, particularly at 91 in the joint judgment where a distinction seems to be drawn, on one reading of what their Honours say, between matters that require comment or might elicit comment, on the one hand, and matters that positively require warning. Do I misread Longman, do I misunderstand the principle as being one that would distinguish between those two sets of circumstance?
MR BYRNE: Your Honour, in our submission, those two sets of circumstances do not require distinction. Wherever either is present there should be a specific warning and, a fortiori, where both are present.
HAYNE J: It seems to me, if I may say so, that your argument may go as far as it needs to go if you identify the lapse of time as being a matter that makes it difficult, if not impossible, to challenge the evidence of the complainant and that that, consistent with Longman, is a matter that the judge must warn the jury about. That may take you as far as you need to go but it seemed to me that you were advocating a rather wider proposition than that and I wondered whether that found support in the authorities.
MR BYRNE: In our submission, the summing up should not only alert the jury in circumstances where there has been a long delay to the difficulty, if not the impossibility, confronted by the accused person of challenging the allegation made against him or her. The important matter that needs to be drawn to the jury’s attention, again to distinguish not simply the difficulty of challenging the version given, but the difficulty, or indeed in some cases impossibility, of testing the reliability of the version. It is one thing to be able to challenge it by reference to circumstances that existed at the time but where the delay is as long as it was in this case, in the order of 20 years, it is effectively impossible to adequately or in any sensible way test the reliability of the witness’ recollection.
There is simply an assertion that an event occurred in the manner alleged and that assertion cannot be tested as to its reliability in any sensible way. Your Honours, the written submissions do deal with ‑ ‑ ‑
KIRBY J: You passed over a passage on 226. Is that the passage where her Honour said, or as I read the written submissions suggested that it did not matter quite so much in this case because there is simply denial. Is that a fair understanding of the written submissions, is that a point that is being made?
MR BYRNE: It is, with respect.
KIRBY J: Is that a separate point, or the same point?
MR BYRNE: It is a point that is made. It is a complaint that is made about the adequacy of this summing up.
KIRBY J: You skipped from line 15 to 31 in your reading of 226. Is that the passage where it is suggested that this mistake crept in, or not?
MR BYRNE: That is the passage, your Honour, yes. What her Honour appears, in our submission, there to be saying, with respect, is that the disadvantage to the accused, as he was in this case, is somehow diminished by the fact that his defence was a denial that the incident alleged against him had occurred. Perhaps the first point that needs to be made in relation to that direction which, in our submission, tends to diminish the force of the warning, is that that will almost always be the case. It is never realistically going to be the case in an offence of this nature, that there is some concession that the event occurred. I suppose it is conceivable that there may be a situation where somebody would say there was a touching of a certain kind but it was accidental, or entirely innocent, or for some other ‑ ‑ ‑
KIRBY J: Her Honour might have been thinking of the case of a person of age of competency to give consent, and a complaint years later, and the failure in that circumstance to make the complaint promptly. That might have been the case that her Honour was thinking of. It would not arise in an under age person, but it could arise in the age of a person who was competent to give consent.
MR BYRNE: That is another situation. But in all of these cases where the allegation is made about events that occurred in the childhood of the alleged victim, almost invariably the defence case will be that the events alleged simply did not happy. So that to suggest, as we, with respect, suggest that this summing up does, that the disadvantage to the accused person is somewhat diminished by the nature of his or her defence is to detract from the strength of the warning. That is one of the characteristics which a warning is required to have according to the various judgments given by this Court in Longman’s Case.
What was required, where there was such a significant delay, was a strong warning as at least two of the judgments said to alert the jury to the difficulties that were created by the delay, particularly the difficulties in assessing liability and the difficulties confronted by the accused person in defending the charges.
KIRBY J: Are you going to take us at some point to what was actually said in Longman because, though I am generally familiar with it, it is some time since I have read it. It might be helpful at some point, not necessarily now, to have what you say is the holding in that case.
MR BYRNE: Your Honours, I can do that now and the first point of reference in Longman’s Case (1989) 168 CLR 79 at 90. Can I take your Honours firstly to the joint judgment of Justices Brennan, Dawson and Toohey. At page 90 at about point 7 the judgment refers to the features of the case which called for a warning, the passage commencing about point 7:
There were several significant circumstances in the case: the delay in prosecution, the nature of the allegations, the age of the complainant at the time of the events alleged in the two counts in the indictment, the alleged awakening of a sleeping child by indecent acts and the absence of complaint either to the applicant or to the complainant’s mother.
Your Honours, the content of the warning which the joint judgment referred to is at page 91. After making the observation – this is at point 5 on page 91 immediately prior to the reference to Jago’s Case ‑ ‑ ‑
GLEESON CJ: Before you get to that, what do you say about the first complete sentence on page 91, bearing in mind the question Justice Hayne asked a little earlier.
MR BYRNE: That is also, your Honour, a factor which, in the circumstances of this case, was one which gave rise to the need for a warning.
GLEESON CJ: That sentence precedes what follows and what you rely on, does it not? That is to say that it is a factor that may not have been apparent to the jury and therefore required not merely a comment but a warning.
MR BYRNE: Yes.
HAYNE J: And by contrast, the matters to which you earlier referred were described by the joint judgment as being matters in respect of which it would not have been surprising if they had elicited comment.
MR BYRNE: Yes.
HAYNE J: Well, that is very different from saying a judge is bound to.
MR BYRNE: I take the point of distinction that is made. But it would be our submission that where there are features of the case such as those features identified on page 90 which bear upon the assessment of the reliability of the complainant, and most particularly in a case where the proof of the offence charged depends entirely on the evidence of the complainant, then those factors which do indicate reliability, or which may be seen reasonably to indicate unreliability, should be specifically alerted to the jury in the summing up.
GLEESON CJ: Have you looked at the passage in Spencer’s Case that is relied on as authority for that proposition?
MR BYRNE: I have to confess that I have not, your Honour.
HAYNE J: The consequence of that submission is the prolongation of judicial charges to juries. If that is the inevitable consequence, so be it. But the jury are the tribunal of fact, not the judges and they do bring some commonsense to bear.
MR BYRNE: We accept that, with respect, your Honour, but it is nevertheless, in our submission, an essential component of a summing up in a case such as this that the jury be specifically alerted by the summing up to factors in the evidence which clearly bear upon the reliability of the complainant’s evidence. It does have the consequence, we accept, that it may prolong, in some circumstances, the summing up given by a trial judge to a jury. But that is a difficulty which does have a purpose. The reason that it is done is to guard against the risk of miscarriage of justice in cases where the evidence may, in fact, be unreliable. The same issue has been dealt with by this Court in the context of identification cases in Domican v The Queen, which is in volume ‑ ‑ ‑
HAYNE J: Again, where the weight of the judge’s office must be brought to bear to inform the jury of matters of which the jury may not be aware. As I say, that proposition seems to me to be very different from the proposition that a judge must draw to the attention of the jury matters of which they are aware and to which their attention may well already have been brought by counsel in their addresses.
MR BYRNE: Your Honour, the difficulty of determining whether a jury is aware of a specific matter which may indicate unreliability requires, in our submission, in order for a summing up to properly put the issues to the jury, that the jury specifically be made aware so that there can be no doubt and the fact that those matters may have been referred to in the addresses of counsel is not a matter which, in our submission, should relieve the trial judge of the responsibility of again alerting the jury to those matters, if only to make sure that the jury understands that they are matters which the law requires them to take into account rather than one or other of the counsel who has addressed them.
McHUGH J: But is not one of the problems with what has happened since Longman this, that courts have seemed to take the view that some variant at what Justice Deane or I said represented the rule in Longman, but, if you look at what the majority said, a Longman warning is a rather special warning, which is required only where the accused has lost the means of testing the allegations against him or her by reason of the delay and it stands for nothing more than that. A warning is required only in those circumstances.
MR BYRNE: Well, with respect, our submission ‑ ‑ ‑
McHUGH J: He can comment, you might expect a judge to comment, but so far as warning the jury, it is in a very narrow category.
MR BYRNE: That is, with respect, the minimum requirement of a warning established in Longman. The warning is one, and the content of the warning to be given, obviously does depend upon the circumstances of the case and the features of the individual case which give rise to a need for a warning, but the general proposition emerging from Longman is that in every case, in any case, where there has been a delay of a length of this magnitude, then there does not need to be any evidence to establish the difficulties that that creates in terms of assessing reliability of events so long ago or the difficulties that it creates for the accused in meeting the charges against him.
McHUGH J: Yes, I know, but when I wrote a separate judgment in Longman, I was conscious - and I suspect Justice Deane was also conscious ‑ of the fact that the majority view was quite narrow and that a more expansive warning was required. But if you look at cases since, there seems to be a view that what is referred to as “comments” at page 90 of the joint judgment really means some sort of warning of its effects or effect.
MR BYRNE: Well, the joint judgment did distinguish, as Justice Hayne has raised and the Chief Justice has raised, between matters that may justify comment and matters which require a warning.
GLEESON CJ: Because the warning is an instruction to the jury that it is dangerous to reach a certain conclusion of fact. Now, bearing in mind the respective responsibilities of the trial, of the judge and the jury, the circumstance in which a judge is obliged, not merely to direct the attention of the jury to the significance of certain considerations, including considerations that might otherwise escape their attention, but to actually tell them that it is dangerous to reach a certain conclusion of fact. The circumstances might be thought to be relatively confined.
MR BYRNE: That is, with respect, appropriate, but, your Honour, wherever the delay is in the order of 20 years, then such a warning is, in our submission, legitimate, unless there is some unusual feature of the case which removes it from the general run of cases and the dangers that are conventionally present are, for some reason, in that case not present. But there has not been such a case, as far as our researches have found. Wherever the length of the delay is as long as this, then those consequences inevitably follow. They cannot be relieved against.
KIRBY J: As you pointed out, there have been a number of post‑Longman cases, Crofts and Jones and I think others.
MR BYRNE: Robinson is another one, yes.
KIRBY J: Have they built on and developed the rationale in Longman. I mean, it may be as well if we get what Longman says first, and then see if there has been any extension or development of the instruction of the Court.
MR BYRNE: Well, our general response to that, your Honour, is that there has been nothing since Longman which has in any sense diminished the force of Longman. It has been confirmed by this Court on a number of occasions and, as I said, on many occasions by Courts of Criminal Appeal in the various States and Territories.
KIRBY J: Did her Honour give a warning of the difficulty that it presented to the accused in this case of such a long delay with any reference to the way in which that, as a matter of practicality, could impinge upon his preparation of his defence, save for a denial?
MR BYRNE: Not, in our submission, in an adequate way. There was reference to the fact that there may be difficulties, but ‑ ‑ ‑
KIRBY J: But, what, in practice, could have happened here? I mean, assume a complaint had been made six months later, what could have been done to investigate it in a way that would have helped the accused? One of the points of difference was whether the door of the site at which the offence was alleged to have occurred was shut. That is not something that you could readily check in six months time.
MR BYRNE: No, your Honour, there were a number of investigations that might have been carried out to assist in determining the reliability or the accuracy of the allegations made. These – and if I might confine the submission to the first count on the indictment, the count which was the subject of conviction, that was an offence which was alleged to have occurred in a storeroom which adjoined a classroom at a time when the classroom was occupied by a class of children. If the allegation had been made within a reasonable time, of its alleged occurrence, then those children who were said to be in the classroom at the time would have been in the position to observe that there had been an occasion when the teacher had gone out of the classroom with one child, alone.
It would have also have been legitimate to expect, perhaps, that some of the children - and they were all late primary school children - might have recalled the fact of the distressed condition of the complainant. But, what happened here was that years later – 20 years later – there was no way of adequately calling upon those children to recall the events of that day that did not particularly concern them.
GLEESON CJ: Just speaking purely for myself, I think there is a lot of force in that but you could say the same if the delay in complaint was six months instead of 20 years. If, for example, the problem is that the cause of the delay in complaint by the time it was raised with the accused he had no way of checking up, for example, on where he was at a particular time or a particular day and no possibility of recollecting it unless something unusual happened then a delay of six months could produce the same result.
MR BYRNE: It could but it would not necessarily produce the same result and, if it did produce the same result, then even a delay as short as six months would necessarily require a warning of the kind contemplated in Longman. It is not the length of the delay as such which is the determinative factor but the impact of the delay and that matter, I suppose, is confirmed by this Court’s decision in Jones, where the delay was in the order of three and a half to four years. There was a series of offences over a period ‑ ‑ ‑
McHUGH J: It is the loss of the means of testing the allegations by reason of the delay. “By reason of the delay” is really adjectival. It is the loss of the means of testing the allegations that is critical.
GLEESON CJ: You give the same kind of warning if, for example, it was not a question of delay at all but there had been some piece of evidence that had been negligently destroyed or misplaced by somebody.
MR BYRNE: Yes, certainly.
GLEESON CJ: The actual passage in Spencer’s Case that is referred to on page 91 of Longman is a page in which the House of Lords pointed out:
that the obligation to warn a jury does not involve some legalistic ritual to be automatically recited by the judge, or that some particular form of words or incantation has to be used…..there are no set words which must be adopted to express the warning.
MR BYRNE: Again, as I understand the authorities and Longman itself, the warning is one that needs to be fashioned according to the circumstances of the case and the adequacy of the warning will in turn be measured against the circumstances of the case. Where there were particular circumstances that demanded the giving of a warning and a warning was not given or an adequate warning was not given, then that is the measure of the adequacy of the summing up.
McHUGH J: I wonder whether that view should prevail. More than once recently I have wondered whether or not the time may have come for a rule of practice, as in McKinney and Judge in which some form of specific warning is required in these cases, because experience has shown from the few cases we get here that judges’ warnings vary from – they are subject to appeals. I am not sure that the administration of justice is well served by this discretionary latitude that is left to the trial judges. That is what has happened of course with McKinney. We started off with Carr’s Case and some other case and we said it is a matter for the judge to warn. Eventually the Court had to lay down a rule of practice in McKinney solved the problem. I just wonder whether or not that stage has not been reached for these warnings.
MR BYRNE: The difficulty with cases of this kind – and in distinction from the circumstances in McKinney and Judge, the Court in McKinney and Judge recognised the need for a warning to be given where certain circumstances existed and that in fact prompted a change in the practice of the investigating authorities, so that the problem that was confronted by McKinney and Judge, at least speaking for New South Wales, is a matter of ancient history. It just does not happen any more. There is no such solution to these kinds of cases though.
GLEESON CJ: Although McKinney and Judge is from one point of view a very good example of the need to retain the discretion because the certain circumstances that were addressed in McKinney and Judge were a long way from the circumstances that needed to be addressed. McKinney and Judge would then apply when policemen gave uncorroborated evidence of verbal confessions by accused but it said nothing about the numerous cases in which police did not attribute uncorroborated verbal confessions to accused but simply gave evidence about things they saw the accused doing which were equally uncorroborated and equally damaging to the accused.
MR BYRNE: Yes. In the vernacular that was explained as the verbal becoming the visual.
GLEESON CJ: Exactly. So, McKinney covered the case where the accused said, “A man is an animal. You’ve got me.” But it did not cover the case where the policeman said, “I saw the accused remove a plastic bag from his pocket with some white powder in it and hand it over to somebody in exchange for some cash”.
