Gleadhill v The Queen

[2004] HCATrans 50

[2004] HCATrans 050

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B43 of 2002

B e t w e e n -

GARY JOHN GLEADHILL

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH ACJ
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 9.33 AM

Copyright in the High Court of Australia

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

MRS L.J. CLARE:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland)) 

McHUGH ACJ:   Yes, Mr Glynn. 

MR GLYNN:   Your Honours, included with the material was an affidavit explaining the delay between the filing of the application for special leave and the filing of the summary of argument.  I was only going to seek leave to read and file that in the event that some issue arose about the delay.

McHUGH ACJ:   Yes, you may proceed, Mr Glynn.

MR GLYNN:   Thank you.  The facts of the application are set out in detail in the written material.  The ground which was argued before the Court of Appeal was that the verdict was unreasonable, the particulars of that being, firstly, the inconsistency between the acquittals on counts 2 and 3 and the convictions on counts 1 and 4; secondly, the quality of the evidence on count 1 was such that it should have resulted in an acquittal on count 1; that the quality of the evidence on counts 1 and 3 was such that the jury should have acquitted on all counts; the delay in the making of the complaint; the complainant’s first raising uncharged acts at trial; and the absence of corroboration or supporting evidence for the complainant’s allegations.

The Court of Appeal, in its judgment, summarises the evidence at paragraphs [3] to [36], AB57.  The principal complaint is that there is a factual inconsistency between the verdicts.  It is a case where “logic and reasonableness”, to quote a phrase from MacKenzie, necessarily dictated a common approach to the verdicts.  That is a statement which is approved of by this Court in MFA v The Queen at paragraph [85]. But the other factors to which I referred also make significant additional contributions to the case for the applicant.

In M v The Queen (1994) 181 CLR 487, in the majority judgment of this Court at page 492, the Court, in dealing with the issue of the approach to whether a verdict was, to use the current phrase, unreasonable, said, about seven lines from the bottom of the page:

In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict.  Questions of law are separately dealt with by s. 6(1).  The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, “none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand”.

It is submitted that, in this case, the Court of Appeal has really failed to apply that test. 

McHUGH ACJ:   Where is the passage that you say indicates that?

MR GLYNN:   Your Honour, it is really to be found in the court’s approach in paragraphs [31] and [32] of the judgment, where the court, it is submitted, justifies everything on the basis that the jury having had the law explained to them correctly, and the facts drawn to their attention in detail, justifies the finding that the jury made.

Your Honours, there were two counts, that is, 2 and 3, upon which the applicant was acquitted.  The Court of Appeal concluded that count 2 was explicable on the basis that the jury may not have been satisfied that the count fell within the timeframe alleged by the Crown.  At this level, it is hard to complain about that finding.  However, count 3, it is submitted, is an entirely different proposition.  The jury’s rejection of the complainant in respect of count 3, it is submitted, has the effect of infecting the whole of the evidence of the complainant.

McHUGH ACJ:   But the jury were not satisfied beyond reasonable doubt on counts 2 and 3, were they?

MR GLYNN:   That is right.  But in so doing, your Honours, it is the case that the jury must not have been satisfied beyond reasonable doubt of the evidence of the complainant, because the case turned entirely upon the evidence of the complainant.  There was no supporting evidence for any of the counts in the indictment, neither for those upon which a conviction was recorded, nor upon those where a verdict of “not guilty” was reached.  At page 67 of the record, in the case for the applicant, at paragraph 2.12, the factual allegation upon which count 3 was founded is set out: 

She said her mother, brother and sister had gone to town shopping.  The Appellant and her were watching car racing either on a video or on television.  He pulled down his pants and pushed her head down onto his penis.  His penis went inside her mouth.  The Complainant pulled away and went to her room.

In paragraph 2.16, a number ‑ ‑ ‑

KIRBY J:   Is this the count in respect of which at one stage the complainant said that there was vaginal intercourse?

MR GLYNN:   That is the one, your Honour.

