Fetineiai v The Queen

[1994] HCATrans 331

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S136 of 1993

B e t w e e n -

ISAIA FETINEIAI

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

DEANE J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

Fetineiai 1 12/5/94

AT SYDNEY ON THURSDAY. 12 MAY 1994. AT 3.03 PM

Copyright in the High Court of Australia

MR P. BYRNE:  May it please the Court, I appear with my

learned friend, MS E. TRUSCOTT, for the applicant.

(instructed by T. Murphy, Managing Director, Legal

Aid Commission of New South Wales)

MR K. MASON, OC, Solicitor-General for New South Wales: I

appear with my learned friend, MR P.J.P. POWER, for

the respondent. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions (New South

Wales))

MASON CJ;	Mr Byrne.
MR BYRNE:	Your Honours, this application raises a question regarding rule 4 of the Criminal Appeal Rules in
New South Wales.  Your Honours may well be familiar
with the terms of rule 4, but if I might just quickly read it to Your Honours:

No direction, omission to direct, or

decision as to the admission or rejection of

evidence, given by the Judge presiding at the

trial, shall, without the leave of the Court,

be allowed as a ground for appeal or an

application for leave to appeal unless

objection was taken at the trial to the
direction, omission, or decision by the party

appealing or applying for leave to appeal.

Your Honours, in this case there was an

established misdirection by the learned trial

judge. The Court of Criminal Appeal was unanimous

in holding that it was incumbent on the learned
trial judge, in the circumstances of this case, to

give the jury a direction relating to intoxication.

As I say, that was the unanimous decision of the

court of Criminal Appeal.

Mr Justice Hunt, with whom Mr Justice Studdert agreed, however, felt that the appeal should be

dismissed because, putting it in short terms, the
point had not been taken by the applicant, as he

now is, at the trial proceedings.

In our submission, the basis on which

Mr Justice Hunt has applied rule 4 and refused

leave to argue the ground of appeal raising the

failure to direct on intoxication is in error in

that it essentially elevates rule 4 to a position

higher than even the proviso to section 6 of the

Criminal Appeal Act in New South Wales which, of

course, has its equivalents in all the other

States.

Fetineiai 12/5/94

If I can take Your Honours to the important

part of Mr Justice Hunt's judgment, in relation to

the application of rule 4, to the circumstances of

this case. His Honour said, at page 79 of the

application book, when dealing with this issue, at

line 3:

Nevertheless, leave -

that is leave under rule 4 -

will be granted pursuant tor 4 where the

absence of the direction in question has been

shown by the appellant to have led to a

miscarriage of justice.

What His Honour is there saying is that where a

misdirection is established, but the point was not

taken at the trial, the onus is on the appellant to

establish a miscarriage of justice before leave
will be granted.

Now, the authorities on the application of the

proviso to the Criminal Appeal Act and its
equivalents in other States are to the effect that
once a misdirection is established it is for the

Crown to show that there has been no miscarriage of

justice before the proviso will be applied.

TOOHEY J: Are we entitled to proceed, Mr Byrne, on the

footing that the decision was deliberately taken

not to raise the question of intoxication?

MR BYRNE:  Of that I cannot be sure, with respect,

Your Honour, but I think - - -

TOOHEY J:  I am sorry, I am not asking you, as it were, to

get inside the mind of counsel, but just in the way

in which the trial was run are we entitled to

assume that?

MR BYRNE:  I think Your Honours are, yes. Yes, I think

Your Honours are, yes.

TOOHEY J: And one could understand why that would have been

done.

MR BYRNE:  Yes, certainly.

TOOHEY J: In the circumstances of this case.

MR BYRNE:  Yes.

Intoxication is not a defence which accused people are inclined to run with any enthusiasm.

Your Honours, not only did Mr Justice Hunt, in

our submission, improperly elevate the status of

rule 4 beyond that of the proviso to the Criminal

Fetineiai	12/5/94 Appeal Act, he, in my submission, applied the wrong
test in determining whether or not leave should be
granted or, if the circumstances arose, the proviso
should be applied. In his judgment,
Mr Justice Kirby recognized, as indeed it seems to
be the case that - to use His Honour's words - the
"jurisprudence of rule 4 and the proviso march in
general harmony" .