MR BYRNE: If I can just go back to respond to an issue that your Honour the Chief Justice raised about the length of the delay and the impact that that may have. One of the real difficulties in dealing with these cases, particularly where there are allegations involving a complainant at the time the complainant was a child, is that the general assessment of reliability by reference to things such as demeanour and the way in which a person gives the version of events is better able to be tested where that version of events is given relatively close to the events in question.
When it is as long as 20 years later, the jury is asked really to deal with a completely different person from the person who was the subject of the alleged offences and it is really an impossible task for a jury to try and imagine - and that use of the word “imagine” is probably indicative of the problem itself - what the complainant would have been like as the person who was the alleged victim of the events.
Your Honours, in the preparation of this matter we have endeavoured to anticipate a question that may be raised by the Court where we are submitting that the directions in this case were inadequate to achieve the objective of bringing home to the jury the difficulties caused by the delay in bringing the complaint. We have put together what, in our submission, should have been said to the jury by way of direction to them and I would ask, if I may - - -
GLEESON CJ: Mr Byrne, a problem that I think we are going to need to have to face up to is how the appropriate direction for which you contend in a case such as the present is to be related to the very common statutory provision which requires judges to, in one sense, water down the effect of delay in or absence of complaint by pointing out to them that there may be good reasons why a person does not complain. I noticed that Judge Karpin, in a sense, got caught up in that problem here. You cannot really, can you, isolate the direction that the jury must be given about the consequences of delay from the statutory provision which, in one sense, as a practical matter, tends in the other direction?
MR BYRNE: Yes. In our submission they cannot be isolated but the statutory requirements to give directions about the reasons why, or the fact that there may be reasons for a delayed complaint, is simply a matter of balance in cases such as this.
GLEESON CJ: What is the statutory provision that applied to the present case?
MR BYRNE: In New South Wales, your Honour, it was that provision which relates to the giving of a direction in terms that there may be good reasons why there is a delay was in New South Wales section 405B of the Crimes Act at the time of this trial. It has since been incorporated in some other legislation, but in identical terms.
HAYNE J: How do you relate this direction to the course of trial in the sense of what counsel have said to the jury? Because I can tell you there is nothing harder than to engage 12 people by telling them something for the third time. The eyes glaze at the best of times but to tell it to them for the third time, you have lost them. Now, there is a real and practical problem if a trial judge is confronting 12 pairs of eyes staring at them. How do you relate this mandate to the way the trial has gone?
MR BYRNE: Your Honour, the answer to that is initially, of course, it depends on how the trial has gone. It is not every case where counsel has alerted the jury sufficiently to the problems that exist. There may be circumstances where matters have been overlooked by counsel. But even where they have not, even where counsel – and in this case obviously counsel for the accused person – has addressed the jury comprehensively on the problems associated with the delay, there still needs to be, according to a number of authorities that have been referred to in the submissions, a direction given by the judge which carries, as it is said, the weight of his or her judicial office. There has been a number of relatively recent decisions in South Australia and Victoria which affirm that principle, that it simply is not enough to say, “You heard what counsel said about that matter. You can take that into account”, there needs to be more done than that, and it needs to come from the judge personally.
GLEESON CJ: So, the Longman warning in New South Wales, and I think in most other Australian jurisdictions, by virtue of the statute had to be preceded by another warning. It had to be preceded by a warning that delay in complaint does not necessarily indicate that the allegation is false, and the information that there may be good reasons by a victim of a sexual assault, may delay. Was this a prescribed sexual offence, by the way?
GUMMOW J: That is the question, is it not? It is defined in section 4, but is it defined in terms of this old section?
MR BYRNE: No, it probably was not a prescribed sexual offence because it was ‑ ‑ ‑
KIRBY J: It had been repealed, I think.
MR BYRNE: It had been repealed prior to 1981, I think that is right.
GLEESON CJ: Right, so this section 405B would only apply – or it would apply in many cases to which Longman speaks, but it did not apply in the case with which we are concerned.
MR BYRNE: No it was not mandatory that that direction be given, although there was always, of course, a discretion in the judge to give such a direction if the judge considered the circumstances of the case required it. We, with respect, have not any complaint about that direction being given. It really comes down, in the end, to a question of balance. I suppose the requirement that a Longman direction be given is perhaps greater in a case where a direction of the kind contemplated by section 405B is given. But Longman itself was a case which came to this Court on a question of interpreting the directions that should be given, I think from Western Australia.
There is a recent decision of the Court in Robinson from Queensland where a similar issue is confronted. But in each case the Court has said that those statutory provisions requiring warnings to be given about the reasons why there may be delay and the mere fact of delay does not indicate an untruthful complaint. Those warnings, required by statute, do not relieve the trial judge of the obligation to give an appropriate warning on the adverse consequences of delay where that exists.
Your Honours, we have referred in the submissions very briefly to decisions in England and in Canada which, in our submission, confirm the correctness of the approach taken by this Court in Longman.
KIRBY J: Was anything said in Crofts or Jones that makes clear, or clearer, the requirement that the Court has laid down, or do they simply apply the Longman rule?
MR BYRNE: They really simply apply Longman, in our submission, although the significant development that they represent is that they applied the Longman directions to cases in which the delay was relatively short.
KIRBY J: But that just brings out the Chief Justice’s point that the actual duration of the delay does not escalate the requirement for words; the damage may be done in a much shorter time than 20 years from the point of view of properly presenting the accused’s case, but this charge that you have handed up seems a very long charge. I mean, if one is going to add this obligation to judges, then you run into the problem Justice Hayne has mentioned.
MR BYRNE: Yes, I accept with respect that criticism. The terms of what, in our submission, should have been the direction given in this case are really taken from the three separate judgments given in Longman, those of the majority, Justice Deane and Justice McHugh, but also incorporating what we submit is the necessity for the judge to inform the jury that the directions given are matters of law rather than matters that counsel might think are of importance to them.
GLEESON CJ: Yes.
MR BYRNE: Your Honours, those are the submissions that we wish to make on the appeal.
GLEESON CJ: Thank you. You may go on to the application for leave.
MR BYRNE: May it please your Honours. The application for special leave to appeal is now based on two grounds which are set out in the draft notice of appeal which is contained at page 308 and 309 of your Honours’ appeal book. The first of those grounds is a contention that the conviction of the applicant on a charge under section 81A of the Crimes Act was clearly wrong on the basis of the evidence that was presented in the case. The second ground of the application is that the directions given by the learned judge in relation to the elements of the offence charged under section 81 were inadequate in that they failed to explain to the jury the true nature of the offence.
The offence charged against the applicant was committing an act of indecency with a male person. That offence has, as far as our researches are able to discover, always been regarded as an offence which involves the participation of two people. To charge a person with an offence of committing an act of indecency with a male person is to allege that he and another male person were engaged in some act of indecency together and that they were willing participants in that act.
KIRBY J: Does this offence – this long precedes the removal of the offence involving consensual adult conduct, so, is it, in a sense, a relic of that time that just committing the offence with a male person was a criminal act?
MR BYRNE: Yes, it remains an offence in New South Wales and the United Kingdom and other places where one of the participants is under the age of 18 years. That is the only continuing relevance that the offence now has. But to the extent that it relates to adults, it is, as your Honour says, a relic of days gone by.
KIRBY J: Was there in those days gone by at the time this was an offence in New South Wales, I am not just quite clear, another offence oftowards or?
MR BYRNE: No, there was not, not in terms towards, although it should be said that there were summary offences which could be charged where conduct involved allegedly indecent conduct but did not involve the participation of two people. There were offences such as indecent exposure, there were common law offences of scandalous conduct, of matters of that kind, but there was not any offence in New South Wales involving males which contemplated the concept of an offence committed towards another until 1981 when ‑ ‑ ‑
GLEESON CJ: But bearing in mind that offences of this kind sometimes allegedly involve not just people under the age of 18, but people of tender year, the concept of participation on the part of the second person is sometimes a little illusive, is it not?
MR BYRNE: Yes, and it is, in a sense, unrealistic, but the charge does have a specific meaning. The charge of committing an act of indecency with another person involves conduct beyond the conduct which was proved against this applicant. That explains the legislature introducing into the criminal law concepts such as offences with, on the one hand, and offences towards, on the other. So that the full range of criminal behaviour towards minors is covered. But the offence of committing an act of indecency with a person does have a specific legal meaning, in our submission, and it is distinctly different from the concept of ‑ ‑ ‑
McHUGH J: What is it? What is the “with”? I mean, in his autobiography, I think it was, it might have been biography, Joe Orton talks about being in lavatories in London where a number of men are mutually masturbating together. Now, why is not that – why could not they be charged with – although what they are doing, there is no physical contact, why could not it be said that they are committing acts of indecency with a male person?
MR BYRNE: It may be that they could because they are together participating in a form of common act, but that is not the situation here. The situation in this case was distinctly different from that. This young person, child, was clearly an unwilling participant. He was merely a person who was present in the vicinity when, on the evidence, an act of indecency was committed by the applicant.
GLEESON CJ: I notice that in one of the earlier English cases Lord Chief Justice Parker explained the statutory reference in England to acts with or towards another on the basis, not that they meant two different things, but on the basis that the distinction between those two concepts in particular cases might be so blurred and so artificial that the legislature wanted to ensure that it did not matter. There seemed to be some good sense involved in that when you bear in mind that some of this conduct might be conduct involving a child of tender years.
MR BYRNE: Yes. That cannot be, with respect, challenged, but the legislative terms in New South Wales were different from the legislation in England in that regard. What New South Wales has always had until 1981 was the concept of committing an act of indecency with a person and not the concept of committing an act of indecency towards a male person.
GUMMOW J: What is the position in other States?
MR BYRNE: Your Honour, we have prepared a schedule of the relevant legislation in other States. The comparative provisions relating to acts of indecency ‑ ‑ ‑
GUMMOW J: It seems to have various propositions.
MR BYRNE: Yes. There is a range of different things, although it should be said that now, as distinct from back in 1978, 1979, the concept of committing an act of indecency towards a person or an offence which has the same legal effect, committing an act of indecency in the presence of another person, are offences in all States.
Can I ask your Honours to add to that material something that was unfortunately omitted. The Criminal Code in Queensland by section 227 provides for an offence which involves an indecent act in any place to which the public are permitted to have access. That is section 227 of the Criminal Code Act in Queensland.
KIRBY J: These statutory provisions you have handed up do not appear to refer to “towards”, most of them are “in the presence of”.
MR BYRNE: Yes, that concept is not known in New South Wales. The New South Wales provision is “towards another”, and “towards means”, as we understand it, “in the presence of”. Your Honours, it is a relatively confined point but it is apparent that the manner in which this trial was conducted was, in our respectful submission, misconceived. The case was dealt with on the basis that the term “with” in section 81A, which was the section under which the accused was charged, it did not have any particular legal meaning and, indeed, the directions given by the learned judge were to the effect that its legal meaning was different from what it, in fact, was.
GLEESON CJ: The case was conducted, as I understand it, on the basis that this just was not an issue.
MR BYRNE: That is right.
GLEESON CJ: Or to put it another way, that if the facts alleged by the complainant were true, there was an offence made out.
MR BYRNE: Yes.
GLEESON CJ: One of the arguments that is put against you is that, having regard to the totality of the facts alleged by the complainant, that was a reasonable approach to the conduct of the case.
MR BYRNE: I accept the proposition that is put against us. But that is a matter which does not appear to have been a matter of any significance so far as the trial proceedings or, indeed, the appeal proceedings were concerned. The contention is that the involvement - perhaps it should be said “participation” of the young person in the act of cleaning up the floor was a sufficient involvement or participation to establish the necessary element of the offence being committed with another. But that question does not appear, as we submit, to have been one which was ever given any prominent consideration in the trial proceedings or the appeal proceedings.
KIRBY J: But does that matter? As I understand it, you are taking an objection in the nature of a demurrer. You are saying on the facts it cannot answer to the charge, whereas if one view of the facts is that some people secure sexual gratification by the presence of another person and then get that person to clean up the semen, that that is sufficiently with, then the facts answer to the charge. That is the argument.
MR BYRNE: Your Honour, I accept the argument. That conduct involved in cleaning up the semen was a separate act from the conduct which was alleged to be the act of indecency. That fact emerges from ‑ ‑ ‑
KIRBY J: Is that so? One could perhaps conceive that some people’s fantasy might be to have another person clean up their semen.
McHUGH J: And assuming the Court has jurisdiction to entertain the matter, surely it is a matter that might go to the question of discretion as to whether you would be allowed to raise the point when it had been raised at the trial.
MR BYRNE: Yes.
GLEESON CJ: Particularly since the failure to raise the point at the trial might have deflected further examination of the precise detail of the involvement of the complainant.
MR BYRNE: I accept, with respect, that it is clearly a matter which must be prominently considered in determining the discretion whether or not to grant special leave. There can be no argument.
GLEESON CJ: You can understand a trial counsel taking a tactical decision that he just did not want the jury’s noses rubbed too closely in that subject.
MR BYRNE: Yes, but it is apparent from not only the way the case was conducted but, more importantly, from the directions that the learned judge gave, that all of the participants in this trial, both counsel for the Crown, counsel for the applicant and the judge herself, were unaware of the true legal meaning of “committing an act of indecency with a male person”.
GAUDRON J: The trial judge’s remarks equated with “in the presence of” without any further analysis.
MR BYRNE: Yes, those very words were used.
GUMMOW J: Whereabouts does that appear?
KIRBY J: Is the meaning you argue for settled legal meaning to those words in New South Wales?
MR BYRNE: Yes.
KIRBY J: What is the best passage that establishes that?
MR BYRNE: The legal authority is an English authority of ‑ ‑ ‑
GUMMOW J: Perhaps before you answer that, what is the relevant page that ‑ ‑ ‑
MR BYRNE: The relevant passage in the learned judge’s summing up is at page 219. First of all, at line 10 her Honour there says:
I want to deal with the specific counts in the indictment. You have copies of the indictment. The first two counts in the indictment –
the first one of course is subject to conviction –
relate to a male person, being the accused, committing an act of indecency with another male person, being –
the complainant. It continues on with directions as to what is an act of ‑ ‑ ‑
GLEESON CJ: I am not with you, Mr Byrne. What page is this?
MR BYRNE: Page 219 of the appeal book, your Honour. The relevant directions commence at line 36 where her Honour says:
I suppose that as a general rule any act of an overtly sexual nature by an adult towards a child would be thought to fall into that category and as I say, it is not disputed in this case.
There is no dispute that the act alleged against the applicant in masturbating in front of the child was clearly an act of indecency. The issue is whether it was an act of indecency with another person. Just going over the page to page 220 at line 14:
All five counts require determination of the same issue in relation to an act of indecency? In each count was there an act of indecency?
And then the proposition put:
In the first two it is an act of indecency which does not involve any physical contact and in the final three it is an act of indecency which‑
does.
Then her Honour deals specifically with the first count at page 25 and she sets out the nature of the allegation made by the complainant and then the next relevant passage is at page 221. At line 10, her Honour says:
The words in the indictment which say, “Did commit an act of indecency with Neil McAlister” referred to an act of indecency in the presence of Neil McAlister –
and then it is said:
so it is sufficient if the Crown has proved beyond reasonable doubt that the accused did those things of which Neil McAlister has told you, and that they were in the presence of Neil McAlister.
Those are the two aspects: that he was there, that he saw this and that is what happened.
GLEESON CJ: Well now, that is the way the case was conducted, but if the point that you now seek to rely on had been taken, what is the direction that the judge should have given the jury, if there had been an issue about this? Two questions: if there had been an issue about this, what is the direction the judge should have given the jury; and second, would it have been necessary to investigate more closely some aspects of the facts?