KIRBY J:   May that not be a proper reason for the jury to say that on that matter the Crown had not proved the case beyond reasonable doubt, but that on the other count the Crown had done so?  If we insist upon judges telling juries, as we do, that each count must be considered separately and individually and must be proved beyond reasonable doubt by the Crown, and if, on one count, there is an inconsistency which explains the jury’s verdict, then you cannot really complain about the differential verdicts that result. 

MR GLYNN:   With respect, your Honour, that is not so.  Even if they are told that – and perhaps the time has come that in appropriate cases, juries are not so directed, but putting that to one side – the mere fact that the jury are told that they can reach different verdicts does not mean that they should, despite the fact that the evidence of the complainant is severely damaged in respect of one of the complaints, such that it should infect their view of her reliability or honesty as a witness on the other counts.

KIRBY J:   Is it not true, as the Crown says, that you could accept the complainant as a truthful witness, but take the view that on that particular matter, because there is an inconsistency, the count has not been proved beyond reasonable doubt?  That must be true, must it not?

MR GLYNN:   No, with respect, your Honour.  What it means is that the jury must have rejected the complainant’s evidence on that as being at least unreliable, if not untruthful.

McHUGH ACJ:   No, not necessarily.  They may have thought that it was proved on the balance of probabilities, but not proved beyond reasonable doubt.  It is a large step to speculate that they rejected the evidence, as opposed to not being satisfied that the Crown had proved its case.

MR GLYNN:   Your Honour, if that is the case, it would be virtually impossible to establish, ever, a ground of unreasonableness based on inconsistency of verdicts.

McHUGH ACJ:   Not at all.  Jones was a good illustration of it.

MR GLYNN:   And this is a similar illustration with respect to Jones.  In Jones, there was good reason why the jury would acquit in respect of one of the counts, but that good reason was missing in respect of the first and the third count.  The Court there took the view that the rejection for the good reasons in respect of count 2 must have meant that the jury’s view of her evidence was infected, overall, by the rejection of count 2. 

That is our submission in respect of this matter, that here there was such a substantial change in the complainant’s evidence from oral intercourse to vaginal intercourse, a matter about which one would expect all of the reasons given by the Court of Appeal could not possibly justify, then the jury must have had a doubt about 1 and 4, absent some other additional evidence which would give support to counts 1 and 4, as occurred in MFA v The Queen, where the jury acquitted on six out of the eight counts, but, in respect of the two counts on which they convicted, there was some evidence supporting the complainant, namely, that of an eyewitness.  Where the eyewitness was present, although his evidence on one was quite supportive and on the other contained serious inconsistencies, the Court there upheld the verdicts on the basis of that additional supporting evidence. 

In my submission, it is fair to say that it was the presence of the additional supporting evidence which led the Court in MFA v The Queen to uphold the conviction.  In fact, in the judgment in which your Honour participated, that seems to have been because your Honours concluded that there had been an error by the Court of Appeal, but upheld the conviction upon that basis.

Here, again, there is a very, very major problem with the evidence in respect of count 3 that cannot be explained, in my submission, other than by the rejection of the complainant’s evidence, because of the serious change in her evidence which must have infected their view of her reliability or credibility, and, therefore, absent some supporting evidence in respect of counts 1 and 4, should have led to an acquittal in respect of both of those counts.

KIRBY J:   In every case, it is a matter of judgment.  You cannot have a rule, which is set in stone, that in every case you have to have an eyewitness that corroborates.  Otherwise, we are back to some of the old law.  It is a matter of assessing whether it hangs together, as was said in MacKenzie, whether it is logical and reasonable.  I think that is as much as can be said.  This Court has visited this matter twice in recent years, so I do not know that there is any issue of principle that we would have to restate, simply whether the principles have been misapplied in this particular case.  The Court of Appeal has gone through it carefully and there is an explanation of the differential verdicts in this case.

