GJW v The Queen

[2004] HCATrans 513

[2004] HCATrans 513

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S589 of 2003

B e t w e e n -

GJW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 30 NOVEMBER 2004, AT 2.29 PM

Copyright in the High Court of Australia

MR S.J ODGERS, SC:   If the Court pleases, I appear for the applicant
with my learned friend, MR.M.THANGARAJ.  (instructed by the Legal Aid Commission of New South Wales)

MR L.M.B. LAMPRATI, SC:   If it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (NSW))

KIRBY J:   Yes, thank you.

MR ODGERS:   Your Honours, this application relates to an appeal against conviction brought on the basis of fresh evidence.  Although the Court of Criminal Appeal did not expressly hold that the evidence in question was fresh it applied the fresh evidence test, and we say was right to do so, a question arises whether or not the application of the fresh evidence test in Mickelberg was correct.  We cannot point to any question of general importance raised by this case.  The basis for an application for special leave is that in the interests of justice in this particular case that leave should be granted to prevent a miscarriage of justice.

The new evidence related to, or the fresh evidence, as I will call it from now on, related to the single count of sexual intercourse without consent, which is alleged to have occurred on 7 February 1999.  The applicant was charged with a number of other counts involving allegations of carnal knowledge and assault during an earlier period, and he was convicted of some of those counts.  Plainly the jury disbelieved his claim that he had never had sexual intercourse with the complainant, and no doubt that meant that the weight of his denial of committing what I will call rape, on 7 February 1999, the credibility of that denial was significantly diminished in the eyes of the jury by their conclusions in respect of the other counts.

The respondent has usefully summarised the position on this count at pages 249 to 250 of the application book.  At the bottom of 249, your Honours will see that:

The offence was said to have occurred on 7 February -

The complainant said that she went to the property of the applicant on that day, arrived about 11 am, was there for about four hours until about 3 pm, that the offence occurred in a house on the property, which belonged to the daughter of the applicant, and was called “Kristy’s house”, occurred in there before she left at about 3.

The applicant, apart from denying that he had ever had sex with her at all, testified that he was only at the property with her for about 15 minutes, and he also testified that “Kristy’s house” was occupied at that time by a woman named Freda Gibson.  His evidence to that effect was significantly corroborated by his son who gave evidence that the applicant and the complainant only came for a short time, and by Freda Gibson, who gave evidence that she was indeed living in Kristy’s house on that day, and therefore, that would have made it very difficult for the offence to have occurred, given that she did not see the complainant, or, indeed, as I understand it, the applicant, on that day, in that period of time at least.

CALLINAN J:   Mr Odgers, was the evidence admissible, that is, the evidence that the son, Timothy, had told these other witnesses something?

MR ODGERS:   I will get to that in a moment, but the answer is yes, your Honour.  In New South Wales ‑ ‑ ‑

CALLINAN J:   This is under the Evidence Act.

MR ODGERS:   Yes, there is a specific hearsay exception for it and I will take your Honour to that in a moment, but, unless your Honour wants me to answer that ‑ ‑ ‑

CALLINAN J:   No, you go ahead.

MR ODGERS:   Just before I get to the question of – perhaps I should just summarise what the new evidence was.  It really came from two important witnesses.  One was Colleen Lowe, who testified that she went to the property on 7 February in the middle of the day, I think she said around midday, and that she was told by the applicant’s son that his father was not there.  The other important witness was Sue Bunt, who testified that she also went there in the middle of the day, although she put her time of being there somewhat later, about 1.30.  She testified also that the applicant’s son had told her that the applicant was not there, but in addition she testified that she saw Freda Gibson, “sitting on the steps of her house”.  I should make it clear that the Crown case at trial was that Freda Gibson was living in a caravan at that time, was not living in the house and, therefore, that explained why she had not seen the applicant and complainant in Kristy’s house.

Now, your Honours, dealing then with the first aspect, which is the evidence of what the applicant’s son said, section 66 of the Evidence Act provides - I could hand it to your Honours if it is any assistance, but I am not sure that there is any dispute about it -a hearsay exception in criminal cases for firsthand hearsay by a person who is a witness.  The applicant’s son was a witness who - what that person said was about a fact which was fresh in his memory at the time he made the representation.  That is 66(2) in the passage there, a reference to when the event was “fresh in the memory”.  So applying that to this case, it is plain to the case that when the applicant’s son says, “Well, my father is not here”, he is talking about something which is fresh in his memory at that time.

