Graham v The Queen

[2008] HCATrans 403

[2008] HCATrans 403

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S452 of 2008

B e t w e e n -

GUY GRAHAM

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 DECEMBER 2008, AT 11.09 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR H.K. DHANJI.  (instructed by Legal Aid Commission of NSW – Sydney)

MR D.C. FREARSON, S.C:   May it please the Court, I appear for the respondent.  (instructed by Solicitor for Public Prosecutions (NSW) – Sydney)

FRENCH CJ:   Yes, Mr Game.

MR GAME:   If the Court pleases.  For reasons that appear in our written submissions and I am about to elaborate upon, we submit that this case is an appropriate one to revisit the ground of appeal that the verdict cannot be supported having regard to the evidence or is unreasonable ‑ ‑ ‑

KIRBY J:   I cannot hear you, Mr Game. 

GUMMOW J:   I cannot hear you either.

MR GAME:   I am sorry, your Honours.  I will start again. 

KIRBY J:   We like to listen to every word that you say.

MR GAME:   Well, I will skip the first few words.  We submit this is an appropriate case to revisit unreasonable verdicts under section 6(1) of the Criminal Appeal Act here in the context of what are said to be inconsistent verdicts, and we say that it is appropriate to do so, particularly having regard to the decision of this Court in Weiss.

KIRBY J:   How does Weiss lead to a reopening of the general principles expressed in MacKenzie?

MR GAME:   Well, your Honour, we would actually embrace some of the propositions that appear in MacKenzie, but our fundamental point is this, that in conducting the exercise, and we say the court failed to do it in this case and that the proposition we actually wish to put is quite a simple one.  But when you are looking at the question of inconsistent verdicts as a foundation for a submission that a verdict is unreasonable you have to look literally at everything, that is to say you have to look, not in a hypothesised way, but you have to look at the case in terms of the way in which the parties conducted it and in terms of what was the nature.  Here we have an additional factor, the acquittals on most of the counts.  The Court has to assess for itself, insofar as it can, drawing inferences where it should ‑ ‑ ‑

KIRBY J:   Yes, but if in this case the Court assesses it for itself, why is not Mr Frearson’s submission a correct and fair one that your client accepted that the complainant had delineated no penetration - he said that – and that, therefore, the jury took the view in their verdicts, we will give him the benefit of the doubt on the preliminaries – the bottle and all the other things – but on the issue of essential penetration which could lead to her pregnancy we do not, and he accepts that that is a point of distinction and that explains the differential verdicts.

MR GAME:   First, in terms of context, you would need to look at the answers in the context of the whole record of interview, which I will take you to shortly.  Secondly, you need to look at the way in which the Crown utilised this material amongst other material such as the improbability that she would consent to the activities with a bottle – and I will take your Honours to that shortly – but, thirdly, it leaves completely unexplained why the jury acquitted on the other counts.

May I put it this way, your Honour?  If you look at page 172 of the application book, paragraph 34, now nobody would suggest that any human being could be in any doubt about the question of consent, belief in consent having regard to what might be described as the extreme nature of the events recounted by the complainant and the resistance time and time again to what was being done to her.  On her account she was a virtual prisoner.

GUMMOW J:   How old was the complainant?

MR GAME:   I think she was in her early to mid‑30s.

GUMMOW J:   The same age roughly as your client?

MR GAME:   He was a little bit older, I think.

GUMMOW J:   He was born in 1970.  Is that right?

MR GAME:   That sounds right to me, I am sorry, your Honour.

KIRBY J:   He was a very large man and she was quite a small woman as described?

MR GAME:   Well, she was New South Wales taekwando champion, your Honour, so she was a pretty strong person herself.

KIRBY J:   What is that sport?

MR GAME:   I have practically no idea, but it involves throwing people to the ground.

KIRBY J:   Members of the legal profession are not strong in sport, except the sport of combat.