MR GLYNN:   Your Honour, my submission is that the explanation amounts to nothing more than mental gymnastics by the Court of Appeal because, as I submitted, whilst the explanation in respect of count 2 cannot be challenged, the Court then lumps counts 2 and 3 together, particularly in paragraph [31], and appears to try to justify them on the same basis, but count 3 is in a very different position because of the major change in the evidence.  And, of course, it is not the only material.  There is the fact that the complainant added significantly to her evidence during the course of the trial.  She made claims that she had made statements to the police officer, which the police officer denied; she made claims that she had gone to visit people after count 1, which turned out not to be true. 

There, of course, are the factors of delay, absence of fresh complaint and, as I have made the point, absence of supporting evidence.  But if I could go back to the point your Honour makes, I am not suggesting that there should be set in stone a rule that absent some supporting evidence a conviction should be set aside as unreasonable ‑ ‑ ‑

KIRBY J:   Well, what is this Court doing then?  As a second level appeal, we are really just second‑guessing the Court of Appeal in the application  of established principles, are we not?

MR GLYNN:   Your Honour, the Court has the power, of course, to deal with it on the basis of the justice of the individual case.

KIRBY J:   Of course we do.  These cases are always of concern and always deserve and warrant close scrutiny, but there is an explanation, at least in respect of one count, that explains the jury’s differential verdict.  The slightly troubling thing is the other count, where there is not an explanation, but it might have just been that the jury took the view that on some matters the complainant was more convincing.  Your submission gets very close to the point that in any case of multiple sexual complaints, if there are differential verdicts, that is it, it is unsatisfactory, and the court must set the verdicts of the jury aside, despite the role that the jury plays in our community in these matters.

MR GLYNN:   Your Honour, with respect, that is not my submission.  In my submission, it does not come close to that.  My submission is that in the circumstances of this particular case – as MacKenzie says you must do ‑ look at the facts of a particular case – if you have regard to count 3, and that is the one I rely on, I have put count 2 to one side as there being some genuine explanation, but in respect of count 3 there can only be that fact.  It can only be justified on the basis that because of the very major change in the evidence – and it cannot be otherwise characterised, the evidence having previously been given on oath that it was vaginal rape and then changed to oral intercourse on oath the second time – the complainant was at very best unreliable, at worst dishonest.  In the absence of something to justify a differentiation in the approach to the evidence of the other two, as was done

in Jones v The Queen, what should result, therefore, is a finding that the verdict of the jury cannot be sustained because ‑ ‑ ‑

KIRBY J:   I think you have made your point.  Your point is count 3.

MR GLYNN:   Yes.

KIRBY J:   I think that is the best point you have.

MR GLYNN:   I can take a hint, your Honour, thank you.

KIRBY J:   You took a long time to take the hint.

McHUGH ACJ:   Yes, Mrs Clare, we would like to hear you in respect of count 3.

MRS CLARE:   Thank you.  In my submission, it really comes down to the fact that this complainant had a memory which was better in respect of some offences than for others, which is hardly unusual in the case of multiple sexual acts over a period of time.  It is a case where, in the light of that situation, the jury discriminated, as it was entitled to do ‑ ‑ ‑

KIRBY J:   Can I tell you what worries me slightly in the matter and that is that if the jury had said, “We believe those instances where she was alone in the house with the stepfather and just find it hard to believe the instances where the other members of the family were there”, that would hang together, but in this case it did not fall out that way.  One of the counts the family were there in adjoining rooms and the jury convicted on that count.  I can understand the point on count 2, but I just do not understand how logic and reasonableness, which is the test expressed in MacKenzie, explains count 3.  Can you help the Court on that?

MRS CLARE:   Yes.  In respect of count 3, we know that the complainant provided statements to police, that she gave evidence at a committal hearing, that there was an opening of the particulars of each offence to the jury by the Crown Prosecutor, and that then the complainant, of course, was examined.  Now, out of all of those occasions of versions being given, in respect of count 3 the only inconsistency which was identified in the trial was in respect of the committal hearing, because on that occasion, when the complainant spoke about the specific peripheral arrangements of family and described and contextualised the episode, she went on to say that it was an episode of vaginal intercourse, whereas at trial the Crown relied upon and the witness gave evidence that it was an episode of oral sex. 