MR BYRNE: Your Honour, the answer to the first question is that the direction that the judge should have given the jury was at the conclusion of the Crown case to direct a verdict of acquittal, because the evidence clearly did not establish the offence charged and it in fact, in our submission, established that the offence charged was not committed. There was positive evidence in this case that the accused did not commit the offence charged. It was not a situation where the evidence was insufficient to establish his guilt; the evidence established the fact that he was not guilty of the offence charged.
GLEESON CJ: Well now, why do you say that? Why did not the evidence, so far as it went, concerning the role played in this by the complainant, at least possibly satisfy the statutory language?
MR BYRNE: Because the complainant did not do anything in relation to the act of indecency. The complainant did not participate, in our submission, in any way in the act of indecency. The complainant was involved in matters which occurred subsequent to the commission of the act of indecency, but he was not involved in the act of indecency itself. That is the way the learned judge left it to the jury in that passage that I have just read at line ‑ ‑ ‑
KIRBY J: But is it clear law that involuntary watching is not participating in the act of indecency?
MR BYRNE: In our submission, yes. That is the leading, we would submit, with respect ‑ ‑ ‑
GUMMOW J: You were going to take us to some English authorities, were you not?
MR BYRNE: Yes, I will. The leading judgment on the case is an English decision, and it has been followed in New South Wales and it, indeed, has led to a statutory change in New South Wales so that the offence that is designed to cover conduct of this charge is now, in terms, by reason of statutory amendment, that ‑ ‑ ‑
GAUDRON J: That is not to say that there was no offence. What you are saying is if there was an offence, it was the summary offence of indecent behaviour.
MR BYRNE: Yes.
GLEESON CJ: What was the statute that made the change, Mr Byrne, in New South Wales?
MR BYRNE: It was the Crimes Amendment Act 1992 which introduced into the ‑ ‑ ‑
GLEESON CJ: What number?
MR BYRNE: I think it was No 2 of 1992.
GLEESON CJ: Thank you.
MR BYRNE: Yes, No 2 of 1992.
GLEESON CJ: Nobody can accuse the legislature of no descending to detail.
GUMMOW J: Section 78Q, is it not, on page 4, the federal one? The amendment at the bottom of the page there. That leads back to section 61N at the bottom of page 3.
MR BYRNE: Your Honours, if I can just refer again to what her Honour said at page 221 in the summing up. At line 20, after saying twice in the immediately preceding lines that it was enough if it was in the presence of the complainant, her Honour then said this:
Those are the two aspects, that he was there, that he saw this, and that is what happened.
There is no suggestion in that direction that the case is made out – and I appreciate that these were not matters drawn to the judge’s attention. It is, with respect, not her fault. But the essence of the case, as put to the jury, was not he was involved in or participated in this conduct, but merely that he observed what was happening. It was put to the jury that they could convict if they found that those things occurred.
KIRBY J: On the question of whether, had this matter been raised, there might have been some factual elaboration, was there a statement to the police of the complainant at the first complaint go into evidence, or not, or ‑ ‑ ‑
MR BYRNE: No, it was not an exhibit in the trial proceedings.
KIRBY J: Was he asked about that?
MR BYRNE: No, the complainant was not cross-examined about that. The statement, in fact, did not make reference, as we ‑ ‑
GAUDRON J: If there had been any examination about these matters, it would not have been by way of cross‑examination. It was up to the Crown or up to the prosecution to prove its case.
MR BYRNE: Yes.
GAUDRON J: It is only a question whether the prosecution might have done something other than what was done.
MR BYRNE: The only option open, in our submission, to the prosecution was to have charged the applicant with a different offence.
GAUDRON J: Yes, the summary offence.
MR BYRNE: Yes.
KIRBY J: What is that summary offence?
MR BYRNE: Back in 1978/1979 at the time of these alleged incidents, the summary offence – and I apologise that I have not got the specific reference to it ‑ but it would have been indecent exposure, shortly described as indecent exposure under the Summary Offences Act 1970.
GUMMOW J: We had better be clear about that, because the Summary Offences Act has been in flux in its time.
MR BYRNE: Yes, it did change a bit.
GUMMOW J: We had better make sure we get the right text at the right time.
MR BYRNE: There is a common law offence of scandalous conduct which would arguably cover this ‑ ‑ ‑
GAUDRON J: Was that summary?
MR BYRNE: Yes. Well, it is technically capable of being dealt with on indictment, but it is ‑ ‑ ‑
GAUDRON J: But, anyway, it was not charged?
MR BYRNE: No.
Your Honours, there is one other aspect of the case to which reference should be made. I do not place prominent reliance upon it, but it is a matter of significance in weighing up the nature of the Crown case. At page 197 of the appeal book in the cross‑examination of the applicant, line 45, line 40 is a more appropriate place to start, the question was put to the applicant in cross‑examination:
Q. I suggest to you that on an occasion in August 1978 you were inside the storeroom at the front of the classroom and you masturbated?
A. That is not true.
The further question put:
Q. And that you ejaculated onto the floor and cleaned up with a handkerchief?
The proposition put by the Crown Prosecutor to the applicant was not that he had engaged the complainant in the task of cleaning up the floor with a handkerchief.
Your Honours, if we can just put, finally, in relation to this matter the manner in which the issue was dealt with by the Court of Criminal Appeal ‑ ‑ ‑
KIRBY J: But you have not told us – maybe you will do so after the Court of Criminal Appeal – what the authority is.
MR BYRNE: I am sorry.
KIRBY J: I understand the argument about the course of legislative history, but, I mean, common human experience teaches that some people secure sexual gratification from being voyeurs, some from being exhibitionists. Otherwise you would not have all the cases of indecent exposure.
MR BYRNE: Yes.
KIRBY J: At least, possibly, it seems arguable that to be in a shut room with another person involuntarily looking is “with”, because you are in a confined space and the pleasure, the gratification is coming from the fact that the person is there and with you.
GLEESON CJ: How big was this storeroom?
MR BYRNE: I am sorry, how big?
GLEESON CJ: Yes.
MR BYRNE: The precise dimensions are not disclosed in the transcript, as I recall it, but ‑ ‑ ‑
GLEESON CJ: So far as I can pick up from the cross-examination, according to the evidence of the complainant, when the complainant entered the storeroom your client reached across and closed the door behind the two of them, so that being at one extremity of the storeroom he was able to reach to the other extremity of the storeroom and close the door. This seems to have been a very confined space.
MR BYRNE: I think that there was an issue about that. There was cross‑examination of the complainant, if I recall it, about not being able to shut the door in the manner described, but even accepting the proposition that it was a confined space, even if that is accepted, it still does not constitute an offence of committing an act of indecency with.
KIRBY J: Is the proposition that the “with” has been construed to mean getting some form of sexual satisfaction or touching or being physically in contact with the other person, the offender, the alleged offender?
MR BYRNE: No. Perhaps I should, in answer to your Honour Justice Kirby’s question, take your Honours to what in our submission is the leading case. It is a decision of the Court of Appeal, the Criminal
Division of the Court of Appeal in England.
KIRBY J: This is the English Court of Appeal?
MR BYRNE: Yes, your Honour. The case of Preece and Howells (1997) 1 QB 370 and it is a judgment of the court constituted by Lord Justice Scarman, Justice Geoffrey Lane, as he then was, and Justice Willis.
GUMMOW J: 1977 it is.
MR BYRNE: Yes, (1977) 1 QB 370.
GUMMOW J: You said 1997.
MR BYRNE: The case concerned the meaning of the expression “with another man” in the context of committing an act of indecency with another man and, after reviewing a number of relevant authorities, the relevant passage at page 375. Just below point G it was said:
We think the complete offence requires the participation, the cooperation, of two men. The offence, now that the words “in private” have been deleted, is one of an indecent exhibition by two men in a public place.
Leaving the next sentence:
To construe the section so that the complete offence could be committed even though the other man did not consent could lead to the embarrassment of, and injustice to, innocent men.
Just going on to page 376 just below point B:
A man who commits a public act of indecency without the participation of another man can be prosecuted under other provisions of the law if the act be really public –
And then it goes on. Then, the final conclusion in that sentence just below point D:
“With” involves the participation of two men –
Your Honours, the decision in Preece and Howells has been applied in the New South Wales Court of Criminal Appeal in two decisions which are on our list of authorities: the unreported decision of the court in a case of Douglas Geoffrey Page, judgment delivered 25 November 1991, and the second one is a ‑ ‑ ‑
GLEESON CJ: In that case, according to Justice Campbell, the point was conceded by the Crown.
MR BYRNE: Yes. It should be noted, your Honours, that case concerned section 81A of the Crimes Act.
GLEESON CJ: Page 4, in the reasons, it is said:
Mr Crown, with due qualification, conceded the correctness of the interpretation of the section given in Preece.
Do you know what the qualification was?
MR BYRNE: I am sorry, I am reading a different – no, I am sorry, your Honour, I do not. The immediately proceeding sentences in the previous paragraph recognised that part of Preece to which I have taken the Court.
Your Honours, the second decision of the Court of Criminal Appeal of New South Wales which deals with this matter is a decision of the court in the case of Orsos (1997) 95 A Crim R 457. The particular passage of the judgment to which we wish to refer is at page 460. This is in the judgment of Justice Grove with whom Justice Priestley agreed, approximately halfway down the page in the sentence commencing:
The addition to s 61N in 1992 of “or towards” would be unnecessary if what is comprehended by it was already conveyed by the word “with”. In the light of the judgments in Preece and Page I consider that there is a distinction between “with” and “towards”. To commit an act of indecency “with” a person involves two participants whereas logically and grammatically one person may commit an act of indecency “towards” another.
Your Honours, the final reference that we wish to make to the manner in which this issue was dealt with in the Court of Criminal Appeal is at page 292 of the appeal books, just a brief reference there where Justice Barr, giving the decision effectively of the court at page 292, paragraph 4, said:
The first count concerned an incident in which the appellant masturbated himself in the presence of Mr McAlister.
There are two aspects of that that are important. Firstly, there was no reference to the act of cleaning up the semen as being a part of the circumstances constituting the offence and the second thing, of course, is that the Court of Criminal Appeal dealt with the matter on the basis that to establish that the offence, the actual act of indecency occurred in the presence of another person was enough to establish that it was committed with another person and that conclusion, in our submission, is wrong.
KIRBY J: Were their Honours referred to the previous line of authority?
MR BYRNE: No. Your Honours, those are the submissions on the application.
GLEESON CJ: Thank you, Mr Byrne. Yes, Mr Solicitor.
MR BENNETT: Your Honours, the submissions of the respondent and our submissions really concede a very large part of each other and the area of controversy which is left is extremely small. However, the issue raised by our submissions, the primary issue raised by our submissions, which is the issue referred to by Justices McHugh and Hayne in Gipp’s Case, although conceded by my learned friend, is one, of course, which may, in one sense, arise in the course of this appeal and the Court is not bound by concessions of the other parties.
I am therefore somewhat in your Honours’ hands as to whether I argue the proposition which is accepted in my learned friend’s submissions and which is set out in the beginning of paragraph 2.16 of my learned friend’s submissions. Might I just show your Honour what he says there. I have used the word “concession” although my learned friend uses the word “may” rather than “does”. In paragraph 2.16, my learned friend says this:
This is not to deny that the jurisdiction of the High Court in an appeal under section 73 of the Constitution – like the jurisdiction of the Privy Council – may extend to the consideration of a new point of law not raised before the court from which the appeal was brought: eg Suttor v Gundowda Pty Ltd –
Now, your Honours, that is the proposition which our written submissions are almost entirely devoted to. Now, it is the proposition which, as I say, was raised as a matter of importance to be argued one day by your Honours Justices McHugh and Hayne in Gipp’s Case.
GAUDRON J: What you say, do you, in effect, is what is said in paragraphs 2.15 and 2.16 is inconsistent?
MR BENNETT: It seems to be, your Honour; 2.15 simply quotes a portion of their Honours’ judgment without going to the next part which treats the point as being open, but that sentence taken of its own, we would so submit. So, unless your Honours feel it appropriate to stop me, either on the basis that it is conceded or on the basis that it does not really arise, I do need to start by putting the submission that we make, which is to the contrary of that view and in favour of the first sentence of 2.16.
McHUGH J: Well, let me ask you this question: supposing in this case we upheld the submission that Mr Byrnes made in respect of the unavailability of this count. Our duty is to make the orders that the Court of Criminal Appeal should have made. There is no ground of appeal in respect of it, there is nothing at all, what do we do? Do we order the Court of Criminal Appeal to allow the appeal to be amended? What do we do? And that is what that passage at 2.15 is directed to.
MR BENNETT: Yes. What we submit, your Honour, as our primary submission, is that this Court would simply allow an amendment of the notice of appeal to the Court of Criminal Appeal. In other words, it would allow the appeal and say the order that should have been made below is to allow that notice of appeal to be amended and then to decide that in favour or, on the hypothesis your Honour puts to me, in favour of the accused.
GUMMOW J: What happens in the ordinary Suttor v Gundowda Case when there is a point of law that is determinative and it appears here for the first time? People do not go scuttling back to the intermediate Court of Appeal, do they?
KIRBY J: And I do not think we alter the notice of appeal to the court below; I have never heard of that before.
GAUDRON J: I think the general view is, or the view that is sometimes taken is, that the question that is before the intermediate appellate court is whether the appeal should be allowed or dismissed and that the grounds of appeal are a present identification of the matters to be argued.
MR BENNETT: Yes, well may I answer your Honour’s Justice Gaudron’s question and your Honour Justice McHugh’s question together by jumping ahead for a moment and saying what we see as the other issue which arises in this case, which has to be answered to answer that question. My learned friend’s submissions, in paragraph 2.1 to 2.13 and the last part of it, make a second point, which is, in a sense, an independent point of the first one, and we concede the majority of that point but not the final step. That point is that, in an appeal strictly so-called, this Court can only make an order which the court appealed against could have made.
McHUGH J: If I could just interrupt you, that is part of the point, is it not? Do not the authorities establish that the jurisdiction in a Court of Criminal Appeal depends upon the grounds of appeal.
MR BENNETT: That is the issue, your Honour, which we differ on. I will come to that in a moment, but the first part of that submission that my friend makes we accept. If, for example, one had a statute which said one can appeal to the Court of Criminal Appeal against a conviction but one cannot appeal against sentence, one could not then come to this Court from the Court of Criminal Appeal and seek to appeal against sentence, because clearly that is not something the court below could have done anything about. One would have to come straight from the trial judge to this Court if one wanted to seek special leave to appeal against sentence.
The bulk of my friend’s submissions are making that proposition, which we accept, but the minor premise which my learned friend then makes which in fact would affect virtually all criminal appeals and possibly some civil appeals, depending on the wording of procedural legislation, but certainly criminal appeals, is the proposition your Honour Justice McHugh just put to me. That is the proposition which says that where one has an Act like this which says one can appeal on certain grounds to the Court of Criminal Appeal and the Court of Criminal Appeal, if it finds the grounds established, can allow the appeal or, if it does not, dismiss the appeal, but where one has a statute in that form, that it follows that there is no power in the court to deal with a matter not raised by way of appeal, it is at that point that we take issue with my learned friend and say that that is not the case.
Where one has, as here, power in the Court of Criminal Appeal to amend the grounds of appeal, the issue simply does not arise because the Court of Criminal Appeal, looking at the whole of the case, could invite an amendment on the application for amendment, make the amendment, order granting leave to amend and then determine the point now raised.