The test applied by the learned President of

the Court of Appeal in determining whether or not

leave should be granted under rule 4 and, indeed,

whether the proviso should be applied was the

correct test; the test that has been laid down by

this honourable Court in cases such as Wilde; more

recently in Domican, and more recently still in the

case of Glennon, 68 ALJR 209. I did not have the

opportunity of putting that case on my list of

authorities and I would ask, if Your Honours permit

me, to hand up photocopies of that decision.

MASON CJ: Yes.

MR BYRNE:  Your Honours, the test to be applied - and

Glennon was a proviso case - is set out initially

in the joint judgment of Your Honour the

Chief Justice, Justice Brennan and Your Honour

Justice Toohey. I refer, in particular, to

page 212 of the ALJR, in the right-hand column

under the heading "Was conviction inevitable?", and

the test is there established:

In order to apply the proviso where there

has been a misdirection by the trial judge

that is not fundamental in the sense discussed

above, the Court of Criminal Appeal must be

satisfied that, in the absence of the

misdirection, the jury would inevitably have

reached the same verdict.

If I can just go further on in the judgment to the

Justice Gaudron, and at page 214, in the right-hand	joint judgment of Your Honour Mr Justice Deane and
column, about midway through the second full
paragraph in the right-hand column, after reference
is made to Your Honour Justice Deane's decision in
Wilde, it is said:

Rather, a misdirection of that kind is

ordinarily one that must be evaluated in the

light of the issues in the trial and the way

in which the trial was conducted before it can

be ascertained whether it might have affected

the jury's deliberations.

Now, that question which is, in concept, the same

in each of those two joint judgments was never put

Fetineiai 4 12/5/94

by Mr Justice Hunt in his determination in this

case. On the other hand, in his dissenting

judgment in this matter, the learned President, at

page 72 of the application book, put the

appropriate question in the circumstances of this

case. At line 7, the first full paragraph on

page 72 of the application book, His Honour said:

In these circumstances, it is simply not

possible for this Court, in such a delicately
balanced case, to conclude that the jury,

properly instructed on the matter of the

intoxication of the accused, was bound

inevitably to have convicted him. For all we

know, this added ingredient, of proper

instruction on the significance of

intoxication, might have been the factor

which, taken into account, would have led to

the appellant's acquittal.

His Honour said further at page 75, line 2, of the

application book, again addressing what, in our

submission, is the proper test to be applied in the

determination of the proviso or, alternatively,

rule 4:

Properly instructed, the jury could have

concluded that the appellant was indeed a

"drunken man" as both the Prosecutor and the

Judge described him. They could, properly

informed of the law, have acquitted the

appellant on that basis. They may,

uninstructed in the law, have considered that

drunkenness, repeatedly referred to by the
Crown and the Judge, actually aggravated the accused's guilt and that this explained why

his counsel did not refer to the point.	Upon
this matter (and especially as the judge
himself had referred to the appellant as a
"drunken man") the jury were entitled to
assistance.	As they received none and as the
appellant lost a real chance of acquittal on
that basis, he should be given leave to argue
the point. To decide otherwise neuters -

the decision of this Court in Pemble -

by the device of a procedural rule. That

cannot, in law, be done by this Court.

Now, so far as the question posed in the

judgment of Mr Justice Hunt in which

Mr Justice Studdert agreed, the question was never

really addressed in the proper terms. There are,

apart from that, further objections to the

conclusion which was reached by Mr Justice Hunt in

his judgment on two significant bases. The first

Fetineiai 12/5/94

of those appears at page 77 of the application

book. His Honour says, at line 15:

The only issue was to be (and was) whether the

complainant had in fact consented.

Now, that was not the case in this trial as,

indeed, we would submit, in any trial of sexual

assault where consent is an issue, it can never be

said that the only issue is consent and consent

alone. Whenever the issue of consent is raised in
the trial, then coupled with it must be the

question of whether the accused person had

knowledge or was reckless to the question of the

absence of consent. The absence of consent is

itself a subjective thing and cannot be

conclusively determined by an accused person.

When an accused person in a sexual assault

case says, "The complainant consented", all that

person is really saying is that he or she believed

the complainant to be consenting. So that for

His Honour to say, "The only issue was consent" is, in my submission, a significant error in the

circumstances of this case.

