Gae v The Queen

[2000] HCATrans 568

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M21 of 2000

B e t w e e n -

GAE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 DECEMBER 2000, AT 11.27 AM

Copyright in the High Court of Australia

MR P.F. TEHAN, QC:  If the Court pleases, I appear with my learned friend, MR A.T. BURGESS, for the applicant in this matter.  (instructed by Henderson & Ball)

MR J.D. McARDLE, QC:  May it please the Court, I appear with my learned friend, MS R.E. CARLIN, for the respondent.  (instructed by P. Wood, Solicitor for Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Tehan.

MR TEHAN:   If the Court pleases, special leave should be granted in this case in order to uphold an established principle in the conduct of criminal trials.  That principle is that the Crown should not be able to depart from the way it has conducted a trial, particularly at a late stage.

McHUGH J:   But does it not depend on circumstances?  The answer to the special leave question you formulate on 316 seems to be, “Well, it depends on the circumstances”, does it not?

MR TEHAN:   Well, the circumstances of this case were that this was a radical departure, in our submission, from the way in which the Crown had conducted its case.

McHUGH J:   All the judges agreed that the redirection put the prosecution case in a different way from which it had been put up to that stage of the case, but the majority thought that the direction did not result in a new and alternative case so as to materially enlarge the Crown case, as had occurred in King’s Case.

MR TEHAN:   In fact, the majority differed in some respect on that issue, your Honour, because Mr Justice Callaway, at 261 line 24 of the application book, was of the view that the Crown had not “confined its case in the manner suggested”, whereas ‑ ‑ ‑

McHUGH J:   I am sorry, where was that, 261?

MR TEHAN:   Page 261, line 24 ‑ ‑ ‑

HAYNE J:   Paragraph 24, I think, Mr Tehan.

MR TEHAN:   Paragraph 24, I am sorry, your Honour.  Whereas Mr Justice Chernov, at page 288 of the application book, at paragraph 82, said:

There is little doubt that the re-direction put the Crown’s case in a different way to that which was presented by it up to that point in time.

HAYNE J:   Does that not, in effect, highlight the difficulty that you face, that, in the end, the question is one of judging the effect of what happened at trial, the effect of what happened when the jury asked its question?

MR TEHAN:   That moves me to the real point which is to, leaving aside whether it is a ‑ ‑ ‑

HAYNE J:   I thought you started with it, Mr Tehan, the real point.

MR TEHAN:   Well, we say it was a fundamental departure from the way in which the Crown had put its case.  The Crown had led evidence, through the witness M, as to, for present purposes, three occasions - actually, five occasions, but for present purposes, three occasions.  It is apparent that that was the case if one goes to the application book at page 15, dealing with the first occasion, page 15, line 11.  Page 17 deals with the second occasion, at line 28.  Page 22 deals with the second occasion also, line 16, and page 26 deals with the third occasion at line 16.  The Crown opened its case in that way, that the offences occurred on specific occasions or episodes, and it closed its case on that way.

The President of the Court of Appeal, Mr Justice Winneke, makes that point in his judgment at application book 255.  The Crown did not particularise its case by alleging that the charged offences were the first or second of their kind.  That was not the Crown case.  His Honour made it that way.  His Honour made the Crown case that.  Rather, what the Crown did was to say that the offences occurred on discreet occasions and in respect of the witness, M, there were five.  The judge changed all that.  The judge said that the jury could convict irrespective of what occasion or episode the particular act occurred in.

Now, the question then is, as your Honour Justice Hayne put to me, what has been the end result?  Well, the end result is this.  that in relation to counts 9 and 11, they referred respectively to one count of anal penetration in the case of count 9, and one count of oral penetration of the witness, M, by the applicant in the case of count 11.  It was not the Crown case that these offences represented “the first time such offences had occurred”. 

The Crown case was that each of those types of offences, those specific types of acts, had, in fact, occurred on an earlier occasion.  In relation to anal penetration, count 4, and in relation to oral penetration in the same way as alleged in count 11, count 7.  But what had happened to those two counts was they had failed for lack of evidence and, indeed, the jury had been invited to, and did, acquit the accused in accordance with the judge’s direction. 

Now, count 9, for example, if one goes to what the judge said at application book 245 in his redirection, and this makes it plain, in our submission, how erroneous the direction was, his Honour said:

Count 9 refers to the first time that the accused man committed, as alleged, anal sex upon or with -

M.  That was not the case.

HAYNE J:   Now, by this stage, the judge has taken away the earlier allegation of anal penetration, has he?

MR TEHAN:   He had, yes.

HAYNE J:   So that by the time the jury are coming to this part of the trial, it is accepted on all sides that there was no evidence sufficient to go to the jury of an earlier anal penetration.

MR TEHAN:   That is right, and it is significant that this question, this redirection, was given in answer to a question shortly before, I think, the evidence in relation to counts 3, 8, 9 and 11 was asked to be read to the jury and, very shortly after this redirection was given, of course, the jury convicted.  But the point that I make is, it is completely wrong, it was wrong, for the judge to say it was the first time.  It was not.  Nor was it the case ‑ ‑ ‑

McHUGH J:   But that depends upon whether or not the reference to episode was an essential part of the Crown case, does it not?