CALLINAN J:   It is not even discretionary.  It comes in ‑ ‑ ‑

MR ODGERS:   There is a discretionary evidence act to exclude, but it creates a hearsay exception.  It comes in as evidence of the truth of the assertion unless the judge, in the exercise of a very broad limited discretion concludes that the probative value is substantially outweighed by prejudicial effect.  There is a general ‑ ‑ ‑

CALLINAN J:   Is that the only basis?

MR ODGERS:   That is the only possible basis for excluding it.  This provision was considered by the High Court in Graham’s Case, your Honour, where the question was what period of time must elapse between events and ‑ ‑ ‑

CALLINAN J:   Fresh.

MR ODGERS:    ‑ ‑ ‑ fresh, what is fresh.  Well, in this case it is the same day and probably minutes or hours at most, so there can be no dispute that it was admissible for that purpose, and that leads, of course, to the argument that we make, which is that the Court of Criminal Appeal failed to appreciate that the primary significance of the evidence relating to what the applicant’s son said on the day was not that it was a statement consistent with his in‑court testimony supporting the credibility of his in‑court testimony, but rather, because of the inherent reliability of the statement itself, given the absence of any plausible motive as to why he would tell lies to those ‑ ‑ ‑

KIRBY J:   Yes, but forgive me for saying so, but how would this stack up against the statement by Mr Leighton Schmitzer, who had been a long‑time friend of the applicant and also Mrs Forster.  I mean, these statements must have been, forensically, very devastating evidence against your client.  It does not seem to me that this belated discovery of these additional people would have, in the real world of the criminal trial of your client, the applicant, made much difference.

MR ODGERS:   Well, if that is right, your Honour, then I cannot make a complaint because ‑ ‑ ‑

KIRBY J:   Well, that is just my impression.

MR ODGERS:   I appreciate that.

KIRBY J:   I am putting it to you so you can try to deal with it.

MR ODGERS:   The response that I would make is that in respect of Mr Schmitzer, there was a dispute as to what was said.  I cannot recall the precise words, but it was whether or not there was a word “not” in there.  The applicant ‑ ‑ ‑

KIRBY J:   It is unlikely that Mr Schmitzer would have mistaken the word “not”.  I mean, it is the whole point of his evidence, the fact that he was geared up.

MR ODGERS:   Well, he ‑ ‑ ‑

KIRBY J:   He was brought to trial, that he gave his evidence, called by the Crown.  He did not make a mistake.

MR ODGERS:   He undoubtedly believed that he heard what he testified to.  No one was suggesting that he was telling lies about that, but the jury may well have had a reasonable doubt as to whether in fact the accused chose to say to a person who he had hardly seen, who was certainly not a friend by any means, certainly he had hardly seen more than one or two occasions over the preceding few years.  Schmitzer conceded they were not friends.  That increased the probability, or rather, reduced, if I can put it differently, but it raised the question whether or not he perhaps had misheard the applicant as the applicant testified, and that given the implausibility that the applicant would choose to say to a person who was not his friend, who he had hardly seen more than two or three occasions over a decade, that he had in fact committed a sexual assault without consent in circumstances ‑ ‑ ‑

KIRBY J:   There were the statements to Mrs Forster as well.

MR ODGERS:   He denied straight out that he had had any conversation with her.

KIRBY J:   I realise that, but what motive did these people who were long friends ‑ ‑ ‑

MR ODGERS:   I think in respect of her there were considerable credibility issues.  Mr Thangaraj reminds me that there was evidence that she had told lies about other matters.  There were certainly issues going to her credibility.

KIRBY J:   It just seems to me, Mr Odgers - I mean, you have to put the case, but looking at the matter as a whole, they seem to be the crucible upon which this case turned, and this little bit of extra evidence does not seem to me to weigh very heavily in the drama of the case against your client.

MR ODGERS:   Your Honour, it is often very difficult to read the mind of a jury ‑ ‑ ‑

KIRBY J:   Of course it is.