KIRBY J: I tell you the matter that concerns me. You may be able to resolve it. Normally we would not get into a point like this without a contradictor and, as I understand that crucial submission, 2.16, on this particular case there is no contradictor. It is conceded that the Court may proceed to deal with the matter on the basis that it is a point of law. Would one not normally postpone an issue of this kind which is of some possible significance - great significance if the view that has been expressed prevails – to a case where there is a real lively contradictor who is jumping up and down and saying “You can’t do it and shouldn’t do it”?
MR BENNETT: Your Honour, that is why I commenced by ‑ ‑ ‑
KIRBY J: I realise that.
MR BENNETT: - - - in a sense inviting the Court to give me directions on what it wished me to do. We certainly would accept what your Honour puts to me but my only concern is that the Court might in the course of delivering judgment find it desirable to decide the point and decide it adversely to the concession which is made. It is really to prevent that that I need to address the Court on that issue.
GUMMOW J: The concession at 2.16 is a concession, I would have thought - it was not a concession unless someone overrules Suttor v Gundowda and O’Brien v Komesaroff and that home loans case that we had last year. Of course. It does not strike me as a concession.
MR BENNETT: Well, your Honour, the proposition ‑ ‑ ‑
HAYNE J: The question may become then one requiring consideration of the Criminal Appeal Act and the point is not to be dealt with simply as a point of abstract generality, but by grappling with sections 5 and 6.
MR BENNETT: Certainly, your Honour. The first step is for us to say, in effect, that the possibility adverted to by Justice McHugh and your Honour Justice Hayne in Gipp is either rejected or not applied. That is our first concern. Our second concern after that is to accept what my learned friend says, that if the court below is not able to do something, clearly this Court on appeal cannot do it, and we accept that. That is probably non‑controversial ‑ ‑ ‑
GUMMOW J: You are both in agreement on that, are you?
MR BENNETT: Yes, your Honour. Then the third step is the minor premise to that major premise, which is that in this legislation the Court of Criminal Appeal did not have the relevant power to deal with the question. That, in turn, involves a number of sub-questions. There is a distinction between the question of whether it had power to do it and the question whether it ought to have done it, which involves some analysis of the different views of this Court in Eastman delivered this morning.
GUMMOW J: There is also involved this consideration: we are talking about the Supreme Court here. It has been assumed since the 1920s – I just forget the name of the case at the moment – that the New South Wales Court of Criminal Appeal is the Supreme Court. I think it is Stewart v The King 29 CLR 240. Then there is the consideration that in 1901 there was no Court of Criminal Appeal at all, but 73 was drafted on the basis that there could be an appeal brought here directly from trial. That is what Quick and Garran say and that is why the word “sentence” is put in there. If what has been going on in New South Wales is to somehow cut that right down by the interposition of a Court of Criminal Appeal and then constrict it, something odd has been going on vis-à-vis section 73.
MR BENNETT: Yes, it might mean on one view that an accused person or a convicted person who finds himself in the position of the appellant needs to make two special leave applications to this Court.
GUMMOW J: Yes, exactly.
MR BENNETT: One from the trial judge and one from the Court of Criminal Appeal.
GUMMOW J: Yes, this might suggest that there is a desirable construction which avoids that.
McHUGH J: Is there not a line of cases, I think, starting with Minshies, or some name like that, which suggests that you cannot apply from a verdict - that this Court has no jurisdiction in respect of the verdict of a jury? In terms of an order, you have to go from the order of the court, as opposed to from the verdict. You cannot go from the verdict of the jury.
MR BENNETT: Yes, I am not certain of that, your Honour. Might I just hand to your Honours two things. One is the decision of the Court of Criminal Appeal in Reg v Makrides reported in (1958) 75 WN 221. That is a case my learned friend refers to in his submissions as being inconsistent with them, there being, we would submit, no case the other way. The other is Rule 25A of the Criminal Appeal Rules, which is the power of amendment.
GAUDRON J: Is it not the critical provision section 6 really, the way in which the Court of Criminal Appeal is to determine the matter?
MR BENNETT: Yes, when one gets to the second point, that is the issue. The argument against me, which is referred to by Justices McHugh and Hayne in Gipp and put by my learned friend, is that you look at the word “ground” in sections 5 and 6 ‑ ‑ ‑
GAUDRON J: And you say on a ground that was taken?
MR BENNETT: Yes, and you make that word do a lot of work, and then you construe everything else in the light of that. That is the way we would characterise it in the argument which I am going to put. I should also hand to your Honours, in view of some comments made by this Court in the Bond Case, copies of the judgments at the trial and on appeal in the Connecticut Fire Insurance Company Case. This is the judgment at trial of the Superior Court of Montreal and on appeal the Court of Queen’s Bench of Montreal from which the appeal went to the Privy Council. The purpose of handing those to your Honours is to demonstrate two things which arise out of comments by your Honour Justice McHugh in the argument in Bond. The first is that there was no jury, and the second is it was apparently a pre‑judicature system because there was a declaration. That is referred to in the Privy Council itself.
I will start then with the first argument which is the Suttor v Gundowda and Connecticut Fire argument, and it is a very short and very simple argument and it is this, that whatever strict meaning one gives to the word “appeal”, it is clear that at the time of the Constitution, it was contemplated that an appeal strictly so called, including an appeal to the Privy Council, was something under which, provided there was not the prejudice of fresh evidence being required, enabled a point of law to be made in the final court of appeal.
Logically there is nothing surprising about that. When one looks at the distinction between an appeal strictly so called, and an appeal by way of rehearing, and one says, “One looks at it at the time of the decision below, and one looks at it at the time of the appeal to the court”, one really has to analyse with some precision what it is that one is saying when one draws that distinction, because there are range of matters which may need to be looked at differently. At the one end, one has an event which has occurred since the trial. In an action for loss of consortium, for example, the widow has remarried – some event of that sort, where there is an event subsequent to the trial which might affect the result. Clearly, in an appeal strictly so called one has to ignore that.
One then has the question of fresh evidence. Fresh evidence, as was pointed out in DRJ last year, under the Woollongong Council v Fregnan and Orr v Holmes principle, is something which is admitted under the jurisdiction to order a new trial, and not in relation to an appeal strictly so called. So, again, we can put that to one side. There is the ‑ ‑ ‑
GUMMOW J: Can I just interrupt you to take where we should be starting, it seems to me, a good spot, it is Quick and Garran at page 741.
MR BENNETT: Your Honour has the advantage of me.
GUMMOW J: Well, it is a good idea to keep ground. The learned authors say, they are discussing section 73:
“Sentence,” in its widest sense, means any judicial determination, that is most commonly used in connection with criminal proceedings, to denote the judgment of the court in a criminal trial upon the verdict of the jury or upon the prisoner’s plea of guilty….
The four words –
“judgment”, “decree”, “order” or “sentence” –
taken together, are clearly wide enough to include every judicial decision, final or interlocutory, in every jurisdiction, civil or criminal.
MR BENNETT: Yes, your Honour.
GUMMOW J: That was the contemporary understanding, it seems to me, and it was a big step because there was no general appellate structure otherwise for crime. And the lack of that appellate structure is discussed in Fleming v The Queen 158 ALR at paragraphs 16 and 17.
MR BENNETT: Your Honours, what one does not ask when one looks at the distinction between an appeal strictly so called and a rehearing, although colloquially it is sometimes put this way, is whether the trial judge or the court appealed from was right or wrong, subjectively, in coming to the decision in all the circumstances of the trial below. That can be illustrated very simply by, perhaps, the most obvious example. Suppose one has a case where a litigant wishes to argue that a decision of this Court should be overruled, and let us suppose that that litigant correctly, at the trial, says to the trial judge “I formally submit that the decision of the High Court in Cole v Whitfield is wrong”. Now the judge, of course, is bound to follow the decision of this Court, and does so.
When the matter comes to this Court, this Court may decide to overrule its previous decision. In that event, it allows the appeal. It is an appeal strictly so called, yet no one would suggest that in any subjective sense the judge was wrong in following the decision of this Court. Indeed, the judge was bound to do so. Now, I give that rather trite example to demonstrate that that formulation of the question cannot be the correct formulation ‑ ‑ ‑
McHUGH J: It can be if you apply the strict common law theory and that is that – when a judgment is overruled it is not overruled prospectively, it means that the judgment that is overruled was never evidence to the common law.
MR BENNETT: Yes, your Honour, but the trial judge was not entitled to apply the common law in that form because the trial judge was bound by the system of precedent to reach a contrary result. Certainly one can say that he or she was wrong in one sense of the word wrong, but it is a very artificial sense of the word wrong, and indeed, the trial judge might well have attracted ‑ ‑ ‑
GLEESON CJ: It is not artificial from the point of view of the litigant whose rights are affected.
MR BENNETT: No, your Honour.
GLEESON CJ: It might be artificial from the point of view of a more…..of the judge.
MR BENNETT: Yes. That, with respect, makes my point, your Honour, because what one is looking at, ultimately, is whether the decision, whether the result is the correct result on the materials which were put to the trial judge and not necessarily, we would submit, on the arguments put to the judge or the court below. A judge or court is not bound by the arguments put to the court.
It is always open, of course, and it frequently happens in this Court, that some line of argument is raised for the first time by the Bench. If a judge decides a case on something which is not argued, there may, and will in most cases, be a problem of natural justice. It is not a problem of jurisdiction; it is a problem of natural justice. So, if a judge says, “I decide this case on a ground which no one referred to in the course of argument”, one party may be entitled to complain on the ground of denial of natural justice but is not entitled to complain on the ground of want of jurisdiction.
McHUGH J: It may depend upon what determined the statute. Supposing the Federal Court had a Court of Criminal Appeal Act and its criminal jurisdiction depended upon a Criminal Appeal Act and not section 27 of the Federal Court Act and it set aside a conviction on a ground that was not in the notice of appeal, so all that the record showed was “Appeal set aside”, as in this particular case, for example. Why would not prohibition go from this Court to the Federal Court restraining the enforcement of the Federal Court’s judgment?
MR BENNETT: Well that jumps to the second part of my argument, but it would depend on whether, on the true construction of the legislation, the court had power to allow an appeal on a ground not raised in the notice of appeal and it would also involve questions as to the court’s ability or duty to permit or direct or suggest an amendment of the notice of appeal.
HAYNE J: Is that not where we ought to be, Mr Solicitor, rather than you setting up straw dummies to knock them down? This is an appeal that comes to this Court ultimately from the District Court, true?
MR BENNETT: Yes, your Honour.
HAYNE J: It goes via the Court of Criminal Appeal. Should we not be looking at the powers of the Court of Criminal Appeal?
GUMMOW J: See, because section 73 will bite on the Supreme Court trial; it will not bite on this one. It is the District Court.
GLEESON CJ: And the relevant power of the Court of Criminal Appeal, I should have thought, is the power conferred by section 6, which is to:
allow an appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it…..cannot be supported, having regard to the evidence –
That must be the ground. On this point, Mr Byrnes is not complaining of a misdirection of the jury. He is saying the matter should never have been left to the jury. In fact, procedurally, there is a bit of a difficulty because he says that the trial judge should have taken the case away from the jury in a circumstance where there was no application by trial counsel for the trial judge to take that course.
MR BENNETT: Yes.
GLEESON CJ: But, expressing his point in terms of section 6 of the Criminal Appeal Act, I would have thought it must be that the verdict of the jury cannot be supported having regard to the evidence.
HAYNE J: And his appeal lying under section 5(1)(a). His appeal lying against conviction on any ground which involves a question of law alone.
MR BENNETT: I am happy to come to that, but I do have to deal with the possibility that this Court could say, notwithstanding the concession and without going to the questions as to ‑ ‑ ‑
GUMMOW J: I think the concessions have been made, if I may say so, without fully grasping what is involved. What is involved from the point of view of section 73 is that it speaks of the Supreme Court of the States. A question arises if part of the traditional jurisdiction of a supreme court, as has happened with injunctions in town planning matters, is taken out of the Supreme Court put in another court, the Land and Environment Court, an appeal is then given to the Supreme Court, called the Court of Appeal, but on a ground of law only, you will remember, question. Section 73 then bites on the Court of Appeal, but can it bite and expand the subject matter that the Court of Appeal had? That is the sort of problem, translated here into the criminal sphere because it is the District Court.
MR BENNETT: If I am not called on on the question that this Court has no power, as a general proposition, because of section 73 and the structure of Chapter III, to allow an appeal on the basis of a ground not taken in a court below, if I am not called on on that proposition I can go straight to the ‑ ‑ ‑
GUMMOW J: Just a moment, there is an ambiguity in that, too, not taken or could not be taken. In my example, the Land and Environment Court Case, it could not be taken unless it was a point of law. This point here could have been taken in this particular case.
MR BENNETT: I accept if the point could not have been taken this Court cannot allow the appeal on that ground. I accept that, your Honour. So, that is not an issue in these proceedings. But the point I wanted to dispose of as shortly as possible before coming to the real issue of the Court of Criminal Appeal is what I have called the Gipp point and if I need have no fear that this case will be decided on the basis that the suggestion in Gipp is correct and therefore one never gets to the other question, then I can leave it now.
GLEESON CJ: We are not here to allay your fears, Mr Solicitor. We may have different views amongst ourselves on whether your fears need be allayed.
MR BENNETT: Yes. Your Honour, that has the unfortunate consequence that I need to finish my submissions in relation to the Gipp point and the Connecticut Fire point before coming to the Court of Criminal Appeal Act.
GLEESON CJ: Then go ahead and do that.
MR BENNETT: If your Honours please. The submission is that once one does not express the principle in terms of whether the trial judge, in some way subjective to the trial judge, acted correctly, once one puts it in an objective way or in a way from the point of view of the litigant in question, there is simply no reason for saying that an appeal strictly so called excludes the possibility of dealing with a ground not dealt with below as a general proposition.
We submit, for that reason, that our concession is correct. The Connecticut Fire Case - and we have given your Honours other cases in the course of our submissions, but the Connecticut Fire Case was a decision of a trial judge at a trial without a jury in a commercial dispute where a point was not taken at first instance and not taken on appeal.
In the Privy Council it was expressly said that the point could be taken before the Privy Council provided that there was no possibility of evidence being given by the other party or called by the other party, which might have affected it, and that was picked up and applied by this Court in Suttor v Gundowda and there is, of course, no application as has been put to overrule Suttor v Gundowda. If one were to uphold the suggestion made in Gipp, it would be necessary to overrule Suttor v Gundowda as well as to say that decisions such as Connecticut Fire ‑ ‑ ‑
KIRBY J: And a number of criminal cases too, I think, and ‑ ‑ ‑
MR BENNETT: Yes, that is so, your Honour, and Giannarelli, of course.
KIRBY J: Giannarelli, yes.
MR BENNETT: So for those reasons, as well as the reasons set out in our written submissions, we submit that the suggestion made in Gipp is not correct and should not be accepted by this Court. The second aspect I have conceded and accepted, and I will not repeat that.
That brings me to the real issue in the case, which is the question of the Court of Criminal Appeal - the Criminal Appeal Act, and the effect of that Act and, in present circumstances, there being no suggestion that it is invalid, of rule 25A.