MR GAME:   What I am saying is this.  In my submission, it is quite important; nobody, but nobody has actually said “Look at these incidents.  Yes, we think a person could have been in doubt about the question of belief in consent”.  So when you go to the judgment - and in my submission the judgment shows that the court has failed altogether to examine the whole record and see how this issue unfolded in the context of the trial - when you go to the summary of points at pages 152 to 153, it is said there that the jury may not have been satisfied – we see reference to count 1.  In count 1 her actual bra was broken:

had made it clear that she did not consent.  The jury, acting reasonably, may not have been satisfied beyond reasonable doubt that at the time of his acts the subject of those counts the appellant did not honestly believe that the complainant was consenting.

Well, if the accused was Caliban and the complainant was Miranda, maybe so, but all that leaves, in my submission, are these possibilities:  one, that the jury is not convicting on the account that the complainant gave, but on some other concealed ground.

KIRBY J:   Yes, but in MacKenzie we said that you have to allow for juries’ differential determination of cases.  That is part and parcel of the specificity of the criminal process.  You have to allow for compassionate or merciful decisions.  You have to allow for the heavy burden resting on the prosecution and otherwise we are going down the path, even more than we have, of substituting trial by three judges on appeal for trial by jury and I am not in favour of that, I have to say to you.

MR GAME:   Well, in my submission it has to be understood that in this case the Crown relied on those answers, not in support of a conviction on counts 6 and 9, but in support, shall we say, of supporting the account of the complainant.  But the Crown Prosecutor’s submission was that it was impossible to reconcile what the accused said generally with the complainant’s account.  Now, where is a court, shall I say, exercising its discernment in establishing the foundation for a conviction if it is merely speculating -and speculating is the thing that is really ruled out by cases like Weiss - merely speculating about some version of the events which was never articulated by any person in the conduct of the trial.

Now, if you go back to page 153, the second possibility in subparagraph (iv) is that the court has unduly constrained what it means or understands by the question, “The jury, acting reasonably, may not have been satisfied”, that is to say, shall I say, pre‑recent cases in this Court about the meaning of “unreasonable verdict” hypothesising about what might have happened, not examining for themselves what did happen.

The third possibility there is that the court completely mistook the issue and there is no articulation of the proposition that your Honour Justice Kirby has put to me in the court’s judgment.  In my submission there is no ‑ ‑ ‑

KIRBY J:   But is not the principle that once evidence is before a jury it is the constitutional province of the jury to decide what it makes of the evidence.  Is that not the correct principle in civil and criminal trials?

MR GAME:   Yes, your Honour, there is a tension.  But the question for the court in the case of unreasonable verdicts is that it must examine for itself the entire record.  Now, may I give you some examples ‑ ‑ ‑

KIRBY J:   Can I just add, or but a rider to that – at least in criminal trials – is that the court performs that review function in a way that is respectful of the so‑called constitutional function of the jury.

MR GAME:   Yes, I accept all of that, your Honour.  But my submission is that this case raises in a very stark way the conflicts between those propositions.  My submission is that if you do not have an inconsistent verdict in this case then what you are doing is actually throwing away the capacity to articulate or to reason what in fact has happened in the process.

KIRBY J:   Except for the discrimen that the respondent puts before us that her absolutely clear statement which your client agreed to in his interview was no penile penetration - “I don’t want to get pregnant.”

MR GAME:   Yes, your Honour, but what one is talking about there is the accused’s account in his record of interview, which I will come to in a minute. 

KIRBY J:   Well, he did not give evidence so that is the only case we have from him.

MR GAME:   No I understand, your Honour.  Quite, your Honour, but if you look, for example, shall I say at page 68 of the application book, and this is the kind of exercise that the court should have conducted if it has properly understood the issue, at page 68 you see the context of those answers is, shall we say, a context of an intimate night of cuddling, sexual activity, pre‑sexual activity and the like and that the answers that were ultimately relied upon were no more than a statement of concern for an expressed position by her, which to my recollection was in fact not part of her account.  The very questions that the Crown relies upon were specifically disavowed as being either corroboration or any form of admission.  So what are they?