Indeed, the error that His Honour made is

underlined by the fact that in this case the jury

were given written directions as to the issues in

the case. Those written directions are set out at

page 63 of the application book, and they

essentially address the three elements of the

offence of sexual assault, in writing. The first

of them is that there was sexual intercourse

between the accused and the complainant, and at the
bottom of page 63 it was put in writing to the

jury, "There is no issue as to this matter".

The second two issues were put as live issues

to the jury; the second being the question of

consent and the third being - indeed, the crucial

matter - the question of the knowledge of the

accused, as he then was, as to the question of

consent, or if that was decided adversely, the

question of recklessness. But each of those

issues, consent and knowledge, were left to the

jury as live issues. So, in our submission,

Mr Justice Hunt is in error when he said that the

only issue was that of consent.

Your Honours, .the second objection to the conclusion made by the learned judge in his

judgment is that a direction to the jury on the

question of intoxication would have been disastrous

to the applicant. His Honour said that on a couple

of occasions, but the real point of a direction on

intoxication was made in His Honour's judgment at

Fetineiai 6 12/5/94

page 79 of the application book and at line 20 -

perhaps from 19:

The very fact that a tactical decision was

taken by the appellant (who was represented by experienced counsel) not to raise any issue of

intoxication at the trial is eloquent of the

prejudicial effect which such an issue -

and these, in our respectful submission, are the

important words -

if expressly raised by the appellant would

have had upon his chances of success -

Now, His Honour, with respect, is right in saying

that if this issue had been raised by the appellant

then it would have, probably, damaged his prospects

of success at the trial. But that was not the

point.

In the circumstances of this case there was,

as the judgments unanimously acknowledge, abundant
evidence of intoxication and, in those

circumstances, intoxication being relevant to the
question of knowledge or recklessness, it was

incumbent upon the trial judge to direct the jury

as to the use they should make of that evidence in

the way in which this Court held it should be done

in Pemble's case.

If I can just briefly remind Your Honours of

what Chief Justice Sir Garfield Barwick said in his

decision in Pemble's case, (1971) 124 CLR 107, and

the particular passage to which I wish to refer the

Court is at page 117. The Chief Justice there observed, about halfway down the page:

There is no doubt that the course taken by

counsel for the appellant at the trial

contributed substantially to the form of the

summing up -

His Honour said further down, at about point 8:

Whatever course counsel may see fit to take,

no doubt bona fide but for tactical reasons in

which he considers the best interest of his

client, the trial judge must be astute to

secure for the accused a fair trial according

to law. This involves, in my opinion, an

adequate direction both as to the law and the

possible use of the relevant facts upon any
matter upon which the jury could in the
circumstances of the case upon the material

before them find or base a verdict in whole or

in part -

Fetineiai 7 12/5/94

Leaving out the next paragraph His Honour then went

on to say that in this case:

Here, counsel for the defence did not

merely not rely on the matters now sought to

be raised; he abandoned them and expressly

confined the defence to the matters he did

raise -

His Honour said -

this course did not relieve the trial judge of

the duty to put to the jury with adequate

assistance any matters on which the jury, upon

the evidence, could find for the accused - Now, it is true to say that the accused, at his

trial, did not raise these matters, but they were
squarely raised in the address given to the jury by
the Crown Prosecutor and in the summing up of the

learned trial judge. The question of the accused's

drunkenness was clearly put before the jury, but no

directions at all, none whatsoever, were given to

the jury.

MASON CJ: What is the main passage on that?

MR BYRNE:	Your Honours, it is in the summing up of the learned trial judge, and it appears at the
application book at page 32 at line 31, where His Honour was, in effect, summarizing the argument
for the Crown.  He said:

Do you believe, asked the Crown, that this

young man who was drunk, on his own admission,

was so charming that he persuaded her to lay

on a mattress and consent to that act of

sexual intercourse -

and further on, at page 33 of the application book,

at line 3:

Did she want her father or her uncle or her

cousins or whoever her relatives may have

been, to rush in and see her lying beneath a
drunken young man?

There was a large body of evidence, and it is

summarized in the judgment of the learned President

at page 65, regarding the question of intoxication.

