Gap and The Queen

[2013] HCATrans 24

[2013] HCATrans 024

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane   No B46 of 2012

B e t w e e n -

GAP

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 15 FEBRUARY 2013, AT 12.37 PM

Copyright in the High Court of Australia

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

MR A.W. MOYNIHAN, SC:   May it please the Court, I appear with MS J.A. WOOLDRIDGE, for the respondent.  (instructed by Director of Public Prosecutions (Qld))

HAYNE J:   Yes, Mr Callaghan.

MR CALLAGHAN:   Can I commence our submissions by reference to the proposed ground 2?  When dealing with a case involving inconsistent verdicts, the Queensland Court of Appeal has, in this case, created a new principle, in effect, allowing itself to provide the proviso to an otherwise unsafe verdict.  It laid bare its reasoning after making at least eight relevant findings, or eight findings which were relevant to the fact that the jury acquitted the applicant on count 4 but convicted on count 3. 

The findings are these:  one, that the two counts were inextricably linked; two, that the Crown and defence conducted the case on the basis that credibility was a general issue rather than something which could be considered on a count‑by‑count basis; three, neither Crown nor defence suggested there was any scope for differential verdicts; four, the verdicts could not be rationalised by reference to the different elements of the offending; five, the verdicts could not be rationalised by reference to any difference in accounts given by the complainant; six, it was not possible to characterise the acquittal as a merciful verdict.

HAYNE J:   Why not, when these two counts both relate to a course of conduct?  I know that is question begging, that expression, but related to events that happened sequentially, did they not?

MR CALLAGHAN:   We adopt, with respect, the reasoning of Justice Fryberg at application book 84, line 15:

it is impossible to characterise the acquittal as a merciful verdict in the light of the other convictions.

His Honour goes on; you can read what is said there.  It is:

an improbable way for a jury to apply “its innate sense of fairness –

and so on.  The seventh point is that it was not possible to reconcile the verdicts by reference to anything said by counsel or the trial judge about any perceived differences in the way the complainant had given the evidence.  The eighth point is that Justice Fryberg took that aspect of the matter one step further, watched all of the complainant’s evidence and made a positive finding that there was nothing in the complainant’s demeanour which could account for the difference in the jury’s verdicts.  In some, the court conducted a thorough examination of the differentiation in the verdicts to see if it could be justified and it could not.

HAYNE J:   I understand the force of what you say by reference to the reasons of Justice Fryberg.  Why is it not open to the jury, having regard to the close contemporaneity of these two counts, to say “Look, conviction on one is enough to record the criminality involved”?

MR CALLAGHAN:   There could be, as his Honour said, nothing in that that expressed any sense of fairness and it would really have just been quite perverse and not consistent with their oath to consider each count separately and to apply their powers of logic and common sense to the disposition of each count.  The only explanation is, as was said by the majority at application book 84, line 26:

the only rational explanation for the acquittal is that the jury were not satisfied beyond reasonable doubt of the truth of the complainant’s evidence –

Now, that is a paraphrase of the language used by this Court in Jones v The Queen (1997) 191 CLR 439, which is indeed referred to at paragraph [108] of the court’s judgment. But given that the conclusions do not bear any rational explanation, this cannot relevantly be called an explanation for the verdicts. For an actual explanation we must look to the suggested possibilities canvassed by this Court in MacKenzie v The Queen (1996) 190 CLR 348, reproduced in application book page 87, line 10.

We are necessarily talking here about something which is suggestive of a compromise in the performance of their duty.  This comes back to your Honour Justice Hayne’s question.  Whichever way you look at it, it is a compromise in their duty.  There was no merciful effect in the acquittal that they brought in.

We are left with those possible explanations contemplated in MacKenzie v The Queen.  As Sherlock Holmes would have said, the court eliminated all of the impossible and this is what remained, however improbable or, in this case, however unfortunate it may have been, it must have been the truth that the different verdicts on the record represent an affront to logic.  The court, we submit, failed to carry forward that logic, to use the language of the authorities, and failed to make the consequential orders.

If you look at what they did do at paragraph [113] of the judgment, application book 87, line 30, they were, in effect, applying the proviso, and his Honour Justice Fryberg laid bare his reasoning, making it clear that it was because he was satisfied beyond a reasonable doubt that the appeal was being dismissed. 

Now, your Honours only have to reflect on that for a moment to see the error and the unfairness in that approach.  That this appeal should be dismissed because his Honour satisfied himself on the basis of the complainant’s evidence alone was extraordinarily unfair in circumstances where the applicant adduced alibi evidence, the assessment of which must necessarily have involved some assessment of credibility and his Honour could not have had regard to it obviously, sitting in the Appeal Court, but does not even purport to have had regard to it.

He just says, “I have looked at her evidence, I believe her”.  Well, believing her is a very different thing from being satisfied beyond reasonable doubt.  There is, we would submit, with respect, some perversity in his Honour’s reasoning where he purports to give primacy to the decision of the jury, but only the convictions.  It is his failure to give primacy to the reasonable doubt, which the acquittal must represent, about which we complain. 