If your Honours go to the Criminal Appeal Act your Honours will see that one has two sections, section 5 and section 6. Section 5 says:
A person convicted on indictment may appeal under this Act to the court:
(a) against the person’s conviction on any ground which involves a question of law alone, and
(b) with the leave of the court…..on any ground of appeal which involves a question of fact alone, or question of mixed law and fact, or any other ground which appears to the court to be a sufficient ground of appeal –
Interestingly, that last one rather suggests that one does not know whether it is a permissible ground to put in one’s notice until the court has considered it because it refers to a “ground which appears to the court to be a sufficient ground of appeal”. It is not that the appeal can only be allowed if it appears to be sufficient. If one reads it literally one can only appeal on a ground which appears to be sufficient. That rather suggests that the word “ground” should not be given the sort of significance that is given to the word “matter” in Chapter III. It is not a case where the draftsperson has set up a concept of ground and then built a statute around it. It is rather a colourless word being used to describe the basis on which ultimately the matter is to be decided, whether on the notice of appeal or not.
GUMMOW J: Well, “ground” appears in section 5(2). Does it appear elsewhere in Part III.
MR BENNETT: It certainly appears in section 6 which is the other principal section. I have not gone through the other more detailed provisions which are not ‑ ‑ ‑
GAUDRON J: Is not the short point that it does not say “on any ground taken by the appellant”?
MR BENNETT: Yes, your Honour.
GAUDRON J: And, at least, it is well settled, is it not, that where you are dealing with the powers of a court conferred by statute you do not read into it words that are not there or limitations that are not there?
MR BENNETT: Your Honour puts it more clearly and succinctly than I was doing.
GLEESON CJ: A practical consideration that supports that view is that a lot of appellants are unrepresented.
MR BENNETT: Precisely, your Honour.
GLEESON CJ: And, as a matter of practice, to confine them to their grounds of appeal would not be a very productive exercise.
MR BENNETT: That is the practice in the Court of Criminal Appeal. Rule 25A, of course, is reflective of that practice. If I could just show your Honours section 6 ‑ ‑ ‑
GUMMOW J: Justice Gaudron’s point is borne out by a number of decisions here. One of them is “Shin Kobe Maru”, there is a Northern Parkes one, shortly thereafter. There are five or six cases in the last five years that say it. Someone might usefully collect them for us so one does not have to fossick oneself.
MR BENNETT: If I could just show your Honours what section 6 says and then show your Honours what was said in Gipp on this subject. Section 6 also uses the word “ground”, although it categorises the grounds somewhat differently to the way they are categorised in section 5. It does not pick up the subdivisions of grammar in section 5 and then tell you what is done in each case in section 6. It rather subdivides them differently. Your Honours see that it is the section which confers the power on the Court to make the particular orders. It says that:
The Court…..shall allow the appeal if…..the verdict…..should be set aside on the ground that it is unreasonable,…..or that the judgment…..should be set aside on the ground of the wrong decision of any question of law, or that on any other ground…..there was a miscarriage –
And my learned friend points to the word there and says this supports the argument that “ground” is a very precise term of art on which the whole matter is predicated. We submit it is simply a word used to categorise the various matter on which the Court may ultimately decide. It is, again, to use the modern cliché, a vanilla word, a colourless word.
GUMMOW J: You start with the proposition the Criminal Appeal Act of 1912 was a most significant remedial piece of legislation.
MR BENNETT: Yes, your Honour.
GUMMOW J: A most significant piece of remedial legislation. Then you begin with the secondary proposition that it conferred this new authority on the Court. Then you consider the cases which say that one does not stint that either, and then you say ground is also used in other sections in the Act where it obviously does not mean ground of appeal.
MR BENNETT: Yes, and ‑ ‑ ‑
GUMMOW J: It seemed to me a fair way towards getting home.
MR BENNETT: I would so submit, your Honour. I was going to take your Honour next to what was said on this subject in Gipp’s Case, but I see it is a quarter to 1, if that is ‑ ‑ ‑
GLEESON CJ: We will adjourn until 2.00 pm.
AT 12.44 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.04 PM:
GLEESON CJ: Yes, Mr Solicitor.
MR BENNETT: If the Court pleases. Might I take your Honours very briefly to what was said on this topic, that is the third aspect of the case, the major aspect, and Justices McHugh and Hayne in Gipp's Case 194 CLR 106 at 127. After referring to some very similar provisions in the Queensland legislation their Honours at paragraph 60 say this:
These sections make it clear that jurisdiction of the Court of Appeal in the present case depended on the identification of a point of law as a ground of appeal or the leave of the Court to raise some other ground of appeal. Because that is so, unless the grounds now relied on by Mr Whitford fall within these alternatives, this Court would seem to have no power to order the Court of Appeal to do that which, under the Criminal Code, it was not authorised to do. No doubt where the court whose judgment is “appealed from” has failed to exercise its jurisdiction, this Court has jurisdiction to allow the appeal and remit…..the matter. But this extraordinary jurisdiction is an incident of the Court’s true appellate jurisdiction. The only suggestion that the Court of Appeal failed to exercise its jurisdiction in this case is falsely premised on the assumption that the Court had a duty to consider evidence and points not relied on by the parties.
We, with respect, would take issue with the requirement that there be a duty to consider it. Their Honours go on:
It would seem to follow from the foregoing considerations that this Court has no jurisdiction to set aside the appellant’s convictions and order an acquittal or new trial if the grounds upon which Mr Whitford relies were not before the Court of Appeal.
Then there is a qualification expressed:
Where in the course of an appeal to this Court, it becomes apparent that an error in the course of a trial has occurred, but the error has not been the subject of a ground of appeal in the courts below, it may be that, as an incident of the appellate jurisdiction conferred by s 73, this Court also has power to allow the appeal and order the intermediate appellate court to consider whether it should allow the appellant to amend…..But ordinarily this Court’s power would seem to be limited to making the orders which the intermediate court of appeal should have made on the issues before it.
We would submit that the principle expressed that way and interpreted that way is too wide and that it is sufficient in a case such as the present if the Court of Appeal had power to deal with the matter in the way in which it sought to be dealt with.
Your Honours, I was referred this morning to the “Shin Kobe Maru” Case, and as Justice Gummow pointed out to me, that has been referred to in four subsequent decisions in this Court. I can give your Honours the names and details if your Honours wish them. It is Justice Gaudron in Commonwealth v SCI 182 CLR 285 at 301; Justices Gaudron and Gummow in Oshlack v Richmond River Council (1998) 193 CLR 72 at 81; Justice Gaudron in the Patrick Stevedores Case (1998) 195 CLR 1 at 56 to 57; and Justice Callinan in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 226.
I was asked this morning about the word “ground” in the legislation. If your Honours have the Criminal Appeal Act, your Honours will see that the word “ground” is used in section 5AA. In subsection (2) there is a reference to a person being:
acquitted on the ground of mental illness, where mental illness was not set up as a defence by the person -
That is using “ground”, of course, again in a neutral context, not related to the specific identification of grounds in a notice of appeal. In subsection (3A) there is a reference to doing something if there were special grounds for doing so. Again, the word being used in a colourless sense. The word is also used, neutrally, we would submit, in section 14 and section 19(2), but I will not take your Honours to those provisions.
The argument put by my learned friend on this aspect of the case turns on the suggestion that the two familiar functions of giving a right of appeal and giving a court jurisdiction to decide it are dealt with in the one provision. We would submit that section 5 and section 6 deal with those two matters in separate provisions. Section 5 confers a right of appeal and section 6 confers jurisdiction on the Court. The same dichotomy can be seen in section 5DB(1) and 5DB(2), where again you have it done in two separate provisions. So we would submit it is not correct to say that there is one provision having the united function. But that probably does not affect the argument. Those are my submissions in relation to that aspect of the case.
In relation to the first point, may I just add two things – that is the point which is conceded. The first is that in Eastman the point is stated favourably to my submissions by Justice Gummow in paragraph 172 and Justice Kirby in paragraph 280. The second is to stress the point made in the last paragraph of my submissions, that it is a matter of common occurrence in appellate courts that the Court says to counsel, “Was this point argued below?”. That usually receives either a protestation of ignorance or the slightly embarrassed answer, “Well not exactly in that form, your Honours”.
It is a familiar problem which courts have to deal with when exercising a discretion and it is a problem that would have been known to the framers of the Constitution. It would be a very serious matter, and we submit this is something that also would have been known at the time, if the court were bound to make that inquiry in every case, because there would
be no jurisdiction if the question were answered adversely. The type of inquiry that might be involved as to whether putting a submission one way amounted to taking the ground or did not amount to taking the ground, could arise in very large numbers of cases and be a very time-consuming and difficult matter.
Now, I do not see that in terrorem, because of course one cannot construe the Constitution in the light of convenience, but I do submit that it is a factor that would have been known to those who draft it and it would be unlikely that they would have intended the word “appeal” to be construed so strictly as to require that inquiry to be made as a jurisdictional matter in every case. May it please the Court.
GLEESON CJ: Thank you. Mr Solicitor for South Australia.
MR SELWAY: If it please the Court. We adopt the Commonwealth’s submissions. In our written submission we qualify that adoption in relation to factual matters. In light of the decision of Eastman this morning we can now withdraw that qualification, climb off the fence and give our whole‑hearted support to the Commonwealth submissions. If it please the Court.
GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Solicitor for New South Wales.
MR SEXTON: If the Court pleases. Your Honours we propose to deal first with the outstanding ground of appeal, then to deal with the two grounds that are the subject of the special leave application and the question of jurisdiction and, finally, the question of discretion in this Court to hear a new ground of appeal.
Your Honours, at the outset can I take the Court briefly to a number of passages in the trial judge’s directions to the jury. My learned friend, Mr Byrne, took your Honours to two or three passages. We wanted to add a number of passages to those. The first of those, your Honours, deals with the question of the fact that the case against the accused rested on the evidence of the complainant alone, and at page 210 of the appeal book at about line 29, the trial judge said to the jury:
It is opportune at this point to remind you that the vital evidence in this trial is the evidence of the two complainants.
There were, of course, a series of counts, but only one complainant in relation to this count. At page 214, line 5, the trial judge said:
The only issue in relation to relation to them is are you satisfied beyond reasonable doubt that they are telling you the truth about the matters that really are essential.
Then at page 227, at line 32, the trial judge said:
So that you are left with, and have the evidence of the recollection of the particular complainant in relation to the particular count without any supporting evidence or corroboration from the other complainant, even where –
and that is this situation –
that other complainant is said to have been –
not this situation –
where that other complainant is said to have been present.
That qualification does not relate to this particular count:
That brings you back to being satisfied beyond reasonable doubt only on the evidence of the particular complainant.
Then in relation to the issue of the care with which the complainant’s evidence was required to be assessed, particularly in light of the delay of some 20 years, the trial judge said at page 218 at line 40:
You are going to look carefully at the evidence they gave, each of them individually, at the evidence they gave both in chief and under cross‑examination.
At 225, lines 1 to 6:
You may consider that his failure –
the complainant’s failure –
to complain as a child or later when he reached adulthood, either in 1994 or at some other time, suggests that he should be disbelieved.
There was a further statement on this issue at page 225, line 46. I will not take the Court to that. My learned friend, Mr Byrne, read that to the Court.
On the subject of the lateness of the complaint, meaning that the complainant might not be able to be adequately tested, the trial judge said at 226, line 10:
Late complaint, of course, necessarily has some potential disadvantages to the accused because it reduces his opportunity to explore the matters complained of in some ways or it has that potential. First of all, of course, memory of events tends to decrease and become vaguer.
On the same page at line 31:
Two things arise, of course, when there is a delay in complaint. One is the opportunity of the accused perhaps to look at matters which were happening at about that time and to raise them in evidence. Also, the capacity of the complainants to be accurate is probably reduced and that may raise some greater difficulty in cross‑examination of them. It may also, of course, explain some errors in recollection.
Then finally, when the trial judge was asked for additional directions, on the general question of the care that the jury should use in assessing the evidence after a delay of that length of time, she made the statement which my learned friend, Mr Byrne, read to the Court on page 245. Perhaps I will read it briefly:
There was a very long period in which there was no complaint. The complaint came late. You must take that into account and the circumstances in which it came into existence and what the complainant, that is McAlister who was the only one who complained of course, had to say about that…..You will be aware that in the circumstances of a twenty year delay that clearly those are all matters which you are going to consider. You are going to consider motive, the opportunity to concoct, the reason why that might be. You are going to look very carefully at the nature and circumstances in which that complaint came into existence. Those are all matters that you will bear in mind when you consider the case for the accused.
Your Honours, in the context of the decision in Longman, all of those might be considered comments on the evidence, the way in which that is referred to in the majority decision of the Court at pages 90 and 91. It is interesting that in Longman, of the number of factors to which the majority refer, about which comment might have been made, the only one perhaps that is certainly relevant here is the absence of complaint. The others are seemingly not relevant. What the Court said at the bottom of page 90 was that:
It would not have been surprising if these circumstances had elicited some comment from the trial judge –
not that it was mandatory on the trial judge perhaps, but that one might have expected some comment. The Court on page 91, in passages that have been already referred to in argument, went on to say that there was one factor which may not have been apparent to the jury, that is, that in that case the accused’s loss of certain means of testing the complainant’s allegations and that that was something that required not merely a comment but a warning. That is, perhaps to use the Chief Justice’s expression from this morning, that it was dangerous to reach a certain conclusion of fact in those circumstances.
HAYNE J: That is the expression that the joint judgment uses, is it not? The joint judgment at 91 says that:
The jury should have been told…..dangerous to convict ‑ ‑ ‑
MR SEXTON: Yes.
HAYNE J: Was this a case in which this jury should have been told that fact?
MR SEXTON: We would say not, your Honour. I will come to that specifically in a moment but it really raises the question of whether a warning in those terms was required in this case. In our submission, Longman does not provide any standard formula which could be applied to cases, generally. What it says is that if the circumstances of the case require a warning in those terms then, of course, the warning should be given and has to be given. So, the question is whether, looking at this case, a warning, as opposed to a comment, on any particular issue was required. The issue that seems to have been pointed to in my learned friend’s submissions is the disadvantages that may have been suffered by the accused.
GAUDRON J: It is not simply a question of the disadvantages that may have been suffered by the accused. I mean, that is one way of looking at it. It is a question, really, that the forensic tools which are available to test the strength of complaints and evidence are not there, or probably are not there, and the need for the warning surely does not depend simply on possible disadvantages but on, really, is this necessary to ensure a fair trial, given that the forensic tools are almost certainly gone.
MR SEXTON: There are a number of answers to that.
GAUDRON J: I mean, really, you have got to start with the premise, “Can you be sure that after all this time there can be a fair trial?” and if you can be sure that there can be a fair trial, what does it require? And I would have thought where the normal forensic tools are not available, the fair trial really does require some sort of warning of this kind.
MR SEXTON: It was, of course, the subject of comment on a number of occasions by the trial judge.
GAUDRON J: Yes, comment is comment, which the jury are entitled to ignore, although normally the trial judge at least gives a statement, “If I should comment on the facts, feel free to ignore it”.
MR SEXTON: But, your Honour, there are three aspects of this case which we say affect any requirement for a warning in the way that your Honour has put it forward. One is the way in which the case was conducted in the sense of being a complete denial by the accused.
GAUDRON J: What difference does that make?
HAYNE J: That highlights it.
GAUDRON J: That highlights it. I mean, these cases are all – 99 times out of 100 they are all complete denials.
MR SEXTON: Yes.