Now, your Honours, if you go back to the Crown’s address, you see this is the judge’s summary of the Crown’s address.  If you go back to page 28, you will see the Crown puts – and may I say defence counsel’s address was an address directed to undoing the credibility of the complainant.  It had nothing to do with finessing about his belief in her consent.  Page 28:

it was impossible to reconcile what the accused said generally about this night being an evening of intimate consensual sex with the complainant’s evidence.

Now, there is the reference to the answers, but if you go on through this address you will see, for example, that the prosecutor has brought into account, shall I say, on page 30 at line 20:

“It isn’t going to happen that we have oral sex . . . 

hardly knowing the accused would ever consent to the use of a glass object in her vagina or her anus – she clearly believed it was dangerous.

Then on page 32, line 20:

circumstances in which she was with the bottle and with the ripped bra –

Now, the only single attempt that the court made on appeal to address any of this, in our submission, in a meaningful way was what the court had to say about count 1 and that is at page 153 (v), but that is it.  But if you examined that evidence you would see, as we point out at the bottom of 171, top of 172, was completely done away with by Derome’s own evidence that the complainant went back with the accused to his flat, plus the evidence of Ms Sullivan, another witness who gave evidence to the same effect.

So when I say the court is not conducting the function, I mean the court is not for itself examining what the actual controversy was in this case and how it fell out.  The court is not addressing itself to the true substance of what happened in respect of the acquittals.

GUMMOW J:   Could we just look at MacKenzie 190 CLR 348 for a minute.

MR GAME:   Yes, your Honour.

GUMMOW J:   In a joint judgment at 368, proposition 5.  Do you accept what is said in proposition 5?

MR GAME:   Yes, I do, your Honour, but – yes I do.  I rely on ‑ ‑ ‑

GUMMOW J:   

More commonly, it may suggest confusion in the minds of the jury or a misunderstanding of their function, uncertainty about the legal differentiation between the offences or lack of clarity in the judicial instruction on the applicable law.

MR GAME:   Yes, your Honour, I accept all of that, but there is a real question of substance here which is what does it mean to say that it was open to the jury?  What it means is the kind of examination conducted in M, not the kind of speculative question as to whether or not something is conceivably possible at the outer limbs of human reason.  So we in fact would rely on what appears at page 365 of the joint judgment, of which your Honour was a member, at the bottom of it:

However, where, in a particular case, doubt is cast upon the verdict, an appellate court, invited to do so, must determine whether it should intervene.  In a criminal appeal, it must decide whether the conviction based upon the verdict which is impugned is unsafe or unsatisfactory.

Now, putting aside the language, that contemplates a very different exercise than the court did in this case.

KIRBY J:   Is there anything in MacKenzie that you are asking the Court to revisit specifically?

MR GAME:   No, your Honour, but we are asking the Court to reconsider or consider further what is meant by “open to the jury” in MFA.  We submit that that does require careful reconsideration.

GUMMOW J:   Yes, I know, but we cannot just sit there agonising.  Reconsideration to what result?  What is the submission?

MR GAME:   Well, the submission is a simple one.

GUMMOW J:   People come up here and say, “It would be interesting if you reconsidered this or that.” 

MR GAME:   I know, your Honour.

GUMMOW J:   That really strikes no chord.

MR GAME:   No, well, I was responding to a question, but my answer to the question is that the exercise in the case of inconsistent verdicts is a different one than has been contemplated by the Court of Criminal Appeal in this case.  It is a different one when you have regard to the jurisprudence of this Court about verdicts being unsafe and unsatisfactory.  This is brought home by this Court’s decision in Weiss.

KIRBY J:   I understand that your proposition is that Weiss has added a new insight, borrowed from Fox v Percy and in the civil area that the role of an appellate court is not just to say “Well, was it possible to come to that conclusion?”  It is to reach its own conclusion and thereby to be a safeguard against miscarriage of justice.

MR GAME:   Yes, your Honour.

KIRBY J:   Therefore, when we read MacKenzie we have to now read it in the light of that development, I understand that, but we will always read a case which is resting by its order on a decision of a jury and particularly in a criminal trial with great respect to the right of the jury to, for example, reach a compassionate decision on particular counts.

MR GAME:   No, I accept that.