We can infer from the fact that no other criticism or allegations of inconsistency in relation to that were made at the trial that she was, on the other occasions, consistent with the fact that it was an occasion of oral sex.  We also know that when the complainant gave her evidence she indicated that she had tried to block out memories of the offences and that her memory was vague in respect of some things that have happened to her. 

In those circumstances, the jury could well be satisfied that the witness was honest, that she was doing her best to remember, that, indeed, something sexual had happened to her on this occasion, but the jury, because of that inconsistency at the committal hearing, could not be satisfied which episode, which activity, occurred. 

I make that point because the learned trial judge, in directing the jury, told them that they had to be satisfied of the particulars of the offence.  He told the jury that the Crown had tied its colours to the mast in relation to the detail of the offence, and they had to be satisfied beyond reasonable doubt of that detail in respect of each count.  I draw the Court’s attention in particular to page 20 of the appeal book, at the start of that page, the second line:

The prosecution nails its colours to the mast in the sense that it has to be ‑ ‑ ‑

KIRBY J:   Yes, I remember reading this.  What about the other count?  How does one explain the differential verdict on the other count of not guilty?

McHUGH ACJ:   That was the cold weather count, was it not?

MRS CLARE:   It was the cold weather.  The dates were narrow, as framed by the Crown.  They were between May and July.  The defence point was May and winter on the ranges where this occurred are notoriously cold and, therefore, the family would not have been sitting outside, which is where it was said to have happened. 

KIRBY J:   Yes.

MRS CLARE:   My submission is that the nature of those inconsistencies was such that they did not necessarily go to dishonesty in the complainant, but simply to her reliability in relation to those two offences.  They did not necessarily taint her reliability generally, and there was a differentiation in the quality of her evidence between those counts and the convicted counts.

McHUGH ACJ:   Yes.  We need not hear you further, Mrs Clare.

MRS CLARE:   Thank you.

McHUGH ACJ:   Yes, Mr Glynn. Anything in reply?

MR GLYNN:   Simply this, your Honour, that the inconsistencies in respect of count 3 were on oath on both occasions.  My learned friend seeks to infer that in her statement she said something consistent with this, but the fact is that that is not a matter which was before the jury.  The jury were dealing with the fact that they had before them inconsistencies on oath on two prior occasions.  If that left them in a reasonable doubt about her reliability or honesty in respect of count 3, then it must have affected their view of her evidence in respect of counts 1 and 4.  

To justify it on the basis that she said that she tried to block these things out and that she had some memories that were vague – firstly, she gave specific evidence of these events having occurred without any concern, in evidence in‑chief, about vagueness or trying to block them out, and, secondly, those very complaints, if they infect count 3, must also infect counts 1 and 4.  May it please the Court, those are my submissions. 

McHUGH ACJ:   This application turns on the contention that the jury’s verdicts on the counts of the indictment presented against the applicant were so inconsistent as to cast doubt on the logic and reasonableness of the verdicts of guilty on two of those counts.

There is no reason for this Court to revisit the issue of principle in relation to inconsistent verdicts.  The Court has considered the point at least twice in recent years:  see MacKenzie v The Queen (1996) 190 CLR 348 at 365 and MFA v The Queen (2002) 193 ALR 184 at paragraph [25].

The issue in the application, therefore, is whether the Court of Appeal of the Supreme Court of Queensland failed to apply the correct test, or whether this Court considers that a miscarriage of justice may have occurred.  We are not satisfied that either of these bases for intervention has been made out.  A consequence of insisting that each count must be considered separately by the jury and that the Crown must prove each count beyond reasonable doubt is that different verdicts on different counts will often be accepted as logical and reasonable.  So it is in this case.  Accordingly, the application for special leave to appeal must be refused.

AT 10.02 AM THE MATTER WAS CONCLUDED