This, we respectfully submit, is squarely a special leave point.  Can a court of appeal do this because, for so long as his Honour’s decision is part of the law of Queensland, that is the way in which an appeal court will approach the question of an inconsistent verdict.

CRENNAN J:   There is a passage, Mr Callaghan, in MacKenzie 190 CLR 348 at 367, which is under tab 7, and it is a passage which Justices Gaudron, Gummow and Kirby quoted with approval from Chief Justice King in South Australia. You will see it there set out at the bottom of page 367. It is a passage which, it could be said, has some application to the submissions you have just been making. It starts with the proposition that:

“[J]uries cannot always be expected to act in accordance with strictly logical considerations –

and that there is a need for an appellate court to:

be very cautious about setting aside verdicts which are adequately supported by the evidence –

Now, it seems to me that that is a passage which is apt in terms of the submissions you have been putting in relation to the oath and matters of that kind.  It seems to me that Justice Fryberg was, on one view, acting in accordance with those sorts of considerations and not stating an unusual different principle.

MR CALLAGHAN:   Your Honour, the same passage to which you have referred me contains that phrase “innate sense of fairness”, and it can be taken, I would submit, that Justice Fryberg had that passage in mind when he was drawing the conclusion that it was not a merciful verdict. 

CRENNAN J:   He did.

MR CALLAGHAN:   Our submission is that this Court could not have been more cautious in its analysis of the evidence.  It was extremely thorough.  As he has indicated, his Honour watched all of the complainant’s evidence and came to his conclusion.  This is not really about what the jury did.  It is about what the Court of Appeal did, having reached the conclusions that it reached.  That is the special leave question, is what a Court of Appeal could do, not whether the jury in this case was entitled to do what it did, because we have moved beyond that once the Court of Appeal makes the conclusions that it has made, which are all one way, and that is that they cannot be reconciled.  We are not asking – it would not be appropriate for your Honours to need to traverse the evidence in order to see whether that conclusion is right or not.  That is their conclusion and it is one which, as we say, has been reached after considerable thought. 

The passage to which your Honour took me in MacKenzie is really something which answers the concerns that his Honour expresses in paragraph [113] because he seems concerned that if the verdicts were set aside in this case, it would be tantamount to a rule that they would have to be set aside in every case, but that is clearly just not right.  As the passage to which your Honour took me establishes, and as we know, appellate courts are extremely cautious about setting aside a verdict and will only do so after they have performed the exercise that the Queensland Court of Appeal did in this case and reached the conclusion ‑ ‑ ‑

CRENNAN J:   There can be, of course, degrees of inconsistency and an inconsistency would need to rise to a particular point, according to MacKenzie, before intervention would be justified.  Now, obviously Justice Fryberg has decided that it was open to him to exercise his judgment in this case and determine that the inconsistency did not rise to the point that it would be necessary to intervene to prevent a possible injustice.

MR CALLAGHAN:   He could not do that, that is our point, because the inconsistency, as your Honour observes, does have to rise to a certain point and that point in this case is the credibility of the complainant which was relevantly indivisible and critical and impugned necessarily by the acquittal. 

The Court of Appeal’s analysis shows that the inconsistency did rise to that point.  His Honour implicitly acknowledged that, but we say simply refuses to give consequential effect to that finding because of his own assessment of the complainant’s evidence independent of other evidence which was heard in the trial, such as the alibi evidence.  It is a decision which bespeaks unfairness, in our submission.

I will speak to ground 1 and our argument can be briefly put by reference to the evidence identified by Justice Muir at application book 72, line 5, discussed elsewhere as well, that is, the complainant’s evidence that “it happened lots of times”.  If the jury treated this piece of evidence with the caprice that they apparently displayed towards count 3, it was a short step for them then to decide that the applicant was the type of person who would do this sort of thing and do it “lots of times” and therefore conclude that he was guilty. 

In other words, or at least in the words of Justice Muir at application book 72, paragraph [49], there was an “appreciable risk” of impermissible reasoning.  His Honour’s view was a minority one formed after consideration of the same authorities to which the majority referred.  We have developed this submission in our summary and those are our submissions on count 1 and, indeed, those are our submissions.

HAYNE J:   Thank you, Mr Callaghan.  We will not trouble you, Mr Moynihan.

In MacKenzie v The Queen (1996) 190 CLR 348, the plurality stated a number of general propositions about possible inconsistency of verdict. No challenge is made to those propositions. The verdicts returned by the jury in this matter are to be explained by reference to the considerations of fairness and justice referred to in the plurality’s reasons in MacKenzie (1996) 190 CLR 348 at 367. We are not persuaded that either the verdicts returned by the jury or the other matters raised by the applicant in connection with uncharged acts reveal any miscarriage of justice. Special leave to appeal is refused.

AT 12.54 PM THE MATTER WAS CONCLUDED