KIRBY J:   Or think, if we convict him of the two penile rapes that is enough for the total criminality.  Now, no barrister is ever going to argue that, but a jury may reach that view.

MR GAME:   No.  Well, in my submission it would be entirely inappropriate to reason that way and the reason ‑ ‑ ‑

KIRBY J:   Well, it would be, but as Justice King said – I think it is Osenkowski  – a very experienced criminal law judge that juries from the peopling of this country by the convicts have taken benign views of particular cases.

MR GAME:   Yes, but, your Honour, once you say the jury might have thought that was enough you have thrown away the whole question of examining rationally what happened.  In my submission, there is only room for that kind of reasoning when, for example, you have a charge of murder and a conviction of manslaughter, that is to say where there is logically a verdict for something less which ‑ ‑ ‑

KIRBY J:   That does not sound like a conceptual sub‑rule.  That is just an instance.

MR GAME:   No, your Honour, no, it is not.  What I am saying is as soon as you say the jury might have thought that was enough you have thrown away the appellate exercise.  You have thrown it away because you have thrown away the exercise of reason and analysis of what happened in this particular case.

KIRBY J:   The reasoned analysis takes into account benign views of the case by the jury. 

MR GAME:   Yes, well, if that is so, but there is in this case no reasoned analysis.  All there is is a comment about count 1 that takes one absolutely nowhere.

KIRBY J:   For my part I would like you to leave a minute or so for the sentence.

MR GAME:   Yes, your Honour.  When one comes to page 156 the submission we put on sentence was this, that if you can justify these verdicts then there must have been a real question of ambiguity about the issue of consent.  Yet when it comes to sentence, it gets sentence on the basis of the full dreaded account that the complainant gave in relation to those two incidents.

KIRBY J:   Be he reminded himself that he must not sentence on the basis of those matters for which your client had been acquitted.

MR GAME:   Yes but, your Honour, there is a very significant difference here because if you reach the conclusion as said there that:

His Honour found . . . the complainant indicated in the plainest of terms that she did not consent –

Then if so, why did they acquit and if so then what you are doing is you are rationalising on these two counts on an entirely different account than on which you have drawn conclusions about your lack of satisfaction on the other accounts.  Anyway, my time is up.

KIRBY J:   Can I just ask you this, Mr Game, we sit here and we see cases coming up including only on conviction applications and sometimes on sentencing applications and one notices over the years that the sentences for homicide seem to be distinctly lower than the sentence for manslaughter, say, than the sentence imposed in this case.  Now, you have not put before

the Court a general ground raising any general complaint.  You have a very particular complaint against sentence, no doubt for good reasons.

MR GAME:   Yes, well, my ground is that if you go along with this exercise and rationalise the verdict then you have to carry it through to sentence.

KIRBY J:   So, that is your sole issue on sentence?

MR GAME:   Yes, your Honour, yes.

KIRBY J:   You are not saying that this sentence as a whole – look at it – it is manifestly excessive?

MR GAME:   I do not think I can, your Honour.

KIRBY J:   No.

MR GAME:   I did make that submission in the court below, but I have not included it.

KIRBY J:   All right.  One day, somebody might have to do that in comparing sentences for multiple counts of sexual offences as against sentences for homicide because I just have a feeling we are getting out of kilter here.

MR GAME:   The case called White ‑ ‑ ‑

KIRBY J:   Anyway, that is not this case.

MR GAME:    ‑ ‑ ‑ about 20 years ago was, I think, the last time somebody attempted to actually do that.

FRENCH CJ:   Thank you, Mr Game.  We will not need to call on you, Mr Frearson.

The decision of the Court of Criminal Appeal in relation to the verdicts said to be inconsistent was not informed by any error of principle nor does the reasoning of the court give any foundation for a contention that there has been a miscarriage of justice. 

As to the sentencing aspect, the sentencing judge properly addressed in his remarks the need to sentence on the basis of the offences of which the applicant had been convicted.  Counsel sought no further consideration of the facts when asked.  No other basis for a challenge to the sentence has been raised.

Special leave will be refused.

AT 11.32 AM THE MATTER WAS CONCLUDED