Indeed the complainant herself gave evidence, and

this is referred to at page 65 line 10, that the

appellant was intoxicated:

I could tell he had been drinking.	He seemed
very strange to me -

Fetineiai 12/5/94

and then there was a lot of questions, referred to

in the record of interview, in which the accused

said that he had been drinking a large deal. He

described himself as being pretty drunk, having

been drinking bourbon as well as beer, and finally

that he was too drunk to remember what had
happened.

There was a large body of evidence, in our submission, regarding the question of drunkenness

which called for the judge to give the directions

which, indeed, the Court of Criminal Appeal held

that he should have given. This is not a complaint

about the failure to hold that there was a

necessity in this case to give directions on

intoxication. The Court of Criminal Appeal agreed

to that proposition. In the circumstances it is

submitted that the Court of Criminal Appeal should

not have applied the provisions of rule 4 to deny

the applicant the argument that he sought to raise.

Those are my submissions, may it please the Court.

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, at page 77 of the application book

my learned friend focused upon a sentence in the

judgment of Mr Justice Hunt at line 15, to suggest

that there was a wrong focus upon the question of

consent. The very next sentence indicates that His

Honour should not be so read:

The only evidence to suggest that the

appellant's perception as to the existence of

that consent may have been affected by

alcohol -

et cetera. The jury were directed, at page 19, as

to the importance of determining - I think it is
referred to as "a third ingredient or element of

the offence", line 20, that the accused knew that

she was not consenting, and then His Honour

expressed it in a more appropriate way, having

regard to the onus and standard of proof.

Your Honours, at the very outset my learned

friend's submissions appeared to encompass the

submission that rule 4 was invalid, as being

inconsistent with the proviso in the

Criminal Appeal Act. The proviso is found in

section 6 of the Criminal Appeal Act, and it

provides that:

The Court on any appeal under section 5 (1)

against conviction shall allow the appeal if -

of certain opinions -

Fetineiai 12/5/94

or that on any other ground whatsoever there

was a miscarriage of justice -

and then it goes on to speak about the proviso. In our submission the law in relation to

misdirections, whether with or without rule 4, has
always been very clear, that there is not a
necessary miscarriage simply because there is a
misdirection. That the misdirection per se is not
the ground of appeal, it is error of law or
miscarriage and that a failure to take an

objection, in either a civil or a criminal trial,

is a factor that goes to the question of

miscarriage, and may be a determinant one against

the granting of the appeal.

Here, as Mr Justice Kirby himself recognized

when he applied rule 4 as to some of the grounds

but not as to others, ultimately there is a
question of judicial discretion when the point has

not been taken at the trial and, in my submission,

the case really amounted to a disagreement amongst
the judges on the Court of Criminal Appeal about

how that discretion should properly be exercised,

or how rule 4 should be applied to the facts of the

particular case.

Mr Justice Kirby's acknowledgement of that fact is at page 74 of the application book, where

he, obviously, in the light of the majority

judgments, effectively sought to explain and defend

the distinction he drew between some of the

grounds, where leave was refused, and other grounds

where he would grant it.

TOOHEY J: Is the position comparable, Mr Solicitor, to the

situation where provocation can reduce murder to

manslaughter and counsel, for good reason, avoids

provocation in his address, but there is an

obligation on the trial judge to direct the jury if

there is evidence to make the issue a live one?

MR MASON:	The Court of Appeal said "Yes", and in so doing followed an earlier decision - I think it is
George - where intoxication, going to formation of
intent, was held to be a matter that would call for
a specific direction. If this Court granted leave, and I am not putting this as an invitation to do
so, it would be argued that the application of
Pemble to a situation such as the present, is
misconceived. There is a world of difference between a judge not putting a particular verdict
open to the jury, as in the example you gave and as in Pemble, on the one hand, and a judge faced with a single verdict where intent is an ingredient; not

Fetineiai 10 12/5/94

putting a particular factual scenario that goes

that may point up the formation of that intent.

In the present case the entirety of the

Court of Appeal, as my friend has said, following George's case, said that there was a misdirection

in that regard. But I would submit there is a

difference, and it does go ultimately - it may go,

in the view of the Court, to the appropriateness of

granting special leave, as to whether you consider

there has been a miscarriage in the way the matter

was addressed by the Court of Criminal Appeal.