GAUDRON J: The only way you could make a defence is by testing the surrounding circumstances, by checking the ‑ ‑ ‑
MR SEXTON: But there was not any.
GAUDRON J: There were surrounding circumstances.
McHUGH J: That is the point; the United States Supreme Court has said, what has been forgotten cannot be known. If we could go back 20 years ago, we may know a great deal more about the case than we know now. There might be all sorts of things people have forgotten about them because they were not of any significance to them at the time. That is the danger. You just do not know what has been lost.
MR SEXTON: Well, your Honour, of course, as has been said in argument already this morning, that that would be true after six months, or perhaps a much lesser time in this kind of case, as it would after ‑ ‑ ‑
GAUDRON J: Not necessarily. If the complaint had been made in six months, checking may have turned up that he was absent from school or, as I think was part of the issue in this case, that he was not the sports master or in charge of the sports equipment.
MR SEXTON: In relation to some of the other counts, your Honour.
GAUDRON J: Well it might have turned out, for example, that there was not a door on the storeroom or something or it was not a door of that kind or at that particular time the storeroom was full of disused blackboards. Who knows? One simply does not know.
MR SEXTON: Your Honour, none of those were matters, of course, that were raised by the counsel ‑ ‑ ‑
GAUDRON J: No, it could not have been, that is the point.
HAYNE J: That is the point.
MR SEXTON: I was going to say, your Honour, by counsel for the accused at the trial.
GAUDRON J: Could not have been.
HAYNE J: Well, counsel cannot make it up, Mr Sexton, and that is the point that is being put to you.
MR SEXTON: Your Honour, when some additional directions were sought by counsel for the accused, he did not point to any specific matters that he wanted ‑ ‑ ‑
GAUDRON J: He pointed to what was said in Longman.
MR SEXTON: Well, your Honour, he did not ask the judge to direct the jury in terms of specific disadvantages that had resulted to the accused from the passage of time.
GAUDRON J: But they did not have to. Looking for specific disadvantages is really a red herring. That is simply designed to prolong the length of trials, to prolong the addresses of counsel and perhaps to lead the trial judge into the trap of dealing at length with things that do not need to be dealt with. It is simply when normal forensic tools, which are not available - when the normal forensic tools could be said to be not usefully available, what do you need to have a fair trial? It might be a quite different situation if you had investigating magistrates and things like this and when you were concerned about a fair investigation rather than a fair trial, but we have got to focus in this area of the law on a fair trial.
MR SEXTON: Your Honour, in Longman there were specific matters that the Court said should have been pointed out to the jury because they would not have been aware of them. In this particular case the passage of time, about which there was comment made on several occasions by the trial judge, obviously drew that to the jury’s attention ‑ ‑ ‑
McHUGH J: But no, it was not. In Longman, if I recollect correctly, the majority did not say that there were particular matters that the jury would not know about. They focused on a particular point, that they may not bear in mind that the accused had lost the means of testing the allegations by reason of delay. But the critical point was that he had lost the means of testing the allegations ‑ ‑ ‑
MR SEXTON: And there were certain consequences of that. In Longman ‑ ‑ ‑
McHUGH J: That is why the jury had to be warned how dangerous it was to convict a person in those circumstances where he has lost the means of testing the allegations. So a jury needs to scrutinise the evidence with great care and to think about it with great care.
GLEESON CJ: It may be, Mr Solicitor, that there has been a change in the climate in recent years that has made this a very touchy subject. Nowadays it would be regarded as frightfully improper for a judge to say to a jury, “Allegations of sexual misbehaviour which, if it occurred, occurred in private are easy to make and difficult to disprove”. That is a big no-no. But the consequence of not making an observation like that is that it may be more necessary to draw the attention of the jury to the only way in which a person can go about seeking to defend himself against an allegation like this. How do you persuade somebody that you did not do something which if it happened was a secret? The only way you can do that is to use these forensic weapons that have been referred to; investigating the surrounding circumstances, testing matters which a complainant alleges against objective facts to the extent to which that is a practical possibility. And the lapse of time, sometimes a lapse of a relatively short period of time, can remove that practical possibility. Maybe the change in climate has made this more important.
MR SEXTON: That is why we would say in this case it was inevitably going to be a contest between the two sets of evidence. That was the way that the case was run. It was not run as a forensic exercise by the defence. Of course, it could not have been in one sense after 20 years but, for the reasons your Honour gives, it probably could not have been almost at any time unless the complaint had been made within a matter of days, one might think. So that there was inevitably going to be that problem about this case. The question then becomes whether the trial judge was required to say to the jury that it was dangerous to convict on that evidence because the accused had not been able to test it forensically, although it had never been suggested to the trial judge how that might be done.
Your Honours were taken to the request for additional directions this morning which is at page 236 of the appeal book and, in our submission, counsel for the accused there essentially accepts the trial judge’s directions on this particular subject. He says that there has to be:
an adequate warning about the difficulty of establishing the defence case after a lapse of four years, a direction which your Honour did give –
and then further down:
the delay in making a complaint may be so long that it hampers an accused person’s right to defend himself and so on. A direction which your Honour did give – - -
HAYNE J: That is why the complaint is to be found at 237, not at 236, Mr Solicitor.
MR SEXTON: That is so, your Honour, but the complaint there is of a more general kind about a general scrutiny of the evidence. It says there, the jury ‑ ‑ ‑
HAYNE J: Language which is at least echoed, or echoes what was said in the majority in Longman.
MR SEXTON: Well, again, there was certainly on a number of occasions comment by the trial judge about that very factor, the need to scrutinise the complainant’s evidence with care, and in the additional directions those matters were commented on again.
So, your Honours, it is really a question of whether in that situation the trial judge was obliged to identify some of those forensic matters, if there were any, and point them out to the jury. We would say not.
GAUDRON J: But speculate - nobody has suggested that the trial judge had to identify them. What is being suggested to you is that simply because, as a matter of common sense, a number of opportunities must have been lost which one can assume would have been available if prompt complaint had been made, that there should have been a warning without any reference to – maybe that is as a lead-up to it – but there should have been a warning that it was dangerous to convict on this evidence. It was possible the jury were permitted to, but it was dangerous to convict.
MR SEXTON: Your Honour, in our submission, the whole tenure of the directions – and I have taken your Honours to a number of them – certainly suggested to the jury that they should exercise great care in making that assessment. But the terms in which your Honour puts it, and the terms that are used in Longman, in our submission, cannot be transferred to every case. It is a question of whether these facts and this evidence would require that kind of specific warning.
In some of the other counts, they were approached, of course, on a forensic basis as to whether or not the accused had been the sports master, for example, at particular times, but in relation to this particular count, there was simply the conflicting versions given by the complainant and the accused. The accused’s version was, of course, that he did not go into the room with this person or with any other person, that it just simply never happened; and it was put, of course, to the complainant in cross‑examination that he had simply invented this complaint in relation to the accused out of, presumably, some kind of malice or perversity – it is not quite clear what the motivation was, but it was certainly put to him that it was an invention.
McHUGH J: It was that he blamed him, did he not, for the deficiencies in his education, or what had happened.
MR SEXTON: Yes.
HAYNE J: But the argument seems to reduce to the proposition that because nothing was said at trial, nothing had been forgotten. It is an unusual proposition, Mr Solicitor.
MR SEXTON: No, your Honour. No, your Honour, except as for the two versions, neither the complainant nor the accused said that material had been forgotten. The complainant had a recollection which he gave in evidence and the accused’s version was that it simply had never happened. In fact, the accused gave his evidence on the basis of having quite a clear recollection of the circumstances in the school and about his conduct at the time, and he was very specific about a lot of those matters, including this, that it simply did not happen and it could not have happened.
In our submission there is a real contrast here with the factual situation in Longman where the issue of the reliability of the complainant’s evidence was at the heart of the case. We would say here it is really a question of credit as between the complainant and the accused, and the question of what kind of direction is required in those circumstances.
Now, your Honours, I propose to move to the other two grounds, which have a degree of overlap between them, perhaps a substantial overlap, the first one really involving the construction of section 81A as it then was of the Crimes Act. Your Honour Justice Gummow raised this morning the question of what was then the Summary Offences Act.
GUMMOW J: Yes.
MR SEXTON: There was a section 12 of indecent exposure at a school, although proceedings had to be brought within six months on the basis of that section. The section was repealed in 1979 and re-enacted in the Public Places Act, which is where it presumably now is.
GUMMOW J: Is that the only relevant statutory summary offence?
MR SEXTON: Statutory, as far as we are aware.
KIRBY J: But is there no general provision for indecent exposure?
MR SEXTON: The preceding section, section 11 as it then was in the Summary Offences Act, is a more general provision about indecent exposure. They would seem to be the statutory provisions. There may, of course, be a common law offence.
In relation to the first and second grounds, your Honours have been taken to the way in which that was put to the jury by the trial judge, particularly at page 221 in the appeal book where the trial judge referred to the words of the indictment and said that these referred to:
an act of indecency in the presence of Neil McAlister so it is sufficient if the Crown has proved beyond reasonable doubt that the accused did those things of which Neil McAlister has told you, and that they were in the presence of Neil McAlister. Those are the two aspects, that he was there, that he saw this, and that is what happened.
Now, it is true, your Honours, that there are references to “presence” which may suggest one approach to what was then section 81A. In our submission, what those statements were putting to the jury was that if they accepted the version that was given in his evidence by the complainant, then they should bring in a verdict of guilty. Now, we say that on the evidence given by the complainant, which the jury did accept, that the elements of the offence are made out, even though there is reference there to the question of presence which, on one construction of the section, would not be by itself sufficient. I will come back to that.
My learned friend Mr Byrne took your Honours to the decision of the English Court of Appeal in Preece and to the passage in Preece at page 375 where it was said that the term “with” in the equivalent English provision, which is section 13 of the Indecency Act, required the participation or the co‑operation of two men.
KIRBY J: The history of the change in the legislation appears to suggest that that was a generally accepted view at the time. Is there any other explanation for the change of the legislation?
MR SEXTON: In New South Wales, your Honour?
KIRBY J: Yes.
MR SEXTON: Preece and the two decisions in the Court of Appeal, Orsos and Page, to which your Honours were also taken, would obviously in the minds of the law enforcement authorities presumably have raised a question as to how the New South Wales provision would be construed in the future and it was no doubt thought a wise thing to make that change. It does not follow from that, in our submission, that that is the correct construction. We say that even if that is the correct construction, that the facts here meet it, but, in the alternative, we would say that one could take the construction that was preferred by differently constituted benches of the English Court of Appeal, and I will take your Honour to those.
It is our submission that even if one has a requirement of participation or co‑operation that it is met here by the complainant’s version of the events, that is, on his evidence, he was called into the storeroom, the accused closed the door of the storeroom, he directed the complainant to clean up the semen with his, the accused’s, handkerchief.
GLEESON CJ: How big was the storeroom?
MR SEXTON: I cannot answer that either. I know your Honour has already asked my learned friend that.
GLEESON CJ: Some things that are called storerooms are just like broom cupboards.
MR SEXTON: Yes. Because it was, I think, between two classrooms the impression from the evidence is that it was not a large area but I am not – it is certainly not the subject of detailed evidence, but the one thing that is clear is that it was seemingly between two classrooms and it was distinguished from a basement storeroom, which was the subject of some of the other counts, which was below the school or in a lower part of the school. One further fact is that the accused, of course, gave a description to the complainant of what had happened and then he directed the complainant to return to the classroom. We would say that comfortably meets the notion of participation and co-operation.
McHUGH J: But there must more, because consider the consequence which was a point made in Preece. Look at the indictment on page 1 here, that the accused:
being a male person did commit an act of indecency with Neil McAlister –
Now, if that was published in The Sydney Morning Herald the next day and I read that, I would have regarded Neil McAlister as a person who had actively participated in this act of indecency with the accused.
GLEESON CJ: Certainly someone you would be careful about being locked up in a storeroom with.
MR SEXTON: But, your Honour, from what your Honour raises, which seemed to be a matter of concern to the Court of Appeal in Preece, could be dealt with in other ways by orders of the court and particularly, of course, that would happen if a minor was involved. It would not be publicised in that way.
McHUGH J: Well, the charge might be.
GLEESON CJ: One of the problems I have, Mr Solicitor, is with this concept of participation when you consider the way in which this legislation would apply to dealings with young children, which it has to do. It is one thing to have a fairly clear idea of what is involved in participation with a 17-year-old male, but what is involved in participation, when you start talking about behaviour involving a seven-year-old male, might be different proposition.
MR SEXTON: Well, one of the problems which comes out of your Honour’s questioning is that Preece is really premised in part on a notion of consent of the other party, which perhaps has no real application with children, particularly with very young children.
GAUDRON J: In the case of children, most of the charges will be of indecent assault or worse.
MR SEXTON: Those questions perhaps provide some support, we would say, for the broader construction of the section that within a sense includes towards which would then deal with some of the situations involving young children, for example, and I will come to that construction, but we would still say that here there was the requisite degree of participation. There may be some question if it were completely involuntary, but that was not so here, despite the authority of a teacher being used, but it was perhaps, in the general sense, voluntary. It was never suggested in the English cases that physical contact between the two persons in question was a necessary element of the offence. There was, of course, arguably some contact between the parties here, not in the chief act itself, but some contact, but there are two decisions which I can refer your Honour to on that question: The Queen v Hornsby (1946) 2 All ER 487 and The Queen v Hunt (1950) 2 All ER 291, and they both make that point about physical contact not being required.
Now, your Honours, if our submission about participation or involvement – perhaps two slightly different concepts – not be accepted, then we would make the submission that some of the earlier decisions of the English Court of Appeal should be preferred to Preece and, by definition, presumably to Orsos. In so far as Page took a position, in Page, as your Honour the Chief Justice pointed out this morning, there was a qualified concession by the prosecution and the facts of Page would perhaps suggest that the concession did not go as far as, for example, suggesting that in this case there was not the required degree of participation.
GLEESON CJ: Did you find out what that qualification was?
MR SEXTON: We do not know.
GLEESON CJ: I have to say I have no recollection of it at all. But is that not a case in which somebody did something, in effect, in front of a room full of people?
MR SEXTON: I think it was only one person, your Honour, but it was in a room with one person. But it was simply a matter of observation, in a sense, from the other person’s point of view. As I recall, there was not anything that could be easily termed co‑operation, participation or involvement, unless one were to use some of Justice Kirby’s ‑ ‑ ‑
GLEESON CJ: But the observer did not burst into applause, or anything like that.
MR SEXTON: It is not reported, your Honour. An argument can be made in the way in which Justice Kirby was making this morning, as to a notion of gratification without any kind of overt participation. But we do not have to go as far as that in this case. Those earlier decisions, two in particular, The Queen v Hall (1964) ‑ ‑ ‑
KIRBY J: Just before you go on to this, if we are in a situation where there are different constructions available, the problem has been removed because Parliament has made it clear there was authority in the Court of Criminal Appeal of the State concerned which upholds the construction urged for the applicant. Would this Court not, relieving itself of the trouble of going back into an area which is of no general continuing importance, simply apply the construction which was then the orthodox current construction instead of, as it were, revisiting the whole matter and reinventing the wheel for something which can have no general significance whatever?
MR SEXTON: Your Honour, we say, even on that construction, even on the construction that arguably was accepted at the time, that the facts here would fall within that. That is, of course, our primary submission.
GLEESON CJ: Those cases appear to have been authority for no more than the proposition that if there was nothing more than mere presence and observation on the part of the second person, then the word “with” is not satisfied, but how much more is sufficient is the problem raised by this case.