MR ODGERS:   I accept what your Honour says, that looking at it from a distance that those ‑ ‑ ‑

CALLINAN J:   The evidence, apart from Timothy’s evidence, really does not add anything, does it?

MR ODGERS:   That is where I cannot agree, your Honour.

CALLINAN J:   All it adds is that Timothy told them that.

MR ODGERS:   Yes, but the point I am making to your Honours is that there was an inherent reliability about that.  There was no plausible basis for him not - he could be mistaken about it, and what possible motive could he have had for lying about it.  It was inherently reliable that when he said that his father was not there - people come round, friends of the family come round in the middle of the day - what possible motive is there for him lying about it?  So that is the first point we make, that it is inherently plausible.

CALLINAN J:   To protect his father.

MR ODGERS:   To protect his father from what?  There was no suggestion by the Crown that he knew what was going on.

CALLINAN J:   Consorting with a young woman, he might have felt vaguely ashamed of his father doing that.  What was the age difference between your client and the complainant?

MR ODGERS:   Twenty nine years.

CALLINAN J:   Twenty nine years age difference.

MR ODGERS:   Yes.

CALLINAN J:   Well.

MR ODGERS:   Yes.  The other aspect, your Honour, is the evidence of where Freda Gibson was living.  The point is, with respect, that if she was in fact living in the house, that made it impossible for the crime to have been committed, as claimed by the complainant.  It just was not possible that she could have gone to the house, spent a substantial amount of time there with the applicant, and not have been seen by Ms Gibson who, if she was living in the house, and having lunch there, as she testified, would inevitably have seen what was happening.

Evidence to show that she was sitting on the steps of her house, which was described as a building, and not a caravan is, with respect, powerful evidence supporting her evidence at trial that she was living in the house, and therefore provided significant support for the conclusion that the offence could not have occurred in the way that the complainant alleged that it did.  We submit that the evidence was significant, and that the test ultimately has to be, was there a significant possibility that the jury might have acquitted with the benefit of this evidence, bearing in mind that they plainly were in a situation where the credibility of the applicant had been significantly damaged.  They would have had doubts about the son, because, of course, what would a son do but support his father at the time of the trial.  The Crown case was that Freda Gibson was simply mistaken and that she was living in the caravan at the time, and the jury may well have thought that that was entirely plausible.

We do not know how much significance, if any, they gave to these alleged admissions.  All that the applicant has to demonstrate is that the jury might reasonably have relied on material, which is now seen in a very different light by reason of the contemporaneous statement of the applicant’s son, which I submit to your Honours is inherently reliable, and the evidence corroborating Freda Gibson’s claim that she, and I should add the applicant and his son’s claim, that she was living in the house at the time.

Mr Thangaraj reminds me that there was a considerable amount of evidence bearing on the credibility of Ms Foster, and casting doubt on her general reliability, so that given the existence of that evidence, it is a big jump to conclude that the jury necessarily relied on her.

Your Honours, we submit that the Court of Criminal Appeal has erred in two ways:  failing to appreciate the significance of the hearsay use that can be made of the evidence of what the son said at the time, failing to appreciate the significance of the evidence relating to where Ms Gibson was living at the time.  We have referred to other errors in the written submissions, which I will not take your Honours to.  We submit that on any proper application of the significant possibility test, the only conclusion that can reasonably be drawn, is that the jury might possibly have acquitted the applicant bearing in mind this new evidence.  We say that a miscarriage of justice has been demonstrated, and we would respectfully submit that there

should be a grant of special leave to ventilate that matter in the High Court.  Those are our submissions.

KIRBY J:   Yes, thank you Mr Odgers.  The Court does not need your assistance, Mr Lamprati.

The applicant sought the grant of special leave “in the interests of justice”.  Properly it was conceded by his counsel that there was no point of general importance in the case apart, that is, from the importance of the application to the applicant and his family.

The case involved suggested new evidence that had become available since the trial of the applicant.  We have considered the new evidence.  We are not convinced that the Court of Criminal Appeal erred in concluding that the applicant’s appeal to it should be dismissed.  Likewise, we are not convinced that a miscarriage of justice has occurred. 

Accordingly, special leave to appeal is refused.

AT 2.56 PM THE MATTER WAS CONCLUDED