MASON CJ:  Mr Solicitor, I do not follow at the moment why

it would have detracted from the applicant's

defence, in the circumstances as they fell out, for

the judge to have given a direction on

intoxication. After all, he was being described by

the judge as this drunken man.

MR MASON:  Yes. Of course, the judge was putting it in the

context of the likelihood that the complainant

would have engaged consensually in that activity.

MASON CJ: Yes.

MR MASON:  But the danger to the defence, in raising

intoxication in cases such as this, lies in the fact that it is a very thin line one has to run

because if you were so intoxicated you may not be

able to recall clearly what happened and the jury

may not be persuaded by your sworn evidence that

certain things did or did not happen.

DEANE J: Yes. Except it should not be all that hard to say

the defendant says he understood it, he has not

raised intoxication, but it is not open to you to

find that his intoxication caused him to make a

mistake about it.

MR MASON:  That is certainly true as a logically proposition

from - - -

DEANE J: And one would think it could be handled, or

certainly you could say to the judge - tell them

that, "While we do not raise intoxication" that

they cannot say, even though he may have thought

she was consenting that was his fault because he

was drunk, and he cannot rely on that.

MR MASON:  One certainly could give such a direction. One

certainly could weave one's way through that Scylla

and Charybdis, but in the real world of a criminal

trial it is likely to be destructive, yes.

DEANE J:  I can see the force of the approach that if the

accused runs his case that way and does not ask for

Fetineiai 11 12/5/94

a direction, well, then Pemble raises some very odd

problems. But that is not the way this case has

been decided.

MR MASON:  No. Here, however, the mere fact that there

was - let it be conceded for point of argument - a

breach of the Pemble requirement, it does not

necessarily mean that there was an appealable error
because whilst it is true that Pemble is in the

same area as rule 4, the fact is it is rule 4 and

not the pure common law that is part and parcel of

the appellate procedure in New South Wales and

that, in any event, what a trial judge must do is

not the same as what an appellate court will

necessarily do for breach and, accepting, as the

entirely of the court did, that there was a failure

to give a proper direction non sequitur that there

was a miscarriage that would attract a grant of

leave under rule 4, or that would rebuff the

priviso.

Here the directions that the jury were given

were seen to be unexceptional at the trial. There
was, at the conclusion of the trial - both parties

agreed in a fresh form of direction; I hope that is

correct. At this stage of the afternoon 10 cases

are all getting a bit blurred, but I believe it is

in this case, Your Honours, I am sorry. It is at

page 43, Your Honours, where at the invitation of
both parties in effect, His Honour revisited the

question of recklessness.

So given the way the matter proceeded at

trial, the majority of the Court of Appeal were

entitled and, in my submission, were correct to

find no miscarriage and to refuse leave under

rule 4.

MASON CJ: Yes, Mr Byrne?

MR BYRNE:  Your Honours, just on the question of

recklessness. It is, perhaps, of assistance to the

Court to take account of the address which the

learned Crown prosecutor gave to the jury. At

page 9 of the application book part of that address

is set out, and from line 20 down to virtually the

end of page 9 there are a large number of

references to the question of recklessness, and

about the accused not caring and so on. So that

the Crown ran its case very much on the basis that

recklessness was a live issue in this case.

Your Honours, my learned friend said that my

initial submissions had suggested that rule 4 was

invalid. I did not seek to convey that impression.

What I was seeking to put was that rule 4 has, by

the judgment of the majority in this case, been

Fetineiai 12 12/5/94

elevated to a status something higher than the

proviso to section 6 of the Criminal Appeal Act and

that that, in the circumstances, was improper.

Your Honours, the final matter, if I could put

it in these terms, was that in determining whether or not rule 4 or the priviso should be applied the

learned President applied the correct test, as it

has been held to be by a number of recent decisions

of this Court, whereas the majority did not, in our respectful submission, apply the correct test.