MR SEXTON: That is right, your Honour, yes. But we say that this one is not close to the line. One could imagine more difficult cases, but we say that here there is a number of elements of involvement. As I said, there may be some differences of nuance between the terms “participation”, “involvement”, “co-operation”, but ‑ ‑ ‑
KIRBY J: I can see the nuances that you are seeking very properly to raise but, given that the statutory framework has changed, why would we get deeply into this matter? I mean, why would one bother? Is there any other State with a “with”? It did not look so in the schedule of legislation.
MR SEXTON: No, your Honour has seen the – there may have at some stage – the cases are mainly English cases because it was “with” in the English statute as well, although in the incitement provision in England it was “with or towards”, curiously. But the short answer to your Honour’s question is that it may be necessary to do that to decide this case. I will not take your Honours in detail to these decisions. In Hall (1971) 1 QB 432 ‑ ‑ ‑
GAUDRON J: I have 273.
MR SEXTON: I was going to say – thank you, your Honour – the passage is at 276 to 277. But in this case, the Court of Appeal held that the word “with” in the statute included the meanings of “against or directed towards”.
GUMMOW J: Yes, but this was not followed in Preece.
MR SEXTON: That is so. Well, Preece is a later decision, your Honour.
GUMMOW J: Yes, obviously.
MR SEXTON: But, in a sense, the decisions – and there is one more decision I will take your Honour to – in a sense, the decisions all stand, except that they are different in time. In other words, there seem to be some differences on the question of construction. That, of course, would go so far as to deal with the situation that your Honour the Chief Justice raises where there was perhaps mere observation, which we say is not this case.
The other case is Reg v Burgess at (1971) 1 QB 432 and at 436, it is implicit in the court’s judgment there, in our submission, again, that “with” included “towards” and the words that the court used were, “created an offence of indecency involving another person”. That perhaps may be another term that goes beyond - that term may go beyond mere observation.
GAUDRON J: What were the terms of the statute involved there?
MR SEXTON: The same, your Honour.
GAUDRON J: No, no, he committed an act of gross indecency “towards” the boy, as I read it.
MR SEXTON: I am just trying to ‑ ‑ ‑
GUMMOW J: Well, at 433, footnote 1.
GAUDRON J: In the statute, there was “with or towards”, and the question was whether that was one offence or two, and therefore whether it was bad for duplicity, was it not?
MR SEXTON: It is the same question as in Orsos, your Honour, the New South Wales, whether that was duplicitous.
GAUDRON J: Yes.
KIRBY J: But that was quite different to this case. The whole point here is that the statute did not have the words “or towards”.
MR SEXTON: Yes. It is only, your Honour, that it is what was assumed by the Court in Burgess that provides some support to the notion that “with” includes “towards”. In other words, that when “with” was used in those statutes, that it was intended to include a situation where there was not, in fact, participation or involvement. Your Honour appreciates that it is an alternative argument. Our primary argument is that there was participation involvement in this case.
GLEESON CJ: It might make a big difference between participation and involvement too.
MR SEXTON: Well, there may be, your Honour, that is so. We would say here that if there is a difference, and ‑ ‑ ‑
GLEESON CJ: A lot of people who are involved in activities of this kind would not be pleased to hear themselves described as participants.
MR SEXTON: If there is a difference, your Honour, we would say that they are both present here. It may be that participation is at a higher level, but not necessarily when one has a child, or perhaps even an adult, participation that involves, as it were, a blameworthiness on the part of that person, this being a case where there was directions from a teacher.
Now, your Honours, the second ground of appeal relates to whether the elements of the offence were put properly to the jury by the trial judge. In our submission, they were, and really that comes out of the submissions that we have made in relation to the first ground, and we say that, in effect, when the trial judge put to the jury that if they accepted beyond a reasonable doubt the evidence that was given by the complainant on this particular count, then they would be able to find the accused guilty of that offence. Then the conduct of the complainant that was before the jury at that time would satisfy either of the two constructions of the provision that have been put forward in the various authorities. But we have a preference, of course, for saying that there was a degree of participation or involvement here; admit the terms of the first construction.
I am sorry. Could your Honours excuse me for just one moment? Your Honours, I have one of the exhibits from the trial which has some photographs of the storeroom which may give some idea of its dimensions, although they seem to be looking in through the door – some idea, I say, of its dimensions. Would it be of any assistance?
GLEESON CJ: Thank you, Mr Solicitor.
MR SEXTON: I will hand those up. It was exhibit B at the trial.
GLEESON CJ: Thank you.
KIRBY J: In the event that the first ground succeeds, that is to say the inadequate direction in the appeal, the proper order would be a retrial, would it not?
MR SEXTON: Yes, your Honour.
KIRBY J: In the events that have occurred, is there any reason why the Court would not make that order? Of course, if the second ground succeeds, then the matter was not properly the subject of the charge that was laid, there would have to be an entry of acquittal, would there not?
MR SEXTON: The third ground would also result in a retrial, presumably, your Honour, but as your Honour says about the second ground, it is in a different category. Yes.
GUMMOW J: Does the evidence disclose when these photographs were taken?
MR SEXTON: I am not aware of that, your Honour. My learned friend may.
HAYNE J: They were tendered in the course of the cross‑examination of the complainant at page 49. You will discover, I think, that they were photographs taken in August 97, are they? Appeal book 53, 54; 48, 49 of the transcript.
MR SEXTON: Thank you, your Honour. Now, your Honours, unless there were any other matters relating to the grounds of appeal on the criminal side I was proposing to move to the jurisdictional question.
GLEESON CJ: Yes, go ahead.
MR SEXTON: That question, as your Honours would appreciate from the arguments put forward by my learned friend the Commonwealth Solicitor‑General this morning, has come down to a relatively narrow question. My learned friend referred to a concession that we had made. I am not sure if it amounts to a concession. What we did in that paragraph was to note some earlier decisions of this Court and no challenge is made to those. As your Honours appreciate, the short point that we make is that the jurisdiction of the Court of Criminal Appeal in New South Wales was limited by the provisions of the Criminal Appeal Act 1912 and that that affects the kind of appeal that can be brought to this Court and that it precludes the hearing of a ground that was not taken in any way at all before the Court of Criminal Appeal, and we put that argument ‑ ‑ ‑
GAUDRON J: I am surprised you put it, actually. Attorneys‑General are meant to be long‑sighted folk. It is a submission that one day in another case when you are on the other side of the record might come back to bite you.
MR SEXTON: I appreciate that, your Honour.
GUMMOW J: I hope you do, yes. I hope those instructing you do, too.
MR SEXTON: As your Honour knows, the Attorney‑General for New South Wales does not intervene and, of course, the Director of Public Prosecutions may have an interest in this.
GUMMOW J: This is a constitutional question. This is within the immediate province of the Attorney, nobody else.
MR SEXTON: I understand what your Honour says.
GUMMOW J: The Court listens to the Attorney in these constitutional questions, ….the State involved, not some emissary from a statutory body or a statutory officer.
MR SEXTON: The Director does not come here to put the Attorney’s point of view, your Honour.
GUMMOW J: It is a pity we do not have the Attorney’s point of view. It is a serious matter. That is what 78B notices are all about.
MR SEXTON: But your Honours appreciate the arguments based upon sections 5 and 6 of the Criminal Appeal Act.
GAUDRON J: Your argument there comes down, in effect, to reading into the provisions the grounds taken by the appellant, does it?
MR SEXTON: That is so, your Honour, yes.
GAUDRON J: Well, now, it is a curious submission, is it not? First of all the words are not there; secondly, it brings about virtually a new species of appeal, does it not, and thirdly, it endorses what has been said by this Court on a number of occasions as to the procedure to be adopted when construing the powers and jurisdiction of a court.
MR SEXTON: Well, your Honour, your Honour understands that our submission is that we say that section 5, in effect, sets out the jurisdiction of the Court of Criminal Appeal and section 6 ‑ ‑ ‑
GAUDRON J: On any ground which involves a question of law alone. I mean, I dare say that requires him to specify a ground to open the door of the Court of Criminal Appeal, as it were.
GLEESON CJ: I am concerned about how this would operate in practice in relation to appellants in person, Mr Solicitor. I have sat on many appeals in which an unrepresented appellant has been permitted to proceed on a document which contained nothing that could be recognised as a ground of appeal, but simply a series of complaints about things that appeared to be unjust.
MR SEXTON: Well, your Honour, our argument really deals with a situation which is this case, where ‑ ‑ ‑
GUMMOW J: Well, your argument does not deal very well with the situation where we live in an area of contracting legal aid, for which the Executive Government and State is responsible.
MR SEXTON: But, your Honour, this was a case where the grounds were not argued.
GUMMOW J: And it is against that background one has to construe this Act, not just for this case; as well as construing it for the purposes of the Constitution.
MR SEXTON: Your Honour, this is a case where the grounds were not argued and therefore were not determined by the Court of Criminal Appeal. The example given by your Honour the Chief Justice, if the matters were raised in any way before the Court of Criminal Appeal, or even by the court itself, which is ‑ ‑ ‑
GUMMOW J: But, in the next case, there may be a litigant in person, who is not astute enough to raise the point. The Court has limits to what it can do and it does not spot the point either. Now then what happens? Does this person languish in prison?
MR SEXTON: Well, your Honour is talking about a very limited class of cases.
GUMMOW J: It does not matter, one is construing the section in the statute.
MR SEXTON: Yes.
GAUDRON J: And not only a section in the Criminal Appeal Act, but a section which is in identical terms in all jurisdictions.
GUMMOW J: Eventually.
MR SEXTON: Yes, your Honour.
GAUDRON J: It is the common criminal appeal provision.
MR SEXTON: Well, certainly in New South Wales the cases that fell within the category that your Honour Justice Gummow has just raised can be addressed under Part 13A of the Crimes Act, where there is provision for, in effect, a review of the conviction.
GUMMOW J: By the executive – on the motion of the executive?
MR SEXTON: Or by the court. Those petitions can go to the Supreme Court and then be referred to the Court of Criminal Appeal.
GAUDRON J: Yes, I do not think that is common throughout all jurisdictions.
MR SEXTON: No, I was going to say, your Honour, that that may not solve the problem in some other States.
GAUDRON J: Well, the real problem that you face is this, Mr Solicitor: jurisdiction is conferred on courts so that they can do justice according to law or, in the case of criminal appeals, to ensure that there has been no substantial miscarriage of justice. Why would you read it down in the way you do? I mean, what basis is there for reading it in the way you do?
MR SEXTON: Your Honour, we say that, in a situation where - this was not one where the Court of Criminal Appeal could consider this question; it could not do it in this case.
GAUDRON J: Well it could have, of its own motion. In fact, given its own authority or its own previous decisions in this area, it may be thought by some to be a little surprising that it did not raise the question.
MR SEXTON: But once it has not raised it, your Honour, in our submission, it affects the character of the appeal to this Court.
GUMMOW J: Exactly. Another reason for not reading it narrowly.
GAUDRON J: What it means is if ‑ ‑ ‑
GUMMOW J: You have a basic construction that undermines the position of this Court and the constitutional scheme of the country under section 73 of the Constitution.
MR SEXTON: No ‑ ‑ ‑
GUMMOW J: Well, you do. That is the necessary consequence of what you are doing.
GAUDRON J: What it also means is that if an accused person is the victim of an incompetent prosecutor and incompetent defence counsel, something which is not entirely unknown, and then the victim of a busy Court of Criminal Appeal, then he is forever the victim of a miscarriage of justice and nothing can be done about it.
MR SEXTON: Well, your Honour, in New South Wales something can be done about it. In those, one would think rare, cases where it went that far through the system without a particular point being raised. Your Honours, I am not sure that I can say any more than I have said now and we have put in our written submissions ‑ ‑ ‑
KIRBY J: Could you perhaps identify, just so that I can be very clear in my mind, the point of difference that you have with the Solicitor-General for the Commonwealth.
MR SEXTON: It is about the construction of sections 5 and 6 of the Criminal Appeal Act and whether or not the reference to “grounds”, particularly in section 5, allows ‑ ‑ ‑
KIRBY J: No ground, no appeal.
MR SEXTON: No ground dealt with below; it does not have to be initially taken or filed in the Court of Criminal Appeal in New South Wales ‑ ‑ ‑
KIRBY J: So you say that the majority view in Gipp was wrong, then?
MR SEXTON: It was not addressed specifically by all of the majority in Gipp. Not quite in those terms, your Honour, but obviously we would come to a different result, we would be proposing a different result from what the majority reached in Gipp. And as your Honour has pointed out, in a number of cases where the matter, where grounds have been considered but the legal issue has not been addressed in this Court, like in Giannarelli.
HAYNE J: Well, Mr Solicitor, you put it as “no grounds dealt with below” which seems to invite attention, not the construction of sections 5 and 6 at all. It invites attention to the nature of the curial battle that occurred below and to attribute consequences to that. If that is the argument I, for my part, would be much assisted by understanding where it takes you. It is not an argument that it seems to me is founded in construction of sections 5 and 6. It is an argument that is founded on what has occurred in the Court of Criminal Appeal. That is, what was the curial battle ground? What was the result? And then attributing significance to that fact. If that is the argument, it is one which, at the moment, seems undeveloped and one which I do not yet understand.
MR SEXTON: Your Honour, it does depend upon sections 5 and 6 with the consequence that ‑ ‑ ‑
HAYNE J: If that is the chosen ground on which you wish to fight the battle, so be it.
GLEESON CJ: It has to depend on that, does it not, Mr Solicitor, because rule 4A of the Criminal Appeal Rules in New South Wales, which provides that you cannot raise an argument in the Court of Criminal Appeal unless the point was taken below except by leave of the court, assumes that the court may give leave to raise a point in the Court of Criminal Appeal that was not taken at the trial.
MR SEXTON: It may be, your Honour, that those rules are of a procedural nature and perhaps different from the jurisdictional provisions of the statute, but we accept your Honour’s proposition that yes, if leave is granted, that that can be done at a very late stage, and often is done, as your Honour would know, at a very late stage in the New South Wales Court of Criminal Appeal.
HAYNE J: And thus, regardless of the fact that the accused is unrepresented, if in the course of the appeal an issue emerges and is dealt with, so be it. But what I do not understand for the moment is what seems to be the contention you flirt with but do not embrace, indeed, perhaps positively reject, that what happens in this Court depends upon what issue was joined below, regardless of the pieces of paper that may have been generated to get in the door of the Court of Appeal or in the course of running it in the Court of Appeal. But if that is the area for debate, I do not understand it at the moment, Mr Solicitor.
MR SEXTON: Not just joined below, but determined below, your Honour.
GAUDRON J: Well, joined and determined.
MR SEXTON: It might be that it was never joined, your Honour.
GAUDRON J: It might be that it was not determined. It is not unknown for busy Courts of Criminal Appeal not to decide an issue that was raised, so you cannot just put it in terms of determined.
MR SEXTON: I only use that because it is possible to imagine that the joined did not occur.
GAUDRON J: Joined or determined, I suppose. Raised or determined.
MR SEXTON: Almost certainly there would be some kind of joinder. Now, your Honours, the final matter is the question of discretion. There is little that we can add to what we noted in our written submissions that the Court would, in our submission, exercise a rigorous discretionary assessment of fresh grounds of appeal in this Court in the context of criminal trials where it has not been taken at any point.
GAUDRON J: What do you mean by that?