MR TEHAN:   No, it does not, your Honour, no.  There are two aspects to this.  The error, firstly, relates to the direction that it was the first time, when it was not, and that gives rise to a claim as to uncertainty of verdict in relation to count 9, because, in fact, the jury may have convicted the applicant of count 9 and, indeed, also count 11, on the basis of material of which he had been acquitted, that is, the material the subject of counts 4 and count 7.

McHUGH J:   Well, where is the special leave point in this case?  Look, let us summarise it.  You have Justice Chernov in the majority and President Winneke in dissent agreeing that the redirection put the case in a way different from which it had been put by the Crown to that stage.  Justice Callaway thought there had been no change.  But the majority thought that the direction did not result in a new and enlarged case and they also thought, contrary to President Winneke, that there was no risk, the jury had convicted the applicant of an offence, or offences, of which he had been acquitted by direction or, if you like, the uncharged acts.  Now, that being so, the case turns on its own facts and circumstances.

MR TEHAN:   No, the special leave point is this.  There must be certainty of verdicts in criminal trials, particularly in cases involving sexual offences where, as in this case, the allegations are over 20 years old.

McHUGH J:   Everyone agrees with that, but the majority thought that that was not the case.  Justice Chernov explained why he thought it.

MR TEHAN:   And the explanations which he gave, in our submission, were wrong.

McHUGH J:   Well, you say they are wrong ‑ ‑ ‑

MR TEHAN:   They are wrong for these reasons, because his Honour was wrong in finding that this was not a redirection which fundamentally changed the Crown case, whereas it did.  His Honour was wrong when he took the view that all the redirection did was assist the Crown in particularising its case, which it did not, and, indeed, if it did particularise the case, it particularised it in a way that the Crown had never opened it, never lead the evidence and never closed it and, thirdly ‑ ‑ ‑

HAYNE J:   But in the end your application comes down to a miscarriage application.

MR TEHAN:   Of course it does.  Yes, it does, it does.  That is part of it.  We say there has been a miscarriage of justice here and that the decision of the President of the Court of Appeal is correct and that the verdicts on 3, 8, 9 and 11 should be set aside for uncertainty.  The third way in which we say the majority decision is wrong is it never grappled with the point that I just made, and the learned President grappled with, and that is whether there was the possibility of uncertainty of verdict in relation to 3, 8, 9 and 11.

McHUGH J:   Yes, but we do not sit here as a Court of Criminal Appeal.  There has to be something special about the case and, at the moment, I do not see it.  It seems to me that all the judges accepted what the law was.  They differed in their application to the very peculiar facts and circumstances of this case.

MR TEHAN:   The majority, we would submit, misapplied the law, as stated by this Court in King v The Queen and S v The Queen.

McHUGH J:   If misapplication of the law becomes a ground of special leave to appeal, this Court will be hearing hundreds of cases each year.

MR TEHAN:   I have stated the special leave point and I am not going to repeat it.

McHUGH J:   Yes.

MR TEHAN:   In our submission, that is a matter of fundamental importance to the administration of justice in this country, that there be certainty of verdicts.  As we say, in relation to counts 9 and 11, there is the possibility that the jury has convicted the applicant of offences of which he has already been acquitted, that is, counts 4 and 7.  In relation to counts 3 and 8, those counts were of indecent assault.  They were of very similar conduct.  Count 3 allegedly occurring on the second occasion, as the evidence was led, and count 8 allegedly occurring on the third occasion, as the evidence was led.

By directing the jury that they could be satisfied of guilt on those counts, no matter which episode they occurred in, to use his Honour’s words in the redirection, that also, in our submission, has led to uncertainty and the possibility of compromised verdicts.

McHUGH J:   But this was obviously a very conscientious jury.  They returned verdicts of not guilty on counts 13 and 28 in the indecent assault counts; 12 and 14, which were the sexual penetration counts; and one of the gross indecency counts; and they came and asked that question, which showed how attentive they were to the submissions and the evidence ‑ ‑ ‑

MR TEHAN:   Your Honour, they had been out for over a day.

HAYNE J:   It was a long presentment.

MR TEHAN:   They had been out for over a day at the time they asked this question.  They had asked for the evidence - it is significant that when they asked for the evidence of the witness, M, to be re-read to them, it concerned counts 3, 8, 9 and 11.  Then they asked this question and they convict within half an hour.  To say that verdicts might be conscientious on other counts does not, in our submission, answer the point that we make that there is uncertainty of verdicts in the particular way in which we have put it on these four counts.  For those reasons, in our submission, this application should be granted.

McHUGH J:   We need not hear you, Mr McArdle.

Justice Chernov in the majority and President Winneke in the minority of the Court of Appeal found that a redirection given by the trial judge put the prosecution case in a way different from the way in the which it had been put up to that stage of the proceedings.  Justice Callaway, who was also in the majority, thought that no change in the conduct of the case had occurred.  The majority justices thought that the direction did not result in a new and alternative case for the prosecution so as to enlarge the prosecution in a way which this Court’s decision in King v The Queen (1986) 161 CLR 423 forbids. Nor did the majority judges think, as the learned President in dissent thought, that there was a risk that the jury had convicted the applicant of an offence or offences of which he had been acquitted by direction or convicted him of various uncharged acts which were also the subject of evidence. The decision of the Court of Appeal turned on the facts and circumstances of this case. It involves no special point calling for the grant of special leave. In the circumstances, the application is refused.

AT 11.45 AM THE MATTER WAS CONCLUDED