If I might finally say that if Your Honours

are not of the view that this matter raises a point

of general importance in the administration of

justice so as to justify the grant of special

leave, I would ask the Court to bear in mind that

Your Honours do have the power to grant special

leave in a case where it raises a question of the

administration of justice in a particular case, and

in that regard we would ask the Court to bear in

mind what Your Honour Justice Deane said in

Liberato's case, (1985) 159 CLR 507. That is not

on the list of authorities. If I might quote at

page 521:

the application of the proviso by the Court of

Criminal Appeal was effectively an exercise of

original jurisdiction from which the only

appeal is that which lies, by special leave,

to this Court.

MASON CJ:  Mr Bryne, did the applicant mention that he had

been drinking in his statement from the dock?

MR BYRNE:  In his statement he did not mention it, no. He

did say the only - - -

MASON CJ: Whereabouts is it?

MR BYRNE:  It is at page 39 of the application book. He did

say he had been at a 21st birthday party, and he

had been with his girlfriend. He said that he was

angry. He did say, at line 30, which is an

interesting matter:

I do not remember her father coming out or I do not remember seeing her father -

Now, there was clear evidence, uncontested, that he

had been introduced to the father and they had

spoken to each other and the father was awake at

the time this offence was alleged to have occurred.

The further things that the applicant said on

page 40, which are of relevance, are at line 10 of

page 40, where the applicant said this:

Fetineiai 13 12/5/94

I present the record of interview with

Detectives Cooper and Carney as an accurate record of events that took place that

evening -

Now, the record of interview was replete with references to the amount that he had been drinking,

to references that he was drunk. He had described

himself as being drunk, and he also said that he

could not remember anything because he was so

drunk.

So that there was clear evidence in that the record of interview went before the jury without

objection and there was clear material in that that he had been drinking. There was clear material in

the evidence of the complainant herself that he had

been drinking. So that he was not running away

from the fact, or denying the fact of his

intoxication. He was simply not asserting it, as a

ground on which he based his misconception, if that

be the jury's finding.

MASON CJ: What about in counsel's address to the jury?

MR BYRNE:  Your Honour, counsel for the applicant at his

trial he did not refer to the question - - -

MASON CJ:  We know that counsel for the prosecution did, but

there was no reference to it in - - -

MR BYRNE:  No, Your Honour. The only matter that is of

significance in counsel's address is recorded at

page 13 of the application book, in the very last

line on the page where counsel is recorded as

saying:

He was not reckless.	He had consentual sex
with this young lady.

Now, I simply go back, Your Honours, to the	proposition that I put earlier, that when an	accused person, charged with sexual assault,
asserts that it was a consenting act all that
person is really saying, when it was all boiled
down is, "I thought that it was a consenting act",
because there is a subjective notion to the concept
of consent which the accused person cannot in effect put forward, unless perhaps in some exceptional case it may be, but in the general case the claim that it was a consenting act really means nothing more than, "I believe that it was a consenting act". Those are my submissions in reply.

Fetineiai 14 12/5/94

MASON CJ:  The Court will take a short adjournment to

consider what course it will take in this matter.

AT 3.42 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.51 PM:

MASON CJ: The Court has decided that it wishes to receive

from counsel a copy from each counsel of the

directions which counsel suggests should have been

given to the jury at the trial on the topic of

intoxication, if directions on that topic were

required to be given.

To that end, I direct the parties to lodge,

with the Registry, their version of the directions

on or before next Wednesday. The Court will give

further consideration to this application when it

has had the advantage of seeing these model

directions, and to that end the Court will now

reserve its decision.

MR MASON:  May I just inquire, just the directions, no

submissions in support of them?

MASON CJ:  It might be helpful if any submissions in support of them were given. We leave that to counsel. But

what we were looking for were the directions that

ought to be given.

MR MASON: If any.

MASON CJ:  No. On the assumption that directions are

required to be given.

MR MASON:  I understand. Thank you.

DEANE J: All I have to say, on the assumption that Pemble

is not under attack which, as I follow it, both

sides accept that some directions should have been

given, or everyone in the Court of Criminal Appeal

accepted it.

MASON CJ:	You do not accept that though, do you?
MR MASON:	No, I do not. But I understand the assumption I

am to make.

MASON CJ:  Now, the Court will adjourn.

AT 3.54 PM THE MATTER WAS ADJOURNED SINE DIE

Fetineiai 15 12/5/94