MR SEXTON: It would hardly ever do it, your Honour.
GAUDRON J: Then that does not seem to me to say very much of substance. One can well understand that a statement, for example, that special leave would not be granted in any circumstance where the failure to take the point below is explicable on the basis of forensic judgment or on the basis of an attempt to obtain or that it would not, in the context, have resulted in any advantage and things of that nature. That is at one end.
At the other end one can understand it being said, for example, the court would not grant special leave to appeal in respect of a matter not taken at first instance or in the intermediate Court of Appeal unless a clear prima facie case emerged on the special leave application that there had been a consequential miscarriage of justice. But where do you stand? I mean, it does not help much to say “rarely, sometimes, never”.
MR SEXTON: If I give an example, your Honour: if one thinks of a case where there was a judgment of this Court which followed a trial and a judgment in the Court of Criminal Appeal which effectively changed the legal position on which the trial had been conducted, that might be a case where the discretion would be exercised.
GUMMOW J: The first case in which a discretion of a nature Justice Gaudron has been outlining to you is exercised here, is a case called Millard v The King (1906) 3 CLR 827, where the Court, in declining to
entertain the point of this nature, spoke in terms that her Honour has been speaking to this afternoon. It all seems pretty well settled, after this constitutional argument that creeps out somewhere.
MR SEXTON: Well, I am not putting this, of course, on that basis, your Honour. It is simply a discretionary matter and I have just given one example where there would be an argument in favour of exercising the discretion. The argument against it in this case, in our submission, is that it was not raised at the two levels below, for whatever reason we do not – it might be assumed that it did not occur to anyone.
GAUDRON J: Let us assume that Mr Byrne is right for the moment. Then one of the reasons it was not raised was either because you had a prosecutor who knew and elected to proceed in the knowledge that there was at least an arguable point, or a prosecutor who did not know and managed to get away with it because the trial judge apparently did not know either. Now, that is right, is it not in this case, if Mr Byrne is right?
MR SEXTON: One might assume that it was not thought of at any of the levels, your Honour.
GAUDRON J: Yes. Given the statements beyond number in which the duty of a prosecutor has been given voice, it is a bit hard, is it not, to say the point was not taken, that is the end of the matter, if it is also the case that the prosecutor should have been alive to the issue and did nothing about it?
MR SEXTON: It is not just a matter as between the parties, your Honour. It is a question of some degree of finality in the trial process, and that is why it has been said that it would be a rare thing that a ground of appeal would be considered in these circumstances. Cases only provide individual examples themselves, mostly of not considering the grounds sometimes considered. It is not easy to form a set of categories. But we would say that there is an interest in finality and that is why the court has made those general statements. If the Court pleases, those are our submissions.
GLEESON CJ: Thank you, Mr Sexton. Yes, Mr Byrne.
MR BYRNE: Your Honours, just in relation to the question of the discretion that my learned friend has raised, we would concede that the fact that a point has not been taken in the primary court or in an intermediate Court of Criminal Appeal is clearly a matter of great moment in determining whether ‑ ‑ ‑
McHUGH J: I do not see that. If the Court has got jurisdiction to entertain a ground and the jurisdiction is conferred on this Court to correct miscarriages in that sense, then it seems to me it must necessarily follow that the Court should always grant special leave to correct that miscarriage in your type of case. If your client should not have been convicted, even though point was never taken at any stage, then it seems to me that you cannot talk about exceptional circumstances, that you must be given special leave to appeal, otherwise there is the denial of the very jurisdiction which is granted to the Court.
MR BYRNE: Certainly, your Honour, we would say that this is an exceptional case and that the miscarriage of justice in this case is a demonstrable one, that the submission I was previously putting was that the fact the point has not been taken in any court below will often, if not usually, provide a very significant hurdle but that hurdle will be overcome if it can be demonstrated that there is in the individual case a miscarriage of justice, and, as we would submit in this case, a clear miscarriage of justice.
McHUGH J: But what do you mean by “a miscarriage”; that there has been a denial of justice according to law?
MR BYRNE: In the circumstances of this case our contention is that there is a miscarriage because the evidence which was presented in the trial proceedings was insufficient to establish the charge alleged against the accused person. Indeed, the proposition we make goes further than that.
McHUGH J: I can understand that, I hope, but it seems to me to lead to the conclusion that you must always get special leave in such a case. If you should not have been convicted and the Court has jurisdiction to entertain it, then you must always get special leave.
MR BYRNE: Certainly if that can be demonstrated, but sometimes the difficult will be in establishing that you should not have been convicted.
GAUDRON J: But what you seem to be putting, Mr Byrne, is that the test in a case of that kind is really very different from the test that might be applied simply if it said “failure to direct on a particular issue”, or perhaps “the verdict was unsafe and unsatisfactory”.
MR BYRNE: Yes, your Honour, this Court’s ‑ ‑ ‑
GAUDRON J: Because what you are saying is, it was not a case where the jury might find him guilty, so it is not simply a case of having been deprived of a chance of acquittal that was fairly open. Rather, he was deprived of an acquittal to which he was entitled, and at least in that sort of case special leave should be granted.
MR BYRNE: It, in fact, really goes further than that when the Court asked the question earlier, “What would the proper order or direction for the trial judge to have been given?” It was a no case direction but if, as Justice Kirby raised, this matter were to be the subject of an order for retrial, then it would be our submission that there should never be any retrial because, on the evidence available to the prosecution, this man should never have even been charged with this offence, let alone tried for it.
KIRBY J: In a sense that is why one cannot simply solve the appeal. If one were in favour of your first submission, you have to deal with the second submission because logically it comes before the first.
MR BYRNE: Yes, and that decision of the Court – a different Jones’ Case, the Jones’ Case from Tasmania, I think about seven or eight years ago, which dealt with the need to deal with so-called acquittal points as well as retrial points. Your Honours, I was intending to refer ‑ ‑ ‑
McHUGH J: What about a case where the unsafe and unsatisfactory ground has not been taken in the Court of Criminal Appeal and they come up here? The Court concludes the verdict is unsafe and unsatisfactory. Are you entitled to special leave as of right, or almost as a right?
MR BYRNE: If the Court, on the application for special leave, were of the view that the conviction were unsafe and unsatisfactory, that would be tantamount to a finding that there was a miscarriage of justice.
GAUDRON J: That is to say if there was a good prima facie case to that effect.
MR BYRNE: Yes.
GAUDRON J: But different considerations might apply depending on how good the prima facie case was.
MR BYRNE: Certainly. Your Honours, there is a decision of the Canadian Supreme Court which is referred to in my learned friend’s, the Solicitor-General for New South Wales, submissions. It is a decision of five judges of the Court reported as The Queen v Brown ‑ ‑ ‑
KIRBY J: What is this on? What point?
MR BYRNE: It is on the question of discretion to entertain an appeal where the point has not been previously raised. It is a decision that was made in 1993 and it is reported in 105 DLR (4th). It was a court constituted by five judges of the Canadian Supreme Court. Four of their Honours held that the appeal should be allowed, notwithstanding that the point had not been taken. There was a dissenting judgment. Her Honour Justice L’Heureux-Dube in that dissenting judgment set out some of the conditions which might be satisfied before an appeal would be allowed in a case where the point had not previously been taken. Can I just read briefly, your Honours, from page 206. This was a dissenting judgment of her Honour:
In summary, the following three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal. First, there must be a sufficient evidentiary record to resolve the issue. Secondly, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Thirdly, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such a new issue on appeal.
In the present case, none of these conditions are satisfied.
GLEESON CJ: How do you go about determining whether the second of those conditions are satisfied in a particular case? Do you cross‑examine the barrister?
KIRBY J: There was an affidavit in these proceedings, was there not, from Mr Brezniak?
MR BYRNE: In the court below.
KIRBY J: But not on this point? It was in relation to a Browne v Dunn, I think.
MR BYRNE: That is right; he was confusing Jones v Dunkell with Browne v Dunn, but there just could not be, with respect, any possible tactical advantage flowing ‑ ‑ ‑
GLEESON CJ: I understand that. It is one thing to say, there was no possible tactical reason for doing it; it is another thing to say, the court has to decide whether there was a tactical reason for doing it.
MR BYRNE: That may be a difficult decision in certain cases.
McHUGH J: But, in any event, why should the accused by penalised in a criminal trial because his counsel made the wrong tactical decision?
MR BYRNE: Well, with respect, he should not be, and that is what this Court has held in Pemble’s Case, as your Honour’s and Justice Hayne’s joint judgment referred to in Gipp. That was an exception noted to the general proposition that was put in your Honour’s joint judgment and that really is an exception that is very much alive in this case. All of the conditions which her Honour described as pre-requisites are satisfied by this case. It does not require the introduction of fresh evidence. The point can be made by reference to the material in the courts below. There simply could not be, on any reasonable explanation, a tactical decision for taking the approach of not submitting that there was, in effect, no case made out and there is, in this case, what we would submit, is a ‑ ‑ ‑
McHUGH J: There may be. I have not got enough recollection of the other charges but it is quite possible that somebody does not want the count out of the way because there is some forensic advantage of having that count in, having regard to other counts.
MR BYRNE: Certainly where there is a joint trial that is a ‑ ‑ ‑
GAUDRON J: If that is so, then perhaps there should not be a joint trial.
MR BYRNE: Yes.
GAUDRON J: If one is being forced to make tactical decisions that disadvantage one accused as against others, then ‑ ‑ ‑
MR BYRNE: This point would have accounted for two of the counts in the indictment, not just the one in relation to which the conviction was suffered. Can I very briefly refer to the judgment is Longman. Your Honours, I appreciate, have been referred to this passage in Longman many times today but that passage in the judgment of the majority at page 91 which says that it is imperative for a direction to be given is put in the context of the unfairness of the trial proceedings which are the result of the lengthy delay, and reference is made to the decision of this Court in Jago v The Queen.
The implication in what the majority there say is that in some cases, as indeed appears to be the approach in England, the degree of unfairness caused by the delay will be so great that consideration should be given to ordering a stay of proceedings. But if a stay of proceedings is not ordered, then the only way of overcoming the unfairness that is created by the delay is by appropriate directions. That underlines the need for those directions to be strong enough to overcome the impairment to fairness of the trial proceedings it has created by the delay.
Your Honours, there is just one final matter in relation to that issue that your Honour Justice Gummow raised about the summary offences that might be applicable to the facts of this case. At the time, covered by the terms of the indictment, section 12 of the Summary Offences Act 1970 was enforce. As my learned friend said, that was repealed on 11 May 1979. It was replaced by identical provisions in legislation known as the Offences in Public Places Act 1979. That legislation has also since been repealed, but re-enacted in identical terms in the current legislation in New South Wales which is the Summary Offences Act 1988 and the specific provision is section 5.
Those references to common law offences that might be encompassed by the conduct alleged here are contained in the written submissions of the Crown on the application for special leave which are reproduced at pages 322 and 323 of the application book.
McHUGH J: Mr Byrne, can I just – if the Court has jurisdiction to entertain an appeal, notwithstanding the point has never been taken at the trial or in the Court of Criminal Appeal, upon what ground could this Court distinguish between a failure to take a point and taking the point? How could the Court say special leave should be granted in one case and not in the other?
MR BYRNE: Your Honour, where there is a failure to take the point, the ‑ ‑ ‑
McHUGH J: It has to be assumed it is a misdirection of some sort and the court would say, “The point is taken, we will grant special leave”. The next case, the same point, the point not taken. It comes up to us, exactly the same direction. Should we refuse special leave in that case?
MR BYRNE: Your Honour, in our submission, it is a matter of judgment as to the extent of the injustice, if any, caused by the shortcomings. Yet there was ‑ ‑ ‑
McHUGH J: But if it is good in one, why is it not good in the other? I do not know whether it is apocryphal or not, but it is said that there was an appeal from the Privy Council from Malaysia where a point was taken at the first trial in the Privy Council and all the accused were sentenced to death. And it was said to the first appellant “Yes, appeal allowed in your case”; second appellant “Sorry, you did not take the point, appeal dismissed”. I do not know whether that is apocryphal or not, but it is said to be the case. But on what ground can you rationally refuse leave in one case? The mere fact that the point has not been taken seems to be rather irrelevant.
MR BYRNE: Your Honour, it is a question of measuring the consequences of the failure to do what is now complained about.
McHUGH J: But in each case the accused has lost the chance to be acquitted.
MR BYRNE: He may not have. It depends on the circumstances.
McHUGH J: You would not grant him leave in the first case where the point has been taken. But assuming that it is a misdirection of the same quality, same likely effect on the evidence, why should you distinguish between one and the other?
MR BYRNE: It may be that there are other circumstances which justify a distinction such as a position where it can be said that there was some practical advantage sought to be obtained by failing to take the point.
GAUDRON J: Why would you distinguish, I suppose, in any event, Mr Byrne? If it is the same point it has the same consequences, then equal justice really would demand that result.
MR BYRNE: But it may be, depending on the circumstances of the case, that a decision could be made that the consequences of the error, the contended error ‑ ‑ ‑
GAUDRON J: If the consequences are different in each case, that may be different.
MR BYRNE: But it may be that the error has not created any or caused any injustice.
McHUGH J: See, that is the problem I always had with what was said in Pantorno, that it would only be in exceptional cases that you would grant it. It seems to me that if the Court has jurisdiction, then the fact the point was not taken is irrelevant. If you had granted leave if the point had been taken, why should you refuse it if it had not?
MR BYRNE: It is the same way, your Honour, that a court of criminal appeal in New South Wales - the Court of Criminal Appeal in New South Wales determines whether leave should be granted under rule 4. If the point is a valid one, rule 4 should not have any application.
McHUGH J: Exactly.
HAYNE J: But the systemic effects are radically different according to whether you are applying this rule at a second appeal or at the level of a first appeal.
MR BYRNE: Yes.
HAYNE J: Systemic effects of the two appeals are very different. At one point the argument may drive you back to the consideration of what is the purpose of a second appeal. Is it to be focused on system-wide issues? Is it
to be focused on individual justice? Is it to be focused on a mixture of the two, and how are the two to be balanced?
GLEESON CJ: And the meaning of repeated assertions, going back to 1906 in the case that we were showed earlier, that this is not a Court of Criminal Appeal.
KIRBY J: But the Judiciary Act in respect of special leave seems to have a bet each way. It appears to refer to systemic and individual notions.
MR BYRNE: Yes.
HAYNE J: The requirements in the interests of justice in a general sense and in the individual case?
MR BYRNE: Yes. Well, of course, in this case our application is based on the requirement to do justice in this individual case.
GAUDRON J: Of course, in your case you may have a somewhat better claim, not by assuming you are wrong on your claim with respect to the nature of the effects, but you are right with the first claim, with your Longman claim, and if you were to succeed on that you would simply get a new trial. But for the purposes, both of the administration of justice generally and in the case, you could say it is desirable that both matters be considered, because there would be ‑ ‑ ‑
GLEESON CJ: Futility, a new trial would be futile, if the second point it right.
GAUDRON J: Yes.
GLEESON CJ: Nobody can stop you taking the point at your second trial.
MR BYRNE: Well, we would argue that there would not be a second trial of this ‑ ‑ ‑
GLEESON CJ: No, but the point is, you have that extra string to your bow.
MR BYRNE: Yes. Your Honours, unless there are any other – those are our submissions.
GLEESON CJ: We will reserve our decision in this matter.
AT 3.42 PM THE MATTER WAS ADJOURNED
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